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Sunday, November 13, 2016

Yet another winter approaches and enough has not been done for protection of many homeless in our towns/cities = 2016 Nov. http://judis.nic.in/supremecourt/imgst.aspx?filename=44304.E.R. KUMAR & ANR. Vs. UNION OF INDIA & ORS.

                                                              NON-REPORTABLE

                         THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) No. 55 of 2003


E. R. KUMAR & ANR

                                                          .... Petitioner(s)
                                   Versus

UNION OF INDIA & ORS                      ….Respondent(s)

                                    With

                    WRIT PETITION (CIVIL) No. 572 of 2003


DEEPAN BORA
                                                          .... Petitioner(s)
                                   Versus

UNION OF INDIA                              ….Respondent(s)


                                  O R D E R


L. NAGESWARA RAO, J.

      These two Writ Petitions concern the  right  to  shelter  of  homeless
persons in urban areas.  These Writ Petitions were filed in  the  year  2003
but no effective orders could be passed till 2014 as all the States did  not
file their responses and status reports.
On 04.09.2014, Mr. Prashant Bhushan, Counsel for  the  Petitioners  in  Writ
Petition  No.572  of  2003,  placed  the  “Scheme  of  Shelters  for   Urban
Homeless”, issued by the Government of India, Ministry of Housing and  Urban
Poverty Alleviation before this  Court.   The  said  Scheme  refers  to  the
National Urban  Livelihoods  Mission  (NULM).   The  NULM  was  launched  on
24.09.2013 to reduce the poverty and vulnerability of urban poor  households
by  enabling  them  to  access  gainful  self-employment  and  skilled  wage
employment  opportunities   through   building   strong   grassroots   level
institutions for the poor which would result in an  appreciable  improvement
in their livelihoods on a sustainable  basis.   The  NULM  Mission  Document
also states that providing shelters equipped with essential services to  the
urban homeless in a phased manner is  a  top  priority.   The  location  and
design of shelters and the funding pattern of the  Scheme  of  Shelters  for
Urban Homeless  is  discussed  in  detail  in  the  Mission  Document.   The
Operational Guidelines for the Scheme of Shelters for  Urban  Homeless  were
issued in December, 2013 by  the  Ministry  of  Housing  and  Urban  Poverty
Alleviation. These guidelines provide the details of the norms and types  of
shelters and the facilities to be provided at the  shelters.    As  per  the
Scheme, Government  of  India  would  fund  75  per  cent  of  the  cost  of
construction of the  shelters  and  the  remaining  25  per  cent  would  be
contributed by the States/UTs.  In case  of  Special  Category  States,  the
Central Government would fund 90 per cent and  the  States  would  bear  the
remaining  10  per  cent.   The  Urban   Local   Bodies   were   given   the
responsibility of monitoring and evaluation of the Scheme.
The States/UTs were directed to file  affidavits  regarding  the  status  of
implementation of the Scheme by an Order of  this  Court  dated  04.09.2014.
If the States did not fully implement the  Scheme,  they  were  directed  to
state the time frame during which they would do  so.   While  directing  the
Ministry of Housing and Urban Poverty Alleviation to explore  the  ways  and
means of providing temporary shelters to the needy persons,  this  Court  by
an Order dated 13.11.2014 also directed the Government of India  to  enquire
from the Chief Secretaries or the Administrators of each State/UT about  the
status of implementation of the Scheme.   On  12.12.2014,  a  direction  was
issued by this Court for a meeting of the Executive Committee to be held  on
or before 31.12.2014 to prepare a report of the activities of  the  Mission.
The Chief  Secretaries  of  the  States  were  directed  to  constitute  the
Executive Committees in terms of the NULM  Mission  Document  on  or  before
31.12.2014.   A  further  direction  was  issued  to  review  the   existing
temporary  and  permanent  shelters  to  ensure  that  all  facilities   are
available in those  shelters.  In  those  States/UTs  where  the  number  of
shelters was inadequate, steps were directed  to  be  taken  to  provide  at
least temporary shelters forthwith.

When these matters were listed on 13.02.2015, this Court was  informed  that
Executive Committees were constituted in 27 States/UTs for  the  purpose  of
permanent shelters in 790 towns/cities.  The  learned  Additional  Solicitor
General representing the Union of India submitted  that  monitoring  of  the
permanent housing structures would be done on a  regular  basis  by  calling
for Monthly Progress Reports from the States/UTs in  terms  of  the  Scheme.
The Union of India was directed to submit a status report  before  the  next
date fixed for hearing i.e. 24.04.2015.

