On September 7th 2010, the Bangalore Mirror reported BDA Commissioner Bharat Lal Meena as saying that gated communities are illegal. Meena was reported saying every layout is required to earmark space for parks, roads and areas of common use. "When roads and parks inside the community are controlled by civic authorities, how can such layouts be called gated communities?" Meena is reported to have asked.
Ashok Haranahalli, Advocate General of Karnataka
Pic: Vaishnavi Vittal.
In May 2008, the BBMP issued a public notice with regard to barricading layouts and preventing use by general public. The notice says that there is no such concept as ‘Gated Community’ and that once such layouts are formed, they come under the jurisdiction of the respective municipal corporation.
Last week, Citizen Matters covered the story of L&T South City in JP Nagar VII Phase, where residents are fighting cases with the landowner and developer on this very issue. Read that report here.
With apparent confusion over the concept of ‘gated communities’, and whether roads, parks and open spaces are exclusive to residents of these communities or belong to the local corporation, citizens have been left with more questions than answers.
Citizen Matters spoke to Advocate-General (AG) of Karnataka Ashok Haranahalli. Fifty-two year old Haranahalli is a senior advocate in the Karnataka High Court with over 25 years of practice. He has represented the state government on several important cases, the most recent being the state-imposed iron ore-export ban. Before being appointed as AG in January 2009, he was the Additional AG for the state. He is currently also the Chairman of the Loka Shikshana Trust, which publishes local Kannada daily Samyukta Karnataka, Karmaveera (weekly) and Kasthuri (monthly).
In this interview, Haranahalli explains that there is no such concept as a ‘gated community’ and that these are nothing but layouts and residents cannot claim exclusive access to the roads and open spaces within.
But he also acknowledges this: the fact the residents have paid for development of roads and amenities in the layout presents a difficulty. He also says residents who purchase houses in such layouts should see the layout plan before doing so. Here are excerpts from the interview.
Are gated communities illegal?
No. Gated communities are not legally recognised by the BBMP. But you can’t call it as illegal because, the entire area is surrounded, some kind of security is provided, that is all. You can’t call it as illegal, but the concept is not recognised under the statute.
So would you say that it is unregulated?
Not unregulated. It is like an association of residents. Some residents join hands and provide their own security and they jointly contribute for their club activities and other activities, just like you have apartment owners.
Is there a law that says a certain amount of land needs to be relinquished and handed over to the BDA or the BBMP for them to develop parks and other civic amenities?
A gated community is similar to a layout, except for the fact that you provide certain other facilities like security and other things. But in any layout for that matter all roads rest with the local authority. So all roads and common facilities will go to the government.
So if it is within BBMP limits, can the BBMP tell them to keep the roads open for the public, or open a park to the public?
They can. Strictly speaking, they can.
Is this provided for legally?
I said there is no legal recognition for the gated community, so they need not be provided otherwise. In all layouts for that matter, the roads rest with the corporation.
Even if the owners have paid for the development of those roads and civic amenities?
As I told you there is no separate recognition for gated community under the building byelaw or otherwise. So that is a difficulty.
A recent media report quoted BDA Commissioner Bharat Lal Meena calling gated communities illegal.
I don’t say it is illegal. But in the sense, you say I am the owner of the road and other things, it depends upon how you look at it. Suppose I look at a gated community only as a community of residents, similar to a layout, then in such a case it is valid. But if you want to claim that it is exclusive, then such a concept is not recognized under the statute.
In 2008, the BBMP issued an order stating that there is no such thing as a gated community.
Gated community is not recognised under an Act. By putting a barricade if you close it, that closure is not permissible because what is recognised is only a layout. There is no special status to a gated community. So a gated community ultimately boils down to a layout, which is enclosed by a barricade or security. You strictly can’t prevent anybody from entering a gated community because that is in the form of a layout. Nobody can be prevented from entering as such. That is why probably he has said gated communities are illegal.
So why are plan sanctions being given? Should there be an explicit disclaimer that says layouts should not be gated?
See probably they would have taken sanction as a layout. I have not seen those orders. In my knowledge I don’t think anybody has obtained anything like a gated community. So if you have not been given permission as a gated community, there’s no question of claiming that it’s an exclusive area.
So when builders sell plots in such gated communities, should they explicitly state that the road doesn’t belong to the community exclusively?
They should. If they collect money for roads and other things, that also may not be proper. But they may do it for the development of the road. They may collect for providing common facilities. But they should make it clear that according to the building byelaw, roads and other common facilities rests with the corporation or BDA.
Citizen Matters recently reported of the case of L&T South City in JP Nagar VII Phase. The area of this complex is 34 acres. The builder has said that about 12 acres is being handed over to the BDA for development of civic amenities and that a road in that stretch is going to be thrown open to the public. Residents are fighting against this saying there was no mention of this in any of their documents at the time of purchase.
They (L&T) have to give (to BDA). He has no option but to give.
Even if it’s not mentioned in the sale deed?
