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Law Commission Report
Legislative Protection For Slum And Pavement
 

LAW COMMISSION

OF

INDIA

ONE HUNDRED THIRTY-EIGHTH
REPORT

ON

LEGISLATIVE PROTECTION FOR
SLUM AND PAVEMENT DWELLERS

I990



Tel. No. 384475

fafa srn:'m
LAW COMMISSION

'$1112?! ETWT
GOVERNMENT OF INDIA

M.P. Tl-IAKKAR snag} wqq
Clzarrman SHASTRI BHAWAN,

aii Teen':
NEW DELHI

D.O. No. 6(3)(l2)/90-LC(LS) December 20, 1990.

 

To

Dr. Subramaniam Swamy,
Minister of Law and Justice,
Government of India,
Shastri Bhavan,

New Delhi.

Dear Minister,
Re : Presentation of 138th Report.

Since the terms of reference of the Law Commission commence with the first
term encaptioned "Law and Poverty" and enjoin the Commission "to take all such
measures as may be necessary to harness law and the legal process in the service of
the poor", the Commission has suo motu examined the problem pertaining to the
plight of the slum and pavement dwellers facing eviction at the hands of the local
authorities.

The magnitude of the problem can be gauged from the fact that nearly 3.5 crores
of citizens of India live in slums and on pavements of metropolitan cities. That is
to say, one citizen out of every twenty five citizens is so afllicted. The slum dwellers
are often denied electricity and sanitary facilities on the ground that their occupation
is unauthorized. And quite often their huts are razed to the ground and they are
evicted by the local authorities without offering them any alternative facility. The
plight of these unfortunate evictees comprising women and children is indescribable.
Some legislative protection needs to be provided to them to ensure that they are not
evicted regardless of humane considerations without olfering them an alternative
facility unless it is virtually impossible to do so.

To recommend introduction of this humane concept in Indian jurisprudence has
been the endeavour of the Commission in the 138th Report of the Commission cap-
tioned "LEGISLATIVE PROTECTION FOR SLUM AND PAVEMENT DWEL-
LERS", being presented hereby.

With kind regards,
Yours faithfully,

(M.P. THAKKAR)
Encl : 138th Report



CONTENTS

PAGE
CHAPTER I Introduction I . . . . . . . . . . 1
CHAPTER ll Profile of slums and slum dwellers in India . . . . 2-5
CHAPTER III Profile of pavement dwellers . . . . . . . 6-8
CHAPTER IV Present position . . 9--l4
CHAPTER V Provisions in Municipal Acts . . . . . . lS--]6
CHAPTER Vl Case For extending legislative protection . . . . 17-18
CHAPTER VII The constitutional position . . . . . . . l9-22
CHAPTER VIII Legislation pertaining to slums----As it is----and as it ought to be 23~-24
CHAPTER IX Conclusions and recommendations . . 25-27
Notes and references NR/14 28-29

APPENDIX Synopsis of legislation relating to slums . . . . App/120 30-37

ti)



CHARTER I
INTR6I5UCl'ION

1.1. Harnessing the law for the poor;---,a sua motu exercz'se----Can the conscienti-
ous members of the community sleep in' ' when millions of their brethren and
sisters are denied the comfort of sleepingcn the footpaths of the metropollses of India
and that of living in conditions unfit even for mute animals in slums in the neighbours
hood? The Law Commission having been entrusted under item 1(1)) of its Terms of
Reference "T 0 take all such measures as may be-necessary to harness law and the legal.

process in the service of the poor" deems it to be its duty to address itself to this prob-s

Iem by undertaking the present exercise suo motu.

1.2. Scope and target--This report, therefore, deals with a problem which has
been prevalent for along time in India, a problem which, at some stage or other, must
be seriously tackled by the society, a problem which is not one for mere academic
discussion but is seriously connected with basic needs of human beings. The prob-
lem is that of persons who are destined td spend their lives on pavements or slums in
the cities. Should such persons be evicted from the places where they dwell, merely
because, in the eye of the law, their occupation of the premises is unauthorised '?
If the society permits such eviction, should it not provide a reasonably adequate
alternative accommodation to them so that thegright to live, guaranteed by the Consti-
tution, carries some meaning for them ? This uestion has come up before the
courts in India more than once. Generally, whi c ad hoc relief has been given to
these dwellers, it has not been possible so far to go into the heart of the matter. T he
Commission believes that the society must address itself directly to the questions
posed above and consider the question of incorporating, in the statutory framework
of India, a just and workable solution within the limits of the Constitution. An
endeavour has, therefore, been madeherein to examine the legal contours of the
problem, to draw attention to the existing provisions on the subject, to suggest a
solution to the extent to which legislation on the subject is within the competence of
Parliament, and to make appropriate recdrnrncudations to relieve the distress of the
suffering compatriots within the practical "parameters of law.

1.3. Action by the local authorities-.Pavements and slums exist in big cities.
Eviction of dwellers in these premises is norm ly ordered by local authorities, whe-
ther they are known by the name of Munici Corporation, Municipal Committee,
Municipal Council, Cantonment or by any other name. In this report, we propose
to confine ourselves to. the eviction or such pctlsons by the local authorities. So far
as eviction by the State Government is coqcc ' , generally it takes place under the
Public Premises (Eviction of Unauthoriscds; pants) Act, either as enacted by the
Centre or as enacted (by whatever name) by the -State. Eviction ordered under such
a law mostly relates to individual remisesover whicha private person is alleged to
have established unauthorised or illizgal occupatibn and-it does not raise questions of
social justice of the dimensions that are met with where the actions of eviction is

taken by the local authorities.



CHAPTER II
PROFILE OF SLUMS AND SLUM DWELLERS IN INDIA.

2.]. Growth of slums in lndia.----There has been a rapid growth of population in
our metropolitan cities, which has resulted in continuously rising density of pu-
lation in all these cities. According to one st y 2/1 the growth of slum popu tion
is almost double the growth of urban piopu tion in the southern region. It was
estimated some years ago to be around 7.25 million, which represents 16.4 per cent
of the total urban population. In the above study, 2/2 a table gives the figures of
slum population in the southern region according to the population size of towns as
under :-

Tum
Slum population  soidrern region

Population size of U.A./Cities/Towns Total - Slum popula; Percentage of
tion 111130, in tion nuorger in C01 (5) to Col (3)

(1) (3) (5) (7)
10 lakhs and above . . . . 9,719 ' 2,150 22.12
5--10lakhs . . - . . .- 6,361 1,352 21.25
3"5 lakhs . . . . . . I 2,109 392 13.59
1-3 lakhs . . . . . . r 27,470 1,270 17.00
50,000--1lakh . . . .  5,707 701 12.23
Below 5o,ooo . . . . . , 1¢,s3t 1,388 7 10.131
All sizes . . . . . . , 411,204 7,253 15.41

(Columns 2, 4 and 6 of the Table are not regodueed here, as not material).

2.2. Position as per 1981 study--A more detailed study3l'on the subject has
summarised the position as under :-- .

"According to the 1981f Census , 'mates, India had a slum population
of about 30 million, arnounti g I nearly one-fifth of the total urban
population of the country. ' - population of India is larger than
the total population of ;:a lar rt er of countries including Canada
(24.2 million), the Netlierla ' (1.12 million), Australia (14.9 million),
Bel 'um (91.9 million), Sri nki (15.0 million), Afghanistan (16.3
mil ion), Malaysia (14.2 rnilli ,1), Portugal (9.8 million), etc."

These comparative figures would give some indication of the magnitude of the
problem of slums. ' 1 '

2.3. SIums--The term "slum" is usually understood as "court, alley or street
of dirty crowded houses". 2/4 The Report of the Socio Economic Survey of Slums of
Old Delhi states that "The term 'slum' should be applied to those parts of the city
which may be unfit for human habitation, either because the structures therein are
old, dilapidated, grossly congested and out of repairs or because it is impossible to
preserve sanitation for want of sanitary facilities, including ventilation, drainage,
water supply, etc., or because the sites by themselves are unhealthy" '/5. Thus, ac-
cording to this test, the main criteria are--

(1') Old state of the structure, or
(ii) insanitariness, or
(iii) unhealthy sites.
Each of these criteria is substantially concerned with the quality of life.
2.4. Position in Bombay--It appears that around 40 per cent of Bombay's popu-

lation has sought its own shelter in an unconventional manner '1' "There are the
people who are Considered to be illegal occupiers of land and shelter--the squatters"_

2



3

Bombay started slum clearance and improvement as early as 1958. The Slum
Areas Improvement etc. Act was enacted in Maharashtra in 1971, followed by the
Maharashtra Slums Improvement Board Act, 1973. The Act of 1973 envisages
slums as a cause of danger to health, safety and convenience of the slum dwellers
themselves and also of the surrounding areas, and states that until such time as the
slums are removed and the people re-housed, it is necessary to provide basic neces-
sities, such as water, sanitary arrangements, and electricity to them. But, in practice,
the fact is accepted today (in Bombay) that slums will continue to grow and, owing
to resistance put forward by slum dwellers and the political support, clearance is
not possible. Hence the emphasis has been upon improvement.

2.5. Amenities provided in Boml'ay----~This is not the place to go into details of
the various programmes in Bombay. But it will be of interest to refer to the stan-
dards of amenities adopted in that city 2/7.

Standard of amenities
Sl. Facility Standards Per capita
No. expenditure
1 Latr:7ne 1 set for 20-25 people . . . . . 100
2 Wat": tap 1 Faucet for 150 people . . . . . 9
3 Street light Depending on site conditoins . . . . 4
4 Pathways Do. 22
5 Drainage (Only within the slums) . . . . . 15

150

2.6. T /ze Madras example--As regards Madras, we have a helpful description
of slum clearance improvement in thatcity in one of the studies, 2/8 which illustrates
the trend towards slum improvement. The magnitude of the slum problem in
Madras can be seen from the fact, that while slums cover six per cent of the total area
in the city, they contain more than 30 per cent of the population. As of 1980, more
than a million people in this city lived in 1500 squatter settlements. To improve
this situation, the Tamil Nadu Slum Clearance Board was formed in 1971 and slum
fclearance was followed by slum improvement programme which has been in progress

mm 1972.

2.7. Figures regarding slums in India--In a recent study, 21° the position as per
1981 Census in India regarding slum has been thusstated :

"According to the 1981 Census, India had a slum population of 298.89
lakhs accounting for 18.75 per cent of the urban population. Of these
129.54 lakhs were in the twelve. million cities. In other words, the 12
metropolitan cities which held 'about 26 per cent of the total urban popu-
lation accommodated over 43 per cent of the slum population.

The larger cities have a higher proportion of slum population to total
population. Slum population accounts for more than 30 per cent of the
total population of the metropolitan cities. In cities with po ulation of
5 lakhs to 10 lakhs, over 201 per cent of the population dwel s in slums.
In towns with less than 50,(X)0 people, slum population is about 10 per
cent.

Among the metropolitan cities, Calcutta had the largest slum population

in 1981 (32.5 lakhs) followed by Bombay (31 . 57 lakhs) and Delhi (17.30

V lakhs).

In 1981, Kanpur had the hi hes! percentage of slum population (40.34)
followed by Lucknow (38. 3), Greater Bombay (38.30) and Calcutta
(35.5)...." -'

2.8. At this 'stage we would like to quote rzom N.C.U. Report. 2,/10-
"5.7. Mamfestarions of Urban Poverty

_ "5.7. 1. Urban poverty manifests itself in many forms. The most visible of
'those are .:



4

Proliferation of slums and bustees. Fast growth of an informal sector
increasing casualisation and under-development of labour.

Crushing pressure on civic services. High rate of educational depriva-
tion and health contingencies.

Retarded growth of physical and mental capacities. A growing sense of

hopelessness among the urban poor, resulting in rising crime rates and
group violence.

Growth of Slums and Bustees

"5.7.2. The poor cannot afford to pay the growing market prices of pucca
shelter or buy land at the fabulous prices charged near their work-places.
They cannot afi"ord the cost of transporting themselves or their stock in trade
over long distances. They, therefore, settle on marginal lands near their
work-places, which are otherwise considered unfit for habitation by the non-
poor classes. Examples are river banks, margins of nullas and drainage
canals, marginal railways lands and swamps. Their constructions are of
cheap scrap and salvaged material like gunny bags, tarpaulin, scrap tin sheets,
wooden planks etc. The habitat is irregular as it is unplanned. Civic ameni-
ties if available, are minimal. As a result, public sanitation and personal
hygiene break down.

"5.7.3. The growth of slums, is, therefore, a symptom of the inability of
people to procure land and shelter through market transactions, in which they
find themselves out-priced since government has failed to regulate urban land
resources in such a way that poor can have equitable access to them. Esti-
mates of slum population vary, but its growth is dramatically highlighted by
some examples. In Calcutta roughly 35 per cent. of the city's population
lives in identified slums, but it is estimated that the population of all slums,
and squatter settlements is much higher. According to a handbook of the
National Buildings Organisation (1982-83), 67 per cent. of the households in
Calcutta lived in one-room units. In;Mag1ras about 38 per cent. of the popu-
lation lived in declared slums in 1971 and 54 per cent. of the households lived
in one-room dwellings. In Hyderabad, the slum population jumped from one
lakh in 1962 to a staggering 51akh by 1981. In Delhi, squatters household
are estimated to have grown from 12.741 -in 1951 to 1.13 lakhs by 1975-76.

