On the recognition of illegal and cancellation of the scheme of land plots and the obligation to adopt a favorable act
No. 6001-24-00-6ap/1117 dated February 27, 2025
Plaintiff: K.N.
Defendant: NAO "Government for Citizens State Corporation"
The subject of the dispute: on the recognition of illegal and cancellation of the scheme of land plots of the AIS base of the GZK garden society "S" and actions: on the preparation of the scheme, on the inventory of the company's lands, the inclusion of the land plot within the boundaries of the garden society, on the assignment of the obligation to adopt a favorable act
Review of the plaintiff's cassation complaint PLOT:
By the decree of the Akimat dated June 9, 2022, the plaintiff was granted the right of temporary paid short-term land use for a period of 4 years and 11 months for an indivisible plot of land with a total area of 0.2500 hectares, located at the address: rural district, village Z., Yu Street, for personal subsidiary farming.
On June 21, 2022, a land lease agreement was signed. On June 28, 2022, the land deed was received.
Subsequently, the State Institution "Department of Architecture and Urban Planning of the Akimat" (hereinafter – the State Institution) was issued an architectural and planning assignment for the construction of a barn on a land plot.
However, in September 2022, the GU sent a notice to the plaintiff about the termination of the lease agreement for the land plot, due to the fact that the land plot was mistakenly provided to the plaintiff.
Subsequently, the State Institution "Department of Land Relations of the Akimat" appealed to the district court with a claim for termination of the land lease agreement. During the trial, the court requested documents proving that the plaintiff's land plot is located within the boundaries of the garden society "C". The plaintiff's side submitted documents dated 1996 (akim's orders), which the court did not accept and ordered the defendants to provide other evidence. After that, the State Institution "Department of Land Relations of the Akimat" withdrew the claim.
Subsequently, the State Administration applied to the NAO for the establishment of the boundaries of the garden society "S".
The NAO has produced a scheme according to which the plaintiff's land plot is located within the boundaries of the garden society "C".
Disagreeing, the plaintiff filed a lawsuit with the court to declare illegal and cancel the scheme of land plots of the AIS GZK base of the garden society "C" and actions to produce a scheme, inventory the company's lands, include the land plot within the boundaries of the garden society, and impose the obligation to adopt a favorable act.
Judicial acts:
1st instance: by the SMAS ruling, the claim was returned, the case is not subject to consideration in administrative proceedings.
Appeal: the ruling of the court of first instance is left unchanged.
Cassation: judicial acts are cancelled. The administrative case has been sent for a new hearing on the merits to the court of first instance.
Conclusions: everyone's right to judicial protection of their rights and freedoms is a constitutional guarantee enshrined in article 13 of the Constitution of the Republic of Kazakhstan.
A similar norm-principle is contained in the first part of Article 9 of the CPC, according to which everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed rights, freedoms or legitimate interests.
In accordance with paragraph 8-1) of Article 12 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the CC), a land management project is a scheme (plan) of a land plot, information on the area of the land plot, its boundaries and location, information on related owners and land users of land plots and on encumbrances and easements on land plots.
The composition and content of the land management project are established on the basis of regulatory legal acts adopted in accordance with this Code.
According to sub-paragraphs 1, 3 of paragraph 3 of Article 149 of the CC, land management includes and ensures the development of republican, regional and regional schemes (projects) of land management, land zoning, use, improvement and protection of land resources based on a landscape-ecological approach; definition and establishment of boundaries (lines) of settlements on the ground, drafting of their land-household arrangements.
In accordance with paragraph 3 of Article 151 of the CC, third parties, whose rights and legitimate interests may be affected during land management, have the right to appeal against illegal actions affecting their interests in the process of land management, in accordance with the legislation of the Republic of Kazakhstan.
It follows from the content of the claim that during the manufacture of the NAO scheme, the plaintiff's land plot was included in the boundaries of the garden society "P."
Thus, the plaintiff's interests are affected by the defendant's actions.
In addition to the requirement to declare the scheme of land plots illegal and cancel it, the plaintiff appealed to the court with demands to challenge the actions to produce the scheme, to inventory the company's lands, to include the land plot within the boundaries of the garden society, and to impose the obligation to adopt a favorable act.
In view of the above, the judicial board considered erroneous the conclusions of the local courts that there were no public relations in the case in question, since the plaintiff had filed several claims, among which the defendant's administrative actions were being appealed.
Thus, the judicial board concluded that the local courts had not taken sufficient measures to comprehensively, fully and objectively clarify the circumstances relevant to the case, and had incorrectly applied the rules of procedural law.
Upon a new hearing, the court should eliminate the above-mentioned shortcomings, carefully examine the evidence and arguments presented by the parties, and resolve the dispute in accordance with the applicable substantive and procedural law.
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