ELATMA CASE WITHOUT EXPROPRİATİON

General Assembly of Law 2017/2032 E. , 2021/497 K.

“Justice Text”

COURT: Civil Court of First Instance

1. At the end of the trial held for the “collection of the value of the immovable confiscated without expropriation” between the parties, at the end of the trial, the Istanbul Anatolian 9th Civil Court of First Instance decided to accept the case in terms of the actually confiscated section, and in terms of the duty of the lawsuit petition, since the administrative judiciary is responsible for the legal confiscation section. The decision regarding the refusal was overturned at the end of the examination made by the 5th Civil Chamber of the Court of Cassation upon the appeals of the plaintiffs’ attorney and the defendant’s attorney, and the Court’s decision to annul the Special Chamber was resisted.
2. The decision to resist was appealed by the attorney of the plaintiffs and the attorney of the defendant administration through participation.
   After the documents in the file were examined by the General Assembly of Law, the necessity was discussed:

I. TRIAL PROCESS
Plaintiff’s Claim:

4. With the petition of the plaintiffs’ attorney; The clients are the owners of the immovable property numbered 435, parcel 53 in Kadıköy district, Erenköy district, that the defendant administration seized a part of the immovable without expropriation during the expansion of Şemsettin Günaltay Street, that the immovable is located in an area where there is a commercial+housing-based construction, and that the remaining part is of no value due to the confiscated area. Claiming that there was a loss of money, he demanded that 8,000,00 TL be collected from the defendant together with the interest, without prejudice to his rights regarding the surplus.
   Response of the Defendant:
5. With the reply petition of the defendant administration attorney; In accordance with the Law No. 5999, it is necessary to reach a settlement first in order to file a lawsuit, that the immovable in question is a cadastral parcel, that the plaintiffs cannot claim compensation if it is determined that the confiscated area is within the 40% DOP segment, and that all property rights in accordance with Article 45 of the Condominium Ownership Law (KMK) stated that this lawsuit cannot be filed without the unanimous approval of the shareholders and that the date of confiscation must be proven and requested the dismissal of the lawsuit.
   Court’s Decision:
6. With the decision of the (closed) Kadıköy 2nd Civil Court of First Instance dated 11.09.2012 and numbered 2011/177 E. 2012/450 K.; Since the request for the section allocated to the road with the zoning plan is in the nature of legal confiscation and the dispute regarding this issue should be resolved in administrative jurisdiction, the dismissal of the case in terms of duty in terms of this request, the acceptance of the case in terms of improvement in terms of actual confiscation, the legal action of 79,972,40 TL from the defendant administration from the date of the lawsuit. It has been decided to give the plaintiffs in proportion to their shares, together with the interest, and to abandon the plaintiffs’ shares in the 31.50 m2 section marked with the letter A on the expert’s sketch as a way out.
   The Special Chamber’s Reversal Decision:
7. This decision of the court was appealed by the attorney of the plaintiffs and the attorney of the defendant administration within the time limit.
8. With the decision of the 5th Civil Chamber of the Supreme Court dated 28.02.2013 and numbered 2012/24960 E. 2013/3284 K.; “…The case is about the demand for the collection of the value of the immovable confiscated without expropriation.
   It was decided by the court to accept the case in terms of the part that was actually seized, and to reject the petition in terms of duty, with the mention that the administrative judiciary is responsible for the part related to the legal seizure; The judgment was appealed by the attorneys of the parties.
   An expert examination has been made. No inaccuracy was observed in the valuation of the immovable, which is in the nature of a land, by making a precedent comparison, and in deciding to collect the price of the part that was actually confiscated as a road.
   Therefore, the objections of the defendant’s administrative attorney are not valid.
   As for the plaintiff’s attorney’s appeal;
   From the evidence and documents in the file; The part of the immovable that is the subject of the lawsuit has been separated as a road in the 1/1000 scaled zoning plan since 2006 and this part has been partially handled as a road, the part that is the road constitutes a whole, therefore the entire price of the section allocated as a road should be decided; Even if this part has not been actually seized, the expropriation duty is not fulfilled within 5 years from the date of finalization of the 1/1000 scaled plan pursuant to the imperative provision of Article 10 of the Zoning Law No. 3194, thus the property right of the owner is limited indefinitely and the project is partially seized as a road. In accordance with the decision of the General Assembly of Law, 15.12.2010 day 2010/5-662/651 and the Supreme Court of Appeals Jurisprudence Unification Grand General Assembly dated 16.05.1956 and numbered 1/6, which states that the whole of it is deemed to have been seized due to its integrity, and the price of the part other than the seized part should be determined. While the case should be accepted, it is decided to reject the case in writing,
   It was not considered correct…” The decision was overturned on the grounds.
   Plaintiff Request in Consolidated File:
9. In the combined lawsuit, the plaintiffs, in the lawsuit petition dated 07.02.2014; In the file numbered 2013/444 E. of the Istanbul Anatolian 9th Civil Court of First Instance, the clients of their clients in Istanbul province, Kadıköy district, Erenköy location, 435 block, 53 parcel numbered t.

