On the cancellation of the akim's decree on the compulsory alienation of the land plot
No. 6001-23-00-6ap/285 (2) dated 1.08.2023
Plaintiff: "S" LLP.
The defendant: Akimat of the city
Interested person: KSU "Management of land relations of the city"
The subject of the dispute is about the cancellation of the decision on the compulsory alienation of the land plot.
Review of the cassation complaints of the defendant and the person concerned.
PLOT: Based on the decree of the Akimat dated October 24, 2003, the Partnership was granted land plots of 0.4082 hectares (cadastral number 20 311-025-214) and 0.0245 hectares within the boundaries of the land use plan, necessary for landscaping and landscaping of the adjacent territory to the dental clinic at: north of Tole bi Street, west of R. Street in the area.
By a decree of the Akimat dated September 29, 2006, the purpose of the previously provided land for landscaping and landscaping for the construction and operation of trade facilities was changed. On April 19, 2022, the akimat adopted a resolution on the beginning of compulsory alienation of land plots or other immovable property for state needs located south of Rayymbek Avenue, west of Rozybakiev Street in the city area, including the disputed land plot, for the implementation of the city's Master Plan (landscaping and landscaping). On April 22, 2022, the Management sent a notification to the Partnership.
Having disagreed with the grounds for the seizure of the land plot, the Partnership appealed to the court with this claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision was overturned with a new decision on the satisfaction of the claim.
Cassation: judicial acts are cancelled. The administrative claim has been returned.
Conclusions: In rejecting the claim, the court of first instance proceeded from the fact that the contested resolution was adopted within the authority of the Akimat, if there were legal grounds for the seizure of land for state needs and as a result of the use of the 99 land plot by the Partnership not for its intended purpose.
The Court of Appeal, disagreeing with the conclusions of the court of first instance, overturned the court's decision, stating that compulsory seizure cannot be carried out solely or primarily for the purpose of obtaining benefits from other private entities whose activities only indirectly serve the interests of society. The Court of Appeal took into account that the disputed land plot is included in the territorial zone "OTS-3.
The territory of local centers", which is intended for a wide range of commercial and service functions of buildings forming the social and business center of the city, including facilities for social, cultural, and sports purposes.
Thus, according to the type of functional use, the land plot provided to the plaintiff complies with the urban planning regulations (Detailed planning Plan, Master Plan); its intended purpose refers to the main permitted types of functional use. At the same time, the courts of first instance and the courts of appeal did not take into account the following circumstances when resolving the dispute on the merits.
The general provisions and principles of compulsory alienation of a land plot for state needs are regulated by the Land Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On State Property", as well as other regulatory legal acts. According to the second and third parts of Article 10 (hierarchy of normative legal acts) According to the Law of the Republic of Kazakhstan dated April 6, 2016 No. 480-V SAM "On Legal Acts", the ratio of the legal force of normative legal acts other than the Constitution of the Republic of Kazakhstan corresponds to the following descending levels:
1) codes of the Republic of Kazakhstan;
2) consolidated laws, laws of the Republic of Kazakhstan, temporary resolutions of the Government of the Republic of Kazakhstan having the force of law. Each of the regulatory legal acts of the lower level should not contradict the regulatory legal acts of the higher levels.
Consequently, the norms of the Law are applied unless a different procedure is provided for by the Code and to the extent that it does not contradict the provisions of the Code.
Thus, by virtue of paragraph 1 of Article 84 of the Code, a land plot may be forcibly alienated for state needs in exceptional cases, subject to equivalent compensation for property with the consent of the owner or a non-governmental land user, or by a court decision. According to paragraph 1 of Article 88 of the Code, if the owner or a non-governmental land user does not agree with the decision on the commencement of compulsory alienation of land for state needs or an agreement has not been reached with him on the terms of the contract on the alienation of land for state needs, the local executive body has the right to file a lawsuit with the court for compulsory alienation of land for state needs.
In accordance with paragraph 4 of Article 69 of the Law, if an agreement on the transfer of property is not reached with any of the interested parties specified in paragraph 3 of this article (which include the plaintiffs), the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is carried out in court.
Also, by virtue of paragraphs 2 and 6 of the Regulatory Decree of the Supreme Court of December 25, 2006 No. 8 "On certain issues of the application by courts of legislation on the compulsory alienation of land for State needs", claims on disputes are filed by the executive body to the district (city) court at the location of the land subject to compulsory alienation for state needs.
At the same time, the courts should keep in mind that the local executive body, in accordance with Article 88 of the Code, paragraph 7 of Article 65 and paragraph 4 of Article 69 of the Law on State Property, has the right to file a lawsuit with the court if the owner or non-governmental land user does not agree with the decision to begin compulsory alienation of land for state needs or other immovable property in connection with the seizure of a land plot for state needs.
In cases where the defendants in the lawsuits indicate owners, land users who are non-governmental legal entities, citizens engaged in entrepreneurial activities without forming a legal entity, using housing construction or land for entrepreneurial activities, such lawsuits are filed with specialized interdistrict economic courts.
If the owner of the land plot or a non-governmental land user does not agree with a decree of the Government or a local executive body on the compulsory alienation of the land plot for state needs, entailing the termination of ownership or land use rights, it cannot be carried out until the dispute is resolved in court. An analysis of the above norms allows us to conclude that the contested resolution of the akim does not relate to administrative acts that are binding on the plaintiff.
It was enough for the latter to express their disagreement with the akim's decision. In the case, it was established that the plaintiff expressed to the akim such disagreement with his decision.
In such circumstances, the compulsory alienation of the land plot should have been carried out in court at the request of the local executive body.
By virtue of subparagraph 2) of part seven of Article 3 of the CPC, cases whose procedure is provided for by the civil procedure legislation of the Republic of Kazakhstan are not subject to consideration in administrative proceedings.
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