Urban Management Issue:
Disappearing Common Plots
Dr. DHAVAL PATEL
A-41, PHASE II 2008 BATCH
Index
| Chapter number | Subject | Page number |
| 1 | Introduction | 3 |
| 2 | Problem | 4 |
| 3 | Origin of the problem | 5 |
| 4 | Modus operandi | 16 |
| 5 | Manifestation | 20 |
| 6 | Solutions | 22 |
CHAPTER 1
Introduction:
I was posted in Panchmahals district of Gujarat for my district training. During my district training my collector gave me an enquiry into a complaint regarding the illegal construction and sale of the illegal building which was constructed in the common plot area. While investigating the case I came to know about this problem which is so rampant in most of the cities.
By “Disappearing common plots” I intend three things: (1)Sale of the common plot, (2) illegal construction over the common plot or (3) retaining of the common plot with the promoter while at the same time taking consideration from the society members for the common resources.
The problem is very rampant in my district in all 6 municipalities. The problem seems to be so rampant that people have a kind of “It’s okay” or “why only punish me - Everybody is doing this” kind of approach about this problem. Therefore I would like to elaborate on this issue and its importance in developing cities over a long run. As compared to other issues of the urban scenario where the blame is usually transferred to the local body or the officers of local body, this is an area in which the revenue department and the Collectorate is also equally involved along with the Town planning department. So, it is of utmost direct relevance to all of us who are going for the field posting in the near future.
CHAPTER 2
The Problem:
When we see all around us in any urban area, we see a jungle of cement concrete. There is not a speck of green to be seen. According to the Town Planning scheme and Development and Control rules, the builders / developers are supposed to provide roughly 50 to 55% of the total residential area as Common Plot or roads (Non Built Up area). But practically speaking only 20 - 25% land is there for common plots or roads. This results in congested surrounding. Also there is a scarcity of parking lot. There is no recreational place for children. And the environmental problem is the biggest of all. If all the societies in urban areas start stealing 30% of open space, soon there is great amount of felling of trees and less space to grow new trees. I have come across this problem in my district because of an application pleading to vacate some of the illegal constructions in a society where the developer had not left even an inch of common plot. He had sold off practically every inch of the land available except roads.
CHAPTER 3
How has the problem come about:
A. The administrative problem:
1. Multiplicity of the agencies involved in Urban Management
The authorities involved in giving the permission of using a premises as a non agricultural activity are as follows – district collectorate, Dy. Town planner, the Municipality and the City Survey Superintendent. Let’s understand the procedure which is followed by the promoters or the builders.
2. Maps are passed by Town Planning Department.
1. First of all the builder gets a map of the proposed site made by an authorized architect and submits it to the town planning department.
2. Then the Dy. Town planner passes the map keeping in view the provisions of parking space, floor space index, the mandatory margins of land on all the sides of the proposed building, the norms of the construction specification, the drainage and internal connectivity, the continuity of road with the adjacent piece of land in T.P scheme so that the right of way is not obliterated and so on an so forth.
3. There is usually a G.D.C.R. which specifies the General Development Control Rules and which has the technical specificiies which has been prescribed by the competent authority.
4. The Dy. Town Planner has to pass the maps produced keeping in the mind the provisions of Development Plan, Town Planning Scheme and G.D.C.R.
3. Non Agricultural permission is given by the Collector
1. The applicant gives application to the Collector in a prescribed format.
2. The Collector seeks the information from various departments like R&B / National highways for violation of Ribbon development rules / line control rules, Health department for the health related issues, From the tehsildar regarding any land revenue due / premium on new tenure land and the law and order situation, from the local body regarding the No objection certificate and so on and so forth.
3. The departments are to give their own comments withing timelimit prescribed.
4. Time limit prescribed by the Bombay Land Revenue Code is 90 days for this purpose.
5. If within 90 days the consent or disconsent is not conveyed to the applicant, the non agricultural permission is deemed to be given at the end of 90 days.