They filed a lawsuit on the non-corrosive property due to confiscation without expropriation, that as a result of the lawsuit, a 31.5 m2 section was decided to be abandoned as a road as a result of the actual confiscation, the decision was appealed. They overturned the decision to pay the entire price, the defendant’s request for rectification was also rejected, 31.5 m2 of the case was rehabilitated at a cost of 79,972,40 TL, they reserved their rights regarding the surplus, and in the expert report obtained in the file, the total cost of 178,91 m2 of the experts was 454.217. He stated that they determined it to be .77 TL, that the difference, which is 374,245.37 TL, was due to the necessity of filing an additional lawsuit for the part of the case, and that the case was pending in the file numbered 2013/444 E. of the Istanbul Anatolian 9th Civil Court of First Instance. Anatolian 9th Civil Court of First Instance 2013/44 He demanded and sued that it be merged with the file numbered 4 E.

10. With the decision of Istanbul Anatolian 23rd Civil Court of First Instance dated 18.02.2014 and numbered 2014/51 E. 2014/60 K.; Due to the existence of contact between the parties and the subjects of the case, it was decided to combine this case with the case file of the Istanbul Anatolian 9th Civil Court of First Instance numbered 2013/444 E.
    Decision to Resist:
11. With the decision of Istanbul Anatolian 9th Civil Court of First Instance dated 11.09.2014 and numbered 2013/444 E. 2014/367 K.; The decision numbered 2013/13887 E. 2013/22154 K. of the 5th Civil Chamber of the Court of Cassation and the decisions numbered 2013/5-2435 E. 2014/708 K. of the General Assembly of the Supreme Court of Appeals are the 6th Law of the Expropriation Law No. 2942 amended by Law No. 6487. Considering Article . It was decided to resist on the grounds that compensation cases for legal seizure in the case and the combined case should be heard in the administrative jurisdiction.
    Appeal of the Decision to Resist:
12. Within the duration of the decision to resist, the plaintiffs’ attorney and the defendant’s attorney through participation were appealed by the administration’s attorney.

II. DISPUTE

13. Dispute brought before the General Assembly of Law through resistance; It is gathered at the point of whether the seizure case without expropriation based on the claim of legal seizure arising from the zoning restriction should be handled in the judicial or administrative jurisdiction.

III. REASON
A- In the examination made in terms of the appeal request through the participation of the attorney of the defendant administration;

14. During the negotiations held at the General Assembly of Law, before the examination of the merits of the matter, the first decision of the court was appealed by the attorney of the plaintiffs and the attorney of the defendant administration, the Special Chamber rejected the appeals of the attorney of the defendant administration and decided to overturn the objection, and the decision to resist was given to the defendant administration by way of the plaintiffs’ attorney and the defendant administration. Considering that it was appealed by the attorney, it has been discussed as a preliminary question whether the defendant administrative attorney, who appealed the decision before the reversal and whose appeals were rejected, has legal interest in the appeal against the decision of resistance, and in this context, whether it is necessary to reject the appeal.
15. As it is known, legal interest is a necessary condition for an appeal request, just as it is a condition for litigation.
16. As the decision has become final for the party who appealed the first judgment of the Court and whose request was rejected by the Special Chamber, this party no longer has any legal benefit in appealing the decision to resist.
17. In that case, it should be decided to reject the application of the defendant administration’s attorney for the absence of legal benefit, through participation in the decision of resistance.
    B- In the examination made in terms of the appeal requests of the plaintiffs’ attorney;
18. The administration should respect the right to property, which is in harmony with the fundamental rights and freedoms in the second part of the Constitution, especially guaranteed by Article 35, while taking certain actions for the realization of public purposes due to the public interest.
19. From this point of view, roads, parks, schools, etc. in the zoning plans for a long time. It cannot be said that the administration, which prevents its disposition by remaining passive by not expropriating the immovable that has been allocated as a private property or by not giving the immovable from another place through barter, respects the individual’s property right with the fundamental rights and freedoms contained in the Constitution; because road, park, school etc. in the zoning plans. Although no intervention has been made on the immovable that has been allocated as a private property, the right of the owners to use the powers given to the owner of the property right, such as making personal savings such as making future construction, selling at fair value, renting, making useful changes, has been restricted. In other words, for a long time

The defendant administration, which does not go to expropriation or exchange due to the fact that the zoning plan, which was not included in the program, is not actually implemented, renders the owners’ right of disposition on the immovable unusable for an indefinite period, therefore, the owners do not have the opportunity to benefit from the immovable in accordance with the essence of their right of ownership.

