Olga Tellis And Others v. Bombay Municipal Corporation And Others

I. MAINTAINABILITY OF WRIT PETITION UNDER ARTICLE 32

A. Constitution of India — Article 32 — Estoppel — No estoppel can be claimed, against enforcement of fundamental rights under — Even if petitioners conceded before High Court that they would not claim any fundamental rights in case of their eviction from their pavement or slum dwellings, they would not be estopped from claiming the same before Supreme Court in writ petition

B. Constitution of India — Articles 32 and 21 — Writ petition before Supreme Court when maintainable — Petition against procedurally ultra vires Government action — Writ petition under Article 32 by pavement and slum dwellers challenging procedure prescribed under Section 314 of Bombay Municipal Corporation Act, 1888 for removal of their hutments on ground of violation of Article 21, held, maintainable

C. Estoppel — Principle behind — Estoppel and waiver — No estoppel against enforcement of fundamental rights — Evidence Act, 1872, Section 115

A writ petition was filed on the Original Side of the Bombay High Court by and on behalf of the pavement dwellers claiming reliefs similar to those claimed in the instant batch of writ petitions. The pavement dwellers had conceded 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 demolition of the huts after October 15, 1981. In the present writ petitions under Article 32, the contention of the petitioners is that the procedure prescribed by Section 314 of the B.M.C Act being arbitrary and unfair, it was not “procedure established by law” within the meaning of Article 21 and, therefore, they could not be deprived of their fundamental right to life by resorting to that procedure. The respondents objected to the maintainability of the petitions. A preliminary objection was raised on behalf of the Bombay Municipal Corporation that in view of what was conceded by the petitioner pavement dwellers before the High Court, they were estopped from contending in the present petitions before Supreme Court that the huts constructed by them on the pavements could not be demolished because of their right to livelihood.

Held :

The petitions are clearly maintainable under Article 32.

(Para 31)

C. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions.

(Paras 28 and 29)

A.&C. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but. it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. 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 proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights.

(Para 28)

Basheshar Nath v. CIT, 1959 Supp (1) SCR 528 : AIR 1959 SC 149 : (1959) 35 ITR 190, relied on

B. The question of enforcement of fundamental rights would arise where action is taken under a statute which is ultra vires the Constitution or the action itself is without jurisdiction though taken under an intra vires statute or the action is procedurally ultra vires or where an authority under an obligation to act judicially passes an order in violation of the principles of natural justice. These categories are however, not exhaustive. Having regard to the contention of the petitioners in the present case it is clear that the petitions under Article 32 are maintainable

(Para 31)

Ujjam Bai v. State of U.P, (1963) 1 SCR 778 : AIR 1962 SC 1621 and Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744, 770 : AIR 1967 SC 1, relied on

II. CONSTITUTION OF INDIA — ARTICLE 21 —RIGHT TO LIVELIHOOD

D. Constitution of India — Articles 21, 37, 39(a) and 41 — ‘Life’ — Right to life, held, includes right to the means of livelihood which make it possible for a person to live

E. Constitution of India — Article 32 — Pleading and proof — Eviction of pavement and slum dwellers of Bombay city — Whether would result in deprivation of their means of livelihood — Proof of — Individual cases of deprivation need not be shown — Inference can be drawn from empirical data and by applying common sense — Held, on facts, right to livelihood would be deprived! of if eviction is resorted to — Evidence Act, 1872, Section 3 — Statistical data, reliance on for proof — Court can decide on basis of commonsense itself — Brandies brief

F. Constitution of India — Articles 39(a), 41 and 37 — Must be regarded equally fundamental in interpreting and understanding the meaning and content of fundamental rights — Parts in and IV of the Constitution — Relationship between

G. Practice and Procedure — Issues of general public importance — Proof regarding — Constitution of India, Article 32

The contention of the petitioners is that the right to life guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction would be tantamount to deprivation of their life and hence unconstitutional.

Held :

D. The sweep of the right to life, conferred by Article 21 is wide and far reaching. ‘Life’ means something more than mere animal existence. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, 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 of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. There is thus a close nexus between life and the means of livelihood and as such that, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life.

