Document Type : Original Article
Highlights
Development plans such as comprehensive and detailed city plans, village Hadi plan, comprehensive land plan, etc., all contain principally many restrictions on land use, in addition to determining a document for the development of the city and village for a certain horizon. Thus, landowners sometimes consider the requirements of the mentioned plans as a barrier to their exploitation of the property and some of them try to ignore the criteria governing the said plans in construction and land division. Moreover, the cost of obtaining a construction permit, the long process of issuing a construction permit, the high cost of construction supervision, etc. have all caused some owners to construct a building without obtaining a construction permit. Even if they have a construction permit, they ignore the existing rules and regulations for their own interests in the construction of a building or the land division. This is a construction violation.
Construction violations have their own legal nature. This phenomenon is always one of the problems facing urban and rural life and a factor that endangers the ecology of these residential areas. Note 2 of Paragraph 3 of Article 99 of the Municipal Law and paragraph 11 of Article 78 of the Law on Councils do not provide a specific rule regarding construction supervision. However, national construction regulations and the Law on Engineering system and Construction Control have determined the construction supervision for all authorities issuing the construction permit.
In order to eliminate the problem of legal vacuum in dealing with construction violations and in accordance with the Law of Adding a paragraph and three notes as paragraph three to Article 99 of the Municipal Law (approved on 1994), the legislator assigned a commission composed of representatives of the Ministry of the Interior, Judiciary and the Ministry of Housing and Urban Development (based on Note 2, paragraph 3, Article 99 of the Municipal Law), known as the Article 99 Commission, to investigate and decide on unauthorized constructions and construction violations. The local jurisdiction of the Article 99 Commission is in accordance with the scope of action of two authorities for issuing construction permits, one is sub-district (within the village) and the other is district (outside the city limits).
The fine is some money that the construction violator pays to the construction permit issuing authorities due to non-observance of the regulations governing the constructions and based on the decision of the competent institutions, including the Article 99 Commission (except for the district where the fines must be paid to the provincial treasury). When issuing a vote of fine, the commission must comply with the requirements of Article 4 of the By-Laws on Land Use, Construction of Buildings and Facilities Outside of Cities and Villages (approved on 2012).
In cities, there is a difference between the transaction value of real estate and the transaction value of construction. The foundation of the first one is Article 64 of the Law on Direct Taxes approved on 1987 and the foundation of the second is Note 11 of Article 100 of the Municipal Law. In Article 99 of the Municipal Law, the legislator has used the phrase (building day price) to determine the basis for calculating construction violations instead of the expression transaction value of the construction. In addition to the legal gap in the way of determining the building day price caused by construction violations, this change in approach has caused the Ministry of the Interior to assign the task of determining the building day price to the Article 99 Commission, in the mentioned instruction (article 9). Thus, a committee composed of three official experts of the department of justice proposes the building day price to the commission by village and district in each city. After their approval by the commission, this "building pricing" becomes a basis for calculating fine for construction violations. As it is clear, the pricing of innovations is different in the scope of action of commissions 99 and 100, so that the transaction value of construction in cities includes the calculation of the price of building and plot of land. However, in the scope of action of Article 99, only the building day price is the criterion of calculating the fine.
The criterion for calculating the fine is the transaction value of the year of the violation. On the other hand, the Article 100 Commission of the Municipal Law has no role in determining the transaction value of constructions; on the contrary, the Article 99 Commission determines the building day price. The Article 99 Commission is a quasi-judicial commission whose decision is final and binding (one-stage investigation) and it is only through the votes of the branches of the Administrative Court of Justice that one can overturn the decision of this commission. In this instruction (Article 9), there is no legal document for delegating the competence or duty of determining the building price to this commission. It is very clear that this decision of the Ministry of the Interior is contrary to the principle of separation of duties and powers of different institutions. Obviously, the best way to determine the building day price is to use the unity of the existing criterion in determining the transaction value of the construction in the municipality. Thus, Dehyar proposes the building day price in the village. After the approval of the village Islamic council, and if necessary, the approval of the district Islamic council, as by-laws in which the possibility of exercising taste is less, it should be a criterion for calculating fine for construction violations.
