A claim for compensation of material damage
Nauryzbay District Court of Almaty
050000, Almaty, Shugyla microdistrict, 347/1
+7 (727) 333‒13‒55.
Plaintiff: A.A..
IIN .
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zакоnргаvо.кz
+7 708 971 78 58; + 7 727 578 57 58.
Defendant: PMK-7K LLP
BIN 051140006767
Nauryzbayskiy, Almaty, 050052
district, md. Mamyr, Aftsinao str., 34.
+7 775 704 77 74; +7 705 682 81 90.
Third parties:
A.E.
IIN .
+7 701 .
The State institution "Housing Management and
housing Inspection of Astana city"
BIN 200340006724
Astana, Baykonyr district, Republic ave., building 32.
+7 (7172) 55-18-01
a.saipov@astana.kz
Government agency
"Fuel and Energy Management
complex and communal services of" Astana city
BIN 130740015861
Astana, Beibitshilik str. 11.
+7 (7172) 5№№№№
The claim
on compensation for material damage
On March 11, 2020, by Resolution No. 510-547 of the Akimat of Astana city "On the compulsory Alienation (purchase) of land plots for public needs" and "On Amendments to Certain Resolutions of the Akimat of Nur-Sultan City" No. 510-2502 dated July 22, 2021, land plots owned by private ownership of A.A.E. (Hereinafter referred to as the Plaintiff), located at the address: Nur-Sultan city, Almaty district, the area of intersection of No. 23-15 street (project name) and Zh. Nazhvedenova was forcibly alienated for state needs. The alienation period was set from June 19, 2020 to June 19, 2021.
In accordance with clause 4, clause 2, Article 63 of the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law), which states that the decision on the commencement of compulsory alienation of land or other immovable property in connection with the seizure of land for state needs indicates the date of compulsory alienation, but not earlier than three months from the date of the official after the publication of this resolution, i.e. the term of alienation was determined according to the Law, but this did not mean that starting from June 19, 2020, it was necessary to start demolishing buildings and carry out construction work on a private land plot. But despite this, in mid-May 2020, i.e. two months after the date of the official publication of the resolution of the akimat, unknown to the Plaintiff, the builders of the square around the Kazakh drama Theater began to destroy the fence enclosing the territory of a private land plot, began to export building materials, i.e. they began to plunder private property. This was reported in writing to the Mayor of Astana on May 27, 2020.
The plaintiff and the third party, A.E., appealed to law enforcement agencies, which on May 30, 2020, and then on July 4, 2020, recorded these gross violations of the current legislation. In parallel, according to this fact, the owners (A.A.E. and A.E.) have repeatedly applied to the Akimat of Astana, where they asked to stop destroying the fence, plundering private property, while continuing to develop private territory until the conclusion of an appropriate agreement with the owner of the land plot on the conditions of its alienation for public needs, receiving compensation for the seized land plot, or until the court decision enters into force.. However, the akimat did not respond to the statements of the owners, and the builders continued to illegally forcibly seize and plunder private property.
Observing gross violations of the legislation of the Republic of Kazakhstan by employees of the Akimat of Astana and the builders of the park, the Plaintiff's son turned to appraisers to assess the damage caused. Appraiser A.A. Aldiev documented, including in photographs dated June 16, 2020, damage to the fence, the beginning of its plunder, including construction materials, and on June 18, 2020, he compiled report No. 87/06 on the assessment of the market value of the property, according to which the fencing of the land was estimated at 10,972,153 (ten million nine hundred seventy-two thousand one hundred and fifty-three) tenge.
65 of the Law stipulates that the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is carried out after the expiration of the time limits set out in the resolution specified in paragraph 2 of Article 63 of this Law, but necessarily with the consent of the owner or non-governmental land user, unless otherwise provided by the Laws of the Republic Kazakhstan, or by a court decision.
Subsequently, by order of the Mayor's Office of Astana, the assessment report No. 65/1 ALM-157/4 dated June 25, 2020 was completed, where the fence, wagon and building materials belonging to the owner are no longer present in the photos of the assessment object, and paving stones (sidewalks) are laid on part of the territory. It should be emphasized that the Plaintiff and the third party did not give written or oral consent to the demolition and seizure of private property.
