This article has been written by Aditi Ananya from Chanakya National Law University

Olga Tellis v Bombay Municipal Corporation, A.I.R. 1986 S.C. 180

Legal Provisions

Constitution of India

Article 14: It ensures that everyone has equal protection under the law and equality before the law. It states that no one living on Indian territory will be denied equality before the law or the same protections under the law by the country. The idea of equality and non-discrimination in the Indian legal system is based on this article.

Article 15: Prohibition of discrimination on the basis of religion, race, caste, sex, or place of birth

Article 16: Equal opportunity in areas of public employment

Article 19: Addresses the freedom of expression and speech. With some justifiable restrictions, it grants every citizen the freedom of expression.

Article 21: The right to life and individual liberty are protected by this article.

Article 22: Protection against arrest and imprisonment in some cases

Article 25: Freedom of conscience and unrestricted practice, profession, and spread of religion

Article 29: Minority Interest Protection

Article 32: It is assured that the fundamental rights granted may be enforced by approaching the Supreme Court through the proper channels.

Article 39: It is a component of the Directive Principles of State Policy, a set of guidelines that the state must follow in order to focus its policies on upholding certain social and economic justice ideals.

Article 41: The entitlement to employment, education, and, in some situations, public aid

Indian Penal Code, 1860

Section 441: A person is considered to have committed “criminal trespass” if they enter or remain on another person’s property with the intention of committing an offence, or if they have lawfully entered or remain on the property with the intention of intimidating, insulting, or bothering any other person who is the owner of the property.

Bombay Municipal Corporation Act (BMCA), 1888

Section 312: Constructions and fittings that impede roadways are prohibited. No one may build or place any wall, fence, rail, post, step, booth, or other structure or fixture in or upon any street, or upon or over any open channel, drain, well, or tank in any street, unless the Commissioner grants permission under Sections 310 or 317. This prohibition applies to erecting or placing such structures or fixtures in order to form a barrier to, or an encroachment upon, or an extension over, or to possess, any area of the said streets, channel, drain, well, or tank. This clause cannot be interpreted to apply to any construction or item covered by Section 322 clause (c).

Section 313(1): It forbids putting something up or creating something on the roadway without authorization.

Section 313(A): It outlines the necessity for a licence to sell in public places.

Section 314: Permits the removal of anything put up, advertised, or sold without permission in violation of Sections 312, 313, or 313A.

Facts of the Case –

In 1981, the BMC and the state of Maharashtra decided to drive out Bombay’s pavement dwellers and slum inhabitants.

For a variety of socioeconomic reasons, these pavement dwellers were people and families who had erected temporary dwellings on the pavements and footpaths. These homes, which were usually constructed from tarpaulin sheets, wood, or corrugated iron, were considered unapproved buildings by the BMC. As a result, Mr. A. R. Antulay, the then-Chief Minister of Maharashtra, issued an order on July 13 to expel those living in Bombay’s slums and pavements and send them back to their home countries. In accordance with Section 314 of the Bombay Municipal Corporation Act of 1888, the eviction was to take place. According to the BMC, these pavement dwellings caused a lot of issues, such as obstructing public areas, causing traffic jams, and posing health and environmental risks. According to the corporation, these buildings were dangerous and dirty, and preserving public health and safety required their removal.

These illegal homes were to be demolished as part of the scheduled eviction, leaving the pavement dwellers without a place to live or a place to stay. Following the Chief Minister’s announcement, the residents alongside social activist Olga Tellis filed a writ petition in the Bombay High Court, requesting an order of injunction to prevent State Government and Bombay Municipal Corporation officers from carrying out the Chief Minister’s directive.

The people claimed that such a move would violate their right to life as staying in the city allowed them to make a living and required appropriate resettlement if the evictions happened. As per Article 21 of the Constitution, they contended that the planned eviction was against their right to life and means of subsistence. They maintained that having the right to live with dignity, safety, and basic necessities like housing is part of the right to life, which goes beyond simply existing. An order to enforce an interim injunction till July 21, 1981 was issued by the Bombay High Court. According to the respondents, the huts won’t be destroyed until October 15, 1981On July 23, 1981, petitioners were crammed onto State Transport buses and banished from Bombay, in defiance of the agreement. Because the respondent’s actions violated Articles 19 and 21 of the Constitution, the petitioner opposed to them. Additionally, they requested a declaration stating that Articles 14, 19, and 21 of the Constitution are violated by Sections 312, 313, and 314 of the Bombay Municipal Corporation Act 1888.

