On the recognition of illegal actions to cancel technical specifications, the recognition of illegal and the cancellation of the burdensome administrative act
No. 6001-25-00-6ap/475ot on June 23, 2025
Plaintiff: K.D. and J.J.
Respondent: JSC "A" (hereinafter referred to as the Company).
The subject of the dispute: on the recognition of illegal actions to cancel technical specifications, on the assignment of the obligation to issue technical specifications, on the recognition of illegal and cancellation of the burdensome administrative act
Review of the defendant's cassation complaint PLOT:
K.D. is the owner of a housing development located in the city on 23-16 street.
Under the contract dated August 3, 2019, the plaintiff's own funds were used to construct a heating main (2U 150 mm) along 23-16 Street in the amount of 64 million tenge.
Based on the written consent of K.D., the interested parties, that is, the neighbors M.K., G.A., T.Zh., Z.K., B.S. and Zh.Zh., received technical conditions from the Company for connection to the heating main in the period 2020-2022.
However, on August 22, 2023, the previously issued technical specifications for the Company were canceled due to the lack of consent of the interested parties.
Judicial acts:
1st instance: K.D.'s claim was denied.
The administrative claim of Zh.Zh. is partially satisfied.
It was decided to declare illegal the actions of the Company to cancel the issued technical specifications dated August 22, 2023 for No. 4310-11.
The claim for the obligation to issue technical specifications for connection to the heating main was refused.
Appeal: the decision of the court of first instance remains unchanged.
Cassation:
To change the decisions of the courts in this case.
Regarding the refusal to satisfy K.D.'s claim against the Company, the court's decision should be reversed with the adoption of a new decision on the satisfaction of the claim in this part.
To declare illegal and repeal the burdensome administrative act of the Company dated November 1, 2023 No. 34521 on forcing approval of technical conditions for connection to the heating main along Zh. (23-16) street of the city.
Conclusions:
In resolving the dispute and dismissing K.D.'s claim, the local courts indicated that the Company had provided a response within its competence and in accordance with the law, since by virtue of paragraph 12 of the Rules for the Use of Thermal Energy approved by Order No. 211 of the Minister of Energy of the Republic of Kazakhstan dated December 18, 2014 (hereinafter referred to as the Rules), sub-consumers, the heat-consuming installations of which will be connected to the heating networks of consumers, receive technical specifications from consumers and coordinate with the energy transmission
the (energy-producing) organization that issued the technical specifications to the consumer.
Therefore, it is allowed to issue technical specifications to sub-consumers by an energy transmission (energy producing) organization in agreement with the consumer, that is, the issuance of technical specifications will be carried out with the consent of all consumers.
The Judicial Board considered that the above-mentioned conclusions of the lower courts on the denial of K.D.'s claim did not comply with the norms of law and the circumstances of the case on the following grounds.
By virtue of paragraph 4 of Article 188 of the Civil Code, the exercise by the owner of his powers should not violate the rights and legally protected interests of other persons and the state. Violation of rights and legitimate interests can find expression, along with other forms, in the abuse by the owner of his monopoly or other dominant position.
According to paragraphs 5-7 of Article 8 of the Civil Code, 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 prohibited.
No one has the right to take advantage of their unscrupulous behavior.
In case of non–compliance with the requirements provided for in paragraphs 3 to 6 of this article, the court may refuse to protect the person's right.
It has been reliably established by the courts and is not disputed by the parties that, at the expense of the plaintiff's own funds, a heating main (400 meters) was built along 23-16 Street, which was subsequently connected to the central heating main pipe.
The heating line, built by K.D. at its own expense, meets all technical requirements, as of September 29, 2020, the Company accepted and launched it.
In such circumstances, and with the fact that the Company has confirmed the availability of technical capacity for heat load in the central heating system, the Company's actions do not meet the basic principles of good faith, reasonableness and fairness, and the moral principles of society as an institution of public relations.
The Judicial Board draws attention to the fact that receiving social benefits in the form of centralized heat supply, provided that the Applicant invests his own funds for the construction of a heating main and has the technical capability to do so, is the plaintiff's right, which cannot be limited by unfair actions of the defendant, whereas by virtue of Article 3 of the Law of the Republic Kazakhstan "On Electric Power Industry" one of the goals and objectives is to maximize consumer demand for energy.
It should also be noted that earlier, the Company, on the basis of the notary consent of K.D., issued to interested persons: M.K., G.A., T.J., Z.K., B.S., including J.J., technical specifications for connecting a heating main, put into effect at the expense of the plaintiff.
Whereas, as indicated above, the norm provided for in paragraph 12 of the Rules is not applicable in this case, since these Rules do not provide for the procedure for connecting to other types of heating networks.
Moreover, to date, the previously issued technical specifications for the above-mentioned stakeholders have not been canceled.
Consequently, in this case, the Company violated the principle of protecting the right to trust provided for in Article 13 of the CPC, according to which an administrative act, administrative action (inaction) is considered lawful and justified until the administrative body, official or court establishes the opposite in accordance with the legislation of the Republic of Kazakhstan.
Thus, the motives of the Company's refusal cannot limit the plaintiff in exercising his rights to the heating main built at her personal expense.
One of the tasks of administrative legal proceedings is the fair and impartial resolution of administrative cases in order to effectively protect the rights and legitimate interests of legal entities in public relations (Part two of Article 5 of the CPC).
Violation of the principles of administrative procedures, depending on its nature and materiality, entails the recognition of administrative acts, administrative actions (inaction) as illegal (part four of Article 6 of the CPC), and in accordance with Article 12 of the CPC, all doubts, contradictions and ambiguities must be interpreted in favor of the plaintiff.
By virtue of the fourth part of Article 84 of the CPC, an illegal burdensome administrative act is subject to mandatory cancellation.
The Judicial Board considered that during the issuance of judicial acts by the lower courts, errors were made in interpreting circumstances that were essential to the case, as well as the norms of substantive law were violated, and the conclusions of the local courts on the denial of K.D.'s claim were unlawful.
These violations are significant, entail an incorrect assessment of the circumstances of the case, and therefore serve as the basis for changing judicial acts regarding the refusal to satisfy the claim of K.D. with the issuance of a new decision on the satisfaction of the claim in this part.
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