OLGA TELLIS & ORS. VS.

BOMBAY MUNICIPAL CORPORATION

AIR 1986 SC 18

LL.M. [Corp. Law] 2013-14

SUBMITTED BY VARUN MISHRA LL.M. (CORP. LAW) NATIONAL LAW UNIVERSITY, JODHPUR

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TITLE Olga Tellis & Ors Vs. Bombay Municipal Corporation & Ors CITATION AIR 1986 SC 18 (1985) 3 SCC 545

PARTIES Petitioner BENCH Y.V. Chandrachud, C.J., A. Vardarajan, O. Chinnappa Reddy, S. Murtaza Fazal Ali and V.D. Tulzapurkar, Ms. Olga Tellis (A Lady Journlist & Social Activist) Vayyapuri Kuppusami

Respondent Bombay Municipal Corporation State of Maharashtra

LAW INVOLVED Constitution of India, 1950: Articles 14, 15, 16, 19, 19(1), 21, 22, 25, 29, 32, 37, 39, and Article 41 Indian Penal Code, 1860: Section 441. Bombay Municipal Corporation Act, 1888: Sections 312, 313, 314.

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NATURE OF THE CASE This was a Writ Petition filed under Article 32 of the Constitution. Olga Tellis, a lady journalist along with Peoples Union For Civil Liberties and other organizations challenged the order of eviction passed by Mr. A.R. Antulay, the then Chief Minister of Maharashtra. Pavement dwellers and Public Interest Organizations claimed that order of eviction of pavement dwellers is violative of fundamental rights. Eviction deprives them, inter alia, of their Fundamental Rights enshrined in Article 19 and Right to Life guaranteed under Article 21. FACTS OF THE CASE The state of Maharashtra in 1981 and the Bombay Municipal Corporation decided to evict the pavement dwellers and those who were residing in slums in Bombay. Pursuant to that, the then Chief Minister of Maharashtra Mr. A. R. Antulay ordered on July 13 to evict slum dwellers and pavement dwellers out of Bombay and to deport them to their place of origin. The eviction was to proceed under Section 314 of the Bombay Municipal Corporation Act 1888. On hearing about the Chief Ministers announcement they filed a writ petition in the High Court of Bombay for an order of injunction restraining the officers of the state government and the Bombay Municipal Corporations from implementing the directive of the Chief Minister. The High Court of Bombay granted an ad interim injunction to be in force until July 21 1981. Respondents agreed that the huts will not be demolished until October 15, 1981. Contrary to agreement, on July 23 1981, petitioners were huddled in to State Transport buses for being deported out of Bombay. They respondents action was challenged by the petitioner on the ground that it is violative of Articles 19 and 21 of the Constitution. They also ask for a declaration that Section 312, 313 and 314 of the Bombay Municipal Corporation Act 1888 are violative of Article 14, 19 and 21 of the Constitution.

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RELIEF ASKED FOR To direct the government officials to withdraw the decision to demolish the pavement dwellings and the slum hutments; and To restore possession of the sites to the former occupants, where they are already demolished. ISSUES INVOLVED The issues which were considered by the Honble court in this case were as follows: Question of Estoppels against fundamental rights or Waiver of Fundamental Rights Scope of right to life under Article 21 of the Constitution. Constitutionality of provisions of Bombay Municipal Corporation Act, 1888 Whether pavement dwellers are trespasser under IPC.

ARGUMENT & COURTS OBSERVATION Respondent argued that 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 that they will not obstruct the demolition of the huts after due date. Court Observed, there can neither estoppel against the Constitution nor waiver of fundamental rights. Court observed: 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 proceedings. Such a concession if enforced would defeat the purpose of the Constitution. Petitioners submitted that right to life guaranteed by the art. 21 includes right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction would be tantamount to deprivation of their life and hence unconstitutional. Court observed, 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 except according to
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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 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. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, the Court further added, 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. Deprive a person of his right to livelihood and you shall have deprived him of his life. It would be a sheer pedantry, in the light of Article 39(a) and 41, to exclude the right to livelihood from the content of the right to life Petitioner argued that the procedure prescribed by Section 314 of the Act, 1888 for the removal of encroachment from pavement is arbitrary and unreasonable since, not only does it not provide for the giving of notice before the removal of an encroachment but, it provides expressly that the Municipal Commissioner may cause the encroachment to be removed without notice. Court Held; 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 law. Section 314 is in the nature of an enabling provision and not of a compulsive character. It confers on the commissioner the discretion to cause an encroachment to be removed with or without notice. It is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. The sections 312(1), 313(1)(a), and 314 empowers the Municipal Commissioner to cause to removed encroachment on footpaths over which the public has the right of passage, cannot be regarded as unreasonable, unfair or unjust. Chinnappa Reddy, J. Said: In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced.
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Respondent on the question of natural justice contended that opportunity of hearing to be given to whom? To trespasser who have encroached on public properties? Or to persons who commit crime?

Court observed, Who does not commit crime in this city? There is no doubt that the petitioners are using pavements and other public properties for an unauthorized 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 or the offence of 'Criminal trespass' under Section 441 of the Penal Code. The encroachments 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. HELD Though the Court declined to hold that evicted dwellers had a right to an alternative site but instead made orders that: No person has the right to encroach on footpaths, pavements or any other place reserved or ear marked for public purpose. The provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case. Sites should be provided to residents censused in 1976. Slums in existence for 20 years or more were not to be removed unless land was required for public purposes and in that case, alternative sites must be provided. High priority should be given to resettlement.

EVALUATION The decision of the Honble Supreme Court in this case is influenced by the values of humanity. The eviction orders were held valid under Article 14, and 19 of the Constitution, but the right to life was widened enough so as to bring the right to livelihood within the purview of right to life under Article 21 of the Constitution. The Honble court held that the respondents (Bombay
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Municipal Corporation) must provide with alternative shelter to the petitioners before eviction from the pavements. Court though declined to provide the remedies requested by the appellant but found that the right to a hearing had been violated at the time of the planned eviction. SIGNIFICANCE OF THE CASE Olga Tellis case has helped the propertied classes a much. Lawyers often cite the case to justify eviction of tenants. But it also helped the slum dwellers and pavement dwellers. The Government cannot evict them summarily. The case also spawned a lot of interest in fighting for housing as a fundamental right but if you were a pavement dweller, it is just not enough. This case is widely quoted as exemplifying the use of civil and political rights to advance social rights but it is also viewed as problematic due to its failure to provide for the right to resettlement. CONCLUDING REMARKS This judgment reflects very much the Principle of Utility propounded by Jeremy Bentham. Principle of Utility incorporates that aim of a state action should be the greatest happiness of the greatest number. According to Bentham happiness can be maximized only if instances of pain are lighter and fewer. The judgment delivered by the Honble Court can be said to be the replica of the idea embodied in the Principle of Utility. Slum and pavement dwellers constitute almost half of the total population of the Bombay. Involvement of interests of such a large number of peoples compelled the Court to pen down in their favour despite of the existence of the specific law for the eviction of pavement dwellers. According to chief justice Y.V.Chandrachud, although the petitioners are using pavements and public properties unauthorizedly, but they are in no way criminal trespassers under section 441 of the Indian Penal Code since their object or reason behind doing so is not to commit any offence or intimidates, insult or annoy any person, rather they are compelled by inevitable circumstances and are not guided by choice. They just manage to find a habitat in filthy or marshy places. This decision where widened the scope of the term life, has also paved the way for reformation of substantive law.

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