CASE COMMENT
Olga
Tellis v/s Bombay Municipal Corporation,1985 SCC (3) 545
Equivalent citations: AIR
1986 SC 180, 1985 SCR Supl. (2) 51 SCC (3) 545
Author: Y Chandrachud
Bench:5 Judges Bench
C. J. Y.V. Chandrachud,
A.V.Varadarajan,(J),
O.Chinnapa Reddy ,(J),
S. Murtaza Fazal Ali
V. D., Tulzapurkar
PETITIONER:............................................................................OLGA
TELLIS &ORS.
VS.
RESPONDENT:...........................................
BOMBAY MUNICIPAL CORPORATION & ORS. ETC.
DATE OF JUDGMENT- 10/07/1985
BENCH:
CHANDRACHUD, Y. V. ((CJ)
BENCH:
CHANDRACHUD, Y. V. ((CJ)
FAZALALI ,SYED MURTAZA TULZAPURKAR, V. D. REDDY, O.CHINNAPPA(J), VARADARAJAN, A. (J)
CITATION:
AIR 1986 SC 180,
1985 SCR Supl. (2) 51
1985 SCC (3) 545
Introduction
India has authenticated a abundance of historical judgments that haveprogress and made our Constitution of Indiaan personification of justice, equality and good moral sense. This case is a writ petition filed by a lady journalist Olga Tellis along with PUCL and other association under Article 32 of the Constitution of India. In the State of Maharashtra, 1981, the Bombay Municipal Corporation decided to dispossess the sidewalk and slum dwellers in the city of Bombay. The petitionchallenged the eviction of pavement inhabitants. The petitioners mollify that the order of the police under Section 314 of the Bombay Municipal Corporation Act 1888 is violative of Article 14,19, and 21 of the Constitution of India. Fundamental Rights was Olga Tellis & Ors. V. Bombay Municipal Corporation& Ors.whichinitiate as a exemplar of the democratic government of the nation. The sentence manage to scope finish the way to broaden the scope of the right to life and give up the infringement unreasonably.
JUDICIAL BACKGROUND
Article 21 of the constitution is one of the main articles included in Part lll of the Constitution of India that deals with fundamental rights. The fundamental rights listed in Part III are statutory against the state as defined in Article 12 of the Constitution of India. The Chief Minister summoned their eviction and then their dispossession to the place of origin. This writ petition was filed in the Bombay High Court for an notice restraining the officers of Bombay Municipal Corporation. The High Court of Bombay granted an pro tempore injunction to be in effect until July 21 1981 and Respondents agreed that the huts will not be desolated until October 15, 1981 but contradictory to the agreement, petitioners were expulsed out of Bombay on July 23, 1981. The respondents appealed to this order on the grounds that it violates Article 19 and 21 of the constitution also Sections 312, 313 and 314 of the Bombay Municipal Corporation Act is violative of Articles 14, 19 and 21 of the Constitution.
Provisions
of Law involved
·
Constitution of India, 1950: Articles 14, 15, 16, 19, 19(1), 21, 22, 25,
29, 32, 37, 39 and 41.
·
Indian Penal Code, 1860: Section 441.
·
Bombay Municipal Corporation Act, 1888: Sections 312, 313 and 314..
Issues
The
issues which were considered by the Hon’ble Supreme court, in this case, were
as follows:
1)
Question of Estoppels against fundamental rights or remission of
Fundamental Rights?
2)
Scope of right to life under Article 21 of the Constitution?
3)Constitutionality of
provisions of Bombay Municipal Corporation Act, 1888.
4) Whether pathway dwellers are “trespasser”
under IPC.
Facts
of the case
1)In Olga Tellis v. Bombay
Municipal Corporation [1], the state of Maharashtra in 1981 and the Bombay
Municipal Corporation decided to expel themultitude of the pavement and those
who were occupying in slums of Bombay.
2) Accordingly, the then
Chief Minister of Maharashtra, Mr A. R. Antulay directed on July 13 to expel the
residingof slumsand pavement inhabitants out of Bombay and to oust them to
their place of origin.
3) The eviction was to
proceed in conformity with Section 314 of the Bombay Municipal Corporation Act
1888.
4) On hearing about the statement
of the Chief Minister, they filed a writ petition in the High Court of Bombay
for a restrictiveorder that preventedthe officers of the State Government and
the Bombay Municipal Corporations from accomplishing the directive of the Chief Minister.
5) Upon hearing The High Court of Bombay granted
an interim order to be in force until
July 21, 1981. Respondents agreed that the shelters will not be desolated until
October 15, 1981. Contrary to the agreement, on July 23, 1981, the petitioners
wereclustered into State Transport buses for being deported from Mumbai.
6) The respondent’s action
was challenged by the petitioner prosecuting on the grounds that itviolates of
Articles 19 and 21 of the Constitution. They also appealed a Statement for a
declaration that Section 312, 313 and 314 of the Bombay Municipal Corporation
Act 1888 violateArticles 14, 19 and 21
of the Constitution.
