W.P.(C) Nos. 11667 and 12723 of 2010 In the matter of applications under Articles 226 & 227 of the Constitution of India. ------------- W.P.(C) No.11667/2010 Mrs. Rutuparna Mohanty, Managing Trustee, Maa Ghar Foundation & 43 others ……… Petitioner Versus State of Orissa and others. …….. Opp.parties W.P.(C) No. 12723/2010 Basti Unnayan Mahasangha represented by its General Secretary and others. …….. Petitioners. Versus State of Orissa and others. …….. Opp.parties. For petitioner: Mr.Karunakar Jena (WPC 11667/10). M/s Asim Amitav Das, M.B.Ray, A.K.Behera, K.K.Rout, B.K.Panda, B.Sahu and S.Ray (WPC 12723/10). For opp.parties: Mr. Asok Mohanty, Advocate General for State M/s.S.K.Nayak (I), A.C.Baral and D.Nayak for O.P.No.2, Assistant Solicitor General for Union of India. M/s.Umesh Ch. Patnaik, S.Patnaik, A.J.Mohanty, M/s.P.K.Jena, N.Panda, and D.P.Mohapatra, M/s.Kshirod Kumar Rout, T.K.Nayak and J.Naik (For Intervenors) P R E S E N T: THE HONOURABLE MR. CHIEF JUSTICE V. GOPALA GOWDA AND THE HONOURABLE MR. JUSTICE I.MAHANTY Date of Judgment- 15.9.2010 V.GOPALA GOWDA, CJ. These two petitions were heard together by consent of the learned counsel for the parties and are disposed of by the following order. 2. On 6.7.2010 one Mrs. Rutupurna Mohanty on behalf of Sanjibani Maa Ghar submitted a petition signed by number of persons who claimed to have been evicted from the premises of S.C.B.Medical College and Hospital campus in open Court which was treated as a Public Interest Litigation and Mr.K.K.Jena, learned counsel was appointed as amicus curiae to appear on behalf of the petitioner and the evictees with a direction to the High Court Legal Service Committee to provide all necessary assistance including financial to him as may be permissible under the rules. This Court also directed the District Administration represented through the Collector to make temporary arrangement for their shelter by erecting tents at any place which is available within his jurisdiction and supply the food to them. Thereafter, the amicus curiae counsel filed a detailed petition on 9.7.2010 under Articles 226 and 227 of the Constitution of India narrating certain relevant facts for grant of the following reliefs : a. To provide immediate shelter to the evicted persons; b. To provide cooked food thrice a day, minimum two weeks till other arrangement is made by the opposite party to resettle them any where in the town; c. To provide education facilities to school going children particularly effect (effort) should be made for their continuation of the study in the respective school in which they are studying; - 2 - d. To provide baby food to the infants and special diet to the old and ailing people; e. To provide free medical treatment to the victims who are injured and ill; f. To provide all household articles which were destroyed by the police and administrative officers during the eviction; g. To direct the State Government to conduct a judicial inquiry relating to the excess action of the police and lapses of the district administration and direct the State Government to take action accordingly; h. To direct the State Government to formulate scheme and an independent committee to provide alternative site or accommodation to the displaced slum dwellers; i. Government may be directed to pursue earnestly the “Low Income Scheme Shelter Progrramme” which is to be undertaken with the aid of World Bank; j. To direct the State Government to provide the Slum Upgradation Programme (SUP) under which basic amenities are to be given to the slum dwellers.” urging various legal contentions in support of the said reliefs. 3. It is pertinent to state certain relevant facts which are highlighted in the said petition, namely, that on 4.7.2010 in the early morning at about 4 a.m. more than four platoons of police force came to the spot without any prior notice to the inhabitants of the Basti and started demolishing their houses by using bulldozer etc. During the course of eviction process, they ransacked the entire basti and the houses and thrown the household articles including food stuffs and books of the school going children to the drain and ultimately those were put to fire including the thatched house and articles of the aforesaid inhabitants. When the aforesaid action of the police was objected to by the inhabitants, the police started pelting stones and - 3 - resorted to lathi charge in an inhuman manner. It is further stated that due to the overt act of the police, hundreds of people including old men and women, children, infants, pregnant women got severe injury and are still suffering without any proper care and medication. It is further stated that the inhabitants of the locality were living in the said area more than about three generations with the knowledge of all authorities including the district administration. Number of BPL Cards and Voter Identity Cards were issued in their favour by the appropriate authority since long. It is