# Yash Developers v. Harihar Krupa Co-Operative Housing Society Limited & Ors

- **Citation:** 2024 INSC 559
- **Court:** Supreme Court of India
- **Decided:** 2024-07-30
- **Case number:** Civil Appeal No. 8127 of 2024
- **Bench:** Pamidighantam Sri Narasimha, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yash-developers-v-harihar-krupa-co-operative-housing-society-limited-ors-38035
- **Pages:** 33

## Headnote

Development agreement in favour of the appellant was terminated
by the Apex Grievance Redressal Committee (AGRC) exercising
its power under Section 13 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971. Order
of termination upheld by the High Court. Issue as regards scope
of judicial review under Article 226 of the Constitution against
an order passed under Section 13; accountability of officers
exercising power coupled with duty under Section 13; Performance
audit of Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971.
Headnotes†
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 - s.13 - Constitution of India - Article
226 - Rehabilitation of slum dwellers - Appellant was appointed
as a developer by respondent no. 1 - However, development
was prolonged for over two decades - Development agreement
terminated by the statutory authority - Apex Grievance
Redressal Committee (AGRC) - Validity of the said power
exercised by the AGRC - Order of termination upheld by
the High Court - Plea of the appellant that the delay in
implementation of the project was in various phases between
2003 to 2011, 2011 to 2014 and 2014 to 2019 due to various
reasons inter alia long-drawn litigation with a competing
builder, delay in obtaining the environmental clearances or the
delay due to non-cooperation of certain slum dwellers, in which
the appellant had no role and was not at all responsible for:
Held: Under s.13(2), Slum Rehabilitation Authority (SRA) has the
power to redevelop the project if it is satisfied that the development
is not proceeding within the time specified - This power of SRA
* Author
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is coupled with a duty to ensure that the project is completed
within time - The provision is a statutory incorporation of time
integrity in the performance of the duty - SRA is accountable
for the performance of this duty - The primary responsibility to
implement s.13 and allied provisions and to monitor compliances
of schemes and agreements vests with the CEO - If the actions
of CEO are based on the directions of the SRA, then the SRA
must equally bear the responsibility - 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 - Delay of 8 years in resolving disputes
with a competing builder cannot be a justification under any
circumstance - Appellant being a developer fully understands
the process of obtaining environmental clearances while other
sanctions and permissions are pending, and it was for him to
make all the necessary arrangements - Non-cooperation of some
of the members cannot be a ground for delaying the project from
2014 to 2019 - AGRC and High Court correctly held that the delay
caused due to the sanction of the draft development plan for the
construction of the road cannot be a justification for delaying the
project from 2015 to 2019 - Justifications given by the appellant
for delaying the project, rejected - No merit in the present appeal,
costs imposed - Though the justifications for delay are rejected, but
there was dereliction of the statutory duty of the SRA in ensuring
that the project is completed within time - There was negligence
on the part of CEO and the SRA and they are accountable for
their actions. [Paras 13, 14.1, 24, 26, 27]
Constitution of India - Article 21 - Right to life - Slum
Rehabilitation Scheme - Rehabilitation of slum dwellers:
Held: Execution of the project under the Slum Rehabilitation
Scheme cannot be viewed as a real estate development project -
There is a public purpose involved inextricably connected to the
right to life of some of our brother and sister citizens living in
pathetic conditions. [Para 27]
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 - Performance audit of - Litigation
under the Act, worrisome - Directions f

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[2024] 7 S.C.R. 1443 : 2024 INSC 559
Yash Developers
v.
Harihar Krupa Co-Operative Housing Society
Limited & Ors.
(Civil Appeal No. 8127 of 2024)
30 July 2024
[Pamidighantam Sri Narasimha* and Aravind Kumar, JJ.]
Issue for Consideration
Development agreement in favour of the appellant was terminated
by the Apex Grievance Redressal Committee (AGRC) exercising
its power under Section 13 of the Maharashtra Slum Areas
(Improvement, Clearance and Redevelopment) Act, 1971. Order
of termination upheld by the High Court. Issue as regards scope
of judicial review under Article 226 of the Constitution against
an order passed under Section 13; accountability of officers
exercising power coupled with duty under Section 13; Performance
audit of Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971.
