Analysis of the existing legal framework and its impact on the right to land and housing of the deprived urban communities in Tamil Nadu

Transcription

1 Analysis of the existing legal framework and its impact on the right to land and housing of the deprived urban communities in Tamil Nadu Information and Resource Centre for the Deprived Urban Communities (IRCDUC) Information and Resource Centre for the Deprived Urban Communities E- mail: Mobile: Visit ircduc.blogspot.in

2 Information and Resource Centre for the Deprived Urban Communities (IRCDUC) is a community-centric information hub designed to educate and empower the deprived urban communities in Tamil Nadu. The primary objective of the centre is to enhance the capacities of the community leaders and community based organisations enabling them to assert for their right to adequate housing and basic amenities. The centre seeks to collect, collate and disseminate the information about various government laws, policies and schemes that are instrumental in ensuring adequate housing for the deprived urban communities. The centre also engages in facilitating a community-centric policy analysis process to identify the various gaps in the existing policies related to the urban housing programme. It further evolves pro-poor policy recommendations by producing evidence based citizens report. The resource centre is also a platforms for the leaders of the deprived urban communities to share their issues, exchange ideas and reflect on probable strategies that can enable them to assert for the right to adequate housing and urban spaces. IRCDUC is a consortium of community-based organisations, civil society formations and like-minded individuals who aspire to make a difference in the lives of the deprived urban communities. 2

3 Analysis of the existing legal framework and its impact on the right to land and housing of the deprived urban communities in Tamil Nadu Contents: 1. Slum Definition p4 2. Introduction p5 3. The laws that Impacts the lives of the Urban Deprived Communities in Tamil Nadu p7 to p28 1) Tamil Nadu Slum Areas (Improvement and Clearance) Act, ) The Chennai City Municipal Corporation Act, 1919 & Tamil Nadu District Municipalities Act, ) The Tamil Nadu Town and Country Planning Act, ) The Tamil Nadu Land Encroachment Act, 1905; The Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 & The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, Towards Comprehensive Legal Safeguard p29 to p30 3

4 UN-HABITAT defines a slum household as a group of individuals living under the same roof in an urban area who lack one or more of the following: 1. Durable housing of a permanent nature that protects against extreme climate conditions. 2. Sufficient living space which means not more than three people sharing the same room. 3. Easy access to safe water in sufficient amounts at an affordable price. 4. Access to adequate sanitation in the form of a private or public toilet shared by a reasonable number of people. 5. Security of tenure that prevents forced evictions 4

5 i. Introduction: As India has shifted from an agrarian to a primarily urban-based economic system, the country has also experienced a different type of transition: human populations. City migration is becoming increasingly common, with cities experiencing the largest population growth during the past fifty years producing slum cities within cities. Population projections by the United Nations estimate that by 2030, India s urban population will grow to 576 million and constitute 40 percent of the total population. Yet, with this increasing urbanization, the nation is experiencing new challenges that are characterized by the urbanization of poverty with almost one out of four poor persons dwelling in urban slum communities. Urban slums have been part of the history of most cities, particularly in the early years of urbanization and industrialization as populations boomed. Urban slums are integral part of the cities history also because the residents of the slums were predominantly responsible for building the cities brick by brick by their labour. Slums are generally the only type of settlement, which is affordable and accessible to the poor in cities, where competition for land and profits is intense. Urban slums are inhabited by extremely vulnerable communities. Like all informal settlements, houses in slums are built on land that the occupant does not have a legal claim to and are obviously without any urban planning or adherence to zoning regulations. In addition, slums are often areas where many social indicators such as education, access to clean drinking water, sanitation facilities etc. are on a downward slide while social issues like unemployment are on the rise. UN-Habitat s operational definition for slum dwellers was reached through an Expert Group Meeting convened by UN-Habitat, the United Nations Statistic Division and the Cities Alliance in It describes a slum household as a group of individuals living under the same roof lacking one or more of the following conditions: (1) access to improved water, (2) access to improved sanitation facilities, (3) sufficient living area not overcrowded, (4) structural quality/durability of dwellings, and (5) security of tenure. These conditions represent the Five Deprivations negatively affecting the lives of slum dwellers. In this the most critical aspect is the tenure status of the millions of slum households. According to UN-Habitat estimates (Security of Land Tenure Today, 2003), one decade ago 924 million people in urban areas did not have security of tenure. In 2014, this figure is expected to have grown exponentially given the high rate of urbanization in developing countries. Most residents of urban slums live without any form of secure tenure and under constant threat of eviction, which prevents them from accessing credit and constraints their motivation to improve their homes and neighborhoods. Slum areas that are not titled, not only poses a challenge in improving the living conditions of the people but also denies the legality of the existence of the residents. According to the Tamil Nadu Slum Clearance Act of 1971, the government is supposed to identify slums, officially recognise them as slums, and then improve these areas. As soon as the Act was passed, the Board 5

