Citation : 1985 SCC (3) 545

Bench : 5 judges bench

• C.J. Y.V. Chandrachud
• A.V. Varadarajan
• O. Chinnappa Reddy       
• S. Murtaza Fazal Ali
• V.D. Tulzapurkar

This case is a writ petition filed by a lady journalist Olga Tellis along with PUCL and other organizations under Article 32 of the Constitution of India. This petition challenged the eviction of pavement dwellers. The petitioners contended that the order of the police under section 314 of the Bombay Municipal Corporation Act 1888 is violative of Article 14, 19 and 21 of the Constitution Of India. 

Background

In the State of Maharashtra, in 1981, the Bombay Municipal Corporation decided to evict the pavement and slum dwellers in the city of Bombay. The Chief Minister ordered their eviction and then their deportation to the place of origin. This order was under Section 314 of the Bombay Municipal Corporation Act. Aggrieved with this writ petition was filed in the Bombay HIgh Court for an injunction restraining the officers of Bombay Municipal Corporation.The High Court of Bombay granted an ad interim injunction to be in force until July 21 1981 and  Respondents agreed that the huts will not be demolished until October 15, 1981 but contrary to the agreement, petitioners were deported out of Bombay on July 23, 1981. The respondents challenged this order on the grounds that it violates Article 19 and 21 of the constitution also Sections 312, 313 and 314 of the Bombay Municipal Corporation Act is violative of Articles 14, 19 and 21 of the Constitution.       

Before starting with analysis of the case we should first take a look at all the laws involved in question here:

• Articles 14, 19, 19(1), 21, 32, 39, and 41 of the Constitution of India, 1950.
• Section 441 of Indian Penal Code, 1860.
• Sections 312, 314 and 314 of the Bombay Municipal Corporation Act(BMCA), 1888 .

Let’s discuss the most important ones in brief

Article 14

The Article 14 of the Constitution states that every individual should be provided equality before law and equal protection of law without any discrimination on the ground of religion, sex , caste, race and place of birth.

Article 19(1)(e) and 19(1)(g)

Article 19 provides protection to certain rights of the people. Here Article 19(1)(e) and 19(1)(g) are in question. Article 19 (1)(e) provides the right to reside and settle in any part of India and Article 19(1)(g) provides freedom to practise any profession, occupation, trade and business.

Article 21

Article 21 provides for the right to life and livelihood and it can’t be taken away without any procedure established by law. 

Section 441 of IPC

Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

Sections 312, 313 and 314 of Bombay Municipal Corporation Act ,1888

312 (a) – Without the permission of the commissioner no person should be allowed to erect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon over any open channel, drain, well or tank in any street and form an obstruction, encroachment and projection there.

Section 313(1) this article talks about the prohibition of installing or depositing certain things in the street without any permission.

Section 313A talks about the requirement of a license for sale in Public Places.

Section 314 talks about the power given to the commissioner to remove any anything which is erected, deposited and hawked in contravention of section 312 or 313A without any prior notice.

The issues involved

1. Scope of Right to life and livelihood under Article 21 of the constitution.
2. Constitutionality of Section 312, 313 and 314 of the Bombay Municipal Corporation Act.
3. Question of Estoppels against fundamental rights or Waiver of Fundamental Rights.
4. Whether pavement dwellers are ‘trespasser’ under IPC. 

Arguments of Petitioners

Petitioners contended that Right to life includes right to livelihood under Article 21 and this eviction violates this right as evicting the dwellers from the slums and pavements deprives them from their basic livelihood and hence unconstitutional. It was also argued that the Section 314 of the BMCA is arbitrary and unreasonable as it includes a provision which gives absolute power to municipal commissioner to evict the persons without requiring any prior notice 

Arguments of Respondents

Respondents contended that pavement dwellers had already conceded in High Court and had agreed not to claim any Fundamental Rights to put up huts on the pavements and they have also agreed to not to create hindrance in demolition of the huts after the due date.  On the question of natural justice it was contended on behalf of the petitioner that is it viable or justifiable enough to give this opportunity of hearing to the trespassers who have encroached on public properties? The persons who have committed crime, do they deserve it?

