51

OLGA TELLIS &ORS. A

v.
BOMBAY MUNiCIPAL CORPORATION & ORS. ETC.

JULY, 10, 1985

[Y.V. CHANDRACHUD, c.J.' s. MURTAlA FAZAL ALI, v.D. TULZAPURKAR, B

O. CHINNAPPA REDDY AND A. VARADARAJAN, JJ. j

Constitution of India, 1950 :

Article · 32 - Fundamental Rights - Estoppel - Pdnciple

behind - No estoppel can be claimed against enforcement of Funda- C
mental Rights.

Article 21, 19(1) (e) & (g) - Pavement and slum dwellers -
Forcible eviction and removal of their hutments under Bombay
Municipal Corporation Act - Whether deprives them of their means
of livelihood and consequently right to life - Right to life - D
Meaning of - Whether includes right to livelihood·

Article 32 & 21 - Writ Petition against procedurally ultra

vires Government action - Whether manintainable.

Bombay Municipal Corporation Act, 1888, s.314 - Power to

remove encroachments "without notice", when permissible - Section E
- Whether ultra vires the Constitution.

Administrative Law - Natural Justice - Audi alteram partem

- Notice - Discretion to act with or without notice must be exer-
cised reasonably, fairly and justly - Natural justice - Exclusion
- How far permissible. F

The petit:f,oners in writ petitions Nos. 4610-12/8.1 live on

pavements and in slums in the cii:y of Bombay. Some of the peti-
tioners in the second batch of writ petitions Nos.5068-79 of
1981, are residents of Kamraj Nagar, a basti or habitation which
is alleged to have come into existence in about 1960-61, near G
the Western Express Highway, Bombay, while others are residing in
structures ·constructed off the Tulsi Pipe Road, Mahim, Bombay.
The Peoples Union for Civil Liberties, Committee for th~ Protec-
tion of Democratic Rights and two journalists have also joined in
the writ petitions.
H

.
 52 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Some time in 1981, the respondents - State of Maharashtra

and Bombay Municipal Corporation took a decision that all pave-
ment dwellers and the slum or busti dwellers in the city of
Bombay will be evicted forcibly and deported to their respective,
places of origin or removed to places outside the city of Bombay.
Pursuant to that decision, the pavement dwellings of some of the
B petitioners were in fact demolished by the Bombay Municipal Cor-
poration. Some of the petitioners challenged the aforesaid deci-
sion of the respondents in the High Court. The petitioners conce-
ded before the High Court that they could not claim any funda-
mental right to put up huts on pavements or public roads, and
also gave an undertaking to vacate the huts on or before October,
15, 198i. On such undertaking being given, the respondents
c agreed that the huts will not be demolished until October 15,
1981 and the writ petition was disposed of accordingly.

In writ petitions filed under Article 32, the petitioners >--

challenged the decision of the respondents to demolish the pave-
ment dwellings and the slum hutments on the grounds (i) that
evicting a pavement dweller from his habitat amounts to depriving
D him of his right to livelihood, which is comprehended in the
right guaranteed by Article 21 of the Constitution that no
person shall be deprived of his life except according to proce-
dure established by law, (ii) that the impugned action of the
State Government and the Bombay Municipal Corpoation is violative
of the provisions contained in Article 19(1)(3), 19(l)(g) and 21
E of the Constitution, (iii) that the procedure prescribed by
Section 314 of the Bombay Municipal Corporation Act, 1888 for the
removal of encroachments from pavements is arbitrary and unrea-
sonable since, not only does it not provide for the giving of a
notice before the removal of an encorachment but, expressly
enables that the Municipal Collllllissioner may cause the encroach-
F ments to be removed "without notice", (iv) that it is constitu-
tionally impermissible to characterise the· pavement dwellers as
'tresspassers', because their occupation of pavements arises Crom
economic compulsions; and (v) that the Court must determine the
content of the 'right to life', the function of property in a
welfare state, the dimension and true meaning of the constitu-
G
tional mandate that property must subserve common good, the sweep
of the right to reside and settle in any part of the territory of
India which is guaranteed by Article 19(1) (a) and the right to ·
carry on any occupation, trade or business which is guaranteed by
Article 19(1) (g), the competing claims of pavement dwellers on
the one hand and of the pedestrians on the other and, the larger
fl question of ensuring equality before the law.
...
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. 53

A
The respondents contested the writ petitions contending
that (1) the petitioners must be estopped from contending in the
Supreme Court that the huts constructed by them on the pavements
csnnot be demolished because of their right to livelihood, .si~
they had conceded in the High Court that they did not clsim any
fundamental right to put up huts on pavements or public roads and
B
had given an undertaking to the High Court that they will not
obstruct the demolition of the huts after October 15, 1981.; (2)
that no person has any legal right to encroach upon or to
construct anY structure on a foot-path, public street or on any
place over which the public has a right of way. The right
conferred by Article 19(1) (e) of the Constitution to reside and
settle in anY part of lndia cannot be resd to confer a licence to c
encroach and trespass upon public property; (3) that the
provisions of sections 312, 313 and 314 of the Bombay Municipal
Corporation Act do not violate the Constitution, but are
conceived in public interest and great care is taken by the
authorities to ensure that no harrasment is caused to any
pavement dweller by enforcing the provisions; (4) that the huts D
near the Western Express Highway, Vile Parle, Bombay, were
constructed on an accessory road which is a part of the Highway
itself, and were never regularised by the .Corporation and no
registration numbers were assigned to them; (5) that no
deprivation of life, either directly or indirectly is involved in
the eviction of the slum and pavement-dweller from public places.
E
The Municipal Corporation is under an obligation under section
314 of the B.M.C. Act to remove obstruction on pavements, public
streets and other public places. The petitioners have not only
violated the provisions of the Bombay Municipal Corporation Act,
but they have contravened sections 111 and 115 of the Bombay
Police Act also.
F
Disposing of the writ petitions,

llKLD: 1.1 The petitions are clearly maintainable under

Article 32 of the Constitution. Where the action taken against a
citizen is procedurally ultra vires, the aggrieved party can move
the Supreme Court under Article 32. [79 C-il] G

Maresh Shridhar Hirajkar v. State of llaharashtra [1966] 3

s.c.&. 744-770, followed.
Smt;. Ujjam Bai v. State of Uttar Pardesh· [1963] 1 s.c.R.
778, referred to. H
 54 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 1.2 There can be no estoppel against the Constitution. The

Constitution is not only the paramount law of the land but, it is
the source and sustenance of all laws. Its provisions are con-
ceived in public interest and are intended to serve a public
purpose. The doctrine of estoppel is based on the principle that
consistency in word and action imparts certainty and honesty to
B htunan affairs. If a person makes representation to another, on
the faith of which the latter acts to is prejudice, the former
cannot resile from the representation made by him. He orust make
it good. This principle can have no application to representa-
tions made regarding the assertion or enforcement of fundamental
rights. [77 C-E]

C 1. 3 Fundamental rights are undoubtedly conferred by the

Constitution upon individuals which have to be asserted and en-
forced by them, if those rights are violated. But, the high
purpose which the Constitution seeks to achieve by conferment of
fundamental rights is not only to benefit individuals but to
secure the larger interests of the community. The Preamable of
the Constitution says that India is a democratic Republic. It is
D in order to fulfil the promise of the Preamble that fundamental
rights are conferred by the Constitution, some on citizens like
tnose guaranteed by Articles 15, 16, 19, 21 and 29 and, some on
citizens and non-citizens alike, like those guaranteed by Arti-
cles 14, 21, 22 and 25 of the Constitution. No individual can
barter away the freedoms conferred upon him by the Constitution.
E A concession made by him in a proceedings, whether under a mis-
take of law or otherwise, that he does not possess or will not
enforce any . particular fundamental right, cannot create an
estoppel against him in that or any subsequent proceedings. Such
a concession, if enforced, would defeat the purpose of the Cons-
, titution. [77 F-H, 78 A-BJ
F
The plea of estoppel is closely connected with the plea of
waiver, the· object of both being to ensure bona fides in day-to-
day transactions. [78 DJ

In the instant case, notwithstanding the fact that the

G petitioners had conceded in the Bombay High Court that they have
no fundamental right to construct hutments on pavements and that
they will not object to their demolition after October 15, 1981,
they are entitled to assert that any such action on the part of
public authorities will be in violation of their fundamental
rights. How far the argUment regarding the existence and scope
H of the right claimed by the petitioners is well-founded is
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. 55

another matter. But, the argument baa to be examined despite the A

concession. [78 C-D]

Basheshar Nath v. The Coalllissioner of Income Tax Delhi

(1959) Supp. l s.c.R. 528, referred to.

2.1 The sweep of the right to life conferred by Article 21 B

is wide and far reaching. It does not mean merely. that life
cannot be extinguished . or taken away as, for example, by the
impo~ition and execution of the death sentence, except according
to procedure established by law. That is but one aspect of the
right to life. An equally important facet of that right is the
right to livelihood because, no person can live without the means c
of living, that is, the.means of livelihood. If the right to
livelihood is not treated as a part of the constitutions! right
to life, the easiest way of depriving a person of his right to
life would be to deprive him of his means of livelihood to the
point of abrogation. Such deprivation would not only denude the
life of its effective content and meaningfulness but it would o
make life impossible to live. And yet, such deprivation would
not have to be in accordance with the procedure established by
law, if the right to livelihood is not regarded as a part of the
right to life. That, which alone makes it possible to live,
leave aside what makes like livable, nrust be deemed to be an
integral compone~t of the right to life. (79 F-il, 80 A-BJ
E
2.2 The principles contained in Articles 39(a) and 41 nrust
be regarded as equally fundamental in the understanding and
interpretation of the meaning and content of fundamental rights.
If there is an obligation upon the State to secure to the
citizens an adequate means of livelihood and the right to work,
it would be sheer pendantry to exclude the right to livelihood F
from the content of the right to life. The State may not, by
affirmative action, be compellable to provide adequate means of
livelihood or work to the citizens. But, any person who is
deprived of his right to livelihood except according to just and
fair procedure established by law, can challenge the deprivation
as offending the right to life conferred by Article 21. [80 G-11, G
81 Aj

Mwm v. Illinois [1877] 94 US 113 and Kharak Singh v. Die

State of u.p. [1964] l s.c.R. 332 referred to.

In Be: Sant Ram (1960) 3 s.c.a. 499, distinguished. H

 56 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 2.3 In a matter like the one in which the future of half of

the city's population is at stake, the Court must consult authen-
tic empirical data compiled by agencies, official and non-offi-
cial. It is by that process that the core of the problem can be
reached and a satisfactory solution found· ft would be unrealis-
tic on the part of the Court to reject the petitions on the
B ground that the petitioners have llOt adduced evidence to show
that they will be rendered jobless if they are evicted from the
sluma and pavements. Common sense, which is a cluster of life's
experiences, is often more dependable than the rival facts
preaented by warring litigants. (82 B-C]

In the instant case, it is clear from the various expert

C studies that one of the main reasons of the emergence and growth
of squatter-settlements in big Metropolitan cities like Bombay,
is the availability of job opportunities which are lacking in the
rural sector. The undisputed fact that even after eviction, the
squatters return to the cities affords proof of that position.
These facts constitute empirical evidence to justify the conclu-
sion that persons in the position of petitioners live in sluma
D and on pavements because they have small jobs to nurse in the
city and .there is nowhere else to live. Evidently, they choose a
pavement or a slum in the vicinity of their place of work, the
time otherwise taken in commuting and its cost being forbidding
for their slender means. To lose the pavement or the slum is to
lose the job. The conclusion, therefore, in terms of the consti-
E tutional phraseology is that the eviction of the petitioners will
lead to deprivation of their livelihood and consequently to the
deprivation of life. [82 D, 83 B-D]

3.1 The Constitution does not put an absolute embargo on the

deprivation of life or personal liberty. It is far too well-
F settled to admit of any argument that the procedure prescribed
by law for the deprivation of the right conferred by Article 21
must be fair, just and reasonable. Just as a mala fide act has
no existence in the eye of law, even so, --UO:X:eMOii.ableness
vitiates law and procedure alike· It is therefore essential that
the procedure prescribed by law for depriving a person of his
G fundamental right, must conform to the means of justice and £air-
play. Procedure, which is unjust or unfair in the circumstances
of a case, attracts the vice of unreasonableness, thereby vitiat-
ing the law which prescribes that procedure and consequently, the
action taken under it. Any action taken by a public authority
which is• invested with statutory powers has, therefore, to be
H tested by the application of two standards: The action must be
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. 57

within the scope of the authority conferred by law and secondly, A

it IDUSt be reasonable. If any action, within the scope of the
authority conferred by law, is found to be unreasonable, it 1DUSt
mean that the proced11Ie established by law under which that
action is taken is itself unreasonable. The substance of the law
cannot be divorced from the procedure which it prescribes for,
how reasonable the law is, depends upon how fair is the proce- B
dure prescribed by it. [83 E, 85 F-ti, 86 A]

3.2 In order to decide whether the procedure prescribed by

section 314 is fair and reasonable, the Court 1DUSt first deter-
mine the true meaning of that section because, the meaning of the
law determines ,its legality. ·Considered in its .proper perspect- c
ive, section 314 is in the nature of an enabling provision and
not of a compulsive character. It enables the Commissioner in
appropriate cases, to dispense with previous notice to persona
who are likely to be affected by the proposed action. It does
__, not require and, cannot be read to mean that, in total disregard
of the relevant circumstances pertaining to a given situation, D
the Commissioner 1DUSt cause the removal of an encroachment with-
out issuing previous notice. The priiDary rule of construction
is that the language of the law IDUSt receive its plain and
natural meaning. What section 314 provides is that the Commis-
sioner may, without notice, cause an encroachment to be removed.
It does not COlllllSnd that the Commissioner, shall without noice,
cause an encroachment to be removed. Putting it differently, E
section 314 confers on the COlllldssioner the discretion to cause
an encroachment to be removed with or without notice. That
discretion has to be exercised in a reasonable manner so aa to
comply with the constitutional mandate that the procedure
accompanying the performance of a public act iuust be fair and
reasonable. The Court 1DUSt leen in favour of this interpretation F
because it helps sustain the validity of the law. Reading
section 314 aa containing a comnand not to issue notice before
the removal of an encroachment will make the law invalid. [88 H,
89 A-DJ

3.3 Section 314 is so designed as to exclude the principles G

of natural justice by way of exception and not as a general rule.
There are situationa·which demand the exclusion of the rules of
natural justice by reason of diverse factors like time, place,
the apprehended danger and so on. The ordinary rule which regu-
lates all procedure is that persons who sre likely to be affected
by the proposed action IDUSt be afforded an opportunity of being H
heard aa to why that action should not be taken. The hearing may
be given individually or collectively, depending upon the facts
 58 SUPREME COURT REPORTS [1985] SuPP.2 s.c.R.

