Statement of claim to the Specialized Interdistrict Administrative Court on contesting and coercion
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To the Specialized Interdistrict Administrative Court of Almaty
85 Karasai Batyr Street, Almaly district, 050040, Almaty.
+7 727 333-10-25; +7 775 709-32-45
727-0316@sud.kz
Plaintiff: B.A.M.
IIN ///////////
Karasaysky district, village....., ul......D
+7.....................
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 971 78 58; +7 708 971 78 58.
Defendant: State institution "Department of Housing and Communal Services,
passenger transport, highways and housing inspection of Karasai district" of Almaty region
Kaskelen, 213 Ablaikhan street, office 1 tel: 8-+72771-29930
Statement of claim
on challenging and coercion
A.M. (Hereinafter Referred to as the Plaintiff) Born on 08/10/1964, he is a disabled person of the third group and an internationalist soldier of the Democratic Republic of Afghanistan from 01/17/1981 to 05/27/1981.
After collecting and handing over all the necessary documents requested by the State Department of Housing and Communal Services (hereinafter referred to as the Defendant), the plaintiff was placed on the housing waiting list as socially vulnerable segments of the population, namely, as equivalent to "Veterans of the Great Patriotic War" on August 14, 2020. He has been in line at No. 14 for a long time and has not moved since 2020. Subsequently, in order to resolve this issue, the Plaintiff appealed to the Akimat on March 20, 2023 in accordance with art. 22 of the CPC RK.
Subsequently, in response to our appeal on 04/12/2023, the Defendant informed that the Plaintiff., was registered as a citizen of the Republic of Kazakhstan, in need of housing from the communal housing stock or housing rented by a local executive body in a private housing stock since August 14, 2020 in the category "Veterans of the Great Patriotic War" and today the day in the queue for housing in this category is at No. 7.
In connection with the letter received from the Committee on Construction and Housing and Communal Services of the Ministry of Industry and Infrastructural Development of the Republic of Kazakhstan, there is currently a waiting list for housing from the communal housing stock in the Unified National Waiting List System (hereinafter referred to as the System). It consists of 87 people in the category of "Veterans of the Great Patriotic War." The Great Patriotic War"
Based on the data obtained from the System, an analysis was carried out, which revealed that the Plaintiff was mistakenly registered in the category of "Veterans of the Great Patriotic War" (incorrect identification of the category). That is, it does not match the category. And it is necessary to apply for removal from the category of "Veterans of the Great Patriotic War" and stand in the category Veterans who have equal benefits to veterans of the Great Patriotic War.
In this regard, you need to come to Kaskelen, 213 Ablaikhan Street, office 1 tel: 8-72771-29930.
Without agreeing with the above-mentioned arguments of the Defendant, the Plaintiff sent a Pre-trial claim to the Defendant dated 04/12/2023 with a proposal for a peaceful settlement of the dispute in accordance with Articles 152 and 279 of the CPC RK and Article 402 of the Civil Code of the Republic of Kazakhstan, providing that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure have not been lost and preserved. and
Thus, we do not agree on the need to re-submit documents for another category, as we believe that in this case there may be a negligent attitude towards their official duties by employees of the authorized body responsible for registrations who made a mistake. Accordingly, we allow the Defendant to correct the error without changing the priority for obtaining housing or placing it on the housing order, taking into account the principle of fairness and reasonableness by restoring the violated rights of the Plaintiff.
According to paragraph 1, Article 9 of the CPC, it is provided that everyone has the right, in accordance with the procedure established by this Code, to apply to an administrative body, to an official or to a court for protection of violated or disputed rights, freedoms or legitimate interests. The waiver of the right to appeal to an administrative body, an official, or a court is invalid.
On May 12, 2023, we received a Response from the Defendant stating that, in accordance with paragraph 4 of Part 1 of Article 100 of the Code, our Complaint was dismissed by the Defendant's decision on the following grounds:
"The State Institution "Department of Housing and Communal Services, Passenger Transport, highways and Housing Inspection of the Karasai district", having considered the pre-trial claim regarding the queue of gr. B.A.M. housing from the communal housing stock or housing rented by a local executive body in a private housing stock (hereinafter referred to as the Housing Queue), informs the following. B.A. M. (hereinafter referred to as the Applicant) He was put on the housing waiting list according to the Applicant's application. Since 2022, the SHANYRAQ database has been operating and there is no "Category Replacement" function in this database, therefore it is not possible to transfer from the "Veterans of the Great Patriotic War" category to the "Socially vulnerable segments of the population" category.
