The Office of Natural Resources and Regulation of Environmental Management of Akimat on the recognition of illegal and cancellation of the notification
No. 6001-24-00-6ap/2366 (3) dated March 14, 2025
Plaintiff: LLP "Zh" (hereinafter referred to as the Partnership)
Respondent: State Institution "Management of Natural Resources and Regulation of Environmental Management of Akimat" (hereinafter referred to as the Department)
Interested party: State Institution "Department of Entrepreneurship and Industrial and Innovative Development of Akimat"
The subject of the dispute: on the recognition as illegal and cancellation of the notification dated July 20, 2023
Review of the cassation petition of the prosecutor, cassation complaints of the defendant and the person concerned
PLOT:
The Partnership is a party to the Contract dated June 14, 2004 for the extraction of common minerals (OPI) - the extraction of building stone from the Site C deposit on the lands of the city of A.
By an additional agreement to the Contract dated September 14, 2018, the name "building stone" was replaced by igneous rocks.
On July 24, 2023, the Office sent a letter to the Partnership
notification of the elimination of violations of the Contract in the form of the transfer of a part of the participation of a private company Ltd in the authorized capital of the Limited Liability Partnership "A" in favor of an individual G.K. in the amount of 1% without the permission of the Competent Authority.
The plaintiff filed a claim to challenge the notification.
The plaintiff's position is justified by the norms of the Code of the Republic of Kazakhstan dated December 27, 2017 No. 125-VI SAM "On Subsoil and Subsoil Use" (hereinafter referred to as the Code).
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance was overturned with a new decision on the satisfaction of the claim. The notification dated July 20, 2023 was declared illegal and cancelled.
Cassation: judicial acts in this case have been annulled. The claim of "Zh" LLP against the State Institution "Management of Natural Resources and Regulation of Environmental Management of the Akimat" on recognition as illegal and cancellation of the notification dated July 20, 2023 has been returned.
Conclusions: the board did not agree with the above conclusions of the local courts due to violations of the rules of procedural law.
The concept and features of an administrative act, administrative action and judicial jurisdiction of disputes are determined by the provisions of the APPC.
According to paragraph two of article 102 of the APPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for in the APPC.
The provisions of the first part of Article 4 of the APPC determine that:
4) an administrative act is a decision taken by an administrative body, an official in public relations, implementing the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.
An administrative act is the main external form of administrative activity of administrative bodies and officials. It is adopted by an administrative body in public law relations, has an authoritative character and is a unilateral decision of an administrative body endowed with authority, which is mandatory and secured by state coercion and is aimed primarily at the realization of subjective public rights and obligations, addressed to a specific person or an individually defined circle of people.
The subject of a claim may be an act that denies implementation, restricts, terminates the right of a participant in an administrative procedure or imposes certain duties on him, as well as otherwise worsens his situation.
It follows from the above that administrative acts exercising the rights and obligations of a participant in an administrative procedure are subject to challenge in administrative proceedings.
In this case, the plaintiff is challenging the notice of elimination of violations of the terms of the contract dated June 14, 2004 for the extraction of igneous rocks (building stone) of the Severny deposit site, concluded between the plaintiff and the Department of Energy, Industry and Construction.
The consequence of non-fulfillment of the contract is the unilateral early termination of its validity in accordance with article 72 of the Law "On Subsoil and Subsoil Use", as indicated in the notification.
Thus, the notification does not meet the criteria of an administrative act defined in Article 4 of the CPC. In this case, the defendant exercises his rights as a party to the contract, and not as an administrative body, therefore, the dispute arises from private law relations.
In addition, the disputed notice is an interim document preceding the termination of the contract.
By virtue of the requirements of paragraph 6 of Article 106 of the Code, a subsurface user has the right to challenge the legality of early termination by the competent authority of a subsurface use contract in court within two months from the date of receipt of the notification.
The Board clarifies that in case of disagreement with the actions of the competent authority arising from contractual obligations (for example, in the case of early termination of the contract), the plaintiff should file a claim to challenge the early termination of the contract in civil proceedings, in which his arguments about the absence of violations are subject to investigation.
By virtue of subparagraph 11) of the second part of Article 138 of the CPC, the court issues a ruling on the return of the claim if the case is not subject to consideration in administrative proceedings.
In the circumstances described, judicial acts are subject to cancellation due to consideration by the courts of a claim that is not subject to consideration in administrative proceedings, and the claim is returned to the person who filed it.
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