# OLGA TELLIS & ORS v. BOMBAY MUNiCIPAL CORPORATION & ORS. ETC

- **Citation:** [1985] Supp. 2 S.C.R. 51
- **Court:** Supreme Court of India
- **Decided:** 1985
- **Case number:** writ petitions Nos.5068-79 of 1981
- **Bench:** Y.V. Chandrachud, c.J.' s. MURTAlA FAZAL ALI, v.D. TULZAPURKAR, B O. Chinnappa Reddy, A. Varadarajan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/olga-tellis-ors-v-bombay-municipal-corporation-ors-etc-9232
- **Pages:** 49

## Headnote

Constitution of India, 1950 :
Article · 32 -
Fundamental Rights -
Estoppel -
Pdnciple
behind - No estoppel can be claimed against enforcement of FundaC
mental Rights.
Article 21, 19(1) (e) & (g) - Pavement and slum dwellers -
Forcible eviction and removal of their hutments under Bombay
Municipal Corporation Act -
Whether deprives them of their means
of livelihood and consequently right to life - Right to life -
Meaning of - Whether includes right to livelihood·
Article 32 & 21 - Writ Petition against procedurally ultra
vires Government action - Whether manintainable.
Bombay Municipal Corporation Act, 1888, s.314 - Power to
D
remove encroachments "without notice", when permissible - Section
E
- Whether ultra vires the Constitution.
Administrative Law - Natural Justice - Audi alteram partem
- Notice - Discretion to act with or without notice must be exercised reasonably, fairly and justly - Natural justice - Exclusion
- How far permissible.
F
The petit:f,oners in writ petitions Nos. 4610-12/8.1 live on
pavements and in slums in the cii:y of Bombay.
Some of the petitioners in the second batch of writ petitions Nos.5068-79 of
1981, are residents of Kamraj Nagar, a basti or habitation which
is alleged to have come into existence in about 1960-61, near
G
the Western Express Highway, Bombay, while others are residing in
structures ·constructed off the Tulsi Pipe Road,
Mahim,
Bombay.
The Peoples Union for Civil Liberties, Committee for th~ Protection of Democratic Rights and two journalists have also joined in
the writ petitions.
..
H
52
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
Some time in 1981, the respondents - State of Maharashtra
and Bombay Municipal Corporation took a decision that all pavement dwellers and the slum or busti dwellers
in the city of
Bombay will be evicted forcibly and deported to their respective,
places of origin or removed to places outside the city of Bombay.
Pursuant to that decision, the pavement dwellings of some of the
B
petitioners were in fact demolished by the Bombay Municipal Corporation.
Some of the petitioners challenged the aforesaid decision of the respondents in the High Court. The petitioners conceded before the High Court that they could not claim any fundamental right to put up huts on pavements or public roads, and
also gave an undertaking to vacate the huts on or before October,
15, 198i.
On such undertaking being given, the respondents
c
agreed that the huts will not be demolished until October 15,
1981 and the writ petition was disposed of accordingly.
D
E
F
G
fl
In writ petitions filed under Article 32, the petitioners
>--
challenged the decision of the respondents to demolish the pavement dwellings and the slum hutments on the grounds (i) that
evicting a pavement dweller from his habitat amounts to depriving
him of his right to livelihood, which is comprehended in the
right guaranteed by
Article
21
of the Constitution that no
person shall be deprived of his life except according to procedure established by law, (ii) that the impugned action of the
State Government and the Bombay Municipal Corpoation is violative
of the provisions contained in Article 19(1)(3), 19(l)(g) and 21
of the Constitution, (iii) that the procedure prescribed by
Section 314 of the Bombay Municipal Corporation Act, 1888 for the
removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a
notice before the
removal of an encorachment but, expressly
enables that the Municipal Collllllissioner may cause the encroachments to be removed "without notice", (iv) that it is constitutionally impermissible to characterise the· pavement dwellers as
'tresspassers', because their occupation of pavements arises Crom
economic compulsions; and (v) that the Court must determine the
content of the 'right to life', the function of property in a
welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep

## Text

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51
OLGA TELLIS & ORS.
A
v.
BOMBAY MUNiCIPAL CORPORATION & ORS. ETC.
JULY, 10, 1985
[Y.V. CHANDRACHUD, c.J.' s. MURTAlA FAZAL ALI, v.D. TULZAPURKAR,
B
O. CHINNAPPA REDDY AND A. VARADARAJAN, JJ. j
Constitution of India, 1950 :
Article · 32 -
Fundamental Rights -
Estoppel -
Pdnciple
behind - No estoppel can be claimed against enforcement of FundaC
mental Rights.
Article 21, 19(1) (e) & (g) - Pavement and slum dwellers -
Forcible eviction and removal of their hutments under Bombay
Municipal Corporation Act -
Whether deprives them of their means
of livelihood and consequently right to life - Right to life -
Meaning of - Whether includes right to livelihood·
Article 32 & 21 - Writ Petition against procedurally ultra
vires Government action - Whether manintainable.
