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DECISION OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of February 2, 1999 No. GKPI98-673

On the case of recognition invalid the first and second paragraphs of Item 5.7 of Instructions for use systems of utility water supply and the sewerage in the Russian Federation

On behalf of the Russian Federation

The Supreme Court of the Russian Federation on behalf of

Judges of the Supreme Court of the Russian Federation there is Fedina A. I.

in case of the secretary - Ilyin A. Yu.

with participation of the prosecutor - Masalova L. F.

having considered in proceeding in open court civil case according to the claim of Saratovenergo joint-stock company to the Order of the Ministry of construction of the Russian Federation of August 11, 1995 N17-94, established:

The order of the Ministry of construction of the Russian Federation of August 11, 1995 N17-94 are approved Instructions for use by systems of utility water supply and the sewerage in the Russian Federation. On August 22, 1995 this regulation was registered in the Ministry of Justice of the Russian Federation.

The CEO of JSC Saratovenergo Samsonov S. V. appealed to the Supreme Court of the Russian Federation with the claim in which he raised question of recognition invalid (illegal) the first and second paragraphs of Item 5.7 of these Rules, having referred to the fact that the provision containing in these paragraphs violates the applicant's right as the heatsupplying organization, assigning to it obligation on payment of the organization of water and sewer economy of services in acceptance of sewage though does not use such services of JSC Saratovenergo.

The representative of the State committee of the Russian Federation on construction, architectural and housing policies (the State Committee for Construction of the Russian Federation) in the response on the claim did not recognize the declared requirement.

Having heard explanations of representatives of JSC Saratovenergo of Mikhaylov V. A. and Anisimova S. P., supported the complaint, explanations of representatives of the State Committee for Construction of the Russian Federation of Svetopolyansky A. V. and Owl's N.V., objecting to grievance settlement, having researched written proofs, having listened to the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation Masalova L. F., believing the claim unreasonable, the Supreme Court of the Russian Federation finds the claim of the applicant who is subject to satisfaction on the following bases.

The stated above Rules regulate different questions of use of systems of utility water supply and the sewerage in Russia including questions of accounting of quantity by the released WSE (water and sewer economy) organization to subscribers and the sewage accepted by the VKH organization in system of the sewerage.

According to the general provision containing in item 4.1 of Rules, amount of the drinking water spent by the subscriber and the accepted sewage in system of the sewerage it is determined by indications of metering devices.

The Item 5.7 contains the special regulation regulating question of accounting of quantity by the released VKH organization of drinking water to the heatsupplying organizations for centralized hot water supply, and also accounting of amount of the sewage which are formed at subscribers of the heatsupplying organization.

The paragraph one of Item 5.7 of Rules, in particular, provides that settlings with the heatsupplying organizations for the drinking water released by it for centralized hot water supply are made for all amount of actually released drinking water determined by indications of metering devices, and the corresponding amount of sewage equal to amount of the released drinking water, on rates according to the agreement signed between the VKH organization and the heatsupplying organizations.

The paragraph of the same Item of Rules it is provided by the second that I will eat around sewage, paid by the heatsupplying organization, decreases by amount of sewage which acceptance is provided in systems of the sewerage by the agreements signed directly between subscribers of the heatsupplying organization and the VKH organization.

According to Art. 6 of the Law of the Russian Federation "About Appeal in Court of the Actions and Decisions Violating the Rights and Freedoms of Citizens" on state bodies, local government bodies, organizations, the companies and their associations, public associations, the procedural obligation documentary is assigned to officials, government employees whose actions (decision) are appealed by the citizen to prove legality of the appealed actions (decisions); the citizen is exempted from obligation to prove illegality of the appealed actions (decisions), but shall prove the fact of violation of the rights and freedoms.

In this judicial session representatives of the State committee of the Russian Federation on construction, architectural and housing policies did not produce the evidence which would confirm compliance to requirements of the law of the provisions of Item 5.7 of Rules challenged by the applicant regarding assignment on the heatsupplying organizations of obligation to make calculations for the corresponding amount of the sewage accepted by the VKH organization in system of the sewerage from the organizations - subscribers of the heatsupplying organization.

In judicial session it is determined that JSC Saratovenergo as the heatsupplying organization uses services of the VKH organization only for receipt of drinking water from water supply systems for realization of heat energy to the subscribers who are connected to sewer networks of the VKH organization and, therefore, sewerages use services, i.e. dump sewage (after receipt of heat energy) in system of the sewerage which operation is performed by the VKH organization.

The heatsupplying organization does not perform (and cannot perform) direct dumping of the sewage which is formed after providing this organization with heat supply of subscribers as in the VKH sewer system dumping of this sewage is made by not heatsupplying organization (in this case - JSC Saratovenergo), and her subscribers receiving heat power.

Representatives of the State committee of the Russian Federation on construction, architectural and housing policies did not dispute the specified circumstances, having explained at the same time that assignment on the heatsupplying organizations of obligation and for fee for dumping by her subscribers of sewage is caused by feasibility as it is difficult to VKH organizations to sign the relevant agreements on implementation of such services directly with all subscribers using system of the sewerage VKH (the provision containing in the 2nd paragraph of Item

5.7 Governed, provides opportunity to reduce amount the heatsupplying organization by amount of sewage which acceptance is provided in systems of the sewerage by the agreements signed directly between subscribers of the heatsupplying organization and the VKH organization however this part of Item also completely does not exclude assignment on the heatsupplying organization of obligation for payment by this organization of services in dumping of sewage by part of subscribers which acceptance of sewage is not provided in system of the sewerage by the relevant agreements). According to st.st.779 and 781 Civil Code of the Russian Federation according to the services agreement the contractor shall render services (to make certain actions or to make certain activities) on the instructions of the customer, and the customer shall pay these services.

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