further stated that the children of the said basti are prosecuting their studies in the nearby Government school and Government was also pleased to establish an Anganwadi Centre in the said Basti for the purpose of imparting education to their children and for providing nutrition. CESU, the electricity distribution company and before it OSEB provided electricity connection to the inhabitants of the Basti. Tube-wells were installed by the Government for providing drinking water to the inhabitants of the Basti. Neither any notice was issued to the inhabitants to vacate the place at any time nor any scheme for their resettlement was prepared prior to eviction. Further case of the inhabitants is that the eviction was made during rainy season and houses were demolished when it was raining heavily in Cuttack town as a result of which the evicted persons had to take shelter on the road side under the open sky exposed to rain and sunshine. It is stated by them that due to the aforesaid inhuman activity of the police, the infants, children and adult girls, women and old age people suffered the most. It is further stated that the district administration was callous and nobody extended their helping hand to provide food, shelter and health care to the victims. They remained day and night without food, patients without medicines and children without food and care. While demolishing the houses, the police misbehaved the ladies by using unparliamentary language which was not expected from responsible police force and administrative officers. - 4 - The belongings of the inhabitants including BPL Card, Voter ID Cards, various certificates and important documents were burnt during the eviction. The affected people are spending their lives without any food and shelter and they are deprived of their rights to live in a dignified/descent manner in the society which is their fundamental rights enshrined in the Constitution. With the aforesaid narration of facts, they have sought for the reliefs as mentioned earlier. 4. During the pendency of the petition, a second writ petition was filed by the Basti Unnayan Mahasangha represented by the Secretary Ajit Kumar Lenka narrating more or less the same facts which are not required to be adverted to in this judgment as it would amount to repetition. 5. Statement of counter was filed by the Collector, Cuttack justifying the action to evict the evictees from the premises of the S.C.B.Medical College Campus as they were trespassers into the College premises even though they were evicted earlier. in the affidavit filed by the Collector on 28.7.2010 he has stated at paragraph 3 that in compliance with the order dated 10.7.2009 passed by this Court in O.J.C.No. 6721 of 1999, eviction process was carried out in the S.C.B.Medical College and Hospital, Cuttack. Order dated 10.7.2010 so far as relevant reads thus: “Inspection report submitted by the Advocates Committee on S.C.B.Medical College Hospital sanitation and unauthorized encroachments. The Registry shall supply a copy of the report submitted by the Advocate’s Committee today to the learned Additional Government Advocate who shall supply copy thereof to the Health Secretary and the Works Secretary to enable them to offer their views/suggestions on the aspects highlighted in the report and to overcome the problems indicated therein. It is alleged that there is large scale forcible encroachment of lands inside the campus of the S.C.B.Medical College Hospital. In our view, it is the first priority of the District Administration to see - 5 - that the unauthorized occupants are removed from the campus as early as possible and the campus is made free from unauthorized encroachment. Since we have constituted a committee headed by the R.D.C.(C.D.), we direct the R.D.C.(C.D.) to take steps for removal of the unauthorized occupants from the medical campus within a period of two months from today. Shri P.R.Dash, learned Amicus curiae, produced the letter dated 7.7.2009 of the Executive Engineer, P.H.D. to the Superintendent of S.C.B.Medical College Hospital, copy of which communicated to Shri Dash as well as to the Advocates’ Committee, Learned Additional Government Advocate shall expedite the matter with the concerned authorities.” 