Facts Of The Case:
In 1981, all the inhabitants of the city of Bombay's slums and pavement were
ordered to leave by the state of Maharashtra and the Bombay Municipal
Corporation. These pavement dwellers were individuals and families who had built
makeshift homes on the sidewalks and footpaths for a number of socioeconomic
reasons. The Bombay Municipal Corporation deemed these houses, which were
frequently made from temporary materials such as tarpaulin sheets, wood, or
corrugated iron, to be unauthorized structures. Accordingly, on July 13, the
then Chief Minister of Maharashtra, Mr. A. R. Antulay, gave the order to evict
slum and pavement residents from Bombay and deport them to their native land.
The Bombay Municipal Corporation claimed that these pavement houses created a
number of concerns, including blocking of public spaces, traffic congestion, and
environmental and health hazards. The corporation stated that these structures
were unclean and unsafe and that their demolition was necessary for maintaining
public health and safety.
The planned eviction included the dismantling of these
unauthorized dwellings, leaving the pavement dwellers with no alternative
housing or shelter. The residents then filed a writ petition along with Olga Tellis, a social worker and activist, in the Supreme Court of India seeking an
order of injunction prohibiting the officers of the State Government and the
Bombay Municipal Corporation from carrying out the Chief Minister's order after
learning of his declaration.
Since being in the city allowed them to earn a
living and required suitable resettlement if the evictions occurred, the
residents argued that such a move would violate their right to life. They argued
that the proposed eviction violated their right to life and livelihood under
Article 21 of the Constitution.
They argued that the right to life entails more
than just survival and includes the right to live with dignity, security, and
basic amenities such as shelter. An ad-interim injunction was passed by the High
Court of Bombay, and it will be in effect until July 21, 1981. The respondents
concurred that the huts won't be taken down until October 15, 1981. In violation
of the agreement, petitioners were packed into State Transport buses on July 23,
1981, and expelled from Bombay.
Title: Olga Tellis And Others V. Bombay Municipal Corporation And Others,
Citation: Air 1986 Sc 180
Date Of Judgment: March 10, 1985
Bench: C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J.,
S. Murtaza Fazal Ali And J., V.D. Tulzapurkar
Issues Of The Case:
- Article 19 of the Constitution of India states that every individual should be provided equality before law and equal protection of law without any discrimination on the ground of religion, sex, caste, race, and place of birth.
- Article 19(1)(e) provides the right to reside and settle in any part of the territory of India.
- Article 19(1)(g) provides freedom to practice any profession or to carry on any occupation, trade, and business.
- Article 21 provides for the protection of life and personal liberty.
- Article 32 provides the remedies for enforcement of rights conferred.
- SECTION 441 of the Indian Penal Code, 1860 states that whoever enters into or upon property in the possession of another with intent to commit an offense or to intimidate, insult, or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult, or annoy any such person, or with intent to commit an offense, is said to commit "criminal trespass".
- Sections 312, 313, and 314 of the Bombay Municipal Corporation Act (BMCA), 1888.
- SECTION 312 of the Bombay Municipal Corporation Act (BMCA), 1888 states that no person shall, except with the permission of the Commissioner under Section 310 or 317, erect or set up any wall, fence, rail, post, step, booth, or other structure or fixture in or upon any street or upon or over any open channel, drain, well, or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion of such street, channel, drain, well, or tank.
- SECTION 313 of the Bombay Municipal Corporation Act (BMCA), 1888 states that no person shall, except with the written permission of the Commissioner,-
- (a) place or deposit upon any street or upon any open channel, drain, or well in any streets [or in any public place] any stall, chair, bench, box, ladder, bale, or other thing so as to form an obstruction thereto or encroachment thereon;
- (b) project, at a height of less than twelve feet from the surface of the street, any board, or shelf, beyond the line of the plinth of any building, over any street, or over any open channel, drain, well, or tank in any street;
- (c) attach to, or suspend from, any wall or portion of a building abutting on a street, at a less height than aforesaid, anything whatever.
- SECTION 314 of the Bombay Municipal Corporation Act (BMCA), 1888 states that the Commissioner may, without notice, cause to be removed:
- Any wall, fence, rail, post, step, booth or other structure or fixture
which shall be erected or set up in or upon any street, or upon or over any
open channel, drain, well or tank contrary to the provisions of sub-section
(1) of section 312, after the same comes into force [in the city or in the
suburbs, after the date of the coming into force of the Bombay Municipal
(Extension of Limits) Act, 1950 [or in the extended suburbs after the date
of the coming into force of the Bombay Municipal (Further Extension of
Limits and Schedule BBA
(Amendment)] Act, 1956]
- Any stall, chair, bench, box, ladder, bale, board or shelf, or any other
thing whatever placed, deposited, projected, attached, or suspended in,
upon, from or to any place in contravention of sub-section (1) of section
- [Any Article whatsoever hawked or exposed for sale in any public place
or in any public street in contravention of the provisions of section 313A
and any vehicle, package, box, board, shelf or any other thing in or on
which such Article is placed or kept for the purpose of sale.]
