On the cancellation of the act on the results of the audit, the regulations on the elimination of violations of the requirements of land legislation

No. 6001-24-00-6ap/2652 dated April 01, 2025

Plaintiff: K LLP (hereinafter referred to as the Partnership)

Respondent: Russian State Institution "Department of Land Resources Management of the Committee on Land Resources Management of the Ministry of Agriculture of the Republic of Kazakhstan" (hereinafter referred to as the Department)

The subject of the dispute: on the cancellation of the act on the results of the audit, the regulations on the elimination of violations of the requirements of land legislation

Review of the plaintiff's cassation complaint and the cassation petition of the regional prosecutor

PLOT:

On May 7, 2008, the Akimat of the region and the Partnership signed a contract for exploration and extraction of construction sand.

By the decree of the akim of the city of A. dated November 23, 2010, the plaintiff was granted a land plot with an area of 13.5 hectares for sand extraction, located on site "R", for 23 years on the right of temporary land use.

On July 30, 2012, by a decree of the akim of the region, the Partnership was granted a land plot with an area of 13.5 hectares on site "R" for sand extraction on the right of temporary land use until May 8, 2033.

Along with this, it was decided to transfer the specified land plot from agricultural land to the category of industrial, transport, communications, space, defense, national security and other non-agricultural land in accordance with the established procedure, and the plaintiff was ordered to reimburse the budget for losses of agricultural production in the amount of 793,800 tenge.

On April 15, 2013, the plaintiff received a state certificate for the land plot on the contract territory, with an area of 13.5 hectares.

On July 1, 2023, the akim of the city of A. sent a letter to the Department on taking appropriate measures against subsurface users in connection with violations of land legislation.

On August 14, 2023, the Department scheduled an unscheduled inspection of the plaintiff.

According to the inspection report dated August 21, 2023, a violation of the fertile soil layer of the 2.4-hectare site, which does not belong to the Partnership, was revealed.

On September 22, 2023, based on the results of the audit, an order was issued to eliminate violations of the requirements of land legislation and to take appropriate measures for the targeted use of the land plot (hereinafter referred to as the Order).

Having disagreed with the inspection report and the Order, the Partnership appealed to the court with demands to cancel: - the act on the results of the inspection (requirement No. 1); - the order (requirement No. 2).

Judicial acts:

1st instance: the claim is satisfied. Resolved:

to cancel the act on the results of the audit of the Partnership dated August 21, 2023;

to cancel the order on the elimination of violations of the requirements of land legislation dated September 22, 2023, issued in relation to the Partnership;

to collect from the Department in favor of the Partnership the court costs of paying the state fee in the amount of 34,500 tenge.

Appeal:   The decision of the court of first instance was overturned.

Resolved:

The court's decision regarding the cancellation of the act on the results of the audit of the Partnership dated August 21, 2023, to cancel, and to return the claim in this part.;

the court's decision regarding the cancellation of the order to eliminate violations of the requirements of land legislation dated September 22, 2023 in relation to the Partnership should be canceled;

to make a new decision in this part to dismiss the claim of the Partnership.

Cassation: the decision of the appeal in this case has been changed.

The decision regarding the challenge of the order to eliminate violations of the requirements of land legislation dated September 22, 2023 in respect of K LLP was canceled, and the decision of the court of first instance was upheld in this part.

The rest of the judicial acts remained in force.

Court costs in the amount of KZT 1,086,934 were recovered from the RSU "Department of Land Resources Management of the Committee on Land Resources Management of the Ministry of Agriculture of the Republic of Kazakhstan" in favor of "K" LLP.

Conclusions: The court of first instance, satisfying the claims, motivated its decision by the absence of guilt of the Partnership.

Having disagreed with such conclusions, the court of appeal, overturning the decision of the court of first instance and returning the claim upon request

No. 1, indicated that an onerous administrative act is a mandatory Order. The act on the results of the audit is not subject to consideration in administrative proceedings in accordance with subparagraph 11) of the second part of Article 138 of the CPC.

This conclusion is correct, since the verification act does not directly implement, does not deny implementation, does not limit or terminate rights, does not impose certain obligations on the plaintiff.

Accordingly, the inspection report is not an onerous administrative act, subject to appeal in administrative proceedings.

The arguments regarding the inspection report are given by the plaintiff when appealing the Order. In this case, the courts assessed the validity of the verification act as evidence in accordance with the procedure established by the procedural legislation.

Therefore, the return of the claim in this part is justified.

At request No. 2, the court of appeal, making a new decision to dismiss the claim, proceeded from the fact that at an on-site court hearing of the court of appeal and by comparing the documents submitted by the parties according to geographical coordinates, it was established that the actual imputed violation of the plaintiff took place in another territory - outside the boundaries of state acts and mining allotment, that is, on land that was not covered by the assessment of the above-mentioned judicial act that entered into force. Therefore, the application of Article 76 of the CPC by the court of first instance is incorrect.

At the same time, such conclusions of the court of appeal do not correspond to the circumstances of the case, and they also incorrectly applied the norms of law.

The administrative act must be clear to understand, ensure uniform application and contain justification (part two of Article 79, subparagraph 4) of part one of Article 80 of the CPC).

The contested Order does not comply with these requirements of the APPC.

Violation of the legislation on administrative procedures is the basis for declaring an administrative act illegal if such violation led or could have led to the adoption of an incorrect administrative act (part one of Article 84 of the CPC).

