Court Of Cassation Decision On Determination Of Expropriation Value
T.C. JUDICIARY
5th Civil Chamber
Basis: 2016/3179
Decision: 2016/11873
Date of Decision: 14.06.2016
THE CASE FOR THE DETERMINATION OF THE EXPROPRIATION VALUE- THE EXPROPRIATION VALUE DETERMINED AFTER THE REVERSAL IS THE SAME AS THE PRICE RULED WITH THE FIRST DECISION – THE ENTIRE EXPROPRIATION PRICE WAS PAID TO THE DEFENDANT – LEGAL INTEREST SHOULD BE APPLIED TO THE PRICE
SUMMARY: Since the expropriation price determined after the reversal is the same with the first decision and the full expropriation price was paid to the defendant with the first decision, it is inappropriate not to consider that legal interest should be charged on the determined expropriation price from 19.12.2011 until 15.06.2012, the date of the first decision.
(2942 S. K. art. 10)
Case and Decision: At the end of the trial held due to the lawsuit between the parties for the determination of the expropriation price and registration of the expropriated immovable on behalf of the plaintiff administration based on Article 10 of the Expropriation Law No. 2942 amended by Law No. 4650: The Supreme Court of Appeals has been requested to review the judgment with the petition filed by the attorney of the plaintiff administration and the defendant, and after the documents in the file were read and the dispute was understood, the necessity was discussed and considered.
The court has made an investigation and made a judgment in accordance with the reversal decision and the decision has been appealed by the parties.
Although the court has complied with the reversal order, the requirements of the reversal have not been fully fulfilled. Namely
1) Determination of excessive price in writing with an improper justification, without considering that the additional report dated 25.06.2014 should be taken as a basis for the judgment, considering that the devaluation of the easement previously passed in favor of the General Directorate of TEK should be reflected in the price of the immovable subject to the lawsuit in accordance with the subparagraph 1 of the reversal decision complied with,
2) Establishing a judgment in a way to create hesitation in execution instead of canceling the title deed of the 667,80 m2 part of the immovable property numbered 112/23 parcel located in Kurtuluş neighborhood, Köse district, Gümüşhane province, subject to the lawsuit,
3) Since the expropriation amount determined after the reversal is the same as the amount decided with the first decision and since the entire expropriation amount was paid to the defendant with the first decision, legal interest should be charged on the determined expropriation amount from 19.12.2011 until 15.06.2012, the date of the first decision,
Even if it is not correct; since the correction of these mistakes does not require a retrial,
In the judgment paragraph of the reasoned decision;
a) To replace the figure (7.164,52-TL) in paragraph 3 with the figure (6.212,52-TL),
b) To add a sentence as a separate sub-paragraph (If the overpaid 950,00-TL amount has been paid to the defendant, to collect it from the defendant and pay it to the plaintiff administration, and if not, to return it to the plaintiff administration),
c) To remove sub-paragraph 1 in its entirety and replace it with the sentence (WITH THE ACCEPTANCE OF THE LAWSUIT, to cancel the title deed registration of the 667,80 m2 portion of the immovable property numbered …………… 112/23 parcel dated 14/03/2012, shown as 23b in red color in the science expert report and sketch dated 14/03/2012, and to register the title deed in the name of the plaintiff administration, and to consider the science expert report and sketch dated 14/03/2012 as an annex to the decision),
d) To add a sentence as a separate subparagraph (To apply legal interest to the determined price for the period from 19.12.2011 until 15.06.2012, the date of the first decision),
It was unanimously decided on 14.06.2016 to affirm the judgment as amended, to refund the prepaid appeal fees when requested and to register the appeal fees to the Treasury. (¤¤)
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