Mrs. Rutuparna Mohanty vs 2 on 15 September, 2010

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Orissa High Court
Mrs. Rutuparna Mohanty vs 2 on 15 September, 2010
              W.P.(C) Nos. 11667 and 12723 of 2010

In the matter of applications under Articles 226 & 227 of the
Constitution of India.

                              -------------

W.P.(C) No.11667/2010

Mrs. Rutuparna Mohanty,
Managing Trustee, Maa Ghar
Foundation & 43 others ……… Petitioner

Versus

State of Orissa and others. …….. Opp.parties

W.P.(C) No. 12723/2010

Basti Unnayan Mahasangha
represented by its General
Secretary and others. …….. Petitioners.

Versus

State of Orissa and others. …….. Opp.parties.

For petitioner: Mr.Karunakar Jena (WPC 11667/10).

M/s Asim Amitav Das,
M.B.Ray, A.K.Behera,
K.K.Rout, B.K.Panda, B.Sahu
and S.Ray (WPC 12723/10).

For opp.parties: Mr. Asok Mohanty, Advocate General
for State
M/s.S.K.Nayak (I), A.C.Baral and
D.Nayak for O.P.No.2,
Assistant Solicitor General for
Union of India.

M/s.Umesh Ch. Patnaik,
S.Patnaik,
A.J.Mohanty,
M/s.P.K.Jena, N.Panda, and
D.P.Mohapatra,
M/s.Kshirod Kumar Rout,
T.K.Nayak and J.Naik
(For Intervenors)
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P R E S E N T:

THE HONOURABLE MR. CHIEF JUSTICE V. GOPALA GOWDA
AND
THE HONOURABLE MR. JUSTICE I.MAHANTY

Date of Judgment- 15.9.2010

V.GOPALA GOWDA, CJ. These two petitions were heard together by consent
of the learned counsel for the parties and are disposed of by the
following order.

2. On 6.7.2010 one Mrs. Rutupurna Mohanty on behalf
of Sanjibani Maa Ghar submitted a petition signed by number of
persons who claimed to have been evicted from the premises of
S.C.B.Medical College and Hospital campus in open Court which was
treated as a Public Interest Litigation and Mr.K.K.Jena, learned counsel
was appointed as amicus curiae to appear on behalf of the petitioner
and the evictees with a direction to the High Court Legal Service
Committee to provide all necessary assistance including financial to
him as may be permissible under the rules. This Court also directed
the District Administration represented through the Collector to make
temporary arrangement for their shelter by erecting tents at any place
which is available within his jurisdiction and supply the food to them.
Thereafter, the amicus curiae counsel filed a detailed petition on
9.7.2010 under Articles 226 and 227 of the Constitution of India
narrating certain relevant facts for grant of the following reliefs :

a. To provide immediate shelter to the evicted persons;
b. To provide cooked food thrice a day, minimum two
weeks till other arrangement is made by the opposite
party to resettle them any where in the town;

c. To provide education facilities to school going children
particularly effect (effort) should be made for their continuation of the
study in the respective school in which they are studying;

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d. To provide baby food to the infants and special diet
to the old and ailing people;

e. To provide free medical treatment to the victims who
are injured and ill;

f. To provide all household articles which were
destroyed by the police and administrative officers during the eviction;

g. To direct the State Government to conduct a judicial
inquiry relating to the excess action of the police and lapses of the
district administration and direct the State Government to take action
accordingly;

h. To direct the State Government to formulate scheme
and an independent committee to provide alternative site or
accommodation to the displaced slum dwellers;

i. Government may be directed to pursue earnestly the
“Low Income Scheme Shelter Progrramme” which is to be undertaken
with the aid of World Bank;

j. To direct the State Government to provide the Slum
Upgradation Programme (SUP) under which basic amenities are to be
given to the slum dwellers.”

urging various legal contentions in support of the said reliefs.

3. It is pertinent to state certain relevant facts which are
highlighted in the said petition, namely, that on 4.7.2010 in the early
morning at about 4 a.m. more than four platoons of police force came
to the spot without any prior notice to the inhabitants of the Basti and
started demolishing their houses by using bulldozer etc. During the
course of eviction process, they ransacked the entire basti and the
houses and thrown the household articles including food stuffs and
books of the school going children to the drain and ultimately those
were put to fire including the thatched house and articles of the
aforesaid inhabitants. When the aforesaid action of the police was
objected to by the inhabitants, the police started pelting stones and
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resorted to lathi charge in an inhuman manner. It is further stated that
due to the overt act of the police, hundreds of people including old
men and women, children, infants, pregnant women got severe injury
and are still suffering without any proper care and medication. It is
further stated that the inhabitants of the locality were living in the said
area more than about three generations with the knowledge of all
authorities including the district administration. Number of BPL Cards
and Voter Identity Cards were issued in their favour by the appropriate
authority since long. It is further stated that the children of the said
basti are prosecuting their studies in the nearby Government school
and Government was also pleased to establish an Anganwadi Centre in
the said Basti for the purpose of imparting education to their children
and for providing nutrition. CESU, the electricity distribution company
and before it OSEB provided electricity connection to the inhabitants of
the Basti. Tube-wells were installed by the Government for providing
drinking water to the inhabitants of the Basti. Neither any notice was
issued to the inhabitants to vacate the place at any time nor any
scheme for their resettlement was prepared prior to eviction. Further
case of the inhabitants is that the eviction was made during rainy
season and houses were demolished when it was raining heavily in
Cuttack town as a result of which the evicted persons had to take
shelter on the road side under the open sky exposed to rain and
sunshine. It is stated by them that due to the aforesaid inhuman
activity of the police, the infants, children and adult girls, women and
old age people suffered the most. It is further stated that the district
administration was callous and nobody extended their helping hand to
provide food, shelter and health care to the victims. They remained
day and night without food, patients without medicines and children
without food and care. While demolishing the houses, the police
misbehaved the ladies by using unparliamentary language which was
not expected from responsible police force and administrative officers.

