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“DEMOLITION” IS A “NATIONAL WASTE” GREEN SIGNAL BY HC TO “AKRAMA-SAKRAMA SCHEME” CLEARS PATH FOR REGULARIZATION OF UNAUTHRISED STRUCTURES

 
 
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“DEMOLITION” IS A “NATIONAL WASTE” GREEN SIGNAL BY HC TO “AKRAMA-SAKRAMA SCHEME” CLEARS PATH FOR REGULARIZATION OF UNAUTHRISED STRUCTURES
by System Administrator - Thursday, 15 December 2016, 6:39 AM
 

By : M.S.Yatnatti Editor and Video Journalist Bengaluru : According to reports The Karnataka High Court dismissed on 13-12-2016 a batch of petitions challenging the refurbished Akrama-Sakrama scheme, paving the way for consideration of applications pending for the past 30 months.A Division bench noted that the BDA and other civic agencies are finding it tough to meet the increasing demand for residential area due to a high number of unauthorized constructions on urban land.A report submitted to the government says 1.53 lakh buildingssites in Bengaluru are unauthorized.The bench, headed by Chief Justice Subhro Kamal Mukherjee, said unregulated growth is not unique to Mangaluru or Bengaluru ­ the two cities named by the petitioners; every state and Union territory has this problem.Ordering demolition of a large number of constructions on the premise of violations would be disastrous and lead to a "national waste"."Admittedly, the amended provisions are made applicable not only to Bengaluru city, but... to the entire state.If the buildings are demolished holding that they are constructed in violation of bylaws, it creates disastrous consequences," it said. The number of unauthorized struc tures runs into lakhs. If all such buildings are razed, it will be a "national waste". Besides, persons who lose their homes will end up "on the streets", the bench said. The government is not in a position to provide them alternative sites.The court noted that if buildings are demolished, the government will have to look into the problems of those who lose their properties."The proposed amendments are based on the needs of the people. Therefore, the contention of the petitioners that the amendments are giving excessive authority to the executive cannot be accepted," the bench said.

"After careful perusal of material placed on record, we are of the opinion that all care and precautions are taken to see that there is no compromise with respect to storm water drains, tank bed areas, river courses, canals, area below high-tension electrical lines, parks, playgrounds, open space for providing civic amenities, coastal regulation zones, etc. No development in basement area or usage in contravention to the bylaws. Certification from a structural engineer is also made compulsory . The rules clearly show that no development shall be regularized unless violation in respect of the change in land use is first regularized," the division bench observed. It dismissed public interest petitions filed by Citizens for Mangaluru Development and others.The court is of the view that the state also has not compromised with regard to health and safety measures, and fire safety measures.

What petitioners say :According to the petitioners, the new rules incorporated under the AkramaSakrama scheme by amending Section 76FF of the Karnataka Town and Country Planning Act, 1961, Section 321A of the Karnataka Municipal Corporations Act, 1976, and Section 187A of the Karnataka Municipalities Act, 1964, allow up to 50% violation in respect of setback in residential buildings and 25% in non-resident commercial buildings, making it far easy for the violators to get away by paying very low fees.

Interestingly, PIL filed by the Federation of JP Nagar 7th & 8th Phase Residents' Welfare Association and other RWAs said the challenge was restricted to the fee prescribed in the May 28, 2014, notification under the Karnataka Town and Country Planning (Regularization of Unauthorized Development and Constructions) Rules, 2013. The petitioners claimed that the fees fixed based on the sital dimension were discriminatory and arbitrary .

Following the high court dismissing all the pleas against the Akrama Sakrama scheme on Tuesday, the government is now contemplating including properties constructed after October 19, 2013 for regularization. At present, only properties constructed before October 19, 2013 are eligible for regularization."Now, the first thing that the urban development department will have to do is to set the rules of the Karnataka Town and Country Planning (Regulation of Unauthorized Development or Constructions) Rules 2013, which was amended and effected from May 28, 2014.As per this notification, buildings that have been deemed unauthorized till October 19, 2013 will have to apply and seek regularization.They had one year time to apply then. Now, with the litigations getting over, the government will have to reset the timeframe of buildings termed illegal till a very recent date and then issue orders for urban local bodies to start seeking applications," reportedly said BBMP commissioner N Manjunatha Prasad.

