Non-Exploitation Lawsuits Are Held In Judicial Jurisdiction
General Assembly of Civil Chambers 2017/2032 E. , 2021/497 K.
“Case Law Text”
COURT :Civil Court of First Instance
1. At the end of the trial held due to the lawsuit between the parties for “collection of the amount of the immovable property seized without expropriation”, the decision of the Istanbul Anatolian 9th Civil Court of First Instance regarding the acceptance of the lawsuit in terms of the section actually seized, and the decision regarding the rejection of the lawsuit petition due to the jurisdiction of the administrative jurisdiction for the section related to legal seizure, was reversed by the 5th Civil Chamber of the Court of Cassation upon the appeals of the plaintiffs’ attorneys and the defendant administration attorneys, and the Court resisted against the reversal decision of the Special Chamber.
2. The decision of resisting was appealed by the counsel for the plaintiffs and the counsel for the defendant administration through participation.
3. After the documents in the file were examined by the General Assembly of Civil Chambers, the necessity was discussed:
I. JUDICIAL PROCESS
Plaintiffs’ Petition
4. The plaintiffs’ attorney, with the petition of lawsuit, claimed that his clients are the owners of the immovable property numbered 435 block 53 parcel in Erenköy neighbourhood, Kadıköy district, that during the widening of Şemsettin Günaltay Street, the defendant administration seized a part of the immovable property without expropriation, that the immovable property is located in an area with commercial + residential construction, that a loss of value occurred in the remaining part due to the seized area, and requested a decision to collect 8. 000,00TL from the defendant together with interest, and amended the lawsuit as 79.972,40TL with the amendment petition dated 11.06.2012.
Defendant’s Reply:
5. With the reply petition, the defendant administration’s attorney stated that in accordance with the Law No. 5999, reconciliation must be made in order to file a lawsuit, the immovable subject to the lawsuit is a cadastral parcel, the plaintiffs cannot claim compensation if it is determined that the seized area is within the 40% DOP slice, that this lawsuit cannot be filed without the unanimous approval of all shareholders in accordance with Article 45 of the Condominium Law (PFK), and that the date of seizure must be proved and the lawsuit must be dismissed.
Decision of the Court
6. With the decision of the (closed) Kadıköy 2nd Civil Court of First Instance dated 11.09.2012 and numbered 2011/177 E. 2012/450 K.; since the request regarding the section allocated to the road with the zoning plan is in the nature of legal seizure and the dispute regarding this issue should be resolved in the administrative jurisdiction, the case should be dismissed in terms of jurisdiction in terms of this request, and the case should be accepted in line with the amendment in terms of actual seizure, 79. 972,40TL from the defendant administration together with the legal interest from the date of the lawsuit, to be given to the plaintiffs in proportion to their shares, and the shares belonging to the plaintiffs in the 31,50 m2 section marked with the letter A in the expert sketch to be abandoned as a road.
Reversal Decision of the Special Chamber:
7. This decision of the court was appealed by the counsel for the plaintiffs and the counsel for the defendant administration.
8. With the decision of the 5th Civil Chamber of the Court of Cassation dated 28.02.2013 and numbered 2012/24960 E. 2013/3284 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 accept the lawsuit in terms of the section that was actually seized, and to reject the lawsuit petition in terms of jurisdiction for the section related to legal seizure, on the grounds that the administrative jurisdiction has jurisdiction; the judgement was appealed by the attorneys of the parties.
An expert examination was conducted. There is no inconsistency in valuing the immovable property in the nature of land by comparing the precedents and deciding to collect the price of the part actually seized as a road.
Therefore, the appeal objections of the defendant administration’s attorney are not relevant.
As for the appeal of the plaintiffs’ attorney;
From the evidence and documents in the file; the part of the immovable subject to the lawsuit has been reserved as a road in the 1/1000 scale zoning plan since 2006 and this part has been partially seized as a road, the part that is a road constitutes a whole, therefore, the price of the whole part reserved as a road should be ruled; even if this part has not actually been seized, in accordance with the mandatory provision of Article 10 of the Zoning Law No. 3194.
Pursuant to the mandatory provision of Article 10 of the Zoning Law No. 3194, the expropriation duty should not be fulfilled within 5 years from the date of the finalisation of the 1/1000 scale plan, thus restricting the property right of the owner indefinitely, and even if this section is not actually seized, it should be deemed to have been seized in its entirety due to the integrity of the project, and the price of the remaining part other than the seized part should be awarded. 12.2010 dated 2010/5- 662/651 and the decision of the Grand General Assembly of the Supreme Court of Appeals Unification of Jurisprudence dated 16.05.1956 and numbered 1/6, the case should be accepted, while deciding to dismiss the case as written,
It was not deemed correct…” and the decision was reversed.
