On challenging the resolution, forcing to change the information in the cadastral numbers
No. 6001-22-00-6ap/1483 (2) dated 05.01.2023
Plaintiff: LLP "A"
The defendant: Akim of Arshaly district (hereinafter – akim) of Akmola region, NAO "Government for Citizens Group of Companies" (NAO), LLP
"And"
The subject of the dispute: challenging the resolution, forcing to change the information in the cadastral numbers
Review of the plaintiff's cassation complaint PLOT:
The plaintiff was granted a land plot for a long-term lease for 49 years for agricultural production, located within the boundaries of the Mikhailovsky rural district of the Arshalynsky district, by a decree of the akim dated June 26, 2008, and a corresponding lease agreement was signed on June 30, 2008.
On August 18, 2010, state acts were issued for plots No. 1 with cadastral number 01-005-024-037 and No. 2 with cadastral number 01-005- 024-038 (disputed plots). However, by the akim's decree of November 10, 2011
year No. A-359 the right of land use of LLP "A" on disputed plots is terminated.
By Akim's Resolutions No. A-559 and No. A-562 dated December 14, 2015, the right of temporary paid long-term land use for disputed land plots No. 1 and No. 2 was granted on a competitive basis to LLP
"And" for agricultural production.
The plaintiff believes that the defendants violated his right to land use as a result of a tender for land plots previously provided to him and the issuance of illegal legal documents for the buyer under the tender, the re-assignment of cadastral numbers to the same land plots, in connection with which the plaintiff raised the issue of invalidating them and restoring violated rights by entering correct information. to the land registry.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision is overturned, the claim is denied.
Cassation: the decision is overturned, the claim is returned.
Conclusions:
Considering and resolving the case on the merits, the courts did not take into account the following. Firstly, I LLP, being a participant and winner of the contest for the provision of disputed land plots, is involved in the case as a defendant, whereas according to subparagraph 15) of the first part of Article 4 of the CPC
The defendant is an administrative body or an official.
Secondly, the resolutions of Akim of December 14, 2015, No. A-562 and No. A-559, contested by the plaintiff, were issued against the winner of the competition, LLP "I". The cadastral numbers of the disputed land plots have been changed based on these resolutions of the local executive body. That is, LLP "A", not being a participant in these administrative procedures, disputes the administrative acts and actions taken and committed in the interests of another person in December 2015.
The lawsuit was filed on October 13, 2021, that is, more than 5 years later.
According to the fifth part of Article 136 of the CPC, a person who has not participated in an administrative procedure, whose rights, freedoms and legitimate interests are affected by an administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of an administrative act, but no later than one year from the date of its adoption.
Based on the literal meaning of this rule, the one-year period specified in it is prohibitive and cannot be restored.
The inability to restore the missed deadline for going to court is the basis for returning the claim (part eight of Article 136 of the CPC).
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
