Olga Tellis v. Bombay Municipal Corporation

Abstract

India has witnessed a large number of historical judgments that have evolved and made our Constitution of India an embodiment of justice, equality, and good conscience. one amongst those judgments that broadened the horizons of the meaning of Fundamental Rights was Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors, which embarked as a paradigm of the democratic government of the state. The ruling recognizes the rights of the second generation because the pillars of the rights of the primary generation, that is, the basic rights, and confers the appliance of broad interpretation because the judiciary acts as a mechanism to enforce the basic rights by placing yourself within the place of parliament to manage government policies. The sentence tends to pave the thanks to broadening the scope of the proper to live and provides up the infraction unreasonably.

Introduction

Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors was decided in 1985 by the five Judges Bench of the Supreme Court of India. The Hon’ble bench comprised of C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J., S. Murtaza Fazal Ali and J., V.D. Tulzapurkar. This case came before the Supreme Court as a writ petition by persons who live on pavements and in slums in the city of Bombay. It was prayed by the petitioners to allow them to stay on the pavements against their order of eviction. The majority judgment (concurring by all the five Judges) was delivered by Hon’ble Chief Justice Y.V.Chandrachud.

Background

Article 21 of the Constitution is one in every of the most articles included partially III of the Constitution of India that deals with fundamental rights. the elemental rights listed partly III are enforceable against the State as defined in Article 12 of the Constitution of India. Under the provisions of Article 13, incompatible laws or in derogation of fundamental rights to the extent of such inconsistency or repeal shall be considered void. With relevance Article 21, it states that no one shall be empty his life or personal liberty, except under the procedure established by law. The questionable question is what’s the proper connotation of the word “life”, as covered by that Article? Will it include the correct to livelihood or the correct to figure or will it only connote bare physical existence?

If any procedural law can validly deprive a person of his life or personal liberty, he must accommodate the subsequent requirements: The procedure established by said law must be the results of the valid exercise of legislative power by the competent legislative authority. The relevant Articles that might govern the said law as provided in Article 21 and by the virtue of which the said law must be proved to agree with Articles 14, 19, and 22 of the Constitution of India.

Facts

1. In Olga Tellis v. Bombay Municipal Corporation, the state of Maharashtra in 1981 and therefore the Bombay Municipal Corporation decided to evict the pavement dwellers and people who were residing in slums in Bombay.

2. Under it, 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.

3. The eviction was to proceed under Section 314 of the Bombay Municipal Corporation Act 1888.

4. On hearing about the Chief Minister’s announcement they filed a writ petition within the tribunal of Bombay for an order of injunction restraining the officers of the government and also the Bombay Municipal Corporations from implementing the directive of the Chief Minister.

5. The state supreme court of Bombay granted an advertisement interim injunction to be operative until July 21, 1981. Respondents agreed that the huts won’t be demolished until October 15, 1981. Contrary to agreement, on July 23, 1981, petitioners were huddled into State Transport buses for being deported out of Bombay.

6. The respondent’s action was challenged by the petitioner because it’s violative of Articles 19 and 21 of the Constitution. They also asked for a declaration that Section 312, 313, and 314 of the Bombay Municipal Corporation Act 1888 is violative of Articles 14, 19, and 21 of the Constitution.

 Issues

• Whether Question of Estoppels against fundamental rights or Waiver of Fundamental Rights?
•Whether Scope of right to life under Article 21 of the Constitution?
•Whether Constitutionality of provisions of the Bombay Municipal Corporation Act, 1888.
•Whether pavement dwellers are “trespasser” under I.PC.

Related Provisions

Constitution of India, 1950

Articles 14 – Equality before law—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

Article 16- Equality of opportunity in matters of public employment.

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

 Article 19 – Protection of certain rights regarding freedom of speech, etc.

(1) All citizens shall have the right— (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions [or co-operative societies]; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (g) to practise any profession, or to carry on any occupation, trade or business

Article 21 – Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law. [21A. Right to education.—The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]

Article  22 – Protection against arrest and detention in certain cases.

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply— (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

 Article 25- Freedom of conscience and free profession, practice and propagation of religion.

 Article- 29- Protection of interests of minorities.

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 32 – Remedies for enforcement of rights conferred by this Part

 Article 37- Application of the principles contained in this Part- The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Article 39 – Certain principles of policy to be followed by the State. The State shall, in particular, direct its policy towards securing—

(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(d) that there is equal pay for equal work for both men and women;

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 

[(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.]

Article 41-   – Right to work, to education and to public assistance in certain cases—The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Indian Penal Code, 1860

Section 441 – criminal trespass – Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

Bombay Municipal Corporation Act, 1888

Sections 312 – Prohibition of structures or fixtures which cause obstruction in streets. – (1) No person shall, except with the permission of the Commissioner under section 310 or 317, erect or set up 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 so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion of such street, channel, drain, well or tank.

(2) Nothing in this section shall be deemed to apply to any erection or thing to which clause (c) of section 322 applies.

Article 313 – Prohibition of deposit. etc., of things in streets. – (1) No person shall, except with the written permission of the Commissioner, –

(a) place or deposit upon any street or upon any open channel, drain or well in any streets [or in any public place] any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or encroachment thereon;

(b) project, at a height of less than twelve feet from the surface of the street, any board, or shelf, beyond the line of the plinth of any building, over any street, or over any open channel, drain, well or tank in any street;

(c) attach to, or suspend from, any wall or portion of a building abutting on a street, at a less height than aforesaid, anything whatever.