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The belongings of the inhabitants including BPL Card, Voter ID Cards,
various certificates and important documents were burnt during the
eviction. The affected people are spending their lives without any food
and shelter and they are deprived of their rights to live in a
dignified/descent manner in the society which is their fundamental
rights enshrined in the Constitution. With the aforesaid narration of
facts, they have sought for the reliefs as mentioned earlier.

4. During the pendency of the petition, a second writ
petition was filed by the Basti Unnayan Mahasangha represented by
the Secretary Ajit Kumar Lenka narrating more or less the same facts
which are not required to be adverted to in this judgment as it would
amount to repetition.

5. Statement of counter was filed by the Collector, Cuttack
justifying the action to evict the evictees from the premises of the
S.C.B.Medical College Campus as they were trespassers into the
College premises even though they were evicted earlier. in the
affidavit filed by the Collector on 28.7.2010 he has stated at paragraph
3 that in compliance with the order dated 10.7.2009 passed by this
Court in O.J.C.No. 6721 of 1999, eviction process was carried out in
the S.C.B.Medical College and Hospital, Cuttack. Order dated
10.7.2010 so far as relevant reads thus:

“Inspection report submitted by the Advocates
Committee on S.C.B.Medical College Hospital
sanitation and unauthorized encroachments.

The Registry shall supply a copy of the report
submitted by the Advocate’s Committee today to
the learned Additional Government Advocate who
shall supply copy thereof to the Health Secretary
and the Works Secretary to enable them to offer
their views/suggestions on the aspects highlighted
in the report and to overcome the problems
indicated therein.

It is alleged that there is large scale forcible
encroachment of lands inside the campus of the
S.C.B.Medical College Hospital. In our view, it is the
first priority of the District Administration to see
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that the unauthorized occupants are removed from
the campus as early as possible and the campus is
made free from unauthorized encroachment. Since
we have constituted a committee headed by the
R.D.C.(C.D.), we direct the R.D.C.(C.D.) to take
steps for removal of the unauthorized occupants
from the medical campus within a period of two
months from today.

Shri P.R.Dash, learned Amicus curiae,
produced the letter dated 7.7.2009 of the Executive
Engineer, P.H.D. to the Superintendent of
S.C.B.Medical College Hospital, copy of which
communicated to Shri Dash as well as to the
Advocates’ Committee, Learned Additional
Government Advocate shall expedite the matter
with the concerned authorities.”

6. It is further stated that eviction was carried out upon
receipt of the requisition from Administrative Officer, S.C.B.Medical
College & Hospital, Cuttack in the prescribed G-Form and 153
encroachment cases were booked under the O.P.L.E.Act for eviction
from the encroached Government Plot No. 439 of area Ac.1.569 (P),
i.e. Ac.0.612 recorded in the name of Health Department. Accordingly
notices were issued to the encroachers and orders of eviction were
passed. The eviction was effected by observing due process of law on
4.7.2010. Consequent upon the eviction effected on 4.7.2010
immediately temporary shelters at Mundamuhan High School and
Prabha Devi Women’s College at the outskirts of Cuttack were
arranged for accommodation of 500 persons and out of the same 21
evicted persons went there and they were provided with food, shelter
and medical treatment. Further 60 Polythene sheets, one quintal of
rice, 20 Kgs of Harad Dal were provided to the evicted persons. On
5.7.2010, no evicted persons came forward to avail the facility
provided for temporary shelter. On 6.7.2010 pursuant to the order of
this Court, temporary shelter was immediately made at Ranihat High
School. He has also stated about the steps taken by him in
coordination with the Municipal Corporation for giving food and shelter
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to the evictees through the volunteers nominated by the petitioners. It
is further stated in his affidavit that pursuant to the order dated
18.7.2010, the evicted families were shifted to Hadia Patha and all
such facilities which were extended earlier to the evicted families were
extended to them till the date of filing of affidavit. It is further stated
by him that since the place does not have proper lighting, a generator
set has been pressed into service for which the District Administration
is paying a sum of Rs.30,000.00 towards the hire charges. That apart
Cuttack Municipal Corporation has been providing the evicted families
with food three times a day and approximately 500 persons are
availing the said fooding facilities for the last three weeks as on the
date of swearing the affidavit. Further he has referred to the relevant
provision of Orissa Relief Code, Clause 165, which reads thus:

“165. Emergent Relief:

(1) When people are in acute distress due to a severe
natural calamity like high flood or strong cyclone, it
becomes impossible for them to procure food; their
belongings are washed away and houses damaged,
it becomes necessary for Government to provide
them with dry or cooked food, clothing, shelter and
other necessaries of life. These articles are
generally transported to the affected areas by
waterways as road communications stand
disrupted. Air dropping is also made if the people
are marooned for days together. This kind of relief
is categorized as Emergent Relief.

(2) Emergent relief is sanctioned irrespective of the
consideration of status, caste or religion as at such
a juncture the haves and the have-nots are leveled
down to the same position.

