General Assembly of Law 2017/2032 E. , 2021/497 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
1. At the end of the trial between the parties for the case “Collection of the decommissioned real estate without expropriation”, Istanbul Anadolu 9. The decision on the acceptance of the case from the point of view of the actually confiscated part issued by the Court of First Instance, and on the rejection of the lawsuit petition from the point of view of duty with a bet, since the administrative jurisdiction is in charge of the section on legal confiscation, the Supreme Court 5 on the appeals of the deputy plaintiffs and the deputy defendant administration. The examination by the Legal Department was eventually overturned, and the Court resisted the decision to demolish the Private Apartment.
2. The decision to resist was appealed by the deputy plaintiffs and the deputy defendant administration through participation.
3. After reviewing the documents in the file by the General Assembly of the Law, they were discussed as necessary:
I. THE JUDICIAL PROCESS
The Plaintiff Prompt:
4. With the petition of the acting plaintiffs; Kadıköy district of their clients, Erenköy quarter of island No. 53 435 parcel of real estate owners, Semsettin Gunaltay street during the widening of the defendant that had been confiscated without the deeds of the administration part of an immovable, the immovable trade+konuteksenli of construction that is located in a region that is hand-thrown in the remaining part of the field due to the value loss occurred by asserting that the rights not to stay on the surplus 8.000,00 TL with the interest from the defendant to the decision that you have requested be given to the collection, with the reclamation petition dated 11.06.2012, he has rectified his case as 79.972,40TL.
The Defendant’s Answer:
5. According to Law No. 5999, a compromise must be reached in order to file a lawsuit, the real estate subject to litigation is a cadastral parcel, if it is determined that the confiscated area remains within the 40% DOP zone, the plaintiffs cannot seek compensation, 45 of the Condominium Ownership Law (KMC). according to the article, this case cannot be opened without the unanimous approval of all shareholders and the date of confiscation must be proved, stating that the case should be decided to dismiss.
The Decision Of The Court:
6. (Closed) Kadikoy 2. The decision of the Court of First Instance dated 11.09.2012 and dated 2011/177 E. 2012/450 K. by his numbered decision; since the request for the section specific to the road with the zoning plan is a legal seizure and the dispute over this issue must be resolved in administrative jurisdiction, the rejection of the case in terms of duty in terms of this request, the acceptance of the case in accordance with the reclamation in terms of actual seizure, the transfer of TL 79.972.40 from the respondent administration with legal interest from the date of the case to the plaintiffs at the rate of their shares, the expert’s sketch in the section of 31.50 m2 marked with the letter A it was decided to abandon the shares belonging to the plaintiffs as a way out.
The Decision of the Special Department to Disrupt:
7. This decision of the court was appealed by the deputy plaintiffs and the deputy defendant administration during the period.
8. Court of Cassation 5. The Law Department has a certificate dated 28.02.2013 and dated 2012/24960 E. 2013/3284 K. by its numbered decision; “…The case concerns the request to collect the cost of real estate confiscated without expropriation.
It was decided to accept the case from the point of view of the part actually confiscated by the court, and to reject the petition for the case from the point of view of the duty, since the administrative jurisdiction is in charge of the section related to legal confiscation; the decision was appealed by the party’s deputies.
An expert examination was conducted. There was no failure to evaluate the land-based real estate by comparing it with precedent and deciding to collect the price of the dec that was actually confiscated as a way.
For this reason, the appeals of the defendant administrative deputy are not in place.
As for the appeal of the plaintiffs’ attorney;
From the evidence and documents found in the file; since 2006, the section of real estate subject to litigation has been separated as a road in the 1/1000 scale zoning plan, and this section has been partially confiscated as a road, the part that is a road forms a whole, so the cost of the entire section allocated as a road should be determined; even if this section has not actually been confiscated, 10 of the Zoning Code No. 3194. according to the amir provision of article 15.12.2010 of the General Assembly of the Law stating that the task of expropriation should not be fulfilled within 5 years from the date of finalization of the 1/1000 scale plan, the owner’s property right should be limited indefinitely and partially confiscated as a way, and the entire part should be confiscated in accordance with the integrity of the project and the cost of the part other than the confiscated part should also be ruled on 15.12.2010 day 2010/5- 662/651 and decision of the 16.05.1956 days and 1/6 of the Grand General Assembly of the Supreme Court of Jurisprudence Unification, while the case should be accepted, a decision should be made to dismiss the case in writing,
It was not considered correct…” the decision was overturned on the grounds.
