# AHMEDABAD MUNICIPAL CORPORATION v. NAWAB KHAN GULAB KHAN AND ORS

- **Citation:** [1996] Supp. 7 S.C.R. 548
- **Court:** Supreme Court of India
- **Decided:** 1996-10-11
- **Case number:** Civil Appeal No. 12992 of 1996
- **Bench:** K. Ramaswamy, G.B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ahmedabad-municipal-corporation-v-nawab-khan-gulab-khan-and-ors-14882
- **Pages:** 30

## Headnote

Constitutio11 of I11dia, 1950: Articles 19(1)(e) and 21.
Pavement-Dwellers-U11authorised encroachme11ts of pavements--
C Evictio11 of-Principles of Natural Justice-Complia11ce with-Removal of
such e11croachments--By Municival Co1poration-Held : such unauthorised
1:ncroachme11ts affected pedestliallS' light to free passage a11d also created
u11hygmic ecology, traffic hazards and lisk to lives of pedestlia11S-He11ce,
Municipal Corporation mtitled to remove encroachments without any delay,
for, if it allowed encroachers to remai11 for a long pe1iod they might claim of
D semblance of right-But such removal of encroachers must be according to
the procedure which should be just, fair and reaso11able-Such a procedure
should be pragmatic lllld realistic to meet given fact-Situation-If encroachment was of recent origi11 no need to fallow pri11ciples of natural justice-But
if encroachers were settled for a long time 11onnally 11otice of two weeks or JO
E days would be 11ecessary to meet fairness of procedure-Bombay Municipal
CorporationAct, 1955---Bombay Provincial Mu11icipal Corporatio11 Act.
Pavement-Dwellers-Right to shelter-Held : fomzed part of fu11damental rights-Though no person had right to encroach on footpaths,
pavements or public streets, State/Municipal Corporation had constitutionF al/statutory duty to provide housing accommodation to the weaker sectio11s
of society, if necessary by acquiring surplus land under Urban Land Ceiling
Act-However, in all cases of ejectment of encroachers, it was not obligatory
to provide alternative accommodation-No absolute pri11ciple of u11iversal
application could be laid down in this regard and it would depend upon facts
G of each case.
Articles 38, 39, 46, 243-G, 243-W-Pavement-Dwellers-R.ight to shelter-Socio-economic justice for SCs, STs, OBCs, rural and urban pooHlnauthorised encroachment of pavements-Problem of-Held : In view of
constant migration of people from rural to urban areas resulting in mushroom
H growth of slums and encroachment of pavements, Government should pro548
AHMEDABAD MUN. CORPN. v. NAWAB KHAN GULAB KHAN
549
vi de infrastrnctural facilities in rnral areas by proper planning and execuA
tion--Local bodies such as Gram Panchayats, Zila Parishads and
Municipalities should prepare plans in accordance with Articles 243-G and
243-W-Scheme J·or housing accommodation should be evolved for SCs, STs,
OBCs and rnral and urban poor as an integral plan-State should eannark
separate allocation in annual budget for implementation of such a
scheme-Transfer of such housing accommodation allotted to these persons
would be void ab initio--Comprehensive legislation in this regard recommended.
B
Articles 32, 226 and 136-Pavement-Dwellers- Encroacher-Right to
approach court-Held : Encroachers of pavement also have right to approach C
court against their ejectment by Municipal Corporation-Court-Required to
examine if wcroacher had any right to relief-State or local bodies should
assist court by placing factual and legal position.
Administrative Law:
\.
Natural Justice-Audi alteram partem-Applicability of-Held : Grant
of hearing or notice not necessary for undoing an illegality of a recent
origin-High handed and unauthorised acts did not call for opportunity of
hearing which would be a tedious and time consuming process-Only if
illegality was allowed to continue for a long time whereby semblance of right
could be claimed an opportunity of hearing was necessary.
The respondents were pavement-dwellers in unauthorised occupaD
E
tion of footpaths in a main road of the city. The respondents had constructed huts thereon. When the appellant- Corporation sought to remove
their encroachments, the respondents approached the High Court by way F
of a writ petition. The High Court directed the appellant-Corporation not
to remove the respondents' huts until suitable· accommodation was
provided to them. The High Court also further held that before removing
the unauthorised encroachments the procedure of he

## Text

_Characters 0–39,924 of 77,154. This is a partial read: ask again with offset=39924 for what follows._

A
AHMEDABAD MUNICIPAL CORPORATION
v.
NAWAB KHAN GULAB KHAN AND ORS.
OCTOBER 11, 1996
B
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.)
Constitutio11 of I11dia, 1950: Articles 19(1)(e) and 21.
