Olga Tellis & Ors v Bombay Municipal

Council [1985] 2 Supp SC 51!

Country:
India
Thematic Focus:
Housing Rights
Forum and Date of Decision:
Supreme Court of India
1985!"1!
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&ature of the Case:
'a(ement d)e**ers and pu+*ic interest organi,ations c*aims e(iction of pa(ement
d)e**ers )ou*d (io*ate right to *ife under the Constitution +y depri(ing them of their
*i(e*ihood- right to *ife inc*udes protection of means of *i(e*ihood- o+*igations to pro(ide
natura* #ustice +efore e(iction +ut no automatic right to resett*ement under Indian
constitutiona* *a)%
Summary:
In 1981. the State of /aharashta and the 0om+ay /unicipa* Counci* decided to e(ict a**
pa(ement and s*um d)e**ers from the city of 0om+ay% The residents c*aimed such action
)ou*d (io*ate the right to *ife. since a home in the city a**o)ed them to attain a *i(e*ihood
and demanded that ade1uate resett*ement +e pro(ided if the e(ictions proceeded% The
Court dec*ined to pro(ide the remedies re1uested +y the app*icants +ut found that the
right to a hearing had +een (io*ated at the time of the p*anned e(iction% The Court he*d
that the right to *ife. in 2rtic*e 31 of the Constitution. encompassed means of *i(e*ihood
since. 4if there is an o+*igation upon the State to secure to citi,ens an ade1uate means of
*i(e*ihood and the right to )or5. it )ou*d +e sheer pedantry to e6c*ude the right to
*i(e*ihood from the content of the right to *ie%7 Ho)e(er. the right to a *i(e*ihood )as not
a+so*ute and depri(ation of the right to *i(e*ihood cou*d occur if there )as a #ust and fair
procedure underta5en according to *a)% The go(ernment8s action must +e reasona+*e and
any person affected must +e afforded an opportunity of +eing heard as to )hy that action
shou*d not +e ta5en% In the present case. the Court found that the residents had +een
rendered the opportunity of +eing heard +y (irtue of the Supreme Court proceedings%
9hi*e the residents )ere c*ear*y not intending to trespass. they found it )as reasona+*e
for the go(ernment to e(ict those *i(ing on pu+*ic pa(ements. footpaths and pu+*ic roads%
The e(ictions )ere to +e de*ayed unti* one month after the monsoon season :;1 <cto+er
1985=% The Court dec*ined to ho*d that e(icted d)e**ers had a right to an a*ternati(e site
+ut instead made orders that: :i= sites shou*d +e pro(ided to residents presented )ith
census cards in 19">- :ii= s*ums in e6istence for 3! years or more )ere not to +e remo(ed
un*ess *and )as re1uired for pu+*ic purposes and. in that case. a*ternati(e sites must +e
pro(ided- :iii= high priority shou*d +e gi(en to resett*ement%
Keywords: <*ga Te**is ? <rs ( 0om+ay /unicipa* Counci* @1985A 3 Supp SCR 51.
Housing. Rights
Bnforcement of the Decision and <utcomes:
The pa(ement d)e**ers )ere e(icted )ithout resett*ement% Since 1985. the princip*es in
this case ha(e +een affirmed in many su+se1uent decisions. fre1uent*y *eading to *arge
sca*e e(ictions )ithout resett*ement% For e6amp*e. in the &armada dam cases. ade1uate
resett*ement )as ordered +ut most affected e(ictees ha(e not +een proper*y resett*ed and
the ma#ority of the Court dec*ined to e6amine the e6tent to )hich their #udgment )as
enforced: see Narmada Bachao Andolan v. Union of India :3!!!= 1! SCC >>C%
Significance of the Case:
<*ga Te**is has stated: 4Ironica**y.@the caseA he*ped the propertied c*asses- *a)yers often
cite the case to #ustify e(iction of tenants and s*um d)e**ers% 0ut it a*so he*ps the s*um
d)e**ers- the Do(ernment can8t e(ict them summari*y% The case a*so spa)ned a *ot of
interest in fighting for housing as a fundamenta* right E +ut if you )ere a pa(ement
d)e**er. it is #ust not enough%7 This case is )ide*y 1uoted as e6emp*ifying the use of ci(i*
and po*itica* rights to ad(ance socia* rights +ut it is a*so (ie)ed as pro+*ematic due to its
fai*ure to pro(ide for the right to resett*ement% It is a*so inconsistent )ith de(e*opments in
other #urisdictions. )here courts ha(e found stronger rights to resett*ement%
Featured 2ttachments:
Decision%doc
Droups in(o*(ed in the case:
The case )as +rought +y 11 residents. the 'eop*es Fnion for Ci(i* Gi+erties. Committee
for the 'rotection of Democratic Rights. and t)o #ourna*ists. one of )hom )as <*ga
Te**is% 'eop*eHs Fnion for Ci(i* Gi+erties 81 Sahayoga apartments /ayur Iihar I De*hi
11!!91. India 9111335!!1C :te*efa6=- 9111335>9;1 :fa6= 91113C93;C3 Bmai*:
nationa*$puc*%org 9e+: )))%puc*%org Ga)yers for the petitioners inc*uded: /iss Indira
Jaisingh. /iss Rani Jethma*ani. 2nand Dro(er. Sumeet Kachh)aha. Ram Jethma*ani.
I%/% Tar5unde. /iss Darshna 0hogi*a*. /rs% Indu Sharma and '%H% 'are5h%
<GD2 TBGGIS ? <RS%
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CHI&&2''2 RBDDL 2&D 2% I2R2D2R2J2&. JJ%A
Constitution of India. 195!
2rtic*e ;3 Fundamenta* Rights Bstoppe* 'rincip*e +ehind &o estoppe* can +e
c*aimed against enforcement of Fundamenta* Rights%
2rtic*e 31. 19:1= :e= ? :g= 'a(ement and s*um d)e**ers Forci+*e e(iction and remo(a* of
their hutments under 0om+ay /unicipa* Corporation 2ct 9hether depri(es them of
their means of *i(e*ihood and conse1uent*y right to *ife Right to *ife /eaning of
9hether inc*udes right to *i(e*ihood%
2rtic*e ;3 ? 31 9rit 'etition against procedura**y u*tra (ires Do(ernment action
9hether manintaina+*e%
0om+ay /unicipa* Corporation 2ct. 1888. s%;1C 'o)er to remo(e encroachments
N)ithout noticeN. )hen permissi+*e C Section 9hether u*tra (ires the Constitution%
2dministrati(e Ga) &atura* Justice 2udi a*teram partem &otice Discretion to act
)ith or )ithout notice must +e e6ercised reasona+*y. fair*y and #ust*y &atura* #ustice O
B6c*usion Ho) far permissi+*e%
The petitioners in )rit petitions &os% C>1!13P81 *i(e on pa(ements and in s*ums in the
city of 0om+ay% Some of the petitioners in the second +atch of )rit petitions &os% 5!>8
"9 of 1981. are residents of Kamra# &agar. a +asti or ha+itation )hich is a**eged to ha(e
come into e6istence in a+out 19>!>1. near the 9estern B6press High)ay. 0om+ay.
)hi*e others are residing in structures constructed off the Tu*si 'ipe Road. /ahim.
0om+ay% The 'eop*es Fnion for Ci(i* Gi+erties. Committee for the 'rotection of
Democratic Rights and t)o #ourna*ists ha(e a*so #oined in the )rit petitions%
Some time in 1981. the respondents State of /aharashtra and 0om+ay /unicipa*
Corporation too5 a decision that a** pa(ement d)e**ers and the s*um or +ustQ d)e**ers in
the city of 0om+ay )i** +e e(icted forci+*y and deported to their respecti(e% p*aces of
origin or remo(ed to p*aces outside the city of 0om+ay% 'ursuant to that decision. the
pa(ement d)e**ings of some of the petitioners )ere in fact demo*ished +y the 0om+ay
/unicipa* Corporation% Some of the petitioners cha**enged the aforesaid decision of the
respondents in the High Court% The petitioners conceded +efore the High Court that they
cou*d not c*aim any fundamenta* right to put up huts on pa(ements or pu+*ic roads. and
a*so ga(e an underta5ing to (acate the huts on or +efore <cto+er. 15. 1981% <n such
underta5ing +eing gi(en. the respondents agreed that the huts )i** not +e demo*ished unti*
<cto+er 15. 1981 and the )rit petition )as disposed of according*y%
In )rit petitons fi*ed under 2rtic*e ;3. the petitioners cha**enged the decision of the
respondents to demo*ish the pa(ement d)e**ings and the s*um hutments on the grounds
:i= that e(icting a pa(ement d)e**er from his ha+itat amounts to depri(ing him of his
right to *i(e*ihood. )hich is comprehended in the right guaranteed +y 2rtic*e
31 of the Constitution that no person sha** +e depri(ed of his *ife e6cept according to
procedure esta+*ished +y *a). :ii= that the impunged action of the State Do(ernment and
the 0om+ay /unicipa* Corporation is (io*ati(e of the pro(isions contained in 2rtic*e
19:1=:;=. 19:1=:g= and 31 of the Constitution. :iii= that the procedure prescri+ed +y
section ;1C of the 0om+ay /unicipa* Corporation 2ct. 1888 for the remo(a* of
encroachments from pa(ements is ar+itrary and unreasona+*e since. not on*y does it not
pro(ide for the gi(ing of a notice +efore the remo(a* of an encroachment +ut. e6press*y
ena+*es that the /unicipa* Commissioner may cause the encroachments to +e remo(ed
)ithout notice. :i(= that it is constitutiona**y impermissi+*e to characterise the pa(ement
d)e**ers as tresspassers. +ecause their occupation of pa(ements arises from economic
compu*sions- and :(= that the Court must determine the content of the right to *ife. the
function of property in a )e*fare state. the dimension and true meaning of the
constitutiona* mandate that property must su+ser(e common good. the territory of India
)hich is guaranteed +y 2rtic*e 19:1= :a= and the right to carry on any occupation. trade or
+usiness )hich is guaranteed +y 2rtic*e 19:1= :g=. the competing c*aims of pa(ement
d)e**ers on the one hand and of the pedestrians on the other and. the *arger 1uestion of
ensuring e1ua*ity +efore the *a)%
The respondents contested the )rit petitions contending that :1= the petitioners must +e
stopped from contending in the Supreme Court that the huts constructed +y them on the
pa(ements cannot +e demo*ished +ecause of their right to *i(e*ihood. since they had
conceded in the High Court that they did not c*aim any fundamenta* right to put up huts
on pa(ements or pu+*ic roads and had gi(en an underta5ing to the High Court that they
)i** not o+struct the demo*ition of the huts after <cto+er 15. 1981%- :3= thatCno person
has any *ega* right to encroach upon or to construct any structure on a footpath. pu+*ic
street or on any p*ace o(er )hich the pu+*ic has a right of )ay% The right conferred +y
2rtic*e 19:1= :e= of the Constitution to reside and sett*e in any part of India cannot +e
read to confer a *icence to encroach and trespass upon pu+*ic property- :;= that the
pro(isions of sections ;13. ;1; and ;1C of the 0om+ay /unicipa* Corporation% 2ct do
not (io*ate the Constitution. +ut are concei(ed in pu+*ic interest and great care is ta5en +y
the authorities to ensure that no harrasment is caused to any N pa(ement d)e**er +y
enforcing the pro(isions- :C= that the huts near the 9estern B6press High)ay. Ii*e 'ar*e.
0om+ay. )ere Rconstructed on an accessory road )hich is a part of the High)ay %itse*f.
and )ere ne(er regu*arised +y the Corporation and no registration num+ers )ere assigned
to them- :5= that no depri(ation of *ife. either direct*y or indirect*y is in(o*(ed in the
e(iction of the s*um and pa(ementd)e**er from pu+*ic p*aces% The /unicipa*
Corporation is under an o+*igation under section ;1C of the 0%/%C% 2ct to remo(e
o+struction on pa(ements. pu+*ic streets and other pu+*ic p*aces% The petitioners ha(e not
on*y (io*ated the pro(isions of the 0om+ay /unicipa* Corporation 2ct. +ut they ha(e
contra(ened sections 111 and 115 of the 0om+ay 'o*ice 2ct a*so%
Disposing of the )rit petitions.
HBGD: 1%1 The petitions are c*ear*y maintaina+*e under 2rtic*e ;3 of the Constitution%
9here the action ta5en against a citi,en is procedura**y u*tra (ires. the
aggrie(ed party can mo(e the Supreme Court under 2rtic*e ;3% @"9 CDA
&aresh Shridhar /ira#5ar (% State of /aharashtra @19>>A ; S%C%R% "CC""!. fo**o)ed%
Smt% F##am 0ai (% State of Fttar 'ardesh @19>;A 1 S%C%R% ""8. referred to%
SF'RB/B C<FRT RB'<RTS
1%3 There can +e no estoppe* against the Constitution% The Constitution is not on*y the
paramount *a) of the *and +ut. it is the source and sustenance of a** *a)s% Its pro(isions
are concei(ed in pu+*ic interest and are intended to ser(e a pu+*ic purpose% The doctrine
of estoppe* is +ased on the princip*e that consistency in )ord and action imparts certainty
and honesty to human affairs% If a person ma5es representation to another. on the faith of
)hich the *atter acts to is pre#udice. the former cannot resi*e from the representation made
+y him% He must ma5e ItN good% This princip*e can ha(e no app*ication to representations
made regarding the assertion or enforcement of fundamenta* rights% @"" CBA
1%; Fundamenta* rights are undou+ted*y conferred +y the Constitution upon indi(idua*s
)hich ha(e to +e asserted and enforced +y them. if those rights are (io*ated% 0ut. the high
purpose )hich the Constitution see5s to achie(e +y conferment of fundamenta* rights is
not on*y to +enefit indi(idua*s +ut to secure the *arger interests of the community% The
'reama+*e of the Constitution says that India is a democratic Repu+*ic% It is in order to
fu*fi* the promise of the 'ream+*e that fundamenta* rights are conferred +y the
Constitution. some on citi,ens *i5e those guaranteed +y 2rtic*es 15. 1>. 19. 31 and
39 and. some on citi,ens and nonciti,ens a*i5e. *i5e those guaranteed +y 2rtic*es 1C. 31.
33 and 35 of the Constitution% &o indi(idua* can . +arter a)ay the freedoms conferred
upon him +y the Constitution% 2 concession made +y him in a proceedings. )hether
under a mista5e of *a) or other)ise. that he does not possess or )i** not enforce any
particu*ar fundamenta* right. cannot create an estoppe* against him in that or any
su+se1uent proceedings% Such a concession. if enforced. )ou*d defeat the purpose of the
Constitution% @"" FH. "8 20A
The p*ea of estoppe* is c*ose*y connected )ith the p*ea of )ai(er. the o+#ect of +oth +eing
to ensure +ona fides in daytoday transactions% @"8 DA
In the instant case. not)ithstanding the fact that the petitioners had conceded in the
0om+ay High Court that they ha(e no fundamenta* right to construct hutments on
pa(ements and that they )i** not o+#ect to their demo*ition after <cto+er 15. 1981. they
are entit*ed to assert that any such action on the part of pu+*ic authorities )i** +e in
(io*ation of their fundamenta* rights% Ho) far the argument regarding the e6istence and
scope of the right c*aimed +y the petitioners is )e**founded is another matter% 0ut. the
argument has to +e e6amined despite the concession% @"8 CDA
0asheshar &ath (% The Commissioner of Income Ta6 De*hi :1959= Supp% 1%S%C%R% 538.
referred to:%
3%1 The s)eep of the right to *ife conferred +y 2rtic*e 31 is )ide and far reaching% It does
not mean mere*y that *ife cannot +e e6tinguished or ta5en a)ay as. for e6amp*e. +y the
imposition and e6ecution of the death sentence. e6cept according to procedure
esta+*ished +y *a)% That is +ut one aspect of the right to *ife% 2n e1ua**y important facet
of that right is the right to *i(e*ihood +ecause. no person can *i(e )ithout the means of
*i(ing. that is. the means of *i(e*ihood% If the right to *i(e*ihood is not treated as a part of
the constitutiona* right to *ife. the easiest )ay of depri(ing a person of his right to *ife
)ou*d +e to depri(e him of his means of *i(e*ihood to the point of a+rogation% Such
depri(ation )ou*d not on*y denude the *ife of its effecti(e content and meaningfu*ness
+ut it )ou*d ma5e *ife impossi+*e to *i(e% 2nd yet. such depri(ation )ou*d not ha(e to +e
in accordance )ith the procedure esta+*ished +y *a). if the right to *i(e*ihood is not
regarded as a part of the right to *ife% That. )hich a*one ma5es it possi+*e to *i(e. *ea(e
aside )hat ma5es *i5e *i(a+*e. must +e deemed to +e an Integra* component of the right to
*ife% @"9 FH. 8! 20A
3%3 The princip*es contained in 2rtic*es ;9:a= and C1 must +e regarded as e1ua**y
fundamenta* in the understanding and interpretation of the meaning and content of
fundamenta* rights% If there is an o+*igation upon the State to secure to the citi,ens an
ade1uate means of *i(e*ihood and the right to )or5. it )ou*d +e sheer pendantry to
e6c*ude the right to *i(e*ihood from the content of the right to *ife% The State may not. +y
affirmati(e action. +e compe**a+*e to pro(ide ade1uate means of *i(e*ihood or )or5 to the
citi,ens% 0ut. any person )ho is depri(ed of his right to *i(e*ihood e6cept according to
#ust and fair procedure esta+*ished +y *a). can cha**enge the depri(ation as offending the
right to *ife conferred +y 2rtic*e 31% @8! DH. 81 2A
/um (% I**inois @18""A 9C FS 11; and K+ara5 Singh (% The State of F%'% @19>CA 1 S%C%R%
;;3 referred to%
In Re: Sant Ram :19>!= ; S%C%R% C99. distinguished%
3%; In a matter *i5e the one in )hich the future of ha*f of the city8s popu*ation is at sta5e.
the Court must consu*t authentic empirica* data compi*ed +y agencies. officia* and non
officia*% It is +y that process that the core of the pro+*em can +e reached and a satisfactory
so*ution found% It )ou*d +e unrea*istic on the part of the Court to re#ect the petitions on
the ground that the petitioners ha(e not adduced e(idence to sho) that they )i** +e
rendered #o+*ess if they are e(icted from the s*ums and pa(ements% Common sense.
