Recognition of illegal protocols of electronic auction results
No. 6001-22-00-6ap/2275 dated 05/04/2023
Plaintiff: A.A.
Defendants: Akim of the city, Akimat of the city, State Institution "Akim's Office", State Institution "Department of Land Relations of the city" (hereinafter referred to as the Department of Land Relations), State Institution "City Department of Architecture and Urban Planning" (hereinafter referred to as the Department of Architecture), Maslikhat of the city (hereinafter referred to as the Maslikhat), Land Commission for the regulation of land relations of the city (hereinafter referred to as the Land Commission), NAO "Government for Citizens State Corporation" (hereinafter referred to as NAO), Akim of the rural district of the city, JSC "Information and Accounting Center"
The subject of the dispute: on the recognition of the protocols of the electronic auction results of December 29, 2021 as illegal;
assigning responsibilities to the land commission, Maslikhat, akim of the rural district of the city, akim of the city, Department of Land Relations, Department of Architecture, Akimat of the city to make a protocol decision on the results of the auction for applications dated 12.2021 for the sale of the right to lease land and a protocol decision on the use of the requested land;
assigning responsibilities to the Department of Land Relations, NAO, Department of Architecture, Akim of the rural district of the city, Akim of the city, Akimat of the city, Maslikhat to develop, produce and approve land management projects and cadastral plans (case) for commercial land plots within the time period established by law (hereinafter referred to as land plots);
assigning the duty to the akim of the rural district of the city, akim of the city, akimat of the city to make a decision on the application dated 28.01.2022 for granting the right of temporary paid land use (lease) of land plots for a period of 3 (three) years and on applications dated 27.12.2021 within the time period established by law;
assigning the duty to the akim of the rural district of the city, the akim of the city, the Akimat of the city, the Department of Land Relations to conclude a contract of temporary free land use (lease) for land plots for a period of 3 (three) years within the time limit established by law,
Review of the plaintiff's cassation appeal
PLOT:
On October 21, 2021, the mayor of the city issued resolution No. 3160 on the organization and holding of auctions (auctions) for land plots (hereinafter referred to as the resolution of the Mayor of the city dated October 21, 2021).
On December 27, 2021, the plaintiff submitted bids for the sale of land plots and paid the guarantee fee.
According to the results of the electronic auction dated December 29, 2021, No. 230706, No. 230707, No. 230708, AA was recognized as the winner.
On 31.12.2021, agreements No. 32588-ETP, No. 32591-ETP, and No. 32592-ETP for the purchase and sale of land lease rights (hereinafter referred to as contracts) were concluded between the Department of Land Relations and AA.
On 17.02.2022, the plaintiff filed a complaint addressed to the akim of the region regarding the recognition of the decree of the akim of the city dated 21.10.2021 regarding the organization of auctions as illegal.
The plaintiff's complaint about the recognition of the illegal resolution of the akim of the city dated 2.10.2021 was dismissed by the Russian State Institution "Department for Land Resources Management of the Committee for Land Resources Management of the Ministry of Agriculture of the Republic of Kazakhstan".
After that, AA appealed to the court with the above-mentioned requirements.The claim is motivated by the fact that the mayor of the city does not have the right to make a decision on the auction.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
The courts, rejecting the claim, reasonably proceeded from the following.
In accordance with the requirements of paragraph 1-1 of Article 43 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the CC), land plots and the right to lease land plots owned by the state and not provided for land use may be objects of sale at auctions, subject to the provisions established by Article 48 of this Code.
Local executive bodies are required to post information on vacant land plots and planned auctions on the web portal of the Register of State Property, their Internet resources, and special information stands in places accessible to the public, with quarterly data updates.
According to paragraph 1 of Article 48 of the CC, the provision of land or the right to lease land owned by the state and not provided for land use is carried out at auctions.
The court of appeal did not take into account the decision of the MAS dated 06/09/2022, which, according to the claim of AA, recognized the illegal decree of the mayor of the city dated 10/21/2021, since it did not enter into force.
The Judicial Board noted that the resolution of the SCAD of the Supreme Court dated 04.04.2023 on a similar claim by A.E.A. the resolution of the akim of the city dated 21.10.2021 was recognized as legitimate.
Within the meaning of paragraphs 3,4,5,6,7 of Article 8 of the Civil Code, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law, and should not cause damage to the environment.
Citizens and legal entities must act in good faith, reasonably and fairly in the exercise of their rights, observing the requirements contained in the legislation, the moral principles of the community, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract.Good faith, reasonableness and fairness of the actions of the participants in civil law relations are assumed.
Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
No one has the right to take advantage of their unfair behavior. In case of non-compliance with the above requirements, the court may refuse to protect the person's right.
In the circumstances of the case established by the courts, as well as based on the content of the claim, appeal and cassation complaints, the judicial collegium considered the plaintiff's abuse of law.
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