Cancellation of the protocol decision of the Commission to determine the regional operator, forcing the adoption of a new administrative act

 

No.6001-22-00-6ap/2632 dated 06/05/2023

Plaintiff: "G" LLP

Defendants: akims of the districts, deputy akim of the district, Commission for determining the regional operator of the district

Interested parties: State Institution "Department of entrepreneurship and agriculture of the district of the region", State Institution "Department of Entrepreneurship and agriculture of the district of the region", State Institution "Department of Entrepreneurship and Agriculture of the district of the region", LLP "F", LLP "Zh T", LLP "EM", LLP TK "A",LLP "B P".

The subject of the dispute: the cancellation of the protocol decision of the Commission on the definition of a regional operator, forcing the adoption of a new administrative act

Review of the defendant's cassation complaint

PLOT:

By resolutions of the akimats of the region's district dated 02/17/2022, 02/02/2022, and 01/31/2022, Commissions were established to identify a regional operator to provide agricultural producers with petroleum products during spring field work and the regulations on the Commission were approved.

According to the protocol decision of the District Commission dated 02/25/2022, based on the results of consideration of applications from "P R" LLP, "Q N" LLP, "F" LLP, "A XC" LLP, "Zh T" LLP, "G" LLP, "A O.C" LLP, "BP" LLP, regional operators Measures to provide agricultural producers with cheap diesel fuel during spring field work in the region have been determined: LLP "F" and LLP "Zh T".

According to the protocol decision of the District Commission dated 02/23/2022, based on the results of consideration of applications from "EM" LLP, "F" LLP, "Zh T" LLP, "G" LLP, "A O.C" LLP, "PR" LLP, by regional operators to provide agricultural producers with cheaper diesel fuel during spring field work in the district defined: LLP "EM",LLP "F", LLP "Zh T".

The meeting of the commission was attended by: LLP "EM", LLP "Firm K-Shi company", LLP "Zh T", LLP "G", LLP "A O.C".

According to the protocol decision of the District Commission dated 02/23/2022, based on the results of consideration of applications from TC "A" LLP, "G" LLP, "BP" LLP, "F" LLP, "A O.C" LLP, "Q N" LLP, "PR" LLP, "A XC" LLP by regional security operators producers of agricultural products with cheap diesel fuel during spring field work in the region are identified: TK "A" LLP, "BP" LLP, "F" LLP.

The plaintiff, challenging the minutes of the Commission meeting, bases his arguments on the fact that the established Commissions did not have the authority to conduct the meeting, since they were not approved by the Maslikhat.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are upheld.

Conclusions:

The local courts, rejecting the claim, came to the unfounded conclusions that the Commission is not an advisory body on interdepartmental issues, since the Commission's decisions entail legal consequences for the persons concerned.Whereas the decisions of advisory bodies are advisory in nature.

According to subparagraph 5) of paragraph 1 of the Law of the Republic of Kazakhstan "On Local Government and Self-government in the Republic of Kazakhstan", the district (city of regional significance) akimat, in accordance with the legislation of the Republic of Kazakhstan, ensures the rational and efficient functioning of the agricultural sector.

The plaintiff filed a lawsuit against several defendants - the akims of the districts, the deputy akim, and the Commission. The proper defendant in the case is the Akim of the district.

Based on the above-mentioned provision of the law, the Commissions are established within the limits of competence, and does not contradict the legislation.

At the same time, the composition of the District Commission was not subject to approval by the district Maslikhat, as other departments were not represented in this Commission.

Attention is drawn to the fact that during the spring field work in 2021, the allocated amount of diesel fuel was not delivered in full volume.

The plaintiff, without disputing this circumstance, justifies the reason for the supply of diesel fuel not in full, motivates the fault of the State Institution "Department of Entrepreneurship and Agriculture" of the districts.

Whereas the court found that other operators, as determined by the Commissions, supplied diesel fuel in the volumes allocated to them.

The operators identified by the Commissions have material resources for storing petroleum products, as evidenced by the lease agreements for containers (reservoirs) for storing petroleum products.

The applications determined by the Operators' Commissions contain information about the experience of working in the oil products market, as operators for the supply of guaranteed diesel fuel in spring field work in the regions of the region.

According to the plaintiff's applications, the plaintiff also has material resources for the storage of petroleum products, and guarantees high-quality and timely work on the supply of fuels and lubricants. At the same time, the decision of the Commissions is made by voting, based on the majority of the number of votes of one or another LLP that submitted the application.

 

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