Karnataka High Court
Amar S/O Ashok Ilager vs Member Secretary on 18 March, 2024
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NC: 2024:KHC-D:5415
WP No. 103587 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
WRIT PETITION NO.103587/2016(LB-RES)
BETWEEN:
1. AMAR S/O ASHOK ILAGER
AGE: ABOUT: 41 YEARS,
OCC: AGRICULTURE
R/O: S.B.I COLONY
BANASHANKARI BADAVANE
BADAMI - 587 201.
SINCE DECEASED BY HIS LRS.
1A. SMT. SHILPA
W/O. LATE AMAR IIAGER,
AGE: ABOUT 38 YEARS,
OCC: HOUSE WORK,
R/O: WARD NO.5, S.B.I COLONY
BADAMI - 587 201,
Digitally
signed by TA: BAGALKOT, DIST: BAGALKOT.
MANJANNA E
Location:
High Court of
Karnataka 1B. DASHAMI
D/O. LATE AMAR IIAGER,
AGE: ABOUT 12 YEARS,
R/O: WARD NO., S.B.I.COLONY
BADAMI - 587 201,
TA: BAGALKOT,
DIST: BAGALKOT.
1C. LAKSHMI
D/O. LATE AMAR ILLAGER,
AGE: ABOUT 9 YEARS,
R/O: WARD NO.5, S.B.I.COLONY
BADAMI - 587 201,
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NC: 2024:KHC-D:5415
WP No. 103587 of 2016
TA: BAGALKOT,
DIST: BAGALKOT.
1D. SMT. USHA
W/O. ASHOK IIAGER,
AGE: ABOUT 64 YEARS,
OCC: HOUSE WORK,
R/O: WARD NO.5, S.B.I COLONY,
BADAMI - 587 201.
PETITIONERS
(BY SRI S.S. NAGARALE AND
SRI M. M. PATIL, ADVOCATES)
AND:
1. MEMBER SECRETARY
TOWN PLANNING AUTHORITY
TOWN - MUNICIPAL OFFICE
BADAMI - 587 201.
2. PRESIDENT,
BADAMI TOWN PLANNING AUTHORITY
TOWN - MUNICIPAL OFFICE,
BADAMI - 587 201.
3. ASSISTANT DIRECTOR,
TOWN PLANNING AUTHORITY,
BAGALKOT.
4. ASSISTANT DIRECTOR OF LAND RECORDS,
TAHASILDAR OFFICE,
BADAMI - 587 201.
5. DISTRICT DIRECTOR OF LAND RECORDS
DEPUTY COMMISSIONER OFFICE,
NAVANAGAR, BAGALKOT.
6. DEPUTY COMMISSIONER,
BAGALKOT DISTRICT,
NAVA NAGAR, BHAGAKOT.
7. CHIEF OFFICER,
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NC: 2024:KHC-D:5415
WP No. 103587 of 2016
TOWN MUNICIPALITY,
BADAMI - 587 201.
8. NAGAPPA
S/O. FAKIRAPPA GOLLAR,
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: KABBALGERI, TQ: BADAMI.
9. FAKIRAPPA
S/O. SABANNA MUTTAL,
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: ANANDA NAGAR,
BADAMI - 587 201.
...RESPONDENTS
(BY SRI S.S.BETURMATH, ADV AND
SRI K. L. PATIL, ADV. FOR R1 AND R2;
SRI P.N.HATTI, HCGP FOR R3 TO R6;
SRI M.G.ANGADI, ADV. FOR R7;
R8 AND R9 ARE SERVED)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER OF PLAN APPROVED BEARING ITS
NO.NA.YO.PRA/VINNYAS/2015-16/161-162 DATED 02.01.2016
PASSED BY THE 1ST RESPONDENT VIDE AT ANNEXURE - F AND
ETC.,
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:5415
WP No. 103587 of 2016
ORDER
The petitioner has approached this Court for issuance of writ in the nature of certiorari to quash the order dated 02.01.2016 passed by respondent No.1 approving the layout as per Annexure-F.
2. Heard learned counsel Sri.M.M.Patil and Sri.S.S.Nagarale, appearing for petitioner and learned counsel Sri.S.S.Beturmath and Sri.K.L.Patil, appearing for respondent Nos.1 and 2, Sri.P.N.Hatti, learned High Court Government Pleader appearing for respondent Nos.3 to 6 and Sri.M.G.Angadi, learned counsel appearing for respondent No.7.
3. Learned counsel for the petitioner submitted that petitioner is the owner of R.S.No.21/03, which is situated on the southern side of the approved layout plan produced as per Annexure-G. In view of the approval of the layout as per Annexure-F and G, the access from the main road i.e from Bagalkot-Badami road to R.S.No.21 is completely cut off and therefore, he had sought for quashing approval -5- NC: 2024:KHC-D:5415 WP No. 103587 of 2016 of the said layout. However, learned counsel for the petitioner submitted that if the respondent permit the petitioner to make use of 12 meters wide road formed on the eastern side of the approved layout, which is touching R.S.No.21, that it will serve the purpose and it will save quashing of the entire approved plan.