Bombay Municipal Corporation Act, 1888, s.314 - Power to
D
remove encroachments "without notice", when permissible - Section
E
- Whether ultra vires the Constitution.
Administrative Law - Natural Justice - Audi alteram partem
- Notice - Discretion to act with or without notice must be exercised reasonably, fairly and justly - Natural justice - Exclusion
- How far permissible.
F
The petit:f,oners in writ petitions Nos. 4610-12/8.1 live on
pavements and in slums in the cii:y of Bombay.
Some of the petitioners in the second batch of writ petitions Nos.5068-79 of
1981, are residents of Kamraj Nagar, a basti or habitation which
is alleged to have come into existence in about 1960-61, near
G
the Western Express Highway, Bombay, while others are residing in
structures ·constructed off the Tulsi Pipe Road,
Mahim,
Bombay.
The Peoples Union for Civil Liberties, Committee for th~ Protection of Democratic Rights and two journalists have also joined in
the writ petitions.
..
H
52
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
Some time in 1981, the respondents - State of Maharashtra
and Bombay Municipal Corporation took a decision that all pavement dwellers and the slum or busti dwellers
in the city of
Bombay will be evicted forcibly and deported to their respective,
places of origin or removed to places outside the city of Bombay.
Pursuant to that decision, the pavement dwellings of some of the
B
petitioners were in fact demolished by the Bombay Municipal Corporation.
Some of the petitioners challenged the aforesaid decision of the respondents in the High Court. The petitioners conceded before the High Court that they could not claim any fundamental right to put up huts on pavements or public roads, and
also gave an undertaking to vacate the huts on or before October,
15, 198i.
On such undertaking being given, the respondents
c
agreed that the huts will not be demolished until October 15,
1981 and the writ petition was disposed of accordingly.
D
E
F
G
fl
In writ petitions filed under Article 32, the petitioners
>--
challenged the decision of the respondents to demolish the pavement dwellings and the slum hutments on the grounds (i) that
evicting a pavement dweller from his habitat amounts to depriving
him of his right to livelihood, which is comprehended in the
right guaranteed by
Article
21
of the Constitution that no
person shall be deprived of his life except according to procedure established by law, (ii) that the impugned action of the
State Government and the Bombay Municipal Corpoation is violative
of the provisions contained in Article 19(1)(3), 19(l)(g) and 21
of the Constitution, (iii) that the procedure prescribed by
Section 314 of the Bombay Municipal Corporation Act, 1888 for the
removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a
notice before the
removal of an encorachment but, expressly
enables that the Municipal Collllllissioner may cause the encroachments to be removed "without notice", (iv) that it is constitutionally impermissible to characterise the· pavement dwellers as
'tresspassers', because their occupation of pavements arises Crom
economic compulsions; and (v) that the Court must determine the
content of the 'right to life', the function of property in a
welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep
of the right to reside and settle in any part of the territory of
India which is guaranteed by Article 19(1) (a) and the right to ·
carry on any occupation, trade or business which is guaranteed by
Article 19(1) (g), the competing claims of pavement dwellers on
the one hand and of the pedestrians on the other and, the larger
question of ensuring equality before the law.
...
OLGA TELLIS v. BOMBAY MUNICIPAL CORPN.
53
The respondents contested the writ petitions contending
that (1) the petitioners must be estopped from contending in the
Supreme Court that the huts constructed by them on the pavements
csnnot be demolished because of their right to livelihood, .si~
they had conceded in the High Court that they did not clsim any
fundamental right to put up huts on pavements or public roads and
had given an undertaking to the High Court that they will not
obstruct the demolition of the huts after October 15, 1981.; (2)
that no person has any legal right to encroach upon or to
construct anY structure on a foot-path, public street or on any
place over which the public has a right of way.
The
right
conferred by Article 19(1) (e) of the Constitution to reside and
settle in anY part of lndia cannot be resd to confer a licence to
encroach
and trespass upon public property;
(3) that the
provisions of sections 312, 313 and 314 of the Bombay Municipal
Corporation Act do not violate the Constitution, but
are
conceived in
public interest and great care is taken by the
authorities to ensure that no harrasment is caused to any
pavement dweller by enforcing the provisions; (4) that the huts
near the Western
Express Highway, Vile
Parle, Bombay, were
constructed on an accessory road which is a part of the Highway
itself, and were never regularised by the .Corporation and no
registration numbers
were assigned
to them;
(5)
that no
deprivation of life, either directly or indirectly is involved in
the eviction of the slum and pavement-dweller from public places.
The Municipal Corporation is under an obligation under section
314 of the B.M.C. Act to remove obstruction on pavements, public
streets and other public places.
The petitioners have not only
violated the provisions of the Bombay Municipal Corporation Act,
but they have contravened sections 111 and 115 of the Bombay
Police Act also.
