(Imminent) NCMP subversion: Riverbed
Yamuna riverbed has come suddenly alive in courts (and hence in media, with politics likely to follow). Illegal dispossession for illegal development on it has also lately resumed. The two might be unconnected. Or government might be inertially poised to secure judicial endorsement for more riverbed shenanigans.
On 03.08.04 High Court has sought reports about its riverbed encroachment clearance orders being used to clear some Pushta slums in illegal ways, become criminal with deaths in illegal resettlement in Bawana. On 09.08.04 Supreme Court has issued notice in PIL claiming Akshardham Temple on the riverbed is encroachment on government land. In and across the riverbed stretch lately cleared, government encroachment on public land continues, in care of those appointed by Supreme Court on 05.08.04 to a committee for the river, in form of following projects in violation of Delhi Master Plan (DMP):
- Delhi Government Secretariat involves a modification of DMP (which does not mark government use for the site) without bothering with mandatory Public Notice. That it was honoured with Indian Builders’ Congress Award for architecture (through President of India accompanied by Union Urban Development Minister) in June 2004 on the heels of clearance of Pushta slums right beneath it arguably amounts to an Article 14 violation of rare ignominy. Objection of 11.06.04 to this “honour”, also forwarded by President’s Secretariat, awaits appropriate action by Secretary MoUD (formerly DDA VC, party to high-level administrative decision of 03.01.04 to clear Pushta), under whom Supreme Court has appointed the committee for the river.
- Metro Depot (using riverbed ground water notified for drinking purposes for washing trains and perhaps also releasing waste water into it) was also built without Public Notice, issued only afterwards in December 2002. Objections in response have not been heard and construction of IT Park / BPO SEZ (commercial use, not even mentioned in Public Notice), etc, continues. Suggestion of 07.03.03 to start compliance of order of 03.03.03 for riverbed encroachments with Metro Depot site, reiterated in response to Public Notice for more metro property development issued in April 2004 amidst Pushta clearance across the river, has also not been disposed off by DDA, key participant in all court proceedings about the riverbed.
- Commonwealth Games village has also not bothered with Public Notice though plans for it are reported often, lately in news of 06.08.04 about possible sourcing for it of 30 MGD riverbed ground water. Though use of DDA funds for purposes other than DMP is prohibited, senior DDA men have just been to Australia for ideas for it (though timely objection against public expense on the trip was made to Secretary MoUD on 07.06.04 with reference also to the last case of such DDA enthusiasm, viz, illegal hotels complex in ridge that Supreme Court quashed in 1997 and Commissioner (Planning) implicated in DDA scam had steered).
- The innocuous scheme for touristy greens on the stretch cleared of slums is illegal for being mooted by Ministry (or, rather, Minister) for Tourism and Culture without jurisdiction. A suggestion (made in May within ambit of right to participate through Public Notice for riverbed Zonal Plan not yet notified) for consideration of a joint proposal by qualified experts and riverbed cultivators in old village-like settlements for urban agriculture and community-controlled eco-visitation for riverbed greening was ignored. DDA seems now to have “adopted” the touristy green scheme (with pictures in news report of 02.07.04 similar to and of 23.07.04 same as the one in the brochure personally authored by former Minister). This does make, in absence of Zonal Plan as well as of review of Pushta clearance (decided upon as part of the high-level administrative decision of 03.01.04 for the clearance) DDA’s participation in the evictions malafide and an application for examining its legality and propriety was made to Secretary MoUD on 05.07.04.
The problem on the riverbed is of government encroachment on immensely significant public land for patently ill-considered ad-hoc projects that are illegal. It is unfortunate that officials who will file affidavits in courts and sit on its committees on behalf of new government are the same that have been party to these projects and to wilful disregard of statutory DMP solutions that they are duty-bound to enforce and have instead subverted, including by obfuscating them in PIL and elsewhere in collusion with collaborators in civil society. It is also unfortunate that Supreme Court, which has admitted PIL by UP state employees against fully built Akshardham Temple, had declined on 15.03.04 to intervene in an SLP filed on 13.02.04 by a resident of Gautampuri-2 (with demolition of which Pushta clearance began the same day) against High Court orders for riverbed in PIL far from fully informed of facts and law. That SLP mentioned illegalities of riverbed projects as well as of clearance and resettlement, also through an additional affidavit about Holambi Kalan where some of those dispossessed by the first four Pushta evictions in 2004 were resettled. If it had been heard, events of 2004 on the riverbed might have taken a different course. Those tormented by the course that they did take must ensure now in whatever way they can that wilfulness on the riverbed is stopped.
