The Bombay Excessive Court docket final month started a first-of-its-kind overview of a laws. The legislation in query, The Maharashtra Slum Areas (Enchancment, Clearance and Redevelopment) Act, 1971, offers with the identification and redevelopment of slum areas. It has performed a key function in shaping Mumbai’s vertical architectural panorama.
Sometimes, the judiciary checks statutes to find out if they’re constitutionally legitimate, however the current overview is novel in that it goals to determine the gaps within the laws. The Supreme Court docket mandated it in July final yr, when a bench of Justices PS Narasimha and Aravaind Kumar had been listening to an enchantment involving a slum redevelopment mission delayed for 18 years.
Through the years, courts have raised questions in regards to the efficacy of the 1971 Act as a consequence of circumstances of “unconscionable delays” by builders concerned in slum redevelopment initiatives. Such delays are violative of slum-dwellers’ basic rights, together with the rights to shelter and livelihood, courts have held.
What’s the 1971 legislation on slum redevelopment in Maharashtra?
In Mumbai, the place actual property costs are among the many highest within the nation, slum redevelopment is commonly as a lot about revenue as it’s about housing the city poor or enhancing the situations of the town. Builders profit from incentives underneath the redevelopment legal guidelines and schemes.
As an example, the 1971 legislation empowers the Maharashtra authorities to declare an space as a “slum space” and, if wanted, purchase it. A statutory physique, the Slum Rehabilitation Authority (SRA), is created to supervise the rehabilitation, which might entrust any company or developer to redevelop the designated space. The legislation additionally prescribes the relocation and rehabilitation of slum dwellers.
In 1995, the federal government launched the Maharashtra Slum Rehabilitation Act. Beneath it, non-public builders (in settlement with the slum dwellers) fund redevelopment and supply completed tenements freed from value. In alternate, they obtain some further space for development and promoting within the open market.
They will also be entitled to the next Ground Area Index (FSI), permitting them to construct extra saleable flats than the quantity normally allowed on a bit of land. Prime lands within the metropolis additionally develop into obtainable at decrease prices than open market charges underneath such schemes.
What are the problems with it?
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The case that triggered the overview of the 1971 legislation entails a 2003 slum redevelopment mission in Borivali, allotted to Yash Builders. Delays of practically twenty years induced the Apex Grievance Redressal Committee (AGRC), which has oversight of the SRA, to terminate the contract in 2021. The appointment of a brand new builder prompted Yash Builders to petition earlier than the Bombay Excessive Court docket.
In 2022, Justice Girish S Kulkarni of the Bombay HC upheld the AGRC’s resolution and likewise famous that 199 slum dwellers had been stored ready for years with out being paid transit lease. The Court docket stated this “was fully against the spirit and ethos of a slum scheme.”
The developer then moved the Supreme Court docket. Whereas additionally upholding the AGRC resolution, the court docket underlined the inefficiency of judicial overview. “Case after case, the Bombay Excessive Court docket has been ruling that, a) the developer is duty-bound to finish the mission throughout the stipulated time and that b) the Slum Rehabilitation Authority (SRA) has not merely the ability however a broader responsibility to make sure that the developer completes the mission inside time,” it stated. Regardless of judicial intervention, it famous that there was hardly any course correction as a result of the legislation doesn’t require that from the developer or the SRA.
Citing knowledge from the Nationwide Judicial Knowledge Grid, the SC stated 1,612 circumstances involving disputes underneath the 1971 Act are at present pending earlier than the Bombay Excessive Court docket. Of those, 135 circumstances are greater than 10 years outdated.
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“In any occasion, execution of the mission underneath the Slum Rehabilitation Scheme can’t be considered as an actual property growth mission. There’s a public goal concerned, and that’s inextricably linked to the precise to lifetime of a few of our brother and sister residents who’re residing in pathetic situations,” the SC stated, setting the stage for a overview of the legislation.
The court docket thus expanded its energy to “that of facilitator of entry to justice and efficient functioning of constitutional our bodies.” The ruling additionally units a precedent for the court docket to overview laws with out a reason for motion, that’s, when there isn’t any affected celebration earlier than the court docket. The one different occasion the place this occurs is underneath Article 143 – the place the President can request the SC’s opinion on any matter of public curiosity significance or query of legislation.
Because the overview is of a state laws, the SC directed the Chief Justice of the Bombay Excessive Court docket to “represent a bench to provoke suo motu proceedings for reviewing the working of the statute to determine the reason for the issues” mentioned within the ruling. It additionally requested the HC to think about directing the federal government to represent a committee for a efficiency audit of the Act.
What precisely must be reviewed?
The SC recognized key areas requiring overview:
- 01
Identification and declaration of land as slum
This drawback entails an examination of authorities’ function in giving recognition for the land. The SC stated “insidious” intervention of builders within the course of casts doubts on the independence and integrity within the decision-making course of.
- 02
Identification of slum dwellers
The SC stated it’s a sophisticated course of to determine the standing proof of the dwellers and provides rise to competing claims among the many slum inhabitants, resulting in litigation.
- 03
Number of a developer
The court docket stated the legislation leaves the choice to the slum dwellers’ cooperative societies, who are sometimes manipulated by competing and rival builders.
- 04
Apportionment of land for redevelopment and sale
Builders search to extend the proportion of saleable space, resulting in contestation by the slum dwellers s missing underneath the legislation.
- 05
Obligation to supply transit lodging for slum dwellers pending redevelopment
The court docket stated that typically, builders don’t present transit lodging inside time or insufficient options. There are additionally situations the place some slum dwellers refuse to vacate the world in query because the transit lodging is both inconvenient or the transit lease quantity provided to them is inadequate.
- 06
Lack of independence, objectivity within the functioning of statutory authorities
The SC stated it was a “matter of great concern” as courts have witnessed that the authorities haven’t any independence and have brief tenures. “The functioning of those statutory authorities offers a sign that there may very well be a regulatory seize,” the bench famous. It additional raised considerations over the effectiveness of the statutory treatments and stated that the accountability of authorities was missing underneath the legislation.
How has Bombay HC proceeded thus far?
On February 14, after starting detailed hearings, a particular bench led by Justice Girish S Kulkarni of HC remarked that Maharashtra was the one state the place individuals get free housing after encroaching on authorities or different lands and raised considerations over the “vexed drawback” of mass housing.
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The bench had earlier urged a coverage for rental lodging for migrants, provision of huge open areas for future generations amidst “concrete jungles” and had raised considerations over “vertical slums” within the type of Slum Rehabilitation (SR) buildings. It had sought strategies from numerous stakeholders. It can proceed listening to the matter on March 18.
