On challenging the decision of the land commission and the resolution of the akim, on imposing 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.
The conclusions of the courts that the plaintiff cannot be a recipient of EHS from the moment he joined the service, since he was discharged from military service and excluded from the lists of military personnel before the entry into force of the norms of paragraph 5 of Article 101-2 of the Law "On Housing Relations", are correct.
No.6001-23-00-6ap/858 dated 11/08/2023
Plaintiff: N.E.
Respondent: "Military Unit 1 of the Ministry of Defense of the Republic of Kazakhstan" (hereinafter referred to as the Military Unit)
The subject of the dispute: on the repeal of the administrative act of July 27, 2022, on the obligation to assign one-time housing payments (hereinafter referred to as EHS) from March 4, 2005 to November 20, 2009
Review of the plaintiff's cassation complaint PLOT:
N.E. served under a contract in various positions in a military unit since March 4, 2005.
On September 3, 2020, the plaintiff was discharged from military service in accordance with subparagraph 1) Paragraph 1 of Article 26 of the Law "On Military Service and the status of military personnel" No. 561-IV SAM dated February 16, 2012 (upon reaching the age limit for military service).
On September 7, 2020, by order of the commander of the Military Unit, the plaintiff was paid EHS for the period from November 20, 2009 to December 31, 2017 in the amount of 4,429,056 tenge.
On July 27, 2022, the defendant refused to pay the plaintiff from the date of his enlistment, that is, from March 4, 2005 to November 20, 2009, indicating that paragraph 5 of Article 101-2 of the Law was not retroactive.
"On Housing Relations" (hereinafter referred to as the Law).
N.E. appealed this refusal in court, believing that he was entitled to EHS for the entire period of his service, including for the period from March 4, 2005 to November 20, 2009.
Judicial acts:
1st instance: the claim was denied.
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 about 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.
Conclusions: N.E. was recognized as in need of housing by the decision of the Housing Commission dated November 20, 2009 No. 17.
Since that time, he has been living in the housing provided by the defendant. He was paid EHS from the moment he was declared in need of housing until he was discharged from the service.
Paragraph 5 of Article 101-2 of the Law (as amended by the Law of April 15, 2022) stipulated that military personnel who were recognized as in need of housing but were not provided with it before January 1, 2018, upon discharge from military service, receive housing payments for the entire period of service from the date they were recognized as in need of housing for minus the amount of previously made housing payments.
Paragraph 5 of Article 101-2 of the Law "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on military service and housing relations of employees of special State bodies and military personnel" No. 114-VII dated April 15, 2022 is worded as follows: "Military personnel during periods of housing insecurity from the state housing stock upon discharge from military service upon reaching the age limit for military service, for health reasons, due to staff reductions, upon expiration of the contract for military service, in case of significant and (or) systematic (two or more times) violations of the terms of the contract or for family reasons, they receive housing payments from the date of joining the service in special state bodies, the Armed Forces, other troops and military formations until January 1, 2018, minus the periods: 1) previously made housing payments; 2) living in a dwelling previously provided from the state housing stock in the territory of the Republic of Kazakhstan or on the right of ownership for each place of service."
The conclusions of the courts that N.E. cannot be a recipient of EHRs from the moment he joined the service, since he was discharged from military service and excluded from the lists of Military Unit personnel before the norms of paragraph 5 of Article 101-2 of the Law came into force, are correct.
These and other arguments of the court of appeal are set out in detail in the judicial acts.
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