Olga Tellis v. Bombay Municipal Corporation


Facts:

• The state of Maharashtra and Bombay Municipal Corporation decided to evict the people residing in slums and pavement dwellers in Bombay in 1981. The then CM of Maharashtra, Mr A. R. Antulay passed an order to evict and deport the slum dwellers to their original places.
• The eviction was proceeded under section 314 of the Bombay Municipal Corporation Act 1888 Section 314 Bombay Municipal Corporation Act.
• On hearing about the CM’s announcement, the slum dwellers decided to file a writ petition in the Bombay High Court appealing for an order of injunction restraining the announcement made by the CM.
• The Bombay High Court granted an ad interim injunction to be in force until July 21, 1981. Respondents agreed that the huts would not be demolished until October 15, 1981. Contrary to the agreement, on July 23, 1981, petitioners were huddled into State Transport buses to be deported out of Bombay.
• The petitioner challenged the respondent’s action on the grounds that it is violative of Articles 19 and 21 of the Constitution. They also asked for a declaration that Bombay Municipal Corporation Act 1888 is violative of Articles 14, 19, and 21 of the Constitution.
   

Citation: 1986 AIR 180, 1985 SCR Supl. (2) 51
Parties Involved:
• Petitioner: Olga Tellis & ors
• Respondent: Bombay Municipal Corporation & ors. etc
Date Of Judgement: 10/07/1985

Bench:

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

Issues Involved:

• Whether the forcible eviction and removal of pavement and slum dwellers from their hutments under the Bombay Municipal Corporation Act deprive them of their means of livelihood and consequently right to life?
• Whether the right to life involves the right to livelihood under Article 21?
• Whether the pavement dwellers are considered trespassers under IPC?
• Whether the forcible eviction of slum dwellers under Article 314 of the Bombay Municipal Corporation Act was constitutional?
• Whether estoppel can not be claimed under fundamental rights?
• How far is the exclusion of natural justice permissible?

• Article 14 - Equality before law
• Article 19 - To move freely throughout the territory of India
• Article 21 - Right to life and liberty
• Ad interim - in the meantime
• Arguments:
  • Respondent:
    • The defence counsel stated that the sidewalk residents admitted in the High Court that they did not claim any basic rights to install cabins on public sidewalks and roads and that they would not stop the demolition of the slums and cabins after the scheduled date.
  • Petitioner:
    • The council argued that the right to life under Article 21 includes the right to means of subsistence. They claimed that if the applicants were evicted from the slums and pavements, they would lose their livelihood thus constituting a breach of right to life.
    • The counsel also argued that the procedure prescribed by section 314 of the Bombay Municipal Corporation Act to evict the encroachment is unconstitutional because the act provides the Municipal Commissioner to eliminate the slum dwellers without any prior information of elimination and any notice.
  • Respondent:
    • The argument on natural justice questioned who should be given the opportunity for a fair hearing. Should it be the intruders who encroached on public property or people who committed crimes?
• Court's Observation:
  • There can be no depreciation of the Constitution or renunciation of fundamental rights. That is no one can waive the freedoms granted to them by the Constitution. Any concession made by an individual, whether due to a legal mistake or otherwise, stating they don't possess or assert a specific fundamental right, cannot be used against them in the current or any future proceedings. Implementing such a concession would contradict the intent of the Constitution.
  • The right to life, as outlined in section 21, extends beyond mere legal procedures for extinguishing life. It encompasses the right to livelihood, vital for sustenance. Without means of subsistence, life loses its essence and becomes unviable. If livelihood isn't

integral to the right to life, depriving someone of it would effectively negate their life. Therefore, depriving a person of their means of subsistence constitutes a deprivation of life itself. Excluding the right to livelihood from the right to life would contradict Articles 39(a) and 41, which emphasise social justice and ensure the right to work and earn a livelihood.

The Constitution doesn't impose an absolute ban on depriving life or personal liberty. Article 21 mandates that such deprivation must follow the established legal procedure. Section 314 grants the Commissioner discretionary power to remove encroachments, with or without notice. This provision serves as an enabling tool rather than a mandatory one.

It allows the Commissioner to act swiftly to remove encroachments, occasionally bypassing the principles of natural justice. Sections 312(1), 313(1)(a), and 314 empower the Municipal Commissioner to halt encroachments on public pathways, which isn't deemed unreasonable, unjust, or unfair.

In this city, it's challenging to find individuals who haven't engaged in any form of unauthorised use of sidewalks or public spaces. However, it's crucial to note that the petitioners' actions aren't intended to commit an offence, intimidate, insult, or bother anyone as outlined in Article 441 of the Criminal Code, which defines criminal intrusion.

The encroachments made by these individuals are often involuntary, driven by unavoidable circumstances rather than choice. While intrusion is considered a crime, the principle of proportionality applies. Even in cases where an intruder may be forcibly evicted, the force used must be reasonable and appropriate to the situation. Importantly, the intruder should be given the opportunity to leave voluntarily before force is employed to expel them.

Decision Of The Supreme Court:
The honourable Supreme Court of India passed a ruling based on the humanistic approach of the bench. The court held that the slum dwellers must get an alternative shelter if they are evicted from the pavement. Although the eviction would be held to be valid under Article 14 and Article 19 of the Indian Constitution and, the Right to

livelihood was considered to a part of right to life and liberty.The decision of the court appear to emphasise the concept of a welfare state which suggest that the state has the obligation to prevent and protect the rights of the people and to do ensure the social welfare and justice of its people though, this was not expressed but was implied with the DPSP(Directive principles of State Policies) under the constitution.

Summary:
In summary, the Court ruled that no individual has the right to encroach upon public spaces like footpaths or pavements. Section 314 of the Bombay Municipal Corporation Act was deemed reasonable. The Kamraj Nagar Basti was situated on a road leading to the Western Express Highway. The State Government's assurances regarding the resettlement of pavement and slum dwellers from the 1976 census must be honoured and should be provided alternate pitches at Malvani or other suitable places.

Slum dwellers from the same census should be given alternate sites for resettlement. Slums existing for over twenty years won't be removed unless the land is required for public use, with alternate sites provided. Programs like the Low Income Scheme Shelter and Slum Upgradation Program will be pursued earnestly.

To minimise hardship, slums were removed until autumn, that is , until October 31,1985, and thereafter according to the judgement. Parties can apply to the Court for any removal before that date. The Writ Petitions were disposed off without costs.


Written By: Bhoomi Mittal, Manav Rachna University