PIL-driven discourse about free beds and free seats has achieved in 2003-2004 what was unthinkable or at least unspeakable – managers of noble professions of healthcare and education ignobly violating the law of land have declared that they would rather be mercenary than noble and the state, having for long made clear that it could not care less, has stooped in the week after Independence Day to negotiating the fee for abrogating nobility, bargain price for selling the city’s health and education resources to those who have been violating health and education rights of citizens with impunity. Before pushing further its mercenary interpretations of facility and charity, untenable in law or sense, this historic discourse might want to consider how history will judge it.
Health and education policy developments
(In the week after Independence Day)
Much of the President’s address on the eve of Independence Day 2004 was devoted to education. Health and education are two of “Seven Sectors (saat sutra) ...pillars of the development bridge we must cross to ...more equitable ...development” that Prime Minister in his Independence Day address said he has identified from the National Common Minimum Programme as “priority sectors for focused attention”.
Four days later, the side-show about free beds in hospitals that has been playing alongside the seven-month long circus following court order of 20.01.04 about free seats in schools in Delhi reportedly reached a high point in High Court. It may be recalled that in course of this PIL there were reports in May 2004 of hospital being shut for violating and hospital offering money to be released from the free beds’ condition (Vimhans land allotment cancelled1 and Escorts makes Rs 50-cr offer to skip quota clause2). On 19.08.04 Escorts reportedly informed the court that “it’s offer to pay Rs 51 crore to DDA to get rid of the lease condition was under consideration” and DDA reportedly “said the proposal has been put forward to MoUD and sought four weeks to communicate the decision” (Beds for poor: Govt denies relaxing condition3). On 20.08.04 it was reported that “At a meeting with urban development secretary Anil Baijal, it was decided that Escorts' offer would be accepted as it is "not feasible to monitor the hospitals" and for the hospitals to follow this procedure” (DDA's hospital move may cut the poor out4). Simultaneously, on 21.08.04 it was reported that “policy” to auction rather than cheaply allot school sites has been sent by DDA to LG and Delhi Government has “objected” on general ground of commercialization and out of specific concern that “charitable institutions and non-government organisations will get sidelined”. It has also suggested that auction proceeds be shared with it on the premise that "since the land acquisition is done by the government through the LAC the revenue should be ploughed back in to development and welfare activities" (Govt objects to DDA's land policy5).
Before starting to elaborate the subversions involved here, three things need to be said. One, “commercialization” that Delhi Government claims to be opposed to is intrinsic to its “vision” for Delhi, based on exclusive bhagidari with a few in abrogation of Constitutional obligations for all and ad-hoc projects in contravention of statutory Delhi Master Plan framework for equitable and efficient city development. (Chief Minister has declared, in her Independence Day speech, that her government remains committed to consolidate gains of Bhagidari in making Delhi a world-class city). Considering that violaters in the instant matter are mostly NGOs / Trusts to whom Delhi Government has been distributing “essentiality certificates” for land allotments (with no regard to DMP) and not restraining from willfulness even after court orders, its “concern” for them vis-a-vis the new “policy” is, at best, concern for “bhagidaars” in its “vision” (and its claim to share of proceeds from auction of public land is really “vision” finance solicitation, illegal since its “powers” of land acquisition are governed by Delhi Development Act, which requires proceeds from land disposal to be ploughed back into a revolving fund and expressly prohibits use of this for any purpose other than DMP). That Delhi Government’s “vision” continues to be shared by Central Government has become amply clear in the last three months. On 19.08.04, when offer of 50 crores was reiterated and accepted, hoardings with pictures of Tourism Minister were up in South Delhi for inauguration by her of a “Medical Tourism” wing in an up-market Hospital unlikely to be providing 25% free beds and outer Delhi MP’s personal plan for healthcare (drawn up with party colleagues in Delhi government), with “super-specialty units” featuring prominently, was also reported (Health facilities to be upgraded6).
