Olga Tellis v/s Bombay Municipal Corporation

 

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.