6. Here this provision has been entered to protect the citizen’s right to get his work done in a reasonable time period.
7. but the provisions are misused by our own staff.
8. The files which have something fishy are put for signature on 85-89th day, so as you may not dig deep.
9. Even the responses from the line departments are sometimes delayed knowingly.
10. Thus the Collector who is busy with so many responsibilities somehow clears or denies the file.
11. The non agricultural permission granted by the Collector specifies some conditions on which this condition is granted. Most notable of these are reproduced below
§ For every 100 sq. mtr of land converted to N.A., 2 trees will be raised
§ The construction has to be according to the map passed by the Dy. Town Planner.
§ In case of any change in construction, the map has to be revised by the Dy. Town Planner and the Non Agricultural permission also has to be revised from the Collectorate.
§ There will be one water harvesting system for 1 unit of building.
§ The occupant will get his land measured by the District Inspector of land records (in rural areas) or the City Survey Superintendent (in urban areas) within 1 month of the permission, failing which the permission is voidable.
12. The Collector passes such kind of orders but there is not enough manpower to check that the work is carried out accordingly or not
4. Building use permission is given by the Municipality
1. The developer has to get consent from the Municipality (with its incidental cuts along) three times before he can actually sell the land
2. The first instance is the time when he files a non agricultural use permission application in the Collectorate. At that time they have to attach a no objection certificate from the municipality regarding the conversion of the said land from agricultural to non agricultural purpose
3. The second instance is after he has got the N.A. permission. The construction of the buildings can start only after the “Construction Permission” from the Municipality.
4. The third instance is after the building is over. At that time they have to get a “Completion certificate” from the Municipalities stating that the construction has been completed following the conditions of the order and according to the plan passed by the competent authorities.
5. Usual practice in the Municipalities is that there will be one “Construction Committee” which will meet periodically and dispose of all the applications in the above mentioned three cases. In some Municipalities, the General Body itself presides over this proceedings instead of Construction Committee.
6. According to the Bombay Municipalities act, the Collector has the power to review and quash any of the resolution of the Municipalities if found contrary to law. So all the municipalities have to send the copy of the resolution passed by them to the Collector for scrutiny.
7. Therefore the Municipalities have found a smart way out. They pass a resolution that the power to sanction these things is given to the President. Thereafter the President himself passes all such application without passing a resolution, by simply passing an order on file noting. Thus any hanky panky case never comes to the notice of the Collector. And the Collector can not be expected to check each and every file of the Municipalities in his jurisdiction.
8. Sometimes the Municipalities pass a resolution that the plan revision can be done by the Municipality or the president. It is actually wrong. The only authorized authority to revise the passed plans is the Collectorate and the Dy. Town Planner.
9. In such cases the plan revision is passed by the president of the municipality. Even the chief officer of the municipality is not informed about this.
10. Such kind of illegal plan revision give the shelter to the offender in legal suit.
5. City Survey Superintendent:
1. The City Survey Superintendent has to get the land surveyed at the cost of the applicant within one month of passing or Non Agricultural use permission order by the Collector.
2. It is very important to do so, so that there are no border disputes later on.
3. It is all the more important to get the land surveyed if the land is being sold as plots.
4. The City Survey number has to be partitioned and all the plots have to be recorded as a separate subdivision of the original City Survey number.
6. There is not much correspondence between the abovementioned authorities once the map is passed and the nonagricultural permission is given
1. It is very necessary that these institutes remain in constant touch with one another throughout the execution of the building rather than ending the relations till passing of the N.A. permission.
2. The execution of the order on the field is the most important. The Collectorate is grossly overlooking this issue. Sometimes even the copies of the N.A. order passed is never given to Tehsildar or Talati (Patwari) who are cutting edge functionaries of Revenue Department and who are to supervise that the order is executed properly or not.
7. There is a rapid conversion of land from agricultural use to non agricultural especially at the periphery of cities
1. that the authorities are usually not able to give due attention to individual schemes - how they are implemented.
