Even If There Is No Actual Seizure By The Administration, The Administrative Jurisdiction Has Jurisdiction In Seizure Based On Zoning Restriction
General Assembly of Civil Chambers 2014/1405 E. , 2016/1059 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the lawsuit between the parties for “the collection of the price of the immovable property seized without expropriation”; Upon the request of the plaintiffs’ attorneys for an appellate review of the decision dated 15.05.2012 and numbered 2011/504 E.-2012/196 K., which was given by Antalya 8th Civil Court of First Instance on the procedural dismissal of the lawsuit due to jurisdictional reasons, with the decision of the 5th Civil Chamber of the Court of Cassation dated 22.01.2013 and numbered 2012/20155 E.-2013/663 K;
(…The lawsuit is related to the claim for the collection of the price of the property seized without expropriation.
The court decided that the court has no jurisdiction on the grounds that the administrative jurisdiction has jurisdiction; the judgement was appealed by the plaintiffs’ attorneys.
In the examination, it has been determined that the immovable property subject to the lawsuit is reserved as a market place in the zoning plan and has not been seized.
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Pursuant to the decision of the Supreme Court of Appeals General Assembly of Civil Chambers dated 15.12.2010 and numbered 2010/5 – 662/651 on a similar subject, even if the places allocated for public service such as roads, schools, green areas, market places in the zoning plan have not been seized, the price will be awarded, in accordance with Article 10 of the Zoning Law No. 3194. Pursuant to the mandatory provision of Article 10 of the Zoning Law No. 3194, the immovable property should be paid due to the failure of the defendant Municipality to fulfil the expropriation duty in accordance with the purpose of separation within 5 years from the date of finalisation of the 1/1000 scale application zoning plan and the indefinite restriction of the property right of the owner.
On the other hand, unless there is a decision of the Court of Dispute regarding a file, this case regarding the same immovable shall be heard by the judicial jurisdiction in accordance with the Unification of Case Law decision dated 16.05.1956 and numbered 1/6.
In this respect, deciding that the court has no jurisdiction without considering that the date when the immovable was first allocated to the public such as road, school, green area, market place in the zoning plan should be determined and the necessary examination and research should be made and a judgement should be made according to the result,
was 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.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of resistance was appealed in due time and the papers in the file were read, the necessity was discussed:
The lawsuit is related to the claim for the collection of the price of the immovable property seized without expropriation.
Court ruled that the defendant administration allocated the immovable as a market place with unilateral will in the zoning plan made by using public power, did not compensate the price of the immovable, this action of the administration is a damaging action and will constitute the subject of a full judgement case in accordance with Article 2/1-b of the Administrative Procedure Law, Since the place of resolution of the dispute between the parties is the administrative jurisdiction, it was decided to dismiss the case procedurally due to jurisdictional reasons, and upon the appeal of the plaintiffs’ attorney, the judgement was reversed by the Special Chamber for the reasons explained in the title section above, and the court resisted the previous decision.
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The decision of resisting was appealed by the plaintiffs’ attorney.
Dispute before the General Assembly of Civil Chambers by way of resisting; although there is not yet an action of the administration that has the nature of actual seizure on the immovable property in which the plaintiffs are shareholders, the case regarding the request for the collection of the price of the immovable property seized without expropriation, which will be opened due to its allocation as a market place in the zoning plan, will be examined in the judicial jurisdiction or in the administrative jurisdiction.
Zoning plan, which is an administrative act, imposes certain restrictions on the rights of persons on immovable properties in places allocated for public services with the zoning plan, and the administration, which does not go to expropriation or exchange, makes the owners’ rights of disposal on the immovable unusable for an indefinite period of time. In this case, the compensation lawsuits to be filed must be heard by the administrative judiciary.
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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 understood that the entire immovable registered on block 3768, parcel 1 in Arapsuyu neighbourhood, Konyaaltı District, Antalya Province, where the plaintiffs are shareholders, is allocated as a market place in the zoning plan, and according to the zoning plan in force, the immovable is one of the places that cannot be subject to private property, and as such, although there is no actual seizure by the administration about the immovable subject to the lawsuit, there is a legal seizure based on the zoning restriction.
As stated above, since the administrative jurisdiction is responsible for the lawsuits to be filed against such claims, the decision of the local court to resist is appropriate and the decision to resist should be approved.
CONCLUSION:
It was unanimously decided on 16.11.2016 that the appeal objections of the plaintiffs’ attorneys were rejected and the decision to resist was upheld for the reasons explained above, and since the necessary appeal decision fee had been paid in advance, no further fees were required.
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