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Condoning Unplanned Development

The recent stand-off between traders and the law enforcement agencies and the one brewing between the government and the judiciary appears in large part due to unplanned and un-regularised development of Delhi, to which authorities for long turned a blind eye. However, solutions that have been proposed pose their own intractable problems, such as multiplicity of agencies and the absence of any accountability. For all its laudable objectives, the report of the Tejendra Khanna Committee of Experts, that this article takes up for analysis, appears to compound certain already existing problems.

Condoning UnplannedDevelopment

Reviewing the Khanna Committee Report

The recent stand-off between traders and the law enforcement agencies and the one brewing between the government and the judiciary appears in large part due to unplanned and un-regularised development of Delhi, to which authorities for long turned a blind eye. However, solutions that have been proposed pose their own intractable problems, such as multiplicity of agencies and the absence of any accountability. For all its laudable objectives, the report of the Tejendra Khanna Committee of Experts, that this article takes up for analysis, appears to compound certain

already existing problems.

ASHOK KUMAR

I
n December 2005, the Delhi High Court ordered the Municipal Corporation of Delhi (MCD) to take legal action against all unauthorised structures. Reacting to another set of petitions, in February 2006, the Supreme Court ordered the MCD to close all illegal commercial complexes, showrooms and shops being run from residential areas. Realising that demolition of unauthorised constructions and misuse of premises was eminent, violators began to organise in early 2006. Succumbing to the pressure from violators, the union ministry of urban development set up the Tejendra Khanna Committee of Experts through a notification of February 14, 2006 to examine the entire issue of unauthorised constructions and misuse of premises in Delhi. While the Khanna Committee submitted its report on May 13, 2006, Lok Sabha had already passed the Delhi Laws (Special Provisions) Bill, 2006 on May 11, 2006 and Rajya Sabha on May 15, 2006. As soon as both the houses of Parliament had passed this bill, the Delhi Laws (Special Provisions) Act, 2006 received the assent of the president of India on May 19, 2006 [Government of India 2006]. Section 3 sub-section 2 of the act provided that “notwithstanding any judgment, decree or order of any court, status quo as on the 1st day of January 2006 shall be maintained in respect of the categories of unauthorised development mentioned in sub-section 1”. Hearing the PIL against this statute, the Supreme Court slammed the government of India and commented

that the “legislature cannot direct any authority not to comply with the orders of this court”. It is in this context that a discussion on the Khanna Committee of Experts becomes significant.

This article reviews the report of the Khanna Committee, its underlying premises and its specific proposals. It also examines the implications of implementation of whole or a part of the Khanna Committee proposals on the planning profession including planning practice and the civil society. The committee squarely blames the existing planning system prevalent in Delhi for the last 47 years. It argues that the Delhi Development Authority (DDA) has been entirely unable to implement the master plan for Delhi, 1962 and its various later incarnations. Along with the DDA, the MCD has overlooked its enforcement responsibilities. Therefore, people, who were in need of space to live in and to conduct their economic and other activities, have been compelled to violate the law. It is thus lawful, the committee argues, to condone such violations. I would like to argue in the following pages that these are not valid arguments because these are not based on sound reasoning as defined in the settled planning law, the master plan for Delhi and development control norms.