)hich is a c*uster of *ife8s e6periences. is often more dependa+*e than the ri(a* facts
presented +y )arring *itigants% @83 0CA
In the instant case. it is c*ear from the (arious e6pert studies that one of the main reasons
of the emergence and gro)th of s1uattersett*ements in +ig /etropo*itan cities *i5e
0om+ay. is the a(ai*a+i*ity of #o+ opportunities )hich are *ac5ing in the rura* sector% The
undisputed fact that e(en after e(iction. the s1uatters return to the cities affords proof of
that position% These facts constitute empirica* e(idence to #ustify the conc*usion that
persons in the position of petitioners *i(e in s*ums and on pa(ements +ecause they ha(e
sma** #o+s to nurse in the city and there is no)here e*se to *i(e% B(ident*y. they choose a
pa(ement or a s*um in the (icinity of their p*ace of )or5. the time other)ise ta5en in
commuting and its cost +eing for+idding for their s*ender means% To *ose the pa(ement or
the s*um is to *ose the #o+% The conc*usion. therefore. in terms of the constitutiona*
phraseo*ogy is that the e(iction of the petitioners )i** *ead to depri(ation of their
*i(e*ihood and conse1uent*y to the depri(ation of *ife% @83 D. 8; 0DA
;%1 The Constitution does not put an a+so*ute em+argo on the depri(ation of *ife or
persona* *i+erty% It is far too )e** sett*ed to admit of any argument that the procedure
prescri+ed +y *a) for the depri(ation of the right conferred +y 2rtic*e 31 must +e fair.
#ust and reasona+*e% Just as a ma*a fide act has no e6istence in the eye of *a). e(en so.
unreasona+*eness (itiates *a) and procedure a*i5e% It is therefore essentia* that the
procedure prescri+ed +y *a) for depri(ing a person of his fundamenta* right. must
conform to the means of #ustice and fairp*ay% 'rocedure. )hich is un#ust or unfair in the
circumstances of a case. attracts the (ice of unreasona+*eness. there+y (itiating the *a)
)hich prescri+es that procedure and conse1uent*y. the action ta5en under it% 2ny action
ta5en +y a pu+*ic authority )hich is in(ested )ith statutory po)ers has. therefore. to +e
tested +y the app*ication of t)o standards: The action must +e )ithin the scope of the
authority conferred +y *a) and second*y. it must +e reasona+*e% If any action. )ithin the
scope of the authority conferred +y *a). is found to +e unreasona+*e. it must mean that
the procedure esta+*ished +y *a) under )hich that action is ta5en is itse*f unreasona+*e%
The su+stance of the *a) cannot +e di(orced from the procedure )hich it prescri+es for.
ho) reasona+*e the *a) is. depends upon ho) fair is the procedure prescri+ed +y it% @8;
B. 85 FH. 8> 2A
;%3 In order to decide )hether the procedure prescri+ed +y section ;1C is fair and
reasona+*e. the Court must first determine the true meaning of that section +ecause. the
meaning of the *a) determines its *ega*ity% Considered in its proper perspecti(e. section
;1C is in the nature of an ena+*ing pro(ision and not of a compu*si(e character% It ena+*es
the Commissioner in appropriate cases. to dispense )ith pre(ious notice to persons )ho
are *i5e*y to +e affected +y the proposed action% It does not re1uire and. cannot +e read to
mean that. in tota* disregard of the re*e(ant circumstances pertaining to a gi(en situation.
the Commissioner must cause the remo(a* of an encroachment )ithout issuing pre(ious
notice% The primary ru*e of construction is that the *anguage of the *a) must recei(e its
p*ain and natura* meaning% 9hat section ;1C pro(ides is that the Commissioner Nmay.
)ithout notice. cause an encroachment to +e remo(ed% It does not command that the
Commissioner. sha** )ithout notice. cause an encroachment to +e remo(ed% 'utting it
different*y. section ;1C confers on the Commissioner the discretion to cause an
encroachment to +e remo(ed )ith or )ithout notice% That discretion has to +e e6ercised
in a reasona+*e manner so as to comp*y )ith the constitutiona* mandate that the
procedure accompanying the performance of a pu+*ic act must +e fair and reasona+*e%
The Court must *ean in fa(our of this interpretation +ecause it he*ps sustain the (a*idity of
the *a)% Reading section ;1C as containing a command not to issue notice +efore the
remo(a* of an encroachment )i** ma5e the *a) in(a*id% @88 H. 89 2DA
;%; Section ;1C is so designed as to e6c*ude the princip*es of natura* #ustice +y )ay of
e6ception and not as a genera* ru*e% There are situations )hich demand the e6c*usion of
the ru*es of natura* #ustice +y reason of di(erse factors *i5e time. p*ace. the apprehended
danger and so on% The ordinary ru*e )hich regu*ates a** procedure is that persons )ho are
*i5e*y to +e affected +y the proposed action must +e afforded an opportunity of +eing
heard as to )hy that action shou*d not +e ta5en% The hearing may +e gi(en indi(idua**y or
co**ecti(e*y. depending upon the facts of each situation% 2 departure from this
fundamenta* ru*e of natura* #ustice may +e presumed to ha(e +een intended +y the
Gegis*ature on*y in circumstances )hich )arrant it% Such circumstances must +e 5no)n
to e6ist. )hen so re1uired. the +urden +eing upon those )ho affirm their e6istence% @89 B
DA
;%C The proposition that notice need not +e gi(en of a proposed action +ecause. there can
possi+*y +e no ans)er to it. is contrary to the )e**recogni,ed understanding of the rea*
import of the ru*e of hearing% That proposition o(er*oo5s that #ustice must not on*y +e
done +ut must manifest*y +e seen to +e done and confuses one for the other% The
appearance of in#ustice is the denia* of #ustice% It is the dia*ogue )ith the person *i5e*y to
+e affected +y the proposed action )hich meets the re1uirement that #ustice must a*so +e
seen to +e done% 'rocedura* safeguards ha(e their historica* origins in the notion that
conditions of persona* freedom can +e preser(ed on*y )hen there is some instinctua*
chec5 on ar+itrary action on the part of the pu+*ic authorities% The right to +e heard has
t)o facets. intrinsic and instrumenta*% The intrinsic (a*ue of that right consists in the
opportunity )hich it gi(es to indi(idua*s or groups. against )hom decision ta5en +y
pu+*ic authorities operate. to participate in the processes +y )hich those decisions are
made. an opportunity that e6presses their dignity as persons% @9! H. 91 2DA
B%'% Royappa (% State of Tami* 0adu @19"CA 3 S%C%R% ;C8. Hane5a Dandhi (% Fnion of
India @19"8A 3 S%C%R% >31. /%<% 0oscot (% State of /aharashtra @19"9A 1 S%C%R% 193.
Suni* 0atra. I (% De*hi 2dministration @19"9A 1 S%C%R% ;93. Sita Ran (% State of F%'%
@19"9A 3 S%C%R% 1C85. Hussainara Khatoon. I (% Home Secretary State of 0ihar. 'atna
@19"9A ; S%C%R% 5;3.5;"% 0ussainara Khatoon. II (% Home Secretary State of 0ihar. 'atna
@198!A 1 S%C%C% 81 Suni* 0atra. II% (% De*hi 2dministration @198!A 3 S%C%R% 55". Jo**y
Deorge Ierghese (% The 0an5 of Cochin @198!A 3 S%C%R% 91;. 931933% Kasturi Ga* I
a*c0hmi Reddy (% State of Jam ? Kashmir @198!A ; S%C%R% 1;;8. 1;5>. Francis Cora*ie
/u**in (% The 2dministrator Fnion Territory of De*hi @1981A 3 S%C%R% 51>. 53;53C. The
Inf*uence of Remedies on Rights8 :Current Gega* 'ro+*ems @195;A Io*ume >=. 'er
Fran5furter. J% in Iitera** (% Seton ; G% Bd :3nd series= 1!13. Ramana Dayaraa Shetty (%
The Internationa* 2irport 2uthority of India @19"9A ; S%C%R% 1!1C. 1!;3. referred to%
In the instant case. the procedure prescri+ed +y Section ;1C of the 0om+ay /unicipa*
Corporation 2ct for remo(a* of encroachments on the footpaths or pa(ements o(er )hich
the pu+*ic has the right of passage or access. cannot +e regarded as unreasona+*e. unfair
or un#ust% There is no static measure of reasona+*eness )hich can +e app*ied to a**
situations a*i5e Indeed. the 1uestion Nis this procedure reasona+*eSN imp*ies and
postu*ates the in1uiry as to )hether the procedure prescri+ed is reasona+*e in the
circumstances of the case%
Francis Cora*ie /u**in (% The 2dministrator. Fnion Territory of De*hi @1981A 3 S%C%R%
51>. 53;53C. referred to%
;%5 Footpaths or pa(ements are pu+*ic properties )hich are intended to. ser(e the
con(enience of the genera* pu+*ic% They are not *aid for pri(ate use and indeed. their use
for a pri(ate purpose frustrates the (ery o+#ect for )hich they are car(ed out from
portions of pu+*ic streets% The main reason for *aying out pa(ements is to ensure that the
pedestrians are a+*e to go a+out their dai*y affairs )ith a reasona+*e measure of safety
and security% That faci*ity. )hich has matured into a right of the pedestrians. cannot +e
set at naught +y a**o)ing encroachments to +e made on the pa(ements% @8" 0CA
;%> &o one has the right to ma5e use of a pu+*ic property for a pri(ate purpose )ithout
the re1uisite authorisation and. therefore. it is erroneous to contend that the pa(ement
d)e**ers ha(e the right to encroach upon pa(ements +y constructing d)e**ings 8thereon%
'u+*ic streets. of )hich pa(ements form a part. B are primari*y dedicated for the purpose
of passage and. e(en the pedestrians ha(e +ut the *imited right of using pa(ements for the
purpose of passing and trepassing% So *ong as a person does not transgress the *imited
purpose for )hich pa(ements are made. his use thereof is *egitimate and *a)fu*% 0ut. if a
person puts any pu+*ic property to a use for )hich it is not intended and is not F
authorised so to use it. he +ecomes a trespasser% @8" DFA
'utting up a d)e**ing on the pa(ement is a case )hich is c*ear*y on one side of the *ine
sho)ing that it is an act of trespass% @8" HA
Hic5man (% /aisey @198!J 1 T%0% "53. referred to% S%G% Kapoor (% Jagmohan @1981A 1
S%C%R% "C>. ">>. Ridge (% 0a*d)in @19>CJ 2C C! at >8. John (% Rees @19"!A 1 Chancery
;C5 at C!3. 2nnamunthodo (% <i*fie*ds 9or5ers8 Trade Fnion @19>1A ; 2** B%R% >31
:H%G%- at >35. /argarits Fuentes at a* (% To+ert G% H She(*n ;3. G% Bd% 3nd 55> at 5"C.
C+*ntepa*** 2gency Ta*u5 2rrac5 Sa*es Cooperati(e Society Gtd% (% Secretary :Food and
2gricu*ture= @19"8A 1 S%C%R% 5>; at 5>". 5>9"!. re*ied upon%
C%1 There is no dou+t that the petitioners are using pa(ements and other pu+*ic properties
for an unauthorised purpose% 0ut. their intention or o+#ect in doing so is not to commit an
offence or intimidate insu*t or annoy any person. )hich is the gist of the offence of
NCrimina* trespassN under section CC1 of the 'ena* Code% They manage to find a ha+itat
in p*aces )hich are most*y fi*thy or marshy. out of sheer he*p*essness% It is not as if they
ha(e a free choice to e6ercise as to )hether to commit an encroachment and if so. )here%
The encroachment committed +y these persons are in(o*untary acts in the sense that those
acts are compe**ed +y ine(ita+*e circumstances and are not guided +y choice% Trespass is
a tort% 0ut. e(en the *a) of Torts re1uires that though a trespasser may +e e(icted
forci+*y. the forceused must +e no greater than )hat is reasona+*e and appropriate to the
occasion and. )hat is e(en more important. the trespasser shou*d +e as5ed and gi(en a
reasona+*e opportunity to depart +efore force irs used to e6pe* him% @9; 2DA
In the instant case. the Court )ou*d ha(e directed the /unicipa* Commissioner to afford
an opportunity to the petitioners to sho) )hy the encroachments committed +y them on
pa(ements or footpaths shou*d not +e remo(ed% 0ut. the opportunity )hich )as denied +y
the Commissioner )as granted +y the Supreme Court in an amp*e measure. +oth sides
ha(ing made their contentions e*a+orate*y on facts as )e** as on *a)% Ha(ing considered
those contentions the Court is of the opinion that the Commissioner )as #ustified in
directing the remo(a* of the encroachments committed +y the petitioners on pa(ements.
footpaths or accessory roads% @9C BFA
C%3 'a(ement d)e**ers )ho )ere censused or )ho happened to +e censused in 19">
shou*d +e gi(en. though not as a condition precedent to their remo(a*. a*ternate pitches at
/a*a(ani or. at such other con(enient p*ace as the Do(ernment considers reasona+*e +ut
not farther a)ay in terms of distance- s*um d)e**ers )ho )ere gi(en identity cards and
)hose d)e**ings )ere num+ered in the 19"> census must +e gi(en a*ternate sites for their
resett*ement- s*ums )hich ha(e +een in e6istence for a *ong time. say for t)enty years or
more. and )hich ha(e +een impro(ed and de(e*oped )i** not +e remo(ed un*ess the *and
on )hich they stand or the appurtenant *and. is re1uired for a pu+*ic purpose. in )hich
case. a*ternate sites of accommodation )i** +e pro(ided to them- the Go) Income Scheme
She*ter 'rogramme )hich is proposed to +e underta5en )ith the aid of the 9or*d 0an5
)i** +e pursued earnest*y- and the S*um Fpgradation 'rogramme :SF'= under )hich
+asic amenities are to +e gi(en to s*um d)e**ers )i** N+e imp*emented )ithout de*ay% In
order to minimise the hardship in(o*(ed in any e(iction. the s*ums. )here(er situated.
