Administrative Jurisdiction Is Responsible In Legal Seizure Based On Zoning Restriction
General Assembly of Civil Chambers 2014/99 E. , 2015/1773 K.
“Case Law Text”
COURT : Nevşehir 2nd Civil Court of First Instance
DATED : 30/05/2013
NUMBER : 2013/257-2013/349
At the end of the trial held due to the “compensation for compensation due to expropriation without expropriation” lawsuit between the parties; Upon the request of the plaintiff’s attorney for examination of the decision dated 17.07.2012 and numbered 2012/83 E.-2012/298 K. given by Nevşehir 2nd Civil Court of First Instance regarding the procedural dismissal of the lawsuit, with the decision of the 5th Civil Chamber of the Court of Cassation dated 14.02.2013 and numbered 2012/24841 E.-2013/2184 K.
( “…The lawsuit is related to the claim for the collection of the price of the immovable property seized without expropriation.
The court decided to dismiss the lawsuit petition on the grounds of jurisdiction on the grounds that the administrative jurisdiction has jurisdiction; the judgement was appealed by the plaintiff’s attorney.
On 07.03.2007, it was understood that the right of the plaintiffs to make personal disposals such as future construction, to use the powers granted to the owner of the right of ownership such as selling at fair value, renting, making useful changes, etc. on the immovable property subject to the lawsuit, which was partially reserved as a park area and partially as a primary education area in the application development plan approved on 07.03.2007, was restricted and this right guaranteed by Article 35 of the Constitution was rendered unusable in a way that would disrupt the fair balance between public interests and individual rights, and the phenomenon of expropriation without expropriation occurred.
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In this case, considering the decision of the Grand General Assembly of the Supreme Court of Appeals Unification of Jurisprudence dated 16.05.1956 and numbered 1-6 and the decision of the General Assembly of Civil Chambers dated 15.12.2010 and numbered 2010/5-662/651, it should be accepted that it is within the duty of the Judicial Judiciary to deal with the case, and a decision should be made according to the result of the discovery to be made by entering the merits of the case, but to establish a written judgement,
Not deemed correct….)
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
APPELLANT : Plaintiff’s Counsel
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it has been examined by the General Assembly of Civil Chambers and it has been understood that the decision of resistance has been appealed in due time and it has been decided to reject the request for a hearing in accordance with the provision of paragraph 438/II of the H.U.M.K. amended by the Law No. 2494 as of the date of the decision of resistance and after the papers in the file have been read, the necessity has been discussed:
The lawsuit is related to the compensation claim filed based on the restriction of the right of use of the immovable property allocated to public service according to the zoning implementation plan.
Plaintiff’s attorney summarised in his petition; the immovable property numbered 71 block 141 parcel, of which his client is a shareholder, was arranged as a school area and road in the zoning plan, the immovable property has not been expropriated despite the passage of many years, his client cannot make any savings due to the annotation in the title deed record, even if there is no actual seizure in accordance with the judicial decisions, the restriction of the right of ownership for a long time as a result of the decisions taken by the administration is considered as interference with the immovable property,
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The same situation is also in question for the immovables allocated to public areas in the zoning plan and not expropriated, upon the application made to Nevşehir Directorate of National Education, it was reported that expropriation could be carried out in the following years since there is no need for a school in the region, stating that the plaintiff was deprived of the right to property guaranteed by the Constitution for an indefinite period of time, and requested and sued for the collection of the immovable price and the transfer of the property to the administration, and for the time being 10. 000,00 TL receivable together with interest.
Defendant N… B… attorney summarised in his reply petition; the immovable belonging to the plaintiff was included in the zoning plan approved on 07.03. 2007 in the zoning plan approved on 07.03.2007, the section allocated as a school area should be expropriated by the Special Provincial Administration, the land owners did not request expropriation for the section allocated as a road, the Municipality did not seize the immovable property and no restrictive annotation was placed on the registry record,
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The defendant N… also stated that the immovable subject to the lawsuit was included within the boundaries of the zoning plan within the scope of the last general revision and addition, and requested a decision to dismiss the lawsuit firstly, and if accepted, to register the relevant parts of the immovable in the name of the Municipality or to cancel it from the registry.