Contentions Of The Petitioners:
- Violation Of The Right To Life
The petitioners argued that the Bombay Municipal Corporation(BMC) planned
eviction and demolition of their homes violated their fundamental right to
life under Article 21 of the Indian Constitution. They contended that the
right to life includes more than just physical existence and includes the
right to live with dignity, security, and basic necessities. The petitioners
claimed that evicting them would deprive them of their fundamental human
They contended that having access to shelter and a safe place to
live is an essential component of living a meaningful and dignified life.
They emphasized that if they did not have a proper place to dwell, they
would be exposed to many difficulties such as harsh weather, crime, and
- Right To Livelihood
The petitioners argued that their right to livelihood was inextricably
linked to their current residence, the pavement dwellings. They maintained
that eviction without alternative housing would not only make them homeless
but would also deprive them of their means of earning a living. They
highlighted that many of them were involved in economic activities such as
street vending, small businesses, or daily wage work near their homes. They
claimed that the proximity of their residences to places where they could
find work was important to their livelihoods.
Without suitable alternatives,
the eviction would disrupt their economic stability, resulting in
unemployment, financial distress, and increased marginalization. The
petitioners emphasized that the right to livelihood was not only an economic
right but also a constitutional guarantee that allowed them to support
themselves and their families. They argued that the eviction without
alternative housing and income options would violate their right to earn a
living and create a cycle of poverty.
- Lack Of Alternative Accommodation
The petitioners touched upon a serious issue with the Bombay Municipal
Corporation lack of alternate accommodation or rehabilitation efforts. They
maintained that the state had duties to people impacted by eviction to
mitigate the adverse impacts of eviction by providing suitable alternative
houses. The petitioners claimed that the Bombay Municipal Corporation
failure to provide alternative accommodation left them without an
appropriate resettlement option. They claimed that the lack of alternatives
violated their rights since it would result in homelessness and increased
They claimed that the state was responsible for ensuring the right to
shelter and ensuring that impacted individuals did not leave without a place
to live. The petitioners emphasised that the Bombay Municipal Corporation,
as a public authority, owed duty to the marginalised and vulnerable parts of
society to satisfy their housing needs. They maintained that, considering
the impact the eviction would have on the lives of the pavement dwellers,
the state should have made enough accommodations for alternative housing or
rehabilitation before beginning the eviction process.
Contentions Of The Defendants:
- Public Health And Safety
The Bombay Municipal Corporation claimed that the petitioner's pavement
houses were illegal and posed significant risks to public health and safety.
They claimed that these structures blocked public places, caused traffic
congestion, and contributed to the city's filthy atmosphere. The Bombay
Municipal Corporation maintained that the eviction was necessary to address
these concerns while maintaining the city clean and orderly.
- Municipal Regulations And Urban Development
The Bombay Municipal Corporation alleged that the pavement dwellings
violated municipal regulations and norms. They contended that allowing
unauthorised buildings to stay on public sidewalks and pathways would set a
poor precedent and hamper the city's efforts towards planned urban
development. The Bombay Municipal Corporation said that the eviction was
necessary to enforce the regulations while ensuring compliance with the
city's development goals.
- Improving Living Conditions
The Bombay Municipal Corporation claimed that the eviction will eventually
lead to an improvement in the city's residents' living standards. They
argued that by removing unauthorised pavement houses, the Bombay Municipal
Corporation will be able to handle issues such as traffic congestion,
sanitation problems, and environmental hazards. The Bombay Municipal
Corporation stated that the eviction will benefit the city's residents by
providing a more organised and hygienic urban environment.
The Supreme Court held that the Right to Life has a much wider scope; it doesn't
only mean that life cannot be threatened except a procedure established by law
but, as this definition restricts its ambit. The recognized that livelihood
forms a basis of Right to Life as no person can sustain life without livelihood.
Not including livelihood in Fundamental Rights is the easiest way to harm the
spirit of Article 21.
The Court added that deprivation of persons from this
right should only be in accordance with law as depriving from this right can
lead to deprivation of Right to Life of a person and not including it in Right
to Life is also in contradiction of Article 39(a) and Article 41 of the Indian
The Supreme Court, while establishing more stress on the inclusion of livelihood
in Article 21, also made it clearly visible that such laws can definitely be
deprived by a procedure established according to law. Thus SECTION 312(1)(a) and
SECTION 314 which empowers commissioner to remove encroachments from footpaths
and public places cannot be regarded as unjust and unreasonable as these
Sections are not against the principle of natural justice but these are acting
as exception rule(as the procedure established by law in certain circumstances).
Hence, it is not arbitrary.