The Court of Appeal ignored the content of the inspection report and the Order, which does not contain any reasoned arguments regarding the parameters of the 2.4-hectare land plot. The statement of the court of appeal that the alleged violation of the plaintiff actually took place on another territory - outside the boundaries of state acts and mining allotment, i.e. on land that was not covered by the assessment of the judicial act that entered into force, is also not specified and has the same shortcomings as in the act of verification and Regulations.

As the court of first instance correctly pointed out, by the decision of the specialized interdistrict administrative court dated April 5, 2022 (upheld by the decision of the judicial board for administrative cases dated October 13, 2022 and the decision of the Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated July 11, 2023), according to the claim of the Partnership, it was decided to oblige the department of the city of A. for registration and to bring the points of the state act on the law into line with the land cadastre of the branch of the NAO "State Corporation "Government for Citizens".  

land use granted to the Partnership for a land plot with coordinates corresponding to the points of the mining allotment, under a contract dated May 7, 2008.

It follows from the judicial acts that during the mining operations it became clear that the state act of Partnership did not correspond to the corner points of the mining allotment under the contract.

Since 2017, the Partnership has repeatedly applied for the alignment of the state act with the points of the mining allotment, for the allotment of an additional plot adjacent to its site, according to the act of field survey, the configuration of the plaintiff's land plot on the electronic map and the coordinates of the land cadastre case are different.

The configuration of the land plot in the electronic map was changed by the Registration and Land Cadastre Department of the city of A. in violation of the Rules for Land Management work on the development of a land management project approved by Order of the Minister of National Economy of the Republic of Kazakhstan No. 379 dated May 6, 2015, the mining allotment of the plaintiff's land plot is superimposed on other land plots during actual land use.

That is, the said court decision established the guilt of the NAO "Government for Citizens State Corporation" when allocating a land plot to the Partnership not in accordance with the mining allotment.

Meanwhile, neither the defendant nor the court of first instance has established that the Partnership produced sand outside the boundaries of the configuration of the land plot previously determined by the authorized body itself.

In such circumstances, there were no grounds for revoking the decision of the court of first instance.

The order, as an onerous administrative act, had negative consequences for the plaintiff and, by virtue of the above, is not lawful. According to the fourth part of Article 84 of the CPC, an illegal burdensome administrative act is subject to mandatory cancellation.

The Judicial Board considered that the court of first instance had correctly identified and clarified the range of circumstances relevant to the case, and had given them a proper legal assessment. His conclusions are well-founded and correspond to the factual circumstances of the case.

In such circumstances, the decision of the court of appeal must be changed, canceling the refusal to satisfy the claim for the cancellation of the Order, while upholding the decision of the court of first instance to satisfy the claim, and in terms of the return of the claim to remain in force.

The Court of Appeal ignored the content of the inspection report and the Order, which does not contain any reasoned arguments regarding the parameters of the 2.4-hectare land plot. The statement of the court of appeal that the alleged violation of the plaintiff actually took place on another territory - outside the boundaries of state acts and mining allotment, i.e. on land that was not covered by the assessment of the judicial act that entered into force, is also not specified and has the same shortcomings as in the act of verification and Regulations.

As the court of first instance correctly pointed out, by the decision of the specialized interdistrict administrative court dated April 5, 2022 (upheld by the decision of the judicial board for administrative cases dated October 13, 2022 and the decision of the Judicial Board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated July 11, 2023), according to the claim of the Partnership, it was decided to oblige the department of the city of A. for registration and to bring the points of the state act on the law into line with the land cadastre of the branch of the NAO "State Corporation "Government for Citizens".  

land use granted to the Partnership for a land plot with coordinates corresponding to the points of the mining allotment, under a contract dated May 7, 2008.

It follows from the judicial acts that during the mining operations it became clear that the state act of Partnership did not correspond to the corner points of the mining allotment under the contract.

Since 2017, the Partnership has repeatedly applied for the alignment of the state act with the points of the mining allotment, for the allotment of an additional plot adjacent to its site, according to the act of field survey, the configuration of the plaintiff's land plot on the electronic map and the coordinates of the land cadastre case are different.

The configuration of the land plot in the electronic map was changed by the Registration and Land Cadastre Department of the city of A. in violation of the Rules for Land Management work on the development of a land management project approved by Order of the Minister of National Economy of the Republic of Kazakhstan No. 379 dated May 6, 2015, the mining allotment of the plaintiff's land plot is superimposed on other land plots during actual land use.

That is, the said court decision established the guilt of the NAO "Government for Citizens State Corporation" when allocating a land plot to the Partnership not in accordance with the mining allotment.

Meanwhile, neither the defendant nor the court of first instance has established that the Partnership produced sand outside the boundaries of the configuration of the land plot previously determined by the authorized body itself.

In such circumstances, there were no grounds for revoking the decision of the court of first instance.

The order, as an onerous administrative act, had negative consequences for the plaintiff and, by virtue of the above, is not lawful. According to the fourth part of Article 84 of the CPC, an illegal burdensome administrative act is subject to mandatory cancellation.

The Judicial Board considered that the court of first instance had correctly identified and clarified the range of circumstances relevant to the case, and had given them a proper legal assessment. His conclusions are well-founded and correspond to the factual circumstances of the case.

In such circumstances, the decision of the court of appeal must be changed, canceling the refusal to satisfy the claim for the cancellation of the Order, while upholding the decision of the court of first instance to satisfy the claim, and in terms of the return of the claim to remain in force.

In accordance with Article 109 of the CPC, the court awards court costs to the party in whose favor the decision was made.

If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court.

According to the calculations provided, confirmed by documents, the Partnership incurred expenses in the courts of appeal in the amount of 700,000 tenge, in the cassation instance in the amount of 386,934 tenge (travel, provision of representative services), which are subject to collection from the Department.

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