Two, not only is government disinclined to enforce the law, it is in no position to do so because it is itself violating it. On 19.08.04 shuttering material was being unloaded for Delhi Government’s super-specialty Institute of Liver and Billiary Sciences in Vasant Kunj, for which foundation stone was laid by Chief Minister in September 2003 – on a site for 200-bed government hospital somehow allotted to it in Master Plan Green Belt in duly notified ground water critical area, at the end of residential access road, amidst an upcoming up-market unauthorized colony replete with farmhouse party menace (Liver institute skips over Masterplan7. The 40-crore project is among those in the area challenged in PIL but construction on it started in July 2004 (Construction of liver institute at VK begins8). Central Empowered Committee appointed by Supreme Court is also seized of the PIL, which relies also on precedent judgment of 2002 against identically illegal Sultangarhi scheme, a case of statutory authority itself indulging in illegalities it is duty-bound to act against that the Court had found fit case for inquiry by DDA Chairman (LG) but which has not been inquired into, despite recent requests to (new) LG and MoUD Secretary (also in letters forwarded by President’s Secretariat). The court’s apprehension that authorities would be emboldened to perpetuate identical illegalities has come true, to set example also for others. On 19.08.04 was also reported the case of a building constructed on a site cheaply allotted for 200-bed charitable hospital in Vasant Kunj being up for sale for 45 crores after a builder took over the private Trust that was allotted the land for 1.97 lakhs.
Three, government is inclined not only to allow public land to be misused by “bhagidaars” in its “vision” but also to ensure that they are not burdened with the costs of their private profits from such misuse. The illegal policy announced in February to allow commercial misuse of farmhouses at a “fee” is reportedly in limbo only because farmhouses desire a lower “fee”. The illegal cooperative Bill passed in July 2003 to regularize power-of-attorney sales (with cooperative sector, also allotted cheap land, largely having been taken over by realtors) is currently being reconsidered after notification only because beneficiaries wish to pay less for “conversion”. This is even as the “fee” originally determined is itself throwaway, no where near recovering costs of the illegalities being “condoned”. By agreeing to accept, even consider, Escorts’ offer of 50 crores, government has now progressed to gifting away the state’s privilege even to decide the starting point for such illegal negotiation. The temerity with which Escorts has offered peanuts is well suited to this monkey-business. A globally reputed health facility making such offer out of any genuine compulsion would have offered the profits it has made by not providing 25% free healthcare from the day it started functioning and whatever amount is settled for condonation for future. DDA and MoUD, duty-bound to penalize misuse, ought to have immediately informed the court, before any consideration of Escorts’ offer, that an Act amendment is under consideration to enhance misuse penalties, reportedly to “10 per cent of the market value of the property per day” (Plan violators to pay dear9, 13.02.04). Instead, like the builder that reportedly took over a shady Trust, the world-class Escorts put, and government of India decided to accept, the worth of health rights of citizens at paltry 50 crores, reportedly calculated on basis of difference between allotment rate and prevailing market rate and interest rate – a mercenary basis utterly devoid of basis not only in the statutory regime from which the lease conditions flow but also in principles of planning or medical professions, and arising only from simplistic PIL that entirely erroneously connects conditions for free beds in hospitals (and free seats in schools) to cheap land allotments.
Facility, charity and law
Land in Delhi is not just cheaply allotted at times but also cheaply and compulsorily acquired all the time since over 40 years under a policy of socialization of land to facilitate development according to DMP and safeguard the interests of the poor in its benefits. The provisions of DMP are statutory, amounting to entitlements of citizens, and it is explicitly stipulated that all land will remain in public ownership and be leased out on equitable basis. Lease conditions are for ensuring enforcement of DMP entitlements and have NOTHING to do with charity. Price charged for use of public land is NOT amenable to mercenary interpretations because DMP and its land policy are not mercenary in conception and are explicitly aimed at equitable and efficient development for enforcing fundamental rights guaranteed by the Constitution of India. Conditions for free seats and free beds are NOT conditions in lieu of cheap land allotments but instruments for efficient and equitable DMP implementation, arising from and contributing to at least three fundamental planning principles and their underlying assumptions:
- On the assumption that health and education facilities are not to be commercialized, they are contemplated as non-remunerative uses to benefit from proceeds from remunerative development like commerce, up-market housing, institutions, etc, in DMP logic of cross-subsidy across classes of uses. While remunerative disposal may be justifiable in certain situations, land disposal policy that treats facilities at par with commerce, etc, is contrary to this logic. Additional concessions are not charity compensation but incentives for speedy development for universalisation of healthcare and education.
