Document Type : Original Article
Highlights
Transfer of the riverbed bed from the perspective of public property law
According to Article 45 of the Constitution of the Islamic Republic of Iran and Article 2 of the Law on Fair Distribution of Water, approved by the Islamic Council on 16/12/1361, the river beds are under the control of the government of the Islamic Republic of Iran, and the government is entrusted with the responsibility of maintaining and leasing them and supervising their exploitation. has been In the meantime, justifications such as job creation and seemingly healthy economic activity have created the necessary excuse for destroying and changing the use of riverbeds. For example, according to note 3 under the same article, it is possible to create any kind of embankment, excavation and encroachment on river beds with the permission of the Ministry of Energy. Article 50 of the Constitution of the Islamic Republic of Iran also prohibits any activity associated with environmental pollution or irreparable destruction.
Regarding the use of riverbeds, Article 7 of the regulations related to riverbeds and boundaries, rivers, canals, marshes, natural ponds and water supply, irrigation and drainage networks, approved on 08/11/1379 by the Board of Ministers, temporary cultivation in That part of the river bed that does not cause any disturbance for the exploitation of water, with the prior written consent of the relevant regional water company and in the form of a lease contract, has declared and stipulated that the lessee will never have the right to create trees and plant trees (except for agriculture) surface) does not have Riverbeds are part of the national property and under the control of the government of the Islamic Republic of Iran, and assigning the responsibility of maintaining and renting and monitoring their exploitation to the government does not prove ownership by the government in its own sense. Therefore, the Ministry of Energy is obliged to observe the sharia and legal principles in concluding exploitation contracts in carrying out the assigned responsibilities. Also, prevent any operation that conflicts with the temporary nature of the handovers or causes a change in the use of riverbeds. Ignoring these basics provides the ground for illegal occupation of national lands and change of use.
The right to enjoy a healthy environment and protection of public property are two basic criteria in evaluating the rules governing the riverbed transfer system. The basic challenge of this article is to examine the legal system governing the transfer of the riverbed from the perspective of these two concepts. Addressing this issue is important because the country is suffering from a water crisis and abuse in the transfer and use of the riverbed can have a direct effect on environmental rights, citizens' rights to public property and water resource management by intensifying this crisis. put Therefore, the following article examines the ruling system in the process of handovers from the perspective of public property rights with a pathological perspective.
By examining the existing legal literature regarding the river bed, the basic confusion in identifying the legal nature of the river bed can be seen, which is rooted in the different jurisprudential approaches of the jurists regarding the nature of rivers. Some have considered it as part of Anfal and belonging to the government, some as part of Anfal and under the tenure of the government, some as part of property without an owner and as part of the original property, and some have also considered it in the Jirga of public commons.
The legislator has also used different words and expressions in the constitution and ordinary laws in the way of assigning this property to the government. On the other hand, we see different and conflicting positions of the Guardian Council in different periods of legislation. While the constitution clearly considers rivers to be anfal and national wealth, the jurists of the Guardian Council (the first term of the Guardian Council) have denied that the rivers are anfal and, consequently, their bed, regarding the fair distribution of water. However, in no other place have they opposed the legal plan to increase the productivity of the agricultural sector, including the government's ownership of national lands.
In order to give coherence to the existing legal situation and capture the real opinion of the legislator, we examined the position of river beds in the property rights system and compared it with properties such as private property, state property, public property, and national property. The result was that the river beds are more compatible with the works and characteristics of national properties, which are natural in nature and cannot be acquired or transferred, and the constitution, which is at the top of the legal norms of the legal system, confirms this view.
The impossibility of handing over national property is one of the important principles governing this property in public law, which is also mentioned in the law on increasing the productivity of the agricultural and natural resources sector. In the law of fair distribution of water, it is only allowed to create any kind of embankment and excavation and encroachment on the river bed with the permission of the Ministry of Energy. Of course, it is suggested that the legislator should take the expediency responsibility regarding the creation of dams and excavation regarding river bed as national property and not leave it to the permission of the Ministry of Energy.
In line with this law, the Board of Ministers approved the regulations related to the bed and privacy of rivers, streams, canals, marshes, natural ponds and water supply, irrigation and drainage networks (approved on 11/8/1379), transferring the benefit of the river bed in the form of cultivation. has allowed the temporary, without the lessee having the right to create gardens and plant saplings and trees (except for surface cultivation). This is despite the fact that the principle of non-transferability of national property is not exclusive to the owners of this property and includes the transfer of benefits. It was appropriate that the government board did not go beyond the limits of the law and general legal principles and gave legitimacy to the exploitation of riverbeds without prescribing a lease contract and simply by establishing a usufructuary permit or at least in the form of usufructuary rights.
The corrupt sequence that results from these types of handovers makes the necessity of limiting the right of entry and possession of the private sector in these properties clearer. Among the potential crimes that have been facilitated and activated by establishing the objective right on the benefit of the riverbed in favor of private individuals, and which leads people to change the use of these important lands and seize national lands, prescribing temporary cultivation and transferring the benefit of the riverbed to That is the basis. This work gives rise to the illegal exploitation and occupation of opportunistic people, so that today, the transfer of land located in the river beds is done in the form of temporary cultivation for the purpose of fish farming.
From the legal point of view, even though the law on increasing the productivity of the agricultural sector has allowed the government to lease, assign the right to exploit and usufruct the national land, it is related to the aforementioned principles regarding the legal relationship of the government with the national property. Considering materials such as preventing the destruction of riverbeds and also preventing crimes related to national property, it is necessary to prevent these transfers as soon as possible and, like border rivers, the government is in charge of exploiting these lands.
In this regard, the expansion of judicial supervision over the process of riverbed management through quasi-judicial bodies that examine the issue in a specialized and urgent manner, can play an effective role in protecting public rights. The composition of these authorities should be such that independently of the administration, observing the principles of impartiality, it provides administrative proceedings in the administration in an appropriate manner, and finally, the opinions of these authorities are under the supreme supervision of the Administrative Court of Justice.
Another point is the establishment of a civil liability system for managers and brokers alongside the criminal system, so that any type of damage to public property caused by the managers' wrong decisions can be compensated. The realization of this issue requires that the possibility of citizens' monitoring of the governance process of national resources is realized and that a public interest in complaining about decisions and actions related to public and national resources is identified in the judicial system so that non-governmental organizations and the general public can cancel harmful actions for Demand water resources in construction projects and handovers from the competent authority.