Flawed Planning Process

The committee argues that the planning process being followed by the DDA and DMC is flawed. This is a serious accusation by any standards. To establish its assertions, the committee provides evidence in the form of the implementation backlog that exists with regard to providing housing for the lower income groups, commercial development particularly district centres, etc. But all this evidence is based on hearsay rather than scientifically conducted field surveys. In chapter three (3.5), it is noted that “since DDA started its activities, it has only been able to provide 16 per cent of the targeted built-up area designated for commercial purposes” [Ministry of Urban Development, 2006: 9, also see page 31]. But this is the only area covered by the district centres. On the basis of suggestions made by some unknown but noteworthy individuals, the Khanna Committee points out in chapter four (4.14.9) that “Since its inception, the DDA has only constructed 3.3 lakh housing flats, whereas the population of Delhi has increased from about 15 lakhs to nearly 150 lakhs in the same period” [Ministry of Urban Development 2006: 16]. In the case of development of land for institutional use, the committee infers that “legally allotted sites for hospitals and nursing homes, etc, may hardly be covering 25 per cent of such institutions actually operating in the NCT of Delhi, (thus) it will not be an overestimate to infer that 75 to 80 per cent of such institutions are, in practice, operating from residential premises” [Ministry of Urban Development 2006: 26]. I would argue that when the DDA’s planning processes are being examined why not seek quantitative data from the DDA? Even if data quoted by the committee is accepted as true, this may only indicate indirectly that the planning process could be flawed because implementation could be hampered for various other reasons such as lack of funds, rising costs of construction materials, change in government policies, litigation with contractors, etc, apart from the faulty planning process.

Another argument made by the committee to build up its argument of flawed planning process is that lower order plans such as zonal development plans and implementation or layout plans have not been prepared in time by the concerned authorities. As far as preparation of zonal development plans is concerned, all the eight zonal development plans for urban Delhi, where most problems of violations exist, have been prepared by the DDA. Layout plans’ preparation may have been slow and sketchy, but a direct correlation between non-preparation of lower order development plans and wavering away from planned development has not

Economic and Political Weekly September 30, 2006 been established in any direct manner whatsoever. How could this be established without going into the very processes of plan preparation and implementation in the first place? The planning process is also flawed, the committee further contends, because it does not provide opportunity to people including violators to apply for development and land use related changes.

It has also to be recognised that there is no proper institutional mechanism in place at present to allow interested parties to formally approach the authorities for seeking modifications/relaxations vis-à-vis existing building codes and land use regulations, from time to time on justifiable grounds [Ministry of Urban Development 2006:33].

This is factually incorrect as far as modifications are concerned. For example, Delhi Development Act, 1957 may not explicitly say so that people could apply for land use changes, and the DDA may not have advertising for such changes, but the act certainly has mechanisms in place to grant permission for change of land use. Major and minor changes to the master plan are allowed through the approval of the lieutenant governor of Delhi and the ministry of urban development, government of India respectively after following a duly approved planning process (see the figure). However, it is difficult to understand the committee’s contention as to why there should be provision for additional “relaxations” after law, rules and regulations have been framed.

Before concluding that the planning process is flawed, these processes must first be identified; analysed and only then should the desired changes be recommended. In a hurry to make recommendations, the Khanna Committee has not bothered to examine the planning processes being followed by the DDA. A set of questions must be answered before examining the planning processes followed by the DDA. The first set asks how the master plan and zonal development plans are prepared; that is, who sets the initial agenda, generally known as the draft master or zonal plan? Who gets involved and at what stages of the plans’ preparation? Who is responsible for modifying plan policies and ensuring implementation? Which sections of these plans do not get implemented and why? Second set of questions include the following: How are land use changes made? What is the average time taken to process such land use changes?

What are the aggregate outcomes of these changes as assessed over a period of time? Do these outcomes conform to the overall objectives of these plans? The third set of questions are comparatively fewer in number. How are building permission decisions taken and by whom? Are these decisions time consuming and long drawn? What are the implications of such delays on the affected people and the plan implementation process? Are all the above mentioned planning processes democratic, decentralised and accountable or are they autocratic, highly bureaucratised and unaccountable?

My contention is that the Khanna Committee’s conclusion, which runs throughout the report, that the planning process is flawed, is itself is based on faulty inferences or indirect associations and is therefore flawed.

Condoning Violations

Most of the Khanna Committee recommendations are based on the explicit objective of providing some succour to violators of the rule of law. The committee provides two main excuses to condone violators, as follows:

If any set of regulations result in a majority of people being categorised as violators/ offenders, the regulations themselves need to be carefully reviewed, rather than being regarded as inviolable and cast in stone [Ministry of Urban Development 2006:5].