Headnotes†
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 - s.13 - Constitution of India - Article
226 - Rehabilitation of slum dwellers - Appellant was appointed
as a developer by respondent no. 1 - However, development
was prolonged for over two decades - Development agreement
terminated by the statutory authority - Apex Grievance
Redressal Committee (AGRC) - Validity of the said power
exercised by the AGRC - Order of termination upheld by
the High Court - Plea of the appellant that the delay in
implementation of the project was in various phases between
2003 to 2011, 2011 to 2014 and 2014 to 2019 due to various
reasons inter alia long-drawn litigation with a competing
builder, delay in obtaining the environmental clearances or the
delay due to non-cooperation of certain slum dwellers, in which
the appellant had no role and was not at all responsible for:
Held: Under s.13(2), Slum Rehabilitation Authority (SRA) has the
power to redevelop the project if it is satisfied that the development
is not proceeding within the time specified - This power of SRA
* Author
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is coupled with a duty to ensure that the project is completed
within time - The provision is a statutory incorporation of time
integrity in the performance of the duty - SRA is accountable
for the performance of this duty - The primary responsibility to
implement s.13 and allied provisions and to monitor compliances
of schemes and agreements vests with the CEO - If the actions
of CEO are based on the directions of the SRA, then the SRA
must equally bear the responsibility - 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 - Delay of 8 years in resolving disputes
with a competing builder cannot be a justification under any
circumstance - Appellant being a developer fully understands
the process of obtaining environmental clearances while other
sanctions and permissions are pending, and it was for him to
make all the necessary arrangements - Non-cooperation of some
of the members cannot be a ground for delaying the project from
2014 to 2019 - AGRC and High Court correctly held that the delay
caused due to the sanction of the draft development plan for the
construction of the road cannot be a justification for delaying the
project from 2015 to 2019 - Justifications given by the appellant
for delaying the project, rejected - No merit in the present appeal,
costs imposed - Though the justifications for delay are rejected, but
there was dereliction of the statutory duty of the SRA in ensuring
that the project is completed within time - There was negligence
on the part of CEO and the SRA and they are accountable for
their actions. [Paras 13, 14.1, 24, 26, 27]
Constitution of India - Article 21 - Right to life - Slum
Rehabilitation Scheme - Rehabilitation of slum dwellers:
Held: Execution of the project under the Slum Rehabilitation
Scheme cannot be viewed as a real estate development project -
There is a public purpose involved inextricably connected to the
right to life of some of our brother and sister citizens living in
pathetic conditions. [Para 27]
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 - Performance audit of - Litigation
under the Act, worrisome - Directions for comprehensive
statutory audit issued - Problem with the statutory scheme
w.r.t issues such as identification and declaration of land as a
slum; identification of slum dwellers; selection of a developer;
[2024] 7 S.C.R.
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Yash Developers v.
Harihar Krupa Co-Operative Housing Society Limited & Ors.
apportionment of the slum land between redevelopment area
and sale area; obligation to provide transit accommodation for
the slum dwellers pending redevelopment; issues of lack of
independence and objectivity in the functioning of statutory
authorities; effectiveness of statutory remedies; judicial review
proceedings under Art. 226 cannot be a long-term solution:
Held: The problems arising out of the statutory scheme and
policy framework should have come under review by the State
of Maharashtra - 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 - Role of judiciary elaborated - Chief
Justice of the Bombay High Court requested to constitute a bench
to initiate suo motu proceedings for reviewing the working of the
statute to identify the cause of the problems indicated. [Para 35, 42]
Judicial review - Directions for review and assessment of the
implementation of a Statute - Justification:
Held: Constitutional courts are fully justified in giving such
directions as they are in a unique position of perceiving the
working of a statute while exercising judicial review, during
which they could identify the fault-lines in the implementation of
a statute. [Para 37]
Case Law Cited
Susme Builders Pvt. Ltd. v. CEO, Slum Rehabilitation Authority
& Ors. [2018] 1 SCR 1 : (2018) 2 SCC 230; Vijay Rajmohan v.
CBI [2022] 19 SCR 563 : (2023) 1 SCC 329; State of Haryana v.
Mukesh Kumar [2011] 14 SCR 211 : (2011) 10 SCC 404; Pravin
Electricals (P) Ltd. v. Galaxy Infra & Engineering (P) Ltd. [2021] 1
SCR 1162 : (2021) 5 SCC 671; Preeti Gupta v. State of Jharkhand
[2010] 9 SCR 1168 : (2010) 7 SCC 667; Arif Azim Co. Ltd. v.
Aptech Ltd. [2024] 3 SCR 73 : (2024) 5 SCC 313; Public Interest
Foundation v. Union of India [2018] 10 SCR 141 : (2019) 3 SCC
224 - referred to.
Galaxy Enterprises v. State of Maharashtra (2019) SCC OnLine
Bom 897; Tulsiwadi Navnirman Co-op Housing Society Ltd. & Anr.
