Executive has duty to monitor working of statutes: Supreme Court orders review of Maharashtra Slum Areas Act

The Supreme Court on Tuesday asked the Chief Justice of the Bombay High Court to constitute a bench to initiate suo motu proceedings to conduct an audit of the Maharashtra Slum Areas (Improvement, Clearance, and Redevelopment) Act, 1971. [Yash Developers v. Harihar Krupa Co-operative Housing Society Limited & Ors].A Bench of Justices PS Narasimha and Aravind Kumar said that constitutional courts are well empowered to order the same through judicial review."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."Failure to use power to adapt to change is a form of abuse of power, the Court said in the context of the executive's duty in this regard. "Legal reform through legislative correction improves the legal system and it would require assessment of the working of the law, its accessibility, utility and abuse as well. 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...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.".Such audits help expose faultlines and remove perceived infirmities in the working of statutes, the judgment underscored."There is yet another role which the judiciary can and ought to perform - that of 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."The same was all the more necessary in a system where most of the legislation is carried out by the government, with very few private members' bills being tabled or debated, it was pointed out. A direction for such an audit must come after examining demonstrable judicial data or other cogent material that gives a prima facie finding that the statutory schemes and procedures are 'gridlocked in bureaucratic or judicial quagmires' that impede or delay statutory objectives, it explained."This facilitative role the judiciary compels audit of the legislation, promote debate and discussion but does not and cannot compel legislative reforms.".The Bench made the observations while deciding a long-standing dispute involving Yash Developers and Harihar Krupa Co-operative Housing Society. The case, which has spanned over 20 years, concerns the redevelopment of a slum area in Borivali, Mumbai under the Maharashtra Slum Areas (Improvement, Clearance, and Redevelopment) Act, 1971.Yash Developers was appointed to rehabilitate slum dwellers, but the project saw several delays over litigation, environmental clearances and non-cooperation from certain slum dwellers. The development agreement was eventually terminated by the Apex Grievance Redressal Committee in 2021, a decision that was upheld by the Bombay High Court in 2022.This led to the instant appeal..The top court took exception to both the developer and the concerned authorities for their roles in the delays, and highlighted the need for accountability and efficient implementation of slum rehabilitation schemes.While upholding the High Court verdict, it called for a performance audit of the 1971 Act. To this end, it requested the Bombay High Court Chief Justice to constitute a Bench to initiate suo motu proceedings to review the working of the statute. This Bench will hear the government, the statutory authorities and other necessary stakeholders, as well as some senior members of the Bar, before deciding on the need for an audit of the statute..The Court said that the review was needed as even the High Court was genuinely 'exasperated' with the functioning of the Act due to the following reasons: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; ii) Identification of slum dwellers: This involves a complicated process of proof of such a status, the attendant problem of groupism, giving rise to competing claims inevitably leading to litigation; iii) Selection of a developer: The Act leaves this decision to the cooperative society of slum dwellers and the majority decision is manipulated by competing and rival developers; iv) Apportionment of the slum land between redevelopment area and sale area: This is yet another area where court has witnessed developers seeking to increase the proportion of the sale area, leading to contestation; v) Obligation to provide transit accommodation for the slum dwellers pending redevelopment: Invariably, we see instances where the developer does not provide transit accommodation within time or provides an inadequate alternative in the form of a quantified amount towards rent, On the other hand, there are instances where some slum dwellers refuse to vacate the premises on the ground that the transit accommodation is either inconvenient or the amount offered is insufficient; vi) There are also issues of lack of independence and objectivity in the functioning of statutory authorities: This is a matter of serious concern. Courts have witnesses that the authorities have no independence and, their tenure is also short. Additionally, the functioning of these statutory authorities gives an indication that there could be a regulatory capture; vii) Another concern which exists is about the effectiveness of statutory remedies: Statutory remedies are ineffective and at the same time, lacking in accountability and vii) Judicial review proceedings under Article 226 cannot be a long-term solution..Senior Advocate Kapil Sibal appeared for Yash Developers.Senior Advocates Aryama Sundaram, Dhruv Mehta and Huzefa Ahmadi appeared for Harihar Krupa Cooperative Housing Society.Senior Advocate Vinay Navare represented some of the slum dwellers..[Read Judgment]