بررسی طرح‌های مداخله‌جویانه توسعه شهری از منظر فقه اسلامی مقالة

طرح‌های توسعه شهری بایستی متضمن منافع جمعی همه یا اکثر ساکنین باشد. در خلال طرح‌های توسعه شهری، بسیاری از مردم متضرر می‌شوند لذا ضروری می‌نماید مباحث مربوط به تحصیل زمین و مسکن جهت این طرح‌ها مورد بررسی قرار گیرد. در اسلام همواره به بحث عدالت و انصاف توجه ویژه‌ای شده است و در ساحت جهان‌بینی اسلامی مفاهیم متعددی چون اکرام انسانی، تعادل فضایی، ظلم‌ستیزی، انصاف‌گرایی، حق‌گرایی و... وجود دارد که نمود عینی آن را می‌توان در قواعد فقهی متعددی که بر اخلاق اسلامی تمرکز دارد، مورد بررسی قرار داد. آنچه امروزه به‌عنوان ملاک عمل در تملک اراضی در طرح‌ها مورد استفاده قرار می‌گیرد، بهره‌مندی از روش‌های مبتنی بر اندیشه غرب همچون انتقال حقوق توسعه مالکیت می‌باشد. براین اساس سوالات اصلی پژوهش این است که "1. رویکرد انتقال حقوق توسعه ((TDR از منظر اندیشه اسلامی چگونه ارزیابی می‌شود؟ " و "2. قوانین در زمینه تملک اراضی و انتقال حقوق توسعه چگونه تعریف شده است؟ ". لذا در این پژوهش با هدف بررسی قوانین مرتبط با طرح‌های توسعه شهری و تطبیق آن‌ها با فقه اسلامی و رویکرد انتقال حقوق توسعه، تحقیقات بر سه بعد، فقهی، اخلاقی و حقوقی در قالب مطالعات اسنادی و بررسی نصوص دینی به انجام می‌رسد. این پژوهش از نظر هدف، کاربردی و توسعه‌ای بوده و ازنظر ماهیت تحلیلی- توصیفی می‌باشد. بررسی‌ها نشان می‌دهد که اگر قوانین مشارالیه، منطبق بر اصول فقهی- اخلاقی دین مبین اسلام بازبینی گردند و الگوهای در نظر گرفته شده برای تملک دارای کمترین میزان مداخله و همچنین رضایت کامل مالکینی باشد که مال آنان در مسیر طرح‌های توسعه قرار می‌گیرد، می‌توان تلالو تحقق احکام اسلامی را در شهرها نظاره‌گر بود. در پایان ضمن پاسخگویی به سوالات، پیشنهاد‌هایی جهت بهره‌مندی از قواعد فقهی/ اخلاقی مبتنی بر اندیشه اسلامی در طرح‌های توسعه شهری ارائه می‌گردد.

Introduction The review of urban development plans in Iran in the horizon indicates that a large part of the proposals and estimates in the horizon of this plan have not been realized. One of the main reasons for the ineffectiveness of these plans is the way they face the property rights. A right that is recognized in the country of Iran and based on Islamic law and Sharia; Therefore, it is necessary to examine this topic from the perspective of Islamic thought. Among the emerging ideas in the field of urban planning in the west is the transfer of development right (TDR) approach. This idea was proposed for the first time in order to preserve cultural heritage in America. But is this approach, which is used in urban plans in recent decades in Iran, is expanding and has its roots in Western thought, can it be the answer of Iranian Islamic society? Therefore, in this research, the main goals are, 1. Obtaining the framework of the concepts of rights and the transfer of property development based on religious texts, jurisprudential principles and documentary sources. 2. Adapting and reviewing the legal status of owners in the TDR approach is from the perspective of Islamic thought. In this research, while examining the three dimensions, jurisprudence, ethics and law in the approach of transfer of development rights and the compliance of laws related to urban development plans with Islamic jurisprudence and the approach of transfer of development rights, it is tried to make suggestions to benefit from the jurisprudence/ethical rule based To be presented on Islamic thought in urban development plans. Methodology This research is applied and developmental in terms of purpose and analytical-descriptive in nature. This research is carried out in two stages, first by using documentary studies and existing information resulting from the implementation experiences of urban plans, the legal status of ownership and transfer of the right to development is examined, and in the next stage through studies of religious texts and Shariathe framework of property rights in the religion of Islam is explored. So, the right of ownership in Islam and Islamic thought, focusing on the principle of subordination, is examined in comparison with the right to transfer ownership in the TDR approach, and suggestions are made for the integration of legal structures and the Islamic system in the field of ownership in order to increase the realization of projects. Urban development is provided. Result and discussion The transfer of development rights (TDR) approach was first considered in New York City and in the United States, the possibility of moving and the right to transfer a license plate to the adjacent license plate in the Zoning Law of 1916a. Based on this plan, the owners were given permission to sell their vertical development right to adjacent land plates, and the parts receiving this right would have the possibility of violating the construction height limit and setback requirements. Various issues are involved in the TDR approach, such as development right, development value, and service recipient and service provider areas. By using the development right transfer approach, the owners of sensitive natural lands, farms, as well as historical and important areas can receive their losses through the sale of their