The committee continues to insist that

If planning exercises leave large gaps

relative to the actual needs of the people

by way of residential, commercial and

institutional areas, etc, and then no effec

tive institutional mechanisms are provided

to bridge such gaps, the people cannot be

held entirely responsible for adopting rough

and ready solutions [Ministry of Urban

Development 2006: 6].

The rule of law exists to govern civil society and is based on certain shared values including those of probity, accountability, liberty, transparency, equity, etc. It is not exactly lawful, as this article argues, to establish committees and pass laws in order to protect violators of another law, be it urban and regional planning or any other aspect of civil society. As far as inviolability of the law is concerned, John Rawls (1972) in his A Theory of Justice carefully establishes that laws and institutions can be changed only if these changes benefit the poor. How these proposed changes in urban laws actually benefit the poor of Delhi

Figure: Process for Change of Land Use

in Delhi, 2006
Land Use Change Process in Delhi
(1) (2) (3) Application in Planning Wing (Particular Department) Technical Committee Authority S T A G E (I)
(4) Central Government (Ministry of Urban Development)
(5) Inviting Suggestions/Objections (Public Notice under Section 44)
Public Participation Process
(6) (7) (8) Technical Committee Authority Central Government (TCPO Scrutiny: No Objection) S T A G E (II)
(9) Gazetted

Source: Abhinav (2006: 20).

remains to be seen. People who own shops, plots and flats in Delhi, or in other words landlords and “flat” lords, builders, municipal officials, and politicians cannot possibly be regarded as constituting the “poor”. However, the committee thinks it is being pragmatic and equitable.

The committee is unanimous in its view that while, violations which have already taken place, ought to be dealt with in a pragmatic and equitable manner, going forward, enforcement measures should be both stern and effective [Ministry of Urban Development 2006: 57].

The committee may be pragmatic but it certainly is not being equitable because there is no redistribution of resources in favour of the poor. On the contrary, the poor are still being marginalised. This is no way suggesting that the poor have a right to violate the law as has also been clearly shown by the removal of squatters along the Yamuna on the orders of the Supreme Court in 2006 itself.

Economic and Political Weekly September 30, 2006

The Khanna Committee’s arguments of condoning the violators of rule of law are based on three insufficient and illegal conditions. First, that there has been an implementation backlog in respect of low income housing, commercial development and development of institutional areas. As noted in chapter seven (7.11, p 32) and chapter eight (8.14) that the DDA has only developed 0.98 per cent of the total urban area as commercial area against the required 3 to 4 per cent. Second, on the same page the committee also points out that over the years, personal disposable incomes have risen. Third, over 50 per cent of Delhi’s population is now living in unauthorised colonies or slum clusters [Ministry of Urban Development 2006: 32] because the DDA could not construct enough flats in time. Do all these and other reasons put together make it lawful to condone the violators when the highest court in the country has held otherwise? By saying that a large number of people will be affected if legal action is taken against violators of the planning law, the master plan and other rules and regulations, we are making no distinction between violators of the rule of law and those who sincerely follow it. This is harmful for democratic governance in the long run.

Ethical Position of the Experts

The five-member Tejendra Khanna Committee of Experts set up on February 14, 2006 to examine the issue of unauthorised constructions and misuse of premises in Delhi. It is significant that of these five members only two are planning experts.

Both the experts in the committee have headed the Town and Country Planning Organisation, New Delhi at different times. One expert was also commissioner (planning) of the DDA. Apparently both were not only involved in the preparation and implementation of the master plan for Delhi, 1962 but may have significantly influenced its policy framework. The Khanna Committee seems to take note of this fact even in its report on page 8 (3.3, chapter 3). Both experts are thus distinguished town planners and were also general consultants on the draft Master Plan for Delhi, 2021. This raises ethical questions regarding the two diametrically different positions that the experts appear to have taken: a stance they took while making contributions to the draft of the master plan and the other as members on the Khanna Committee. And both views seem to be irreconcilable.

