Author : Ramanath Jha

Expert Speak India Matters
Published on May 20, 2022
What are the consequences of illegal construction in urban India?
Illegal construction in India’s cities: Can we effectively deal with them? In the middle of April 2022, the demolition of structures in Jahangirpuri, Delhi, the subsequent ‘status quo’ granted by the Supreme Court to halt further demolition, and the ensuing political furore raised the debate of illegal construction to the top of the national agenda. Unprecedented attention was provided to the matter by the electronic and written media, arguing for or against the municipal action. This article has no intention of discussing the incident that has already been analysed threadbare. Since the matter is sub judice, it will undergo intense scrutiny in the Supreme Court and an order of the apex court will finally judicially settle the issue. The objective here is to put urban illegal construction into perspective. Municipal statutes all over the country mandate more or less a similar course of action regarding illegal constructions. Several high courts and the Supreme Court have also passed a fairly large number of judgments on the matter. Of recent, India’s judiciary has shown rising concern about illegal constructions in cities and has ordered the demolition of a whole variety of structures in a very large number of cases across the states. Unfortunately, one would have to honestly admit that the proliferation of illegal constructions in cities has not been halted. There are a large number of reasons for their continued rise. Coming to grips with them is not easy and the problem has all the complexities that cities bring with them as they grow and gather girth.

Unprecedented attention was provided to the matter by the electronic and written media, arguing for or against the municipal action.

The range of illegal constructions in cities is huge. As cities expand, they get hungry for more construction and a considerable part of them are illegal. They could attract illegality on different counts. They may violate municipal laws by building on public spaces or urban planning laws by building more than what plans allow. They could be illegal on account of violating environmental laws – coastal zone regulations in cities by the sea and river lands, nullah lands, and water bodies elsewhere. There could be violations of health stipulations, fire regulations, parking regulations, height restrictions, staircase rules, and many more. However, despite the large variety of violations, they can broadly be categorised into two simple kinds—illegal constructions on public lands and illegal constructions on private lands. Regarding public lands, especially constructions on roads and footpaths (that are defined in municipal laws as part of roads), the municipal commissioner has summary powers to evict the transgressor and demolish his structure without notice. However, regarding illegal construction on private properties, a notice must be served and due process must be followed. In effect, what the municipal laws state is that if anyone encroaches on public property or extends his private structure onto public space, the person will be treated to be an outright encroacher deserving summary eviction without notice. However, if the person owns land or property and has built on it without permission or more than what was permitted, the person deserves a hearing and action would be warranted only after due process is followed. Here there is scope of some amount of regularisation within the discretion that building laws permit. However, the scenario gets complicated by the economic profile of the encroacher and the muscle, clout, and support that he enjoys that enables the violator to get away with his violation. Let us begin by looking at the poor. A large number of them are migrants who have left their original homes in search of livelihood and survival. These men and women cannot afford to buy land and build a home or purchase an authorised built flat because both options are beyond their means. They cannot rent a home, since urban rent laws disallow all encouragement for affordable rental housing. Although the migrants cannot legally get home, the city’s economy is hugely dependent on them. Cities cannot survive without their labour.

The migrants get readily accepted by citizens on account of the cheap labour that they provide and by the political class for the votes that they offer.

In all such situations, some people smell opportunities. Whilst the laws block the poor out of the city, local councillors are most willing to find space for them and settle them on any available land that over time grows into slums. These illegal settlements may not have civic services, to begin with; but over time infrastructures such as water, electricity, street lights, and others get extended to them. Such illegal constructions have the cover of poverty and high humanitarian content. The migrants get readily accepted by citizens on account of the cheap labour that they provide and by the political class for the votes that they offer. However, the illegal construction scenario gets complicated. They create a class of constructions that is illegal, but a whole process of regularisation begins to take shape with active political support that complicates the definition of illegal constructions. Many of these migrants, looking for a livelihood, join jobs in the informal sector or start their own little businesses. The most visible of them are the street vendors. In 2014, Parliament passed ‘The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act’ under which the local administration must define vending zones and issue vending licenses. Since cities have not planned for this activity in their land use plans, the vending activity spills over onto streets, outside railway stations, bus stands, and such land pockets where they would find ready buyers. They cause huge inconvenience to pedestrians and the city’s mobility. However, it is the same city dwellers who like to buy their daily needs from them on account of the convenience shopping that they provide. These are encroachers under urban planning laws but temporarily regularised under the Street Vendors Act. A surplus of vendors and a shortage of space engenders a cat and mouse game. Municipal administrations undertake periodical demolitions. That leads to protests, tension, political intervention, and after some time reappearance of vendors in places from where they had been evicted. Overall, vending is a thriving and growing activity in cities. The local politician is the shield that blunts the bureaucratic sword for the slum dwellers and the street vendors. They in turn pour votes into the local politician’s political jar and guarantee his electoral victory. This combination is too hot for a junior municipal officer to handle. He faces the wrath of the poor if he dares action against their homes and shops and the rage of the local politician if the officer plans to hurt his vote bank. The high density in Indian cities and the high costs of land also lead to additional construction by the lower middle classes who have managed to have small homes for themselves. However, as families expand, the families build an extra room, an extension to the original building, or enclose a balcony. All such constructions fall foul of the planning laws. They receive notices from the local body, but local arrangements are generally reached for these to be overlooked. For many of the rich, the laws do not matter. Many of them indulge in brazen unauthorised construction and silence any opposition with the aid of political patronage or money. One can see that the subject of illegal construction is muddled. Does the municipal administration have the capacity to handle it? Theoretically yes; but as we have seen, the job is very large and very complicated. A whole host of local actors are arraigned against the law and most municipal administrations cannot always summon the courage to take them on. The results are for all of us to see.
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Ramanath Jha

Ramanath Jha

Dr. Ramanath Jha is Distinguished Fellow at Observer Research Foundation, Mumbai. He works on urbanisation — urban sustainability, urban governance and urban planning. Dr. Jha belongs ...

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