Disposing of the writ petitions,
llKLD:
1.1 The petitions are clearly maintainable under
Article 32 of the Constitution. Where the action taken against a
citizen is procedurally ultra vires, the aggrieved party can move
the Supreme Court under Article 32. [79 C-il]
Maresh Shridhar Hirajkar v. State of llaharashtra [1966] 3
s.c.&. 744-770, followed.
Smt;. Ujjam Bai v. State of Uttar Pardesh· [1963] 1 s.c.R.
778, referred to.
A
B
c
D
E
F
G
H
54
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
1.2 There can be no estoppel against the Constitution. The
Constitution is not only the paramount law of the land but, it is
the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public
purpose. The doctrine of estoppel is based on the principle that
consistency in word and action imparts certainty and honesty to
B
htunan affairs. If a person makes representation to another, on
the faith of which the latter acts to is prejudice, the former
cannot resile from the representation made by him. He orust make
it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental
rights. [77 C-E]
C
1. 3 Fundamental rights are undoubtedly conferred by the
Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated.
But, the high
purpose which the Constitution seeks to achieve by conferment of
fundamental rights is not only
to benefit individuals but to
secure the larger interests of the community.
The Preamable of
the Constitution says that India is a democratic Republic. It is
D
in order to fulfil the promise of the Preamble that fundamental
rights are conferred by the Constitution, some on citizens like
tnose guaranteed by Articles 15, 16, 19, 21 and 29 and, some on
citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can
barter away the freedoms conferred upon him by the Constitution.
E
A concession made by him in a proceedings, whether under a mistake of law or otherwise, that he does not possess or will not
enforce any . particular fundamental right, cannot create an
estoppel against him in that or any subsequent proceedings. Such
a concession, if enforced, would defeat the purpose of the Cons-
, titution. [77 F-H, 78 A-BJ
F
The plea of estoppel is closely connected with the plea of
waiver, the· object of both being to ensure bona fides in day-today transactions. [78 DJ
In the instant case, notwithstanding the fact that the
G
petitioners had conceded in the Bombay High Court that they have
no fundamental right to construct hutments on pavements and that
they will not object to their demolition after October 15, 1981,
they are entitled to assert that any such action on the part of
public authorities will be in violation of their fundamental
rights.
How far the argUment regarding the existence and scope
H
of the right claimed by
the petitioners is well-founded is
OLGA TELLIS v. BOMBAY MUNICIPAL CORPN.
55
another matter. But, the argument baa to be examined despite the
A
concession. [78 C-D]
Basheshar Nath v. The Coalllissioner of Income Tax Delhi
(1959) Supp. l s.c.R. 528, referred to.
2.1 The sweep of the right to life conferred by Article 21
B
is wide and far reaching.
It does not mean merely. that life
cannot be extinguished . or taken away as, for example, by the
impo~ition and execution of the death sentence, except according
to procedure established by law.
That is but one aspect of the
right to life.
An equally important facet of that right is the
right to livelihood because, no person can live without the means
c
of living, that is, the.means of livelihood.
If the right to
livelihood is not treated as a part of the constitutions! right
to life, the easiest way of depriving a person of his right to
life would be to deprive him of his means of livelihood to the
point of abrogation.
Such deprivation would not only denude the
life of its effective content and meaningfulness but it would
o
make life impossible to live.
And yet, such deprivation would
not have to be in accordance with the procedure established by
law, if the right to livelihood is not regarded as a part of the
right to life.
That, which alone makes it possible to live,
leave aside what makes like livable, nrust be deemed to be an
integral compone~t of the right to life. (79 F-il, 80 A-BJ
2.2 The principles contained in Articles 39(a) and
41 nrust
be regarded as equally fundamental in the understanding and
interpretation of the meaning and content of fundamental rights.
If there is an obligation upon the State to secure to the
citizens an adequate means of livelihood and the right to work,
E
it would be sheer pendantry to exclude the right to livelihood
F
from the content of the right to life.
The State may not, by
affirmative action, be compellable to provide adequate means of
livelihood or work to the citizens.
But, any person who is
deprived of his right to livelihood except according to just and
fair procedure established by law, can challenge the deprivation
as offending the right to life conferred by Article 21. [80 G-11,
G
81 Aj
Mwm v. Illinois [1877] 94 US 113 and Kharak Singh v. Die
State of u.p. [1964] l s.c.R. 332 referred to.
In Be: Sant Ram (1960) 3 s.c.a. 499, distinguished.
H
56
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
2.3 In a matter like the one in which the future of half of
the city's population is at stake, the Court must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be
reached and a satisfactory solution found· ft would be unrealistic on the part of the Court to reject the petitions on the
B
ground that the petitioners have llOt adduced evidence to show
that they will be rendered jobless if they are evicted from the
sluma and pavements. Common sense, which is a cluster of life's
experiences, is often more dependable than the rival facts
preaented by warring litigants. (82 B-C]
In the instant case, it is clear from the various expert
C
studies that one of the main reasons of the emergence and growth
of squatter-settlements in big Metropolitan cities like Bombay,
is the availability of job opportunities which are lacking in the
rural sector. The undisputed fact that even after eviction, the
squatters return to the cities affords proof of that position.
These facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in sluma
D
and on pavements because they have small jobs to nurse in the
city and .there is nowhere else to live. Evidently, they choose a
pavement or a slum in the vicinity of their place of work, the
time otherwise taken in commuting and its cost being forbidding
for their slender means.
To lose the pavement or the slum is to
lose the job. The conclusion, therefore, in terms of the constiE
tutional phraseology is that the eviction of the petitioners will
lead to deprivation of their livelihood and consequently to the
deprivation of life. [82 D, 83 B-D]
3.1 The Constitution does not put an absolute embargo on the
deprivation of life or personal liberty. It is far too wellF
settled to admit of any argument that the procedure prescribed
by law for the deprivation of the right conferred by Article 21
must be fair, just and reasonable. Just as a mala fide act has
no existence in the eye of law,
even so, --UO:X:eMOii.ableness
vitiates law and procedure alike· It is therefore essential that
the procedure prescribed by law for depriving a person of his
G
fundamental right, must conform to the means of justice and £airplay. Procedure, which is unjust or unfair in the circumstances
of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the
action taken under it. Any action taken by a public authority
which is• invested with statutory powers has, therefore, to be
H
tested by the application of two standards:
The action must be
OLGA TELLIS v. BOMBAY MUNICIPAL CORPN.
57
within the scope of the authority conferred by law and secondly,
A
it IDUSt be reasonable. If any action, within the scope of the
authority conferred by law, is found to be unreasonable, it 1DUSt
mean that the proced11Ie established by law under which that
action is taken is itself unreasonable. The substance of the law
cannot be divorced from the procedure which it prescribes for,
how reasonable the law is, depends upon how fair is the proceB
dure prescribed by it. [83 E, 85 F-ti, 86 A]
3.2 In order to decide whether the procedure prescribed by
section 314 is fair and reasonable, the Court 1DUSt first determine the true meaning of that section because, the meaning of the
law determines ,its legality. ·Considered in its .proper perspectc
ive, section 314 is in the nature of an enabling provision and
not of a compulsive character.
It enables the Commissioner in
appropriate cases, to dispense with previous notice to persona
who are likely to be affected by the proposed action. It does
__,
not require and, cannot be read to mean that, in total disregard
of the relevant circumstances pertaining to a given situation,
D
the Commissioner 1DUSt cause the removal of an encroachment without issuing
previous notice.
The priiDary rule of construction
is that the language of the law IDUSt receive its plain and
natural meaning. What section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed.
It does not COlllllSnd that the Commissioner, shall without noice,
cause an encroachment to be removed.
Putting it differently,
E
section 314 confers on the COlllldssioner the discretion to cause
an encroachment to be removed with or without notice.
That
discretion has to be exercised in a reasonable manner so aa to
comply with
the constitutional mandate that the procedure
accompanying the performance of a public act iuust be fair and
reasonable.
The Court 1DUSt leen in favour of this interpretation
F
because it helps sustain the validity of the law.
Reading
section 314 aa containing a comnand not to issue notice before
the removal of an encroachment will make the law invalid. [88 H,
89 A-DJ
3.3 Section 314 is so designed as to exclude the principles
G
of natural justice by way of exception and not as a general rule.
There are situationa·which demand the exclusion of the rules of
natural justice by reason of diverse factors like time, place,
the apprehended danger and so on.
The ordinary rule which regulates all procedure is that persons who sre likely to be affected
by the proposed action IDUSt be afforded an opportunity of being
H
heard aa to why that action should not be taken. The hearing may
be given individually or collectively, depending upon the facts
58
SUPREME COURT REPORTS
[1985] SuPP.2 s.c.R.
A
of each situation.
A departure from this fundamental rule of
natural justice may be presumed to have been intended by the
Legislature only in circumatances which warrant it.
Such circum
stances must be known to exist, when so required, the burden
being upon those who affirm their existence. [89 E-G]
B
3.4 The proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is
contrary to the well-recognized understanding of the real import
of the rule of hearing.
That proposition overlooks that justice
must not only be done but must manifestly be seen to be done and
confuses one for the other. The appearance of injustice is the
denial of justice.
It is the dialogue with the person likely to
C
be affected by the proposed action which meets the requirement
that justice must also be seen to be done. Procedural safeguards
have their historical origins in the notion that conditions of
personal freedom can be preserved only when there is some insti
tutional check on arbitrary action· on the part of the public
authorities. The right to be heard has two facets, intrinaic and
instrumental. The intrinsic value of that right consists
in the
D
opportunity which it givea to individuals or groups, against whom
decision taken by public authorities operate, to participate in
the processes by which those decisions are made, an opportunity
that expresses their dignity as persons. [90 H, 91 A-DJ
l!.P. Boyappa v. State of Tamil Madu (1974] 2 s.c.R. 348,
E
Hanek& Gandhi v. Union of lDd1a (1978] 2 s.c.R. 621, M.o. Boacot
v. State of .Maharashtra [1979] l s.c.R. 192, &mil. Batra. I v.
