74th constitutional amendment deficiency

kanpurghost




Deficiency in 74th Constitutional amendment/Urban Destruction

18-01-2007

To

2:-The Law Commission of India Through
Member Secretary Law Commission of India
7th Floor,A-Wing, Shastri Bhawan
New Delhi-110001

1.-Mr.Hansraj Bharadwaj
The Honorable Minister of Law
Government of India,
Ministry of Law & Justice
Government of India,4th floor, A-wing,
Shastri Bhawan
New Delhi.-110001


Dear Sirs:
I have been studying the Town Planning problems & Laws for the last ten years & have written hundreds of letters to hundreds of Authorities of the Centre and various States & I had written a detailed letter dated (Law Minister on 27-03-2006 & to Law Commission on 17-07-2006), to you regarding the sorry state of affairs of Law making in the Country. I would like to draw your attention to the following deficiency even in the 74th Constitutional Amendment as it does not answer certain questions & does not lay down as mandatory certain clauses although it ought to.

1. That by the 74th Constitutional amendment w. e. f 1-06-1993,reads as hereunder:- “Article-243 –P, defines vide clause ( c )-“Metropolitan Area” means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purpose of this part.
2. That Article-243-ZD reads as :- COMMITTEE FOR DISTRICT PLANNING-- (1)- There shall be constituted in every State at the District Level a District Planning Committee to Consolidate the Plans prepared by the Panchayats and the Municipalities in the District and to prepare a draft development plan for the district as a whole.
(2)- The legislature of a State may by Law make provision with respect to – (a)-The composition of the District Planning Committees; (b)-The manner in which the seats in such committees shall be filled; Provided that not less than four fifths of the total number of members of such Committee shall be elected by and from amongst, the elected members of the Panchayat at the District level and of the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the Urban areas in the district.









(c)- The functions relating to district planning which may be assigned to such Committees; (d)- The manner in which the Chairpersons of such Committees shall be chosen. (3)Every District Planning Committee shall in preparing the Draft Development Plan,— (a)-have regard to---
(i)- matters of common interest between the Panchayats & the Municipalities including spatial planning, sharing of water & other physical and natural resources, the integrated development of infrastructure and Environmental conservation; (ii) the extent & type of available resources whether financial & otherwise. (b)- consult such institutions and organizations as the Governor may, by order, specify (4) The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.

3. That Article-243-ZE. Reads as- COMMITTEE FOR METROPOLITAN PLANNING—
(1)- There shall be constituted in every Metropolitan Area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area as a whole.
(2)- The legislature of a State may by Law make provision with respect to – (a)-The composition of the Metropolitan Planning Committees; (b)-The manner in which the seats in such committees shall be filled; Provided that not less than two thirds of the members of such Committee shall be elected by and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities & the Panchayats in that area ; (c)- The Representation in such Committees of the Government of India and the Government of the State and of such organizations and institutions as may be deemed necessary for carrying out the functions assigned to such Committees; (d)- The functions relating to planning and co-ordination for the Metropolitan area which may be assigned to such Committees; (e)- The manner in which the Chairpersons of such Committees shall be chosen.
(3)- Every Metropolitan Planning Committee shall in preparing the Draft Development Plan— (a)-have regard to--- (i)-The plans prepared by the Municipalities and the Panchayats in the Metropolitan area. (ii)- matters of common interest between the Municipalities & the Panchayats including co-ordinated spatial planning of the area, sharing of water & other physical and natural resources, the integrated development of infrastructure and Environmental conservation; (iii)- The overall objectives and priorities set by the Government of India and the Government of the State; (iv)- The extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and the Government of the state and other available resources whether financial or otherwise; (b)- consult such institutions and organizations as the Governor may by order specify.
(4) The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.