Obtaining the fines of construction violations resulting from the votes of the Article 99 Commission is based on the Circular No. 3/1/22372 / S dated 2012 of the Minister of the Interior. Among the most important objections to the said circular is about its second paragraph as follows:
Second paragraph: Regarding the villages located in the confines of city, it states:
"In the villages that are located in in the confines of city and have Hadi plan or physical development criteria and the Islamic Council of the village and do not have Dehyari, the authority for issuing permits and supervising construction is the institution designated by the governorate (Deputy of Civil Affairs). This is consistent with Note 1 of Article 3 of the Law on defining the confines of city and Village and determining them and regulations of land use, construction of building and facilities outside the city limits. The commission of Article 99 of the Municipal Law investigates the construction violations. The tolls imposed by the Islamic Council of the district and the income from fines is transferred to the account of the Islamic Council of the village. According to instructions issued by the Organization of Municipalities and Dehyaris of the country, 100% of will be expended for the development of the village under the supervision of the district.»
This paragraph of the circular has many legal objections as follows:
First: According to paragraph (m) of Article 76 of the Law on the Organization, Duties and Elections of the Islamic Councils of the Country and the Election of Mayors (approved on 1996 with subsequent amendments), the Islamic Council of the village has the obligatory competence and duty to elect a person as Dehyar for four years. In this circular, the assumption is that the village does not have Dehyar, while one of the most obvious duties of the Islamic Council of the village is to appoint Dehyar. If the meaning of being lack of Dehyar is that the Ministry of the Interior has not given permission to establish Dehyari, this is disputable because the legislator has considered an executive director for villages; so the ministry cannot remove this important executive body in rural development. If the intention is that the Islamic Council of the village has not elected Dehyar, this is an example of the council's violation and must be raised in the Dispute Resolution and Complaints Board of the Islamic Councils of the province in order to get rid of uncertainty. Therefore, it is not acceptable that despite the paragraph "m" of Article 76 of the Law on Councils, a village does not have a Dehyar and a Dehyari. On the other hand, if a village did not have an Islamic council, the Islamic council of the district, according to the former Article 85 (current 99) of the law on councils, is the successor of the Islamic council of the village and is obliged to elect a person as Dehyar.
Second: In this paragraph of the circular, we read: The authority for issuing permits in the villages located in the confines of city that do not have Dehyar is one who is determined by the deputy governor for civil affairs. Meanwhile, according to Article 10 of the "Regulations on Land Use, Construction of Building and Facilities outside the Urban and Rural Areas", the Deputy Governor for Civil Affairs determines the authority for issuing permits outside the urban areas and outside the villages. Thus, it is obvious that the authority for issuing construction permit in the village is Dehyari. If a village did not have Dehyar, how and with what license and legal document the authority appointed by the Deputy Governor for Civil Affairs has the competence to enter the field that is inherently in the competence of Dehyari. Therefore, this part of the circular is not enforceable because it is in clear conflict with the law (paragraph 11 of Article 78 of the Law on Councils).
Third: We read in a part of this paragraph:
"… Construction violations are investigated in the commission of Article 99 of the Municipal Law and the related tolls imposed by the Islamic Council of the district, and the income from the fines are transferred to the account of the Islamic Council of the village." The circular emphasizes that the revenues of tolls and fines should be transferred to the account of the Islamic Council of the village. However, the Islamic Council of the village is a supervisory body and not an executive body and the bank account of the said body is used only to cover the internal expenses of the council not in the administrative and civil affairs of the village. (This is in contradiction with the duties and powers of the Islamic Council of the village mentioned in Article 76 of the Law on Councils).
Owners and beneficiaries have always objected to simultaneous payment of fine for construction violations and the implementation of the process desired by municipalities in this regard has faced with challenges. In recent years, the authorities issuing construction permit have been of the opinion that construction offenders must pay both tolls and fine for construction violations. This has been repeatedly raised in the General Assembly of the Court of Administrative Justice and has led to the issuance of several votes. At present, according to the recent votes of the said board, it is permissible to obtain fine and construction tolls simultaneously.
Allocating only Note 2, Paragraph 3 of Article 99 of the Municipal Law to the investigation of construction violations in a wide area outside the city limits and within the villages and not sorting out of many cases related to a fair process in the quasi-judicial commission of Article 99 are some examples of legal defect and vacuum. They have caused dealing with construction violations in the scope of action of the mentioned commission to be inefficient and ineffective. The need for legislation in this area is one of the initial necessities for organizing constructions.