20. As a result, there is no difference between preventing a person’s immovable from being used actively and using it fully or partially, and imposing restrictions that prevent legal use of the immovable property owned by that person as a result of the zoning application, both result in the same result in terms of limiting the person’s property right.
21. In this respect, the natural consequence of the existence of the phenomenon of seizure without expropriation, it is clear that the plaintiffs, who own immovable property whose property rights have been blocked due to the unlawful action of the administration, may demand that the property be converted into a price in line with the provisions of confiscation without expropriation, or, in other words, that the administration be given a value equivalent.
22. In the light of the explanations made above, when the concept of legal remedy in the legally seized immovables, which constitutes the basis of the dispute, is examined;
23. The first legal regulation regarding immovables that were legally confiscated was included in the temporary 6th article of the Expropriation Law with the Law No. 6487 dated 24.05.2013, then this regulation was abolished with the Article 34 of the Law No. 6745 and 33 of the same Law With the article ., additional article 1 has been added to the Expropriation Law.
24. In the additional article 1 added to the Expropriation Law No. 2942 with the 33rd article of the Law No. 6745; “…For immovables whose disposal is legally restricted by being allocated to public services and official institutions in the implementation zoning plans, in a way that touches the essence of the property right, zoning programs or zoning applications are made within five years from the effective date of the implementation zoning plans, and these immovables are expropriated by the relevant administrations or within the budget possibilities. In this case, the zoning plan will be amended to remove the restriction that will prevent him from exercising his property right. In the event that the specified actions are not taken within this period, the owners of the immovables may file a lawsuit against the administration responsible for the expropriation of the immovable after the reconciliation process in the temporary article 6 of this Law and the administrative applications and procedures stipulated in the Zoning Law No. 3194 are completed.
    In the event that a lawsuit is filed pursuant to the first paragraph, the value of the immovable or the easement right established on it at the date of the lawsuit shall be determined by the court; According to Article 15 of this Law, an expert examination is carried out, based on the qualifications of the immovable at the time the legal disposition was restricted or the actual seizure, and it is decided that the immovable or the right be registered or abandoned in the name of the administration.
    In the lawsuits and proceedings to be filed against the immovables within the scope of this article, the provisions of the third, seventh, eighth and eleventh paragraphs of the temporary article 6 of this Law, and the provisions of this article for the lawsuits filed before the effective date of this article but not yet settled or the decision of which has not been finalized yet. For the decisions that are not paid, the provisions of the third, eighth and eleventh paragraphs of the temporary article 6 are applied.
    The two percent appropriations required to be allocated pursuant to the eighth paragraph of the temporary article 6 of this Law are allocated as four percent. The additional two percent appropriations are used exclusively for payments to be made within the scope of this additional article and temporary 11th and 12th temporary articles. In case the total amount of the payments to be made exceeds the total of the additional appropriation, the payments are made in a maximum of ten years and in accordance with the provision of the eighth paragraph of the temporary article 6. With the decision of the Constitutional Court dated 20.12.2018 and numbered 2016/181 E. 2018/111 K. published in the Official Gazette on 05.04.2019; Except for the first sentence of the first paragraph of the article, the part of the article was canceled on the ground that it is contrary to the Articles 2, 35 and 46 of the Constitution.
25. Therefore, in the first paragraph of the article, “In the event that the procedures specified in the first paragraph of the article are not carried out within this period, the owners of the immovables may file a lawsuit against the administration responsible for the expropriation of the immovable after the reconciliation process in the temporary article 6 of this Law and the administrative applications and procedures stipulated in the Zoning Law No. 3194 are completed.” sentence remains in the canceled section.
26. In the concrete case, according to the scope of the file and the expert reports, the construction direction survey and the current zoning plan included in the file and the 178.91 m2 part of the immovable is foreseen to be abandoned to the road, and the area left to the road with the zoning plan of the actually confiscated part, 31. It is stated that it consists of a 50 m2 part.
27. As such, considering that a single immovable was actually and legally seized within the scope of a single zoning plan in the case at hand, it is considered that the immovable and

due to the integrity of the project, the task of dealing with this case rests with the judiciary. Because this situation is also in accordance with the principles of jurisdiction and procedural economy.

28. In that case, while the decision of the Special Chamber to reverse, which was also adopted by the Court by the General Assembly, should be followed, it is against the procedure and the law to resist the previous decision.
29. Therefore, the decision to resist must be reversed.

IV. CONCLUSION:
For the reasons explained;
I- REJECTING the appeal request by way of participation in the decision of resistance of the defendant administrative attorney for the reasons stated in subparagraph A (§14-17) due to the lack of legal benefit,
II- The Code of Civil Procedure no. 1086, which is being implemented in accordance with the temporary article 3 of the Code of Civil Procedure No. 6100, due to the reasons and reasons explained in the decision of the Special Chamber to reverse the decision of resistance and the acceptance of the appeal objections of the plaintiffs’ attorney for the reasons specified in subparagraph B (§18-29). DESTROYING in accordance with article 429 of the
Upon request, refund of the appeal fee to the depositors,
Pursuant to Article 440 of the same Law, it was unanimously decided on 15.04.2021, with the possibility of rectification within fifteen days following the notification of the decision.