On recognition of the resolution on granting the right of temporary paid land use as illegal
No. 6001-22-00-6ap/1403 dated 02.02.2023
Plaintiff: LLP "M"
The defendant: Akim of Aktau city, State Institution "Aktau city Department of Land Relations, Architecture and Urban Planning", IP "A"
The subject of the dispute: on the recognition of the decree on granting the right of temporary paid land use as illegal
Review of the plaintiff's cassation complaint PLOT:
The partnership, on the basis of a purchase and sale agreement dated December 12, 2002, is the owner of a land plot with a production base, with a total area of 0.5343 hectares with cadastral number 13-200-021-038.
IP A. owns the right of temporary paid long-term land use for land plot No. 33/1 with an area of 0.5531 hectares with cadastral number 13-200-021-448.
The land plots of the Partnership and the sole proprietor are located in 21 residential districts of Aktau city, they are adjacent.
The decree of the Akim of Aktau No.09-10/1559 dated August 31, 2021 A. granted the right of temporary land use for a land plot with cadastral number 13-200-036-267 with an area of 0.1000 hectares for expansion.
On the basis of the said resolution, a lease agreement for the provided land plot was concluded between the Department of Land Relations and A. On August 31, 2021.
Judicial acts:
1st instance: the claim was denied, the ruling partially returned.
Appeal: the decision remains unchanged.
Cassation: the decision and the resolution are cancelled, the claim is satisfied.
Conclusions:
The courts, having established that the disputed land plot was provided in violation of the requirements of the Land Code, applied the principle of protecting the right to trust and dismissed the claim.
It follows from the resolution that the disputed land plot has been granted to the State. to expand the existing land plot based on the application submitted on April 20, 2021.
An additional plot is needed for engineering networks and communications, as well as an access road to the cottage houses that the sole proprietor plans to build on land No. 33/1.
Subitems 5), 5-2) of paragraph 1 of Article 48 of the Code provide for exceptional cases when land plots or land use rights may be granted without bidding (tender, auction) to individuals and legal entities for the expansion and reconstruction of buildings (structures, structures) in the adjacent territory or for the construction of engineering and communication networks and systems to land plots. land plots that belong to them by right of ownership and land use.
In both cases, the need to request an additional land plot must be confirmed by documents (architectural and urban planning documentation, route diagrams issued by architecture and urban planning authorities) obtained in accordance with the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.
The application is attached. such documents were not attached, and the technical specifications issued by JSC "K" cannot serve as a sufficient basis for granting a land plot out of competition.
Therefore, the local executive body had no grounds for granting an additional land plot. As a result, the contested resolution of the akim is illegal and was subject to cancellation.
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