Gentrification causes homelessness? Simplistically linking problems does not translate to good housing policy

by Mukta Naik

Scholars, bloggers and journalists in the Global North, especially in the UK and the US, have drawn clear links between the process of gentrification and the increase in homelessness since the early 2000s. With the problem of homelessness growing steadily—some 60,000 people in New York sleep in shelters each night as per the Coalition for the Homeless, about 6,500 slept on London’s streets in 2013-24, 70% more than the number in 2010 as per local agencies—quite a bit of passionate soul searching has taken place over its causes. It has seemed logical to pin the blame on the gentrification of erstwhile poor, debilitated areas of the city. Global capital and the greed of investors, sometimes from far overseas, and even the idea of the global city have been named the villains. In short, global capital (the rich) has pushed out local capital (the middle class and the poor) and those at the lowest end of the ‘pushed out’ bunch are now on the streets.

Homeless_in_Sugamo_2

This might well be true, but as this blog on Brooklyn’s homeless problem points out, the real failure lies in the inability of the city’s visionaries to understand that there are new and more complex problems at hand. Plugging the demand-supply gap is no magic solution and housing is far more complex than the solutions that emerge from the government’s simplistic slotting of households into broad income slabs.

Poor targeting in government schemes

New York Mayor Bill de Blasio’s affordable housing plan, which does an impressive dissection of incomes and housing rentals in the city is planning to “create and preserve 200,000 units of affordable housing for approximately 500,000 New Yorkers over the next ten years” along with soft support to the homeless in the form of eviction protection services, increased investments in shelters and a program to remove bottlenecks in allocating affordable units to those living in the shelters. What is not explicit in the plan, though, is the recognition that new “affordable housing” units will not be affordable to the majority of the homeless. New York is an example. This sort of poor targeting is a common ailment in policy and in housing policy particularly, where supply side thinking usually dominates.

What then is a possible inclusive housing strategy for this growing group of homeless (or other excluded groups) in the city? What is the role of housing in fostering better incomes and upward mobility among the working homeless? How can government look at housing provision creatively to address different types of poverty, different types of family units, different types of housing problems?

Ostrich syndrome: Won’t see the complexities, will stick to simplistic and seductive solutions

The point about the need to understand the real housing issues within the city, find the inter-connections and then target solutions has been made several times to the government in India as well. In the past five years of working with housing and urban development issues at micro Home Solutions and now at Centre for Policy Research, I have been involved in several consultations and meetings between experts and the government, with Union ministries like HUPA, the Government of Delhi as well as government institutions like DUSIB and DDA (Do read CPR project Cities of Delhi reports on these). At these meetings and workshops, evidence from research projects and pilot interventions have been presented to back demands for a more contextual approach to housing policy. Some of the suggestions have included government investigation into the need for rental housing for the working poor (and middle class), the support of incremental housing rather than its demolition, improved shelters for the homeless, more rational norms for measuring housing affordability and innovative mechanisms for the poor to transition from one type of housing to another, among others. While these suggestions are heard, they are rarely understood. Moreover, they pale in comparison to seductive solutions that propose to remove the jhuggis (slums), clean the city and rehabilitate slumdwellers in flats built in high-rise towers (read Cities of Delhi op-ed on rehabilitation/resettlement of slumdwellers and author’s critique of rehabilitation into high-rises) .

Pune, Slums and the city: A complex reality Photo credit: Mukta Naik
View from a Slum Rehabilitation project in Hadapsar, Pune: A complex reality
Photo credit: Mukta Naik

At these meetings, the link between gentrification and lack of adequate housing is often discussed. Politicians understand about market dynamics, they’ve seen enough of elite capture. Any subsidised housing the government offers, they know, will change hands and be appropriated by investors and middle- and high-income people; while the poor will build back the slum! At the same time, the Delhi government, for instance, is struggling to find solutions to fill thousands of empty affordable units located in inconvenient (read poorly connected) parts of the city.

