If the owner or a non-governmental land user does not agree with the decision to purchase a land plot from him for state needs, or an agreement has not been reached with him on the price for the purchased land plot or other terms of purchase, the local executive body that made the decision to purchase may file a lawsuit with the court for the purchase of the land plot.
Akimat of the Yenbekshikazakh district of the Almaty region (hereinafter – Akimat) filed a lawsuit against IP "Kh." for the compulsory seizure of land for state needs, determination of the amount of compensation and termination of ownership rights. The claim was satisfied by the decision of the specialized interdistrict Economic Court of the Almaty region dated August 01, 2012. It was decided to withdraw for state needs for the construction of the highway of national significance "International Transit Corridor "Western Europe – Western China" land plots located on the lands of PK "M" of the Baltabai rural district of the Yenbekshikazakh district, owned by IP "Kh.", with an area of 1.5218 hectares, cadastral number 03-044-064-177 and an area of 0.4442 hectares, cadastral number 03-044-064-176, with the termination of ownership of IP "Kh." to the specified land plots and the determination of compensation for two land plots in the amount of 26,159,040 tenge. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated September 26, 2012, the court's decision remained unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan raises the issue of changing judicial acts, reducing the amount of monetary compensation for land plots seized from IP "Kh." from 26,159,040 tenge to 633,000 tenge. The protest is motivated by the fact that, in accordance with paragraph 2 of Article 67 of the Law "On State Property", the value of land plots alienated for state needs, transferred to IP "Kh." in civil law transactions, should have been determined in the amount of the value specified in the land purchase and sale agreements.
In the response to the protest, IP "Kh.", disagreeing with the arguments of the protest, asks to leave the judicial acts unchanged. In a statement, the representative of the akimat, I., asks to consider the case without their participation and indicates that they fully support the protest. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized interdistrict Economic Court of the Almaty region, the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court in this case, and sent the case for a new hearing to the court of appeal, stating the following. It follows from the case file that IP "Kh." privately owns the above-mentioned land plots, which were acquired on the basis of purchase and sale agreements dated May 14, 2009.
If the owner or a non-governmental land user does not agree with the decision to purchase a land plot from him for state needs, or an agreement has not been reached with him on the price for the purchased land plot or other terms of purchase, the local executive body that made the decision to purchase may file a lawsuit with the court for the purchase of the land plot.
The first land plot was purchased from N. for 432,000 tenge, the second from M. for 201,000 tenge. By a decree of the Akimat dated November 24, 2008, it was decided to seize part of the land from land users subject to the construction of the Almaty-Kokpek-Chundzha-Koktal-Khorgos highway and provide it to the Almaty Regional Department of the Committee of Highways of the Ministry of Transport and Communications of the Republic of Kazakhstan for the construction of the highway. A part of the land plots belonging to IP "Kh." was subject to seizure as part of the specified site. On November 27, 2011, IP "Kh." notifications were sent on the seizure of land plots, and compensation was offered for the total amount of 10,992,116 tenge, based on reports on the valuation of real estate conducted by LLP "N" on November 30, 2011. According to article 88 of the Land Code, if the owner or a non-governmental land user does not agree with the decision to purchase a land plot from him for state needs, or an agreement has not been reached with him on the price for the purchased land plot or other terms of purchase, the local executive body that made the decision to purchase may file a lawsuit for the purchase of the land plot. IP "Kh.", without objecting to the seizure of land for state needs, did not agree with the proposed amount of compensation.
In this regard, the akimat appealed to the court with the mentioned claim.Satisfying the claim, the court determined the amount of compensation based on expert opinion No. 4749 dated July 26, 2012, according to which the market value of the seized part of the land plot measuring 1,560 hectares (156 acres) is 137,124 US dollars, which is equivalent to 20,404,051 tenge, and measuring 0.44 hectares (44 acres) is 38,676 dollars. USD, which is equivalent to 5,754,989 tenge, the total amount is 26,159,040 tenge. However, the reasoning part of the decision does not contain an assessment of the expert's opinion, which is necessary in accordance with paragraph 12 of the regulatory decree of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision", since the expert's opinion does not have an advantage over other evidence and is not binding on the court. It should be evaluated in conjunction with other evidence. In this case, the court must indicate what the expert's conclusions are based on, whether the materials submitted for examination have been fully examined, and whether they have carried out an appropriate analysis. Similar provisions are contained in paragraph 12 of the Supreme Court's regulatory resolution No. 8 of December 25, 2006 "On certain issues of the application by Courts of legislation on the compulsory alienation of land for State needs," according to which, when examining reports and other documents related to valuation activities, courts should check them for compliance with the provisions of regulatory legal acts providing the procedure and methodology for assessing the market value of a land plot (land use rights). Documents related to evaluation activities do not have a pre-determined force and are subject to evaluation by the court along with other evidence in the case. The Court of appeal concluded that it was reasonable for the court of first instance to use the results of an expert study. However, the court of appeal did not take into account the following. It can be seen from the expert's conclusion that, in determining the value of the land plot, the expert applied the sales comparison method using the offer prices posted in the weekly newspaper "K". Meanwhile, the use of this method does not reflect the actual value of the land plot, since there is no information about the demand price. The question of the price for which the land plots were actually sold, the information about which was used in comparison with the object under study, is not reflected in the expert's conclusion. In addition, it was not taken into account that the expert's conclusion determined the value of the land plot in the amount of 1,560 hectares, whereas the question was raised about determining the value of the land plot in the amount of 1,5218 hectares. The expert also determined the value of the land plots as of the date of the study – July 2012, although it should be determined at the time the owner receives notifications about the upcoming compulsory alienation of land for state needs. At the same time, according to the supervisory judicial board, the protest arguments regarding the fact that the value of land plots during their forced alienation for state needs is determined by Chapter 6 of the Law "On State Property" are untenable.
They contradict the provisions of paragraph 1 of Article 37 of the Law "On Regulatory Legal Acts". The Law "On State Property" dated March 01, 2011 entered into force on March 10, 2011. And legal relations on the seizure of land plots arose before its entry into force (the resolution was issued by the Akimat on November 24, 2008). Thus, due to the circumstances outlined above, judicial acts are subject to cancellation with the referral of the case for a new appeal hearing. During the new examination, the court needs to clarify the position of the akimat, which indicated in the statement of claim the amount of compensation in the amount of 10,992,116 tenge, but currently, according to the prosecutor's proposal, reduce it to 633,000 tenge, if necessary, resolve the issue of re-examination, examine the expert opinion in conjunction with the evidence provided by the parties, evaluate them and resolve the case on its merits by correctly applying the rules of procedural and substantive law.
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