ارزیابی صلاحیت کمیسیون ماده 12 اراضی شهری مطابق رویه دادگاه ها در ارتباط با سیاستگذاری دولت برای رفاه عمومی
محورهای موضوعی : سیاستگذاری شهری
فرزاد کریمی خنجری
1
(دانشجوی دکتری حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه شیراز، شیراز، ایران)
مهدی هاشمی گلیجانی
2
(دانشجوی کارشناسی ارشد حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه شیراز، شیراز، ایران)
کلید واژه: اعتراض, کمیسیون ماده 12, سیاستگذاری دولت, رویه دادگاه, زمین شهری,
چکیده مقاله :
زمین در دهه های اخیر به مهم ترین عامل در رشد و توسعه، خصوصا توسعه شهرها تبدیل شده است، دولت برای بدست آوردن زمین مورد نیاز جهت توسعه شهرها ناگزیر به اتخاذ سیاست های خاص متناسب با شرایط کشور است. طبق احکام اسلامی زمین موات، متعلق به شخص خاصی نمی باشد و در اختیار حکومت اسلامی قرار می گیرد، در همین راستا قانون اراضی شهری در سال1360 و قانون زمین شهری در سال1366 به تصویب مجلس رسید و باعث گردید زمین های زیادی به تملک دولت درآید، که در همان سالها باعث تحول عمده ای در توسعه شهرها، تأمین رفاه عمومی و تأمین مسکن مورد نیاز مردم توسط دولت شد. هدف از ارائه این پژوهش برسی محدوده صلاحیت کمیسیون ماده 12 مطابق رویه عملی دادگاه ها و اینکه کمیسیون مذکور تا چه میزان توانسته اهداف دولت را در زمینه سیاست گذاری برای توسعه شهرها و تأمین رفاه عمومی محقق کند. این پژوهش با روش تحلیلی - توصیفی و به صورت کتابخانه ای تدوین شده است و نتایچ حاصل از این پژوهش نشان می دهد که کمیسیون نامبرده صلاحیتی محدود و فقط در تعیین نوع زمین صلاحیت رسیدگی دارد، تصمیمات آن در همین صلاحیت محدود هم قطعی نبوده و در اکثر موارد مورد اعتراض قرار می گیرد و این نشان می دهدکه عملا نتوانسته است درسال های اخیر اهداف دولت را در سیاست گذاری انجام شده برای رفاه عموی و توسعه شهرها تأمین کند و نیاز است نسبت به ماده 12 قانون زمین شهری اصلاح و بازنگری اساسی صورت گیرد.
Land in recent decades has become the most important factor in growth and development, especially the development of cities, the government to obtain the land needed for urban development has to adopt special policies tailored to the conditions of the country. According to Islamic law, the mortal land does not belong to a specific person and is given to the Islamic government. In this regard, the Urban Land Law in 1981 and the Urban Land Law in 1987 were approved by the parliament and caused many lands to be owned by the government. In the same years, it caused a major change in the development of cities, the provision of public welfare and the provision of housing needed by the government. The purpose of this study is to examine the scope of jurisdiction of the Article 12 Commission in accordance with the practical procedure of the courts and the extent to which the Commission has been able to achieve the government's policy objectives for urban development and public welfare. This research has been compiled by analytical-descriptive method and in the form of a library. The results of this research show that the said commission has limited competence and only has jurisdiction in determining the type of land. Most cases are challenged and this shows that in practice in recent years it has not been able to meet the government's goals in policy-making for public welfare and urban development, and there is a need for a major overhaul of Article 12 of the Urban Land Law.Extended AbstractIntroduction: In today's society, land plays an important role in the development of the city, ensuring the public welfare and well-being of the people, and land can be considered as a national wealth. Given that the population is growing, regulations, policies and criteria are necessary for the public interest To be considered in this regard. The construction of housing for citizens, especially the poor, and the well-being of citizens is needed, so that suitable and cheap land is available to the government (related institutions such as municipalities), so that it can implement appropriate policies for urban development and welfare; The government to obtain the land needed to implement its policies, including urban land policy; Attempted to abolish the ownership of mortal lands and seize this type of land; Therefore, identifying the type of lands and their development is one of the most important issues for which a basic task was determined after the revolution. The mortal lands themselves are divided into two groups: the mortal lands outside the city limits, which are used to create new settlements of this type of land, and it is the responsibility of the Ministry of Agriculture to determine whether it is mortal. The second category is urban mortality, which is located within cities and its determination is the responsibility of the Ministry of Housing and Urban Development according to the Urban Land Law. Put that the commission is called Article 12 urban landMethodology: The present research is applied in terms of purpose and descriptive-analytical in terms of nature and method. The