4. Learned counsel submitted that the respondents may permit the petitioner to make use of 12 meters of road formed on the eastern side of the approved layout and same may be observed while allowing the petition. Accordingly, he prays for passing appropriate order.
5. Per contra, learned counsel for respondent Nos.1 and 2 submits that the plan was approved by respondent No.1 in accordance with law. The approach road is formed from the main road till it touches R.S.No.21, on the eastern side of the layout. Respondent No.1 is not having any objection for the petitioner to make use of the said road, to reach from the main road to R.S.No.21. Accordingly, he prays for passing appropriate orders. -6-
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6. Learned Additional Government Pleader for respondent Nos.3 to 6 submitted that if submission made by respondent Nos.1 and 2 is to be recorded, he will not have any objection for the same.
7. Respondent Nos.7 and 8 are remained unrepresented.
8. Perused the materials on record.
9. Even though petitioner has sought for issuance of writ in the nature of certiorari to quash the approval of the layout as per Annexure-F, learned counsel for the petitioner submits that if the respondents provide access from the main road to reach R.S.No.21/03 belonging to the petitioner, that will serve his purpose. Annexure-G discloses that on the northern side, the public road from Bagalkot to Badami is running and to its southern side the layout was approved by respondent Nos.1 and 2. On the eastern side of approved layout, 12 meters wide road is formed to have an access to the layout from the main road.
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10. It is pertinent note that this road measuring 12 meters situated on the eastern side of the approved layout touches R.S.No.21. Therefore, if petitioner is permitted to make use of this road to have an access to reach his land in survey No.21/03, need for quashing the approval of the layout may not be arise. Since respondent Nos.1 to 6 have no objection for the same. I do not find any reasons to quash the entire layout which was approved by respondent Nos.1 and 2.
11. Learned counsel for the petitioner placed reliance on the decision in the case of Classic Orchards Property Owners Association and others Vs. State of Karnataka and others1, wherein the Division Bench of this Court considered the question whether the owners of the plots in the layout are entitled to the exclusive use of the roads and the common areas in the layout or in other wards whether the occupants of the layout are entitled to restrain the general public from utilizing the roads within 1 W.A.No.3384-3387/2016 dated 21.10.2016 -8- NC: 2024:KHC-D:5415 WP No. 103587 of 2016 the layout. The Division Bench referred to the notification issued by Bruhat Bengaluru Mahanagara Palike held that there has been no concept of 'gated community' and once a layout has been formed, the roads in the said layout automatically would come under the respective Municipal Corporation, and the general public would have free ingress and egress to the roads within the layout.
12. In the recent decision, in the case of Sri Pabba Reddy Kodandarami Reddy Vs. M/s Upkar Residences Pvt. Ltd. and others2, the Division Bench of this Court again referring to the earlier decision in the Classic Orchards Property Owners Association's case (supra), upheld the decision of the learned Single Judge that the roads in the layout can be made use of both by the residents of the layout and also by others. The Court has considered condition No.11 along with contention i.e., specific concession can be obtained at the hands of the authorities, that despite relinquishment of roads and public 2 W.A.No.61/2023(LB-RES) dated 24.11.2023 -9- NC: 2024:KHC-D:5415 WP No. 103587 of 2016 amenity spaces, the said roads are not intended to be used as a thoroughfare and therefore the outsiders cannot as a matter of course can make use of the same and it is held that such an arrangement would not militate the idea of such roads being relinquishment to the concerned authority or the local body. Therefore it was clarified that once the relinquishment is done, the land owner or the developer of the layout will have no right whatsoever which they had before relinquishment was done.
13. It is pertinent to note that in the present case approval of the layout as per Annexure-F was subject to certain conditions and one among them is relinquish the right and to hand over the roads and other public amenities to City Municipality, Badami. Therefore, decision relied on by the learned counsel for the petitioner is aptly applicable to the fact that the present case. Therefore, it is suffice to note that the petitioner is entitled to make use of the road lying on the eastern side of the approved layout to reach from the public road to the land in survey
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NC: 2024:KHC-D:5415 WP No. 103587 of 2016 No.21/03, situated on the southern side of the layout. Hence, I proceed to pass the following:
ORDER
a) Writ petition is allowed in part.
b) The prayer for quashing the approved layout as per Annexure-F is rejected.
c) The petitioner is entitled to make use of the 12 meters wide road formed on the eastern side of the approved layout to reach from Bagalkot-Badami to his land in R.S.No.21/03, situated on the southern side of the layout, without causing any disturbance to the occupants.
SD/-
JUDGE AC/CT-ASC List No.: 1 Sl No.: 40