Many citizens have filed their objections to draft rules of Akrama – Sakrama, formally called as Karnataka Town and Country Planning (Regulation of Unauthorised Development or Construction) Rules 2013 on the notification No: UDD 566 MyAPRa 2013, Bangalore, Dated December 12th 2013. Those who filed the objections include Vijayan Menon from Kormangala, Nagesh from Southern part of Outer Ring Road and others.
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Overall legality of the scheme
- The Metropolitan Planning Committee (MPC) having been established, the planning of the city, including land use, must be routed through this statutory body, and cannot be passed by the State government independently.
- The matter at hand is subjudice in the High Court of Karnataka, via various Public Interest litigations. No effort has been made by the BBMP to either seek clarifications of the high court or vacate interim orders.
- The draft lacks the punitive measures against officials. Regularising violations must go hand-in-hand with this. The act allowed for this. Rules need to necessarily incorporate all sections of the scheme and cannot be cherry-picked.
- Violations of building plans cause hardship to neighbours, and the government has no locus standi to excuse this on their behalf. Their consent must be sought. This is a fundamental right and cannot be overlooked.
- The entire masterplan /comprehensive development plan (CDP) processes, either in the past or future is nullified by this scheme. Regularisation of the kind proposed is the antithesis of a planned city/town.
- The government has never shown good faith in ending illegal constructions. Each iteration of its effort has led to a new ‘cut-off’ date. No effort has been made on the ground or in terms of process after the first proposal and introduction of Sec 76FF. It can be decoded that this is just a money-making scheme without any regard to a planned city, which is the tenet of the Karnataka Town and Country Planning Act.
- This act is meant to help only dishonest people, who willingly violated the law, with full awareness of the exact extent by which their construction exceed the limits.
- It will not help most apartments, because the RWA has no means to know whether their building meets all laws. It is not in the interest of the builder to let this secret. Unless there is a third-party audit of all buildings, this will never be revealed.
- Even when some irregularities are revealed, it is the current owners who have to pay the penalty; under the threat of demolition of their building. The rules must be amended to bring the actual perpetrators of the crime to book (the builder and the official who passed the scheme).
Specific items of the rules
The draft says regularisation fees are to be borne by the owner of the property. In the case of apartments, this essentially lets the builder, who would be the principal party that has caused an illegality, go scot free. The scheme as envisaged lets big violators and builders off the hook.
Levels of “allowed violations” are arbitrary and without data-backing. No effort has been done to either establish levels of violations or extents of violations.
The rules and act are very vague of action that would be taken against buildings that are not eligible for regularisation. There has been nothing stopping the government authorities, to take action under law against large scale violators. This again demonstrates that the scheme is designed to just collect money, without emphasis on major violators.
The process of scrutinising and allowing violations is faulty. The same officials who have allowed these illegalities to occur are the ones entrusted to condone /sanction violations. This severely compromises the integrity of the process.
There is a lack of transparency in the scrutiny process. All applications for regularisation should be in public domain with all details. It should be open to the public for scrutiny and for comments from the neighbourhood as to the veracity of disclosed details in the application.
The parameters for allowing violations are faulty. The requirement of adequate parking, laid down by law, is not considered. Therefore a building exceeding FAR or with zonal violations can be regularised irrespective of whether the building has adequate parking. This essentially compromises on public property and roads, where such parking will occur. Elsewhere in the rules, violations in use of basement as per plans are not allowed (which is mostly for parking).The rules are inconsistent for building without basements sanctioned for parking.
The fees are the same for a violator who has violated recently, to someone who has enjoyed the fruits of violations for many years. This is illogical.
Many of the violations are reversible. For example, when the basement is converted into shops. Why should this be regularised?
What about the indirect cost of the violation? For example, when commercial buildings lack parking space, all the vehicles pile on the road.
Note that many of the existing buildings do NOT follow the Part IV of National Building Code (Fire and Life Safety). Any violation would make that even worse (for example, by cutting off the exits, or narrowing the escape routes). Can the government condone such threats to life by collecting some fines?
The rules say that the RWA representatives can apply for regularisation. This provision can be misused to regularise a problem that is rampant in Bangalore: As per Building Bye-laws, 10% of the parking must be reserved as “visitor’s parking”. As per KAOA, this is common area that belongs to the RWA jointly. But many builders sell off this common area to owners. At present, they have no way to regularise such “sale.” But they may attempt to regularise the “sale” under Akrama-Sakrama. In that case, the same area would be “common area” as per records, but “private property” as per “regularised” documents. Thus the records of the property would lose their authenticity.
This also violates Karnataka Apartment Ownership Act, 1972 clause 6(3); which stipulates that-
“The common areas and facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or division of any part thereof. Any covenant to the contrary shall be null and void.”
KAOA also stipulates that any change (mutation) in the original property must be done with CONSENSUS (not a majority vote) by ALL the members of the RWA (owners). Further, such changes are NOT valid till the relevant documents are amended and re-registered. However, there are no such conditions in the Akrama – Sakrama, which allows any vested interests to apply for “regularisation,” without the knowledge and consent of the victims.
It also conflicts with the Registration Act, 1908. In this context, the Supreme Court of India has ruled that such activity is illegal, and “in future, builders do this at their own peril”. (Ref: Civil Appeal No: 2544 of 2010, Nahalchand Laloochand Pvt. Ltd vs Panchali Co-operative Housing Society Ltd.). This case was based on MAOA and MOFA; which are identical to the KAOA and KOFA respectively (indeed, the Maharashtra acts were released in 1969, and copied by the Karnataka State in 1972.) Therefore this verdict applies to Karnataka apartments in toto.
The citizens feel the rules must be amended to categorically state that any case will be taken up only after due process is completed as per KAOA and also Registration Act; and in case of any conflict, the original Deed of Declaration will prevail.
Citizens expect that these objections are taken seriously and reasons communicated in the public domain for any of the objections are not incorporated in the final rules.