On 24.04.2015, an affidavit was handed over in Court on behalf of the  Union
of India.  This Court examined the  said  affidavit  and  the  final  status
report relied upon in the affidavit filed earlier  on  20.02.2015.   It  was
stated by the Union of India that an amount of around  Rs.1,000  crores  was
made available to the States/UTs as on  31.01.2015  under  the  NULM.   This
Court  referred  to  the  non-utilization  of  funds  by   the   States   of
Maharashtra, Uttar Pradesh, Assam  and  Kerala.  This  Court  observed  that
there  was  no  monitoring  or  evaluation  of  the  progress  of  work  and
utilization of the huge amount of money  that  was  released  to  the  State
Governments.   The Ministry was directed to  file  an  affidavit  giving  an
account of the expenditure incurred and also the audit  that  was  conducted
for the funds that were released.

These Writ Petitions were listed on 07.08.2015 when it was made  clear  that
their scope was only with reference to shelters  for  urban  homeless.   The
Union of India sought time to file details  of  the  implementation  of  the
Scheme along with the relevant documents.

Thereafter, the matter was again listed on 30.10.2015. It was  submitted  by
the Union of India that there are seven components in NULM  and  the  amount
of Rs.1,000 crores released to the  States/UTs  as  on  31.01.2015  was  not
exclusively for providing shelters.  The Union  of  India  was  directed  to
file an affidavit indicating the amount of  money  allocated  by  the  State
Governments and Union Territories for providing shelters.  It  was  recorded
in the order dated 30.10.2015 that only 75 shelters were  completed  out  of
the proposed 440 and that 19 States/UTs have not  sanctioned  any  proposals
for urban homeless shelters.   As this Court  was  not  satisfied  with  the
progress that was made, an affidavit was also  directed  to  be  filed  with
regard to  funding  of  the  State  Level  and  City  Level  Committees  and
particulars of the progress made in setting up shelters in a  tabular  form.


After  examining  the  matter  again  on  04.12.2015,  this  Court  was  not
satisfied with the steps taken for implementation of the Scheme of  Shelters
for  Urban  Homeless.   The  Secretary,  Ministry  of   Urban   Development,
Government of India was directed to be present in Court  to  explain  as  to
why the progress regarding the implementation of  Scheme  was  tardy.   This
Court wanted to know why regular meetings of the Governing Council  and  the
Executive Council were not being held.  The particulars of  the  expenditure
incurred in respect of the Scheme of Shelters for Urban  Homeless  was  also
sought.

The Writ Petitions were listed again for hearing on 08.03.2016.   The  Union
of India relied upon an additional affidavit filed  pursuant  to  the  Order
dated 04.12.2015  in  which  details  of  the  amount  sanctioned/spent  for
setting up of homeless shelters in different  States  were  given.   It  was
also claimed by Union  of  India  that  the  Scheme  was  being  effectively
implemented.  The veracity  of  the  said  statement  was  disputed  by  the
Petitioners.  This Court  directed  the  Member  Secretary,  National  Legal
Services Authority (NALSA) to verify the correctness of the claim  of  Union
of India regarding the actual  implementation  of  the  Scheme.   NALSA  was
directed to take the assistance of the State Legal Services Authorities  and
to submit a report to this Court within 8 weeks.  The State  Legal  Services
Authorities were directed to coordinate with the  concerned  departments  in
the  States  for  identification  and  verification  of  the  progress  made
regarding the shelters.

The report submitted by NALSA has been placed before us.  It  is  stated  in
the report that  on  a  physical  verification,  the  State  Legal  Services
Authorities  found  that  some  shelters  are  being  run   by   the   State
Governments, Municipal Corporations and other  agencies.   In  some  States,
shelter homes are being run in rented premises as the  construction  of  the
shelter  homes  is  not  completed.   The  particulars  of  the  number   of
sanctioned shelters in each State have been  given.   The  number  of  urban
shelters that were constructed and operational  is  also  mentioned  in  the
report.  A perusal of the statement provided by NALSA would  show  that  the
facility of shelter homes in the majority of States is insufficient.

It was stated in the affidavit filed by the Union  of  India  on  04.01.2016
that the actual implementation of the NULM is done by the State  Governments
through the State Urban Livelihood Missions at the State level  and  by  the
concerned Urban Local Bodies at the City Level.  It was further stated  that
the funds for the operation and management of the shelters were released  to
the Urban Local Bodies after the construction was completed and that for  an
effective monitoring of the Scheme, committees have been constituted at  the
National/State Levels.  It was also stated that funds were released  to  the
States only after submission of audit report  and  utilization  certificates
for the funds released earlier in accordance with guidelines  laid  down  in
General Financial Rules, 2005.  According to the Union of India, funds  were
released only after the audit  reports  and  utilization  certificates  were
examined by the internal financial division of the Ministry  in  each  case.
Periodical review of the progress made for providing shelters is being  made
by the Ministry.  It was also stated in the said affidavit dated  04.01.2016
that only 653 shelters were sanctioned by the States/UTs out of  total  1340
shelters  planned  under  NULM.   Steady  progress  was  reported   by   the
States/UTs regarding the sanction of projects under the Scheme  as  per  the
said affidavit.