Pavement-Dwellers-U11authorised encroachme11ts of pavements--
C Evictio11 of-Principles of Natural Justice-Complia11ce with-Removal of
such e11croachments--By Municival Co1poration-Held : such unauthorised
1:ncroachme11ts affected pedestliallS' light to free passage a11d also created
u11hygmic ecology, traffic hazards and lisk to lives of pedestlia11S-He11ce,
Municipal Corporation mtitled to remove encroachments without any delay,
for, if it allowed encroachers to remai11 for a long pe1iod they might claim of
D semblance of right-But such removal of encroachers must be according to
the procedure which should be just, fair and reaso11able-Such a procedure
should be pragmatic lllld realistic to meet given fact-Situation-If encroachment was of recent origi11 no need to fallow pri11ciples of natural justice-But
if encroachers were settled for a long time 11onnally 11otice of two weeks or JO
E days would be 11ecessary to meet fairness of procedure-Bombay Municipal
CorporationAct, 1955---Bombay Provincial Mu11icipal Corporatio11 Act.
Pavement-Dwellers-Right to shelter-Held : fomzed part of fu11damental rights-Though no person had right to encroach on footpaths,
pavements or public streets, State/Municipal Corporation had constitutionF al/statutory duty to provide housing accommodation to the weaker sectio11s
of society, if necessary by acquiring surplus land under Urban Land Ceiling
Act-However, in all cases of ejectment of encroachers, it was not obligatory
to provide alternative accommodation-No absolute pri11ciple of u11iversal
application could be laid down in this regard and it would depend upon facts
G of each case.
Articles 38, 39, 46, 243-G, 243-W-Pavement-Dwellers-R.ight to shelter-Socio-economic justice for SCs, STs, OBCs, rural and urban pooHlnauthorised encroachment of pavements-Problem of-Held : In view of
constant migration of people from rural to urban areas resulting in mushroom
H growth of slums and encroachment of pavements, Government should pro548
AHMEDABAD MUN. CORPN. v. NAWAB KHAN GULAB KHAN
549
vi de infrastrnctural facilities in rnral areas by proper planning and execuA
tion--Local bodies such as Gram Panchayats, Zila Parishads and
Municipalities should prepare plans in accordance with Articles 243-G and
243-W-Scheme J·or housing accommodation should be evolved for SCs, STs,
OBCs and rnral and urban poor as an integral plan-State should eannark
separate allocation in annual budget for implementation of such a
scheme-Transfer of such housing accommodation allotted to these persons
would be void ab initio--Comprehensive legislation in this regard recommended.
B
Articles 32, 226 and 136-Pavement-Dwellers- Encroacher-Right to
approach court-Held : Encroachers of pavement also have right to approach C
court against their ejectment by Municipal Corporation-Court-Required to
examine if wcroacher had any right to relief-State or local bodies should
assist court by placing factual and legal position.
Administrative Law:
\.
Natural Justice-Audi alteram partem-Applicability of-Held : Grant
of hearing or notice not necessary for undoing an illegality of a recent
origin-High handed and unauthorised acts did not call for opportunity of
hearing which would be a tedious and time consuming process-Only if
illegality was allowed to continue for a long time whereby semblance of right
could be claimed an opportunity of hearing was necessary.
The respondents were pavement-dwellers in unauthorised occupaD
E
tion of footpaths in a main road of the city. The respondents had constructed huts thereon. When the appellant- Corporation sought to remove
their encroachments, the respondents approached the High Court by way F
of a writ petition. The High Court directed the appellant-Corporation not
to remove the respondents' huts until suitable· accommodation was
provided to them. The High Court also further held that before removing
the unauthorised encroachments the procedure of hearing, consistent with
the principles of natural justice should be followed. Being aggrieved the G
appellant-Corporation preferred the present appeal.
The questions before this Court were (1) Whether the respondents
were liable to ejectment from the encroachments of pavements of the roads
and whether the principle of natural justice, viz., Audi Alteram Partem
required to be followed and, if so, what was its scope and content? (2) H
550
SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A whether the appellant was under an obligation to provide permanent
residence to the hutment dwellers and, if so, what would be the parameters
in that behalf?
B
Allowing the appeal, this Court
HELD: 1.1. Footpath, street or pavement are public property which
are intended to sen•e the convenience of general public. They are not laid
for private use and indeed, their use for a private purpose frustrates the
very object for which they are carved out from portions of public roads.
The main reason for laying out pavements is to ensure that the pedestrians
C are able to go about their daily affairs with a reasonable measure of safety
and security. That facility which has matured into a right of the
pedestrians, cannot be set at naught by allowing encroachments to be made
on the pavements. The claim of the pavement dwellers to construct huts
on the pavement or road is a permanent obstruction to free passage of
D traffic and pedestrians' safety and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose.
