Is Akrama Sakrama on a strong foundation?
Oct 22, 2013
Source : The Times of India


BANGALORE: Three governments, seven years, five chief ministers. That pretty much sums up the saga of Akrama Sakrama and the struggle by successive regimes in Karnataka to allow one-time regularization of urban building violations.

Now that the present government is set to come up with an ordinance to roll out the scheme, the move is set to open a Pandora’s box. The government believes Akrama Sakrama will help mop up revenues to the tune of Rs 5,000 crore that will in turn help develop cities, in particular Bangalore, better. On the other hand, urban experts smell a scam in the move and question the government’s hurry in legitimizing the scheme via an ordinance without so much of a debate, either in public fora or in the Assembly. Also, by letting off the official machinery in civic agencies which allowed the violations to continue with impunity, legal experts say the government is sending the wrong signal.

On the government’s claim of mega revenue generation, experts say many violators won’t come forward as they know there is no enforcement regime in place. Also, the government just can’t regularize all irregularities without the consent of stakeholders (read residents) on ground.

Amid all the noise, the residents are a divided lot. While some see it as a great opportunity to pay a one-time penalty and get their properties regularized, others feel the move only spells more trouble. They believe the scheme favours only the big sharks and ignores their plights. TOI looks at the big picture as Akrama Sakrama moves closer to becoming a reality.


It’s a scam, kill it

If a by-law violation is blocking sun light or air to his neighbour, can the government force the ‘victim’ to accept the inconvenience just because the other person is paying penalty. The scheme is nothing but a payback from politicians cutting across party lines to bureaucrats who helped them reap benefits through property violations. The government doesn’t even have basic facts about number of properties or violations and how it plans to implement. That’s why the government, including the CM, is unwilling to have a larger debate on this. | Ashwin Mahesh, urban expert

Money spinner for polls

There is no guarantee that one-time regularization of property violations won’t stop such things in future. “If you compare to the year 2007, when the scheme started turning in to law, the number of violations have in fact multiplied. This scheme looks like a fund raising move keeping the upcoming Lok Sabha elections in view. | Kathyayini Chamaraj, executive trustee of CIVIC NGO

Sends wrong message

Regularizing so many violations also means condoning the wrongdoing of hundreds of officials who were party to the crime. The government in fact should go the other way and punish culprits, irrespective of which side of the table they are. There are better ways to fill the exchequer of the BBMP.| ASK Pani, Urban expert

You have more time for violations!

With the state government likely to come up with fresh ordinance with December 2013 as the cutoff date for regularizing propertties, urban experts feel the government, in a way, has given go ahead for violators do more crime. Simply put, the government has allowed builders to violate for the next three months. As Pani points out there would be no surprise if construction activities would gather pace in many corners of the city, to take maximum advantage of the scheme. The plan to include erstwhile revenue sites is even worse. “If you take a round of Greater Bangalore, you can see illegal layouts mushrooming everywhere. Many of these layouts have blatantly violated zoning and are built on green belt as well. This just means we are heading towards a disaster,” added Pani.

Why violations shouldn’t happen

Violations pertaining to buildings in city are not just about the rule book. Such irregularities have resulted in loss of lives. TOI looks at some major tragedies.

Aug 2013: Three labourers were killed and 11 injured after the centering erected for concrete layer at a marriage hall under construction collapsed in Kommaghatta, Kengeri Satellite Town. Building plan was not sanctioned

Aug 2013: 4 labourers were killed and 20 injured after under-construction building collapsed in Someshwara Layout in Jayanagar 1st Block. Sub-standard work and use of spurious material caused tragedy. BBMP had okayed construction of two floors while the contractor made it seven

July 2012: An unidentified man was killed and three girls survived miraculously after a portion of an under-construction illegal building crashed in Garudacharapalya, Mahadevapura

March 2012: A five-storey illegal structure in Shantipura Grama near Electronics City Phase II tilted causing panic. Nearly 70 residents of the PG hostel, with IT professionals in it, were evacuated in time

Sept 2011: Two workers died when an illegal under-construction building collapsed after a gas cylinder from an adjacent marriage hall burst near Bandemata in Kengeri

A scheme that lacks legal sanctity

Will the government’s move on Akrama-Sakrama scheme hit a legal roadblock? Going by previous Supreme Court judgments on regularizing illegal constructions, the question is whether the scheme has legal sanctity.

Contrary to the state’s decision, the Supreme Court has held that no municipal corporation or government should regularize violations unless iproved beyond doubt that the violation was done by mistake after attempts to comply with all the existing laws were exhausted.

While passing a judgment in the Esha Ekta Apartments Co-operative Housing Society Limited and others versus Municipal Corporation of Mumbai and others, the Supreme Court noted: “…Only such deviations deserve to be condoned as are ‘bona fide’ or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned.”

The court, in its judgement in the Dipak Kumar Mukherjee versus Kolkata Municipal Corporation and Others case, in October 2012, observed: “What needs to be emphasized is that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development but also affect various fundamental and constitutional rights of other persons.”

The Karnataka government, while allowing violations to be regularized, may be favouring violators, but completely ignoring law-abiding citizens who will feel short-changed.

