No Waste Water Fee Can Be Collected Where There Is No Sewerage Service
3rd Civil Chamber 2018/3744 E. , 2018/7147 K.
“Case Law Text”
COURT :
COMMERCIAL COURT
As a result of the trial of the reclamation case between the parties, upon the appeal of the judgement on resisting the reversal order of the 13th Civil Chamber of the Court of Cassation by the defendant’s attorney within the time limit, the papers in the file were read and considered as required pursuant to paragraph 5 of Article 373 of the CCP No. 6100 amended by Article 43 of the Law No. 6763:
JURISDICTION DECISION
The plaintiff stated that due to the issuance of a leakage report by the defendant institution, he had to subscribe for the well water used in the ready-mixed concrete production facility, then he had a city water subscription, the enforcement proceedings initiated by the defendant institution due to both subscriptions and the lawsuits filed afterwards were concluded in his favour, in order to avoid further enforcement proceedings, he had to pay the invoices issued by the defendant institution on various dates in the total amount of 134. 250,40 TL invoices issued by the defendant institution on various dates in order not to face more enforcement proceedings, but due to legal regulations, the defendant institution has no right to demand a fee due to the well water subscription, in addition, since the well water is used in the production of concrete, there is no wastewater and there is no sewerage system, it is unfair to demand a fee for well water and city water; He demanded the collection of 134.250,40 TL, which he had to pay, with advance interest to be accrued from the date of payment.
The defendant defended that some of the invoices subject to the lawsuit were time-barred as of the payment dates, and that the fees accrued to the plaintiff for well water and workplace subscriptions were correct, and requested the dismissal of the lawsuit.
The court stated that within the framework of the principles in Article 73 of the Constitution, taxes, duties, fees and similar payments that constitute the payment for the public services provided by the municipalities should be regulated by law, and with the decision of the Constitutional Court dated 31/03/1987 and numbered 1986/20 Esas 1986/9 Decision, Article 97 of the Municipal Revenues Law “… and the groundwater within the boundaries of the municipality’s neighbourhood area by public and private persons
….” and the regulation stating that “the fees for domestic and industrial water obtained from groundwater by public and private persons are collected by ISKI in … and by Metropolitan Municipalities in places where the Law No. 3030 is applied. ” was cancelled, no new legal regulation was made after the cancellation decision, it is not possible for the defendant administration to demand the well water fee based on its own tariffs regulation, on the other hand, considering the regulation in Law No. 2560 and the Additional-4 article added by Law No. 3305, the defendant administration may demand the waste water fee if it provides services for the removal of waste water,
However, the defendant administration reported that there was no sewerage line at the plaintiff’s address, in this case, it would not be possible for the defendant administration, which does not provide services for the removal of wastewater, to demand a fee, and the judgement on the acceptance of the lawsuit was appealed by the defendant, and the 13th Civil Chamber of the Court of Cassation Civil Chamber of the Court of Cassation dated 17.10.2012 and numbered 2012/16956 E. 2012/23601 K;
(… 1-According to the writings in the case, the evidence on which the judgement is based and the reasons in accordance with the law, and especially since there is no inaccuracy in the appreciation of the evidence, the other appellate objections of the defendant other than the following paragraph should be rejected.
2- The plaintiff claimed that the defendant administration cannot be charged for the well water, the well water is used for concrete production and no wastewater is generated, and there is no sewerage service in the place subject to the lawsuit; the defendant defended that the defendant is responsible for the plaintiff’s water and wastewater costs according to the provisions of the legislation, and the court decided to accept the lawsuit in its entirety on the grounds that the defendant administration does not yet have a sewerage network where the factory building subject to the lawsuit is located and that the defendant is not authorised to collect the well water fee.
However, the defendant … …, which was established in accordance with the Law No. 2560, has the duty and authority to establish facilities for domestic water and wastewater, to prepare tariffs and to collect money for these waters, and these powers have been given to the monopoly of the said administration. There should be no doubt that each subscriber produces wastewater as much as the water used. … will render these wastewaters harmless by means of sewerage or by discharging them into collection pits. In cases where the facilities of the administration are insufficient and it is unable to perform the service itself, granting a licence to real or legal persons who have the appropriate technical equipment for this work and having the service partially performed by them does not mean that the monopoly of right and authority arising from the law is eliminated.
On the other hand, although the failure of the administration to fulfil the service at all may lead to the emergence of its responsibility within the framework of the “service defect” concept of administrative law, this situation does not entitle the subscribers who use water in any way and therefore compulsorily produce wastewater to discharge wastewater indiscriminately without obtaining permission and signing a contract, and to avoid paying wastewater fees on the grounds that the service is not fulfilled.