Pavement dwellers should allow passing and re-passing by the pedestrians.
No one has a right to make use of a public property for the private purpose
Without the requisite authorisation from the competent authority. Every
municipal Corporation has statutory obligation to provide free flow of
E traffic and pedestrians' right to pass and re-pass freely and safely; as its
concomitance, the Corporation/Municipality have statutory duty to have
the encroachments removed. It would, therefore, be inexpedient to give any
direction not to remove, or to allow the encroachments on the pavements
or footpaths which is a constant source of unhygenic ecology, traffic
. F hazards and risk prone to lives of the pedestrians. Encroachment of public
property undoubtedly obstructs and upsets planned development, ecology
and sanitation. Public property needs to be preserved and protected. It is
but the duty of the State and local bodies to ensure the same. It would,
therefore, be necessary to permit the Corporation to exercise the statutory
G
powers to prevent encroachment of the pavements/footpaths and to
prevent construction thereon and to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or
passing or re-passing by the pedestrians.
Sadan Singh v. New Delhi Municipal Committee & Anr., [1989] 2 SCR
H 1038 and Olga Tellies v. Municipal Corporation of Greater Bombay, [1985)
AHMEDABAD MUN. CORPN. v. NAW AB KHAN GULAB KHAN
551
3 sec 545, followed.
A
1.2. The removal of encroachment needs urgent action. The competent authority should ensure constant vigil on en.croachment of the
public places. Sooner the encroachment is removed when sighted, better
would be the facilities or convenience for passing or rt-passing of the
pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places . On the contrary, the
longer the delay, the greater will be the danger of permitting the
encroachers claiming semblance of right to obstruct removal of the
encroachment. If the encroachment is of a recent origin the need to follow
B
the procedure of principle of natural justice could be obviated in that no C
one has a right to encroach upon the public property and claim the
procedure of opportunity of hearing which would be a tedious and timeconsuming process leading to putting a premium for high-handed and
unauthorised acts of encroachment and unlawful squatting. On the other
hand, if the Corporation allows settlement of encroachers for a long time D
for reasons best known to them, and reasons are not far to seek, then
necessarily a modicum of reasonable notice for removal, say two weeks or
10 days, and personal service on the encroachers or substituted service by
fixing notice on the property is necessary. If the encroachment is not
removed within the specified time, the competent authority would be at
liberty to have it removed. That would meet the fairness of procedure and E 1
principle of giving opportunity to remove the encroachment voluntarily by
the encroachers. On their resistance, necessarily appropriate and
reasonable force can be used to have the encroachment removed. The
Constitution does not put an absolute embargo on the deprivation of life
or personal liberty but such a deprivation must be according to the F
procedure, in the given circumstances, fair and reasonable. To become fair,
just and reasonable, it would not be enough that the procedure prescribed
in law is a formality. It must be pragmatic and realistic to meet the given
fact-situation. No inflexible rule of hearing and due application of mind
can be insisted upon in every or all cases. Each case depends upon its own
backdrop.
G
2.1 • Article 19(1 )(e) of the Constitution provides to all citizens
fundamental rights to travel, settle down and reside in any part of the
Bharat and none have right to prevent their settlement. Any attempt in
that behalf would be unconstitutional. The preamble of the Constitution H
552
SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.
A assures integrity of the nation, fraternity among the people and dignity of
the person tO make India an integrated and united Bharat in a socialist
secular democratic republic. The policy or principle should be such that
everyone should have the opportunity to migrate and settle down in any
part of Bharat where opportunity for employment or better living condiB lions are available and, therefore it would be unconstitutional and impermissible to prevent the persons from migrating and settling at places
where they find their livelihood and means of avocation. The Preamble is
the arch of the Constitution which accords to every citizen of India socioeconomic and political justice, liberties, equality of opportunity and of
status, fraternity, dignity of person in an integrated Bharat. The funC damental rights and the directive principles and the Preamble being trinity
of the Constitution, the right to residence and to settle in any part of the
country is assured to every citizen. In a secular socialist democratic
republic of Bharat hierarchical caste structure, antagonism towards
diverse religious belief and faith and dialectical difference would be
D smoothened and the people would be integrated with dignity of person only
when social and economic democracy is established under rule of law. The
difference due to caste, sect or religion pose grave threat to affinity equality
and fraternity. Social democracy means away of life with dignity of person
as a normal social intercourse with, liberty, equality and fraternity. The
economic democracy implicits in itself that the inequalities in income and
E
inequalities in opportunities and status should be minimised and as far
as possible marginalised. Due to want of facilities and opportunities, the
·right to residence and settlement is an illusion to the rural and urban
poor. Articles 38, 39 and 46 mandate the State, as its economic policy, to
provide socio-economic justice to minimise inequalities in income and in
F
opportunities and status. it positively charges the State to distribute it's
largesse to the weaker sections of the society envisaged in Article 46 to
make socio-economic justice a reality, meaningful and fruitful so as to
, make the. life worth living with dignity of person and equality of status and
to constantly improve excellence. That apart, Section 284(1) of the Act also
. imposes a statutory duty on the Corporation to make provision for accomG modation. This duty is a part of the Constitutional mandate. Under the
Urban Ceiling Act, the excess urban vacant land is earmarked to elongate
the above objective.
