Postponement of execution of a court decision | Installment plan for execution of a judicial act | Cancellation of a court ruling

The judicial Board for civil cases of the Almaty City Court with the participation of a representative of the plaintiff – D.A., a representative of the defendant – S.A.S., representatives of third parties – Sarzhanova G.T., K.B.E., K.S.O., B.E.A., having considered in open court in the premises of the Almaty City Court the civil case on the claim of the KSU "Management the State Architectural and Construction Control of the city of Almaty" to the International Trade Center "Zhibek Zholy" LLP, to third parties who do not declare independent claims on the subject of the dispute: KSU "Department of Architecture and Urban Planning of Almaty city"; KSU "Department for control over the use and protection of lands in Almaty", IP Astrakhantseva G.P., IP Baigaraev A.K., IP Buzdaeva B.B., IP Valieva A.K., IP Elibayeva M.E., IP Zheleznyakova E.A., IP Kerimbekov K.A., IP Lirov Yesar, IP Makhatov B.B., IP Mustafa represented by Abdul Halim Parvash, IP Odamanova G. Zh., IP Reut Yu.Y., IP Saparkhanov A.U., IP STO at Ermakhan represented by Burisbaev Ermakhan Anvarbekovich, IP Toktasyn M.K., IP Usenov A.K., IP Usmanov T.A., IP Ustenov M.M., IP Chabiev K.K., IP Zheng Yu.A. on recognition of unauthorized construction and coercion to demolish illegally erected non-residential premises, received on the defendant's appeal against the decision of the specialized interdistrict Economic Court of Almaty dated October 26, 2018. The plaintiff of KSU "Department of State Architectural Control of Almaty city" appealed to the court with the above claim, arguing that during the architectural and construction survey of the land owned by the defendant "International Trade Center "Zhibek Zholy" LLP on the basis of the act on the right of private ownership of the land No. 0110809 dated 05/18/2015, with an area of 0.0547 ha, cadastral number 20-321-057-341, with the intended purpose "for maintenance of the facility – 517/6 Tashkent Street, Alatau district, Almaty, the Department for Control of redevelopment and reconstruction of residential and non-residential premises of the KSU "Department of State Architectural Control of Almaty" revealed violations of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan."

Postponement of execution of a court decision | Installment plan for execution of a judicial act | Cancellation of a court ruling

In this regard, they were issued an order No. 02204 dated 11.12.2015 on the elimination of violations of the law with a deadline until 28.12.2015. On 26.01.2016, during an unscheduled inspection, it was established that the defendant had not fulfilled the above-mentioned order. In this regard, for violations committed in the field of architectural, urban planning and construction activities, by resolutions of the KSU "Department of State Architectural and Construction Control of Almaty city" No. 180, No. 180/1, No. 180/2 dated 02/08/2016, the defendant was brought to administrative responsibility under Part 1 of art.316, art.321, art.323 of the Administrative Code of the Republic of Kazakhstan and subjected to administrative penalties in the form of fines in the amounts of 380 MCI, 300 MCI and 50 MCI, respectively. After the deadline set in the order for its execution, the defendant did not take any measures to eliminate the violations, as a result of which, by a court decision dated 22.02.2016, the defendant was brought to administrative responsibility under Part 3 of Article 462 of the Administrative Code of the Republic of Kazakhstan and subjected to administrative penalties in the form of a fine of 200 MCI. In addition, the defendant's land plot is partially located within the red line according to the detailed planning project (RAP) for the annexation of the territories of the villages of Algabas, Terekty, approved by the resolution of the Akimat of Almaty No. 1/26 dated January 26, 2016, in the water protection zone of the river T... and the strip of the river K...., on the territory of the prepared material for the RCD commission from 12/14/2012 – KSU "Management of highways of Almaty", on engineering networks, and construction on it was carried out in violation of the red line, which contradicts the requirements of clause 7.1. SNiP RK "Urban planning.

