On declaring illegal and canceling the conclusion of the land commission, the order approving the land management project, and the akim's decree
No.6001-23-00-6ap/295 dated 08/29/2023
The plaintiffs in two lawsuits: T.K., S.S.
The defendant: akim of the city of A. region, State Institution "Department of Land Relations of the city"
The subject of the dispute in two lawsuits:
on declaring illegal and canceling the conclusion of the land commission, the order approving the land management project, and the akim's decree;
on the recognition of illegal and cancellation of the conclusion of the Land Commission No. 68 dated June 28, 2021 on granting temporary land use rights for a period of 4 years to a land plot
Review of the plaintiff's cassation appeal.
PLOT: gratuitous by the Protocol Decision of the Land Commission No. 68 dated June 28, 2021, because the right of temporary gratuitous land use was granted for a period of 4 years to a land plot of 71.2 hectares at the address: city of A., rural district, for seasonal use for haymaking purposes. On October 29, 2021, the same commission issued an opinion granting S.S. the right of temporary gratuitous land use for a period of 4 years on a land plot of 50.0 hectares located at the address: city of A., district, for seasonal use for haymaking purposes.
The land management project was approved by Department Order No. 891 dated November 25, 2021. By the decree of the Akimat of the city No.76/2 dated February 2, 2022, S.S. was granted the right of temporary gratuitous land use for a period of 4 years for a land plot with a total area of 49.0 hectares, including 48.8 hectares of hay fields, 0.2 hectares of roads from lands of specially protected natural territories located in the territory of the Evgenievsky rural district of the city of A. region, for seasonal use in for haymaking purposes. On March 5, 2022, the Department and S.S. signed an agreement on temporary gratuitous land use No. 68. At the same time, the land plot provided for use by S.S. is part of the land plot provided by K. Judicial acts: 1st instance: the claim of S.K. is satisfied, the claim of S.S. is denied.
Appeal: the court's decision is overturned, the claim of T.K. is denied, the claim of S.S. is partially satisfied.
It was decided: to declare illegal and cancel the conclusion of the land commission No. 68 dated June 28, 2021 on granting the right of temporary gratuitous land use for a period of 4 years to a land plot with a total area of 50.0 hectares located at the address: rural district of the city of A. region.
Cassation: the decision of the appeal is overturned, the court's decision is upheld.
Conclusions: The Court of first instance, satisfying the claim of T.K., indicated that her right to land use arose earlier. At the time of consideration by the land commission of S.S.'s application, there was an undone conclusion of the same commission on the possibility of granting T.K. the right of temporary gratuitous land use for a period of 4 years.
Canceling the court's decision and dismissing the claim, the court of appeal reasoned its conclusions by saying that the land commission violated the requirements for posting the protocol decision of June 28, 2021 on the authorized body's Internet resource, there is no audio-video recording of the meeting of the land commission, the decision allocated a land plot of 71.2 hectares, whereas this area They comprise land plots of 50 and 21.2 hectares, which are not a single land mass.
The board does not agree with the above conclusions of the court of appeal because of the following. According to article 43 of the Land Code of the Republic of Kazakhstan, before issuing a conclusion, the land commission accepts for consideration an application (application) for granting the appropriate right to a land plot, determines the possibility of using the requested land plot for the stated purpose in accordance with the territorial zoning.
Taking into account the above-mentioned provisions of the law, the court of first instance came to the correct conclusion that the lack of posting on the Internet of the protocol decision, parts of the video recording of the commission meeting are formal violations of the procedure and do not entail the illegality of the conclusion itself.
Documenting the area of two land plots as one, with a combined area of 71.2 hectares, is the exclusive discretion of the administrative authority, does not contradict the law and does not violate anyone's rights and legitimate interests.
The courts found that the disputed land plot was provided to S.S. despite the existence of a positive opinion of the land commission in respect of the same plot in favor of T.K., the deadline for the sale of which has not expired.
Since T.K.'s rights to the disputed land plot are primary, the conclusions of the court of first instance on the satisfaction of her claim and the rejection of S.S.'s claim are legitimate and justified.
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