Hmk 141 Does Not Apply As It Is Related To Public Order Based On Zoning Legislation
General Assembly of Civil Chambers 2017/564 E. , 2017/833 K.
“Case Law Text”
COURT :
Civil Court of First Instance
At the end of the trial held due to the “receivable” lawsuit between the parties; Upon the appeal of the decision dated 07.02.2012 and numbered 2010/650 E., 2012/66 K. by the defendant Treasury’s attorney, the 13th Civil Chamber of the Court of Cassation, with the decision dated 18.04.2013 and numbered 2012/13531 E., 2013/10181 K;
“…The plaintiff, seeing that the parcel numbered 1 owned by the defendant Treasury was within the zoning regulation area, purchased it by tender and the title deed was transferred on 25.04.2008. 2008, but in the announcements of the press and media organs in July 2010, he learnt that this land was declared as a wildlife protection area by the decision of the Council of Ministers in 2006 and was closed to development, in this case, although the defendant did not qualify as land in 2006,
it was shown as a land overlooking the lake where a villa-type residence could be built by hiding this situation of the immovable, for this reason, the immovable with the qualification of field was shown as a land overlooking the lake where a villa-type residence could be built. 270.000 TL. for the immovable property qualified as a field, claiming that he had to pay an exorbitant price, that he notified the defendant as soon as he learnt about the legal defect, and requested the payment of 10.000 TL. without reserving his excess rights by deducting the semen due to the defect, and by increasing his demand with the amendment, he requested the payment of a total of 1.662.560 TL. with interest.
The defendant defended that the tender was made in accordance with the procedure and that there was no change in the value of the immovable property, and requested the dismissal of the lawsuit.
The court, with the acceptance of the lawsuit, decided to collect 1.662.560 TL from the defendant, and to charge legal interest for 10.000 TL of this amount from the date of the lawsuit and 1.652.560 TL from the date of amendment; the judgement was appealed by the defendant.
In the tender announcement of the parcel numbered 1 belonging to the defendant Treasury, the type of land and the zoning status was 6.75 density residential and the tender was registered to the title deed on 25.4.2008 with a price of 2.270.000 TL with the open bidding procedure, the region including the parcel numbered 1 subject to the lawsuit was declared as a wildlife protection area within the scope of the law numbered 1367 and was declared as a wildlife protection area within the scope of the law numbered 13.9. 2006 dated 13.9.2006, the zoning plan approved by Adana Metropolitan Municipality on 15.2.2006 was cancelled and it is understood from the information and documents in the file that the new planning work could not be started due to the interruption of local elections and the revision of the zoning plan for the city as a whole.
The court ruled that the plaintiff has no right to dispose of the immovable property subject to the lawsuit due to the cancellation of the zoning plan and its declaration as a wildlife development area, and therefore the difference between its current value on the date of the lawsuit and the tender price was ruled.
In the examination of the information and documents annexed to the defendant’s appeal; it is understood that a lawsuit was filed by the third party against the Prime Ministry and the Ministry of Forestry and Water Affairs in the 10th Chamber of the Council of State for the cancellation of Article 3/2 regarding the determination of Adana Seyhan Dam Lake as a “wildlife development area” with the decision of the Council of Ministers dated 13.9.2006 and entered into force on 5.10.2006, and that it is pending in 2011/8243.
The defendant stated that according to the provisions of the legislation, the activities that can be carried out in this area can only be permitted in accordance with the provisions of the plan after the management and development plan of the area is approved, and that there is no interference with property rights since the title deeded settlement areas in private ownership are excluded from the provisions of the plan.
In Article 11 titled “management and development plans” of the Regulation on “wildlife conservation and wildlife development areas” published on 08.11.2004, it is understood that the development management plans of the area will be prepared by the General Directorate, and that in the residential areas of villages and towns, settlement areas with title deeds in private ownership and common use areas such as infrastructure services, housing, barns, haystacks and similar outbuildings, places of worship, health centres are excluded from the provisions of the plan.
For the reasons explained above, the result of the case in the Council of State regarding the cancellation of the decision of the relevant Council of Ministers, which includes the subject property within the scope of the case, has the nature to affect the case at hand. Therefore, the court should wait for the outcome of this case and also evaluate the provisions of the relevant regulation and make a decision accordingly. The court’s decision in the written manner with the wrong evaluation is contrary to the procedure and the law and requires reversal…”
The judgement was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision to resist was appealed in due time and after the papers in the file were read, the necessity was discussed:
The lawsuit is related to the claim for receivables based on the provisions of the seller’s liability for defects.