A of each situation. A departure from this fundamental rule of

natural justice may be presumed to have been intended by the
Legislature only in circumatances which warrant it. Such circum­
stances must be known to exist, when so required, the burden
being upon those who affirm their existence. [89 E-G]

B 3.4 The proposition that notice need not be given of a pro-

posed action because, there can possibly be no answer to it, is
contrary to the well-recognized understanding of the real import
of the rule of hearing. That proposition overlooks that justice
must not only be done but must manifestly be seen to be done and
confuses one for the other. The appearance of injustice is the
denial of justice. It is the dialogue with the person likely to
C be affected by the proposed action which meets the requirement
that justice must also be seen to be done. Procedural safeguards
have their historical origins in the notion that conditions of
personal freedom can be preserved only when there is some insti­
tutional check on arbitrary action· on the part of the public
authorities. The right to be heard has two facets, intrinaic and
instrumental. The intrinsic value of that right consists in the
D opportunity which it givea to individuals or groups, against whom
decision taken by public authorities operate, to participate in
the processes by which those decisions are made, an opportunity
that expresses their dignity as persons. [90 H, 91 A-DJ

l!.P. Boyappa v. State of Tamil Madu (1974] 2 s.c.R. 348,

E Hanek& Gandhi v. Union of lDd1a (1978] 2 s.c.R. 621, M.o. Boacot
v. State of .Maharashtra [1979] l s.c.R. 192, &mil. Batra. I v.
Delhi Mmntstration [1979] l s.c.R. 392, Sita llml v. State of
u.P. [1979] 2 s.c.R. 1085, Hussainara Khatoon, I v. 11ome Secret­
ary State of Bihar, Patna [1979] 3 s.c.R. 532,537. Hussainara
Khatoon, II v. Home Secretary State of Bihar, Patna [1980] 1
F S.C.C. 81 Sun:il Batra, U. V• Delhi Mnfnfstration [1980] 2
s.c.R. 557, Jolly George Verghese v. n.e Bank of Cochin (1980] 2
s.c.R. 913, 921-922. Kasturi Lal Iaksbli lleddy v. State of J­
& Jas!npir (1980] 3 s.c.R. 1338, 1356, Fxancis Coralie !ml.lln v.
The Administrator Union Territory of Delhi [1981] 2 S.C.R. 516,
523-524, The Influence of R_.,tf(m on l!:lghta' (QJrreilt Legal
G Probl.eoB (1953] Volume 6), Per Frankfurter. J. in Viterall v.
Seton 3 L. Ed (2nd series) 1012, Ramana Dayaraa Sbetty v. 1be
_International Airport Authority of India (1979] 3 s.c.R. 1014,
1032, referred to.

In the instant case, the procedure prescribed by Section 314

-'
H of the Bombay Municipal Corporation Act for removal of encroach­ •

ments on the footpaths or pavements over which the public has the

.•
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN • 59

right of passage or access, cannot be regarded as .unreasonable, A

unfair or unjust. There is no static measure of reasonableness
which can be applied to all situations alike· Indeed, the
question "is this procedure reasonable?" implies and postulates
the inquiry as to whether the procedure prescribed is reasonable
in.the circumstances of the case.
B
Francis Coralie llullin V• 1be Mmfnistrator, Union Terri-
tory of llelbi [1981] 2 s.c.R. 516, 523-524, referred to.

3 .5 Footpaths or pavements are public properties which are

intended to serve the convenience of the general public• They
are not laid for private use and indeed, their use for a private C
purpose frustrates the very object for which they are carved out
from portions of public streets. The main reason for laying out
pavements is to ensure that the pedestrains are able to go about
their daily affairs with a reasonable measure of safety and
security. That facility, which has matured-into a right of the
pedestrains, cannot be set at naught by allowing encroachmeuts to D
be made on the pavements. [87 B-C]

3.6 No one has the right to make use of a public property

for a private purpose without the requisite authorisation and,
therefore, it is erroneous to contend that the pavement dwellers
have the right to encroach upon pavements by constructing dwell-
ings thereon. Public streets, of which .pavements form a part, E
are primarily dedicated for the purpose of passage and, even the
pedestrains have but the limited right of using pavement.a for the
. purpose of passing and repassing. So long as a person does not
transgress the limited purpose for which pavements are made, his
use thereof is legitimate and lawful. But, if a person puts any
public property to a use for which it is not intended and is not F
authorised so to use it, he becomes a trespasser. [87 D-F]

Putting up a dwelling on the pavement is a case which is

clearly on one side of the line shwoing that it is an act of
trespass. [87 HJ
G
Hickman v. Maisey [1980] l Q.B. 752, referred to.

s.L. Kapoor v. Jagmohan [1981] l s.c.R. 746, 766, Ridge v.

Baldwin [1964] AC 40 at 68, John v. Rees [1970] l Chancery 345 at
402, Ann-mthodo v. Oilfields Workers' Trade Union [1961] 3 All
E.R. 621 (H.L.) at 625, Margarita Fuentes at al v. Tobert L. H
 60 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A SbeviD 32, L. Ed. 2nd 556 at 574, Qlintepa!U Ageacy Taluk

Arrack Sal.ea Cooperative Society Ltd. v. Secretary (l'ood and
~bu:e) [1978] 1 s.c.R. 563 at 567, 569-70, relied upon.

4.1 There is no doubt that the petitioners are. using pave-

ments and other public properties for an unauthorised purpose.
B But, their intention or object in doing so is not to "cOlllllit an
offence or intimidate insult or annoy any person", which is the
gist of the offence of "Criminal trespass" under section 441 of
the Penal Code. They manage to find a habitat in places which
are· mostly filthy or marshy, out of sheer helplessness. It is
not as if they have a free choice to exercise as to whether to
cOlllllit an encroachment and i f so, where. The encroachment
c cOlllllitted by these persons are involuntary acts in the sense that
those acts are compelled by inevitable circU111Stances and are not
guided by choice. Trespass is a tort. But, even the law of Torts
requires that though a trespasser may be evicted forcibly, the
force used 11n1St be no greater than what is reasonable and appro-
priate to the occasion and, what is even more important, the
trespasser should be asked and given a reasonable opportunity to
D depart before force is used to expel him. [93 A-DJ

In the instant case, the Court would have directed the Muni-
cipal Commissioner to afford an opportunity to the petitioners to
show why the encroachments cOlllllitted by them on pavements or
footpaths should not be removed. But, the opportunity which was
E denied by the Comnissioner was granted by the Supreme· Court in an
ample measure, both sides having made their contentions elabo-
rately on facts as well as on law. Having considered those con-
tentions the Court is of the opinion that the Comnissioner was
justified in directing the removal of the encroachments cOlllllitted
by the petitioners on pavements, footpaths or accessory roads.
F [94 E-F]

4.2 Pavement dwellers who were censused or who happened to

be censused in 1976 should be given, though not as a condition
precedent to their removal, alteJ:114lte pitches at Malavani or, at
such other convenient place as the Government considers reason-
G . able but not farther away in terms of distance; slum dwellers who
were given identity cards and whose dwellings were numbered in
the 1976 census 11111st be given alternate sites for their resettle-
ment; sl\11118 which haw been in existence for a long time, say
for twenty years or more, and which have been improved and
developed will not be removed unless the land on which they stand
H or the appurtenant land, is required for a public purpose, in
which case, alternate sites of accomnodation will be provided to
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 61

them; the 'Low Income Scheme Shelter Programne' which is A

proposed to be undertaken with the aid of the World BaDlt will be
pursued earnestly; and the 'Slum Upgradstion Progr811111e (SUP)'
under which basic amenities are to be given to slum dwellers will
be implemented without delay. In order to minimise the hardship
involved in any eviction, the slums, wherevet situated, will not
be removed until one month after the end of the current monsoon B
season, thst .is until October 31, 1985 and, thereafter, only in
accordance with this judgment. If any slum is required to be
removed before thst dste, parties may apply to the Supreme Court.
Pavement dwellers, whether censused or uncensused, will not be
removed until the same date viz. October 31, 1984. [98 D-ii)
c
4.3 In so far as the Kamraj Nagar Basti is coneerned, there
are over 400 hutments therein. Since the Basti is situated on a
part of the rosd leading to the Express Highway, serious traffic

t hazards arise on account of the straying of the Basti children on

to the Express Highway, on which there J,s heavy vehicular
traffic. The same criterion- would apply to the Kamaraj Nagar D
Basti as would apply to the dwellings constructed unsuthorisedly
on other roads and pavements in the city. [95 C-D] ·

ORIGINAL JURISDICTION : Writ Petition Nos. 4610-4612 & 5068-

5079 of 1981.

(Under Article 32 of the Constitution of· India.) E

Miss Indira Jaisingh, Miss Rani Jethmalani, Anand Grover and

Sumeet Kachhwaha for the Petitioners in W.P. No. 4610-12 of 1981.
Ram Jethmalani, V.M. Tarkunde, Miss Darshna Bhogilal, Mrs.
Indu Sharma and P.H. Parekh for the Petitioners in W.P. Nos.
5068-79 of 1981. F

L.N. Sinha, Attorney General, P. Shankaranarayanan and M.N.

Shroff for Respondent Nos. 2 & 3 in W.P. Nos. 4610-12 of 1981 and
for Respondent Nos. 1 and 3 in W.P. No. 5068-79 of 1981.
K.K. Singhvi, F .N.D. Mollo and D.N. Mishra for Respondent
No. 1 in W.P. Nos. 4610-12 and for Respondent No. 2 in W.P. No. G
5068-79 of 1981.

I The Judgment of the Court was delivered by :

CllANDRACHUD, CJ, These Writ Petitions portray the plight

of lakhs of persons who live· on pavements and in slums in the H
city of Bombay. They constitute nearly half the population of
 b2 SVPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A the city. The first group of petitions relates to pavement

dwellers while the second group relates to both pavement and
Basti or ~lum dwellers. Those who have made pavements their homes
exist in. the midst of filth and squalor, which has to be seen to
be believed. Habid dogs in search of stinking meat and cats in
search of hungry rats keep them company. They cook and sleep
B where they ease, tor no conveniences. are available to them.
Their daughters, come of age, bathe under the nosy gaze of
passers by, unmindful of the feminine sense of bashfulness. The
cooking and washing over, women pick lice tram each other's hair.
The boys beg. Menfolk, without occupation, snatch chains with
the. connivance of the defenders of law and order; when caught, if
at all, they say : "Who doesn't commit crimes in this city ?"
c
It is these men and women who have come to this Court to
ask for a'Judgment'that they cannot be evicted from their squalid
shelters,:, without being offered alternative accommodation. They
rely for' their rights on Article 21 of the Constitution which
guarantees that no person shall be deprived of his life except
according to procedure established by law. They do not contend
D that they have a right to live on the pavements. Their conten-
tion is that they have a right to live, a right which cannot be
exercised without the means of livelihood. They have no option
but to flock to big cities like J>ombay, which provide the means
of bare subsistence. They only choose a pavement or a slum which
is nearest to their place of work. In a word, their plea is that
E the righ~. to life is illusory withvut a right to the protection
of the means by which alone life can be lived. And, the right to
lite can only be taken away or abridged by a procedure estab-
lished by law, which has to be tair and reasonable, not fanciful
· or arbit~a.ry such as is prescribed by the liombay Municipal Cor-
poration Act or the Hombay Police Act. They also rely upon their
F right to.- reside and settle in any part of the country which is
guaranteed by Article 19\l)(e).

The thre.e petitioners in the group of Writ Petitions 4010-

4612 of 1981 are a journalist and two pavement dwellers. One of
these twO pavement dwellers, P. Angamuthu, migrated from Salem,
G Tamil Nadu, to liombay in the year 1961 in search of employment.
He was a landless labourer in his home town but he was rendered
JObless because of drought. He found a JOb in a Chemical Company
at Dahisar, rlombay, on a daily wage of Rs.23 per day. A slum-lord
extorted a Slllll of }{s.2,SUO from him in exchange of a shelter of
I
plastic sheets and canvas on a pavement on the Western Express
H Highway, liombay. He lives in it with his wife and thre'e daughters
who are lb, 13 and 5 years of age.
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.j 63

The second of the two pavement dwellers crune to Bombay in

1969 from Sangamner • District Ahmednagar, Maharashtra. He was a
cobbler earning 7 to 8 rupees a day, but his so-called house in
. the village fell down. He got employment in llombay as a Badli
Kamgar for Rs. 350 per month. He was lucky ·in being able to
obtain a "dwelling house" on a pavement at Tulsiwadi by paying
B
Rs. 3UO to a goonda of the locality. The brunboos and the plastic
sheets cost him Rs. 700,

On July 13, 1981 the then Chief Minister of Maharashtra,

Shri A~R· Antulay, made an announcement which was given ~de
publicity by the newspapers that all pavement dwellers in the
city of Bombay will be evicted forcibly and deported to their
c
respective places of origin or removed to places outside the
city of Bombay. The Chief Minister directed the Commissioner of
Police to provide the necessary assistance to respondent 1, the
Bombay Municipal Corporation, to demolish the pavement dwellings
and deport the pavemeut dweller!). The apparen.t justification
which the Chief Minister gave to his announcement was : "It is a
very inhuman existence. These structures are flimsy and Open to
the elements. During th~ monsoon there is no way these people
can live comfortably."

