Document Type : Original Article
Highlights
Summary of article
Expropriation in its general sense means to acquire a person's property. This sense can include either taking properties without paying its price, such as confiscation; or taking ownership with paying compensation, such as compulsory purchase or CP. The later concept of expropriation is the subject of this paper. CP is "an administrative and judicial process, by which the public bodies, in order to secure public interests, by observing legal formalities and in return for fair compensation, can oblige people to transfers ownership rights. This power is available to the governments of modern nations in different ways, and its use is often necessary for social and economic development and protection of the natural environment
The issue of public interest in expropriation has been widely accepted in different countries and can be considered as one of the general legal principles. This principle has been accepted in English law based on judicial practice and the European Convention on Human Rights. ECHR whose provisions entered English law with the approval of the Human Rights Act 1998, in Article 1 of Protocol 1, states that: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. Therefore, it is clear that in this country, compulsory purchase can only be justified if there is public interest.
In Iranian law, although the legislator has not specified the necessity of public interest condition in CP, but since acquisition has accepted only for the implementation of public programs, complying with this condition should be considered necessary. Iranian judicial precedent also accepted that expropriation is not legitimate without a public plan.
However, in Iranian law, this important issue has been neglected and sometimes urban plans doesn't observe it, which causes many problems such as building public facilities in inappropriate areas for example in a high-trafficked areas, structuring medical facilities and hospitals in densely populated residential areas, allocating inappropriate places for Collection of waste. It's clear that all of these cause difficulties and crises in the city. Therefore, authorities preparing public plans (CPO) should pay attention to the observance of "public interest" in urban plans as a basic principle.
It may seem that due to the need to respect the public interest, private bodies has not any right to expropriate land. However, in English law, sometimes these bodies have been granted compulsory purchase power. Although the public benefit is the goal or one of the goals of expropriation, but it is not necessary that the acquiring body be governmental or public. The Iranian legislator has not recognized such a right for private bodies except in rare cases.
The principle of observing the public interest in compulsory purchase is guaranteed through public plans. Acquiring authorities for use of compulsory purchase power need an approved plan. This plan called compulsory purchase order (CPO) in England.
In Iranian law, Article 2 of purchase and acquisition of land Act 1359 about states: "The programs mentioned in Article 1 include programs whose timely implementation is necessary for the public and security affairs of the acquiring authorities. The necessity of implementing the plan must be approved by the highest executive authority". In England CPO specifies the purpose of expropriation and the plot of land determined for acquisition. CPO is prepared by Authority that intends to use CP power and then it is presented to the relevant minister to confirm it.
Therefore, expropriation requires a plan that has been approved by legal authorities upon public interest, and acquisition without such a plan will be a violation of legal provisions. An approved plan (CPO), in addition to being in accordance with public interest must include the rules, regulations and principles of urban planning.
But what is the sanction of refusing or neglecting to comply with the principle of public interest in CP? the judicial authorities can decide to cancel these plans. In English law, violation of legal conditions for CP, including the existence of CPO and public interest, is subject to the " Ultra vires doctrine " and can be processed in court. Also, in this country, before the approval of the CPO, the interested parties can object to it, and after its approval too, it is possible to be appealed in the Supreme Court.
Although in Iranian law, the right of individuals to object this plan during its review and approval period has not specified, but due to the general legal rules, an approved plan can be revoked if it does not comply with the public interest. So we suggest that legislator provides a legal platform for citizens' participation in reviewing and approving these plans, and the acquisition authorities be obliged to take people's opinions in the formation of the plan and investigate their objections.
Another important point that should be considered is the distinction between "necessity" and "public interest". Both of these conditions are necessity for CP. Indeed necessity of plan or CPO is a factor that prevents abusing of CP power; otherwise the government may acquire people lands by the excuse of public interest.