6. It is further stated that eviction was carried out upon receipt of the requisition from Administrative Officer, S.C.B.Medical College & Hospital, Cuttack in the prescribed G-Form and 153 encroachment cases were booked under the O.P.L.E.Act for eviction from the encroached Government Plot No. 439 of area Ac.1.569 (P), i.e. Ac.0.612 recorded in the name of Health Department. Accordingly notices were issued to the encroachers and orders of eviction were passed. The eviction was effected by observing due process of law on 4.7.2010. Consequent upon the eviction effected on 4.7.2010 immediately temporary shelters at Mundamuhan High School and Prabha Devi Women’s College at the outskirts of Cuttack were arranged for accommodation of 500 persons and out of the same 21 evicted persons went there and they were provided with food, shelter and medical treatment. Further 60 Polythene sheets, one quintal of rice, 20 Kgs of Harad Dal were provided to the evicted persons. On 5.7.2010, no evicted persons came forward to avail the facility provided for temporary shelter. On 6.7.2010 pursuant to the order of this Court, temporary shelter was immediately made at Ranihat High School. He has also stated about the steps taken by him in coordination with the Municipal Corporation for giving food and shelter - 6 - to the evictees through the volunteers nominated by the petitioners. It is further stated in his affidavit that pursuant to the order dated 18.7.2010, the evicted families were shifted to Hadia Patha and all such facilities which were extended earlier to the evicted families were extended to them till the date of filing of affidavit. It is further stated by him that since the place does not have proper lighting, a generator set has been pressed into service for which the District Administration is paying a sum of Rs.30,000.00 towards the hire charges. That apart Cuttack Municipal Corporation has been providing the evicted families with food three times a day and approximately 500 persons are availing the said fooding facilities for the last three weeks as on the date of swearing the affidavit. Further he has referred to the relevant provision of Orissa Relief Code, Clause 165, which reads thus: “165. Emergent Relief: (1) When people are in acute distress due to a severe natural calamity like high flood or strong cyclone, it becomes impossible for them to procure food; their belongings are washed away and houses damaged, it becomes necessary for Government to provide them with dry or cooked food, clothing, shelter and other necessaries of life. These articles are generally transported to the affected areas by waterways as road communications stand disrupted. Air dropping is also made if the people are marooned for days together. This kind of relief is categorized as Emergent Relief. (2) Emergent relief is sanctioned irrespective of the consideration of status, caste or religion as at such a juncture the haves and the have-nots are leveled down to the same position. (3) Emergent relief may include distribution of Chuda, Mudhi, Gur, Salt, Kerosene, Match boxes and other bare necessaries of life, including cooked food and clothing. It may include provision of improvised shelter with timber, bamboos, tarpaulins, straw etc. (4) In case non-official organizations come forward to extend, emergent relief as is usually the case at the time of a grave natural calamity, assistance from Government to that extend may be temporarily suspended. - 7 - (5) For emergent relief rice, wheat, chuda, mudhi, ragi, maize etc. may normally be sanctioned at the rate of 500 grams per adult and 250 grams per child below 12 years of age per day. The Collector is competent to sanction such relief himself and can delegate the powers of sanction to the Subdivisional Officers to exercise the power in their respective jurisdictions for a period of three days. If this is found inadequate, the Revenue Divisional Commissioner may extend the period of distribution of gratuitous relief upto seven days. The Member, Board of Revenue Special Relief Commissioner can extend it upto a period of 15 days inclusive of the period of sanction by the Subdivisional Officer, the Collector and the Revenue Divisional Commissioner. (6) No emergent relief shall ordinarily be given after 15 days of the abatement of a natural calamity like flood or cyclone unless it is of a very devastating nature. If absolutely necessary such relief may be given even beyond the period of 15 days laid down in the preceding sub-section, only after obtaining specific Government orders.” He has further stated in paragraph 9 of the affidavit that pursuant to the order passed by this Court, the District Administration has made a survey and has given a list of persons along with his affidavit dated 21.7.2010. It is stated that the 149 evicted persons cannot prima facie be said to be belonging to the lower strata of the society on the basis of their annual family income. In support of his case, he has produced the list Annexure-A/1. It is further stated that the evicted families are not properly disclosing their native address to the Tahsil Office, Cuttack to conduct further investigation. So far as the additional list supplied to the Tahasildar, Cuttack on 26.7.2010 is concerned, the said list simply contains 90 names without any material evidence indicating about their socio-economic status. Further he has sworn to the fact that it appears from the records of the Cuttack Municipal Corporation that the Rehabilitation of Urban Slum Dwellers under the Integrated Housing Development Programme (IHSDP) does not cover - 8 - the persons/evicted families who are even otherwise earning more than Rs.15,000.00 as per survey report. It is further stated that keeping in mind the economic status of the evicted families and other exigencies, no suitable land is available at the moment for permanently rehabilitating their families. 