6 identified and recognised approximately 1,202 slums in Chennai, and added another 17 slums to the list in Most of these slums were improved insitu, either by building tenements or by providing basic services. However, in a sharp break with this progressive history towards the urban poor, not a single new slum has been officially recognised in the city since In the nearly three decades that have passed, hundreds of new slums have sprung up in the city. In the absence of political will and effective governance institution that are based on the rule of law, there is little chance that the core right will be respected. Thus relying on the law and legal institutions context is crucial when assessing impact on the right to land and housing of the deprived urban communities in Tamil Nadu. The nature and scope of such an analysis will vary, of course, depending on the geographical presence and communities dwelling. Despite this variety, there are certain basic analytical issues that are likely to be pertinent to most the issues. This paper briefly outlines some general laws and legal institutions, with the objective to impart legal reprieve to the deprived urban communities on housing and shelter, water, sanitation, health, education, social security and livelihoods along with special needs of vulnerable groups like women, children and aged people. Information and Resource Centre for the Deprived Urban Communities (IRCDUC) interactions with the deprived urban communities reveal that there is a need for analysing the existing legal framework and its impact on the right to land and housing of the deprived urban communities because of the following reasons: The deprived urban communities are not aware of the legislations that protects as well as endangers their lives, therefore there is a need to research, collate and disseminate information to the communities To combat the ever increasing violation of the right to land and housing, unleashed against the deprived urban communities; there is a need to disseminate information about the provisions in the existing laws that protects their rights There is also a growing need for understanding the limitation of these laws in protecting the rights of the deprived communities, especially in the present context where there are multiple programmes and projects that have an adverse impact on the lives of the communities Need to analyse the propitious as well as adverse impact of the laws on the lives of the community so as to enable them to make use of the positive elements in the legislation and to propose pro-poor recommendations to the policy makers which are in favour of urban poor. To raise awareness among the communities as well as other stakeholders alike, regarding the need for pro-poor provisions in these existing laws, so as to initiate a pro-active public discourse on the same leading to legal/policy reforms 6

7 ii. The laws that Impacts the lives of the Urban Deprived Communities in Tamil Nadu 1. Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (11 of 1971) The Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 resulted in the formation of the Tamil Nadu Slum Clearance Board (TNSCB). The Board was formed with the motto God, we shall see, in the smile of the poor for the clearance and improvement of slums in Tamil Nadu. 1 The Tamil Nadu Slum Areas (Improvement and Clearance) Act commonly referred as the Slum Act is the key legislation that impacts the lives of the deprived urban communities in Tamil Nadu. This act was formed under the premise that slums are likely to become source of danger to public health and sanitation of the said areas. 2 And therefore it was viewed that the growth of slums has to be arrested and the existing slums have to be either cleared or improved so as to provide the people with improved living conditions and better accommodation. a. Slum Act to expand beyond the Public Health Domain: This act is grounded on the Directive Principle of State Policy embodied in the Constitution (Part IV: Article 47) the State should regard the improvement of public health as its primary duties. 3 As Public Health forms the basis of this act the issues related to the slum is also predominantly restricted to the public health domain. Where as it is to be noted that Slums constitute of both the Economically Weaker Sections and the Socially Disadvantaged Sections dealing with various realms of issues including land, housing, rehabilitation, resettlement, livelihoods, education and social society. Therefore we propose, that the following articles embodied in the Directive Principle of State Policy should also be encompassed in the act: Part IV: Article 38 (2): The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas engaged in different vocations. 1 Official Website of the Tamil Nadu Slum Clearance Board: Link: 2 Justice Kader, S. A., Sambandham, S., (2009, 10 th Edition). The Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (11 of 1971). In M. L. J. s Civil Court Manual (Tamil Nadu Acts & Rules) (Vol. 8, pp ). Nagpur: LexisNexis Butterworths Wadhwa. 3 Ibid (p - 267) 7

8 Part IV: Article 39: The state shall, in particular, direct its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means of livelihood Part IV: Article 41: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance Part IV: Article 46: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation b. Redefining Slums : The Slum Areas (Improvement and Clearance) Act does not provide a clear-cut definition of slum. However in Chapter II: Declaration of Slum Areas, it is pointed out that the Government can declare an area to be slum if the Government is satisfied that: (a) any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area being low-lying, insanitary, squalid, overcrowded or otherwise; or... 4 It is to be noted that the slums can be defined beyond the existing definition provided in the act. Some of the issues with the existing definition are as follows: Are slums detrimental to the safety of the public of that area or its neighbourhood? The phrase danger and safety adds on to the existing stigma that the general public has towards slums The current definition is restricted only to the public health domain. However, slums could be defined based on the profile of the communities and their contribution to the urban local economy. This could add a positive note to the slums and help in breaking the existing stigma and criminalising attitude the general public has towards slums c. Slum growth prevention strategies not effective: One of the key activities prescribed under this act for the prevention of growth of slums is Registration of buildings. Under Chapter III: Prevention of Growth of Slums, Section 4, it is stated that (1) (a) the owner or occupier of every building situated in any slum area 4 Ibid (p - 269) 8

