On the recognition of the illegal part of the protocol decision of the Land Commission

Dated 07/18/2023, No. 6001-22-00-6ap/2702

Plaintiff: the head of KH "A"T. K.

The defendant: akim of Kaztalovsky district

Interested person: head of KH "D"A. E.

The subject of the dispute: on the recognition of the illegal part of the protocol decision of the Land Commission No. 15 dated May 19, 2022 in relation to lot No. 8

Review of the cassation appeal submitted by the interested party

The subject of the case: On March 29, 2022, a tender was held in the Birik rural district of the Kaztalovsky district to grant the right of temporary paid land use (lease) for a land plot.  According to lot No. 8, by the decision of the land commission, Temreshev A. E. was recognized as the winner, who received the largest number of votes by open voting due to the equality of the points awarded to the applicants (A. E. – 9 votes, A. T. – 3 votes, because – 0 votes). Not agreeing with the protocol of the land commission, because He pointed out that a misdemeanor had occurred, and justified the claim by saying that some peasant farms that were part of the land commission had taken over the land.

Judicial acts:

1st step: the requirement is satisfied.

The decision of the meeting of the tender commission on granting the right of temporary paid land use (lease) of agricultural land for farming in the Birik rural district of the Kaztalovsky district of the West Kazakhstan region regarding lot No. 8 dated May 19, 2022, was declared illegal.

Appeal: the decision is upheld.

Cassation: judicial acts were annulled, a new decision was made to dismiss the claim.

Conclusion: the local courts correctly concluded that the members of the commission who are interested in A.E. becoming the winner of lot No. 8 have not been identified.

However, the courts, when satisfying the claim, proceeded from the fact that the land commission, when making the decision, violated the requirements of the "Rules for Organizing and Conducting a tender for granting the right to temporary paid land use (lease) for farming or agricultural production" (hereinafter referred to as the Rules).

In particular, the courts did not hold a meeting of the land commission through an online broadcast on the official website of the akimat of the district. At the same time, each participant cited the grounds that the applications and documents submitted to them after notification of their contents were set aside by the secretary without being handed over to the members of the land commission for study. These conclusions of the courts are erroneous.

The local courts applied the law incorrectly. According to part 1 of Article 43-1 of the Land Code, effective in the event of a disputed legal relationship, a meeting of the land management commission is subject to mandatory registration by means of audio and video recordings in accordance with paragraph 2 of Article 43 of the Land Code.

It is established that registration of the meeting of the land commission by means of audio and video recordings is carried out by local executive bodies of districts and cities of regional significance. The Land Commission complied with these requirements of the Land Code and held a meeting using audio and video recordings.

Deputy Prime Minister of the Republic of Kazakhstan - In accordance with paragraphs 2, 4 of the "Rules for the technical use of audio, video recording, audio, and video recording equipment for recording the course of a meeting of the land commission", approved by Order No. 490 of the Minister of Agriculture of the Republic of Kazakhstan dated December 4, 2018, during each meeting of the land commission, events aimed at the official Internet resources of local executive bodies of cities, audio and video recordings of the meeting of the land commission are being broadcast online.

The absence of an online broadcast meeting of the land commission by the defendant is justified by the lack of technical capabilities. This argument of the defendant has also not been refuted.

The untimeness of holding a meeting of the land commission in an online broadcast mode cannot serve as a basis for recognizing its decision as illegal. It is also unreasonable for the courts to conclude that the secretary of the commission violated the plaintiff's rights by not transferring them to the members of the land commission to study the documents after informing them of the name of each participant, the submitted applications and the contents of the documents.

According to paragraph 20 of the rules, the secretary of the land Commission publishes to the members of the land commission the name of each participant, the contents of his application and the tender proposal. These duties were performed by the Secretary of the Land Commission.

In accordance with paragraph 22 of the Rules, the land commission examines all applications for their compliance, completeness, errors in calculations, all signatures in the documents, and also verifies the correctness of the design as a whole, evaluates, compares applications by assigning points according to the business plan specified in the tender offer, including the projected volume of investments..

The winner is the participant who scored the highest score in accordance with paragraph 24 of these Rules. In case of equal scores of two or more bids for the proposed volume of attracted investments, the winner of the tender is determined by an open vote of the members of the commission.

In this case, the winner is the participant with the highest score and the highest number of votes of the commission members.

In contrast to the circumstances of the case, according to the report of the secretary of the Land Commission on the compliance, completeness, and reliability of the bids of the bidders, the members of the land commission were not questioned.

Each member of the land commission has the right to vote for which of the participants in the competition. As noted above, because the members of the commission did not vote.

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