Delhi Mmntstration [1979] l s.c.R. 392, Sita llml v. State of
u.P. [1979] 2 s.c.R. 1085, Hussainara Khatoon, I v. 11ome Secret
ary State of Bihar, Patna [1979] 3 s.c.R. 532,537.
Hussainara
Khatoon, II v. Home Secretary State of Bihar, Patna [1980] 1
F
S.C.C. 81 Sun:il Batra,
U.
V• Delhi Mnfnfstration [1980]
2
s.c.R. 557, Jolly George Verghese v. n.e Bank of Cochin (1980] 2
s.c.R. 913, 921-922. Kasturi Lal Iaksbli lleddy v. State of J
& Jas!npir (1980] 3 s.c.R. 1338, 1356, Fxancis Coralie !ml.lln v.
The Administrator Union Territory of Delhi
[1981] 2 S.C.R. 516,
523-524, The Influence of R_.,tf(m on l!:lghta' (QJrreilt Legal
G
Probl.eoB (1953] Volume 6), Per Frankfurter.
J.
in Viterall
v.
H
Seton 3 L. Ed (2nd series) 1012, Ramana Dayaraa Sbetty v. 1be
_International Airport Authority of India (1979]
3 s.c.R. 1014,
1032, referred to.
In the instant case, the procedure prescribed by Section 314
of the Bombay Municipal Corporation Act for removal of encroach
ments on the footpaths or pavements over which the public has the
-'
•
.•
OLGA TELLIS v. BOMBAY MUNICIPAL CORPN •
59
right of passage or access, cannot be regarded as . unreasonable,
A
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.
Francis Coralie llullin V• 1be Mmfnistrator, Union Territory of llelbi [1981] 2 s.c.R. 516, 523-524, referred to.
3 .5 Footpaths or pavements are public properties which are
intended to serve the convenience of the general public•
They
B
are not laid for private use and indeed, their use for a private
C
purpose frustrates the very object for which they are carved out
from portions of public streets. The main reason for laying out
pavements is to ensure that the pedestrains 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
pedestrains, cannot be set at naught by allowing encroachmeuts to
D
be made on the pavements. [87 B-C]
3.6 No one has the right to make use of a public property
for a private purpose without the requisite authorisation and,
therefore, it is erroneous to contend that the pavement dwellers
have the right to encroach upon pavements by constructing dwellings thereon.
Public streets, of which .pavements form a part,
E
are primarily dedicated for the purpose of passage and, even the
pedestrains have but the limited right of using pavement.a for the
. purpose of passing and repassing. So long as a person does not
transgress the limited purpose for which pavements are made, his
use thereof is legitimate and lawful.
But, if a person puts any
public property to a use for which it is not intended and is not
F
authorised so to use it, he becomes a trespasser. [87 D-F]
Putting up a dwelling on the pavement is a case which is
clearly on one side of the line shwoing that it is an act of
trespass. [87 HJ
Hickman v. Maisey [1980] l Q.B. 752, referred to.
s.L. Kapoor v. Jagmohan [1981] l s.c.R. 746, 766, Ridge v.
G
Baldwin [1964] AC 40 at 68, John v. Rees [1970] l Chancery 345 at
402, Ann-mthodo v. Oilfields Workers' Trade Union [1961] 3 All
E.R. 621 (H.L.) at 625, Margarita Fuentes at al v. Tobert L.
H
60
SUPREME COURT REPORTS
[1985] SUPP.2 s.c.R.
A
SbeviD 32, L. Ed. 2nd 556 at 574, Qlintepa!U Ageacy Taluk
Arrack Sal.ea Cooperative Society Ltd. v. Secretary (l'ood and
~bu:e) [1978] 1 s.c.R. 563 at 567, 569-70, relied upon.
4.1 There is no doubt that the petitioners are. using pavements and other public properties for an unauthorised purpose.
B
But, their intention or object in doing so is not to "cOlllllit an
offence or intimidate insult or annoy any person", which is the
gist of the offence of "Criminal trespass" under section 441 of
the Penal Code.
They manage to find a habitat in places which
are· mostly filthy or marshy, out of sheer helplessness. It is
not as if they have a free choice to exercise as to whether to
cOlllllit an encroachment and if so, where.
The encroachment
c
cOlllllitted by these persons are involuntary acts in the sense that
those acts are compelled by inevitable circU111Stances and are not
guided by choice. Trespass is a tort. But, even the law of Torts
requires that though a trespasser may be evicted forcibly, the
force used 11n1St be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the
trespasser should be asked and given a reasonable opportunity to
D
depart before force is used to expel him. [93 A-DJ
In the instant case, the Court would have directed the Municipal Commissioner to afford an opportunity to the petitioners to
show why the encroachments cOlllllitted by them on pavements or
footpaths should not be removed.
