07 Jan VIOLATION OF THE RIGHT OF OWNERSHIP DUE TO EXPROPRIATION OF IMMOVABLE PROPERTY THAT HAS BEEN DISPLACED BY ILLEGAL PARCEL PROCESSING
Events
The applicant filed a lawsuit against the Municipality with a request to cancel the zoning application process 1. He filed an annulment lawsuit in the Administrative Court. As a result of the trial, 1. The Administrative Court has canceled the zoning application process. The decision of the court of first instance was finalized without appeal. The municipality has not implemented a new zoning application process in accordance with the cancellation decision.
TOKI has filed a lawsuit against the applicant in the Court of First Instance for the determination and registration of the expropriation fee. The Civil Court of First Instance accepted the case and ruled on the expropriation price determined by the expert witness. The Supreme Court of Cassation approved the decision of the Court of First Instance stating that the decision is in accordance with the procedure and the law. The request to correct the decision was also rejected by the Supreme Court.
Count
The applicant claimed that the right of ownership was violated due to the determination of the expropriation price filed for the real estate granted from another place as a result of the zoning application process and the determination of the expropriation price without taking this situation into account, even though the zoning application process was canceled while the registration case was ongoing.
Evaluation of the Court
It is indisputable that the expropriation of the applicant’s real estate constitutes an interference with his right to property. There is no hesitation in the fact that TOKI has the expropriation authority and can use the expropriation authority provided that it is in accordance with the procedures in the law. However, it is clear that if the courts determine that the expropriation process and the transactions that are the basis of the transaction are unlawful, the registration of real estate in the name of TOKI will become devoid of legal basis.
In the concrete case, the expropriation procedures were carried out on the basis of the fact that the immovable property numbered 643 parcels was in the ownership of the applicant. However, the zoning application process related to the transfer of parcel 536, which is in the applicant’s possession, to parcel 643 is 1. It was canceled by the decision of the Administrative Court. Therefore, the legal basis for transferring the applicant’s real estate to parcel 643 with the same name as the zoning application has disappeared.
On the other hand, the district where the applicant’s real estate is located has been converted into a slum prevention zone by the nazim zoning plan and the 2nd implementation zoning plan. It is understood that it was canceled by the decision of the Administrative Court. 2. At the applicant’s appeal stage. It is seen that the Administrative Court informed the Supreme Court of the cancellation decision. However, the Supreme Court subsequently upheld the decision of the court of first instance without making an assessment on this issue.
2nd Council of State. Although there is no information in the file regarding the result of the decision correction application made by TOKI against the decision of the Administrative Court to approve the decision, it is clear that the changes to the zoning plan, which is one of the bases of the expropriation process as of the date of the cancellation decision, have disappeared from the legal realm.
In this case, it was understood that the deprivation of the applicant’s property became devoid of legal basis due to the fact that both the zoning application process for the relocation was canceled and the changes to the zoning plans involving the North Star Urban Transformation Project, which is the basis of the expropriation process, were canceled.
The Constitutional Court has decided that the right to property has been violated on the grounds described.
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