To oblige the State Expert Examination to annul the conclusion of a comprehensive non-departmental examination of the working draft
No.6001-23-00-6ap/1267 dated 11/23/2023
Plaintiff: District Prosecutor in the interests of the state
The defendants: KSU "Department of Urban Planning and Urban Studies" (UGPU), KSU "Department of Urban Planning Control" (UGC), RSE "Gosexpertiza"
Interested party: BM LLP
The subject of the dispute:
1) to recognize the actions of the UGPU in issuing architectural and planning assignment No. 788 dated March 26, 20219 (APZ) and approving a draft design for the construction of an administrative building dated January 23, 2020
No. KZ26VUA00171301, issued by A.G., illegal;
2) oblige the UGC to exclude from the register the notification of the start of construction and installation works dated October 19, 2020 No. KZ59REA00196038 (notification of the CMP);
3) oblige RSE Gosexpertiza to cancel the conclusion of the comprehensive non-departmental expert examination of the working draft dated July 23, 2020 No. 06- 0177/20
Review of the cassation appeal of the person concerned PLOT:
A.G. is the owner of a land plot with cadastral number 1, with an area of 0.01867 ha at the address: A. city, A. district, Prospect NB, plot 29/1.
On March 26, 2019, she was granted a permit for the design of the construction of an administrative building – a medical center (Facility).
On October 14, 2019, A.G. signed an agreement with BM LLP (LLP) on joint activities to combine the conditions for the construction of the above-mentioned facility.
On January 23 and July 23, 2020, the approval of the preliminary design and the positive conclusion of the RSE "Gosexpertiza for the Eastern region" were received, respectively.
On October 2 and 7, 2020, contracts were signed for the provision of copyright supervision and technical supervision services.
On October 19, 2020, a notification was sent about the CMP, which was included in the state register on October 20, 2020.
In December 2020, according to a complaint from residents of nearby houses of the Russian State University
The Committee for Construction and Housing and Communal Services of the Ministry of Industry and Infrastructure Development of the Republic of Kazakhstan conducted an unscheduled inspection.
As a result, an order was issued to the UGPU to eliminate violations dated December 15, 2020, on the basis of which the APZ and the approval of the draft design were withdrawn. These actions were challenged by A.G. and LLP
"BM" in court proceedings.
I.
On March 4, 2021, by the decision of the district court No. 2 (court No. 2), the claim of A.G. and LLP
"BM" on challenging the actions to revoke the APZ and approve the draft design was partially satisfied. It is essentially decided:
to recognize the actions of the UGPU on the cancellation of the APZ and approval
The draft design is illegal;
to impose the obligation on the UGPU, within one month from the date of entry into force of the decision, to eliminate the violation in full and restore the violated rights, freedoms and legitimate interests of the applicants.;
to recognize as illegal the actions of the UGC to exclude the notification of the SMR from the notification register;
assign the obligation to the UGC to include the notification of the CMP in the notification register within one month from the date of entry into force of the decision.
On May 25, 2021, the Judicial Board for Civil Cases (SKGD)
I left court decision No. 2 unchanged.
On July 12, 2021, a judge of the Judicial Board for Civil Cases of the Supreme Court of the Supreme Court of the Republic of Kazakhstan refused to transfer the defendant's petition to the UGPU for a review of the above judicial acts for consideration at a court hearing of the Supreme Court of the Republic of Kazakhstan.
Thus, by these judicial acts, in fact, the APZ and the approval of the draft design have been restored.
II.
On October 22, 2021, Court No. 2 denied the claim of Yu.Z. and others against A.G. and BM LLP for the obligation to eliminate violations of the law by prohibiting the construction of the Facility.
On April 1, 2022, the SKGD of the city court overturned court decision No. 2 of October 22, 2021, with a new decision on the satisfaction of the claim. In essence, it was decided to prohibit the construction of the Facility by BM LLP.
On July 25, October 3, December 19, 2022, the judges of the CCDD of the Supreme Court of the Republic of Kazakhstan refused to transfer the petition of the defendants – BM LLP and A.G. for a review of the above judicial acts for consideration at a court session of the CCDD of the Supreme Court of the Republic of Kazakhstan.
Thus, these judicial acts, in fact, A.G. and "BM" LLP prohibit the construction of the Facility.
III.
On December 6, 2021, by court No. 2 in the claim of O.Sh.., E.I. to A.G., LLP "BM", KSU
The Office of the Green Economy refused to recognize the illegal construction of the Facility.
On April 1, 2022, the SKGD of the city court overturned the court's decision of December 6, 2021, with a new decision on the satisfaction of the claim. In essence, it was decided to recognize the construction of the Facility as illegal.
On July 18, 2022, the judge of the SCDD of the Supreme Court of the Republic of Kazakhstan refused to transfer the application of BM LLP for a review of the decision of the SCDD of the City Court dated April 1, 2022 for consideration at a court hearing of the SCDD of the Supreme Court of the Republic of Kazakhstan.
Thus, by these judicial acts, in fact, the construction of the A.G. Facility and "BM" LLP was recognized as illegal.
IV.