4. That by the above Constitutional amendment, solution to the problems of Villages falling within the trap of Town planning Authorities has been tackled, to some extent. The Villagers have been given a say in the sharing of physical & natural resources, & integrated Development of infrastructure etc has been provided for, the Villagers can place their own conditions like provision of roads, water supply, electricity supply etc before acquisition of their lands, similarly, they can insist that any obnoxious trade or industry or Garbage dump of the City shall be situated in an area, which should be far away from their abadi sites, they can also object to the Cattle Colonies or Pig colonies being situated near to their abadi sites, such privileges are presently denied to them arbitrarily. Any Town Planning Law which provides for purely Urban Development Authority has become redundant. Before the enactment of the Agrarian Reforms by various States, Villages, when engulfed by the Towns used to be converted in to a slum of the City & used to loose their independent identity but the Agrarian Reforms gave the status of a Mini Republic to the Villages & even when they were included in the Urban Municipality, the Agrarian Reforms prevailed over those of the Town Planning Laws & all that was open to the Municipality was to plan in such a way that the interests of the Villages included in them were not overlooked & no planning detrimental to these could be done. Thus the villagers lands could be Acquired under the Land Acquisition Act but their livelihood could not be taken away from them nor could their Common Lands be denied to them, in fact after Acquisition of Agricultural Lands, the Villagers became all the more dependent on these common lands for alternative mode of occupations like Animal Husbandry, Cottage Industries etc. In short the Villages were to retain their identity within the Urban Agglomerate.
Problem & Deficiency in the 74th Amendment
5. Now the problem is that with the state of affairs prevailing in the Law making departments of various states, it is most likely that some of them may declare Metropolitan Areas including within them parts of some districts instead of the whole of the district. In such a situation there will have to be a District Planning Committee in the balance of the District in which the Municipality is contained & in that event the District Planning Committee, members will have to be elected from even that Municipality from which the Metropolitan Planning Committee members have also been elected & in this situation, the Draft Development Plan will have to prepared for part of the district by the district planning committee. As such there ought to have been exception clause to this effect in the Constitutional Amendment or in the Amendment itself it should have been mentioned that Metropolitan Area should contain the entire area of the district. For Example- “A” is declared as a Metropolitan Area & it contains parts of districts D-1; D-2 & D-3 and contains Municipalities M-1; M-2 and M-3 for the sake of convenience consider that each municipality has same population & is situated in a different district say M-1 in D-1; M-2 in D-2 & M-3 in D-3 & suppose that the Metropolitan Planning Committee is to comprise of say thirty members out of which the share of each Municipality is say 5 members each (excluding the members selected from amongst the Chairpersons of the Panchayats),then from the same Municipality more members will have to be elected for the balance part of the respective district as District Planning Committee members & there will be all confusion & clash of interests between the Metropolitan Plan / Planning Committee. & District Plan/Planning Committee. Request.

6. That it is therefore imperative that the Honorable Law Commission/Minister of Law may please clarify the situation & pass on suitable guidelines for the States.
Problem & Deficiency in the 74th Amendment
7. That it is also to be mentioned that the provisions of Article-243-W, leave it to the discretion of the State Government to entrust or not to entrust the functions & schemes in relation to matters included in the Twelfth Schedule. With all due respects I beg to state that the proper home work was not done by the Law Commission before the 74th Amendment at least in relation to the areas under The Municipal Corporations for which it should have been mandatory for the State Government to entrust all the functions of the Twelfth Schedule, to the Municipal Corporations. The 74th Amendment Article-243-W, proceeds on the wrong assumption that the Municipalities are not having the desired expertise & are thus were incapable of being entrusted with the functions as described in the Twelfth Schedule of the Constitution. That the destruction of the Cities/Urban areas of India started after The Delhi Development Act-1957 was enacted based on the same wrong assumption & Delhi Development Authority was established leaving the flood gates open for similar foolish legislations by other States & the consequent destruction of Cities as well as Villages. That our Country was very lucky that the British brought in the experience of 500 years of lawmaking to this Country & provided laws & solutions for almost every aspect of life & more particularly for Town Planning that is why one finds that certain planned roads in Kanpur as well as many other Cities to be as broad as more than a hundred feet & that too in areas developed about eighty years ago when people moved around mainly on foot. The Laws relating to Municipalities were made hundreds of years ago, Beautiful Towns & Cities were developed under U. P. Town Improvement Act 1919;U. P. Municipality Act –1916 (earlier versions also existed) & much earlier in Madras, Calcutta, Delhi & Bombay. The Laws relating to Municipal Corporations were made by the States more than sixty years ago & they not only provided for all matters contained in the Twelfth Schedule of the Constitution but much beyond these matters. The Twelfth Schedule is no match to the already existing provisions in these Municipal Corporation Acts. Let us examine & compare the Twelfth Schedule functions with Sections 114 (Obligatory functions of Municipal Corporations) & Section-115(Discretionary functions of Municipal Corporations) as contained in the U.P. Municipal Corporation Act-1959 (The definitions & Section-114 as well as Section-115 as contained in U. P. Municipal Corporation Act-1959 are being annexed as Annexure-1 to this letter).The salient points are as below:-