9 shall send to the prescribed authority a statement in such form as may be prescribed. 5 However, we have to note that this prevention strategy has not been effective because of the failure to adopt the following implementation strategies: The deprived urban communities are not aware about the Slum Areas (Improvement and Clearance) Act. There have been no efforts undertaken by the TNSCB to spread awareness among the communities in the slums about the Act and its relevant provisions. There is no vernacular version (Tamil version) of the Slum Areas (Improvement and Clearance) Act made available even in the official website of the TNSCB. An information docket suitable for the communities could be made available in Tamil so that the communities in the slums are aware of the key provisions of the act. The role of the Community Development (CD) Wing is predominantly restricted to enumeration, vocational training and other community development activities related to livelihood. We propose that dissemination about the act should also be included as part of the community development activity of the TNSCB. There is also a requirement to ensure that the staffs of the CD wing are in proportion to the number of slums in the cities and the role of the CD wing should expand to suit the overall development needs of the slums. The Tamil Nadu Slum Clearance Board Community Service Rules, 1993 should encompass the above-mentioned points and the role of the CD wing should be elaborated in the Service Rules. d. Declaration Process to be Effective, Accountable and Transparent: The Slum Areas (Improvement and Clearance) Act has the following provisions for declaration of slum: Declaration of Slum Area: There must be a notification declaring a particular area as a slum area under Section 3 of the Act Declaration as Slum Clearance Area: The TNSCB can declare an area as Slum Clearance Area based on a report either from the Board or the prescribed authority, of the local authority concerned or the State Housing Board or an officer authorized by the Government for this purpose 6 when they are satisfied that the most satisfactory method of dealing with the conditions of the area is the clearance of the area. Section 11 (1) 5 Ibid (p - 270) 6 Ibid (p - 273) 9

10 However, it is to be noted that before issuing a notification that an area is to be of slum clearance in nature the Government shall call upon the owners of the lands and buildings in such slum area to show cause why such declaration should not be made and after considering the cause, if any, shown by such owners, the Government may pass such orders as they deem fit. Section 11 (1) 7 It is after the issuance of the notification that the TNSCB acquires the obligation and the power to clear the slum clearance area (Section 12 & 13). There also provisions under this act for the owners to re-develop (Section 14) as well as the prescribed authority to re-develop the clearance area (Section 15). The major issue related to the declaration is that the communities are not aware whether their area is a notified slum area or a slum clearance area. Even when their area is notified as a slum clearance the communities are not aware of the procedure to respond to the show cause notice issued by the TNSCB as prescribed under Section 11 (1). Therefore there needs to be a transparent approach adopted in the notification process that includes disseminating information relating to Section 11 of the Slum Act. Notified and Non Notified Slums in Tamil Nadu (Slum Free Plan of Action Rajiv Awas Yojana - RAY) Percentage of noti-ied and non noti-ied slums Erode Madurai Salem Thiruchir appalli Tirunelv eli Thoothu kudi % of Non Notiaied Slums % of Notiaied Slums Analysis of the information available in the Slum Free Plan of Action of the various cities in Tamil Nadu reveals that many of the slums still remain non-notified across the state. In the city of Salem none of the slums surveyed under RAY are notified In the city of Thoothukudi of the 100 slums surveyed under the RAY, 87 slums still remains non-notified. The notification processes of the 13 notified slums were all 7 Ibid (p - 273) 10

11 carried out prior to Of the 63 developed slums in Thoothukudi only 1 slum is notified leaving 62 of the developed slums non-notified. It is also to be noted that the Slum Free Plan of Action of the cities of Chennai, Coimbatore, Tiruppur and Vellore do not have details regarding the status of notification of slums. The absence of information about the status of notified slums in the slum free plan of action of 4 cities and the higher percentage of prevalence of non notified slums in the other cities clearly depicts the lack of importance provided to the process of notification therefore calling for effective and accountable process of declaration of slums. It is also to be noted that the Slum Free Plan of Action of these cities does not have any plans for declaration of slums. In the Audit Report (General and Social Sector) for the year ended 31 March 2014 issued by the Comptroller and Auditor General (CAG) of India, the following Audit findings related the Tamil Nadu Slum Areas (Improvement and Clearance) Act,1971 has been made: Non-notification of slum areas: It was observed that GoTN notified 1,202 slums in 1971 and 17 more slums in 1985 and thereafter no proposals were submitted by TNSCB for notification of slums and hence no slums were notified by the Government. As per all India survey conducted in 2012 by the National Sample Survey Office, there were 2,364 slums with 5,88,611 households in urban areas of the state, out of whch slums notified were 1,156 comprising of 2,45,089 households, constituting 49 per cent of the total slums. In reply, MD, TNSCB stated (September 2014) that migration of people to Chennai was heavy and incessant due to employment opportunities in the city. It was further stated that formation of new slums in the city and migration of people are socio-economic phenomena which cannot be vigilantly watched or controlled by TNSCB. The MD, TNSCB further, stated that declaration of slums would only encourage slums dwellers to encroach vacant lands and claim right over the land besides demanding basic services. Meagre allocation of funds from the State Government for meeting the needs of slum dwellers was also cited as a reason for non-notification of slum areas, which was also noticed by audit The fact, however, remains that slum surveys were conducted under the Tamil Nadu Urban Development Programme in Chennai in 1986 and in nine other places in Thereafter, slum survey was conducted in Chennai in A comprehensive socioeconomic survey was undertaken only in Chennai in 2011 in all the 10 cities by TNSCB under the Rajiv Awas Yojana, a centrally sponsored scheme. Thus, no survey was carried out by TNSCB during the period in towns other than Chennai and in Chennai during to identify and notify slum areas, which are the statutory functions of the prescribed authority (TNSCB) as envisaged in the Act. 11