Thus, the builders acted illegally without the consent of the owner of the private property, without making sure that the land plot did not belong to the akimat. They also grossly violated the statutory withdrawal deadlines. All these violations led to the self-seizure and destruction of private property and the subsequent plundering of private property. All violations occurred between mid-May and mid-June 2020.
Paragraph 3 of Article 65 of the Law states that the basis for the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs is an agreement on the alienation of a land plot for state needs or a court decision, but such an agreement between the akimat and the owner of the land plot during the demolition of the fence and the subsequent theft of building materials and There was no carriage.
In paragraph 12 of art . 65 of the Law provides that if the owner does not agree with the resolution specified in paragraph 2 of Article 63 of this Law and (or) refuses to conclude an agreement on the alienation of a land plot for state needs after three months from the date of receipt of a written notification of the forced alienation of a land plot for state needs by the owner, but no later than (date) of the implementation of the compulsory alienation specified in the resolution specified in paragraph 2 of Article 63 of this Law, The local executive body has the right to apply to the court with a claim for the compulsory alienation of a land plot or other immovable property in connection with the seizure of a land plot for state needs.
However, this paragraph of the Law was violated by the Akimat of Astana and only after 1 year and 10 months, namely on January 23, 2022, the akimat appealed to the Almaty District Court of Astana with a claim for compulsory alienation (purchase) of a land plot for state needs. Civil case No. 7111-22-00-2/214 was considered by Judge Asanova S.S., who appointed a state independent expert examination to determine the market value of real estate (only private land, since there had been no fence, building materials and a wagon for a long time) and eventually, by her decision of April 27, 2022, established the market value of a land plot with a total area of 0.3646 hectares and payment of compensation to the owner in the amount of 286,484,450 (two hundred eighty-six million four hundred eighty-four thousand four hundred fifty) tenge. As a result, this amount was paid only in October 2022, i.e. only after that the land plot became the property of the akimat, and they could legally carry out the required construction work on it.
It should be emphasized that the court determined only the value of the land plot, while it did not determine the material damage caused to the owner of the private property as a result of the destruction and plunder of building materials, as well as the amount of material costs incurred by the owner of the property, carried out by him on the development of the land plot until the adoption of the resolution of the Akimat on the seizure of the land plot for state needs.
In accordance with Article 917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
On November 22, 2022, the plaintiff filed a lawsuit for compensation of material damage against the Mayor's Office of Astana and asked to recover material damage in the amount of 64,212,482 tenge. By the decision of the Saryarkinsky District Court of February 22, 2023, the claim was denied, where the court found that the Plaintiff, filing this claim against the akimat, which is not a construction organization, did not provide the court with evidence that it was the "Defendant" who demolished (destroyed, destroyed) the property located on the land, while emphasizing, that this type of work does not fall within the competence of the akimat.
As a result of the consideration of the appeal, the judicial board for civil cases of the Astana City Court, by a resolution dated June 2, 2023, upheld this decision of the Saryarkinsky District Court. However, during the process, the board clarified the plaintiff's rights, where the plaintiff has the right to file claims for damages in accordance with Articles 9 of the Civil Code and 917 of the Civil Code against the perpetrators.
In addition, the board considers that after identifying the perpetrators of the dismantling and seizure of the fence, construction wagon and building materials located at the time of the seizure of the land plot, the Plaintiff has the right to make claims against the perpetrators in accordance with Articles 9 of the Civil Code and 917 of the Civil Code for damages (losses).
In addition, the board considers that after identifying the perpetrators of the dismantling and seizure of the fence, construction wagon and building materials located at the time of the seizure of the land plot, the Plaintiff has the right to make claims against the perpetrators in accordance with Articles 9 of the Civil Code and 917 of the Civil Code for damages (losses).
During the court proceedings, it was revealed that an Agreement on public procurement of construction works No. 2020/48 dated May 11, 2020 was concluded between the state institution "Management of the Fuel and Energy Complex and Utilities of the City of Nur-Sultan" and PMK-7K LLP. According to the Contract, the work was carried out under the Project "Contract work – construction of boulevards and squares along Mynzhyldyk Alley in Astana (first stage)".