Earlier, when the department had notified the scheme on May 28, 2014, it called for properties declared illegal or having B khatas till October 19, 2013 to be legalized by March 22, 2015.According to reports N Mukunda, member of Citizen Action Forum, said, "In the last three or four years, almost 80% of the buildings constructed have deviated from sanctioned plans."This means that the government will mop up more money through regularization of the additional number of properties registered after October 2013. According to a 2013 survey, there were 2.5 lakh illegal buildings within the BBMP limits alone. The numbers would have almost doubled by now. The BBMP, meanwhile, will begin training its staff on the regulations of the scheme, besides what and how to regularize illegal properties in the next two to three days. It also plans to make people aware on how to apply and what are the violations that be regularized."This should be the last chance for violators, and shouldn't set a precedent for citizens to violate laws and get away by paying a fee," said Prasad. The rules also empower the municipalities (as competent authorities) to collect the fee in a separate account called the Urban Areas Infrastructure Development Fund.

About half of this fund should be used for development of parks and other open spaces, and the remaining half for provision of infrastructure like civic amenities, lighting, drinking water and drainage systems.Since the time BBMP invited applications under the Akrama Sakrama scheme, it has received only a few hundreds. With the matter pending in the high court, people were wary of its legal implications. With the high court clearing decks for the scheme, the civic body is likely to receive more applications now.

According to citations of Karnataka high court in John B. James And Others vs Bangalore Development Authority ... on 7 August, 2000 Equivalent citations: ILR 2000 KAR 4134, 2001 (1) KarLJ 364 which have been extracted for benefit of our readers .63. Bangalore Development Authority, in its capacity as the Planning Authority for the City of Bangalore, has also a statutory power of demolition under the Planning Act, to remove or pull down any work commenced or earned on in any property, in contravention of Sections 14 and 15(1) of the said Act. Sub-section (4) of Section 15 of the Planning Act provides that if any person does any work on or makes any use of, any property in contravention of Section 14 and 15(1), the Planning Authority may direct such person by notice in writing to stop any such work in progress or discontinue any such use; and may, after making an enquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measure to stop such use. But, the power of demolition under the Planning Act is restricted only to violations of Sections 14 and 15(1) of that Act. 64. The power of a local Municipal Authority extended to BDA under Section 29 of the BDA Act (read with Sections 321 read with Section 461 of the KMC Act) and the power of a Planning Authority extended to BDA under Section 15(4) of the Planning Act are intended to be used to enforce the Building Bye-laws and Zoning Regulations, to ensure orderly development of the City. Such power is not intended to be used by BDA, in its capacity as owner of a land, against a trespasser or unauthorized occupant of its land. Further, such power can be used only to demolish unauthorized structures, but not to dispossess any unauthorized occupant/trespasser. 65. Section 8 of the Karnataka Regularisation of Unauthorized Constructions in Urban Areas Act, 1991, provides that all unauthorized constructions which are not regularized under that Act shall be liable for demolition and the persons who have made such constructions shall be liable to be evicted summarily in accordance with law. It is contended by BDA that Section 4(viii) of the Regularisation Act bars any regularisation of unauthorized constructions in any land belonging to or vested in BDA. Though Section 8 contains a general provision that unauthorized constructions shall be liable to be demolished, it does not specifically refer to BDA nor authorises BDA to forcibly dispossess the unauthorised occupants by demolishing the structures. On the other hand, it provides that persons who have made such constructions shall be liable to be evicted summarily in accordance with the relevant law. This provision, therefore, contemplates dispossession only in accordance with law, that is, by having recourse to the public premises Act or by filing a Civil Suit. 67. If the power of forcible dispossession an demolition is not conferred on BDA (as owner of land), necessarily BDA will have to make out such a right with reference to general law applicable to true owners and trespassers. The rights of a true owner vis-a-vis trespasser in possession has been considered by the privy Council and the Supreme Court and this Court in several cases. 80. If anyone, who has trespassed into BDA land or in unauthorized possession of BDA land, has put up a structure and completes and accomplishes the act of possession and continues in such settled possession asserting possession and ownership in himself, openly, peacefully and uninterruptedly to the knowledge of BDA, for more than 12 years, then it is possible for him to contend that he has perfected his title to such property by adverse possession and consequently the title of BDA stood extinguished. It is needless to say that such adverse possession for 12 years should be subsequent to the date of vesting of land in BDA. The person claiming such title by adverse possession cannot call in aid any possession on his part or his predecessor, for any period prior to date of vesting of land in BDA, to establish adverse possession, or possession during the pendency of any litigation regarding the property, cannot be considered as possession adverse to BDA.

