Document Type : Original Article

Highlights

Restriction of property rights by the Commission ‌ Article 5 of the Law on the Establishment of the Supreme Council of Urban Planning and Architecture in the Mirror of the Votes of the General Assembly of the Court of Administrative Justice

Observance of laws and non-departure from the scope of legal authority is one of the most important conditions for the acquisition of land and property; Which take place within the framework of public plans, in order to establish compromise and coexistence in the conflict between the provision of public interest with the right of private property and the originality of society with individuality and individual rights and the conflict of the rule of domination with the rule of no harm. However, the lack of timely ownership of lands located in public projects on the one hand, and some decisions outside the legal competence of the commissions of Article 5 of the Law on the Establishment of the Supreme Council of Urban Planning and Architecture, in approving detailed design criteria and requesting change of use or separation of property on the other , Restricts the property rights of individuals and forces them to transfer their property rights to the municipality or other executive bodies without receiving compensation. The purpose of the present study is to investigate the angles of illegal restriction of property rights of persons by approvals outside the authority of Article 5 commissions, which are reflected in the opinions of the General Assembly of the Court of Administrative Justice. The results show that the approvals of Article 5 commissions that have restricted the property rights of individuals by ignoring the principles and laws, the rules of Sharia and the departure from the scope of authority, have been annulled by the General Assembly of the Court of Administrative Justice.

 In this regard, according to the subject of the research, the main question is: From the point of view of the General Assembly of the Court of Administrative Justice, what are the principles of restriction of property rights by Article 5 commissions due to non-compliance? Sub-questions are also addressed as follows: Do Article 5 commissions and other executive bodies have the power to lay down rules for restricting the property rights of individuals? , Leads to the restriction of the property rights of individuals, and according to the sub-hypotheses of Article 5 commissions and executive bodies do not have the right to establish a rule to limit the property rights of individuals, which uses descriptive, analytical methods to analyze the most important votes of the Board. The General Court of Administrative Justice is paid.

The importance and necessity of this article is to emphasize the rule of respect for property rights of individuals along with meeting the needs and public needs by resorting to legal means of restricting property rights in Article 5 commissions. 5, tries to provide a proper answer to the research question.

In order to find a suitable answer to this question, it must be said that the observance of the right to private property of individuals has been emphasized in Islamic law, the constitution, ordinary laws and international documents. So that in addition to hadiths and narrations, verses 27 and 28 of Surah Noor, 29 of Surah Nisa and 12 of Surah Al-Hujurat in the Holy Quran are significant regarding the sanctity of property rights. The important schools of law, with a correct understanding of the basic principles and norms affecting the consistency and maintenance of order and justice in society, have emphasized the importance of the right to personal property. Domestic law also stipulates respect for legitimate property and the prohibition of aggression and harm to it. Which reflects the position of the general laws of the country regarding the respect, monopoly, continuity and absoluteness of property rights. Because this right arises from human nature and natural interests, and its unjust and forcible deprivation and restriction will weaken the foundations of social and group life, and will weaken the balance and sustainable interaction between public rights and interests with private rights and interests in all aspects. . Therefore, it is necessary for all executive bodies and administrative authorities, including the Article 5 Commission, which are important and decisive authorities in the field of urban development and securing and limiting the property rights of public and private individuals, to be extremely careful in their decisions, so that Do not restrict anyone's rights illegally.

The commissions subject to Article 5 of the Law on the Establishment of the Supreme Council of Urban Planning and Architecture of Iran, approved in 1351, chaired by the governor in each province (and in his absence chaired by the deputy governor) and composed of the mayor and representatives of the Ministry of Housing and Urban Development, the Ministry of Jihad Handicrafts as well as the chairman of the Islamic Council of the relevant city and the representative of the provincial engineering system organization (specializing in architecture or urban planning) are formed without the right to vote. The secretariat of the commission is also located in the relevant provincial housing and urban planning organization.

