Recognition of the illegal refusal to approve the land cadastre plan and the obligation to approve the land cadastre plan

No.6001-22-00-6ap/1445 (2) dated 06.06.2023

Plaintiff: K.U.

Defendant: KSU "Management of land relations of the city"

The subject of the dispute: on recognizing as illegal the refusal to approve the land cadastre plan and the preparation of a draft resolution of the akimat of the city and on the obligation to approve the land cadastre plan and prepare a draft resolution of the akimat

Review of the cassation appeal of the interested personfabula:

On September 22, 2021, K.U. issued the act of choosing the land plot No. 1 with the application of the APZ, the technical conditions for connection to the engineering networks of the printing house on the land plot.

On October 6, 2021, the plaintiff applied to the Office with an application for the approval of the WKD and the preparation of a draft resolution of the Akimat granting the right to the disputed land plot, indicating the turning points.

On October 22, 2021, the Office refused to approve the WKD and the preparation of the draft resolution, since the attached WKD was not approved by the Office. Based on a letter from the Department of Energy Efficiency and Infrastructural Development of the city, the requested land plot is needed to accommodate a transformer substation with additional capacity.

Disagreeing with this refusal, on November 4, 2021, the plaintiff appealed to the Management.

On November 15, 2021, the Department responded that it was not possible to provide a land plot, since in order to reduce emergency situations and increase the district's capacity, a transformer substation is planned to be located on the requested land plot.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are cancelled, the case is sent for a new examination.

Conclusions:

The local courts, satisfying the claim, motivated by the fact that the refusal of the Administration to approve the Housing and communal Services and prepare a draft resolution of the Akimat granting the right to the land plot is illegal, violating the rights and protected legitimate interests of the plaintiff.

The judicial board recognized these conclusions of the courts as inconsistent with the circumstances and requirements of the law established in the case.

According to paragraph 4 of part 4 of Article 427 of the CPC, the decision of the court of the first instance is subject to cancellation in any case if the court resolved the issue of the rights and obligations of persons not involved in the case.

The court of cassation found that T.S., on the basis of a purchase and sale agreement dated November 3, 2006, owned a plot of land with a total area of 0.153 hectares.

When T.S. applied to the Office to obtain a land management project, it turned out that the disputed land plot was located within the boundaries of the land plot belonging to the latter.

According to the statement of T.S., the act of choice No. 1 dated September 22, 2021, the issued license was canceled.

Despite these circumstances, K.U.'s claim was satisfied by the courts without involving T.S., whose rights and interests are directly affected by the adopted judicial acts.

Taking into account that the significant violations committed by the courts cannot be eliminated in the framework of the cassation proceedings, the contested judicial acts were annulled with the referral of the case for a new examination to the court of first instance.

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