88. Learned Counsel for several petitioners aired a grievance that many of the petitioners were misled into buying plots in the said land as they had no way of knowing whether the land in question was acquired land [by Bangalore Development Authority or by the Government or other Authority]. The said grievance appears to be genuine. When a transfer is effected in regard to an immovable property and it is registered, the transaction is recorded in the Registers maintained by the jurisdiction Registering Authority under the Registration Act, 1908 and it is possible to obtain a certificate of encumbrances which discloses the transactions which have taken place in regard to the property in question. Members of public dealing with immovable properties or intending to purchase any immovable property regulate their transactions and affairs by effecting a search in the office of the Registering Authority and obtaining an encumbrance certificate to know whether there are any transactions or encumbrances in regard to the property. Legal practitioners also give advice and opinion in regard to title and recommend purchase of properties on the basis of encumbrance certificates obtained from the jurisdictional Registration Officer, Banks and financial institutions also advance loans on the basis of such ascertainment of title. In fact several of the petitioners in the batch of cases heard by us claim to have obtained Bank Loans by showing title. But, if a bona fide prospective purchaser wants to know whether the land which he wants to purchase is not subject to any acquisition, there is no way of knowing for certain whether the land is subjected to acquisition and the stage of the acquisition. There is at present no method by which the acquisition proceedings can be reflected in any centralized records, from which certified extracts can be obtained by a member of public intending to deal with a property. Acquisition can be under the Land Acquisition Act, 1894 or under Bangalore Development Authority Act, 1976, or Karnataka Industrial Areas Development Act, 1966 or other enactments. We find that a large number of sale deeds have been registered, after issue of acquisition notification and after vesting of land in the acquiring bodies or beneficiaries of acquisition. If the State wants to safeguard the interest of the public and if legal practitioners and persons dealing with property are to safeguard the interests of their clients, and if citizen should proceed safely in investing their life savings in a land or house, there should be some procedure by which notifications in regard to acquisition are also recorded as a transition or encumbrance in regard to the property, in the Registers maintained by the jurisdictional Sub-Registrars. Alternatively a centralised Agency should be created to record the progress of all acquisitions and issue certified extracts or certify whether any land is acquired or not. This can be done by acquiring authorities informing the registering Authorities or a centralised Agency about the issue of preliminary and final notification and a provision being made to record such notifications as transactions/encumbrance in respect of respective properties. This will reduce litigation and suffering of members of the public. If the Executive or Legislature bestows its attention to this matter and take appropriate steps, it will go a long way to prevent public being taken for a ride by unscrupulous middlemen and ex-landowners.

The land designated for open spaces including for buffer zones is not acquired as per CDP 2015 page 39 has lapsed as BDA did not acquired the land and BBMP has no right to demolish the structure on buffer zone of storm water drains.BDA has reserved land for Park and Open space land use as per RMP-2015 many of them wereearlier in residential zone in RMP-2005.Open spaces include buffer zones for storm water drains as per CDP 2015. People's argument is valid. Their anger is fuelled by knowledge that clearances are given based on CDPs and RMPs. Even the Karnataka high court had in 2012 ruled the RMP must be the final document for granting of clearances.Page 39 of the RMP reads: "...In case the buffer has not been marked due to cartographical error for any of the above types of drains, then based on the revenue records, buffer shall be insisted in all such cases without referring the land use plan while according approval for building development layout plan." BBMPargues that not just the buffer zone -buildings in which BBMP has not included in its drive -the rules are the same for drains. " All approvals have to be given based on the revenue map,"says BBMP .Even if we agree that BBMP is right its action is time barred .After 12 years even a tress passer perfects it title by adverse possession. The why not a person who has legally got the land by BDA and DC converted land.Let BBMP make storm water drainbut let it acquire the land as BBMP is presently as per law not the owner as per Limitation Act. BBMP should read this also in the same page 39 "Any land falling within the valley for which permission has been accorded either by the Authority or Government, and then such permission shall be valid irrespective of the land use classification in the RMP 2015. Fresh permissions for developments shall not be accorded in valley zone. This means earlier approvals and sanction already given stands valid and BBMP has no right to demolish them in the name of old revenue maps.

