On recognition as illegal and cancellation of the decision on refusal to grant the right to a land plot, forcing to adopt a favorable administrative act
No. 6001-24-00-6ap/2637 dated January 30, 2025
Plaintiff: "S" LLP
Respondent: Akimat of the city
The subject of the dispute: on the recognition of the illegal and cancellation of the decree of December 22, 2022 on the refusal to grant the right to a land plot, forcing to adopt a favorable administrative act
Review of the plaintiff's cassation complaint PLOT:
The land plot requested by the plaintiff for the purposes of landscaping, operation and maintenance of buildings is located on the adjacent territory of the existing buildings of the hotel and administrative complex (hereinafter - ABC) owned by the plaintiff and LLP "K", is adjacent to the plaintiff's land plot.
According to the plaintiff, the specified land plot should be provided to him outside of the auction (auction), on the basis of subparagraph 5) of paragraph 1 of Article 48 of the Code, since it is requested for the operation and maintenance of buildings belonging to him by right of ownership in the adjacent territory.
Judicial acts:
1st instance: the claim is partially satisfied. It was decided: to declare illegal and cancel the decree of the akim of the city dated December 22, 2022 on the refusal to grant the plaintiff the right to a land plot in the area of the city of K., Prospect B., To oblige the akim of the city to submit for reconsideration to the land commission the issue of granting the plaintiff the right of private ownership to an additional land plot in the area of the city of K., Prospect B.
The rest of the claim was denied.
Appeal: initially, the decision of the court of first instance was left unchanged.
By the decision of the Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan, the decision of the appellate instance was canceled with the referral of the case for a new hearing.
Upon a new review, the decision of the court of first instance was changed by the decision of the appellate instance.
It was canceled in terms of satisfying the plaintiff's claim for recognition as illegal and cancellation of the decree of the akim of the city of K. dated December 22, 2022, on the refusal of the plaintiff to grant the right to a land plot in the area of the city of K., Prospect B., the obligation of the mayor of the city to submit for reconsideration to the land commission the issue of granting the plaintiff the right of private ownership to an additional land plot, and in this part a new decision was made to dismiss the claim.
The rest of the court's decision remains unchanged.
Cassation: The appeal ruling is upheld.
Conclusions: resolving the dispute on the merits, the court of first instance concluded that the contested administrative act was illegal, since the defendant did not take into account that the intended purpose of the requested land plot did not contradict the RAP.
The Court of appeal, overturning the decision of the court of first instance, motivated its conclusions by the fact that the plaintiff had not justified the need to provide him with an additional land plot specifically for the purpose of "operation and maintenance of the ABC building."
The plaintiff's hotel complex was built on a land plot with an area of 0.0609 hectares, with the intended purpose of "Construction and further operation of the administrative building" and commissioned by the act of the State Acceptance Commission in 2012.
In addition to this plot, the plaintiff was granted private ownership of a land plot with an area of 0.0417 hectares, with the intended purpose of "Landscaping".
In 2021, these plots will be combined into one land plot with a total area of 0.1026 hectares, with the intended purpose
"Construction and further operation of the administrative building; landscaping", which has provided the operation of the ABC building to date.
The land plot requested by the plaintiff is necessary for him to arrange a parking area for low-mobility groups of the population (guest parking).
According to paragraph 1 of Article 48 of the Code, the provision of land plots or the right to lease land plots that are state-owned and not provided for land use is carried out at auctions (auctions), with the exception of the cases provided for in subparagraphs 1-21 of this paragraph.
The additional land plot was requested by the plaintiff for the operation and maintenance of the ABC building, while the area of the land plots previously provided for these purposes by S LLP is sufficient.
In fact, the plaintiff is requesting a plot of land for landscaping and guest parking. This ground does not fall within the scope of subparagraph 5) of paragraph 1 of Article 48 of the Code. Therefore, the provision of the requested land plot must be carried out at auction (auctions).
In order to circumvent the rule providing for the provision of land at auction, the plaintiff once again requests an additional plot of land for the maintenance of a building belonging to him by right of ownership.
At the same time, they have already exercised this right before. There are no additional buildings, structures for the maintenance and operation of which additional land is required, expansion and reconstruction of buildings (structures, structures) in the adjacent territory of the plaintiff.
The conclusions of the court of appeal comply with the circumstances and requirements of the law established in the case, are confirmed by the evidence available in the case file, and comply with the requirements and principles of administrative proceedings. At the same time, according to the second part of Article 157 of the CPC, the court does not verify the expediency of the contested administrative act, adopted within the limits of administrative discretion and in accordance with the competence provided by law. This means that expediency issues remain within the competence of the administrative body, which limits the court's intervention in the sphere of administrative discretion, except in cases of disproportionality. When issuing the administrative act, the defendant acted
within the limits of its administrative discretion, the contested resolution is proportionate, that is, appropriate, and proportionate.
The issue of the legality of the provision of the disputed land plot to the person concerned is not subject to discussion in the framework of the present case, as it goes beyond the scope of the dispute.
Given the absence of new arguments in the cassation appeal, the judicial board considered that there were no grounds for the annulment of the contested judicial acts.
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