General Assembly of the Law 2014/99 E. , 2015/1773 K.
“Text Of Jurisprudence”
COURT : Nevsehir 2.The Court Of First Instance
DATE : 05/30/2013
NUMBER : 2013/257-2013/349
At the end of the trial between the parties for the case ”compensation for Decriminalization without expropriation”; Nevsehir 2.17.07.2012 day and 2012/83 E, which were issued by the Court of First Instance regarding the procedural rejection of the case.-2012/298 K. upon the request of the plaintiff’s attorney to examine the numbered decision, the Court of Cassation 5. 14.02.2013 day and 2012/24841 E of the Legal Department.-2013/2184 K. with Ref No.
( “…The case concerns the request to collect the cost of real estate confiscated without expropriation.
The court decided to dismiss the lawsuit petition from the point of view of duty by betting that the administrative judiciary is in charge; the decision was appealed by the plaintiff’s deputy.
Parking area approved development plan on the day the application 07.03.2007 partially, partly the case in areas allocated as primary on immovable property the subject matter of the plaintiff’s prospective personal dispositions such as construction, to make their fair value at selling, renting, such as making useful changes in property rights by limiting the powers of the Constitution given to the owner of the right to use 35. it is understood that this right, guaranteed by the article, has been Decommissioned in such a way as to lead to a deterioration of the fair balance between public interests and individual rights, and the phenomenon of confiscation without expropriation has occurred.
In this case; taking into account the decision of the Grand General Assembly of the Supreme Court on the Unification of Case Law dated 16.05.1956 and numbered 1-6 and the decision of the General Assembly of Law dated 15.12.2010 and numbered 2010/5-662/651, it is accepted that it is within the duty of the Judicial Judiciary to look at the case and the decision should be made according to the result of the discovery to be entered into the basis of the work, while the provision should be made in writing,
It has not been seen correctly….)
the grounds were overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.
APPELLANT : Acting plaintiff
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and as of the date of the decision to resist, H.U.M.K.438 /II as amended by Law No. 2494.in accordance with the provision of the paragraph, the refusal of the request for a hearing was decided and discussed as necessary after the papers in the file were read:
The lawsuit is related to a compensation claim filed based on the restriction of the right to use due to this state of real estate allocated to the public service in accordance with the zoning implementation plan.
In summary, the deputy plaintiff filed a petition; parcel No. 71 141 client stakeholders that are immovable Island development plan, laid out as a path area and the school, and although many years have passed expropriated immovable, whether because of any act of the land register in the commentary that has been found to the client, and judicial decisions, even decisions by the administration in accordance with an actual elatma does not have to be restricted as a result of an immovable property rights that has been accepted for a long time as the public areas allocated to Intervention Development Plan, and is not made of immovable property expropriation, which is the same case for, Stating that the applicant was deprived of the right of ownership guaranteed by the Constitution for an indefinite period of time, he requested and sued to decide on the collection of the real estate and the transfer of ownership to the administration, as well as the collection of the interest that he will receive for the time being 10.000,00 TL.
Defendant N.. B.. the answer is the deputy in summary, The Real Estate belonging to the plaintiff and on the road as laid out in the approved development plan is the primary airport 07.03.2007 the school as an area of expropriated by the special provincial administration of the section should be allocated in the way that whether a claim of expropriation of the owners about the episode plot is allocated by the city on record as the immovable elatilm not restrictive if you have been given a commentary, also in the last general revision and additional coverage of the case, noting that the subject matter contained within the boundaries of the immovable development plan, first of all, he asked that the case be dismissed, and if accepted, the relevant parts of the real estate be registered on behalf of the Municipality or abandoned from the register.
Defendant N.. I.. in summary the answer to the deputy, the court is not competent, not education directorate of animosity to the special provincial administration should be directed to the school in the area that are being made because of the need of immovable property rights and the absence of intervention, noting a dismissal defended.
The court decided to dismiss the case due to the judicial way on the grounds that the place of jurisdiction of the court is the administrative courts in cases of compensation for damages arising from administrative actions and decisions, and the decision was overturned by the Private Department for the reasons described above on the appeal of the plaintiff’s attorney.
The decision to resist was made by the Local Court by repeating and expanding the previous grounds, and the decision to resist was appealed by the deputy plaintiff.
The dispute before the General Assembly of the Law is convened at the point of whether the case based on the claim for legal elimination arising from the restriction of zoning should be considered at the place of judicial jurisdiction or at the place of administrative jurisdiction.
As is known, Article 21 of the Law No. 6487, which entered into force on 11.06.2013. article 6 of the Expropriation Law No. 2942, amended by Article. the third sentence of the tenth paragraph of the article:
“Real estate whose savings are restricted by being allocated to public services and official institutions in the implementation of zoning plans or by applying the relevant laws, administrative applications and transactions provided for in the Zoning Law dated 03.05.1985 and numbered 3194 may be filed in the administrative court after completion. The provisions of this article apply to all cases that have not been decided or whose decision has not been finalized.”
It contains the provision.
On the other hand, based on 25.09.2013 day 2013/93 the Constitutional Court, Decision No. 2013/101 in the sentence; “Kamulastirmasiz hand in order to refer to the administration of the immovable and immovable, without taking actual tenure pass should be allocated to the public service; zoning restrictions and only in the possession of the owners of the immovable to save Malik is continuing to stay with authority, it is subjected to some limitations of the relevant legislation by saying” zoning restrictions resulting from the administrative jurisdiction of lawsuits that can be opened in it is accepted.
A number of restrictions are imposed on the rights of persons to real estate in places allocated for public services by the zoning plan, which is an administrative procedure, and the zoning plan, the administration that does not go to expropriation or clearing, makes the owners’ rights to save on real estate unavailable for an indefinite period of time. Provisional Article 6 of the Expropriation Law No. 2942 amended by the Law No. 6487 of 24.05.2013 on compensation cases to be filed in this case. in accordance with the third sentence of the tenth paragraph of the article, it is necessary to be considered in the administrative jurisdiction.
As a matter of fact, the Supreme Court of Cassation has 30.10.2013 days and 2013/5-603 E., 2013/1503 K. the same principle is adopted in the numbered hymn.
When it comes to this description in the framework of a concrete case, the plaintiff No. 141 71 the majority of the stakeholders of the island that are immovable parcel left and the road is the primary airport development plan, is to be subject to private ownership of the subject section of the case, whether or not the subject matter of this case is limited to the right of the plaintiff and the administration of immovable save about elatma have a de facto, though not legal, it is clear elatma zoning restrictions based on where it resides.
As mentioned above, in cases to be filed against such claims, it is necessary to comply with Provisional Article 6 of Law No. 2942. in accordance with the provision of the tenth paragraph of the article, the Law on which the administrative judiciary is responsible has been adopted by the General Assembly.
In this case, it is in accordance with the procedure and the law for the local court to resist the decision on the procedural rejection of the case due to the judicial path.
The decision to resist must therefore be upheld.
CONCLUSION: It was unanimously decided on 16.09.2015 that the decision of the plaintiff’s attorney to resist the rejection of the appeals should be UPHELD on the grounds described above, that there is no need to charge fees other than the necessary appeal fee has been received in advance.
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