Increasing Carualisation and Under-employment of Labour
"5.8.3. There is also increasing casual' "tion of labour and persistence of

under-employment in Urban ;areas, ziac ding to Sarvekshana, in April
1986, the percentage of casualglaboutg incibased from 13.2 per cent to 14.75
per cent. in the case of males and from 25159 to 27.27 per cent. in the case of
females during the 1977-83 period, 'line percentage of unemployed, as
measured by current-day status during the same period, increased from 5.35
to 5.45 per cent. for males, although it decreased from 2.11 to 1.72 per cent
for females. Child labour accounts for nearly fifteen lakh workers in urban
areas and continues to constitute abou 8 per cent of employed males and about
7 per cent of employed females. neriaployment amongst the educated,
especially graduates, is very high in thea ' of group 15-29 years. In Madras,
it was found to be 20 per cen of mtleand 15 per cent. of females (Serve-
kshana, October, 1986). '

"5.9. Crushing Pressure on Civic Amenities

"5.9. 1. The civic authorities are findihg themselves increasingly incapable of
providing civic amenities to the large influx of population within their bounda-
ries. The population being poor, is unable to meet the cost of expanding
such services which have to be 'supported fi'om State grants or taxation of a
narrow base of tax-payers. The per capita water consumption was reported
to be between 16---23 litres per day in slum areas in Bangalore, the number
of persons per tap varying between 40 in 428 in same city. According to
the report of the task force of th Planningcommission on Financing of Urban
Development, 31 .2 per cent. of he urban fifipulation was not covered by sani-

, tation services. According to it DDA study of 28,100 squatter households

(1986), a hut of 2.5><3 metres accommodated about 4 persons. About
50 per cent of dwellers were using open areas for defecation. Dirty water
generally accumulated and stagnated by the sick of drains."

» 2 i



5

These extracts from the Report of the National Commission on Urbanisation indi-
cate the magnitude of the problem.

2.9. Latest profile of slum pa/mIatj0n----A fairly recent study gives an all India
profile. 3/11. According to that study the 1981 estimates identified the slum population
as 32 to 40 million. Of this, the lion's share went to 12 metropolitan cities which
together accounted for 32% of the slum population (13 to 16 million). A govern-
ment study for the estimates of 1990 2/12 is also quoted as under :

TABLE 2----Estimates of slmn popularon 1990

Category All Urban Estimated Slum
Population Population
in Millions Range in

Millions
1981
India . . . . . . . . . . . 159.7 32---40
Metropolitan . . . . . . . . . 42 .2 10-34
Other Urban . . . . . . . . . 117.5 18-24
1990
India . . . . . . . . . . 241 45-56
Metropolitan . . . . . .'" I . . 65 22--25
Other Urban . . . . . . . _ . . 179 23-31

2.10. Slums in Kanpur--A study regarding Kanpur happens to be available. 2/13
According to sources close to the Kanpur Dev'elopmentVAuth0rity, more than 5 lakh
people still live in various types of slums in Kanpur city. Again, as per table 4 given
in the study th e types of slums are as under :----

Type of slums Population Percenta e out
(tie. slum) oi" total um
population

Ahatas . . . . . . . -- . . 259,552 51.59
Bustees (old slums) . . . . . . . 158,511 31.51
Abadis and villages . . . . . . . 40,580 8,07
New slums . 44,437 8.83

Above figures were for the year 1978, and it was also estimated that more than
83"/,, of the slum dwellers in Kanpur were living either in Ahtas or old slums or in
inhuman living conditions. New slums were coming up on roadvside and vacant

spaces along the railway line.

2.11. The problem of slum dwellers is, therefore, one which ought to exercise
the minds of the administrators and legislators of our Welfare State and of the com-

munity at large.



CHAPTER III
PROFILE OF PAVEMENT DWELLERS

3.1. An analysis of the situation obtaining in regard _to pavement dwellers is
contained in a very recent study.3/1 The analysis IS quoted in extenso here :--

"The pavement dwellers are the houseless families literally living on the
roadsides or in busy strdts in the city and suburbs. Their dwellings are
found in the vicinity of the railway stations, in the areas of commercial
activity, around docks, and the localities in which the local authorities
have provided public baths, latrines and urinals. Several families which
have chosen the Bombay footpaths just for survival have been living there
for varying durations of time from one to over fifteen years. Some are
born there. They erect temporary unauthorised structures, made up of
plastic, polythene or cardboard sheets tied to a couple of bamboo sticks
without any construction whatsoever. It is easy to put up structures,
but easier to dismantle them especially when the occupants are apprehen-
ded by the enforcement authorities, but that rarely happens. Some
families, perhaps the less enterprising ones, take shelter under rail or
road bridges, flyovers, culverts or even in the huge cement pipes lying
around in open space untill the pipes are put to use.

They erect a place of residence, they hardly reside in it. They live around
it. They have no cooking facilities, no place to take bath or wash clothes
and utensils, no adequate place to relax, no water and latrine facilities,
and not even a residential address. While they have abundant and free
access to the open sky--a facility rarely provided for, a modern type flat
constructions, they are also more ex osed to the elements of nature by
way of wind and air, sun and rain. gelhaps they are among the poorest
of the poor in urban areas. - Although no exact figures are available, the
present figure of the houseless population is likely to be in the region of
two to three la khs.

The pavement dwellers are a mixed and myriad crowtl, quite a few having
landed there as a result of the pull factoIs----the attracticn that the city of
Bombay holds for people from other parts of the country. There is also-
a large section of migrants who have been pushed out of their native
place by circumstances such as floods, drought, poverty and unemploy-
mcnt, but even in these cases, it is equally true to say that both push and
pull factors operate though the degree may vary.

Most of these dwellers admit that their contact with the more fortunate
neighbours in the nearby edifices is mostly casual, although some say
they do odd jobs for them, like carrying a parcel or two for which they
are paid on the spot. In a few cases, the women folk, dwelling on the
pavements, are employed. as domestic help by the nearby residents.

They do not resent their lot, nor do these affiuent sections protest about the
squatters with conviction enough to pose a serious threat to their way.
The rich are content to dole out a few coins to the children along with a
few choice invectives. The pavement dwellers in turn are content with
the scraps and crumbs tossed to them by whim, fancy or fear. They are
a peaceful lot otherwise, for they stand to lose their shelter on the pave-
lment if they disturb the afliuent or indulge in flights with their fellow dwel-
ers.

Asked whether they were happy and contented with their existing way of
life and were adjusted to it, the data oddly enough revealed that, by and
large, these dwellers were rather satisfied with their lot, though there were
some mixed reactions to be sure.

Pavement dwelling is a deep-rooted malady. Although there are several
poverty groups, the pavement dwellers are the poorest of the poor. In

6



7

sum, the poor living in the chawls are the least poor. Those living in
the slumbs are poorer than the chawl dwellers. The pavement dwellers

are the poorest of the poor.

Further, the poor do not form a single and homogeneous group whether
they live in chawl, slum or on pavement. Some of the poverty groups
require very little help, others require massive effortoon the part of the
government and other public and private organisations to rehabilitate
them. This is so because the poor include among others, the. unemplo-
yed, the self-employed, the casual labour, the aged, the destitute, 'the
beggar, the physically handicapped, the mentally sick and so on. Though
lack of financial resources is common, each group has peculiar problems,
handicaps and coping methods. To undetrstand the special problems
before planning any rehabilitation programmes a few illustrations are
given as under :

A large number of the poor are able bodied persons. They do not want
charity type of services or temporary relief. They look for avenues
which help them to overcome poverty. They need jobs, want their basic
needs to be satisfied and are concerned about their children's education
and welfare, Investment in them is likey to be fruitful.

Several self-employed poor possess speclialised skills. They are capable
of producing certain consumer goods which have market. Some self-
employed have acquired technique of selling goods and services. Such
groups can overcome their poverty if they get some help. They need
to be provided with adequate financial resources, facilities for pro-
ducing better quality of goods and services, and guidance."

3.2. Pavement dwellers in Bambay----The following extracts from the Supreme
Court judgment of 1986 may be of some interest in connection with the situation
regarding pavement dwellers in Bombay 3/2:-

The charge made by the State Government in its alfidavit that slum and
pavement dwellers exhibit especial criminal tendencies is unfounded.
According to Dr. P. K. Muttagi, Head of the unit for urban studies of
the Tata Institute of Social Sciences, Bombay, the surveys carried out in
1972, 1977, 1979 and 1981 showthat many families which have chosen
the Bombay footpaths just for survival, have been living there for several
years and that 53 per cent of the pavement dwellers are self-employed as
hawkers in vegetables, flowers, ice-cream, toys, balloons, buttons, needles
and so on. Over 38 per cent are in the wage employed category as casual
labourers, construction workers, domestic servants and luggage carriers.
Only 1.7 per cent of the total number is generally unemployed. Dr.
Muttagi found among the pavement dwellers a graduate of Marathwadn
University and a Muslim poet of some standing. "These people have
merged with the landscape, become part of it, like the chameleon",
though their contact with their more fortunate neighbours who live in
adjoining highrise buildings is casual. The most important finding of
Dr. Muttagi is that the pavement dwellers are a peaceful lot, "for, they
stand to lose their shelter on the pavement if they disturb the affluent or
indulge in fights with their fellow dwellers". The charge of the State
Government, besides being contrary to these scientific findings, is born of
prejudice against the poor and the destitute. Affluent people living in
sky-scrapers also commit crimes varying from living on the gains ofprosti-
tution and defrauding the public treasury to smuggling. But, they pt
away. The pavement dwellers when caught defend themselves by ulna;
"who does not commiit crimes in this city."

In the same judgment the economic aspect regarding pavement dwellers has
been thus dealt with 3/3 :--

One of the major causes of the persistent rural poverty of landless labou-
rers, marginal farmers, shepherds, physically handicapped persons and
others is the extremely narrow base of production available to the majo-
rity of the rural population. The average agriculture holding of a farmer

- is 0.4 hectares, which is hardly adequate to enable him to make both



8

ends meet. Landless labourers have no resource base at all and they cons-
stitute the hard core of poverty. Due to economic pressures and lack of
employment opportunities, the rural population is forced to migrate to
urban areas in search of employment. "The Economic Survey of
Maharashtra" published by the State Government shows that the bulk
of public investment was made in the cities of Bombay, Pune and Thane
which created employment opportunities attracting the starving rural
population to those cities. The slum census conducted by the Govner-
ment of Maharashtra in 1976 shows that 79% of the slum-dwellers be-
longed to the low income group with a monthly income below Rs. 600.
The study conducted by P. Ramachandran of the Tata Institute of Social
Sciences shows that in 1972 91 'Z, of the pavement dwellers had a
monthly income of less than Rs. 200. The cost of obtaining any kind of
shelter in Bombay is beyond the means of a pavement dweller.

Some of the facts regarding hutments and pavements in Bombay has been stated
in the Supreme Court judgment in these words'!/4 :--

In answer to the Municipal Commissioner's counter-aflidavit, petitioner
No. 12, Prafullachandra Bidwai who is a journalist, has filed a rejoinder
asserting that Kamraj Nagar is not located on a foot-path or a pavement.
According to him, Kamraj Nagar is a basti ofl' the Highway, in which the
huts are numbered, the record in 'relation to which is maintained by the
Road Development Department and the Bombay Municipal Corporation.
Contending that petitioners 1 to 5 have been residing in the said basti
for over 20 years, he reiterates that the public has no right of way in or
over the Kamraj Nagar. He also disputes that the huts on the foot-paths
cause any obstruction to the pedestrians or to the vehicular traflic or
that those huts are a source of nuisance or danger to public health and
safety. His case in paragraph 21 of his reply aflidavit seems to be that
since the foot-paths are in the occupation of pavement dwellers for a long
time, foot-paths have ceased to be foot-paths. He says that the pave-
ment dwellers and the slum or basti dwellers, who number about 47.7
lakhs, constitute about 50 per cent of the total population of Greater
Bombay, that they supply the major work force for Bombay from menial
jobs to the most highly skilled jobs, that they have been living in the
hutments for generations, that they have been making a significant contri-
bution to the economic life of the? cit and that, therefore, it is unfair
and unreasonable on the part of the S _,te Government and the Muncipal
Corporation to destroy their hoilnes and deport them: A home is a
home wherever it is. The main th me {of the reply-aflidavit is that "The
slum dwellers are the sine qua min of the city. They are entitled to a
quid pro quo". It is conceded e pressly that the petitioners do not
. claim any fundamental right to live, at least to exist.

Such is the plight of pavement dwellers in Bombay.



CHAPTER IV
PRESENT POSITION

4.1. Scope of the Chapter----In this Chapter, it is proposed to examine the present
position in law as to the evictionvof slum dwellers and pavement dwellers. The most
important judgment on the subject is of 1986, which we shall examine presently!/1

4.2. The Supreme Court casefrom Bombay (l986)--ln the Supreme Court judg-
ment which was pronounced 4/2 with reference to the Bombay Municipal Corporation
Act, 1986 the writ petitions portrayed "the plight of lakhs of persons who live on
pavement and slum dwellers in the city': of Bombay" and who were described (in the
judgment) as constituting nearly half the population of the city. There were two
main groups of petitions. The first gitoupxrelated to the pavement dwellers, while
the second group related to pavement and Basti or slum dwellers.

4.3. Petitioner's contentions+--The petimfoners had asked for a judgment to the
efl"ect that they could not be evicted fnom their Bastis and squalid shelters without
being offered alternative accommodation. iThey relied» for their rights under article
21 of the Constitution. They did not contend that they had a right to live on the
pavement. Their contention was as under ':-

(i) They had a right to live (article _I of the Constitution);
(it) This right could not be exer'i ' (without the means of livelihood;

(iii) For exercising this right a d  seeking the means of livelihood, they
had no option but tol flock to big cities like Bombay which provided the
means of bare subsistence;

(iv) They chose a pavement or a slum which was nearest to their place of
work. "In a word, their plea is, that the right to life is illusory without a
right to the protection of the means by which alone life can be lived.";

(v) The right of life can.be talden way or abridged, only by a procedure
established by law. 7_This pto , ure has to be fair and reasonable, so as
to satisfy the requiretnents pf a 'cle 21 of the Constitution. The proce-
dure prescribed by thlgBoinliay § gunicipal Corporation Act or the Bombay
Police Act was arbi ijy. ' - '

(ii) The petitioners also relied on the right to reside in any part of the country,
being a right which is guaranteed by article 19(l)(e) of the Constitution.

4.4. Contention of the partie,s---The co tention of the Bombay Municipal Corpo-
ration (one of the respondents) was that w tever be the compulsion, the petitioners

had no fundamental right to s uat on or construct a dwelling on, a pavement, public road or' any other place to which tlb public had a right of access. Certain other points were also canvassed, but they not material for the present purposes.

