Bombay High Court orders performance audit of Maharashtra Slum Act, calls 55-year record into question
A division bench of the Bombay High Court has directed the Maharashtra Government to constitute an Expert Committee within four weeks to audit the working of the Maharashtra Slum Areas Act, 1971, finding that despite five decades of operation and continuous amendment, the statute has not delivered on its remedial purpose.
The Bombay High Court has ordered the Government of Maharashtra to constitute an Expert Committee within four weeks to conduct a performance audit of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. The division bench of Justices G.S. Kulkarni and Advait M. Sethna, hearing a suo motu writ taken up after the Supreme Court’s direction in Yash Developers v. Harihar Krupa Co-operative Housing Society Ltd., recorded that after more than five decades of operation, the Slum Act has not produced a slum-free Maharashtra. Roughly 41.3% of Mumbai still lives in slums.
The order, running across several connected matters tagged with the suo motu writ, is unusual in scope. The bench did not strike anything down. It did not direct any new acquisition or rehabilitation. Instead it laid out, issue by issue, fifteen structural fault-lines in how the Slum Act is being implemented — from how land is declared slum land, to how eligibility is recorded, to how developers are picked, to how density caps are set — and asked the State to put an expert committee on each of them.
The Expert Committee is to comprise town planners, two representatives from the Municipal Corporation of Greater Mumbai and one from Pune, an officer from the Directorate of Town Planning, two independent architects, the Principal Secretary of the Urban Development Department, an Additional Principal Secretary nominated by the Chief Secretary, and two expert public representatives. It is to submit a report within ten months. The State Government will then consider its recommendations.
How the audit was ordered
The audit did not begin in the High Court. It began in the Supreme Court, in Yash Developers, reported at (2024) 9 SCC 606. There, the Supreme Court flagged eight issues with the working of the Slum Act and directed the Chief Justice of the Bombay High Court to constitute a special bench to review the statute, hear stakeholders, and recommend reforms to the State. The Chief Justice constituted the present division bench, which heard amici curiae, slum dwellers’ groups, NGOs, urban planners, developer associations, landowners, and the State over an extended period.
Justice G.S. Kulkarni, who authored the order, traced the long arc of judicial concern. The Slum Act was described as far back as 1980, in State of Maharashtra v. Mahadeo Pandharinath Dhole, as an “intermediary remedial measure.” Yet, as the bench noted, that intermediate has hardened into a permanent regime, with slum populations growing rather than receding, and rehabilitation projects sliding into commercial real-estate transactions.
The bench drew on a chain of earlier decisions — Sara Harry D’Mello on Section 14 acquisition, Indian Cork Mills on landowner participation, Susme Builders on SRA powers under Section 13(2), and Jilani Building, whose February 2022 freeze on slum redevelopment on government and public land the present order expressly reaffirms.
The fifteen issues, mapped
The Supreme Court’s reference flagged eight issues. The Bombay High Court extended the list to fifteen as the hearings progressed. The recurring theme across the bench’s observations is that the existing framework runs on circulars and discretion rather than on a stable statutory mechanism.
On slum identification, the bench held that declaration of land as slum land must be data-driven, not circular-driven. On Annexure-II eligibility — the document that records who counts as a slum dweller for rehab purposes — the bench observed that the present process is too slow, too contested, and too easily reopened. It recommended a GIS- and biometric-backed system, with eligibility frozen once determined, and called for circulars to be replaced by a statutory mechanism.
On cut-off dates, the bench was emphatic. They must be absolutely frozen. Encroachers who arrive after the cut-off cannot be eligible for rehabilitation, on private or public land. On public lands, where redevelopment has not commenced, recovery is to be pursued; the Jilani Building freeze of February 2022 stands.
On density, the bench accepted Mr. Navroz Seervai’s submission that the present cap of 650 tenements per hectare under Reg. 33(10) VII 3.8 of the DCPR, with discretionary reductions to 500, sits well above the DCPR 2034 norm of 450 per hectare for general housing. It recommended a 600/hectare maximum, replacing the existing minimum-density logic with a maximum-density logic — a reversal that, if accepted, would change how SRA buildings are designed.
On vertical slums, the bench was blunt. Rehab buildings that fail on light, ventilation, parking, open spaces and play areas are slums in the sky. It directed compliance with NBC 2016 (Part 3) and asked that the urban-planning critique made by the late Shirish Patel, articulated through Mr. Shiraz Rustomjee, be treated as part of the record.
Builders, financiers, and the structural critique
The bench’s sharpest passages concern who has captured the Slum Act. Developer selection, it said, must be by objective criteria: slum size, built-up area, project cost, density, net worth, track record, as contemplated by DCPR Cl. 3.1.2(a). “By-night” developers using power-of-attorney to flip projects are to be disallowed. A Special Committee must certify quality of construction, with at least ten-year accountability. SRA, the bench said, should adopt a digitalised single-window clearance platform, taking a leaf out of the Municipal Corporation of Greater Mumbai’s system.
On TDR — the transferable development rights instrument that has driven much of Mumbai’s skyline — the bench held that TDR generated by slum projects should be confined to slum redevelopment, to maintain density discipline. SRA, it suggested, could operate a slum TDR bank. Discretionary CEO-SRA concessions and premiums must stop.
On apportionment between rehab and free-sale components, the bench resisted a rigid statutory ratio. Planning freedom under Reg. 17(3)(d) of the DCPR 2034 is to be preserved. But the free-sale component, the bench warned, cannot be unjustly enriched at the expense of the slum dweller, who occupies a weak and exploitative position in this market.
On financing disputes — the kind that surfaced in New Janta SRA CHS and Paramvir Developers, where a stalled project leaves a society stranded between developer and financier — the bench called for a regulatory framework. Removal under Section 13, it said, is too blunt a tool to manage inter se disputes.
The constitutional frame
Throughout the order, the bench leaned on the Supreme Court’s articulation in Yash Developers that constitutional courts have a facilitative role beyond pure judicial review: they audit the working of welfare statutes and nudge legislative and executive reform. The High Court, the bench observed, is uniquely placed to see systemic fault-lines because the disputes converge on it.
The order locates that facilitative role within Article 21, the directive principles in Articles 38, 39, 43 and 47, and the property protection in Article 300-A. The bench noted that the State has neglected to safeguard public lands from encroachment, that private interests have dominated rehabilitation, and that rehabilitation has been treated as a real-estate transaction rather than a welfare obligation. The result, the order records, is irreparable damage to Mumbai.
The bench was careful about its own limits. It cannot legislate. What it can do is compel an honest audit. The Expert Committee’s report, when it lands, will go to the State Government for consideration. The bench did not retain seisin over the audit.
Outcome
The State Government is directed to constitute the Expert Committee within four weeks. The Committee is to submit its report within ten months. The chart of suggestions prepared by the amici is attached to the order and forms part of the judgment.
The suo motu proceedings stand concluded. All interim applications in the suo motu writ are disposed of. The other writ petitions, contempt petitions and connected matters that had been tagged with the suo motu — including PILs 83 of 2019 and 109 of 2019, Writ Petitions 1292 of 2018, 26454 of 2023, 3571 of 2023, 115 of 2024, and the contempt petitions filed in 2023 and 2024 — are to be placed before the Regular Bench.
The Jilani Building freeze on slum redevelopment on government and public lands, in place since February 2022, stands reaffirmed.