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