(Para 32)

Baksey v. Board of Regents, 347 MD 442 (1954); Munn v. Illinois, (1877) 94 US 113 and Kharak Singh v. State of U.P, (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329. relied on

D.&F. The principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But any person, who is deprived of his right to livelihood, except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.

(Para 33)

In Re Sant Ram, (1960) 3 SCR 499 : AIR 1960 SC 932 : (1961) 1 SCJ 98, distinguished

E.&G. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. Issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. In the resolution of such issues, there are no symbolic samples which can effectively project a true picture of the grim realities of life. The present writ petitions, though involve a question relating to dwelling houses, cannot be equated with a suit for possession of a house by one private person against another. In a matter like the present one in which the future of half of the city's population is at stake, the Court must consult authentic empirical data compiled by agencies, official and non-official. It is by that process that the core of the problem can be reached and a satisfactory solution found. It would be unrealistic to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. The matter has to be looked at by using common sense.

(Para 35)

E. In the present case the facts constituting empirical evidence justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and for them there is nowhere else to live. They choose a pavement or a slum in the vicinity of their place of work and to lose the pavement or the slum is to lose the job. The conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.

(Para 36)

But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. Only it must be according to procedure established by law. Therefore the B.M.C Act which allows the deprivation must satisfy Article 21.

(Para 37)

The Report of the Expert Group of Programmes for the Alleviation of Poverty, (1982); Budget and the New 20 Point Socio-Economic Programme, relied on

Note: See Editor's note on this point at the end of the headnote.

III. CONSTITUTION OF INDIA — ARTICLE 21 — REASONABLENESS OF PROCEDURE FOR DEPRIVATION OF LIVELIHOOD — BOMBAY MUNICIPAL CORPORATION ACT, 1888, SECTION 314, — OBSERVANCE OF NATURAL JUSTICE

H. Constitution of India — Article 21 — “Procedure established by law” —Must be reasonable, just and fair —Authority exercising statutory power must act reasonably, otherwise the procedure prescribed by the statute itself would be deemed to be unreasonable — Procedure prescribed under Section 314 of Bombay Municipal Corporation Act, 1888 held, reasonable — Hence eviction of pavement and slum dwellers of Bombay city under Section 314 not violative of Article 21 on ground of procedural unreasonableness

I. Constitution of India — Article 21 — Pavement and slum dwellers — Encroachments on public places by erecting structures or hutments on pavements and in places near highways cannot be claimed by way of right howsoever compelling the necessity may be — Bombay Municipal Corporation Act, 1888 — Sections 61, 63, 312, 313 and 314

J. Constitution of India — Articles 19 and 21 — Rights of pavement and slum dwellers vis-a-vis those of pedestrians

K. Constitution of India — Article 19(6) — Reasonableness — To be determined in the facts and circumstance of the case

L. Municipalities — Bombay Municipal Corporation Act,, 1888 — Section 314 — Power to remove encroachments “without notice” — Held, not unreasonable in the context — Discretion conferred on the Commissioner to serve or not to serve notice must be exercised reasonably — Notice cannot be shelved on mere ground that notice would be futile as the encroachers had no explanations to offer or that the encroachers are criminal trespassers — On facts held, Commissioner justified in removing the encroachments though he should have served notice on the aggrieved persons

M. Administrative Law — Natural justice — Audi alteram partem — Notice — Discretion conferred on statutory authority to act with or without notice — Must be exercised reasonably, fairly and justly — Action without notice not justified on mere ground that the affected party would have no explanation even if hearing afforded by serving notice — Intrinsic and instrumental facets of right to hearing stated

N. Administrative Law — Natural justice— Exclusion of — When permissible

O. Administrative Law — Natural justice — Hearing — Post-decisional hearing — Hearing before an adjudicatory body — Remand when not necessary — Although no hearing afforded by the statutory authority, aggrieved party getting sufficient opportunity of hearing before court — In the circumstances the authority need not be directed to afford hearing to the party again — Practice

P. Penal Code, 1860 — Section 441 — Criminal trespass — Encroachment on public properties by raising hutments on pavements and in slum areas by poor people — Held, on facts, does not amount to criminal trespass

Q. Torts — Trespass — Encroachment on public properties by pavement and slum dwellers out of compelling necessity — Forcible eviction of — Extent of force required — Necessity to cause such encroachment as a plausible defence

R. Interpretation of Statutes — Interpretation which would sustain validity of a provision should be preferred

Sections 312 to 314 of the Bombay Municipal Corporation Act empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. In these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument, of the petitioners is that the procedure prescribed by Section 314 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, it provides expressly that the Municipal Commissioner may cause the encroachment to be removed “without notice”.