1446
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v. State of Maharashtra & Ors., 2008 (1) Bom.C.R.1; New Janta
SRA CHS Ltd. v. State of Maharashtra (2019) SCC Online Bom
3896 - referred to.
Books and Periodicals Cited
Justice in Adapting to Change, in R.W.M. Dias, JURISPRUDENCE,
305-327 (5th edn., 2013).
List of Acts
Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971; Constitution of India.
List of Keywords
Section 13 of the Maharashtra Slum Areas (Improvement, Clearance
and Redevelopment) Act, 1971; Judicial review under Article 226 of
the Constitution; Development agreement; Developer; Performance
audit of statute; Order of termination; Comprehensive statutory
audit; Rehabilitation of slum dwellers; Delay in implementation of
the project; Development agreement terminated; Redevelopment
of the project; Rehabilitation building; Environmental clearance;
Development plan; Builders; Slum Rehabilitation Scheme; Right
to life.
Case Arising From
CIVIL APPELLATE/INHERENT JURISDICTION: Civil Appeal No.
8127 of 2024
From the Judgment and Order dated 14.10.2022 of the High Court
of Judicature at Bombay in WPL No.18022 of 2021
With
Contempt Petition (Civil) No. 217 of 2024 In SLP (C) No. 20844 of 2022
Appearances for Parties
Kapil Sibal, Sr. Adv., C.U. Singh, Vikas Mehta, Adit Nair, Prakash
Shah, Ranbir Singh, Abhik Chimni, Ms. Rupali Samuel, Kartik, Advs.
for the Appellant.
Sanjay Kharde, Shekhar Naphade, C.A. Sunderam, Dama
Seshadri Naidu, Dhruv Mehta, Huzeifa Ahmadi, Vinay Navare,
Sr. Advs., Satyajeet Kharde, Sunil Kumar Verma, Anirudha Joshi,
Shashibhushan P. Adgaonkar, Ms. Pradnya S. Adgaonkar, Aaditya
[2024] 7 S.C.R.
1447
Yash Developers v.
Harihar Krupa Co-Operative Housing Society Limited & Ors.
Aniruddha Pande, Ms. Rukmini Bobde, Siddharth Dharmadhikari,
Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse,
Adarsh Dubey, Ms. Soumya Priyadarshinee, Ankit Ambasta, Amit
Srivastava, Amlaan Kumar, Saket Sikri, Aman Vachher, Dhiraj,
Ashutosh Dubey, Ms. Anshu Vachher, Ms. Abhiti Vachher, Akshat
Vachher, Ms. Smriti Puri, Amit Kumar, P. N. Puri, Anil Nag, Zulfikar
Ali, Mrs. Jaya, Ms. Monica Saini, Amit Agnihotri, Ms. Priyanka Midha,
Ms. Priya Misra, M. Yogesh Kanna, Ms. Anshula Vijay Kumar Grover,
Ms. Rucha Deshpande, Rajeev Maheshwaranand Roy, Nilesh Kumar,
Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Pamidighantam Sri Narasimha, J.
Table of Contents*
I. Introduction :......................................................................
2
II. Scope of Judicial Review against an order under Section
13 of the Act:........................................................................ 4
III. Accountability of officers exercising power coupled
with duty under Section 13:................................................. 11
IV. Submissions and Analysis:..............................................
13
(i) The first phase of delay is between 2003 and 2011.....
14
(ii) The second phase relates to the delay in obtaining
necessary permissions, approvals and environmental
clearances from 2011 to 2014......................................... 17
(iii) The third phase of delay relates to the alleged
non-cooperation of certain slum dwellers leading to
the stalling of the project from 2014 to 2019................. 18
(iv) The next period of inaction is from 2015 to 2017.
This is sought to be justified on the ground that the
Municipal Corporation sanctioned a road that may
pass through the property and published the draft
development plan (DP) on 25.02.2015........................... 20
(v) Re: Appellant did not have the financial resources..... 21
* Ed. Note: Pagination as per the original Judgment.
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(vi) Re: Submission on maintainability of proceedings
before AGRC................................................................... 25
(vii) Re: Locus or conflict of respondent no.6.............. 27
V.
Findings:.........................................................................
28
VI.
Conclusion:......................................................................
32
VII.
Re : Performance audit of statute:.................................. 32
1.
Leave granted.
I.
Introduction:
2.
The present controversy is a manifestation of common battles between
competing real estate developers under the pretext of rehabilitating
slum dwellers under the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971.1 In the year 2003, the
appellant was appointed as a developer by respondent no. 1, a cooperative Housing Society of slum dwellers having their hutments on
the subject land in Borivali, Mumbai which was declared as a 'slum
area' under the 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 Committee2 by its
order dated 04.08.2021. The order of termination was challenged
by the appellant before the Bombay High Court.3
3.
