Orion Mall. Pic: Shree D N

Around August 2016, as BBMP began its storm water drain encroachment clearance work following flooding in various parts of the city, a case involving a high profile encroacher came to light. The alleged encroacher was Brigade Group.

A survey report submitted by the Land Records Joint Director to the Commissioner of Survey, Settlement and Land Records on September 2nd, estimated that the Brigade Gateway that houses Orion Mall in Yeshwanthpur was constructed on 3.4 acre of B Kharab land which was meant for a storm water drain (SWD).

In the concluding words of his report, the Joint Director states that since the land in question comes under city survey limits, the department Commissioner could conduct an enquiry and provide necessary documents to the BBMP Commissioner and also direct land survey officers to protect the 3.4 acres of encroached government property on which Brigade Gateway has been built.

In response to the Joint Director’s report, the Managing Director of Brigade Enterprises wrote a letter to the Survey and Settlement Commissioner, copying it to the Principal Secretary (Revenue), BBMP Commissioner and the Bengaluru Urban Deputy Commissioner. In the rebuttal, the Brigade Group justified its legality and requested the authorities to set aside the Joint Director’s report which the developer claimed to have “no merit.”

In the letter, the MD explains how the City Improvement Trust Board or CITB (present-day BDA) had approved an industrial layout by the Kirloskar group in the area where Brigade Gateway has come up. The BDA later executed a change of land use and converted this layout from industrial to commercial. The Brigade Group eventually bought this land from the the Kirloskar Electric Company in 2005 and redeveloped it for commercial purpose.

The point raised by Brigade Group questions the loophole in the system that failed to consider the change in nature of the controversial land.

The letter also briefly points out that the land being marked for SWD encroachment now was not even covered in the secondary reclassification survey that was conducted across the State in 1959. The sites formed by CITB and industrial layouts formed by the state government had been left out of the survey then, as they had lost their agricultural status. The BDA’s Revised Master Plan of 2007 does not show any ‘nala’ or drain in this area, according to the developer.

Legal proceedings

A fortnight ago, Samarpana, a city-based NGO filed a contempt petition in the High Court against the BBMP Commissioner for failing to take action against three developers, including the Brigade Group, for encroaching storm water drains. The last time (in August) that Samarpana had filed a petition against SWD encroachments in these three cases, the High Court had disposed of the petition, directing the BBMP Commissioner to consider and dispose of the cases within three months.

“But even after three months, the BBMP dithered and delayed action against the encroachers. Hence, we filed a contempt petition in the court, which issued a contempt notice to the BBMP Commissioner on December 13th,” says Shivakumar, Founder and General Secretary, Samarpana.

What is the plea of his organisation? Shivakumar says that they want the authorities to ensure that the encroachment does not cause public nuisance. “In the case of Orion mall, it is a known fact that there was a nala in the place where mall stands. Every time, when it rains heavily, the area close to the mall (Prakash Nagar) gets flooded, causing grave inconvenience for the people. Therefore, our demand is that the BBMP should take measures to ensure that there is no flooding in the area during rains and the only possible solution is to clear the encroachment and make way for the nala,” he says.

On the contention of the developers that they have got statutory approval for the site, Shivakumar says the BDA may have given approval, but the fact remains that there was a drain and the mall has been built on encroached land.

K Jayaprakash, Joint Director of Land Records too vouches that he will stand by his survey report anyday. “We have marked the rajakaluve as per the original village records on the ground. However, it is not our duty to ascertain who has encroached, the nature of encroachment etc. It should be assessed by the BBMP or concerned authority. But as far as the government land is concerned, yes, I stand by what has been mentioned in the report,” he says.

Asked about the action taken on the report, he mentioned that the report has been submitted to the Survey and Settlement Commissioner and they are evaluating it.

When Citizen Matters approached V P Ikkeri, Commissioner of Survey and Settlement, he said he has received the survey report as well as the rebuttal from Brigade Group. “We will examine both the versions, verify the sale deeds, change in property nature over the years, nature of utility etc and then decide on what could be recommend to the BBMP,” he said.