The plaintiff’s attorney claimed that his client purchased the immovable property belonging to the defendant Treasury in 2008 through a tender, that the immovable property, which was announced in the tender as suitable for the construction of villa-type houses and stated to be within the zoning regulation area, was later understood to be one of the places declared as a wildlife protection and development area by the decision of the Council of Ministers in 2006, that the defendant is responsible for the damage incurred due to this legal defect, and requested a decision to reduce the sales price by the defect rate and to collect the reduced sales price from the defendant.
Defendant Treasury attorney defended the rejection of the lawsuit by stating that the tender process was carried out and completed in accordance with the legislation and that the claimant’s claim that he suffered damage did not reflect the truth.
The court decided to accept the lawsuit on the grounds that the defendant is liable for legal defect and to collect 1.662.560,00-TL from the defendant.
Upon the appeal of the defendant Treasury attorney, the judgement was reversed by the Special Chamber for the reasons written in the title of the judgement above.
The Local Court resisted the previous decision on the grounds that the issues raised by the defendant in the appeal petition are within the scope of the prohibition of expansion of defence and that the outcome of the case in the administrative jurisdiction will not resolve the dispute in this case.
The decision was appealed by the defendant Treasury attorney.
Dispute, which came before the General Assembly of Civil Chambers through the appeal, centres on whether it is possible and necessary to make the case file before the administrative jurisdiction, which the defendant party did not notify in its defence until the appeal stage in the lawsuit for receivables based on the claim of warranty against defect between the parties, as a holding matter for the case at hand.
The defendant Treasury attorney stated that a lawsuit was filed before the administrative jurisdiction for the cancellation of the decision of the Council of Ministers dated 13.09.2006 regarding the designation of Adana Seyhan dam lake as a “wildlife development area” by a third party, and requested that the file numbered 2011/8243 of the 10th Chamber of the Council of State be made as a holding matter.
In the face of the fact that the Local Court has decided to resist on the grounds that the acceptance in the Court of Cassation’s reversal decision is within the scope of the prohibition of expansion of the defence, and that it is not possible to make the aforementioned administrative judicial file a matter of waiting, the concept of expansion of the defence should also be explained.
According to Article 141 of the Code of Civil Procedure No. 6100, in cases subject to the written trial procedure, the parties may freely expand or change their claims and defences with their reply and second reply petitions; in the preliminary examination stage, only with the consent of the other party. In the concrete case, it is undisputed that the defendant Treasury attorney reflected a fact that he did not express in the previous stages of the proceedings to the file at the appellate examination stage.
However, since the zoning legislation is related to public order, it should be accepted that the defendant Treasury’s defence expressed by the defendant Treasury attorney on appeal is not contrary to Article 141 of the Law. As a matter of fact, it is not possible to evaluate the fact that the Regulation dated 08.11.2004, which is requested to be applied to the dispute by the defendant side, was mentioned in the appeal as presenting new evidence and expanding the defence.
Another justification for the decision of resisting is the opinion that the rejection or acceptance decision to be made in the case before the administrative judiciary will not affect the result of the judgement in the dispute. In the dispute, the basis of the defect claim that the immovable property has become unsuitable for the construction of villas is that the immovable property purchased by tender was designated as the wildlife development area of Adana Seyhan dam lake, which entered into force on 05.10.2006, with the decision of the Council of Ministers dated 13.09.2006.
However, the lawsuit filed before the administrative jurisdiction with the request for cancellation regarding this decision taken by the administration is pending, and in the case of the cancellation decision of the 10th Chamber of the Council of State in the file numbered 2011/8243, which will remove the region where the immovable subject to the case at hand is located from the wildlife protection area, the basis of the claim of defamation will disappear, and the decision of the local court to resist in this respect is not deemed correct in this respect.
As a result, it is contrary to the procedure and the law to resist the previous decision, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
Therefore, the decision of resistance should be reversed.
CONCLUSION:
It was unanimously decided on 19.04.2017, with the acceptance of the appeal objections of the defendant Treasury’s attorney, that the decision of resisting should be reversed for the reasons shown in the Special Chamber’s reversal decision, with the way of decision correction open.
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