Topic: Olga Tellis & Ors vs. Bombay Municipal Council
Olga Tellis & Ors vs. Bombay Municipal Council
Equivalent citations: 1986 AIR 180, 1985 SCR Supl. (2) 51 - Bench: Chandrachud, Y.V. ((Cj), Fazalali, Syed Murtaza, Tulzapurkar, V.D., Reddy, O. Chinnappa (J), Varadarajan, A. (J) - Citation: 1986 AIR 180 1985 SCR Supl. (2) 51, 1985 SCC (3) 545 1985 SCALE (2)5 - Citator Info : F 1986 SC 204 (11), RF 1986 SC 847 (12), D 1989 SC 38 (13), D 1989 SC1988 (8,20,21), R 1990 SC1480 (41,109), F 1991 SC 101 (23,32,223,239,258), RF 1991 SC1117 (5), RF 1991 SC1902 (24), E 1992 SC 789 (13)
court observed that "no person can live without the means of living, that is the means of livelihood. If, the right to livelihood is not treated as a part of constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of his livelihood to the point of abrogation." Performance of public act must be fair and reasonable. So before eviction of the hawkers from the area, they must be served with notice so that their right is not infringed.
Constitution of India, 1950 :
Article 32 - Fundamental Rights - Estoppel - Principle behind - No estoppel can be claimed against enforcement of Fundamental 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 maintainable. Bombay Municipal Corporation Act, 1888, s.314 - Power to remove encroachments "without notice , when permissible - Section - 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.
The petitioners in writ petitions Nos. 4610-12/81 live on pavements and in slums in the city 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 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 the Protection of Democratic Rights and two journalists have also joined in the writ petitions. 52
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 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, 1981. On such undertaking being given, the respondents agreed that the huts will not be demolished until October 15, 1981 and the writ petition was disposed of accordingly.
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 Corporation is violative of the provisions contained in Article 19(1)(3), 19(1)(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 encroachment but, expressly enables that the Municipal Commissioner may cause the encroachments to be removed without notice , (iv) that it is constitutionally impermissible to characterise the pavement dwellers as 'trespassers', because their occupation of pavements arises from 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.
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 cannot be demolished because of their right to livelihood, since they had conceded in the High Court that they did not claim 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 India cannot be read 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 harassment 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,
HELD: 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-D] Naresh Shridhar Mirajkar v. State of Maharashtra  3 S.C.R. 744-770, followed.
Smt. Ujjam Bai v. State of Uttar Pardesh.  1 S.C.R. 778, referred to.
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 human 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 must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. [77 C-E]
1.3 Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and en forced 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 in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those 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. A concession made by him in a proceedings, whether under a mis take 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 Constitution. [77 F-H, 78 A-B]
The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to day transactions. [78 D]
In the instant case, notwithstanding the fact that the 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 of the right claimed by the petitioners is well-founded is
another matter- But, the argument has to be examined despite the concession. [78 C-D]
Basheshar Nath v. The Commissioner of Income Tax Delhi (1959) Supp. 1 S.C.R. 528, referred to.
