Violation of the principles of administrative procedures and administrative proceedings entails the cancellation of judicial acts.
No. 6001-24-00-6ap/1685 dated February 06, 2025
Plaintiff: K.K.
The defendant: akim of the rural district.
The subject of the dispute: on the recognition of the illegal and cancellation of the decision of September 25, 2023 on the refusal to change the purpose from
"commodity-sturgeon farms" for "individual housing construction"
Review of the plaintiff's cassation complaint PLOT:
On September 23, 2022, the plaintiff purchased at auction a land plot with an area of 6.8 hectares, with the intended purpose for a commercial sturgeon farm.
On October 26, 2022, between the liquidation manager of the LLP
"The Sturgeon company "K" and the plaintiff have concluded a contract for the purchase and sale of real estate.
Ownership of the land plot was registered with the plaintiff on March 2, 2023.
On September 14, 2023, the plaintiff applied to the defendant for a change in the purpose of the land plot from a "commodity-sturgeon farm" to "individual housing construction" (hereinafter -IHS).
The State Institution "Department of Land Relations, Architecture and Urban Planning (hereinafter referred to as the Department of Architecture) issued a conclusion according to which the plaintiff's land plot, according to the Master Plan, is located on the territory of residential estate development and the territory of public green spaces, sending materials for permission to the land commission.
On September 21, 2023, the land commission issued a negative opinion, due to the location of the plaintiff's land plot on the territory of green spaces.
By the decision of the akim of the rural district dated September 25, 2023, the plaintiff was denied a change of purpose based on a negative conclusion of the land commission.
Disagreeing with this decision, the plaintiff appealed to the court, arguing that the land plot was not disputed.,
It is privately owned, and according to the Master Plan, its classification as a public green space zone is not true.
Judicial acts:
1st instance: the claim was denied. By a court ruling, the claim regarding the recognition of the illegal and cancellation of the protocol decision of the land Commission of September 21, 2023, was returned.
Appeal: the decision and the ruling of the court of first instance remained unchanged.
Cassation: judicial acts have been annulled, a new decision has been made in the case. To satisfy K.K.'s administrative claim. To recognize as illegal and cancel the decision of the akim of the rural district of September 25, 2023 on the refusal to change the target designation from "commodity-sturgeon farm" to "individual housing construction". To impose on the defendant the obligation to complete the administrative procedure, taking into account the legal position of the court.
Conclusions: the local courts, rejecting the claim, motivated their conclusions by the fact that the contested act was made on the basis of a protocol decision of the land commission, adopted in accordance with current legislation. At the time of the acquisition of the land plot, the plaintiff was reliably aware of the intended purpose of the land plot, and therefore, he could refuse to purchase it.
According to article 49-1 of the Code (as amended at the time of the plaintiff's application), the change in the purpose of the land plot is carried out by local executive authorities at the location of the land plot and is a public service.
An application for changing the purpose of a land plot located within a locality is considered within up to eight working days.
The akim of a city of regional significance, settlement, village, rural district within one working day sends the received application for a change of purpose to the structural subdivision of the local executive body performing functions in the field of architecture and urban planning at the location of the land plot.
The specified structural subdivision, within three working days from the date of receipt of the application, determines the possibility of using the land plot for the stated intended purpose, draws up a scheme for using the land plot and simultaneously sends it to all interested government agencies and other organizations for approval.
The approving state bodies and other organizations shall submit relevant conclusions within three working days on the possibility (impossibility) of using the land plot for the stated intended purpose.
If a negative conclusion is received from the approving state bodies and other organizations, a reasoned refusal to change the purpose of the land plot is sent to the applicant within two working days from the date of its receipt.
A reasoned refusal to change the purpose of a land plot is issued in the form of a conclusion from the relevant structural subdivision of the local executive body responsible for functions in the field of architecture and urban planning.
If a positive conclusion is received from the approving state bodies and other organizations on the possibility of using the land plot for the stated purpose, the structural subdivision of the local executive body performing functions in the field of architecture and urban planning prepares a final conclusion on changing the purpose of the land plot and sends it to the authorized body to prepare a draft decision on changing the purpose of the land plot..
The decision of the local executive body of the city of republican significance, the capital, the city of regional significance, akim of the city of district significance, settlement, village, rural district on changing the purpose of the land plot is made within four working days from the date of receipt of the final conclusion.
Thus, the refusal to change the target is made in the form of a reasoned refusal by the Architecture Department.
The decision of the local executive body of the city of republican significance, the capital, the city of regional significance, akim of the city of district significance, settlement, village, rural district is made when the target purpose is changed.
In the case under consideration, the defendant violated the administrative procedure, which led to the issuance of an illegal administrative act. After determining the possibility of using the land plot for the stated purpose and drawing up a scheme for the use of the land plot, the Department of Architecture should have sent the plaintiff's application for approval to all interested government agencies and other organizations, which was not done by him.
If a negative conclusion was received from the approving state bodies and other organizations, a reasoned refusal to change the purpose of the land plot should have been sent to the applicant.
A proposal on the possibility of changing the purpose of a land plot to the land commission is submitted by the Department of Architecture when considering an application for changing the purpose of a land plot located outside a locality, and if a positive conclusion is received from the approving state bodies and organizations on the possibility of using the land plot for the stated purpose.
The Judicial Board also disagreed with the grounds for refusal indicated in the contested administrative act.
The plaintiff's land plot has been privately owned since 2004, and cannot be classified as public land and is located on the territory of green spaces.
Article 84 of the Code establishes that a land plot may be forcibly alienated for state needs in exceptional cases, subject to equivalent compensation for property with the consent of the owner or a non-governmental land user or by a court decision.
In the case, it was established that the draft detailed layout of the area where the plaintiff's land plot is located has not been developed.
The procedure for the seizure of a land plot for state needs has not been initiated and has not been conducted either with respect to the previous owner or with respect to the plaintiff.
It follows from the photographic documents submitted to the court that the site is located in a residential area.
In these circumstances, the judicial board concluded that the defendants violated the principles of administrative procedures, such as legality, proportionality, fairness and uniformity, when considering the plaintiff's application.
The contested administrative act does not comply with the principles of administrative procedures and administrative proceedings, cannot entail negative legal consequences for the plaintiff and is subject to cancellation.
Considering that the case does not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the decision of the court of first instance and the decision of the court of appeal and make a new decision to satisfy the claim.
Pursuant to the decision of the judicial board, the defendants should complete the administrative procedure by reviewing the plaintiff's application in compliance with the requirements of current land legislation and the legal position of the court.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