On July 23, 1981 the pavement dwelling of P. Angrunuthu was

demolished by the officers of the Bombay Municipal Corporation.
lie and the members of his family were put in a bus for Salem.: E
His wife and daughters stayed back in Salem but he returned to
Bombay in search of a job and got into' a pavement house once
again .. The dwelling of the other petitioner was demolished even
earlier, in January 1980 but he rebuilt it. It is like a grune of
hide and seek. The Corporation removes the ramshackle shelters
on the pavements with the aid of police, the pavement dwellers F
flee to less conspicuous pavements in by-lanes and, when the
officials are gone, they return· to their old habitats. Their main
attachment to those places is the nearness thereof to their pla:ce
of work.

In the other batch of writ petitions Nos. 5068-79 of 1981, G

which was hear~ alorig with the petitions relating· to pavement
dwellers, there are 12 petitioners. The first five Of these are
residents of Kamraj Nagar, a bas ti or habitation which is
alleged to have come into existence in abOut 1960-:-61, near the
Western Express Highway, Bombay. The next four petitioners were
residing in structures constructed off the Tulsi Pipe Road, H
 o4 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Mahim, Bombay. Petitioner NO· 10 is the Peoples' Union of Civil

Liberties, petitioner No. 11 is the Committee tor the Protection
of Democratic Rights while petitioner No. l~ is a journalist.

The case of the petitioners in the KamraJ Nagar group of

cases is that there are over 500 hutments in this particular
B basti which was built in about 1960 by persons who were employed
by a Construction company engaged in laying water pipes along the
Western Express Highway. The residents of KarntaJ Nagar are 1nuni-
cipa1. employees, factory or hotel workl>!rs, construction super-
visors and so on. The residents of the Tulsi Pipe Koad hutments
claim that they have been living there for lU to 15 years and
that, they are engaged in various small trades. Un hearing about
c the Chief Minister's announcement, they filed a writ petition in
the High Court of lSombay for an order of injunction restraining
the 0fficers of the State Government and the Hombay Municipal
Corporoation from impleme;itinc, the directive of the Chief
1-tinister. The High Court granted an ad-interim inJunction to be
in force until July 21, 19til. On that date, respondents a~reed
that the huts will not be demolished unt ll October 15, 19~1.
D However, it is alleged, on July :L3, 1981, the petitioners were
huddleCl into· State Transport b11ses for b~ing deported uut of
.tSorubay. Two infants were born during the deportation but that
was set off by the death of two others.

The decision of the respondents to demolish the huts is

E challenged by the petitioners on the ground that it is violative
of Articles 1 Y and 21 of the Constitution. The petitioners also
ask for a Jecli::lra.tion that the provisions of sections 312, 313
and 314 o_f the liombay Municipal Corporation Act, 1888 are in-
valid as violating Articles 14, 19 and 21 of the Constitut1on.
l'he reliets asked for in the two groups of writ petitions are
F that tlie respondents should be directed to withdraw the decision
to demolish the pavement dwellings and the slum hutments and,
\¥Iler~ they are alre.:idy demolished, to restore possession of the
sites to the former occupants.

On behalt ot the Wver1unent ot l'-laharashtra, a counter-at'fi-

G daivt has been filed by V.S.MunJe, Under Secretary in the Depart-
ment ot Hou.sing. The counter-affidavit meets the case ot the
petitioners tl1us. Tt1e Goverrunent uf i1at1arashtra neitht:.r proposed
to deport any pavement dweller out of the city of Bombay nor did
it, in fact, deport anyone. Such of the pavement dwellers, who
expressed their Clesire in writing, that they wanted to return to
H their home towns and who sought assistance from the Government in
 OL(;A TELLIS v. BOMllAY MuNICIPAL COlU'N. [CHANDMCIUJD, CJ.] 65

that behalf were offered transport facilities up to the nearest A

rail head and were also paid railway fare or bus tare and inci-
dental expenses for the .onward journey. The Government of
Maharashtra had issued instructions to its officers to visit
specific pavements on July 23, 19til and to ensure that no harass-
ment was caused to any pavement dweller. Out of 10,000 hutment-
dwellers who were likely to be a_ffected by the proposed demoli-
tion of hutments constructed on the pavements, only 1024 persons
opted to avail of the transport facility and the payment of .inci-
dental expenses.

The counter-affidavit says that no person has any legal

right to encroach upon or to construct any structure on a foot- c
path, public street or on any place over which the public has a
right of way. Numerous hazards of health and safety arise if
action is not taken to remove such encroachments. Since, no
civic amenities can be provided on the pavements, the pavement
dwellers use pavements or adjoining streets for easing them-
selves. Apart from this, some of the pavement dwellers indulge D
in anti-social acts like chain-snatching, illicit distillation of
liquor and prostitution. The lack of proper environment leads to
increased criminal tendencies, resulting in more crime in the
cities. It is, therefore, in public interest that public places
like pavements and paths are not encroached upon. The Goverrunent
of Maharashtra provides housing assistance to the weaker sections
of the society like landless labourers and persons belonging to E
low income groups, within the frame work of its planned policy of
the economic and social development of the State. Any allocation
for housing has to be made aft~r balancing the conflicting
demands from various priority sectors. The paucity of resources
is a restraining fact.or on the ability of the. State to deal
effectively with the que~tion of providing housing to the weaker f'
sections of the society. The Government of Maharashtra has is.sued
policy directives that 75 percent of the housing prograrrnne should
be allocated to the lower income groups and the weaker sections
of the society. One of the objects of the State's planning policy
is to ensure that the influx of population from the rural to the
urban areas is reduced in the interest of a proper and balanced. c
social and economic developmeint of the State and of the country.
This is proposed to be achieved by reversing the rate of growth
of metropolitan cities and by increasing the rate of growth of
small and medium towns. The State Goverrunent has therefore,
devised an Employment Guarantee Scheme to enable the rural popu-
lation, which remains unemployed or underemployed at certain B
periods of the year, to get employment during such periods. A sum
 66 SUPKEME COURT REPORTS (1985] SUPP.2 s.c.R.
A
of ab.out Rs. mo er.ores was spent on that scheme during the years
1979-80 arid lYS0-81. On October 2, 1980 the State G.overmnent
launched two additional schemes for providing employment oppor-
tunities for those who cannot get work due to old age or physical
infirmities. The State Govermnent has also launched a scheme for
B providing self-employment opportunities under the 'Sanjay Gandhi
Niradhar Anudan Yojana'. A monthly pension of Rs. 60 is paid to
those who are too old to work or are physically ha~dicapped. In
this scheme, ab.out 1,56,943 persons have been identified and a
sum of Rs. 2.25 crores was disbursed •. Under another scheme called
'SanJay Gandhi Swawalamban Yojana', interest-free loans, subject
to a maximum of Rs. 2,500, were being given to persons desiring
c to engage themselves in gainful employment of th.ier own. About
J,75,000 persons had benefited under this scheme, to whom a total
slllll of H.s •. S.tiL crures was disbursed by way of loan. ln shoit,
t,he objective of the State Government was to place greater
emphasis on providing infrastruclural facilities to small and
medium towns and to equip them so that they could act as growth
and serviC:e centres tor the rural hinterland. The phenomenon of
D
poverty which is conn.non to all developirig countries has to be
tackled ori an All-India basis by makirig the gains.of development
available to all sections of the society through a policy of
equitable distribution of income and wealth. Urbanisation is a
major problem facing the entire country, the migration of people
from the rural to the urban areas being a reflection of the
E
colossal poverty existing in the· rural areas. The rural poverty
cannot, ~owever, be eliminated by increasing the pressure of
population· on metropolitan cities like Bombay. The problem of
poverty has to be tackled by charigirig the structure of the
society in which there will be a more equitable distribution of
income and greater generation of wealth. The State Government
F
has stepped up the rate of construction of tenements for the
. weaker sections of the society from 2500 to 9500 per annum.

It is denied in the counter-affidavit that the provisions

of sections 312, 313 and 314 of the llombay Municipal Corporation
Act violat~ the Constitution. Those provisions are conceived in
public interest and great care is taken by the authorities to
G
ensure that no harassment is caused to any pavement dweller while
enforcing· the provisions of those sections. The decision to
remove such encroachments was taken by the Government with speci-
fic instructions that every reasonable precaution ought to be
taken to· cause the least possible inconvenience to the pavement
dwellers •. What is'more important, so the counter-affidavit says,
H
the Govermnent of Maharashtra had decided that, on the basis of
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 67

the census carried out in 1976, pavement dwellers who would be A

uprooted should be offered alternate developed pitches at Malvani
where they could construct their own hutments. According to that
census, about Z,500 pavement hutments only were then in
existence. '

The counter-affidavit of the State Government describes the

various steps taken by the Central Goverrnnent under the Five year
Plan of 1978-83, in regard to the housing pro~rannnes. The plan
shows that the inadequacies of Housing policies in India have
both quantitative and qualitative dimensions. The total invest-
ment in housing shall .have to be of the magnitude of Rs· 2790
crores, if the· housing problem has to be ·cackled even partially. c
On behalf of the Bombay Municipal Corporation, a counter--
affidavit has been filed by Shri D.M. Sukthankar, Municipal
Commissioner of Greater Bombay •. That affidavit shows that he had
visited the pavements on the Tulsi Pipe Road (Senapati Bapat
Marg) and the Western Express High Way, Vile Parle (east),
Bombay. On July 23, 1981, certain hutments on these pavements
were demolished under section 314 of the Bombay Municipal 'Corpo-
ration Act. No prior notice of demolition was given since the
section does not provide for· such notice. The affidavit denies
that the intense speCulation in land prices, as alleged, owes its
origin to the High rise buildings which have come up in the city
of Bombay. It is also denied that there are vast vacant pieces E
of land in the city which can be utilised for housing the pave-
ment dwellers. Section 61 of the 8.M.C. Act lays down the obli-
gatory duties of the Corporation. Under clauses (c) and, (d) of
the said section, it is the duty of the Corporation to remove
excrementitious matters, refuse and rubbish and to take measures
for abatement of every kind of nuisance. Under clause(g) of that F
section, the Corporation is under an obligation to take measures
for preventing and chek.cing , the spread of dangerous diseases.
Under clause \o), obstructions and projections in or upon public
streets and other public places have to be removed. Section 63
(k) empowers the Corporation to take measures to promOte public
safety, health or convenience, not specifically p_rovided other-- G
wise. The object of Sections 312 to 314 is to keep the pavements
and foot-paths free from encroachment so that the pedestrians do
not have to make use of th~ streets on which there is heavy
vehicular traffic. The pavement dwellers answer the nature's
call, bathe; cook and wash their clothes and utensils on the
foot-paths and on parts of public streets adjoining the foot- H
 68 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A paths. Their encroachment creates serious impediments in repair-

ing the roads, foot-paths and drains. The refusal to allow the
petitioners and other persons similarly situated to use foot-
paths as their abodes is, therefore, not unreasonable, unfair, or
unlawful. The basic civie amenities, such as drainage, water and
sanitation, cannot possibly be provided to the pavement dwellers.
B Since the pavements are encroached upon, pedestrains are
compelled to walk on the streets, thereby increasing the risk of
traffic accidents and impeding the free flow of vehicular move-
ment. The Municipal Commissioner disputes in his counter-affi-
davit that any fundamental right of the petitioners is infringed
by removal of the encroachment committed by them on public pro-
perty, especially the pavements. In this behalf, reliance is
C placed upon an order dated July 27, 1981 of Lentin J. of the
Bombay High Court, which records that counsel for the petitioners
had stated expressly on July 24, 1981, that no fundamental right
could be claimed to put up a dwelling on public foot- paths and
public roads.

The Municipal Commissioner has stated in his counter-affi-

D davit in Writ Petitions 5068-79 of 1981 that the huts near the
Western Express Highway, Vile Parle, Bombay, were constructed on
an accessory road which is a part of the Highway its elf. These t\~
hutments were never regularised by the Corporation and no
registration numbers were assigned to them.