The case against wilful riverbed projects
The spatio-temporal sweep of significance of the riverbed (and causality of its problems) is not even remotely amenable to myopic ad-hocism and calls for rigorous detailed planning, with transparency and accountability (as guaranteed by planning law and also by solemn pledge made in NCMP) to ensure efficiency and equity, including trans-generational equity / sustainability, as called for, besides by PM in his address to the nation on 24.06.04, by law and, thereby, the mandate of the people that President has interpreted in his address to Parliament on 07.06.04 as one for restoring rule of law. The following is a bit of just the techno-legal case against willful riverbed projects.
Delhi Development Act, 1957, requires development of Delhi according to DMP and its Zonal Development Plans (ZDP). DMP / ZDP are statutory documents prepared in accordance with s.7, 8 and 10 (inclusive of Public Notice) and modifiable only by s.11A (inclusive of Public Notice). DMP explicates aim of planned development as “balanced and integrated development to take care of present and future” and, like a budget, balances city resources and claims on them of all uses and users as well as conflicts and compatibility for optimum integration, with focus on safeguarding the interests of the poor and city heritage. Socialization of land through compulsory acquisition is provided for in s.15 to make “implementation of the plan easier” and DMP stipulates that “all this land will remain under public ownership and … be leased out …on an equitable basis”. Public Notice provisions guarantee participation in planning and s.7 provisions for staging and DMP stipulation that monitoring shall form basis for Plan review guarantee equitability and accountability in implementation.
Unplanned development or use of land or buildings is prohibited (s.12(4), s.14, s.29-31), as is disposal of land by or use of funds of DDA for it (s.21(3), s.23(2)). That government cannot rise above DMP processes in pursuit of unplanned schemes has been reiterated by High Court in 2002 while ordering stopping and inquiry of Sultangarhi scheme in ridge area, started without change of DMP land use by s.11A. That it cannot profit from unplanned development has been reiterated by Supreme Court while quashing proposals to allow against payment commercial use of industrial plots (2002) or homes (2004) and in saying apropos government recoveries from units in non-industrial areas that an illegality would not become legality with connivance of government (2004). That it cannot substitute DMP has been reiterated in High Court orders of November 2002 quashing illegal slum policy and of November 2003 connecting the slum problem to its DMP housing solution and in Supreme Court judgment of May 2004 rejecting regularization of industries in homes and making adverse remark on DMP 2021 “guidelines” contrary to DMP and unmindful of due process for DMP revision.
All unplanned development amounts to encroachment on public land compulsorily acquired for planned development as per DMP / ZDP. DMP places riverbed in land use category “Agriculture and Water body” and designates it O-Zone, requiring ZDP by due process, and stipulates that only after “results of the model studies for the channelisation of the river Yamuna become available, development of river front should be taken up; considering all the ecological and scientific aspects, as a project of special significance for the city”. The potential of riverbed in terms of solutions to the city’s water crisis, underscored by CGWA notification in 2000 of its aquifers for drinking and domestic use, also calls for priority to detailed planning for it. Riverbed ZDP, however, has not been prepared. Even if s.11A formalities for DMP modification for them were somehow to be completed, ad-hoc riverbed projects would remain illegal in terms of s.7 provisions for stages of development according to DMP and s.8 and s.10 guarantees of minimum content and public scrutiny of ZDP and DMP Development Code that precludes earmarking of premises for them in absence of ZDP to “link between the Layout Plan and the Master Plan”. In other words, they would remain illegal for not being embedded in ZDP that the riverbed requires by law because it requires it by common sense.
Unplanned development by government jeopardizes planned development and fundamental rights that planned development seeks to enforce through mandatory provisions for equitable physical, social and economic benefit of all citizens in present and future. It amounts to misuse of powers for pursuits contrary to public interest purpose for which these powers vest in government and to encroachment by government on public land in violation of Article 14 of the Constitution of India. What is currently playing out on the riverbed is part of a larger drift to abandon planning to “open-up” (in the ongoing DMP revision) to catastrophic ad-hocism prime heritage space that DMP has protected for decades and to which the poor have been driven because DMP space meant for them all over the city has been denied and is also sought to be “spared”. This Great Terrain Robbery is driving the city to comprehensive bankruptcy, making over 40 years of socialization of land through compulsory acquisition malafide, stripping public institutions for urban planning and development of all rationale for being, and co-opting all systems of democracy.