Contentions
Arguments given by
Petitioner
The council on the
applicant’s behalf pacifythat the “right to life” authorized by Article 21 included
the right to a livelihood and if this expulsion infringes this right as evicting
the inhabitants from the slums and sidewalks, impoverishes them from theirbasic
livelihoodand its pavements, which would amount to a deficiency of his right to
life and is, therefore, unlawful.
The petitioner also conveyed
that the procedure enforced by Section 314 of the 1888 Act to eliminate invasion
on the sidewalk is erratic and irrational as it includes a contingency which
gives arbitrary power to municipal commissioner to dispossess the persons
without requiring any prior notice.
Arguments given by
Respondent
The Defence counsel explicit
that the pathway residents had already acknowledged to the High Court that they
did not claim any basic right to lodge cabins on pathways or public roads and
that they would not prevent their desolation after the calendrical date.There
can be no reduction of the Constitution or tactic abandonment of fundamental
rights.
The court explicit that no individualistic
can trade the freedoms that are imparted on him by the Constitution. A consideration
made by him in a judicial proceeding,whether by an fault of law or otherwise,
that he does not acquire or assert a concrete a fundamental right, cannot
create an estoppel against him in this proceeding or in any other ensuing procedure.
Such a concession, if enacted, would run counterforce to the purpose of the
Constitution.
DEFECTS OF THE LAW
· Provisions of section 312, 313 and 314
of the Bombay Municipal Corporation Act do not infringe the constitution, but are
innovatedin public interest and great care is taken by the administration to
ensure that no annoyance is caused to any sidewalks dwellers by implementation
the provisions; (4) that the huts near the Western Express Highway, Vile Parle.
· Bombay, we’re processed on an
accessory road which is part of the
Highway itself, and were never formalized by the association and no
registration numbers were titled to them. There can be no estoppel against the
Constitution. The Constitution is not only the supreme law of the land but, it
is the source and provisions of all laws.
Rational
· Article 39 (a) of the Constitution,
which is a supervisory principle of State policy, states that the State shall
give special deliberation to its policy in order to assuring that citizens,
both men and women, have the same right to a means of livelihood.
· Article 41, which implies another guiding principle, imposes
that the State must, within the limits of its economic capacity and its
development, efficiently guarantee the right to work in the event of
unemployment and undeserved desires. Article 37 states that the rules of
the Directive, although they cannot be applied by any Court, are notwithstanding
fundamental in the governance of the country.
· The principles set out in Articles 39 (a) and 41 must
be prudent as equally fundamental for understanding and apprehending the
meaning and content of fundamental rights. If the State was compelled to
provide citizens with adequate means of subsistence and the right to work, it
would be quite unimpeachable to exclude the right to subsistence from the
content of the right to life.
· The State cannot, by positive action, be obligated to
provide adequate means of subsistence or work to the citizens. However, anyone
deprived of his right to a means of subsistence, except in the accordance with
the fair and just procedure established by law, may challenge deprivation as a
violation of the right to life conferred by Article 21.
Inference
The residents
of the causeway were evicted without repositioning.. Since 1985, the
principles, in this case, have been recognized in many subsequent outcomes,
often leading to large-scale expelled without repositioningFor example, in considering the extremity to which their judgment was ordained
The court
considering all the sides in its judgement in the present case held that
evicted inhabitants do not have a right to substitute site and simultaneously
it also held that
·
No one has the right to intervene on trails, sidewalks or any other
place reserved for public purposes.The proviso of section 314 of the Bombay
Municipality Act is not irrational in the circumstances of this case.Sites must
be provided to diminished residents in 1976.Slums existing for 20 years or more
should not be parted unless the land is required for public purposes and, in
this case, substitute sites must be provided.There should be given high
priority to resettlement.
CONCLUSION
The conclusion
of the Supreme Court, in this case, was based on the reformist approach of the
judges and the apex court hustledinto the activist role.The Hon'ble Supreme
Court held that the slum dwellers must get the alternative shelter if they are
evicted from their pavements. The ruling of the court is still influenced with
humanitarian values because even after eviction was declared valid under
Article 14 and 19 of the Constitution, the judgement helped in enhancing the
purview of Article 21 of the constitution. The right to life was once
again enlarged to engulf the right to
livelihood as being part a of the liberty of an individual. The decision of the
court was also focused on the concept of the welfare state though not expressly
but impliedly was placed on the directive principles of state policies of the
Constitution.
The
judgement also brings attention towards the principle of utility propounded by
“Jeremy Bentham”. The principle states that any action taken should be “the
greatest happiness of the greatest number”. Though the court recognized the
current law in this judgement, it did try to uphold this principle and made it
essential that dwellers do have the right to be heard and prior notice is
needed. Also did not consider them criminal trespassers. The decision widened
the scope of right to life. According to the chief justice of the court, Y.V.
Chandrachud, although the petitioners are using unauthorized pavements and
public property, are not in any way criminal intruders under Section 441 of the
Criminal Code of India, since their objective or reason for doing so is not to
commit a crime or annoys or insults any person. This decision where the scope
of the term “life was extended, has also paved the way for the reform of
substantive law.
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