7. The Principal Secretary to the Government of Orissa, Urban Development Department in his affidavit filed in this proceeding on 28.7.2010 has referred to the IHSDP Scheme which is a Central Government sponsored Scheme. Under the said Scheme, State Level Coordination Committee (SLCC) Meeting was held on 20.2.2010 under the Chairmanship of the Principal Secretary to Government, Housing & Urban Development Department. In the said meeting it was decided to recommend the Detailed Project Reports on Integrated Housing & Slum Development Programme Scheme of Cuttack, Phase-I and II on priority basis for appraisal and sanction in the Central Sanctioning Committee. Accordingly, the said proposals were placed before the Central Sanctioning Committee of the Ministry of Housing & Urban Poverty Alleviation, Government of India. He has stated in paragraph 3 of the counter statement that out of identified Slums in Cuttack Municipal Corporation Area, under Phase-I, ten slums, namely, Balmikinagar Munda Sahi, Tulasipur Bauri Sahi, Pithapur Pana Sahi, Nima Sahi Pana Sahi, Puri Ghat Pana Sahi, Dolamundai Bauri Sahi, Lunia Sahi Pana Sahi,Muradkhan Patna, Balisahi Nuapada, Darga Patna Sabar Sahi were proposed to be included. Similarly under Phase II, two Slums, namely, Andarpur and Tulasipur Tanla Sahi were also proposed to be included under the Scheme. In the meantime, Phase-II had been sanctioned and funds released by the Government of India with a project cost of Rs.1698.67 lakhs. 8. Since Government of India allocation for the State under the said Scheme has already been sanctioned and no further amount was available for phase I, the sanction of Cuttack Phase I with 602 - 9 - number of beneficiaries in 10 slums is still pending. On the other hand, Government in Housing & Urban Development Department have submitted before the High Court in W.P.(C) No.6859 of 2009 that after receipt of land from the Revenue Department, the Housing & Urban Development Department will take necessary steps to hand over the said land to Cuttack Municipal Corporation, Cuttack which will give occupancy right to the identified beneficiaries, i.e. 1025 number of slum dwellers living in 11 number of unauthorized slums out of the 82 slums on government land selected under the Integrated Housing and Slum Development Programme after construction of houses for them. It is further stated that Government of India in the Ministry of Housing and Urban Poverty Alleviation is going to introduce a new Scheme, i.e. Rajiv Awas Yojana (RAY) for rehabilitation of the Slum dwellers for which Cuttack City has been selected to be included under the Scheme. He has further stated that with reference to the provisions made under Article 243 W in 74th Constitution Amendment Act, the Orissa Municipal Act was amended vide the Orissa Municipal (Amendment) Act 1994 (Orissa Act 11 of 1994) adopting the 12th Schedule with the provision that, the Municipality shall have power with respect to the performance of functions and the implementation of schemes, more particularly in relation to sl.nos.10 and 11 of the said Schedule. As per the aforesaid constitutional amendment, enjoining special responsibility to such Corporations to address the burgeoning, complex and myriad of issues of urban life, separate Corporation Law, namely, the Orissa Municipal Corporation Act, 2003 was enacted comprising various Chapters including Chapter 21 under caption “Slum or, informal Settlement”. It is reported by the Cuttack Municipal Corporation that total number of slums identified within the Cuttack Municipal Corporation area are 257 out of which 82 Slums are on the Government land and rest 175 Slums are on the own land of Slum dwellers. The total population of 257 identified Slums is 2,23,819 - 10 - out of which the population of the 82 Slums on Government land is 42836. Rest 175 Slums are on their own land comprising 35082 household families with a population of 1, 80,983.Orissa Municipal Corporation Act provides for a policy for the Slum dwellers. 