Document Type : Original Article
Highlights
Restriction of the right to build and renovate a building in the view of laws and votes of the General Assembly of the Court of Administrative Justice
The purpose of principle of the rule of law in the activities of administrative institutions is to ensure public interest in addition to respecting the right to private property. However, sometimes municipalities, under the pretext of having public plans, by refusing to perform legal duties in issuing construction or reconstruction permits, violate the right to exercise property, and deprive individuals of exercising property rights and the related effects. While benefiting from the laws and opinions of the General Assembly of the Court of Administrative Justice, the municipalities and government agencies do not fulfill their legal duties in purchasing and acquiring lands located in the public plan and implement the plan as stipulated in the laws, thus the landowners are entitled to exercise their rights and ownership is permitted, including the construction of a building. The purpose of the present study is to investigate the restriction of property rights in the construction and renovation of buildings by municipalities, which are stated in the laws and rulings of the Court of Administrative Justice. The researcher seeks to address these questions in the current article: How is the restriction of the right to build or renovate by municipalities reflected in the laws and opinions of the General Assembly of the Court of Administrative Justice? Do the city councils and the Article 5 Commission have a place in setting the rule for restricting the right to build and renovate a building? The results show that part of the damages of restricting the right of construction and renewal is related to the ambiguity and manner of implementation of laws and the main part is related to the withdrawal of urban management and city councils. Article 5 is beyond its legal authority in this area. And upon the grievances of the citizens of the General Assembly, the Court of Administrative Justice shall order the annulment of illegal decisions or the obligation to grant a license.
In this regard, a study of various sources reveal the fact that the right to property is one of the inalienable rights of human beings. In the terminology of law and dictionaries, the word ownership means right. Therefore, respect for the right to property is essential and any restriction must be in compliance with the law. From the perspective of the philosophy of law, the effort to achieve this situation has been rooted in the concept of justice. The importance of property rights in Islamic jurisprudence, the Iranian legal system and domestic laws, legal principles and international documents has been emphasized. The great thinkers and philosophers consider private property as a means of individual independence for his personality and a part of human natural rights, and consider it as a necessary factor for individual initiative and mobility for the health of society. Islam considers property as a part of human nature and instinct and deals with it realistically. In Islamic jurisprudence and according to the rule of domination, ownership has different negative and positive effects. In articles no. 30 and 31 of the Civil Code of Iran regarding the right of any possession and use of property by the owner, apart from some exceptional cases in the law and even the impossibility of property to be out of reach of its owner has been referred to. The positive aspect is the right of any possession and use of the property by the owner and the negative aspect is the impossibility of depriving it from the possession of the owner by others. Despite this fact, the definition of property or right of ownership does not appear in Iranian law, but according to the definition provided by jurists and in terms of elements such as: exclusive and permanent ownership of property, it can be briefly said: "Ownership” is a permanent right by which a person can receive money and benefit from it in accordance with law, and its property and rights have a special place in international instruments. The world has adopted the approach of emphasizing the most fundamental human rights. It is from Islamic jurisprudence, this issue has been addressed in articles 30 and 31 of the Civil Code and Articles 46 and 47 of the Constitution.
Being so and according to the laws and regulations in the field of urban planning in the country, including: "Paragraph 24 of article 55 and article 100 of the Municipal Law approved in 1334 and its subsequent amendments", "article 59 of the Law on Removing Barriers to Competitive Production and Improving the Financial System" Note 1 of the Law on Determining the Status of Property Located in Government and Municipal Plans, approved in 1988 and amended in 2001, includes the duties and responsibilities of municipalities to issue permits for all buildings located in the city. Despite these regulations, in some cases, municipalities with a biased interpretation of the law or citing the decisions of some authorities, such as city councils, article 5 commissions of the law establishing the High Council of Urban Planning and Architecture, beyond the scope of authority authorized by law, restrict property rights. They provide reconstruction by refusing to issue a building permit for land located in public projects where the legal deadline for the project has been expired. While expecting municipalities to perform legal duties within the framework of the rule of law and in order to meet the needs of public services accompanied by respect for the property rights of those who in the shadow of inability of the executive to legally own the required land and property or for some reasons on the other hand, their lands and properties have been labeled public plan for years and have been virtually tax-free. In the meantime, the Court of Administrative Justice, as a reference for the people's grievances against these decisions and actions of government and public bodies, has acted and, according to the reviewed votes, annulled actions and approvals outside its authority and contrary to law and Sharia issued a building permit. The aim of this study is to review the rules and positions of the General Assembly of the Court of Administrative Justice regarding to the restriction of property rights by municipalities in constructing and reconstructing of urban public land uses. Meeting public needs and requirements by resorting to legal means to restrict property rights in the issuance of building permits by municipalities.