- On the assumption that communities must be integrated for equity and efficiency DMP logic of cross-subsidy across classes of users requires free seats / beds or equivalent conditions, quite irrespective of price charged for sites, since there is neither any other land nor any other way by which the poor can have equitable access to facilities, which is a key objective of DMP land policy. The over-riding DMP provision for integrated communities is the stipulation of 25% EWS housing in every community / residential development of 100,000 persons and the 25% in conditions for free beds and free seats is consistent with this and not open to arbitrary changes.
- On the assumption that community facilities have to be viewed from vantage of communities and not facility sites or managers, their provision is embedded in DMP logic of hierarchical community structure – cluster, pocket, area, district, zone, city, region. Inclusivity is intrinsic to this logic – through provisions for inclusive communities and self-seeking balance of supply and demand at hierarchical local levels – in which trivia like lease conditions are mere safety valves, neither contemplated for nor capable of driving the larger scheme of the logic.
The case against super-specialty hospitals and posh schools failing to provide amenities to integrated community at relevant hierarchy level, etc, is no trivial case of lease violations. It is a significant – as significant as education and health – part of the very serious case of subversion of planning law and principles and assumptions about equity. What is going on on sites meant for equitable health and education is, irrespective of what price is charged, paid or offered for these sites, “non-conforming” – a case lately settled by Supreme Court for industries, like which hospitals can also be polluting, besides which all sites attracting large numbers of users have implications by way of infrastructure stress and nuisance for loss of amenity to resident communities.
The PIL driven discourse about free seats and free beds, by disconnecting the procedural regime of lease conditions from its statutory context, is subverting the law, the planning principles underlying the law and, now, also the very assumptions about equitable health and education.
The assumption that health and education will not be commercialized has been put on its head in developments following court orders in PIL about free seats in schools including policy decision to dispense with them, and in policy decision on 50 crore offer emanating in court in PIL about free beds in hospitals (and, also this year, in property tax “reform” that creates category of “commercial” education and health facilities). The assumption of integrated communities, under grave threat for some time now from two-pronged attack via demands of illegal resettlement and illegal regularization to disconnect the slum problem from its DMP integrated housing solution, is tottering with the decision, as per Rajya Sabha press release of 16.08.0410, to disconnect it also institutionally by privatizing low-income housing to NGOs/builders in line with some UNDP policy project signed last year (consistent with developments in PIL about slums in 2000-2001) and may not survive the side attack from the facilities front. The assumption that concerns of communities, not of facility managers, will guide provision of community facilities has already fallen to this discourse, not only stuck between violaters, authorities indulging them and PIL lawyer petitioners, but also bent upon disregarding brazen violations for commercialization without which conditions for free seats / beds cannot be violated.