(2) Nothing in clause (a) applies to building materials.

Article 314 – [Power to remove without notice anything erected, deposited or hawked in contravention of section 312, 313 or 313A.] – The Commissioner may, without notice, cause to be removed –

• any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the provisions of sub-section (1) of section 312, after the same comes into force [in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 [or in the extended suburbs after the date of the coming into force of the Bombay Municipal (Further Extension of Limits and Schedule BBA (Amendment)] Act, 1956];]
• any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in, upon, from or to any place in contravention of sub-section (1) of section 313;
• [any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.]

Provided that, the Commissioner shall, while executing such removal, allow such person to take away his personal belongings and household articles, such as cooking vessels, bed and beddings of the family, etc.]

Related Cases

The then-Rajiv Gandhi-led government overturned the decision in the Shah Bano case through the Muslim Women (Right to Protection on Divorce) Act, 1986 , which restricted the right of a Muslim woman the interview provided for in Section 125 of the Code of Criminal Procedure. The Supreme Court had simply made an observation for the adoption of the Uniform Commercial Code, which did not bind either the government or the Parliament, and that there should be no interference in the laws of the person unless the request came inside.

Narmada dam cases, adequate resettlement was ordered but most affected evictees have not been properly resettled and the majority of the Court declined to examine the extent to which their judgment was enforced in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664.

Judgment

Although the Court refused to conclude that the expelled inhabitants were entitled to an alternate site, it ordered that:

1. nobody has the proper to encroach on trails, sidewalks, or the other place reserved for public purposes.

2. the supply of section 314 of the Bombay Municipality Act isn’t unreasonable within the circumstances of this case.

3.Sites must be provided to censored residents in 1976.

4. Slums existing for 20 years or more shouldn’t be removed unless the land is required for public purposes and, during this case, alternate sites must be provided.

5.High priority should be to resettlement.

In the case of the Narmada Dam, adequate resettlement was ordered, but most of the evicted persons affected weren’t properly resettled and also the majority of the Court refused to.

The Supreme Court said that simply because the petitioners conceded within the tribunal of Bombay that they didn’t claim any fundamental rights to place up the pavements on public roads, they’re not stopped from contending that the huts constructed by them on the pavements can not be demolished. The Court further said that it’s insufferable to just accept this contention. It said that the Constitution of India is that the arbiter within the country. There is no estoppel against the Constitution. it’s the paramount law of the land. Therefore the court decided that whether or not the petitioners said that they failed to want to enforce their fundamental right to construct hutments on pavements still they’re entitled to claim that any such action on the part of the general public authorities is going to violate the elemental rights. The Court said that the petitioner’s case which said that the right to livelihood should be included within the right to life because if they’re evicted from their slum and pavement dwellings they’re going to be empty their means of livelihood which might tantamount to their deprivation of the correct to live and hence it’d be unconstitutional stands true and Article 21 does include the proper to livelihood. The Court said the case of Olga Tellis they believed that the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act, 1888 the removal of encroachments on the footpaths or pavements over which the general public has the proper to passage or access can’t be considered unreasonable, unfair, unjust. The Court further said that footpaths and pavements are public properties which are intended to serve the convenience of the overall public.

Therefore the court held that nobody has the correct to encroach anyplace reserved or embarked for the general public purpose which the supply contained in Section 314 of the Bombay Municipal Corporation Act isn’t unreasonable. The Court looking into these circumstances ordered that the dwellers be evicted for 1 month. The state was also directed to present alternate accommodation to certain dwellers. This wasn’t a condition precedent for eviction and was merely to grant effect to certain earlier assurances by the govt.

Concepts Highlighted

the choice of the Supreme Court, during this case, was supported the humanistic approach of the judges, and also the Apex Court stepped into the activist role. The Hon’ble Supreme Court held that the slum dwellers must get the choice shelter if they’re evicted from the pavements. Although, the eviction orders were held to be valid under Article 14 and 19 of the Constitution. the correct to live was once more enlarged to engulf the correct to livelihood as being a component of the freedom of a personal. the choice of the Court also focused on the concept of the state and reliance though not expressly but impliedly was placed on the Directive Principles of the State Policies under the Constitution.

The judgment reflects greatly the ‘Principle of Utility’ propounded by a philosopher. in keeping with Bentham happiness is often maximized given that instances of pain are lighter and fewer. The judgment delivered by the Hon’ble Court is said to be the replica of the thought embodied within the ‘Principle of Utility’. Slum and pavement dwellers constitute almost 1/2 the entire population of Bombay.

The participation of the interests of such an outsized number of individuals forced the Court to lean in their favor despite the existence of the particular law for the eviction of the inhabitants of the pavement. per the jurist of the court, Y.V. Chandrachud, although the petitioners are using unauthorized pavements and material possession, don’t seem to be in any way “criminal intruders” under section 441 of the Criminal Code of India, since their objective or reason for doing so isn’t to commit a criminal offense or intimidates, insults or annoys any individual, rather they’re forced by unavoidable circumstances and don’t seem to be guided by choice. They only manage to search out habitat in dirty or swampy places. This decision, where the scope of the term “life” was extended, has also paved the way for the reform of substantive law.

References

http://www.legalserviceindia.com/articles/case.htm

https://www.escr-net.org/caselaw/2006/olga-tellis-ors-v-bombay-municipal-council-1985-2-supp-scr-51