information is collected through a review of texts, documents, documents and Internet sites. To better understand the subject, for example, the city of Shiraz has been studied as part of the research and tables and maps have been used in this article.Results and discussion: Various laws have been enacted so far regarding mortal lands, the most important of which has been the law on the abolition of ownership of vacant lands. According to the Shari'a rulings, the mortal land must be in the possession of the government, and for this reason, on 5/8/1358, the law on the abolition of ownership of urban mortal lands was approved by the Revolutionary Council. Shortly afterwards, the Urban Land Law was passed by the parliament in 1981 and then the Urban Land Law in 1987. Article 12 of the Urban Land Law leaves it to the Ministry of Housing and Urban Development to determine the type of land to be barren or dead, which also performs this task by forming a commission called the Article 12 Commission. All relevant agencies that are in any way related to urban lands, are obliged to inquire with the Ministry of Roads and Urban Development about the type of land before taking the necessary measures, unless the type of land has already been specified. The procedure in the commission is as follows: first, the place of visit is visited and the necessary investigations are carried out, and after receiving the defenses of the owners and reviewing the documents and aerial maps, it proceeds to issue a vote. Given that the government is in dire need of adequate land within the cities to build housing and create welfare for its citizens, the decisions taken by the Article 12 Commission are very important; Because if it is determined that the land is mortal, these lands will be given to the government. Urban development is directly related to this issue; Because the more suitable and sufficient land is available to municipalities and related institutions, the greater the capacity to increase the level of welfare and services to citizens. For example, the level of welfare of citizens in one region of Shiraz is more than other regions, which was found in surveys, which in the above areas of the municipality has been able to create more urban facilities than other areas; This is due to the fact that in addition to the necessary budget, it requires sufficient, suitable and cheap land for the relevant institutions. Courts prevent, it is very important; But in practice, because the decisions of the commission can be appealed, in almost all cases, they are challenged by the parties, and the commission that was supposed to take the burden off the courts, the same cases are re-formed in the courts, and in a way In most cases, public confidence in the rulings of the courts is more apparent than citing the decisions of the commission. Litigation also comes at a cost to the protester again and prolongs the process of determining the type of land. The rulings issued by the courts to challenge the decisions of the Commission to annul them are in most cases different in similar cases, and the reason for these differences in the issuance of different rulings in similar cases was the lack of appropriate criteria in dealing with mortal lands. Of course, with the issuance of unanimous votes of various procedures, these differences have been reduced to some extent.Conclusion: According to Article 12 of the Urban Land Law, the Ministry of Housing and Urban Development is responsible for separating barren lands from dead lands. Therefore, by examining the function and competence of the commission in relation to this type of land, it leads us to the conclusion that the principles of fair trial in the commission are not in accordance with the current laws of the country and the procedure of different courts and this institution should be an administrative institution. Dedicate the dispute resolution procedure in accordance with the standards of today's judicial process so that differences of taste in the issuance of votes are minimized. The manner of handling in this institution does not meet the needs of the community, and perhaps in general, a fundamental review should be done in handling the cases covered by Article 12 of the Urban Land Law. The administrative body should be designed by reviewing the relevant laws, which should be more non-formal and its votes should be final. However, almost all incoming cases are referred to the Article 12 Urban Land Commission for appeal to a court of law, and in practice the formation of this convention is of no use except to impose exorbitant costs. Therefore, the institution to be designed must have the same power and jurisdiction as the court of law, while being non-formal.
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