Planning and building of urban and rural settlements". Asked to recognize illegally built trading market of metal containers in 10 rows in two levels size in terms of 198×67,1 m consisting of non-residential premises: No. 1 S═90 m2, №2, S═336 m2, №3, S═126 m2, №4 S═39 m2, №5 S═182 m2, №6 S═176 m2, №7 S═187 m2, No. 8 S═418 m2, №9 S═90 m2, №10 S═35 m2 No. 11 S═75 m2, No. 12 S═72 m2, No. 13 S═72 m2, №14 S═144 m2, №15 S═72 m2, №16 S═192 m2, No. 17 S═168 m2, No. 18 S═126 m2, No. 19 S═42 m2, №20 S═84 m2, No. 21 S═78 m2, №22 S═56 m2, No. 23 S═210 m2 two-storeyed premises No. 24 S═96 m2 and No. 25-39 S═576 m2 of 15, non-residential premises made of metal construction No. 40 S═860 m2, located at 517/6 Tashkent Street, Alatau district, Almaty, and demolished at the expense of the defendant, Zhibek Zholy International Trade Center LLP. By the decision of the specialized interdistrict Economic Court of Almaty dated October 26, 2018, the claims of the KSU "Department of State Architectural and Construction Control of Almaty City" against the defendant, Zhibek Zholy International Trade Center LLP, regarding recognition of unauthorized construction and coercion to demolish illegally erected non-residential premises were partially satisfied. Agreed: to recognize unauthorized buildings illegally constructed non-residential premises №1 S═90 m2, №2, S═336 m2, №3, S═126 m2, №4 S═39 m2, №5 S═182 m2, №6 S═176 m2, №7 S═187 m2, No. 8 S═418 m2, №9 S═90 m2, No. 12 S═72 m2, No. 13 S═72 m2, №14 S═144 m2, №15 S═72 m2 No. 16 S═192 m2, No. 17 S═168 m2, No. 18 S═126 m2, No. 19 S═42 m2, №20 S═84 m2, No. 21 S═78 m2, №22 S═56 m2, No. 23 S═210 m2, №25, №26, №27, №28, №29, №30, №31, №32, №33, №34, №35, №36, №37, №38, №39 S═576 m2, №40 S═860 m2, located on address: Almaty city, Alatau district, Tashkent street, house 517/6. Be required to produce the demolition of illegally constructed non-residential premises №1 S═90 m2, №2, S═336 m2, №3, S═126 m2, №4 S═39 m2, №5 S═182 m2, №6 S═176 m2, №7 S═187 m2, No. 8 S═418 m2, №9 S═90 m2, No. 12 S═72 m2, No. 13 S═72 m2, №14 S═144 m2, №15 S═72 m2 No. 16 S═192 m2, No. 17 S═168 m2, No. 18 S═126 m2, No. 19 S═42 m2, №20 S═84 m2, No. 21 S═78 m2, №22 S═56 m2, No. 23 S═210 m2, №25, №26, №27, №28, №29, №30, №31, №32, №33, №34, №35, №36, №37, №38, №39 S═576 m2, №40 S═860 m2, located on address: Almaty city, Alatau district, Tashkent street, house 517/6, at the expense of individuals, which has made them. The rest of the claims were denied.

In case of non-fulfillment of the court's decision regarding the demolition of illegally erected non-residential premises by the persons who erected them, the plaintiff of the KSU "Department of State Architectural and Construction Control of Almaty City" has the right to perform these actions independently with recovery of expenses incurred from the defendant "International Trade Center "Zhibek Zholy" LLP. Court costs in the amount of 93,795 tenge were collected from the International Trade Center "Zhibek Zholy" LLP to the state revenue. The defendant, having disagreed with the court's decision, requests in the appeal to reverse the court's decision and make a new decision to dismiss the claim in full. The complaint indicates violations by the court of the norms of substantive and procedural law. Representatives of other third parties did not attend the board meeting, although they were duly notified of the time and place of the case. In accordance with the requirements of art.418 of the CPC RK, the failure to attend a court hearing of any of the persons involved in the case, duly notified of the time and place of the case, is not an obstacle to the proceedings. Having heard the explanation of the plaintiff's representative, who supported the arguments of the appeal, the objection of the plaintiff's representative, having examined the arguments of the complaint, having studied the case materials, the board comes to the following.