Once again, the issue of correct targeting comes to the fore. Communities like the homeless or even renters remain excluded from policy conversations about government-provided housing, while those that are targeted by government housing schemes are unable to benefit from them for reasons of insensitive design and poor location/connectivity .

A new imagination for housing policy

In Delhi at least, there is no pretence that a larger supply of affordable homes will help the homeless. However, it is precisely in cities like Delhi, where the diversity in housing supply is considerable (much of it located in incrementally built quasi-legal areas of the city) and where mobility between housing types is commonly seen, that we have a chance to envision housing differently. In a bustling resettlement colony in northwest Delhi, we approach a rickshaw puller outside a community toilet complex to investigate the functionality of public toilet. He screws up his nose at us in disdain. “I don’t use that filthy toilet,” he says. “I live in a rental home and we have private toilet facilities.” He pays Rs 2500 a month to rent a room and live in dignity, he says, even if it means there is less liquidity for household expenditure and no remittances go home to the village.

Repeatedly, we observe housing aspirations that revolve around dignity and decent amenities on one hand, and those that obsess about property values and status on the other. Somewhere between these extremes lies the opportunity of a re-imagined housing strategy. One that can provide a life of dignity and a lever for upward mobility, but also create diverse forms of supply that answer to the peculiar complexities of poverty and housing need in our cities. But to realise this, the government needs to think out of the many straight jackets it has created for itself: the income classifications of EWS, LIG, MIG and HIG, the rigid space allocations for subsidised housing (we are ridiculously stuck at 25 sq.m. per household), of rental versus ownership housing, of public housing and public-private partnerships (PPP, the magical phrase with a touch of dread). Is it possible to imagine housing policy without strait jackets?

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Lessons in urban development ignored

By Sama Khan

This op-ed appeared in The Pioneer on 5 May 2015 and can be accessed here

The Modi Government is repeating the mistakes of its predecessors by constructing new houses to meet its Housing for All goal. Past experience shows that the urban poor prefer the cheaper option of developing existing slums with basic amenities, writes SAMA KHAN

In order to pursue the goal of ‘Housing for All’ by 2022, Finance Minister Arun Jaitley had proposed to build more than two crore houses across the country. This would cover slum housing and affordable housing for the weaker sections.

In this context, it is worthwhile to take a look at how urban housing schemes have fared in the past. The Basic Services to the Urban Poor and the Integrated Housing and Slum Development programmes were launched in 2005 under the Jawaharlal Nehru National Urban Renewal Mission for integrated development of the slums.

Both the programmes were administered by the Ministry of Housing and Urban Poverty Alleviation. The objective of the BSUP was to provide housing either in-situ or in a new location with basic infrastructure amenities in a healthy environment. The BSUP and IHSDP involved construction of dwelling units, and only a few projects covered the upgradation of infrastructure amenities.

According to the Ministry’s database, a considerable number of houses have not been completed under the BSUP and IHSDP programme. Out of the total sanctioned houses under BSUP and IHSDP, 71 per cent have been completed and of these only 54 per cent of the total sanctioned units have been occupied whereas 29 per cent were under progress as on December 2014.

A report by the Comptroller and Auditor-General of India on JnNURM (2012) states that ineligible beneficiaries were able to gain benefits of the BSUP. There were shortfalls in the identification of beneficiaries, even though the guidelines proposed household survey of slums including livelihood and occupation profiles before the submission of the Detailed Project Report along with an understanding of the willingness of beneficiaries to relocate.

In many cases, the dwelling units constructed were of poor quality and hence some of the units remained unoccupied whereas others were occupied by ineligible beneficiaries. There were significant delays in the construction work due to the non-availability of land. In many cases, BSUP units were constructed on the peripheries of cities, without considering the willingness of the slum dwellers to relocate outside the city.

The Rajiv Awas Yojana, launched in June 2013, was yet another scheme launched by the MoHUPA to further accelerate the provision of housing for the urban poor. RAY was an improvement over the BSUP and it learnt from many shortfalls of the BSUP.