Held :

H. Unreasonableness vitiates law and procedure alike. Hence the procedure prescribed by law for depriving a person of his right to life must conform to the norms of justice and fairplay. Procedure, which is unjust or unfair attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it.

(Para 40)

E.P Royappa v. State of T.N, (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621; M.H Hoscot v. State of Maharashtra, (1978) 3 SCC 544 : 1978 SCC (Cri) 468 : (1979) 1 SCR 192; Sunil Batra (I) v. Delhi Administration, (1978) 4 SCC 494 : 1979 SCC (Cri) 155 : (1979) 1 SCR 392; Sita Ram v. State of U.P, (1979) 2 SCC 656 : 1979 SCC (Cri) 576 : (1979) 2 SCR 1085; Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98 : 1980 SCC (Cri) 40 : (1979) 3 SCR 532; Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 : 1980 SCC (Cri) 23; Sunil Batra (Ii) v. Delhi Administration ., (1980) 3 SCC 488 : 1980 SCC (Cri) 777 : (1980) 2 SCR 557; Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 : (1980) 2 SCR 913 : AIR 1980 SC 470; Kasturi Lal Lakshmi Reddy v. State Of J&K, (1980) 4 SCC 1 : (1980) 3 SCR 1338; Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212 : (1981) 2 SCR 516 and Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : (1979) 3 SCR 1014; Viteralli v. Seton, 3 L Ed 2d 1012, relied on

The Influence of Remedies on Rights (Current Legal Problems), 1953, Vol. (6); K.K Mathew : “The Welfare State, Rule of Law and Natural Justice” in his book Democracy, Equality and Freedom, relied on

K. There is no static measure of reasonableness which can be applied to all situations alike. The question “Is this procedure reasonable?” implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case.

(Para 42)

Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri) 212 : (1981) 2 SCR 516, relied on

I.&J. It is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are public properties intended to serve convenient passage and to ensure a reasonable measure of safety and security to the general public. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. Even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter. Pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. The existence of dwellings on the pavements is an act of trespass and a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. Such encroachments promote public nuisance, constitute grave traffic hazards and jeopardise public safety, health and convenience.

(Para 43)

Hickman v. Maisey, (1900) 1 QB 752 and Kadish : Methodology and Criteria in Due Process Adjudication — A Survey and Criticism, 66 Yale LJ 319, 340 (1957), relied on

L.&R. Section 314 of the B.M.C Act 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. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. This interpretation is preferable because it helps sustain the validity of the law. It must further be presumed that, while vesting in the Commissioner the power to act without notice, the legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule could be presumed to have been intended.

(Paras 44 and 45)

N. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.

(Para 45)

M. The decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. The proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to the well-recognised understanding of the real import of the rule of hearing. Justice must not only be done but must manifestly be seen to be done. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decisions taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons.

(Paras 46 and 47)

Normally to the reply received to the notice under Section 314 the Commissioner should apply his mind carefully to the nature and extent of encroachment and also to the time to be allowed for removal of the encroachment. He must bring human compassion to the situation arising out of the destruction of dwelling places.