In view ofBDA not acquiring the landwithin five years of notifying the Comprehensive Development Plan (CDP), as per the circular issued under the provisions of Section 69(2) of the KTCP Act and as per several court order citations allowing conversions for the lands not acquiring the land by the BDA, within five years of notifying the Comprehensive Development Plan (CDP) AS PERcourt orders citations. The government circular directing all the Urban Development Authorities (UDAs) to give back private lands earmarked as park and open space to the original owners if they fail to acquire them within five years. Land earmarked as park and open space has to be acquired by the UDAs, including  the BDA, within five years of notifying the Comprehensive Development Plan (CDP), as per the circular issued under the provisions of Section 69(2) of the KTCP Act.If not, the original owners of such lands can take their property back from the UDAs, and the UDAs will have to hand over such lands by changing the zoning regulation (other than park and open space). The UDAs can also give permission for any kind of land use (like residential or commercial or industrial), depending on the kind of development in the surrounding areas, as per the circular.BDA need to process , the original land owners' applications seeking land use conversionType of land use conversion will depend on kind of development in the surrounding areas. If there is commercial development in the surrounding areas, permission can be given for commercial use for such lands, As the UDAs were unable to acquire those lands, number of original land owners have dragged the Authorities to court. Type of land use conversion will depend on kind of development in the surrounding areas. If there is commercial development in the surrounding areas, permission can be given for commercial use for such lands .It was held by Karnataka high court that "petitioners have produced proof of such ownership. It is claimed that lands adjacent to such lands are being used for residential purposes. The revised comprehensive development plan under the provisions of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'the K.T.C.P. Act', for brevity) was said to have been published on 12.11.2003 and in terms of Section 69(2) of the K.T.C.P. Act, the designated land was to be utilized for the purpose for which it was earmarked, within five years from the date of publication of the Master Plan and that if the authority failed to comply with the mandatory requirement, the designation would deemed to have been lapsed entitling the land owner to utilise the land and enjoy the same. The respondents, admittedly, had not takenany steps to acquire the land, and therefore, it is the case of the petitioners that the designation is deemed to have lapsed by operation of law and hence the petitioners had applied for change of land use and to utilise the land for the residential purpose and had submitted the necessary documents such as survey report and the P.T. sheet to the competent authority.The same having been rejected, thepetitioners are before this Court. Since the law is well settled that if once the land is designated under the Comprehensive Development Plan or the Master Plan in terms of the K.T.C.P. Act and if the same is not acquired, the designation would lapse after a period of five years. In the instant case the designation has lapsed as early as in the year 2008. However, the authority not having acquired the same nor having redesignated land for any particular purpose under any fresh Master Plan or under the provisions of the K.T.C.P. Act, the land would be available for the petitioners to utilise the same in accordance with law. Therefore, even seeking permission from the authority did not arise in any event such permission having been sought and the same having been rejected is not supported by any legal provision. Therefore, the petition is allowed summarily. The endorsement impugned is quashed. The land is availableto the petitioners to be utilized in the manner known to law.In terms of Section 69(2) of the K.T.C.P. Act, the designated land was to be utilised for the purpose for which it was earmarked, within five years from the date ofpublication of the Master Plan and that if the authority failed tocomply with the mandatory requirement, the designation woulddeemed to have been lapsed entitling the land owner to utilise theland and enjoy the same. The respondents, admittedly, had not taken any steps to acquire the land, and therefore, it is the case of thepetitioners that the designation is deemed to have lapsed by operationof law.Karnataka Land Revenue Act, 1964provisions cannot override under section 76 of the Karnataka town & country planning Act 1961 . If anybody violates CDP land use under section 73 of Karnataka town & country planning Act 1961 it is an offence and attract penal provisions