Thursday, December 2, 2010

Unconstitutionality of barricades on public roads in layouts/apartment-complex

In Bangalore, it is very easy to spot a number of layouts where there is an entry road and other roads that connect to various buildings inside it. But you cannot enter! There is a barricade on the entry road and there are private security guards who will inquire you. The inquiry may be as simple as asking your name and purpose to displaying special cards. One question that may come to mind is whether private people can restrict access to a public road.

Typically layouts have to comply with municipal corporations rules and regulations in which roads of certain width have to be left out depending on the height of the building and other factors. Then these areas have to be given to government for building roads, drainage and other facilities. Quoting from the interview of Advocate General of Karnataka:

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.

Some people were skeptical of the above point. So here is the BBMP byelaw, which says:

Section 2.40 ‘group housing’ means more than two buildings on a plot with one or more floors and with one or more dwelling units in each floor. They are connected by an access of not less than 3.5m in width, if they are not approachable directly from the road./b>

Section 12.1: The following norms shall be adopted while approving the layout plan for group housing:-

(vi) 25% of the total area be reserved for CA, parks and open spaces, subject to a minimum of 15% for parks and open space.

(viii) The area reserved for Parks and Open spaces, CA and roads (other than internal access
in each sub-divided plot) shall be handed over free of cost to the B.D.A through registered
relinquishment deed before issue of work order.

So everywhere where you see a barricade that prevents you from going into is violating Article 19(1)(d) of the Constitution. It grants every citizen of India to move freely throughout the territory of India. All these barricades are unconstitutional. In Dr. Nitin G. Khot And Others vs Station Commandant, Belgaum ... on 23 January, 1998 the army putting barricades with in the cantonment was termed unconstitutional by the Karnataka High Court.

The educated middle/upper class people who support these barricades need to do more soul searching. They may be arguing for a right to free movement in India when they move from one part of the country to other part and may sometime would even argue for ease of movement to other country. I do not know how they take away others rights to free movement so comfortably. Probably the rights of people can be purchased from the protectors/enforcers of the law of the land.

On the rationalization issue, one theory that I have is that probably these places are not in India and so the Constitution of India does not apply to them. When the Constitution does not apply, the question of Corporation rules and BDA rules does not even arise. However, I was disappointed to see the interview with Attorney General of Karnataka who says that these are actually in India and the barricades are indeed unconstitutional. Disappointment is mainly because of the fact that rights are taken away in such a big way and the rights protectors are making the usual alibi that it is not important to take any action. I would have expected a Government that is not ready to protect fundamental rights to resign. Things look different here!

Quoting from the interview:

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.

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.

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.