2.2. The right to life enshrined under Article 21 includes meaningful
H right to life and not merely animal existence. Right to life would include
-
AHMEDABAD MUN. CORPN. v. NAWAB KHAN GUI.AB KHA."1
553
right to live with human dignity. Right to life has been assured as a basic A
human right under Article 21. Though no person has a right to encroach
and erect structures or otherwise on footpath, pavement or public streets
or any other place reserved or earmarked for a public purpose, the State
has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and
erection of shelter ovt"r their heads to make the right to life meaningful,
effective and fruitful. Right to livelihood is meaningful because no one can
live without means of his living, that is the means of livelihood. The
deprivation of the right to life in that context would not only denude life
of effective content and meaningfulness but it would make life miserable
and impossible to live.
Olga Tellis v. Municipal Corporation of Greater Bombay, [1985) 3 SCC
545; Chameli Singh & Ors. v. State of U.P. & Anr., [1996) 2 SCC 549;
Shantistar Builders v. Narayan Khim/al Totame, [1990) 1SCC520 and P.G.
B
c
Gupta ~· State of Gujarat, [1995) Supp. 2 SCC 182; followed.
D
3.1. Empirical study of urban and rural population in India discloses
that due to lack of civic facilities and means of livelihood people from rural
areas constantly keep migrating to the urban areas resulting in mushroom
growth of slums and encroachment of the pavements/footpaths etc. Therefore, it would be for the Union of India, all the State Governments and the E
planning Commission, which are Constitutional functionaries, to evolve
such policies and schemes as are necessary to provide continuous means
of employment in the rural area so that in the lean period, after agricultural operations, the agricultural labour or the rural poor would fall back
upon those services to eke out their livelihood. The middle class and upper p
middle class people in the rural areas, due to lack of educational and
medical facilities, migrate to the nearby urban areas resulting in constant
increase in urban population. Once infrastructural facilities are provided
by proper planning and execution, necessarily the urge to the migrate to
the urban areas would no longer compel the rural people for their
transplantation in the urban areas. It would, therefore, be for the executive G
to evolve the schemes and have them implemented in letter and spirit.
3.2. The Gram Panchayats, the Zilla Parishads and municipalities
are local bodies. Parts IX and IXA of the Constitution have brought,
through Articles 243 to 243ZG, the Panchayats,, Zilla Parishads and H
554
SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.
A municipalities as constitutional instrumentalities to elongate the socioeconomic and political democracy under the rule of law. Article 243G and
243W enjoin preparation of plans for economic development and social
justice. The State, i.e., the Union oflndia and the State Governments and
the local bodies constitute an integral executive to, implement the directive
B principles contained in Part IV through planned development under the
rule of law."The appellant-Corporation, therefore has Constitutional duty
and authority to implement the directives contained in Articles 38, 39 and
46 and all cognate provisions to make the fundamental rights available to
all the citizens as meaningful. It would, therefore, be the duty of the
appellant-Corporation to enforce the schemes in a planned manner by
C annual budgets to provide right to residence to the poor.