Significant violations that allow judicial acts that have not entered into legal force to be reviewed on appeal include violations of procedural law listed in art.427 of the CPC. Incorrect application of substantive law norms can be attributed to a material violation only if, as a result, the court incorrectly resolved the case. Such violations were committed during the consideration of the case by the court of first instance. The case materials established that the defendant, Zhibek Zholy International Trade Center LLP, based on the act of private ownership of the land plot No. 0110809 dated 05/18/2015, with an area of 0.0547 hectares, cadastral number 20-321-057-341, with the intended purpose "for servicing the shopping center facility" at the address: Almaty city, Alatau district, 517/6 Tashkent Street, is the owner. On the basis of land lease agreements to third parties: IP Astrakhantseva G.P., IP Baigaraev A.K., IP Buzdaeva B.B., IP Valieva A.K., IP Elibayeva M.E., IP Zheleznyakova E.A., IP Kerimbekov K.A., IP Lirov Yesar, IP Makhatov B.B., IP Mustafa represented by Abdul Halim Parvash, IP Odamanova G. Zh., IP Reut Yu.Y., IP Saparkhanov A.U., IP STO at Ermakhan represented by Burisbaev Ermakhan Anvarbekovich, IP Toktasyn M.K., IP Usenov A.K., IP Usmanov T.A., IP Ustenov M.M., IP Chabiev K.K., IP Zheng Yu.A., land plots have been transferred for temporary use without the right to purchase for the installation of facilities and activities not prohibited by the legislation of the Republic. Kazakhstan.

Postponement of execution of a court decision | Installment plan for execution of a judicial act | Cancellation of a court ruling

The objects include: a container, a kiosk, a car counter, a portable counter, tents and other portable structures installed on the leased territory. It follows from the statement of claim that the defendant economically, without appropriate permits, carried out the construction of a shopping market from metal containers in ten rows on two levels measuring 198x67.1 meters in plan, between which buildings were erected in the form of a canopy made of a metal frame with a span of 7.2 meters, covered with galvanized metal trapezoidal sheet and transparent polycarbonate, also, construction of 23 non-residential buildings of various sizes, There are 15 two-storey premises and non-residential premises made of metal construction at the stage of metal frame construction, which contradicts the requirements of Articles 12, 27-2 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan". The Court of First Instance found that these buildings and premises were erected by third parties involved in the case. However, these persons were not properly notified of the time and place of the case, copies of the statement of claim were not served to them, and their rights and obligations were not clarified. In accordance with paragraph 2, paragraph 4, art. 427 of the CPC RK, the decision of the court of first instance is subject to cancellation in any case if the case is considered by the court in the absence of any of the persons participating in the case who were not properly notified of the time and place of the court session. In such circumstances, the board considers it necessary to cancel the court's decision and, in accordance with paragraph 5 of the said article, proceed to the consideration of the case according to the rules of procedure in the court of first instance. In addition, the court of first instance grossly violated the requirements of Articles 223, 226 of the CPC RK. Thus, at the request of a representative of a third party, the minutes of the court session of the court of first instance were examined at the court session of the appellate instance. It is established that the operative part of the decision of the court of first instance, attached to the case, does not correspond to the operative part of the court's decision announced by the court. According to paragraph 7 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", in accordance with Article 226 of the CPC, when resolving a dispute on the merits, the court makes a decision consisting of introductory, descriptive, motivational and resolute parts, the content of which must meet the requirements provided for in parts three, four, the fifth and sixth of this article.

In accordance with the third part of Article 223 of the CPC, the decision is made immediately after the hearing of the case. The drafting of a reasoned decision may be postponed, but the court must announce the operative part of the decision at the same meeting in which the case ended. The announced operative part of the decision must be signed by the judge and attached to the case. After the announcement, the judge orally explains the substance, motives and legal consequences of the decision, which is noted in the minutes of the court session. Thus, the court of first instance committed gross violations of the civil procedure legislation and the principles of civil procedure, and is an indisputable reason for the cancellation of the court's decision. Considering the above, the board considers it necessary to cancel the court's decision and proceed to the consideration of the case according to the rules of procedure in the court of first instance. 423, paragraphs 1 424, 425, 426, 427 of the CPC, the judicial board DETERMINED: The decision of the specialized Interdistrict Economic Court of Almaty dated October 26, 2018 in the present case should be reversed. Proceed to the consideration of the present case according to the rules of procedure in the court of first instance

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