2. There has to be a separate system to look into the construction of new building coming in the land which have been given N.A. permission.
3. The revenue administration is too rural oriented. It has to change its attitude towards the problems of urban areas.
8. The maps passed are in the exclusive control of the Authorities sanctioning it and the developer.
1. The buyer never comes to know about it ever.
2. It is the buyer who is at loss, if he doesn’t get the proper land for which he paid the money.
3. Sometimes it so happens that the buyer is genuinely kept in dark by the developer, and given the common plot.
4. These plans have to be in public domain so that everybody can see it and check whether the piece of land which has been allotted to him is legal or illegal.
5. Nowadays all the maps are prepared using computerized systems. If the person applying for the N.A. permission is asked to give a soft copy of the plan along with the submission, it can be easily uploaded on the website of the collectorate once the plan is passed.
6. Thus we can bring greater transparency in the system.
9. Lack of functional societies:
1. Usually in the urban setting the residential buildings are constructed in the name of a housing society registered under the Societies registration act.
2. It is the society’s business to see that the common resources like roads, parks, common plots, parking space etc. are utilized giving maximum benefit to its share holders.
3. Nowadays the societies are non functional
4. sometimes the societies are handed over the possession of the society land without common plots. Thus even the society doesn’t know that something of this kind even exists on paper.
5. The problem is more acute where there is no formation of the societies. E.g. in the current day urban residential scenario, the developer usually sells open plots to the buyer and the buyer himself develops the property. Let us say there is a piece of land of 1000 sq. meters. According to the GDCR he has to keep 400 sq. meters as open space. What the developer would do is that he would keep only 100 sq. meters of roads and sell off 9 plots of 100 sq. meters of plots to the buyers. In this case the buyer is paying for only 100 sq. meters. Therefore he is not even aware that the lay out plan has something like common plot of 300 sq. meters which has been sold off to him.
B. Judicial problem
1. There is no clear demarcation between what is revenue jurisdiction and what is a civil jurisdiction.
2. Therefore taking advantage of this legal ambiguity, the miscreants file a civil suit in matters which are exclusively in the purview of the revenue authorities or the Municipalities.
3. Even the civil courts pass the orders which are not in their jurisdiction.
4. There are a lot of cases in which the disputes have been decided by the local courts and appeal has been preferred all the way upto the high court. Once again there is some change in the party and a minor variation in the pleading and the case is instituted as a fresh civil suit in lower court.
5. When it comes to demolition of these illegal structures, the judiciary is the biggest hurdle.
6. There has been an increasing tendency to grant stay order even if the party is not even specifying the exact description or the way by which he had acquired a right in the said property.
7. There has been writ of Mandamus in the high court asking to direct the municipality to give the builder “no objection certificate”.
8. Even if the courts may not pass any adverse order or stay order in such kind of cases, there is a hurdle in the mind of the functionaries that anything over which there is a judicial case is a holy cow and nobody wants to take risk.
9. Because of frequent Contempt petitions, the civil servants have started to take the court cases as something which should not be meddled with.
10. I have also seen a very horrifying decree of a local civil court, which had not been surprisingly challenged. In that case, there was a dispute between the buyer and the land developer that the developer had started construction in the common plot area and therefore the petitioner had moved the court. The case was compromised. The decree was passed that there would be so and so facilities and easement rights for the petitioner and then the developer can build the building. Surprisingly the court forgot to take into account that there are other stakeholders who should have been heard. The Government has passed its plans. Now only because there is a consent between two parties, the decree can not be passed allowing the developer to build a building in the place where there is supposed to be a common plot according to Government records. Even then such horrific orders are passed and this order became a headache for me.
11. As there are so many agencies involved in this, the unscrupulous dealer has some or the other document to prove some of his right in the illegal property. E.g. there may be revised plan by the Municipality, No objection certificate by the municipality or the building use permission signed by Municipality President or some vague City survey map. When these things are placed before the court the courts are more than happy to give the stay order and thrash all the government officials. Thus the Government pays the price of being a concept rather than a real individual.
