Purchase of a land plot for state needs in case of forced alienation, it is necessary to calculate its price in accordance with the cadastral (estimated) value
Plaintiff the representative of the mayor of Shymkent appealed to the court with a claim for the purchase and forced alienation of the land plot and real estate received for state needs from the defendant – the production cooperative "Mura" (hereinafter referred to as the PC). The statement of claim was satisfied by the decision of the Specialized Interdistrict Economic Court of South Kazakhstan region dated January 18, 2012. The defendant PC's land plot of 1.0214 hectares, located in Shymkent, was purchased and forcibly alienated for state needs in the amount of 2,588,228 tenge and real estate in the amount of 117,170,254 tenge. The PC collected 3,592,755 tenge of state duty in favor of the state. By the decision of the Appellate Judicial Board of the South Kazakhstan regional court, the court decision was left unchanged. The court of Cassation left the decision of the court of Appeal unchanged. The PC did not agree with the decision of the court, submitted an application to the supervisory Judicial Board of the Supreme Court, in which the courts considered the case unilaterally, pointed out the incorrect application of the relevant legal norms to the evidence provided, canceled the disputed judicial acts, asked to make a new decision on the compulsory alienation of land plots and real estate with an area of 1.0214 hectares for state needs for 497,701,000 tenge.
The supervisory judicial board, having studied the documents of the civil case and the motives of the application, concluded that the application is subject to partial satisfaction due to the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure (hereinafter referred to as the code of Civil Procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the case, such shortcomings are allowed. According to the case documents, on the basis of the resolution of the mayor of Shymkent dated April 1, 2004, the PC was granted a land plot with an area of 1.0214 hectares for the organization of the base of building materials and agricultural machinery on the right of private ownership. On the basis of the purchase and sale agreement dated April 30, 2004, this land plot was purchased by the defendant for 2,588,228 tenge. On August 4, 2011, the mayor of Shymkent adopted a resolution No. 872 on the withdrawal of this land plot by the PC for state needs on the proposal of the Department of architecture and urban planning of Shymkent, on the basis of the Master Plan of Shymkent and for the construction of a state-significant object in accordance with paragraphs 1, 2 of Article 84 and Article 89 of the Land Code of the Republic of Kazakhstan, Chapter 6 of the law of the Republic of Kazakhstan "on state property". When the courts satisfied the claim, it was taken into account that the winner of the competition of the mayor of Shymkent for the open purchase of a company for the assessment of a land plot and property for state needs was assigned to eService LLP, according to its assessment report No. 672/1 dated September 29, 2011, the price of real estate located on a land plot for state needs was estimated at 117,170,254 tenge. However, the supervisory judicial board does not agree with these conclusions of the courts. This is due to the fact that the PC ordered "expert-accurate enterprise" LLP to conduct an independent assessment of disputed property. According to the assessment report of LLP No. 653 dated September 28, 2011, the cost of real estate amounted to 497,701,000 tenge. Although these circumstances were presented to the court with evidence, they were not evaluated from a legal point of view. In addition, from the documents attached to the application, it can be seen that after the adoption of the court decision on February 8, 2012, the director of the PC P. applied to the South Kazakhstan Regional Chamber of Appraisers for an examination of the evaluation report of eService LLP.
Purchase of a land plot for state needs in case of forced alienation, it is necessary to calculate its price in accordance with the cadastral (estimated) value
In the examination of the South Kazakhstan Regional Chamber of Appraisers No. 4/12 dated February 13, 2012, it is noted that the report of eService LLP contains errors. However, this conclusion, handed over to the court of Appeal, was not studied. Also, the mayor of Shymkent, when filing a claim with the court, did not specify in what circumstances the land plot is forcibly alienated for state needs. The court of first instance, when deciding to purchase a land plot with a total area of 1.0214 hectares for state needs for 2,588,228 tenge, took into account the purchase and sale agreement dated April 30, 2004. That is, it did not take into account the need to calculate the price of land plots in 2012 in accordance with the cadastral (estimated) value of the land plot. At the same time, according to the representative of the defendant, the akimat of Shymkent did not allocate the necessary funds for the construction of a facility of State importance on the disputed land. This is due to the fact that the court decision that entered into legal force has not been implemented since March 14, 2012. Also at the meeting of the board, the letter of the state institution "Department of architecture and urban planning of Shymkent" dated February 12, 2013 No. 20/662 was studied. In the letter, it is noted that up to now the emergency (full planning project) of the district where the land plot belonging to the PC is located has not been developed. According to Article 70 of the CPC, the evidence is considered true if, as a result of the verification, it is established that the evidence corresponds to reality. In accordance with the requirements of Article 364 of the code of criminal procedure, incorrect definition and incorrect definition of the range of circumstances relevant to the case leads to the cancellation of the court decision or its modification. In such a context of the case, the disputed judicial acts are canceled and the case is sent for revision. In the process of reviewing the case, it is necessary to eliminate the above shortcomings, comprehensively check the motives of the parties, correctly assess the legal relations between the parties, and, depending on the circumstances identified, make a legal and reasonable decision on the case.
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