4.5. Judgment of the Supreme Cqurt---After examining the above contentions and the relevant constitutional provisions and after quoting certain sociological literature relevant to the points at issue, the judgement of the Supreme Court'/3 laid down a number of propositions. The important propositions are summarised in the succeeding paragraphs.

. 4. 6. Article 19(l)(e)--The. Supreme ;Court held that the right conferred on citizens by article 19(1)(e) of the Cons tution to reside and settle in any part of India could not be read so as to confer a li ce toencroach and trespass upon public pro- perty. This contention of theipetitiqners', therefore, failed.

4.7. Article 21 of the Constitutioiz and the power of--Certain aspects of the, article 21 were considered. Section 8(w)?-and (x) of the Bombay Municipal Act define "street" and "public street" to include a highway, a footway or a passage on which the public has the right of passage; or access. Under' section 289(1) of the Act, all pavements and public streets vest in the Corporation and are under the con- trol of the Commissioner. -The-court heldlhnt in so far as article 21 of the Constitu-

. tion is concerned, no deprivation of life (either directly or indirectly) is involved in the eviction of the slum and pavement dwellers from public places. The court ' 9.

10

observed that the Municipal Corporation is under an obligation, under section 314 of the Bombay Municipal Act, to remove obstructions on pavements, public streets and other public places. The Corporation did not even possess the power to perimt any per son to occupy a pavement or a public place on a permanent or quasi-perma- nent basis. The petitioners had not only violated the provisions of the Bombay Municipal Corporation Act, but they had also contravened sections 111 and 115 of the Bombay Police Act. These sections prevent a person from obstructing any other person in the latter's use of a street or public place or from committing a nuisance. Section 117 of the Police Act prescribes punishment for the violation of these sections.

4. 8. Removal of obstructions and natural justice--The judgment then dealt with section 314 of the Bombay Municipal Corporation Act 1888, which authorises the Commissioner to remove, without notice, certain obstructions. The court took--the view that the procedure should be reasonablegand this implied the requirement of notice. Examining the implications of this -spction, the court expressed itself as under regarding the pavement dwellers :---,/4 » .

"But, though we do not see any jxstification for asking the Commis- sioner to hear the petitioners, gwe opose to pass an order which, we believe, he would or should h 've, ' ssed, had he granted a hearing to them and heard what we idid. K e; 'e of the opinion that the petitioners should not be evicted frqm the pair 1, nts, footpaths or accessory roads until one month after the coenflusi ntof the current monsoon season, that is to say, until October 31, 1 . In the meanwhile, as explained later, (a) steps may be taken togoffet alternative pitches to the pavement dwellers who were or who happen ,,to be censused in 1976. The offer of alternative pitches to mich paivem t dwellers should be made good in the spirit in which it was made,? thoiigh we do not propose to make it a condition precedent to the removal of the encroachments committed by them."

(a) See paragraph 4.11 infra.

4.9. Kamaraja Basti Pavement dweIlers-----As regards the "Kamraja Basti", the above direction was not to apply, becauseithe aflidavit of the Municipal Commis- sioner showed that these hutments, (400 in all), were never regularised and were serious traflic hazards.

4.10. Slum dwellers--The_court then addressed itself to slum dwellers (para 53 of the judgment) and took notice of the following factual situation :--

"The afiidavit of Shri Arvind V. Gpkak, Administrator of the Maha- rashtra Housing and Areas Development Authority, Bombay, shows that the State Government had taken a decision to compile a list of slums which were required to be removed in public interest and to allocate, after a spot inspection, 500 acres of vacant land in or near the Bombay Suburban District for resettlement of hutment dwellers removed from the slums. A census wasaccordingly carried out on January 4, 1976 to enumerate the slum dweflers spread over about 850 colonies all over Bombay. About 67% of the hutment dwellers produced photographs of the heads of their families, on the basis of which the hutments were numbered and their occupants were given identity cards. Shri Gokak further says in his afiidavit that the Government had also decided that the slums which were in existence for a long time and which were improved and developed, would not normally be demolished unless the land was required for a public purpose. In theevent that the land was so required, the policy of the State Government was to provide alternate accommoda- tion to the slum dwellers who were censused and possessed identity cards The Circular of the State Goveniinerit dated February 4, 1976 (No « SIS 176/D-41) bears out this position. In the enumeration of the hutment dwellers, some persons occupying pavements also happened to be given census cards. The Government decided to allot pitches to such' persons at a place near Malavani. These assurances held forth by the 'Govern- ment must be made good. In other words despite the finding recorded by us that the provision contained in section 314 of the Bombay Munici- pal Corporation Act is valid,_ pavement dwellers to whom census" cards were given in 1976 must be given alternate pitches at Malavani though not as a condition precedent to the removal of encroachments committed by them. Secondly, slumdwellers who were censused and were given 11 identity cards must be provided with alternate accommodation before they are evicted. There is a controversy between the petitioners and the State Government as to the extent of vacant land which is available for resettlement of the inhabitants of pavements and slums. Whatever that may bc, the highest priority must be accorded by the State Govern- ment to the resettlement of these unfortunate persons by allotting to them such land as the Government finds to be conveniently available. The Maharashtra Employment Guarantee Act, 1977, the Employment Guarantee Scheme, the New Twenty Point Socio-economic Programme, 1982, the Affordable Low Income Shelter Programme in Bombay Metro- politan Region and the programme of house building for the economi- cally weaker sections must not remain a dead letter as such schemes and programmes often do. Not only that, but more and more such program- mes must be initiated if the theory of equal protection of laws has to take its rightful place in the struggle for equality. In these matters, the de- mand is not so much for less Government interference as for positive government action to provide equal treatment to neglected segments of society. The profound rhetoric of socialism must be translated into practice for the problems which confront the State are problems of human destiny."

4. 11. Final order in the Bombay case--The final order of the court in the Bombay case was as under :--

"To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the cir- cumstances of the case; and that the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway. We have referred to the assurances given by the State Government in its pleadings here which, we repeat, must be made good. Stated briefly, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at Malavani or at such other convenient place as the Government considers reasonable but not farther away in terms of dis- tance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternative sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on whcih they stand or the appurtenant land is required for a public purpose, in which case, alternate sites or accommodation will be provided to them, the Low Income Scheme Shelter Programme which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and, the slum upgradation pro- gramme (SUP) under which basic amenities are to be given to slum dwel- lers will be implemented without delay. In order to minimise the hard- ship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until October 31, 1985 and, thereafter only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to_this Court. Pavement dwellers, whether censused or uncensused, will not be removed until the same date viz. October, 31, l985."

4.12. The question of alternative accammodation--It will be seen that in the A above judgment, while the aspect of alternative accommodation has been dealt with, the order requiring allotment of alternative accommodation seems to have been based on certainassurances given by the State Government. The court did not re-' I gard it as mandatory in every case. This is'fairly clear from the fact that the court made an elaborate note of the assurance recorded in the afiidavit of Shri Arvind Gokak. The judgment thus remains inconclusive on this aspect. It is this aspect . which we propose to take up in a subsequentvchapter 4/5.

4.13. Tamil Nadu Slum Act. The Tamil Nadu Areas (Iniprovement and Cl. earance) Act, 1971 (11 of 1971), section 11, came up for construction in another ' cse,a before the Supreme Court. 4/6 This Act has to be read with the Madras City , 12 Municipal Corporation Act, 1919, sections 220 and 222, and the Tamil Nadu Land Encroachment Act 1905, section 2. In the writ petition before the Supreme Court in the Tamil Nadu case, the petitioners had asked for a mandamus restraining the respondents (the State of Tamil Nadu) from evicting the slum dwellers and pa_ve- ment dwellers in the city of Madras, without providing alternative accommodation to 'them. There was also prayer for a writ to direct the provision of basic amenities like water, drainage and electricity to slum dwellers. It was alleged that the State Government was pressing to evict the dwellers of about 450 huts situated on the Canal Bank Road near the Loyola College. As the Supreme Court was satisfied that the Government had adopted a liberal policy towards the slum dwellers, no writ was issued. However, a direction was given not to evict the slum dwellers before 31st December, 1985. Decision in the Bombay Pavement Dwellers case 4/7 was declared as governing these writ petitions also.

The relevant statutory provisions in the Madras case as summarised in the judgment of the Supreme Court were as under :-

The Tamil Nadu Land Encroachment Act, 1905 provides by section 2 that all public roads, streets, lanes, paths, etc.-, are the property of the State Government. The Madras City Municipal (Corporation) Act, 1919 contains provisions in sections 220, 222 regarding encroachments on public streets. The Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 was passed in order to make provision for the improvement and clearance of slums in' the 'State. Section 3 of the Act contains provisions for the declaration of an area as a slum area if, inter alia, such area is or may be a source of danger to the health or safety of the public by reason of the area being low-lying, insanitary, squalid or o;ver-crowded. Section 5 of that Act empowers the prescribed authority to direct that no person shall erect any building in a slum area without its previous permission in writing. Chapter IV of the Act contains various provisions for improvement of slum areas. Section 1l(a) provides that if the Government is satisfied that the most satisfactory method of dealing with the conditions in a slum area is the clearance of such area and demolition of all the buildings therein, it may by a notifi atioh declare the area to be a slum, clea- rance area, that is to say, an area to be cl ared of all buildings in accordance with the provisions of the Act. The proviso to hat tion, which is important, requires that before issuing such notification, the , ve ment shall call upon the owners of lands and buildings in such slum area, to show cause why such a declaration should not be made and that, after considering the cause, if any, is shown by such owners, the Government may pass such orders as it y deem fit. Section 29 of the Act provides that notwithstanding anything contain in any other law for the time being in force, no person shall, except with the ptevi us permission in writing of the pres- cribed authority, institute any suit or pr0_C8C rig for obtaining a decree or order of eviction of an occupant of any btiildingjor ad in a slum area, or execute such decree or order if it is already obtained. j ' 4.14. Right to shelter----Recently the Supreme Court, while dealing with the Urban Land (Ceiling and Regulation) Act'l976, sections 20 and 21, had occasion to deal with the human need for s'helter.4/8', The observations of the Supreme Court in graphs 9 and 10 are as under :-

"9. Basic needs of man have traditionally been accepted to be three -- food, clothing and shelter. The righ tolife is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommo- dation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a 'human being it has to be a suitable accommodation which would allow. him to grow in every aspect-----phy- sical, mental and intellectual. he Constitution aims at ensuring fuller development of every child. at would be possible only if the child is in a proper' home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home parti- cularly for people in India canéeven be mud-built thatched house or a mud-built fire-proof accommodation.

"10. With the increase of population and the shift of the rural masses to urban areas over the decades-the ratio of poor people without houses in the urban areas has rapidly increased. This is a feature which has become more perceptible after independence. Apart from the fact that 13 ' people in search of work move to urban agglomerations, availability of amenities and living conveniences also attract people to move from rural areas to cities. Industrjalisation is equally responsible for concen- tration of population around industries. These are features which are mainly responsible for increase in the homeless urban population. Mil- lions of people today live on tlie=pavements of different cities of India and a greater number live 2anirnal»-like existence in jhuggis."

4.15. Other judgments--There'are a few other judgements of the Supreme Court 4/', 4/10 relating to eviction, butthey are not material for the present purpose.

'-4.1'6.- Gujarat case Interim Order---In a 'Gujarat case interim mandatory in-

-'junction was granted by lower court against 'hutment dwellers for eviction from pub-

lic roads. Interim order was passed by the;trial court directing the eviction of hut- ment dwellers. It was held to be not jtistifieil. The plaintiff had no prima facie case whatsoever, was to override the rights and interests of numerous citizens. No doubt, the hutment dwellers were occupying the public roads in contravention of some sta-

tutoryvprovisions. But, according to the Court, to evict them, would endanger.

their very "right to exist" and would encr' h upon their fundamental right to life. On the one side, there was a question of lif and death of the hutment dwellers and, on other side,'there was the question of uneconomic user of the plot by the plaintiff. The Court wasrduty bound to protect the livesrof the vast majority of the poor people, as against the profits and comforts of .a few individ uals. Thus, the balance of conve- nience was held to be not in favour of the aintiff and an interim mandatory order directing the authorities to remove encioac "ments from public roads could not be passed. '/11.

4.17. A recent Gujarat case 'of 1989---{'t may be mentioned that in a recent questions considered was asto the adti n t,' ti can be taken by a Municipal Corpo- -

Gujarat case, which involved the Mungti 'Corporation of Bhavnagar, one of the ration against alleged -trespassers on p bl' F streets. 4/1" In that case, it was con-

tended that the land in question. was apub street and the petitioners had no right ' to use the same and they could be removed by the Municipal Corporation. Exami- ning this contention, the High Court 7(pea'fiTR'z:1vani J) stated the legal position in these terms :--- i , E "The petitioners not vcj" ny legal right to occupy land of the public street. At«the hi eyifl ' d be in the position of. unauthorised occupants. Therefore, atth highest they may be described as persons . ' who have committedcivil trespass. But trespassers also have a right to be dealt with in just, fair and reasonable manner. They cannot be re- moved in high-handed, ruthless and inhuman manner, much more so when the authorities were restrained from taking action by a Court of competent jurisdiction."

4.18. Earlier Gujarat case laying down certain propositions--In an earlier case, 4/13 the Gujarat High Court (pet':Ravahi".l) has indicated what is just, fair and reaonable procedure in such type of cases; in these terms :-

"(i) The respondent-Authorities. shall not take any action of removal of the petitioners from the business premises occupied by them without affording them an opportunity of being heard.

(ii) Such opportunity of being heard would also include :

(a) notice in writing to' be 'served upon each of the occupant, cal- ling upon him to showcause as to why he should not be removed from the place in qiiestion; ,

(b) the occupant concerned shall be afforded an opportunity of leading evidence in response to the notice; and

(c) the occupant concerned shall also be afforded an opportunity of being heard in person either by himself or through an Advocate;

(iii) In case the respondent-Authorities, after the enquiry as stated hereinabove, come to the co ' 'on that the occupant concerned is required to be removed from th place, and any decision adverse to the Occupant is taken, the samejs 1 _'not be implemented foraperiod of one month from the date of conimuiiication to the occupant.

