Recognition of illegal actions by the Department of Architecture, Urban Planning and Land Relations
No. 6001-23-00-6ap/255 dated 05/18/2023
Plaintiff: M.Z.
The defendants: Akimat of the city, State Institution "Department of Architecture, Urban Planning and Land Relations", NAO "State Corporation "Government for Citizens", J.F.
The subject of the dispute: the recognition of illegal actions
Review of the cassation appeal of the person concerned Zh.A.
PLOT:
By the decision of the head of the administration of the Dzerzhinsky district of the city dated October 16, 1992, No. 343 "On the allocation of land plots in the residential district", the plaintiff allocated a land plot.
By the decree of the Akimat of the city dated 05.07.2005, a land plot with an area of 0.0800 hectares (hereinafter referred to as the disputed land plot) was granted to Zh.F. for private ownership with the intended purpose of individual housing construction.
The plaintiff has erected a residential building on the specified land plot, fenced it off with a fence and bears the burden of maintaining the property.
The disputed land plot of M.Z. overlaps with the land plot of 0.08 hectares allocated to J.F. on the basis of the resolution of the Akimat of the city (hereinafter - Akimat) dated 05.07.2005.
Judicial acts:
1st instance: the claim is partially satisfied. The actions of the Akimat of the city on the allocation of a land plot with an area of 0.0800hectares for residential housing have been recognized as illegal.
The resolution of the Akimat of the city dated 05.07.2005 regarding the provision of private property to Zh.F. of this land plot for residential housing was declared illegal and canceled.
The claim against the State Institution "Department of Architecture, Urban Planning and Land Relations of the city" was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
The local courts, resolving the dispute and partially satisfying the claim, proceeded from the following:
the disputed land plot, according to the act of survey and the basis of the state land cadastre, overlaps with the land plot.F.;
Prior to the adoption of the contested resolution on the review and decision-making on the application of J.F., the Akimat did not ensure compliance with the mandatory procedure in the form of a positive decision of the land commissions and registration;
the application of Zh.F. was registered by the Akimat on 04/28/2005 without its transfer to the consideration of the city land commission, including the preliminary selection of a site, conducting a field survey, that is, a decree on granting ownership of a disputed land plot was adopted without following the described procedures;
according to the land cadastre case, in the application of J.F. for the development of the land management project, the date "August 8, 2005" is indicated and the same date, without the actual survey of the allocated plot, an identification document was issued - an act for the right of private ownership of the disputed land plot;
J.F. did not take effective measures to own and use the disputed land.
Subparagraph 8) of the first part of Article 4 of the CPC defines that an administrative procedure is the activity of an administrative body, an official, to review an administrative case, make and execute a decision on it, carried out on the basis of an appeal or a government initiative.
Paragraph 1 of Article 43 of the Land Code of the Republic of Kazakhstan (hereinafter
- The Land Code) provides that the granting of the right to a land plot from state-owned lands is carried out in the following order:
acceptance for consideration of an application for granting the relevant right to a land plot;
determination of the possibility of using the requested land plot for the declared intended purpose in accordance with the territorial zoning;
preliminary selection of the land plot;
preparation of the conclusion by the land Commission;
development and approval of the land management project;
making a decision by the local executive body on granting the right to a land plot.
This means that the granting of the right to a land plot from state-owned lands is carried out in a strictly sequential manner stipulated by the Land Code.
Meanwhile, the local executive body, that is, the Akimat, in providing the land plot to Zh.F., violated the requirements of the procedures provided for in Chapter 5 of the Land Code.
By virtue of article 84 of the CPC, an administrative act may be recognized as valid both from the moment such an act is adopted and from the moment it is recognized as illegal. An illegal burdensome administrative act is subject to mandatory cancellation.
Taken together, the judicial board agreed with the conclusions of the local courts on the partial satisfaction of the claim, since the actions of the Senate in adopting the contested resolution violated the requirements of the Land Code and the legally protected interests of the plaintiff who owns the disputed land.
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