Ratio Descendi

The Supreme Court while justifying with the Arguments of the petitioners stated that –

1. The right to life has a much wider scope, it doesn’t only mean that life cannot be threatened except a procedure established by law but, as this definition restricts its ambit. The court recognized that livelihood forms a basis of Right to life as no person can sustain life without livelihood. Not including livelihood in Fundamental Rights is the easiest way to harm the spirit of Article 21. The Supreme Court added that deprivation of persons from this right should only be in accordance with law as depriving from this right can lead to deprivation of right to life of  a person and not including it in Right to life is also in contradiction of Articles 39(a) and 41 of the constitution.
2. The Supreme Court, while establishing more stress on the inclusion of livelihood in Article 21, also made it clearly visible that such laws can definitely be deprived by a procedure established according to law.  Thus, sections 312(1) 313(1)(a) and 314 which empowers commissioner to remove encroachments from footpaths and public places cannot be regarded as unjust and unreasonable as these sections are not against the principle of natural justice but these are acting as exception rule(as the procedure established by law in certain circumstances). Hence, not arbitrary.

In justifying with the arguments of respondents court stated that:

1. There can never be an estoppel and waiver against the Constitution and Fundamental Rights respectively. Individuals cannot barter away the rights granted to them by the Constitution. Any such concession made in any hearing whether under a mistake of law or otherwise, cannot lead to an estoppel for him in any further proceedings. As such a concession harms and defeats the basic purpose of the provisions of the Constitution.
2. The court on the issue of petitioners being called criminals hence do not deserve the right to be heard, stated that before calling them trespassers under Section 441 of the IPC, there is a need to understand the essential elements of trespassing. The elements are to “commit an offence or intimidate, insult or annoy any person”. But in this situation none of these elements are met. These encroachments are just an involuntary act which these people are compelled to do because of their grim life situations. Though trespassing is tort but even in the law of torts the force used against the trespasser to expel him should be reasonable enough and a proper time and opportunity to leave should be given to him in such conditions.

Judgement 

The court finally by considering all the sides in its judgement in the present case held that evicted dwellers do not have a right to alternative site and simultaneously it also held that :

1. People do not have the right to encroach on footpaths, pavements or any other place reserved or declared for public purpose.
2. In the current circumstances, section 314 of the Bombay Municipal Corporation is not unreasonable. 
3. Residents censored in 1976 should be provided with sites.
4. Those slums which had existed for 20 years or more could not be removed unless land was required for certain public purposes, and in such cases alternative sites to be provided. 
5. High priority should be given to resettlement.

Conclusion

The result of the judgement was that the dwellers were expelled without any providing any alternative site. The judgement since 1985,has been affirmed in certain subsequent judgements. The ruling of the court is still influenced with humanitarian values because even after eviction was declared valid under Article 14 and 19 of the Constitution, the judgement helped in enhancing the purview of Article 21 of the constitution and Though court did not met the demand of appellants in the present case but recognized that right to be heard is granted to everyone and in the present case it has been violated. The case is stated as the example in which civil and political rights are used to advance social rights and had enhanced the purview of a very important right of our constitution but the problem here is that it failed to provide the right to settlement and led to an injustice somewhere. The judgement also brings attention towards the principle of utility propounded by “Jeremy Bentham”. The principle states that any action taken should be “the greatest happiness of the greatest number”. Though the court recognized the current law in this judgement, it did try to uphold this principle and made it essential that dwellers do have the right to be heard and prior notice is needed. Also did not consider them criminal trespassers. The decision widened the scope of right to life. All of this indicates the court’s willingness to uphold this principle for the greater good.

Endnotes

1.  https://bombayhighcourt.nic.in/libweb/acts/1888.03.pdf

2.  https://indiankanoon.org/doc/1218090/

3.  https://indiankanoon.org/doc/1199182/

4.  https://indiankanoon.org/doc/367586/

5.  https://indiankanoon.org/doc/981147/

6.  https://indiankanoon.org/doc/555882/

7.  https://indiankanoon.org/doc/1975922/8.  https://indiankanoon.org/doc/1768645/

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