93-M/J(D)274M0fLJ&CA--2 14

(iv) The order that may be passed by the' respondent-authorities shall be served upon the occupant preferably by registered A.D. post. The same shall also be sent by an ordinary post under certificate of posting and the order shall also be aflixed on the premises in question."

4.19. Reasoning in 1989 case----The heart' of the reasoning in the Gujarat case of October 17, 1989 lies in the following passage, occurring towards the end of the judgement in paragraph 14 :

"l4. Would a citizen be not within his rights to assert that if a smuggler, a murderer or tax-evader is entitled under the provisions of the statute to say that his property be not attached without issuing seizure memo and without recording panchnama, I am an honest person doinglawful business and I am compelled to use public street out of sheer necessity and therefore please do. not remoue my property without making note thereof and without recording fpanehnama ? While doing so all that a citizen claims is equal treatment. §,In,all earnestness his claim is that,I am poor little Indian. Before youriob me of my belongings, treat me on par with smugglers, black-marlgeteefrs, profiteers, tax-evaders, murderers and dacoits. We think that thezclaiin is just and proper and no authority exercising powers under' the Cpnstlution' and a valid statute would be justified in denying thistlegitimate' laim. We are of the opinion that whenever there is no statutory pr ,isions_ prescribing just, fair and reasonable procedure for rem val. of obstructions on public street, the procedure which is meant for seizure and removal of property under the Criminal Procedure ' odb s ould as far as possiblebe made applicable to the removal of such alleged obstructions from the land of public street. Whenever it is s wnig that such procedure is not followed, the action of the authority wil ha '1 to be labelled as unjust and arbi- trary. Therefore, the submi 'on p F t the petitioners. have no right to occupy the land and therefore y _ [ be removed has no merits and the same cannot be accepted." 5 ;

4. 20. Conclu.vion---The courts have 'been making a humane approach to the problem within the limitations an A p meters of the extant law. But the law at present does not afl"ord adequate protection to the slum andpavement dwel- lers beyond making it incumbent o the consumed authorities to afford them an opportunity of hearing. The need I imposi ' 4 an obligation to provide the slum

-dwellers with an alternative accommodation or dwelling site is therefore a felt need of the times.

CHAPTER V PROVISIONS IN MUNICIPAL ACTS

5.]. Provisions in Municipal Acts---The Commission notes that in many of the Municipal Acts, there is a provision for the removal of "articles" deposited in cer- tain places, and for the removal of osbtructions. Often, it is in exercise of the powers conferred by these provisions that the Municipal Corporation takes action, with or without notice, to remove the articles and obstructions and adopts other consequen- tial measures to forcibly evict the occupants of the premises in question.

5.2. Provision in the Bombay Municipal Act-----The provisions of the Bombay Municipal Corporation Act (3 of 1988) on the subject of removal of encroachments from pavements and public streets_came up for consideration before the Supreme Court in the well known pavement dwellers' case. 5/1 These provisions (so far as material for the present purpose) areas under :--

. \ .

"Section 312. Prohibition of structures or fixtures which cause obstruction' in streets . (1) No person shall,,except with the permission of the Com- missioner under section 310 or'3l7, erect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, _drain well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion of such street, channel, drain well or ' tank". ' ' a "Section 313. Pro/tibitiiorz of deposit. etc. of things in streets. (1) 'No person shall, except with the written permission of the Commissioner------

(a) Place or deposit - upon any street or upon any open channel, drain or well in any streets (or in any public place) any stall, chair bench, box, ladder, bale 01'iOthBI' thing so as to form an obstruction thereto or encroachmént thereon."

"Section 314. Power, to rernoveiiwithout notice anything erected deposited or hawked in contratentionlofsgction 312, 313 or 313A. The Commis- sioner may, without notice, cause to be removed-- \ i

(a) any wall, fence, tail, '.,post, 7 step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the pro- visions of sub-section all) of section 312, after the same comes into force in the cityor in e stiburbs, after the date of the coming into force of the Bombay 'Municipal (Extension of Limits) Act, 1950 or in the extended subiubs after the date of the coming into force of the Bombay Municipal Further Extention of Limits and Schedule BBA (Amendment) Act, 1956.

(b) any stall, chair, 'benbh, box, laddre, bale, board or shelf or any other thing whatevefiplaced, deposited, attached, or suspensed in, upon, from or to-anyplace in contravention of sub-section (1) of section 313;' '

(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 31 3A'and ugly' vehicle, package, box, board; shelf or any other thing in or on hich such article is placed or kept for the purpose of sale:" 3 -- ' By section 3(w),."street" includes causeway, footway, passage etc. over which the public have a right of passage on acdess. t 5.3. The following extracts '4'-'tie Delhi Municipizl Corporation V_ .

Act, 1957 2- i "320. (I) No person shall, except with the permission-of the-Cam-, missioner granted in' this 116% '__erect or set up any wall', --fei|oe, s_ V 15 post, step, booth or other whether fixed or movable or' ' arises the need for affording thém two 16 of a permanent or temporary nature, or any fixture in or upon any street or upon or over any open channel, drain, wall or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy anyiportiohof such street, channel, drain, well or tank.

(2) Nothing in this sectionshzill apply to 'any erection or thing to which clause' (c) of sub.-section (1) of section 325 3-Pplies." 321- (1) No. person shall, except :wlth the permission of the Comm- 'missioner, and' on payment of .such;;£se'-as he in each case thinks fit, place 'or deposit upon any st1zeet,.oi'. uponrany open channel, drain or well in any street or uponany public place' any stall, chair, bench, box, ladder bale or other thing whatsoever: so as to form an obstruction thereto or encroachment thereon.

(2) Nothing in sub-sectioni-(1) applies to building materials." "322. The Commissioner' ' ' y,' riotice, cause to be removed-

(a) any stall, chair, , i 'x. ladder, bale 'or other ' ] ',what- soever, placed, deposited, pt jectéd, attached or suspen ed in, upon, from or to any place inicontravention of this Act;

(b) any article w at r ed or exposed for sale on any public street or' in ny ' vhf fibvlfilplace in' contravention of this Act and any vehicle,' paclta , ' x or any other thing in or on which such article is place ' 5.4.. Provision in the UP. Murticipafitfies Act ----Section 265 of the U.P.§Munici- palities Act, 1916 is another example of a provision which deals with obstructions. _ enough to quote sub-sections (1), (2) and (3) of section 265, which read as un-

"265, Obstruction of stieet. without the 'written per-_ mission of the board :-+-- -- ; 5

(a). causes or allows any; ,5 . with or without an animal harnessed thereto, tfhre n mgfland sofas to cause obsrlruction in any street onger 1, an A a necessary or loading or u oading or for taking up or settiii'g$d)<::iitLfi'passehigers, 'or

(b)_ leaves or fasteriiany. veliigle' or animal so as to cause ob- struction in any street, or' j

(c) exposes any article fdr_'?'sa, ivhetlier upon a stall or booth or in any other mariner, ii to cause obstruction in any street, or e i .- W ' « gd) dgppcsits, olra s ers, V_ 'bg,,g'fi§j$qsited, anlyrrltiuilding materials, ox, a,pactge'r _ T _,inanysee,or

(e) erects or sets up any. on 'gxerail, post, stall or any scaf- folding or any other such ' ,_ !in any street, or

(f) in any manner ofisiructs or causes obstruction to the free passage of -any _street.,:,_ shall be liable upon conviction t<;»nr]e_which may extend to five hundred rupees and in case of a contin ngshzeaeh to a further fine which may extend to ten rupees for every y alter the day of first conviction during which the offender is prqved tolhirwfls persisted in the commission of the olfence. ' j 1 ' j y (2) The board shall have remove any obstruction refer. red to in Sllb-SCCtl0l'l\,(]). and_ ~ e. pense of ~such_remova1 shall be re- coverable from the olfeizder In th ----n_ianner provided by Chapter VI. (3) The I, ower exercisable 'by _ ,,a_ board under sub-section (2_)_ to re- move obs uction from streets be exercisable for 'removal by the board of obstructfonffo 'a_ 'open's'pace-, whether vested in 'the board pr. not. whi<=.h.is- not p.r._va1ii. .I.2§<.>r>er.ty- . . . 1 5.5. ConcIusion----The aforesaid proviionasiand analogous provisions of sitnllar statutes invest wi_d powers wliich_,arp us H to for evicting. slum dwellers. iAnd,t,11c.s1_I.1m. dw. . ers. are; e1xp9§9d.tt,0.:.t._, , 259193 .1?¢nd6~f°d2¥9flfi°SS- Hence ' blqyrpzotectmn 'to the extent possible in .'< vi order to save them from destitutioti, CHAPTER VI CASE FOR EXTENDING LEGISLATIVE PROTECTION 6.1. Need for appropriate legisIation--On a survey of the material contained in the preceding chapters, we have come to the conclusion that if the right to life is to carry a meaning for the persons dwelling. in slums and pavements, its con- tent must be defined by appropriate legislation. Up to now, citizens have filed writ petitions, mostly in the form of public interest litigation, for ventilating their grie- vances in this regard. But it appears to us that tlu's has not proved to be a very satis- factory method of establishing, or getting a clarification for, citizen's rights. The judicial procedure is tardy and expensive, for nobody's fault. Ascertaining and en- forcing the remedy and identifying its precise conditions will depend upon the view the courts take of the facts and law in each case.

6.2. DI_'[ficuIties---We further apprehend that the courts would also be finding themselves faced with diflicult situations. The reason, we presume, is this. On the one hand, the provisions in enactments relating to municipalities leave almost no option to the Municipal Authority except to, take action for the eviction of un- authorised occupants of slums and paivements. On the other hand, with the expand- ing dimensions of article 21 of the ,Constitut' n (which are wide but uncertain), courts realise that life and shelter go together}. ithout a roof over the head, neither body nor soul can function effective] . To ;bah?;rce the statutory power of eviction contained in legislation relating to K/lunieipali s against the implications of the right to life is not an easy task. No doubt, go have, within the limitations resul- ting from statutory law, attempted to give reli . on some basis or the other. Some- times they are able to find that Government h' s given an assurance to help slum dwellers and on the strength of this~assurahce._.}efi'ective relief can be given by the judges. Occasionally, the courts are ble to 'giveérelief resorting to various principles regarding grant or refusal of injuncti ns or that discretionary relief. The principles of natural justice also come to the rescue 0 ;the litigant but only to a limited degree 6.3. Paramount need for enacting statripry §proviosions--It is against the back ground of this judicial scenario that {we ha , to the conclusion that the time has come to give a statutory shape to whatev ,remedies or safeguards the country may wish to incorporate in its legal; system, for safeguarding against harsh action in the shape of eviction of pavement and s1 ' dwellers. Our own view is that before they are evicted they must be offered alternafive shelter or site or facility such as sle- eping sheds like "Rain Baseras" (hereafter all ' three are referred to as facility for the sake of convenience) unless it is, in the con dered opinion of the State Govern- ment, impossible to do so or the larger public terest demands their eviction even when no alternativecan be olfered toathemxg It s also necessary to provide for their rehabilitation in case they are evicted, forftheiwhole exercise will be meaningless if they are eventually rendered roofless witiaou 'hope of succour. A provision re- quiring the State Government to rehabilit te' em is, therefore, called for. We propose to make appropriate recommeiadatj ns in this behalf hereafter. But protec- tion against eviction will prove futile if the slum dwellers are not provided with essential facilities to enable them to live asqhunian beings. The need in this behalf will be examined in the paragraphs 5to follow .3' 6.4. Withholding or denying civil: amertitias-and essential facilities, supplies and .s'ervices--The slum dwellers in occupation of their units situated within the muni- cipal limits are so often refused essential facilities, such as, civic amenities, sanitary services,'water supply, street lighting, electtici '. supply, approach road, etc. Two grounds are mentioned in order to support su withholding or denying, viz., (1) that they are in unauthorized occupation of; land and/or (2) that they do not make any contribution by way of municipal taxes, etc. 6.5. Is such refusal or denial justified-The underlying motive in seeking sup- port from the fact that the slums have been raised without authority is more often than nought to exert pressure on the slum dwellers in order to evict them. Slums come into existence because of the 'helplessness of the occupants obliged to seek shelter in a situation of desperation arising in the context of --

(1) extreme poverty, 93-wJ¢D)274Moru&cA--3 , 18 (2) migration from rural areas in order to stave off starvation and unemploy- ment in the hope to secure some employment--even if that of a fle- eting nature--and bread for the women and children of the desperate men-folk, (3) non--availability of living accommodation even of a wretched condition in the cities.

Their helplessness should evoke sympathy rather than antipathy. The compa- ratively better ofl" citizens and the local authorities owe it to their unfortunate bre- thren and sisters to emeliorate their distresslto the extent possible at least out of humane considerations. They should not, therefore, be denied essential facilities on such grounds. So long as they have to live, they should be enabled to live as hu- man beings. Besides considerations of enlightened self-interset also demand the adoption of this course. If insanitary and unbygenic conditions prevail -in the slums, they would be exposed to diseases and epidemics, which may in courseof time ' infiltrate into the other areas and cause diseases and epidemics to spread in other areas as well. Civil amenities, sanitary services, water supply, electricity and such other facilities should not be withheld to the slum dwelle1's for the aforesaid reasons.-

6.6. Need for statutory protection against »wit/zholding of essential services and fat-1'lities--,-- In order to make the statutory protection of slum dwellers against eviction meaningful and effective, it is, therefore, desirable to provide that a local authority shall not withhold or refuse to provide any essential supply or service to a slum dweller without just or sufficient cause or discontinue or cut oh" the same without giving notice to the occupant to set rightthe faillt or defect if an existing supply is sought to be discontinued or cut ofi". Minimum two months notice is what is required so that the occupier gets sufiicient time to make good the fault, defect or deficiency on the basis of which the existing supply or service etc. is withheld etc; For this put pose, "essential supply or service" shduld include water supply and conservancy and electricity services. Contravention of this provision should be visited with sui- « table penalty, as also by suitable remodi action by the civil court. Besides this,» since the matter concerns essential? servic s, there should be adequate provision for the award of interim relief for restoration of isupply by the civil court and also for passing (at the final stage) orders awarding compensation in case of wrongful dep- rivation of essential service, etc. ' - ' 6.7. Bodies other than local authorities--Sometimes, such services are provided by bodies other than municipal co ' orations dr municipal committees. They should also be subjected to the same obli-Eationsi as iteehave proposed above for local au- thorities, in regard to the provision of essential services, etc., to consumers in slum areas.

