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2022 DIGILAW 301 (KAR)

Kristal Group v. Anekal Development Authority

2022-03-04

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT Alok Aradhe, J. - This intra court appeal has been filed against the order dated 11.07.2017 passed by the learned Single Judge, by which writ petition preferred by the appellant has been disposed of. In order to appreciate appellant's grievance, relevant facts need mention, which are stated infra. 2. The appellant is the owner and is in possession of the land bearing Sy. Nos. 79, 80, 81, 82/182/2, 82/4, 83/5,57/2 and 57/3 totally measuring 17 acres 18 guntas plus 1 acre 6 guntas, both situated at Yemare Village, Sarjapur Hobli Anekal Taluk. The appellant obtained approval on 10.11.2005 for developing a housing layout on an area measuring 17 acres and 24 guntas of the aforesaid property from the Bangalore Metropolitan Regional Developmental Authority. Clause 11 of the Conditions imposed in the aforesaid order granting approval provides that internal roads of the layout shall not be utilized in a manner so as to restrict the access to neighboring lands. Anekal Development Authority (hereinafter referred to as 'the Authority' for short) approved the modified layout plan on 20.04.2011 for a housing layout and issued commencement certificate. Clause 11 of the conditions imposed in the approval of modified layout plan provides that from the roads of the developed layout, existing access to the neighbouring lands shall not be restricted. 3. In pursuance of the commencement certificate, the development was completed as per the modified layout plan and houses were built by various persons who had purchased the sites. The authority issued a notice on 06.03.2015 inter alia on the ground that compound wall constructed around the property restricts access to neighboring lands and therefore, the appellant has violated the condition imposed in the commencement certificate. The appellant was required to demolish the compound wall. The appellant assailed the validity of the aforesaid notice in a writ petition viz., W.P. No. 10602/2015. This court by an order dated 16.09.2016 disposed of the writ petition with a direction that notice dated 06.03.2015 be treated as show cause notice and appellant was permitted to file a reply. The authority was thereafter granted liberty to pass appropriate orders. 4. The appellant filed objections to the notice dated 06.03.2015. The Authority passed an order on 02.11.2016 that the roads in the developed layout has been handed over to the respondent. The authority was thereafter granted liberty to pass appropriate orders. 4. The appellant filed objections to the notice dated 06.03.2015. The Authority passed an order on 02.11.2016 that the roads in the developed layout has been handed over to the respondent. Therefore, the same are public roads and from these roads, access to neighboring property should not be prevented and the compound wall constructed by the appellant was ordered to be demolished. The said order was challenged by the appellant in a writ petition viz., W.P. No. 61887/2016. The learned Single Judge in view of statement made by learned counsel for the appellant, disposed of the writ petition with the direction to the appellant to remove the part of the compound wall from the public road in question within a period of 15 days for allowing the free entry and exit, ingress and egress on such public roads of approved layout plan. The authority was granted the liberty to remove compound wall to the requisite extent at the cost of the appellant. The learned Single Judge rejected the application for impleadment of the proposed Respondent No. 2 to 7 as the writ petition itself was disposed of. In the aforesaid factual background, this appeal has been filed. 5. Learned Senior Counsel for the appellant while inviting the attention of this court to the application under Order XLI Rule 27 for taking additional documents on record submits that in the Village map, prepared by Superintendent, Maps Division Survey and Land Records, Revenue Department, Government of Karnataka, no public road has been shown on the lands in question. Our attention has also been invited to the master plan as well as concerned Google map in support of aforesaid contention. It is also urged that in a private layout, public roads cannot exist and public in general cannot have access to the roads, which are constructed for the benefit of residence of the area. It is also urged that concession was made by the counsel under a mistaken impression of law, which does not bind the appellant. In support of aforesaid submissions, reliance has been placed on decisions of the Supreme Court in 'Central Council for Research In Ayurveda & Siddha and Another vs. Dr. K. Santhakumari', (2001)5 SCC 60 and 'Swami Krishnanand Govindanand vs. M.D. Oswal Hosiery (Regd.)', (2002) 3 SCC 39 . 6. In support of aforesaid submissions, reliance has been placed on decisions of the Supreme Court in 'Central Council for Research In Ayurveda & Siddha and Another vs. Dr. K. Santhakumari', (2001)5 SCC 60 and 'Swami Krishnanand Govindanand vs. M.D. Oswal Hosiery (Regd.)', (2002) 3 SCC 39 . 6. On the other hand, learned counsel for the respondent has submitted that the owner of the land has executed a relinquishment deed in favour of the authority under Section 17(2-A) of the Karnataka Town and Country Planning Act, 1961 and therefore, the roads in the layout are public roads. 7. We have considered the submissions made on both sides and have perused the record. The appellant has filed an application for producing additional documents on record. The documents produced by the appellant include copy of village map, master plan of the authority and the copy of the layout plan, which prima facie show that there were no roads on the schedule property prior to formation of the layout on the land in question. The aforesaid documents, which are public documents and their authenticity is not doubtful. The aforesaid documents have a material bearing on the controversy involved in this case. Therefore, we are inclined to allow the application seeking production of additional documentary evidence in appeal. 8. The admission made by the counsel for the appellant in the facts of the case, cannot be treated as an admission to bind the appellant. The admission appears to have been made under misconception of law. Since, we have permitted the appellant to adduce additional documentary evidence, the remand of the matter to learned Single Judge has become inevitable as the authority as well as the impleading applicant have to be given an opportunity to rebut the additional documentary evidence produced by the appellant. The order passed by the learned Single Judge is therefore set aside. The matter is remitted to the learned Single Judge to decide the matter afresh in the light of additional documentary evidence adduced by the appellant. Needless to state that the respondent as well as the impleading applicant will have an opportunity to rebut the additional documentary evidence. The impleading applicant is also granted the liberty to prosecute his application for impleadment before the learned Single Judge. It is made clear that this court has not expressed any opinion on the merits of the claim of the parties. The impleading applicant is also granted the liberty to prosecute his application for impleadment before the learned Single Judge. It is made clear that this court has not expressed any opinion on the merits of the claim of the parties. Accordingly, the appeal is disposed of.