(3) Emergent relief may include distribution of Chuda,
Mudhi, Gur, Salt, Kerosene, Match boxes and other
bare necessaries of life, including cooked food and
clothing. It may include provision of improvised
shelter with timber, bamboos, tarpaulins, straw etc.
(4) In case non-official organizations come forward to
extend, emergent relief as is usually the case at the
time of a grave natural calamity, assistance from
Government to that extend may be temporarily
suspended.

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(5) For emergent relief rice, wheat, chuda, mudhi, ragi,
maize etc. may normally be sanctioned at the rate
of 500 grams per adult and 250 grams per child
below 12 years of age per day. The Collector is
competent to sanction such relief himself and can
delegate the powers of sanction to the
Subdivisional Officers to exercise the power in their
respective jurisdictions for a period of three days.

If this is found inadequate, the Revenue
Divisional Commissioner may extend the period of
distribution of gratuitous relief upto seven days.
The Member, Board of Revenue Special Relief
Commissioner can extend it upto a period of 15
days inclusive of the period of sanction by the
Subdivisional Officer, the Collector and the
Revenue Divisional Commissioner.

(6) No emergent relief shall ordinarily be given after 15
days of the abatement of a natural calamity
like flood or cyclone unless it is of a very
devastating nature. If absolutely necessary such
relief may be given even beyond the period of 15
days laid down in the preceding sub-section, only
after obtaining specific Government orders.”

He has further stated in paragraph 9 of the affidavit that pursuant to
the order passed by this Court, the District Administration has made a
survey and has given a list of persons along with his affidavit dated
21.7.2010. It is stated that the 149 evicted persons cannot prima facie
be said to be belonging to the lower strata of the society on the basis
of their annual family income. In support of his case, he has produced
the list Annexure-A/1. It is further stated that the evicted families are
not properly disclosing their native address to the Tahsil Office,
Cuttack to conduct further investigation. So far as the additional list
supplied to the Tahasildar, Cuttack on 26.7.2010 is concerned, the
said list simply contains 90 names without any material evidence
indicating about their socio-economic status. Further he has sworn to
the fact that it appears from the records of the Cuttack Municipal
Corporation that the Rehabilitation of Urban Slum Dwellers under the
Integrated Housing Development Programme (IHSDP) does not cover
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the persons/evicted families who are even otherwise earning more
than Rs.15,000.00 as per survey report. It is further stated that
keeping in mind the economic status of the evicted families and other
exigencies, no suitable land is available at the moment for
permanently rehabilitating their families.

7. The Principal Secretary to the Government of Orissa,
Urban Development Department in his affidavit filed in this proceeding
on 28.7.2010 has referred to the IHSDP Scheme which is a Central
Government sponsored Scheme. Under the said Scheme, State Level
Coordination Committee (SLCC) Meeting was held on 20.2.2010 under
the Chairmanship of the Principal Secretary to Government, Housing &
Urban Development Department. In the said meeting it was decided to
recommend the Detailed Project Reports on Integrated Housing &
Slum Development Programme Scheme of Cuttack, Phase-I and II on
priority basis for appraisal and sanction in the Central Sanctioning
Committee. Accordingly, the said proposals were placed before the
Central Sanctioning Committee of the Ministry of Housing & Urban
Poverty Alleviation, Government of India. He has stated in paragraph 3
of the counter statement that out of identified Slums in Cuttack
Municipal Corporation Area, under Phase-I, ten slums, namely,
Balmikinagar Munda Sahi, Tulasipur Bauri Sahi, Pithapur Pana Sahi,
Nima Sahi Pana Sahi, Puri Ghat Pana Sahi, Dolamundai Bauri Sahi,
Lunia Sahi Pana Sahi,Muradkhan Patna, Balisahi Nuapada, Darga Patna
Sabar Sahi were proposed to be included. Similarly under Phase II,
two Slums, namely, Andarpur and Tulasipur Tanla Sahi were also
proposed to be included under the Scheme. In the meantime, Phase-II
had been sanctioned and funds released by the Government of India
with a project cost of Rs.1698.67 lakhs.

8. Since Government of India allocation for the State under
the said Scheme has already been sanctioned and no further amount
was available for phase I, the sanction of Cuttack Phase I with 602

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number of beneficiaries in 10 slums is still pending. On the other hand,
Government in Housing & Urban Development Department have
submitted before the High Court in W.P.(C) No.6859 of 2009 that after
receipt of land from the Revenue Department, the Housing & Urban
Development Department will take necessary steps to hand over the
said land to Cuttack Municipal Corporation, Cuttack which will give
occupancy right to the identified beneficiaries, i.e. 1025 number of
slum dwellers living in 11 number of unauthorized slums out of the 82
slums on government land selected under the Integrated Housing and
Slum Development Programme after construction of houses for them.
It is further stated that Government of India in the Ministry of Housing
and Urban Poverty Alleviation is going to introduce a new Scheme, i.e.
Rajiv Awas Yojana (RAY) for rehabilitation of the Slum dwellers for
which Cuttack City has been selected to be included under the
Scheme. He has further stated that with reference to the provisions
made under Article 243 W in 74th Constitution Amendment Act, the
Orissa Municipal Act was amended vide the Orissa Municipal
(Amendment) Act 1994 (Orissa Act 11 of 1994) adopting the 12 th
Schedule with the provision that, the Municipality shall have power
with respect to the performance of functions and the implementation
of schemes, more particularly in relation to sl.nos.10 and 11 of the
said Schedule. As per the aforesaid constitutional amendment,
enjoining special responsibility to such Corporations to address the
burgeoning, complex and myriad of issues of urban life, separate
Corporation Law, namely, the Orissa Municipal Corporation Act, 2003
was enacted comprising various Chapters including Chapter 21 under
caption “Slum or, informal Settlement”. It is reported by the Cuttack
Municipal Corporation that total number of slums identified within the
Cuttack Municipal Corporation area are 257 out of which 82 Slums are
on the Government land and rest 175 Slums are on the own land of
Slum dwellers. The total population of 257 identified Slums is 2,23,819