The Bombay High Court formulated the following issues:
"(i) A developer being removed on the non-fulfillment of
the basic requirement to commence construction of a slum
rehabilitation building for a long period of 18 years, whether
is not fatal to the object and intention of a statutory intent
behind a Slum Rehabilitation Scheme.
(ii) Another question would be as to whether the right to
shelter which is part of the slum dwellers' right to livelihood
guaranteed under Article 21 of the Constitution, can be
1
Hereinafter, referred to as the "Act".
2
For short, the 'AGRC'.
3
Writ Petition (L) No. 18022 of 2021.
[2024] 7 S.C.R.
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Yash Developers v.
Harihar Krupa Co-Operative Housing Society Limited & Ors.
continued to be nullified by such actions of unconscionable
delay on the part of the developer, in not commencing
construction of the slum project even by an inch more
particularly when the nature of such work awarded to a
developer for him is purely a commercial venture, for profit."
4.
Apart from the above two issues, the High Court highlighted the
limited scope of judicial review under Article 226 of the Constitution
against the decision of the statutory authority-AGRC. The High Court,
however, proceeded to examine the facts in full detail and dismissed
the writ petition on facts, as well as on law.4 Thus, the present appeal.
5.
Even before us, the appellant argued the case only on facts, to the
extent that we were under an illusion that we were hearing suit for
specific performance involving an issue of ready and willingness.
Having heard the learned counsels for the parties at length on
facts, we will certainly deal with their submissions, but before that
we must reiterate the limited scope of inquiry under Article 226 of
the Constitution.
II.
Scope of Judicial Review against an order under Section
13 of the Act:
6.
In this case, as in any other public law proceedings, we are concerned
with the legality and validity of the power exercised by the AGRC
in terminating the development agreement with the appellant by its
order dated 04.08.2021. This order is in exercise of power under
Section 13 of the Act which is as under:
"13. Power of Competent Authority to redevelop
clearance area:
(1)
Notwithstanding anything contained in sub-section (1)
of Section 12 the Competent Authority may, at any
time, after the land has been cleared of buildings in
accordance with a clearance order, but before the work
of redevelopment of that land has been commenced
by the owner, by order, determine to redevelop the
land at its own cost, if that Authority is satisfied that
it is necessary in the public interest to do so.
4
By judgment dated 14.10.2022, reported as 2022 SCC Online Bom 3712, hereinafter referred to as the
impugned Judgment.
1450
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(2)
Where land has been cleared of the buildings in
accordance with a clearance order, the Competent
Authority, if it is satisfied that the land has been,
or is being, redeveloped by the owner thereof in
contravention of plans duly approved, or any restrictions
or conditions imposed under sub-section (10) of Section
12, or has not been redeveloped within the time, if
any, specified under such conditions, may, by order,
determine to redevelop the land at its own cost.
Provided that, before passing such order, the owner
shall be given a reasonable opportunity of showing
cause why the order should not be passed."
(emphasis supplied)
7.
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.
8.
In Susme Builders Pvt. Ltd. v. CEO, Slum Rehabilitation Authority
& Ors.,5 this Court held that Section 13(2) of the Act empowers the
statutory authorities to take action and hand over the project to some
other agency if the development is being delayed. The relevant
portions of the judgment are as under:-
"49. Otherwise, there would be an anomalous situation
where the Society would have terminated its contract
with Susme but the letter of intent issued by the SRA
would continue to hold the field and it would be entitled
to develop the land. The Society approached the SRA,
in fact, asking it to take action against Susme. Since the
SRA is the authority which issued the letter of intent, it will
definitely have the power to cancel the letter of intent...
5
[2018] 1 SCR 1 : (2018) 2 SCC 230
[2024] 7 S.C.R.
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Yash Developers v.
Harihar Krupa Co-Operative Housing Society Limited & Ors.
...
52. A bare reading of these provisions shows that in
terms of clauses (c) and (d) of sub-section (3) of Section
3-A of the Slum Act, the SRA not only has the power,
but it is duty-bound to get the slum rehabilitation scheme
implemented and to do all such other acts and things as
will be necessary for achieving the object of rehabilitation
of slums. In this case, the SRA was faced with a situation
where the slum-dwellers were suffering for more than 25
years and, therefore the action taken by SRA to remove
Susme for the unjustified delay was totally justified."
9.