6. 8. Statutory protection to the pavement dweIlers--While the plight of the V:

dwellers is considerable, that of the -pavement dwellers is much more. They alsoneed.

protection against arbitrary deprivation of shelter for the night. Considerations .

or social and economic justice would seem tddemand that the law should stepiin to extend appropriate protection by way. of; eorporating a suitable and uniform policy on the subject. At the same time, w e providing such protection, to :1"-

must be had to the fact that there may be overricfing considerations of 'law and or" of public interest demanding urgent actionifor their removal on some or situations. A special provision will have to be made giving a .dispensing to some responsible authority, say, Commissioner of Police (or other Voflioer of corresponding status), so that the statutory protection may not result in detriment to larger public interest. -r " ' 6.9. We accordingly propose to make appropriate recommendations for acting legislation in this behalf in due course in order that aforementioned essential; facilities and services are not withheld or axistihg services are not discontinued eithet in respect of the slum area or in respect of the slum dwellers and for afibrding ap- propriate statutory protection to the pavement dwellers.

CHAPTER VII THE CONSTITUTIONAL POSITION 7.1. Whether Central Legislation is competent----It is appropriate to examine the question as regards the competence of the Centre to legislate on this subject, viz.. proposal to extend legislative protection to the flum and pavement dwellers by way of providing them an alternative site, accommodation or facility and thereby rehabilitat- ing them in the event of their being required to be evicted.

7.2. Relevant legislative entries in the Union List---The relevant legislative entries in the lists given in the Seventh Schedule to the Constitution may first be noted. The union List does not contain an entry directly and specifically applicable to the . subject, except the residurl entry 97----"Any other matter not enumerated in List II or List Ill. including any tax not mentioned in either of those Lists.

7.3. Relevant legislative entries in the Concurrent List----The Concurrent List contains the following entries, possibly relevant to the subject :--~ Concurrent List, entry l.----"Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but ex- cluding offences against laws with respect to any of the matters specified in List I or List 11 and excluding the use of naval, military or air forces or any other armed forces of the Union'in aid of the civil power."

Concurrent List. entry 2.----"CriminalProceduxe, including all matters inclu- ded in the code of Criminal Procedure at the commencement of this Constitution."

Concurrent List, entry 6.----"Transfer of ' property other than agricultural land, registration of deeds and documents."

Concurrent List, entry 7.---"Contracts . . . . . . . . .

Concurrent List, entry 8.--"Actionable wrongs."

Concurrent List. entry 13. "Civil procedure, including-all matters included in the Code of Civil Procedure atthe commencement of this Constitution, limitation and arbitration." .

Concurrent List, entry 20.--"Econorm'c and social planning."

Concurrent List, 'entry 23. "Social security.and social insurance, employment and unemployment."

In the above enumeration, all the possibly applicable entries have been listed for consideration. Qt' course, if none of these specific entries applies, then the Residuary entry of the Union List will apply, as a last resort.

7.4. Supreme Court case on land.----In,order to overcome a possible argument that the subject matter of the proposed legislation will not fall under the legislative competence of the Centre in the context of entry 18 of the State List pertaining to land, 7'2 It is enough to refer to a Supreme Court case of 1969. In that case, '"2the ques- tion at issue was a narrow one namely, whether the Centre can legislate to provide for eviction and rent control, etc., in respect of house accommodation in ca ntonments. The Supreme Court ansvs ered the question in the aflirmative, relying on Union List, entry 3----"Delimitation oi' cantonment areas, local-self government in such areas. . . . regulation of house accommodation (including the control of rents) in such areas." The control of rent, the court held, would include protection against eviction also. The Supreme Court rejected the contention that State List, entry 18 "land" would apply.

In this context, the Supreme Court did take note of the various High Court decisions as to the interpretation of the entry relating to land.

It was in this context that the court referred to the Bombay case of A.C. Patel v. Vishwanath 7/3 and then expressed itself as under :--

"The Nagpur High Court in Kewalchand v. Dashrathlal (a) proceeded on the assumption that the decision in the case of A.C. Patel v. Vishwanath 19 20 Chada (supra) correctly defined the scope of entry 2 in List I of the Seventh Schedule to the Government of India Act, and considered the narrow question whether the relationship of landlord and tenant speciflcnhy mentioned in entry 21 in List II of that Act, which covered the rcqtir} ment of permission to serve a notice for eviction in regulating the relation of landlord and tenant, and fell within the scope of entry 21, List II of in' entry 2 in List I of that Act. The court held that it substantially fell in entry 21 in List II and not in entry 2 in List I. The court did not consider it necesssy to express any opinion on the question whether the expression "regulating of house accommodation" included something besides what Chagla, C.J., had said was its ambit in the case of A.C. Patel v. Vishwana Chada(b) (supra), but expressed the opinion that the expression co_ not be stretched to include the aspect of the relation of landlord and tent t involved in that particular easy. It is clear that, in that case also, a narrower interpretation of the ex res$'on "regulation of house accommodation" was accepted, because it appears that there was no detailed discllssionsdf ' the full scope of that ezdpre 'on. "Similar is the decision of the Pa High Court in Babu Jagta d v. Sri Satyanarayanji Lakshmiji thro ' the Shabait and Manager? Jarnund Das (c). In fact, this last case not followed the decision of; theE,Bombay High Court in the case of F3 Darukhanawala v.;Kham'chan'd Lalchand (d) (supra). On the other ha , , the Rajasthan High Court in.Nawal Mal v. Nathu Lal (e) held that the power of the State Legislatur to legislate in respect of landlord and term): of buildings is to be found'in E tries 6, 7 and 13 or List III of the Seventh Schedule to the Constitution, and not in Entry 18 of List II, and that that power was circumscribed by the exclusive power of parliament to legislate on the same subject under Entry 3 of List I. That is also _the«view which the Calcutta High Court has taken in the Judgment in appeal before us.

We think that the decision given by the Calcutta High Court is correct and must be uphel ."

(a) Dashrathlal v. Kéwalband, ILR 1956 Nag 618, AIR 1956 N13

268. I %~

(b) A.C. Patel v. Visltwanath, AIR 1954 Bom 204.

(c) Babu Jagtanand v. Sri Satyanarayanji Lakshmiji, ILR 40Pat 625 -

(d) F.E. Darukhanayvaltgv. Nawal Mal, ILR 1954 Born 544.

(e) Nawal Malv. Nathu L:a1, ILR 11 Raj 421.

l f 21 We are mentioning this judgment to show the limited scope of the entry relating to 3 "land", not covering various measures which do not directly touch land.

7.5. Public premises Act.----In :1 recent case 7/4 the Supreme Court has held that the Public Premises (Eviction of unauthorised occupants) Act, 197], in so far as it relates to premises of the Government, falls under Union List, entry 32 (property of the Union . . . . . . . .) and in so far as it relates to lessees or licensees of premises of Government companies, it falls under Concmrent List, entry 6, 7 and 46. Concurrent List, entry 6 relates to transfer of property other than agricultural land, while entry 7 relates to contracts etc., and entry 46 relates to the jurisdiction of courts etc. This judgment of 1990 is confined to lincensees or lessees of premises belonging to a Govern- ment company. On that point, the Supreme Court reaflirmed the view taken by it in 1989, 7/5 holding that the Public Premises Act falls in the Concurrent List.

7.6. Social security and rehabilitation.----We now turn to the Concurrent List entry 23 which reads as under :--

"23, Social security and social insurance, employment and unemploy- ment." ' Besides this, the Concurrent List, entry 27 empowers the enactment of legislation for "relief and rehabilitation of persons dilsplaced from their original place of residenct by reason of the setting up of the Dominibns of India and Pakistan." It appears that West Bengal, Land Development and Planning Act, 1940 was held to fall under this entry (entry 27). 7/' -

In our view, the proposed legislation can be regarded as falling under "social security" on the reasoning that in interpreting Concurrent List, entry 23, one finds support from entry 27. The Constitution makers: didmot mention relief and rehabilitation in general in the Concurrent List, and concentrated on refugees from Pakistan, obviouslly because, at that time, that s the prili-X-ipal problem very much before them. cannot, however, be gainsaid t at reh bi ' ' tion of evicted slum or pavement dwellers by way of rehabilitation is an essential cbmponent of 'social security' in general. \ , 7 .7. History of social .secta'ity.--In this context, it may be desirable to examine the meaning of the expression ."socia.jl semriy." The concept of social security in a wide sense, that is to say, governmental as well as voluntary social security, has: fairly long history, because the basic ources of social welfare, viz poverty, disahilitsy, disease and dependence, are a old s , ieey itself. Initially, religion and philosophy tended to provide a framewor for e ggnduct of social welfare. 7/7 However, as society developed, there arose more syste tic responses to the factors that rendered individuals (and thus, society at large), V erable. Social securty programmes spon- sored by Government, such as :social assitlmce and social insurance, became promi- nent. While the Poor Laws in many calmtlies, including England and Germany, came.

on the statute book as early as the 16th and 17th centuries, the first general social insurance scheme appears to have been in duced in Germnay in 1883. The scheme of Chancellor Bismark (1883), for sickness i$urance by law, provided to employees (in defined types of industries), bath naedicallcare and cash benefit, during a period of sickness, to be paid for out of contrfliutiohs from both employers and employees.

This was followed by a law of 1884 hi Germany, making accident insurance: compulsory and, later, by a law providin pension for all workers from the age of 70 (1880). Germany's example? was fbll ' by Austria (1888), Italy (1893) and Sweden and Netherlands (1901). 7/3 ' ' In the United Kingdom, in 1889,, Gozvernment carried out an enquiry into the, income of 12,000 elderly perso s and in 1908, in Britain, pensions at age 70 were introduced. Later, in the Con inent,éunen1ployment insurance was introduced, in Belgium and France family allowances Etaverdprovided for.

In the United States, the Social Sécu 1 Act of 1935 provided federal grants for public assistance by(the_State toLthe ag d, , nd, disabled and dependent children and also established a federal old a e in anc scheme and federal financial backing for '7 State plans for unemployment in, uranc¢:.'/".

7.8. Beveridge Report.---A majofii , cc on world developments in the field of social security was the British Gave' j nt Report (Beveridge Report, 1942), which recommended (i) the maiintena ce : full employment as a responsibility of 7 government, (ii) family allowance for children after the first child, (iii) comprehen- sive health care for the whole population, and (iv) a unified natonal scheme of social insurance run by the State with the safety netof a unified scheme of social assistance.

P . S 22 7.9. Social securit_v benefits.------lt may be safely asserted that benefits in' kind are also a part of social security which is not expressly or impliedly restrictedto 'cash' benefits. For example, as already 1nent0ncd,7/1° the first national compulsory health insurance scheme introduced in Germany in 1883 represented a benefit in kind, and was built upon precedents going back many years in the separate German States.

In fact, National Health Schemes throughout the world are of thiee types viz ,7!"

(i) direct service approach in which the Government provides the facilities;

(ii) indirect contract with the providers, in which private hospitals or practi- tioners provide the service, but the State pays the provider for services. used, and '

(iii) reimbursement, in which the patient pays the bill and submits the receipted bill for reimbursement. The first system prevails in the United,Kingdom, the second system prevails in Belgium, West Germany and the Nether- lands, while the third system is widely used in France and some Northern Europian countries and (to some extent) in Australia and Sweden.

The first category mentioned above shows that benefits in kind have formed a part of social security. ,

7. l0. Coverages wide enough to embrace benefits in k1'nd.--The Encyclopaedia Britannica gives the following examples of social security.

"Thus, social security may provide cash benefits to persons faced with sickness and disability, uneinployment, crop failure, loss of the marital partner, maternity, responsibility for the care of young children, or retire- ment from work. Benefits may be provided in cash or kind for medical need, rehabilitation, domestic help during illness at home, legal aid, or funeral expenses. Social security may be provided by court order (e.g. to compensate accident victims), by employers (sometimes using insurance companies), by central or? local government departments, or by semi- public or autonomous agencies. (as). -

(a) Encyclopaedia Britannica, Macropaedia (1987) vol. 27 page 427.

23

7.11. I.L.(). lt'e]I0t't.----ln 1984, the International. Labour Oflice Report by ten experts was published 7312 That report set out the ultimate aims of social security as under :-

"it s fundamental purpose is to give individuals and families the confidence that their level ofliving and quality oflife will not, insofar as is possible, be greatly eroded by any social or economic eventuality. This involves not just meeting needs as they arise, but also preventing risks from arising in ' the first place, and helping individuals and families to make the best possible adjustment when faced with disabilities and disadvantages wl1ieh have not been or could not be prevented . . . . . . ..It is the guarantee of security that matters most of all, rather than the particular mechanisms such as mnlribulory or tax financing the insurance or service model of delivery, or the ownership of facilities (public/private, profit/non-profit) by which that guarantee is given . . . . . . . . ..The means should not be confused with the ends."

7.12. Provision agai/tst want the main ob/cc-tit'e.~~lt lI'01(l(l thus be evident that provision against want is the main objectjve of social .w:'u/'ity and that in the context oft/te pathetic situation prevailing in the sphere 0ffailurt' to pro ride a roof 0 var tlze heads of millions ofcitizens of India, entry 23, viz., "social security," has to be construed by making a broad, liberal, humane, and pragmatic approac/1 and interpretation.

