On granting the right of temporary land use to a land plot

No. 6001-22-00-6ap/1735 (2) dated 07/13/2023

Plaintiffs: S.A., N.S.

The defendant: Akimat of the city

The subject of the dispute: on the recognition of actions to adopt a resolution regarding the refusal to grant temporary land use rights to a land plot dated December 23, 2021 and its cancellation, recognition of actions to adopt a resolution on the sale of a land plot to Ts LLP dated March 12, 2021 and its cancellation.

Review of the plaintiff's cassation appeal

PLOT: The plaintiffs are the owners of the land plot at the address: city A, district A, mkr. K, M street, 90 on the right of common shared ownership. On October 28, 2021, the plaintiffs applied to the mayor of the city for granting the right of temporary land use to a land plot of 0.0093 hectares located on the southern side of their land plot for landscaping (hereinafter referred to as the disputed land plot).

By Resolution of the Akimat dated December 23, 2021 No. 4/407-1093 (hereinafter referred to as the contested resolution), the granting of temporary land use rights to the land plot to the plaintiffs was denied.

In support of the refusal, the defendant pointed out that in accordance with the requirements of the Rules for the Improvement of the city's territory, approved by decision No. 45 of the Maslikhat of December 12, 2007, individuals and legal entities are required to provide daily sanitary maintenance and landscaping of the adjacent territory, without registration of the relevant rights to such territory. Disagreeing with the said resolution of the Akimat, the plaintiffs appealed to the court with this claim.

Judicial acts: 1st instance: the claim is partially satisfied.

Resolved:

to recognize the actions of the Akimat on the adoption of Resolution No. 4/407-1093 dated December 23, 2021 regarding the refusal of S.A., N.S. to grant the right of temporary land use to the land plot dated December 23, 2021 as illegal;

to cancel the resolution of the Akimat No. 4/407-1093 dated December 23, 2021 regarding the refusal of S.A., N.S. to grant the right of temporary land use to a land plot located at the address: city A, district A, mkr. K, M street, 90.

The rest of the claim was denied.

Appeal: the decision remains unchanged.

Cassation: Judicial acts are cancelled.

The administrative case has been sent for a new hearing to the court of appeal with a different composition of judges.

Conclusions: The local courts, partially satisfying the claim, were motivated by the fact that the requested land plot was granted to Ts LLP in private ownership on March 12, 2021.

At the time of the contested refusal, the land plot was already privately owned, and therefore, the issues of its disposal were not within the jurisdiction of the defendant.

The courts refused to satisfy the claim regarding the appeal of the actions to provide the site to Ts LLP, arguing that there had been no violations of the law on the part of the defendant. The conclusions of the courts are premature and do not comply with the circumstances and requirements of the law established in the case.

In accordance with paragraph 1 of Article 52 of the Land Code, ownership of buildings (structures, structures) entails, in accordance with the procedure established by law, ownership of the land plot occupied by said buildings (structures, structures), except as provided for by this Code.

These rights are inseparable from each other. According to paragraph 3 of the said article, the alienation of the right of ownership or the right of permanent or temporary land use to a land plot that is occupied by buildings (structures, structures), as well as intended for their operation, without the corresponding alienation of the specified real estate, as well as the alienation of real estate without the corresponding alienation of the land plot that is occupied by the specified real estate, is not allowed.

At the court hearing of the court of cassation, the plaintiff's representative explained that the local executive body, in violation of the norms of current legislation, under the same circumstances, had an illegal preference by providing the site to Ts LLP, twice rejecting the plaintiffs. At the same time, there is a part of the plaintiff's buildings on the disputed land plot.

These circumstances have not been investigated by the courts, and they have not been given a proper legal assessment. In accordance with part 2 of Article 79 of the CPC, an administrative act must be clearly understood, ensure uniform application, and exhaustively determine the circle of persons to whom it applies.

The administrative body, under the same circumstances, by providing the site to Ts LLP, did not ensure the principle of uniform application, refusing to provide the plaintiffs with this site.

Taking into account that significant violations committed by the courts cannot be eliminated in the framework of cassation proceedings, the contested judicial acts are subject to cancellation with the referral of the case for a new hearing to the court of appeal.

 

 

 

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