Twelfth Schedule Provisions
Comparative provisions of U. P. Municipal CorporationAct-1959
Remarks
Total Eighteen Provisions
Under Section-114,forty six Obligatory functions of the Corporation & under Section-115, forty three discretionary functions
Out of these 89, only 8 were inserted after the 74th amendment & these too were already present under some other heading
1-Urban Planning including Town Planning
Section-114(xxxiii) as well as entire Chapter-XIV
Suspended by U. P. Urban Planning and Development Act-1973 enacted in vested interests by Bureaucrat -state level political mafia nexus as a sequel to D.D.A Act.
2-Regulation of Land Use & construction of buildings
Covered under Section-114(xxxiii); Chapter-XIII & XIV &
Better & more exhaustive in the Corporation Act
3-Planning for economic & social Development
Many of the provisions of Section-114 & 115 provide for these matters
Section-115-subsections-(xxvii),(xl),(xxxix),(xxx);Section-115-(xxxvi),(xxxvii)(xxxix)(xil)
4-Roads & Bridges
Section-114-(ii),(iv),(xxiv),(xxix) as well as entire Chapter-XII
Exhaustive provisions in Municipal Corporation Act
5-Water supply for Domestic, Industrial & Commercial purposes
Obligatory vide Section-114-(vii),(viii)& entire separate Chapter-XI
Exhaustive provisions in Municipal Corporation Act
6-Public health conservancy & solid waste management
Obligatory under Section-114-, subsections (x) to (xiv),(iii) (xvii)(viii)(xviii)
Obligatory Section-114-(x);Chapter-XV & Chapter-XVI etc, Section-115-(xxxi);Section-347-(1)(d),(2)(e);
7-Fire Services
Obligatory under Section-114-(xxiii)

8-Urban Forestry, Protection of the environment & protection of the Ecological Aspects
Inserted in 1994 as Section-114(xxxiii-a)
But was already there as Obligatory-Section-114 subsections xxx),(xvii), (xviii),(xxxviii), Section-115-(viii),
9-Safeguarding the interests of weaker sections of society including the handicapped & mentally retarded
Same language Inserted as Section-114(xxxiv-a)
But provisions were already there as Section-115(i),(xxiii), (xxvii), (xxx), (xxxix), (xl), (xlii)
10-Slum Improvement & Up gradation
Inserted as Section-114-(xxxix) in 1994 to match the language of the 74th Amendment
But the provision was already there in Obligatory Section-114-(xxxiii);Section-345;
11-Urban Poverty alleviation
Inserted as Section-114-(xl) in 1994 without bothering to read the existing provisions
Already existed as Section-115-(xxiii), (xxvii), (xxx), (xl), (xlii)
12-Provisions of Urban amenities & facilities such as Parks Garden & Playgrounds.
Inserted as Section-114(xli) in 1994 without bothering to read the existing provisions
Already existed in Chapter- XIV ,Section-345-(2)(a);353(j),(o), ;Section-114-(ii),(ix),(xxx), (public places) & even the definition of “public places” in the Corporation Act reads as “includes any public park or garden or any ground to which the public are permitted to have access”.Section-115(viii),The Kanpur Municipality as per the Book Kanpur Municipality Bye-laws-1950 had for the Protection of Parks, Gardens and Play grounds, there was THE PARKS & ARBORICULTURE COMMITTEE -Page-288. Exhaustive BYE-LAWS FOR SECURING THE PROTECTION OF PUBLIC PARKS, GARDENS AND OPEN SPACES (page-664, Annexure-C, dated-July-24-1947, were made with rigid provisions for their Protection,
13-Promotion of Cultural, educational & aesthetic aspects
Already existed as Section-114-( xxv),(xxvi) ;Section-115-(vi),(vii),(xi),(xviii),(xix),
Again inserted as Section-114-(xxxiv-b) in 1994 without bothering to read the existing provisions
14-Burials & Burial Grounds, Cremations, Cremation Grounds and Electric Crematoriums
Already existed as Obligatory Section-114-(xx)

15-Cattle Pounds, Prevention of cruelty to animals
Already existed as Obligatory Section-114(xxviii), in addition animal welfare sections 114(xxvii-Veterinary Hospitals);Section-115-(v),(xxi),(xxv).
In 1994 again inserted as Section-114-(xxxiv-c) without bothering to read the existing provisions
16-Vital Statistics including registration of Births & deaths
Already existed as Obligatory Section-114-(xv).