12. The public prosecutor is also not that greatly involved in defending the case of the government.
C. Record of right issue
1. There are two authorities involved in the maintenance of record of right in the urban area and the peripheral rural area.
a. In urban area proper, it is the city survey superintendent who has to maintain the records of right in form of “Property Card”. In urban area the survey work has also been entrusted to the same officer
b. In the peripheral rural area it is the duty of Talati (Patwari) to get the mutation entry done including the entry of the N.A. permission and thereafter entry of all the subsequent buyer of the land. Whereas in the case of rural lands, the survey and measurement is done by the District Inspector of Land Records.
2. We will take the City survey area first and understand the problems faced in this.
i. In the City survey area the property card system is followed.
ii. In which usually the name of the housing society is entered as the occupant of the land and all the share holders’ names are entered in the column of the other rights.
iii. E.g. one person has 1000 sq. meter of land and he has to keep 300 sq. meters as common plot and 100 sq meter as roads. Whenever the land is sold off to anybody, according to record of rights his name has to come into his name.
iv. But the survey manual lays down that the property card can not be bifurcated without the proper measurement and survey of the land.
v. Now the unscrupulous builder never gets the land measured by the City Survey Superintendent.
vi. He keeps on adding the name of the buyers in the “other rights” column instead of into the “occupant’s column”.
vii. Here if the builder gets the land measured and property card divided, the common plot area would go to the Society’s name and he can not meddle with this.
viii. If he keeps the land in his name and goes on selling the land of 100 sq. meters to let’s say 9 people, there is nothing wrong on the face of revenue record. Because out of 1000 sq. meter he has sold off only 900 sq. meters (the rest 100 sq. meters as roads – thus embezzling the whole common plot of 300 sq. meter).
ix. Here the City survey superintendent has an incentive not to measure rather than to measure. He doesn’t have to work and still may get the cut for not measuring.
x. The standard answer we get when the Collector or the Assistant Collector asks the City Survey Superintendent to measure a particular piece of land is “according to the rules the owner of the land has to deposit some amount of money as the survey fee and then only survey can be done. The private party has not paid the fee and therefore we cannot measure his land”.
xi. Also there is no measurement of land after division. Thus on map it is still a single piece of land. Now when any subplotting is done, the subplots can’t be measured because the original plots have not been measured.
xii. Thus the maps with the City survey superintendent are not updated and whenever any boundary dispute arises between subplots, there is practically no way to settle the dispute based on map records.
xiii. After some time, the situation becomes uncontrollable.
xiv. One more problem with Survey is that according to the Survey Manual, the survey has to be carried according to the physical possession on the land (whether it is legal or illegal), and not according to the plan passed by the Collectorate.
xv. Now even in the cases where the City survey superintendent has measured the land after the N.A. permission is granted, he will measure the plots according to the possession. Even if the 300 sq. meters of common plot according to the passed plans is sold off, he will survey it and give the split property card to all 9 buyers of 100 sq. meters. (this is a more legalized way of doing the stealing)
xvi. But these are lame excuse on the part of City survey superintendent, because as a collector we can collect the fees for survey along with the premium paid for the N.A. use. There is practically no problem in asking him to deposit the survey fees before issuing the final N.A. order.
3. In rural areas, the situation is the same or even more worse. In urban areas you have to only one office (that is of the City survey superintendent) to get land surveyed and the mutation entry to be made.
a. Whereas in the rural areas the works are divided. The mutation entry part is done by Talati (Patwari) and the survey is done by the District inspector of land records.
b. Here also the problem faced is more or less like the urban counterpart.
c. The extra problem faced is that in the rural record of rights, it is usually designed for only ground level land occupation.
d. There is no way in which you can show 1st or 2nd story flat in the record of right except noting it in the other rights (which is possible in property card method).
e. So it makes it more complicated to maintain the land records in the rural areas which are at the periphery of urban area.
