Karnataka High Court
M/S Kristal Group vs Anekal Development Authority on 4 March, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.A. No.4656 OF 2017 (LB-RES)
IN
W.P. Nos.61887-61891 OF 2016 &
W.P.Nos.61892-61895 OF 2016 (LB-RES)
BETWEEN:
M/S. KRISTAL GROUP
NO.1, 4TH CROSS, 29TH MAIN
BTM LAYOUT 2ND STAGE
BANGALORE-560 076
REPRESENTED BY ITS MANAGING DIRECTOR
SMT. LATHA NAMBOOTHIRI, MAJOR.
... APPELLANT
(BY MR. UDAYA HOLLA, SR. COUNSEL FOR
MRS. M. SOHANI HOLLA, ADV.,)
AND:
ANEKAL DEVELOPMENT AUTHORITY
ANNA, NO.430, HENNAGARA GATE
HOSUR MAIN ROAD
BANGALORE-560 099
REPRESENTED BY ITS DIRECTOR.
... RESPONDENT
(BY MR. YOGESH NAIK, ADV., FOR IMPLEADING
APPLICANT ON IA 1/18
MR. VIGNESH SHETTY, ADV., FOR IMPLEADING
APPLICANT ON IA 2/18
MR. JAYAKUMAR S. PATIL, SR. COUNSEL, ADV.)
---
2
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
11/7/17 PASSED IN THE WRIT PETITION 61887-891/2016 &
61892-895/2016
THIS W.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
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. 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 KRISHNANAD 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.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
SS