E In answer to the Municipal Commissioner's counter-affida-

vit, petitioner no. 12. Prafullachandra Hidwai who is a journa-
list, has filed a rejoinder asserting that Kamraj Nagar is not
located on a foot-path or a pavement. According to him, Kamraj
Nagar is a basti off the Highway, in which the huts are numbered,
the record in relation to which is maintained by the Road
F IJevelopment !Jepartment and the Bombay Municipal Corporation.
Contending that petitioners 1 to 5 have been residing in the said
basti for over 20 years, he reiterates that the Public has no
right of way in or over the Kamraj Nagar. He also disputes that
the huts on the foot-paths cause any obstruction to the pedest-
rains or to the vehicular traffic or that those huts are a source
G of nuisance or danger to public health and safety. His case in
paragraph 21 of his reply-affidavit seems to be that since, the
foot-paths are in the occupation of pavement dwellers for a long
time, foot-paths have ceased to be foot-paths. He says that the
pavement dwellers and the· slum or bas ti dwellers, who number
about 47,7 lakhs, constitute about 50 per cent of the total popu-
H lation of Greater Bombay, that they supply the major work force
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 69

for Bombay from menial jobs to the most highly skilled jobs, that A
they have been living in the hutments for generations, that they
have been making a significant contribution to the economic life
of the city and that, therefore, it is unfair and unreasonable on
the part of the State Government and the Municipal Corporation to
destroy their homes and deport them : A home is a home wherever
it is. The main theme of the reply-affidavit is that " The slum E
dwellers are the sine qua non of the city. They are entitled to
a quid pro quo. "It is conceded expressly that the petitioners do
not cl.ai.Iil any fundamental right to live on the pavements. The
right claimed by them is the right to live, at least to exist.

Only two more pleadings need be referred to, one of which c

is an affidavit of Shri Anil V.Gokak, Administrator of
Maharashtra Housing and Areas Development Authority, Bombay, who
was then holding charge of the post of Secretary, Department of
Housing. He filed an affidavit in answer to an application for
the modification of an interim order which was passed by this
Court on October 19, 1981. He says that the legislature of Maha- D
rashtra had passed the Maharashtra Vacant Land (Prohibition of
unauthorised Occupation and Summary Eviction) Act, 1975 in pur-
suance of which the Government had decided to compile a list of
slums which· were required to be removed in public interest. It
was also decided that after a spot inspection, 500 acres of
vacant land in and near the. Bombay Suburban District should be
allocated for re-settlement of the hutment dwellers who were E
removed from the slums. A Task Force was constituted by the
Government for the purpose of carrying Out a census of the
hutments standing on lands oelonging to the Government of the
Maharashtra, the Bombay Municipal Corporation and the Bombay
Housing lioard. A Census was, accordingly, carried out on January
4, 1976 by deploying about 7 ,000 persons to enumerate the slum F
dwellers spread over approximately 850 colonies all over Bombay.
About 67 per cent of the hutment dwellers from a total of about
2,60,000 hutments produced photographs of the heads of their
families, on the basis of which hutments were numbered and their
occupants were given identity cards. It was decided that slums
which were in existence for a long time and· which were improved c
and developed1would not normally be demolished unless the land
was required for a public purpose. In the event that the land
was so required, the policy of the State Government was to
provide alternative accommodation to the slum dwellers who were
censused and possessed" identity cards. This is borne out by a
circular of the Government dated February ·4, 1976 (No. SIS H
1176/D. 41). Shri Gokak says that the State Government has
 70 SUPllliME COURT REPORTS [19851 SUPP.2 s.c.R.

A issued instructions directing, inter alia, that "action to

remove the slums excepting those which ;;re-on the foot-paths or
roads or which are new or casually located should not, therefore,
be taken without obtaining approval from the Government to the
proposal for the removal of such slums and their rehabilitation."
Since, it was never the policy of the Government to encourage
B construction of hutments on foot-paths, pavements or other places
over which the public has a right of way, no census of such hut-
ments was ever intended to be conducted. But; sometime in July
1981, when the Government officers made an effort to ascertain
the magnitude of the problem of evicting pavem,ent dwellers, it
was discovered that some persons occupying pavements, ca:i:'ried
census cards of 1976. The Government then decided to allot
c pitches to such occupants of pavements.
'
The only other pleading which deserves to be noticed is the
affidavit of the journalist petitioner, Ms. Olga Tellis, in
reply to the counter-affidavit of the Government of Maharashtra.
According to her, one Of- the important reasons of the emergence
and growth of squatter-settlements in the Metropolitan cities in
D India is, that the Development and. l'Jaster Plans of most of the
cities have not been adhered to. The density of population :j.n
the Bombay Metropolitan Region is not high according to the Town
Planning standards. Difficulties are caused by the fact that the
population is not evenly distributed over the region, in a
planned marmer. New constructions of commercial premises, small-
E scale industries and entertainment houses in the heart of the
.city, have been permitted by the Government of Maharashtra con-
trary to law and even residential premises have been allowed to
be conver~ed into commercial premises. This, coupled with the
fact that the State Government has not shifted its main offices
to the northern region of the city, has led to ~he concentration
F of the population in the southern region due to the availability
of JOb opportunities in that region. Unless economic and leisure
activity is decentralised, it would_ be impossible to find a solu-
tion to the problems arising out of the growth of squatter colo-
nies. EVen if squatters are evi~ted, they come back to the city
because, it is there that job opportunities arP available. The
G alternate ,pitches provided to the displaced pavement-dwellers on
the basis of the so-called 1976 census, are not an effective
means to their resettlement because, those sites are situated far
away from the Malad Railway Station involving cost and time which
are beyond their means. There are no facilities available at
Malavani like schools and hospitals, which drives them back to
H the stranglehold of the city. The permission granted to the
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ. j 71

'National Centre of Performing Arts' to construct an auditorium A

at the Nariman Point, Backbay Reclamation, is cited as a 'gross'
instance of the short-sighted, suicidal and discriminatory policy
of the Government of Maharashtra. , It is as if the sea is reclai-
med for the construction of business and entertainment houses in
the centre of the city, which creates job opportunities to which
the homeless flock. They work therein and live on pavements. B
The grievance is that, as a result of this imbalance, there are
not enough jobs available in the northern tip of the city. the
improvement of living conditions in the slums and the regional
distribution of job opportunities are the only viable remedies
for relieving congestion of the population in the centre of the
city. The increase allowed by the State Government in the Floor C
Space Index over and above 1. 33, has led to a further concentra-
tion of population in the centre of the city.

In the matter of housing, according to Ms. Tellis' affida-

vit, Government has not put to the best use the finances and
resources available to it. There is a wide gap between the
demand and supply in the area of housing which was in the neigh-
bourhood of f0rty five thousand units in the decade 1971-81. A
huge amount of hundreds of crores of rupees shall have to be
found by the State Government every year during the period of the
J Sixth Plan i f adequate provision for housing is at all to be
made. The Urban Land Ceiling Act has not achieved its desired
objective nor has it been properly implemented. The employment E
schemes of the State Government are like a drop in the ocean and
no steps are taken for increasing JOb opportunities in the rural
sector. The neglect of health, education transport and communi-
cation in that sector drives the, rural folk to the cities, not
only in search of a living but in search of the basic amenities
of life. · The allegation of the State Government regarding the F
criminal propensities of the pavement dwellers is stoutly denied
in the reply-affidavit and it is said to be contrary to the
studies of many experts. Finally, it is stated that it is no
longer the objective of the Sixth Plan to reverse the rate of
growth of metropolitan cities. The objective of the earlier plan
(1978-83) has undergone a significant change and the target now G
is to ensure the growth of large metropolitan cities in a planned
manner. The affidavit claims that there is adeqaute land in the
Bombay metropolitan region to absorb a population of 20 million
people, which is expected to be reached by the year 2000 A.D.
'
The arguments advanced before us by Ms. Indira Jaisingh, H
Mr. V.M. Tarkunde and Mr. Ram Jethmalani cover a ~ide range but
 72 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A the main thrust of the petitioners' case is that evicting a pave-

ment dweller or slum dweller from his habitat a10C>unts to depriv-
ing of his right to liveiihood, which is comprehended in the
right guaranteed by Article 21 of the Constitution that no person
shall be deprived of his life except according to procedure
established by law. The question of the guarantee of personal
B liberty contained in Article 21 does not arise and was not raised
before u9. Counsel for the petitioners contended that the Court
must determine in these petitions the content of the right to
life, the function of property in a welfare state, the dimension
and true meaning of the constitutional mandate that property tlllSt
subserve common good, the sweep of the right to reside and settle
in any part of the territory of India which is guaranteed by
C Article 19(l)(e) and the right to carry on any occupation, trade
or business which is guaranteed by Article 19 (l)(g), the
competing claims of pavement dwellers on the one hand and of the
pedestrians on the other and, the larger question of ensuring
equality before the law. It is contended that it is the
responsibility of the courts to reduce inequalities and social
imbalances by striking down statutes which perpetuate them. One
D of the grievances of the petitioners against the Bombay Municipal
Corporation Act,1888 is that it is a century-old antiquated piece
of legislation passed in an era when pavement dewllers and slum
dwellers did not exist and the consciousness of the 10C>dern notion
of a welfare state was not present to the mind of the colonial
legislature. According to the petitioners, connected with these
E issues and yet independent of them, is the question of the role
of the Court in setting the tone of values in a de10C>cratic
society.

The argument which bears on the provisions of Article 21 is

elaborated by. saying that the eviction of pavement and slum
F dwellers will lead, in a vicious circle, to the dept"-ivation of
their employment, their livelihood and, therefore, to the right
to life. Our attention is drawn in this behalf to an extract
from the judgment of Douglas J in Baksey V• Board of Regents, 347
M.D. 442 (1954) in Which the learned Judge said:

G "The right to work I have assumed was the most pre-

cious liberty that man possesses. Man has indeed, as
m1ch right to work as he has to live, to be free and
to own property. To work means to eat and it also
means to live."

H
 OLGA TELLIS v. l!OMJIAY MUNICIPAL CO!il'N. [CHANDRACHUD, CJ·] 73

The right to live and the right to work are integrated and inter- A
dependant and, therefore, if a person is deprived of his job as
a result of his eviction from a slum or a pavement, his very
right to life is put .in jeopardy. It is urged that the economic
compulsions under which these persons are forced to live in slums
or on pavements impart to their occupation the character of a
fundamental right. B

It is further urged by the petitioners that it is consti-

tutionally impermissible to characterise the pavement dwellers as
"tresspassers" because, their occupation of pavements .arises from
ecorl.omic compulsions. The State is under an obligation to pro-
vide to the citizens the necessities of life and, in appropriate c
cases, the courts have the power to issue order directing the
State, by affirmative action, to promote and protect the right to
life. The instant situation is one of crisis, which compels the
use of public property for the purpose of survival and
sustenance. Social commitment is the quintessence of our Consti-
tution which defines the conditions under which liberty has to be D
enjoyed and Justice has to be administered. Therefore, Directive

, Principles, which are fundamental in the governance of the

country, must serve as a beacon light to the interpretation of
the Constitutional provisions. Viewed in this context, it is
urged, the impugned action of the State Government and the Bombay
Municipal Corporation is violative of the provisions contained in
Articles 19(l)(e), 19(l)(g) and 21 of the Constitution. The E
paucity of financial resources of the State. is no excuse for
defeating the fundamental rights of the citizens.

In support of this argument, reliance is placed by the

petitioners on what is <!escribed as the 'factual context'. A
publication dated January 1982 of the Planning Commission, F
Government of India, namely, 'The Report of the Expert Group of
Programmes for the Alleviation of Poverty', is relied on as show-
ing the high it!cidence of poverty in India. That Report shows
that in 1977-78, 48% of the population lived below the poverty
line, which means that out of a population of 303 million who
lived below the poverty line, 252 million.belonged to the rural G
areas. In 1979-80 another 8 million people from the rural areas
were found to live below the poverty line. A Government of Maha-
rashtra Publication "l!udget and the new 20 Point Socio-Economic
Programme" estimates that there are about 45 lakh families in
rural areas of Maharashtra who live" below the poverty line.
Another 40% was in the periphery of that area. One of t:1e major H
causes of the persistent rural poverty of landless labourers,
 74 SUPREME COURT REPORTS [l985j SUPP.2 s.c.R.

A '
marginal farmers, shepherds, physically handicapped persons and
others is the extremely narrow base of production available to
the majority of the tural population. The average agricultural
holding of a farmer is 0.4 hectares, which is hardly adequate to
enable him to make both ends meet. Landless labourers have no
resource 1 base at all and they constitute the hardcore of po-
B verty. Due to economic pressures and lack of employment oppor-
tunities, the rural population is forced to migrate to urban
areas in search of employment. 'The Economic Survey of Maha-
rashtra' published by the State Government shows that the bulk of
public investment was made in the cities of Bombay, Pune and
Thane, which created employment opportunities attracting the
starving rural population to those cities. The slum census con-
c ducted by .the Government of Maharashtra in 1976 shows that 79% of .
the slum-dwellers belonged to the low income group with a month-
ly income below Rs.600. The study conducted by p, Ramachandran
of the Tata Institute of Social Sciences shows that in_l972,91%
of the pavement dwellers had a monthly income of less than
Rs.200. The cost of obtaining any kind of shelter in Bombay is
beyond the means of a pavement dweller. The principal public
D housing sedors in Maharashtra, namely, The Maharashtra Housing
and Area Development Agency (MHAllA) and the City and Industrial
Development Corporation of Maharashtra Ltd. (CIDCO) have been
able to construct only 3000 and 1000 units respectively as
against the annual need of 60,000 units. In any event, the cost
of housing provided even by these public sector agencies is
E beyond the means of the slum and pavement-dwellers. Under the
Urban Land (Ceillng and Regulation) Act 1975, private land
owners and holders are given facility to provide housing to the
economically weaker sections of the society at a stipulated price
of Rs.90 per sq.ft., which also is beyond the means of the slum
and pavement-dwellers. The reigning market price of houses in
F 'Bombay varies from· Rs.150 per sq.ft. outside Bombay to Rs.2000
per sq.ft.' in the centre of the city.

