Challenging the decision of the akim on the provision of a land plot for the design and construction of a multi-storey residential building with accommodation on the ground floor of socio-cultural and commercial facilities, and invalidate land purchase and sale agreements

           The investigation of the evidence improperly available in the case, the improper legal assessment by the court, and the making of decisions based solely on the presumption of good faith by the participants in civil law relations are grounds for the annulment of judicial acts. The prosecutor of the Al-Farabi district of Shymkent appealed to the court with the above-mentioned claim, in which he challenged the resolution of the Akimat of Shymkent dated May 21, 2007 No. 953 on the provision of Company H LLP with a land plot of 15.0 hectares located in the city of Shymkent in the Nursat microdistrict (hereinafter – land plot), for the design and construction of a multi-storey residential building with social, cultural and commercial facilities on the ground floor, and a land purchase and sale agreement dated July 10, 2007, concluded between the Department of Land Relations of Shymkent and Company H LLP. Also, he asked the court to invalidate the land purchase and sale agreements.: 1) dated August 09, 2007, concluded between "Company"H" LLP and "A" LLP; 2) dated November 21, 2011, concluded between "A" LLP and individual entrepreneur Sh.; 3) dated January 31, 2012, concluded between Sh. and individual entrepreneur A.; 4) dated March 11, 2012, concluded between A. and individual entrepreneur B. The prosecutor motivated his demands by the illegality of granting private ownership to Company H LLP of a land plot, without the application of the LLP for the provision of a land plot and holding an appropriate auction. The prosecutor also pointed out that the disputed transactions were imaginary, committed with the aim of overestimating the amount of compensation for the seizure of land for state needs.

On October 31, 2013, the Specialized Interdistrict Economic Court of the South Kazakhstan region dismissed the claim, the decision of which was left unchanged by the courts of appeal and cassation instances. By a decision of the supervisory judicial board for civil and administrative cases, judicial acts of local courts were annulled and the case was sent for a new hearing to the court of appeal in a different composition. Upon reconsideration, the lawsuit was also dismissed by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the South Kazakhstan Regional Court dated August 8, 2014. By the decision of the Cassation Judicial Board of the South Kazakhstan Regional Court dated September 25, 2014, the decision of the court of appeal remained unchanged. The Supervisory Judicial Board of the Supreme Court of the Republic of Kazakhstan overturned the decision of the Appellate Judicial Board dated August 8, 2014 and the decision of the Cassation Judicial Board dated September 25, 2014 and issued a new decision to satisfy the claim of the prosecutor of the Al-Farabi district of the Bulletin of the Supreme Court of the Republic of Kazakhstan No. 6/2015 5 Shymkent on the following grounds. It follows from the case file that by decree of the Akimat of Shymkent dated May 21, 2007 No. 953, Company H LLP was granted a land plot with an area of 15.0 hectares, located in Shymkent, Nursat microdistrict, b/n, for the design and construction of a multi-storey residential building with accommodation on the ground floor of socio-cultural and shopping centers. objects. On July 10, 2007, a land purchase and sale agreement was signed between the State Institution "Department of Land Relations of the city of Shymkent" and "Company "H" LLP, the contract price is 27,150,000 tenge. Payment for the buyer was made by: LLP "A" - 7,150,000 tenge and LLP "T" - 20,000,000 tenge. Then the Partnership received an act on the right of private ownership of the land plot and on July 25, 2007, it was registered with the Department of Justice of the South Kazakhstan region.

Challenging the decision of the akim on the provision of a land plot for the design and construction of a multi-storey residential building with accommodation on the ground floor of socio-cultural and commercial facilities, and invalidate land purchase and sale agreements

Subsequently, the land plot, before being seized for state needs, was the subject of repeated transactions registered in accordance with the procedure established by law: - On August 09, 2007, Company H LLP sold LLP A for 27,150,000 tenge under a purchase agreement; - on November 21, 2011, LLP A sold Sh. for 30 000 000 tenge; - January 31, 2012 Sh. sold A. for 220,000,000 tenge; - on March 11, 2012, A. sold B. for 220,000,000 tenge. On December 20, 2011, the Akimat of Shymkent issued Resolution No. 1452 on the seizure of a land plot for state needs.  Subsequently, a corresponding claim was filed against B. By the decision of the specialized interdistrict economic court of the South Kazakhstan region dated June 07, 2012, which was left unchanged by the decision of the Appellate judicial Board for Civil and administrative cases of the South Kazakhstan Regional Court dated August 01, 2012, the claim of the akimat was satisfied and the land plot was seized for state needs with the determination of the amount of compensation in in the amount of 30,000,000 tenge. By the decision of the Cassation Judicial Board of the South Kazakhstan Regional Court dated September 12, 2012, the above judicial acts were amended, the amount of compensation was increased to 181 730 000 tenge. This resolution of the State Institution "Department of Housing and Communal Services, Passenger Transport and Highways of Shymkent" has been fully implemented. The mentioned amount was transferred to the bank account of B., who transferred it to the account of LLP "B" free of charge in the form of financial assistance. Pointing to the illegality of the provision of the land plot to Company H LLP and the imaginary nature of the transactions made on its alienation, the prosecutor filed a lawsuit with the court. The Court of Appeal concluded that the prosecutor's demands were unlawful and dismissed the claim. At the same time, he proceeded from the fact that the disputed land plot of Company H LLP was legally provided, based on his application dated March 30, 2007, the positive conclusion of the land commission and the land management project.

According to the contested resolution of the Akimat, a land purchase and sale agreement was lawfully concluded between the Department of Land Relations of the City of Shymkent and Company H LLP, which was fully executed by the parties. Subsequent contracts for the purchase and sale of this land plot, notarized and registered by the Bulletin of the Supreme Court of the Republic of Kazakhstan No. 6/2015 6 in accordance with the procedure established by law, are also legal. In the court's opinion, there is no evidence confirming the alleged transactions, and the plaintiff's claim to this effect is based only on the assumption of the defendants' affiliation. The Court of cassation agreed with the conclusions of the court of appeal. Meanwhile, the local courts have not taken into account the following. According to article 43 of the Land Code, as amended by the Laws of the Republic of Kazakhstan dated July 6, 2007, the right to a land plot from state-owned lands was granted in a sequence determined by the legislator. By virtue of subparagraph 1) of paragraph 1 of Article 43 of the Land Code, it was required to initiate an application for granting the relevant right to a land plot. Paragraph 3 of Article 43 of the Land Code established that individuals and legal entities interested in granting them ownership and (or) land use rights to land plots submit an application to the local executive body of the region (city of republican significance, capital), district (city of regional significance), akim of the city of district significance, village, village (village), village (rural) district at the location of the land plot. Paragraph 8 of this article also stipulated that land plots and the right to lease land plots owned by the State may be objects of sale at auction. The list of land plots or lease rights to land plots offered for sale at auction is determined by the local executive bodies of regions (cities of republican significance, the capital), districts (cities of regional significance) within their competence to provide land plots and is approved by the relevant decision of local representative bodies. Similar provisions were contained in paragraph 1 of article 48 of the Land Code (as amended before July 6, 2007). As can be seen from the case, Company H LLP applied to the akim of Shymkent for the provision of 50 hectares of land on March 30, 2007.

 

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