Bombay High Court Calls For Performance Audit Of 1971 Slum Law To Achieve 'Distant Dream' Of Slum-Free Mumbai
Invoking the famous couplet - Zara Hatke Zara Bachke, Ye Hai Bombai Meri Jaan! the Bombay High Court on Friday ordered constitution of a Committee to look into the 'abysmal' progress of town planning in the city of Mumbai and the failure of proper implementation of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act of 1971.
A division bench of Justice Girish Kulkarni and Justice Advait Sethna in a detailed judgment, pointed out various flaws in the implementation of the Slums Act and also the failures of the Slum Rehabilitation Authority (SRA) along wit the Maharashtra Government and its bodies, in ensuring a 'slum-free' Mumbai even after 55 years of enacting the then ad-hoc Slums Act.
"The problems which are discussed certainly reflect an abysmal progress of the ideals of town planning expected of an international city like Mumbai, when large areas are still slums. Any town planning which does not sail with the tide of time is questionable. The official machinery under the statutory mechanism despite all the efforts as urged on behalf of the SRA, has failed to eradicate the slums to fulfill the dream of the year 1971, to convert the city into a slum free city. The continuous requirements of planning and in that regard, the expectations and the rights of the citizens, who live in this city, in our opinion, need to assume highest importance," the judges observed in the judgment.
Hence, the bench emphasised, there is certainly a need for area or zone wise, systematic and a scientific approach, to be adopted in a phased manner to do away with the slums in Mumbai. The task is herculean but not impossible, the judges said, adding that provided those who exercise authority and power, have "committed determination, a robust and genuine willingness to achieve public good," on this important area, in the city's march in the 21st century.
"On such conspectus, we feel that there is need for the Government to consider having a specialized Corporation or Body tasked with planning and redevelopment of slums, with all specialised and scientific machinery to supplement the overburdening of the Chief Executive Officer (CEO) of the SRA and the existing machinery under the Slums Act. Considering the existing situation, we doubt whether the Slum Act with the continuous amendments it has seen, can still be considered to be any fulfilling ray of hope. This more particularly when for the last 55 years, the objective of a ad hoc enactment like the Slums Act, has lagged far behind, in achieving its objects," the bench observed.
However, it is for the government to decide on such issues, the bench said.
The bench then remarked, "At this juncture, with the deep sense of belonging to the city of Mumbai, we are reminded of the following couplet, from a timeless classic, which is most befitting: ऐ दिल, है मुश्किल जीना यहाँ ज़रा हटके, ज़रा बचके, ये है Bombay मेरी जाँ | (O my heart, it is difficult to live here; move a little, be careful, this is Bombay my dear)."
The bench therefore, ordered the Maharashtra Government to constitute an “Expert Committee” having adequate and appropriate members for conducting a performance audit of the Slums Act, so as to make it more effective on the issues, with the only objective of enabling the Government to achieve the distant dream of slum-free Mumbai, as well as other major cities in the State.
"The committee to be appointed by the State for reviewing the performance audit of the Slum Act shall comprise of experts in town planning, two of whom shall be one representatives of the Municipal Corporation of Greater Mumbai and one representative from the Pune Municipal Corporation, and one representative from the Directorate of Town Planning, Government of Maharashtra. It shall also include two independent architects having expertise in building construction and town planning. Further, the committee shall include the Principal Secretary of the Urban Development Department and an Additional Principal Secretary, as may be nominated by the Chief Secretary, who possess expertise in such matters. The committee shall also comprise of two expert public representatives having specialised knowledge and expertise. Inclusive of such members, the strength of the Committee be fixed by the State Government in Town Planning," the bench ordered.
Such committee, the bench made it clear, shall be constituted within a period of four weeks and the State shall thereafter consider the recommendations of the committee and take a decision as it may find appropriate, in the light of the report which may be submitted by such Committee.
The special bench led by Justice Kulkarni was notified in August 2024, to hear the suo motu Public Interest Litigation (PIL) petition for conducting a comprehensive audit of the Slums Act of 1971, which was in pursuance to the directive of the Supreme Court division bench of Justice PS Narasimha and Justice Aravind Kumar on July 31, 2024 which had ordered the Bombay High Court to initiate suo motu proceedings to review the effectiveness of the Act of 1971.
In the 264-page judgment penned down by Justice Kulkarni, various issues with regards to the redevelopment of slums have been highlighted, which often end up into litigation, and further defeats the purpose of the Slums Act, which was to make Mumbai a slum-free city. The issues as discussed are:
No More Cutoff Dates:
One of the most bigger reasons for the failure of the Slums Act, the bench emphasised is the time to time extension of the cut-off dates by the State for 'eligible' slum dwellers.