3.3. Courts cannot give direction to implement the scheme with a
particular budget as it being the executive function of the local bodies and
the State to evolve their annual budget. As an integral passing annual
D budget, they should also earmark implementation of socio-economic justice to the poor. The State and consequentially the local authorities, are
charged with the Constitutional duty to provide the weaker sections, in
particular the Scheduled Castes and Scheduled Tribes with socioeconomic and political injustice and to prevent their exploitation and to
E
protect them from injustice. When the State, namely, Union of India or the
appropriate State Government or the local bodies implement these
schemes for housing accommodation of the Scheduled Castes and
Scheduled Tribes or any other schemes, they should, in compliance with
mandates of Articles 46, 39 and 38 annually provide housing accommodation to them within the allocated budget and effectively and sincerely
F implement them using the allocations for the respective schemes so that
the right to residence to them would become a reality and meaningful and
the budget allocation should not either be diverted or used for any other
scheme meant for other weaker sections of the society. Any acts in violation
thereof or diversion of allocated funds, misuse or misutilisation, would be
in negation of constitutional objectives defeating and deflecting the goal
G envisioned in the Preamble of the Constitution. The executive forfeits the
faith and trust reposed in it by Article 261 of the Constitution. Similarly
separate budget would also be allocated to other weaker sections of the
society and the backward classes to further their socio-economic advancement. As a facet thereof, housing accommodation also would be evolved
H and from that respective budget allocation the amount needed for housing
AHMEDABADMUN.CORPN.v. NAWABKHANGULABKHAN
555
a~commodation for them should also be earmarked separately and impleA
mented as an on-going process of providing facilities and opportunities
including housing accommodation to the rural or urban poor and other
backward classes of people.
4.1. The policy of the Government in executing the policies of providing housing accommodation either to the rural poor or the urban poor,
should be such that the lands allotted or houses constructed/plots allotted
be in such a manner that all the sections of the society, Scheduled Castes,
Scheduled Tribes, Backward Classes and other poor are integrated as
cohesive social structure. The expenditure should be met from the respecB
tive budgetary provisions allotted to their housing schemes and in the C
respective proportion be utilised. All of them would, therefore, live in one
locality in an integrated social group so that social harmony, integrity,
fraternity and amity would be fostered, religious and caste distinction
would no longer remain a barrier for harmonised social intercourse and
integration. The facts in this case do disclose that out of 29 encroachers D
who have constructed the houses on pavements, 19 of them have left the
places, obviously due to such pressures and interests of rest have come
into existence by way of purchase. When such persons part with possession
in any manner known to law, the alienation or transfer is opposed to the
Constitutional objectives and public policy. Therefore, such transfers are
void ab initio confering no right, title or interest therein. In some of the E
States law has already been made in that behalf declaring such transfers
as void with power to resume the property and allot the same to other
needy people from these scheme. Other States should also follow the suit
and if necessary the Parliament may make comprehensive law in this
behalf . The Union Law Commission would examine this question.
F
4.2. It is for the Court to decide in exercise of its constitutional power
of judicial review whether the deprivation of life or personal liberty in a
given case is by procedure which is reasonable, fair and just or it is
otherwise. Judicial review is the basic structure of the Constitution. Every
citizen has a fundamental right to redress the perceived legal injury G
through judicial process. The Constitutional Court, therefore, has a Constitutional duty as sentinel quivive to enforce the right of a citizen when
he approaches the Court, the Court is required to examine whether the
encroacher had any right and to what extent he would be given protection
and relief . In that behalf, it is the salutory duty of the State or the local H
556
SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A bodies or any instrumentality to assist the Court by placing necessary
factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the
encroachers have approached the Court would be no ground to dismiss
their cases. The contention of the appellant-Corporation that the intervenB tion of the Court would aid impetus to the encroachers to abuse the
judicial process is untenable. If the appellant-Corporation or any local
body or the State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as an inbuilt fair procedure would be obviated.
C
5.1. It is true that in all cases it may not be necessary, as a condition
for ejectment of the encroacher, that he should be provided with an
alternative accommodation at the expense of the State which if given due
credence, is likely to result in abuse of the judicial process. But no absolute
principle of universal application would be laid in this behalf. Each case
D is required to be examined on the given set of facts and appropriate
direction or remedy be evolved by the Court suitable to the facts of the
case. Normally, the Court may not, as a rule, direct that the encroacher
should be provided with an alternative accommodation before ejectment
when they encroached public properties.
E
F
G
5.2. Since the Municipal Corporation has a constitutional and
statutory duty to provide means for settlement and residence by allotting
the surplus land under the Urban Land Ceiling Act and if necessary by
acquiring the land and providing house sites or tenements, as the case may
be, according to th1! scheme formulated by the Corporation, the financial
condition of the Corporation may also be kept in view but that would not
be a constraint on the Corporation to avoid its duty of providing
residence/plot to the urban weaker sections. It would, therefore, be the duty
of the Corporation to evolve the schemes. In the light of the schemes now
in operation, opportunity should be given to the 10 named petitionerencroachers to opt for any one of the three schemes and the named two
persons who are carrying on commercial activities should immediately
stop the same. If they intend to have any commercial activity or hawking,
it should be availed of as per the directions already issued by this Court
in Maha Gujarat Hawkers Vyapar Mahajan's case and no further modifica-
, tion or any directions contra thereto need to be issued. Out of these 1()
H persons, if they are eligible within the terms of the schemes and would
AHMEDABAD MUN. CORPN. v. NAWABKHAN GULABKHAN [K RAMASWAMY, J.) 557
satisfy the income criterion, they would be given allotment of the sites or A
the tenements, as the case may be, according to their option. In case they
do not opt for any of the schemes, 21 days' notice would be served on them
and other encroachers and they may be ejected from the present encroachment. As regards other persons who have become encroachers by way of
purchase either from the original encroachers or encroached pending writ
petition/appeal in this Court, they are not entitled to the benefits given to B
the, 10 encroachers. As regards those who are eligible according to the
guidelines in the schemes and also fulfil the income criterion, it may be
open to the Corporation to extend the same benefits in either of the three
schemes, if they ,so desire. It is, however, made clear that no specific
direction is being given in this behalf lest it would amount to encouraging C
the people to abuse the judicial process to avail of such a remedy by
encroaching public property.