Issues of the Case

1. Is it impossible to assert estoppel in contravention to fundamental rights?
2. Does the Bombay Municipal Corporation Act’s brutal eviction and relocation of pavement and slum dwellers from their hutments deny them their right to life and means of subsistence?
3. Does Article 21 of the Indian Constitution grant the right to life, which includes the right to subsistence?
4. Do Pavement Dwellers fall under the Indian Penal Code’s definition of trespassers?
5. Is it possible to sustain a writ petition challenging a government action that is procedurally ultra vires?
6. Does the Bombay Municipal Corporation Act’s Section 314 provide for the power to demolish these encroachments without notice, even in cases when doing so would go against the constitution?
7. To what extent is it acceptable to exclude natural justice?

Contentions Raised

By the Petitioners:

1. Violation of the Right to Life: According to Article 21 of the Indian Constitution, the petitioners claimed that the BMC’s plans to demolish their houses and remove them violated their fundamental right to life. They argued that the right to life encompasses more than simply the ability to survive physically and that it also involves the ability to live in dignity, safety, and with the basics of life. The petitioners said that their basic human dignity would be violated if they were forced to leave. They said that leading a purposeful and honourable life requires having access to housing and a secure place to reside. They stressed that they would face several challenges, including inclement weather, criminal activity, and bodily danger, if they lacked a suitable location to live.
2. Right to livelihood: The petitioners contended that the pavement houses, where they currently reside, were intrinsically tied to their right to a livelihood. They said that if they were to be evicted without being provided with alternative housing, they would lose their ability to work and become homeless. They made a point of highlighting out how many of them worked in daily wage jobs, tiny enterprises, or street selling in the vicinity of their houses. They asserted that their ability to support themselves depended on how close their homes were to areas where they might obtain employment. The eviction would upset their economic stability in the absence of viable alternatives, leading to joblessness, financial hardship, and more marginalisation. The petitioners stressed that their ability to sustain themselves and their families was guaranteed by the constitution and that their right to a living extended beyond only economic rights. They said that eviction would violate their right to work and perpetuate a cycle of poverty in the absence of other housing and economic choices.
3. Absence of alternative housing: The petitioners raised a significant concern over the BMC’s dearth of rehabilitation initiatives or substitute housing. They argued that by offering acceptable alternative housing, the state might lessen the negative effects of eviction for those who were affected by it. The petitioners said that they were left without a suitable choice for resettlement as the BMC had neglected to provide them alternative housing. Since there would be no other options, they said, this would violate their rights by making them homeless and more vulnerable. They asserted that the state was in charge of guaranteeing the right to shelter and making sure that those who were affected were given someplace to live when they left. The petitioners underlined that the BMC had a responsibility to meet the housing requirements of the underprivileged and vulnerable segments of society as a public authority. They contended that the state ought to have provided adequate funding for alternative housing or rehabilitation before starting the eviction process, given the effect the eviction would have on the lives of the pavement dwellers.

By the Defendant:

1. Public Health and Safety: According to the BMC, there were serious concerns to public health and safety associated with the petitioners’ pavement dwellings, which were also unlawful. They said that these buildings obstructed public spaces, slowed down traffic, and added to the dirty air of the city. In accordance to the BMC, the eviction was required in order to resolve these issues and keep the city tidy.
2. Municipal Regulations and Urban Development: Urban development and municipal laws were allegedly broken by the pavement houses, as per the BMC. They argued that permitting unpermitted buildings to remain on pavements and public paths would be detrimental to the city’s attempts to promote planned urban development and set a bad example. According to the BMC, the eviction was required to uphold the rules and guarantee that the city’s growth objectives were met.
3. Enhancing Living Conditions: According to the BMC, the eviction will ultimately result in a rise in the standard of living for city dwellers. They contended that the BMC would be better equipped to deal with concerns including environmental dangers, sanitary concerns, and traffic congestion if unlawful pavement dwellings were removed. The BMC said that by creating a more orderly and cleaner urban environment, the eviction will help the citizens of the city.

