T.R. SUPREME COURT
- Law Office
Basis: 2016/8767
Decision: 2016/10150
Decision Date: 27.06.2016
TEMPORARY SUBSCRIPTION FACILITY CASE – PREPARATION OF AN EXPERT REPORT BY EXPERT BY EXPERT ON IF THE SCIENTIFIC REQUIREMENTS HAVE BEEN FOLLOWED AND A DECISION SUITABLE FOR THE RESULT – SUBMISSION OF A DECISION
SUMMARY: By the court; In case it is determined that one or more of the infrastructure services such as road, water, telephone, sewerage and natural gas have been taken to the building subject to the lawsuit, pursuant to the provisional article 11 of the Law No. 3194, first of all, in accordance with the relevant regulations in the construction of the immovable, it is determined that the technical requirements are fulfilled by making an exploration through expert experts. While it is necessary to prepare an expert report and make a decision in accordance with the result; otherwise, the establishment of a judgment based on incomplete examination is against the procedure and the law and requires reversal.
(3194 S. K. Art. 30, 31)
Litigation and Decision: As a result of the court’s judgment of the temporary subscription establishment case between the parties, upon the appeal of the plaintiff’s attorney within the time limit of the verdict of dismissal of the case; After the decision to accept the appeal petition, the papers in the file were read and the necessary consideration was given:
Plaintiff’s attorney, with the petition; Claiming that the plaintiff applied to the defendant institution to provide electricity subscription to his residence, that the institution did not accept the application, that electricity was the basic need, he demanded and sued for a temporary subscription to be established.
The defendant’s attorney, with a reply petition; requested the dismissal of the case.
By the court; The case was dismissed and the judgment was appealed by the plaintiff’s attorney.
It is fixed with the content of the file that the occupancy permit of the building subject to the lawsuit was not obtained. According to the provisions of Articles 30 and 31 of the Zoning Law No. 3194, it is not possible to establish a subscription in places where there is no occupancy permit. So what; Before the lawsuit, the Additional Temporary Article 11 added to the Zoning Law No. 3194 in Article 25 of the Law No. 5784 on the Electricity Market Law and Some Laws, which was published in the Official Gazette dated 26.07.2008 and entered into force, states that “Until the date this article enters into force, the building (construction (construction) ) for buildings that have been licensed and built accordingly, for which occupancy permits have not been granted or not; If it is documented that one or more of the infrastructure services such as road, electricity, water, telephone, sewerage, natural gas have been taken, upon the fulfillment of the scientific requirements in line with the relevant regulations and the application as of the publication date of this article, the subscriber to which it belongs, defined in the relevant legislation, until the usage permit is obtained. Depending on the group, water and/or electricity can be connected temporarily. In this context, connection of water and/or electricity does not constitute any vested right, since the subscription will be canceled in case of a request from the relevant municipality to the distribution companies to cut the electricity. However, the condition that the building (construction) license has been obtained and built accordingly is not applicable for the buildings that were built before 12/10/2004. provision has been made.
In the concrete case, the building permit is dated May 2007, the house has a natural gas subscription and research is required in accordance with the Temporary Annex Article 11 added to the Zoning Law No. 3194.
By the court; In case it is determined that one or more of the infrastructure services such as road, water, telephone, sewerage and natural gas have been taken to the building subject to the lawsuit, pursuant to the provisional article 11 of the Law No. 3194, first of all, in accordance with the relevant regulations in the construction of the immovable, it is determined that the technical requirements are fulfilled by making an exploration through expert experts. While it is necessary to prepare an expert report and make a decision in accordance with the result; The establishment of a judgment based on an incomplete examination in written form is against the procedure and the law and requires overturning.
Conclusion: It was unanimously decided on 27.06.2016 that the judgment in written form was inaccurate and the appeal objections were valid for these reasons, without considering the principles explained above, and that the judgment be OVERFINED in accordance with Article 428 of the Code of Criminal Procedure and that the appeal fee in advance be returned to the appellant upon request. (¤¤)