7. l3. Residuury pom-'r.----lt may be mentioned out of abundant caution that if it is considered that entry 23 pertaining to social security is not applicable, recourse can in any case be safely made to the residuary power of the Centre to legislate under entry 97 of the Union List, viz., "Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists" in as much as neither "housing" nor 'rehabilitation of uprooted or roofless citizens upon eviction' are specified in either List II or List 11].

it would be appropriate in this connection to refer to the NC. U. Report 7/13 from which we quote :--

"l l .6. 31 Cohesive legislative support for housing has been lacking, in the Constitution of India, housing does not find specific mention. However, in so far as housing for industrial labour is concerned, item 24 of List III (Concurrent List) may be said to cover it because it deals comprehensively with the welfare of labour. This would place the subject in the Concurrent List with which both the Union and State Governments are concerned. The residual powers in relation to the subjects not mentioned in the State or Concurrent Lists, however, vest in the Union legislature. As such, the Union Government may be said to be directly concerned with the subject of housing in general."

In any view of the matter it cannot' be gainsaid that the Centre has the requisite competence to legislate on the subject in question.

CHAPTER VIII LEGISLATION PERTAINING TO SLUMS--AS IT IS---- AND AS IT OUGHT TO BE 8.1. It is somewhat unfortunate that while a number of States have enacted legislation which has addressed the problem of slums, none of these legislations touch the core of the real problem of rehabilitating the evicted slum dwellers or pave- ment dwellers who are roofless and shelterless.

8.2. Slum clearance and slum improvement---The trends--A study of action re- lating to slums in India shows that there has been a transition from slum clearance to slum improvement. This is also apparent from the course that various Five Year Plans took. As has been pointed out, 3/1 the change was occasioned by several factors. Not only the financial outlays were likely to have fallen short of require- ments if the slum clearance programme was implemented on a national scale, but also, there was resistance on the part of the population to shifting. The new units were far away from their work places and were beyond their range of availability. Land acquisition near the place of work invited intervention at the instance of inte- rested parties, with the result that the progress was baulked.

Gradually, there arose the minimum needs programme (MNP), whose object was to maintain basic levels of social consumption of goods to all citizens and to level up regional imbalances in the distribution of basic social services. This em- braced, 8/Zinter alia, environmental improvement programmes.

8.3. The existing legislations are essentially aimed at protecting the tenants of privately owned structures or chawls which are in uninhabitable conditions. The legislations have presumably been necessitatedby reason of the fact that the owners or landlords of such structures are not interested even in maintaining these properties in a habitable condition as it is either unprofitable or unpractical to do so inter alia in the context of the rent-restriction legislations.

8 .4. Some of the factors which operate on their minds can be visualised :--

(l) While building material costs and labour costs have risen by several hundred per cents, the rents have been pegged at pre-inflation levels. It is, therefore, economically a losing proposition to spend funds on main- taining or improving such properties.

(2) If the tenants get exasperated and vacate, the landlord would be enabled to pull down the structures and sell the land at handsome prices fetched on account of the dizzy heights attained by land prices.

(3) Some owners may not have financial resources to develop the properties even if they were desirous of doing so.

8.5. Be that as it may the fact remains that such structures or chawls pose danger to the occupants/tenants inasmuch as these are liable to collapse and result in loss of life or are rendered unfit for habitation on account of falling in disrepair and/or prevailing insanitary conditions giving rise to diseases and epidemics. It is subs- tantially to overcome such a situation that most of the legislations are enacted, as will be disclosed by a synopsis of such legislations. (see Appendix to the report).

8.6. So far, so good. But the legislations do not aim at rehabilitation of citi- zens living in slums which have mushroomed around cities and towns. Such slums have cropped up mostly on public lands belonging to municipal authorities or on open unbuilt lands which have been encroached upon by the very poor sections of the citizens who are roofless and shelterless.

8. 7. The community cannot afford to be unconcerned, insensitive or indilferent to the problem of such citizens without qualms of conscience, particularly as the Directive Principles of State Policy enshrined in articles 38, 39, 41 and 43 of the Con- stitution of India enjoin the community to endeavour to rescue them from their plight.

24 25

8.8. It is, therefore, necessary to enact a legislation which will provide them guc- cour by protecting them from being obliged to treat the open skies as roofs over their heads or their huts being razed to the ground by civic authorities without providing them or at least without making the maximum eflbrt to provide them with alternative facilities in place of the huts or footpaths from which they are evicted' 8.9. It is such legislation for rehabilitation of the roofless that slum clearance legislation having a positive perspective and positive thrust must aim at instead of being contented by legislation protecting them from the privately-owned slums. And that is the thrust of the legislation proposed to be recommended by the present: report.

93IM[J(D)274M0fLJ&CA---4 CHAPTER IX CONCLUSIONS AND RECOMMENDATIONS Conclusions 9.1. With nearly 3.5 crores of citizens of India living in sub-human condition in slums and on pavements of metropolitan cities of India, the rest of the members of the community cannot sleep in peace with an easy conscience. In any event the community cannot watch their plight nonchalantly when the slum and pavement dwellers are evicted by the local authorities without providing them any alternative facility even from these slums and pavements, so often, razin g their huts to the ground with the help of bulldozers in the course of their slum removal operations.

11

9.2. The existing slum clearance legislations enacted by different states by and large focus on protection of tenants of privately-owned uninhabitable chawls, owners where of are not interested even in maintaining the same in habitable conditions, inasmuch as these are liable to collapse and result in loss of life and/or are rendered unfit for human habitation on account of falling in disrepair and in order to remedy prevailing insanitary conditions giving rise to diseases and epidemics.

III 9.3. Presently there exists no legislation aflbrding any protection to the slum and pavement dwellers in the event of their being evicted from these slums or pave- ments by the local authorities, apart from the fact that there is no social security scheme designed to rehabilitate them on theirieviction. There is, therefore, a pres- sing need, in the light of constitutional values, humane considerations and as a matter of social justice, for insertin into our legal system a requirement by way of a central legislation to the efl'ect that efore slum dwellers are evicted by local authori- ties, it shall be the duty of the concerned local authority to provide alternative site, accommodation or facility to such evictees, and providing that the pavement dwellers are not disturbed unless it is inevitable to do so in the context of some emergent situation.

IV _ _ 9.4._ It will also be appropriate to provide that slum dwellers are not denied civic faClIitiCS' such as water supply, street lighting, electricity, etc., on the ground that they are in illegal occupation of the land' on which the slums have come into existence.

Recommendations I

9. 5. It is therefore recommended that a central legislation be enacted providing that notwithstanding any provision contained in any local law, slum, dwellers shall not be evicted without providing to them alternative accommodation by way of a site for shifting their huts or other accommodation or facility so as not to render them shelterless or roofless. Such alternative accommodation, site or facility ofi'ered for rehabilitation shall be within as short a distance as may be reasonably practicable, having regard to the circumstances, of the place from where the slum dwellers are sought to be evicted. In the event of any dispute as to whether the alternative ac, commodation, site or facility is within such reasonable distance of the said lace, the decision of the District Judge of the Court having jurisdiction in respect o the con- cerned area shall be final.

II 9.6. It appears that a provision absolutely prohibiting the eviction of a slum dweller etc., unless alternative accommodationisite or facility is provide, might not be workable in practice, and that there should be some power in the Government to dispense with the proposed statutory requirement in appropriat cases. in our opinion, the best course would be to invest the State Government with the power to dispense wtth the proposed statutory requirement of providing alternative accom-

mo_dation or facility to the proposed evictee if two conditions are cumulatively satisfied, namely z---

26

'27 ('1') the State government is satlsiieduthat it is not reasonably practicable, in the circumstances of the case, to provide alternative accommodation, site or facility as envisaged by the proposed provision, and

(ii) the State government further records in writing its satisfaction that public interest demands that such eviction, resulting in rendering the- occupants roofless, requires to he proceeded with, notwithstanding the..fact that alternative accommodation or facility cannot be provided by thegoncerned local authority or the State Government. .

III 9.7. It may also be provided that the protection provided by these provisions shall apply to all slums existing on the date of the enforcement of the Act and to new slums which come into existence thereafter provided the said new slums have existed for at least six months immediately preceding the date of service of the notice on the occupants for taking action by the concerned local authority. "

. . . IV'- _ ._

9. 8. It is also desirable to ensure by law that essential services or facilities are not denied or cut off to occupants of slums on the ground of their alleged illegal' occupation. The provision could be on these lines :-

(i) No local authority or other public body, either itsel_f_9,r through any person purporting to act on its behalf, shall, without just and suflicient cause other than that the concerned slum dwellers are in illegal or unauthorized occupation of any land,----

(a) withhold, deny, refuse to provide any essential supply or service to any slum locality, or

(b) cut ofi' or discontinue any such existing supply or service enjoyed by the occupant of any premises in a slum area in respect of the premises so occupied nor shall the supply or service be withheld without serving on the concerned occupants a notice giving clear two months.' time to comply with the notice requiring the occupant to remove the cause set out for the proposed action.

(ii) If a local authority or local body contravenes the above provision, the occupier may make an application to the competent civil court, complain- ing of such contravention.

(iii) _If the civil court is primafacie satisfied that the local authority has acted in contravention of the aforesaid provision, the court shall direct the local authority concerned to provide or restore the supply pending inquiry.

Such order may be passed without notice but may be confirmed, varied or vacated after notice and hearing.

(iv) If the civil court, on inquiry, find that any essential supply or service was denied, withheld or refused to the occupier or if any such supply or service enjoyed by the occupier in respect of the premises was cut off or withheld by the local authority in contravention of the aforesaid provision, it shall make an order directing the local authority to restore such supply or service.

(v) Without prejudice to the above provisions, the civil court may, in its dis- cretion, direct that appropriate compensation not exceeding one thou- sand rupees be paid to the occupier by the local authority if the local authority had cut off or withheld the supply or serviceor failed to provide such service in contravention of the said provision.

For _this purpose, "essential supply or service" will include supply of water, electricity, conservancy and sanitary service, and street lighting or lighting in the slum area.

As regards execution of the order passed by the competent civil court for granting of or restoration of essential supply or service, a penal provision may suflice in the following terms :--

".Penalty for contravention of the aforesaid provision--If any local autho- rity or any officer thereof contravenes the provisions of section.. . or 28 contravenes any order passedby the court in this connection, it or he shall be punishablewitzli imprisonment for a term which may extend to three months, or with fine, or with both."

V 9.9.' The proposed legislation' pertains to' eviction by the local authorities. Of course, this expression, as defined in General Clauses -Act, 1897, will cover a variety of urban and rural institutions of local self government as also Cantonments.

Incidentally, it may be mentioned in regard to Cantonments that the legislative competence to regulatetheir powers and functions is vested in Parliament under Union' List, entry 3, which reads as under :----~ "3. Delimitation of _the_ Cantonrnent areas,_ Local Self Government in such areas, the constitution and pbwvers within such areas of Cantonment authorities and the regulatioifof fliouse, accommodation (including con-

trol of rents) in such areas. (3) (2436 sgsmdu Bhushan v. Rama; Supniari, 1969 (2) scc 289, 292, 293, 294, 0 9 L ' ' ' , 29 VI

9. 10. Need for provision regarding rehabiljtqtion--The Commission is further of the view that in order that the object of providing of social security in the matter of housing may be effectively achieved, it is necessary that if a person dwelling in a slum area is evicted, then the State should provide for appropriate rehabilitation of the person evicted. Our detailed recommendation on this point may be stated as under :

lf alternative accommodation under the recommendation already made in the provision proposed to restrict eviction cannot beimmediately provided, the State Government (even if-tit grants permission for eviction) shall, within a reasonable period not exceeding one year in any case, make arrangements for the rehabilitation of the persons evicted in regard to housing, and in making suchpaflei-native arrangement, the State Govern- ment shall, as far as is reasonably practicable, have regard to the factors specified in the proposed provision relating to restriction on eviction without alternative accommodation. ' e .

V]! 9.11. For pavement divellers-Statuti_>izs protection shouid_bc extended to the avement dwellers by providing that nohvit _ tending any provision contained in any focal law for the time being in force, no person using a pavement for shelter or for sleeping or taking refuge shalltbe evicted therefrom unless the_ Commissioner of Police or his deputy authorized in this has recorded his satisfaction in writing that it is essential to do so for either maintaining law and order or on the ground that public interest so demands having regard to some special circumstances or to deal with a situation calling for urgent action in this behalf.

9.12. These recommendations, if and when accepted and acted upon, we trust, will alleviate the distress of the lucldess slum dwellers and pavement dwellers, to the extent possible by legislation.

We recommend accordingly.

(M.,P. IHAKKAR) CHAfltMAN (Y. v. ANJANEYULU) (P. M. BAKSHI) MEMBER » Maire;-:x (G.V.G. I§R1S£-EIAMAURTY) Member Secretary Member New DELHI, oxreo THE zorii Daciniaea, I990:

Notes and References _ Chapter 11 2/1. Muttalib and Mohd Akbar Ali Khan, Public Housing, published by Regional Centre for Urban and Environment Studies (1986) page 4, para 1.9.

2/2. Muttalib_ and Mohd Algbar Ali Khan, Public Housing published by Regional Centre for Urban and Environment Studies (1986), page 3, para 1.8.

2/3. Cherunilam and Heggade, Housing in India (1-987) page 49. 2/4. Oxford Advanced Lea.rner's Dictionary of Current English. 2/5. Socio-Economic Survey of Slums in Old Delhi cited in Andrea Menefee Singh, "Poverty and Slum Dwellers in Urban India--Some Urgent Research and Policy Considerations", (April- _ June 1978) Social Action, page 165.

2/6. Paper on Urban Poverty in India; Policies and Programmes, by the Centre for Environmental Planning and Technology, Ahmedabad, published in National Commission on Urbanisation, Report (August 1988), Vol. V, Part II pages 59, 60.

2/7. National Commission on Urbanisation Report (August 1988) Vol. V, Part II, page 60.

2/8. Paper on Urban Poverty in India : Policies and Programmes, by the Centre for Environmenta ' Planning and Technology, Ahmedabad published in National Commission on Urbanisation, Report (August .1988), Vol. V Part II, pages 55 to 59.

2/9. Cherunilam and Heggade, Housing in India (1987) page 52.

