SC asks Bombay HC to conduct performance audit of 1971 Maharashtra law on slum development

Supreme Court. File Pic

In an unprecedented verdict, the Supreme Court has asked the Bombay High Court to conduct a performance audit of a 1971 Maharashtra law on slum redevelopment, saying over 1,600 cases are pending in the high court and the welfare legislation for poor is grid-locked.

The top court asked the chief justice of the high court to set up a bench to "initiate suo motu proceedings" to review the working of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to identify the problems faced in its implementation.

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"The Executive branch has a constitutional duty to ensure that the purpose and object of a statute is accomplished while implementing it. It has the additional duty to closely monitor the working of a statute and must have a continuous and a real time assessment of the impact that the statute is having...reviewing and assessing the implementation of a statute is an integral part of Rule of Law," a bench of justices PS Narasimha and Aravind Kumar said on Tuesday.

The bench said the judiciary has another role to perform and that is of a facilitator of access to justice and effective functioning of constitutional bodies.

"In this role, the judiciary does not review executive and legislative actions, but only nudges and provides impetus to systemic reforms," it said.

The directions were issued in a judgement dismissing an appeal of 'Yash Developers' against the high court verdict.

The high court had upheld cancellation of a slum-redevelopment project granted in favour of the real estate firm in 2003 for developing a slum in Borivali area of Mumbai.

However, the project was unduly prolonged for over two decades and the agreement was terminated by the Apex Grievance Redressal Committee on August 4, 2021.

The top court not only dismissed the plea of the firm but also imposed a cost of Rs one lakh payable to Supreme Court Mediation and Conciliation Project Committee.

Justice Narasimha, writing a 43-page judgement, red-flagged the working of the law and concurred with the "exasperation" expressed from by the high court.

Ordering review of the functioning of the law, the bench referred to the National Judicial Data Grid (NJDG) data and said they revealed that a total of 1612 cases, involving disputes arising under the Act, are pending before the high court.

"Of these, 135 cases are more than 10 years old. In the last 20 years, 4488 cases have been filed and disposed of under the said Act. Latest data from the Bombay

HC reveal that about 923 cases on the Appellate side and 738 on the Original Side are pending adjudication.

"The Act is a beneficial legislation, intended to materialize the constitutional assurance of dignity of the individual by providing basic housing, so integral to human life. However, the propensity and the proclivity of the statute to generate litigation are worrisome. There seems to be a problem with the statutory framework for realizing the purpose and object of the statute," the bench said.

It said the "exasperation" of the high court about working of the Act is "understandable".

"The present appeal is a classic example of why the high court's concern is genuine. It has been noticed that the statutory scheme is problematic with respect to: i) Identification and declaration of land as a slum. This problem involves an examination of the role of authorities in giving such recognition, insidious intervention of builders in the said process cast doubts on the independence and integrity in the decision-making process," it said.

It said the process of identification of slum dwellers involved a complicated process of proof of such a status.

The verdict said these problems, arising out of the statutory scheme and policy framework, should have come under review by the Maharashtra government.

"Assessment of the working of the statute to realise if its purpose and objective achieved or not is the implied duty of the executive government. Reviewing and assessing the implementation of a statute is an integral part of Rule of Law. It is in recognition of this obligation of the executive government that the constitutional courts have directed governments to carry performance audit of statutes," it said.

The executive has a constitutional duty to ensure that the purpose and object of a law is accomplished while implementing it.

It has additional duty to closely monitor the working of the law and must have a continuous and a real time assessment of the impact that the statute is having, it said.

The Maharashtra law is intended to benefit the marginalised and the impoverished and it is not easy for the intended beneficiaries to carry their voice to legislative branch for effective reform, it said.

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