Olga Tellis and Ors. vs. Bombay Municipal Corporation and Ors.

Judges: Y.V. Chandrachud, C.J., A. Vardarajan, O. Chinnappa Reddy, S. Murtaza Fazal Ali and V.D. Tulzapurkar, JJ.

Facts:

On 13th July, 1981 the Government of Maharashtra decided to forcibly evict all pavement dwellers in the city of Bombay and to deport them to their respective places of origin or removed to places outside the city of Bombay. The said decision of the Government was challenged by various groups by filing writ petitions before Bombay HC. A Single Judge granted an ad-interim injunction restraining the respondents from demolishing the huts and from evicting the pavement dwellers. On July 27, 1981, the petitioners made a statement that no fundamental right could be claimed to put up dwellings on foot-paths or public roads. Upon this statement, respondents agreed not to demolish until October 15, 1981, huts which were constructed on the pavements or public roads prior to July 23, 1981. On the basis of these undertakings, the learned Judge disposed of the writ petition without passing any further orders. After the specified date, the huts were demolished and so the Petitioners approached the present court.

Issues:

(i) Whether Law of Estoppels can be used against fundamental rights or whether Fundamental Rights can be waived?

(ii) What is the Scope of "Right to Life" conferred by Article 21 of Constitution of India.

(iii) Whether Section 314 of the BMC Act is valid?

Law:

Bombay Municipal Corporate Act, 1888 - Section 314 - Power to remove without notice anything erected deposited or hawked in contravention of Sections 312, 313 or 313A of BMC Act.

Constitution of India - Article 21 - No person shall be deprived of his life or personal liberty except according to a procedure established by law.

Contentions

Petitioners:

Evicting a pavement dweller or slum dweller from his habitat amounts to depriving 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.

It is the responsibility of the courts to reduce inequalities and social imbalances by striking down statutes which perpetuate them.

It is constitutionally impermissible to characterise the pavement dwellers as "trespassers" because, their occupation of pavements arises from economic compulsions

Section 314 of BMC is unconstitutional as in the first place, Section 314 does not authorise the demolition of a dwelling even on a pavement and secondly, that a provision which allows the demolition of a dwelling without notice is not just, fair or reasonable. Such a provision vests arbitrary and unguided power in the Commissioner. It also offends against the guarantee of equality because, it makes an unjustified discrimination between pavement dwellers on the one hand and pedestrians on the other. Therefore, Sections 312, 313 and 314 of the B.M.C. Act must either be read down or struck down.

Respondents:

Since the pavement dwellers had conceded in the High Court that they did not claim any fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the High Court that they will not obstruct the demolition of the huts after October 15, 1981 they are estopped from contending in this Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by Article 21 of the Constitution.

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.

Sections 312, 313 and 314 of the Bombay Municipal Corporation Act are not violative of Constitution. Those provisions are conceived in public interest and great care is taken by the authorities to ensure that no harassment is caused to any pavement dweller while enforcing the provisions of those sections.

No one has a fundamental right, whatever be the compulsion, to squat on or construct a dwelling on a pavement, public road or any other place to which the public has a right of access. 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.

Analysis

Estoppel : Preliminary Object by Respondents

(i) No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, 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 proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, 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.

Scope of "Right to Life" conferred by Article 21 of Constitution

(i) 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.

(ii) 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 life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.

(iii) Thus, right to life which is conferred by Article 21 of Constitution includes the right to livelihood. But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. By Article 21, such deprivation has to be according to procedure established by law.

Validity of Section 314 of BMC Act

(i) 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.

(ii) 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.

(iii) 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 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. Thus, the court must lean in favour of this interpretation because it helps sustain the validity of the law.

(iv) It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ('Hear the other side') could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exemption and not as a general rule.

Conclusion:

(i) No person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public purpose.

(ii) The provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case

(iii) Slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their re-settlement

(iv) Slums which have been in existence for a long time, say for twenty years or more will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or 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

(v) Slum Upgradation Programme (SUP)' under which basic amenities are to be given to slum dwellers will be implemented without delay

(vi) Slums, wherever situated, will not be removed until one month after the end of the current monsoon season and, thereafter, only in accordance with this judgment. If any slum is required to be removed before that date, parties may apply to this Court. Pavement dwellers, whether censured or uncensored, will not be removed until the same date viz. October 31, 1985.

(vii) The Writ Petitions will stand disposed of accordingly.

Important Precedents:

S.L. Kapoor v. Jagmohan MANU/SC/0036/1980