The Court further held that there can never be an estoppel and waiver against
the Indian Constitution and Fundamental Rights respectively. Individuals cannot
barter away the rights granted to them by the Indian Constitution. Any such
concession made in any hearing whether under a mistake of law or otherwise,
cannot lead to an estoppel for him in any further proceedings.
The Court on the issues of petitioners being called criminals hence do not
deserve the right to be heard, stated that before calling them trespassers under
SECTION 441 of Indian Penal Code, 1860, there is a need to understand the
essential elements of trespassing. The elements are to "commit an offence or
intimidate, insult or annoy any person". But in this situation none of these
elements are met.
These encroachments are just an involuntary act which these people are compelled
to do because of their grim life situations. Though trespassing is tort, even in
the Law of Torts the force used against the trespasser to expel him should be
reasonable enough and a proper time and opportunity to leave should be given to
him in such conditions.
The judgment reflects the 'Principle of Utility' propounded by J. Jeremy Bentham.
According to Bentham, happiness can be maximized, only if the instances of pain
are lighter and fewer. The judgment delivered by the Hon'ble Court can be said
as a replica of the idea embodied in the 'Principle of Utility'. Slum and
pavement dwellers constitute almost half of the total population of the Bombay.
The Court ordered that:
Analysis Of The Case:
- People do not have the right to encroach on footpaths, pavements or any other place reserved or declared for public purpose.
- In the current circumstances, section 314 of the Bombay Municipal Corporation is not unreasonable.
- Residents censored in 1976 should be provided with sites.
- Those slums which had existed for 20 years or more could not be removed unless land was required for certain public purposes, and in such cases alternative sites to be provided.
- High priority should be given to resettlement.
The Olga Tellis v Bombay Municipal Corporation is one of the landmark cases
which has been encountered by the Indian Judiciary. In this case, the court has
taken proper care and given respect to the helpers' situation of pavement
dwellers. The court took due notice to accommodate the dwellers at another place
and also prescribed time until which they should not be evicted.
The problem of unequal distribution of the population was discussed where the
petitioner Olga tells argued that due to not shifting of state office to
northern part there has been concentration at southern part hence affecting the
jobs and people residing near to it. In this decision, the Court attempted to
find a suitable balance between pavement dwellers interests and public rights.
If the Court had granted the petitioners the right to live on the sidewalks, it
would have hampered development efforts and caused significant hardship to
In addition, the State Government's plan to develop inexpensive public homes
would have been a deterrent. This would have occurred because the government may
then appeal the Court's ruling, claiming that the Court has acknowledged the
right of individuals to live on the streets, and so they are relieved of their
commitment to providing cheap housing.
On the other hand, if the Court had refused any waiting period during which the
pavement dwellers should not be removed, it would have been a flagrant
infringement of their right to a living and, by extension, their right to life.
In an attempt to balance the interest of both parties it created a lacuna in the
judgment and its procedure. The court ignored the mismanagement of government in
the context of jobs, population, and employment which in the first place led to
the creation of dwellings.
Even if the dwellers were provided with time but it was not enough and
reasonable as they could not arrange another place to stay and find new jobs
around their living location. Even after admitting that pavement dwellers need a
fair hearing, no attempt was made to recognize that the absence of a notice
requirement, no matter how sparingly utilized, undermines the principle of audi
The justification of the Court thus seems less appropriate than its remedial
powers in the judicial review to place great importance on the written and
positive law. Another reason for this is because the Bombay Municipal
Corporation Act is a colonial-era act, and when it was passed, there was no such
massive problem of pavement and footpath squatters.
As a result, there was a chance that the Court may have separated the current
situation from what the Legislature intended to be covered by the Act and so
granted some relief to the residents. The judgment seems entirely concerned and
sympathetic to the awful conditions of pavement inhabitants but does not provide
fair solutions to reduce them.
The goal of the ruling in Olga Tellis and Others v Bombay Municipal
, handed down on July 10, 1985, was to ensure that slum people
may be rehabilitated in their homes. According to the ruling, assigning
alternative residence locations far away from where they had pitched their
shanties would force them to commute long distances to their places of work,
denying them the ability to earn a living.
This judgment was passed when the Indian economy was on a verge of change, as in
1991 LPG policy would have been implemented and there would have been a surge of
rural people in metropolitan cities in search of livelihood which was the core
of the judgment and which was now considered to be inevitable and full of growth
To argue, as several High Courts have recently done, that slum dwellers deserve
to live in comfort and that it is only fair to rehabilitate them even if it is
far away from where they lived is not only judicial indiscipline but also goes
against the empathy that was central to the Olga Tellis decision. This new trend
of sanctioning rehabilitation in faraway locations rather than in situ is
motivated by a mindset that believes it is acceptable to relocate slum residents
far away from their places of work because they will be able to live in comfort
there rather than in filth and poverty.