AIR 1986 SC 18

PRESENTATION ON CASE STUDY REPORT OF

OLGA TELLIS & ORS.VS. BOMBAY MUNICIPAL
CORPORATION

Legal aplitude of the case
PARTIES IN THE CASE
Appellant
Ms. Olga Tellis
Vayyapuri Kuppusami
Respondent
Bombay Municipal Corporation
State of Maharashtra
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.

Facts of the case
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.

Cont.
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.


Issue Involved
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.

Question of Estoppels against fundamental rights or Waiver of
Fundamental Rights.

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.
Scope of right to life under Article 21 of the
Constitution

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

Constitutionality of provisions of Bombay Municipal
Corporation Act, 1888

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.
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.

Whether pavement dwellers are trespasser under
IPC.

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.
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.

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 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.

Thank you !