Case after case, the Bombay High Court has been ruling that, a) the
developer is duty-bound to complete the project within the stipulated
time and that b) the Slum Rehabilitation Authority (SRA) has not
merely the power but a broader duty to ensure that the developer
completes the project within time. We will refer to those judgments,
not so much to certify that the issue is no more res-integra, but to
emphasise that the rulings have not had the desired impact, much
less compliance. The reason is that, neither the developer nor the
authority is asked to face the consequences of their derelictions.
That Section 13(2) is a power coupled with duty is clear from the
judgments of this Court and many other judgments of the High
Courts, however experience tells us that this recognition of a statutory
duty in itself is not sufficient. Until and unless duty is identified with
accountability, judicial review is ineffective.
10. In Galaxy Enterprises v. State of Maharashtra,6 the Bombay High
Court observed:
"53. The record reveals that what M/s Saral could do in
eight years of its appointment, was to get the Annexure II,
namely the list of the 73 eligible occupants certified from
the MHADA. It was, thus, expected from the petitioner
that the revalidation of Annexure II, which was possibly
not a complex formality be undertaken at the earliest.
However this certainly did not happen and citing various
reasons, which cannot be believed to be not attributable
6
2019 SCC OnLine Bom 897.
1452
[2024] 7 S.C.R.
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to the petitioner, ultimately, the petitioner could not get the
Annexure II certified only on 23 December 2013, which is
after about eight years of the petitioner's appointment. This
fact itself raises a serious doubt as to the real intentions
of the petitioner to undertake the scheme. The petitioner
could not have simply blamed the authorities for the
delay, as there is complete lack of concrete and/or any
real steps which were to be taken by the petitioner to
effectively seek different approvals, once the society had
put the petitioner in the driver's seat, in complete control
of the project as rightly commented, in the impugned
orders. Thus, the case of the petitioner, that from time to
time steps were taken to implement the slum scheme as
entrusted to it be the society cannot be accepted. These
are the contentions of the petitioner, merely pointing out
some movement of the files with the authorities. This
was certainly not sufficient and what was required and
expected by the petitioner was to take real effective steps
to progress the slum redevelopment. The petitioner was
expected to expeditiously obtain an Annexure II, as certified
by the MHADA, thereafter obtain a LOI and then obtain a
Commencement Certificate to start with the constructions
and before that make a provision for temporary alternate
accommodation for the slum dwellers to reside till
completion of the scheme. There is not an iota of material
to show that any such steps much less expeditiously were
taken by the petitioner which will show the real bonafides
of the petitioner to undertake the scheme.
54. In fact the petitioner kept the slum dwellers/society
in dark on any of the steps alleged to be taken by the
petitioner. There was no transparency in the petitioner's
approach with the slum-dwellers whose anxious, impatient
and painful wait of so many years for the slum scheme to
start was continuously staring at the petitioner's right from
the word go. This was not what was expected of a diligent
developer. The slum schemes are expected to be taken and
pursued by the developers for genuine and bonafide object
and purpose to redevelop the slums as reflected in the
rules which is for the mutual benefit namely the benefit of
[2024] 7 S.C.R.
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Yash Developers v.
Harihar Krupa Co-Operative Housing Society Limited & Ors.
the slum dwellers of being provided a permanent alternate
accommodation and so far as the developer, to exploit
the free sale component, which is nothing but a business
consideration for the developer. If this be the long and short
of a slum scheme what can be the intention of a developer
to sit tight on a slum scheme and not take expeditious
measures to undertake and complete the scheme. The
reasons can be innumerable, if the reasons are attributable
to the authorities, the developer has certainly remedies in
law to be immediately resorted. No forum competent to
entertain such complaints would refuse to look into such
grievances when the very right to livelihood of the slum
dwellers who are living in inhuman conditions, being a
concomitant of Article 21 of the Constitution, is involved
and which becomes a matter of urgent concern and of
utmost priority. A developer cannot shut his eyes to all
these factors and attributes, once appointed by the society.
For the developer, there has be relentless action on day
to day basis as any delay in not implementing the slum
scheme is not only detrimental to the slum dwellers, but
to the society at large. Delay in effective implementation
of the slum scheme would defeat the very goal, the ideals
and the purpose of the slum redevelopment scheme.
55. A perusal of the record indicates that the society is
correct in contending that during the period from 2006 to
2016 i.e. for about 10 years the petitioner did not take
any concrete steps towards implementation of the slum
rehabilitation scheme and the petitioner had clearly failed
to obtain a LOI for such a long period. The society, thus,
was constrained to file the application dated 15 March
2016, under Section 13(2) of the Slums Act, praying for
change of the petitioner as the developer. It is correct
that Annexure-II was originally issued by MHADA on 16
April 1998. The petitioner was appointed as developer
in the month of June 2006 and it clearly took about
seven to eight years for the petitioner to obtain revised
Annexure-II which was obtained on 23 December 2013.
