On the recognition as illegal and cancellation of the act on detected violations during the inspection of the accounting unit, as well as notifications on the accrual of the amount for detected violations of the sanitation service
No. 6001-22-00-6ap/2011 dated 03/20/2023
Plaintiff: "S" LLP
Defendant: GKP na PHV "Almaty su" Department of Energy Efficiency and infrastructural development of the city of Almaty"
The subject of the dispute: on the recognition of illegal and cancellation of the act on detected violations during the inspection of the accounting unit, as well as notifications of the accrual of the amount for detected violations of the sanitation service
Review of the defendant's cassation complaint PLOT:
On January 25, 2018, the parties signed an agreement for the provision of water supply and wastewater disposal services, as well as an additional agreement to this agreement, with the replacement of its validity period from indefinite until January 25, 2019 due to the absence of ADB on the water supply network.
The defendant's employees drew up an act on violations detected during the inspection of the plaintiff's accounting unit, which indicated the discovery of a storm drain d100 mm into the city sewer network, that is, the engineer detected a violation – discharge of stormwater d-100 mm, in connection with which a calculation was made for 31 days along the pipeline section d-100 mm, the amount was calculated -.... tenge.
On December 2021, the defendant sent a corresponding notification to the plaintiff.
The partnership, disagreeing with the act and the notification, appealed to the court with this claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are cancelled, the claim is returned.
Conclusions:
According to the second part of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code.
It has been established that the parties have a signed agreement dated January 25, 2018, the subject of which is the provision of water supply and wastewater disposal services.
The Judicial Board comes to the conclusion that the act of violations revealed by the plaintiff during the inspection of the accounting unit does not entail legal consequences for him in the form of violations of rights, freedoms and legitimate interests, therefore, it is not an onerous administrative act.
The dispute that has arisen between the plaintiff and the defendant arises from contractual legal relations and does not relate to public law disputes, therefore this dispute is not subject to consideration in administrative proceedings.
In such circumstances, judicial acts of local courts are subject to cancellation with the return of the administrative claim of the Partnership on the basis of subparagraph 11) of the second part of Article 138 of the CPC.
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