(Para 46)

S.L Kapoor v. Jagmohan, (1980) 4 SCC 379 : (1981) 1 SCR 746; Ridge v. Baldwin, (1964) AC 40, 68; John v. Rees, 1970 Ch 345, 402; Annamunthodo v. Oilfields Workers' Trade Union, (1961) 3 All ER 621, 625 (HL); Margarita Fuentes et al v. Tobert L. Shevin, 32 L Ed 2d 556, 574 and Chintapalli Agency Taluk Arrack Sales Cooperative Society Ltd. v. Secretary (Food and Agriculture) Government of A.P, (1977) 4 SCC 337 : (1978) 1 SCR 563, relied on

Kadish : Methodology and Criteria in Due Process Adjudication — A Survey and Criticism, 66 Yale LJ 319, 340 (1957); Goldberg v. Kelly, 397 US 254, 264-65 (1970) (right of the poor to participate in public processes); Joint Anti-fascist Refugee Committee v. McGrath, 341 US 123, 171-172 (1951); Laurence H. Tribe : American Constitutional Law (1978 Edn., p. 503), relied on

P. The encroachments committed by the petitioners are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. They manage to find a habitat in the pavements or slums out of sheer helplessness. Their intention or object in doing so is not to “commit an offence or intimidate, insult or annoy any person”, which is the gist of the offence of “criminal trespass” under Section 441 of the Penal Code.

(Para 49)

Q. 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. Besides, under the law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. A balance has to be struck between competing sets of values.

(Para 49)

Salmond and Houston : Law of Torts, 18th Edn. (Chapter 21, p. 463, Article 185— ‘Necessity’), relied on

Q.&L. Normally, the Court would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the Commissioner was granted in an ample measure, both sides having made their contentions elaborately on facts as well as on law. Having considered those contentions, it is clear that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads.

(Para 51)

Ultimately there is no short term solution to squatter colonies. The phenomenon is universal more so in developing countries. Decongestion of cities can be controlled by creating alternative job opportunities in rural areas and to spread them evenly in urban areas.

(Para 57)

[Ed. (1) Re Sant Ram case distinguished in the present judgment was decided by a five-Judge Bench. That case was later affirmed by a three-Judge Bench in A.V Nachane v. Union of India, (1982) 1 SCC 205 : 1982 SCC (L&S) 53. Having regard to these two decisions a three-Judge Bench of the Court in Begulla Bapi Raju v. State of A.P, (1984) 1 SCC 66 concluded that the view taken in Sant Ram and Nachane that ‘life’ in Article 21 does not include livelihood still held the field. In view of the contrary decision rendered by a five-Judge Bench in the present case, the decision in the aforesaid cases must be deemed to be either limited or impliedly overruled by the present judgment. The view of Desai, J. (speaking for himself and R.B Misra, J.) in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, (1983) 1 SCC 124 : 1983 SCC (L&S) 61 appears to be more akin to the present position when in the context of service jurisprudence he observed that the word ‘life’ in Article 21 includes livelihood and that where the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, “some of the final graces of human civilisation which make life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedure”.

(2) The view of the Court in the present case that the principles contained in Articles 39(a) and 41 must be regarded as equally fundamental in understanding and interpreting the meaning and content of fundamental rights is in consonance with the following observations of Chinnappa Reddy, J. (for himself and on behalf of A.P Sen and Baharul Islam, JJ.) in Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119 in the context of the concept of “equal pay for equal work” in service jurisprudence:

“It is true that the principle of “equal pay for equal work” is not expressly declared by our Constitution to be a fundamental right. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a Directive Principle of State Policy … Directive Principles, as has been pointed out in some of the judgments of this Court, have to be read into the fundamental rights as a matter of interpretation . . . . Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle “equal pay for equal work” is deducible from those Articles….”

However, in Kishori Mohanlal Bakshi v. Union Of India ., AIR 1962 SC 1139 : (1962) 44 ITR 532 a Constitution Bench of the Court had observed that “the abstract doctrine of equal pay for equal work has nothing to do with Article 14”. In a recent case viz. P. Savita v. Union of India, 1985 Supp SCC 94 relating to pay scales of Government servants it was brought to the notice of the Court that the observations made in Kishori Mohanlal Bakshi, may perhaps run counter to those made in Randhir Singh. The Court observed in the context as follows:

“The above decision of this Court (Randhir Singh case) has enlarged the doctrine of equal pay for equal work, envisaged in Article 39(d) of the Constitution of India and has exalted it to the position of a fundamental right by reading it along with Article 14. This exposition of law had given rise to some whispering dissent in that the doctrine had been extended beyond permissible limits . . . .”

The Court however did not consider the matter at length and decided the case on ground of violation of Article 14.]

R-M/7032.C