On the recognition of illegal actions for the production and issuance of a state act on the right of permanent land use

No.6001-23-00-6ap/838 dated 07/14/2023

Plaintiff: LLP "A" 120

The defendants: NAO "Government for Citizens Group of Companies", RSU "Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after M.Yesbulatov", GU "Akimat of the region district", KSU "City Land Relations Department", KSU "Regional Land Relations Department"

The subject of the dispute: on the recognition of illegal actions of the NAO "State Corporation "Government for Citizens" of the district of the region for the production and issuance of a state act on the right of permanent land use dated February 9, 1998, on a land plot measuring 8,9700 hectares with cadastral number 03-047-459-002, issued in the name of the "Higher School of the Ministry of Internal Affairs of the Republic of Kazakhstan", on the assignment of duties to NAO "State Corporation "Government for Citizens" in the city to eliminate violations of the legislation of the Republic of Kazakhstan by seizing and destroying RSU "Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after M.Yesbulatova" of the original state act on the right of permanent land use dated February 09, 1998 for a land plot measuring 8,9700 hectares, with cadastral number 03-047-459 002.

Review of the cassation complaint of the defendant of the Russian State Institution "Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after M.Esbulatov".

PLOT: By the decision of the akim of the region No. 1-423 dated August 12, 1997, the State Investigative Committee of the Republic of Kazakhstan was granted a land plot of 10.65 hectares for permanent land use to accommodate the Demalys Recreation Center and the Dostyk children's health camp.

The land plot was allocated from the land use of the institution of UL. 154/3 of the Ministry of Internal Affairs of the Republic of Kazakhstan. By the decision of the akim of the region's district No. 34 dated January 14, 1998, the Dostyk children's health camp was renamed the Higher School training center of the Ministry of Internal Affairs of the Republic of Kazakhstan, and the land area was reduced to 8.97 hectares.

By the decree of the Akimat of the district No. 12-2461 dated December 27, 2004, a plot of land with an area of 0.5360 hectares (Ph.D. 20-313-051 118) was granted on the right of private ownership from the lands of the rural district, from the northern part of the village, for the maintenance of a pumping and chlorination station.

Based on the Decree of the President of the Republic of Kazakhstan No. 798 dated April 16, 2014 "On changing the boundaries of the city", the disputed land plot entered the administrative-territorial boundaries of the city.

By the purchase and sale agreement dated August 9, 2018, H.A. the specified land plot was alienated by H.E. Then, on the basis of the purchase and sale agreement dated September 18, 2019, the specified land plot was alienated by O LLP, which transferred the land plot to the plaintiff on the basis of the purchase and sale agreement dated February 16, 2021.

It was also established that earlier, the Russian State University "Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after M. Esbulatov" initiated an administrative 121 lawsuit against the akimat of the region's district to challenge the decisions on granting Kh.A. and LLP "O" the right of private ownership of land.

By the decision of the SMAS of the region dated December 7, 2021, the administrative claim was satisfied:

- the decree of the akim of the district of the region dated December 27, 2004 No. 12-2461 on granting the right of private ownership to H.A. on a land plot with an area of 0.5360 hectares for the maintenance of a pumping and chlorination plant was declared illegal.;

-the decree of the akim of the district of the region dated November 18, 2005 No. 11-1991 on granting the right of private ownership to LLP "O" to a land plot with an area of 0.336 hectares for the installation of an electric transformer was declared illegal;

- the resolution of the akim of the district of the region dated February 20, 2006 No. 2-219 on amendments to the resolution dated November 18, 2005 No. 11-1991 was declared illegal.

By the decision of the judicial board for administrative cases of the regional court dated April 21, 2022, the decision of the court of first instance remained unchanged.

By the decision of the judicial board for Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated January 24, 2023, the decision of the SMAS of the region dated December 7, 2022 and the decision of the judicial board for administrative cases of the regional court dated April 21, 2022 were canceled with the referral of the administrative case for a new hearing to the court of appeal. The local decision of the cassation instance established that the conclusions of the regional courts made during the consideration of the administrative case on the claim of the Russian State Institution "Academy of the Ministry of Internal Affairs of the Republic of Kazakhstan named after Makan Karasaysky Esbulatov" to the akimat of the regional district are premature and unfounded.

Conclusions about the validity of the reasons for missing the deadline for filing a claim are not indicated or motivated.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance was overturned with the referral of the case for a new hearing.

Cassation: the appeal ruling is upheld.

Conclusions: According to part 2 of Article 76 of the CPC, the circumstances established by a court decision or decision that entered into force in a previously considered civil case are binding on the court.

Such circumstances are not proven again in other civil cases involving the same persons.

By virtue of parts 1 and 2 of Article 119 of the CPC, a court decision in an administrative case that has entered into legal force is mandatory for all administrative authorities, officials, individuals and legal entities in relation to both the established circumstances and their legal assessment of the person against whom it was issued.

This provision does not prevent the review, cancellation or amendment of court decisions and other judicial acts in the appeal and cassation procedures. A court decision that has entered into legal force in an administrative case is mandatory for any court and body when establishing facts relevant to the case and factual data established without evidence.

The Court of first instance, considering the case on the merits, concluded that the claim was groundless, and therefore refused to satisfy it.

Disagreeing with the above-mentioned conclusion of the court of first instance, the appellate judicial board reasonably canceled it and sent the administrative case to the court of first instance for a new hearing, since it was reliably established that the court of first instance did not involve interested persons whose rights and legitimate interests are affected by the consideration of this dispute, namely, the participants were not involved. in an administrative case previously considered by the SMAS of the region, represented by: H.E., E.A., RSE "Enbek", State Institution "Department of Land Relations of the region district", JSC "A".

Also, the court did not claim land cadastre cases for land plots, the rights to which are affected by the substance of the dispute, did not investigate the issue of the actual location of land plots, the facts of the imposition of land plots and the placement of real estate or construction facilities on them, did not investigate the issue of compliance with the deadline for filing a lawsuit in court.

 

 

 

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