Maha Gujarat Hawkers Vyapar Mahajans v. Ahmedabad Municipal
Corporation, SLP Nos. 47-51/96, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12992 of
1996.
From the Judgment and Order dated 20.2.91 of the Gujarat High
Court in S.C.A. No. 5351 of 1982.
Arun J aitley, Shakil Ahmed Syed and Ms. Kirti Raval for the Appel-
!ant.
D. Dave, Mrs. K. Sharda Devi, T.R. Andhyarujina and Yashank
D
E
Adhyaru for the Respondents.
F
The Judgment of the Court was delivered by
K. RAMASWAMY, J. Leave granted.
This appeal by special leave arises from the judgment and order G
made on February 20, 1991 by the Gujarat High Court in Special Civil
Application No. 5351 of 1982.
The admitted facts are that 29 persons had filed the writ petition in
the High Court. They are pavement-dwellers in unauthorised occupation
of footpaths of the Rakhial Road in Ahmedabad which is a main road. H
558
SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A They have constructed huts thereon. When the Corporation sought to
remove their encroachments on December 10, 1982, they approached the
High Court under Article 226 of the Constitution. The High Court granted
interim stay of removal of the encroachment. By the impugned judgment,
the High Court directe_d the Municipal Corporation not to remove their
B huts until suitable accommodation was provided to them. The High Court
also further held that before removing the unauthorised encroachments the
procedure of hearing, consistent with the principles of natural justice
should be followed.
We requested Shri Dushyant Dave, the learned senior counsel of the
C Bar to assist the Court as amicus curiae and Smt. K. Sharda Devi has been
assigned as legal Aid counsel to argue on the behalf of the respondents
since they are not appearing either in person or through counsel. By order
dated September 11.1995 this Court directed the appellant thus :
"We think that the Municipal Corporation should frame a Scheme
D
to accommodate them at the alternative places so that the hutmen
can shift their residence to the places of accommodation provided
by the Corporation to have permanent residence. Corporation is
accordingly directed to frame a scheme and place before this Court
within two months from today".
E
F
Pursuant thereto, a Scheme has been framed and placed before this
Court. It would appear that only 10 persons out of original petitioners in
the High Court whose names have been mentioned in the supplementary
affidavit are residing there; of them Nurmahommad Samsuddin and
Hakimuddin Karimudin have converted their huts into commercial units
run on the pavement. This road is 80 feet wide with 10 and 8 feet wide
foot-paths on two sides of the road. At present 56 persons, obviously
including 10 original encroachers are in occupation of hutments erected on
the footpaths and whereabouts of 19 original petitioners who have left the
area in consideration of money they have accepted, are not known. In their
G place, others have occupied the huts by making payments.
Shri Dushyant Dave has also further submitted proposals as alternative to the Scheme. Having heard the counsel on both sides, we reserved
the case for consideration. At the outset, we express our deep appreciation for the valuable assistance rendered by Shri Dushyant Dave and also
H for the fair arguments advanced by Shri Arun J aitley, learned senior
AHMEDABADMUN.CORPN.v. NAWABKHANGUIABKHAN(K.RAMASWAMY,J.] 559
. ·counsel appearing for the Corporation.
The 'questions for consideration are: (1) whether the respondents are
liable to ejectment from the encroachments of pavements of the roads and
whether the principle of natural justice, viz., audi alteram partem requires
to be followed and, if so, what is its scope and content? (2) whether the
appellant is under an obligation to provide permanent residence to the
hutment dwellers and, if so, what would be the parameters in that behalf?