Consider the case of the Hospital in Vasant Kunj about which Hindustan Times of 19.08.04 provides the following facts: It is located near sector B-1, the plot was allotted in name of a Trust for 1.97 lakh, a board saying 200-bed charitable hospital was on display (though the report does not mention name of hospital or Trust), construction was completed in three years, the hospital is not functional. To these can be added further facts: the posh building is at one of two major T-junctions on the main road, name of the Trust is Flt Lt Rajan Dhall Charitable Trust, the site has no conspicuous signage and at least till 2002 had no signage at all, construction mostly happened in 2001-2002 without mandatory board providing details of owner, architect, etc, the posh building in prominent location has been lying unused for over two years. The HT story has a flat resident opining that if hospital meant to be charitable is run on commercial lines purpose of allotting land for low cost services is defeated (to which must be added that lease conditions require cheap facility only to the poor); one of the Federation of RWAs saying the trustees lately fell out and a builder called Sarin was roped in (to which must be added the gentleman quoted is a doctor and Mr Sarin would be more accurately described as realty consultant); doctors and hospital administrators negotiating with the builder alleging he is demanding 45 crore (to which must be added query about the allegers, since the hospital is not functional); DDA Lands Disposal Commissioner saying DDA has issued show-cause notice last Friday (ie, 13.08.04) for transfer of trustees, constructing basement in excess of permissible limit and constructions in the setbacks (to which must be added that this has nothing to do with the charity and nobility gripe of the rest of the story).
The Hospital, which is correctly located as per approved layout plan and is not functional, has not violated any Master Plan conditions for facility. There are building level violations that may well be compoundable, readily rectifiable minor procedural lapse about not informing DDA of change in trustees and delay in use (that is not mentioned). That a mysterious builder about which the RWAs seem to know has demanded 45 crores from doctors and administrators of a non-functional hospital seems, more than anything else, a typical bhagidari mess involving gifting of public land to some bhagidaar in some unworthy Trust, popular endorsement by RWA bhagidaars of misuse of site for posh facility, inter-bhagidaar alliance between Trust and doctors among RWAs, appearance of third-party bhagidaar, etc. The conjecture can be dismissed, but the fact of unused posh building standing since 2002 that all quoted in report of August 2004 are fully aware is supposed to be charitable hospital and also of two letters of February 200211 pointing out building illegalities in non-functional hospital and uncharitable behaviour of charitable Trust – one to the manager of the Trust with copy to the Federation and the other to LG and copied to most authorities and per chance also to the reporter who filed the instant story – having evoked no response (perhaps because they were with reference not to some 45 crores but to harassment of one Mr Mandal, a tea vendor) raise a couple of questions about concern about charity: How did Flt Lt Rajan Dhall Charitable Trust that built a posh building get to be called Charitable in the first place? How was an essentiality certificate given to it for its charitable project on a legal site in Vasant Kunj while government picked for its hospital a plot in Green Belt? Why was no action taken against the Charitable Trust when it started construction without even mandatory boards? Why was it not noticed that its building looked more like luxury hotel than charitable hospital? Why was action not taken against its encroachment of right-of-way for pretty-fication plantation? Why was no note taken of complaints of charitable hospital harassing a poor hawker? Why was no action taken against fully built hospital remaining non-functional for two years? Why were (only) basement and setback violations noticed more than two years after they were obvious, two weeks after massive eviction in the area? And why are those meant to benefit from mandatory charity conditions nowhere in the discourse about them? Does any one want to know what happened to Mr Mandal? Or about the poor in the area for whom the hospital has to have free beds? The non-poor who clamor for freebies in facilities without objecting in holistically connected manner either to violations making for commercialization of facilities or to evictions of the poor are really blackmailing facility providers in name of the poor for benefit of their own “class”. There is a certain inevitability about the course of this sort of drift, though a 50 crores offer in open court was rare temerity.
