OLGA TELLIS & ORS vs BOMBAY MUNICIPAL

CORPORATION & ORS. ETC (1985)

Citation
1986 AIR 180, 1985 SCC (3) 545
Bench
Y.V. Chandrachud, (CJ), Syed Murtaza Fazalali, V.D. Tulzapurkar, O. Chinnappa Reddy, (J), A.
Varadarajan, (J)

Abstract

Huts are a common site in India. Encroachment of public streets, parking lots and such public
paths by the poor is one of the major challenges of a developing town. This problem was brought
to the highest court of India for a solution, with a question that is there any right of the street
dwellers. Can they encroach the place for their "necessity"? Isn't Right to livelihood an essential
part of Right to Life? The court's decision encountered all such questions and gave the path-
breaking decision. The decision that affects the poor is always a tough one. This one affected the
lives of many such people. This is a huge conflict between rights of different sections of the
society. On one hand, there was the right of the people in general and on the other there was the
necessity of the poor. The people have a right to walk on public paths without hindrance while
the poor could find no suitable place to live. The case has also highlighted the poor functioning
of the government of Maharastra as far as town planning was concerned. The judgement was a
critical analysis of the situation and favoured none.

Introduction
Almost every big city of India faces the problem of public streets encroachment by the street
dwellers. The footpaths and parking lots become the home of the poor. And what accompanies
these shelters is the lack of hygiene and health. These are the primary concerns regarding such
dwellings, the health condition of these people is miserable, the children suffer from
malnourishment and are weak, the food available may or may not be sufficient and healthy for
the family, also these people have no knowledge of family planning, due to which health
conditions of women are affected. The hygiene level is per se low; the shelters are also built near
the drainage. Even the availability of toilet is rare, they take bathe in open. The newborn babies
do not get the hygiene they are required to be kept in. In simple words, they live a life of misery
in slums, but they have to live such life as their means of livelihood do not earn them soo much
to afford a home better than the current.
The case is set in 1980's when Bombay (present day Mumbai) was flooded with street dwellers
occupying the footpaths of the town. And when the Government of Maharastra issued an order
for removal of their shelter from the footpaths. The case was a big conflict between the necessity
of one and lawful right and duties of other. One had to build a shelter on a pavement for the sake
of living and the other one had the duty to remove those shelter so that the path could serve the
purpose it was supposed to serve. The removal of the shelters was challenged as a violation of
the rights guaranteed under article 19 and 21 of the constitution, The Bombay Municipal
Corporation Act, 1888, had provisions that violated article 14, 19 and 21 of the constitution. The
writ petition, under article 32, was brought, against the Bombay Municipal Corporation, by a
journalist named Olga Tellis on the behalf of the dwellers. The claim basically, was simple, to
allow the dwellers to live near their place of work, because they didn't earn so much to pay a
hefty rent for a house in a city like Bombay. They didn't live on the pavements for their choice
but for their necessity. The eviction of the dwellers was contended to be a violation of the right
to livelihood, comprehended under the right to live.

Facts and Background

On July 13, 1981, Government of Maharashtra ordered to remove all the pavement dwellings
forcibly calling it an "inhuman settlement". As a reaction to this announcement, a writ petition
was filed in the Bombay High Court. In the High Court, the petitioners agreed not to claim any
right to settle over the pavement, but the court also issued an ad-interim Injunction over the order
of the government to be enforced until July 21, 1981. The Municipal Corporation agreed not to
demolish the settlement until October 15, 1981.
 On July 23, 1981, that is, two days later until the injunction was in force, the huts of the
petitioners and others were demolished and the government deported them out of Bombay in
State Transport buses and provided the necessary assistance required in the travel.
The writ was filed under article 32 of the constitution, in the Supreme Court of India, against the
demolition of the shelters, contending that it is a violation of the rights guaranteed under article
19 and 21.