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out of which the population of the 82 Slums on Government land is
42836. Rest 175 Slums are on their own land comprising 35082
household families with a population of 1, 80,983.Orissa Municipal
Corporation Act provides for a policy for the Slum dwellers.

9. As per the provisions envisaged under section 485 of the
Orissa Municipal Corporation Act, Minimum Basic Services of
Infrastructure like drinking water, drainage, road, sanitation, street
light etc. are being provided to all these Slums. It is further stated that
recently the Cuttack Municipal Corporation conducted survey of the
Slums through an NGO, namely, SPARC-UDRC and prepared a profile
of all the Slums. Cuttack Municipal Corporation has received funds
from Government for conducting Socio-economic survey for
preparation of slum-household and livelihood profile under the
Scheme, i.e. Urban Statistics for HR and Assessment (USHA). For this
purpose, Cuttack Municipal Corporation has selected an NGO, namely,
SPARC-UDRC which has already made the slum profile to do the
survey work. Survey of infrastructure gaps in all the 257 Slums has
been completed basing on which Detailed Project Report (DPR) will be
prepared and submitted to Government of India for approval and
sanction of funds for infrastructure development in Slums. After
receipt of funds, implementation of the project will be started. It is
further stated that IHSDP has provision for Slum up-gradation on the
private land of the poor Slum dwellers for resettlement in the Urban
Area. Besides this, Government may allot land to the Urban Local
Bodies (ULBs) who would in turn use the land for construction of
houses for the urban poor slum dwellers. These houses can be allotted
to them on occupancy right basis. Thus case of rehabilitation of the
eligible Slum dwellers depends on allotment of the Government land to
the Urban Local Bodies concerned and approval of the rehabilitation
proposal and sanction of required funds by Government of India under

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the said Scheme. It is further stated that formulation of the Slum
policy is under active consideration of the State Government.

10. The Commissioner, Cuttack Municipal Corporation has filed
further affidavit on 29.7.2010. At para-3 of the said affidavit, it is
stated that “Jaya Maa Mangala Sahi” on behalf of which the petitioner
has filed the present writ petition is not in the list of the identified
slums numbering 257 out of which 82 slums are on the Government
land. Rest 175 slums are on the own land of slum dwellers. It is stated
that as per the provision of Section 485 of the Orissa Municipal
Corporation Act, 2003, minimum basic services of infrastructure like
drinking water, drainage, road, sanitation, street light etc. are being
provided to all these identified slums. It is further stated that pursuant
to the direction given by this Court, temporary arrangement has been
made at Hadiapatha for accommodation of the evictees by making the
area clean for their habitation and they have taken necessary steps for
providing health, sanitation by spreading bleaching powder and
cleaning the area. It is further stated that Section 482 in Chapter XXI
of the Orissa Municipal Corporation Act provides that for the purpose
of “providing basic urban services” the Corporation may identify and
demarcate in such manner as may be prescribed by the Rules. In the
absence of Rules in this regard, certain identified slums have been
taken up for rehabilitation by CMC under Government of India
Scheme. Further as per the provision of section 486 of the Act, the
slum dwellers are being provided other facilities under the welfare
schemes of the Government, i.e. Old Age Pension, Subsidized Loans,
Provisions of Supplying of rice in different schemes etc. In so far as
rehabilitation of slum dwellers are concerned, it is stated that in
respect of two identified slums, i.e. Andarpur and Tulasipur (Tanla
Sahi), provisions for land allotment would be made from the Urban
Development Department. In this regard communications have been
made by the CMC to the concerned authorities, i.e. the State

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Government as per Annexure-2/A series. It is specifically stated that
eviction of the evictees was done from the Government land within
S.C.B.Medical College Campus and not from the Municipal lands.

11. The Under Secretary, Ministry of Housing and Urban
Poverty Alleviation, Government of India, has filed an affidavit
traversing the petition averments. It is stated therein that Cuttack
town is covered under the IHSDP. Selection of the beneficiaries under
JNNURM is done by the concerned State Government/Urban Local
Bodies (ULB). Duration of the said JNNURM is 7 years, i.e. 2005-2012
and each State has been given a fixed allocation under BSUP and
IHSDP. The ACA allocation for Orissa is Rs.78.74 crore under BSUP and
Rs.176.33 crore under IHSDP thus totaling Rs.255.07 crore under
these two components of JNNURM. It is further stated that
Government of India has sanctioned 6 projects with a total project cost
of Rs.74.62 crore out of which the share of the Central Government is
Rs.54.18 crore for construction/upgradation of 2508 Dwelling Units in
2 Mission Cities of Bhubaneswar and Puri under BSUP. Under IHSDP 32
projects with a total project cost of Rs.284.67 crore comprising central
share of Rs.191.88 crore for construction/upgradation of 13049
Dwelling Units in 29 cities/towns have been sanctioned. The details of
BSUP and IHSDP projects have been given at Annexure-1. Further it is
stated that the total 7-year allocation of Rs.265.07 crore under BSUP
and IHSDP for the State of Orissa, opposite party no.4 has committed
Rs.246.06 crore for BSUP and IHSDP projects and the minor balance
has been kept for Administrative and other expenses (A&OE) and
capacity building activities. Since no additional Central Allocation
(ACA) is left, further projects cannot be sanctioned for cities/towns of
Orissa under JNNURM (BSUP & IHSDP).Against the committed ACA of
Rs.246.06 crores, Rs.108.44 crore of ACA has been released to the
State. Therefore, Rs.140.00 crore is yet to be released. As far as the
approval and sanction is concerned, it is to mention that City