Before the Chief Executive Officer and even before the
appellate authority the petitioner has failed to show any
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justifiable reason as to why it took these many years for
the petitioner to simply obtain a revised Annexure-II when
as per norms issued by the Slum Rehabilitation Authority
Annexure-II is required to be finalised within a period of
four months when the hutment dwellers are below 500 in
number. Further the record clearly indicates that even after
obtaining the revised Annexure II, on 23 December 2013,
the petitioner did not initiate immediate steps to obtain LOI
for the next three years. There is, thus, much substance
in the contention of the society that only after the society
initiated proceedings under Section 13(2) of the Slums
Act, the petitioner initiated steps to obtain a LOI.
...
57. There cannot be a myopic approach to these issues
of a delay in implementation of a slum rehabilitation
scheme. Things as they stand are required to be seen in
their entirety. The only mantra for the slum schemes to be
implemented is it's time bound completion and a machinery
to be evolved by the authorities, to have effective measures
in that direction to monitor the schemes as a part of their
statutory obligation to avoid delays. Non-commencement
of the slum scheme for long years and substantial delay
in completion of the slum schemes should be a thing of
the past. In the present case, looked from any angle there
is no plausible explanation forthcoming for the delay of
so many years at the hands of the petitioner to take bare
minimum steps to commence construction.
58. The authorities should weed away and reprimand
persons who are not genuine developers and who are
merely agents and dealers in slum schemes. These
persons after get themselves appointed as developers,
to ultimately deal/sell the slum schemes, as if it is a
commodity. Any loopholes in the rules to this effect,
therefore, are required to be sealed.
...
64. Thus, it is quite clear that inordinate delay is a sufficient
ground for removal of a developer. There is neither any
[2024] 7 S.C.R.
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Yash Developers v.
Harihar Krupa Co-Operative Housing Society Limited & Ors.
perversity nor any illegality in the findings as recorded by
both authorities below, in observing that the petitioner had
grossly delayed the implementation of the slum scheme in
question. The findings as recorded in the impugned order
passed by the Apex Grievance Redressal Committee are
also sufficiently borne out by the files produced before
this Court..."
(emphasis supplied)
11. A Full Bench of the Bombay High Court in Tulsiwadi Navnirman Coop Housing Society Ltd. & Anr. v. State of Maharashtra & Ors.,7 held
that the SRA has been conferred with certain powers and each one
of them is coupled with a duty. If the slum dwellers are eligible to be
rehabilitated at the site and within a reasonable period, they cannot
be left at the mercy of developers and builders. The slum dwellers
cannot be expected to occupy a transit accommodation endlessly,
without proper maintenance, and hygiene. An independent and
impartial implementation, supervision and monitoring of the projects
is the purpose for which the authority has been set up under the Act.
12. In New Janta SRA CHS Ltd. v. State of Maharashtra,8 the High Court
considered the dispute between two rival societies claiming rights
over a slum scheme. The Court observed as under:-
"187. It thus cannot be accepted more particularly
considering the provisions of Section 13(2) of the Slums Act
that a slum society at its sole discretion and/or without any
control and regulations by SRA can change the developer.
If such a course of action is made permissible, considering
the hard realities and the hundreds of developers being
available to take over such schemes, it would create a
chaos and it is likely that a situation is created, that the slum
rehabilitation scheme never takes off and it is entangled
into fights between two factions within the society and/or
two rival developers. This is certainly not the object of the
legislation. It would be too farfetched to read such draconian
rights available to the Managing Committee or to general
7
2008(1) Bom.C.R.1.
8
2019 SCC Online Bom 3896.
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body of a society without any regulation, supervision and
control of the SRA to change the developer. The SRA
has all the powers not only to regulate and control such
situations but to take a decision as to what is in the best
interest of the slum dwellers and intended to achieve the
object of the legislation.
188. Secondly it is not in dispute that the application of the
petitioner for change of respondent no.5-developer was
under Section 13(2) of the Slums Act. Having noted this
provision in the foregoing paragraphs, Section 13(2) of the
Slums Act would come into play only when the developer
fails to adhere to the provisions of the development
permissions granted by the SRA and a change of developer
can be sought only when there is an inordinate delay or
the construction carried on, is contrary to the sanctioned
plans and/or the permissions. Considering this clear position
falling under Section 13(2), in the context of this factual
controversy as raised by the petitioner in regard to the
consent of 70% of the slum dwellers being not available
to respondent no.5, 1 am of the clear opinion that the view
taken by both the authorities, in not accepting the petitioner's
contention, is required to be held to be correct and valid. "
III.
