Invalidation of the land purchase agreement, recovery of the amount of compensation paid for the seized land to the state revenue
The lack of authority of the state body to conduct assessment activities and the inconsistency of the assessment act with the requirements of Article 9 of the Law of the Republic of Kazakhstan "On Assessment Activities" were the grounds for the cancellation of the judicial act, the Prosecutor of Taldykorgan, Almaty region, filed a lawsuit with the court to invalidate the land purchase agreement dated November 25, 2013 No. 20, concluded between the State Institution "Department housing and communal services of the city of Taldykorgan" and KH "N.", on the recovery of compensation from KH "N." to the state income, The amount of 32,000,000 tenge was paid for the seized land plot with an area of 7,7488 hectares and on the cancellation of Act No. 03 of the estimated value Bulletin of the Supreme Court of the Republic of Kazakhstan No. 6/2015 8 of the land plot produced by the State Institution "Department of Land Relations of Taldykorgan".
The claim was partially satisfied by the decision of the specialized interdistrict Economic Court of the Almaty region dated May 15, 2014. The land purchase agreement was declared invalid in terms of the amount of 32,000,000 tenge paid to the owner of the KH "N" land plot and the amount of overpayment of compensation for the seized land plot, with an area of 7,7488 hectares, with cadastral number 03-268-939-120, in the amount of 12,000,000 tenge, was also declared illegal. Act No. 03 of the estimated value of the land plot, with cadastral number 03-268-939-120, with an area of 7,7488 hectares, produced by the State Institution "Department of Land Relations of the city of Taldykorgan" and with the State Institution "Department of Housing and Communal Services, passenger transport and highways of the city of Taldykorgan" a state duty in the amount of 1852 tenge was collected to the state revenue. By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated July 17, 2014, the court's decision regarding the claim for declaring illegal the act of appraising the value of the land plot and collecting the amount of overpayment from KH "N." to the state's income was canceled and it was decided to consider the case on its merits. By the ruling of the same court dated July 17, 2014, the prosecutor's statement of claim regarding the requirements for declaring illegal the act of appraising the value of the land plot and collecting the amount of overpayment in the amount of 12,000,000 tenge from KH "N." to the state income was left without consideration at the request of the prosecutor. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated July 17, 2014, the court's decision to invalidate the land purchase agreement in part of the amount of 32,000,000 tenge paid to the owner of the KH "N" land plot was changed. The land purchase agreement has been declared invalid in full, and the parties have been restored to their original position. The court's decision regarding the collection from the State Institution "Department of Housing and Communal Services, Passenger Transport and Highways of the city of Taldykorgan" to the state revenue of the state duty in the amount of 1852 tenge has been changed. Collected from the State Institution "Department of Housing and Communal Services, Passenger transport and highways of Taldykorgan", State Institution "Department of Land Relations of Taldykorgan", KH "N.", LLP "Zh" 463 tenge each, for a total amount of 1,852 tenge.
The rest of the court's decision remains unchanged. By the decision of the Cassation Judicial Board of the Almaty Regional Court dated October 22, 2014, the decision of the appellate instance regarding the recognition of the land purchase agreement as invalid in full and bringing the parties back to their original position was canceled and the decision of the court of first instance was upheld. The rest of the decision of the court of appeal remained unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the decision of the Cassation Judicial Board of the Almaty Regional Court dated October 22, 2014 regarding the amendment of the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated July 17, 2014, leaving the decision of the appellate instance in this part in force due to the following.It follows from the case file that, according to the purchase and sale agreement No. 2559 dated June 06, 2013, KH "N." acquired from D. a plot of land with an area of 7,7488 hectares, cadastral number 03-268-939-120 for 20,000,000 tenge and registered ownership. By Resolution No. 12-598 of the Taldykorgan Akimat dated June 26, 2013, it was decided to seize the land plot of the farm "N." for state needs. After carrying out the procedures established by Law and land legislation, on November 20, 2013, the Akimat issued resolution No. 25-1194 on the payment of compensation to KH "N." for a land plot alienated for state needs in the amount of 32,000,000 tenge. On November 25, 2013, a land purchase agreement was signed for this amount.
In accordance with paragraph 2 of Article 67 of the Law, the value of a land plot alienated for state needs, transferred to the owner by a civil law transaction or by a court decision, is determined in the amount of the value specified in the civil law contract or in a court decision, but not exceeding the market value. The court of first instance, having made the correct conclusion about the conclusion of the contested contract in violation of the requirements of the law, at the same time declared it invalid only in terms of determining the amount of compensation in the amount of 32,000,000 tenge, collecting from the defendant the amount of overpayment of 12,000,000 tenge. The court of appeal disagreed with the court's decision to invalidate the contract in terms of the amount of compensation and pointed out that such a conclusion was not based on the rule of law. In this regard, he declared the land purchase agreement invalid in full and applied the consequences provided for in paragraph 3 of Article 157 of the Civil Code. The court of cassation, with an indication of the unenforceability of the judicial act regarding the application of bilateral restitution, overturned the decision of the court of appeal in the part under consideration and upheld the decision of the court of first instance. Meanwhile, the court of cassation did not take into account that, upon reliable determination of the inconsistency of the content of the land purchase agreement with the requirements of the law, the court of first instance, invalidating the agreement in terms of the amount of compensation and collecting the overpayment amount from KH "N.", actually recognized the validity of the agreement with the establishment of the amount of compensation in the amount of 20 000 000 tenge. However, such a decision contradicts the requirements of civil legislation and violates the principle of freedom of contract. In addition, the instruction of the court of cassation on the legality of the conclusion of the court of first instance regarding the recovery of an overpayment in the amount of KZT 12,000,000 is inconsistent with judicial acts adopted by the court of appeal. Thus, by the rulings of the court of appeal of July 17, 2014, which entered into force in this case, the court's decision regarding the recovery of the overpayment amount from KH "N." to the state's income was canceled and this requirement was decided to be left without consideration. Taking into account the above circumstances, as well as the provisions of paragraph 3 of Article 157 of the Civil Code, the supervisory judicial board considered the conclusion of the court of appeal to bring the parties to their original position to be correct. The court of cassation had no legal grounds for changing the decision of the court of appeal.
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