Defendant N… İ… attorney briefly defended the dismissal of the lawsuit by stating that the court has no jurisdiction and jurisdiction, and that the case should be directed to the Directorate of National Education, not to the Special Provincial Administration, that the immovable was arranged as a school area due to the need, and that there was no interference with the right of property.
The court decided to dismiss the case procedurally due to jurisdictional grounds on the grounds that the works and transactions based on the Zoning Law and the transactions regarding the allocation of space for education and training are administrative transactions for public service, and that the competent jurisdiction for the compensation of damages arising from administrative actions and decisions is the administrative courts, and upon the appeal of the plaintiff’s attorney, the decision was reversed by the Special Chamber for the reasons explained above.
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Local Court decided to resist by repeating and expanding the previous grounds, and the decision of resistance was appealed by the plaintiff’s attorney.
The dispute before the General Assembly of Civil Chambers centres on whether the case based on the claim of legal seizure arising from the zoning restriction should be heard in the judicial jurisdiction or in the administrative jurisdiction.
As it is known, the third sentence of the tenth paragraph of the Provisional Article 6 of the Expropriation Law No. 2942 amended by Article 21 of the Law No. 6487, which entered into force on 11.06.2013:
“A lawsuit may be filed in the administrative jurisdiction after the completion of the administrative applications and procedures stipulated in the Zoning Law dated 03.05.1985 and numbered 3194 regarding the immovables whose disposal is restricted by being reserved for public services and public institutions in the implementation zoning plans or by the application of the relevant laws. The provisions of this article shall apply to all cases that have not been decided or whose decisions have not been finalised.”
It contains the provision.
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On the other hand, in the decision of the Constitutional Court dated 25.09.2013 and numbered 2013/93 Esas, 2013/101 Karar; “In order to speak of expropriation without expropriation, the possession of the immovable must pass to the administration and the immovable must be actually allocated to public service; in zoning restrictions, the possession of the immovable continues to remain with the owner, and only the owner’s power of disposal is subject to some restrictions arising from the relevant legislation”, and it is accepted that compensation cases arising from zoning restrictions can be filed in administrative jurisdiction.
The zoning plan, which is an administrative act, imposes certain restrictions on the rights of individuals on their immovable properties in the areas allocated for public services, and the administration, which does not expropriate or exchange, renders the owners’ rights of disposition on the immovable property unusable for an indefinite period of time. In this case, the compensation lawsuits to be filed in accordance with the third sentence of the tenth paragraph of the Provisional Article 6 of the Expropriation Law No. 2942 amended by Law No. 6487 dated 24.05.2013, must be heard in the administrative jurisdiction.
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As a matter of fact, the same principle was adopted in the decision of the Court of Cassation HGK dated 30.10.2013 and numbered 2013/5-603 E., 2013/1503 K.
When the concrete case is examined within the framework of these explanations; it is clear that most of the immovable property numbered 71 block 141 parcel, of which the plaintiff is a shareholder, is reserved as a primary education facility area and road in the zoning plan, the section subject to the lawsuit cannot be used as a subject to private property, and the right of disposal of the plaintiff is restricted, and as such, although there is no actual seizure of the administration about the immovable property subject to the lawsuit, it is clear that there is a legal seizure based on zoning restriction.
As stated above, it has been adopted by the General Assembly of Civil Chambers that the administrative jurisdiction is in charge of the lawsuits to be filed against such claims in accordance with the provision of the tenth paragraph of the Provisional Article 6 of the Law No. 2942.
As such, the local court’s resisting the decision regarding the procedural dismissal of the case due to jurisdiction is in accordance with the procedure and the law.
The decision of resisting should therefore be upheld.
CONCLUSION :
It was unanimously decided on 16.09.2015 that the appellate objections of the plaintiff’s attorney were rejected and the decision of resisting was upheld for the reasons explained above, and that no further fees were required since the necessary appeal judgement fee was paid in advance.