Accountability of officers exercising power coupled with
duty under Section 13:
13. 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. In Vijay Rajmohan v. CBI,9 this Court held:-
"34. Accountability in itself is an essential principle of
administrative law. Judicial review of administrative action
will be effective and meaningful by ensuring accountability
of the officer or authority in charge.
9
[2022] 19 SCR 563 : (2023) 1 SCC 329
[2024] 7 S.C.R.
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Harihar Krupa Co-Operative Housing Society Limited & Ors.
35. The principle of accountability is considered as a
cornerstone of the human rights framework. It is a crucial
feature that must govern the relationship between "duty
bearers" in authority and "right holders" affected by their
actions. Accountability of institutions is also one of the
development goals adopted by the United Nations in 201510
and is also recognised as one of the six principles of the
Citizens Charter Movement.11
36. Accountability has three essential constituent
dimensions: (i) responsibility, (ii) answerability, and (iii)
enforceability. Responsibility requires the identification
of duties and performance obligations of individuals in
authority and with authorities. Answerability requires
reasoned decision-making so that those affected by their
decisions, including the public, are aware of the same.
Enforceability requires appropriate corrective and remedial
action against lack of responsibility and accountability to be
taken.12 Accountability has a corrective function, making it
possible to address individual or collective grievances. It
enables action against officials or institutions for dereliction
of duty. It also has a preventive function that helps to
identify the procedure or policy which has become nonfunctional and to improve upon it."
14. For effective implementation of the principle of accountability of power
under the Act, we identify the duties and performance obligations of
the CEO. It is evident from the statutory scheme that the responsibility
vests in the CEO, defined under Section 2 (b+a) read with Section
3A(2) of the Act. The CEO reports to the SRA, the duty of which
is defined under Section 3B of the Act. One of the most important
duties of the SRA is to ensure that the Slum Rehabilitation Scheme
is implemented.
10
United Nations General Assembly Resolution 70/1 dated 25-9-2015.
11
Citizens Charter adopted by the Government in the "Conference of Chief Ministers of various States and
Union Territories" held in May 1997 in New Delhi, available from https://goicharters.nic.in/public/website/
home.
12
See Office of United Nations High Commissioner for Human Rights, Who will be Accountable? Human
Rights and the Post-2015 Development Agenda, available from http://www.ohchr.org/Documents/
Publications/WhoWillBeAccountable.pdf
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14.1. The primary responsibility to implement Section 13 of the Act
and allied provisions and to monitor compliances of schemes
and agreements vests with the CEO. If the actions of CEO are
based on the directions of the SRA, then the SRA must equally
bear the responsibility. The CEO and/or the SRA must explain
the delay in implementation, failing which, the consequences
as determined by the court will follow.
PART-II
IV.
Submissions and Analysis:
15. Returning to facts of the case, Mr. Kapil Sibal, learned senior counsel,
appearing on behalf of the appellant, articulated the allegation of delay
into six parts and in his inimitable style proceeded to explain how in
each part, the appellant had no role and not at all responsible. We
will deal with each phase of delay in the same manner as Mr. Sibal
has presented the case before us.
16. (i) The first phase of delay is between 2003 and 2011. The relevant
facts are as follows.
16.1. The appellant was appointed by respondent no.1 to develop
the Project under a development agreement dated 20.08.2003,
following which the appellant made a proposal for development
on 11.12.2003. The Municipal Corporation of Greater Mumbai,
however, assigned the re-development to a rival society,
namely Omkareshwar Co-Operative Housing Society13 and a
developer, namely Siddhivinayak Developers14 on 06.05.2004.
Pursuant to this, on 07.09.2004, the SRA accepted the
proposal given by Omkareshwar and Siddhivinayak for the
development of the Property. After a long-drawn litigation
between the appellant and respondent no. 1 on one side,
and Omkareshwar and Siddhivinayak on the other, the CEO,
SRA finally settled the dispute by its order dated 07.06.2011
and held that the appellant had the required 70% consent of
individual slum dwellers to implement the project and also
that the proposal of Omkareshwar was not valid as it was
13
Hereinafter, referred to as "Omkareshwar".
14
Hereinafter, referred to as "Siddhivinayak".
