Appealing against the actions of a state body in the field of land relations
The institution "Kazakhstan Maritime University" (hereinafter referred to as the University) appealed to the court with an application to the Akimat of Aktau to recognize the resolution of the Akimat dated October 26, 2018 as illegal. The application was granted by the decision of the specialized interdistrict economic Court of the Mangystau region dated December 11, 2018. The resolution of the Akimat of Aktau dated October 26, 2018 No. 2321 "On the cancellation of the resolution of the Akimat of Aktau dated March 2, 2018 No. 456" was canceled. By a decision of the judicial board for civil cases of the Mangystau Regional Court dated February 20, 2019, the decision of the court of first instance was overturned, and a new decision was issued to dismiss the application. The Judicial Board for Civil Cases of the Supreme Court upheld the decision of the appellate instance on the following grounds. The case materials established that by decree of the Aktau city Akimat dated March 2, 2018 No. 456, the University was granted the right of temporary paid short-term (for a period of three years) use (lease) of land No. 1, with an area of 9.2471 hectares, for the construction and operation of the university and engineering infrastructure in the 20A subdistrict of Aktau city, within the boundaries according to the land use plan. Subsequently, by the resolution of the Akimat of Aktau dated October 26, 2018 No. 2321, based on the protest of the Prosecutor's Office of Aktau, the resolution of the Akimat of Aktau dated March 2, 2018 No. 456 was canceled.
Appealing against the actions of a state body in the field of land relations
The Court of First instance, satisfying the University's application for the cancellation of the decree of the Akimat of Aktau dated October 26, 2018 No. 2321, proceeded from the fact that the decree of the Government of the Republic of Kazakhstan dated January 14, 2016 No. 13 assigned higher education to priority activities for the implementation of investment projects. Consequently, the construction of higher education facilities is an investment project financed from the applicant's own funds, which means there is no need to conclude an investment contract with an authorized body. Overturning the court's decision, the appellate instance indicated that in order to provide a land plot out of competition for the implementation of investment projects, an agreement with an authorized investment authority is required, which the applicant does not have. In addition, the court of appeal found that the planned construction of the university on the requested land plot does not correspond to the functional urban planning zoning, that is, the approved detailed planning project (hereinafter referred to as the RAP). The RAP provides for the construction of residential complexes, an entertainment center, a shopping center, a library, and a school center. The conclusions of the appellate instance correspond to the circumstances of the case and are based on the law. According to paragraph 1 of Article 48 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the CC), land plots or the right to lease land plots that are state–owned and not in land use are provided at auctions (tenders, auctions), except in cases when a land plot or the right to lease a land plot is provided for the implementation of investment projects.
In accordance with Article 284 of the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the PC), an investment project is a set of measures providing for investments in the creation of new, expansion and (or) renovation of existing production facilities, including those created, expanded and (or) renovated during the implementation of a public–private partnership project, including a concession one. the project. Article 294 of the SC stipulates that an investment contract is an agreement for the implementation of an investment project, providing for the implementation of investments and the provision of investment preferences. In turn, paragraph 2 of Article 273 of the Criminal Code states that this Code does not regulate relations related to investing capital in non-profit organizations, including for educational purposes. The University is a non-profit organization by its organizational and legal form. A non-profit organization is an organization that does not have profit as its primary goal. In order to provide additional sources of financing for its activities, a non-profit organization may create its own commercial organizations or invest capital in third-party commercial enterprises. It follows from this that the University, as a non-profit organization, cannot act as a subject of investment projects, as evidenced by the applicant's lack of an investment contract with an authorized body, as well as the defendant's own explanation that the University does not claim to receive any investment preferences and a state in-kind grant. Taking into account the above, there are no exceptional grounds for granting the University the right to a land plot from state-owned lands without bidding on the case. In addition, by virtue of paragraph 1 of Article 44 of the CC, local executive bodies of the region, the city of republican significance, the capital, the district, the city of regional significance,
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