According to the Resolution of the Akimat No. 510-547 dated March 11, 2020, the compulsory alienation of land plots should have been carried out from June 19, 2020 to June 19, 2021. However, the division of the akimat ignored this resolution, as a result, the State Institution "Management of the Fuel and Energy Complex and Utilities of the city of Nur-Sultan" concluded Contract No. 2020/48 with the "Contractor" represented by PMK-7K LLP.
Paragraph 3.7 of the Contract on Public Procurement of Works in the Field of Construction No. 2020/48 stipulates that the "Customer", after the Contract enters into force, makes an advance payment in accordance with Appendix No. 1 after the "Contractor" has secured the performance of the Contract and secured the advance and (or) the amount in accordance with Article 26 of the Law.
According to the supplementary agreement No. 1 to the Agreement No. 2020/48 dated May 11, 2020. The Department of Fuel and Energy Complex and Utilities made an advance payment to PMK-7K LLP in the amount of 570 million tenge on May 15, 2020 and in the amount of 13,357,800 tenge on June 26, 2020.
According to clauses 29, 4.1 of the Contract on Public Procurement of Works in the Field of Construction No. 2020/48, the "Contractor" undertakes to submit to the "Customer" for approval a schedule of work, which sets out the procedure and deadlines for the construction of the Facility, within three days from the date of signing the Contract. In the event of a change in the duration of the completion period, the "Contractor" is obliged to submit a schedule of work within 3 (three) business days from the date of signing the relevant supplementary agreement. If we study the approved schedule of work, we can see that in May 2020 the following works began: general construction, technological equipment, vertical layout, cable laying (trenches). This work schedule was signed on June 2, 2020.
Thus, PMK-7K LLP began work without first making sure that the land plot does not belong to the akimat, i.e. it is private, that the territory is fenced with a 330-meter metal fence 3 meters high, there are two gates with locks, the passport of the object is posted, and building materials are on the territory. (foundation blocks, corners, trapezoidal sheets, steel pipes, etc.), wagon.
We have provided sufficient evidence that it is PMK-7K LLP (the Defendant). demolished (destroyed, destroyed) the property located on the land plot. At the same time, the "Defendant" did not receive the owner's consent, therefore he acted unlawfully, as he violated the deadlines set by Law, and as a result caused significant material damage to the owners of private property.
Paragraph 14 of Article 65 of the Law states that the actual transfer of a land plot or other immovable property alienated for state needs in connection with the seizure of a land plot for state needs can be carried out only after the owner, whose rights in relation to the alienated property are terminated or limited by compulsory alienation, receives an equivalent compensation made in accordance with the procedure established by this Law.. And in accordance with art . 917 of the Civil Code of the Republic of Kazakhstan, damage (property and (or) non-property) caused by unlawful actions (inaction) to property or non-property benefits and rights of citizens and legal entities is subject to compensation by the person who caused the damage in full.
The "contractor" represented by PMK-7K LLP not only illegally destroyed private property, but also plundered it. So, at the time of its capture, there were: a construction wagon, 20 foundation blocks, the remains of four-meter pipes, unused trapezoidal sheets, metal corners 5 x 5 cm, reinforcement, cement, crushed stone, sand, a mortar mixing trough, etc. The pipes, dug into the ground and cemented, were 4 meters long, the trapezoidal sheets were 3.0 m by 1.5 m. During the demolition of the 330-meter-long fence, 110 pipes were cut, some of the trapezoidal sheets were damaged, some were removed and all this was taken away by the builders, including a construction wagon and 20 foundation blocks, i.e. in fact, employees of PMK-7K LLP committed a criminal offense. The owners have repeatedly sent applications to the akimat on this issue, and as a result, it was not until April 21, 2021, that they received a response stating that construction work had previously been carried out on the site, and the construction wagon must be returned to AA.
