Violation Of The Right Of Property Due To The Expropriation Of The Immovable Relocated By Unlawful Parceling Process
Events
The applicant filed an action for cancellation of the zoning application procedure against the Municipality before the 1st Administrative Court. As a result of the trial, the 1st Administrative Court cancelled the zoning application procedure. The first instance court decision became final without appeal. The Municipality did not carry out a new zoning application process in line with the cancellation decision.
TOKİ filed a lawsuit against the applicant before the Civil Court of First Instance for the determination and registration of the expropriation value. The Civil Court of First Instance accepted the case and awarded the expropriation value determined by the expert. The Court of Cassation upheld the decision of the Civil Court of First Instance, stating that the decision was in accordance with the procedure and the law. Request for correction of the judgement was also rejected by the Court of Cassation.
Allegations
The applicant claimed that his right to property was violated due to the determination of the expropriation price for the immovable given from another location as a result of the zoning application process, and the determination of the expropriation price without taking this into account, although the zoning application process was cancelled while the registration case was ongoing.
Assessment of the Court
It is undisputed that the expropriation of the applicant’s immovable property constituted an interference with the right to property. There is no doubt that TOKİ has the power of expropriation and can use its expropriation power provided that it complies with the procedures in the law. However, it is clear that the registration of the immovable property in the name of TOKİ will be devoid of legal basis if the courts determine that the expropriation process and the transactions underlying the process are unlawful.
In the concrete case, the expropriation proceedings were carried out on the basis of the fact that immovable parcel 643 was owned by the applicant. However, the zoning application process regarding the transfer of the parcel numbered 536, which was owned by the applicant, to parcel numbered 643 was cancelled by the decision of the 1st Administrative Court. Therefore, the legal basis for shifting the applicant’s immovable property to parcel 643 of the same block with the zoning application has disappeared.
On the other hand, it is understood that the master zoning plan and the implementation zoning plan, which transformed the neighbourhood where the applicant’s immovable was located into a slum prevention zone, were also cancelled by the decision of the 2nd Administrative Court. It is seen that the applicant informed the Court of Cassation of the cancellation decision of the 2nd Administrative Court at the appeal stage. However, the Court of Cassation subsequently upheld the decision of the court of first instance without making an assessment on this issue.
Although there is no information in the file regarding the outcome of the rectification application made by TOKİ against the decision of the Council of State upholding the decision of the 2nd Administrative Court, it is clear that as of the date of the cancellation decision, the zoning plan amendments, which were one of the bases of the expropriation process, have disappeared from the legal world.
In this case, it is understood that the deprivation of the applicant’s property has become devoid of legal basis in view of the cancellation of both the zoning application process regarding the immovable property and the cancellation of the zoning plan amendments involving the North Star Urban Transformation Project, which constituted the basis of the expropriation process.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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