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Development Plans (CDPs) and Detailed Project Reports (DPRs) duly
approved and sanctioned by the State Level Steering Committee
(SLSC) are considered by the Central Sanction and Monitoring
Committee (CSMC) under BSUP and Central Sanctioning Committee
(CSC) for IHSDP at Government of India level for approval of projects
subject to the signing of Memorandum of Agreement (MoA) by the
State Government, to undertake the reforms prescribed under
JNNURM Guidelines. On approval of projects, first instalment is
released and the balance is to be released in instalments (total 4
instalments for BSUP and 2 instalments for IHSDP) based on utilization
reported by State and progress of reforms. It is stated that during the
current financial year (2010-2011), Rs.2357.60 crore and Rs.1015.43
crore have been budgeted for BSUP and IHSDP respectively for all
States/U.Ts.. No state-wise allocation has yet been made. Further
release of funds to State of Orissa in Financial year 2010-11 would
depend upon the utilization reported and progress on reforms by the
State. It is further stated that the Government of India has decided to
launch a new scheme called Rajiv Awas Yojana for slum dwellers and
the urban poor. Rajiv Awas Yojana (RAY) would extend support to
States that are willing to assign property rights to people living in slum
areas for provision of shelter and basic infrastructure and civil
amenities in slums. While finalization of RAY is underway, a scheme
called “Slumfree City Planning” for carrying preparatory activities
under RAY has been launched with a budget of Rs.120 crore. A sum of
Rs.60 crore has been released to State Governments and Union
Territories in March, 2010 to assist them in undertaking preparatory
activities for RAY such as slum survey, developing slum, MIS, GIS
mapping of slums, integration of GIS & MIS preparation of slum-free
city plans. Rs.1.84 crore was released to Orissa. Under this Scheme
Budget allocation under RAY for the year 2010-2011 is Rs.1270.00
crore. No state-wise allocation has been made under RAY and as

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stated, the scheme is yet to be finalized. It is stated by him that the
Central Government is providing funds in accordance with the
guidelines of Schemes to all State Governments including the State of
Orissa as per selection of town/projects made by State Government
and within the allocation made by Planning Commission under the
JNNURM scheme for various States in the Country. Therefore, the
instant writ petitions are liable to be dismissed.

12. With reference to the aforesaid factual aspects and the
rival legal contentions urged, the following questions would arise for
our consideration:

(1) Whether the State Government is required to prepare
scheme for rehabilitation of the inhabitants of both
identified and unidentified slums in the State, more
particularly in Cuttack?

        (2)        Whether the State Government and the CMC are
                   required    to   provide    the   basic    amenities   to   the
                   inhabitants      of   the   slums   like    drinking   water,

sanitation, medical health centre and schools for their
children?

(3) To what order?

13. The first point is answered in favour of the petitioner by
assigning the following reasons. For this purpose, it is necessary for us
to advert to Article 243 W which was inserted to Part IXA of the
Constitution by 74th Constitution Amendment Act, 1992 which came
into force with effect from 1.6.1993. That provision has to be read
along with the Entries 10 and 11 of the 12th Schedule which reads
thus:

“243-W. Powers, authority and responsibilities of Municipalities,
etc- Subject to the provisions of this Constitution, the Legislature
of a State may, by law, endow-

(a) the Municipalities with such powers and authority
as may be necessary to enable them to function

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as institutions of self-government and such law
may contain provisions for the devolution of
powers and responsibilities upon Municipalities,
subject to such conditions as may be specified
therein, with respect to-

(i) the preparation of plans for economic
development and social justice;

(ii) the performance of functions and the
implementation of schemes as may be
entrusted to them including those in
relation to the matters listed in the
Twelfth Schedule;

(b) the Committees 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 matters listed in
the Twelfth Schedule.”


             "Twelfth Schedule
             1.     ...       ...       ...     ...
             2.     ...       ...       ...     ...
             3.     ...       ...       ...     ...
             4.     ...       ...       ...     ...
             5.     ...       ...       ...     ...
             6.     ...       ...       ...     ...
             7.     ...       ...       ...     ...
             8.     ...       ...       ...     ...
             9.     ...       ...       ...     ...
             10.    Slum improvement and upgradation.
             11.    Urban poverty alleviation."

It is stated by the Principal Secretary in the affidavit that slum
improvement and upgradation and urban poverty alleviation have been
included after the Constitutional amendment. The aforesaid
constitutional amendment must be read along with Article 38 of the
Directive Principles of State Policy, which reads as under :

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“38. State to secure a social order for the promotion of
welfare of the people- (1) The State shall strive to
promote the welfare of the people by securing and
protecting as effectively as it may a social order in
which justice social, economic and political, shall
inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the
inequalities in income and endeavour to eliminate
inequalities in status, facilities and opportunities, not
only amongst individuals but also amongst groups of
people residing in different areas or engaged in
different vocations.”

