On land disputes, the disputed resolution infringes on the rights of the production cooperative in relation to the land plot and is subject to invalidation, as it contradicts the requirements of the law
The plaintiff of the production cooperative " Z " (hereinafter referred to as the PC, Cooperative) appealed to the akimat of Kazygurt district with a statement of claim on invalidation of the Resolution No. 350 dated July 15, 2013. By the decision of the Specialized Interdistrict Economic Court of the Turkestan region dated October 9, 2019, the cooperative's application was dismissed, and by the decision of the judicial board for civil cases of the Turkestan Regional Court dated December 19, 2019, the decision of the court of first instance was left unchanged. The applicant zh. in his petition, he disagreed with the judicial acts adopted in the case, indicating that the conclusions of the courts do not correspond to the circumstances of the case, and asked to cancel the judicial acts and make a new decision on the satisfaction of the application. According to the case documents, PC "Z" has been in state registration since January 23, 2002. By the resolution of the akimat of Kazygurt District of South Kazakhstan region (now Turkestan region) dated February 8, 2002 No. 72A, PC "Z" was granted a land plot with a total area of 97.5 hectares (hereinafter referred to as the disputed land plot) located in the region of Zhana Bazar rural district for temporary use for 49 years. By the resolution of the akimat of Kazygurt district dated July 15, 2013 No. 350, the above-mentioned resolution was canceled, and the disputed land plot transferred to the Cooperative was returned to the Special Land Fund of the district. The basis for the adoption of this resolution was a letter from the head of the Department of land relations of Kazygurt district on the non-compliance of the norms of land legislation on the part of the PC "Z". In particular, the letter states that PC "Z" did not comply with Article 65 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), did not draw up identification documents for the land plot, did not conclude a lease agreement for the land plot. However, when issuing a resolution No. 350 dated July 15, 2013, the local executive body did not take into account on what grounds the disputed land plot appeared in PC "Z", and in the course of checking the legality of this resolution, the judicial instances also did not pay due attention to this. The above-mentioned resolution of the akimat of Kazygurt district dated February 8, 2002 No. 72A states that in accordance with the terms of granting the right to a land share to PC "Z", 97.5 hectares (including arable land – 33.7 hectares, irrigated arable land – 0.64 hectares, hayfields - 23.7 hectares, pastures – 32.3 hectares and 7.8 hectares of other land) should be transferred to the agreed project. At the same time, the implementation of this resolution, that is, making appropriate changes to the land accounting of the district, registration of documents, contracts granting the right to use land, is entrusted to the District Land Management Committee. Therefore, the authorized body, together with the land user, did not take appropriate measures to implement the resolution.
On land disputes, the disputed resolution infringes on the rights of the production cooperative in relation to the land plot and is subject to invalidation, as it contradicts the requirements of the law
In addition, according to the resolution of the Privatization Commission of the village of Zhana Bazar No. 454 dated January 15, 2002, when it was separated from the PC "Karabastau-1", the land plot of the same size-97.5 hectares – was transferred to the members of PC "Z". Further, on the basis of the terms of granting the right to a land share concluded on January 25, 2002, members of PC "Z", being the owner of a certificate of right to a land share, transferred their right to a land share to the Cooperative for a period of 49 years. The legality of these documents is not disputed, the document is stored in the State Archive of the Turkestan region, archival copies are attached to the case. In accordance with paragraph 11 of Article 43 of the Land Code, Title and identification documents for land plots issued to citizens and legal entities in accordance with the legislation of the Republic of Kazakhstan, which was previously in force before the introduction of this code, retain their legal force, taking into account changes in the rights to land plots established by the land legislation of the Republic of Kazakhstan. In accordance with the Land Code, the transfer of such documents to documents certifying ownership of land plots or land use rights is carried out at the discretion of the rightholders. Despite the fact that the right of land use to the land plot was granted to PC" Z " in accordance with the requirements of the law, its right of land use was terminated without the grounds provided for in Article 81 of the Land Code. On September 17, 2013, the application of the former chairman of PC" Z " zh. z. (recognized as disabled disabled since 2006) on the refusal of the disputed land and the cancellation of the resolution was submitted after the resolution of the akimat of Kazygurt district, which is the subject of the dispute. According to paragraphs 9, 12 of Article 15 of the law of the Republic of Kazakhstan" on a production cooperative", if more than half of the members of the cooperative or their proxies are present at the general meeting, it is considered entitled, if more than half of the members of the cooperative or their proxies present at the meeting voted for the decision of the general meeting, it is considered adopted. Since the meeting of members of the cooperative is not held in PC" Z", the written application is considered invalid, and this situation is not considered a refusal of the land user from the right to use the land.
In accordance with paragraph 1 of Article 267 of the Civil Code of the Republic of Kazakhstan, if the rights of the owner and other persons to own, use and dispose of property belonging to him are violated due to the issuance of a normal or personal document by a state body or an official that does not comply with the laws, such a document is declared invalid in court at the request of the owner or a person whose rights are violated. The court found that the members of the cooperative considered the disputed land plot to be their own, and to this day they pay taxes, sow alfalfa and wheatIn accordance with paragraph 1 of Article 267 of the Civil Code of the Republic of Kazakhstan, if the rights of the owner and other persons to own, use and dispose of property belonging to him are violated due to the issuance of a normal or personal document by a state body or an official that does not comply with the laws, such a document is declared invalid in court at the request of the owner or a person whose rights are violated. The court found that the members of the cooperative considered the disputed land plot to be their own, and to this day they pay taxes, sow alfalfa and wheat. And the disputed resolution infringes on the rights of the cooperative in relation to the land plot and is subject to invalidation, as it contradicts the requirements of the law. PC "Z" learned about the disputed resolution on May 17, 2019, after receiving a letter from the deputy akim of Kazygurt District of Turkestan region dated May 2, 2019 No. 1444. In such a case, the term of appeal to the court specified in the first part of Article 294 of the civil code has not expired on the part of the applicant. Based on the above,
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