2/10. Report of the National Commission on Urbanisation (Aug 1988) Vol. II Part III pages 94, 95 para5.7.l to5.7.3,5.8.3,5.9.1. - ~ 2/ ll. M.C.K. Swamy, "Slums : ruralisation of Urban India" (April, June 1987) Nagarlok 22, 24 2/ 12.' TCPO Ministry of Works and Housing, A Compendiumpon Indian Slums (1985).

2/13. l2{9.K3.0Awasthi, "Urban Development in anlndmtrial City" (April, June 1984) Nagarlok 20 Chapter 111 3/1. P.K. Muttagi "Urban Poverty : The Bombay Scene (October--December 1988)" 111, 114- 115 Nagarlok. ' 3/2. Olga Tellis v Municipal Corporation of Bombay, AIR 1986 SC 180, 201 para 50.

3/3. Olga Tellis v Municipal CorporationAofBombay, AIR 1986 SC 180, 190 para 23.

3/4. Olga Tellis v Municipal Corporation ofBomba1>, AIR 1986 SC 180, 187, para 16.

Chapter I V ' 4/1. Para4.2, infra.

4/2. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 to 204. 4/3. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 to 204. 4/4. Id. p. 202 para 51. 4 ' - 7 ' 4/5. Chapter VI, infra ' ~ 4/5. K. Chandru v. State of Tamil Nadu, AIR 1986 so 204. 4/7. Olga Tellis v. Union of India, AIR 1986 SC 180.

4/8. Shantistar Builders v Narayan Khimji Totame, AIR 1990 SC 630, 633 paragraphs 9 and 10 (Bench of three Judges Ranganath Mishra, P.B. Sawant and K. Ramaswamy, JJ.) (April issue).

4/9. Karanjan Jalasay Y.A.S.A.S. Samiti v. State of Gujarat, AIR 1987 SC 532.

4/10. Banwasi Sewa Ashram v. State of UP, AIR 1987 SC 374.

4/11. lS{urat lVI}1;1icipal Corporation v. Rameshchandra Shantilal Parikh, AIR 1986 Guj 50 (A.P avani, . . ' 4/12. Municipal Commissioner, _Bhavnagar Municipal Corporation v Nandumal, Letters Patent fi;)g%eaC]Nu(;i 246 of 1989, decided by A.P. Ravani and J.U. Mehta, JJ (17 October 1989) Gujarat 1 o .

4/13. Nehng Marg Cabin Association v. Modasa Nagar Palika, 29(1) : 1988(1) GLR 441 pp. 444-445 para .

Chapter V 5/1. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. 5/2. Section 320 to 322 Delhi Municipal Corporation Act, 1957 (66 of 1957).

30

\ 31 Chapter VII 7/1 "18. Land, that is to say, rights in and overland, land tenures including the relation of landlord 7/2.

7/3.

7/4.

7/5.

7/6.

7/7.

7/8.

7/9.

7/10.

7/11.

7/12.

7/13.

and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonisation."

lndu Bhi/ishan v Rama Sundari, (1969) 2 SCC 289, 298, 299 para 14, followed in Saiyada v.

Hindustan Steel, (1989) 1 SCC 272, AIR 1989 SC 406.

A.C. Patel v Vishwanath, AIR 1954 Born 204.

Asimka Marketting Ltd v Punjab National Bank, JT 1990(3) SC 417 to 447 (issue dated 13 August 1990).

Savida Mossare v Hindustan Steel Ltd. (1989) SCC 272, affirming L.S. Nair v Hindustan Steel AIR 1980 MP 106.

Benoy Krishna v State of West Bengal, AIR 1966 Cal 429, 430, para 5 (D Basu J). Encyclopaedia Britannica, Macropaedia (1987), Vol. 27 page 421.

Encyclopaedia Britannica, Macropaedia (1987), Vol. 27 page 429, 435, 436.

Encyclopaedia Britannica, Macropaedia (1987), Vol. 27 page 429.

Paragraph 7.7 supra.

Encyclopaedia Britannica, Macropaedia (1987) vol. 27 pages 435, 436.

Inteingtsignal Labour Ofiice into the Twenty-first Century, The Development of Social Secu- rity 'l .

National Commission on Urbanisation Report, Vol. II, Page 219 (August 1988).

Chapter VIII 8/1.

8/2.

Paper on Urban Poverty in India : Policies Planning and Technology. Ahmedabad print Report (August 1988), Vol. V Part II, page 44.

National Commission on Urbanisation, Report (August 1988), Vol. V Part II, an:lJ)i_'ogram_mes by the Centre!' or Environmental, in National Commission on Urbanisation, 46.47 (Paper on Urban Poverty in India : Policies and Programmed, by the Centre for Environmen-

tal Planning and Technology Ahmedabad).

APPENDIX (Refer para 8 . 5) SYNOPSIS OF LEGISLATION RELATING TO SLUMS

1. The Central Act of l956--In order to understand the scope of the present legislation relating to slums, it may be convenient to have a brief look at the relevant enactments. It may be mentioned that the Central Act on the subject--the Slum Aieas (Improvement and Clearance) Act- (96 of l956)--does not extend to the States, but extends to all Union Territories except Andanmn and Nicobar Islands and the Lacca- dive, Minicoy and Amin divi Islands. Section 3 of the Act gives power to the compe- tent authority (that is, the authority appointed by the Administrator) to delare certain areas as slum areas. Section'4 gives the icompetent authority power to improve buildings unfit for human habitation and section 6A gives power to the competent authority to enforce restrictions onthe erection of buildings 'in slum areas. Section 7 gives to the same authority power to order the demolition of buildings unfit for human habitation. Sections 9 and :10 of the Act give power to issue a slum clearance' order. Section 12 gives to the Central Government power to acquire land in order to enable the competent authority to execu works in slum areas, subject to the pay- ment of compensation. Section 19 prohiv its the evictionof tenants in slum areas, without the previous permission of the competent authority.

Section' 19(4) of the Central Act of $56 rovides that in granting or refusing to grant such permission, the competent ah ity shall take into account the follow- ing factors, namely :-- ' A

(a) whether alternative accommodatiofi within the means of the tenant would be available to him, if he:were evicted;

(b) whether the eviction is in the interest of improvement and clearance of the slum areas;

(c) such other factors, if any, as may be prescribed.

2. By section 20 of the Central Act of 1956, an appeal can be filed by a person aggrieved by the refusal of the competent authority to grant permission for evic- tion. Section 20A provides for the restoration of premises vacated by the tenants in a slum area, who vacate or are evicted, for :efl"ecting improvements. Section 20B imposes certain restrictions regarding the rentgof buildings in slum areas, let out to the tenants after the execution of 'the work (If improvement or after thevbuilding has been re-erected. .

' 3. Objectives of the Central Act of 1956 : aspect of alternative accommodation----It ' would appear that the Supreme Court, in' one of the Cases decided under the Slum Areas (Improvement and Clearance) Act; 19%, had occasion to deal with the ob- jectives of the Act of 1956 in these terms 4/1 :-

"The Act, no doubt, looks at the problem not from the point of view of the landlord, his needs, the money he had sunk in the house and the possible profit that he might make if the house were either let to other tenants or was reconstructed and let out, but rather from the point of view of the tenants who have no 'ialternative accommodation and who would be stranded in the open if an order for eviction were passed. The Act itself contemplates eviction in cases where on the ground of the house being unfit for human habitation it has to be demolished . . . . . . ..(and) would seem to suggest that the slum dweller should not be evicted unless alternative accommodation could' be obtained for him".

4. Restoration of possession under Central A¢t.--In 1964, Parliament, by a mending Central Act of 1956, made provisions regarding restoration of possession of per- mises vacated by a tenant under the Act: and} for the rent of building in slum areas (newly inserted sections 20A and 208.) Section} 20A reads as under :--

"20A. (1) Where a tenant in occupation of any building in a slum area vacates any building or is evicted therefrom on the ground that it was- iequired for the purpose of executing any work of improvement or for the 32 33 purpose of re-erection of the building, the tenant may, within such time as may be prescribed, file a declaration with the competent authority that he desires to be replaced in occupation of the building after 'the comple- tion of the work of improvement or re-erection of the building, as the case may be.

(2) On receipt of such declaration, the competent authority shall _by order require the owner of the building to furnish to it, within such time as may be prescribed, the plans of the work of improvement or re-ercc; tion of the building and estimates of the cost thereof and such other parti- cular s as may be necessary and shall, on the basis of such plans and esti- mates and particulars, if any, furnished and having regard to the pro- visions of sub-section (3) of section 20B and after holding such inquiry as it may think fit, provisionally determine the rent that would be, pay- able by the tenant if he were toibe replaced in occupation of the building in pursuance of the declaration made by him under sub-section (1).

(3) The rent provisionally determined under sub-section (2) shall be communicated in the prescribed manner to the tenant and the owner.

(4) If the tenant after the receipt of such communication intimates in writing to the competent authority within such time as may be prescribed that when he is replaced in occupaton of the building in pursuance of the declaration made by him under sub-section (1), he would P35' t0:the owner until the rent is linafiy determined Under section 20B the-renat provisionally determined under sub-section (2), the competent authority shall direct the owner to place the tenant in occupation of the building after the completion of the work of improvement or re-erection of the building, as the case may be, and the owner shall be bound to comply with such direction."

5. Andhra Pradesh Act,----The Andhra Pradesh Slum Improvement (Acquisition of Land) Act (33 of 1956) provides for the dearance of slain areas in the State. Sec- tion-3 gives power to the State to acquire land when the State Government is satisfied that any area is, or may be, a source of dfler to the public health, safety or con- venience of the inhabitants by reason of area being low lying, insanitary etc. . The area so declared becomes _a "slum age", as defined within the meaning of section 2 (f) of the Andhra Pradosh Act. Acquisition of land in such area is subject ' to compensation. The Act makes certainother connected provisions.

6. Assam Ac.-t--The Assam Slum Areas (Improvement and Clearance) Act, 1959 (12 of the 1961) (the Act was published hi the Assam Gazette in May 1961) mainly provides for the following matters' :-.- - g

(i) declaration of the slum areas by the State Government, on report of-the authority appointed under the Apt or on otlisliinforination (section 10);

(ii) improvement of building or landfunfit for human habitation, a direction ~ regarding which may :be given by the competent authotitit. ($333501! :1 1);

(iii) power of the empowered authoribi to order the demolition of 'a which is unfit for human habiafion (section 14); -V:

(iv),powcr ofthe State Go _ tVtodieclareaslumareeto.beac1earance' area. (section 16), whereafid ' clearance order can be-issued (section and measures can be redevelopment of the land (section

(v) power of the State Gpver ' land upoii!_a_i'ppi-eaentation from the empowered an improvements in islunf' _ , ' The (Assam Act does not appear any ptovisismz eviction 5 i it v < in slum areas. ' H

7. The Gujarat Act--The G 3' i} la -.

'£1.-?"l.'i§,**'? ~' 1?!'°'!ii9!i|. 3 " 3;! slum area.

'' Im Redevelopment) Act,_'1973 conta , ( Kpmvgmmg ' ' me' and e (a) power .,of the State Gbverniaanéiie.' ]';',.f..

' ~ under section 3; ». ; p _..I,_ 2. _

(ii) provision for registrationiiflbuililings in diam trees-1 under section 4;. V 34 i S F V" (:2) 'power of the prescribed authority to restrict erectin of buildings in slum areas without its permission under section 5;

(d) power of the prescribed authority to require execution of works for im- provement of slums under secton 6;

(e) power of the prescribed authority to order demolition of buildngs unfit for human habitation under section 9;

(f) power of the State Government, on a report from the Slum Clearance Board, to declare any slum area to be a slum clearance area under section 11 and power of the prescribed authority to redevelop a clearance area under section 15; A .

(g) transfer of land to previous occupants under section 16;

(h) prohibition against eviction of tenants in slum areas without permission of the prescribed authority under section 17;

(i) restoration of possession of premesis"va'cated by a tenant evicted from a » building in a slum area under section 18; '

(j) exemption of buildings belonging to the State Government or Slum Clear- ' , ance Board or lo_cal authority from the prohibition against eviction under section 20; . p p (k) offences by companies, for which provision is made in section 51.

8. Previous occupants under the Gujarat Act---The Gujarat Act (in the Chapter on Slum Clearance and Redevelopment) contains the following provisions regarding previous occupatns:-----

"l6.'Rules to provide for 'transfer to previous occupants.--Subject to the provision of this Act, the State Government may, by rules, provide for or regulate the transfer of persons who immediately before the declaration of any_slum area to be a slumrdearanoe area, were occupying lands or buildings in that area to lands or bufldings in any other area or to lands or buildings in such slum clearance area after its re-development and the conditions of such transfer." _

9. Alternative accornmodation under the Gujarat Act.--Notice must also be taken of the fact that in granting permission for eviction of tenants in slum area, the pres- cribed authority is required to comply with section 17(4) of the Gujarat Act, reading 'as under :-

"(4) in granting or refusing to grant under sub-section (3), the prescribed authority shall take into account following factors, namely :---

(a)'whether altemativmaccomtriadation within the -means of the tenant would be available to if he were evicted;

,; i ' '(i ); whether 'the eviction is in_:,the_ interest of improvement and " "clearan'e'e'of the area;' " 4 '-D ' . V, ;(c) such other factors, if any, as may be prescribed."

10. Restoration under the .Giq'a_rat A_ct-.-+Th9 Gujarat Act in section 18 further contains a provision for the restoration of possession of permises vacated bya tenant, as under :-- ' ' . l8. Restoration of possession a _ p ' tapes vovoted by a tenant.--(l) Where ' a tenant inoccupationpf any 'til #8'... :3. sum area vacates anybuilding or is evicted therefrom on , that it is required for the purpose of executing any work of imptav me or for the purpose of re-erection ' of the building, the tenantg may, withinsuch time as may be prescribed, * "file a declaration with the' reset _ ianthority that he desires to be re- ' "placed in' occupation of =_th, b ' g j , _''thecompletion of the work of improvement or re-erection of the b ' as the case may be.

