Jurisprudence and legal examination of claims arising from land acquisition with emphasis on the authority of the municipality

Document Type : Original Article

Authors

• Maryam Zoormand ¹
• Hossein Ahmari ²
• Reza Abbaspoor ³

¹ Ph.D. student of fundamentals of Islamic law, Mashhad Branch, Islamic Azad University, Mashhad, Iran

² Associate Professor, Department of Fiqh and Fundamentals of Islamic Law, Mashhad Branch, Islamic Azad University, Mashhad, Iran

³ Assistant Professor, Department of Fiqh and Fundamentals of Islamic Law, Mashhad Branch, Islamic Azad University, Mashhad, Iran

Abstract

Highlights

One of the most frequent lawsuits in the legal system is the lawsuits related to land acquisition and urban properties. The property right, as one of the examples of fundamental human rights, is an institution to support and protect the human personality of citizens. This institution provides support and assistance to citizens, which is manifested in the form of their property, against the arbitrary encroachment of others. The important issue in these cases is protection against tampering by public authorities. Because the authorities resulting from public power puts them in an unequal and superior position compared to citizens and increases the possibility of violation.

The basic question is, to what extent can the municipality use this principle and enact and implement laws that, while respecting the principle of respect for ownership, do not cause disruption in the performance of its duties? Can the municipality use the principle of expropriation for its duties? According to the mentioned questions, this article seeks to find practical and at the same time fair ways in relation to the principle of expropriation of people's property, so that by using the available resources, the connection or conflict between the property rights of people in their own property and Its deprivation should be considered for the sake of public interest. Also, the methods of expropriation as well as the authorities authorized to do this are examined and studied.

Iran's legal system, especially its basic laws, such as the civil law, have been based on Islamic jurisprudence since the beginning, despite using the legal experiences of some European countries. It is a continuous fact that it is not possible to study and examine Iranian law without mastering or at least familiarity with the basics of Islamic law and Imami jurisprudence. The accuracy of the Islamic legal system has made it clear that this system is fully qualified and has the necessary elements of a legal system

Acquisition, from the point of view of public law, is an administrative action in which the competent authority, within the framework of the law, takes action to ensure the public interest by transferring the ownership of immovable property to individuals or by paying a price or compensation for it. Forced acquisition of land happens only with legal permission, and the authority or institution that needs the land must first have the legal authority to validate the acquisition. In fact, in order to reduce the opportunity of abusing the power of coercive acquisition, the relevant laws and regulations should clearly identify the competent persons to apply the acquisition and determine the case and subject of the acquisition. The land that is acquired by force; It should only be used for the purposes that the acquisition authority is authorized to do, and this includes any secondary or implied purposes.

In practice, the municipality becomes the owner of the land by force, and if the citizen refuses or refuses to comply with the passage and amend the ownership document when receiving the termination of work or after the decision of the commission of Article 100, the municipality also refuses to issue the termination of the work. Therefore, ownership of the municipality is obtained by force. Currently, in order to protect the rights of citizens, solutions are on the agenda in every municipality; For example, in such plates, the density is calculated based on the area before widening, or if, for example, ten or fifteen percent of the total plate is removed from the owner due to retreat.

  In a civil, public, or military project, as the case may be, all the steps from the beginning to the end must be defined. Secondly, these steps should be planned based on studies and expert works and be justified according to the goal pursued in the implementation of the plan, and thirdly, its duration is specified and its validity is also determined and approved by the highest executive authority. Be

It should be said that the level of compliance with the principles of fair proceedings in dispute resolution commissions is not in accordance with the goals and prospects of the country's legal system. Therefore, the commissions as a dedicated administrative body that was established and formed many years ago and its process and procedures are not responsive to the importance of the issues raised in it today. It is necessary to amend and revise its laws and regulations according to the principles of fair proceedings and in order to create administrative justice and guarantee the rights of citizens in front of the public authorities, in order to protect the rights and public assets of the society as a national wealth. be made

Proceedings in administrative courts should be free of charge and without payment of court fees. This issue can be analyzed in several ways. First of all, the principle is that public services are free, so establishing any exception contrary to the principle requires its approval by the competent legislative authorities. Second, administrative courts deal with the conflict between public and private interests. This conflict is not due to the fact that individuals are not entitled to private rights, but due to the requirement to exercise public power in the superiority of public interests over private interests. Third; Administrative handling is the completion of the organizational process of the administration in dealing with the duties and obligations to be accountable to the interested parties. In other words, special administrative courts, unlike judicial courts, are not an independent service that requires the payment of independent fees. Meanwhile, according to Article 12 of the Amending Regulations of the Executive Regulations of the Law on Determining the Assignment of Disputed Lands, which is the subject of the implementation of Article One of the Law on Forests and Rangelands of the Country approved in 1373, the objector is obliged to cover part of the costs of handling objections, equivalent to 5% of the transaction value. regional price) of the protested lands based on the calculation of the natural resources department, to deposit the account introduced by the natural resources department of the province.

Keywords

• expropriation
• public services
• administrative contract
• specialized authorities
• administrative court of justice

Main Subjects

• Other topics