Unlike the BSUP, the RAY pronounced in-situ development as the preferred strategy for slum development suggesting either upgradation by filling gaps in housing and infrastructure or re-development, which is an overhaul of the entire slum.

However, according to the data on RAY, as on March only two per cent of the total sanctioned units have been completed and occupied. Thirteen per cent are under progress while construction is yet to start for the remaining 85 per cent. Within the sanctioned dwelling units, there has been a high preference for in-situ development/re-development projects under RAY.

The Ministry’s response to the Standing Committee on Urban Development on the slow pace of progress of the RAY was that while “in-situ redevelopment of slum is the preferred choice… it is a time consuming process as beneficiaries have to be relocated and places to be handed over to contractor for work. In many cases beneficiaries are reluctant to move and ULBs find it difficult to temporarily relocate slum dwellers.”

The Government now  plans on investing large amounts of money to build affordable housing. Thus, rather than improving the settlements, the Government aimed to create entirely new homes for the urban poor.

There seems to be an absence of any policy that targets the improvement of the living standards of slum dwellers. BSUP, IHSDP and RAY clearly point to a focus on construction of houses, with only a few projects covering the up-gradation of infrastructure amenities. Although the approach of construction of houses hasn’t yielded the desired results as a considerable number of these houses are incomplete, many of the completed houses are lying vacant and many others are occupied by ineligible beneficiaries. This approach fails to understand the unwillingness of the slum dwellers to relocate to a new location or to be temporarily relocated for in-situ redevelopment.

It also neglects the importance of providing citizenship rights to the urban poor and including them in the formal economy of the city. Up-gradation of slum settlements like provision of safe drinking water, sanitation and solid waste management is an important policy measure that should not be disregarded as it will allow the slum dwellers to improve their standard of living and will also provide them with land tenure security.

Case Note: A Challenge to regulations for the construction of affordable housing in Mumbai

In a recent case, the Bombay High Court heard, and rejected a challenge to the state’s policy on building inclusive housing. DB Realty and Others v State of Maharashtra and others (Writ Petition 366 of 2014) was heard by Chief Justice Mohit Shah and Justice MS Sanklecha of the Bombay High Court, and the judgment was delivered on 5th February 2015.

In Maharashtra, Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act”) regulates urban planning. Under this Act, the State through various authorities frames ‘Development Control Regulations’ from time to time: these regulations  (the “DCR”) contain detailed policies on housing, building and construction, fire safety norms and zoning.

The notification that was being challenged in DB Realty modified the DCRs for Mumbai city in 2001. The notification required the construction of housing for economically weaker sections of society (EWS Housing) on any residential land measuring 4000 square metres or more. 20% of the total area of the land was to be devoted to EWS housing, either in the form of developed plots for housing, or handed over undeveloped to the State, which would then have the same developed. In return for this, the developers would gain additional FSI (floor space index), i.e. the right to build taller buildings on the remaining land. If the plots were not bought by the state within 6 months of the offer, then the seller could sell these at commercial value. Landowners could also go ahead and build EWS housing to hand over to the State, provided it complied with certain requirements.

The Court in this case identified three questions for consideration.

  • Did the amendment to the DCRs effectively amount to land acquisition by the State?
  • Did the amendments violate the MRTP Act and constitutional provisions on local government?
  • Did the amendments violate the constitutional rights of the respondents; specifically the right to equality before the law (Article 14), the right to freedom of trade, occupation and business [Article 19(1)(g)] and the right against being deprived of property unless done by authority of law (Article 300A).

Land Acquisition: The claim of the petitioners was that the requirement for inclusive housing effectively amounted to land acquisition by the State. In that case, they argued, the State had to follow the process under the federal Land Acquisition Act 2013, which would override state laws on the same subject. The Court held that this was not a land acquisition law, and so would not be overridden by federal law. The purpose of the MRTP Act was urban planning, and this could be correlated to the state’s legislative powers regarding local government, and not the power to legislate on land acquisition. Since both laws were in different fields, there was no overlap.