)i** not +e remo(ed unti* one month after the end of the current monsoon 8season. that is
unti* <cto+er ;1. 1985 and. thereafter. on*y in accordance )ith this #udgment% If any s*um
is re1uired to +e remo(ed +efore that date. parties may app*y to the Supreme Court%
'a(ement d)e**ers. )hether censused or uncensused. )i** not +e remo(ed unti* the same
date (i,% <cto+er ;1. 198C% @98 DHA
C%; In so far as the Kamra# &agar 0asti is concerned. there are o(er C!! hutments therein%
Since the 0asti is situated on a part of the road *eading to the B6press High)ay. serious
traffic ha,ards arise on account of the straying of the 0asti chi*dren on to the B6press
High)ay. on )hich there is hea(y (ehicu*ar traffic The same criterion )ou*d app*y to the
Kamara# &agar 0asti as )ou*d app*y to the d)e**ings constructed unauthorised*y on other
roads and pa(ements in the city% @95 CDA
<RIDI&2G JFRISDICTI<& 5!"9 of 1981%9rit 'etition &os% C>1!C>13 ? 5!>85!"9
of 1981
:Fnder 2rtic*e ;3 of the Constitution of India%=
/iss Indira Jaisingh. /iss Rani Jethma*ani. 2nand Dro(er and Sumeet Kachh)aha for
the 'etitioners in 9%'% &o% C>1!13 of 1981.Ram Jethma*ani. I%/% Tar5unde. /iss
Darshna 0hogi*a*. /rs% Indu Sharma and '%H% 'are5h for the 'etitioners in 9%'% &os%
5!>8"9 of 1981%
G%&% Sinha. 2ttorney Denera*. '% Shan5aranarayanan and /%&% Shroff for Respondent
&os% 3 ? ; in 9%'% &os% C>1!13 of 1981 and for Respondent &os% 1 and ; in 9%'% &o%
5!>8"9 of 1981%K%K% Singh(i. F%&%D% /o**o and D%&% /ishra for Respondent &o% 1 in
9%'% &os% C>1!13 and for Respondent &o% 3 in 9%'% &o% 5!>8"9 of 1981%
The Judgment of the Court )as de*i(ered +y :
CH2&DR2CHFD. CJ% These 9rit 'etitions portray the p*ight of *a5hs of persons )ho
*i(e on pa(ements and in s*ums in the city of 0om+ay% They constitute near*y ha*f the
popu*ation of the city% The first group of petitions re*ates to pa(ement d)e**ers )hi*e the
second group re*ates to +oth pa(ement and 0asti or S*um d)e**ers% Those )ho ha(e made
pa(ements their homes e6ist in the midst of fi*th and s1ua*or. )hich has to +e seen to +e
+e*ie(ed% Ra+id dogs in search of stin5ing meat and cats in search of hungry rats 5eep
them company% They coo5 and s*eep )here they ease. for no con(eniences are a(ai*a+*e
to them% Their daughters. come of age. +athe under the nosy ga,e of passers +y.
unmindfu* of the feminine sense of +ashfu*ness% The coo5ing and )ashing o(er. )omen
pic5 *ice from each others hair% The +oys +eg% /enfo*5. )ithout occupation. snatch
chains )ith the conni(ance of the defenders of *a) and order- )hen caught. if at a**. they
say : N9ho doesnHt commit crimes in this city SN
It is these men and )omen )ho ha(e come to this Court to as5 for a #udgment that they
cannot +e e(icted from their s1ua*id she*ters )ithout +eing offered a*ternati(e
accommodation% They re*y for their rights on 2rtic*e 31 of the Constitution )hich
guarantees that no person sha** +e depri(ed of his *ife e6cept according to procedure
esta+*ished +y *a)% They do not contend that they ha(e a right to *i(e on the pa(ements%
Their contention is that they ha(e a right to *i(e. a right )hich cannot +e e6ercised
)ithout the means of *i(e*ihood% They ha(e no option +ut to f*oc5 to +ig cities *i5e
0om+ay. )hich pro(ide the means of +are su+sistence% They on*y choose a pa(ement or a
s*um )hich is nearest to their p*ace of )or5% In a )ord. their p*ea is that the right to *ife is
i**usory )ithout a right to the protection of the means +y )hich a*one *ife can +e Gi(ed%
2nd. the right to *ife can on*y +e ta5en a)ay or a+ridged +y a procedure esta+*ished +y
*a). )hich has to +e fair and reasona+*e. not fancifu* or ar+itrary such as is prescri+ed +y
the 0om+ay /unicipa* Corporation 2ct or the 0om+ay 'o*ice 2ct% They a*so re*y upon
their right to reside and sett*e in any part of the country )hich is guaranteed +y 2rtic*e
19:1=:e=%
The three petitioners in the group of 9rit 'etitions C>1!C>13 of 1981 are a #ourna*ist
and t)o pa(ement d)e**ers% <ne of these t)o pa(ement d)e**ers. '% 2ngamuthu.
migrated from Sa*em. Tami* &adu. to 0om+ay in the year 19>1 in search of emp*oyment%
He )as a *and*ess *a+ourer in his home to)n +ut he )as rendered . #o+*ess +ecause of
drought% He found a #o+ in a Chemica* Company at Dahisar. 0om+ay. on a dai*y )age of
Rs%3; per day% 2 s*um*ord C5 e6torted a sum of Rs%3.5!! from him in e6change of a
she*ter of p*astic sheets and can(as on a pa(ement on the 9estern B6press High)ay.
0om+ay% He *i(es in it )ith his )ife and three daughters )ho are 1>. 1; and 5 years of
age%
The second of the t)o pa(ement d)e**ers came to 0om+ay in 19>9 from Sangamner.%
District 2hmednagar. /aharashtra% He )as a co++*er earning " to 8 rupees a day. +ut his
soca**ed house in the (i**age fe** do)n% He got emp*oyment in 0om+ay as a 0ad*i
Kamgar for Rs% ;5! per month% He )as *uc5y in +eing a+*e to o+tain a Nd)e**ing houseN
on a pa(ement at Tu*si)adi +y paying Rs% ;!! to a goonda of the *oca*ity% The +am+oos
and the p*astic sheets cost him Rs% "!!%
<n Ju*y 1;. 1981 the then Chief /inister of /aharashtra. Shri 2%R% 2ntu*ay. made an
announcement )hich )as gi(en )ide pu+*icity +y the ne)spapers that a** pa(ement
d)e**ers in the city of 0om+ay )i** +e e(icted forci+*y and deported to their respecti(e
p*aces of origin or remo(ed to p*aces outside the city of 0om+ay% The Chief /inister
directed the Commissioner of 'o*ice to pro(ide the necessary assistance to respondent 1.
the 0om+ay /unicipa* Corporation. to demo*ish the pa(ement d)e**ings and deport the
pa(ement d)e**ers% The apparent #ustification )hich the Chief /inister ga(e to his
announcement )as : NIt is a (ery inhuman e6istence% These structures are f*imsy and open
to the e*ements% During the monsoon there is no )ay these peop*e can *i(e8 comforta+*y%N
!n Ju*y 3;. 1981 the pa(ement d)e**ing of '% 2ngamuthu )as demo*ished +y the officers
of the 0om+ay /unicipa* Corporation% He and the mem+ers of his fami*y )ere put in a
+us for Sa*em% His )ife and daughters stayed +ac5 in Sa*em +ut he returned to 0om+ay
in search of a #o+ and got into a pa(ement house once again% The d)e**ing of the other
petitioner )as demo*ished e(en ear*ier. in January 198! +ut he re+ui*t it% It is *i5e a game
of hide and see5% The Corporation remo(es the ramshac5*e she*ters on the pa(ements
)ith the aid of po*ice. the pa(ement d)e**ers f*ee to *ess conspicuous pa(ements in +y
*anes and. )hen the officia*s are gone. they return to their o*d ha+itats% Their main
attachment to those p*aces is the nearness thereof to their p*ace of )or5% In the other
+atch of )rit petitions &os% 5!>8"9 of 1981. )hich )as heard a*ong )ith the petitions
re*ating to pa(ement d)e**ers. there are 13 petitioners% The first fi(e of these are residents
of Kamra# &agar. a +asti or ha+itation )hich is a**eged to ha(e come into e6istence in
a+out 19>!>1. near the 9estern B6press High)ay. 0om+ay% The ne6t four petitioners
)ere residing in structures constructed off the Tu*si 'ipe Road. /ahim. 0om+ay%
'etitioner &o% 1! is the 'eop*es8 Fnion of Ci(i* Gi+erties. petitioner &o% 11 is the
Conmittee tor the 'rotection of Democratic Rights )hi*e petitioner &o% 13 is a #ourna*ist%
The case of the petitioners in the Kamra# &agar group of cases is that there are o(er 5!!
hutments in this particu*ar +asti )hich )as +ui*t in a+out 19>! +y persons )ho )ere
emp*oyed +y a Construction company engaged in *aying )ater pipes a*ong the 9estern
B6press High)ay% The residents of Kamra# &agar are municipa* emp*oyees. factory or
hote* )or5ers. construction super(isors and so on% The residents of the Tu*si 'ipe Road
hutments c*aim that they ha(e +een *i(ing there for 1! to 15 years and that. they are
engaged in (arious sma** trades% <n hearing a+out the Chief /inister8s announcement.
they fi*ed a )rit petition in the high Court of 0om+ay for an order of in#unction
restraining the officers of the State Do(ernment and the 0om+ay /unicipa*
Corporation from imp*ementing the directi(e of the Chief /inister% The High Court
granted an adinterim in#unction to +e in force unti* Ju*y 31. 1981% <n that date.
respondents agreed that the huts )i** not +e demo*ished unti* <cto+er 15. 1981% Ho)e(er.
it is a**eged. on Ju*y 3;. 1981. the petitioners )ere hudd*ed into State Transport +uses for
+eing deported out of 0om+ay% T)o infants )ere +orn during the deportation +ut that
)as set off +y the death of t)o others%
The decision of the respondents to demo*ish the huts is cha**enged +y the petitioners on
the ground that it is (io*ati(e of 2rtic*es 19 and 31 of the Constitution% The petitioners
a*so as5 for a dec*aration that the pro(isions of sections ;13. ;1; and ;1C of the 0om+ay
/unicipa* Corporation 2ct. 1888 are in(a*id as (io*ating 2rtic*es 1C. 19 and 31 of the
Constitution% The re*iefs as5ed for in the t)o groups of )rit petitions are F that the
respondents shou*d +e directed to )ithdra) the decision to demo*ish the pa(ement
d)e**ings and the s*um hutments and. )here they are a*ready demo*ished. to restore
possession of the sites to the former occupants%
<n +eha*f of the Do(ernment of /aharashtra. a counterafida(idt has +een ti*ed +y
I%S%/un#eS Fnder Secretary in the Department of Housing% The counteraffida(it meets
the case of the petitioners thus% The Do(ernment of /aharashtra neither proposed to
deport any pa(ement d)e**er out of the city of 0om+ay nor did It. in fact. deport anyone%
Such of the pa(ement d)e**ers. )ho e6pressed their desire in )riting. that they )anted to
return to their home to)ns and )ho sought assistance from the Do(ernment in that +eha*f
)ere offered transport faci*ities up to the nearest rai* head and )ere a*so paid rai*)ay fare
or +us fare and incidenta* e6penses for the on)ard #ourney% The Do(ernment of
/aharashtra had issued instructions to its officers to (isit specific pa(ements on Ju*y 3;.
1981 and to ensure that no harassment )as caused to any pa(ement d)e**er% <ut of
1!.!!! hutmentd)e**ers )ho )ere *i5e*y to +e affected +y the proposed demo*ition of
hutments constructed on the pa(ements. on*y 1!3C persons opted to a(ai* of the transport
faci*ity and the payment of incidenta* e6penses%
The counteraffida(it says that no person has any *ega* right to encroach upon or to
construct any structure on a footpath. pu+*ic street or on any p*ace o(er )hich the pu+*ic
has a right of )ay% &umerous ha,ards of hea*th and safety arise if action is not ta5en to
remo(e such encroachments% Since. no ci(ic amenities can +e pro(ided on the pa(ements.
the pa(ement d)e**ers use pa(ements or ad#oining streets for easing them se*(es% 2part
from this. some of the pa(ement d)e**ers indu*ge in antisocia* acts *i5e chainsnatching.
i**icit disti**ation of *i1uor and prostitution% The *ac5 of proper en(ironment *eads to
increased crimina* tendencies. resu*ting in more crime in the cities It is. therefore. in
pu+*ic interest that pu+*ic p*aces *i5e pa(ements and paths are not encroached upon% The
Do(ernment of /aharashtra pro(ides housing assistance to the )ea5er sections of the
society *i5e *and*ess *a+ourers and persons +e*onging to *o) income groups. )ithin the
frame )or5 of its p*anned po*icy of the economic and socia* de(e*opment of the State%
2ny a**ocation for housing has to +e made after +a*ancing the conf*icting demands from
(arious priority sectors% The paucity of resources is a restraining factor on the a+i*ity of
the State to dea* effecti(e*y )ith the 1uestion of pro(iding housing to the )ea5er sections
of the society% The Do(ernment of /aharashtra has issued po*icy directi(es that "5
percent of the housing programme shou*d +e a**ocated to the *o)er income groups and
the )ea5er sections of the society% <ne of the o+#ects of the State8s p*anning po*icy is to
ensure that the inf*u6 of popu*ation from the rura* to the ur+an areas is reduced in the
interest of a proper and +a*anced socia* and economic de(e*opment of the State and of the
country. is proposed to +e achie(ed +y re(ersing the rate of gro)th of metropo*itan cities
and +y increasing the rate of gro)th of sma** and medium to)ns% The State Do(ernment
has therefore. de(ised an Bmp*oyment Duarantee Scheme to ena+*e the rura* popu*ation.
)hich remains unemp*oyed or underemp*oyed at certain periods of the year. to get
emp*oyment during such periods% 2 summary of a+out Rs% 18! crores )as spent on that
scheme during the years 19"98! and 198!81% <n <cto+er 3. 198! the State Do(ernment
*aunched t)o additiona* schemes for pro(iding emp*oyment opportunities for those )ho
cannot get )or5 due to o*d age or physica* infirmities% The State Do(ernment has a*so
*aunched a scheme for pro(iding se*femp*oyment opportunities under the San#ay Dandhi
&iradhar 2nudan Lo#ana1% 2 month*y pension of Rs% >! is paid to those )ho are too o*d
to )or5 or are physica**y handicapped% In this scheme. a+out 1.5>.9C; persons ha(e +een
identified and a sum of Rs% 3%35 crores )as dis+ursed% Fnder another scheme ca**ed
San#ay Dandhi S)a)a*am+an Lo#ana. interestfree *oans. su+#ect to a ma6imum of Rs%
3.5!!. )ere +eing gi(en to persons desiring to engage themse*(es in gainfu* emp*oyment
of their o)n% 2+out 1."5.!!! persons had +enefited under this scheme. to )hom a tota*
sum of Rs%5%83 crores )as dis+ursed +y )ay of *oan% In short. the o+#ecti(e of the State
Do(ernment )as to p*ace greater emphasis on pro(iding infrastructura* faci*ities to sma**
and medium to)ns and to e1uip them so that they cou*d act as gro)th and ser(ice centres
for the rura* hinter*and% The phenomenon of po(erty )hich is common to a** de(e*oping
countries has to +e tac5*ed on an 2**India +asis +y ma5ing the gains of de(e*opment
a(ai*a+*e to a** sections of the society through a po*icy of e1uita+*e distri+ution of income
and )ea*th% Fr+anisation is a ma#or pro+*em facing the entire country. the migration of
peop*e from the rura* to the ur+an areas +eing a ref*ection of the co*ossa* po(erty e6isting
in the rura* areas% The rura* po(erty cannot. ho)e(er. +e e*iminated +y increasing the
pressure of popu*ation on metropo*itan cities *i5e 0om+ay% The pro+*em of po(erty has to
+e tac5*ed +y changing the structure of the society in )hich there )i** +e a more e1uita+*e
distri+ution of income and greater generation of )ea*th% The State Do(ernment has
stepped up the rate of construction of tenements for the )ea5er sections of the society
from 35!! to 95!! per annum% It Is denied in the counteraffida(it that the pro(isions of
sections ;13. ;1; and ;1C of the 0om+ay /unicipa* Corporation 2ct (io*ate the
Constitution% Those pro(isions are concei(ed in pu+*ic interest and great care is ta5en +y
the authorities to ensure that no harassment is caused to any pa(ement d)e**er )hi*e
enforcing the pro(isions of those sections% The decision to remo(e such encroachments
)as ta5en +y the Do(ernment )ith specific instructions that e(ery reasona+*e precaution
ought to +e ta5en to cause the *east possi+*e incon(enience to the pa(ement d)e**ers%
9hat is more important. so the counteraffida(it says. the Do(ernment of /aharashtra
had decided that. on the +asis of the census carried out in 19">. pa(ement d)e**ers )ho
)ou*d +e uprooted shou*d +e offered a*ternate de(e*oped pitches at /a*(ani )here they
cou*d construct their o)n hutments% 2ccording to that census. a+out 3.5!! pa(ement
hutments on*y )ere then in e6istence%
The counteraffida(it of the State Do(ernment descri+es the (arious steps ta5en +y the
Centra* Do(ernment under the Fi(e year '*an of *9"88;. in regard to the housing
programmes% The p*an sho)s that the inade1uacies of Housing po*icies In India ha(e
+oth 1uantitati(e and 1ua*itati(e dimensions% The tota* in(estment in housing% sha** ha(e
to +e of the magnitude of Rs% 3"9! crores. if the housing pro+*em has to +e tac5*ed e(en
partia**y%
%
<n +eha*f of the 0om+ay /unicipa* Corporation. a counteraffida(it has +een fi*ed +y
Shri D%/% Su5than5ar. /unicipa* Commissioner of Dreater 0om+ay% That affida(it
sho)s that he had (isited the pa(ements on the Tu*si 'ipe Road :Senapati 0apat /arg=
and the 9estern B6press High 9ay. Ii*e 'ar*e :east=. 0om+ay% <n Ju*y 3;.1981. certain
hutments on these pa(ements )ere demo*ished under section ;1C of the 0om+ay
/unicipa* Corporation 2ct% &o prior notice of demo*ition )as gi(en since the section
does not pro(ide for such notice% The affida(it denies that the Intense specu*ation in *and
prices. as a**eged. o)es its origin to the High rise +ui*dings )hich ha(e come up in the
city of 0om+ay% It is a*so denied that there are (ast (acant pieces of *and in the city )hich
can +e uti*ised for housing the pa(ement d)e**ers% Section >1 of the 0%/%C% 2ct *ays
do)n the o+*igatory duties of the Corporation% Fnder c*auses :c= and :d= of the said
section. it Is the duty of the Corporation to remo(e e6crementtious matters. refuse and
ru++ish and to ta5e measures for a+atement of e(ery 5ind of nuisance% Fnder c*ause :g=
of that section. the Corporation is under an o+*igation to ta5e measures for pre(enting and
chec5ing the spread of dangerous diseases% Fnder c*ause :o=. o+structions and pro#ections
in or upon pu+*ic streets and other pu+*ic p*aces ha(e to +e remo(ed% Section >; :5=
empo)ers the Corporation to ta5e measures to promote pu+*ic safety. hea*th or
con(enience. not specifica**y pro(ided other)ise% The o+#ect of Sections ;13 to ;1C is to
5eep the pa(ements and footpaths free from encroachment so that the pedestrians do not
ha(e to ma5e use of the streets on )hich there is hea(y (ehicu*ar traffic% The pa(ement
d)e**ers ans)er the natures ca**. +athe. coo5 and )ash their c*othes and utensi*s on the
footpaths and on parts of pu+*ic streets ad#oining the footpaths% Their encroachment
creates serious impediments in repairing the roads. footpaths and drains% The refusa* to
a**o) the petitioners and other persons simi*ar*y situated to use footpaths as their a+odes
is. therefore. not unreasona+*e. unfair. or un*a)fu*% The +asic ci(ic amenities. such as
drainage. )ater and sanitation. cannot possi+*y +e pro(ided to the pa(ement d)e**ers%
Since the pa(ements are encroached upon. pedestrains are compe**ed to )a*5 on the
streets. there+y increasing the ris5 of traffic accidents and impeding the free f*o) of
(ehicu*ar mo(ement% The /unicipa* Commissioner disputes in his counteraffida(it that
any fundamenta* right of the petitioners is infringed +y remo(a* of the encroachment
committed +y them on pu+*ic property. especia**y the pa(ements% In this +eha*f. re*iance
is p*aced upon an order dated Ju*y 3". 1981 of Gentin J% of the 0om+ay High Court.
