Judgment:
1. 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;
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 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. 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 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
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.
(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 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 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 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 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 - 13 -
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 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 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 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
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 : - 17 -
"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 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 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.
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 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 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 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 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 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 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.