TR SUPREME COURT
Law Office
Main: 2016/8767
Decision: 2016/10150
Decision Date: 27.06.2016
STATUS OF THE POSSIBILITY OF A TEMPORARY SUBSCRIPTION – PREPARATION OF AN EXPERT REPORT BY THE EXPERT CONFIRMING THAT THE SCIENTIFIC REQUIREMENTS HAVE BEEN FOLLOWED AND A DECISION IN ACCORDANCE WITH THE CONCLUSION – SUBMISSION OF A DECISION
SUMMARY:
In the event that it is determined by the court that one or more of the infrastructure services such as road, water, telephone, sewerage and natural gas have been provided in the building subject to the lawsuit in accordance with the provisional article 11 of the Law No. 3194, first of all, it is determined by conducting discovery through experts that the technical conditions have been fulfilled in accordance with the relevant regulations in the construction of the immovable. Although an expert report should be prepared and a decision should be made according to the result; otherwise, the judgment was established with incomplete discovery is contrary to the procedure and law and requires reversal.
(3194 SK Art. 30, 31)
Trial and Decision: As a result of the court’s decision on the temporary subscription case between the parties, upon the appeal made by the plaintiff’s attorney within the time limit regarding the decision to dismiss the case; after the decision to accept the appeal petition, the documents in the file were read and the necessary evaluation was made:
The plaintiff’s attorney, in the petition of lawsuit; the plaintiff applied to the defendant institution for an electricity subscription to his residence, the institution did not accept the application, claiming that electricity is a basic need and requested and sued for the establishment of a temporary subscription.
defendant’s attorney requested the dismissal of the lawsuit with his reply petition.
The court decided to dismiss the lawsuit and the judgment was appealed by the plaintiff’s attorney.
It is fixed with the contents of the file that the building subject to the lawsuit has not received a certificate of occupancy. According to Articles 30 and 31 of the Zoning Law No. 3194, it is not possible to establish a subscription where there is no occupancy permit.
Well; Prior to the lawsuit, Article 25 of the Law No. 5784 on the Electricity Market Law and Certain Laws, which entered into force after being published in the Official Gazette dated 26.07.2008, added an Additional Provisional Article 11 to the Zoning Law No. 3194, which reads as follows In the Additional Provisional Article 11 added to the Zoning Law No. 3194,
it is stated as follows: “For the structures that have been licensed and built accordingly and for which occupancy permits have not been issued or have not been issued until the effective date of this article; if it is documented that one or more of the infrastructure services such as road, electricity, water, telephone, sewerage, natural gas have been received, water and/or electricity can be temporarily connected to the subscriber to whom it belongs, as defined in the relevant legislation, until the occupancy permit is obtained, as defined in the relevant legislation.
Connecting water and/or electricity within this scope does not create any vested right, and the subscription will be canceled if the relevant municipality requests the distribution companies to cut off the electricity. However, for buildings constructed before 12/10/2004, the condition that the building (construction) license has been obtained and constructed accordingly is not applicable.
In the concrete case, the date of the building license is May 2007, there is a natural gas subscription in the dwelling, and an investigation is required in accordance with Provisional Additional Article 11 added to the Zoning Law No. 3194.
In the event that the court determines that one or more of the infrastructure services such as road, water, telephone, sewerage, natural gas are provided in the building subject to the lawsuit in accordance with the provisional Article 11 of the Law No. 3194, first of all, it is determined by conducting discovery through experts that the technical conditions are fulfilled in accordance with the relevant regulations in the construction of the immovable. Although an expert report should be prepared and a decision should be made according to the result; the written judgment based on incomplete examination is contrary to the procedure and law and should be reversed.
Conclusion Without taking into account the principles explained above, it was unanimously decided on 27.06.2016 that the judgment in the written judgment is erroneous and for these reasons, the objections of appeal are valid, the judgment is overcharged in accordance with Article 428 of the Code of Criminal Procedure and the appeal fee shall be returned to the plaintiff upon request.