12 The MD, TNSCB stated during the Exit Conference (October 2014) that since the Act was passed forty years ago, it might need modifications based on present circumstances and the matter would be taken up with the Government. Non Declaration of Slum Clearance Areas: It is to be noted that no proposal for notification of slum clearance area in the state was furnished to the GoTN by the Board, since its inception. With the TNSCB failing to declare any slum as a slum clearance area since its inception on what basis were all the evictions carried out? Non-registration of buildings in slums: It was seen that no records on registration of buildings in slum areas were maintained by TNSCB. This was also confirmed by the TNSCB Chief Engineer and the MD, TNSCB (July 2014 and September 2014) stating that no action was taken to register buildings and the TNSCB was not equipped with manpower and resources to map the entire city slums and control building activities therein. In the above mentioned report CAG has recommended TNSCB may consider taking necessary action for notification of slum areas, declaration of slum clearance areas, demolition of tenements unfit for human habitation and eviction of encroachments However, there are certain jurisdiction issues in the post 74 th Constitutional Amendment phase further complicating the notification and declaration process: In a response to a RTI application dated the TNSCB has stated the following: Question: After the enactment of 74 th Constitutional Amendment Act, who is responsible for declaration of slums? Is it the ULB or the TNSCB? If it is the ULB has there been any amendment in the Tamil Nadu Slum Areas (Improvement and Clearance) Act 1971? If yes, please specify the amendment details Response: The declaration of slum are not being done by TNSCB for the present The unresolved issue that needs to be answered is that who is now responsible for declaration of slums? Is it the ULB or the TNSCB? As per the RTI response the TNSCB is no longer declaring slums, are the ULB s mandated to declare slums? e. Provisions for protection from eviction to be strictly adhered: Chapter VII of the act deals with the protection of Occupants in Slum Area from Eviction. Section 29 clearly states that proceedings for eviction of occupants not be taken without 12

13 permission of the prescribed authority. 8 Section 29 (3) states that the prescribed authority after giving an opportunity to the parties of being heard and after making such summary enquiry into the circumstances of the case as it thinks fit shall, by order in writing either grant or refuse to grant such permission. 9 It is to be noted that for refusing to grant permission the prescribed authority shall look into the factors including availability of alternative accommodation in case of an eviction; whether the eviction is in interest of the improvement and clearance of the slum and other factors if any - Section 29 (4). There is also provision for appealing against such order for evicting the communities. There must be a notification declaring the particular area as slum area under Section 3 and as per Section 11 there must be declaration that such area comes under the slum clearance area without following the procedures under Section 3 and 11 (notification and declaration) the Slum Clearance Board has no right to evict. The declaration under Section 11 and notification under Section 3 are mandatory (1) M.L.J. page However, the emerging issues related to the community availing protection from eviction are as follows: Slums that are not declared as a slum area are often evicted by TNSCB. Further, since its inception TNSCB has not declared any slum as a slum clearance area on what basis were the evictions carried out till date? The people are often served with an eviction notice but they are not given an adequate chance to represent their grievances Communities are evicted and forced to relocate to settlements that are over 20 to 30 kilometers from their current place of habitation, thereby affecting their livelihoods that are usually location specific. Communities are not provided with concrete rehabilitation and resettlement package. The R&R packages offered should extend beyond providing alternative accommodation. Rights of the evicted community over the land, quality of the alternative accommodation provided, concerns related to livelihood and education of the evicted should also be looked into. f. Prevention of usage of extra judicial classification of slums from the programmes/projects: The terminology used to classify slums, including developed, under developed, objectionable, and unobjectionable, tenable 8 Ibid (p - 278) 9 Ibid (p - 279) 10 (Downloaded from the Official Website of the Tamil Nadu Slum Board, April 2015) 13

