Claim for compulsory seizure of a land plot from the owner
The plaintiff applied to the court with a statement of claim from the state institution" Department for control over the use and protection of Land of Atyrau region "(hereinafter referred to as the state institution) to the defendant" Aktobe combine of ore – free materials " LLP for the forced seizure from the owner of the land plot not used for its intended purpose. By the decision of the Specialized Interdistrict Economic Court of Atyrau region dated March 17, 2020, the claim of the state institution "Department for control over the use and protection of Land of Atyrau region" was dismissed, and by the decision of the judicial board for civil cases of Atyrau Regional Court dated June 11, 2020, the decision of the court of First Instance was left unchanged. In the protest, the courts indicated a violation of the norms of material and procedural law during the consideration of the case, canceled the judicial acts adopted in the case and asked to satisfy the statement of claim. The judicial board heard the opinions of the plaintiff's representatives N., A. in support of the protest, the opinion of the defendant's representative U. against the protest, the conclusion of the prosecutor in support of the protest, who asked to cancel the judicial acts and make a new decision, discussed the motives of the protest, studied the case documents and came to the following conclusion. According to the case documents, on the basis of the decision of the Akim of Balykshi rural district of Atyrau dated January 31, 2003 No. 11, the Association of legal entities "Council of fishing production Cooperatives of Atyrau region" (hereinafter referred to as the Association) transferred a land plot with a total area of 0.88 hectares in the village of Akzhaik to private ownership for the construction and operation of a warehouse (Cadastral number No. 04-066-046-357). On April 14, 2003, an agreement for the purchase and sale of a land plot was concluded between the association and trading house "n" LLP (currently" Aktobe ore-free materials combine "LLP). By the decision of the Akim of Balykshi rural district of Atyrau dated September 15, 2014, the area of the land plot was specified as 0.6911 hectares. The state institution" Department for control over the use and protection of land of Atyrau region "conducted an extraordinary audit on the topic of the use of the above-mentioned land plot for its intended purpose, as a result of which on November 20, 2018, the representative of" Aktobe combine of ore-free materials "LLP submitted to U. Instruction No. 71 on the need for the use of land for its intended purpose, which is registered with the state corporation" government for citizens".
State institution" Department for control over the use and protection of land of Atyrau region " on December 5, 2019, during field research work, it was established that the instructions were not fulfilled, the identified violations were not eliminated and the land plot was not developed for its intended purpose. Therefore, the plaintiff applied to the court with a statement of claim for the compulsory acquisition of a land plot. In accordance with subparagraph 1) of Paragraph 1 of Article 65 of the Land Code of the Republic of Kazakhstan, land owners and land users are obliged to use the land in accordance with its intended purpose. Paragraph 2 of Article 92 of the Land Code states that if a land plot intended for construction is not used for its intended purpose within three years from the date of making a decision on its provision, then such a land plot is subject to compulsory seizure in accordance with the procedure provided for in Article 94 of this code. In accordance with paragraph 2 of Article 94 of this code, in the above case, a statement of claim for the compulsory seizure of a land plot is submitted after the expiration of the instruction issued to the owner of the land plot or the land user for the intended use of the land plot and for taking measures to eliminate violations of land legislation. The term for taking measures to use the land plot for its intended purpose is set at one year.
Claim for compulsory seizure of a land plot from the owner
The defendant received the plaintiff's instructions on November 20, 2018 and commented that he undertakes to use the land plot in accordance with its intended purpose. In accordance with paragraph 10 of the normative resolution of the Supreme Court No. 6 of July 16, 2007" on some issues of the application of land legislation by the courts", it is advisable for the courts to determine exactly what violations were committed by the owner or land user, when and by whom they were identified, whether they are the basis for the In the course of consideration of cases of this category, the courts should check whether the first and subsequent owners did not carry out land, construction and installation work, whether they received permission from the authorized bodies to carry out construction work, draft sketches, and check the reasons for untimely development of land plots. In accordance with the first part of Article 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), each party must prove the circumstances to which it refers as the basis for its claims and objections. However, the defendant did not submit to the court valid and clear evidence in relation to the case confirming the timely development of the land plot. The representative of the defendant indicated that in 2013-2015, the consideration of the case in court against this land plot hindered land development, as a result of which the amount of land decreased, in 2016-2017 he had financial difficulties due to the crisis in the world, he plans to build this year. Taking into account the fact that the local courts, when making a decision on the forced seizure of a land plot that is not used for its intended purpose, did not provide reliable evidence that the defendant could not develop this land plot in the near future, the defendant came to the conclusion that he was ready to develop the land plot and relied on the principles of reasonableness and Justice.
The judicial board considers that these conclusions of local courts are not based on the law and circumstances relevant to the case. In accordance with the third part of Article 65 of the APC, the circumstances of the case, which by law must be confirmed by certain evidence, cannot be confirmed by any other evidence. In accordance with the first part of Article 68 of the civil code, each evidence must be evaluated taking into account its relevance, validity, and reliability, and the entire collected set of evidence must be evaluated in terms of sufficiency for resolving a civil case. Therefore, the judicial board agrees with the argument that the defendant in the protest did not take any specific measures to use the land for its intended purpose. The representative of the defendant presented to the board a contract for the construction of a warehouse project concluded on August 5, 2020 with Global Construction Project LLC, but the contract stated that the project execution period is 12 months. Therefore, this action of the defendant clearly proves that the land plot is still not used for its intended purpose. Therefore, judicial acts are subject to cancellation due to compliance with the sequence in the application of legal norms. Based on the above, the Judicial Board of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan canceled the judicial acts of local courts, made a new decision on the case, and the plaintiff satisfied the claim of the state institution "Department for control over the use and protection of land in Atyrau region". A land plot with an area of 0.6911 hectares (Cadastral number No. 4-066-046-357), located in Akzhaik village of Balykshi rural district of Atyrau, was forcibly withdrawn from Aktobe ore-free materials combine LLP, which was not used for its intended purpose. The state duty of 695 (six hundred and ninety-five) tenge was collected from Aktobe ore-free materials combine LLP at the state revenue. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied.
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