Failure to develop a land plot is the basis for its withdrawal.
The State Institution "Territorial Land Inspectorate" filed a lawsuit against PZ LLP for the seizure of a land plot with an area of 2.9290 hectares. The claim is motivated by the fact that by the decree of the Akimat of the city of Kokshetau dated August 27, 2007, a land plot was granted to the Partnership for the construction of a multifunctional residential complex, but its development is not being carried out. By the decision of the specialized interdistrict economic Court of the Akmola region dated January 18, 2013, the land plot provided to the Partnership was forcibly withdrawn. The Appellate Judicial Board for Civil and Administrative Cases of the Akmola Regional Court overturned the decision of the court of first instance and issued a new decision to dismiss the claim. By the decision of the cassation judicial board of the same court, the decision of the court of appeal was left unchanged.The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the decisions of the courts of appeal and cassation instances, upheld the decision of the court of first instance on the following grounds.
It can be seen from the case file that a land plot was provided to the Partnership for housing construction in 2007. However, the Partnership has not started its development and construction of the residential complex for more than six years, the relevant contract for the development of pre-design and (or) design estimates has not been concluded, and the issue with suppliers of engineering and utility services for the facility has not been resolved. The land plot with an area of 0.6980 hectares is not exempt from metal garages, for which land plots were not provided in accordance with the procedure established by the Land Code of the Republic of Kazakhstan. The notice of the need to develop the land plot, handed over to the Partnership on February 16, 2011, has not been executed. Canceling the lawful and justified decision of the court of first instance, the court of appeal took into account the unsubstantiated arguments of the Partnership that the land plot was not provided free from the claims of third parties (owners of metal garages), that the presence of metal garages on the land precludes the possibility of developing the land plot. The Court of cassation agreed with the above arguments of the court of appeal. These arguments contradict the norms of the Land Code of the Republic of Kazakhstan. In accordance with paragraph 1 of Article 92 and paragraph 2 of Article 94 of the Land Code of the Republic of Kazakhstan, the land plot provided to the owner for housing construction is subject to compulsory withdrawal if the owner has not used the land plot for its intended purpose for two years. A claim to the court is filed if, after one year from the date of delivery of a written warning about the need to use the land for its intended purpose, the owner has not taken measures to develop the land. After the land plot was granted ownership in August 2007 for housing construction, the Partnership did not take any measures to use it for its intended purpose. No action was taken after the written warning about the development of the land plot was handed over on February 16, 2011. The courts of appeal and cassation instances did not take into account that metal garages on the land plot were placed by their owners without proper permits. According to subparagraph 32) of Article 1 of the Law of the Republic of Kazakhstan dated July 16, 2001 "On Architectural, Urban Planning and Construction activities in the Republic of Kazakhstan", demolition of structures located on a land plot is one of the stages of construction and installation work. The demolition of such structures is the responsibility of the owner of the land plot intended for housing construction. Since the courts of appeal and cassation instances incorrectly applied the relevant norms of the substantive law, the judicial acts of these judicial instances were canceled. The decision of the court of first instance was upheld.
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