The Khanna Committee report, of which they were members, appears to have condoned all forms of violations of the planning law and master plan for Delhi. The Khanna Committee report does not in any way promise to secure the “planned development of Delhi”? Neither does it appear to contribute in any manner to advancing the study of town planning.

Multiple Authorities

The Khanna Committee has made scathing comments on the existing institutional arrangements for the preparation, implementation and enforcement of planning

Table: New Organisations for Delhi

policies and laws, and “it is evident to the committee that the present institutional arrangements are inadequate” [Ministry of Urban Development 2006: 61]. For its part, the committee proposes to correct existing institutional inadequacies by introducing new organisations. Some of these have been listed along with their implications (see the table).

– Apart from the existing organisational “maze”, the DDA will still have a role and according to the committee, the DDA will duly play its role of a planning agency. Take a look at its new proposed functions:

(i) prepare and update the master plan for Delhi; (ii) complete preparation of the remaining zonal development plans; (iii) plan for land vacated after relocation of polluting industries; (iv) plan for the metro corridors; (v) free land from encroachers for low income high rise housing; (vi) prepare regularisation plans for over 2,000 unauthorised colonies and unauthorised regularised colonies; (vii) prepare village level plans for Delhi’s urbanised villages;

(viii) provide professional guidance and inputs for the preparation of local area plans fitting into municipal ward plans;

(ix) five-yearly evaluation of the master plan for Delhi; (x) provide inputs to the NCRPB for achieving dispersal of population into the NCR; (xi) continue to manage sports and recreational complexes; and (xii) institute effective mechanisms to oversee implementation of plan implementation. But the DDA will no longer be able to exercise its powers under the Delhi Development Act, 1957 section 11A that are proposed to be transferred to the Delhi Urban Regulatory Authority. This means that the DDA will prepare the master plan but will not be evaluating proposals for change of land use. It will also have no role in framing development control rules, which could become the responsibility of the Delhi Urban Regulatory Authority. Confusion also arises from the fact that on one hand the enforcement agency with the chief enforcement officer at the helm has been entrusted with the responsibility to enforce a zero-tolerance regime for unauthorised constructions and land use changes even as the DDA has been asked to monitor implementation of plans. Why not keep all monitoring and enforcement functions with one authority to reduce confusion?

Proposed Organisation Delhi Vision Group Delhi Urban Regulatory Authority Delhi Real Estate Commission High Power Enforcement Agency Special Empowered Task Forces Housing Corporation or Board Proposed Functions To reflect on the future evolution of the city and ways by which it can be achieved To deal with changes in land use and development control norms; Regularisation of unauthorised constructions; Laying down norms and standards To prescribe regulations and code of conduct for property dealers; Issue licences to them; entertain complaints against property dealers; Maintain complete digital database of all urban properties in Delhi To enforce zero tolerance regime for unauthorised constructions and land use changes Efficient planning and execution of special projects having city-wide implications To focus on low cost housing Possible Implications on Planning Unaccountable and centralised; Against the spirit of 74th constitutional amendment DDA becomes powerless; Intrusion into local government functions; Procedure for carrying out changes however is acceptable Good information base for conducting research on urban planning and real estate issues Enhances compliance to the planning law, norms and standards as also to the master plan for Delhi More of the master plan for Delhi and Zonal Development Plans’ proposals could be implemented in time Some reduction in slums and squatting Possible Implications for the NCT Delhi Pay more taxes to foot the bill in terms of annual honorarium and associated paraphernalia Confusion due to organisational maze for the citizens of Delhi Good for the property buyers and sellers of Delhi; More property tax collections; But the issue of artificial scarcity being created by property dealers remains unaddressed Hopeful of seeing more planned NCT of Delhi Strong and modern city infrastructure; but who will benefit remains to be seen Good for slum dwellers and squatters depending on the speed and number of units constructed
Economic and Political Weekly September 30, 2006 4107
Multiplicity of Awards

Violators have been graded and awarded as per their grades. To mark up the violators, some help has been taken from the earlier work done by the Dharamarajan Committee which classified 2,025 colonies of the MCD by adopting the criteria of social infrastructure, physical infrastructure, size of plots, general socioeconomic condition of the area, etc.