The case against wilful dispossession on the riverbed
Dispossession that the riverbed witnessed this year is chronicled in web-posts and letters and more on day-to-day basis. Perhaps 20000 slum families were evicted from Pushta, less than a fourth offered what government calls resettlement. The operation was in compliance of court orders in PIL and had clearance of election commission at some stage and unprecedented police support throughout. With dubious arithmetic of 75000 Pushta families and 19000 available plots for sub-standard illegal resettlement and opportunistic illegal riverbed schemes waiting, it was without a shadow of doubt wholly unlawful, with nothing to do with public interest.
Housing for all is central purpose of planned development. DMP envisages housing in terms not just of basic need but “of considerable importance to Development both in economic and welfare terms” and, with “strong spatial relationship to employment, social services and other urban activities”, potential “vehicle for social change” and “efficiency and equity of urban areas”. DMP describes “essential components” of housing and stipulates explicit standards (25 sqm minimum plot and 300 units/Ha maximum net density) and, for affordable integrated housing, a “community module” of 1 lakh people with “25% as site and services development and about 45% housing up to 2 rooms dwellings to provide shelter for low income families”. DMP sets explicit housing targets for 1981-2001, including 3% (49000) resettlement units and 25% (400000) EWS plots.
Mandatory 4 lakh EWS plots (on 3000 Ha) have not been developed. Till 30.11.03 only about 36000 resettlement plots (of about 55000 developed on 378 Ha) had been handed over. Census 2001 found 4 lakh families in slums. Obviously, Delhi’s slum problem owes entirely to failure to implement its DMP housing solution. This failure, which strips all profitable development on public land of bonafide since housing for the poor is central to purpose of compulsory land acquisition that DMP considered “imperative if slum clearance, redevelopment, subsidized housing …have to be undertaken”, includes, say, 10000 EWS plots in Civil Lines Zone, 12000 in New Delhi Zone, etc, to which those evicted from Pushta were entitled, but were denied to be, instead, dispossessed – with unlawful intent in unlawful ways.
In Rajghat stretch that MCD cleared (Gautampuri-2 on 13.02.04, Gautampuri-1 and Koyla Plot on 17.03.04, Power House on 19.03.04, Kanchanpuri starting 21.03.04, Indira Colony on 01.04.04) notices pasted did not meet legal requirements and also failed to mention as per Supreme Court direction of 03.03.03 that resettlement is subject to outcome of SLP against High Court order of November 2002 quashing illegal resettlement policy (in same matters, PIL between some industries and government, that High Court also heard on the same day to pass orders against riverbed encroachments). They were accompanied by lists of those found eligible for resettlement in a survey carried out four years ago and being updated after four settlements had been demolished, three of them at short notice without opportunity to object to the list. Neither the notices nor lists indicated basis on which 18 or 12.5 sqm plots were being offered, curiously at same price of 7000/-, which receipts said included license fee for 10 years, though the transaction was subject to outcome of SLP. Though High Court had directed on 30.01.04 that citizens would be entitled to resettlement even against down-payment of 500/-, this option was not offered even on repeated requests. In Vijayghat stretch that DDA cleared in April-May 12.5 sqm plots were priced at 5000/-. For the rest, clearance was more lawless.
The few resettled were taken far away to Madanpur Khadar (few from Gautampuri-2), Holambi Kalan Phase-2 and Bawana. The resettlement was far from smooth, with confusions about plot numbers, multiple allotments of same plot, allotment of plots after disputed cancellations of prior allotments, etc. More importantly, the resettlement schemes are grossly sub-standard and illegal in terms of DMP. Holambi Kalan, about which additional affidavit was filed in SLP not heard, is visibly slum-like. With 7000 plots on 26.7 hectares, density is twice the maximum permitted by DMP and overcrowding is obvious. Limitations of 18 sqm and 12.5 sqm plots, short of DMP minimum size of 25 sqm, are obvious in homes somehow built on them. For water there are community taps, inadequacy of which is obvious from crowding. Toilet facilities are by way of pay-and-use community toilets that either do not function or are sparingly used. Garbage disposal is non-existent. Contractors provide electricity connection for Rs.1900/-. There are 3 primary school sites (one not functional, 2 with tented schools), whereas for a development of 7000 plots DMP stipulates 7. Neither of 2 secondary school buildings is functional. For health care there is only one dispensary, whereas DMP requires 2 and Nursing Home, Child and Maternity Centre as well. Likewise, 7 community rooms, 2 community halls / libraries, 7 convenience shopping and 2 bigger commercial centres, etc, required by DMP standards are not there. Economic infrastructure is non-existent, with neither work opportunities nearby nor mandatory commercial use sites or mixed use pockets in the layout. Transport linkages are grossly deficient, with one-way travel costing Rs 20/- and more than an hour on the two bus routes that ply between Holambi and Pushta...