14. Article 39 clause (a) of the Constitution provides that the
State shall in particular direct its policy towards securing that the
citizens, men and women equally, have the right to adequate means of
livelihood. Article 46 of the Directive Principles of State Policy provides
that 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 Scheduled Tribes. These
provisions must be read along with Article 19 (1)(e) and (g) i.e. the
right to reside and settle in any part of the territory of India and to
practice any profession, or to carry on any occupation, trade or
business. Articles 14, 19 and 21 are inter-related fundamental rights.

Those rights must be further inter-related to the aforesaid articles of
the Directive Principles of the State Policy to ensure a meaningful and
dignified life to the citizens of the country including the inhabitants of
the slums either identified or unidentified in the town and urban areas.
This aspect of the matter fell for consideration before the Constitution
Bench of the Apex Court in Olga Tellis and others v. Bombay Municipal
Corporation and others
, AIR 1986 SC 180, in which the Apex Court
interpreted the aforesaid fundamental rights in the affirmative in
favour of the inhabitants of the slums. At paragraph 32, the Apex
Court in the said case has dealt with the reasons for the establishment
of slums in the towns and urban areas by stating that large number of
unemployed rural youths were forced to migrate from the rural India

– 18 –

in search of jobs to the urban areas. Therefore, they establish their
residence in the slums in unhygienic condition whether they like it or
not. In this regard it would be worthwhile to refer to paragraph 32 of
the judgment wherein the Supreme Court has held after interpretation
of Article 21 of the Constitution that, “life includes livelihood”. The
relevant portion of paragraph-32 is extracted below:-

” …….The sweep of the right to life
conferred by Art.21 is wide and far reaching. It does
not mean merely that life cannot be extinguished or
taken away as, for example, by the imposition and
execution of the death sentence, except according to
procedure established by law. That is but one aspect
of the right to life. An equally important facet of that
right is the right to livelihood because, no person can
live without the means of living, that is, the means of
livelihood. If the right to livelihood is not treated as a
part of the constitutional right to life, the easiest way
of depriving a person of his right to life would be to
deprive him of his means of livelihood to the point of
abrogation. Such deprivation would not only denude
the life of its effective content and meaningfulness but
would make life impossible to live. And yet, such
deprivation would not have to be in accordance with
the procedure established by law, if the right to
livelihood is not regarded as a part of the right to life.
That which alone makes it possible to live, leave aside
what makes life livable, must be deemed to be an
integral component of the right to life.”

It is also relevant to extract the observation made by the Apex Court
in paragraph-53 of the aforesaid judgment.

“…..In other words, despite the finding
recorded by us that the provision contained in Section
314 of the B.M.C. Act is valid, pavement dwellers to
whom census cards were given in 1976 must be given
alternate pitches at Malavani though not as a condition
precedent to the removal of encroachments
committed by them. Secondly, slum dwellers who
were censured and were given identity cards must be
provided with alternate accommodation before they
are evicted. There is a controversy between the
petitioners and the State Government as to the extent
of vacant land which is available for resettlement of

– 19 –

the inhabitants of pavements and slums. Whatever
that may be, the highest priority must be accorded by
the State Government to the resettlement of these
unfortunate persons by allotting to them such land as
the Govt. finds to be conveniently available. The
Maharashtra Employment Guarantee Act, 1977 the
Employment Guarantee Scheme, the ‘New Twenty
Point Socio-Economic Programme.1982’, the
‘Affordable Low Income Shelter Programme in Bombay
Metropolitan Region’ and the ‘Programme of House
Building for the economically weaker sections’ must
not remain a dead letter as such schemes and
programmes often do. Not only that, but more and
more such programmes must be initiated if the theory
of equal protection of laws has to take its rightful
place in the struggle for equality. In these matters,
the demand is not so much for less Government
interference as for positive governmental action to
provide equal treatment to neglected segments of
society. The profound rhetoric of socialism must be
translated into practice for the problems which
confront the State are problems of human destiny.”

Therefore, Article 19(1)(e) must be read along with Article 21 to give
the proper interpretation and enforce the fundamental rights and
statutory rights of the inhabitants of the slums in India. Article 14
envisages that the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.
This has provided a life-line for the people who are in economically
disadvantaged position not having economic stability to have their own
site or land purchased by investing large sums. For this purpose, the
State Government has been cast with a constitutional obligation under
Part III and Part IV of the Constitution. Therefore, the statutory
enactments like the Municipal Act, Municipal Corporation Act, Gram
Panchayat Act and the Development Authorities Act are enacted by the
State Legislature in exercise of their legislative power under Article
246 of the Constitution in order to discharge their constitutional and
statutory obligations on the part of both the Union of India and the
State Government.

– 20 –

15. If we carefully examine the object and intendment of the
Parliament introducing Part IX and IXA by the 73rd and 74th
Constitution Amendment, it makes it very clear that it is to
decentralize powers of the Central Government and State Government
to local self Governments like Panchayats and Municipalities who have
been constituted to give effect to the constitutional mandate by
rendering social justice to the socio-economically disadvantaged
persons which is a basic feature of the constitution as envisaged in
the Preamble of the Constitution. This intention of the Parliament could
be gathered by a combined reading of the preamble of the Constitution
wherein the phrase ‘socialist secular’ was inserted by the 42 nd
Constitutional Amendment and thereafter correspondingly Article 38
was suitably amended, to the effect that the ‘State shall strive to
promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic
and political, shall inform all the institutions of the national life. By way
of the aforesaid 42nd Amendment, Section 39-A was inserted to render
social justice and free legal aid by the State in the operation of the
legal system to promote justice on the basis of equal opportunity by
suitable legislation or schemes and to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or
other disabilities. This provision must be read keeping in view Articles
14 and 39 Clause (a) of the Constitution to achieve the object of
constitutional amendment.

