Maharashtra Slum Areas Act| Writ Of Mandamus Lies Against Authorities If They Don’t Perform Statutory Duty Of Ensuring That Project Is Completed Within Prescribed Time: SC
|The Supreme Court held that a writ of mandamus lies against the concerned authorities under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, if they do not perform the statutory duty of ensuring that the project is completed within the prescribed time.
The Court held thus in a civil appeal relating to the common battles between competing real estate developers under the pretext of rehabilitating slum dwellers under the aforesaid 1971 Act.
The two-Judge Bench comprising Justice P.S. Narasimha and Justice Aravind Kumar observed, “Section 13(2) of the Act specifically empowers the competent authority to re-determine the agreement if it is satisfied that the re-development has not been done within the time specified. The provision is certainly a statutory incorporation of time integrity in the performance of the duty. We recognise this as a statutory duty of the competent authority to ensure that the project is completed within the prescribed time. We have no hesitation even in holding that a writ of mandamus would lie against the concerned authorities if they do not perform the statutory duty of ensuring that the project is completed within the time prescribed.”
The Bench discussed the scope of judicial review against an order under Section 13 of the 1971 Act, which provides the power to the competent authority to redevelop clearance area.
Senior Advocate Kapil Sibal appeared on behalf of the appellant while Senior Advocates C.A. Sundaram, Huzefa Ahmadi, Vinay Navare, Dhruv Mehta, and Sanjay Kharde appeared on behalf of the respondents.
Brief Facts -
In 2003, the appellant was appointed as a developer by the respondent/Co-operative Housing Society of slum dwellers having their hutments on the subject land in Borivali, Mumbai which was declared as a ‘slum area’ under the 1971 Act. As the development was unduly prolonged for over two decades, the development agreement in favour of the appellant was terminated by the Apex Grievance Redressal Committee (AGRC). The order of termination was challenged by the appellant before the Bombay High Court. The High Court highlighted the limited scope of judicial review under Article 226 of the Constitution against the decision of the statutory authority-AGRC. It, however, proceeded to examine the facts in full detail and dismissed the writ petition on facts, as well as on law. Hence, the appellant approached the Supreme Court.
As the Municipal Corporation assigned the project to a rival society and developer in 2004, the appellant disputed this, leading to a long litigation process. In 2011, the CEO of the Slum Rehabilitation Authority (SRA) ruled in favour of the appellant, stating that it had the required 70% consent from slum dwellers to develop the project. Due to the prolonged litigation, the Letter of Intent (LOI) was only issued to the appellant on June 29, 2011, eight years after the initial appointment. The senior counsel for the appellant in this regard submitted that such delay in obtaining the LOI was inevitable and was not due to any fault of the appellant. Whereas, the senior counsel for the respondents submitted that the appellant did not have the financial capacity or the technical expertise to complete the project within the prescribed time of 3 years.
The Apex Court in view of the facts and circumstances of the case held, “Two facets of Section 13 (2) of the Act are that; a) the SRA has the power to redevelop the project if it is satisfied that the development is not proceeding within the time specified, and b) that power of SRA is coupled with a duty to ensure that the project is completed within time. We hold that the SRA is accountable for the performance of this duty. Accountability need not be superimposed by the text of a statute, it exists wherever power is granted to accomplish statutory purpose.”
The Court noted that the delay of 8 years in resolving disputes with a competing builder cannot be a justification under any circumstance and that the appellant is a developer and fully understands the process of obtaining environmental clearances while other sanctions and permissions are pending, and it is for him to make all the necessary arrangements.
“To say the least, the non-cooperation of some of the members cannot be a ground for delaying the project from 2014 to 2019. … In any event, execution of the project under the Slum Rehabilitation Scheme cannot be viewed as a real estate development project. There is a public purpose involved, and that is inextricably connected to the right to life of some of our brother and sister citizens who are living in pathetic conditions”, it further emphasised.
The Court remarked that this case has provoked it to reflect on the working of the 1971 Act. In view of this, the Court enunciated that the said 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”, it added.
The Court also elucidated that the Executive branch has a constitutional duty to ensure that the purpose and object of a statute is accomplished while implementing it and 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. The purpose of such review is to ensure that a law is working out in practice as it was intended. If not, to understand the reason and address it quickly. It is in this perspective that this court has, in a number of cases, directed the Executive to carry a performance/assessment audit of a statute or has suggested amendments to the provisions of a particular enactment so as to remove perceived infirmities in its working”, it enunciated.
Moreover, the Court observed that the extraordinary capacity to assess the working of a statute is available to the judicial institution because of its unique position where –
i) disputes, based on the statutory provisions unfold before it;
ii) claims of rights or allegations of dereliction of duties are raised with varied, and sometimes, contradictory interpretations of the same text of the statute;
iii) submissions of lawyers opens up a debate and as officers of the Court experienced lawyers would lay bare the fault-lines in the statutory scheme;
iv) many a times court silently witnesses the play of statutory power relegating the deserving to the backseat, and the undeserving taking away all the benefits.
“Though cases are decided on their own merit and the lis disposed of, what is left behind is the institutional memory of the Court about the working of the statute and its interpretation preserved as precedents. Over a period of time, a critical mass of adjudicatory determinations on the working of the statute is built. This critical mass, coupled with the experiences gained by the Judges and the Court on the working of the statute, is of immense value for auditing the working of the legislation. It enables the court to assess whether the purpose and object of the Act is being achieved or not”, it also noted.
The Court, therefore, requested the Chief Justice of the Bombay High Court to constitute a bench to initiate suo motu proceedings for reviewing the working of the statute to identify the cause of the problems.
“We leave it to the High Court to devise such methods as it deems fit and appropriate. Having examined the matter, the bench may consider directing the government to constitute a committee for performance audit of the Act. The court’s jurisdiction extends only to that extent, and no further. The law-making, including amendments, is the exclusive domain of the legislature”, it concluded.
Accordingly, the Supreme Court dismissed the appeal and imposed a cost of Rs. 1 lakh, payable to the Supreme Court Mediation and Conciliation Project Committee.
Cause Title- Yash Developers v. Harihar Krupa Co-operative Housing Society Limited & Ors. (Neutral Citation: 2024 INSC 559)
Appearance:
Appellant: Senior Advocate Kapil Sibal and AOR Vikas Mehta.
Respondents: Senior Advocates C.A. Sundaram, Huzefa Ahmadi, Vinay Navare, Dhruv Mehta, Sanjay Kharde, AORs Rajeev Maheshwaranand Roy, Sunil Kumar Verma, Shashibhushan P. Adgaonkar, Aaditya Aniruddha Pande, P. N. Puri, Anil Nag, M. Yogesh Kanna, Anshula Vijay Kumar Grover, Advocates Satyajeet Kharde, Sunny Jadhav, Aniruddha Joshi, Pradnya S. Adgaonkar, Rukmini Bobde, Siddharth Dharmadhikari, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S. Phanse, Adarsh Dubey, Soumya Priyadarshinee, Amit Srivastava, Amlaan Kumar, Aman Vachher, Yadunath Chaudhary, Dhiraj, Ashutosh Dubey, Anshu Vachher, Abhiti Vachher, Akshat Vachher, Nandni Sharma, Amit Kumar, Jasvinder Chaudhary, and Ashwin Sawlani.