General Assembly of Law 2017/1756 E. , 2017/1553 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case of “cancellation and registration of land titles based on the decoupling certificate, if not compensation”, Gebze 2. 09.07.2013 day and 2012/279 E, which were issued by the Court of First Instance on the refusal of the case. and 2013/328 K. the appeal examination of the numbered decision was requested by the deputy plaintiff and the Court of Cassation 14. The day of 06.05.2014 of the Legal Department and 2014/2244 E.-2014/5823 K. by his numbered decision:
“…The case concerns the cancellation of the title deed based on the deed allocation document and the request for compensation if it is not registered.
The defendant has defended the dismissal of the case.
The court decided to dismiss the case from the point of view of the judicial path on the grounds that the dispute will be resolved in the administrative jurisdiction.
The decision was appealed by the deputy plaintiff.
The General Assembly of the Supreme Court of Law dated 04.12.1996 and 1996/14-763-864 as stated in the numbered decision, the title deed allocation document is not a property document, but only a certificate of ownership that determines the actual use and provides the person concerned with a personal right. The existence of the land registry allocation document is not sufficient for registration in the name of the person or his heirs to whom the allotment is made in the name of the allotment place. In order for the place covered by the allotment to be registered on behalf of the right holder;
-Availability of a land registry allocation document that is legally valid,
-Article 18 of the Law No. 3194 on the subject of allocation.zoning plan in accordance with article 3290 or correctional-zoning plans have been made in accordance with law No. 2981 as amended by law No. 3290,
-The relevant one has not been allocated from another place in accordance with the land registry allocation document,
-The fact that the place subject to allocation has not been allocated to the public service and has remained in the housing area according to the zoning plan,
-Exploration through expert experts at the local area in order to determine whether the place subject to allocation and the real estate required for registration are the same place and the characteristics of the real estate,
-The cost of the land subject to allocation has been paid, if it has not been paid, the fair value of the real estate at the time of the case has been determined through expert witnesses and stored at the court teller or at the place of deposit to be determined before the decisionment.
-During the creation of zoning plots, it is necessary to determine whether the share of the regulatory partnership has been cut off from the parcel subject to zoning in accordance with Article 18 / b-c of the law No. 2981 amended by law No. 3290, if it has been cut, the rate applied if it has been cut,
-By the court, the investigation to be carried out in accordance with the aforementioned terms and conditions as a result of the registration request for the acceptance of the legal conditions is deemed to occur if different 2981 of law with the law 3290 10/C-2 applied in accordance with the allocation, subject to the share of the partnership arrangement in place (DOP) also taking into consideration that the plaintiff is binding to be done at this rate by the amount of allocated with the registration of the remaining amount after discount must be decided.
Other persons other than those written in the law do not have the opportunity to make a request based on the Zoning Amnesty Law. However, according to Article 25 of the Regulation on the Application of Law No. 2981, some articles of which have been amended and some articles have been added with Law No. 3290. The Article allowed the allocation made to persons covered by the law to be provided by them to third parties. However, in such cases, it is necessary to investigate whether the persons who inherit from the allotment holders can benefit from the Law No. 2981. According to Article 13 / a of Law No. 2981, it is mandatory that the persons to be allocated a land plot do not have a plot of land available for housing within the municipal and decommissioned areas where he or her spouse or minor child live, or an independent part of a house or apartment, or a structure used as a part of a workplace.
In addition to all this, Article 2 of the Code of Administrative Procedure No. 2577 entitled “Types of administrative cases and the limit of administrative jurisdiction”. in its article, the types of administrative cases and administrative jurisdiction are clearly regulated. According to this regulation, cancellation cases filed for decommissioning administrative actions due to one of the aspects of authority, form, reason, subject and purpose, as well as for their violation of the law, full judicial cases filed for administrative actions and actions, and cases related to disputes arising between the parties due to administrative contracts are shown as cases.
It has been stated that the jurisdiction is limited to the supervision of the compliance of administrative actions and transactions with the law, no regulation has been introduced that the executive office will decide in the form of administrative actions and transactions or in a way that removes the discretion of the administration by restricting the execution of the form and principles set out in the law.
Considering the concrete case in the light of these principles; the plaintiff has requested that the cancellation of the title deed and compensation be decided if it is not registered based on the title deed allocation document, and since an administrative action and cancellation of the decision are not requested as described above, such disputes should be resolved in a judicial court. While the court should make a decision on the merits of the case by evaluating the evidence of the parties in accordance with the principles described above by our department, the rejection of the case by betting was not considered correct because the administrative judiciary was in charge, so the decision had to be overturned. …”
at the end of the retrial, the court resisted the previous decision by being overturned on grounds and the file was returned to its place.
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 the papers in the file were read, the requirement was discussed:
The case concerns the cancellation and registration of the title deed based on the land registry allocation document, the request for compensation if this is not possible.
The defendant’s deputy has filed a judicial appeal, claiming that the administrative judiciary is in charge of the case.