But, the opportunity which was
E
denied by the Comnissioner was granted by the Supreme· Court in an
ample measure, both sides having made their contentions elaborately on facts as well as on law.
Having considered those contentions the Court is of the opinion that the Comnissioner was
justified in directing the removal of the encroachments cOlllllitted
by the petitioners on pavements, footpaths or accessory roads.
F
[94 E-F]
4.2 Pavement dwellers who were censused or who happened to
be censused in 1976 should be given, though not as a condition
precedent to their removal, alteJ:114lte pitches at Malavani or, at
such other convenient place as the Government considers reasonG
. able but not farther away in terms of distance; slum dwellers who
were given identity cards and whose dwellings were numbered in
the 1976 census 11111st be given alternate sites for their resettlement; sl\11118 which haw been in existence for a
long time, say
for twenty years or more, and which have been improved and
developed will not be removed unless the land on which they stand
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or the appurtenant land, is required for a public purpose, in
which case, alternate sites of accomnodation will be provided to
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OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.]
61
them;
the
'Low
Income Scheme Shelter Programne' which is
A
proposed to be undertaken with the aid of the World BaDlt will be
pursued earnestly; and the 'Slum Upgradstion Progr811111e (SUP)'
under which basic amenities are to be given to slum dwellers will
be implemented without delay.
In order to minimise the hardship
involved in any eviction, the slums, wherevet situated, will not
be removed until one month after the end of the current monsoon
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season, thst .is until October 31, 1985 and, thereafter, only in
accordance with this judgment.
If any slum is required to be
removed before thst dste, parties may apply to the Supreme Court.
Pavement dwellers, whether censused or uncensused, will not be
removed until the same date viz. October 31, 1984. [98 D-ii)
4.3 In so far as the Kamraj Nagar Basti is coneerned,
there
are over 400 hutments therein.
Since the Basti is situated on a
part of the rosd leading to the Express Highway, serious traffic
hazards arise on account of the straying of the Basti children on
to the Express Highway,
on which there J,s heavy vehicular
c
traffic.
The same criterion- would apply to the Kamaraj Nagar
D
Basti as would apply to the dwellings constructed unsuthorisedly
on other roads and pavements in the city. [95 C-D]
·
ORIGINAL JURISDICTION : Writ Petition Nos. 4610-4612 & 50685079 of 1981.
(Under Article 32 of the Constitution of· India.)
Miss Indira Jaisingh, Miss Rani Jethmalani, Anand Grover and
Sumeet Kachhwaha for the Petitioners in W.P. No. 4610-12 of 1981.
Ram Jethmalani, V.M. Tarkunde, Miss Darshna Bhogilal, Mrs.
Indu Sharma and P.H. Parekh for the Petitioners in W.P. Nos.
5068-79 of 1981.
L.N. Sinha, Attorney General, P. Shankaranarayanan and M.N.
Shroff for Respondent Nos. 2 & 3 in W.P. Nos. 4610-12 of 1981 and
for Respondent Nos. 1 and 3 in W.P. No. 5068-79 of 1981.
K.K. Singhvi, F .N.D. Mollo and D.N. Mishra for Respondent
No. 1 in W.P. Nos. 4610-12 and for Respondent No. 2 in W.P. No.
5068-79 of 1981.
The Judgment of the Court was delivered by :
CllANDRACHUD, CJ,
These Writ Petitions portray the
plight
of lakhs of persons who live· on pavements and in slums in the
city of Bombay.
They constitute nearly half the population of
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[1985] SUPP.2 s.c.R.
the city.
The first group of petitions relates to pavement
dwellers while the second group relates to both pavement and
Basti or ~lum dwellers. Those who have made pavements their homes
exist in. the midst of filth and squalor, which has to be seen to
be believed.
Habid dogs in search of stinking meat and cats in
search of hungry rats keep them company.
They cook and sleep
where they ease, tor no
conveniences. are available to them.
Their daughters, come of age, bathe under the nosy gaze of
passers by, unmindful of the feminine sense of bashfulness.
The
cooking and washing over, women pick lice tram each other's hair.
The boys beg.
Menfolk, without occupation, snatch chains with
the. connivance of the defenders of law and order; when caught, if
at all, they say : "Who doesn't commit crimes in this city ?"
It is these men and women who have come to this Court to
ask for a'Judgment'that they cannot be evicted from their squalid
shelters,:, without being offered alternative accommodation.
They
rely for' their rights on Article 21 of the Constitution which
guarantees that no person shall be deprived of his life except
according to procedure established by law.
They do not contend
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that they have a right to live on the pavements.
Their contention is that they have a right to live, a right which cannot be
exercised without the means of livelihood.
They have no option
but to flock to big cities like J>ombay, which provide the means
of bare subsistence.
They only choose a pavement or a slum which
is nearest to their place of work.