Therefore, it is wrong to decide to accept the plaintiff’s lawsuit on the grounds that the defendant administration does not have a sewerage network in the said place. As a matter of fact, as stated in the decision of the Court of Cassation General Assembly of Civil Chambers numbered 1996/93-346 E. 1996/699 K. As stated in the decision of the General Assembly of the Court of Cassation numbered 1996/93-346 E. 1996/699 K., the accrued wastewater fee may be a service fee, or it may be a service fee …
It should be accepted that the contract made between the parties in the field of private law for the purpose of providing the drinking, domestic and industrial water needs of the city from underground and aboveground sources, distributing them to the needy, disposing of used water and their removal, establishing new facilities to prevent pollution of water resources and groundwater within the region with used water, and ensuring the maintenance and operation of the established ones, and that the plaintiff is responsible for the waste water fee and the well water fee used in concrete production within the scope of the provisions of the Law No. 2560 and the Tariffs Regulation. The court’s acceptance of the case in writing with incomplete examination by ignoring these aspects is contrary to the procedure and law and requires reversal…)
The judgement was reversed on the grounds of reversal.
Court decided to resist against the reversal order on the same grounds; the judgement was appealed by the defendant’s attorney.
The lawsuit is related to the claim for the recovery of the well water and waste water fee accrued by the defendant administration due to the well water subscription of the plaintiff and the waste water fee accrued due to the workplace subscription.
Sources of income, which constitute the expenditures required by the public services that the municipalities are obliged to fulfil and most of which are based on public law, are listed in the Municipal Revenues Law No. 2464. The first paragraph of Article 97 of the aforementioned law titled “Works subject to fees” reads as follows: “Municipalities are authorised to charge fees according to the tariffs to be determined by the municipal councils for all kinds of services which are not subject to fees or contribution shares in this Law and which they will perform at the request of the relevant persons, and for domestic and industrial water obtained by public and private persons from underground waters within the boundaries of the municipality’s neighbourhood area.
Works granted to the Municipality as a monopoly are subject to their own special provisions.” However, the phrase “…and the domestic and industrial waters obtained by public and private persons from underground waters within the boundaries of the municipality and the municipality’s adjacent area…” in the text of the article and the second paragraph of the article, which also reads “The fees for domestic and industrial waters obtained by public and private persons from underground waters are collected by İSKİ in …and by Metropolitan Municipalities in the places where the Law No. 3030 is applied.”, were cancelled by the Constitutional Court’s decision dated 31.3.1987 and numbered 1986/20 Esas 1987/9 Karar.
Since most of the revenue sources of the municipalities are based on public law and constitute the reimbursement of the expenditures required by the public services undertaken, it is obligatory that the taxes, duties, fees and the like to be levied by the municipalities be established by law in accordance with the principles stipulated in Article 73 of the Constitution. In other words, municipalities cannot generate and use any source of income that is not regulated by law. Otherwise, that source of income would be devoid of legal basis.
As explained above and as mentioned in the decision of resistance; since the provision of the Law authorising the municipalities to charge fees for domestic and industrial water obtained from underground water within the borders of the adjacent areas has been cancelled and no other provision of the law containing the same authority has been replaced by the same provision; Since there is no other legal regulation in this direction in our legislation; in the concrete case, it must be accepted that the defendant administration’s accrual of the well water fee, which constitutes the subject of the reclamation request in the case, within the framework of the regulation in the Tariffs Regulation of the defendant administration, lacks legal basis.( HGK’s 2008/4-321 E. 2008/303 K. is in the same direction).
On the other hand, it is not a matter of dispute that there is no sewerage line of the defendant administration at the address where the subscription of the plaintiff is installed. In other words, the respondent administration does not provide a sewerage service at the location of the subscriptions. In this case, the fact that the defendant administration has accrued wastewater charges as if sewerage service has been provided in accordance with the regulation in the Tariffs Regulation lacks a legal basis (the decisions of the HCJ dated 22.01.2014 and numbered 2013/13-508 E. 2014/39 K. and dated 20.01.2016 and numbered 2014/13-193 E. 2016/16 K. are in the same direction). As a matter of fact, it has been accepted that the defendant administration cannot demand wastewater fee in the lawsuits between the parties on the same subject, which have been finalised after passing through the degree court.
As such, the court’s decision to accept the case based on the same reasoning is in accordance with the procedure and law and should be approved.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 26.06.2018, with the rejection of all the appellate objections of the defendant’s attorney, which are not appropriate, and the judgement, which is in accordance with the procedure and law, is APPROVED, and the way of correction of the decision is open within a period of 15 days from the notification of the decision in accordance with Article 440 of the Code of Civil Procedure No. 1086 with reference to Provisional Article 3 of the CCP No. 6100.
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