On December 20, 2022, SMAS partially satisfied A.G.'s claim against KSU
"Management of Land Relations" (RCD) on recognition as illegal and cancellation
resolutions on the commencement of compulsory alienation of a land plot in connection with seizure for state needs, recognition of illegal actions to notify of compulsory alienation of a land plot, including by way of redemption for state needs. It was decided on the merits:
to declare illegal and repeal the resolution of the Akimat of the city dated July 14, 2022 on the beginning of the compulsory alienation of land in connection with the seizure for state needs;
to oblige the Akimat of the city to eliminate in full the violation of the plaintiff's rights within one month from the date of entry into force of the court decision;
to refuse to satisfy the claim against the RCD for the recognition of illegal actions to notify of the compulsory alienation of a land plot, including through purchase for state needs.
On June 2, 2023, the SCAD of the city court changed the decision of the SMAS dated December 20, 2022. In essence, it was decided to cancel the court's decision in the satisfied part with the adoption of a new decision to dismiss the claim in this part.
On July 5, 2023, the plaintiff's representative, A.G., filed a cassation appeal against the judicial act of the Court of Appeal, which is currently being processed by the SCAD of the Supreme Court of the Republic of Kazakhstan.
V.
On November 29, 2021, the district prosecutor's office filed a lawsuit with the SME with the following requirements:
1) to recognize the actions of the UGPU in issuing architectural and planning assignment No. 788 dated March 26, 20219 (APZ) and approving a draft design for the construction of an administrative building dated January 23, 2020
No. KZ26VUA00171301, issued by A.G., illegal;
2) oblige the UGC to exclude from the register the notification of the start of construction and installation works dated October 19, 2020 No. KZ59REA00196038 (notification of the CMP);
3) oblige RSE Gosexpertiza to cancel the conclusion of the comprehensive non-departmental expert examination of the working draft dated July 23, 2020 No. 06- 0177/20.
On March 1, 2022, the SMEC rejected the claim of the district prosecutor against the UGPU, UGK, RSE Gosexpertiza to challenge the actions to issue the APZ and approve the draft draft, to compel the exclusion of the notification of the SMR from the register of notifications.
On June 8, 2022, the SKGD of the city court overturned the decision of the SMEC and sent the case to the SMAS of the city of A. according to jurisdiction.
On September 27, 2022, the SMAS of the city of A. satisfied the claim of the district prosecutor to the UGPU, UGK, RSE Gosexpertiza to challenge the actions to issue APS and approve a draft design, to compel the exclusion of the notification of the SMR from the register of notifications. It is essentially decided:
to recognize as illegal the actions of the UGPU on the issuance of APZ No. 788 dated March 26, 2019 and the approval of the draft dated January 23, 2020;
Oblige the UGC to exclude the notification of the CMP from the notification register.
On March 20, 2023, the SCUD of the city court upheld the decision of the SMAS of September 27, 2022. Disagreeing with the last two judicial acts, the representative of the person concerned in this administrative case, BM LLP, appealed them in cassation.
Judicial acts:
1st instance: the claim is satisfied. It is essentially decided:
to recognize as illegal the actions of the UGPU on the issuance of APZ No. 788 dated March 26, 2019 and the approval of the draft design for the construction of the administrative building dated January 23, 2020 No. KZ26VUA00171301, issued by A.G.;
To oblige the UGC to exclude from the register the notification of the CMP dated October 19, 2020 No. KZ59REA00196038.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are cancelled. The case has been sent for a new hearing to the court of appeal.
Conclusions: The motives and conclusions of the local courts, according to which they satisfied the prosecutor's claim, are set out in their judicial acts.
At the same time, the judicial board does not enter into their discussion, nor does it provide a legal assessment of the arguments of the cassation appeal, since, in resolving the case on its merits, the courts unreasonably left the following circumstances out of the field of critical assessment.
Firstly, as follows from the text of the claim, it was filed on the basis of Article 54 of the CPC, Article 173 of the CPC and article 30 of the Law "On the Prosecutor's Office". At the same time, the local courts ignored the issue of the admissibility of such a claim in administrative proceedings.
Moreover, they did not provide a legal assessment of the admissibility of the prosecutor's claim in accordance with article 31 of the CPC.
Secondly, the local courts cite the decision of the district court No. 2 of March 4, 2021 and related judicial acts of the appellate and cassation instances, which restored the APZ and the approval of the draft design.
The courts also did not give a legal assessment of the admissibility of the claim in the presence of the said court decision No. 2 on the dispute on the same subject, on the same grounds and, in fact, between the same parties. Considering this, the prosecutor should have, but did not explain why he filed the same claim. Moreover, he did not provide the grounds provided for in article 31 of the CPC, which defines the cases when he can bring a claim to court. The prosecutor also did not substantiate why, instead of filing the lawsuit in question, a cassation appeal was not initiated to review court decision No. 2. These circumstances were left without a legal assessment by the local courts.
If the courts had concluded that the claim was admissible after discussing and evaluating the above circumstances, they should have discussed the issue of the prejudicial significance of Court decision No. 2 for resolving the present administrative case.
In the aggregate of the above, given that the courts of previous instances did not clarify the circumstances essential for the proper resolution of the case, ignored and legally assessed a number of them, and did not apply the applicable rules of procedural law, the judicial board considers it necessary to cancel their judicial acts and refer the case for a new hearing to the court of appeal. instances.
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