BDA must get unrelinquished CA sites from layouts: High Court

Like many private layouts in the rapidly urbanising outskirts, Classic Orchards is a quiet residential community, with large independent houses. In 2010, the residents of Classic Orchards woke up one day to see the construction of an apartment complex on a piece of land they thought was a common amenity for the layout. If you are a resident of a private layout, this story will matter to you.

Battles between property developers and property buyers are not uncommon. In a city like Bengaluru, where there are multiple government agencies involved in handling building approvals, one is often not sure if the property one is buying has met the conditions of sanctions and is safe from litigation. As many buyers have realised, it is not just the home that one has to consider, but the entire layout within which your house is located.

A type of litigation that seems to erupt on and off involving residents and developers is on use of common areas such as parks and civic amenities. Despite earlier rulings that have brought some clarity to the use/ maintenance of parks, open spaces and CA sites after they have been relinquished, owners and the associations still have had to approach the courts to get their disputes with the builders resolved. A very recent instance that resulted in a High Court verdict is that of Classic Orchards Property Owners Association (COPOA) in Bangalore.

About Classic Orchards

Classic Orchards is a 70-acre layout of residential sites in Kothanur Village developed between 1995 and 2006, off Bannerghatta Road. The land that was in Uttarahalli Hobli, Bangalore South Taluk, was developed by M/s Amalgamated Property Developers (APD) of the Valmark Group, in two phases, between 1995 and 2006.

Scenes at Classic Orchards Pics: Subbu Hegde

As per the land conversion order issued by the Bangalore District Commissioner (DC) in March 1993, sanction was accorded to 16.06 acres of land, for residential and commercial use. The order specifies that approval of the layout and buildings should be obtained from BDA/ VP (Village Panchayat), and that specific portions would need to be relinquished towards roads and open spaces, as per the rules laid down by BDA/VP. Orders for the remaining area that was subsequently acquired for development of the layout were not available to Citizen Matters for review.

Residents of Classic Orchards say that some time in around 2010, APD, through an associate company, started preparation for the construction of a multi-storey apartment complex in what had been shown in the layout approval map as ‘civic amenities’. Members of the association and residents say their objections were of no avail. Complaints to the local police station, BBMP and BDA were not acted upon. Residents claim that the apartment complex is being marketed as Aastha Valmark and construction has reached 10 storeys.

An alleged encroachment of a drain that occurred while building Aastha Valmark has resulted in flooding in the area during rains. According to a Deccan Chronicle report, the drain that passed through the layout was diverted by the builder by putting a 10-inch pipe.  

45% of the area for civic amenities, open spaces

As per the Karnataka Town and Country Planning (KTCP) Act, 1961, the Bangalore Development Authority (BDA) is the designated planning authority for new layouts (either standalone sites/homes or apartment complexes) and approvals need to be in line with the Revised Master Plan (RMP) 2015. Those who own properties in BDA-approved layouts would be aware that one of the conditions for sanction of a layout’s development plan is that the roads, parks and open spaces are relinquished to BDA, as is also a portion of the total land area, towards a civic amenities (CA) site.

As per RMP-2015 (Chapter 6/ Chapter 7)

  • 10% of the land shall be reserved for Park and Open space. The open space (park) shall be relinquished to the authority free of cost and the same may be allowed to be maintained by the local residents association (registered), if the Authority so desires.
  • A minimum 5% of total plot area shall be provided for Civic Amenities and the owner or developer shall develop such civic amenities which finally shall be handed over to the local residents’ association for maintenance. The mode of such handing over shall be decided by the authority.
  • Apart from the provision for amenities and open spaces, the area for residential development shall be up to a maximum of 55 % of the total land area.

The layout sanction for the first phase of Classic Orchards was received from Gottigere Village Panchayat in May 1994. According to official documents shared by Subbu Hegde, President of Classic Orchards Property Owners Association, the layout was marketed as a gated community of independent sites with wide roads, parks, playgrounds and other amenities such as clubhouse, swimming pool, shopping complex, etc. Layout sanction included the condition of relinquishing roads, parks and open spaces and CA site to the BDA.

Buyers were assured that all approvals for the layout were received, and at the time of purchase, were required to contribute a lumpsum amount to a corpus fund for maintenance of the layout (which would be done by the owners association that would be subsequently formed). Site owners were entitled to build homes for ‘one family’ use on these sites after getting their individual house plans sanctioned.

Current situation regarding approvals of small layouts in village limits

Though not applicable for big layouts like Classic Orchards, it would be interesting to note a report in the Deccan Herald in November 2014. This takes the situation for small approvals back to what it was 20 years ago. In a move to decentralise and simplify the process of plan approval, the government issued an order empowering the gram and taluk panchayats to approve layouts/ residential properties proposed to be formed/ constructed in less than one acre of land in village limits.

Formation of the owners’ association and subsequent development

In 2001, Classic Orchards Property Owners Association (COPOA) was formed and registered by the developers APD, under the Societies Registration Act. At this time, phase 1 of the layout was done and APD was in the process of executing phase 2 of development. Representatives of APD were a part of the Managing Committee of the association.

The responsibility of maintenance of roads, parks, street lighting, security, STP and other common areas was given to the association that was formed for the approximately 250 sites of phase 1. However, Subbu Hegde says that the association found it difficult to function. This was because APD did not hand over the ownership of the common areas to either the association or the BDA.

