3. Legal Department 2018/3744 E. , 2018/7147 K.
“Text Of Jurisprudence”
COURT :COMMERCIAL COURT
As a result of the trial of the istirdat case between the parties, the Supreme Court of Cassation decided to decertify the 13. 43 of Law No. 6763 on appeal of the provision on resisting the decision of the Civil Court to overturn by the defendant’s deputy within the period of time. article 373 of the HMK No. 6100, as amended by Art. article 5. according to the paragraph, the papers in the file were read and considered as necessary:
Decision Of The Judge
Prosecutor; the minutes of the fugitive by the institution due to the arrangement of the defendant, ready-mixed concrete production facilities, you had to subscribe for well water used in the city then, he had a subscription to the water, both filed enforcement proceedings initiated by the defendant in favor of the institution subscription due after that ended, more to avoid the institution of enforcement proceedings by the defendant held on various dates with 134.250 total, $ 40 you had to pay bills in the amount of, however, due to legal regulations, the defendant has the right to claim compensation because of the subscription of the institution that is also well-well water-water used in the production of concrete, because it is formed as waste water sewer system is unfair because it is not saying too well water and city water Price asked for it; 134.250 had to pay,with interest from the date of payment of the advance collection will operate 40 TL demanded.
The defendant; arguing that some of the bills subject to litigation have expired as of the payment dates, and that the prices accrued to the plaintiff due to well water and workplace subscriptions are correct in the main aspect, the defendant requested the dismissal of the case.
By the Court; Article 73 of the Constitution. within the framework of the principles in the article, municipalities for their services, which paid public taxes, duties, fees and similar payments of the law of Municipal Decision-1986/9 Mainly by the decision of the Constitutional Court of the date and 31/03/1987 1986/20 Revenue Code 97. in the article “… and within the boundaries of the municipal recourse area from groundwater by public and private persons
obtained from the use and industrial waters …. with the phrase “ fees for use and industrial water obtained from groundwater by public and private persons …”in ISKI, where Law No. 3030 applies, are charged by Metropolitan Municipalities. “ the cancellation of the arrangement, editing has been done when a new legal decision after the revocation of the defendant’s own administration based on the tariff regulations, would not be able to claim the cost of well water, on the other hand, Law No. 2560, and 3305, added by the law-4 the arrangement is taken into consideration when the defendant to serve the administration’s case for the removal of waste water in waste water can demand a price for that, however, the defendant at the plaintiff’s address by the Administration reported that the sewer line is not, in this case, the defendant’s decision to accept the case was appealed by the defendant and the Court of Cassation 13 on the grounds that it would not be possible for the defendant administration, which does not provide services for the removal of wastewater, to charge a fee. 17.10.2012 of the Legal Department and 2012/16956 E. 2012/23601 K. according to the numbered hymn;
(… 1-According to the articles in the file, the evidence on which the decision is based, the necessary reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the defendant’s other appeals that fall outside the following paragraph must be rejected.
2-the plaintiff, the defendant may be required by the administration in case price for water well, whether the well water used for the production of concrete waste water, whether filed asserting that the case failed to provide sewer service in place; defendant, the plaintiff than the cost of water and waste water according to the provisions of the legislation claimed to be responsible to the court that the defendant involved in the case of the administration of the factory building is located in the place where the sewer system well and yet the absence of the defendant is authorized to charge the total amount of water on the grounds that the case was not decided upon the adoption of it all. However, the defendant established according to Law No. 2560 … There should be no room for hesitation when each subscriber produces as much waste water as the water he uses. … this will make the wastewater harmless by means of sewage or by discharging it into collection pits. In cases where the administration’s facilities are insufficient and it does not perform the service itself, the partial provision of the service to natural or legal persons with the appropriate technical equipment for this work by issuing a license does not mean that the monopoly of rights and powers arising from the law has disappeared. On the other hand, the administration’s failure to perform the service at all may lead to liability under the “service defect” concept of administrative law, but this does not entitle subscribers who use water in any way and therefore necessarily produce wastewater to discharge wastewater upon arrival without permission and without agreeing to sign a contract and avoid paying a wastewater fee based on the grounds that the service has not been performed. Therefore, it is wrong for the defendant administration to decide on the full acceptance of the plaintiff’s case by betting that there is no sewer network in the said place. As a matter of fact, the General Assembly of the Supreme Court of Law 1996/93-346 E. 1996/699 K. as noted in the decision numbered accrued cost economic conditions created by the provision of a service, such as waste water of the city, fresh, potable and industrial water needs to be distributed to the needy and providing groundwater and surface sources, the removal of Water Resources and the water used to avoid contamination of groundwater with water use in the region, to set up new facilities, maintenance and operation of the board in order to ensure the provision of these services to those mentioned above for the purpose of the agreement in the field of private law between the parties was valid and that the plaintiff’s cost of waste water and well water used in the production of concrete than the cost of 2560 is responsible under the provisions of law and regulation, it must be acknowledged that the tariffs. The fact that the court accepted the case in writing with incomplete review, ignoring these aspects, is contrary to the procedure and the law and requires a violation…)
The grounds are deteriorated.
