On the recognition of illegal and cancellation of actions to issue a license and recognition of an illegal license for exploration of solid minerals
No. 6001-24-00-6ap/1705 dated March 04, 2025
Plaintiff: LLP "A" (hereinafter referred to as the Partnership)
Defendants: Russian State Institution "Ministry of Industry and Infrastructural Development of the Republic Kazakhstan" (hereinafter referred to as the Ministry), Russian State University
"Interregional Department of Geology of the Committee of Geology of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan (hereinafter - RSU)
The subject of the dispute: on the recognition of illegal and cancellation of actions to issue a license and recognition of an illegal license for exploration of solid minerals issued by LLP "K"
Review of the plaintiff's cassation complaint PLOT:
K LLP is a subsurface user on the basis of a contract for conducting subsurface use operations dated March 9, 1998 and a license for the right to use subsurface resources in Kazakhstan dated February 1, 1996, valid until January 1, 2041, as well as a land user on the right of paid long-term land use of two adjacent land plots for the extraction and storage of GHGS and overburden dumps. That is, the right of subsurface use was granted to him before the entry into force of the Code "On Subsurface and Subsurface Use" (hereinafter referred to as the Code).
At the same time, the plaintiff lost the status of a subsurface user on November 4, 2020, due to the withdrawal by the local executive authority of the permit dated August 7, 2020 for exploration of the OPI due to the imposition of the subsoil plot provided to the plaintiff on the land plot of K LLP.
Judicial acts:
1st instance: the claims were denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: the decision of the local executive body to revoke the permit has not been challenged by the plaintiff.
Consequently, at the time of granting the TPI exploration license to K LLP on October 5, 2022, the plaintiff's legitimate interests could not be violated due to the lack of the right to subsurface use.
The requirements of Article 186 of the Code were met when applying for a license from K LLP, and the defendant had no grounds for refusing to issue a license established by Article 190 of the Code.
The Partnership's arguments about the Ministry's violation of the provisions of Article 189 of the Code regarding the order of consideration of applications were also not confirmed, since the plaintiff did not submit an application for an exploration license in 2022 in accordance with the procedure established by law.
The arguments of the plaintiff's cassation complaint about the violation of procedural norms by the appellate instance, in particular, the failure to involve the legal successor of the Russian State Institution "Ministry of Industry and Infrastructural Development of the Republic of Kazakhstan" in the case, the failure to issue a ruling on the preparation of the case for trial and the failure to prepare, the failure to issue a ruling on the involvement of the authorized body on land relations in the case, unjustified references to the IESEC ruling of April 30, 2021 and the decision to terminate the pre-trial investigation of March 26, 2021 do not lead to the cancellation of the decision.
A representative of the Ministry of Industry and Construction (the legal successor of the Ministry of Industry and Infrastructure Development according to paragraph 2 of the Decree of the President of the Republic of Kazakhstan dated September 1, 2023) participated in the court of appeal on the defendant's side, which indicates compliance with the legitimate interests of the authorized body.
The decision in the case was not based solely on the IESEC ruling of April 30, 2021 and the decision to terminate the pre-trial investigation of March 26, 2021. The basis for the denial of the claim was the totality of the case materials confirming the fact that the plaintiff did not have a subsurface use right at the time of issuing the license to K LLP in 2022 (due to the revocation of the permit in 2020).
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