The case against misuse of facility sites in case of schools in Vasant Kunj is in court in a clutch of PIL by all sections of local community. Not far from the Hospital site allegedly up for sale for 45 crores, a school just built has been taken over by the one across the road. The latter is very posh, occupies site meant for smaller school, causes parking mayhem outside and noise and pollution with diesel generators for air-conditioning, has taken over the adjoining park, etc. The daughter of former DDA Commissioner (Planning) taught or teaches in it. In 2003 it approached High Court against DDA Notice about the temporary structure that it had retained even after main building came up and the court rejected its contentions and ordered demolition, allowing time till end of academic year (a plea, incidentally, not granted for Pushta children in 2004). DDA and Police (parties in the communities’ PIL) have not ensured compliance of demolition order in case of the posh school, but were party last month to a late evening demolition without notice of a school for the non-rich in the area (about which “representations” await response, including two forwarded by President’s Secretariat to MoUD Secretary). That site is identically located – in Master Plan Green Built amidst up-coming posh unauthorized colony – as Delhi Government Liver Institute and also, say, TVB School of Habitat Studies (where DDA architects and planners, including a former chief whose wife runs in the area a very pretty school for the handicapped on site meant for primary school, are indulged with invitations to participate in academics). In 2002-2003 the principal of the school demolished last month had written to DDA for a legal site and parents and students had also raised the issue in responses to Public Notice as well as in representations pending before Standing Parliamentary Committee. The students aggrieved by the demolition, besides by non-compliance of conditions for free seats, had also tried in 2000-2001 to support an area school’s charity effort to educate the poor, but it soon became clear that charity not education was its focus. The principal is a resident in flats near the up-coming Delhi Government Livery in Green Belt, from where bhagidaar RWA attendance was maximum at its Chief Ministerial foundation stone laying. The teacher in-charge of the schools’ charity idea is wife of a bhagidaar RWA President who has lately disbursed out of bhagidaari funds an honorarium to a flat resident for clearance of the slum whose residents had moved court for housing as per Plan on a proximous site, such as occupied by Sahara Restaurant, on same main road as charitable hospital allegedly up for sale for 45 crores…
The cases praying for misuse on school sites to be stopped so that DMP equal access neighbourhood school entitlements of communities in Vasant Kunj can be enforced were filed in December 2003, after three years of out-of-court efforts, measure of last resort with simplistic free seats orders imminent and downsizing revision of DMP and education law-making underway. All efforts to draw attention to impossibility of compliance of free seats order of 20.01.04 outside its statutory context and to possibilities of using that order for progressive implementation of a common school system have been in vain. In the PIL lawyers’ clutch was added another matters with neighbourhood school issues with no reference to DMP provisions. Requests to bring to the attention of that bench the fact of same issues being before Chief Justice’s Bench that gave the free seats order have also been in vain. NIEPA has been asked in that matter to comment and academics in it will hopefully use to look learned the plannerly notes sent to NIEPA on behalf of communities to which it has not cared to respond. The respondents and petitioners in the free seats order have come together for new law-making in bhagidaari. Authorities have been deploying dilatory tactics in the communities’ PIL and they and schools alike have not responded to letters suggesting discussion about solutions even as alternative “policy” decisions based on their problems progress rapidly as do other PIL…
While considering doing away with conditions for free beds, according to Express Newsline news report of 20.08.0412, Delhi Government said on affidavit that one Dharamshila Cancer Hospital has misled the court by claiming that authorities had relaxed for it the free bed condition from 25% to 10% and DDA said on affidavit that there would be no justification for reducing the percentage. It may be recalled that negotiations in case of schools had reached at some point last year 5% and even though the court order of 20.01.04 clearly mentions 25% Delhi Government’s administrative order of 27.04.04 is for 20%. Indeed, negotiation of percentage of free seats and beds, plump red herring in the discourse about them considering that no percentage is being enforced, is practically all that has been going on for over a year even as, as mentioned, the 25% is no arbitrary percentage, but the percentage estimate of EWS in the community (borne out by Census 2001 data for slums, reasonable indicator of EWS population in absence of implementation of DMP targets for EWS plots). Delhi Government’s sweeping order, in line with NDA Bill that UPA seems keen to pursue, for 20% BPL downsizes the DMP city level entitlement of 25% EWS. It would require at the least DMP modification by due process (inclusive of Public Notice) and is actually a non-permissible modification since it alters the basic character of the Plan. This conflict has been questioned in representations, including one forwarded by President’s Secretariat to MoHRD Secretary in June 2004. But the discourse is being driven elsewhere. The PIL lawyer to whom goes credit for the free seats order has circulated recently an article that, among other things, argues there is no difference between 25% and 20%...