' e.(2);_On receipt, of such declaration, the escribed authority shall, by order, require the owner of the hli ' S -to urnish to it, within snchtiine as _ 'may be prescribed, theplans of the Ark of improvement or re-erection' "of 'the'building and estimates of . st' thereof and such other parti- culars as 'maybe necesjsaryanrl £1311,' "basis of such plans and esti- 'Lmates and Iparticulars furiiished, if --a, ',4 and having regard'to'--tlie pro-' visions of sub-section (3) of section l'9jan.d after holding'auc'h=enquiry as

-it may think fit, provisionally cbtprmhe the rent that would.be_ ayable 'by th! tenant if he were to here lacqgliin occupation 9_f'th_n=buifiling.in pursuance of the declaration ma by him under sub-section (1), 35 (3) The rent provisionally determined under sub-section (2) shall be communicated in the prescribed manner to the tenant and the owner.

(4) If the tenant, after the receiptof such communication, intimates in writing to the prescribed authority within such time as may be pres- cribed authority within such time as may be prescribed that when he is replaced in occupation of the building in pursuance of the declaration made by him under sub--section(1),he would pay to the owner, until the rent is finally determined under section 19, the rent provisionally deter- mined under sub-section (2), the prescribed authority shall direct the owner to replace the tenant in occupation of the building after completion of the work of improvement or re-erection of the building, as the case may be, and the owner shall be bound to comply with such direction."

ll. Madhya Pradesh Act----The Madhya Pradesh Slum Improvement (Acquisi- tion of Land) Act, 1956 mainly provides, by section 3, for power to acquire land more or less on the same lines as the Andhra Pradesh Act. A/2 . The rest of the;

Act in Madhya Pradesh contains connected provisions.

12. Maharashtra Act, l97l----{i) Under the Maharashtra Slum Area (Improve- ment, Clearanoe and Redevelopment) Act, I971 (Act No. XXVIII of 1971) the com- petent authority, upon report from any of its ofiioers or other information in its po- ssession, may declare in regard to any area that the buildings in that area are unfit for human habitation by reason of dilapidations, overcrowding, faulty arrangement and design of such buildings, narrowness of faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detri- mental to safety, health or morals. v

(ii) Chapter 3 of the Maharashtra Act provides for slum improvement. On satis- faction of the competent authority, that autrority may issue a notice to the owner of the building for the execution of the wor of improvement. If the owner fails to do so, the competent authority can undertake the work of improvement and recover all expenses with interest from the owner as arrears of land revenue. However, under section 6, where the owner has not in his hands suflicient money to satisfy the whole demand of the competent authority, his liability shall be limited to the total amount of the money which he has in his hands. '

(iii) Where the competent authority is satisfied that any building in a slum area is unfit for human habitation and is capable, are reasonable expense,.of being rendered so fit, the competent authority may order demolition of the said building after follow- ing the prescribed procedure.

(iv) Chapter 4 of the Maharashtra Act is concerned with slum clearance and re- development. Under section 11, the coinpetentauthority has-power to declare any building unfit for human habitation or dangerous or injurious to health, through" wide _ publicity in the prescribed manner. _ The competent authority may also require such buildings to be vacated within the stipulated period, after the confirmation oi': the order by the Admirustrator, Under section 12, the Administrator may either confirm the order in whole or subject to such variation as he considers necessary; or -eject the order. Any person ' by the order of the Administrator may, ' wit; 'n six weeks of the publication of the notice, prefer an appeal to the Tribunal constituted under the Act, and the deci- sion of the Tribunal shall be final. A

(v) Chapter 5 of the Maharashtra Act deals withthe acquisition of land. Under section 14, the State Government may ac nice the land of slum areas, after paying the compensation as laid down in the Act. e basis for determinationcf the compensnc tion will be an amount equal to 60 times of monthly income actually deriv- ed from such land during the period of the 5 ctgnsecutive years immediately the date of publication of the notice. As r section 19, the competent an rity, on behalf of the State Government, shall fityment of compensation to the person entitled thereto.

(vi) Chapter 6 of the Maharashtra Act provides for the protection ofsmmnu in slum areas from eviction. According to section 12, no proceeding for should be taken except with the previous permistion in of the -com ' t authority. An'appea1.lie_s to the Tribunal in certain miles.) The decision of £116 'burial shall be I _.

final.

36

:(vii) Smtion 24 of the Maharashtra Act provides for restoration of premises tothe tenants. Where a tenant vacates any building,_or is evicted therefrom on the ground that the building is required for the purpose of ie-erection of the building, the "tenant may, within such time as may be prescribed, file a declaration with the competent authority to the effect that he desires to replaced in occupation of the building after the re-erection of the building. On receipt of such declaration, the com- petent authority may ask the owner to furnish the plans of re-erection of the building and an estimate of the cost thereof. Under section 25 of the Maharashtra Act, the rent after re-erection shall be determined in accordance with the section.

(viii) Chapter 7 of the Maharashtra Act contains miscellaneous provisions like powers relating to entry and inspection of the building. Further the competent autho- rity has power to remove olfensive or dangerous trade from slum areas.

LEGISLATION RELATING TO SLUMS V 13. The Punjab Act----The Punjab Slum Areas (Improvement and Clearance Act (24 of .1961) provides for the following important matters :-

(q) declaration of certain areas as slum areas by the competent authority under section 3; '

(b) power of the competent authority to require the improvement of buildings unfit for human habitation (sections «fiend 5);

(c) power of the competent authority to order the demolition of buildings unfit ' for human habitation (section 7) ;'

(d) power of the competent authority to :declare any area to be a clearance area (section 9); ' '

(e) power of the State_Goveijnment_to acquire land in order to enable the empowered authority to execute any 'work of improvement in relation to any building in a slum area or to, itdevelop any clearance area under section 12; ' (1) prohibition against eviction of tenants in slum areas without permission of the competent authority uncbr motion 19, subject to the exception pro- vided by section 21 in respect of ';the Egsiption of a tenant from any build- ing in a slum area belonging I10 the State Government or any local authority.

"'14: The U.P. Act--The U.P. Slum Areas giflmprovement and Clearance) Act (18 of 1962) makes the following principal provisions z.---

(a) declaration by the competent authority of the slum areas under section 3;

' (b)' power of the competent authority ' o _ "rethe improvement of any build-

' " _' ing in' a slum area which isunfit or an habitation or any land in that ' areajwhich requires any wot]:-.ofiimpbrovement, under section 4; e

(c) power of the competent authority to order the demolition of any building' »_ - . within a, slumarea which isunfittforj M _ n habitation under section 8; e ' .(d).power:of'the competent authori ' to ' _, .any_sl_um area to._'be aclearanoe area under section 10 and to r yelo _y {the area under section 15 ;

(e) power of the State Government to land or building in a slum area or in a clearance area for certain purposes under section 17 ;

(f) prohibition against eviction of tenants in slum areas without permission of the competent authority under section 23 (there does not appear to be any exception for'Governtnent.b,liildgs) ;and 1 ,

(g) Power _of the State Government" to' notify any trade as otfensive or abnoxious to the health etc. of the sons residing in a slum area; followed by the power of the cqm ' _t authority to direct removal of such trade etc. under section * 9:

Tamil Slum Arms (fmproltemcifi Clearance Act, 1971) The Tamil Nadu Act of 1971 relating to urns makes the following main provisions ':---

~" (a) declaration by'the State Government (of slum. areasunder section 3; V i f (b) registration of buildings in? slum ateatiunder section 4, which must be A I ; readrwith section 5; empowering theipreseribed authority. to disectthat no person shall erect a- buildingfin ii slum area without its'prcviou: permission; '. V ' 37 (C) power of the prescribed authority to require execution of works of improvement in a slum area under section 6;

(:1) power of the prescribed authority to order demolition of buildings unfit for human habitation under section 9; '

(e) power of the Govenrnent to declare any slum area to be a slum clearance area under section 11;

(f) power of the prescribed authority to redevelope' a slum area under section 15;

(g) transfer to previous occupants--section 16;

(h) power of the State Government to acquire land in a slum area for im- provement etc. under section 17;

(1') prohibition against eviction of tenants in a slum area without the permis- sion of the prescribed authority (A/3) under section 29; ._

(j) restoration of possession of premises vacated by a tenant as provided (A/4) in secton 31 ; -

(k) exemption of buildings belonging to Government or Slum Clearance Board or local authority from the prohibition aginst eviction of tenants- section 33. . - -

16. Re/rabilitation under Tamil Nadu Act

(a) Certain other provisionsyof the -Tamil Nadu Act are of interest in with rehabilitation. Thus, section 16, which occurs in the'chapter on slum clearance and redevelopment, provides as under :-- ' -

"l6. Rules to provide for transfer to previous occupants.---Subject to the provisions of this Act, the Government may, by rules, provide for or regulate the transfer, to persons who, immediately before the declaration of any slum area to be a slum clearnce area, were occupying lands or buildings in that area of lands or buildings in such slum clearance area after its redevelopment and the conditions of such transfer." '

(b) Besides this, it may be worthwhile (quoting section. 29(4), Tamil Nadu Act. As mentioned above, A/5 there. is a prohibition against the eviction of tenants in slum areas without the previous permission of the prescribed authority. 'The tent or refusal of such permission is ordered under section 29(3). Section 29(4) provide as under in the Tamil Nadu Aet.----- ' "(4) In granting or refusing to grant permission undersub,-section (3), the prescribed authority shall take into accou_nt.the following factors. namely-- ' _' -- . . _ ,

(a) whether alternativelacctimmodation within" the"1_neans of 'the tenant' would be available to him if he were evicted;

(b) whether the eviction is in the interest of improvemnt and cleerfnce of 'the slum area; '

(c) such other factors, any, as may be prescribed.'

17. Restoration under Tamil Nani: Acti,----Section 31 of the Tamil Nldu Act. which occurs in the same Chapter provides for protection of tenants in slum mu from eviction, reads as under :-- ' "3l. Restoration of possession of ' Vemises vacated by a tenant---(l) Where a tenant in occupation of any bl.llfi1ll' ' gin a slum area vacates any building or is evicted therefrom on the 'ound that it was required for the ur- poses of executing any worlt o firnprovement or for_the purpose. 1:.- erection of the building, the_tpna,rit.may, withtusuch time as my be pres- cribed, file a declaration with? thegpresoribed authority' that'. he desires to be replaced in occupation of the building after the completion of the work of improvement or recreation ofitlie buildinggas the case may be.

(2)7on receipt of such declaration, the prescribed authority shall, by order, require the owner gt? the bt_1ildinat0;fut'ni8h:1o ittwithin Inch time 38 as may be prescribed, the plans of the work of improvement or re-erection of the building and estimates of the cost thereof and such other particulars as may be necessary and shall, on the basis of such plans and estimates and particulars, if any, furnished and having regard to the provisions of sub-section (3) of section 32 and after holding such enquiry as it may think fit, provisionally determine the rent that would be payale by the tenant if he were to be replaced in occupation of the building in pursuance of the declaration made by him under sub-section (1).

(3) The rent provisionally determined under sub-section (2) shall be communicated in the prescribed manner to the tenant and the owner.

(4) If the tenant, after the receipt of such communication, intimates in writing to the prescribed authority within such time as may be prescribed that when he is replaced in occupation of the building in pursuance of the declaration made by him under sub-section (1), he would pay to the owner, unitil the rent is finally determined under section 32, the rent provisionally determined under sub-section (2), the prescribed authority shall direct the owner to place the tenant in occupation of the building after the completion of the work of improvement or re-erection of the building, as the case may be, and the owner shall be bound to comply with such direction."

18. West Bengal A ct--The West Bengal Slum Areas (Improvement and Clearance) Act, 1972 contains the usual provisions regarding prohibition aginst erection of new structures in slums, improvement schemes, slum clearance and redevelopment and acquisition of land in a slum area. The Act extends to the whole of West Bengal except the areas declared as Cantonments under the Cantonments Act, 1924.

19. Illegal accupation--It would appear that Central and State enactments relating to slum improvement and clearance do not give a conditional or un conditional right to alternative accommodation to those slum dwellers who have illegally occupied the premises in question. Such protectionagalnt eviction as is conferred by these enactments, is confined to "tenants", i.e' persons who are presumed to have some title to their present occupation of the premises by virtue of a lease.

_ 20. N eed for local athorities to carry out their obligation--There is some discussion in _one of the papers included in the report of the National Commission on Urbani- sation, A/6 about the need on the part of the local authorities to carry out their obli-

gation regarding urban development; In this pager, the following recommendations (so far as is material to the point under conside tion) have been made :-

"6. 7 .2. It would be preferable to enact a special act (as was done for the urban land ceiling act) by Parliament with a provision that the provisions shall be implemented either by the States or be entrusted to the Municipal Corporations. The transfer of it share of municipal revenue (it need not be limited to property tax only) supplemented by a grant from the State Government should.form an Account from which normal muni- cipal service, as lasted in Municipal act as duties and functions) and economic and welfare function_s--all economy to be'properly listed as

- ~ - detailed in the various chapters ofthis report should beundertaken.

(i) The new enactment can be termed-'--An Act to provide for the provisions ' of civic, economic, developmental and welfare' services to the urban poor. . The definitions must' include it specification of :

'L' 5 ' V" '(i) Urban poor;

(ii) Economic Functions;

(iii) Welfare Services;

(iv) Civic Services.

(ii) The Act should provide that each State/Municipal Body should provide in the building bye-laws or development control rules, special provision to govern the schemes of 3'

(i) Sites and Services and Construction thereon;

(ii) Low Income Group Housing/Poorclass Housingf'

-v ; . No-such law seems to havebeen enacted.' Refennces A /1. .£o§*tfC v Administrator for the Union Territory of Delhi, AIR 1951 S.C. 1602 : (1962) A/2. Para 5 supra.

A/3. Para l6(b)infi-a.

A/4. Para l71'nIra.

A/5. Para lS(i) supra.

A/6. All India Institute of Local Self Govcrnment, Bombay, paper inciudoo in N.C.U. Report (August, 1988), Vol. V Part II, pages 187, 188, paragraph 6.7.2.

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