In the name of flexibility, partial nonresidential activity has been permitted in Tier-III colonies. These could be viewed as “third class colonies” because anything is permitted without consideration of minimum plot size and road width. To stop commercial activity spreading from one part to the other parts of such colonies, the committee has more faith in a customer led market rather than planning regulations. It argues that “market forces and consumer choice will, in general, not favour commercial activity being taken up on smaller streets …” [Ministry of Urban Development 2006: 44].

Tier-I colonies are presumed to be the “first class residential areas” where the principles of segregation of land use is acceptable to the committee. But here also professionals such as doctors, architects, chartered accountants, lawyers, computer specialists, etc, are allowed to work using half of the covered area. For other changes, individuals must apply to the Delhi Urban Regulatory Authority for permission.

Limited flexibility has been permitted in Tier-II colonies. However, whatever nonconforming use has been in existence before January 1, 2000 has been allowed to continue except when it is found by the Delhi Urban Regulatory Authority “to be significantly detrimental to public convenience and welfare” [Ministry of Urban Development 2006: 45].

This classification is discriminatory as it is detached from the principles of planning. Each and every one of us has a right to healthy living, which could be attained by various ways but a habitable house is an important part of such a strategy. This report thus appears to violate the principle of equity or fairness of public policy. It is as though people living in Tier-III are beings somewhat “lesser” than those people in Tier-I colonies.

This report openly intends to benefit the rich and influential, as evident from the following examples. First, “the committee is of the view that commercial and institutional utilisation of buildings abutting on national highways, arterial and sub-arterial roads and along metro corridors may be considered in suitable stretches, keeping in view their relative unsuitability for residential use, in the light of heavy traffic flows and resultant air and noise pollution” [Ministry of Urban Development 2006: 47]. Second, “certain stretches which have been practically fully commercialised along the inner Ring Road such as South Extension-I and II, where no-residential use has been in existence for many years, may be formally designated as a commercial stretch/strip” [Ministry of Urban Development 2006: 48]. Third, the committee proposes that areas built pre-Master Plan of Delhi, 1962 should be allowed to exist as these are except where “serious public inconvenience” has been noticed by the Delhi Urban Regulatory Authority.

Conclusions

The Khanna Committee report has faltered on all principles of planning and good governance. It proposes to regularise all violations with or without penalties. If implemented, it will spell disaster in the form of more unplanned development for the citizens of Delhi in the years to come. Expect another regularisation committee being set up by the government of India in 2020 if not earlier. Good societies cannot be built on the basis of violations of the rule of law and by condoning past mistakes, it can only be built on the basis of probity, accountability, liberty, transparency, equity, and the like.

EPW

Email: dak_13april1962@yahoo.co.uk

References

Abhinav (2006): ‘Delivery of Planning Function in Delhi: A Case of Land Use Change’, unpublished undergraduate thesis, department of physical planning, School of Planning and Architecture, New Delhi.

Government of India (2006): ‘The Delhi Laws (Special Provisions) Act, 2006’, Ministry of Law and Justice, Government of India, New Delhi.

Ministry of Urban Development (2006): ‘Report of the Tejendra Khanna Committee of Experts’, Ministry of Urban Development, Government of India, New Delhi.

Rawls, J (1972): A Theory of Justice, Clarendon Press, Oxford, UK.

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Economic and Political Weekly September 30, 2006

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