The !petitioners dispute the contention of the respondents

regarding the non-availability of vacant land for allotment to
houseless persons. According to them, about 20,000 hectares of
G unencumbered land is lying vacant in Bombay. The Urban Land
(Ceiling and Regulatfon) Act,1975 has failed to achieve its
obJeCt as is evident from the fact that in Bombay, Ski of the
land-holders own 55% of the land. Even though 295L.B3 hectares
of Urban land is available for Uein.g acquired by the State
Government as being in excess of the permissible ceiling area,
H only 41.Slk of this excess land was, so far, acquired. Thus, the
 OLGA TELLIS v. BOMBAY MUNICIPAL COfil'N, [CJiANDRACHUD, CJ· J 75

reason why there are homeless people in Bombay is not that there A
is no land on which homes can be built for them but, that the
planning policy of the State Government permits high density
areas to develop with vast tracts of land lying vacant. The:
pavement-dwellers and the slum-dwellers who cdnstitute 50% of the
population of Bombay, occupy only 25% of the city's residential
land. It is in these circumstances that out of sheer necessity E
for a bare existence, the petitioners are driven to occupy the
pavements and slums • They live in Bombay because they are
employed in Bombay and they live on pavements because there is no
other place where they can live. This is the factual context in
which the petitioners claim the right under Articles 19(l)(e) and
(g) and Article 21 of the Constitution. c
The petitioners challenge the vires of section 314 read
with sections 312 and 313 of the Bombay Municipal Corporation
Act, which empowers the Municipal Coonnissioner to remove, without
notice, any object or structure or fixture which is set up in or
upon any street. It is contended that, in the first place, D
section 314 does not authorise the demolition of a dwelling even
on a pavement and secondly, that a provision which allows the
demolition of a dwelling without notice is not just, fair or
I reasonable. Such a provision vests arbitrary and unguided power
in the Commissioner. It also offends against the guarantee of
equality.because, it makes an unJustified discrimination between
pavement dwellers ori the one hand and pedestrains on the other. E
If the pedestrains are entitled to use the pavements for passing
and repassing, so are the pavement dwellers entitled to use pave-
ments for dweiling upon them. So the argument goes. Apart from
this, it is urged, the restrictions which are sought to be impos-
ed by the respondents on the use of pavements by pavement-dwell-
ers are not reasonable. A State which has f&il€:d iil its consti- F
tutional obligation to usher a socialistic society has no right
to evict slum and pavement-dwellers who constitute half of the
city's population. Therefore, sections 312, 313 and 314 of the
B.M.C. Act must either be read down or struck down.

According to the·learned Attorney-General, Mr. K.K.Singhvi G

and Mr. Shankaranarayanan who appear for the respondents, no one
has a fundamental right, whatever be the compulsion, to squat on
or construct a dwelling on a pavement, public road or any other
place to which the public has a right of access., The right con-
ferred by Article 19(1)(e) of the Constitution to reside and
settle in any part of India cannot be read to confer a :U.cence H
to encroach and trespass upon _public property. .Sections _3(w) and
 76 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A (x) of the B.M.C. Act define "Street" and "Public Street" to

include a highway, a footway or a passage on which the public has
the right of passage or access. Under section 289(1) of the Act,
all pavements and public streets vest in the Corporation and are
under the control of the Commissioner. In so far as Article 21
is concerned, no deprivation of life, either directly or indirec-
B tly, is involved in the eviction of the slum and pavement-dwell-
ers from public places. The Municipal Corporation is under an
obligation under section 314 of the B.M.C. Act to remove obstruc-
tions on pavements, public streets and other public places. The
Corporation does not even pos~ess the power to permit any person
to occupy a pavement or a public place on a permanent or quasi-
permanent basis. The ·petitioners have not only violated the
c provisions of the B.M.C. Act, but they have contravened sections
111 and 115 of the Bombay Police Act also. These sections pre-
vent a person from obstructing any other person in the latter's
use of a street .or public place or from coIIDnitting a nuisance.
Section 117 of the Police Act prescribes punishment for the vio-
lation of these sections.

D We will first deal with the preliminary objection raised by

Mr. K.K.Singhvi, who appears on behalf of the Bombay Municipal
Corporation, that the petitioners are estopped from contending
that their huts cannot be demolished by reason of the fundamental
rights claimed by them. It appears that a writ petition, No. 986
of 1981, was filed on the Origins! Side of the Bombay High Court
E by and. on behalf of the pavement dwellers claiming reliefs
similar to those claimed in the instant batch of •ait petitions.
A learned Single Judge granted an ad-interim injunction restrain-
ing the repondents from demolishing the huts and from evicting
the pavement dwellers. When ,the petition came up for hearing on
July 27, 1981, counsel for the petitioners made a statement in
F answer to a query from the court, that no fundamental right could
be claimed to put up dwellings on foot-paths or public roads.
Upon this statement, respondents agreed not to demolish until
October 15, 1981, huts which were constructed on the pavements or
public roads prior to July 23,1981. On August 4, 1981, a written
undertaking was given by the petitioners agreeing, inter alia, to
G vacate the huts on or before October 15, 1981 and not ""'t()obs-
truct the public authorities from demolishing them. Counsel
appearing for the State of Maharashtra responded to the peti-
tioners' undertaking by giving an undertaking on behalf of the
State Government that, until October 15, 1981, no pavement dwell-
er will be removed out of the city against his wish. On the
H basis of these undertakings, the learned Judge disposed of the
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 77

writ petition without passing any further orders. The contention A

of the Bombay Municipal Corporation is that since the pavement
dwellers had conceded in the High Court that they did not claim
any fundamental right to put up huts on pavements or public roads
and since they had given an undertaking to the High Court that
they will not obstruct the demolition of the huts after October
15, 1981 they are estopped from contending in this Court that the B
huts constructed by them on the pavements cannot be demolished
because of their right to livelihood, which is comprehended with-
in the fundamental right to life guaranteed by Article 21 of the
Constitution.

It is not possible to accept the contention that the peti- c

tioners are estopped from setting up their fundamental rights as
a defence to the demolition of the huts put up by them on pave-
ments or parts of public roads. There can be ·no estoppel against
the Constitution. The Constitution is not only the paramount law
of the land but, it is the source and subs tansce of all laws.
Its provisions are conceived in public interest and are intended D
to serve a public purpose. The doctrine of estoppel is based on
the principle that consistency in word and action imparts cer-
tainty and honesty to human affairs. If a person makes a repre-
sentation to another, on the faith of which the latter acts to
his prejudice, the former cannol resile from the representation
made by him. lie urust make H good. This principle can have no
application to representations made regarding the assertion or
enforcement of fundamental rights. For example, the concession
made by a person that he does not possess and would not exercise
his· right to free speech and expression or the right to move
freely throughout the territory of India cannot deprive him of
those constitutional rights, any more than a. concession that a
person has no right of personal liberty can justify his detention F
contrary to the terms of Article 22 of the Constitution. Funda-
mental rights are undoubtedly conferred by the Constitution upon
individuals which have to be asserted and enforced by them, H
those rights are violated. But, the high purpose which the Cons-
titution seeks to achieve by conferment of fundamental rights is
not only to benefit individuals but to secure the larger G
interests of the comurunity. The Preamble of the Constitution
says that India is a democratic Republic. It is in order to
fulfil the promise of the Preamble that fundamental rights are
conferred by the Constitution, some on citizens like those
guaranteed by Articles 15,16,19,21 and 29, and some on citizens
and non-'citizens alike, like those •. guaranteed by Articles II
 78 SUPREME COURT REPORTS [1985] SUPP.2 S.C.R.

A
14,21,22 and 25 of the Constitution. No individual can barter
away the freedoms conferred upon him by the Constitution. A
concession made by him in a proceeding, whether under a mistake
of law or otherWise, that he does not possess or will not enforce
any particular fundamental right, cannot create an estoppel
against him in that or any subsequent proceeding. Such a
B
concession, if enforced, would defeat the purpose of the Consti-
tution. Were the argument of estoppel valid, an all-powerful
state could easily tempt an individual to · forego his precious
personal freedoms on promise of transitory, innnediate benefits.
Therefore, notwithstanding the fact that the petitioners had
conceded in the Bombay High Court tliat they have no fundamental
right to construct hutments on pavements and that they will not
c object to their demolition after October 15, 1981, they are enti-
tled to assert that any such action on the part of public autho-
rities will be in violation of their fundamental rights. How far
the argument regarding the existence and scope of the .right
claimed by the petitioners is well-founded is another matter.
But, the argument has to be examined despite the concession.
D
The. plea of estoppel is closely connected with the plea of
waiver, the object of both being to ensure bona fides in day-to-
day transactions. In llashesbar Nath v. The Comnissiooer of
Incaoe Tax Delhi, [l959J Supp. l S.C.R. 528 a Constitution Bench
of this l;ourt considered the question whether the fundamental
rights conferred by the Constitution can be waived. Two members
E
of the Bench (!las (;.J. and Kapoor J.) held. that there cari be no
waiver of the fundamental right founded on Article 14 of the
Constitution. Two others (N.h.Bhagwati and oubba l(ao,JJ.) held
that not only could there be no waiver of the right conferred by
Article 14, but there could be no waiver of any other fundamental
right guaranteed by Part Ill of the Constitution. lhe Constitu-
F tion makes no distinction, according to the learned Judges,
between fundamental rights enacted for the benefit of an indi-
vidual arid those enacted in public interest or on grounds of
public policy.

We must, therefore, reject the preliminary objection and

G proceed to consider ·the validity of the peti'tioners' contentions
on merits.

The scope of the jurisdiction of this Court to deal with

writ petitions under Article 32 of the Constitution was
examined by a special Bench of this Court in Sm!:. Ujjam Bai v.
!I State of Uttar Pradesh. (1963] 1 S.C.R. 778. That decision would
 OLc;A TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 79

show that,in three classes of csses, the question of enforcement A

of the fundamental rights would arise, namely, (1) where action
is taken under a statute which is ultra vires the Constitution ;
(2) where the statute is intra vires but the action taken is
without jurisdiction; and (3) an authority under an obligation
to act judicially passes an order in violation of the
principles of natural justice. These cstegories are, of course, I!
not exhaustive. In Naresh Shridhar Hl.rajkar v. State of Maha-
rashtra, [1966J 3 s.c.a. 744-770, a Special Bench of nine learoed
Judges of this Court held that, where the action taken against a
citizen is procedurally ultra vires, the aggrieved party can move
this Court under Article 32. The contention of the petitioners is
that the procedure prescribed by section 314 of the B.M.C. Act c
being arbitrary and unfair, it is not "procedure established by
law" within the meaning of Article 21 and, therefore, they csnnot
be deprived of their fundamental right to life by resorting to
that procedure. The petitions are clearly maintainable under
Article 32 of the Constitution.
D
As we have stated while summing.up the petitioners' csse,
the main plank of their argument is that the right to life which
is guaranteed by Article 21 includes the right to livelihood and
since, they will be deprived of their livelihood if they are
evicted from their slum anq pavement dwellings, their eviction is
tantamount to deprivation of their life and is hence unconstitu-
tional. For purposes of. argument, we will assume the factual E
correctness of the premise that if the petitioners are evicted
from their dwellings, they will be deprived of their livelihood.
.., Upon that assumption, the question which we have to consider
is whether the right to life includes the right to livelihood.
We see only one answer to that question, namely, that it does.
..... The sweep of the right to life conferred by Article 21 is wide F
and far reaching. It does not mean merely that life cannot be
extinguished or taken away as, for example, by the imposition and
execution of the death senctence, except according to procedure
established by law. That is but one aspect of the right to life.
An equally important fac~t of that right is the right to liveli-
hood because, no person can live without the means of living, G
that is, the means of livelihood. If the right to livelihood is
not treated as a part of the constitutional right to life, the
easiest way of depriving a person his right to life would be to
deprive him of his· means of 11velihoocl to the point of abroga-
tion. Such deprivation would not only denude the life of its
effective content and meaningfulness but it would make life H
impossible to live. And yet, ·such deprivation would not have to
 80 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A be in accordance with the procedure established by law, i f the

right to livelihood is not regarded as a part of the right to
life. That, which alone makes it possible to live, leave aside
what makes life livable, must be deemed to be an integral
component of the right to life. Deprive a person of his right to
livelihood and you shall have deprived him of his life. Indeed,
ll that explains the massive migration of the rural population to
big cities. They migrate because they have no means of liveli-
hood in the villages. The motive force which people their
desertion of their hearths and homes in the village .s that
struggle for survival, that is, the struggle for life. So un-
impeachable is the evidence of the nexus between life and the
means of livelihood. They have to eat to live: Only a handful can
c afford the luxury of living to eat. That they can do, namely.
eat, only i f they have the means of livelihood. That is the
context in which it was said by Douglas J. in Baksey that the
right to work is the most precious liberty because, it sustains
and enables a man to live and the right to life is a precious
freedom. "Life", as observed by Field,J. in ~ v. lllioois,
(1877) 94 u.s. 113, means something more than mere animal
D existence and the inhibition against the deprivation of life
extends to all those limits and faculties by which life is
enjoyed. This observation was quoted with approval by this Court
in Kbarak Singh v. n.e State of u.P., [1964] l s.c.R. 332.