transferable development TDR and voluntarily develop their property in the future. Regarding the jurisprudential aspect of the transfer of development rights, according to the perspective of personal partial dispossession in Islam, people are free to own their property, but according to the interests of the society, some of these rights are deprived by law and government. Regarding the next aspect of citizenship rights, citizenship and ownership, which are considered among new concepts in the West today and are trying to achieve the rights of owners and citizens, are explicitly mentioned in Islam. Regarding the moral aspect, Imam Khomeini mentioned that man is the essence of all beings and the essence of the whole world. The mission of the prophets is to actualize this potential extract. The effort of all prophets is to create social and inner justice in humans. Justice is the direct path of human progress to divine perfection. In practice, the limits of ownership and the amount of consumption should be based on right and justice and in the direction of maximum productivity and growth and ensuring social justice. In Iran, the renovation and improvement of dilapidated urban structures as a problem with different social, economic, legal and technical dimensions has been included in the programs of the government and municipalities since the early 1980s. At the same time as drawing attention to this category on a national scale and in the form of by-laws and laws, Tehran Municipality has also started planning and intervening in these fields since 2013. The actions of the Tehran City Renewal Organization show that at the beginning in 2012 with the construction plan of the eastern highway edge which was a program based on acquisition, demolition and reconstruction, in the years 2018 and 2019 in the form of setting up facilitation offices and based on Social actions crystallized. Previously, experiences in the field of intervention in urban contexts, especially worn-out contexts, were carried out with the approach of improving physical and functional conditions and without paying attention to other aspects of the issue. This is despite the fact that the basis of the concept of citizenship rights in the Islamic city is the people. In fact, the role of people in all areas of urban development plans should be considered. The plan must satisfy the people involved in the plan, and one of the most important examples of this is the way of bringing together the owners in connection with the occupation of lands and properties in order to achieve the goals of collective development. It is obvious that a process that starts with the creation of dissatisfaction among the beneficiaries of the project is not based on the principles of Islam and jurisprudence. Conclusion Islam is the religion of justice, equality and right orientation, and by relying on Islamic jurisprudence, important rules can be extracted and explained in the field of urban issues. The rules of submissiveness, harmlessness and expediency are among the most important jurisprudential principles that must be observed in Islamic urban planning in Iran in order to maintain and control the family foundation, stability of ownership, and respect for citizens. Also, the main condition for validating urban development plans is their compatibility with the approved laws of the country. Most of the specialized laws approved in the field of urban development and construction, including the Law of Municipalities (1960), the Civil and Urban Renovation Law (1968), etc., are related to the Pahlavi era, and these laws have not been corrected or updated over time. It is possible to achieve this goal in the form of adding notes to the articles of the previous laws, or canceling the previous laws and approving new laws. Islam is the religion of justice, equality and peaceful coexistence. If the above laws are revised in accordance with the jurisprudential-ethical principles of the Islamic religion and the patterns considered for acquisition have the least amount of intervention and also the full satisfaction of the owners whose property is placed in the path of development plans, It is possible to observe the fulfillment of Islamic rules in the cities. Therefore, the following comprehensive suggestions are presented in order to achieve this goal. - Avoid urban development plans that only exist with an economic and material view of land, buildings, and people's livelihood. - Avoid large-scale decision-making and interventions. - It is necessary to review and update the laws related to construction and development in line with the speed of development and complexity in cities. Including in the applicable laws that were approved before the Islamic Revolution era. - Based on moral jurisprudence rules, a set of rights should be included in the laws and decisions should be made based on them, such as ownership citizenship rights, business and profession rights, water and flower rights, agricultural right.