17-Public amenities including Street lighting, parking lots bus stops and public conveniences.
Already existed as Section-114-(v),(ix),(xxxi), hundreds of Hackney carriage stands were provided, which can be used as Bus, Tempo Stands,Section-278-(2)- for parking of Vehicles))
Again inserted as Section-114-(ix-a) although provisions were already there.
18-Regulation of Slaughter Houses & Tanneries.
Provision for Slaughter Houses already existed s Obligatory Section-114-(xxi)
As regards Tanneries there were exhaustive byelaws in Kanpur Municipality for example in the Book published by Kanpur Municipality in 1950 on Page-153:-BYE-LAWS FOR STORING HIDES, HORNS, OR SKINS AND FOR TANNING IN THE KANPUR MUNICIPALITY (CONFIRMED ON 28-12-1918) .SALIENT POINTS—CLAUSE-3:-No dischrge of foul water or refuse …in to the river Ganga or into any reservoir of water intended for bathing or drinking. Very exhaustive other clauses for sanitary care

The above provisions have been cited just to explain that most of the Municipal Corporations were capable of handling all the functions of the Twelfth Schedule of the Constitution and as such because by the Constitutional Amendment Article-243-W gives a discretion to the State Government and it was not made mandatory, the State Governments will to usurp all powers in itself will deny even these functions to the Municipalities although they were already carrying them out since long but due to the enactment of the Illegal Urban Planning Acts in the States patterned on the Illegal & mischievous D. D. A. Act, the Municipalities were denied these functions in the vested interests of the Bureaucrat-Politician nexus.


8. That although from the very beginning there was no Constitutional Mandate for the establishment of a Purely Urban Development Authority which could be allowed to function & to establish Towns, without the obligation of having to provide basic Civic services to the Inhabitants but hundreds of such Authorities were set up & allowed to destroy the Urban areas of the Country. In the Constitution in List-II-State List at S.No.5, there is provision of “Local Government that is to say, the constitution and powers of Municipal Corporations, Improvement Trusts, district Boards, mining settlement Authorities and other local Authorities for the purpose of Local self Government or Village Administration.” Now out of these the Improvement Trusts formed under the Town Improvement Trust Acts of various States such as United Provinces Town Improvement Act-1919, never ever provided for Town Development without the benefit of the protective Umbrella of the provisions of Obligatory functions of the Municipalities but the U.P Urban Planning & Development Act denies this protection to the areas under the Development Authorities which have been saddled with no Obligations at all. Although by the 74th Constitutional Amendment all the Urban Town Planning Laws including the U. P. Urban Planning & Development Act-1973 as well as the Delhi Development Authority Act have become redundant yet both the Central as well as the State Governments are continuing with these because, by them, the Politicians of the Central and the State Governments get control over Urban Lands –the Route to sure shot Illegal Riches and if the Constitutional mandate is implemented then the Central & State Level Politicians will loose this control to Municipal Councilors. Thus it is clear that only Local Authorities with Self Government were foreseen by the Constitution for the Town Development & maintenance function which these Urban Development Authorities like D.D.A & the like are not. All that could be entrusted to such bodies at the most was the Engineering function relating to Town Development under the overall control of the Municipality & that too was unnecessary in the case of Municipal Corporations which functioned under a much better & exhaustive law with the obligations of providing services to the Citizens for a better quality of life & already had the full fledged infrastructure of Town Planning with them.
9. That I have written a detailed commentary on this topic & the letter written on 26-08-2003 to the Chief Secretary of U.P. along with the letters written to The Director (National Urban Renewal Mission ) on 18-08-2006//29-09-2006 & to Chief Minister U.P. on 21-10-2006 are being annexed as ANNEXURE-2 with this letter. Another letter written to about a hundred Members of Parliament in 2001 & now again on 10th November-2006 about rapid conversion of Villages falling within Urban areas due to faulty Urban Planning is being annexed as ANNEXURE-3 &letter dated 27-07-2006 about the large scale Speculation in land which has become the National Sport of India is being annexed as ANNEXURE-4. All these letters are self explanatory & the concerns raised in them need to be addressed immediately, if further destruction of Towns & Villages of India is to be stopped.
10. That the Urban Development Ministry is releasing thousands of crores of rupees, to the States for the improvement of the Cities & although they have tried to influence the States to implement the 74th Constitutional amendment but the States as well as their own advisers have fooled them & they have recognized these illegal Urban Development Authorities by calling them as U L B’s i.e Urban local bodies. Now from where they have coined this definition is not clear. The Constitutional mandate is quite clear, the Planning has to be done by the Municipalities or the Panchayats who are to make their own plans & then the Coordinated Spatial Planning is to be done under the guidance of the District Planning Committee or the Metropolitan Planning Committee as the case may be with help from such departments as may be needed. Thus Urban Development Authorities or U L B’s, by what ever name they may be called have no role to play while the fact is that most of the States, Particularly U.P are getting this money for Plans none of which have been made by any Municipality or the Panchayat or by Coordinated Spatial Planning of the two. All the Master Plans in U.P have been made by the Urban Development Authorities in their vested interests by taking money from Land mafia who have purchased lands on a large Scale in certain areas & then managed to reserve these lands in the Master Plans for Residential Commercial Uses & even the Gram Samaj Common Lands in these Master Plan have been shown illegally as reserved for Residential/Commercial/ Industrial use in disregard to the provisions of the existing & applicable Agrarian Reform Acts & these Urban Development Authorities have neither bothered to look in to the needs or Obligations of the Municipalities or the Panchayats in their areas & in fact the plans are detrimental to interests of both. Thus all the money spent under the Jawahar Lal Nehru Urban Renewal Mission will go to waste unless the Master Plans made by the Urban Authorities are scrapped & the Municipalities & Panchayats make their plans & then the Plans of Metropolitan areas & District Planning Committees are then made for Coordinated Spatial planning & this is no easy task & is likely to take a few years provided a honest beginning is made immediately till then this Mission needs to be kept on hold.