Claimant’s Request in the Merged Case:
9. In the petition dated 07.02.2014 after the reversal, the attorney for the plaintiffs in the merged case stated that in the file numbered 2013/444 E. of the Istanbul Anatolian 9th Civil Court of First Instance, his clients filed a lawsuit due to expropriation without expropriation on the immovable property numbered 435 block, parcel numbered 53, located in Erenköy, Kadıköy district, Istanbul province, as a result of the lawsuit, it was decided to abandon a 31.5 m2 section as a road as a result of the actual seizure, the decision was appealed, the decision was reversed by the 5th Civil Chamber of the Court of Cassation. Civil Chamber of the Court of Cassation reversed the decision to pay the price of the entire 178,91 m2 section,
which remained on the road in the zoning and part of which was seized, and the defendant’s request for correction of the decision was rejected as not being appropriate, and the 31,5 m2 part of the case was amended for 79. 972,40TL for the 31,5 m2 part of the case, they reserved their rights regarding the excess, in the expert report received in the file, the experts determined the total value of the 178,91 m2 part as 454.217,77TL,
therefore the difference of 374. 245,37 TL, which is the difference between 374.245,37 TL, this lawsuit has been filed due to the necessity of filing an additional lawsuit, stating that the lawsuit is pending in the file numbered 2013/444 E. of Istanbul Anatolian 9th Civil Court of First Instance, and requested and sued that the lawsuit be consolidated with the file numbered 2013/444 E. of Istanbul Anatolian 9th Civil Court of First Instance.
10. With the decision of Istanbul Anatolian 23rd Civil Court of First Instance dated 18.02.2014 and numbered 2014/51 E. 2014/60 K.; it was decided to consolidate this case with the case file numbered 2013/444 E. of Istanbul Anatolian 9th Civil Court of First Instance due to the connection between the parties and the subjects of the case and to close the case in this way.
Decision of Resistence:
11. With the decision of the Istanbul Anatolian 9th Civil Court of First Instance dated 11.09.2014 and numbered 2013/444 E. 2014/367 K.; the decision of the 5th Civil Chamber of the Court of Cassation numbered 2013/13887 E. 2013/22154 K. and the decisions of the Civil General Assembly of the Court of Cassation numbered 2013/5-2435 E. 2014/708 K., Article 6 of the Expropriation Law No. 2942 amended by Law No. 6487. Article 6 of the Expropriation Law No. 2942 amended by the Law No. 6487, and the decisions of the Court of Dispute and the Constitutional Court on the subject,
that the administrative jurisdiction has jurisdiction over the compensation claim for the legally seized section in the concrete case, and since the latest decisions of the Court of Cassation after the reversal are in this direction, it was decided to resist on the grounds that the compensation cases for legal seizure in the lawsuit and the merged case should be heard in the administrative jurisdiction.
Appeal of the Resistence Decision:
12. The decision of resisting was appealed by the counsel for the plaintiffs and the counsel for the defendant administration through participation.
II. DISPUTE
13. The dispute before the General Assembly of Civil Chambers by way of resistance centres on whether the case of expropriation without expropriation based on the claim of legal seizure arising from the zoning restriction should be heard in the judicial jurisdiction or in the administrative jurisdiction.
III. REASON
A- In the examination made in terms of the request of the defendant administration’s attorney for appeal by way of participation;
14. During the discussions held at the General Assembly of Civil Chambers, before the examination of the merits of the case, the first decision of the court was appealed by the attorneys for the plaintiffs and the defendant administration, and the Special Chamber rejected the appeal objections of the defendant administration attorney and issued a decision of reversal, Considering that the decision to resist was appealed by the counsel for the plaintiffs and the counsel for the defendant administration by way of participation, the preliminary question of whether the counsel for the defendant administration, who appealed the decision before the reversal and whose appeal objections were rejected, has legal interest in the appeal of the decision to resist, and in this context, whether it is necessary to decide to reject the appeal request, has been discussed as a preliminary problem.
15. As it is known, legal interest is a condition for appeal as well as a condition for litigation.
16. Since the decision has become final for the party who appealed the first judgement of the court and whose appeal was rejected by the Special Chamber, this party no longer has legal interest in appealing the judgement of resistance.
17. In that case, the appeal request of the defendant administration’s counsel for the resisting judgement by way of participation should be rejected due to lack of legal interest.
B- In the examination made in terms of the appeal requests of the plaintiffs’ counsel
18. The administration, while taking certain actions for the realisation of public purposes due to public interest, must be compatible with the fundamental rights and freedoms in the second part of the Constitution, especially respecting the right to property guaranteed by Article 35.
Although no intervention has been made to the immovable property allocated as a road, park, school, etc. in the zoning plans, the right of the owners to make personal disposals such as building for the future, selling at the fair value, renting, making useful changes, etc., the right to use the powers granted to the owner of the property right has been restricted. In other words, the respondent administration, which does not resort to expropriation or exchange due to the fact that the development plan, which has not been included in the programme for a long time, has not been implemented in practice, renders the owners’ right to dispose of the immovable property unusable for an indefinite period of time, thus the owners are no longer able to benefit from the immovable property in accordance with the essence of the right to property.
20. There is no difference in terms of the result between the actual seizure of a person’s immovable property and preventing it from being used in whole or in part, and the imposition of restrictions on the immovable property owned by that person as a result of the zoning application, both have the same result in terms of limiting the person’s right to property.