"In fact, the slums in all the cities continue to increase, thereby posing insurmountable challenges and giving sleepless nights to the town planners. This, considering that illustratively, for a city like Mumbai, majority of the lands are occupied by slums, and the eradication and/or redevelopment of such slum areas has not been achieved for decades. This itself shows that there is something amiss in the legislation and its implementation, as also in the policy of the State for the protection of slums, including those on public lands, and making tenements available to the slum dwellers free of cost in redeveloped premises or at subsidized rates, which are available at Rs. 2.5 lakh per tenement," the bench observed.
Therefore, the bench suggested to put an absolute freeze on the cut-off dates, which cannot be extended by way of any circular and should not be further revised and resultantly, any slum established after the fixed cut-off date shall not be recognised, and its occupants shall not be eligible for rehabilitation. In accordance with the applicable legal provisions, such occupants are liable to be removed from the land, whether it is private or public, the bench made it clear.
"Non-protected slum dwellers can be offered housing from the public housing pool, if available, otherwise, they must secure housing in the private sector like any other citizen. The reason is that it is not justifiable for population below the poverty line, or those who are homeless in relation to the city (as opposed to rather than their original place of residence), to move into cities, occupy land illegally, form slums and thereafter benefit from government policies," the bench suggested.
If a person considers migrating to a city based depending on his economic capacity, either public housing should be made available or the person must access housing through the open market. The practice of providing free or subsequent tenements to encroachers is unconstitutional and should history, the bench said.
"There is an evident laxity in government policies. Today, the State, as well as public bodies, are virtually landless in cities like Mumbai, which have attained saturation in terms of new construction, as is also the case in other major cities in the State. It is, therefore, an urgent necessity not to formulate a 'robust policy' that succumbs to social or other extraneous pressures by encouraging encroachment through subsidized housing, but instead to adhere strictly to constitutional principles in policy-making on such issues. This includes reducing population pressure on limited and secure lands and implementing recovery of lands from encroachments where slum rehabilitation schemes have not commenced, and the land is still occupied by slums," the judges emphasised.
The bench reiterated that, under the guise of slum rehabilitation, the use of public lands solely for residential and commercial development contravenes constitutional morality and disregards every principle the Constitution recognises for managing State resources. The magnitude of the issue, where hundred of acres of public land have already been removed from the public pool, is not only a clear warning, but a serious alarm. Yet for reasons not known to the law, this has been consistently overlooked by policy makers.
"We say so that any rehabilitation to any eligible extent can be recognised. However, such mass illegality, and the fact that there will be no freeze of the slums of the State, in fact itself, has created a chaotic situation, more particularly in respect of international cities like Mumbai, and irreparable damage of such nature happening with open eyes, nurtured as it is, has contributed to ruin. Cities like Mumbai today stand in such a condition. It is already too late; however, effective actions, if taken at least within a decade, can improve things, and there can be some hope of the dark clouds of planning receiving some ray of sunshine. However, this requires political will, it requires executive's will, and it also requires adherence to the rule of law by the citizens. In the event of a single mismatch not being attended to, the chaos which commenced a decade back on such issues would continue to haunt generations to come, converting the city into what only time would tell," the bench warned.
Slums Around Mumbai Airport Makes Mumbai A 'City of Slums'
The bench cited the example of slums surrounding the Mumbai Airport from that last 2 to 3 decades, where slum redevelopment has not occurred due to the non-feasibility of developing these lands. In such cases, slum dwellers would necessarily need to be evacuated and resettled elsewhere, the judges said.
"For example, all the slums surrounding the 'Mumbai Airport' and many hilly areas in Mumbai fall into this category. These slums render an international image to Mumbai to be a city of slums although it is commercial capital of the country. High-rise construction in the vicinity of the airport is restricted due to air traffic control regulations. If this is the situation, should the government adopt a selective approach, allowing slum dwellers in such areas to continue living in slums for decades together, even though these lands are legally prohibited from development? This situation results in a disturbing state of affairs in an international city like Mumbai. Any international or domestic traveler arriving in the city would immediately see acres of land in the vicinity of the airport occupied by slums, rather than developed in a planned and safe manner. There cannot be selective redevelopment of slums. This has failed the object of the Act being achieved," the bench bemoaned.