)hich records that counse* for the petitioners had stated e6press*y on Ju*y 3C. 1981. that
no fundamenta* right cou*d +e c*aimed to put up a d)e**ing on pu+*ic foot paths and
pu+*ic roads%
The /unicipa* Commissioner has stated in his counteraffida(it in 9rit 'etitions 5!>8
"9 of 1981 that the huts near the 9estern B6press High)ay. Ii*e 'ar*e. 0om+ay. )ere
constructed on accessory road )hich is a part of the High)ay itse*f% These hutments )ere
ne(er regu*arised +y the Corporation and no registration num+ers )ere assigned to them%
In ans)er to the /unicipa* Commissioner8s counteraffida(it. petitioner no% 13% 0id)ai
)ho is a #ourna*ist. has fi*ed a re#oinder asserting that Kamra# &agar is not *ocated on a
footpath or a pa(ement% 2ccording to him. Kamra# &agar is a +asti off the High)ay. in
)hich the huts are num+ered. the record in re*ation to )hich is maintained +y the Road
De(e*opment Department and the 0om+ay /unicipa* Corporation% Contending that
petitioners 1 to 5 ha(e +een residing in the said +asti for o(er 3! years. he reiterates that
the pu+*ic has no right of )ay in or o(er the Kamra# &agar% He a*so disputes that the huts
on the footpaths cause any o+struction to the pedestrains or to the (ehicu*ar traffic or
that those huts are a source of nuisance or danger to pu+*ic hea*th and safety% His case in
paragraph 31 of his rep*yaffida(it seems to +e that since. the footpaths are in the
occupation of pa(ement d)e**ers for a *ong time. footpaths ha(e ceased to +e footpaths%
He says that the pa(ement d)e**ers and the s*um or +asti d)e**ers. )ho num+er a+out
C"%" *a5hs. constitute a+out 5! per cent of the tota* popu*ation of Dreater 0om+ay. that
they supp*y the ma#or )or5 force for 0om+ay from menia* #o+s to the most high*y s5i**ed
#o+s. that they ha(e +een *i(ing In the hutments for generations. that they ha(e +een
ma5ing a significant contri+ution to the economic *ife of the city and that. therefore. it is
unfair and unreasona+*e on the part of the State Do(ernment and the /unicipa*
Corporation to destroy their homes and deport them: 2 home is a home )here(er it is%
The main theme of the rep*yaffida(it is that N The s*um d)e**ers are the sine 1ua non of
the city% They are entit*ed to a 1uid pro 1uo% NIt is conceded e6press*y that the petitioners
do not c*aim any fundamenta* right to *i(e on the pa(ements% The right c*aimed +y them
is the right to *i(e. at *east to e6ist%
<n*y t)o more p*eadings need +e referred to. one of )hich is an affida(it of Shri 2ni*
I%Do5a5. 2dministrator of /aharashtra Housing and 2reas De(e*opment 2uthority.
0om+ay. )ho )as then ho*ding charge of the post of Secretary. Department of Housing%
He fi*ed an affida(it %in ans)er to an app*ication for the modification of an interim order
)hich )as passed +y this Court on <cto+er 19. 1981% He says that the *egis*ature of
/aharashtra had passed the /aharashtra Iacant Gand :'rohi+ition of unauthorised
<ccupation and Summary B(iction- 2ct. 19"5 in pursuance of )hich the Do(ernment
had decided to compi*e a *ist of s*ums )hich )ere re1uired to +e remo(ed in pu+*ic
interest% It )as a*so decided that after a spot inspection. 5!! acres of (acant *and in and
near the 0om+ay Su+ur+an District shou*d +e a**ocated for resett*ement of the hutment
d)e**ers )ho )ere remo(ed from the s*ums% 2 Tas5 Force )as constituted +y the
Do(ernment for the purpose of carrying out a census of the hutments standing on *ands
+e*onging to the Do(ernment of the /aharashtra. the 0om+ay /unicipa* Corporation
and the 0om+ay Housing 0oard% 2 Census )as. according*y. carried out on January C.
19"> +y dep*oying a+out ".!!! persons to enumerate the s*um d)e**ers spread o(er
appro6imate*y 85! co*onies a** o(er 0om+ay% 2+out >" per cent of the hutment d)e**ers
from a tota* of a+out 3.>!.!!! hutments produced photographs of the heads of their
fami*ies. on the +asis of )hich hutments )ere num+ered and their occupants )ere gi(en
identity cards% It )as decided that s*ums )hich )ere in e6istence for a *ong time and
)hich )ere impro(ed and de(e*oped )ou*d not norma**y +e demo*ished un*ess the *and
)as re1uired for a pu+*ic purpose% In the e(ent that the *and )as so re1uired. the po*icy of
the State Do(ernment )as to pro(ide a*ternati(e accommodation to the s*um d)e**ers
)ho )ere censused and possessed identity cards% This is +orne out +y a circu*ar of the
Do(ernment dated Fe+ruary C. 19"> :&o% SIS 11">PD% C1=% Shri Do5a5 says that the State
Do(ernment has issued instructions directing. inter a*ia. that action to remo(e the s*ums
e6cepting those )hich are on the footpaths or roads or )hich are ne) or casua**y *ocated
shou*d not. therefore. +e ta5en )ithout o+taining appro(a* from the Do(ernment to the
proposa* for the remo(a* of such s*ums and their reha+i*itation%N Since. it )as ne(er the
po*icy of the Do(ernment to encourage construction of hutments on footpaths.
pa(ements or other p*aces o(er )hich the pu+*ic has a right of )ay. no census of such
hutments )as e(er intended to +e conducted% 0ut. sometime in Ju*y 1981. )hen the
Do(ernment officers made an effort to ascertain the magnitude of the pro+*em of e(icting
pa(ement d)e**ers. it )as disco(ered that some persons occupying pa(ements. carried
census cards of 19">% The Do(ernment then decided to a**ot pitches to such occupants of
pa(ements% The on*y other p*eading )hich deser(es to +e noticed is the affida(it of the
#ourna*ist petitioner. /s% <*ga Te**is. in rep*y to the counteraffida(it of the Do(ernment
of /aharashtra% 2ccording to her. one of the important reasons of the emergence and
gro)th of s1uattersett*ements in the /etropo*itan cities in India is. that. the
De(e*opment and /aster '*ans of most of the cities ha(e not +een adhered to% The
density of popu*ation in the 0om+ay /etropo*itan Region is not high according to the
To)n '*anning standards% Difficu*ties are caused +y the fact that the popu*ation is not
e(en*y distri+uted o(er the region. in a p*anned manner% &e) constructions of
commercia* premises. sma**sca*e industries and entertainment houses in the heart of the
city. ha(e +een permitted +y the Do(ernment of /aharashtra contrary to *a) and e(en
residentia* premises ha(e +een a**o)ed to +e con(erted into commercia* premises% This.
coup*ed )ith the fact that the State Do(ernment has not shifted its main offices to the
northern region of the city. has *ed to the concentration of the popu*ation in the southern
region due to the a(ai*a+i*ity of #o+ opportunities in that region% Fn*ess economic and
*eisure acti(ity is decentra*ised. it )ou*d +e impossi+*e to find a so*ution to the pro+*ems
arising out of the gro)th of s1uatter co*onies% B(en if s1uatters are e(icted. they come
+ac5 to the city +ecause. it is there that #o+ opportunities are a(ai*a+*e% The a*ternate
pitches pro(ided to the disp*aced pa(ementd)e**ers on the +asis of the soca**ed 19">
census. are not an effecti(e means to their resett*ement +ecause. those sites are situated
far a)ay from the /a*ad Rai*)ay Station in(o*(ing cost and time )hich are +eyond their
means% There are no faci*ities a(ai*a+*e at /a*a(ani *i5e schoo*s and hospita*s. )hich
dri(es them +ac5 to the strang*eho*d of the city% The permission granted to the &ationa*
Centre of 'erforming 2rts to construct an auditorium 2 at the &ariman 'oint. 0ac5+ay
Rec*amation. is cited as a gross instance of the shortsighted. suicida* and discriminatory
po*icy of the Do(ernment of /aharashtra% It is as if the sea is rec*aimed for the
construction of +usiness and entertainment houses in the centre of the city. )hich creates
#o+ opportunities to )hich the home*ess f*oc5% They )or5 therein and *i(e on pa(ements%
The grie(ance is that. as a resu*t of this im+a*ance. there are not enough #o+s a(ai*a+*e in
the northern tip of the city% The impro(ement of *i(ing conditions in the s*ums and the
regiona* distri+ution of #o+ opportunities are the on*y (ia+*e remedies for re*ie(ing
congestion of the popu*ation in the centre of the city% The increase a**o)ed +y the State
Do(ernment in the F*oor Space Inde6 o(er and a+o(e 1%;;. has *ed to a further
concentration of popu*ation in the centre of the city% In the matter of housing. according
to /s% Te**is affida(it. Do(ernment has riot put to the +est use the finances and resources
a(ai*a+*e to it% There is a )ide gap +et)een the demand and supp*y in the area of housing
)hich )as in the neigh+ourhood of forty fi(e thousand units in the decade 19"181% 2
huge amount of hundreds of crores of rupees sha** ha(e to +e found +y the State
Do(ernment e(ery year during the period of the Si6th '*an if ade1uate pro(ision for
housing is at a** to +e made% The Fr+an Gand Cei*ing 2ct has not achie(ed its desired
o+#ecti(e nor has it +een proper*y imp*emented% The emp*oyment schemes of the State
Do(ernment are *i5e a drop in the ocean and no steps are ta5en for increasing #o+
opportunities in the rura* sector% The neg*ect of hea*th. education transport and
communication in that sector dri(es the rura* fo*5 to the cities. not on*y in search of a
*i(ing +ut in search of the +asic amenities of *ife% The a**egation of the State Do(ernment
regarding the crimina* propensities of the pa(ement d)e**ers is stout*y denied in the
rep*yaffida(it and it is said to +e contrary to the studies of many e6perts% Fina**y. it is
stated that it is no *onger the o+#ecti(e of the Si6th '*an to re(erse the rate of gro)th of
metropo*itan cities% The o+#ecti(e of the ear*ier p*an :19"88;= has undergone a
significant change and the target no) D is to ensure the gro)th of *arge metropo*itan
cities in a p*anned manner% The affida(it c*aims that there is ade1aute *and in the 0om+ay
metropo*itan region to a+sor+ a popu*ation of 3! mi**ion peop*e. )hich Is e6pected to +e
reached +y the year 3!!! 2%D%
The arguments ad(anced +efore us +y /s% Indira Jaisingh. /r I%/% Tar5unde and /r%
Ram Jethma*ani co(er a )ide range +ut the main thrust of the petitioners8 case is that
e(icting a pa(ement d)e**er or s*um d)e**er from his ha+itat amounts to depri(ing of his
right to *i(e*ihood. )hich is comprehended in the right guaranteed +y 2rtic*e 31 of the
Constitution that no person sha** +e depri(ed of his *ife e6cept according to procedure
esta+*ished +y *a)% The 1uestion of the guarantee of persona* *i+erty contained in 2rtic*e
31 does not arise and )as not raised +efore us% Counse* for the petitioners contended that
the Court must determine in these petitions the content of the right to *ife. the function of
property in a )e*fare state. the dimension and true meaning of the constitutiona* mandate
that property must su+ser(e common good. the s)eep of the right to reside and sett*e in
any part of the territory of India )hich is guaranteed +y 2rtic*e 19:*=:e= and the right to
carry on any occupation. trade or +usiness )hich is guaranteed +y 2rtic*e 19 :*=:g=. the
competing c*aims of pa(ement d)e**ers on the one hand and of the pedestrians on the
other and. the *arger 1uestion of ensuring %e1ua*ity +efore the *a)% It is contended that it
is the responsi+i*ity of the courts to reduce ine1ua*ities and socia* im+a*ances +y stri5ing
do)n statutes )hich perpetuate them% <ne of the grie(ances of the petitioners against the
0om+ay /unicipa* Corporation 2ct. 1888 is that it is a century o*d anti1uated piece of
*egis*ation passed in an era )hen pa(ement d)e**ers and s*um d)e**ers did not e6ist and
the consciousness of the modern notion of a )e*fare state )as not present to the mind of
the co*onia* *egis*ature% 2ccording to the petitioners. connected )ith these issues and yet
independent of them. Is the 1uestion of the ro*e of the Court in setting the tone of (a*ues
in a democratic society%
The argument )hich +ears on the pro(isions of 2rtic*e 31 is e*a+orated +y saying that the
e(iction of pa(ement and s*um d)e**ers )i** *ead. in a (icious circ*e. to the depri(ation of
their emp*oyment. their *i(e*ihood and. therefore. to the right to *ife% <ur attention Is
dra)n in this +eha*f to an e6tract from the Judgment of Doug*as in 0a5sey (% 0oard of
Regents. ;C" /%D% CC3 :195C= in )hich the *earned Judge said: NThe right to )or5 I ha(e
assumed )as the most precious *i+erty that man possesses% /an has indeed. as much right
to )or5 as he has to *i(e. to +e free and to o)n property% To )or5 means to eat and it a*so
means to *i(e%N
The right to *i(e and the right to )or5 are integrated and interdependant and. therefore. if
a person is depri(ed of his #o+ as a resu*t of his e(iction from a s*um or a pa(ement. his
(ery right to *ife is put in #eopardy% It is urged that the economic compu*sions under
)hich these persons are forced to *i(e in s*ums or on pa(ements impart to their
occupation the character of a fundamenta* right%
It is further urged +y the petitioners that it is constitutiona**y impermissi+*e to
characterise the pa(ement d)e**ers as NtresspassersN +ecause. their occupation of
pa(ements arises from economic compu*sions% The State is under an o+*igation to
pro(ide to the citi,ens the necessities of *ife and. in appropriate cases. the courts ha(e the
po)er to issue order directing the State. +y affirmati(e action. to promote and protect the
right to *ife% The instant situation is one of crisis. )hich compe*s the use of pu+*ic
property for the purpose of sur(i(a* and sustenance% Socia* commitment is the
1uintessence of our Constitution )hich defines the conditions under )hich *i+erty has to
+e en#oyed and #ustice has to +e administered% Therefore. Directi(e 'rincip*es. )hich are
fundamenta* in the go(ernance of the country must ser(e as a +eacon *ight to the
interpretation of the Constitutiona* pro(isions% Iie)ed in this conte6t. it is urged. the
impugned action of the State Do(ernment and the 0om+ay /unicipa* Corporation is
(io*ati(e of the pro(isions contained in 2rtic*es 19:1-:e=. 19:*=:g= and 31 of the
Constitution% The paucity of financia* resources of the State is no e6cuse for defeating the
fundamenta* rights of the citi,ens%
In support of this argument. re*iance is p*aced +y the petitioners on )hat is descri+ed as
the factua* conte6t% 2 pu+*ication dated January 1983 of the '*anning Commission.
Do(ernment of India. name*y. The Report of the B6pert Droup of 'rogrammes for the
2**e(iation of 'o(erty1. is re*ied on as sho)ing the high irtcidence of po(erty in India%
That Report sho)s that in 19"""8. C8U of the popu*ation *i(ed +e*o) the po(erty *ine.
)hich means that out of a popu*ation of ;!; mi**ion )ho *i(ed +e*o) the po(erty *ine.
353 mi**ion +e*onged to the rura* areas% In 19"98! another 8 mi**ion peop*e from the
rura* areas )ere found to *i(e +e*o) the po(erty *ine% 2 Do(ernment of /aharashtra
'u+*ication N0udget and the ne) 3! 'oint SocioBconomic 'rogrammeN estimates that
there are a+out C5 *a5h fami*ies in rura* areas of /aharashtra )ho *i(e +e*o) the po(erty
*ine% 2nother C!U )as in the periphery of that area% <ne of the ma#or causes of the
persistent rura* po(erty of *and*ess *a+ourers. margina* farmers. shepherds. physica**y
handicapped persons and others is the e6treme*y narro) +ase of production a(ai*a+*e to
the ma#ority of the rura* popu*ation%
The a(erage agricu*tura* ho*ding of a farmer is !%C hectares. )hich is hard*y ade1uate to
ena+*e him to ma5e +oth ends meet% Gand*ess *a+ourers ha(e no resource +ase at a** and
they constitute the hardcore of po(erty% Due to economic pressures and *ac5 of
emp*oyment opportunities. the rura* popu*ation is forced to migrate to ur+an areas In
search of emp*oyment% The Bconomic Sur(ey of /aharashtra pu+*ished +y the State
Do(ernment sho)s that the +u*5 of pu+*ic in(estment )as made in the cities of 0om+ay.