Local Government, MRTP and the Constitution: The petitioners then claimed that the amendments to the DCRs violated Article 243ZE of the Constitution. Article 243ZE, introduced in 1993, requires each metropolitan area to have a Metropolitan Planning Committee, which prepared a draft development plan for the area. The MRTP Act, accordingly, was invalid and the State had no power to issue DCRs under it for metropolitan planning. The Court held, without elaborating, that there was no inconsistency between the MRTP Act and Article 243ZE. The MRTP Act and DCRs, in any case, pre-dated Article 243ZE. Since they were not inconsistent, they were saved and continue to operate.

The petitioners also argued that the notifications violated the MRTP Act itself. The act, they claimed, only allowed the State to reserve land for acquisition. Without following the procedure for acquisition, the State could not reserve any land for use, such as the EWS housing. The High Court held that this was not acquisition. Relying on an earlier judgment, they held that “..there is a distinction between property vesting in the planning authority and one which is only to enable re-allotment for the purpose of achieving the objectives of town planning.” This, the Court held, was not acquisition but regulation. Nor was this, the Court held, a modification to the DCRs sufficient to warrant a complete public re-hearing and plan revision.

Rights to equality, business and property: The Petitioners argued, finally, that they were being deprived of their property without the authority of law and this violated Article 300A of the Constitution. The Court held that there was no deprivation of property, and that the Petitioners were being compensated with additional FSI as well as being paid value for the land.  The Court noted that in any case, the law applicable was the MRTP Act and the DCRs, which were duly followed. The DCRs, although delegated legislation, were sufficiently authoritative to allow this reservation. This was also a reasonable restriction on the petitioner’s fundamental rights to trade and for equal treatment.

DB Realty is an important decision from the Bombay High Court, which raises questions about land reallocation, urban planning and property rights, and the power of the State to intervene in these issues.

[Case note] Poverty, wealth and a developer’s obligations in Maharashtra

The development of the Powai Area Development Scheme (“PADS”) in Mumbai, has been fraught with legal controversy for the last twenty-odd years. In 1986, the Mumbai Metropolitan Region Development Authority (the “MMRDA”) entered into a tripartite agreement with the original landowners to develop 93 hectares of land in Powai, Mumbai. The land was leased to the Hiranandani group for development at a nominal rate of Rs. 1 per hectare. In return, Hiranandani was to construct low cost housing of two types – one of 40 square meters, and the other of 80 sq.m. The original owners would get housing for themselves and an 80-year lease over developed property. Of the remaining housing, 15% would be sold back to the state at low rates for allocation to government employees. The rest would be sold for profit by Hiranandani.

The original agreements with Hiranandani also had requirements for the provision of open spaces, roads, amenities, and so on, for the purpose of developing the PADS township. In reality, today, Hiranandani complex is home to some of the most luxurious apartment blocks in Mumbai, resulting in the filing of a number of Public Interest Litigation cases and private suits against the developers and the MMRDA. The area is now the subject of an investigation by the Anti-Corruption Bureau, with regular judicial intervention.

In such cases, it is inevitable that the rights of the people who bought luxurious developed apartments eventually came into conflict with the rights of those for whom the PADS project was originally intended. The Bombay High Court recently heard, and is adjudicating, on one such dispute, in Eternia Housing Co-operative Society and Others v Lakeview Developers and Others (pdf, referred to as “Eternia”).

Facts:

Eternia Housing Co-operative Society is one of 8 societies, each occupying one building in Sector IV-A of PADS.The original layout plan for that area, approved by the Mumbai Municipal Corporation, earmarked parts of the Sector for open areas and common amenities such as club houses and parks. The eight buildings that were eventually built in this sector were constructed after several revisions of the layout plans. These were all profitable commercial constructions, and none of them complied with the contractual size requirements or were low cost housing.