14 and untenable in the policy notes of the Housing and Urban Development Department and the various other documentation of the Government of Tamil Nadu, are extra-judicial, as this terminology does not fall under the domain of the Slum Act. However, settlements are being evicted because they are located in objectionable areas based on the above classification. The settlements in objectionable areas are evicted without giving due consideration to the declaration or improvement process, as mandated in the Act. The policy decisions regarding evictions are based on the above terminologies, which override the provisions of the Tamil Nadu Slum Areas (Improvement and Clearance) Act. Name of the city Number of Tenable Slums Number of Untenable Slums Number of Semitenable slums Number of Developed Slums Chennai Coimbatore Erode Madurai Salem Thiruchirappalli Tirunelveli Thoothukudi Tiruppur Vellore Total The table above is the information collated from the Slum Free Plan of Action of the various cities of Tamil Nadu. The information above clearly reflects the usage of extra-judicial terminologies to classify slums. The development/housing/resettlement plans for slums are based on the above terminologies, which override the provisions of the Slum Act that mandates the declaration process for slums. It is to be noted that none of the policy note of the Housing and Urban Development Department refers to declaration or notification of slums. However, the plans in these policy notes are based on the objectionable and unobjectionable status of the slums. The terminology of tenable and untenable has now evolved recently in the Slum Free Plan of Action for the cities without any policy backing. g. Provisions related to land tenure/housing/livelihood/community Participation to be included: The Tamil Nadu Slum Areas (Improvement and Clearance) Act does not have any specific provisions related to land, security of tenure, housing, community participation, or standards for ensuring adequate and affordable houses that are relevant for the poor in the urban areas. Many of the above-mentioned components do not have 14

15 standard guidelines and are varied according to the programmes and projects. As issues related to these are not dealt with in the Act, there are no checks and balances to monitor the introduction and implementation of various schemes, projects and programmes. It is to be noted that since the inception, TNSCB has constructed over 1.05 Lakh tenements. Under the Madras Urban Development Project (MUDP) and the Tamil Nadu Urban Development Project (TNUDP) 504 slums have been taken up for upgradation and 1.30 Lakhs families have benefitted till date Lakhs plots have been developed and allotted. 11 However, there has been no legal or policy framework for implementation of these housing projects. The state has not taken efforts to include housing components (one of the major activities of TNSCB) in the slum Act nor has it prepared the State Urban Housing and Habitat Policy (SUHHP) that is to be implemented under the National Urban Housing and Habitat Policy (NUHHP) There have been no guiding principles or framework for the houses constructed by the TNSCB till date, it is either project or programme driven. h. Norms for rehabilitation and resettlement to be formulated: Within the housing programmes of the TNSCB one of the major component has been that of rehabilitation and resettlement. To address the various gaps in the resettlement housing programmes, the Chief Secretary to the Government, in a meeting dated 1 March , had commissioned the formation of a high level committee, 14 to prepare a policy / set of guidelines / norms to be followed whenever a rehabilitation and resettlement scheme comprising around 5,000 households is to be provided. He stated, Given that there are more than 5,000 households (25,000 population), all the facilities necessary / infrastructure, funding, staffing, operation and management issues related to this and delivery of services by the local bodies and all other departments should be included as part of the package, and the committee should come up with a set of norms for this purpose. Despite having established a high level committee in the year 2011 to formulate a policy, there is still no clear policy or guidelines at the state level to govern rehabilitation and resettlement in Tamil Nadu. The current resettlement and rehabilitation practices of the 11 Policy Note , Demand no 26 Housing and Urban Development, Tamil Nadu Slum Clearance Board ( 12 National Urban Housing and Habitat Policy 2007 ( 13 Minutes of the meeting held by the Chief Secretary to the Government, in the Chief Secretary s Conference Hall, at 3:30 pm on The meeting was about infrastructure facilities to be provided in Okkiyum Thoraipakkam, Semmenchery and Perumbakkam by TNSCB. 14 The committee was officially formulated by Government Order (MS) No. 117; dated: , Housing and Urban Development (SC 1 (2)) Department. 15