Views of the Court and Judgement

In accordance with Naresh Shridhar Mirajkar V. State of Maharashtra and Anr., 1966 SCR (3) 744, the Court decided that petitions are maintainable under Article 32 and that an aggrieved party can go to the Supreme Court if they believe that an action taken against them is procedurally ultra vires. It further concluded that the Constitution is the only supreme law of the nation and that the public interest and public purpose are the driving forces behind all of its provisions. The foundation of the doctrine of estoppel is the idea that human affairs benefit from consistency in both speech and deeds. Since the Constitution is the exclusive source and foundation of all legislation, it cannot be revoked. The Court also stated, “No person can barter away the freedoms granted to him by the Constitution. Whether due to a legal error or otherwise, a concession he makes in an action does not give rise to estoppel against him in that or any future proceeding.”

The Right to Livelihood is included in the vast and inclusive scope of the Right to Life. “The easiest way to deprive a person of his Right to Life would be to deprive him of his means of livelihood to the point of abrogation,” the court said, if the Right to Livelihood is not considered as a component of the Constitutional Right to Live. In support of this, the court determined that, in interpreting the meaning and content of the fundamental Rights, Articles 39(a) and 41 should be regarded as equally foundational, citing Munn V. Illinois, 94 U.S. 113 (1876). The Court concluded that in this particular case, people preferred to live in slums or pavements because they were close to their place of employment, which would save commuting times and associated expenses. If they lost the place, they would also lose their work, which would mean they would lose their means of subsistence and, eventually, their right to exist.

Deprivation of life or personal liberty is not outright prohibited under the Constitution. When someone is being denied their fundamental rights, the process used to take such action must be legal, fair, reasonable, and justifiable. In addition, the court inquired as to the actual meaning of Section 314 of the B.M.C. Act in order to assess its constitutionality. The court clarified, saying, “It does not command that the Commissioner, shall, cause an encroachment to be removed, without notice.” As a result, this discretion must be used carefully. The natural justice concept is not intended to constitute an exception in this section. The causes might be related to location, time, perceived threat, etc. “It is only under certain conditions that one may assume the Legislature meant to deviate from this fundamental norm of natural justice. When needed, it is necessary to be aware of certain situations, with the onus being on those who confirm their presence.” It is impossible to apply a fixed standard of reasonableness to every circumstance. As things stand, the process outlined in Section 314 of the B.M.C. Act cannot be deemed unfair, unjust, or unreasonable; the question of whether the system is acceptable in this particular instance is dependent on the circumstances surrounding it. This particular instance received a referral from Francis Corlie Mullin V. The Union Territory of Delhi, AIR 1981 SC 746. Additionally, pavements and pavements are built for the convenience of the general population. Without prior consent, no one is allowed to utilise public property for private reasons. “A person is a trespasser if he uses any public property for a purpose for which it was not intended or authorised.” In this case, it may be said that the behaviour was obviously trespassing.

The petitioners did not intend “to commit an offence or intimidate, insult or annoy any person,” despite the fact that they were utilising the pavements for an unauthorised purpose. Therefore, their actions do not meet the Indian Penal Code’s definition of criminal trespass. “The encroachment committed by these persons is involuntary and not guided by choice,” the court declared. Furthermore, the Court mandated those pavement dwellers who were surveyed by 1976 be assigned to alternative locations rather than farther away, even though this was not a requirement for their removal. After 1976, those who obtained identity cards were sent to different relocation locations. If a slum has improved or evolved over the course of more than 20 years and is not being used for a public purpose, it cannot be eliminated; alternative locations are assigned as needed. The slums will remain until October 31, 1985, at the latest.

References

Case Brief Of Olga Tellis And Ors. Vs. Bombay Municipal Corporation And Ors. (n.d.). Retrieved from The Amikus Qriae: theamikusqriae.com/case-briefhj

Olga Tellis Judgment. (2022, April 25). Retrieved from Next IAS: https://www.nextias.com/ca/c

Olga Tellis v/s Bombay Municipal Corporation – Key Legal Precedent and Social Impact. (n.d.). Retrieved from Legal Service India: legalserviceindia.com/legal/13315

Tahreem, L. (2023, November 26). Case Analysis: Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., (1985) | Right to Livelihood of Homeless. Retrieved from Legal Bites: www.legalbites.in/1985