Sanction for phase 2 was given by the Village Panchayat in December 2003. APD expanded the layout without adding the infrastructure that was originally in the plan (such as the club house). APD also did not expand the STP to meet the requirements of phase 2. Promises of adding them later were made but there was no corresponding action, say residents. Instead, they say that APD started carving out plots out of the park areas and selling them off.

An independent survey commissioned by the association in 2011 showed that the land for roads, parks and civic amenities had shrunk from the mandatory 45% to 35%, according to Subbu Hegde.

Some time in around 2010, APD, through an associate company, started preparation for the construction of a multi-storey apartment complex in what had been shown in the layout approval map as ‘civic amenities’. Members of the association and residents say that they objected but with no success. Complaints to the local police station, BBMP and BDA were not acted upon. Residents claim that the apartment complex is being marketed as Aastha Valmark and construction has reached till about the 10th storey.

An alleged encroachment of a drain that occurred while building Aastha Valmark has resulted in flooding in the area during rains. According to a Deccan Chronicle report, the drain that passed through the layout was diverted by the builder by putting a 10-inch pipe.

Court asks BDA to take action

After several failed attempts to convince the builder, COPOA filed a civil suit in 2012, praying for injunction against encroachment and alienation of common areas of the layout by APD. However, Subbu Hegde says that no result came of it.

In March 2014, COPOA withdrew the civil suit and filed a Writ Petition, No. WP/9882/2014, in the Karnataka High Court. The prayer in the Writ Petition urged the court to direct the BDA to:

  • Get APD to relinquish the common areas to BDA as per rules
  • Entrust the common areas to the association for maintenance in accordance with law.

The Karnataka High Court judge Huluvadi Ramesh disposed of the petition by passing an order, on 5th November 2014.

In the order, the judge has noted that “In the event the property falls within the BDA limits, then necessarily the BDA has to verify and consider it for taking over possession and maintenance of civic amenity. If the property falls within the corporation limit, then it is for the corporation to take this responsibility and to do the needful.”

It goes on to state that the BDA needs “to examine whether the property falls within the jurisdiction of BDA or corporation and thereafter, the grievance of the petitioners could be met if it is legal.” This was following the submission of the counsel for the developer that APD had already relinquished the land in favour of BBMP, a point which was not confirmed with any document. According to Subbu Hegde, only the roads have been relinquished.

Citizen Matters sent a detailed note asking for reactions and clarifications from APD and Valmark. We are yet to receive a reply. We will update this space when we receive their response.

Not enough clarity on BDA’s jurisdiction

To get clarity on the issue of BDA’s jurisdiction in this case, Citizen Matters spoke to BDA’s Town Planning Officer Chowdegowda. He said that though he is not aware of the specific details of the COPOA case, he is aware that layouts in villages that fall under BDA limits need to be approved by the BDA. A report in The New Indian Express in December 2012 confirms this and can be seen here.

The judgment also speaks about BDA’s submission, where BDA stated that the case for following the directions may not arise because the layout was sanctioned by the Village Panchayat. However, the DC conversion certificate for the first phase obtained in 1993 does state that the layout could be sanctioned either by the BDA or by the Village Panchayat.

When asked about what the BDA would do in this case following the court judgement, Chowdegowda said that Gottigere is in BDA limits. If the layout was found illegal, BDA would definitely issue a notice to the developer and sue the firm in the court of law. “There are several such cases where builders have built the structures without obtaining plan sanction from the BDA. Such structures are illegal, but BDA can not keep a watch on every building with the limited staff we have here,” he said.

On the claims made by the developer of relinquishing land to the BBMP for road construction, he said it was a different thing altogether. “The builder can relinquish land for road development to the BBMP, but by doing so the layout can not be called legal”, he said.

Surrendering CA sites is mandatory

Should the layout sanction for Classic Orchards have been got by the developer from the BDA instead of the Village Panchayat? Should relinquishment of roads and open spaces have been made to BDA or any other authority? The DC order and conditions of conversion for the first phase were issued in March 1993. Relinquishment to BDA is mentioned in the DC order. Gottigere Gram Panchayat issued the Classic Orchards layout sanction for phase 1 in March 1994. Therefore, this sanction, at least for phase 1, appears to be fine as it was around the time of the 1994 policy.

COPOA Management Committee and its legal team have already made submissions to the court that their prayer in the Writ Petition is legal. The court directed the authorities to take action so that the developers of the layout relinquish the roads, parks and civic amenities to the BDA/BBMP as per BDA rules, if the layout is found legal. The implication then is that subsequently the civic amenities should be handed over to the association by the developer.

While action from the BDA is awaited, this is still a major judgment in which, for the first time, the BDA has been ordered to implement its rules and compel developers to relinquish roads and civic amenities. The order is bound to give encouragement to other associations that have found themselves in situations similar to Classic Orchards. For those interested, the order of the court is available on the website of Karnataka High Court, here.

Addendum

Arathi is a trustee of Puttenahalli Neighbourhood Lake Improvement Trust (PNLIT) and an active citizen

Read more at: http://bangalore.citizenmatters.in/blogs/like-a-lake/blog_posts/citizens-felicitate-government-officials?utm_source=copy

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BDA must get unrelinquished CA sites from layouts: High Court

About Arathi Manay Yajaman 33 Articles
Arathi is a trustee of Puttenahalli Neighbourhood Lake Improvement Trust (PNLIT) and an active citizen.

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