On recognition as illegal and cancellation of the order of the Department of Land Relations
No.6001-23-00-6ap/1277 dated 17.10.2023
The plaintiff: KSU "Forestry for the Protection of Forests and Wildlife" Department of Natural Resources and Environmental Management
Defendants: akim of the rural district, State Institution "Department of Land Relations"
The subject of the dispute: on recognition as illegal and cancellation of Order No. 14- r dated March 19, 2007
Review of the plaintiff's cassation complaint PLOT:
The plaintiff filed the above-mentioned claim with the court, arguing that he was granted the right of permanent land use for a land plot within the boundaries and size of the approved land management project with a total area of 40.0 hectares by the decree of the Akimat of the district No. 15/5 dated July 16, 2004 for the maintenance of the forest fund. However, by order of Akim of the Aul district No. 14-r dated March 19, 2007, T.V. was granted the right of private ownership of land plots for the construction and maintenance of an object (cafe, summer playground) on the lands of the village of Aul district.
The plaintiff believes that the contested order is illegal, since the land provided to citizen T.V. is part of the plaintiff's lands and belongs to the lands of the forest fund.
Judicial acts:
1st instance: the claim was returned on the basis of subparagraph 15) of the second part of Article 138 of the CPC in connection with the refusal to restore the missed time limit for filing a claim.
Appeal: the court's ruling remains unchanged.
Cassation: judicial acts are cancelled. The case has been sent for a new hearing to the court of first instance.
Conclusions: having checked the conclusions of the local courts, the judicial board is forced to state that they do not comply with the norms of substantive and procedural law that should have been applied in the context of the established circumstances of the case.
On July 16, 2004, by the decree of the akim of the district No. 15/5, the plaintiff was granted the right of permanent land use on a plot of 40.0 hectares for servicing the forest fund. According to the act on the right of permanent land use No. 0163655, the rightholder of this site is the plaintiff (cadastral number 09-140-072-002).
On March 19, 2007, by order of Akim of the aul district No. 14-r T.V., a 1.6-hectare land plot, cadastral number 09-142-215-005 (disputed area), was granted to private ownership for the construction and maintenance of the facility (cafe, summer playground).
It is not disputed by the defendants or anyone else that the disputed site is part of the 40-hectare site provided to the plaintiff and included in the state forest fund.
Subsequently, the disputed area was divided into two land plots with cadastral numbers 09-142-215-121 and 09-142-215-122.
On April 24, 2007, that is, after the provision of the disputed plot of land, by Decree of the Government of the Republic of Kazakhstan No. 326, the plots with cadastral numbers 09-142-215-121 and 09-142-215-122 were transferred to the
the lands of the city.
As follows from the said resolution, the Government of the Republic of Kazakhstan agreed with the proposals of the akimat of the region and the regional maslikhat to change the boundaries of the cities of K., S. and B-Zh district by including 7627 hectares and 2107.2 hectares of lands of B-Zh district in the administrative boundaries of the cities of K. 4632 hectares and B-Zh district 12,444 hectares of land in the city of K. while maintaining the legal regime of land use.
There are no materials and/or information about how the disputed area was removed from the state forest fund in the case, as well as no information about the involvement of the plaintiff in this process.
On October 13, 2022, the plaintiff sent a request to the defendant to cancel his order to provide T.V. with the disputed land, which was refused by the defendant on the grounds that "the legal act of individual application terminates from the moment its requirements or instructions contained therein are fulfilled by the persons to whom this legal act is addressed."
At the same time, the resolution of the akim of the district on July 16, 2004 No. 15/5, which granted the plaintiff a plot of 40 hectares, was not recognized as illegal and was not canceled.
Consequently, the plaintiff with the status of a communal state institution, as the rightholder of a 40-hectare site included in the state forest fund, is a participant in administrative procedures related to this site, despite the fact that this was not indicated when the akim of the aul district provided the disputed land plot to T.V. That the disputed site was the composition of the 40-hectare site is not disputed by anyone.
It follows that the courts unlawfully applied the pre-trial period for filing a lawsuit provided for in part five of Article 136 of the CPC, mistakenly believing that the plaintiff was not a participant in the administrative procedure for granting private ownership of the disputed land, while he (the plaintiff) had land use rights to it.
Thus, the local courts misinterpreted and applied the rules of procedural law, which led to the unlawful return of the claim. This, in turn, is the legal basis for canceling the court rulings disputed by the cassator and sending the administrative case to the court of first instance for a new hearing.
At the same time, the cancellation of the above-mentioned judicial acts does not prevent the court of first instance from returning to discussing the procedural time limits for filing a claim in the context of the circumstances of the case and according to the rules set out in parts one, two, three, six, seven of Article 136 of the CPC, as well as depending on the subject and the basis of the filed claim.
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