Therefore, Article 243W has got every relevance to the
facts and circumstances of the present cases. This constitutional
obligation is rightly understood by the Central Government and the
State Government. Therefore, they have formulated different schemes
to see that Entry Nos.10 and 11 of the Twelfth Schedule are properly
implemented in letter and spirit, to achieve the constitutional goal to
render socio-economic justice to the Scheduled Castes, Scheduled

– 21 –

Tribes and Weaker Sections of the Society. As interpreted by the
Supreme Court in Olga Tellis, persons who were living in the slums are
all considered as economically disadvantaged persons. Therefore, the
Central Government has framed Schemes and Integrated Housing and
Slum Development Programme to provide basic services to the urban
poor under the JNNURM as well as RAY. In this regard we have
extensively referred to the stand of the Ministry of Housing and Urban
Poverty Alleviation Department in the affidavit of the Under Secretary
with reference to the above said Scheme wherein it is stated that
duration of JNNURM is 7 years, i.e. 2005-2012 and that each State has
been given fixed allocation under BSUP & IHSDP Schemes and that
during the current financial year 2010-2011, Rs.2357.60 crore and
Rs.1015.43 crore respectively have been budgeted for BSUP and
IHSDP schemes which would clearly indicate that the Central
Government keeping in view the constitutional amendment to Article
39-A and the Directive Principles of the State Policy to discharge its
constitutional obligation under Entry Nos. 10 and 11 of the Twelfth
Schedule formulated the aforesaid Schemes to render equal justice to
the economically disadvantaged persons. Against the total 7-year
allocation of Rs.255.07 crore under BSUP and IHSDP for the State of
Orissa, Government of India has committed Rs.246.06 crore for BSUP
and IHSDP projects. It has also sanctioned 6 projects with a total
project cost of Rs.74.62 crore out of which the share of the Central
Government is Rs.54.18 crore. In the affidavit of the Under Secretary,
it has been further stated that a sum of Rs.106.44 crore has been
released to the State out of Rs.245.06 and the said amount has been
allocated to Orissa State to be spent in various cities as mentioned at
Annexure-I. In that allocation, Cuttack City Corporation is also
included at page 2. It is also further stated by him that on approval of
the projects, first instalment is released and the balance amount will
be released in four instalments for BSUP and two instalments for

– 22 –

IHSDP based on utilization reported by State and progress reforms. In
so far as the budget allocation for the financial year 2010-2011 is
concerned, Rs.2357.60 crore and Rs.1015.43 crore for BSUP and
IHSDP respectively have been budgeted for all States/U.Ts. but no
State-wise allocation has been made. So far as release of funds to
Orissa is concerned, it would depend upon utilization reported and
progress on reforms by the State. Therefore, the State Government is
required to draw up its action plan to avail the benefit in this budget
allocation for the aforesaid financial year apart from the budgeted
Rs.246.46 crores for the years 2005-2012 for alleviation of the poverty
of the urban poor under Part IXA of the Constitution of India.

16. The Principal Secretary to Government, Housing and Urban
Development Department has elaborately stated in his affidavit
regarding the steps taken by the State Legislature to amend the Orissa
Municipal Act,1950 adopting the Twelfth Schedule and enacted the
Orissa Municipal Corporation Act, 2003 to give effect to the object and
intendment of the Parliament as provided in Article 243 W read with
Entries 10 and 11 of the Twelfth Schedule including Chapter 21,
namely,” Slum or, informal Settlement”. He has stated that there are
257 identified slums in the Cuttack Municipal Corporation area out of
which 82 slums are on Government land and the rest 175 slums are on
own land of the slum dwellers and has narrated in the narration of
facts with regard to the Stand taken by the State Government that the
total number of inhabitants in the identified slums is 2,23,819 out of
which 82 slums on Government land comprising 8429
households/families with population figures are furnished. Therefore,
the State Government and the Cuttack Municipal Corporation have
indicated the fact that there are large number of slums and large
number of households/families and inhabitants have been living in the
slums in Cuttack Municipal Corporation area. Therefore, the
constitutional provision referred to supra and the statutory provision in

– 23 –

Chapter 21 are required to be rigorously implemented by the State
Government through its local-self government, namely, Cuttack
Municipal Corporation by availing the Central Government budget
allocation under the various schemes referred to supra and for such
purpose if the Government land is required, as stated at paragraph 7
of the Statement of Counter filed by the Principal Secretary, it is the
duty of the Cuttack Municipal Corporation to make necessary
requisition to the State Government seeking for allotment of ideal and
suitable land for the purpose of using such land for rehabilitation of
slum dwellers by drawing up comprehensive development plan, as laid
down by the Central Government and construct houses which can be
allotted to them on occupancy right basis on such terms and
conditions, so that their family members would exclusively enjoy such
residential accommodation that would be provided under the Scheme.
For this purpose, persons who have not been identified, it is the duty
of the Local-self Government along with the State Government to
conduct survey by spending the fund allotted by the Central
Government extracted above. It clearly appears that the CMC and its
officers have restricted the survey, only to those persons living in
“identified slums”, clearly leaving out the persons who have been in
unauthorized occupation in slums, such as in the S.C.B.Medical College
premises who have been claiming in these petitions that they are slum
dwellers and required to be identified on the basis of the list furnished
by the petitioners as well as the Collector on the basis of their
economic criteria. After conducting such enquiry, they have to be
identified and for them, the aforesaid scheme for resettlement shall be
made. For this purpose, the State Government shall ensure that the
proper comprehensive development plan is approved and the same is
implemented with reference to the slum dwellers of both identified and
unidentified slums with a view to see that the schemes framed by the
State Government are implemented by the CMC and other