Article 39(a) of the Constitution,· which is a Directiv~

E Prinicple of State Policy, provides that the State shall, in
particular, direct its policy towards securing that the citizens,
men and women equally, have the right to an adequate means of
livelihood. Article 41, which is another Directive Principle,
provides, inter alia, that the State shall, within the limits of
its economic capacity and development, make effective provision
F for securing the right to work in cases of unemployment and of
undeserved want. Article 37 provides that the Directive Princi-
-ples, though not enforceable by any court, are nevertheless
fundamental in the governance of the country. The Principles
contained in Articles 39 (a) and 41 must be regarded as equally
fundamental in the understanding and interpretation of the mean-
G ing and content of fundamental rights. If there is an obligation
upon the State to secure to the citizens an adequate means of
livelihood and the right to work, it would be sheer pedantry to
exclude the right to livelihood from the content of the right to
life. The State may not, by affirmative action, be compellable
to provide adequate means of livelihood or work to the citizens.
H tlut, any person, who is deprlvcJ of his right to livelihood
I
 OLGA TELLIS v. BOMB,AY MlJNICIPAL CORPN. lCHANllRACHUD, CJ.] 81

A
except according to just and fair procedure. established by law,
can challenge the deprivation as offending the right to life
conferred by Article 21.

Learned counsel for the respondents placed strong reliance

on a decision of this Court in In lie: Sant Ram, tl960] 3 s.c.R. B
499, in support of their contention that the right to life
guaranteed by Article 21 does not include the right to liveli-
hood •. Rule 24 of the Supreme Court Rules empowers the Registrar
to publish lists of persons who are proved to be habitually act-
ing as touts. The Registrar issued a notice to the appellant and
one other person to show cause why their rulllles should not be c
included in the list of touts. That notice was chal1enged by the
appellant on the ground, inter alia, that it contravenes Article
.21 of the Constitution since, by the inclusion of his name in the
list of touts, he was deprived of his right to livelihood, which
is included in the right to life. It was held by a Constitution
Bench of this Court that the language of Article 21 cannot be D
pressed in aid of the argument that the word 'life' in Article 21
includes 'livelihood' also. This decision is distinguishable
becuase, under the Constitution, no person can calim the right to
livelihood by the pursuit of an opprobrious occupci.tion or a nefa-
rious trade or business, like toutism, gambling or living on the
gains of prostitution. The petitioners before us do not claim
the right to dwell on pavements or in s.lums for the purpose of E
pursuing any activity which is illegal, immoral or contrary to
public interest. Many of them pursue occupations which are humble
but honourable. ·

Turning to the factual situation, how far is it true to say

that if the petitioners are evicted from their slum and pavement
F
dwellings, they will be deprived of their means of livelihood?
It is impossible, in the very nature of things, together reliable
data on. this subject in regard to each individual petitioner and,
none has been furnished to us in that form. That the eviction of
a person from a pavement or slum will inevitably lead to the
deprivation of his means of livelihood, is a proposition which
G
does not have to be established in each individual case. That is
an inference which can be drawn from acceptable data. Issues of
general public importance, which affect the lives of large
sections of the society, defy a just determination if their
consideration is limited to the evidence pertaining to specific
individuals. In the resolution of such issues, there are no
symbolic samples which can ·effectively project a true picture of H
 82 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A
the grim realities of life. The writ petitions before us undoub-
tedly involve a question relating to dwelling houses but, they
cannot be equated with a suit for the possession of a house by
one private person against another. In a case of the latter
kind, evidence has to be led to establish the cause of action and
justify the claim. In a matter like the one before us, in which
B
the future of half of the city's population is at stake, the
Court must consult authentic empirical data compiled by .agencies,
offical and non-official. It is by that process that the core of
the problem can be reached and a satisfactory solution found. It
would be· unrealistic on our part to reject the petitions on the
ground that the petitioners have not adduced evidence to show
that they will be rendered jobless if they are evicted from the
c slums and pavements. Commonsense, which is a cluster of life's
experiences, is often more dependable than the rival facts
presented by warring litigants.

1t is clear from the various expert studies to which we

have referred while setting out the substance of the pleadings
that, pne of the _main reasons of the emergence and growth of
D squatter-settlements in big Metropolitan cities like Bombay,is
· the availability of job opportunities which are lacking in the
rural sector. The undisputed fact that even after eviction, the
squaters return to the cities affords proof of that position. The
Planning Commission's publication, 'The Report of the Expert
Group of Programmes for the Alleviation of Poverty' (19~2) shows
E
that half of the population in India lives below the poverty
line, a large part of which lives in villages. A publication of
the Government of Maharashtra, 'Budget and the New 20 Point
Socio-Economic Programme' shows that about 45 lakhs of families
in rural areas live below the poverty line and that, the average
agricultrual holding of a farmer, which is 0.4 hectares, is
F
hardly enough to sustain him and his comparatively large family.
The landless labourers, who constitute the bulk of the village
population, are deeply imbedded in the mire of poverty. It is
due to these economic pressures that the rural population is
forced to migrate to urban areas in search of employment. The
affluent and the not-so-affluent are alike insearch of domestic
G servants. Indsutrial and Business Houses pay a fair wage to the
skilled· workman that a villager becomes in course of time.
Having found a JOb, everi if it means washing the pots and pans,
the migrant sticks to the big city. If driven out, he returns in
quest' of another Job. The cost of public sector housing is
beyond -his modest means and the less we refer to the deals of
H
private builders •the better for all"·, excluding none. Added to
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACIUJD, CJ. J 83

these factors is the stark reality of growing insecurity in A

vaillages on account of the tyranlly of parochialism and casteism.

r The announcement made by the Maharashtra Chief Minister regarding

the deportation of willing pavement dwellers afford some indica-
tion that they are migrants from the interior areas, within and
outside Maharashtra. It is estimated that about 200 to 300
people enter Bombay every day in search of employment. These E
facts consti.tute empirical evidence to justify the conclusion
that persons in the position of petitioners live in slums 'and on
pavements because they have small jobs to nurse in the city and
there is no where else to live. Evidently, they choose a pave-
ment or a slum in the vicinity of their place of work, the time
otherwise taken in commuting and· its cost being. forbidding for c
their slender means. To loss the.pavement or the slum is to lose
the job. The conclusion, therefore, in terms of the constitu-
tional phraseology is that the eviction of the petitioners will
lead to deprivation of their livelihood arid consequently to the
deprivation of life.
r
Two conclusions emerge from this discussion: one, that the
right to life which is conferred by Article 21 includes the right
to livelihood and two, that .it is established that if the peti-
tioners are evicted from their dwellings, they will be deprived
of their livelihood. But the Constitution does not put an
absolute embargo on the deprivation of life or personal liberty.
l!y Article 21, such deprivation has to be according to procedure E
established·by law. In the instant case, the law which allows
the deprivation of the right conferred by Article 21 is the
Bombay Municipal Corporation Act, 11388, the relevant provisions
of which are contained in Sections 312(1),313(l)(a) and 314.
These sections which occur in Chapter XI entitled 'Regulation of
Streets' read thus :
F

"Section 312 - Prohibition of structures or fixtures

.which cause obsturuction in streets.

(1) No person shall, except with the permission of the

Connnissioner under section 310 or 317 arect or set up
G
any wall, fence, rail, post, step, booth or other
atructure or fixture in or upon any street or upon
or over any open channel, drain well or tank in any
.street so as to form an obstruction to, or an encro-
achment upon, or a projection over, or to to _occupy,
any portion or such street, channel, drain, well or
H
tank".
 84 SUPRF.ME COURT REPORTS [1985] SUPP.2 S.C.R.
A
"Section 313 - Prohibition of depoeit,etc. ,of things
in streets.

(1) No person shall, except with the written

permission of the Commissioner, -
B
(a) place or deposit upon any street or upon any open
channel drain or well in any streets (or in any public
place) any stall,chair,bench,box,.ladder,bale or other
thing so . as to form an obstruction thereto or
encroactnnent thereon."
c "Section 314 - Power to r"'"°"" without notice anything
erected deposited. or hawked in contra-
ventioo of Section 3U,313 or 313 A.

The Commissioner may, withou.t notice, cause to be

removed -
D (a) any wall, fence, rail, post, ate~, booth or other
structure or fixture which shall be erected or set up
in or any street, or upon or over any open channel,
drain, well or tank contrary to the provisions of sub-
section (1) of section 312, after the same comes into
force in the city or in the suburbs, after the date of
E the coming into force of the Bombay Municipal
(Extension of Limits) A.:t, 1950 or in the extended
suburbs after the date of the coming into force of the
Bombay Municipal Further Extension of Limits and
Schedule BBA (Amendment) Act, 1956;
F
(b) any stall, chair, bench, box, ladder, bale, board
or shelf, or any other thing whatever placed, deposi-
ted, projected, attached, or suspended in, upon, from
or to any place in contravention of sub-section ( 1)
of section 313;
G
(c) any article whatsoever hawked or exposed for sale
in ·any public place or in any public street in contra-
vention of the provisions of section 313A and any
vehicle, package, box, board, shelf or any other thing
in or on which such article is placed or kept for the
purpo.se of sale."
H
By section 3(w), "street" includes a. causeway, footway, passage
etc.., over which the publ.ic have a rlght of passage or access·
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. (CHANDRAClllJl.), CJ. J 85

These provisions, which are clear and specific, em.power the

Municipal Connnissioner to. cause to be removed encroachments on
footpaths or pavements over which the public have a right of
passage or access. It is undeniable that, ih these cases, wher-
ever constructions have been put up on the pavements, the public
have a right of passage or access over those pavements. The arge- E
ment of the petitioners is that the procedure prescribed by
section 314 for the removal of encroachments from pavements is
arbitrary and unreasonable since, not only does it not provtde
· for the giving of a notice before the removal of an encorahcment
but, it provides expressly that the Municipal Commissioner may
cause the encroachment to be removed "without notice". C

It is far too well-settled to admit of any argument that .the

procedure prescribed by law for the deprivation of the right
conferred by Article 21 must be fiar, just and reasonable. (See
E.P.Royappa v. State of Tamil Nadu, (1974] 2 s.c.K. 348; Maneka
Gandhi v. Union of India, [1978] 2 s.c.R. 621; M.O.Hoscot v. D
State of Maharashtra, [1979] l s.c.R. 192; Sunil Batra, I v.
Delhi Administration, [1979] l s.c.R. 392; Sita Ram v. State of
U.P., [1979] 2 s.C.R. 1085; llussainara Kbatoon, I v. &me
Secretary, State of Bihar, Patna, Ll979j 3 s.c.R. 532,537;
Hussainara Kbatoon, II v. Home Secretary, State of llihar, Patna,
[1980) l s.c.c. 81; Sunil Batra, II v. Delhi Administration,
[1980) 2 s.c.R. 557; Jolly George Verghese v. The llank of Cochin, E
Ll980J 2 s.c.R. 913,921-922; Kasturi Lal Lakshmi Reddy v. State
of JaD11111 & Kashmir, [1980] 3 s.C.R. 1338,1356; and Francis
Coralie Mnllin v. The Administrator, Union Territory of Delhi,
[l9BlJ 2 s.c.R.·516,523-24.J

Just as a mala fide act has no existence in the eye of law, F

even so, unreasonableness vitiates law and procedure alike. It
is therefore essential that the proceudre prescribed by law for
depriving a person of his fundamental right, in this case the
right to life, must confirm to the norms of justice and fairplay.
Procedure, which is unjust or unfair in the cirumstances of a
case, attracts the vice of unreasonableness, thereby vitiating G
the law which prescribes that procedure and consequently, the
action taken under it. Any action taken by a public authority
which is invested with Statutory powers has, therefore, to be
tested by the application of two standards: The action must be
within the scope of the- authority conferred by law and secondly,
it must be reasonable. If any action, within the scope of the H
authority conferred by law, is found to be ~nreasoanble. it must
mean that the proceudre established by law under which that
 86 SUPliliME COURT KEPORTS [l985j >UPP.2 s.c.R.

A
action is taken is itself unreasonable. The substance of the
law cannot be divorced from the procedure which it prescribe for,
how reasonable the law is, depends upon how fair is the procedure
prescribed by it, Sir Raymond Evershad says that, "from the
point of view of the ordinary citizen, it is the procedure that
B
will most strongly weigh with him. He will tend to form his
Judgment of the excellence or otherwise of the legal system from
his personal knowledge and experienc<! in seeing the legal machine
at work", l 'The influence of Remedies on Rights' (Current Legal
Problems 1953, Volume 6. )j. Therefore, "He that takes the
procedural sword·shall perish with the sword."[Per Frankfurter J.
in Viteralli v. Seton 3 L.Ed. (2nd Series) 1012]
c Justice K.K.Mathew points out in his article on 'The wel-
fare State, Rule of Law and Natural Justice', which is to be
found in his book 'Democracy, equality and Freedom', that there
is "substantial agreement in juristic thought that the great
purpose of the rule of law notion is the protec~ion of the indi-
vidual against arbitrary exercise of power wherever it is found"·
D
Adopting that formulation, Bhagwati J., speaking for the Court,
observed in l<amana llayaram, Shetty v. The International · Airport:
Authority of India, [1979 j 3 s.c.R. 1014,1032 that it is "un-
thinkable that in a democracy !;OVerned by the rule of law, the
executive Government or any of its officers should possess arbi-
trary power over the interest ot the individual. Every action of
the executive,Government must be informed with reason and should
E
be free from arbitrariness. That is the very essence of the rule
of law and'its bare minimal requirement".

Having given our anxious and solicitous consideration to

this question, we are of the opinion that the procedure pres-
cribed by Section 314 of the Bombay Municipal Corporation Act for
F
removal of encroachments on the ~ootpaths or pavements over which
the public has the right of passage or access, cannot be regarded
as unreasonable, unfair or unjust. There is no static measure of
reasonableness which can , be applied to al;L situations alike.
Indeed, th~ 4uestion " is this procedure reasonable?" implies and
postulates the inquiry as to whether tl1e pr.ocedur-:>; prescribed is
G
reasonable in the circwnstances of the case, Ir. Francis Coralie
Mullin, [1981] 2 S.C.R. 516, liha~wati,J., Said :

it is for the Court to decide in exercise of

its constitutional power of judicial review whether
.the deprivation of life or personal liberty in a given
H
 OWA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ·) 87

case is by procedure, which is reasonable, fair and A

just or it is otherwise.'.'· (emphasis supplied, page
524).