Referring to the above circumstances and our requirements, we filed a pre-trial claim against PMK-7K LLP on February 12, 2024, where we asked them to voluntarily compensate the damage caused to the owners, namely:
A fence destroyed without the consent of the owner, the market value of which, according to the assessment report No. 87/06 dated June 18, 2020, is 10,997,153 (ten million nine hundred and ninety-seven thousand one hundred and fifty-three) tenge;
Removed from a private land plot:
a) construction wagon – 3,000,000 (three million) tenge (average market value);
b) foundation blocks – 20 pieces x 19,000 tenge = 380,000 tenge (average market value);
c) steel pipes – 110 pieces of 3 m each: 330 m x 2098 tenge = 692 340 tenge;
d) metal trapezoidal sheets – 330 pcs. of 3 m.: 990 sq.m. x 4140 tenge = 4098600 tenge.
Total: 8,170,940 (eight million one hundred seventy thousand nine hundred forty) tenge.
The owners also ask to reimburse the representative expenses that were spent to protect their infringed rights: the former and new lawyer services – 1,200,000 (one million two hundred thousand) tenge.
In total, 20,368,093 (twenty million three hundred and sixty–eight thousand ninety-three) tenge is subject to reimbursement.
According to paragraph 1 of Article 113 of the CPC RK, at the request of the party in whose favor the decision was made, the court awards the other party the costs incurred by it to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed 10% of the satisfied portion of the claim.
According to paragraph 2 of Article 29 of the CPC RK, a claim against a legal entity "PMK-7K" LLP is filed in court at the location of the legal entity and according to the constituent documents and (or) the address entered in the National Register of Business Identification Numbers, i.e. at the address: Nauryzbaysky district, mkr. Mamyr, 34 Aftsinao street.
Based on the above and in accordance with Article 917 of the Civil Code of the Republic of Kazakhstan and Article 148 of the Civil Procedure Code of the Republic of Kazakhstan,
I ask the Court:
To recover from PMK-7K LLP in favor of A.A.E. for material damage in the amount of 20,368,093 (twenty million three hundred sixty-eight thousand ninety-three) tenge. I ask you to transfer the money to the checking account of A.E. in JSC "People's Bank of Kazakhstan".
Collect from PMK-7K LLP in favor of A.A.E. for the payment of a state fee in the amount of 203,681 tenge, which must also be transferred to A.E.'s current account in JSC Halyk Bank of Kazakhstan.
To collect from the Akimat of Astana in favor of the "Plaintiff" A.A.E. representative expenses in the amount of 500,000 (five hundred thousand) tenge.
Attached materials:
Receipt of payment of the state duty to the UGD in the Nauryzbay district of Almaty in the amount of 203 681 tenge.
Identity card Ab.A.E. (1 l.).
The identity card of A.E.A. and his power of attorney (2 l.).
Title documents for land plots. General data of the construction site (12 liters).
Akimat Resolution No. 510-547 dated March 11, 2020 on the seizure of land plots and the first application of the owners to the Akimat dated May 27, 2020 (5 l.).
Applications to law enforcement agencies, their registration (5 l.).
The report on the assessment of the fencing of the land plot dated June 18, 2020 (16 l.).
The report of the appraiser Timonov V.V. dated June 20, 2020 (5 l.).
Letters to the Akimat and the reply of A.N. Strochkov (6 volumes).
A letter to the President of the Republic of Kazakhstan with a response from the Prosecutor General's Office (4 pages).
Resolution of the Judicial Board of the Astana City Court dated August 23, 2022 (6 l.).
The decision of the Saryarkinsky district Court dated February 22, 2023 (6 l.).
Resolution of the Judicial Board for Civil Cases of the Astana City Court dated June 2, 2023 (6 l.).
Standard contract on public procurement in the field of construction No. 2020/48 dated May 11, 2020 (8 l.).
Supplementary Agreement No. 152 dated May 15, 2020 to the Model Contract on Public Procurement in the Field of Construction No. 2020/48 dated May 11, 2020 (2 l.).
Schedule of work for 2020. Invoice for payment dated May 15, 2020 for 570 million tenge (2 liters).
Pre-trial claim against PMK-7K LLP dated February 7, 2024 (4 l.).
Sending pre-trial claims (1l.).
Documents on the services of a lawyer ( L.).
A. E.'s account in the card database of Halyk Bank of Kazakhstan JSC (1 liter).
With respect,
Plaintiff: A.A.E.
AGCA's Lawyer: Sarzhanov G.T.
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