2.1 The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition 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 of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to live, 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 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, must be deemed to be an integral component of the right to life. [79 F-H, 80 A-B]
2.2 The principles contained in Articles 39(a) and 41 must 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, it would be sheer pedantry to exclude the right to livelihood 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- H, 81 A]
Munn v. Illinois  94 US 113 and Kharak Singh v. The State of U.P.  1 S.C.R. 332 referred to. In Re: Sant Ram (1960) 3 S.C.R. 499, distinguished. 56
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. It would be unrealistic on the part of the Court to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. Common sense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants. [82 B-C]
In the instant case, it is clear from the various expert 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 slums 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 constitutional 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 well 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, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, must conform to the means of justice and fair play. 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 tested by the application of two standards: The action must be
within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure 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 procedure prescribed by it. [83 E, 85 F-H, 86 A]
3.2 In order to decide whether the procedure prescribed by section 314 is fair and reasonable, the Court must first determine the true meaning of that section because, the meaning of the law determines its legality. Considered in its proper perspective, 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 persons 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, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must 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 command that the Commissioner, shall without notice, cause an encroachment to be removed. Putting it differently, section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. The Court must leen in favour of this interpretation because it helps sustain the validity of the law. Reading section 314 as containing a command not to the issue before the removal of an encroachment will make the law invalid. [88 H, 89 A-D] 3.3 Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations 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 are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts 58
of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be known to exist, when so required, the burden being upon those who affirm their existence. [89 E-G] 3.4 The proposition that notice need not be given of a pro posed 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 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 institutional check on arbitrary action on the part of the public authorities. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives 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-D] E.P. Royappa v. State of Tamil Nadu  2 S.C.R. 348, Maneka Gandhi v. Union of India  2 S.C.R. 621, M.O. Hoscot v. State of Maharashtra  1 S.C.R. 192, Sunil Batra, I v. Delhi Administration  1 S.C.R. 392, Sita Ram. State of U.P.  2 S.C.R. 1085, Hussainra Khatoon, I v. Home Secret any State of Bihar, Patna  3 S.C.R. 532,537. Husinara Khatoon,II v. Home Secretary State of Bihar, Patna  1 S.C.C. 81 Sunil Batra, II. v. Delhi Administration  2 S.C.R. 557, Jolly George Verghese v. The Bank of Cochin  2 S.C.R. 913, 921-922. Kasturi Lal Lakshmi Redy v. State of Jammu & Kashmir  3 S.C.R. 1338, 1356, Francis Coralie Muliin v. The Administrator Union Territory of Delhi  2 S.C.R. 516, 523-524, The Influence of Remedies on Rights' (Current Legal Problems  Volume 6), Per Frankfurter, J. in Viterall v. Seton 3 L. Ed (2nd series) 1012, Ramana Dayaram Shetty v. The International Airport Authority of India  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 encroachments on the footpaths or pavements over which the public has the
right of passage or access, cannot be 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.
Francis Corlie Mullin v. The Administrator, Union Territory of Delhi  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 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 streets. The main reason for laying out pavements 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. [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, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements 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 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 showing that it is an act of trespass. [87 H]
Hickman v. Maisey  1 Q.B. 752, referred to. S.L. Kapoor v. Jagmohan  1 S.C.R. 746, 766, Ridge v. Baldwin  AC 40 at 68, John v. Rees  1 Chancery 345 at 402, Annamunthodo v. Oil fields Workers' Trade Union  3 All E.R. 621 (H.L.) at 625, Margarits Fuentes at al v. Tobert L.
Shevin 32, L. Ed. 2nd 556 at 574, Chintepalli Agency Taluk Arrack Sales Cooperative Society Ltd. v. Secretary (Food and Agriculture)  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. But, their intention or object in doing so is not to "commit 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 commit an encroachment and if so, where. The encroachment committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances 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 must 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 depart before force is used to expel him. [93 A-D]
In the instant case, the Court would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the Commissioner 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 Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. [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, alternate pitches at Malavani or, at such other convenient place as the Government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have 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 or the appurtenant land, is required for a public purpose, in which case, alternate sites of accommodation will be provided to
them; the 'Low Income Scheme Shelter Programme' which is proposed to be undertaken with the aid of the World Bank will be pursued earnestly; and the 'Slum Upgradation Programme (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, wherever situated, will not be removed until one month after the end of the current monsoon season, that is until October 31, 1985 and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, 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- H]
4.3 In so far as the Kamraj Nagar Basti is concerned, there are over 400 hutments therein. Since the Basti is situated on a part of the road 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 is heavy vehicular traffic. The same criterion would apply to the Kamaraj Nagar Basti as would apply to the dwellings constructed unauthorisedly on other roads and pavements in the city. [95 C-D]
ORIGINAL JURISDICTION : Writ Petition Nos. 4610-4612 & 5068-5079 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 : CHANDRACHUD, 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
the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and Basti or Slum dwellers. Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for 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 from 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 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 Bombay, 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 the right to life is illusory without a right to the protection of the means by which alone life can be lived. And, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary such- as is prescribed by the Bombay Municipal Corporation Act or the Bombay Police Act. They also rely upon their right to reside and settle in any part of the country which is guaranteed by Article 19(1)(e).