Seven months after the free seats order in PIL that should have had every poor child in Delhi in a private school, Express Newsline had an account of one child admitted to a free seat by an obviously reluctant school as a result of NGO assisted use of Right to Information in protracted effort become newsworthy in a report of 19.08.0413, offering in serial ode to RTI. To tragedy of enforcement of rights requiring increasing recourse to courts, seems to be getting added the tragedy of compliance of court orders requiring recourse to RTI. The first bit of work that NGOs-dominated NAC has done on National Common Minimum Programme, incidentally, is on RTI…
The writing is on the wall and it sucks. Of all sick grafitti, the scrawl from free beds and seats to cheap-selling health and education rights and nobility of noble professions and more sucks the most.
Gita Dewan Verma | Planner | 23.08.04
> 10 questions: Letter to Secretary MoUD, 22.08.0414
- 1. source: http://cities.expressindia.com/fullstory.php?newsid=85156
- 2. source: http://cities.expressindia.com/fullstory.php?newsid=85925
- 3. source: http://cities.expressindia.com/archivefullstory.php?newsid=96198&creation_date=2004-08-20
- 4. DDA's hospital move may cut the poor out
NEW DELHI: The poor can say goodbye to free treatment at the Capital's high-end hospitals. After debating the issue of providing free beds and out-patients facilities to the poor, the Delhi Development Authority (DDA) has decided to take money from Escorts hospital and bail it out of providing free treatment.
http://www1.timesofindia.indiatimes.com/articleshow/821305.cms (Retrieved 4th July, 2013)
- 5. Govt objects to DDA's land policy
NEW DELHI: Delhi government has expressed objections to a new policy of auctioning institutional land for schools. The policy formulated by the DDA is with the Lieutenant Governor for consideration. At present, land is allotted on concessional rates by DDA on recommendations of the Delhi government.
http://www1.timesofindia.indiatimes.com/cms.dll/articleshow?msid=822278 (Retrieved 4th July, 2013)
- 6. Health facilities to be upgraded
NEW DELHI, AUG. 18. To improve the lot of the people of his constituency, the Outer Delhi Member of Parliament, Sajjan Kumar, has drawn up a comprehensive plan for expansion and improvement of existing health facilities to ensure that people do not have to go to far away places to seek medical treatment.
http://www.hindu.com/2004/08/19/stories/2004081917620300.htm (Retrieved 4th July, 2013)
- 7. source: http://cities.expressindia.com/fullstory.php?newsid=62187
- 8. Construction of liver institute at VK begins
NEW DELHI: After a three-month long legal wrangle, work on the 280-bed Institute of Liver and Billiary Sciences at Vasant Kunj, has been finally started.
http://www1.timesofindia.indiatimes.com/cms.dll/articleshow?msid=757252 (Retrieved 4th July, 2013)
- 9. Plan violators to pay dear
NEW DELHI: The next time you plan to extend your boundary wall or pave the green area in your colony, think again. Delhi Development Authority (DDA) will not let you get away with a fine of mere Rs 5,000 for Master Plan violations but will literally make you pay through your nose for it.
http://timesofindia.indiatimes.com/articleshow/493692.cms (Retrieved 4th July, 2013)
- 10. Rajya Sabha press release of 16.08.04
http://www.pib.nic.in/hrelease/h-release.asp?relid=1331 (Retrieved 4th July, 2013)
- 11. "Uncharitable Hospital Trust" - Letter of February 24, 2002
Letters of February 2002 following harassment of tea vendor by a charitable trust management owning a freshly constructed unutilized building on site meant for hospital in Vasant Kunj and news report of 19.08.04.
- 12. source: http://cities.expressindia.com/archivefullstory.php?newsid=96198&creation_date=2004-08-20
- 13. source: http://cities.expressindia.com/fullstory.php?newsid=96046
- 14. Health and education facilities – land policy initiatives
10 questions about land "policy" initiatives for health and education facilities, notably the decision to accept escorts' offer of 50 crores to "get rid of" lease conditions for free beds.