Summary
The Supreme Court upheld the termination by the Apex Grievance Redressal Committee of a developer's agreement for a Mumbai slum rehabilitation project that had not begun construction for more than 16 years. It held that Section 13(2) of the Maharashtra Slum Areas Act gives the Slum Rehabilitation Authority a power coupled with a duty, for which its CEO and the Authority are accountable, to ensure time-bound completion, and that delay cannot be excused by splitting it into separate episodes. Costs were imposed, and the Bombay High Court was requested to begin suo motu proceedings for a performance audit of the Act.
Issues
- What is the scope of judicial review under Article 226 against an order under Section 13 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 terminating a developer's appointment?
- Whether Section 13(2) confers a power coupled with a duty on the Slum Rehabilitation Authority, and whether the CEO and the Authority are accountable for delay.
- Whether the developer's explanations for successive periods of delay, and its financial position, justified interference with the termination.
- Whether proceedings under Section 13(2) depend on a complaint, so that withdrawal of complaints made the appeal before the AGRC not maintainable.
- Whether constitutional courts may direct a performance audit of a statute.
Provisions considered
- Section 13(2), Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971Empowers the competent authority, after a show-cause opportunity, to redevelop land not redeveloped within the specified time. Read as a statutory incorporation of time-bound performance and a power coupled with a duty, enforceable by mandamus, which the Authority must exercise whether or not anyone applies. (¶¶ 6, 7, 8, 9, 13, 29)
- Sections 2(b+a), 3A(2) and 3B, Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971Identify the CEO and the Slum Rehabilitation Authority and its duty to ensure implementation of schemes; the primary responsibility to implement Section 13 and monitor compliance rests with the CEO, and with the Authority where the CEO acts on its directions. (¶¶ 14, 14.1)
- Sections 33 and 38, Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971The developer's pending eviction applications against non-cooperating slum dwellers did not justify inaction from 2014 to 2019. (¶¶ 18, 18.3, 26)
- Articles 21 and 226, Constitution of IndiaJudicial review under Article 226 examines the legality of the AGRC's exercise of power, not the facts as in a suit; slum rehabilitation is tied to the right to life and shelter of slum dwellers and is not a mere real estate venture. (¶¶ 3, 4, 5, 6, 27)
Held
- Section 13(2) builds time into the performance of the redevelopment duty. The competent authority must ensure that projects are completed within the prescribed time, and mandamus will lie if it fails to do so. (¶¶ 7, 8, 9)
- Recognising a power coupled with a duty is not enough unless it is tied to accountability. Accountability exists wherever power is granted for a statutory purpose. The CEO, and the SRA where the CEO acts on its directions, are accountable for delays and must explain them, failing which consequences determined by the court will follow. (¶¶ 9, 13, 14, 14.1)
- A delay of over 16 years cannot be justified by fragmenting it into independent episodes. Eight years of litigation with a rival developer, delay in environmental clearance (which a developer is expected to manage alongside other approvals), non-cooperation of some slum dwellers, and a draft development plan road did not justify failing to commence construction. (¶¶ 24, 25, 26)
- The concurrent findings that the developer lacked financial stability, shown by repeated resort to third-party financiers and joint developers, were thorough and needed no independent re-examination. (¶¶ 20.2, 28)
- Section 13(2) is not triggered only by an application: irrespective of whether anyone applies, the Authority is bound to ensure timely completion. Withdrawal of some complaints therefore did not make the proceedings or the appeal before the AGRC unmaintainable, and the developer's relationship with its joint developer was irrelevant to the legality of the termination. (¶¶ 21.2, 29)
- While rejecting the developer's justifications, the Court recorded its dissatisfaction with the indifference, amounting to negligence, of the CEO and the SRA in ensuring timely completion. (¶ 27)
- Reviewing the implementation of a statute is part of the rule of law and an implied duty of the executive. Constitutional courts, drawing on the institutional experience gathered through judicial review, may, on demonstrable data that a statute is failing its beneficiaries, direct the executive to audit its working, though they cannot compel legislative reform. Noting heavy pendency and recurring structural problems under the Act, the Court requested the Bombay High Court to take up its review suo motu. (¶¶ 33, 34, 35, 36, 37, 40, 41, 42)
Result
Appeal dismissed with costs of Rs. 1,00,000 payable to the Supreme Court Mediation and Conciliation Project Committee; no further orders in the connected contempt petition; the Chief Justice of the Bombay High Court requested to constitute a bench to start suo motu proceedings reviewing the working of the Act, which may consider directing the State to constitute a committee for a performance audit.