On the recognition of the protocol of the land commission and the resolution of the akim as illegal
Dated 17.10.2023, No. 6001-23-00-6ap / 430
Plaintiff: peasant farm "B"
The defendant: akim of the district
Interested party: State Institution "Department of Land Relations"
The subject of the dispute: on the recognition of the final protocol of the land commission and the resolution of the akim as illegal
Review of the cassation complaint filed by the plaintiff
THE ESSENCE OF THE MATTER:
According to lot No. 2, organized by the state institution "Department of Land Relations", tenders have been announced in the media for the provision of land plots No. 1 with an area of 77.2 hectares and No. 2 with an area of 364.04 hectares for temporary paid land use (lease), located in the ye. rural district of the M. district.
To participate in the competition, the applicants declared the plaintiffs, interested persons A. J., E. O., J. T., N.E.
According to the final protocol of the district land commission (hereinafter referred to as the land commission) dated July 16, 2021 No. 494, the application of the peasant farm "N" (head N.E.) was recognized as the winner of lot No. 2.
By the decree of the akim of the district dated July 22, 2021 No. 235, the farm "N" was granted 439.36 hectares of pastures, 1.88 hectares of other lands, a total of 441.24 plots of land for 20 years of common joint gratuitous use in the territory of the Ye rural district, according to the appendix.
On November 23, 2018, the district Maslikhat adopted decision No. 245 On approval of the Regulations and establishment of the district land commission.
The composition of the land commission was approved in the number of 40 people.
By the decision of the district maslikhat No. 59 dated June 14, 2021, amendments were made to the decision of the above-mentioned maslikhat, G. K. and K. A. were excluded from the commission, deputy akim of the district K. M. and member of the Public Council of the district A. S. were replaced.
The plaintiff filed the above-mentioned claim with the court, in which he indicated that the participant must submit an individual application, a competitive offer and obligations for each land plot. At the same time, the tender offer must contain the projected amount of investments for each land plot separately, since these obligations are an integral part of the lease agreement for the land plot, concluded if the application for participation in the competition is recognized as the winner of the competition. However, according to the audio and video recordings of this competition, the Commission considered land plots No. 1 and No. 2 for this lot as one land plot, despite the fact that each of them is a separate plot and has a cadastral size, therefore it made an illegal decision.
The specified tender offer reflects only one amount of projected investments, the volume of which is not specified separately for each land plot. She indicated that the decision on the tender was made illegally in violation of the requirements of the tender and the current land legislation.
Judicial acts:
1st instance: the claim is satisfied. The final protocol of the competition of the district land commission for granting the right of temporary paid land use (lease) for farming, agricultural production dated July 16, 2021 No. 494, part of lot No. 2 in respect of land plots No. 1 and No. 2 and the transfer of the right to use land for farming or farming "N" Akim District Decree No. 235 of July 22, 2021 has become invalid.
Appeal: the court's decision was overturned, a new decision was made in the case, the plaintiff's claim for recognition of the protocol of the conclusion of the Land Commission and the akim's decision as illegal was left without satisfaction.
Cassation: the decision of the judicial board is upheld.
Conclusion:
According to the final protocol of the disputed land commission, 31 members were present at the commission meeting, 20 people signed the protocol, and according to the audio-video recording of lot No. 2, it was established that 11 people were present in the land commission.
During the consideration of the case by the judicial board, it was established from the explanations of the defendant, representatives of the district maslikhat and other interested persons that the permanent composition of the land commission included 11 members: deputy akim of the district K. M., member of the Public Council of the district A. S., head of the state institution "Department of Land Relations" A. E., chairman of the district head of the state institution "Department architecture, Urban Planning and Construction "K. J., Head of the state institution" Department of Architecture, Urban Planning and Construction " O. S., representative of the farmer's center A. E. B., individual entrepreneurs S. A. pen E. A., deputy from the People's Democratic Party " NO " A.V., akim of the city K. O. O., director of the district Chamber of Entrepreneurs J. D.
In addition, in accordance with article 43-1 of the Land Code, the akim of the ye. rural district, A. K., and a representative of the local community of the rural district, K. Zh., became members of the land commission.
However, on the day of the contested decision, K. J. and J. D. did not participate in the work of the land commission.
That is, out of 13 persons who have the right to participate in the provision of land plots located on the territory of E. 11 rural districts voted. Therefore, the requirements of paragraph 2 of Article 43, Article 43-1 of the Land Code were met.
Therefore, the conclusion of the court of first instance that the rules of the commission meeting were violated is erroneous and contradicts the principle that a correct administrative act in substance in part 1 of Article 84 of the LPC cannot be declared illegal on formal grounds alone.
For lot No. 2, the bidders indicated the projected investment volumes as follows: plaintiff – 895.6 million tenge, A. Zh. – 420 million tenge, E. O. – 39.5 million tenge, J. T. – 300 million tenge, N.E. – 120 million tenge.
In this regard, according to the annex to the final protocol of the Land Commission dated July 16, 2021 No. 494, all participants in lot No. 2 were assigned a maximum score of 20. In this regard, all eleven members of the commission who took part in the voting recognized the winner of the peasant farm "N".
Adoption of an administrative act and (and) commission (inaction) An administrative action in the exercise of an administrative desire must meet the objectives of this authority.
The members of the land commission cast their votes at their discretion within the framework of the legislation, so the court has no right to judge why they made these decisions in favor of the peasant farm "Nursultan".
In this regard, the plaintiff's argument that his investment project has not been fully accounted for is unfounded.
The judicial board considers the plaintiff's argument that the provision of two land plots in one lot is contrary to the law to be unfounded. Since the defendant and the representatives of the interested parties explained that initially these two land plots were divided into one whole, and then the transition between them, in addition, the law does not prohibit the transfer of two land plots in one lot. The Judicial Board agrees with this motive of the defendant and interested parties and takes into account that the plaintiff has submitted only one application for participation in this competition.
The decision of the akim of the contested district to grant the right to use a land plot for farming "N" is based on a lawful decision of the land commission, therefore there are no grounds for revoking this decision.
In this case, the appellate instance came to the correct conclusion about the adoption of a new decision to overturn the decision of the court of first instance and dismiss the claim.
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