On recognition as illegal and cancellation of the resolution of the akim of the district
No.6001-23-00-6ap/718 dated 08/29/2023
Plaintiff: D.O.
The defendant: akim of the district
Interested parties: KSU "Department of Land Relations of the akimat of the district", SEC "B"
The subject of the dispute: on recognition as illegal and cancellation of the resolution
Review of the plaintiff's cassation appeal.
PLOT: By the decree of the akim of the district No. 88 dated February 15, 2021, SEC "B" was granted the right of temporary paid land use until April 20, 2067 for a land plot with a total area of 1,994.35 hectares, including 625.0 hectares of arable land, 1276.5 hectares of bogara, 92.85 hectares of pasture. D.O.'s claim is motivated by the fact that on the pasture lands provided by SEC "B" there is a shepherd's house with a nightmare, which he acquired in 2012 under a written deal.
He has been using and owning a koshara for over 12 years. I tried to resolve the issue of providing land for grazing livestock and for servicing the koshary with a shepherd's house, but I could not reach an agreement with both the plaintiff and the akimat of the district to the present.
Judicial acts:
1st instance: the claim is partially satisfied.
The resolution of the Akimat of Kordai district dated February 15, 2021 No. 88 "On granting land use rights to a land plot" regarding the provision of pasture with an area of 92.85 hectares was declared illegal and canceled.
Appeal: the court's decision has been changed, and the satisfied part of the claim has been denied. Cassation: the decision of the appeal has been changed, the court's decision has been upheld.
Conclusions: The court of First instance, partially satisfying the claim, justified its decision by the fact that the akim of the district had provided a plot of land in the form of pasture lands of SEC "B", on which there were buildings in the form of a koshara and a shepherd's house that did not belong to the latter.
Whereas, when providing a land plot to a land user, the land plot must be free from the claims of third parties. Canceling the court's decision regarding the satisfaction of the claim, the court of appeal proceeded from the fact that the previous buyers of the koshara with the shepherd's house, owned by JSC "A", that is, S.S., Y.S., as well as the plaintiff D.O., had not registered and received their rights to real estate in accordance with the established procedure. the act on the right of land use on which the immovable property is located.
Therefore, the rights and legitimate interests of the plaintiff were not violated by the contested resolution. These conclusions of the Court of appeal are erroneous. It has been reliably established and is not disputed by the parties that by the decision of the akim of the district No. 704 dated December 22, 1997, JSC "A" was granted the right of permanent land use for a land plot with a total area of 17,115.2 hectares. On December 30, 1997, a single act was issued, which was registered with the registration authority on September 5, 2001.
According to certificate No. 0074/04 dated April 19, 2004, a koshara and an apartment building in the Sarybastau tract of the district under the letter "A" are an apartment building with a cold annex (hallway) consisting of two rooms, a kitchen, a living area of 25.40 square meters, a total area of 39.60 square meters, two koshar buildings (hereinafter referred to as real estate) was registered for JSC Ak Bulyn, and the land area under these real estate objects is 6,176 square meters. meters.
According to a notarized purchase and sale agreement dated May 14, 2004, JSC "A" sold this immovable property to S.S.. S.S. did not register his rights to the acquired immovable property with the authorized body and did not receive an act on the right of land use.
On December 10, 2010, S.S. sold the real estate to Y.S. under a purchase and sale agreement without a notary certificate. D.O. purchased the real estate from Y.S. for 2,500,000 tenge according to a written receipt.
The Court of Appeal did not take into account that, in accordance with Article 48 of the Land Code of the Republic of Kazakhstan, the provision of land plots or the right to lease land plots that are state-owned and not provided for land use is carried out at auctions.
The land plot intended for sale is put up for auction after the boundaries of the land plot are determined. not according to article 137 of the Land Code, reserve lands are all lands granted ownership or land use under the jurisdiction of district executive bodies.
The appealed resolution of the akim of SEC "B" granted the right of temporary paid land use to a land plot with a total area of 1,994.35 hectares, including 92.85 hectares of pasture on which another person's real estate is located.
That is, SEC "B" has been granted a land plot previously granted for land use to another person on which there is immovable property.
By virtue of article 52 of the Land Code, ownership of buildings (structures, structures) entails, in accordance with the procedure established by law, ownership of the land plot occupied by the specified buildings (structures, structures), except in cases provided for by this Code.
These rights are inseparable from each other. The defendant has not provided evidence of the revocation of the ownership right of JSC "A" to real estate.
The court of appeal also did not take into account that the buyers of real estate, including residential property, have not lost the right to demand recognition of the transaction as valid.
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