16 government are diverse in nature; they are either project-based or department oriented. The major gap in Tamil Nadu is the absence of a policy framework to addresses the pertinent issues related to resettlement and rehabilitation. Moreover, as TNSCB is the nodal department for housing and resettlement it is proposed that the components of resettlement to be included in the slum act. i. Need for inclusion of the diverse/heterogeneous groups of the urban deprived communities in the Slum Act: It is to be noted that ever since the inception of the TNSCB in 1970 s there has been a lot of changes in the urban domain. Over the decades there has been diverse/heterogeneous groups who form part of the deprived urban communities. Therefore, there is a need for inclusion of these groups especially the urban homeless, nomadic tribes and the migrants in the Slum Act. There have been several programmes; schemes introduced for these vulnerable communities however permanent housing has been an unresolved issue for these groups because of the non-inclusion of these communities in the existing slum act and because of the absence of a common housing policy or guideline. 2. The Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) & Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) It is important to analyse the role of the Urban Local Body (ULB) in the context of slums, because of the enactment of the Constitution (seventyfourth amendment) Act, 1992, under which Slum Improvement and Upgradation and Urban Poverty Alleviation falls under the jurisdiction of the ULB. (Twelfth Schedule: Article: 243W). It is therefore pertinent to understand the roles of both the TNSCB as well as the ULB in relation to the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 197. This is crucial as an RTI response from the TNSCB states that the declaration of slum are not being done by TNSCB for the present. a. Provisions for slums under the Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919) This act mentions of Cheri, hutting ground defined under the act as an area containing land occupied by, or for the purpose of, any collection of huts, standing on a plot of land, or two or more plots of land which are adjacent to one another, and not less than two thousand four hundred square feet in area (Clause 8-A of Section 3) Senthil Nathan, S., (2012, 1 st Edition). Chennai City Municipal Corporation Act, 1919, (IV of 1919). Along with Allied Acts, Rules, Regulations and Notifications, (p 4) Chennai: Deccan Publications 16

17 Corporation of Chennai has the power to define and alter limits of cheris or hutting grounds: The Chennai City Municipal Corporation Act, 1919 in Section 257-A states that The standing committee may, subject to the approval of the council, decide whether any particular area is or is not a cheri or hutting ground as defined in clause (8-A) of section 3 and the decision of the standing committee shall, on such approval, be final. 16 Powers of standing committee in reference to cheris or hutting grounds: According to Schedule XI that defines the powers, authority and responsibilities of the municipal corporation, standing committees etc., Slum Improvement and Upgradation as well as Urban Poverty Alleviation falls under the purview of the ULB/standing committee 17. Further Section 415 that elaborates the powers, authority and responsibilities of the Municipal Corporation and Standing Committee states the following, the standing committees, wards committees or any other committee constituted under this Act with such powers and responsibilities with respect to the preparation of plans for economic development and social justice and also with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation the matters listed in Schedule XI. 18 It is to be noted that Schedule XI was added by Tamil Nadu Act 26 of 1994 incorporating the duties of the ULB as stated in the Constitution (seventy-fourth amendment) Act, Therefore after the promulgation of the 74 th amendment, the role of ULB and that of TNSCB with regards to improvement of slums needs to be further defined as defining and altering cheris or hutting areas fall under the jurisdiction of the ULB where as the declaration aspects are covered under the Tamil Nadu Slum Areas (Improvement and Clearance) Act. The clarification regarding the same should be provided vide an amendment in both the acts. It is also be noted that none of the Slum Free Plan of Actions prepared under the RAY mentions of the specific role of the ULB or the standing committee in terms of defining or altering slums or the actions taken towards the same. Powers to Improve Cheris or Hutting grounds: The commissioner has the power to prepare a standard plan showing the proposed improvements of a cheri or hutting 16 Ibid (p - 192) 17 Ibid (p - 361) 18 Ibid (p - 308) 17

18 grounds that includes construction of passage, surface drains and latrines, for sanitary reasons. For the improvement works when huts are totally or partially removed the owners of the building or hut is entitled to receive compensation from the municipal fund. The commissioner also has the powers to issue a notice to the owner or owners of the cheri or hutting ground to show cause why the cheri or hutting ground should not be improved (Section 257 B). 19 Improvement works that can be included in Standard Plan: Alignment of huts in regular lines with free passage to ensure proper ventilations, drains for general use, lighting, common water supply, bathing arrangements, tanks, wells and low lands that needs to be filled up, tanks to be conserved and any other improvements (Section 257-C). 20 There are also provisions under this act for the commissioner to inspect the hutting grounds that are over crowded and so not have adequate sanitation. Health officer will be one of the persons involved in the inspection and based on the inspection report the Standard Plan will be prepared for a cheri (Section 257 I). 21 There is also a need for clarification as to how the standard plan that is to be prepared by the corporation will fit into the plans of TNSCB and how the plans of TNSCB will be integrated with the plans of the ULB. Till date, there is no mention of preparation of standard plan and the role of ULB in the slum act. There should be clear-cut explanation on the roles of the ULB and TNSCB in the post 74 th amendment phase. The clarification regarding the same should be provided vide an amendment in both the acts. The various provisions of the Chennai City Municipal Corporation Act only focuses on improving the living conditions of the people residing in Cheri or hutting grounds. There are no provisions for evicting or relocating the people of these settlements. Where as, TNSCB is primarily responsible for the relocation, rehabilitation and resettlement of the slums. In this context is also important to understand the role of ULB as well as that of the TNSCB. The very fact that the word Cheri is mentioned in the Act signifies that Dalits predominantly reside in these areas. The word Cheri is predominantly used in Northern parts of Tamil Nadu referring to a Dalit Hamlet, most villages have a cheri 19 Ibid (Pp ) 20 Ibid (Pp ) 21 Ibid (p 196) 18

