On recognition and cancellation of the protocol decision of the Land Commission on the results of the competition for the provision of the right of temporary paid land use (lease) as illegal
19.10.2023 No. 6001-23-00-6ap/259
Plaintiff: LLP" U"
Responsible persons: akim of the district, KSU "District Department of land relations"
Interested person: farm" zh"
Subject of the dispute: on the recognition and cancellation of the protocol decision of the Land Commission dated May 3, 2022 No. 10 on the results of the competition for the provision of the right of temporary paid land use (lease) for the conduct of peasant or farm farming, agricultural production as illegal
Review of Cassation complaints brought by the defendant akim of the district and the Interested Person of the peasant farm "zh"
SUBJECT OF THE CASE:
KSU" District Department of land relations " organized a competition for the provision of the right of temporary land use (lease) of agricultural land plots for peasant or farm or agricultural production.
By the protocol decision of the Land Commission dated May 3, 2022 No. 10 on the results of the competition for the transfer of the right of temporary land use (lease) for conducting a peasant or farm Farm, Agricultural Production (hereinafter referred to as the disputed protocol)
according to the terms (amounts) of investment obligations, the following points are assigned to the persons participating in the competition:
For the farm " K " - 20 points;
For the farm " zh – - 20 points;
"U" LLP-NE-20 points.
The total area of the land area of S. Seifullin rural district is 156.4 hectares for the 15th lot, which was put up for rent for the competition by a controversial protocol. by 11 votes on the land plot, the winning interested party was recognized by the peasant farm "zh".
The plaintiff did not agree with the disputed protocol, filed a claim with the court, where he gave the following arguments:
The commission did not analyze from what income it receives the investment forecast for irrigated arable land above 500.0 tenge per hectare, and the protocol of the commission did not show the progress of scoring;
The plaintiff did not give preference to persons living in this district, city, village, village for at least 5 years in the form of assigning additional points to their competitive proposals when obtaining a land plot in accordance with the procedure determined by the central authorized body;
Member of the Competition Commission A. R. The winner of the competition is a relative of the head of the farm" ZH " A. S., including duties for which they received a daughter from the same family;
For unknown reasons, the member of the competition A. I. was not notified of the date and time of the competition, but instead of the district
The correspondent of the newspaper "zhigit tynysy" B. A. took part, who voted during the competition, and his voice was taken into account unjustifiably;
The wife of the chairman of the farm" zh " A. S. had a direct influence as a member of the public council of the rural district of S. T., the members of the public council heard at the meeting of the commission unanimously supported this peasant farm, which S. T. directly influenced.
Judicial acts:
Stage 1: the claim was dismissed.
Appeal: the decision is annulled and the claim is satisfied.
Protocol decision of the Land Commission dated May 3, 2022 No. 10 on the results of the competition for the provision of the right of temporary land use (lease) for the conduct of peasant or farm farming, agricultural production was recognized as illegal and canceled..
Cassation: the decision of the judicial board is left in force.
Conclusion:
The court of Appeal made a reasoned and legal new decision on the satisfaction of the claim, indicating that a number of violations occurred when making a decision by the court of first instance.
The documents submitted by the defendant indicated that the conciliation procedure provided for by law was formally drawn up, in which it was not indicated in relation to which land plots the conclusions were accepted, nor did it include the issuance of a positive or negative opinion. The same of the conclusions
the text shows that they were prepared and published somewhere. There are also discrepancies in dates and numbers.
During the consideration of the case, the defendant could not explain to the court how the circle of approving bodies was determined, how their total number and ¾ part were determined.
The next stage of the Administrative Procedure was the direct organization and conduct of the competition, during which there were violations.
Minister of Agriculture of the Republic of Kazakhstan for 2018
In accordance with the standard regulation on the Land Commission (hereinafter referred to as the Regulation), approved by Order No. 359 of August 27, a meeting of the commission is considered valid if it is attended by at least two - thirds of the total number of its members. At the same time, the number of representatives of the participating public councils, non-state organizations in the field of agro-industrial complex and other sectoral non-state organizations, the National Chamber of entrepreneurs of the Republic of Kazakhstan, as well as local self-government bodies must be at least fifty percent of the total number of members of the Land Commission present. Members of the Land Commission attend its meetings without the right of transfer.
Judging by the materials submitted to the court, the composition of the Land Commission acting during the disputed competition was approved by the decision of the district maslikhat of March 9, 2022 No. 127. However, Annex 1 to the decision, which lists the composition of the Land Commission, does not specify the names and exact number of members of the commission.
The appendix lists state institutions, organizations, does not specify who exactly is included in the commission, except for the indication of their head and acting, a deputy of the district maslikhat, a member or chairman of the District Public Council, a people's representative sent from the community meeting.
In order to fulfill the requirement of a member of the commission to participate in its meetings without the right to transfer, as specified in the above rules, and after approval in a special manner, a specific person must be specified as a member of the commission.
Such a requirement is also provided for in the regulation on the District Land Commission, approved by the decision of the district maslikhat of March 9, 2022 No. 127 indicated above.
In addition, in order to recognize the meeting of the commission as legitimate, the Quorum must be observed. According to the rules, a meeting of the commission is recognized as valid only if it is attended by at least two-thirds of the total number of its members.
And in order to determine whether the Quorum has been preserved, the total number of members of the Commission (including the members of the commission approved in accordance with article 43-1 of the Land Code) must be specific.
On May 3, 2022, two minutes of the meeting of the commission were drawn up regarding the contested competition:
protocol of opening envelopes with competitive Orders No. 1;
about the results of the competition №10.
Although both protocols are drawn up on the same day (May 3, 2022) and from the same commission meeting, there is a difference in the number and composition of the commission members who signed the protocols.
In particular, the opening protocol specifies 25 persons from the secretary of the commission, of which 21 were signed.
In conclusion, the protocol specifies 15 persons from the secretary of the commission, 10 of them signed.
And in accordance with the requirements of the rules, the protocol decision of the Land Commission must be signed by all members of the Land Commission present at the meeting.
In this regard, the quorum for the contested competition is not preserved.
The requirement that representatives of public organizations should make up at least fifty percent of the total number of members of the Land Commission present at the meeting of the commission was not met. According to protocol No. 10, of the 11 members stated to have participated in the meeting of the commission, 7 were representatives of Public Administration bodies (G. E., B. M., A. zh., A. K., N. zh., A. R., B. K.), only 4 were members of the association, representatives of self-governing bodies.
At the same time, the second paragraph of Paragraph 14 of Article 43-1 of the Land Code states that persons living in this district, city, village, settlement for at least 5 years are given preference in the form of assigning additional points to their competitive proposals when obtaining a land plot in accordance with the procedure determined by the central authorized body. But the Competition Commission did not pay attention to this requirement of the law and did not take into account it.
There were violations of the law during the voting by the commission.
From the audio-video recording of the meeting of the commission submitted to the court, it is shown that for the 15th lot of the contested contest, the number of voters was 12,they voted only once, the number of supporters was 9 (B. K., S. N. did not participate in the voting).
These circumstances do not coincide with the information provided in the disputed Protocol No. 10. The protocol states that the members of the commission voted 11 votes for the farm "ZH", 4 votes for the farm "K", and 7 votes for "U" LLP.
Member of the commission A. R. participated in the voting, but for unknown reasons did not sign the protocol.
The arguments put forward by the owners of Cassation complaints are given an appropriate legal assessment in the decision of the court of Appeal, no new arguments and justifications are given in the complaints.
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