RELIEF/Request
11. That in view of the above you are requested to grant in addition to relief asked for in paragraph-6 above, the following relief:-

(1)- Strictly implement the Constitutional mandate & repeal all the
Urban Development Acts of the Central as well as the States & revert back to the Municipal Corporation Acts for the purpose of Town Planning & prevail upon the States to abolish the Urban Planning Authorities (at least in) Municipal Corporation areas & if needed the Municipal Corporation Acts be amended to provide for operation of Town Planning Provisions (like Chapter-XIV of the U.P. Municipal Corporation Act-1959) to a few kilometers(as considered necessary to prevent hap hazard growth on the out skirts) , outside the Boundaries of the Municipality( there are many such provisions in the U. P. Municipal Corporation-Act-1959 for extending the provisions of several Chapters to two miles beyond the boundaries
(2)- Please make it mandatory for the State Governments to hand
over all the functions of the Twelfth Schedule of the
Constitution to the Municipal Corporations /Municipality &
Transfer the Town Planning staff of the Urban Authorities to them from where they came in the first place.
(3)- In Article-243-X of the Constitution in clause (c) after the words “Fund of the State” insert the following - ““Provided that it shall be mandatory for the State Government to assign a minimum of fifty percent of the Trade/Sale/Commercial tax /VAT or tax on sale of goods & services (by whatever name called)realized from dealers registered in the Trade-Tax/Sale- tax /service tax department of the States as are situated within the boundaries of each Municipality or such extended boundary of the Municipality to which the provisions of any of the Chapter of the Municipal Law applies”.
Or

(4)-- In Article-243-Y of the Constitution in subsection-(1) in clause (a) (i) at the end after the word “proceeds”, insert the following--“Provided that it shall be mandatory for the State Government to assign a minimum of fifty percent of the Trade/Sale/Commercial tax /VAT or tax on sale of goods & services (by whatever name called)realized from dealers registered in the Trade-Tax/Sale- tax /service tax department of the States as are situated within the boundaries of each Municipality or such extended boundary of the Municipality to which the provisions of any of the Chapter of the Municipal Law applies”.
(5) Please advice the Urban Development Ministry/ Director Jawahar Lal Nehru Urban Renewal Mission to put their mission on hold till such time the States understand & implement the 74th amendment in its true spirit & revoke the Urban/Town Planning Acts, & abolish the Development Authorities & re entrust the Town Planning Job to the Municipalities, declare the Metropolitan Areas & put in place the District Planning Committees/ Metropolitan Planning Committees & the Municipalities make their Master Plans after taking in to account all their Obligatory functions & similarly the Panchayats do likewise & then the Metropolitan Planning Committee /District Planning Committees make the Coordinated Plans get their draft Plans approved from the State Governments.
If the Request is granted it will not only ensure sound health of the Municipalities but also put an end to the wide scale Corruption prevailing in Urban Development Authorities.

Yours Sincerely



(Robby Sharma)
865, Block-B, Panki Kanpur-208020
phone-0-9415438326.
Copy to:- For necessary action with special reference to paragraph-10 & Relief-(5)
To the Director (National Urban Renewal Mission),
Aniruddh Kumar/or his successor Director (NURM)--Room No.138-C
Ministry of Urban Development Government of India.
Nirman BhawanMaulana Azad Road, New Delhi - 110011