19 Dalit hamlet within a mile of the village site. 22 In a village system, Dalit families are entitled to construct houses only in a cheri. In this context, there should be focus on the improvement of these settlements in terms of identification of these settlements and preparation of standard plans for improvement of the same. However, the focus is now more on evicting and resettling these hamlets. It is also important to note that despite the fact that there are provisions for the standing committee to identify these areas and the commissioner to improve these locations the cheris in Chennai lack basic amenities. % of SC/ST Name of the city Populations Chennai 51 Coimbatore Erode 62.5 Madurai 23 Salem 28 Thiruchirappalli 53 Tirunelveli 29.5 Thoothukudi Tiruppur Vellore 45 The table above is the information collated from the Slum Free Plan of Action of the various cities of Tamil Nadu, the data reveals that of the 10 cities, 6 cities have more than 40% of SC/ST populations in slums. The higher rate of SC/ST population in the slums calls for promoting economic development and social justice in these areas as reinstated in the Chennai City Municipal Corporation Act. This approach of social justice and economic development should be extended to all the cities vide the Tamil Nadu District Municipalities Act as well as the Tamil Nadu Slum Areas (Improvement and Clearance) Act. b. Provisions for slums under the Tamil Nadu District Municipalities Act, 1920 (Tamil Nadu Act V of 1920) Reference to Slums in the Tamil Nadu District Municipalities Act, 1920 can be seen only in Schedule X of the Act that states that Slum Improvement and Upgradation as well as Urban Poverty Alleviation falls under the purview of the ULB. 23 It is to 22 Dr. Paswan, Sanjay; Dr. Jaideva, Pramanshi (editors), (2002). Encyclopaedia of Dalits in India: Emancipation and Empowerment (Education, Literature, Political Science, Sociology, Women Studies), (Volume 8, p 40), Delhi: Kalpaz Publications 23 Dr. Sambandham, S., Rajaraman, V. S., (2014, 2 nd Edition). The Tamil Nadu District Municipalities Act, 1020 (V of 1920). With Connected Acts and Rules, (p 465) Chennai: C. Sitaraman & Co. Pvt. Ltd. 19

20 be noted that Schedule X was added by the Tamil Nadu District Municipalities (Amendment) Act, 1994 (Act 25 of 1994) incorporating the duties of the ULB as stated in the Constitution (seventy-fourth amendment) Act, Further, section 374 of the Tamil Nadu District Municipalities Act, entrusts the municipality, the wards committee or any other committee constituted under this Act with powers and responsibilities with respect to the preparation of plans for economic development and social justice and also with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matter listed in Schedule X. 24 Though Schedule X refers to slum improvement and upgradation and urban poverty alleviation the act does not have any specific provisions to the slums unlike the Chennai City Municipal Corporation Act that has provisions for preparation of Standard Plan. In the Tamil Nadu District Municipalities Act, there are few provisions relating to huts and they are as follows: Every person who intends to construct or reconstruct a hut shall send an application for permission to execute the work. (Section 208) 25 It shall be the duty of the Council to lay out public streets in areas covered by huts, so far as may be practicable, both for the purpose of securing proper ventilation for huts in such areas -Section 170 (3). 26 The existing provisions of the Tamil Nadu District Municipalities Act focuses only on reconstructing/constructing huts, public streets and latrines, there is no provisions slum improvement, upgradation or urban poverty alleviation as mentioned in the Schedule X of the Act. The powers to prepare standard plan as mentioned in the Chennai City Municipal Corporation Act is also not available in the District Municipalities Act. There is also absence of explanation about the roles of the ULB and the TNSCB in connection to slum upgradation and improvement as it falls in the purview of both the departments. 3. The Tamil Nadu Town and Country Planning Act, 1971 (Tamil Nadu Act 35 of 1972) References to the Slums and to TNSCB in this Act are as follows: The first reference to slum in this act is related to that of relocation. Relocation of population means in relation to an area of bad lay-out or obsolete development or a slum area, the making available in that area or elsewhere, of accommodation for residential purposes or for carrying on business or other activities, 24 Ibid (Pp ) 25 Ibid (p 246) 26 Ibid (p 225) 20