Following an intervention by the Bombay High Court, the Hiranandani group (the respondents in this case) were compelled to construct the low-cost housing that they had originally contracted to undertake. The Hiranandani group decided to build some of these on the land originally designated for open space in Sector IVA. This open space, unfortunately, fell between our eight petitioners’ buildings and the Powai lake, despoiling their lovely view. The eight co-operative housing societies, therefore, filed a suit before the Bombay High Court, challenging this construction. The suit is still ongoing but in the interim they filed an application asking the Court to pass an injunction, requiring Hiranandani to cease all construction on the low-cost housing. It is this application that the Court considered, and allowed, in Eternia.

The housing societies, represented by Mr Rohit Kapadia, argued that Hiranandani could not construct anything that was not on the approved layout plan without first seeking their consent. They relied on Sections 7 and 7A of the Maharashtra Ownership of Flats Act, 1963 (“MOFA”). MOFA is an enactment that was created to protect buyers from builders and developers – it requires the builders to seek consent before changing layout plans and it mandates that the property should be conveyed legally to the housing society once construction is complete.

The Hiranandani group, represented by Mr A Chinoy, on the other hand, argued that construction was not yet complete. They argued that they could develop the property in phases, and that the low cost housing was the next phase. Conceding that this was not on the approved layout plan, they nonetheless argued that the layout plan had been revised multiple times before, without objections from the societies. They also relied on a blanket consent clause in the contract, saying that this authorised them to increase and load additional FSI (floor space index) on the property, and make new constructions without express consent each time. The conveyance of the land, they argued would happen when Hiranandani determined that development was complete. Moreover, they were now legally obliged to construct low-cost housing – a bar against this would prevent them from fulfilling this contractual and court-mandated requirement.

Holding:

Justice Gautam S Patel, for the Bombay High Court, held in favour of the housing societies. He noted the background to the development of PADS, but pointed out that at each stage, the MMRDA and local authorities had approved the many irregularities. It was not possible, he held, for them to penalise the co-operative housing societies when all legal authorisations had been given. Moving to the arguments on MOFA, he held that the blanket consent clause did not absolve Hiranandani of its obligation to obtain the consent of the societies before making any new constructions that were not on the layout plan. Consent, he held, meant informed consent; this was the true legislative intent of MOFA, and it implied that builders were required to disclose their entire plans to buyers, and to not make changes to these plans without their consent. He held, therefore that the injunction could be granted, and ordered Hiranandani to cease construction on the low cost housing for the next twelve weeks, while the case is being heard.

Comments:

While this is a notable judgment in favour of land owners, Justice Patel points out that he is merely following a long line of precedent interpreting Sections 7 and 7A of MOFA. Interestingly, however, the judgment discloses two key points that are of interest to urban studies scholars.

The B.A.N.A.N.A standpoint: In the course of arguments, Mr Chinoy for Hiranandani argued that the objection from the housing societies had its basis in elitism and class, and not in any legal rights: the desire not to have any low-income groups inconveniently block their view. As Justice Patel sums up the argument,

“This, Mr. Chinoy says, is the classic NIMBY syndrome: Not In My Back Yard. Carrying this further, Mr. Chinoy’s arguments suggest that Mr. Kapadia’s interpretation of the governing statute, MOFA, and in particular Sections 7 and 7A of it, would generate in a city like Mumbai yet another syndrome, and that is, though Mr. Chinoy does not use the word, the BANANA syndrome: Build Almost Nothing Anywhere Near Anyone.”

Justice Patel however, finds that it is in fact, the legal rights of the developers that have been violated. “It is, I think, the sheerest happenstance that the Societies’ members are evidently well-heeled,” he notes, continuing, “One cannot damn or deride them merely for that.” Poverty is not a consideration when determining whether the legal right to consent under MOFA has been met, he concludes, and nor, therefore, is wealth.

What happens to the low cost housing? The argument that Hiranandani supports is that there is a larger public objective at stake, and this ought to override concerns. The amenities, they argue, can be relocated within the Sector. If so, the societies respond, so can the low cost housing. Justice Patel agrees with this, holding, that “That MIG housing must undoubtedly be built. It just does not need to be built on Sector IV-A.”