– 24 –

Corporations or Municipalities to have effective implementation of the
constitutional provision of Part III, Part IV and Part IXA read with Entry
Nos. 10 and 11 of Twelfth Schedule of the Constitution. For this
purpose, it would be necessary for us to give suitable direction to both
the respondents, the Central Government, the State Government and
the CMC and all other Local-self Governments, the Municipalities and
Municipal Corporations in the Orissa State.

17. It is needless to mention here, as stated by the Principal
Secretary, Urban Development and the Commissioner, CMC, that the
statutory duties under Chapter XXI of the Municipal Corporation Act
are to see that the basic minimum services and amenities are provided
to the identified slum areas. But no policy or guidelines have yet been
framed as per provisions under sections 497, 498 and 499 of the Act.
Municipal Corporation is required to take expeditious steps in
consultation with the Government in Housing and Urban Development
Department for framing of guidelines and implementation of the same
which would facilitate discharge of statutory functions under Chapter
XXI. The CMC shall also take steps for protection of child rights and
prohibition of child labour as envisaged in Section 503 of the Act which
says that the Corporation shall be an active partner in the
implementation of the International Convention on Child Rights and
shall ensure that every child has access to a sufficient range of
educational and vocational training and shall discourage child labour
through the implementation of penalties and fines and also keeping in
view Article 21-A of the Constitution to provide free education to the
children up to High School level and effective monitoring and
evaluation of the same is required. The second point is also answered
accordingly in favour of the petitioners/slum dwellers and their
children.

18. It is admitted by the Commissioner, CMC at para 5 of the
further affidavit filed on 29.7.2010 that for the purpose of providing

– 25 –

basic urban services under Section 482 in Chapter XXI of the Orissa
Municipal Corporation Act, the Corporation may identify and demarcate
the slum or informal settlement in such manner as may be prescribed
meaning thereby prescribed by Rules but rules are not yet framed to
identify the slums. However, it is stated by the State Government on
the basis of information earlier furnished by the CMC that 257 slums
have been identified. But the Commissioner in his affidavit dated
29.7.2010 has stated that “Jaya Maa Mangala Sahi” is not in the list of
identified slums numbering 257 which is without any criteria or basis.
Therefore, the State Government and the CMC shall include the
evictees from the aforesaid slum as identified slum dwellers for the
purpose of resettlement and rehabilitation.

19. For the reasons stated supra, we have no other alternative
than to allow the writ petitions by issuing following directions to the
Central Government, State Government, Cuttack Municipal Corporation
and other Corporations/Municipalities in the entire State.

(1) The Central Government is hereby directed to
reallocate funds under the different schemes on the basis of requisition
made by the Orissa State Government for effective implementation of
the schemes on the basis of the urgent need to rehabilitate and
resettle the inhabitants/evictees of the various slums. For this
purpose, the State Government, Municipalities and the Municipal
Corporations in the entire State shall take effective necessary steps to
identify the slums and slum dwellers/inhabitants/evictees for the
purpose of giving effect to the benefit under the Schemes framed by
the Central Government and the schemes required to be framed by the
State Government and Urban Local Bodies.

(2) The State Government and the Urban Local Bodies in
the entire State viz Municipalities and Municipal Corporations shall take
effective measure to draw up a Comprehensive Development Plan
(CDP) as envisaged under the provisions of the Orissa Municipal Act

– 26 –

and the Orissa Municipal Corporation Act, 2003 and also identify
appropriate land Government or private and if necessary acquire the
same on the basis of the requirement for the purpose of construction
of residential apartments to rehabilitate/resettle the slum
dwellers/evictees in the entire State. It is also open for them to
identify the urgent need and requirement to provide shelter by
constructing residential apartments and make requisition to the
Central Government to reallocate funds. The State Government for this
purpose shall ear-mark budget allocation to discharge its statutory
obligations as provided in both the statutory enactments and see that
the schemes are implemented effectively as expeditiously as possible
by availing the budget allocation under the aforesaid two schemes for
the years 2005-2012 after identifying the places in the entire State
and ensure that the schemes are implemented by sending utilization
reports and progress on reforms by the State in order to avail the
benefit of the budget allocation already made and also yet to be made
for the years 2010-11 and 2011-12.

The aforesaid directions are to be scrupulously
implemented by the State Government by submitting periodical status
report to avail the benefit of the scheme within the period specified,
and if the Court finds that the progress in this regard is unsatisfactory,
this Court would view the matter seriously and take action against the
erring officials. The State Government is required to submit detailed
periodical status report by every twelve weeks through the Principal
Secretary, Housing and Urban Development Department and the
Registry is directed to place the matter for consideration from time to
time.

With the disposal of the writ petitions, the interim order
passed earlier stands dissolved.

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