That the case against inadequacy of such resettlement was argued and lost in other Pushta PIL was because it was argued in beggarly ways without reference to legal measure of adequacy. The fact remains that not only is such resettlement illegal, the very notion of slum resettlement is deeply flawed since those denied settlement cannot be resettled and malafide because it seeks to substitute DMP right to decent housing with grossly sub-standard favour and creates precisely those slum-like conditions that DMP cautions against and makes illegal and precisely that duality which “balanced and integrated” development seeks to eliminate. The fact remains that such resettlement, that government uses to clear what it calls encroachment, is itself unacceptable encroachment on public land, devoid of any basis in law or sense.
And the fact remains that such resettlement can be more violative of fundamental rights than outright dispossession. It remains so in form of, among others, children relocated from Gautampuri-2 on 13.02.04 to Holambi Kalan (by when the circus about 25% free seats in private schools, meaningless without 25% integrated EWS housing condition of DMP, had begun) who could not take exams because assurance that government gave to court for buses for them was not kept. And it remains so in form of memory of, among others, children illegally relocated later to Bawana who died – reportedly because sanitation conditions there are poor and health-care unavailable, but actually because our lawlessness and senselessness drove them there to die.
Pushta evictions expectedly became election issue but led to no more than promise of no forcible evictions made in NCMP adopted on 27.05.04 and broken the same day with demolition attempt in Pushta. After a visit to Bawana on 31.05.04 CM declared all was well there except for absence of crematorium and graveyard. Of thousands evicted, a few hundreds returned to Pushta, in some misguided hope quelled by prompt media propaganda. To lend “humane face” to keenness to resume riverbed projects, there was talk of “persuading” people to leave and “camps” to reconsider their eligibility – for Bawana, where electric crematorium and graveyard had been promised. Incidentally, there were at start of Pushta clearance only 19000 available resettlement plots and development of more of these is not allowed by court order of November 2002 that quashed illegal resettlement and mandatory legal housing for the poor is not being developed. The new government constituted a committee of the same old officials on 26.06.04 to prepare a “slum-free master plan” in two weeks. Three weeks later the committee sought more time and some of it left for Australia for ideas for Commonwealth Games on riverbed, etc. On 27.07.04 DDA evicted 800 more families from Pushta…
The willfulness on riverbed is incapable of serving any public interest. It cannot serve interest of the poor for whose benefit the state has enjoyed powers of compulsory land acquisition for over 40 years. It cannot serve the interest of the dying Yamuna, which urgently calls for a carefully considered holistic plan by due process of law. It cannot serve the interest of solving the problem of river pollution, which has citywide causality and cannot be solved at the riverbed. It cannot serve the interest of solving the city’s water crisis, with land earmarked for the poor poised to be lost to stressful up-market uses and the groundwater of the riverbed being limited, depleted and contaminated by illegal development poised to grow with growing investor confidence after the display of state capability to dispossess citizens. It cannot serve the interest of so-called good governance because it leaves the web of mis-governance and corruption intact while punishing its victims.
The riverbed calls for change in the course of recent history – and very reasonably so, being change only for reversing a drift from what law and history and sense have always called for and change that now people have mandated and government has pledged in NCMP. With inertial discourse mechanisms beginning to swathe NCMP (being minded at highest levels with no system for even reporting, forget accountability, breaches on the ground) and inertial devices that have repeatedly demonstrated their incapability for holistic solutions as well as capability for subversion of public interest looming on the riverbed, the riverbed calls from all seeking and promising change proof of willingness and ability to deal with inertial drift that prevents change. The riverbed is by no means the only one that calls for this, but it calls for it with rare clarity and inclusivity, and it has been calling, especially all of this year.