Developer obtained sanction plan but framer sold it to private party

760 votes

BDA must get unrelinquished CA sites from layouts : Karnataka High Court in WP No.9882 & 10341-355/2014(BDA) . In response to a lawsuit filed by the Classic Orchards Property Owners Association in south Bangalore, the High Court recently ordered the BDA to ensure that real estate developers relinquish roads, parks, and civic amenities as per approved plans.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.


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.

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.

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.

Advocate Srinivasa Kudva LawRato