The Supreme Court on Wednesday asked all states and Union territories to consider a representation seeking framing of uniform policy for regularisation and demolition of long-standing unauthorised constructions across the country.
The order was passed by the top court while declining to entertain a PIL filed by Centre for Law and Good Governance seeking directions to the Centre and all the states for framing such a policy to save unauthorised dwelling units of poor persons, saying that this issue largely falls within the policy domain of state governments and local authorities.
A bench comprising Chief Justice Surya Kant and justices Joymalya Bagchi and V Mohana said that circumstances and ground realities vary from state to state, making it neither feasible nor prudent for the court to prescribe a single policy framework for the entire country.
"It would be difficult and may not be prudent for this court to lay down a uniform policy framework to be applied across various states," the bench said.
The court, however, said states and Union territories could consider the issues raised in the petition while formulating new policies or revisiting their existing frameworks.
"We are hopeful that due consideration shall be given to all such issues by the competent authorities," the bench said in its order.
The petition pointed out that settlement and regularisation schemes have been introduced in states such as Andhra Pradesh and Telangana, as well as in Delhi.
It, however, alleged that in several instances, unauthorised colonies and structures were demolished suddenly, sometimes without adequate notice and without any rehabilitation or welfare mechanism for affected families.
The PIL said that demolition is an extreme and irreversible measure and therefore cannot be undertaken without a policy that balances enforcement of planning and land-use laws with the constitutional rights to shelter, livelihood and dignity under Article 21.
The counsel for the petitioner said that state governments follow inconsistent approaches towards unauthorised constructions.
According to the plea, demolitions are at times carried out in a hurried, erratic and unsystematic manner.
The counsel said that authorities sometimes assure residents that unauthorised structures would be regularised, while simultaneously collecting municipal and property taxes and permitting access to civic amenities such as electricity.
After 40-50 years, residents may be told that their structures are illegal and face demolition without any assessment of whether alternative accommodation is available.
The plea urged the bench to examine the issue from a human-rights perspective, particularly in cases involving families who have remained in possession of properties or colonies for decades.
The CJI pointed out that the Supreme Court had already laid down comprehensive safeguards against illegal and unauthorised demolitions.
The counsel said that the existing judicial directions were inconsistent.
He referred to an earlier three-judge bench ruling recognising the right to shelter as part of the right to live with human dignity, while citing a July 14 judgement holding that the long-standing existence of a colony by itself does not create a legal right and that mere passage of time or administrative inaction does not cure an illegality.
The bench said a court-appointed committee could not substitute the powers vested in state governments and municipalities to enforce the law.
It also reiterated that the Supreme Court had already issued safeguards aimed at preventing sudden and arbitrary demolitions.
"This court's humanist jurisprudence, beginning with Olga Tellis, recognises that a person in settled possession cannot be dispossessed without due process. This court has also directed that even a rank unauthorized occupant must ordinarily be given at least 15 days' notice before demolition," the CJI said.
Justice Bagchi said the issues raised in the plea would have to be assessed on a case-by-case basis and could not necessarily be resolved through a single policy framed by the court.
Justice Bagchi said the prayers in the petition were framed too broadly and could result in the court entering the executive's policy domain.
The bench also noted that unauthorised construction does not always involve economically vulnerable residents, with some structures being raised for commercial or profit-making purposes.
"There are also situations where large numbers of economically marginalised people occupy tracts of land and require alternative accommodation... This calls for a policy decision. We cannot prevent the state from adopting a particular policy," the bench said.