On the recognition of illegal resolutions regarding the organization and conduct of auctions for land plots
No. 6001-23-00-6ap/43(2) dated 07/13/2023
Plaintiff: A.A.
Defendants: akim of the city, Akimat of the city, State Institution "Department of Land Relations of the city"
The subject of the dispute: on the recognition of illegal Resolution No. 3160 of October 21, 2021 regarding the organization and conduct of auctions for land plots with cadastral numbers No.04-066-041-3978, 04-066-041-3979, 04 066-041-3982
Review of the defendant's cassation complaint
PLOT: On October 21, 2021, the mayor of the city issued Resolution No. 3160 on the organization and holding of auctions for the sale of commercial land owned by the state (Resolution No. 3160).
According to the annex to Resolution No. 3160, land plots for servicing buildings (structures and structures) were put up for auction in the following lots (land plots): No. 8 plot with cadastral number 04-066-041-3978 (0.0380 ha); No. 11 plot with cadastral number04-066-041-3979 (0.0370 ha); No. 15 plot with cadastral number 04-066-041-3982 (0.0370 ha).
On December 29, 2021, according to the results of the electronic auction No.230706, No. 230707, No. 230708, the plaintiff was recognized as the winner of the above lots. On December 31, 2021, he and OZO signed purchase and sale agreements for the lease of land plots No. 32588-ETP, No. 32591-ETP, No. 32592-ETP (contracts).
On January 17, 2022, the plaintiff applied to the OZO for a decision from the akim of the rural district on the organization and conduct of the auction.
On January 31, 2022, the plaintiff received Resolution No. 3160. On February 17, 2022, the plaintiff appealed to the governor of the region with a complaint that Resolution No. 3160 was declared illegal, but he did not receive any response. On April 23, 2022, the plaintiff filed a lawsuit, arguing that the resolution No. 3160 he was contesting was not signed by the mayor of the city himself and, therefore, had no legal force; the provision of commercial land fell within the competence of the akim of the rural district, respectively, the akim of the city had no right to adopt resolution No. 3160.; The land plots put up for auction or the right to lease them are not the subject of bidding, auction or competition.
Judicial acts:
1st instance: the claim is partially satisfied. It was decided on the merits: to declare illegal and cancel the decree of the Mayor of the city dated October 21, 2021 No. 3160 regarding the organization and conduct of auctions for land plots with cadastral numbers No.04-066-041-3978, 04-066-041 3979, 04-066-041-3972; to determine the deadline for the execution of the decision 1 (one month) from the date of entry into force of the decision; to reject the rest of the claim.
Appeal: the decision remains unchanged.
Cassation: judicial acts are cancelled. A new decision has been made in the case: the claim has been dismissed.
Conclusions: The courts of previous instances, in the satisfied part of the claims, proceeded from the fact that, according to subparagraph 1) of Article 19 of the Land Code, the competence of akims of a city of regional significance, settlement, village, rural districts in the field of regulating land relations within the boundaries of a city, village, rural settlement includes the provision of land plots in private property and land use.
This means that the organization and conduct of auctions, purchase and sale of rights to land plots located in a rural district are subject to the akim of the relevant administrative-territorial unit, which is the akim of the rural district.
However, there is no reason to agree with such conclusions, including the illegality of the resolution No. 3160 contested by the plaintiff. According to the sub-paragraphs 2), 7), 8), 9) paragraph 3 of Article 14-1 of the Land Code issues of preparation of proposals and draft decisions of the local executive body of a district, city of regional significance on the provision of land plots and changing their intended purpose, organization of the development of land zoning projects, projects and schemes for the rational use of land in districts, cities of regional significance values; the organization of the development of projects for the land management of the territories of settlements; the organization of land auctions are attributed to the competence of the authorized bodies of regions, cities of republican significance, the capital, districts, cities of regional significance.
With regard to the dispute under consideration, the authorized body in the field of land relations in the city is the State Institution "Department of Land Relations of the City", which is a structural subdivision of the Akimat of the city. By virtue of paragraphs 1 and 4 of Article 48 of the Code, the provision of land plots or the right to lease land plots that are in state ownership and not provided for land use is carried out at auctions (auctions). The seller of the land plot or the right to lease the land plot is the local executive body.
According to paragraph 3 of the Rules for organizing and conducting auctions (tenders, auctions) for the sale of land or the right to lease land in electronic form on the web portal of the Register of State Property, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 15, 2021 No. 297, the land is put up for auction in two ways: 1) formation and approval by the seller of the list of land plots put up for auction; 2) receipt from the geoinformation service (hereinafter referred to as the geoservice) of proposals for putting a vacant land plot up for auction in accordance with Annex 1 to these Rules (hereinafter referred to as the proposal) from persons interested in obtaining land plots.
Based on the above-mentioned norms of the current legislation, when making the contested resolution, the mayor of the city acted within the limits of his authority and administrative competence. The Courts have misinterpreted the norms of Article 19 of the Land Code, since the norm provides for the competence of the akim of an administrative-territorial unit to make a decision on the provision of a land plot based on the results of an auction.
The courts' reference to paragraphs 1, 2 of Article 2-1 of the Law of the Republic of Kazakhstan "On Local Government and Self-Government in the Republic of Kazakhstan" that local self-government is carried out separately within a region, district, city, district in a city, rural district is not valid.
Paragraph 9 of the said Law stipulates that local self–government is an activity carried out by the population directly, as well as through maslikhats and other local self-government bodies, aimed at independently resolving issues of local importance under their own personal responsibility, in accordance with the procedure established by this Law and other regulatory legal acts.
An akim is an official who heads a local executive body. In accordance with paragraph 4 of the same Law, the local executive body (akimat) is a collegial executive body headed by the akim of a region, a city of republican significance and the capital, a district (city of regional significance), exercising local government and self-government in the relevant territory within its competence. The Akimat of the city is a collegial government body, which includes structural divisions and rural districts.
Thus, the judicial board considers that the mayor of the city had the right to resolve the issue of organizing and holding auctions of land plots located on the territory of the rural district, which was part of the city of Atyrau at the time of the contested resolution No. 3160.
Violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, in accordance with the requirements of part 4 of Article 6 of the CPC, entails the cancellation of judicial acts. The inconsistency of the conclusions of the local courts with the circumstances of the dispute, the erroneous interpretation of the law by virtue of subparagraphs 3), 4) of part 1 of Article 427 of the CPC is the basis for the cancellation of the contested judicial acts.
In addition, attention is drawn to the fact that the plaintiff voluntarily participated in the auction and became the winner. He signed the relevant purchase and sale agreements, but later challenged the favorable act in his favor in court. Within the meaning of paragraphs 3,4,5,6,7 of Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.
Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, 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 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 unscrupulous 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, the judicial board found an abuse of law on the part of the plaintiff.
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