The Implications for Mumbai and MMRDA: The other aspect that Justice Patel makes careful note of is the implications of holding this case in any other way, for Mumbai city. He holds,

“For a city like Mumbai, the consequences of the Hiranandanis’ stand are possiby catastrophic. Every single flat purchaser on any given large project in Mumbai, especially in its suburbs, is a potential victim. He or she will purchase a flat on an effulgent representation, a resplendent portrait with glossy images and ecstatic text. In a few short months, those dreams will turn to dust as the developer invokes these so-called ‘development rights’, nullifies all that went before and proceeds to construct new structures never before indicated, taking away in the bargain every promised benefit.”

Holding in favour of the Hiranandanis, he argues, will have its repercussions on all householders and not just the inhabitants of the “undoubtedly lavish” PADS. The responsibility for this situation, he goes, on, lies squarely with the development authority, the MMRDA. He holds, “It also lies at the door of the MMRDA, a public authority and about whose conduct throughout no condemnation is strong enough. It is one thing to have a statute that provides for the rights or the obligations of individuals. It is another to allow an authority to get away scot-free, absent any regulatory or statutory oversight, with what I can only describe as a complete abdication of its public and statutory function..”

This is only the beginning of the process to untangle the rights and obligations of Hiranandani and the group of societies, including Eternia. The injunction that Justice Patel has granted will last only 12 weeks, and the completion, or indeed, demolition of the low-cost housing will await the entire adjudication of the case. Nevertheless, Justice Patel’s judgment raises two valuable questions.

The first concerns the absence of state control over independent development authorities. The case of MMRDA here evidently disclose abuses (their own counsel conceded before the Supreme Court that “there has been rampant collusion between the officials of MMRDA and the developer in how the agreement was breached.”), and yet, as Justice Patel points out, there has been a puzzling absence of control and statutory oversight right from 1986 on.

The second, broader question, that this judgment raises is how we may balance the undoubted need to protect house owners from the abuses of developers, while simultaneously ensuring that developers do not avoid obligations to build low cost housing, whether under contract or the Development Control Regulations that govern Mumbai. Part of the answer may lie in rationalising the processes of building approvals with urban planning in general. This might make it possible to ensure that the diffusion of authority between development bodies like the MMRDA and local authorities like municipal corporations does not allow entities like Hiranandani to slip between and flout their legal obligations.

Eternia Co-operative Housing Society Ltd.and others v Lakeview Developers and Others, Notice of Motion no. 62 of 2014 in Suit No. 54 of 2014, Judgment dated 22 January 2015 (Justice Gautam S Patel)

The Case of Kathputli Colony: Mapping Delhi’s First In-situ Slum Rehabilitation Project

Subhadra Banda, Yashas Vaidya and David Adler

Delhi Master Plan 2021 introduced the “In-situ rehabilitation” approach to slum redevelopment, in which residents of Jhuggi Jhopdi Clusters transition to temporary housing while the Delhi Development Authority (DDA) reconstructs the settlment, and then shifts the slum-dwellers back onto the original plot and into improved housing.  Kathputli Colony, located in West Delhi’s Shadipur region, has been selected by the DDA as the site of Delhi’s first in-situ slum rehabilitation.  This paper lays out the trajectory of the Kathputli project thus far, examining the formal, legalistic framework and its relationship to the actual events documented in our research in the colony.

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mHS-BSFL, BASIX-Baliga Low Cost Housing Repair and Reconstruction Pilot Project in Delhi: a Case Study

Shahana Sheikh
Shahana Sheikh looks at the mHS-BSFL, BASIX-Baliga Low Cost Housing Repair and Reconstruction Pilot Project in Delhi to understand the house building practices, the target client, micro housing loan approval process and the financial terms. The author also interviewed various stakeholders in the project to understand their issues and perceptions on the above issues.