Most officials whom this reporter spoke to refused to make any comments on the conflict that has arisen due to the encroachment eviction drive. How can the issue of properties built on BDA-approved but encroached sites be sorted? To this, Bengaluru Urban Deputy Commissioner V Shankar said that the stormwater drain encroachment comes under BBMP’s jurisdiction and he has nothing to say about it.

Mahendra Jain, Additional Chief Secretary of the Urban Development Department too refused to comment on the matter and insisted that this reporter to talk to the BBMP authorities.

P Suresh, Bengaluru West Joint Commissioner under whose jurisdiction Brigade Gateway comes said that he was not aware of the latest updates. “There has been no further development related to the Orion mall case in last two months,” he clarified.

Same problem, different approach?

Strangely, the BBMP’s approach in dealing with such high profile cases is far from uniform even when the crux of the issue is the same. Take the case of Ideal Homes Layout in Raja Rajeshwari Nagar, which has also been at the centre of focus over similar allegations of encroachment.

This particular case grabbed attention primarily because the properties belonging to Kannada film actor Darshan and Congress leader Shamanur Shivashankarappa were part of the encroached 7.31 acres of government land in Ideal Homes Layout.

People had been wondering if the BBMP, which was then on a demolition spree, would dare to touch the properties belonging to big-wigs. Soon, the BBMP ordered a joint survey of the property and declared that a decision will be taken once the new survey report was out.

Once the report was released, the BBMP meticulously washed its hands off, by leaving the final call on demolition to the Deputy Commissioner of Bengaluru Urban district.

Residents contended that the Layout had received approval from the Bangalore Development Authority and the City Improvement Trust Board (CITB), hence it was legal. But according to the Survey and Land Records Department which had measured the encroachment by referring to the original survey records, the property was built on encroached storm water drains.  

Members of Ideal Homes Housing Cooperative Association approached the High Court and got a month’s stay. After the stay period lapsed, on December 7th, the Assistant Commissioner (Bengaluru South) issued notices to 46 property owners directing them to voluntarily vacate the property or present themselves for an enquiry before the magistrate.

As soon as the house owners received notices, they approached the High Court once again, challenging the notices issued and succeeded to get another stay order. The fate of the Layout now rests on what the Court has to say.

Speaking to Citizen Matters, Assistant Commissioner (Bengaluru South) D B Natesh said that the property owners moved to the High Court soon after they received notice. “Now we should act upon what the court decides,” he said.

What is noteworthy here is the fact that in the case of Ideal Homes, the BBMP had handed over the case to the Deputy Commissioner, while in the Orion case, the same authorities have sat on a similar report without taking any action.

Meanwhile, the BBMP has resumed the drain encroachment clearance drive for a second time, following the Chief Minister’s directive to clear all encroachments by February 2017. Even as it claims to have cleared 270 encroachments since August, uncertainty looms large over these two high profile properties that are built on BDA-approved layouts and converted zones.

Demolition under progress in a residential area in Bengaluru. Pic: Akshatha M

The current status

In the latest development, the BBMP Commissioner, in a meeting with the developers and Samarpana NGO on December 28th, decided to carry out a resurvey of three huge properties – the Orion Mall, ETA Mall and JW Mariott Hotel. He reportedly directed the Survey, Settlement and Land Records Department to resurvey the above three suspected encroachments within a month’s time.   

An official from the Land Records department says that there are several cases similar to Brigade Gateway and ETA Mall, where public utility properties that existed prior to acquisition have not been retained after development. “There are many such cases in the waiting and Brigade Gateway is only tip of the iceberg,” he says.

The BBMP, which is dilly-dallying on what has to be done in the Orion Mall case, is in a fix. If it decides to clear the encroachment, in all probability, it will open a can of fresh litigations with builders moving the court, as in the case of Ideal Homes Layout. On the other hand, if the civic body decides not to demolish, it may set a wrong precedence with several similar cases seeking exemption.

Repeated attempts to reach out to BBMP Commissioner Manjunath Prasad proved futile. However, with the High Court issuing contempt notice in Brigade and two other cases, the BBMP Commissioner has reportedly said that he will submit a detailed report on the encroachment cases in question to the State government and let the government take a call on the issue.

When Citizen Matters tried to contact Minister for Bengaluru Development, K J George to know how the government would address these cases, he was unavailable for comments.

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