In a word, their plea is that
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the righ~. to life is illusory withvut a right to the protection
of the means by which alone life can be lived.
And, the right to
lite can only be taken away or abridged by a procedure established by law, which has to be tair and reasonable, not fanciful
· or arbit~a.ry such as is prescribed by the liombay Municipal Corporation Act or the Hombay Police Act.
They also rely upon their
F
right to.- reside and settle in any part of the country which is
guaranteed by Article 19\l)(e).
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The thre.e petitioners in the group of Writ Petitions 40104612 of 1981 are a journalist and two pavement dwellers.
One of
these twO pavement dwellers, P. Angamuthu, migrated from Salem,
Tamil Nadu, to liombay in the year 1961 in search of employment.
He was a landless labourer in his home town but he was rendered
JObless because of drought.
He found a JOb in a Chemical Company
at Dahisar, rlombay, on a daily wage of Rs.23 per day. A slum-lord
extorted a Slllll of }{s.2,SUO from him in exchange of a
shelter of
plastic sheets and canvas on a pavement on the Western Express
Highway, liombay. He lives in it with his wife and thre'e daughters
who are lb, 13 and 5 years of age.
I
OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.j
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The second of the two pavement dwellers crune to Bombay in
1969 from Sangamner • District Ahmednagar, Maharashtra.
He was a
cobbler earning 7 to 8 rupees a day, but his so-called house in
. the village fell down.
He got employment in llombay as a Badli
Kamgar for Rs. 350 per month. He was
lucky ·in being able to
obtain a "dwelling house" on a
pavement at Tulsiwadi
by
paying
Rs. 3UO to a goonda of the locality. The brunboos and the plastic
sheets cost him Rs. 700,
On July 13, 1981 the then Chief Minister of Maharashtra,
Shri
A~R· Antulay, made an announcement which was given ~de
publicity by the newspapers that all pavement
dwellers in the
city of Bombay will be evicted forcibly and deported to their
respective places of origin or
removed to places outside the
city of Bombay.
The Chief Minister directed the Commissioner of
Police to provide the necessary assistance to respondent 1, the
Bombay Municipal Corporation, to demolish the pavement dwellings
and deport the pavemeut dweller!).
The apparen.t justification
which the Chief Minister gave to his announcement was : "It is a
very inhuman existence.
These structures are flimsy and Open to
the elements.
During
th~ monsoon there is no way these people
can live comfortably."
On July 23, 1981 the pavement dwelling of P. Angrunuthu was
demolished by the officers of the Bombay Municipal Corporation.
lie and the members of his family were put in a bus for Salem.:
His wife and daughters stayed back in Salem but he returned to
Bombay in search of a job and got into' a pavement house once
again .. The dwelling of the other petitioner was demolished even
earlier, in January 1980 but he rebuilt it. It is like a grune of
hide and seek.
The Corporation removes the ramshackle shelters
on the pavements with the aid of police, the pavement
dwellers
flee to less conspicuous pavements in by-lanes and, when
the
officials are gone, they return· to their old habitats. Their main
attachment to those places is the nearness thereof to their pla:ce
of work.
In the other batch of writ petitions Nos. 5068-79 of 1981,
which was
hear~ alorig with the petitions relating· to pavement
dwellers, there are 12 petitioners.
The first five Of these are
residents of Kamraj
Nagar, a bas ti or habitation which is
alleged to have come into existence in abOut
1960-:-61,
near
the
Western Express Highway, Bombay.
The next four petitioners were
residing in structures constructed off the Tulsi Pipe Road,
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Mahim, Bombay.
Petitioner NO· 10 is the Peoples' Union of Civil
Liberties, petitioner No. 11 is the Committee tor the Protection
of Democratic Rights while petitioner No.
l~ is a journalist.
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The case of the petitioners in the KamraJ Nagar group of
cases is that there are over 500 hutments in this particular
basti which was built in about 1960 by persons who were employed
by a Construction company engaged in laying water pipes along the
Western Express Highway.
The residents of KarntaJ Nagar are 1nunicipa1. employees, factory or hotel workl>!rs, construction supervisors and so on.
The residents of the Tulsi Pipe Koad hutments
claim that they have been living there for lU to 15 years and
that, they are engaged in various small trades.
Un hearing about
the Chief Minister's announcement, they filed a writ petition in
the High Court of lSombay for an order of injunction restraining
the 0fficers of the State Government and the Hombay Municipal
Corporoation
from
impleme;itinc,
the directive of the Chief
1-tinister.
The High Court granted an ad-interim inJunction to be
in force until July 21, 19til.
On that date, respondents a~reed
that the huts will not be demolished
unt ll October 15,
19~1.
D
However, it is alleged, on July :L3, 1981, the petitioners were
huddleCl into· State Transport b11ses
for
b~ing deported uut of
.tSorubay.
Two infants were born during the deportation but that
was set off by the death of two others.
