On the recognition of the regulations of the Department of Urban Planning and Urban Studies of the city as illegal
No.6001-23-00-6ap/615(4) dated 08/15/2023
The plaintiff: KSU "Department of Urban Planning and Urban Studies of the city" Respondent: RSU "Committee for Construction and Housing and Communal Services of the Ministry of Industry and Infrastructural Development of the Republic of Kazakhstan" Interested parties: K.Z., S.K., O.Z., LLP "KB"
The subject of the dispute: the recognition of the prescription as illegal
Review of cassation complaints of the defendant and interested persons.
PLOT: The Urban Studies Department issued for KB LLP No. 1836 dated July 26, 2018 No. 1836 for the design of an object located in the Ermensai microdistrict, 5 Lane, site No. 2 of the city district to complete the construction of a multi-storey residential building (Tau residential complex, former developer BS LLP with the participation of shareholders).
KB LLP submitted an act for a land plot with an area of 2.12 hectares for the construction of a multi–storey residential building dated July 26, 2017. This land plot of KB LLP was acquired on the basis of a purchase and sale agreement dated December 27, 2017 from Nurbank JSC (collateral received from BS LLP).
Previously, the land plot belonged to the territory of the region. By the Decree of the President of the Republic of Kazakhstan dated April 16, 2014 "On changing the boundaries of the city", this land plot was annexed to the territory of the city.
Also, on December 27, 2017, KB LLP, under a purchase and sale agreement concluded with JA LLP, acquired unfinished construction in the form of building materials located on this site (Tau residential complex).
At the request of the shareholders of the Tau-Koktem residential complex, the CDU conducted an audit of the Urban Development Department, which resulted in an order to eliminate violations. The plaintiff, among other things, was ordered to cancel the APZ No. 1836 issued to KB LLP.
Having disagreed with the order, the Urban Development Department appealed to the court to declare it illegal.
Judicial acts:
1st instance: the claim was denied. Appeal: the decision is overturned. The claim is satisfied.
Cassation: the appeal ruling is upheld.
Conclusions: The court of first instance, along with other arguments, motivated the refusal of the claim to declare the Committee's injunction illegal by the fact that the industry legislation, in its opinion, does not provide for the issuance of source materials (including APS) to complete the construction of facilities that have already begun (by the former developer BS LLP, based on the case materials, the volume of work performed on the facility was 85%).
Overturning the decision of the SMAS, the court of appeal, also, along with other arguments, pointed out that the legislation does not prohibit the issuance of APS for the completion of construction, since the disputed facility will be put into operation as a new facility, therefore, the plaintiff had no grounds for refusing to issue APS to the new owner of the facility.
This is also evidenced by the position of the defendant, KDS, which was changed in the court of appeal, who informed the court that the actions of the local executive body, which resulted in the provision of APS for the completion of construction, meet the requirements of the law. In addition, the courts of previous instances established the following.
By the decision of the district court of the city dated February 10, 2021, the claim of the shareholders of BS LLP to and from KB LLP for the transfer of rights and obligations under contracts concluded with BS LLP was denied.
By a decision of the city Court of Appeal on December 13, 2013, the decision of the district court of April 1, 2013 to dismiss the claim for recognition of the act on the acquisition of collateral remained unchanged.
By a resolution of the supervisory board of the Supreme Court of the Republic of Kazakhstan dated December 4, 2014, it was refused to initiate supervisory proceedings on the complaint of HBC Tau against the decision of the appeal dated October 9, 2014 to dismiss the claim for invalidation of the pledge agreement concluded by BS LLP and Nurbank JSC.
It follows from these judicial acts that KB LLP has no obligations to the shareholders of BS LLP. KB LLP has concluded 158 equity participation agreements with other persons to whom obligations have been assumed to transfer ownership of apartments in the facility under construction. Considering that the subject of the lawsuit being considered in this case is the Committee's order, the court of appeal legitimately did not enter into the discussion of the arguments of the interested parties, the shareholders of the Tau residential complex facility, on the performance of the shared–equity construction agreement for the facility, the developer of which was BS LLP. Based on this, the judicial board also does not enter into the discussion of the arguments of the cassation appeals, which did not relate to the KDS order disputed by the plaintiff.
The local courts found that the decision of the City Council of Civil Protection dated November 19, 2021, which entered into force on May 4, 2022, denied the claim of K.M. and B.A. to the State Institution "Department of Urban Planning Control of the City" on the cancellation of APS No. 1836.
The Court of Appeal, by its decision of March 24, 2022, upheld the decision of the SMAS. These judicial acts were not appealed in cassation.
Thus, the decision of the aforementioned court, which has entered into force, indicates that APZ No. 1836 was the subject of judicial proceedings and its extradition was not recognized by the local courts as illegal and unjustified.
In accordance with article 119 of the CPC, a court decision in an administrative case that has entered into force is mandatory for all administrative authorities, officials, individuals and legal entities in relation to both the established circumstances and their legal assessment in relation to the person about whom it was issued.
This provision does not prevent the review, cancellation or amendment of court decisions and other judicial acts in the appeal and cassation procedures. A court decision that has entered into legal force in an administrative case is mandatory for any court and body when establishing facts relevant to the case and factual data established without evidence.
Despite these mandatory requirements of procedural law, by initiating an administrative procedure on the request of S.K. and the shareholders of the housing complex 117 "Tau" dated March 4, 2022 for an audit, the defendant nevertheless checked the legality of the issuance of APS No. 1836, whereas for the same APS at the time of the request and during the period of the audit. The court's decision was reviewed and it was the subject of judicial proceedings in the court of appeal.
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