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CASE STUDY REPORT ON

OLGA TELLIS & ORS.
VS.
BOMBAY MUNICIPAL CORPORATION
AIR 1986 SC 18

LL.M. [Access to Justice] 2014-15
Submitted to Dr. Murali Karnam

SUBMITTED BY
PRATIK SONI
LL.M. (ACCESS TO JUSTICE)
TATA INSTITUTE OF SOCIAL SCIENCE, MUMBAI
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TITLE OF THE CASE
Olga Tellis & Ors Versus Bombay Municipal Corporation & Ors. 1986 AIR 180, 1985 SCR Supl.
(2) 51
CITATION
AIR 1986 SC 18
(1985) 3 SCC 545
PARTIES IN THE CASE
Appellant
Ms. Olga Tellis
Vayyapuri Kuppusami
Respondent
Bombay Municipal Corporation
State of Maharashtra
BENCH OF THE COURT
Honorable Y.V. Chandrachud, C.J.,
Honorable A. Vardarajan,
Honorable O. Chinnappa Reddy,
Honorable S. Murtaza Fazal Ali and
Honorable V.D. Tulzapurkar,
LAWS INVOLVED IN THE CASE
Constitution of India 1950: Articles 14, 15, 16, 19, 19(1), 21, 22, 25, 29, 32, 37, 39, and
Article 41
I.P.C, 1860: Section 441.
Bombay Municipal Corporation Act, 1888: Sections 312, 313, 314.

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NATURE OF THE CASE
The Writ Petition was filed under Article 32 of the Constitution. Olga Tellis, was a lady journalist
along with Peoples Union For Civil Liberties and many other organizations took the issue and
challenged the order of eviction passed by Mr. A.R. Antulay, who was the Chief Minister of
Maharashtra at that time. Pavement dwellers and Public Interest Organizations claimed that
order of eviction of pavement dwellers is violation of fundamental rights. Eviction deprives
them from their Fundamental Rights enshrined in Article 19(1)(3), 19(1)(g) and Right to Life
guaranteed under Article 21 of the constitution of India.
FACTS
The state of Maharashtra and the Bombay Municipal Corporation somewhere in the June of
1981 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 regarding eviction of slum dwellers
and pavement dwellers out of Bombay 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 violation
of Articles 19(1)(3), 19(1)(g) and Article 21 of the Constitution. The Respondents 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 PRAYED
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.
MAJOR ISSUES INVOLVED IN THE CASE
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.
Constitutionality of provisions of Bombay Municipal Corporation Act, 1888
Scope of right to life under Article 21 of the Constitution
Whether pavement dwellers are trespasser under IPC.
ARGUMENT & COURTS OBSERVATION
Respondent argued in the court that pavement dwellers had agreed 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 knocking down 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 article 21 includes right to
livelihood and since, they will be deprived of their livelihood they will be suffering a severe
and damaging lack of basic material and cultural benefits, if they are evicted from their slum
and pavement dwellings, their eviction would be tantamount to deprivation of their life and
hence unconstitutional.
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Court observed, The sweep of the right to life conferred by Article 21 of the constitution of
India is wide and far reaching. It does not mean merely that life cannot be reduce or taken
away except according to procedure established by law. That is but one of the important aspect
of the right to life. An equally important aspect 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 remove him of his means of livelihood to the point of abrogation. And 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 total didacticism, 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.
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Justice 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.
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.
Court 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.
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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 includes and reflects the values of
humanity. The eviction orders were held valid under Article 14, and 19 of the Constitution, but
the right to life was enlarged enough so as to bring the right to livelihood under the right to
life under Article 21 of the Constitution. The Honble court held that the respondents (Bombay
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 contain that motto of a state action should be the maximum happiness of
the maximum number. According to Jeremy Bentham happiness can be maximized only if
instance of pain are lighter and fewer. The judgment delivered by the Honble Court can be said
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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.