21. In this respect, as a natural consequence of the existence of the fact of seizure without expropriation, it is clear that the plaintiffs, who own immovable property whose right of ownership is prevented by the unlawful act of the administration, may request the conversion of the property into value in accordance with the provisions of the expropriation without expropriation, in other words, they may request the administration to give the value equivalent.
22. In the light of the above explanations, when the concept of judicial remedy in the case of legally confiscated immovable property, which constitutes the basis of the dispute, is analysed;
23. The first legal regulation on legally seized immovable properties was included in the provisional Article 6 of the Expropriation Law with the Law No. 6487 dated 24.05.2013, after which this regulation was repealed with Article 34 of the Law No. 6745 and additional Article 1 was added to the Expropriation Law with Article 33 of the same Law.
24. Additional Article 1 added to the Expropriation Law No. 2942 by Article 33 of Law No. 6745 reads as follows: “…Regarding immovable properties whose disposal is legally restricted in a way that touches the essence of the right to property by being allocated to public services and public institutions in the implementation zoning plans, zoning programmes or zoning applications are carried out within a period of five years from the entry into force of the implementation zoning plans, and these immovable properties are expropriated by the relevant administrations within budgetary possibilities, or in any case, zoning plan amendments are made / made to remove the restriction that prevents the use of the right to property.
In the event that the specified transactions are not carried out within this period, the owners of the immovables may file a lawsuit in administrative jurisdiction against the administration responsible for the expropriation of the immovable after completing the reconciliation process stipulated in the provisional Article 6 of this Law and the administrative applications and procedures stipulated in the Zoning Law No. 3194.
In case a lawsuit is filed pursuant to the first paragraph, the value of the immovable or the easement right established on it on the date of the lawsuit shall be determined by the court by conducting an expert examination in accordance with Article 15 of this Law, based on the characteristics of the immovable on the date of the restriction of its legal disposal or the actual seizure, and it shall be decided to register or abandon the immovable or the right in the name of the administration.
The provisions of the third, seventh, eighth and eleventh paragraphs of the provisional Article 6 of this Law shall apply to the lawsuits and proceedings to be filed for the immovable properties within the scope of this Article; the provisions of this Article shall apply to the lawsuits filed before the effective date of this Article but not yet finalised or not finalised; and the provisions of the third, eighth and eleventh paragraphs of the provisional Article 6 shall apply to the finalised but not yet paid decisions.
The two per cent appropriations required to be set aside pursuant to the eighth paragraph of provisional Article 6 of this Law shall be set aside as four per cent. Additional two per cent appropriations shall be used exclusively for the payments to be made within the scope of this additional article and temporary Articles 11 and 12.
In the event that the total amount of the payments to be made exceeds the total amount of the additionally allocated allowance, the payments shall be made in maximum ten years and in accordance with the provision of the eighth paragraph of the provisional Article 6.” With the decision of the Constitutional Court dated 20.12.2018 and numbered 2016/181 E. 2018/111 K. published in the Official Gazette on 05.04.2019, the remaining part of the first paragraph of the article, except for the first sentence, was cancelled on the grounds that it is contrary to Articles 2, 35 and 46 of the Constitution.
25. Therefore, the sentence in the 1st paragraph of the Article “In case the transactions specified within this period are not carried out, the owners of the immovables may file a lawsuit in the administrative jurisdiction against the administration responsible for the expropriation of the immovable after completing the reconciliation process in the provisional article 6 of this Law and the administrative applications and procedures stipulated in the Zoning Law No. 3194.” also remains within the cancelled section.
26. In the concrete case, according to the scope of the file and the expert reports, it was stated that 178,91 m2 of the immovable was foreseen to be abandoned to the road with the construction direction survey and the current zoning plan included in the file, and that the part actually seized consisted of 31,50 m2 of the area abandoned to the road with the zoning plan.
27. As such, considering that in the case at hand, a single immovable has been de facto and de jure seized within the scope of a single zoning plan, the duty to hear this case belongs to the judicial jurisdiction due to the integrity of the immovable and the project. This is also in accordance with the principles of jurisdiction and procedural economy.
28. In that case, while the court should comply with the Special Chamber reversal decision adopted by the General Assembly of Civil Chambers, resisting the previous decision is against the procedure and the law.
29. Therefore, the decision to resist should be reversed.
IV. CONCLUSION:
For the reasons explained;
I- For the reasons stated in sub-paragraph A (§14-17), the appeal request of the defendant administration’s attorney for the decision of resistance by way of participation is rejected due to lack of legal interest,
II- For the reasons stated in sub-paragraph B (§18-29), the appeal objections of the plaintiffs’ counsel shall be accepted and the decision to resist shall be reversed in accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied according to the provisional Article 3 of the Code of Civil Procedure No. 6100, for the reasons and grounds explained in the Special Chamber reversal decision,
In case of request, the advance appeal fee shall be returned to the depositors,
Pursuant to Article 440 of the same Law, it was unanimously decided on 15.04.2021, within fifteen days from the notification of the decision, the way of correction of the decision being open.
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