The questions are dealt with later. on the first question, Sections 63(1)(19)
of the Bombay Municipal Corporation Act, 1955 (as applicable to Gujarat)
A
B
or Section 231 of the Bombay Provincial Municipal Corporation Act
(BPMC Act) empowers the Commissioner to remove any wall, fence, C
rail,post, step, booth or other structure or fo.ture, permanent or moveable,
which shall be erected or set up in or upon any street or upon or over any
open channel, drain, well or tank, contrary to the provisions of sub- section
(1) of Section 312 after the same came into force in the city of Ahmedabad
or in the Super-bazars after the Bombay Municipal (Extension of Limits) D
Act, 1950 came into force or in the tended suburbs after the date of the
coming into force of the Bombay Municipal Act, 1955 (for short, the "Act").
The power to remove encroachments on street, pavement or footpath was
conferred upon the Commissioner, the highest officer of the Municipal
Corporation, who acts with high degree of responsibility and duty to
implement the provisions of the Act. Every citizen has a right to pass or
repass on the pavement, street, footpath as general amenity for convenient
traffic. A constitution Bench of this Court in Sadan Singh Etc. Etc. v. New
Delhi Municipal Committee & Anr. Etc., (1989) 2 SCR 1038 was confronted
with and had considered the question "can there be at all a fundamental
right of a citizen to occupy a particular place on the pavement where he
can squat and engage in trading business? We have no hesitation in
answering the issue against the petitioners. The petitioners do have the
fundamental right to carry on a trade or business of their choice, but not
E
F
to do so on a particular place. Hawkers cannot be allowed to, or be
permitted to, carry on trade or business on every road in the city. If the
road is not wide enough to conveniently accommodate the traffic on it, no G
hawking may be permitted at all, or may be sanctioned only once a week,
say on Sundays when the rush considerably thins out." Thereby, this Court
has minimised the hardship to pedestrians and the hawkers in doing their
business by hawking on the public street and at the same time has protected
the public from free passes or re-passes of the traffic on the road, pavement H
560
SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.
A or footpath. In Olga Tellis v. Municipal Corporation of Greater Bombay,
(1985) 3 SCC 545, another constitution Bench had held that "we are,
therefore of the opinion that the procedure prescribed by Section 314 of
the Bombay Municipal Corporation Act for removal of the encroachment
on the footpath over which the public has right of passage cannot be
B
c
D
regarded as unreasonable, unfair or unjust. There is no static measure of
reasonableness which can be applied to all situations alike. Indeed, the
question "Is this procedure reasonable?" implies and postulates the inquiry
as to whether the procedure prescribed is reasonable in the circumstances
of the case."
It is for the Court to decide in exercise of its constitutional power of
judicial review whether the deprivation of life or personal liberty in a given
case is by procedure which is reasonable, fair and just or it is otherwise.
Footpath, street or pavement are public property which are intended to
serve the convenience of general public. They are not laid for private use
and indeed, their use for a private purpose frustrates the very object for
which they are carved out from portions of public roads. The main reason
for laying out pavement is to ensure that the pedestrians are able to go
about their daily affairs with a reasonable measure of safety and security.
That facility, which has matured into a right of the pedestrians, cannot be
set at naught by allowing encroachments to be made on the pavements.
E The claim of the pavement dwellers to construct huts on the pavement or
road is a permanent obstruction to free passage of traffic and pedestrians'
safety and security. Therefore, it would be impermissible to permit or to
make use of the pavement for private purpose. They should allow passing
and re-passing by the pedestrians. No one has a right to make use of a
F
public property for the private purpose without the requisite authorisation
from the competent authority. It would, therefore, be but the duty of the
competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or
re-passing by the pedestrians.
G
This view firmly laid down by this Court in Olga Tellis case thus :
"No person has a right to encroach by erecting a structure or
otherwise on footpaths and pavements or other place reserved or
earmarked for a public purpose like (for e.g. garden or
H
playground) and that the provision contained in Section 314 of the
,I
AHMEDABAD MUN. CORPN. v. NA WAB KHAN GUIAB KHAN [K. RAMASWAMY, J.) 561
Bombay Municipal Corporation Act is not unreasonable in the A
circumstances of the case."
