On recognition as illegal and cancellation of the decree of the akim of the city 

No. 6001-24-00-6ap/3402 dated March 11, 2025

Plaintiff: V.V.

The defendant: akim of the city

The subject of the dispute: on recognition as illegal and cancellation of the resolution

Review of the defendant's cassation complaint PLOT:

On May 6, 2014, by a decree of the Akimat of the city, V.V. was granted a land plot with an area of 0.004 hectares for the purpose of hosting a trade pavilion for a period of 10 years – from April 24, 2014 to April 24, 2024.

On the same day, a lease agreement was signed with V.V. for a land plot. On January 16, 2024, the plaintiff applied to the akimat of the city of P. with a statement

on extending the lease term of the land plot for 10 years.

On April 23, 2024, by a decree of the Akimat of the city, V.V., the right of temporary paid land use (lease) for a land plot was terminated; the right of temporary paid land use (lease) for a land plot was granted for a period of 3 years.

On May 30, 2024, the plaintiff filed a complaint with the akimat of the city addressed to the akim of the region in a pre-trial appeal of the decision.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance was overturned with a new decision on the satisfaction of the claim. It was decided to declare illegal and cancel the resolution of the Akimat of the city dated April 23, 2024. By a private ruling of the judicial board, the akim of the region was informed of violations of the APPC and the Code committed by the akim of the city.

Cassation: The decision of the appeal in this case has been changed. Regarding the satisfaction of an administrative claim for recognition as illegal and cancellation of paragraph 2 of the resolution of the Akimat of the city dated April 23, 2024

cancelled. In this part, the decision of the first instance was upheld.

The rest of the appeal ruling is upheld. The private definition of the appeal was overturned.

Conclusions: The court of first instance, rejecting the claim, reasoned that the contested resolution was adopted by the mayor of the city in compliance with the competence and limits of administrative discretion. The right of land use (lease) granted to the plaintiff for a land plot for a period of 3 years is a favorable act for the plaintiff.

The Court of Appeal, disagreeing with these conclusions, declared the decision of the Akimat illegal and pointed out that the defendant, when considering V.V.'s application for an extension of the lease of the land, went beyond his administrative discretion, terminating the plaintiff's right to use the land. The defendant was obliged to make a decision on granting the right of temporary paid land use (lease) on the land plot or on refusal to grant this right.

By virtue of the requirements of paragraphs 1-3 of Article 35 of the Code, a land plot may be provided to citizens and legal entities on the right of temporary paid land use (lease) or on the right of temporary gratuitous land use.

The right of temporary paid land use (lease) may be short-term (up to 5 years) and long-term (from 5 to 49 years), with the exception of cases when the right of temporary paid land use (lease) is granted for farming or farming provided for in this Code.

The deadlines for temporary paid land use (lease) are established on the basis of a tenant's request, taking into account the specifics of the intended use of the land plot in accordance with the terms of temporary land use established by this Code.

According to paragraph 1 of Article 44-2 of the Code, the provision of a land plot from the lands of a city of republican significance, the capital, the city of regional and district significance is carried out by the local executive body of the region, the city of republican significance, the capital, the city of regional significance and the akim of the city of district significance within their competence established by this Code.

In accordance with paragraph 2-2 of Article 37 of the Code, a temporary paid land user (tenant) of a land plot located within the city of republican significance, the capital, cities of regional and district significance, who has duly performed his duties, has, unless otherwise established by the laws of the Republic of Kazakhstan or a temporary (short-term, long-term) paid land use (lease) agreement, the right to conclude a contract for a new term in accordance with the procedure provided for in Article 44-2 of this Code, with the exception of the requirements established by  

subitems 2), 3), 4) and 7) of paragraph 4 of Article 44-2 of this Code, unless otherwise provided by this Code, provided that the boundaries of the land plot remain unchanged.

Based on the above-mentioned norms, it follows that the granting or refusal to grant land use rights is carried out by a local executive body within its competence. The deadline for the provision of a land plot is determined on the basis of a request from the land user, as well as taking into account approved master plans and detailed planning projects.

The plaintiff's application for a 10-year lease extension does not substantiate the need to provide a land plot for the specified period. In this connection, the defendant, extending the lease term for three years, made the contested decision within the limits of his competence and the time limits established by Article 35 of the Code.

Under these circumstances, the judicial board agreed with the conclusions of the court of first instance that there were no legal grounds to satisfy the plaintiff's claims regarding the challenge of paragraph 2 of the Akimat resolution dated April 23, 2024.

In this regard, the judicial board considered it necessary to cancel the private ruling of the court of appeal, as issued on formal grounds.

In the rest of the claims, the judicial board agreed with the court of appeal, which declared illegal the termination of the plaintiff's right to temporary paid land use, since the latter applied for an extension of the lease term, in compliance with the requirements established by Article 37 of the Code.

Considering that the case did not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the decision of the court of appeal regarding the recognition of paragraph 2 of the Akimat's resolution as illegal, to leave the decision of the court of first instance in force in this part, and to leave the decision of the judicial board unchanged in the rest.

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