9. As per the provisions envisaged under section 485 of the Orissa Municipal Corporation Act, Minimum Basic Services of Infrastructure like drinking water, drainage, road, sanitation, street light etc. are being provided to all these Slums. It is further stated that recently the Cuttack Municipal Corporation conducted survey of the Slums through an NGO, namely, SPARC-UDRC and prepared a profile of all the Slums. Cuttack Municipal Corporation has received funds from Government for conducting Socio-economic survey for preparation of slum-household and livelihood profile under the Scheme, i.e. Urban Statistics for HR and Assessment (USHA). For this purpose, Cuttack Municipal Corporation has selected an NGO, namely, SPARC-UDRC which has already made the slum profile to do the survey work. Survey of infrastructure gaps in all the 257 Slums has been completed basing on which Detailed Project Report (DPR) will be prepared and submitted to Government of India for approval and sanction of funds for infrastructure development in Slums. After receipt of funds, implementation of the project will be started. It is further stated that IHSDP has provision for Slum up-gradation on the private land of the poor Slum dwellers for resettlement in the Urban Area. Besides this, Government may allot land to the Urban Local Bodies (ULBs) who would in turn use the land for construction of houses for the urban poor slum dwellers. These houses can be allotted to them on occupancy right basis. Thus case of rehabilitation of the eligible Slum dwellers depends on allotment of the Government land to the Urban Local Bodies concerned and approval of the rehabilitation proposal and sanction of required funds by Government of India under - 11 - the said Scheme. It is further stated that formulation of the Slum policy is under active consideration of the State Government. 10. The Commissioner, Cuttack Municipal Corporation has filed further affidavit on 29.7.2010. At para-3 of the said affidavit, it is stated that “Jaya Maa Mangala Sahi” on behalf of which the petitioner has filed the present writ petition is not in the list of the identified slums numbering 257 out of which 82 slums are on the Government land. Rest 175 slums are on the own land of slum dwellers. It is stated that as per the provision of Section 485 of the Orissa Municipal Corporation Act, 2003, minimum basic services of infrastructure like drinking water, drainage, road, sanitation, street light etc. are being provided to all these identified slums. It is further stated that pursuant to the direction given by this Court, temporary arrangement has been made at Hadiapatha for accommodation of the evictees by making the area clean for their habitation and they have taken necessary steps for providing health, sanitation by spreading bleaching powder and cleaning the area. It is further stated that Section 482 in Chapter XXI of the Orissa Municipal Corporation Act provides that for the purpose of “providing basic urban services” the Corporation may identify and demarcate in such manner as may be prescribed by the Rules. In the absence of Rules in this regard, certain identified slums have been taken up for rehabilitation by CMC under Government of India Scheme. Further as per the provision of section 486 of the Act, the slum dwellers are being provided other facilities under the welfare schemes of the Government, i.e. Old Age Pension, Subsidized Loans, Provisions of Supplying of rice in different schemes etc. In so far as rehabilitation of slum dwellers are concerned, it is stated that in respect of two identified slums, i.e. Andarpur and Tulasipur (Tanla Sahi), provisions for land allotment would be made from the Urban Development Department. In this regard communications have been made by the CMC to the concerned authorities, i.e. the State - 12 - Government as per Annexure-2/A series. It is specifically stated that eviction of the evictees was done from the Government land within S.C.B.Medical College Campus and not from the Municipal lands. 11. The Under Secretary, Ministry of Housing and Urban Poverty Alleviation, Government of India, has filed an affidavit traversing the petition averments. It is stated therein that Cuttack town is covered under the IHSDP. Selection of the beneficiaries under JNNURM is done by the concerned State Government/Urban Local Bodies (ULB). Duration of the said JNNURM is 7 years, i.e. 2005-2012 and each State has been given a fixed allocation under BSUP and IHSDP. The ACA allocation for Orissa is Rs.78.74 crore under BSUP and Rs.176.33 crore under IHSDP thus totaling Rs.255.07 crore under these two components of JNNURM. It is further stated that Government of India has sanctioned 6 projects with a total project cost of Rs.74.62 crore out of which the share of the Central Government is Rs.54.18 crore for construction/upgradation of 2508 Dwelling Units in 2 Mission Cities of Bhubaneswar and Puri under BSUP. Under IHSDP 32 projects with a total project cost of Rs.284.67 crore comprising central share of Rs.191.88 crore for construction/upgradation of 13049 Dwelling Units in 29 cities/towns have been sanctioned. The details of BSUP and IHSDP projects have been given at Annexure-1. Further it is stated that the total 7-year allocation of Rs.265.07 crore under BSUP and IHSDP for the State of Orissa, opposite party no.4 has committed Rs.246.06 crore for BSUP and IHSDP projects and the minor balance has been kept for Administrative and other expenses (A&OE) and capacity building activities. Since no additional Central Allocation (ACA) is left, further projects cannot be sanctioned for cities/towns of Orissa under JNNURM (BSUP & IHSDP).Against the committed