On challenging the resolution of the competition for the provision of land for agricultural production
No.6001-23-00-6ap/605 dated October 26, 2023
Plaintiff: Peasant farm "A-1"
The defendant: akim of the district
The subject of the dispute: on challenging the resolution, Review of the defendant's cassation complaint:
On June 7, 2022, a tender was held to provide a land plot for agricultural production, including a lot
No. 8 for the right of temporary paid land use: improved pastures – 163 ha, within the boundaries of the village.
Applications for participation in the competition were received from 4 participants: KH "D-1", AA, KH "A-1" and LLP "UK". The application of KH "A-1" was rejected due to the lack of information about the place of residence in the tender application.
According to the projected investment volumes per hectare, the remaining three participants of the competition, KH "D-1", AA and LLP "UK" scored 20 points each.
The participant of the KH "D-1", as a person living in the village of U. Zh. district, was awarded an additional 10 points.
Thus, the winner was determined by the KX "D-1", which scored the highest score – 30.
The claim is motivated by the fact that during the tender for granting the right to temporary paid land use, the plaintiff's application was unreasonably rejected on the grounds that there was no information about the place of residence in the tender application. In addition, one of the members of the land commission is the director of LLP "Zh-B" Sh.D., a relative of the winner of the competition for lot No. 8 of the head of the farm "D-1" Sh.Zh., which allowed for a conflict of interest when issuing an administrative act.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision was overturned and a new decision was made to satisfy the claim, it was decided to declare illegal and cancel the decision of the akim of the district No. a-6/247 dated June 13, 2022.
Cassation: the decision of the appellate instance is upheld.
Conclusions: By virtue of paragraph 16 of the Rules for Organizing and Conducting a tender for granting the Right to Temporary Paid land Use (Lease) for Farming, Agricultural production, approved by Order No. 518 of the Deputy Prime Minister of the Republic of Kazakhstan - Minister of Agriculture of the Republic of Kazakhstan dated December 20, 2018 (hereinafter referred to as the Rules), the application for participation in the competition,
does not comply with the requirements of paragraph 9 of Article 43-1 of the Land Code, is subject to rejection.
Paragraphs 9, 10 of Article 43-1 of the CC regulate the information that an application for participation in a tender for granting the right to temporary paid land use (lease) for farming or agricultural production must contain.
The application of KX "A-1" submitted for participation in the competition states literally the following: "KH "A-1" represented by the head of A.S., certificate of state registration of entrepreneur series 012915 No. 0487218 dated October 16, 2012, legal address: A. region, Zh. district, village U.
SCAD came to the correct conclusion that by the protocol decision of the Commission dated June 7, 2022, the tender application of KH "A-1" was unreasonably rejected on formal grounds, citing the absence of information about the place of residence in the application, although the necessary information about the plaintiff's place of residence is indicated both in the application and in other attached documents..
It follows from the contents of the minutes of the meeting of the land commission dated June 7, 2022 and the video recording to it that the Commission conducted the procedure for opening envelopes with bids and summed up the results of the competition. The Chairman and 10 permanent members of the Commission participated in the meeting of the Commission on lot No. 8. The akim of the village M.K., a representative of the local population of the village K.M. also participated.
At the same time, during the competition, the director of LLP "Zh-B" Sh.D. was a member of the land commission, while the head of farm "D-1" Sh.Zh., who is the wife of Sh.D.'s brother, took part in this lot No. 8 and became the winner.
The contested resolution of the Akimat No. A-6/247 dated June 13, 2022 granted the right of temporary paid long-term land use for a divisible land plot of farm "D–1" for farming for a period of 10 years with a total area of 418.6 hectares, including improved pastures - 418.6 hectares, within the administrative boundaries of the village of U. Zh. district.
On June 16, 2022, a lease agreement for land plot No. 101 was signed between the Department of Agriculture, Land Relations and Entrepreneurship of the Zh. district (lessor) and KH "D-1" (lessee).
As established by the court, the Chairman of the Commission, Sh.B., in accordance with paragraph 3 of Article 15 of the above-mentioned law, was obliged, after being reminded by him and the secretary of the Commission of the existence of grounds for self-recusal by a member of the commission, Sh.D., after the latter's oral statement of self-recusal, to take measures to remove him from the courtroom.
The latter was not only not removed, but on the contrary actively talked with other members of the Commission and even signed the disputed protocol decision of the land commission.
Based on this, the plaintiff's argument regarding the existence of a conflict of interests of a member of the Commission has been confirmed.
The conclusions of the court of first instance that the plaintiff's rights are not affected by the contested administrative act are not valid, since the plaintiff's application was rejected and in fact he did not participate in the competition.
The Judicial Board agrees with the conclusions of the appeal on the illegality of the contested decision in view of the violations committed by the defendant during the competition.
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