That is a matter between the owner and the persons who are buying it. So far as corporation and BDA is concerned, they are only governed by their stipulation.
So when a person is buying a house in a gated community or an apartment, is there something that they need to look for, like a clause?
They need to first find out if it is a gated community at all. It is a clear case where layouts are sought to be sold as a gated community – so they are not getting anything more than a layout. And they should look at the layout plan which is approved by the authority. That will make things clear.
There are so many so-called "gated communities" in Bangalore. Why has nothing been done about them? Why not a blanket order saying all these communities should leave their gates open?
In a gated community, uniform structures come up. Proper roads and layouts have been formed. Now as compared to a building which comes up in central Bangalore with all violations, all building laws are violated, roads are encroached. If you compare, a gated community is in a more orderly fashion. In fact I don’t think there is a situation which warrants any action to be taken as compared to the vast number of illegal building activities which are going on. But it is only a minor violation, wherein you are not entitled to the exclusivity you claim, but it is nothing but a layout. Maximum we can say the roads and other commons do not belong to us, it vests with the corporation.
But if the government is saying there is no such thing as a gated community, why are they not checking those communities which have gates?
The matter vests with the corporation and BDA. They should look into it so that people should know that such a thing is not available. Or we should provide that concept. Nothing wrong in that. The only thing is, you can’t claim exclusivity, because, say tomorrow the drainage facility gets affected, it’s ultimately a load on the entire area. Development of an area ultimately belongs to the corporation or BDA, they’ll have to look at drainage system. So you can’t say the entire thing belongs to you. That is a matter that needs to be looked into.
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The interview has only added more confusion.
Firstly the distinction between a “layout” and “Group Housing Scheme” has to be understood in its letter and spirit. A layout is where each purchaser owns an exclusive piece of land- a plot of his/her choice of dimension, on which he/she builds his/her own house. Apart from this the plot/site owner does not hold any “undivided share” of any part of the rest of the property. Consequently all the rest of the property namely roads,parks etc become public property.
In a “Group Housing Scheme” a purchaser of a flat also owns an “undivided share” of the entire project area approved, as a percentage of the total area. Undivided share does mean that all the “undivided share”-holders together own all of the property, that is no owner can seek to separate out his share of the property.
Also sheer common sense shows that given the density of population in a “Group Housing Scheme” like L&T South City where ultimately around 10000 residents including 2500 children could be residing the Open Space and Park are the only breathing area for them.
A simple comparison of the density of population between a “layout” and a “Group Housing Complex” should provide some clarity to confused minds.
One fails to understand how the powers that be are closing their eyes to such stark realities and ground truths.
The interview may increase the confusion.
But it high lights the scary fact that tomorrow the gated communities can be a layout depending on BDA/BBMP’s wish or Meena’s wish.
“When roads and parks inside the community are controlled by civic authorities, how can such layouts be called gated communities?” Meena is reported to have asked.
police cannot
Dear Ms.Vaishnavi,
Thanks for this eye opening article. Many buyers are under the wrong impression that the common areas in the gated communites are the properties of the community, it is not so. I have published a skit about it in ecopackindia.wordpress.com,as there were lots of queries.
Yours is an exhaustive version which is a useful guide to all buyers.
ecopack india
Instead of admiring him,I am shocked at the cleverness of the AG Mr. Haranahalli. I have a few questions for him:
1. If there is nothing like a ‘gated community’ under the statute, why did the government keep winking repeatedly when all these gated communities were being promoted aggressively?
2. He should clarify explicitly whether in his opinion the developers have cheated by not clearly informing the buyers that the roads and common facilities belong to BDA
3. Recently, the Competition Commission of India has given an interim order, in a case against DLF that the developer can not put obnoxious conditions in the sale deed after collecting bulk of the payments from buyers. Such conditions in the sale deed will be held null and void. That is precisely what happened in L&T.
4. The AG’s advice to you and me ‘to find out if iot is a gated community at all’ is helpful indeed! When there is so much confusion even within the government, how am I supposed to ‘find out’?
5. The government seems to be speaking with a forked toungue. On the one hand it is berating the governor for not approving the Akrama sakrama bill legalizing illegal constructions. On the other hand it is penalising citizens who have paid for their properties. Does the govt want us to usurp land and then use akrama sakrama to legalise it?
In response to Mr.Rajagoplan,
I wish to clarify some points.
1). It is buyers beware. The developers market their products under various banners and brands, that cannot be restrained or restricted.
2). IT is the duty of the buyer. The whole world knows the common areas are the property of the Government and local bodies.
There is no gated community term in any of the KMC/KTCP/KLR Acts.
This is only a clarification
ecopackindia
will you please disclose whether or not you have any business interest in dealing with L&T?
Dear Mr.Rajagopalan,
We do not have any kind of business interests with L&T,at any point of time.
It is only in the interest of the public, we had published it in our blog.
http://www.ecopackindia.wordpress.com
This interview is quite confusing. Does this apply only for layouts or does it cover large apartment complexes also?