Appointment of Developers:
The bench noted that often slum societies appoint a developer on their own and then starts a protracted litigation wherein developers drag their feet in completing the project, delayed transit rent payments and so on.
"This model in the statutory colour it wields needs to be reconsidered, is our opinion, which would be by streamlining the role of the slum society and participation of the slum dwellers in the redevelopment being replaced by having a robust mechanism which would involve the committee of the SRA that would in fact identify and select a reputed developer from its panel so as to effectively achieve the goals for the society of slum dwellers. Solely everything being done sub silentio by the society, when in fact it is undertaken by the developer, needs fundamental correction. This more particularly, considering the helplessness of the slum dwellers in finding out the right person to be appointed as a developer, which itself goes to the root of the redevelopment, as large number of disputes are arising only from such position of the developer which is between the society and the SRA," the bench opined.
The bench explained that most of the slum lands either belongs to the Government or its bodies, then in such a situation, the question arises as to why, in respect of such lands, the society needs to be the sole propeller to initiate redevelopment and ultimately this developer, the society and the SRA become the only active participants in the development, with the owners of the land namely the State, MHADA, MMRDA, etc., being rendered to be mute spectators in the scheme of redevelopment as it stands.
Grievance Redressal Committees:
The bench pointed out that large number of matters are pending before the Appellate Grievance Redressal Committees as well as the GRCs, which are unable to dispose of the interim applications and the appeals expeditiously as they do not have regular sittings or have limited sittings considering their composition of its members.
"We take judicial notice of the fact that in this regard several petitions are filed merely seeking directions to the AGRC to decide the appeal or the Interim Application for stay or for interim orders, and for the said reason that these committees do not hold sittings every day and is, on many occasions, available only once or twice in a fortnight," the judges noted.
The bench therefore, suggested having a retired Judicial Officer or an Advocate with sufficient experience at Bar, to be appointed as Members of the AGRC and GRC and they hold regular sittings, considering the nature of the disputes being taken to the AGRC arising from orders passed by the CEO, which involve adjudication of civil rights, including rights touching on the constitutional guarantees under Articles 14, 21, 19(1)(g) and 300A of the Constitution. The bench further suggested the AGRC and the GRC must expeditiously decide the interim applications and possibly within a period of 15 days of filing.
Sale or re-sale of Redeveloped Housing:
Since most of the slums are on government or its entities lands, the bench said that when some slum dweller, given a flat or a house under say SRA scheme, wishes to sell the same, the same should not be permitted.
"In the event, the tenement is allotted free of cost, there should be a preferential right in favour of the Government/SRA in the event of sale in the open market. Such sale should be permitted only in favour of the Government or the SRA at the subsidized construction cost, or at such price as may be determined to be payable by the slum dwellers to the State Government. This would enable the allotment of tenements to persons genuinely in need by enhancing the pool of public accommodation, which may be made available to people who need it," the bench made it clear.
Pool Housing:
Taking a stern view of the issue, the bench made it clear that the existing approach of providing free housing ought to be reconsidered by the State. The notion that a poor family residing in an urban area must necessarily be provided with free housing needs to be re-examined, the judges emphasised.
"The submissions that every household should contribute towards the cost of its own constructed house, and that subsidized housing loans should be made available for this purpose. Further, for families who are unable to afford EMIs towards the construction cost, housing may be provided by the SRA on a Leave and Licence basis, as suggested in the Afzalpurkar Committee Report," the bench underlined.
Vertical Slums:
The bench made it clear that while redeveloping slum areas, the same should not be converted into 'vertical slums' by making the same area being more densely populated. The bench suggested providing better amenities to such redeveloped buildings with open spaces, play area for kids, proper ventilation etc.
"There ought not to be any vertical slums, as also the living conditions which are being made available on redevelopment in such high rise slum buildings are commensurate with the normal human requirements of appropriate tenements, which would cater to health, hygiene, light and ventilation and other amenities like open spaces, children's play area, parking etc. to be made available not only to the redeveloped building, but also to the free sale component which is being constructed. The object and intention are not to have congestion or any unmanageable situation insofar as the realistic living space and issues are concerned and more particularly looking at the future of this development. There cannot be an unjust enrichment of the free sale component at the cost of any compromise on the part of the slum dwellers who are not in a dominant position or are in fact in a weak, exploitative and oppressed vulnerable position," the bench suggested.
Case Title: High Court On Its Own Motion vs State of Maharashtra (SMPIL 1 of 2024)
Citation: 2026 LiveLaw (Bom) 246