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Dutch didn't know about "peculiarities of Atyrau land use" (+comments of the prosecutor's office)

April 1 2015, 10:00

By Laura Suleimenova

In Atyrau a new "land" scandal is escalating. This time because of illegal allocation of land plots by the former governors of "oil capital" not only local businessmen, but also foreign investors may suffer.

WHERE KAZ MULIK HAS ENTERED 

Frauds with land plots, particularly with getting "center cuts" allegedly for business development, but in actual fact, for further resale at commercial price – has already became a traditional phenomenon in Atyrau. As the prosecutor's office found out, the part from them was given out in 2005-2006 illegally therefore they have to be returned to the state. However what to do if such site for the considerable sum is redeemed by the new owner who wasn't suspecting about circumstances of his delivery to the predecessor?

The meeting participants of the Council of businessmen at the Atyrau Oblast Chamber of entrepreneurs tried to find an answer to this question. It was approached by Kaz Mulik LLP – the Kazakhstan company with participation of founders from Holland that specialize in renting. In 2007-2008 this company purchased from a certain legal entity and a physical entity a few land plots along the airport highway for further combining and construction of a hotel, car repair service and other facilities. They paid in total 200 million tenge.

Since then Kaz Mulik, according to its representatives, regularly made all necessary payments to the budget. At some point construction has been stopped because of financial difficulties, but recently the company decided to re-start construction activities. However, in 2014 the prosecutor's office appealed to court with the claim to recognize the decisions of Atyrau Mayor in 2006 regarding allocation of those land plots as illegal. Respectively, all transactions with purchasing and selling that followed that decision are considered illegal.

In 2014 only the prosecutor's office sent to court 63 similar claims. All of them have been satisfied in favor of the state.

During investigation it became clear that decisions on land allocations were made without the conclusion of the land commission and land management project. The above-named documents simply are absent in land and cadastral files. In master plot plan of facilities to be constructed in Atyrau those lands plots are not designed for construction of offices and shopping centers, car repair service station, etc. So, formally the prosecutor's office is doing everything in a rightful manner.

"WE ALL KNOW HOW IT IS DONE"

The discussion was very heated. According to the member of the Council and the Head of the regional Union of employers and entrepreneurs Aliya Bekkuzhieva, the land plot has been confiscated from one famous businesswomen in town. She also bought it from the third parties:

Not everyone can easily get the land for doing business. It turns out, that those who have access to local government offices, have taken a number of land plots and sold them right and left. We all well know how it's done.

The question was raised why these facts of illegal land allocation by the city government administration became known to prosecutor's office only last year, during large-scale investigation, initiated by the RoK Prosecutor General's Office.

You should check their activity on an annual basis. And now during the past 8-9 years the owners of these land plots are different entities. Most of them are conscientious buyers who made investments and pay taxes to the state. And in case with Kaz Mulik, we are talking about foreign investor. This situation will negatively impact an investment image of our region, – disputed the members of the Council of businessmen. 

The situation is complicated by the fact that the deadline of the National Chamber of entrepreneurs to respond is limited. On April 2, the court hearings in appeal judicial instance will be started. As for Kaz Mulilk, failing to find an understanding here, the foreign investor plans to approach the Presidential Administration and RoK Council of Foreign Investors. The members of the Council decided to hold consultations with all interested parties and try to resolve this difficult situation.

THEY ARE RETURNED BUT ONLY SOMETIMES

The second issue on the agenda was also topical. A group of businessmen approached the regional Chamber of entrepreneurs who are waiting since 2011-2014 for the Mayor’s decision to allocate land plots. Businessmen were concerned what base rate they would pay for land plots that they are going to receive – last year’s rate since they have all approving documents in place (except Mayor’s approval who was changed three times during that period) or this year rate which has doubled?

The representative of city architectural department Anar Dauletyarova confirmed that land plot allocation process has been slowed by the Mayor’s office:

– We prepare documents in due time, then we send them to Mayor’s office. But they are not returned. Lately out of 800 submitted documents, we received only 50 signed permits. They say that the Mayor is busy and has not time.

The prosecutor's office of Atyrau Oblast sent to Ak Zhaik newspaper the letter with the following content: "According to Article 8 of the RoK Constitution the prosecutor's office on behalf of the state exercises the highest supervision over the exact and uniform application of laws, decrees of the President and other regulations.

In this case the prosecutor's office filed the statement of claim into court in the interests of the state.

According to item 1 of Article 180 of the RoK Civil Code the term of limitation period begins from the date when the person learned or should have learnt about violation of the right. Withdrawals from this rule are established by the present Code and other legislative acts.

The fact of illegal allocation of land plots has been established by the prosecutor's office of the region only in 2014, in this regard the court didn't apply the term of limitation period.

The prosecutor of Atyrau city appealed to court with the claim to Kaz Mulik LLP and initial owners of land plots.

During the investigation conducted by the prosecutor's office of Atyrau Oblast violations during land plot allocations have been revealed. In particular, during allocation, contrary to the requirements of articles 43,44 of the RoK Land Code, article 60 of the Law "About Architectural, Town-planning and Construction Activity" the land management project, the plan of detailed planning have not been developed and approved, and there was no conclusion of the commission.

By the decision of the court dated 14.07.14 the claim of prosecutor's office has been satisfied. In the appeal and cassation instance the ruling of Atyrau city court about the return of land plots has been upheld. The land plots with a total area of 3 hectares have been returned to the state.

Moreover, Kaz Mulik LLP hasn’t been recognized as the conscientious buyer of land plot by judicial process.

It should be noted that Kaz Mulik LLP since 2008 during 7 years hasn’t been developing the specified land plot in violation of Article 92 of the RoK Land Code.

Besides, we should explain that according to Article 289 of the RoK Civil Code the debtor who fulfilled the obligation of another person, has the right of the return requirement (regress) to that person in the amount of the fulfilled obligation.

The debtor who didn't fulfill obligation due to the actions of the third party, has the right to demand indemnification from that person.

In this regard, Kaz Mulik LLP has the right to claim from the initial owners the money paid for the land plots in a regressive order through the court".

Photos by Kanat Eleuov

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