21 together with amenities to persons living or carrying on business or other activities, in the said area who have to be so accommodated, so that the said area may be properly planned. Section 2 (41). 27 Slum area means any built up area, (a) where the buildings, by reason dilapidation, over crowding, faulty arrangement or design, lack of ventilation, light or sanitation facilities or any combination of these factors, are detrimental to safety, health or morals, and (b) defined by a development plan as a slum area. Section 2 (43). 28 The chairman of TNSCB, established under Section 34 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, or any officer nominated by him constitutes a part of the Tamil Nadu Town and Country Planning Board. Section 5 (d). 29 The chairman, of TNSCB or any officer nominated by him constitutes a part of the Chennai Metropolitan Development Authority (CMDA). Section 9 (2-g). 30 The Master Plan provides planning for improvement of areas of bad layout or obsolete development and slum areas for relocation of population. Section 17 (h). 31 The role of the chairperson in the Tamil Nadu Town and Country Planning Board and the CMDA is not elaborated in the Tamil Nadu Slum Areas (Improvement and Clearance) Act. There are only provisions related to relocation of slums in this Act where as there is scope for improvement in Tamil Nadu Slum Areas (Improvement and Clearance) Act, the Chennai City Municipal Corporation Act and the Tamil Nadu District Municipalities Act has provisions related to improvement. The Tamil Nadu Town and Country Planning Act needs to take into account improvement, redevelopment of slums and relocation should only be the last option adopted for slums that do not have scope for in-situ redevelopment. 4. The Tamil Nadu Land Encroachment Act, 1905 (Act 3 of 1905); The Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975 (Act 1 of 1976) & The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 (Act 8 of 2007) The issue that results in gross human rights violation of the deprived urban communities is the act of forced eviction. The above-mentioned legislations are often used against the deprived urban communities to evict them of their areas of residence. These legislations have resulted in 27 The Tamil Nadu Town and Country Planning Act, Principal Act and its Amending Acts with Gazette References, (2013, 1 st Edition), (p 9) Chennai: C. Sitaraman & Co. Pvt. Ltd. 28 Ibid (p 10) 29 Ibid (p 15) 30 Ibid (p 20) 31 Ibid (p 40) 21

22 most of the evictions of the urban poor who are branded as encroachers. a. The Tamil Nadu Land Encroachment Act, 1905 (Act 3 of 1905): This act defines the various public places and clearly states that the ownership of the areas defined as public places vests with the Government. There are certain provisions under this acts related to eviction and they are as follows: 32 Section 5 (B) The person reputed to be in Unauthorised occupation of land being the property of Government a notice specifying the land so occupied and calling on him to show cause before a certain date Section 6 (2) - An eviction under this section shall be made in the following manner namely o By serving a notice on the person reputed to be in occupation or his agent requiring him within such time as the Collector or the Tahsildar or the Deputy Tahsildar or Authorized Officer may deem responsible after receipt of the said notice to vacate the land o If such notice is not obeyed by removing or deputing a subordinate to remove any person who may refuse to vacate the same o If the officer removing any such person shall be resisted or obstructed by any person the Collector or the Tahsildar or the Deputy Tahsildar or Authorized Officer shall hold a summary inquiry in to the facts of the case and if satisfied that the resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for his arrest of the said person It is to be noted that most of the evictions carried out without any notices issued to the community. At times pre-dated eviction notice is issued to the community at the last minute whereby the community has no scope for show cause or for taking any legal actions on the same. Forcible evictions by Revenue authorities without following the legal requirements of sec 6 & 7 of the Act and demolition of the premises. Respondents (authorities) directed to restore the respective premises occupied by the petitions prior to their forcible eviction Habibullah Vs. The State of Tamil Nadu (AIR 1994 Mad. 222) 33 People are not aware of the provisions under this act and the manner in which the pre-eviction processes are handled often instills fear in the minds of the community. When evictions of slums are carried out under this Act, the provisions of the Tamil Nadu Slum 32 The Tamil Nadu Land Encroachment Act, 1905, The Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act 1975 and The Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, With Rules. (2009, 9 th Edition), (Pp 8-9) Chennai: Malathi Publications. 33 Ibid (p 12) 22

23 Areas (Improvement and Clearance) Act are often sidelined. Even the slums classified as slum area (not the slum clearance area ) is often evicted in the process. Slums that are not declared are also evicted violating the slum act. The role of the TNSCB is reduced to that of enumeration and relocation when the other departments are engaged in evictions of slums. b. The Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975 (Act 1 of 1976): The Government may by notification, - (a) appoint such persons, being gazette officers of Government or officers of equivalent rank of the corporate authority, as the Government think fit, to be estate officers for the purpose of the act. Section 3 (a). 34 Section The estate officer shall issue a notice calling the persons concerned to show cause why an order of eviction should not be made. Section 4 (2) - The notice shall - o (a) Specify the grounds on which the order of eviction is proposed to be made o (b) Require all persons concerned that is to say, all persons who are, or may ne, occupation of, or claim interest in, the public premises, to show cause, if any against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of issue Section 4 (3) - The estate officer shall cause the notice to be serviced by having it affixed on the outer door or some other conspicuous part of the public premises and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons concerned Section 4 (4) Where the estate officer knows or has reason to believe that any person is, in occupation of the public premises, then, without prejudice to the provisions of subsection (3), he shall cause a copy of the notice to be served on every such person by post or by delivering or tendering it to that person or in such other manner as may be prescribed. Section 5 Eviction of unauthorised occupants 36 o (1) If after considering the cause, if any shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises 34 Ibid (p 23) 35 Ibid (p 24) 36 Ibid (p 25) 23