“The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan.

The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorizedly constructed multi-storied structures raised by economically affluent people,” the apex court noted.

The failure of the state apparatus to take prompt action against illegal constructions has convinced the citizens that planning laws are enforced only against poor. and all compromises are made by the state machinery when it is required to deal with those who have money power or unholy nexus with power corridors, it adds.

In the Municipal Corporation of Mumbai case, the court, while conceding there could be people who might suffer from such demolitions for no fault of theirs, has observed: “…the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilized for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.”

In the same case, the court says, “Though the local authorities have the staff consisting of engineers and inspectors whose duty it is to keep a watch on building activities and to promptly stop illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don’t act or do not act promptly or do connive at such activities apparently for illegitimate considerations.”

The unwary purchasers who shall be the sufferers must be adequately compensated by the builder, the court has observed, adding that the arms of the law must stretch to catch hold of such unscrupulous builders.

Courting controversy

The cases related to Akrama Sakrama are pending in Karnataka High Court too as various individuals and organizations have sought judicial intervention in the same. Some petitioners include The Federation of JP Nagar 7th and 8th phase residents’ welfare associations, Citizens Forum for Mangalore Development and M/S Abhyudaya having its office in Padmanabhnagar. Petitioners have questioned various aspects including the legality of the scheme, penalty slabs and modes of implementation as well.

Who will pay? No one knows

Shekar Poorna, editor of an online literature portal and resident of Kodi Chikkanahalli in Bommanahalli, was allegedly beaten up by miscreants a few days ago. His family was also threatened. The reason for this mess is Akrama Sakrama, he says. Here is his story: Shekar lives in an apartment complex that has 122 flats. Built in 2000, it had many violations and was pulled up by Bangalore Metropolitan Task Force and the matter of building deviations from the original plan went to high court also. However, the builders successfully covered up the mess and distributed flats. Recently, when Shekar and his friends with the help of RTI, unearthed the mess, they were attacked and asked to keep quiet.

Shekar said with Akrama-Sakrama news doing rounds, the builder and some “powerful” residents in the apartment want to take advantage of the situation and officially cover up the violations. “My flat is spread around 660 sq ft and even if we consider the apartment having 33 per cent of violations, it would cost each flat owner Rs 2 lakh with the present market value of the area. Why should I pay for somebody else’s mistake?” he asks.

Shekar also said there was no clarity yet on the scheme, which doesn’t explicitly say who has to pay the penalty in such cases. “Are violations calculated for the entire apartment or just part of it? If it covers all flat owners in the apartment, it is injustice. Why should an occupant in the first floor pay for a violation on the fourth or fifth floor?” he asked.

The scheme, he says will put flat owners, resident associations and builders at loggerheads. Simply because there is no clarity on who pays the penalty: the buyer or the original builder?

Many residents/flat owners feel naturally the present occupant of the building. If that is the case Bangalore’s many apartments have violations and more often than not, the buyers have purchased the property without realizing what violations they are getting into. So who is being punished for whose crime?

Bhoomika K, a resident of Ullal along Outer Ring Road, says her house receives little sunlight or air due to violations by the next buildings. “Our efforts to lodge complaint with the BBMP have not yielded proper results as they are hand-in-glove with the powerful neighbour. Now with Akrama-Sakrama being implemented, our worst fear of living in darkness forever is becoming real,” she added.

However, for Chandrashekar R, a resident of Koramangala, the scheme is not a complete mistake. “How long can you remain in a property built on erstwhile revenue land? Without the scheme in place there are violations around. I’ll be happy to pay penalty to regularize my construction. Once it is regularized, I can demand the civic agency to provide basic amenities to the layout we are living in,” he added.

Box: “Police role in illegal constructions is minor”

Kamal Pant-Additional commissioner of police (law and order) “It is BBMP that should make sure on the legality of the plan, strength of the building, and so on. Police will come into picture when tragedy occurs. If the negligence is prima facia, we book the case under IPC 304 (Culpable homicide not amounting to murder) or else under IPC 304 A (Causing death due to negligence). We make best effort to punish the culprit in each case.

But finding the real culprit is challenging as many owners would have given contract to some one else and the contractor would appoint supervisors, site engineers. We should carefully pick the errant person and charge sheet on him,” he said.

‘Scheme will comply with SC guidelines’

Akrama-Sakrama scheme won’t set a precedent, says T B Jayachandra, law and parliamentary affairs minister, speaking to TOI.

Won’t scheme go against Supreme Court rulings?

We are aware that the SC has several judgments about construction violations. But we are framing rules that will, in spirit, comply with SC guidelines. Our intention is to aid economically, socially weaker sections of the population, who might have violated some rules. Besides, our government is only extending the deadline to receive applications. The Bill was passed by the previous government.

Will this set a precedent?

This is a one-time settlement option provided through a legislation. It cannot be used as a precedent. Also, we will have the discretion to regularize or deem otherwise once the application is received.

What if violators do not apply for regularization?

Once the deadlines are through, authorities have the power to demolish illegally constructed structures. They will go ahead with that.

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