'une and Thane. )hich created emp*oyment opportunities attracting the star(ing rura*
popu*ation to those cities% The s*um census conducted +y the Do(ernment of /aharashtra
in 19"> sho)s that "9U of the s*umd)e**ers +e*onged to the *o)income group. )ith a
month*yincome. +e*o) Rs%>!!% The study conducted +y '% Ramachandran of the Tata
Institute of Socia* Sciences sho)s that in 19"3.91U of theV pa(ement d)e**ers had a
month*y income of *ess than Rs%3!!% The cost of o+taining any 5ind of she*ter in 0om+ay
is +eyond the means of a pa(ement d)e**er% The principa* pu+*ic housing sectors in
/aharashtra. name*y. The /aharashtra Housing and 2rea De(e*opment 2gency
:/H2D2= and the City and Industria* De(e*opment Corporation of /aharashtra Gtd%
:CIDC<= ha(e +een a+*e to construct on*y ;!!! and 1!!! units respecti(e*y as against
the annua* need of >!.!!! units% In any e(ent. the cost of housing pro(ided e(en +y these
pu+*ic sector agencies is +eyond the means of the s*um and pa(ementd)e**ers% Fnder the
Fr+an Gand :Cei*ing and Regu*ation= 2ct 19"5. pri(ate *and o)ners and ho*ders are
gi(en faci*ity to pro(ide housing to the economica**y )ea5er sections of the society at a
stipu*ated price of Rs%9! per s1%ft%. )hich a*so is +eyond the means of the s*um and
pa(ementd)e**ers% The reigning mar5et price of houses in 0om+ay (aries from Rs%15!
per s1%ft% outside 0om+ay to Rs%3!!! per s1%ft% in the centre of the city%
The petitioners dispute the contention of the respondents regarding the nona(ai*a+i*ity of
(acant *and for a**otment to house*ess persons% 2ccording to them. a+out 3!.!!! hectares
of unencum+ered *and is *ying (acant in 0om+ay% The Fr+an Gand :%Cei*ing and
Regu*ation- 2ct.19"5 has fai*ed to achie(e its o+#ect as is e(ident from the fact that in
0om+ay. 5U of the *andho*ders o)n 55U of the *and% B(en though 3953%8; hectares of
Fr+an *and is a(ai*a+*e for +eing ac1uired +y the State Do(ernment as +eing in e6cess of
the permissi+*e cei*ing area. on*y C1%51U of this e6cess *and )as. so far. ac1uired% Thus.
the reason )hy there are home*ess peop*e in 0om+ay is not that there is no *and on )hich
homes can +e +ui*t for them +ut. that the p*anning po*icy of the State Do(ernment
permits high density areas to de(e*op )ith (ast tracts of *and *ying (acant% The pa(ement
d)e**ers and the s*umd)e**ers )ho constitute 5!U of the popu*ation of 0om+ay. occupy
on*y 35U of the cities residentia* *and% It is in these circumstances that out of sheer
necessity for a +are e6istence. the petitioners are dri(en to occupy the pa(ements. and
s*ums% They *i(e in 0om+ay +ecause they are emp*oyed in 0om+ay and they *i(e on
pa(ements +ecause there is no other p*ace )here they can *i(e% This is the factua* conte6t
in )hich the petitioners c*aim the right under 2rtic*es 19:1=:e= and :g= and 2rtic*e 31 of
the Constitution%
The petitioners cha**enge the (ires of section ;1C read )ith sections ;13 and ;1; of the
0om+ay /unicipa* Corporation 2ct. )hich empo)ers the /unicipa* Commissioner to
remo(e. )ithout notice. any o+#ect or structure or fi6ture )hich is set up in or upon any
street% It is contended that. in the first p*ace. section ;1C does not authorise the demo*ition
of a d)e**ing e(en on a %pa(ement and second*y. that a pro(ision )hich a**o)s the
demo*ition of a d)e**ing )ithout notice is not #ust. fair or reasona+*e% Such a pro(ision
(ests ar+itrary and unguided po)er in the Commissioner% It a*so offends against the
guarantee of e1ua*ity +ecause. it ma5es an un#ustified discrimination +et)een pa(ement
d)e**ers on the one hand and pedestrains on the other% If the pedestrains are entit*ed to
use the pa(ements for passing and repassing. so are the pa(ement d)e**ers entit*ed to use
pa(ements for d)e**ing upon them% So the argument goes% 2part from this. it is urged. the
restrictions )hich are sought to +e imposed +y the respondents on the use of pa(ements
+y pa(ementd)e**ers are not reasona+*e% 2 State )hich has fai*ed in its constitutiona*
o+*igation to usher a socia*istic society has no right to e(ict s*um and pa(ementd)e**ers
)ho constitute ha*f of the cities popu*ation% Therefore. sections ;13.;1; and ;1C of the
0%/%C% 2ct must either +e read do)n or struc5 do)n%
2ccording to the *earned 2ttorneyDenera*. /r% K%K%Singh(i and /r% Shan5aranarayanan
)ho appear for the respondents. no one has a fundamenta* right. )hate(er +e the
compu*sion. to s1uat on or construct a d)e**ing on a pa(ement. pu+*ic road or any other
'*ace to )hich the pu+*ic has a right of access% The right conferred +y 2rtic*e 19:*=:e= of
the Constitution to reside and sett*e in any part of India cannot +e read to confer a *icence
to encroach and trespass upon pu+*ic property% Sections ;:)= and :6= of the 0%/%C% 2ct
define NStreetN and N'u+*ic StreetN to inc*ude a high)ay. a foot)ay or a passage on )hich
the pu+*ic has the right of passage or access% Fnder section 389:1= of the 2ct. a**
pa(ements and pu+*ic streets (est in the Corporation and are under the contro* of the
Commissioner% In so far as 2rtic*e 31 is concerned. no depri(ation of *ife. either direct*y
or indirect*y. is in(o*(ed in the e(iction of the s*um and pa(ementd)e**ers from pu+*ic
p*aces% The /unicipa* Corporation is under an o+*igation under section ;1C of the
0%/%C% 2ct to remo(e o+structions on pa(ements. pu+*ic streets and other pu+*ic p*aces%
The Corporation does not e(en possess the po)er to permit any person to occupy a
pa(ement or a pu+*ic p*ace on a permanent or 1uasipermanent +asis% The petitioners
ha(e not on*y (io*ated the pro(isions of the 0%/%C% 2ct. +ut they ha(e contra(ened
sections 111 and 115 of the 0om+ay 'o*ice 2ct a*so% These sections pre(ent a person
from o+structing any other person in the *atter8s use of a street or pu+*ic p*ace or from
committing a nuisance% Section 11" of the 'o*ice 2ct prescri+es punishment for the
(io*ation of these sections%
9e )i** first dea* )ith the pre*iminary o+#ection raised +y% /r% K%K%Singh(i. )ho
appears on +eha*f of the 0om+ay /unicipa* Corporation. that the petitioners are estopped
from contending that their huts cannot +e demo*ished +y reason of the fundamenta* rights
c*aimed +y them% It appears that a )rit petition. &o% 98> of 1981. )as fi*ed on the
<rigina* Side of the 0om+ay High Court +y and on +eha*f of the pa(ement d)e**ers
c*aiming re*iefs simi*ar to those c*aimed in the instant +atch of )rit petitions% 2 *earned
Sing*e Judge granted an adinterim in#unction restraining the repondents from
demo*ishing the huts and from e(icting the pa(ement d)e**ers% 9hen the petition came
up for hearing on Ju*y 3". 1981. counse* for the petitioners made a statement in ans)er to
a 1uery from the court. that no fundamenta* right cou*d +e c*aimed to put up d)e**ings on
footpaths or pu+*ic roadsFpon this statement. respondents agreed not to demo*ish unti*
<cto+er 15. 1981. huts )hich )ere constructed on the pa(ements or pu+*ic roads prior to
Ju*y 3;.1981% <n 2ugust C. 1981. a )ritten underta5ing )as gi(en +y the petitioners
agreeing. inter a*ia. to - (acate the huts on or +efore <cto+er 15. 1981 and not to o+struct
the pu+*ic authorities from demo*ishing them% Counse* appearing for the State of
/aharashtra responded to the petitioners underta5ing +y gi(ing an underta5ing on +eha*f
of the State Do(ernment that. unti* <cto+er 15. 1981. no pa(ement d)e**er )i** +e
remo(ed out of the city against his )ish% <n the +asis of these underta5ings. the *earned
Judge disposed of the )rit petition )ithout passing any further orders% The contention of
the 0om+ay /unicipa* Corporation is that since the pa(ement d)e**ers had conceded in
the High Court that. they did not c*aim any fundamenta* right to put up huts on
pa(ements or pu+*ic roads and since they had gi(en an underta5ing to the High Court that
they )i** not o+struct the demo*ition of the huts after <cto+er 15. 1981 they are estopped
from contending in this Court that the huts constructed +y them on the pa(ements cannot
+e demo*ished +ecause of their right to *i(e*ihood. )hich is comprehended )ithin the
fundamenta* right to *ife guaranteed +y 2rtic*e 31 of the Constitution%
It is not possi+*e to accept the contention that the petitioners are estopped from setting up
their fundamenta* rights as a defence to the demo*ition of the huts put up +y them on
pa(ements. or parts of pu+*ic roads% There can +e no estoppe* against the Constitution%
The Constitution is not on*y the paramount *a) of the *and +ut. it is the source and
su+stanace of a** *a)s% Its pro(isions are concei(ed in pu+*ic interest and are intended to
ser(e a pu+*ic purpose% The doctrine of estoppe* is +ased on the princip*e that
consistency in )ord and action imparts certainty and honesty to human affairs% If a
person ma5es a representation to another. on the faith of )hich the *atter acts.to his
pre#udice. the former cannot resi*e from the representation made +y him% He must ma5e it
good% This princip*e can ha(e no app*ication to representations made regarding the
assertion or enforcement of fundamenta* rights% For e6amp*e. the concession made +y a
person that he does not possess and )ou*d not e6ercise his right to free speech and
e6pression or the right to mo(e free*y throughout the territory of India cannot depri(e
him of those constitutiona* rights. any more than a concession that a person has no right
of persona* *i+erty can #ustify his detention contrary to the terms of 2rtic*e 33 of the
Constitution% Fundamenta* rights are undou+ted*y conferred +y the Constitution upon
indi(idua*s )hich ha(e to +e asserted and enforced +y them. if those rights are (io*ated%
0ut. the high purpose )hich the Constitution see5s to achie(e +y conferment of
fundamenta* rights is not on*y to +enefit indi(idua*s +ut to secure the *arger Interests of
the community% The 'ream+*e of the Constitution says that India is a democratic
Repu+*ic% It is in order to fu*fi* the promise of the 'ream+*e that fundamenta* rights are
conferred +y the Constitution. some on citi,ens *i5e those guaranteed +y 2rtic*es
15.1>.19.31 and 39. and some on citi,ens Wand nonciti,ens a*i5e. *i5e those guaranteed
+y 2rtic*es 1C.31.33 and 35 of the Constitution% &o indi(idua* can +arter a)ay the
freedoms conferred upon him +y the Constitution% 2 concession made +y him in a
proceeding. )hether under a mista5e of *a) or other)ise. that he does not possess or )i**
not enforce any particu*ar fundamenta* right. cannot create an estoppe* against him in that
or any su+se1uent proceeding% Such a concession. if enforced. )ou*d defeat the purpose
of the Constitution% 9ere the argument of estoppe* (a*id. an a**po)erfu* state cou*d
easi*y tempt an indi(idua* to forego his precious persona* freedoms on promise of
transitory. immediate +enefits% Therefore. not)ithstanding the fact that the petitioners had
conceded in the 0om+ay High Court that they ha(e no fundamenta* right to construct
hutments on pa(ements and that they )i** not o+#ect to their demo*ition after <cto+er 15.
1981. they are entit*ed to assert that any such action on the part of pu+*ic authorities )i**
+e in (io*ation of their fundamenta* rights% Ho) far the argument regarding the e6istence
and scope of the right c*aimed +y the petitioners is )e** founded is another matter% 0ut.
the argument has to +e e6amined despite the concession%
The p*ea of estoppe* is c*ose*y connected )ith the p*ea of )ai(er. the o+#ect ofN +oth
+eing to ensure +ona fides in daytoday transactions% In 0ashesnar &ath (% The
Commissioner of Income Ta6 De*hi. @1959# Supp% 1 S%C%R% 538 a Constitution 0ench %of%
this Court considered the 1uestion )hether the fundamenta* rights conferred +y the
Constitution can +e )ai(ed% T)o mem+ers of the 0ench Das C%J% and Kapoor J%= he*d.
that there can +e no )ai(er of the fundamenta* right founded on 2rtic*e 1C of the
Constitution% T)o others :/%h%0hag)ati and Su++a Rao%JJ%- he*d that not on*y cou*d
there +e no )ai(er of the right conferred +y 2rtic*e 1C. +ut there cou*d +e no )ai(er of
any other fundamenta* right guaranteed +y 'art 111 cf the Constitution% The Constitution
ma5es no distinction. according to the *earned Judges. +et)een fundamenta* rights
enacted for the +enefit of an indi(idua* and those enacted in pu+*ic interest or on grounds
of pu+*ic po*icy%
9e must. therefore. re#ect the pre*iminary o+#ection and proceed to consider the (a*idity
of the petitioners8 contentions on merits%
The scope of the #urisdiction of this Court to dea* )ith )rit petitions under 2rtic*e ;3 of
the Constitution )as e6amined +y a specia* 0ench of this Court in Smt% F##am 0ai (%
State of Fttar 'radesh% @19>;A 1 S%C%R% ""8% That decision )ou*d sho) that. in three
c*asses of cases. the 1uestion of enforcement of the fundamenta* rights )ou*d arise.
