Recognition as illegal and cancellation of the order on elimination of violations
No. 6001-22-00-6ap/2431 dated 05/18/2023
Plaintiff: LLP "A"
Defendant: State Institution "Management of control and quality of the urban environment"
Interested party: Kazakhstan Scientific Research and Design and Survey Institute of Fuel and Energy Systems Energia JSC (hereinafter referred to as the Company)
The subject of the dispute: on recognition as illegal and cancellation of the regulation on the elimination of violations dated 03.03.2022
Review of the cassation appeal of an interested person by an interested person
PLOT:
On 24.05.2010, the State Institution "Management of the Fuel and Energy Complex of Municipal Utilities of the City" (UTEC, the customer) and the Company (contractor) concluded an agreement on public procurement of design and survey work "Construction of a 220 kV overhead line ring with supporting substations and reconstruction of a 220 kV ORU at a 500 kV CCGPP" (hereinafter referred to as the facility).
Based on the project documentation developed by the contractor, Batys substation, Dostyk substation and Shygys substation were built in the city, which were put into operation and transferred to the operating organization, A-REC JSC. Subsidence and deformation of floors in process rooms were recorded during operation at substations.
The customer has entrusted the determination of the causes of the drawdown to the expert organization of LLP "A" according to the agreement dated 06/28/2018.
In accordance with the technical conclusion of LLP "A" projects of PS "Batys", PS "Dostyk" and PS "Shygys" identified deficiencies in separate design solutions that affected the technical condition of the facilities during the operational period.
Earlier, a similar technical opinion was given by Expert Center K LLP.
UTEC has filed a civil lawsuit against the Company for the obligation to eliminate deficiencies.
By the decision of the judicial board for civil cases of the city court on 02.10.2019, the claim was satisfied. It was decided to entrust the Company with eliminating deficiencies in the project documentation for the facility by correcting design estimates (working documentation, working drawings, estimates) in terms of strengthening the floor structures in the technological premises of the Batys substation, Dostyk substation, and Shygys substation by adopting technical solutions for sanitation and water supply at substation buildings.
On 04/01/2021, the Company applied to the State Institution "Management of Quality Control of the Urban Environment of the city" (hereinafter referred to as the Management) about violations contained in the technical conclusions, namely, the lack of reflection of the factual condition of the soil, made by experts of LLP "Expertscenter "K" and LLP "A".
The submission of the Office based on the results of consideration of the appeal dated 05/31/2021, which entered into force on 12/23/2021 by the decision of the SMACot on 10/21/2021, was declared illegal and cancelled at the request of LLP "A".
According to the repeated statement of the Company dated 02.12.2021, the Management in relation to LLP "A" conducted an unscheduled inspection for compliance with legislation in the field of architectural, urban planning and construction activities.
Based on the results of the inspection on 03.03.2022, an act was drawn up and a pitiable order was issued to eliminate violations identified in the technical conclusions.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
The courts, when satisfying the claim, legitimately proceeded from the fact that the validity of the technical conclusion of LLP "A" had previously been the subject of judicial proceedings in other cases.
According to the second part of Article 76 of the CPC, the second part of Article 119 of the APP, the circumstances relevant to the case, established by the above-mentioned judicial acts, are not subject to repeated investigation and proof.
In accordance with part two of Article 21 of the CPC, part two of Article 18 of the CPC, judicial acts that have entered into force are binding on all state bodies, legal entities, officials, individuals and are subject to execution throughout the territory of the Republic of Kazakhstan.
By virtue of Article 8 of the Civil Code, citizens and legal entities must act in good faith, reasonably and diligently in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics. 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 not allowed. No one has the right to take advantage of their unscrupulous behavior. In case of non-compliance with these requirements, the court may refuse to protect a person's right.
The Judicial Board, like the courts of previous instances, notes that on the part of the interested party of the Company and the defendant, there is an abuse of law and unfair behavior.
By the resolution of the SKGD dated 02.10.2019, the technical conclusion "A" was given a legal assessment as evidence in the case. Accordingly, the dispute about the shortcomings in the design documentation of KazNIPIITES Energia JSC was exhausted and the validity of the technical conclusion was beyond further discussion.
The specified judicial act has not been executed by the Company until now.
The Company has launched an unjustified appeal procedure against the technical conclusion after the court decision.
Ignoring the resolution of the City Council of the City Council of 02.10.2019, the Management, at the request of the Company, illegally submitted a submission to LLP "A" about the unreasonableness of the technical conclusion.
Also, despite the decision of the SMAS of the city dated 10/21/2021 (declaring illegal and canceling the submission), the Department again issued a decree on the unreasonableness of the technical conclusion.
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