05.11.2012 day and 2012/140 E of the Dispute Tribunal by the local court., 2012/223 K. according to the decision No. 2981, it was decided to reject the petition of claim due to the judicial way on the grounds that the duty of looking at the cases filed on the basis of the land registry allocation document issued in accordance with the Law No. 2981 is in the administrative jurisdiction. The decision was appealed by the deputy plaintiff, it was overturned by the Special Chamber on the grounds shown above, and it was resisted by the court in the previous decision.
The decision to resist was appealed by the deputy plaintiff.
Resistance to the law through the General Board of the conflict from the front of 2981 held according to law opened land allocation based on documents filed in relation to the collection of compensation and without registration prompt cancellation of deed of administrative or judicial proceedings at the place of jurisdiction can also be seen in the point are collected.
First of all, it is useful to explain the legal regulations related to the subject.
In our country, judicial paths are classified into three main groups as constitutional judiciary, administrative jurisdiction and judicial jurisdiction, and administrative jurisdiction can be defined as a judicial unit that makes decisions on resolving disputes arising from administrative activities of the administration in the field of administrative dec, or tries to resolve legal disputes between individuals and the administration.
No. 2576 regional administrative Courts, administrative courts and tax courts in the law on the establishment and duties of the Administrative Procedure Law No. 2577, the regional administrative court, the Administrative Court and the Tax Court has been submitted to the provisions relating to the functioning of the general administrative administrative administrative court with the boundaries of the types of cases what are the duties of the jurisdiction that has been clearly identified. 2 of the Code of Administrative Procedure No. 2577 entitled “Types of administrative cases and the limit of administrative jurisdiction”. in its article, the types of administrative cases are considered. Administrative cases under this provision; in case of cancellation opened up about administrative procedures, administrative actions and procedures of judicial arbitration and litigation directly opened by the personal rights arising from projected ones muhtel full concession contracts and public services for the execution of any administrative sartlasma uyusmazli except in relation to other litigation and contract disputes between the parties consists of the laws given by.
According to the current situation, “full jurisdiction” cases that will be filed by persons who have suffered losses due to administrative actions and actions will be considered and resolved at the administrative jurisdiction. An administrative act consists of positive or negative behaviors and actions that public administrations and institutions perform in accordance with the rules and requirements of administrative law in relation to public office. Administrative procedure is the treatment carried out on the basis of administrative laws. The actions and operations of the administration are the views of its activities in legal and material life in accordance with the rules and requirements of administrative law, using its public power (public authority) in the field of public law.
Administrative jurisdiction is limited to the supervision of the compliance of administrative actions and transactions with the law. Administrative courts cannot conduct an internal audit. They cannot make a judicial decision in such a way as to restrict the performance of the executive duty in accordance with the forms and principles set out in the laws, as an administrative act and transaction, or to remove the discretion of the administration (Article 2/2 of the Law No. 2577).
On the other hand, Article 15/1-a of the Code of Administrative Procedure No. 2577 stipulates that it will be decided to dismiss cases filed in matters where the judicial judiciary is in charge. Thus, the cases where the laws clearly consider the judicial judiciary to be in charge were excluded from the scope of the administrative judiciary; in these cases, it was adopted that the case would be considered in the judicial judiciary regardless of the nature of the process subject to the case.
Looking at the explanations this policy and in the light of a concrete case: the plaintiff at the request of the administrative process of personal possession that recognizes the rights concerned and formed as a result of a land allocation with a certificate of cancellation of registration of title deed by document basis registered in the name of Plaintiff, and it is not moved if this is not possible, building on the value of the collection is related to. In the current case, there is no dispute about the issuance of a certificate of allocation of land titles. Because the title deed allocation document issued in favor of the plaintiff’s dealer Rafet Duman was written to the declaration house of the title deed with 9079 evmiye dated 01.06.1987.
Then allocate land 2981 certified in accordance with the law in places, the actions of the administration of land allocation procedures, and end with the issuance of the document, the subject matter of the case and the decision for the cancellation of registration to the same immovable, however, are considered together when issues that can be decided in judicial proceedings; land allocation based on documents to be opened by those who claim to be in the case of cancellation and registration of the deed, should be regarded as the duty of the judicial courts.
In this respect, it is not correct to make a decision of non-duty with a bet because the administrative jurisdiction is in charge without taking into account the material and legal facts mentioned above by the court.
As such, the decision of the Special Chamber adopted by the local court and the General Assembly of the Law must be followed, while resisting the previous decision is contrary to the procedure and law.
Therefore, your decision to resist should be overturned.
S O N U U Ç: It was decided unanimously on 06.12.2017 that the decision of the plaintiffs’ attorney to resist the acceptance of appeals would be OVERTURNED for the reasons shown in the decision of the Private Office to overturn, if requested, the fee in advance of the appeal would be returned to the depositor, and the way to correct the decision would be closed.
You can read our other articles and petition examples by clicking here