name*y. :1= )here action is ta5en under a statute )hich is u*tra (ires the Constitution - :3=
)here the statute is intra (ires +ut the action ta5en is )ithout #urisdiction- and :;= an
authority under an o+*igation to act #udicia**y passes an order in (io*ation of the
princip*es of natura* #ustice% These categories are. of course. not e6hausti(e% In &aresh
Shitdhar /Gra#5ar (% State of /aharashtra. @19>>A ; S%C%R% "CC""!. a Specia* 0ench of
nine *earned Judges of this Court he*d that. )here the action ta5en against a NCiti,en is
procedura**y u*tra (ires. the aggrie(ed party can mo(e this Court under 2rtic*e ;3% The
contention of the petitioners is that the procedure prescri+ed +y section ;1C of the
0%/%C% 2ct +eing ar+itrary and unfair. it is not Nprocedure esta+*ished +y *a)N )ithin the
meaning of 2rtic*e 31 and. therefore. they cannot +e depri(ed of their fundamenta* right
to *ife +y resorting to that procedure% The petitions are c*ear*y maintaina+*e under
2rtic*e%;3 of the Constitution%
2s )e ha(e stated )hi*e summing up the petitioners8 case. themain p*an5 of their
argument is that the right to *ife )hich is guaranteed +y 2rtic*e 31 inc*udes the right to
*i(e*ihood and since. they )i** +e depri(ed of their *i(e*ihood if they are e(icted from
%their s*um and% pa(ement d)e**ings. their e(iction is tantamount to depri(ation of their
*ife and is hence unconstitutiona*% For purposes of argument. )e )i** assume the factua*
correctness of the premise that if the petitioners are e(icted from their d)e**ings. they
)i** +e depri(ed of their *i(e*ihood% Fpon that assumption. the 1uestion )hich )e ha(e to
consider is )hether the right to *ife inc*udes the right to *i(e*ihood% 9e see on*y one
ans)er to that 1uestion. name*y. that it does% The s)eep of the right to *ife conferred +y
2rtic*e 31 is )ide and far reaching% It does not mean mere*y that *ife cannot +e
e6tinguished or ta5en a)ay as. for e6amp*e. +y the imposition and e6ecution of the death
sentence. e6cept according to procedure esta+*ished +y *a)% That is +ut one aspect of the
right to *ife% 2n e1ua**y important facet of that right is the right to *i(e*ihood +ecause. no
person can *i(e )ithout the means of *i(ing. that is. the means of *i(e*ihood% If the right to
*i(e*ihood is not treated as a part of the constitutiona* right to *ife. the easiest )ay of
depri(ing a person his right to *ife )ou*d +e to depri(e him of his means of *i(e*ihood to
the point of a+rogation% Such depri(ation )ou*d not on*y denude the *ife of its effecti(e
content and meaningfu*ness +ut it )ou*d ma5e *ife impossi+*e to *i(e% 2nd yet. such
depri(ation )ou*d not ha(e to +e in accordance )ith the procedure esta+*ished +y *a). if
the right to *i(e*ihood is not regarded as a part of the right to *ife% That. )hich a*one
ma5es it possi+*e to *i(e. *ea(e aside )hat ma5es *ife *i(a+*e. must +e deemed to +e an
integra* component of the right to *ife% Depri(e a person of his right to *i(e*ihood and you
sha** ha(e depri(ed him of his *ife% Indeed. that e6p*ains the massi(e migration of the
rura* popu*ation to Q +ig cities% They migrate +ecause they ha(e no means of *i(e*ihood in
the (i**ages% The moti(e force )hich peop*e their desertion of their hearths and homes in
the (i**ages that strugg*e for sur(i(a*. that is. the strugg*e for *ife% So
unimpeacha+*e is the e(idence of the ne6us +et)een *ife and the means of *i(e*ihood%
They ha(e to eat to *i(e: <n*y a handfu* can afford the *u6ury of *i(ing to eat% That they
can do. name*y. eat. on*y if they ha(e the means of *i(e*ihood% That is the conte6t in
)hich it )as said +y Doug*as J% in 0a5sey that the right to )or5 is the most precious
*i+erty +ecause. it sustains and ena+*es a man to *i(e and the right to *ife is a precious
freedom% NGifeN. as o+ser(ed +y Fie*d.J% in /unn (% I**inois. :18""= 9C F%S% 11;. means
something more than mere anima* % e6istence and the inhi+ition against the depri(ation of
*ife e6tends to a**8 those *imits and facu*ties +y )hich *ife is en#oyed% This o+ser(ation
)as 1uoted )ith appro(a* +y this Court In Khara5 Singh (% The State of F%'%. @19>CJ 1
S%C%R% ;;3%
2rtic*e ;9:a= of the Constitution. )hich is a Directi(e 'rinicp*e of State 'o*icy. pro(ides
that the State sha**. in particu*ar. direct its po*icy to)ards securing that the citi,ens. men
and )omen e1ua**y. ha(e the right to an ade1uate means of *i(e*ihood% 2rtic*e C1. )hich
is another Directi(e 'rincip*e. pro(ides. inter a*ia. that the State sha**. )ithin the *imits of
its economic capacity and de(e*opment. ma5e effecti(e pro(ision for securing the right to
)or5 in cases of unemp*oyment and of undeser(ed )ant% 2rtic*e ;" pro(ides that the
Directi(e 'rincip*es. though not enforcea+*e +y any court. are ne(erthe*ess fundamenta*
in the go(ernance of the country% The 'rincip*es contained in 2rtic*es ;9 :a= and C1 must
+e regarded as e1ua**y fundamenta* in the understanding and interpretation of the
meaning and content of fundamenta* rights% If there is an o+*igation upon the State to
secure to the citi,ens an ade1uate means of *i(e*ihood and the right to )or5. it )ou*d +e
sheer pedantry to e6c*ude the right to *i(e*ihood from the content of the right to *ife% The
State may not. +y affirmati(e action. +e compe**a+*e to pro(ide ade1uate means of
*i(e*ihood or )or5 to the citi,ens% 0ut. any person. )ho is depri(ed of his right to
*i(e*ihood e6cept according to #ust and fair procedure esta+*ished +y *a). can cha**enge
the depri(ation as offending the right to *ife conferred +y 2rtic*e 31%
Gearned counse* for the respondents p*aced strong re*iance on a decision of this Court in
In Re: Sant 0am. @19>!A ; S%C%R% B C99. in support of their contention that the right to
*ife guaranteed +y 2rtic*e 31 does not inc*ude the right to *i(e*ihood% Ru*e 3C of the
Supreme Court Ru*esempo)ers the Registrar to pu+*ish *ists of persons )ho are pro(ed
to +e ha+itua**y acting as touts% The Registrar issued a notice to the appe**ant and one
other person to sho) cause )hy their names shou*d not +e . inc*uded in the *ist of touts%
That notice )as cha**enged +y the appe**ant on the ground. inter a*ia. that it contra(enes
2rtic*e 31 of the Constitution since. +y the inc*usion of his name in the *ist of touts. he
)as depri(ed of his right to *i(e*ihood. )hich is inc*uded in the right to *ife% It )as he*d
+y a Constitution % 0ench of this Court that the *anguage of 2rtic*e 31 cannot +e pressed
in aid of the argument that the )ord 8*ife8 in 2rtic*e 31 inc*udes 8*i(e*ihood1 8a*so% This
decision Is distinguisha+*e +ecause. under the% Constitution. no person can c*aim the right
to % *i(e*ihood +y the pursuit of an oppro+rious occupation or a nefarious trade or
+usiness. *i5e toutism. gam+*ing or *i(ing on the gains of prostitution% The petitioners
+efore us do not c*aim the right to d)e** on pa(ements or In s*ums for the purpose of
pursuing any acti(ity )hich is i**ega*. immora* or contrary to pu+*ic interest% /any of
them pursue occupations )hich are hum+*e +ut honoura+*e%
Turning to the factua* situation. ho) far is it true to say that if the petitioners are e(icted
from their s*um and pa(ement d)e**ings. they )i** +e depri(ed of their means of
*i(e*ihoodS It is impossi+*e. in the (ery nature of things. together re*ia+*e data on this
su+#ect in regard to each indi(idua* petitioner and. none has +een furnished to us in that
form% That the e(iction of a person from a pa(ement or s*um )i** ine(ita+*y *ead to the
depri(ation of his means of *i(e*ihood. is a proposition )hich does not ha(e to +e
esta+*ished in each indi(idua* case% That Is an inference )hich can +e dra)n from
accepta+*e data% Issues of genera* pu+*ic Importance. )hich affect the *i(es of *arge
sections of the society. defy a #ust determination if their consideration is *imited to the
e(idence pertaining to specific Indi(idua*s% In the reso*ution of such issues. there are no
sym+o*ic samp*es )hich can effecti(e*y pro#ect a true picture of the grim rea*ities of *ife%
The )rit petitions +efore us undou+ted*y in(o*(e a 1uestion re*ating to d)e**ing houses
+ut. they cannot +e e1uated )ith a suit for the possession of a house +y one pri(ate
person against another% In a case of the *atter 5ind. e(idence has to +e *ed to esta+*ish the
cause of action and #ustify the c*aim% In a matter *i5e the one +efore us. in )hich the
future of ha*f of the city8s popu*ation is at sta5e. the Court must consu*t authentic
empirica* data compi*ed +y agencies. officia* and nonofficia*% It is +y that process that
the core of the pro+*em can +e reached and a satisfactory so*ution found% It )ou*d +e
unrea*istic on our part to re#ect the petitions on the ground that the petitioners ha(e not
adduced e(idence to sho) that they )i** +e rendered #o+*ess if they are e(icted from the
s*ums and pa(ements% Commonsense. )hich is a c*uster of *ife8s e6periences. is often
more dependa+*e than the ri(a* facts presented +y )arring *itigants%
It is c*ear from the (arious e6pert studies to )hich )e ha(e referred )hi*e setting out the
su+stance of the p*eadings that. one of the main reasons of the emergence and gro)th of 8
s1uattersett*ements in +ig /etropo*itan cities *i5e 0om+ay. is the a(ai*a+i*ity of #o+
opportunities )hich are *ac5ing in the %rura* sector% The undisputed fact that e(en after
e(iction. the s1uaters return to the cities affords proof of that position% The '*anning
Commission8s pu+*ication. 8The Report of the B6pert Droup of 'rogrammes for the
2**e(iation of 'o(erty :1983= sho)s that ha*f of the popu*ation in India *i(es +e*o) the
po(erty *ine. a *arge part of )hich *i(es in (i**ages% 2 pu+*ication of the Do(ernment of
/aharashtra. 80udget and the &e) 3! 'oint SocioBconomic 'rpgramme sho)s that
a+out C5 *a5hs of fami*ies in rura* areas *i(e +e*o) the po(erty *ine and that. the a(erage
agricu*trua* ho*ding of a farmer. )hich is !%C hectares. is hard*y enough to sustain him
and his comparati(e*y *arge fami*y% The *and*ess *a+ourers. )ho constitute the +u*5 of the
(i**age popu*ation. are deep*y im+edded in the mire of po(erty% It is due to these
economic pressures that the rura* popu*ation is forced to migrate to ur+an areas in search
of emp*oyment% The aff*uent and the notsoaff*uent are a*i5e In search of domestic
ser(ants% Indsutria* and 0usiness Houses pay a fair )age to trie s5i**ed )or5man that a
(i**ager +ecomes in course of time% Ha(ing found a #o+. e(en if it means )ashing the pots
and pans. the migrant stic5s to the +ig city% If dri(en out. he returns in 1uest of another
#o+% The cost of pu+*ic sector housing is +eyond his modest means and the *ess )e refer
to the dea*s of pri(ate +ui*ders the +etter for a**. e6c*uding none% 2dded to these factors is
the star5 rea*ity of gro)ing insecurity in (i**ages on account of the tyranny of
parochia*ism and casteism% The announcement made +y the /aharashtra Chief /inister
regarding the deportation of )i**ing pa(ement d)e**ers afford some indication that they
are migrants from the interior areas. )ithin and outside /aharashtra% It is estimated that
a+out 3!! to ;!! peop*e enter 0om+ay e(ery day in search of emp*oyment% These facts
constitute empirica* e(idence to #ustify the conc*usion thatpersons in the position of
petitioners *i(e in s*ums and on pa(ements +ecause they ha(e sma** #o+s to nurse in the
city and there is no )here e*se to *i(e% B(ident*y. they choose a pa(ement or a s*um in the
(icinity of their p*ace of )or5. the time other)ise ta5en in commuting and its cost +eing.
for+idding for their s*ender means% To *oss the pa(ement or the s*um is to *ose the #o+%
The conc*usion. therefore. in terms of the constitutiona* phraseo*ogy is that the e(iction
of the petitioners )i** *ead to depri(ation of their *i(e*ihood and conse1uent*y to the
depri(ation of *ife%
T)o conc*usions emerge from this discussion: one. that the right to *ife )hich is
conferred +y 2rtic*e 31 inc*udes the right to *i(e*ihood and t)o. that it is esta+*ished that
if the petitioners. are e(icted from their d)e**ings. they )i** +e depri(ed of their
*i(e*ihood% 0ut the Constitution does not put an a+so*ute em+argo on the depri(ation of
*ife or persona* *i+erty. +y 2rtic*e 31. such depri(ation has to +e according to procedure
esta+*ished +y *a)% In the instant case. the *a) )hich a**o)s the depri(ation of the right
conferred +y 2rtic*e 31 is the 0om+ay /unicipa* Corporation 2ct. 1888. the re*e(ant
pro(isions of )hich are contained in Sections ;13:1=.;1;:*=:a= and ;1C% These sections
)hich occur in Chapter XI entit*ed Regu*ation of Streets8 read thus :
2Section ;13 'rohi+ition of structures of fi6tures )hich cause o+struction in streets%
:1= &o person sha**. e6cept )ith the permission of the Commissioner under section ;1!
or ;1" arect or set up any )a**. fence. rai*. post. step. +ooth or other structure or fi6ture in
or upon any street or upon or o(er any open channe*. drain )e** or tan5 in any street so as
to form an o+struction to. or an encroachment upon. or a pro#ection o(er. or to occupy.
any portion or such street. channe*. drain. )e** or tan5N%
Section ;1; 'rohi+ition of deposit. etc%.of things in streets%
:1= &o person sha**. e6cept )ith the permission of the Commissioner.
:a= p*ace or deposit upon any street or upon any open channe* drain or )e** in any streets
:or in any pu+*ic p*ace= any sta**.chair.+ench.+o6.*adder.+a*e or other thing
so as to form an o+struction thereto or encroachment thereon%N
'o)er to remo(e )ithout notice anything erected deposited%or ha)5ed in contra(ention
of Section ;13.;1; or ;1; 2
Section ;1C 'o)er to remo(e )ithout notice anything erected deposited or ha)5ed in
contra(ention of Section ;13. ;1; or ;1; 2%
The Commissioner may. )ithout notice. cause to +e remo(ed O
:a= any )a**.. fence. rai*. post. step. +ooth or other structure or fi6ture )hich sha** +e
erected or set up in or any street. or upon or o(er any open channe*. drain. )e** or tan5
contrary to the pro(isions of su+section :1= of section ;13. after the same comes into
force in the city or in the su+ur+s. after the date of the coming into force of the 0om+ay
/unicipa* :B6tension of Gimits= 2ct. 195! or in the e6tended su+ur+s after the date of the
coming into force of the 0om+ay /unicipa* Further B6tension of Gimits and Schedu*e
002 :2mendment= 2ct. 195>-
:+= any sta**. chair. +ench. +o6. *adder. +a*e. +oard or she*f. or any other thing )hate(er
p*aced. deposited. pro#ected. attached. or suspended in. upon. from or to any p*ace in
contra(ention of su+section :1= of section ;1;-
:c= any artic*e )hatsoe(er ha)5ed or e6posed for sa*e in any pu+*ic p*ace or in any pu+*ic
street in contra(ention of the pro(isions of section ;1;2 and any (ehic*e. pac5age. +o6.
+oard. she*f or any other thing in or on )hich such artic*e is p*aced or 5ept for the
purpose of sa*e%N
0y section ;:)=.NstreetN inc*udes a cause)ay. foot)ay. passage etc%. o(er )hich the
pu+*ic ha(e a right of passage or access%
These pro(isions. )hich are c*ear and specific. empo)er the /unicipa* Commissioner to
cause to +e remo(ed encroachments on footpaths or pa(ements o(er )hich the pu+*ic
ha(e a right of passage or access% It is undenia+*e that. in these cases. )here(er
constructions ha(e +een put up on the pa(ements. the pu+*ic ha(e a right of passage or
access o(er those pa(ements% The argument: of the petitioners is that the procedure
prescri+ed +y section ;1C for the remo(a* of. encroachments from pa(ements is ar+itrary
and unreasona+*e since. not on*y does it not pro(ide for the gi(ing of a notice +efore the
remo(a* of an encorahcment +ut. it pro(ides e6press*y that the /unicipa* Commissioner
may cause the encroachment to +e remo(ed N)ithout noticeN%
It is far too )e**sett*ed to admit of any argument that the procedure: prescri+ed +y *a)
for the depri(ation of the right conferred +y 2rtic*e 31 must +e fiar. #ust and reasona+*e%
:See Ji%'%8K+yappa (% State of Tami* &adu. @19"CJ 3 S%C%R% ;C8- /ane5a Dandhi (%
Fnion of India. @19"8J 3 S%C%R% >31- /%<%0oscot (%
State of /aharashtra. @19"9A 1 S%C%R% 193- Suni* 0atra. I (%
De*hi2dministration. @19"9J 1 S%C%R% ;93- Sita Barn (% State of F%'%. @19"9J 3 S%C%R%
1!85- Hussainara Khatoon. I (% Home Secretary. State of 0ihar. 'atna. @19"9J ; S%C%R%
5;3.5;"- tiussainara Khatoon. II (% Home Secretary. State of 0ihar. 'atna.
1I98FJ 1 S%C%C% 81- Suni* 0atra. II (% De*hi 2dministration.
1198!J 3 S%C%R% 55"- Jo**y Deorge Ierghese (% The 0an5 of Cochin. t*9Y!# 3 S%C%R%
91;.931933- Kasturi Ga* Ga5s+mi Reddy (% Star%e of Jammu ? Kashmir. @198!J ;
S%C%R% 1;;8.1;5>- and Francis Cora*ie /u** in (% The 2dministrator. Fnion Territory of
De*hi. 11981J 3 S%C%R%51>.53;3C%=
Just as a ma*a fide act has no e6istence in the eye of *a). e(en so. unreasona+*eness
(itiates *a) and procedure a*i5e% It is therefore essentia* that the procedure prescri+ed +y
*a) for depri(ing a person of his fundamenta* right. in this case the right to *ife. must
confirm to the norms of #ustice and fairp*ay% 'rocedure. )hich is un#ust or unfair in the
circumstances of a case. attracts the (ice of unreasona+*eness. there+y (itiating the *a)
)hich prescri+es that procedure and conse1uent*y. the action ta5en under it% 2ny action
ta5en +y a pu+*ic authority )hich is in(ested )ith statutory po)ers has. therefore. to +e
tested +y the app*ication of t)o standards: The action must +e )ithin the scope of the
authority conferred +y *a) and second*y. it must +e reasona+*e% If any action. )ithin the
scope of the authority conferred +y *a). is found to +e unreasona+*e% it must that the
procedure esta+*ished +y *a) under )hich that action is ta5en is itse*f unreasona+*e% The
su+stance of the *a) cannot +e di(orced from the procedure )hich it prescri+e for. ho)
reasona+*e the *a) is. depends upon ho) fair is the procedure prescri+ed +y it. Sir
Raymond B(ershad says that. Nfrom the point of (ie) of the ordinary citi,en. it is the
procedure that )i** most strong*y )eigh )ith him% He )i** tend to form his #udgment of
the e6ce**ence or other)ise of the *ega* system from his persona* 5no)*edge and
e6perience in seeing the *ega* machine at )or5N. @8The inf*uence of Remedies on Rights
:Current Gega* 'ro+*ems 195;. Io*ume >%=A% Therefore.NHe that ta5es the procedura*
s)ord sha** perish )ith the s)ord%N@'er Fran5furter J% in Iitera**i (% Seton ; G%Bd% :3nd
Series= 1!13A
Justice K%K%/athe) points out in his artic*e on NThe )e*fare State. Ru*e of Ga) and
&atura* Justice1. )hich is to +e found in his +oo5 8Democracy. e1ua*ity and Freedom8.
that there is Nsu+stantia* agreement in #uristic thought that the great purpose of the ru*e of
*a) notion is the protection of the indi(iduaiagainst ar+itrary e6ercise of po)er
)here(er it is foundN% 2dopting that femu*ation. 0hag)ati J%. spea5ing for the Court.
o+ser(ed in 5amana Dayaram. Shetty (% The Internationa* 2irport 2uthority of India.