The court decided to resist the decision to overturn it on the same grounds; the verdict was appealed by the defendant’s deputy.
The case relates to the request of the defendant administration to investigate the cost of well water and wastewater accrued due to the plaintiff’s well water subscription and the cost of wastewater accrued due to the workplace subscription.
The sources of income that constitute the equivalent of the expenditures required by the public services that municipalities are obliged to perform and which are largely based on public law are listed in the Municipal Income Law No. 2464. 97 Of the aforementioned law entitled “Chargeable works”. the first paragraph of the article; “Municipalities are authorized to charge fees according to the tariffs to be issued by municipal councils for all kinds of services that are not subject to fees or participation shares in this Law and that they will perform depending on the request of interested parties, as well as for use and industrial waters obtained by public and private persons from underground waters within the boundaries of the municipal application area. Works granted to the municipality as a monopoly are subject to their own special provisions.” it contained the provision. However, in the text of the article, “and the contiguous area of the municipality of groundwater within the boundaries of public and private entities obtained by using the waters of the industry” and also marked “groundwater and industrial waters from fees for public and private entities obtained by using …in ISKI, No. 3030 is collected by the municipality where the law is in place.” the second paragraph, which carries the provision, was canceled by the decision of the Constitutional Court dated 31.3.1987 and based on 1986/20, Decision No. 1987/9 of 1987.
Since most of the income sources of municipalities are based on public law and constitute the equivalent of the expenditures required by the public services undertaken, the taxes, pictures, fees and the like that municipalities will receive are subject to Article 73 of the Constitution. it is mandatory to be established by law in the department of principles provided for in the article. In other words, municipalities cannot create and use any source of income that is not regulated by law. Otherwise, this source of income will be devoid of legal basis.
As mentioned in the above-described resist the decision; the municipalities adjacent to the area within the boundaries of groundwater obtained from using the law that gives authority to receive payment from waters and industrial and instead revoked, the same authority of the Act contains a provision that was undiagnosed any; any further legal regulation in this direction do not exist in our legislation since; in a concrete case, it is necessary to accept that the defendant administration, in accordance with the regulation on Tariffs of its own, accrues the price of well water, which is the subject of the request for consultation in the case, lacks legal basis ( 2008/4-321 E of the HGK. 2008/303 K. the numbered hymn is also in the same direction).
On the other hand, it is not a matter of dispute that there is no sewer line of the defendant administration at the address where the plaintiff’s subscription is installed. In other words, the defendant administration does not provide a sewer service at the location of subscriptions. In this case, in accordance with the regulation on Tariffs by the respondent administration, the fact that the cost of wastewater has been accrued as if sewage service has been provided also lacks legal basis(HGK 22.01.2014 day and 2013/13-508 E. 2014/39 K. and 20.01.2016 days, and 2014/13-193 E. 2016/16 K. the numbered hymns are in the same direction). As a matter of fact, in cases between the parties on the same issue that have been finalized by going through decency, it has been accepted that the defendant administration cannot charge a waste water fee.
As such, the court’s decision to resist the adoption of the case on the same grounds is in accordance with the procedure and the law and should be upheld.
CONCLUSION: For the reasons described above, the defendant’s attorney’s refusal of all appeals that are not in place and the APPROVAL of the provision that is in accordance with the procedure and law, with the reference to Provisional Article 3 of HMK No. 6100, 440 of HUMK No. 1086. in accordance with the article, it was unanimously decided on 26.06.2018 that the way to correct the decision would be open within a 15-day period from the notification of the decision.
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