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made after the proposal of respondent no.1. Dealing with
the period, Mr. Sibal has submitted that multiple proceedings
between the appellant and respondent no. 1 on one side and
Omkareshwar and Siddhivinayak on the other consumed lot of
time. While the High Court initially disposed of a writ petition
recording a settlement that appellant and respondent no.1 are
entitled to develop the Property, Omkareshwar challenged it
leading to several rounds of litigation before the High-Powered
Committee15 and the High Court. The issue was laid to rest
only on 07.06.2011 by an order of the CEO, SRA holding that
the appellant enjoyed the consent of 70% of eligible slum
dwellers and hence was qualified to be the developer. Mr.
Sibal has submitted that the consequence of this litigation is
that the LOI could be issued in favour of the appellant only
on 29.06.2011, i.e. after this dispute was settled. The eight
years' delay in obtaining the LOI was inevitable and was not
due to any fault of the appellant.
16.2. Per contra, Mr. C A Sundaram, learned senior counsel,
appearing for the respondent no.6-Veena Developers, has
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. It is due to this reason that the
appellant was unable to commence construction even when
all the requisite permissions and approvals had been obtained.
Further, Mr. Huzefa Ahmadi, learned senior counsel,
appearing for respondent nos.8-48, who are some of the slum
dwellers, has submitted that the delay in the construction is
entirely attributable to the appellant. He submitted that the
appellant did not take any action to obtain the LOI anytime
between 2003-2011.
16.3. While adjudicating on the delay in implementation of the
project during 2003-2011, the AGRC relied on clause 11
of the development agreement dated 20.08.2003 requiring
the appellant to complete the development of the project
within three years from the issuance of the Commencement
Certificate dated 14.07.2014.
15
Hereinafter, referred to as the "HPC".
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16.4. On the issue of delay from 2003 to 2011, the High Court
examined the facts independently and upheld the findings of
the AGRC. The High Court held that a delay cannot be viewed
as reasonable. Further, the High Court held that the litigation
with Omkareshwar did not prevent the appellant from starting
the project, especially when the appellant had the consent of
more than 70% of the slum dwellers at all material times. The
High Court also observed that the appellant was not diligent
in procuring the LOI.
17. (ii) The second phase relates to the delay in obtaining necessary
permissions, approvals and environmental clearances from 2011 to
2014. The SRA issued Annexure-III, certifying the financial capability
of a developer on 21.06.2011 and this was followed by issuance
of LOI dated 29.06.2011. The appellant applied for Environmental
Clearance16 on 15.12.2011 and obtained it only on 28.04.2014. The
Commencement Certificate for the construction of the rehabilitation
building and the high-rise clearance by the Municipal Corporation
of Greater Mumbai were issued to the appellant on 14.07.2014 and
09.10.2014, respectively.
17.1. In the above referred background, Mr. Sibal submitted that the
EC had to be obtained before the Commencement Certificate
could be issued for the construction of the rehabilitation
building. For on-site construction of more than 20,000 square
meters, EC is required and for this, he relied on condition no.
51 of the LOI dated 29.06.2011 and condition no. 38 of the
intimation of approval dated 21.04.2012. While the appellant
made an application for EC in the year 2011, it was granted
only on 28.04.2014. He has submitted that the delay between
2011-2014 was again unavoidable as certain mandatory
permissions were required. Per contra, Mr. Ahmadi submitted
that an EC was not required to commence construction of
the rehabilitation building as the on-site construction did not
exceed 20,000 square meters.
17.2. Upon perusing the record, the AGRC found that the delay was
indeed attributable to the appellant. The High Court also noticed
that the appellant did not commence the construction after
16
Hereinafter, referred to as "EC".
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getting the necessary approvals but waited for the EC. The
High Court also noted that some parts of the project like the
rehabilitation building did not require an EC for commencing
construction.
18. (iii) The third phase of delay relates to the alleged non-cooperation
of certain slum dwellers leading to the stalling of the project from
2014 to 2019. Mr. Sibal submitted that as some of the slum dwellers
were not cooperative, applications under Sections 33 and 38 of the
Act for eviction were made to the Assistant Municipal Commissioner,
MCGM. Initially, the Deputy Collector passed orders on 05.11.2020
observing that the eviction proceedings can be taken forward only
after directions from the High Court and in the meanwhile directed the
appellant to deposit 11 months rent concerning 30 non-cooperating
slum dwellers. These applications under Sections 33 and 38 of the Act
came to be decided only in 2021, and that is how, it is submitted, the
project got delayed for reasons beyond the control of the appellant.
18.1. Mr. Ahmadi submitted that the pendency of the eviction
applications does not justify the extraordinary delay of 5
years on the part of the appellant. Mr.