In reviewing the governing regulations in this matter, the first law is the municipal law approved in 1334 with subsequent amendments. In this law, in two articles, the obligation of the municipality to issue a building permit is mentioned. According to paragraph 24 of article 55 of the Municipal Law, one of the duties and responsibilities of municipalities is to issue permits for all buildings located in the city. At the beginning of article 100 of the Municipal Law, while emphasizing the need for the issuance of building permits within the city by the municipality, the issuance of building permits for properties and lands located in the city is also within the competence of the municipality. Therefore, although according to paragraph 24 of Article 55 and article 100 of the Municipal Law approved in 1334, municipalities are required to issue building permits to all buildings in the city, but these laws are silent about the existence of public plans and how to issue building permits in case of expiration of the legal deadline. Further studies show that more than a century after the establishment of municipalities and municipal organizations in Iran and the adoption and implementation of related laws, the status of property rights of individuals in relation to their lands and properties regarding designated uses and the public plans were approved indefinitely. Thus, the supremacy of public authority has affected the respect of property rights of individuals, until in the shadow of paying attention to the concerns of citizens and exercising legislative control and supervision over the actions of executive institutions, in 1988 the Islamic Consultative Assembly approved the "Law on Determining the Status of Property in Government and Municipal Plans". In doing so, albeit with many shortcomings and ambiguities that are debatable cases. As the title of this law suggests, prior to the enactment of this law, the status of such properties was uncertain in terms of the exercise of property rights. Pursuant to Note 1 of the Law on Determining the Status of Property Located in Government and Municipal Plans, approved in 1988 and amended in 2001: The project has all the property rights such as construction or reconstruction or increase of the building, repair, sale, rent, mortgage, etc. If the project is less than 5 years, and the owner undertakes it after obtaining the license, or if the project starts before 5 years, the right demand does not cover the cost of construction and reconstruction.
Following the passage of this law, especially the provisions of Note 1, the people sought to complain and complain about the refusal of the municipalities to issue building permits for lands located in public projects where the legal deadline for the implementation of the project had been expired. The first decision of the General Assembly of the Administrative Court of Justice in annulling decisions contrary to municipal regulations in this concern and requiring them to issue a construction permit or reconstruction in order to exercise property rights in lands located in public projects. Consequently, it was issued following the adoption of the law in 1988. Therefore, the rulings issued by the General Assembly of the Court of Administrative Justice on the subject under investigation, have been examined as an example, and they were related to 1378 till the end of 1395, which have been cited for importance in the most recent rulings issued by the branches of the Court.
At the beginning of article 59 of the Law on Removing Barriers to Competitive Production and Improving the Financial System of the Country, approved in 2015, the issuance and delivery of building permits to the applicant is the duty of the municipality. "Article (5) of the Civil Service Management Law shall issue a license by the end of the legal deadline, without the need for consent of the relevant executive body or request of the private or cooperative owner and payment of duties and fees for legal services in accordance with relevant laws and regulations." While emphasizing the provisions of the law on determining the status of property located in government and municipal plans, part of the ambiguities and shortcomings of the law regarding the lack of agreement of the relevant executive body in issuing a building permit for a private or cooperative owner has been eliminated if the plan is not implemented within the legal deadline. .
In general, it seems that the laws and opinions examined here, confirm that the effort and insistence to ensure the public interest cannot be at the cost of illegally restricting the private rights of individuals and resorting to any justification in this way. Even if, in considering the originality of society, public rights and protection of interests. And the interests of society are rejected and condemned. Unfortunately, some institutions, which have the support of the public power in providing services for lands located in urban public projects that have violated the legal deadline for the implementation of the expired project, deprive or restrict the property rights of citizens. It should be noted that, the restriction of the rights of individuals and the violation of the rule of domination must be based on the principle of the rule of law. Despite the judicial oversight bodies overseeing the actions of the government will prevent them from falling outside their jurisdiction. Nonetheless, in carrying out some actions and making some decisions, like issuing building permits, the rule of domination and sanctity of lands and property of individuals is not considered and causes deprivation, waste and restriction of property rights of the applicants. What if there were no minimum laws and grievances of citizens and the legal capacity created in article 173 of the Constitution of the Islamic Republic of Iran to establish the Court of Administrative Justice and exercise judicial oversight over government actions and important and valuable decisions of the General Assembly, the Court of Administrative Justice, what? The circle of restricting the rights of individuals is becoming narrower and narrower every day.
In conclusion, regardless of the valuable and binding opinions of the General Assembly of the Court of Administrative Justice, it can be said that the current laws, despite being useful, do not have the necessary comprehensiveness, transparency and normality and in practice have not prevented the restriction of property rights by public authorities as they are. As a result, it is recommended to issue a building permit for a property where the legal deadline for the implementation of the public plan has been expired. On the one hand, by amending the laws and regulations guaranteeing the restriction of property rights, including the note of a single article of the law on determining the status of property located in government and municipal plans and compiling comprehensive criteria by consulting executive bodies while eliminating all the ambiguities and problems. Details of issuing construction permits for the lands in question, by setting and defining frameworks and criteria are completely transparent and unchangeable, the loopholes of intervention and the application of different tastes and interpretations of the law by natural and legal persons are blocked and internal and external monitoring and continuous training enforcement, and on the other hand, the Court of Administrative Justice, as a court of public law, will fill legal ambiguities and shortcomings by judging in the field of public law, protect the rights of citizens and reform administrative structures in this regard. Hoping that the result will be held acceptable public requirements in the implementation of regulations in order to form considerations to protect public and individual rights and respect for private rights along with meeting public needs in the light of accurate and correct administration of justice.