The decision of the respondents to demolish the huts is
E
challenged by the petitioners on the ground that it is violative
of Articles 1 Y and 21 of the Constitution.
The petitioners also
ask for a Jecli::lra.tion that the provisions of sections 312, 313
and 314
o_f the liombay Municipal Corporation Act, 1888 are invalid as violating Articles 14, 19 and 21 of the Constitut1on.
l'he reliets asked for in the two groups of writ petitions are
F
that tlie respondents should be directed to withdraw the decision
to demolish the pavement dwellings and the slum hutments and,
\¥Iler~ they are alre.:idy demolished, to restore possession of
the
sites to the former occupants.
On behalt ot the Wver1unent ot l'-laharashtra, a counter-at'fiG
daivt has been filed by V.S.MunJe, Under Secretary in the Department ot Hou.sing.
The counter-affidavit
meets the case ot the
petitioners tl1us.
Tt1e Goverrunent uf i1at1arashtra neitht:.r proposed
to deport any pavement dweller out of the city of Bombay nor did
it, in fact, deport anyone.
Such of the pavement dwellers, who
expressed their Clesire in writing, that they wanted to return to
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their home towns and who sought assistance from the Government in
OL(;A TELLIS v. BOMllAY MuNICIPAL COlU'N. [CHANDMCIUJD, CJ.] 65
that behalf were offered transport facilities up to the nearest
rail head and were also paid railway fare or bus tare and incidental expenses for the .onward journey.
The Government of
Maharashtra had issued instructions to its officers to visit
specific pavements on July 23, 19til and to ensure that no harassment was caused to any pavement dweller. Out of 10,000 hutmentdwellers who were likely to be a_ffected by the proposed demolition of hutments constructed on the pavements, only 1024
persons
opted to avail of the transport facility and the payment of .incidental expenses.
The counter-affidavit says that no person has any legal
right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a
right of way.
Numerous hazards of health and safety arise if
action is not taken to remove such encroachments.
Since, no
civic amenities can be provided on the pavements, the pavement
dwellers use pavements or adjoining streets for easing themselves.
Apart from this, some of the pavement dwellers indulge
in anti-social acts like chain-snatching, illicit distillation of
liquor and prostitution. The lack of proper environment leads to
increased criminal tendencies,
resulting in more crime in the
cities. It is, therefore, in public interest that public places
like pavements and paths are not encroached upon. The Goverrunent
of Maharashtra provides housing assistance to the weaker sections
of the society like landless labourers and persons belonging to
low income groups, within the frame work of its planned policy of
the economic and social development of the State.
Any allocation
for housing has to be made
aft~r balancing the conflicting
demands from various priority sectors.
The paucity of resources
is a restraining fact.or on the ability of the. State to deal
effectively with the que~tion of providing housing to the weaker
sections of the society. The Government of Maharashtra has is.sued
policy directives that 75 percent of the housing prograrrnne should
be allocated to the lower income groups and the weaker sections
of the society. One of the objects of the State's planning policy
is to ensure that the influx of population from the rural to the
urban areas is reduced in the interest of a proper and balanced.
social and economic developmeint of the State and of the country.
This is proposed to be achieved by reversing the rate of growth
of metropolitan cities and by increasing the rate of growth
of
small and medium towns. The
State Goverrunent
has
therefore,
devised an Employment Guarantee Scheme to enable the rural population, which remains unemployed or underemployed at certain
periods of the year, to get employment during such periods. A sum
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(1985] SUPP.2 s.c.R.
of ab.out Rs. mo er.ores was spent on that scheme during the years
1979-80 arid lYS0-81.
On October 2, 1980 the State G.overmnent
launched two additional schemes for providing employment opportunities for those who cannot get work due to old age or physical
infirmities. The State Govermnent has also launched a scheme for
providing self-employment opportunities under the 'Sanjay Gandhi
Niradhar Anudan Yojana'. A monthly pension of Rs. 60 is paid to
those who are too old to work or are physically ha~dicapped. In
this scheme, ab.out 1,56,943 persons have been identified and a
sum of Rs. 2.25 crores was disbursed •. Under another scheme called
'SanJay Gandhi Swawalamban Yojana', interest-free loans, subject
to a maximum of Rs. 2,500, were being given to persons desiring
to engage themselves in gainful employment of th.ier own.
About
J,75,000 persons had benefited under this scheme, to whom a total
slllll of H.s •. S.tiL crures was disbursed by way of loan.
ln shoit,
t,he objective of the State Government was
to place greater
emphasis on providing infrastruclural facilities to small and
medium towns and to equip them so that they could act as growth
and serviC:e centres tor the rural hinterland.
The phenomenon of
poverty which is conn.non to all developirig
countries has to be
tackled ori an All-India basis by makirig the gains.of development
available to all sections of the society through a policy of
equitable distribution of income and wealth.
Urbanisation is a
major problem facing the entire country,
the migration of people
from the rural to the urban areas being a reflection of the
colossal poverty existing in the· rural areas.