On recognition as illegal and partial cancellation of the protocol decision, reinstatement in the queue for an apartment 

No.6001-23-00-6ap/1413 dated 10/23/2023

Plaintiff: M.U.

Defendant: State Institution "Housing Management"

The subject of the dispute: the recognition of the illegal and partial cancellation of the protocol decision, reinstatement in the queue to receive an apartment

Review of the defendant's cassation complaint PLOT:

Plaintiff M.U. since September 10, 2012, citizens of the Republic of Kazakhstan in need of housing have been registered in the category of single-parent family.

By the decision of the housing Commission under the Mayor's Office of the city dated June 20, 2022, the Plaintiff was removed from the register of citizens in need of housing from the communal housing stock on the grounds that over the past twelve months, the Plaintiff's total average monthly income for each family member exceeded 3.1 times the minimum subsistence level established for the relevant fiscal year by the law on the Republican the budget.

The plaintiff filed the above claim with the court, arguing that she had been unreasonably removed from the register of citizens in need of housing, the family's income had been exceeded due to her part-time work in recent months, and all the circumstances of the case had not been taken into account.

Judicial acts:

1st instance: the administrative claim was satisfied: paragraph 40 of Appendix No. 3 of the protocol decision of the Housing Commission under the Mayor's Office of the city dated June 20, 2022 No. 1/4 on removing M.U. from the queue for housing from the state housing fund was declared illegal and canceled; the State Institution "Housing Management" was charged with restoring the queue of M.U. for housing housing from the state housing stock since registration on September 10, 2012.

Appeal: the court's decision remains unchanged.

Cassation: judicial acts are upheld.

Conclusions: by virtue of subparagraph 2) of paragraph 1 of Article 67 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), dwellings from communal housing stock or dwellings rented by a local executive body in a private housing stock are provided for use by citizens of the Republic of Kazakhstan in need of housing and registered persons belonging to socially vulnerable strata. the population specified in the sub-paragraphs 1-1) 5), 7), 8), 10) and 11) Articles 68 of this Law, having a cumulative average monthly income for the last twelve months before applying for housing for each family member below 3.1 times the minimum subsistence level established for the relevant fiscal year by the law on the republican budget.

The grounds for de-registering citizens in need of housing from the state housing stock or housing rented by a local executive body from a private housing stock are provided for in article 73 of the Law, such grounds include:

if there are no grounds for providing housing from the state housing stock or housing rented by a local executive body from a private housing stock;

departure for permanent residence in another locality or termination of employment relations in a state-owned enterprise or government institution;

submission by a citizen of information that does not correspond to reality about the need for housing from the state housing stock or housing rented by a local executive body from a private housing stock;

obtaining a land plot and completing the construction of your own home or purchasing a home;

obtaining a rental home without the right of foreclosure.

According to part 2 of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in  

public law relations.

By virtue of the principle of proportionality provided for in Part 1 of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests of the participant in the administrative procedure and the company.

The court of first instance, guided by the above-mentioned norms, reasonably satisfied M.U.'s claim, recognizing it illegal, canceled paragraph 40 of appendix No. 3 of the protocol decision of the housing commission on the exclusion of the plaintiff from the queue for housing from the state housing fund, and also imposed on the defendant the obligation to restore the plaintiff in the queue for housing from the state housing fund from the moment of registration since it has been reliably established that the plaintiff, at the time of her placement in the queue as a citizen in need of housing, met the requirements of housing legislation, namely: she has been waiting in line for housing since 2012 (10 years), belongs to socially vulnerable segments of the population in the category of incomplete family, is a pensioner and a disabled person of the second group.

It was established that M.U. was removed from the relevant accounting, since over the past 12 months the cumulative average monthly income for each family member exceeded 3.1 times the subsistence minimum set for the corresponding fiscal year. Instead of the stipulated 115,905 tenge, the family income (excluding the unborn child at that time) amounted to 166,104 tenge.

At the same time, at the time of the plaintiff's exclusion from the housing queue (06/20/2022), her daughter, who was a family member, had no income due to the birth of a child (08/08/2022).

Taking into account the above circumstances, the court of first instance, observing a fair balance of interests of the participant in the administrative procedure and society, in this case, the plaintiff, belonging to socially vulnerable segments of the population, reasonably and fairly satisfied the claim of M.U. in full.

The appellate judicial board reasonably agreed with the above-mentioned conclusions of the court of first instance, which upheld the court's decision.

Since the circumstances of the case have been established correctly by the local courts, and the norms of substantive and procedural law have been applied correctly, no grounds have been established for the cancellation or amendment of the contested judicial acts.

The law does not provide for a service for making changes to the registration data of a commercial legal entity when changing the membership of a cooperative, therefore, the NAO State Corporation had no right to make changes to change the membership of the SEC

No. 6001-23-00-6ap/1375 dated 11/9/2023

Plaintiff: PC "SEC" (hereinafter – SEC)

Defendant: NAO "Government for Citizens State Corporation" (hereinafter – NAO State Corporation)

Interested person: Sh.T.

The subject of the dispute: on challenging the actions of receiving, registering and resolving the substance of the notification and minutes of the constituent assembly with the obligation to restore information about the legal entity to its original position

Review of the cassation appeal of the person concerned PLOT:

On March 3, 2017, SEC was registered as a legal entity, a small business entity. At the time of state registration, the head was Sh.T, and the founders are Sh.T., V.S. and LLP "D".