The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according
to the procedure; in the given circumstances, fair and reasonable. To B
become fair, just and reasonable, it would not be enough that the
procedure prescribed in law is a formality. It must be pragmatic and
realistic to meet the given fact-situation. No inflexible rule of hearing and
due application of mind can be insisted upon in every or all cases. Each
case depends upon its own backdrop. The removal of encroachment C
needs urgent action. But in this behalf what requires to be done by the
competent authority is to ensure constant vigil on encroachment of the
public places. Sooner the encroachment is removed when sighted, better
would be the facilities or convenience for passing or re-passing of the
pedestrians on the pavements or footpaths facilitating free flow of D
regulated traffic on the road or use of public places. On the contrary,
the longer the delay, the greater will be the danger of permitting the
encroachers claiming semblance of right to obstruct removal of the
encroachment. If the encroachment is of a recent origin the need to follow
the procedure of principle of natural justice could be obviated in that no
one has a right to encroach upon the public property and claim the
procedure of opportunity of hearing which would be a tedious and timeconsuming process leading to putting a premium for high-handed and
unauthorised acts of encroachment and unlawful squatting. On the other
hand, if the Corporation allows settlement of encroachers for a long time
for reasons best known to them, and reasons are not far to seek, then
necessarily a modicum of reasonable notice for removal, say two weeks
or 10 days, and personal service on the encroachers or substituted service
E
F
by fixing notice on the property is necessary. If the encroachment is not
removed within the specified time, the competent authority would be at
liberty to have it removed. That would meet the fairness of procedure G
. and principle of giving opportunity to remove the encroachment by the
encroachers. On their resistance, necessarily appropriate and reasonable
force can be used to have the encroachment removed. Thus considered,
we hold that the action taken by the appellant-Corporation is not violative
of the principle of natural justice.
H
562
SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A
It is not in dispute that Rakhial Road is one of the important main
B
road in the city of appellant-Corporation and it needs removal of encroachment for free passing and re-passing of the pedestrians on the pavements/footpaths. But the question is: whether the respondents are entitled
to alternative settlement before ejectment of them?
Article 19(1)( e) accords right to residence and settlement in any part
. of India as a fundamental right. Right to life has been assured as a basic
human right under Article 21 of the Constitution of India. Article 25(1) of
the Universal Declaration of Human Rights declares that everyone has the
right to standard of living adequate for the health and well-being of himself
C and his family; it includes food, clothing, housing, medical care and neces-
. sary social services. Article 11(1) of th~ International Covenant on
Economic, Social and Cultural Rights lays down that State parties to the
' Covenant recognise that everyone has the right to standard of living for
himself and his family including food, clothing, housing and to the conD tinuous improvement of living conditions. In Chameli Singh & Ors. v. State
of U.P. & Anr., [1996] 2 SCC 549, a Bench of three Judges of this Court
had considered and held that the right to shelter is a fundamental right
available to every citizen and it was read into Article 21 of the Constitution
of India as encompassing within its ambit, the right to shelter to ma.ke the
right to life more meaningful. In paragraph 8 it has been held thus :
E
F
"In any organised society, right to live as a human being is not
ensured by meeting only the animal needs of man. It is secured
only when he is assured of all facilities to develop himself and is
freed from restrictions which inhibit his growth. All human rights
are designed to achieve this object. Right to live guaranteed in any
civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human
rights known to any civilised society. All civil, political, sociel and
cultural rights enshrined in the Universal Declaration of Human
G
Rights and Convention or under the Constitution of India cannot
be exercised without these basic human rights. Shelter for a human
being, therefore, is not a mere protection of his life and limb. It is
home where he has opportunities to grow physically, mentally, _
intellectually and spiritually. Right to shelter, therefore, includes
H
adequate living space, safe and decent structure, clean and decent
AHMED ABAD MUN. CORPN. v. NA WAB KHAN GUIAB KHAN (K RAMASWAMY, J.) 563
surroundings, sufficient light, pure air and water, electricity, sanitaA
tion and other civic amenities like roads etc. so as to have easy
access to his daily avocation. The right to shelter, therefore, does
not mean a mere right to a roof over one's head but right to all
the infrastructure necessary to enable them to live and develop as
a human being~ Right to shelter when used as an essential requisite B
to the right to live should be deemed to have been guaranteed as
a fundamental right. As is enjoined in the Directive Principles, the
State should be deemed to be under an obligation to secure it for
its citizens, of course subject to its economic budgeting. In a
democratic society as a member of the organised civil community C
one should have permanent shelter so as to physically, mentally
and intellectually equip oneself to improve his excellence as a
useful citizen as enjoined in the Fundamental Duties and to be a
useful citizen and equal participant in democracy. The ultimate
object of making a man equipped with a right to dignity of person D ·
and equality of status is to enable him to develop himself into a
culture being. Want of decent residence, therefore, frustrates the
very object of the Constitutional animation of right to equality,
economic justice, fundamental right to residence, dignity of person
and right to live itself."
Socio-economic justice, equality of status and of opportunity and
dignity of person to foster the fraternity among all the sections of the
society in an integrated Bharat is the arch of the Constitution set down in
its preamble. Articles 39 and 38 enjoins the State to provide facilities and
opportunities.