Power To Make Cities Clean

Encroachments, dengue and plague epidemics are civic problems which normally the municipal authorities should handle. But they wait for a disaster of Surat proportions to clean up the mess. Therefore, these socio-economic problems have also been swept to the doors of the judiciary. Despite criticism of hyperactivism, the courts are dealing with such issues.

While the Delhi high court is monitoring the anti-dengue operations in the capital, the Supreme Court has given more powers to the municipal authorities to remove the squatters from pavements and public places. By the judgment delivered last fortnight in Ahmedabad Municipal Corporation vs Nawab Khan,the apex court grants more leeway for the civic authorities to remove encroachments from pavements and footpaths, which obstruct the flow of traffic and pedestrians.

 

It would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and repassing by the pedestrians. No one has a right to make use of a public property for private purpose without the requisite authorisation from the competent authority, the judgment said.

But the court does not grant blanket powers to the civic authorities. Every citizen has a right to shelter and livelihood. But these fundamental rights can be curtailed by fair and just procedure. Therefore, the court lays down a via media in this sensitive issue.

Firstly, the encroachments must be removed as soon as possible. The longer the delay, the greater will be the danger of encroachers claiming rights. If the encroachment is of a recent origin, it can be removed without notice, according to the court.

But if the authorities allow unauthorised settlements for a long time, there should be a reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or service by fixing notice on the property is necessary.

If the encroachments are not removed within the specified time, the competent authority would be at liberty to have them removed. It would then be presumed that the procedure was fair and the encroachers were given proper notice. If there is resistance, necessarily appropriate and reasonable force can be used to have the encroachments removed, according to the judgment.

The court is aware of the problem of slum lords, who eject settlers from the existing sites and force them to occupy new public land, and political pressures. This should be solved by a proper economic policy by stopping the rural migration and adequate housing of the poor in surplus land declared under the Urban Ceiling Act.

It is notable that the court claims a role in the enforcement of the citizens right to shelter and allows them to approach it for legal remedy. Earlier, the court has done so in the Olga Tellis case (1985) involving Mumbai pavement dwellers and in the Chandru case from Chennai.

However, what is significant in the present judgment is that the court now grants more freedom to the civic authorities to remove the encroachers with a short notice. Whether the local authorities will have the political will and courage to clean up our dying cities is another matter. The Surat commissioner has shown that it could be done in a city which was hit by the plague only two years ago.

Tax avoidance

Donations to welfare funds are looked at with suspicion by taxmen. Therefore, when several companies sought deduction for the amounts paid by them to the Andhra Pradesh Welfare Fund as business expenditure under Section 37(1) of the Income Tax Act, the claim was rejected.

In Sri Venkata Rice Mill vs CIT,decided by the Supreme Court last week, the petitioners were exporting rice from Andhra Pradesh. Rice could be exported only with a permit from the district collector and it could be obtained only if payment was made to a welfare fund. The IT authorities maintained that the payment was not mandatory or statutory but only discretionary.

The IT tribunal held that though there was no compulsion, the mere fact that an advantage would ensue if the contribution was made would not bar the deduction. On appeal, the high court upheld the IT contention, ruling that the payment was opposed to public policy.

The Supreme Court overruled the high court holding that the payment was not opposed to public policy. Any contribution made by an assessee to a public welfare fund, which is directly connected or related with the carrying on of the assessees business or which results in the benefit to the business has to be regarded as an allowable deduction under Section 37(1) of the Act, the court said.

Such a donation, whether voluntary or at the instance of the authorities concerned, cannot be regarded as payment opposed to public policy. It is not in the nature of illegal gratification. There is no law which prohibits the making of such a donation, the court clarified.

Tailpiece

Inaugurating the National Astrological Conference in Bangalore last week, finance minister P Chidambaram asked its practitioners to prove their critics and sceptics wrong. Among the ministers and high court judges present was the guru of the art, B V Raman, whose magazine has predicted that in November, the judiciary may come under restraint. Let us hold our breath, waiting to see what this Delphic prophecy means.

If the squatters do not vacate public places, a little force can be used after following fair procedures