 Duties and powers of this commission based on the above law, only review and approval of detailed urban plans and their changes (detailed plan subject to paragraph 3 of Article 1 of the Law on renaming the Ministry of Housing to the Ministry of Housing and Urban Development and determining its duties, approved in 1353 and subsequent amendment It is. The technical inspections of this commission are the responsibility of the technical working group (committee) of the commission consisting of the representatives of the commission and the consultant of the detailed plan of the relevant city.

 Regarding the city of Tehran, the composition of the members is different as specified in notes 3 and 4 of Article 5 of the law establishing the Supreme Council of Urban Planning and Architecture, and the secretariat of the commission is located in the municipality of Tehran.

According to the description of duties mentioned, the expectation from the commissions of Article 5‌ is to perform legal duties within the framework of the principle of the rule of law, and to provide public needs and services in approving the criteria of detailed plans and respecting the property rights of those whose case The shadow of the inability of the executive bodies to legally own the required lands and properties, or for other reasons, is raised in these commissions, lands and properties that, for years, have been de-taxed or caused by violations of segregation and construction.

Unfortunately, in some decisions, these commissions restrict the property rights of individuals by going beyond the scope of authority authorized by law and giving permission to the executive bodies. While according to the rules and regulations

Governments in the country, including: "Law on how to buy and own land and property for the implementation of public, civil and military programs of the government", "Law on how to calendar buildings, property and land required by municipalities" and "Law on determining the status of property in projects "Government and municipalities", executive bodies and municipalities are not allowed to take possession and use of lands and buildings of individuals for free.

In the meantime, some people realize that these decisions are illegal, and file a lawsuit in the Court of Administrative Justice. In dealing with complaints, the Court of Administrative Justice annuls decisions that are outside the scope of authority and contrary to law and sharia, which violate and limit the property rights of individuals. A number of important decisions of Article 5 commissions that have been overturned by the General Assembly of the Court of Administrative Justice have been examined in this study.

According to the tenets of jurisprudence, the exercise of public rights in society never means the unlawful restriction and violation of the special rights of individuals by the government; And in justifying the restriction of rights, principles such as the originality of society over the individual, the principle of preference of public law over private law, the principle of protection of public interests and the satisfaction of public need and order نباید should not be invoked. However, it is unfortunate that the total number of votes reviewed indicates that the commissions of Article 5 of the Law on the Establishment of the Supreme Council of Urban Planning and Architecture of Iran have not considered the rule of domination and sanctity of lands and property of individuals and laws and regulations in reviewing some referral cases. And fall outside the scope of their legal authority and impose an authoritative rule, which deprives, squanders and restricts the use of their rights by the owners, under the pretext of providing for public needs.

The provisions of the votes considered also reflect the fact that in the cited laws to justify the approvals of the Article 5 commissions, the authority and authority that includes the decision to restrict the property rights of individuals in the form of free transfer of land or other type to these commissions, Not anticipated. And the legislature has also stated the legal process in cases where it has given permission to receive land or property rights free of charge. Therefore, Article 5 commissions do not have the authority of ijtihad and rule, except within the scope of authority authorized in Article 5 of the Law on the Establishment of the Supreme Council of Urban Planning and Architecture. And what they have brought in such resolutions is the illegal and unlawful deprivation and restriction of the property rights of individuals, which has been annulled by the General Assembly of the Court of Administrative Justice.

. However, it is suggested to revise the property rights by revising the laws and regulations, and specifically in Note 4 of the single article of the law on determining the status of properties located in government and municipal plans, the law on how to calendar buildings and properties required by municipalities and Article 101 of the amended municipal law. The Comprehensive Law on Compulsory Land Acquisition and Restriction of Property Rights, Fully Transparent and Immutable Frameworks and Criteria, Determination and Interference Tasks of Executive Institutions, as well as Different Perceptions and Interpretations of the Law by Individuals and Legal Entities Organizational and extra-organizational and continuous training of members of Article 5 commissions should not be neglected so that the people, while ensuring that their private rights are not illegally restricted, cooperate in meeting public needs ‌ with the government and public institutions.

• public Law