48 (forty-eight) citizens of the Republic of Kazakhstan were assigned to the category of "Socially vulnerable segments of the population" as "Veterans equated with veterans of the Great Patriotic War", and 8 (eight) citizens of the Republic were assigned to the category of "Veterans of the Great Patriotic War" as "Veterans equated with veterans of the Great Patriotic War". Kazakhstan, respectively, the total number of Veterans on the housing waiting list, equated to veterans of the Great Patriotic War, is 56 (fifty-six) citizens of the Republic of Kazakhstan.
If the issue is resolved in a positive way in the interests of the Applicant, when allocating housing to the specified category, the Applicant's queue will be at No. 46. Based on the above, it is not possible to leave the queue for the Applicant's housing unchanged, we also suggest that you withdraw from the queue and reapply for the category of "Socially vulnerable segments of the population" as "Veterans equated to veterans of the Great Patriotic War".
By virtue of articles 28, 29, 127, 138 of the CPC, participants in administrative proceedings bear the risk of procedural consequences depending on the performance or non-performance of their procedural duties.
Dear Court, we disagree with the Defendant's arguments about the need to de-register and re-submit documents for another category, as we believe that in this case there may be a negligent attitude towards their official duties by employees of the authorized body responsible for registrations who made a mistake. Accordingly, we allow the Defendant to correct the error without changing the priority for obtaining housing or placing it on the housing order, taking into account the principle of fairness and reasonableness by restoring the violated rights of the Plaintiff.
Based on the tasks of administrative proceedings to resolve administrative cases in a timely manner in order to effectively protect the violated rights and legitimate interests of persons and promote the rule of law in public relations, we consider it necessary to respond to this fact by imposing a monetary penalty.
In accordance with Article 127 of the CPC, the court imposes a monetary penalty in the cases established by this Code. A monetary penalty is imposed on an individual, an official, a legal entity or its representative in the amount of ten to one hundred monthly calculation indices. The court issues a ruling on the imposition of a monetary penalty, a copy of which is handed over to the person on whom the monetary penalty is imposed.
The right of the court to impose a monetary penalty upon establishing the facts of non-fulfillment of procedural duties follows from the principle of independence and independence of the judiciary and serves as one of the manifestations of the discretionary powers of the court necessary for the administration of justice in the context of administrative justice. Similarly, the imposition of a monetary penalty also contributes to the realization of such a task of judicial proceedings as the formation of respect for the law and the court (part 3 of Article 1 of the CPC and Article 4 of the Civil Procedure Code of the Republic of Kazakhstan).
Article 132. In case of violation of the rights, freedoms and legitimate interests of the plaintiff by the burdensome administrative act, he has the right to file a challenge claim demanding to cancel the administrative act in full or in any part thereof.
According to Article 133 of the Administrative Procedure and Procedural Code of the Republic of Kazakhstan,"which stipulates that in a claim for coercion, the plaintiff may demand to adopt a favorable administrative act, the adoption of which was refused or not accepted due to the inaction of an administrative body or official.
In accordance with art. 136. Claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review. If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
According to clause 13 of Article 616 of the Tax Code of the Republic of Kazakhstan, persons with disabilities are exempt from paying state duty in courts.
Based on the above and in accordance with Article 133 of the Code of the Republic of Kazakhstan on "Administrative Procedural Code of the Republic of Kazakhstan",
I ask the Court:
The decision of the Defendant "GU "Department of Housing and Communal Services, passenger transport, highways and Housing inspection of Karasai district" dated May 12, 2023 – to cancel;
To force the Defendant to adopt a favorable administrative act on registration as a citizen of the Republic of Kazakhstan who are in need of housing from a communal housing stock or a dwelling rented by a local executive body in a private housing stock for housing from August 14, 2020 in the SHANYRAQ database in the category of "Socially vulnerable segments of the population" as "Veterans with equal benefits to the veterans of the Great Patriotic War";
To impose a monetary penalty on an official of the management of the State Institution "Department of Housing and Communal Services, Passenger Transport, highways and Housing Inspection of the Karasai district".
With respect,
Lawyer: ____________/Sarzhanov G.T.
"_____" ___________ 2023 the year
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you with legal advice and drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases disputes Defense Arbitration Law Company Kazakhstan Law Firm Court cases
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