CHAPTER 4
Modus Operandi of stealing common plots:
1. Whenever the non agricultural use is granted for a particular revenue survey number, let's say r.s. no 123, the developer gets it fragmented in 123/1 having the built up area and 123/2 having the common plot in revenue records when implementing the non agricultural permission of the Collector. After the lapse of some time when everybody has forgotten that 123/2 is a common plot of 123/1 (123/2 is reflected as agricultural land in revenue records and 123/1 is shown as non agricultural use), they will propose a new society and ask for non agricultural permission in 123/2 afresh. There is no data management system existing in the current process which will tell the authorities that 123/2 is a Common Plot and non agricultural permission should not be granted to it.
123/2/1 Residential Part 123/1 residentital part
123/2 Common Plot 123/2/2 Common Plot
2. The plans passed by the competent authorities are never shown to the buyer. He is only shown the information brochure prepared in a glossy paper. The information brochure of the developer already shows building at the sites where the common plot was passed by the authorities. The information brochures are not a part of the contract between the buyer and the seller. Therefore the buyer should not be trusting such brochures but as we all know only thing the buyer sees before investing is the brochure. The next problem is that we never measure area of Common Plot before buying the house. Therefore even though the plan may say we have a Common Plot of 1000 sq. meters, physically it maybe of 500 sq. meters and the remaining 500 sq. meters are subdued with houses (of course illegally)
3. Revised Plan strategy:
§ Many developers resort to a still sharper strategy for cheating
§ They get two plans passed from the authorities. One the Original Plan and the second the Revised Plan as shown below
§ 
Original Plan Revised plan
§ For the buyers of the unshaded area of original plan, the developer shows Original Plan. And for the buyers for the shaded area of original plan, the developer shows Revised Plan.
§ Thus the common plots according to both the original plan and revised plans are sold out and none remains on ground.
§ Once the plan is revised, the old one gets quashed. But the developers don’t inform the buyers about the alteration in the plans.
5. The most illegal way:
§ Encroachment in the Common Plot-
§ Usually the builder himself makes shopping centre in the Common Plot (fully illegal), sell it to the buyers and goes away. The consequences are for the buyers to face.
§ The Builder or Developer is never booked for any offence because there is nothing on paper which can prove his involvement whatsoever with the scheme. (The land is held in name of the farmer from whom the land was purchased. The application for non agricultural permission, map passing and building use permission is asked in the name of the farmer only and the registered sale deeds are also executed between the farmer and the buyer. There is not a letter in black and white which shows that the builder or the contractor had anything to do with the scheme).
§ This is done to evade the responsibility and also for the evasion of Stamp Duty. There is transaction of land directly from the farmer to the buyer on paper, therefore stamp duty applies only once. In reality the farmer sells it to the builder and the builder sells it to the buyer. Thus the stamp duty has to be paid twice.
6. Encroachments on internal roads:
§ We all have one question in common - why the road in my society is such a small one.
§ But this is not due to lack of will on part of the Government or the Municipalities, it is mainly due to lack of knowledge on part of the buyers.
§ When originally passed the road maybe of
§ Gradually there is an increase in the number of vehicles / capita. In this case the less width of the road becomes extremely crucial.
§ All it takes is the collective will of all concerned to take back their verandah willingly
CHAPTER 5
How has the problem manifested itself:
1. Congested residential areas, with no space for recreation for the persons living there
2. Cheating of the buyers who pay for the open space, but never get to use that common space. And at the same time the builder sells it to somebody else and mints money. Therefore there is a sense of being cheated in the mind of the persons buying the property. There come a very significant number of such cases in the grievance redressal meetings.
3. Usually these illegal constructions are made in the places in the area which is the natural flow of water. Once you have buildings in the water way, there is not proper drainage and the buildings get flooded at the time of monsoon.
4. The buildings being illegal, there is sometimes some problem in getting the electricity connection, water and sewerage connection for such kind of buildings and the quality of the life of the persons buying such property goes down for no fault of his.