The government has increasingly been passing the buck (for example, for Sewage Treatment) to these communities. However, they are quite willing to say that the roads and parks are theirs? Do they provision for the maintenance of these parks and roads in their budgets?
This is a serious problem and large communities do pose problems of access for surrounding areas and such unless considered by the planning (?) agencies. But this attitude of sitting back and citing laws without reacting when these things are happening in the open is quite ridiculous.
So going by this logic of all roads and parks being common areas belonging to the BDA/Corporation. Companies like WIPRO, INFOSYS, NAL, HAL, ISRO cannot prevent the general public from driving through their campuses right. After all isnt their water supply and drainage system also catered to by the BDA/Corporation.
This is in response to Mr.sanjay,
I wish to state in group housing schemes, all the buyers/residents have the UDS, it means that all the common areas, like club house, pool,foot paths, sports arena, common areas, passages and parks are included in the UDS. If the plot size is 43560 sft(an acres) if there are 100 apartments, the UDS is 436 sft for each resident( it may vary according the size of the flat). This includes all the common areas and nobody else, other than the legitimate owner has the right, title and interest.
ecopackindia
Thank you ECO PACK for the clarification. The reason I was confused is that L&T South City is a residential community with something like 2000 apartments. The land area is 34 acres,which works out to 740 sq. ft. per apartment. If there is a UDS involved there, how can BDA take over a chunk of the land? Agree that I do not know the details of the L&T south city sale deeds, but this is still confusing to me.
Dear Mr.Sanjay,
Please check the DC conversion Orders and the sanctioned building plans and the covering letter, which clearly states some of the conditions laid down while issuing the Conversion order and the Plan.
We do not have much information about the XX apartment and hence, cannot make any remarks.
In BDA/BMRDA/BICPA/BIAPA/DTP approved layouts, the approval is subject to relinquishment of common areas, roads and parks etc.either in favour of local municipal authorities or in the Name of the Governor of Karnataka. It is the property of the Government. These Gated communities cannot restrict or demand the common areas for themselves, under any circumstance.
Butl,in case of apartments the titles are with the residents and the association is the local maintenance body.
XX City is entirely appears to be different.
ecopackindia
Its a builders+officials+politicians mafia.All want to take the common citizens for ride. They wink all the time till rosy pamphlets and brochures sells the projects. Then they come up interpreting laws against the poor buyer.
The need is a law holding the government fully responsible for the sale deed registered in a registrar office. Once a ssale deed is registered it cannot shy away from its contents.
He is just saying that gated communities are illegal, but its perfectly legal for builders to cheat and they wont take any action against them for misleading public and looting in crores.
I think such imcompent people should resign from their job.
Dear Mr.Uthup,
The law exists. The buyers must be aware of it.
The Government cannot refuse some of the documents presented for registration and the buyers must be alert.
Where can you find a gated community? How can you lock yourself up? There are land locked countries but not gated communities in India. Even, before the purchase, you can read the deed, which clearly explains the schedule of property being sold. When you buy a property,you will hold only the portion you buy and not the entire layout. Comparatively, in an apartment blocks, it is UDS(undivided share) in the common areas, club house, passages, parks, will be mentioned.
The laws are already in its place, we have to understand it.
This is only a clarification and not justification of any act(by these developers) in the interest of the buyers.
ecopackindia
The goings on in these matters clearly prove that the poor buyer of an apartment is cheated through glossy brochures and offers of LIFE STYLE living by the builder in their projects. The nexus between builders ,the Govt, its bureaucrats and agencies works in time to deprive of some decent living quoting some rules from Hyder Ali eras . Ultimately, the buyer learns that he owns only the apartment and nothing else. Everything is chargeable. We all end up in a modern slum without a breathing space, nowhere for the children to run except in one’s own corridors and rush to the nearest vegetable vendor / kiryana shop to purchase your daily needs. The malls , multi screen theaters , club houses, Gym etc are only for the very rich and affluent and not affordable by the poor buyer who invests his life time savings in one apartment.
where is the undivided share of land and what is its significance and value to the buyer? Even GOD will not be able to purchase an apartment for Himself in Karnataka and can afford to live in that !!!
Thanks Ms. Vittal, you caught the AG with his foot-in-his-mouth several times. It’s clear that he doesn’t know the rules himself and keeps repeating the same things over and over. He appears to be a nitwit and not an advocate for the citizens.
I, for one, fail to see the relevance of the concept of ‘gated community’ – within its commonly understood sense- to the L & T South city Project in question.
For my impromptu reactions, look up my Blog @
http://vswaminathan-vswaminathan-swamilook.blogspot.in/2012/05/concept-of-gated-community-contd-is.html
Even in group housing Road and Park areas are conveyed/gifted to civic bodies as a pre-condition for approval.Such roads have to be thrown open for public usage in compliance
with the legislative provisions.Authorities should aid the public for convenient usage