On the recognition of illegal and cancellation of the results of the competition for the provision of land use (lease) rights
Dated 19.10.2023, No. 6001-23-00-6ap/259
Plaintiff: LLP" U"
Defendants: akim of the district, KSU "district department of land relations"
Interested party: peasant farm "Zh"
The subject of the dispute: on the recognition as illegal and cancellation of the protocol decision of the land commission dated May 3, 2022 No. 10 on the results of the tender for granting the right of temporary paid land use (lease) for farming or agricultural production by the defendant in the cassation complaints of the akim of the district and the peasant farm "Zh" caused by the interested person.
The subject of the case: KSU "District Department of Land Relations" has organized a competition to grant the right of temporary paid land use (lease) of agricultural land for farming or agricultural production.
By the protocol decision of the Land Commission dated May 3, 2022 No. 10 "on the results of the tender for granting the right to temporary paid land use (lease) for farming or agriculture" (hereinafter referred to as the disputed protocol), according to the criteria (amount) of 95 investment obligations, the persons participating in the tender were awarded points in the amount of:
- Peasant farm " k " - 20 points;
- Peasant farming " F " - 20 points;
- U LLP - 20 points.
According to lot 15, which was put up for lease by the disputed protocol, the total land area of the rural district of S. Seifullina is 156.4 hectares. According to the land plot, the peasant farm "Zh" was recognized as the winner by 11 votes.
The plaintiff, disagreeing with the disputed protocol, filed a lawsuit in court, in which he presented the following arguments:
1. The Commission did not analyze from what income over 500.0 tenge the volume of the investment forecast per hectare of irrigated arable land receives, the commission's protocol does not reflect the course of awarding points at all.;
2. The plaintiff did not provide an advantage to persons who have lived in this area, city, village, settlement for at least 5 years in the form of awarding additional points to their bids when receiving a land plot in accordance with the procedure determined by the central authorized body.;
3. member of the competition committee A. R. the winner of the competition, chairman of the KH " Zh " A. S., is related, including fees received by a daughter from the same family;
4. For unknown reasons, A.I., a member of the competition, was not informed about the date and time of the competition; instead, B. A., a correspondent of the regional newspaper Omir Tinisi, was present, who voted during the competition and the vote was unreasonably taken into account.;
5. The chairman of the farm " Zh" A. S., S. T.'s wife, had a direct impact as a member of the Public Council of the rural district. The members of the Public Council, who were heard at the meeting of the commission, unanimously supported this peasant farm, pointing out the direct influence of S. T. on it.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision is overturned, the claim is satisfied. The protocol decision of the Land Commission dated May 3, 2022 No. 10 on the results of the tender for granting the right to temporary paid land use (lease) for farming or agricultural production was declared illegal and expired.
Cassation: the decision of the judicial board is upheld.
Conclusion: When making the decision by the court of first instance, the court of appeal made a reasoned and lawful new decision to satisfy the claim, pointing out the existence of a number of violations.
The defendant pointed out that the submitted documents were formalized in accordance with the approval procedure provided for by law, including those that did not reflect which land plots had received conclusions, positive or negative conclusions.
From the same 96 texts of the conclusions, it is clear that they were prepared and printed in one place. In addition, there are discrepancies in dates and numbers.
During the consideration of the case, the defendant's representative could not explain to the court how the circle of coordinating bodies was determined, how their total number and three-quarters were determined.
The next stage of the administrative procedure is the direct organization of the competition, during which violations occurred. In accordance with the Model Regulation on the Land Commission, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated August 27, 2018 No. 359 (hereinafter referred to as the regulation), a meeting of the Commission is considered competent if it is attended by at least two thirds of the total number of its members.
At the same time, the number of participants in public councils, non-governmental organizations in the field of the agro-industrial complex and other sectoral non-governmental organizations, the National Chamber of Entrepreneurs of the Republic of Kazakhstan, as well as local governments should be at least fifty percent of the total number of members of the land commission present.
Members of the Land commission participate in its meetings without the right to transfer. Unlike the materials submitted to the court, the composition of the land commission, which operated during the disputed competition, was approved by the decision of the district maslikhat dated March 9, 2022 No. 127.
However, Appendix 1 to the decision, which contains the composition of the Land commission, does not specify the names and the actual number of members of the commission. The appendix does not specify who exactly is a member of the commission, limiting itself to listing government agencies, organizations and indicating their head and acting deputy, a member or chairman of the district Public Council, a representative of the population sent from the community meeting.
In order to comply with the requirement for a member of the commission to participate in its meetings without the right of transition, as indicated in the above provision, and after approval in a special manner, a specific person must be indicated as a member of the commission.
Such a requirement is also provided for by the Regulation on the district land commission, approved by the Decision of the district Maslikhat dated March 9, 2022 No. 127. In addition, a quorum must be observed to recognize the commission's meeting as legitimate.
In accordance with the regulations, a meeting of the commission is recognized as competent only if at least two thirds of the total number of its members are present. And in order to determine whether the quorum has been met, the total number of commission members (including commission members approved in accordance with article 43-1 of the Land Code) must be specific.
Two minutes of the commission meeting were drawn up regarding the contested competition on May 3, 2022.:
- protocol of opening envelopes with bids No. 1;
- although both protocols No. 10. 97 on the results of the competition were drawn up on the same day (May 3, 2022) and from the same meeting of the commission, there is a difference in the number and composition of the commission members who signed the protocols.
In particular, the autopsy report from the secretary of the commission indicated 25 people, 21 of them signed.
As a result, in addition to the secretary of the commission, 15 people are listed in the protocol, 10 of them are 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. From this point of view, the quorum for the contested competition has not been preserved.
The requirement that at least fifty percent of the total number of members of the land commission present at the meeting of the commission should be representatives of a public organization has not been complied with. Of the 11 members indicated at the meeting of the commission according to Protocol No. 10, 7 are representatives of government bodies (G. E., B. M., A. Zh., A. K., N.Zh., A.R., B. K.), only 4 are representatives of the association, representatives of self-government bodies.
In addition, the second paragraph of paragraph 14 of Article 43-1 of the Land Code states that persons who have lived in a given area, city, village, or settlement for at least 5 years, when receiving a land plot in accordance with the procedure determined by the central authorized body, preference is given in the form of awarding additional points to their bids. But the competition commission did not pay attention and did not take into account this requirement of the law.
Violations were committed by the commission during the voting. From the audio-video recording of the commission meeting submitted to the court, it can be seen that for the 15th lot of the contested competition, the number of those who voted was 12, who voted only once, and who voted for 9 (B. K., S. N. did not participate in the voting). These circumstances do not correspond to the information provided in the disputed protocol No. 10.
The protocol states that the members of the commission voted for KH "W" with 11 votes, for KH "k" with 4 votes, and for LLP "U" with 7 votes. Member of the commission A. R. participated in the voting, but for unknown reasons did not sign the protocol.
The arguments presented by the owners of the cassation complaints received an appropriate legal assessment in the decision of the Court of Appeal, the complaints do not provide new arguments and grounds.
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