On recognition of the final protocol of the Land Commission of the district Akim and the resolution of the Akim as illegal
17.10.2023 No. 6001-23-00-6ap / 430
Plaintiff: Farm "B"
Defendant: akim of the district
Interested party: SI "Department of land relations"
Subject of the dispute: on the recognition of the final protocol of the Land Commission and the resolution of the mayor as illegal
Review of the Cassation complaint filed by the plaintiff
SUBJECT OF THE CASE:
Competitions for the provision of temporary land use (lease) of land plots No. 1 with a volume of 77.2 hectares and No. 2 with a volume of 364.04 hectares, located in E. rural district of M. district on Lot No. 2, organized by the state institution" Department of land relations", are published in the mass media.
To participate in the competition, the claimant, interested parties expressed an application for A. zh., E. O., zh. t., N. E.
In accordance with the final protocol of the District Land Commission (hereinafter referred to as the Land Commission) dated July 16, 2021 No. 494, the winner in Lot No. 2 was the application of the peasant farm "N" (Head N. E.).
By the resolution of the district Akim dated July 22, 2021 No. 235, 439.36 hectares of pastures, 1.88 hectares of other areas, a total of 441.24 land plots were temporarily transferred to the peasant farm "h" from the Reserve Land Fund in the territory of the Rural District of E. in accordance with the annex to agricultural land, with the right of joint repayable use for 20 years.
On November 23, 2018, the district maslikhat adopted a decision No. 245 on the establishment and approval of the rules of the District Land Commission.
The composition of the Land Commission is 40 people.
By the decision of the district maslikhat No. 59 of June 14, 2021, changes were made to the decision of the above-mentioned maslikhat, the G. K. and K. A. were removed from the commission, and the deputy akim of the District K. M. and a member of the public council of the district A. S. were replaced.
The plaintiff applied to the court with the above claim, which indicated that the participant must submit an individual application, a tender offer and obligations for each land plot. At the same time, the Tender Offer must contain the amount of estimated investments for each land plot separately, as these obligations are an integral part of the lease agreement for the land plot, which is concluded if the application for participation in the competition is recognized as the winner of the competition. However, according to the audio and video recording of this competition, the Commission considered land plots No. 1 and No. 2 for this lot as one land plot, regardless of whether each is a part plot and has a cadastral number, and therefore made an illegal decision.
This tender offer specifies only one amount of projected investments, and their amounts for each land plot are not allocated separately. The decision on the competition was made illegally in violation of the requirements of the competition and the current land legislation.
Judicial acts:
Stage 1: the statement of claim is satisfied. The final protocol of the competition of the District Land Commission for the provision of the right of temporary land use (lease) for the conduct of peasant or farm farming, agricultural production No. 494 dated July 16, 2021 with respect to land plots No. 1 and No. 2 of Lot No. 2 and the resolution of the district Akim No. 235 dated July 22, 2021 on the transfer of the right to use the land plot for the conduct of peasant farming "H" has been canceled.
Appeal: the court decision was canceled, a new decision was made in the case, and the plaintiff's claim for the recognition of the final protocol of the Land Commission and the decision of the mayor as illegal was dismissed.
Cassation: the decision of the judicial board is left in force.
Conclusion:
According to the final protocol of the disputed land commission, there were 31 members at the meeting of the commission, the protocol was signed by 20 people, and in relation to Lot No. 2, audio and video recordings revealed that 11 people were present in the Land Commission.
During the consideration of the case by the judicial board, it was revealed from the comments of the defendant, representatives of the district maslikhat and other interested parties that the permanent composition of the Land Commission included 11 members: Deputy akim of the District K. M., A member of the public council of the district A. S., head of the state institution "Department of land relations" A. E., head of the state institution "Department of entrepreneurship and Agriculture of the District" K. zh., head of the state institution "Department of Architecture, Urban Planning and construction" O. S., representative of the agricultural center A. E. B., individual entrepreneurs S. A. "I don't know," I said., director of the District Chamber of entrepreneurs zh.d.
In addition, in accordance with article 43-1 of the Land Code, The Land Commission included the Akim of the Rural District E. A. K. and the representative of the local community of this rural district K. zh.
However, on the day of the adoption of the disputed decision, K. zh.and ZH. D.did not participate in the work of the Land Commission.
That is, 11 out of 13 people who have the right to participate in the provision of land plots located on the territory of E. rural district voted. Therefore, the requirements of Paragraph 2 of Article 43, article 43-1 of the Land Code are observed.
Therefore, the conclusion of the court of first instance that the rules for holding a meeting of the commission are violated is erroneous and contradicts the principle in Part 1 of Article 84 of the code that an essentially correct administrative act cannot be recognized as illegal on a single formal basis.
The participants of the competition for Lot No. 2 indicated the estimated investment volumes as follows: plaintiff – 895.6 million tenge, this year – 420 million tenge, E. O. – 39.5 million tenge, zh.T. – 300 million tenge, N. E. – 120 million tenge.
In this regard, as indicated in the annex to the final minutes of the Land Commission No. 494 dated July 16, 2021, all participants in Lot No. 2 were awarded the highest 20 points. In connection with this result, all eleven members of the commission who took part in the voting recognized peasant farm "H" as the winner.
The adoption of an administrative act and (and) the commission of an administrative act (inaction) in the exercise of administrative discretion must comply with the objectives of this authority.
Members of the land commission cast their votes at their own discretion within the framework of the legislation, so the court does not have the right to assess why they made these decisions in favor of the peasant farm "Nursultan".
In this regard, the plaintiff's argument that his investment project was not fully taken into account is unfounded.
The plaintiff's argument that the provision of two land plots with one lot is contrary to the law is considered unfounded by the judicial board. As the defendant and representatives of interested parties explained, at first these two land plots were one whole, then the road was allocated between them, and the legislation does not prohibit the transfer of two land plots in one lot. The judicial board agrees with this argument of the defendant and interested parties and takes into account the fact that the plaintiff has submitted only one application for participation in this competition.
The resolution of the Akim of the disputed district on granting the right to use the land plot for the conduct of peasant farming "H" is based on the legal decision of the Land Commission, therefore, there is no reason to cancel this resolution.
In this case, the court of Appeal came to the correct conclusion about the cancellation of the decision of the court of First Instance and the adoption of a new decision to dismiss the claim.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