Plaintiff’s Request in the Merged File:
9. In the lawsuit petition dated 07.02.2014, after the plaintiffs in the merged case overturned the attorney; Istanbul Anadolu 9. 2013/444 E of the Court of First Instance. in his numbered file, his clients filed a lawsuit for expropriation of real estate No. 435 island, 53 parcel, Erenkoy locality, Kadıköy district, Istanbul province, as a result of which it was decided to leave a section of 31.5 m2 as a road as a result of the actual confiscation of the case, the decision was appealed to the Supreme Court 5. The Law Department has overturned the decision to pay for the entire 178.91 m2 section that was left on the road in the zoning and part of which was confiscated, the defendant’s request to correct the decision was also rejected out of place, the 31.5 m2 part of the case was corrected at a cost of 79.972,40 TL, they reserve their rights to the surplus, in the expert report received in the file, the total price of the 178.91 m2 part of the expert witnesses received in the file They have determined that 454.217.77TL, dec this reason, this case was opened due to the fact that an additional lawsuit was filed in terms of the difference of 374.245, 37 TL and the obligation to request it was october, Istanbul Anadolu 9. 2013/444 E of the Court of First Instance. in his numbered file, he stated that the case was derdest and that the case was Istanbul Anadolu 9. 2013/444 E of the Court of First Instance. he has requested and sued to be merged with the numbered file.
10. Istanbul Anatolia 23. The decision of the Court of First Instance dated 18.02.2014 and dated 2014/51 E. 2014/60 K. by its numbered decision; Due to the fact that there are contacts between the parties and the subjects of the case, this case is referred to as Istanbul Anadolu 9. dec. 2013/444 E of the Court of First Instance. it was decided to merge it with the numbered case file and close the basis in this way.
The Decision to Resist:
11. Istanbul Anatolia 9. The decision of the Court of First Instance dated 11.09.2014 and dated 2013/444 E. 2014/367 K. by its numbered decision; 5th Supreme Court of Cassation. 2013/13887 E of the Legal Department. 2013/22154 K. decision No. 1 and again of the General Assembly of the Supreme Court of Law 2013/5-2435 E. 2014/708 K. decisions No. 6 of the Law No. 6487 and the Expropriation Law No. 2942 as amended. take a hand item when you are considering legal-related cases it is the duty of the Administrative Court, and the court considering the dispute decided by decisions of the Constitutional Court about the topic, where it is in relation to a concrete case in hand, as the legal compensation in terms of Section thrown it is the duty of the administrative judiciary, the Supreme Court has the final decision is in the direction of the case and after the break in the case, since the case of combined legal compensation for the Administrative Court to lend a hand should be seen in its decision to resist on the grounds that it has been given.
Appeal of the Decision to Resist:
12. The decision to resist was appealed by the deputy plaintiffs and the deputy defendant administration through participation within the period of time.
II. DISPUTE
13. The dispute that comes before the General Assembly of Law through resistance is being collected at the point of whether the expropriation-free eta case based on the legal eta claim arising from the zoning restriction should be considered at the judicial jurisdiction or at the administrative jurisdiction.
III. Reason
A- In the examination conducted in terms of the request for appeal by the way of participation of the defendant’s administrative deputy;
14. Considering that the first decision made by the court was appealed by the plaintiffs’ attorney and the defendant’s administrative deputy, the decision to overturn the defendant’s administrative deputy’s appeals was rejected by the Special Department, and the decision to resist was appealed by the plaintiffs’ attorney and the defendant’s administrative deputy through participation, the decision to resist was appealed by the plaintiffs’ attorney and the defendant’s administrative deputy, who appealed the decision before the reversal and the defendant’s administrative deputy’s appeals were rejected whether there is a legal interest in appealing the decision, in this context, the issue of whether it is necessary to decide on the rejection of the appeal request has been discussed as a preliminary issue.
15. As is known, legal benefit is a condition necessary for an appeal request, as well as a condition for a lawsuit.
16. Having appealed the first decision of the court and the decision has been finalized from the point of view of the party who rejected this request by the Special Chamber, there is no longer any legal benefit in appealing the decision of this party to resist.
17. In that case, it should be decided to reject the appeal request from the absence of legal benefit by participating in the provision of resistance of the defendant’s administrative deputy.
B- In the examination of the plaintiffs’ attorney’s appeal requests;
18. The Administration, due to the public interest, takes a number of actions to achieve public goals, in accordance with the fundamental rights and freedoms contained in the second part of the Constitution, especially 35. the right to property guaranteed by the article must be respected.