@19"9A ; S%C%R% 1!1C.1!;3 that it is Nunthin5a+*e that in a democracy go(erned +y the
ru*e of *a). the e6ecuti(e% Do(ernment or any of its officers shou*d possess ar+itrary
po)er o(er the interest of the indi(idua*% B(ery action of the e6ecuti(e Do(ernment must
+e informed )ith reason and shou*d +e free from ar+itrariness% That is the (ery essence of
the ru*e of *a) and its +are minima* re1uirementN%
Ha(ing gi(en our an6ious and so*icitous consideration to this 1uestion. )e are of the
opinion that the procedure prescri+ed +y Section ;1C of the 0om+ay /unicipa*
Corporation 2ct for remo(a* of encroachments on the footpaths or pa(ements o(er )hich
the pu+*ic has the right of passage or access. cannot +e regarded as unreasona+*e. unfair
or un#ust% There is no static measure of reasona+*eness )hich can %+e app*ied to a**
situations a*i5e% Indeed. the 1uestion N is this procedure reasona+*e%8N imp*ies and
postu*ates the in1uiry as to )hether the procedure prescri+ed is reasona+*e in the
circumstances of the case. In Francis Cora*ie /u**in. @19o*A 3 S%C%R% 51>. 0hag)ati. J%.
Said:
N%%% %%% it is for the Court to decide in e6ercise of its constitutiona* po)er of #udicia* re(ie)
)hether the depri(ation of *ife or persona* *i+erty in a gi(en case is +y procedure. )hich
is reasona+*e. fair and #ust or it is other)ise%N :emphasis supp*ied. page 53C=%
In the first p*ace. footpaths or pa(ements are pu+*ic properties )hich are intended to
ser(e the con(enience of the genera* pu+*ic% They are not *aid for pri(ate use and indeed.
their use for a pri(ate purpose frustrates the (ery o+#ect for )hich they are car(ed out
from portions of pu+*ic streets% The main reason for *aying out pa(ements is to ensure
that the pedestrains are a+*e to go a+out their dai*y affairs )ith a reasona+*e measure of
safety and security% That faci*ity. )hich has matured into a right of the pedestrains.
cannot +e set at naught +y a**o)ing encroachments to +e made on the pa(ements% There
is no su+stance in the argument ad(anced on +eha*f of the petitioners that the c*aim of the
pa(ement d)e**ers to put up constructions on pa(ements and that of the pedestrains to
ma5e use of the pa(ements for passing and repassing. are competing c*aims and that. the
former shou*d 8+e preferred to the *atter% &o one has the right to ma5e%. use of a pu+*ic
property for a pri(ate purpose )ithout the re1uisite authorisation and. therefore. it is
erroneous to contend that the pa(ement d)e**ers ha(e the right to encroach upon
pa(ements +y constructing d)e**ings thereon% 'u+*ic streets. of )hich pa(ements form a
part. are primari*y dedicated for the purpose of passage and. e(en the pedestrains ha(e
+ut the *imited right of using pa(ements for the purpose of passing8 and repassing% So
*ong as a person does not transgress the *imited purpose for )hich pa(ements are made.
his use thereof is *egitimate and *a)fu*% 0ut. if a person puts any pu+*ic property to a use
for )hich it is not intended and is not authorised so to use it. he +ecomes a trespasser%
The common e6amp*e )hich is cited in some of the Bng*ish cases :see. for e6amp*e.
H*rfcman (% /aisey. @19!!A 1 T%0% "53. is that if a person. )hi*e using a high)ay for
passage. sits do)n for a time to rest himse*f +y the side of the road. he does not commit a
trespass% 0ut. if a person puts up a d)e**ing on the pa(ement. )hate(er may +e the
economic compu*sions +ehind such an act. his user of the pa(ement )ou*d +ecome
unauthorised% 2s stated in Hic5man. it is not easy to dra) an e6act *ine +et)een the
*egitimate user of a high)ay as a high)ay and the user )hich goes +eyond the right
conferred upon the pu+*ic +y its dedication% 0ut. as in many other cases. it is not difficu*t
to put cases )e** on one side of the *ine% 'utting up a d)e**ing on the pa(ement is a case
)hich is c*ear*y on one side of the *ine sho)ing that it is an act of trespass% Section >1 of
the 0om+ay /unicipa* Corporation 2ct *ays do)n the o+*igatory duties of the
Corporation. under c*ause :d= of )hich. it is its duty to ta5e measures for a+atement of a**
nuisances% The e6istence of d)e**ings on the pa(ements is un1uestiona+*y a source of
nuisance to the pu+*ic. at *east for the reason that they are denied the use of pa(ements for
passing and repassing% They are compe**ed. +y reason of the occupation of pa(ements +y
d)e**ers. to use high)ays and pu+*ic streets as passages% The affida(it fi*ed on +eha*f of
the Corporation sho)s that the fa**out of pedestrians in *arge num+ers on high)ays and
streets constitutes a gra(e traffic ha,,ard% Sure*y. pedestrians deser(e consideration in the
matter of their physica* safety. )hich cannot +e sacrificed in order to accommodate
persons )ho use pu+*ic properties for a pri(ate purpose. unauthori,ed*y% Fnder c*ause :c=
of C section >1 of the 0%/%C% 2ct. the Corporation is under an o+*igation to remo(e
o+structions upon pu+*ic streets another pu+*ic p*aces% The counteraffida(it of the
Corporation sho)s that the e6istence of hutments on pa(ements is a serious impediment
in repairing the roads. pa(ements. drains and streets% Section >;:5=. )hich is
discretionary. empo)ers the Corporation to ta5e measures to promote pu+*ic safety.
hea*th or con(enience not% specifica**y pro(ided other)ise% Since it is not possi+*e to
pro(ide any pu+*ic con(eniences to the pa(ement d)e**ers on or near the pa(ements. they
ans)er the nature8 s ca** on the pa(ements or on the streets ad#oining them% These facts
pro(ide the +ac5ground to the pro(ision for remo(a* of encroachments on pa(ements and
footpaths%
The cha**enge of the petitioners to the (a*idity of the re*e(ant pro(isions of the 0om+ay
/unicipa* Corporation 2ct is directed principa**y at the procedure prescri+ed +y section
;1C of that 2ct. )hich pro(ides +y c*ause :a= that the Commissioner may. )ithout notice.
ta5e steps for the remo(a* of encroachments in or upon ay street. channe*. drain. etc% 0y
reason of section ;:)= 8street8 inc*udes a cause)ay. foot)ay or passage% In order to decide
)hether the procedure prescri+ed +y section ;1C is fair and reasona+*e. )e must first
determine the true meaning of that section +ecause. the meaning of the *a) determines its
*ega*ity% If a *a) is found to direct the doing of an act )hich is for+idden +y the
Constitution or to compe*. in the performance of an act. the adoption of a procedure
)hich is impermissi+*e under the Constitution. it )ou*d ha(e to +e struc5 do)n%
Considered In its proper perspecti(e. section ;1C is in the nature of an ena+*ing pro(ision
and not of a compu*si(e character% It ena+*es the Commissioner. in appropriate cases. to
dispense )ith pre(ious notice to persons )ho are *i5e*y to +e affected +y the proposed
action% It does not re1uire and. cannot +e read to mean that. in tota* disregard of the
re*e(ant circumstances pertaining to a gi(en situation. the Commissioner must cause the
remo(a* of an encroachment )ithout issuing pre(ious notice% The primary ru*e of
construction is that the *anguage of the *a) must recei(e its p*ain and natura* meaning%
9hat section ;1C pro(ides is that the Commissioner may. )ithout notice. cause an
encroachment to +e remo(ed% It does not command that the Commissioner sha**. )ithout
notice. cause an encroachment to +e remo(ed% 'utting it different*y. section ;1C confers
on the Commissioner the discretion to cause an encroachment to +e remo(ed )ith or
)ithout notice% That discretion has to +e e6ercised in a reasona+*e manner so as to
comp*y )ith the constitutiona* mandate that the procedure accompanying the
performance of a pu+*ic act must +e fair and reasona+*e% 9e must *ean in fa(our of this
interpretation +ecause it he*ps sustain the (a*idity of the *a)% Reading section ;1C as
containing a command not to issue notice +efore the remo(a* of an encroachment )i**
ma5e the *a) in(a*id%
It must further +e presumed that. )hi*e (esting in the Commissioner the po)er to act
)ithout notice. the Gegis*ature Intended that the po)er shou*d +e e6ercised sparing*y and
in cases of urgency )hich +roo5 no de*ay% In a** other cases. no departure from the audi
a*teram partem ru*e :ZHear the other side[= cou*d +e presumed to ha(e +een intended%
Section ;1C is so designed as to e6c*ude the princip*es of natura* #ustice +y )ay of
e6emption and not as a genera* ru*e% There are situations )hich demand the e6c*usion of
the ru*es of natura* #ustice +y reason of di(erse factors *i5e time. p*ace the apprehended
danger and so on% The ordinary ru*e )hich regu*ates a** procedure is that persons )ho are
*i5e*y to +e affected +y the proposed action oust +e afforded an opportunity of +eing
heard as to )hy that action shou*d not +e ta5en% The hearing may +e gi(en indi(idua**y or
co**ecti(e*y. depending upon the facts of each situation% 2 departure from this
fundamenta* ru*e of natura* #ustice may +e presumed to ha(e +een intended +y the
Gegis*ature on*y in circumstances )hich )arrant it% Such circumstances must +e sho)n to
e6ist. )hen so re1uired. the +urden +eing upon those )ho affirm their e6istence%
It )as urged +y Shri K%K%Singh(i on +eha*f of the /unicipa* Corporation that the
Gegis*ature may )e** ha(e intended that no notice need +e gi(en in any case )hatsoe(er
+ecause. no usefu* 'urpose cou*d +e ser(ed+y issuing a notice as to )hy an
encroachment on a pu+*ic property shou*d not +e remo(ed% 9e ha(e indicated a+o(e that
far from so intending. the Gegis*ature has *eft it to the discretion of the Commissioner
)hether or not to gi(e notice. a discretion )hich has to +e e6ercised reasona+*y% Counse*
attempted to demonstrate the practica* futi*ity of issuing the sho) cause notice +y
pointing out first*y. that the on*y ans)er )hich a pa(ement d)e**er. for e6amp*e. can
ma5e to such a notice is that he is compe**ed to *i(e on the pa(ement 8 +ecause he has no
other p*ace to go to and second*y. that it is hard*y *i5e*y that in pursuance of such a
notice. pa(ement d)e**ers or s*um d)e**ers )ou*d as5 for time to (acate since. on their
o)n sho)ing. they are compe**ed to occupy some pa(ement or s*um or the other if they
are e(icted% It may +e true to say that. in the genera*ity of cases. persons )ho ha(e
committed encroachments on pa(ements or on other pu+*ic properties may not ha(e an
effecti(e ans)er to gi(e% It is a notorious fact of contemporary *ife in metropo*itan cities.
that no person in his senses )ou*d opt to *i(e on a pa(ement or in a s*um. if any other
choice. )ere a(ai*a+*e to him% 2nyone )ho cares to ha(e e(en a f*eeting g*ance at the
pa(ement or s*um d)e**ings )i** see that they are the (ery he** on earth% 0ut. though this
is so. the contention of the Corporation that no notice need +e gi(en +ecause. there can +e
no effecti(e ans)er to it. +etrays a misunder standing of the ru*e of hearing. )hich is an
important e*ement of the princip*es of natura* #ustice% The decision to dispense )ith
notice cannot +e founded upon a presumed impregna+i*ity of the proposed action% For
e6amp*e. in the common run of cases. a person may contend in ans)er to a notice under
section ;1C that :i= there )as. in fact. no encroachment on any pu+*ic road. footpath or
pa(ement. or :ii= the encroachment )as so s*ight and neg*igi+*e as to cause no nuisance
or inco(enience to other mem+ers of the pu+*ic. or :iii= time may +e granted for remo(a*
of the encroachment in (ie) of humane considerations arising out of persona*. seasona*
or other factors% It )ou*d not +e right to assume that the Commissioner )ou*d re#ect these
or simi*ar other considerations )ithout a carefu* app*ication of mind% Human compassion
must soften the rough edges of #ustice in a** situations% The e(iction of the pa(ement or
s*um d)e**er not on*y means his remo(a* from the house +ut the destruction of the house
itse*f% 2nd the destruction of a d)e**ing house is the end of a** that one ho*ds dear in *ife%
Hum+*er the d)e**ing. greater the suffering and more intense the sense of *oss%
The proposition that notice need not +e gi(en of a proposed action +ecause. there can
possi+*y +e no ans)er to it. is contrary to the )e**recogni,ed understanding of the rea*
import of the ru*e of hearing% That proposition o(er*oo5s that #ustice must not on*y +e
done +ut must manifest*y +e seen to +e done and confuses one for the other% The
appearance of in#ustice is the denia* of #ustice% It is the dia*ogue )ith the person *i5e*y to
+e affected +y the proposed action )hich meets the re1uirement that #ustice must a*so +e
seen to +e done% 'rocedura* safeguards ha(e their historica* origins in the notion that
conditions of persona* freedom can +e preser(ed on*y )hen there is some institutiona*
chec5 on ar+itrary action on the part of pu+*ic authorities% :Kadish. N/ethodo*ogy and
Criteria in Due 'rocess 2d#udication% 2 Sur(ey and Criticism.N >> La*e G%J% ;19.;C!
@195"J=% The right to +e heard has t)o facets. intrinsic and instrumenta*% The intrinsic
(a*ue of that right consists in the opportunity )hich it gi(es to indi(idua*s or groups.
against )hom decisions ta5en % +y pu+*ic authorities operate. to participate in the
processes +y )hich those decisions are made. an opportunity that e6presses their dignity
as persons% :Do*+erg (% Ke**y. ;9" F%S% 35C. 3>C>5 @19"!A right of the poor to
participate in pu+*ic processes=%
N9hate(er its outcome. such a hearing represents a (a*ued human interaction in )hich
the affected person e6perience at *east the satisfaction of participating in the decision that
(ita**y concerns her. and perhaps the separate satisfaction of recei(ing an e6p*anation of
)hy the decision is +eing made in a certain )ay% 0oth the right to +e heard from. and the
right to +e to*d )hy. are ana*ytica**y distinct from the right to secure a different outcome-
these rights to interchange e6press the e*ementary idea that to +e a person. rather than a
thing. is at *east to +e consu*ted a+out )hat is done )ith one% Justice Fran5furter captured
part of this sense of procedura* #ustice )hen he )rote that the NIa*idity and mora*
authority of a conc*usion *arge*y depend on the mode +y )hich it )as reached% &o +etter
instrument has +een de(ised for arri(ing at truth than to gi(e a person in #eopardy of
serious *oss notice of the case against him and opportunity to meet it% &or has a +etter
)ay +een found for generation the fee*ing. so important to a.popu*ar go(ernment. that
#ustice has +een doneN% Joint 2ntifascist Refugee Committee (% /e Drath. ;C1. FS%
13;. 1"11"3 :1951=% 2t sta5e here is not Just the muchacc*aimed appearance of #ustice
+ut. from a perspecti(e that treats process as intrinsica**y significant. the (ery essence of
#usticeN. :See N2merican Constitutiona* Ga)N +y Gaurence H% Tri+e. 'rofessor of Ga).
Har(ard Fni(ersity :Bd% 19"8. page 5!;=%
The instrumenta* facet of the right of hearing consists in the means )hich it affords of
assuring that the pu+*ic ru*es of conduct. )hich resu*t in +enefits and pre#udices a*i5e. are
in fact accurate*y and consistent*y fo**o)ed%
NIt ensures that a cha**anged action accurate*y ref*ects the su+stanti(e ru*es app*ica+*e to
such action - its point is *ess to assure participation than to use
participation to assure accuracy%N
2ny discussion of this topic )ou*d +e incompe*ete )ithout NreferenceN to an important
decision of this Court in S%G% Kapoor (% Jagmo+an. @1981A 1 S%C%R% "C>.">>% In that case.
the superession of the &e) De*hi /unicipa* Committee )as cha**enged on the Nground
that it )as in (io*ation of the princip*es of natura* #ustice since. no sho) cause notice
)as issued +efore the order of superession )as passed% Gin5ed )ith that 1uestion )as- the
1uestion )hether the fai*ure to o+ser(e the princip*es of natura* #ustice matters at a**. if
such o+ser(ance )ou*d ha(e N\made no difference. the admitted or indisputa+*e facts
spea5ing for themse*(es% 2fter referring to the decisions in Ridge (% 0a*d)in. @19>CA
2%C%C! at >8- John (% Reeas. @19"!A 1 Chancery ;C5 at :C!3- 2nuanuthodo (% <i*fie*ds
9or5ers8Trade Fnion. @19>1A ; 2** B%R% >31 :H%G%= at >35- /argarita Fuentes at a*% (%
To+ert G%She(in. ;3 G%Bd% 3d 55> at 5"C- Chintepa**i 2gency Ta*u5 2rrac5 Sa*es
Cooperati(e Society Gtd% (% Secretary :Food ? 2gricu*ture= Do(ernment of 2ndhra
'radesh. @19"8A 1 S%C%R% 5>; at 5>".5>95"!. and to an interesting discussion of the
su+#ect in Jac5son8s &atura* Justice :198! Bdn%= the Court. spea5ing through one of us.