Annexure-A filed along with the said affidavit shows that an amount  of  Rs.
2185.50  crores  was  made  available  to  the  States/UTs  and  the   total
expenditure reported by the States is Rs. 1222.90 crores.  The NALSA  report
does not provide a clear picture of the  progress  made  in  the  matter  of
providing  shelters  in  the  States/UTs.   The  report  is  based  on   the
information provided by the States to the State Legal Services  Authorities.
 The  details  of  the  amounts  allocated  by  the  State  Governments  for
providing shelters and the actual amount spent for the shelters is also  not
apparent from the report.  What is clear,  however,  is  that  the  laudable
objective with which the National Urban Livelihood Mission  and  the  Scheme
for Shelters for Urban Homeless were  introduced  is  not  achieved  due  to
ineffective implementation.

In spite of several directions issued by  us,  the  infrastructure  for  the
shelter homes has not been achieved. Union  of  India  has  been  constantly
claiming steady progress but the NALSA  report  suggests  to  the  contrary.
Providing the requisite infrastructure is only the first  step.   Thereafter
the other facilities have to be  provided  and  proper  maintenance  of  the
shelter homes has to be ensured.  The mission  of  NULM  remains  a  distant
dream even after the lapse of a long period.

A careful consideration of the submissions of the parties and  the  material
on record discloses that the destitute in urban  areas  continue  to  suffer
without shelters. The Union of India has formulated a  Scheme  and  released
huge amounts of money to the State Governments. The  State  Governments  are
responsible for the implementation of  the  Scheme.   The  reasons  for  non
utilization of funds for the welfare scheme are not forthcoming.

In spite of the availability of funds and a clear  mechanism  through  which
to disburse them, we see an extremely unsatisfactory  state  of  affairs  on
the ground. This is despite our continuous monitoring  of  the  matter.  Yet
another winter approaches and enough has not been  done  for  protection  of
many homeless in  our  towns/cities.  For  the  aforementioned  reasons,  we
direct as follows:

A Committee is constituted which will  have  Mr.  Justice  Kailash  Gambhir,
retired Judge, High Court of Delhi as its Chairman with an  officer  of  the
Joint  Secretary  cadre  from  the  Ministry  of  Housing  &  Urban  Poverty
Alleviation to be deputed by the Union of India and an officer,  serving  or
retired, from the Delhi Judicial  Service  to  be  nominated  by  the  Chief
Justice of the High Court of Delhi in consultation with the  Chairperson  of
the Committee as Members.  The last mentioned shall be the Member  Secretary
of the Committee.
The Ministry of Housing and Urban Poverty Alleviation  shall  be  the  Nodal
Ministry to provide all logistical support to the Committee.
The  Chairman  of  the   Committee   shall   be   entitled   to   all   such
emoluments/perquisites and facilities  as  are  admissible  to  any  retired
Judge, when holding a post retirement assignment  like  Chairperson  of  the
State Consumer Commissions except residential accommodation.  The  Committee
may not require any regular office  space  but  should  there  be  any  such
requirement it may take up the matter with the relevant authority.
The Committee shall cause physical verification of  the  available  shelters
for urban homeless in each State/UT.
The Committee shall also verify whether the shelters are  in  compliance  of
the operational guidelines for the Scheme of  Shelters  for  Urban  Homeless
under the National Urban Livelihoods Mission (NULM).
The Committee shall inquire into the reasons for the slow  progress  in  the
setting up of shelter homes by the States/UTs.
The  Committee  shall  further  inquire  about  the  non-utilization  and/or
diversion/misutilization  of  the  funds  allocated  for  the   Scheme   for
providing shelters to the urban homeless.
The Committee shall issue suitable recommendations to the State  Governments
to ensure that at least temporary shelters are provided for the homeless  in
the urban areas to  protect  them  during  the  winter  season.   The  State
Governments shall ensure compliance with the recommendations along the  time
frame indicated by the Committee.  Any non implementation shall be drawn  to
the attention of this Court.
The Committee is directed to submit its  report  within  a  period  of  four
months.

      List these Writ Petitions after four months.

                      ...…...........................CJI
                   [T. S. THAKUR]


........................................J
                           [Dr. D. Y. CHANDRACHUD]



                     ……................................J
                                                      [L. NAGESWARA RAO]

New Delhi,
November 11, 2016

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