Issues
The bench of five judges while giving this important judgment, that could affect the lives of half
of the population of Bombay, considered the following issues-
 Whether Right to Livelihood could be brought under the ambit of Right to Life?
 Do the street dwellers hold any right to put up their dwellings on the public pavements?
 Do the provisions of section 312, 313, and 314 of the Bombay Municipal Corporation Act, 1888,
violates the rights guaranteed in article 14, 19 and 21 of the constitution?
Contentions
The writ was brought to the Supreme Court of India against the demolition of the dwellings. It
was contended by the petitioners that the demolition of the street shelters is a violation of the
rights guaranteed by Article 19 and 21 of the constitution. It was also contended that the
provisions of section 312, 313, 314 of the Bombay Municipal Corporation, 1888 are invalid as it
violates article 14, 19, and 21 of the constitution. It was argued that the act dated back to the
British era when there were hardly any street dwellings and the colonial legislature was less
concerned about the welfare. Another important thing that was brought to light, by an affidavit
submitted by Ms Olga Tellis, was the emergence and growth of such settlements in major big
cities of India. It says that development and master plans of most of the cities have not been
followed properly hence creating trouble in the planned settlement. Also as per the Town
planning standards, Bombay is not over-populated, but, it's just that the population is not evenly
distributed. It is the fault on part of the government that even the residential premises are being
used for commercial purpose; the industries are built near residential places. And also that most
of the government offices are concentrated in one region of the city, consequently over
populating one region of the city. The affidavit submitted said that if the economic activities are
 not decentralised, it may become impossible to completely remove such settlements (as the
dwellers settle back to the same place even if they are removed by the authority).
Another very important point raised by the petitioners was that if shelters of the dwellers are
removed, it would be like depriving them of their right to livelihood which is comprehended
under the right to life, guaranteed under article 21 of the constitution. The dwellers built their
shelters near their place of work under economic necessity, for example, if a small scale industry
is located in the heart of the city, the workers of the industry who cannot afford a house will put
up their shelter on the nearest empty land or public pavements, so as to reduce hardship and cost
of travel. So if the shelters are removed, it will indirectly lead to their loss of employment. And if
employment is lost, there would be no means of living, which would directly affect their
existence.
The petitioners asked the court to determine the content of the right to life.
The respondents on the other side firstly contended that since the petitioners have already
conceded in the High Court that they do not have any right to put up shelters on pavements or
any public place and they won't object to any demolition, so they cannot claim in the Supreme
Court for the same. The petitioners also said that the provisions of section 312, 313, and 314 are
in full compliance to the rights guaranteed by the Constitution (the major objection was in
section 314 which states that the commissioner may, without notice, remove such settlements).
Their claim for the right to livelihood as a part of the right to life is not valid as under the
constitution a person cannot claim the right to livelihood for an illegal, immoral work. And even
if they are evicted from such dwellings then how far is it true that they will be deprived of their
livelihood.
And finally, they contended that the right conferred by Article 19(1)(e) of the constitution, to
reside and settle in any part of India, cannot be interpreted as a license to encroach and trespass
upon public property.

Judgment
 The dwellings shall not be removed until October 31, 1985.
 Pavement dwellers who were censused in 1976, and given the identity cards should be provided
with an alternate place to live but not far away, considering their workplace. Slums in existence
for 20 years or more will not be removed unless the land is required for a public purpose.
 It was held that no person holds any right to encroach the footpaths, pavements or any other
public place or land.
 The provisions stated in section 312, 313, and 314 of Bombay Municipal Corporation Act, 1888,
are valid and do not infringe any rights guaranteed under the constitution.
 Right to Livelihood is an integral part of Right to Life.

Analysis
The judgment has been the one that affected the lives of street dwellers throughout India. A man
who comes up to a big town in search of a job that pays him money for bare existence, has no
place to live, puts up a shelter on public property, is removed from his shelter without any prior
notice, which ultimately leads to his loss of home and job as his shelter was near to his place of
work. Was this fair on the part of authorities?
The court (although not completely in favor of the dwellers) ruled that the shelter shall not be
removed immediately and that they should be given a time of two months, to settle themselves in
the changing situation. Also, there were some slums that were censused by the government itself
and now that they are censused and given identity cards they must be provided with an alternate
place to settle. The court has rightly held that if a person is deprived of his livelihood in any way,
it is obvious that he has been deprived of his right to life. For a life in today's world cannot exist
without a livelihood. Of course, a right to livelihood cannot be claimed if a person is into an
illegal work, but in the present case, there was no proof that the dwellers were into any illegal
work, in fact, most of them worked as factory labour or did some other small jobs.
The court said that it is a matter of "common sense" to understand that these dwellers have
occupied areas that are near to their place of work for a reason, that is to avoid the convenience
cost involved and also that they cannot afford a house in a city like Bombay.
Nobody holds a right to encroach a public place for private use. If a person puts up his hut on the
footpath, he is basically infringing the rights of the public to use that footpath. Even if the person
does so under economic necessity ultimately he is taking away the rights of another. So
economic necessity is no excuse to claim any such right. If such necessity is taken into
consideration then India will never come over such settlements. The respondents have rightly
claimed that Article 19(1)(e) should not be interpreted to claim a right to settle on the public
property. But in such cases the fault of the governments cannot be ignored, it is for the
government to provide them with the right place to settle and job accordingly, had government
properly implemented the plans made for the poor then there wouldn't have been the problem of
street dwellers.
The provision of Bombay Municipal Corporation, 1888, that were in conflict was mainly
regarding the issue of notice to the dwellers before removal of their shelters. This is a bit
conflicting because the section (314) says the commissioner "may not" issue any notice in this
regard and the court held that the section is fair and reasonable as "there is no static measure of
reasonableness which can be applied to all situations alike" The court says that the words of the
section should not be interpreted to understand that the commissioner must cause the removal
without notice. it says that the section does not commands the removal without notice, it is up to
the discretion of the commissioner whether or not to issue notice but the decision should not be
arbitrary but reasonable.
But analysing the condition of other side, not issuing a notice would be unjust for such poor
dwellers as getting a job in a city like Bombay, or any city for that matter, is a difficult task, and
removal of shelters will surely lead to a disturbance in their normal course of earning. Most of
these dwellers don't earn enough to save money so much to buy a home or go for a rented house.
At least a prior notice will help them find a job or adjust to the changing circumstances
accordingly. Even the court says that if the section is read in the other way, that is, reading it as
containing a command not to issue notice before removal makes it invalid in the eyes of law.
Removal of these dwellings is quite fair and reasonable, but most of the time dwellers suffer
badly due to it. Such settlements aren't justified but they are left with no option, the government
has to put in it's best effort to solve this issue of developing India because it is the government
which allows land to the industries when such land was supposed to be used for the poor. The
government has to work over its town planning as well as schemes made for the underprivileged.