Chinnappa Reddy. J% Said :
NIn our (ie) the princip*es of natura* #ustice 5no) of no e6c*usionary ru*e dependent on
)hether it )ou*d ha(e made any difference if natura* #ustice had +een o+ser(ed% The non
o+ser(ance of natura* #ustice is % itse*f pre#udice to any man and proof of pre#udice
independent*y of proof of denia* of natura* #ustice Is unnecessary% It )i** comes from a
person )ho has denied #ustice that the person )ho has +een denied #ustice is not
pre#udiced%N
These o+ser(ations sum up the true *ega* position regarding the purport and imp*ications
of the right of hearing%
The #urisprudence re1uiring hearing to +e gi(en to those )ho ha(e encroached on
pa(ements and other pu+*ic properties e(o5ed a sharp response from the respondents
counse*% N Hearing to +e gi(en to trespassers )ho ha(e encroached on pu+*ic propertiesS
To persons )ho commit crimesSN. they seemed to as5 in )onderment% There is no dou+t
that the petitioners are using pa(ements and other pu+*ic properties for an unauthorised
purpose% 0ut. their intention or o+#ect in doing so is not to Ncommit an offence or
intimidate. insu*t or annoy any personN. )hich is the gist of the offence of ZCrimina*
trespass[ under section CC1 of the 'ena* Code% They manage to find a ha+itat in p*aces
)hich are most*y fi*thy or marshy. out of sheer he*p*essness% It is not as if they ha(e a
free choice to e6ercise as to )hether to commit an encroachment and if so. )here% The
encroachments committed +y these persons are in(o*untary acts in the sense that those
acts are compe**ed +y ine(ita+*e circumstances and are not guided +y choice% Trespass is
a tort% 0ut. e(en the *a) of Torts re1uires that though a trespasser may +e e(icted
forci+*y. the force used must +e no greater than )hat is reasona+*e and appropriate Co the
occasion and. )hat is e(en more important. the trespasser shou*d +e as5ed and gi(en a
reasom%+*e opportunity to depart +efore force is used to e6pe* him% :See
Kamas)amy *yer8s 8Ga) of Torts8 "th Bd% +y Justice and /rs% S%K%Desa*. :page 98. para
C1=%% 0esides. under the Ga) of Torts. necessity is a p*ausi+*e defence. )hich ena+*es a
person to escape *ia+i*ity on the ground that the acts comp*ained of are necessary to
pre(ent greater damage. inter a*ia. to himse*f% NHere. as e*se)here in the *a) of torts. a
+a*ance has to +e struc5 +et)een competing sets of (a*ues %%%%%%%%N :See Sa*mood and
Heuston. 8Ga) of Torts8. 18th Bd% :Chapter 31. page C>;. 2rtic*e 185 8&ecessity8=%
The charge made +y the State Do(ernment in its affida(it that s*um and pa(ement
d)e**ers e6hi+it especia* crimina* tendencies is unfounded% 2ccording to Dr%
'%K%/uttagi. Head of the unit for ur+an studies of the Tata Institute of Socia* Sciences.
0om+ay. the sur(eys carried out in 19"3. 19"".19"9 and 1981 sho) that many fami*ies
)hich ha(e chosen the 0om+ay footpaths #ust for sur(i(a*. ha(e +een *i(ing there for
se(era* years and that 5; 8 per cent of the pa(ement d)e**ers are se*femp*oyed as
ha)5ers in 8%(egeta+*es. f*o)ers. icecream. toys. +a**oons. +uttons. need*es 8%and so on%
<(er ;8 per cent are in the )ageemp*oyed category as casua* *a+ourers. construction
)or5ers. domestic ser(ants and #.Juggage carriers% <n*y 1%" per cent of the tota* num+er
is generunemp*oyed% Dr% /uttagi found among the pa(ement d)e**ers a graduate of
/arath)ada Fni(ersity and /us*im 'ost of some standing% NThese peop*e ha(e merged
)ith the *andscape. +ecome part of it. *i5e the chame*eonN. though their contact )ith their
more W fortunate neigh+ours )ho *i(e in ad#oining highrise +ui*dings is 5 8casua*% The
most important finding of Dr%/uttagi is that the ] pa(ement d)e**ers are a peacefu* *ot.
Nfor. they stand to *ose 5 their she*ter on the pa(ement if they distur+ the aff*uent or
indu*ge in 8 fights )ith their fe**o) d)e**ersN% The charge of the State Do(ernment.
+esides +eing contrary to these scientific findings. is +orn of pre#udice against the poor
and the destitute% 2ff*uent peop*e *i(ing in s5yscrapers a*so commit crimes (arying from
*i(ing on the gains of prostitution and defrauding the pu+*ic treasury to smugg*ing% 0ut.
they get a)ay% The pa(ement d)e**ers. )hen caught. defend themse*(es +y as5ing. N)ho
does not commit crimes in this city S N2s o+ser(ed +y 2nand Cha5ra(arti.N The
separation +et)een e6istentia* rea*ities and the rhetoric of socia*ism indu*ged in +y the
)ie*ders of po)er in the go(ernment cannot +e more profound%N 8Some aspects of
ine1ua*ity in rura* India i% 2 Socio*ogica* 'erspecti(e pu+*ished in ZTua*ity and
Ine1ua*ity. Theory and 'ractice[ edited +y 2ndre T 0etet**e. 198;%
&orma**y. )e )ou*d ha(e directed the /unicipa* Commissioner to afford an opportunity
to the petitioners to sho) )hy the encroachments committed +y them on pa(ements or
footpaths shou*d not +e remo(ed% 0ut. the opportunity )hich )as denied +y the
Commissioner )as granted +y us in an amp*e measure. +oth sides ha(ing made their
contentions e*a+orate*y on acts as )e** as on *a)% Ha(ing considered those contentions.
)e are of the opinion that the Commissioner )as #ustified in directing the remo(a* of the
encroachments committed +y the petitioners on pa(ements. footpaths or accessory roads%
2s o+ser(ed in S%G% Kapoor. :Supra= N)here on the admitted or indisputa+*e facts on*y
one conc*usion is possi+*e and under the *a) on*y one pena*ty is permissi+*e. the Court
may not Issue its )rit to compe* the o+ser(ance of natura* #ustice. not +ecause it is not
necessary to o+ser(e natura* #ustice +ut +ecause Courts do not issue futi*e )ritsN% Indeed.
in that case. the Court did not set aside the order of supersession in (ie) of the factua*
position stated +y it% 0ut. though )e do not see any #ustification for as5ing the
Commissioner to hear the petitioners. )e propose to pass an order )hich. )e +e*ie(e. he
)ou*d or shou*d ha(e passed. had he granted a hearing to them and heard )hat )e did%
9e are of the opinion that the petitioners shou*d not +e e(icted from the pa(ements.
footpaths or accessory roads unti* one month after the conc*usion of the current monsoon
season. that is to say. unti* <cto+er ;1. 1985% In the mean)hi*e. as e6p*ained *ater. steps
may +e ta5en to offer a*ternati(e pitches to the pa(ement d)e**ers )ho )ere or )ho
happened to +e censused in 19">% The offer of a*ternati(e pitches to such pa(ement
d)e**ers shou*d +e made good in the spirit in )hich it )as made. though )e do not
propose to ma5e it a condition precedent to the remo(a* of the encroachments committed
+y them%
Insofar as the Kamra# &agar 0asti is concerned. there are o(er C!! hutments therein% The
affida(it of the /unicipa* Commissioner. Shri D%/%Su5hthan5ar. sho)s that the 0asti
)as constructed on an accessory road. *eading to the high)ay% It is a*so c*ear from that
affida(it that the hutments )ere ne(er regu*arised and no registration num+ers )ere
assigned to them +y the Road De(e*opment Department% Since the 0asti is situated on a
part of the road *eading to the B6press High)ay. serious traffic ha,ards arise on account
of the straying of the 0asti chi*dren onto the B6press High)ay. on )hich there is hea(y
(ehicu*ar traffic% The same criterion )ou*d app*y to the Kamra# &agar 0asti as )ou*d
app*y to the d)e**ings constructed unauthorised*y on other. roads and pa(ements in the
city%
The affida(it ot Shri 2r(ind I%Do5a5. 2dministrator of the /aharashtra Housing and
2reas De(e*opment 2uthority. 0om+ay. sho)s that the State Do(ernment had ta5en a
decision to compi*e a *ist of s*ums )hich )ere re1uired to +e remo(ed in pu+*ic interest
and to a**ocate. after a spot inspection. 5!! acres of (acant *and in or near the 0om+ay
Su+ur+an District for resett*ement of hutment d)e**ers remo(ed from the s*ums% 2
census )as according*y carried out on January C. 19"> to enumerate the s*um d)e**ers
spread o(er a+out 85! co*onies a** o(er 0om+ay% 2+out >"U of the hutment d)e**ers
produced photographs of the heads of their fami*ies. on the +asis of )hich the hutments
)ere num+ered arid their occupants )ere gi(en identity cards% Shri Do5a5 further says in
hia affida(it that the Do(ernment had a*so decided that the s*ums )hich )ere in e6istence
for a *ong time and )hich )ere impro(ed and de(e*oped. )ou*d not norma**y +e
demo*ished un*ess the *and )as re1uired for a pu+*ic purposes% In the e(ent that the *and
)as so re1uired. the po*icy of the State Do(ernment )as to pro(ide a*ternate
accommodation to the s*um d)e**ers )ho )ere censused and possessed identity cards%
The Ciruc*ar of the State Do(ernment dated Fe+ruary C. 19"> :&o% SISP1">PDC1%= +ears
out this position% In the enumeration of the hutment d)e**ers. some persons occupying
pa(ements a*so happened to +e gi(en census cards% The Do(ernment decided to a**ot
pitches to such persons at a p*ace near /a*a(ani% These assurance he*d forth +y the
Do(ernment must +e made good% In other )ords despite the finding recorded +y us that
the pro(ision contained in section ;1C of the 0%/%C% 2ct is (a*id. pa(ement d)e**ers to
)hom census cards )ere gi(en in 19"> must +e gi(en a*ternate pitches at /a*a(ani
though not as a condition precedent to the remo(a* of encroachments committed +y them%
Second*y. s*um d)e**ers )ho )ere censused and )ere gi(en identity cards must +e
pro(ided )ith a*ternate accommodation +efore they are e(icted% NThere is a contro(ersy
+et)een the petitioners and the State Do(ernment as to the e6tent of (acant *and )hich is
a(ai*a+*e for N resett*ement of the inha+itants of pa(ements and s*ums% 9hate(er that
may +e . the highest priority must +e accorded +y the State Do(ernment to the
resett*ement of these unfortunate persons +y a**oting to them such *and as the
Do(ernment finds to +e con(enient*y a(ai*a+*e% The /aharashtra Bmp*oyment Duarantee
2ct. %19"". the Bmp*oyment Duarantee Scheme. the 8&e) T)enty 'oint SocioBconomic
'rogramme. 19838. the 82fforda+*e Go) Income NNNShe*ter 'rogramme in 0om+ay
/etropo*itan Region8 and the 'rogramme of House 0ui*ding for the economica**y )ea5er
sections8 must not %remain a dead *etter as such schemes and programmes
often *o% &ot on*y that. +ut more and more such programmes must +e initiated if the
theory of e1ua* protection of *a)s has to ta5e its rightfu* p*ace in the strugg*e for e1ua*ity%
In these matters. the demand is not so much for *ess go(ernmenta* interference as for
positi(e go(ernmenta* action to pro(ide e1ua* treatment to neg*ected segments of society%
The profound rhetoric of socia*ism must +e trans*ated into practice for. the pro+*ems
)hich confront the State are pro+*ems of human destiny%
During the course of arguments. an affida(it )as fi*ed +y Shri S%K%Jahag*rdar. Fnder
Secretary in the Department of Housing. Do(ernment of /aharashtra. setting out the
(arious housing schemes )hich are under the consideration of the State Do(ernment% The
affida(it contains usefu* information on (arious aspects re*ating to s*um and pa(ement
d)e**ers% The census of 19"> )hich is referred to in that affida(it sho)s that 38%18 *a5hs
of peop*e )ere *i(ing in >.3"%C!C househo*ds spread o(er 1>8! s*um poc5ets% The earning
of 8! per cent of the s*um house ho*ds did not e6ceed Rs%>!! per month% The State
Do(ernment has a proposa* to underta5e 8Go) Income Scheme She*ter 'rogramme8 )ith
the aid of the 9or*d 0an5% Fnder the Scheme. 85.!!! sma** p*ots for construction of
houses )ou*d +ecome a(ai*a+*e. out of )hich C!.!!! )ou*d +e in Dreater 0om+ay. 35.!!
in the ThaneKa*yan area and 3!.!!! in the &e) 0om+ay region% The State Do(ernment
is a*so proposing to underta5e 8S*um Fpgradation 'rogramme:SF'=8 under )hich +asic
ci(ic amenities )ou*d +e made a(ai*a+*e to the s*um d)e**ers% 9e trust that these
Schemes. grandiose as they appear. )i** +e pursued faithfu**y and the aid o+tained from
the 9or*d San5 uti*ised systematica**y and effecti(e*y for achie(ing its purpose%
There is no short term or margina* so*ution to the 1uestion of s1uatter co*onies. nor are
such co*onies uni1ue to the cities of India% B(ery country. during its historica* e(o*ution.
has faced the pro+*em of s1uatter sett*ements and most countries of the underde(e*oped
)or*d face this pro+*em today% B(en the high*y de(e*oped aff*uent societies face the same
pro+*em. though )ith their *arger resources and sma**er popu*ations. their tas5 is far *ess
difficu*t% The forci+*e e(iction of s1uatters. e(en if they are resett*ed in other sites. tota**y
disrupts the econoinic/ife of the househo*d% It has +een a common e6perience of the
administrators and p*anners that )hen resett*ement is forci+*y done. s1uatters e(entua**y
se** their ne) p*ots and return to their origina* sites near their p*ace of emp*oyment%
Therefore. 8)hat is of crucia* importance to the 1uestion of thinning out the s1uatters8
co*onies in metropo*itan cities is to create ne) opportunities for emp*oyment in the rura*
sector and tospread the e6isting #o+ opportunities e(en*y in ur+an areas% 2part from the
further misery and degradation )hich it in(o*(es. e(iction of s*um and pa(ement d)e**ers
is an ineffecti(e remedy for decongesting the cities% In a high*y reada+*e and mo(ing
account of the pro+*ems )hich the poor ha(e to face. Susan Deorge says : :8Ho) the
<ther Ha*f Dies The Rea* Seasons for 9or*d Hunger1 :'o*ican +oo5s=%
NSo *ong as thorough going *and reform. regrouping and distri+ution of resources to the
poorest. +ottom ha*f of the popu*ation does not ta5e p*ace. Third 9or*d countries can go
on increasing their production unti* he** free,es and hunger )i** remain. for the
production )i** go to those )ho a*ready ha(e p*enty to the de(e*oped )or*d or to the
)ea*thy in the Third 9or*d itse*f% 'o(erty and hunger )a*5 hand in handN%:'age 18=%
9e )i** c*ose )ith a 1uotation from the same +oo5 )hich has a message:
N/a*nourished +a+ies. )asted mothers. emaciated corpses in the streets of 2sia ha(e
definite and defina+*e reasons for e6isting% Hunger may ha(e +een the human race8s
constant companion. and 8the poor may a*)ays +e )ith us8. +ut in the t)entieth century.
one cannot ta5e this fata*istic (ie) of the destiny of mi**ions of fe**o) creatures% Their
condition is not ine(ita+*e +ut is caused +y identifia+*e forces )ithin the pro(ince of
rationa*. human contro*N. :p% 15=
To summarise. )e ho*d that no person has the right to encroach. +y erecting a structure or
other)ise. on footpaths. pa(ements or any other p*ace reser(ed or earmar5ed for a pu+*ic
purpose *i5e. for e6amp*e. a garden or a p*ayground- that the pro(ision contained in
section ;1C of the 0om+ay /unicipa* Corporation 2ct is not unreasona+*e in the
circumstances of the case- and that. the Kamra# &agar 0asti is situated on an accessory
road *eading to the 9estern B6press High)ay% 9e ha(e referred to the assurances gi(en
+y the State Do(ernment in its p*eadings here )hich. )e repeat. must +e made good%
Stated +rief*y. pa(ement d)e**ers )ho )ere censused or )ho happened to +e censused in
19"> shou*d +e gi(en. though not as a condition precedent to their remo(a*. a*ternate
pitches at /a*a(ani or at such other con(enient p*ace as the Do(ernment considers
reasona+*e +ut not farther a)ay in terms of distance- s*um d)e**ers )ho )ere gi(en
identity cards and )hose d)e**ings )ere num+ered in the 19"> census must +e gi(en
a*ternate sites for their reC sett*ement- s*ums )hich ha(e +een in e6istence for a *ong
time. say for t)enty years or more. and )hich ha(e +een impro(ed and de(e*oped )i**
not +e remo(ed un*ess the *and on )hich they stand or the appurtenant *and. is re1uired
for a pu+*ic purposes. in )hich case. a*ternate sites or accommodation )i** +e pro(ided to
them. the 8Go) Income Scheme She*ter 'rogrammeN )hich is proposed to +e underta5en
)ith the aid of the 9or*d 0an5 )i** +e pursued earnest*y- and. the S*um Fpgradation
'rogramme :SF'-8under )hich +asic amenities are to +e gi(en to s*um d)e**ers )i** +e
imp*emented )ithout de*ay% In order to minimise the hardship in(o*(ed in any e(iction.
)e direct that the s*ums. )here(er situated. )i** not +e remo(ed unti* one month after the
end of the current monsoon season. that is. unti* <cto+er ;1.1985 and. thereafter. on*y in
accordance )ith this #udgment% If any s*um is re1uired to +e remo(ed +efore that date.
parties may app*y to this Court% 'a(ement d)e**ers. )hether censused or uncensused.
)i** not +e remo(ed unti* the same date (i,% <cto+er ;1. 1985%
The 9rit 'etitions )i** stand disposed of according*y% There )i** +e no order as to costs%
/%G%2% 'etitions disposed of%