In the first place, footpaths or pavements are public pro-

perties which are intended to serve the convenience of the·gene-
ral public. They are not laid for private use and indeed, their B
use for a private purpose frustrates the very' object for which
they are carved out from portions of public streets. The main
reason for laying out pavements is to ensure that the pedestrains
are able to go about their daily affairs with a reasonable mea-
sure of safety and security. That facility, which has matured
into a right of the pedestrains, cannot be set at naught by c
allowing encroachments to be made on the pavements. There is no
substance in the argument advanced on behalf of the petitioners
that the claim of the pavement dwellers to put up constructions
on pavements and that of the pedestrains to make use of the pave-
J ments for passing and repassing, are competing claims and that,
the former should be preferred to the latter. No one has the
right to make use of a public property for a private purpose
without the requisite authorisation and, therefore, it is erron-
eous to contend that the pavement . dwellers have the right to
encroach upon pavements by constructing dwellings thereon. ,Public .
streets, of which pavements form a part, are prima!'"ily dedicated
for the purpose of passage and, even the pedestrains have but the
limited right of using pavements for the purpose of passing' and E
repassing. So long as a person does not transgress the limited
purpose for which pavements are made, his use thereof is legiti-
mate and lawful. But, if a person puts any public property to a
use for which it is not intended and is not authorised so to use.
it, he becomes a trespasser. The common example which is cited in
some of the English cases (see, for example, Hirblan v.- Maisey, F
[1900] 1 Q.B. 752, is that if a person, while using a highway
for passage, sits down for a time to rest himself by the side of
the road, he does not commit a trespass. But, if a person puts. up
· a dwelling on the pavement,. whatever may be the econom.ic compul-
sions behind such an act, his user of the pavement would become
unauthorised. ·As s.tated in Hickman, it is not easy to draw an G
exact line between the legitimate user of a highway as a highway
and the user which' goes beyond the right conferred upon the
public by its dedication. But, as in many other cases, it is not
difficult to put cases well on one side of the line. Putting up a
dwelling on the pavement is a case which is clearly on one side
of the line showing that it is an act of trespass. Section 61 of H
the Bombay Municipal Corporation Act. lays· down the obligatory
 88 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A duties of the Corporation, under clause (d) of which, it is its

duty to take measures for abatement of all nuisances. The exis-
tence of dwellings on the pavements is unquestionably a source of
nuisance to the public, at least for the reason that they are
denied the use of pavements for passing and repassing. They are
compelled, by reason of the occupation. of pavements by dwellers;·
B to use highways and public streets a" passages. The affidavit
filed on behalf of the Corporation shows that the fall-out of
pedestrians in large numbers on highways and streets constitutues
a grave traffic hazzard. Surely, ped.,strians deserve consider-
ation in the matter of their physical safety, which cannot be
sacrificed in order to accommodate persons who use public proper-
ties for a private purpose, unauthorizedly. Under caJ.use (c) of
C section 61 of the B.M.C. Act, the Corporation is under an obliga-
tion to remove obstructions upon public streets another public
places. The counter-affidavit of the Corporation shows that the
e;dstence of hutments on pavements is a serious impediment in
repairing the roads, pavements, drains and streets. Section
63(k), which is discretionary, empowers the Corporation to take
measures to promote public safety, health or convenience not
D specifically provided otherwise. Since it is not possible to
provide any public .conveniences to the pavement dwellers on or
near the pavements, they answer the nature's call on the pave-
ments or on the streets adjoining them. These facts provide the
background to the provision for removal of encroachments on pave-
ments and footpaths.
E
The challenge of the petitioners to the validity of the
relevant provisions of the Bombay Municipal Corporation Act is
directed principally at the procedure prescribed by section 314
of that Act, which provides by clause (a) that the Commissioner
may, without notice, take steps for the removal of encroachments
F in or upon ay street, channel,drain, etc• By reason of section
3(w;, 'street' includes a causeway, footway or passage. In order
to decide whether the procedure prescribed by section 314 is fair
and reasonable, we must first determine the true meaning of that
section because, the meaning of the la.r determines its legality.
If a law is found to direct the doing "f an act which is forbid-
G den by the Constitution or to compel, in the performance of an
act, the adoption of a procedure which is impermissible under
the Constitution, it would have to be E1truck down. Considered in
its proper perspective, section 314 is in the µature of an enab-
ling provision and not of a compulsive character. It enables the
Commissioner, in appropriate cases, to dispense with previous
H notice to persons who are likely to be affected by Lhe proposed
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 89

action. It does not require and, cannot be read to mean that, in A

total disregard of the relevant circumstances pertaining to a
given situation, the Commissioner must cause the removal of an
encroachment without issuing previous notice. The primary rule of
construction is that the language of the law must receive its
plain and natural meaning. What section 314 provides is that
the Conmissioner may, without notice, cause an encroachment to be B
removed. It does not command that the Commissioner shall, with-
out notice, cause an encroachmerit to be removed. Putting it
differently, section 314 confers on the Commissioner the discre-
J tion to cause · an encroachment to lie removed with or without
notice. That discretion baa to lie exercised in a reasonable
manner so as to comply with the constitutional mandate that the C
procedure accompanying the performance of a public act must be
fair and reasonable. We must lean in favour of this interpreta-
tion because it helps sustain the validity of the law. Reading
section 314 as containing a cOIIlll&ld not to issue notice before
the removal of an encroachment will make the law invalid.
D
It must further be presumed that, while vesting in the
Commissioner the power to act without notice, the Legislature
intended that the power should lie exercised sparingly ·and in
cases of urgency which brook · no delay. In all other cases, no
departure from the audi alteram par'tem rule ('Hear the other
side') could be presumed to have been intended. Section 314 is so
designed as to exclude the principles of natural justice by way E
of exemption and not as a general rule. There are situations
which demand the exclusion of the rules of natural justice by
re~son of diverse factors like time, place the apprehended danger
and so on. The ordinary rule which regulates all procedure is
that persons who are likely to lie affected by the proposed action
must lie afforded an opportunity of being heard as to why that F
action should not be taken •..The hearing may lie given individually
or collectively, depending upon the facts of each situation. A
departure from this fundamental rule of natural justice may lie
presumed to have been intended by the Legislature only in circum-
stances which warrant it. Such circumstances must be shown to
exist, when so required, the burden being upon those who affirm G
their existence.

It was urged by Shri K.K.Singhvi on behalf of the Municipal

Corporation that the Legislature may well have intended that no
notice need be given in any case whatsoever because, no useful
purpose could be served· by issuing a notice as to why an encro- H
achment on a public property should not be removed. We have indi-
cated above that far from so intending, the Legislature has left
 90 SUPREME COUKT REPORTS [1985] SUPP.Z s.c.R.

A it to the discretion of the Commissioner whether or not to give

notice, a discretion which has to be exercised reasonably.
Counsel attempted to demonstrate the practical futility of
·issuing the show cause notice by pointing out firstly, that the
only answer which a pavement dweller, for example, can make to
such a notice is that he is compelled to live on the pavement
B because he has no other place. to go t" and secondly, that it is
hardly likely that in pursuance of such a notice, pavement
dwellers or. slum dwellers would ask for time to vacate since, on
their own showing, they are compelled to occupy some pavement or
slum or the other if they are evicted. It may be true to say
that, in the generality of cases, persons who have committed
encroachments on pavements or on other public properties may not
c have an effective answer to give. It is a notorious fact of
contemporary life in metropolitan cities, that no person in his
senses would: opt to live on a pavement or in a slum, if any other
choice were available tO him. Anyone who cares to have even a
fleeting glance at the pavement or slum dwellings will see that
they are the very hell on earth. But, though this is so, the
contention 'of the Corporation that no notice need be given
becau8e, there can be no effective answer to it, betrays' a mis-
D
understanding of the rule of · hearing, which is an important
element of the principles of natural justice. The decision to
dispense with notice cannot be founded upon a presumed impregn-
ability of the proposed action. For example, in the common run
of cases, a' person may contend in answer to a notice under setion
314 that (i) i:here was, in fact, no encroachment on any public
E
road, footpath Or pavement, or (ii) the encroactnnent was so
slight and negligible as to cause no nuisance or incovenience to
other members of the public, or (iii) time may be granted for
removal of · the encroachment in view of humane consiedrations
arising out of personal, seasonal or other factors. It would not
be right to assume that the Commissioner would reject these or
F
similar other considerations without a careful application of
mind. Human compassion must soften the rough edges of justice in
all situations. The eviction of the pavement or slum dweller not
only means his removal from the house but the destruction of· the
house itself: And the destruction of a dwelling house is the end
of all that one holds dear in life. Humbler the dwelling, greater
G
the suffering and more intense the sense of loss.

The proposition that notice need i1ot be given of a proposed

action becuase, there can possibly be no answer to it, is cont-
rary to the well-recognized understanding of the real import of
the rule of hearing. That proposition 0•1erlooks that justice must
H
 OLGA TELLIS v. JlOMBAY MUNICIPAL CORPN. [CHANl>HACllUD, CJ.j 91

not only be done but must manifestly be seen to be done and A

confuses one for the other. The appearance ·of injustice is the
denial of justice. It is the dialogue with the person likely to
be affected by the proposed action which meets the requirement
that justice must also be seen to be done. Procedural safe~rds
have their historical origins in the notion that conditions of
personal freedom can be preserved only when there is some insti- B
tutional check on arbitrary action on the part of public autho-
rities. (Kadi•h, "Methodology and Criteria in Due Process Adjudi-
cation - A Survey and Criticism," 66 Yale L.J. 319,340 [1957]).
The right to be heard has two facets, intrinsic and instrumental.
The intrinsic value of that right consists in the opportunity
which it gives to individuals or groups, against whom decisions C
taken by public authorities operate, to participate in the
processes by which those decisions are made, an opportunity that
expresses their dignity as persons. (Golberg v. Kelly, 397 u.s.
254, 264-65 [1970j right of the poor to participate in public
processes).
D
..Whatever its outcome, such a hearing r_epresents a.
valued human interaction in which the affected person
experience at least the satisfaction of participating
in the decision that vitally concerns her, and perhaps
the separate satisfaction of receiving an explanation
of why the decision is being made in a certain way.
Both the right to be heard from, and the right· to be E
told why, are analytically distinct from the right to
secure a -different- outcome; these rights to inter-
change express the elementary idea that . to be a
person, rather than a thing,is at least to be consul- .
ted about what is done with one. Justice Frankfurter
captured part of this sense of procedural justice when F
he wrote that the "Validity and moral authority of a
conclusion largely depend on the mode by which it was
reached ••••••• No better instrument has been devised
for arriving at·truth than to give a person in jeopar-
dy of serious loss notice of the case against him and
opportunity to meet it. Nor has a better way been G
found for generation the feeling, so important to a
popular government, that justice has been done". Joint
Anti-fascist Refugee Coomit:tee v. Mc Grath, 341, u.s.
123, 171-172 (1951). At stake here is not Just the
much-acclaimed appearance of justice but, from a pers-
pective that treats process as intrinsically signifi- H
cant, the very essence of justice" , (See "American
 92 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A Constitutional Law" by Laurence H. Tribe, Professor of

Law, Harvard University (Ed. 1978, page 503).

The instrumental facet of the right of hearing consists in the

means which it affords of assuring that the public rules of
conduct, which result in benefits and prejudices alike, are in
B fact accurately and consistently followed.

"It ensures that a challanged action accurately re-

flects the substantive rules applicable to such action
' ; its point is less to assure participation than to
use participation to assure accuracy."

c Any discussion of this topic would be incompelete without

reference to an important decision of this Court in S.L. Kapoor
v. Jagmoban, [19Sl] 1 s.c.R. 746,766. In that case, the
superession of the New Delhi Municipal ColllIIlittee was challenged
on the ground that it was in violation of· the principles of
natural justice since, no show cause notice was issued before the
order of· superession was passed. Linked with that question was
D the question whether the failure to observe the principles of
natural justice matters at all, if such observance would have
made no difference, the admitted or indisputable facts speaking
for themselves. After referring to the decisions in Ridge v.
Baldwin, [1964j A.C.40 at 68; John v. l!eeas, [1970] 1 Chancery
345 at 402; AllDamutbodo v. Oilfields Workers'Trade Union, [1961] 3
E All E.I{. 621 (H.L.) at 625; Margarita Fuentes at al. v. Tobert
L.Shevin, 32 L.E<J. 2d 556 at 574; Cbintepalli Agency Taluk
Arrack Sales Cooperative Society Ltd. V• Secretary (Food & Agd.-
culture) Government of Andhra Pradesh, [1978J 1 s.c.a. 563 at
567,569-570, and to an interesting discussion of the subject in
Jackson's Natural Justice (1980 Ii.du.) the Court, speaking through
F one of us, Chinnappa Reddy, J. Said :

"In our view the principles of natural justice know of

no exclusionary rule dependent on whether it would
have made. any difference if natural justice had been
observed. The non-observance of natural justice is
itself prejudice to any man and proof of prejudice
G
independently of proof of denial of natural justice is
unnecessary. It ~ill comes from a person who has
denied justice that the person who has been denied
justice is not prejudiced."