On August 1, 2019, to the Department of Registration and Land Administration of the district

The cadastre of the NAO branch in East Kazakhstan region purposely received a notification signed by the head of SEC Sh.T. and the minutes of the constituent assembly dated July 23, 2019 on the withdrawal of SEC LLP "D" and acceptance as founder of M.O.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision was overturned, and a new decision was made to satisfy the claim.

Resolved:  to declare illegal and cancel actions  NAO "Government for Citizens State Corporation" on the reception, registration and substantive resolution of Notification No. 1 dated August 1, 2019 and Protocol No. 3 of the Constituent Assembly dated July 23, 2019.

To assign to the NAO the obligation to bring information about the legal entity, the SPK B-Sh production cooperative, to its original position, corresponding to July 31, 2019.

Cassation: the decision of the judicial board is upheld.

Conclusions: by resolving the dispute and rejecting the claim, the court of first instance concluded that the actions of the registering authority were lawful.

The Court of Appeal did not agree with the above conclusions of the court of first instance and, making a new decision on the satisfaction of the claim in the case, pointed out that due to improper performance by an employee of the State Corporation of the obligation to identify the recipient of the NAO State Corporation, SEC documents were accepted from another person, whereas in fact SEC did not apply for this service.

The NAO State Corporation, having accepted documents not from the head of SEC S.T., not authorized by him, having entered information about the composition of the founders of SEC without his knowledge, violated the legal capacity of the legal entity.

The judicial Board agrees with the conclusions of the court of appeal, and finds the arguments of the complaint untenable due to the following.

According to paragraph 3 of Article 6 of the Law "On Identity Documents", civil law transactions are carried out using identity documents.

When providing public services through a State Corporation, the identity of the service recipient is identified in accordance with paragraph 3 of Article 20 of the Law "On Public Services" by employees of the State Corporation.

According to paragraph 2 of article 20 of the Law on Public Services, an employee of a State Corporation is obliged to accept a service recipient's application if he has a complete set of documents according to the list provided for by the standard of public services, whereas there was no such standard of public services.

Thus, the above-mentioned law does not provide for the service of making changes to the registration data of a commercial legal entity when the membership of a cooperative changes, as of August 1, 2019, and currently, therefore, the NAO State Corporation was not entitled to make changes to the membership of the SEC.

 The cadastre of the NAO branch in East Kazakhstan region purposely received a notification signed by the head of SEC Sh.T. and the minutes of the constituent assembly dated July 23, 2019 on the withdrawal of SEC LLP "D" and acceptance as founder of M.O.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision was overturned, and a new decision was made to satisfy the claim.

Resolved:  to declare illegal and cancel actions  NAO "Government for Citizens State Corporation" on the reception, registration and substantive resolution of Notification No. 1 dated August 1, 2019 and Protocol No. 3 of the Constituent Assembly dated July 23, 2019.

To assign to the NAO the obligation to bring information about the legal entity, the SPK B-Sh production cooperative, to the original position corresponding to July 31, 2019.

Cassation: the decision of the judicial board is upheld.

Conclusions: by resolving the dispute and rejecting the claim, the court of first instance concluded that the actions of the registering authority were lawful.

The Court of Appeal did not agree with the above conclusions of the court of first instance and, making a new decision on the satisfaction of the claim in the case, pointed out that due to improper performance by an employee of the State Corporation of the obligation to identify the recipient of the NAO State Corporation, SEC documents were accepted from another person, whereas in fact SEC did not apply for this service.

The NAO State Corporation, having accepted documents not from the head of SEC S.T., not authorized by him, having entered information about the composition of the founders of SEC without his knowledge, violated the legal capacity of the legal entity.

The judicial Board agrees with the conclusions of the court of appeal, and finds the arguments of the complaint untenable due to the following.

According to paragraph 3 of Article 6 of the Law "On Identity Documents", civil law transactions are carried out using identity documents.

When providing public services through a State Corporation, the identity of the service recipient is identified in accordance with paragraph 3 of Article 20 of the Law "On Public Services" by employees of the State Corporation.

According to paragraph 2 of article 20 of the Law on Public Services, an employee of a State Corporation is obliged to accept a service recipient's application if he has a complete set of documents according to the list provided for by the standard of public services, whereas there was no such standard of public services.

Thus, the above-mentioned law does not provide for the service of making changes to the registration data of a commercial legal entity when the membership of a cooperative changes, as of August 1, 2019, and currently, therefore, the NAO State Corporation was not entitled to make changes to the membership of the SEC.

It is rightfully noted that the conclusions of the handwriting examinations No. 2128 dated November 9, 2021, No. 1514 dated September 1, 2020 established that the signatures on behalf of Sh.T. in the notification dated August 1, 2019, in the minutes of the general meeting dated July 23, 2019, were not executed by Sh.T., but by another person imitating his authentic signatures.

Consequently, the conclusion of the court of appeal on the satisfaction of the claim is legitimate and justified.

The arguments given in the cassation appeal of the representative of the person concerned are untenable, since the court of appeal has given a proper legal assessment of the circumstances of the dispute, and the disagreement of the party with the conclusions of the court, consistent with the law and the objective circumstances of the case, is not a reason for the cancellation of the contested judicial act.

The court of appeal established the circumstances of the case correctly, the norms of substantive and procedural law were applied correctly, and the collegium does not see any legal grounds for restoring the decision of the court of first instance.

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