Challenging the decision of the land commission and the resolution of the akim on the assignment of the obligation to hold a repeat competition
No.6001-23-00-6ap/600 dated October 26, 2023
Plaintiff: Peasant farm "B"
Defendants: akim of the district, State Institution "Department of Land Relations"
Interested party: AD LLP
The subject of the dispute: on challenging the decision of the land commission and the resolution of the akim, on imposing the obligation to hold a repeat competition
Review of the plaintiff's cassation appeal. PLOT:
The claim is motivated by the fact that the plaintiff filed an application for participation in a tender for lot No. 28 for leasing a land plot of 2087.3 hectares located in a rural district for agricultural production. The competition was held on January 27, 2022, and AD LLP was recognized as the winner. According to the results of the competition, he also scored 20 points as the winner, but during the voting he lost to AD LLP. After the competition, the defendant issued a resolution on the provision of a land plot. The decision of the commission, which awarded an additional 10 points to all participants of the competition, is illegal. In particular, he believes that additional points have been illegally awarded to legal entities of AD LLP, AI LLP and SEC K, since additional points are subject to assignment only to individuals who have lived in the area for at least 5 years. The place of residence is determined only for individuals, and therefore additional points cannot be awarded to legal entities.
Judicial acts:
1st instance: the claims are partially satisfied.
The protocol decision of the tender commission on the results of the tender for lot No. 28 dated January 27, 2022 on granting the right of temporary paid land use for farming, agricultural production on the land plot of the K. rural district with an area of 2087.3 hectares for a period of 10 years was declared illegal and canceled.
The resolution of the akim of the district No. 55 dated January 31, 2022 on granting the right of temporary paid land use to a land plot of 2087.3 hectares located in the rural district, AD LLP, was declared illegal and canceled.
The duty has been assigned to the akim of the district to cancel the execution of the protocol decision of the tender commission dated January 27, 2022 on the lot.
No. 28 and Akim's Resolution No. 55 dated January 31, 2022 on the provision of LLP
The "AD" of the land plot. The rest of the claims were denied to the plaintiff.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: from the protocol on the results of the tender for lot No. 28 dated January 27, 2022, it follows that in addition to the plaintiff, 4 more farms and 3 legal entities participated in this tender, including AD LLP.
The competition commission awarded both legal entities and heads of peasant farms 20 points and an additional 10 points for investment investments, as individuals living in the area.
The conclusions of the courts on the illegality of the contested protocol are justified, since during the summing up of the results of the competition, the commission actually awarded additional 10 points based on the explanations of the akim of the rural district about the residence of a participant in this area without their documentary verification.
At the same time, the defendant's arguments about assigning an additional 10 points to the tender offer due to the residence of the founder of AD LLP for more than five years in the territory of the settlement cannot be taken into account, since the legal entity directly participated in the tender, and not its founder. The location of the "AD" LLP itself, according to legal documents, until 2021, the city of A. is indicated, after that – the Zh. district.
Thus, the failure of the land commission to comply with the above-mentioned legal requirements when awarding points led to the illegal adoption of an administrative act by the akim of the district.
The judicial board agrees with these conclusions of the local courts.
The arguments of the cassation appeal that the court unreasonably restored the time limit for challenging the administrative act cannot be taken into account, since this time limit was restored by the court of first instance and the court's ruling on extending or restoring the procedural time limit is not subject to appeal.
Conclusions of the court of first instance on the rejection of the claim brought against the State Institution
The board also considers the "Department of Land Relations", as well as the stated requirements for the assignment of the obligation to hold a repeat competition, to be correct and the parties to this part are not disputed.
The Judicial Board considers the contested judicial acts of local courts to be lawful and justified, since they were adopted taking into account the factual circumstances, case materials and principles of legality and fairness, and therefore there are no grounds for satisfying the cassation appeal of the person concerned.
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