Land disputes and the development of a land plot indicate the fulfillment of the instructions of the authorized body and the absence of legal grounds for the compulsory seizure of the land plot.
The municipal state institution "Office of Urban Planning Control of the city of Almaty" (hereinafter referred to as the Office) filed a lawsuit against D. for the compulsory seizure of a land plot. The claim was denied by the decision of the District Court No. 2 of the Auezovsky district of Almaty dated May 28, 2020. By the decision of the judicial Board for Civil Cases of the Almaty City Court dated October 5, 2020, the decision was overturned with a new decision on the satisfaction of the claim. It was decided to forcibly withdraw from D. a plot of land located at the address: Almaty city, Aksai-3B microdistrict, south of Tole bi Street, cadastral number 20-312-043-109, with an area of 0.063 hectares, with the intended purpose of operating and maintaining a car dealership (hereinafter referred to as the disputed land plot). The issue of court costs has been resolved. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the case file that on the basis of the purchase and sale agreement dated February 20, 2017, D. he is the owner of the disputed land plot. The purpose of the land plot is to operate and maintain a car dealership. On November 26, 2018, the Department conducted an inspection of the land plot for its intended use. According to the results of the audit, on November 26, 2018, an order was submitted to the defendant to eliminate violations of land legislation regarding the use of the site in accordance with its intended purpose, and a deadline was set for its execution - until November 26, 2019. During the control survey of the land plot on December 11, 2019, it was established that the land plot was not being used for its intended purpose.
Land disputes and the development of a land plot indicate the fulfillment of the instructions of the authorized body and the absence of legal grounds for the compulsory seizure of the land plot.
The court of first instance, rejecting the claim, motivated its conclusions by the fact that the defendant had not been inactive and had taken a number of measures to prepare and obtain permits for the construction of the facility in a lawful manner, in compliance with relevant requirements and norms. The appellate instance, overturning the decision of the court of first instance and satisfying the claim, justified its legal position by the fact that since the acquisition of the land plot by both the former owners and D., no effective measures have been taken to develop the land plot. It is impossible to agree with such conclusions of the appellate instance. According to the provisions of paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6 "On certain issues of the application of land legislation by courts", when considering claims for the compulsory seizure of land plots not used for their intended purpose, courts should establish which violations were committed by the owner or land user, when and by whom they were identified, are they grounds for the forced seizure of land, what measures have been taken to eliminate the consequences of violations, whether the owners have carried out excavation, construction and installation work, whether permission has been received from authorized bodies for the production of construction works, a draft design, to investigate the reasons for the late development of land plots. According to the documents available in the case file, D.: - On September 23, 2019, an opinion on engineering seismic conditions on the land plot was received, issued by K LLP; - on November 1, 2019, an album of the general plan for the development of the land plot was developed, agreed with the Akimat of the Auezovsky district of Almaty; - On November 6, 2019, technical specifications for electricity supply No. 25.1-6401, technical specifications for water supply and sanitation No. 5180 were received; - on November 11, 2019, technical specifications No. 002795 for heat supply were received; - on November 12, 2019, a scheme for laying engineering networks was drawn up, agreed with the Department of Urban Planning and Urbanism of Almaty city; - 18 On November 2019, architectural and planning assignment No. KZ 34VUA001397290 was received.; - On November 19, 2019, an agreement was signed with Creative Production Enterprise D LLP for the development of design and construction documentation in the amount of 6,500,000 tenge.
According to paragraph 2 of Article 94 of the Land Code of the Republic of Kazakhstan, a claim for the compulsory seizure of a land plot that is not used for its intended purpose is filed after the application of penalties provided for by the Code of Administrative Offences of the Republic of Kazakhstan and after the expiration of the prescription given to the owner of the land plot or land user to take measures to use the land plot for its intended purpose and to eliminate violations legislation of the Republic of Kazakhstan. The deadline for taking measures to use the land for its intended purpose is one year. Having examined the above-mentioned evidence, the court of first instance correctly applied the rules of law and dismissed the claim, finding that the measures taken by the defendant to develop the land indicate the fulfillment of the instructions of the authorized body and the absence of legal grounds for the compulsory seizure of the land. The appellate instance, having misinterpreted the law, did not take into account that the preparation and receipt of building permits, their approval is mandatory and requires considerable time. The conclusions of the court of appeal that the land area is small and the placement of a car dealership on it is not possible are based on assumptions. According to its intended purpose, the disputed land plot corresponds to the general development plan of Almaty and meets the requirements of functional zoning. The refusal of the Department of Urban Planning and Urban Studies of Almaty to approve the draft design is not related to the impossibility of using the land for its intended purpose and does not exclude the possibility of the possibility of its approval after the elimination of existing comments.
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