These observations sum up the true legal position regarding the

H
purport and implications of the right of hearing.
 OLGA TJ::LLIS v. BOHllAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.) 93

The jurisprudence requiring hearill!l to be given to those A

who have encroached on pavements and other public properties
.. evoked a ~harp response from the respondents counsel. " Hearing
to be given to.trespassers who have encroached on public proper-
ties? To persons who com.it crimes?", they seemed to ask in
wondement. There i's no doubt that the petitioners are using
pavements and other public properties for an unauthorised B
purpose. l!ut, their intention or object in doing so is not to
"commit an offence or intimidate, insult or annoy any person",
which is the gist of the offence of '.Criminal trespass' under
section 441 of the Penal Code. They manage to find a habitat in
places which are mostly filthy or marshy, out of sheer helpless-
ness. lt is not as ·if they have a free choice to exercise as to C
whether to commit an encroachment and if so,. where. The en.._croach-
ments committed by these persons are involuntary acts in the
sense that those acts are compelled by inevitable circumstances
and are not guided by choice. Trespass is a tort. But, even the
L law of Torts requires that though a trespasser may be evicted
forcibly, the force used must be no greater than what is reason- r
able and· appropriate to the occasion and, what is even more
important, the trespasser should be asked and given a reasol12.ble
opportunity to depart before force is used to expel him. (See
l!amasWamy Iyer's 'Law of Torts' 7th Ed. by Justice and Hrs.
S.K.Uesai, (page 98, para 41). Besides, under the Law of Torts,
necessity is a plausi.ble defence, which enables a person to es-
cape liability on the ground that the acts complained of are E
necessary to prevent greater damage, inter alia, to himself.
"Here, as elsewhere in the law of torts, a balance has to be
struck between competill!l sets of values •••••••• " (See Salmond
and lleuston, 'Law of Torts', 18th Ed. (Chapter 21, page 463,
Article 185 - 'Necessity').
F
The charge made by the State Government in its affidavit that
Slum and pavement dwellers exhibit especial criminal tendencies
is unfounded •. According to Dr. P.K.Huttagi, Head of the unit for
urban studies of the Tata Institute of Social Sciences, Bombay,
-
the surveys carried out in 1972, 1977 ,1979 and 1981 show that
many families which have chosen the Bombay footpaths just for G
survival, have been living there for several years and that 53
per cent of the pavement dwellers are self-employed as hawkers in
vegetables, flowers, ice-cream, toys, balloons,: buttons, needles
and so on. over 38 per cent are in the wage-employed category as
casual labourers, construction workers, domestic servants and
luggage carriers. Only 1.7 per cent of the total number is gener- H
ally unemployed. Dr. Muttagi found among the pavement dwellers a
 94 SUPREME COURT REPORTS [1985] SUPP:2 s.c.R.

A raduate of Marathwada Universl.ty and Muslim Post of some stand-

ing. "These people have merged with the landscape, become part of
it, like the chameleon", though their contact with their more
fortunate neighbours who live in adjoining high-rise buildings is
casual. The most important finding of Dr.Muttagi is that the
pavement dwellers are a peaceful lot, "for, they stand to lose
B their shelter on the pavement if they disturb the affluent. or
indulge in fights with their fellow dwellers". The charge of
the State Government, besides being contrary to these scientific
findings, is born of prejudice against the poor and the desti-
tute. Affluent people living in sky-scrapers also commit crimes
varying from living on the gains of prostitution and defrauding
the public treasury to smuggling. But, they get away. The pave-
c ment dwellers, when caught, defend themselV'es by asking, "who
does not commit crimes in this city ?" As observed . by Anand
Chakravarti, " The separation between existential realities and
the rhetoric of socialism indulged in by the wielders of power in
the government cannot be more profound." 'Some aspects of
inequality in rural India : A Sociological Perspective published
in 'Equal~ty and Inequality, Theory and Practice' edited by Andre
D Beteille, 1983.

Normally, we would have directed the Municipal Commissioner

to afford an opportunity to the petitioners to show why the en-
croachments committed by them on pavements or ·footpaths should
not be removed. But, the opportunity which was denied by the
E Commissioner was granted by Us in an ample measure, both sides
having made their contentions elaborately on acts as well as on
law. Having considered those contentions, we are of the opinion
that the Commissioner was justified in directing the removal of
the encroachments committed by the petitioners on pavements,
footpaths or accessory roads. As observ.ed in S.L. Kapoor, (Supra)
F "where on the admitted or indisputable facts only one conclusion
is possible and under the law only one penalty is permissible,
the Court may not issue its writ to compel the observance of
natural justice, not becuase it is not necessary to observe
natural justice but beacuse Courts do not issue futile writs".
Indeed, .in that case, the Court did not set aside the order of
G supersession in view of the factual position stated by it. But,
though we do not see any- justification for asking the
Commissioner to hear the_petitioners, we propose to pass an order
which, we believe, he would or should have passed, had he granted
a hearing to them and heard what '1e did. We are of the opinion
that the petitioners should not be evicted from the pavements,
H footpaths or accessory _roads until one month after the conclusion
of the current, monsoon season, that is to say, ·until ·October 31,
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 95

1985. In the meanwhile, as explained later, steps may be taken to A

offer alternative pitches to the .pavement dwellers who were or
who happened to be censused in 1976. The offer of alternative
pitches to such pavement dwellers should be made good in the
spirit in which it was made, though we do. not propose to make it
a condition precedent to the removal of the encroachments cormnit-
ted by them. B

Insofar as the Kam.raj Nagar Basti is concerned, there are

over 400 hutments therein. The affidavit of the Municipal
Connnissioner, Shri D.M.Sukhthankar, shows that the Bas ti was
constructed on an accessory road, leading to the highway. It is
also clear from that affidavit that the hutments were never regu- c
larised and no re.gistration numbers were assigned to them by the
Road Development Department. Since the Ba.sti is situated. on a
part of the road leading to the Express Highway, serious traffic
hazards arise on account of the straying of the Bast! children on
to the Express Highway, on which there is heavy vehicular
(
traffic. The same criterion would apply to the KamraJ Nagar t
llasti as would apply to the dwellings constructed unauthorisedly
on other roads and pavements in the city.

The affidavit of Shri Arvind V.Gokak, Administrator of the

Maharashtra Housing and Areas Development Authority, Bombay,
snows that the State Goverranent had taken a decision to compile a
list of slums which were required to be removed in public E
interest and to allocate, after a spot inspection, 500 acres of
vacant land in or near the Bombay Suburban District for Cesettle-
ment of hutment dwellers removed from the slums. A census was
accordingly carried out on January 4, 1976 to enumerate the slum
' dwellers spread over about 850 colonies all over Jlombay. About
67% of the hutrnent dwellers produced photographs of the heads of F
their families, on the basis of which the hubnents were numbered
'. and their occupants were given identity cards. Shri Gokak
• further says in his affidavit that , the Government had also
decided.that the slums which were in existence for a long time
and which were improved and developed, would not normally be
demolished unless the land was required for a public purposes. In G
the event that the land was so required, the policy of the State
Government was to provide altenia.te accorm:npdation to the slum
dwellers who were censused and possessed id entity cards. The
Ciruclar, of the State Goverrunent dated February 4, 1976 (No.
SIS/176/D-41) bears out this position. In the enumeration of the
hutment dwellers, some persons occupying pavements also happened H
to be given census cards. The Government decieded to. allot
 96 SUPREME COURT REPORTS [l985J SUPP.2 s.c.R:

A pitches to such persons at a place near Malavani. These assurance

held forth by the Goverrunent nrust be made good. In other words
despite the finding recorded by us that the provision contained
in section 314 of the B.M.C. Act is valid, pavement dwellers to
whom census cards were given in 1976 must be given alternate
pitches at Malavani though not as a condition precedent to the
B removal of encroachments committed by them. Secondly, slum
dweller~ who were censused and .were given identity cards :must be
provided with alternate accolllillOdation before they are evicted.
There is a controversy between the petitioners and the State
Government as to the extent of vacant land which is available for
resettlement of the inhabitants of pavements and slums. Whatever
that may be , the highest priority nrust be accorded by the State
C Govermnent to the resettlement of these unfortunate persons by
alloting to them such land as the Government finds to be conve-
niently available. The Maharashtra Employment Guarantee Act,
1977, the Employment Guarantee Scheme, the 'New Twenty Point
Socio-Economic Programme, 1982', the 'Affordable Low Income
Shelter Programme in Bombay • Metropolitan Region' and the
Programme of House Building for the economically weaker sections'
D nrust not remain a dead letter· as such schemes and programmes
often doe Not only that, but· more and more such progranmes must
be initiated if the theory of equal protection of laws has to
take its rightful place in the struggle for equality. In these
matters, the demand is not so nruch for less governmental inter-
ference as for positive governmental action to provide equal
E treatment.to neglected segments of society. The profound rhetoric
of socialism nrust be translated into practice for, the problems
which confront the State are problems of human destiny.

Shri
During the course of arguments, an affidavit was filed by
S.K.Jahagirdar, Under Secretary in the Department of •
F Housing, Government of Maharashtra, setting out the various
housing schemes which are under the consideration of the State
Government. The affidavit containS useful information on various
aspects relating to slum and pavement dwellers. The census of
1976 which is referred to in that affidavit shows that 28.18
lakhs of people were living in 6,27 ,404 households spread over
G 1680 slum pockets. The earning of 80 per cent of the slum house
holds did not exceed Rs.600 per month. The State Government has a
proposal to undertake 'Low Income Scheme Shelter Programme' with
the aid of the World Bank. Under the Scheme, 85,000 small plots
for construction of houses would become available, out of which
40,000 would be in Greater Bombay, 25,00 in the Thane-Kalyan area
H and 20,000 in the New Bombay region. The State Government is also
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. (CHANDHACHUD, CJ. j 97

proposing to undertake 'Slum Upgradation Programme( SUP)' under

which basic civic amenities would be made available to the slum
dwellers. We trust that these Schemes, grandiose aS they appear,
will be pursued faithfully and the aid obtained from the World
Bank ~tilised systematically and effectively for achieving its
purpose. • B
There is no short term or marginal solution to the question
of squatter colonies, nor are such colonies llllf:que to the cities
of India. Every country, du.ring its historical evolution, has
fated the problem of squatter settlements and most countries of
the under-developed world face this problem today. Even the
highly developed affluent societies face the same problem, though c
with their larger resources and smaller populations, their task
is far less difficult. The forcible eviction of squatters, even
if they are resettled in other sites, totally disrupts the
economic life of the household. It has been a cotmnon experience
of the administrators and planners that when resettlement is
forcibly done, squatters eventually sell their new plots and D
return to their original sites near their place of employment.
Therefore, what is of crucial importance to the question of
thinning out the squatters' colonies in metropolitan cities is to
create new ,opportu~ties for employment in the rural sector and
to spread the existing job opportunities evenly in urban areas~
Apart from the further misery and degradation which it involves,
eviction of slum and pavement dwell~rs is an ineffective remedy E
for decongesting the cities. In a highly readable and moving
account of the problems which the poor have to face, Susan George
says : ('How the Other Half Dies - 'n.e Keal Reasons for World
Hunger' (Polican books) •.

"So long as thorough going land reform, re-grouping F

and distribution.of resources to the poorest, bottom
half of the population does not take place, Third
World countries can go on increasing their production
until hell freezes and hunger will :emain, for the
production will go to those who already have plenty -
to the developed world or to the wealthy in the Third G
World itself. Poverty and hunger walk hand in
hand'', (Page 18).

We will close with a quotatiOn from the same book which has
a massage :
H
 98 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A "Malnourished babies, wasted mothers, emaciated corp-

ses in the streets of Asia have definite and definable
reasons for existing. Hunger may have been the human
race's constant companion, and 'the poor may always be
with us', but in the twentieth .century, one cannot
take this fatalistic view of the destiny of millions
B of fellow creatures. Their condition is not inevitable
but is caused by identifiable forces within the
province of rational, human control". (p.15)

To summarise, we hold that no person has the right to en-

croach, ~Y erecting a structure or otherwise, on footpaths, pave-
ments or any other place reserved or ear-marked for a public
c purpose like, for example, a garden or a playground; that the
provision contained in section 314 of the Bombay Municipal Cor-
poration Act is not unreasonable in the circumstances of the
case; and that, the Kamraj Nagar Basti is situated on an
accessory road leading to the Western Express l!ighway. We have
referredr to the assurances given by the State GOverment in its
pleadings here which, we repeat, must be made good. Stated
D briefly, pavement dwellers who were censused or who happened to
be censused in 1976 should be given, though not as a condition
precedent to their removal, alternate pitches at Malavani or at
such othe~ convenient place as the Goverrunent considers reason-
able but not farther away in terms of distance; slum dwellers
who were given identity cards and whose dwellings were nU1obered
E in the l''.76 census must be given alternate sites for their re--
settlement; slums which have been in existence for a long time,
say for twenty years or more, and which have been improved and
developed will not be removed unless the land on which they stand
or the appurtenant land, is required for a public purposes, in
whiCh case, alternate sites or accommodation will be provided to
F them,the 'Low Income Scheme Shelter Programme' which is proposed
to be undertaken with the aid of the World Bank will be pursued
earnestly; and, the Slum Upgradation Programme (SUP) 'under which
basic amenities are to be given to slum dwellers will be imple-
mented without delay. In order to minimise the hardship involved
in any eviction, we direct that the sllllllS, wherever situated,
G will not be removed until one month after the end of the current
monsoon 'season, that is, until October 31,1985 and, thereafter,
only in accordance with this Judgment. If any slum is required to
be removed before that date, parties may apply to this Court.
Pavement dwellers, whether censused or uncensused, will not "!Je
removed until the sam.e date viz. October 31, 1985.
H
 OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRAC!IUD, CJ. J 99

The Writ Petitions will stand disposed of accordingly. A

There will be no order as to costs.

M.L.A. Petitions disposed -of.