On the recognition of illegal inaction, actions to refuse to issue an identification document for a land plot
No. 6001-23-00-6ap/1132 dated 08/28/2023
Plaintiff: K.M.
Defendants: State Institution "Akimat of the city", State Institution "Department of Architecture, Urban Planning and Land Relations of the city", NAO "State Corporation "Government for Citizens"
Interested parties: LLP "K", R.S., A.A., S.T., S.A., A.A., and others
The subject of the dispute: on the recognition of illegal inaction, actions to refuse to issue an identification document for a land plot, on the obligation to issue an act on a land plot for the right of private ownership, cancellation of the act on the right of private ownership cadastral number 19-309-205-5275.
Review of the plaintiff's cassation appeal.
PLOT: By the minutes of the general meeting of PC "A" dated July 24, 2009, K.M. was provided with a land plot from the lands of this enterprise with an area of 0.08 hectares for the construction of a residential building.
The decision of the district court of the city of March 28, 2013, which entered into force, recognized K.M.'s ownership right to housing construction located at the address: city, Akniet microdistrict, Sarkyram Street, No. 13. The plaintiff's ownership was registered with the city's Justice Department on May 15, 2013.
By the decree of the Akimat of the city dated August 14, 2014 No. 1647, the plaintiff was provided with a land plot for the maintenance of a house at the above address, on the right of private ownership, with an area of 0.0745 hectares. The corporation refused K.M. to produce and issue an identification document for the land plot at the specified address, due to the overlap of the cadastral number 19-309-205 5275 with the land plot, in connection with which the plaintiff requested that the defendant's actions and omissions in refusing to issue it for the period since 2011 be declared illegal.
Judicial acts:
1st instance: the claim was partially satisfied: -the inaction and action of the branch of the NAO "State Corporation "Government for Citizens" in the city on the refusal to issue a certificate of registration for a land plot located at 13 Sarkyrama Street, Akniet microdistrict, were recognized as illegal.
The rest of the claim was denied.
Appeal: the decision of the court of first instance was changed, in terms of satisfaction of the claim was canceled with the adoption of a new decision on the refusal to satisfy the claim in the specified part. The administrative claim regarding the annulment of the act on the right of private property cadastral number No. 19 309-205-5275 has been returned.
Cassation: the appeal ruling is upheld.
Conclusions: According to paragraph 10 of Article 43 of the Land Code, for the use and disposal of a land plot, it is necessary to establish its boundaries in kind (on the ground) and draw up title documents.
If there are equivalent rights to the same land plot or part of the plot, the courts should proceed from the priority of previously acquired rights to immovable property, established by the date of the right in accordance with civil law.
The court of first instance, partially satisfying the claim, declared illegal the defendant's action and inaction in refusing to issue a certificate for the requested land plot, since, according to the court's conclusion, the defendant had left without execution the plaintiff's repeated appeals on the issue of making and issuing an act on the disputed land plot. Consequently, according to the court's conclusion, the defendant violated the procedure for conducting administrative procedures, which subsequently led to a dispute over the right to the land plot used by the plaintiff.
At the same time, the court refused to satisfy the claim regarding the imposition of the obligation on the defendant to issue an act on the land plot for the right of private ownership, since there is a dispute about the right with interested parties to the land plot, which is subject to consideration in civil proceedings.
In this connection, the court dismissed the above claim. The appellate judicial board reasonably changed the decision of the court of first instance, overturning it in the satisfied part of the claim, and made a new decision to dismiss it, since it was reliably established that the defendant, in accordance with the requirements of article 66 of the CPC, had appointed an administrative procedure to hear the plaintiff on the issue of making and issuing an act on the requested land plot, which K.M. was notified about..
However, she did not attend the hearing, and she did not announce the postponement of the hearing procedure. At the same time, the defendant provided, within the time limits established by law, a reasoned response on the refusal to produce and issue an act on the land plot in connection with the overlap of the requested land plot with the land plot belonging to another person (cadastral number No. 19-309-205-5275).
In addition, similar responses to the plaintiff's written requests dated October 7 and November 16, 2021, were sent by the defendant with the attachment of the situational scheme of land plots.
Thus, the appellate judicial board came to a reasonable conclusion that the defendant was not inactive and did not ignore the plaintiff's appeal, carried out appropriate actions to conduct the administrative procedure by summoning and hearing the plaintiff on a disputed issue regarding the requested land, which is consistent with the requirements of Article 66 of the CPC.
In view of the above, the appellate judicial board reasonably overturned the decision of the court of first instance in this part and issued a new decision to dismiss the claim. At the same time, the appellate instance reasonably agreed with the conclusion of the court of first instance on the refusal to satisfy the claim in terms of forcing the defendant to issue an act on a land plot for private ownership, since there is a civil dispute related to the imposition of land plots, which is subject to consideration in civil proceedings.
By virtue of the provisions of subparagraph 9) of Article 4 of the CPC, an administrative action (claim) is a claim filed in court for the purpose of protecting and restoring violated or disputed rights, freedoms or legitimate interests arising from public law relations.
Part 2 of Article 102 of the CPC stipulates that the courts, in the order of administrative proceedings, have jurisdiction over disputes arising from public law relations provided for by this Code. Subparagraph 11) of the second part of Article 138 of the CPC stipulates that the court issues a ruling on the return of the claim if the case is not subject to consideration in administrative proceedings.
The appellate Judicial Board, guided by the above-mentioned norms, lawfully returned the claim regarding the annulment of the act on the right of private ownership of a land plot with cadastral number No. 19-309 205-5275, since the contested act is not an administrative act of a state body, that is, an administrative act arising from public relations between the parties.
The contested act refers to an identification document, that is, it contains the identification characteristics of the land plot necessary for the purposes of maintaining land, legal and urban planning cadastres, and is not a document confirming the occurrence of legal facts (legal structures) on the basis of which the rights to the land plot arise, change or terminate.
In this regard, the appellate instance reasonably returned the claim in the specified part as not subject to consideration in administrative proceedings.
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