5. The land records and records of right problem. It is not possible for the illegal houses to get proper recognition of their rights in the revenue records and therefore there is a lot of hassles when he wants to sell the property.
6. A lot of revenue cases and civil suits, leading to draining of money and no fruitful outcome.
7. As a government authority I would also like to bring out the problems which the government has to face because of this menace. There are a lot of litigation against the Collector’s office, City Survey Superintendent and the Municipalities regarding these disputes. Only because of negligence on our part to ensure the execution of our order, the government has to bear the expenditure even in case of private party suits.
8. The most painful outcome is the plight of the bona fide purchaser, who might have put all his life’s money in his dream house and one fine morning we go to his house and say that it is illegal and raze it down.
9. There are not enough parking space for the vehicles in the common plot. This is a very serious issue which we all are facing now in view of the increase in the number of the vehicles in current times.
10. The G.D.C.R.s are violated and therefore the development plan for the city cannot be materialized. Therefore, the whole purpose of planned development of a city is defeated.
CHAPTER 6
Solutions:
1. The maps passed in a city should not be in parcels of a survey number, but should be in a complete mosaic, so that the surroundings can be checked beforehand before granting non agricultural permission
2. Computerization of maps passed for N.A use. Now most of the maps are prepared in Autocad, therefore there is no problem in getting the soft copy from the architect and storing it in the government records in soft copy. The computerization helps to process and retrieve the data more effectively than manual data.
3. The plans passed by the authorities should be superimposed on the satellite imageries obtained from Google Earth or Wikimapia or ISRO imageries while the construction work is going on. If any substantial deviation from the plan is noticed, the non agricultural permission should be immediately withdrawn.
4. By doing so, we will be saving the bona fide purchasers from the frauds of the developers. Once the buildings are sold, the punishment shifts from the builders to the purchasers who might have paid the developers market price and still face the music, and the actual offenders are not brought to the books.
5. Make a public display of the Non agricultural maps passed by the competent authorities. The maps can be pasted on the website of the Collectorate or Town planner. The fact that the maps are available online should be made public by posters and press notes. Bringing the maps in public domain brings out more transparency than surprise checks.
6. To avoid the mischief as mentioned in the modus operandi 1 and 3, the current strategy employed by my Collector is that he has added one condition in the N.A. permission that the Common Plot should be resigned in favour of the State Government and the Internal Roads should be resigned in favour of Local Authority (municipality or Village Panchayat). Suppose the developer wants to convert the revenue survey number
a. This has helped a great way to stop cheating as mentioned in modus operandi 1 and 3.
b. And the better outcome is that there is a lot of open space available in the name of Government and Municipality, therefore they can build gardens / walkways or other recreational facilities as and when required. Earlier the municipality had no open plots. Now the Godhra Municipality has around 4 to 5 hactares of open plots in its name.
c. The other benefit of this is that the encroachments no longer remain private encroachments - they become encroachment on Government property, therefore easier to remove. Internal encroachments otherwise would have been a civil dispute between the society and encroacher (not between the government and encroacher)
d. but the flip side of this intervention is that we are foregoing land revenue on the land which is resigned in the name of the state government and the local bodies which otherwise would have been paid by the members of society. But now it is a time to rethink our strategy whether we want to stick to the old logic of collecting meager 100 rs / 200 rs more strictly or whether we want our cities to be having open spaces and breathing space.
e. It is highly likely that an audit objection will be raised when they come to know the clause inserted in the N.A. permission leading to loss to the state government. Let’s hope for the better.
7. Regarding the issue of payment of fees for survey, it can be collected along with the premium for the non agricultural use, so that there is no excuse from the City survey superintendent or District Inspector of Land Records regarding non survey on basis of non payment of fees. In this case there is a win win situation for both the builder and the surveying agency in not measuring or surveying. Therefore this has to be enforced strictly.
Thus these are the solutions which I think can help us come over the crisis of missing Common Plots. Let's hope for greener cities.
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