Olga Tellis v. BMC : Case Analysis

    Olga Tellis v. BMC is a case on the purview of Article 21 (Right to Life) of the Constitution. The case was instituted in the Supreme Court on the basis of a cluster of petitions which challenged the BMC order of forcibly evicting the pavement dwellers from the pavements and footpaths in Bombay to their respective places of origin.

    Citation: 1986 AIR 180

    Facts

    The petitioner’s (pavement dwellers) case was that their forcible removal from the pavements would deny them the right to livelihood and thus, in turn their right to life would be violated. The petitioners on their plea had been granted an injunction by the Bombay High Court restraining the respondents’ (BMC) action till 21 July 1981. On the said date the respondents agreed not to demolish the huts till 15 October 1981. However it was alleged by the petitioners that within a few days of the grant of injunction they were being deported out of Bombay through State Transport buses. It is in response to such action by the respondents that the petitioners reached the Supreme Court. They asked the Court to declare Sections 312, 313 and 314 of the Bombay Municipal Corporation Act, 1888 to be in violation of Article 21 of the Constitution. They pleaded that removing them from the pavements will render them without any livelihood. Thus, they prayed that the respondents should be ordered to take back the decision of demolishing the pavement dwellings and to restore the possession of the demolished sites to their occupants.

    Issues Before The Court

    i) Whether right to livelihood forms a part of the right to life under Article 21 of the Constitution?

    ii) Whether Sections 312-314 of the BMC Act, 1888 are violative of Article 21 of the Constitution?

    iii) Whether the act of BMC of demolishing hutments without giving any notice and providing alternative accommodation is procedurally arbitrary and unreasonable?

    Decision Of The Court

    In their plea the pavement dwellers asserted that they have no other option than to live on the pavements and footpaths which are nearest to their place of work. This is because their economic situation does not allow them either to rent any sort of accommodation or to bear the daily transportation expenses (if they live at faraway places). Thus, if they are evicted from the pavements they will lose their livelihood which in turn would infringe their right to life. The Court accepted the factual correctness of their contention that evicting them would render them unemployed. The Court in the light of such circumstances proceeded to find if the right to life is inclusive of right to livelihood. Chief Justice YV Chandrachud referred to the case of Baksey v. Board of Regents in which J. Douglas emphasised on the right to work as the most important liberty possessed by man. He said that, “man has indeed as much right to work as he has to live, to be free….To work means to eat. It also means to live.”[1] It was observed by the Court that the right to life is not limited merely to animalistic existence and procedural safeguards for taking life. It is wide and far reaching in its scope.[2] No person can live without the means of livelihood. Thus, if the right to livelihood is not treated as a part of the right to life then the simplest way to deprive a person of his right to life would be by depriving him of his means of livelihood. Therefore, the right to livelihood is an integral part of the right to life. In order to corroborate this the Court also made an allusion to Articles 39(a) and 41 of the Constitution which are a part of the Directive Principles of State Policy (DPSP). Article 37 provides that DPSPs are not enforceable but they are nevertheless fundamental in the governance of the country. Articles 39(a) and 41 recognize the significance of right to work and make it obligatory upon the State to secure adequate means of livelihood to the citizens.

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    From answering the first question in the affirmative the Court proceeded to answer the second issue whether the specific Sections of BMC Act, 1888 infringe the fundamental right to life of the pavement dwellers. Sections 312 and 313 of the BMC Act prohibited the construction of any structure or fixture (solid movable items) upon any street, drain or over any other open channel without the permission of the Municipal Commissioner, so as to form an obstruction or encroachment. Section 314 in turn authorised the Commissioner to remove any such structure without the need to provide any notice. Section 3(w) provided that a ‘street’ includes a footway, passage etc. over which the public has a right of passage or access. The contention raised by the respondent corporation was that footpaths or pavements are public properties which are meant for the general public and their use for private purpose frustrates the very object of creating them. As the footpaths are occupied by the pavement dwellers the pedestrians are not able to use them to go to their workplaces. This in turn makes them more prone to accidents as they are forced to use main roads and highways. Also, the pavement dwellers do not have access to toilets and therefore they answer nature’s call near the pavements which leads to unhygienic conditions and spreads diseases. Their continuous presence on the pavements is an impediment to repairing of roads, drains etc. The petitioners put forth the contention that their claim to reside on the pavements and the pedestrians’ right to use the pavements for passage are competing claims and that the former should be preferred over the latter. The Court outrightly rejected this assertion and observed that no one has the right to make use of public property for private purposes without the requisite authorization. Therefore, the existence of the dwellings on the pavements is a source of nuisance to the public and Section 61 of the BMC Act puts the obligation upon the Corporation to bring down any such nuisance. Thus, the concerned Sections of the BMC Act do not violate any of the fundamental rights of the petitioners.

    The petitioners’ plea regarding the unconstitutionality of Section 314 was two-fold. Firstly, it challenged the substantial part of it which was rejected by the Court. The second basis was that the Section was procedurally arbitrary and vested too much power in the Commissioner since it explicitly authorised him/her to remove the encroachments without any notice to the pavement dwellers. The Court gave due recognition to the point that a law which deprives a person of his fundamental right must be procedurally consistent and just. The substance of the law cannot be separated from the procedure which it prescribes and thus, the reasonability of the law depends upon the fairness of its procedure. It was said that there is no fixed measure of reasonableness which can be applied to all situations. It is for the Courts to decide whether the deprivation of any fundamental rights in a given case is reasonable, fair and just. Thus, in order to decide the procedural justness/unjustness of Section 314, first, the true meaning of the Section should be determined. If the language of Section 314 is attributed its plain and natural meaning, it provides that the Commissioner ‘may’ cause an encroachment to be removed without notice. It does not say that the Commissioner ‘shall’ do the same. Section 314 is thus, in the nature of an enabling provision and not of compulsive character. That this discretion vested in the Commissioner has to be exercised in a reasonable manner so as to comply with fairness and reasonableness. The Court while delving into the principles of natural justice observed that the ordinary rule for procedure is that both parties should be given an opportunity of being heard. Section 314 is designed to exclude the natural justice principle of hearing both sides by way of exception and not as a general rule. The Court presumed that while providing such powers to the Commissioner to act without notice, the Legislature intended that the power should be exercised sparingly and only in cases of urgency where no delay could be made. That whenever required such circumstances must be shown to exist by those who claim their existence. It was urged by the Municipal Corporation that no notice needs to be provided since no reasonable excuse can be given as to why an encroachment on a public property should not be removed and that in response to the notice the pavement dwellers could respond only by saying that they have nowhere else to go. The Court, however, rejected this contention of the Corporation on the ground that it is violative of the rule of hearing in the principles of natural justice. Justice should not only be done but also appear to be done and that if any of the parties to the case is not heard it gives the appearance of injustice. 

    While referring to the case of S.L Kapoor v. Jagmohan, the Court reiterated that principles of natural Justice need to be complied with and it is not an excuse whether the observance of such principles would have made any difference to the consequences or not.[3] The Court finally observed that in this case there is no need to order the Commissioner to hear the petitioners as both sides have been amply given that opportunity by the Court itself by listening to the contentions raised by them. After considering all the contentions the Court held that the Commissioner was justified in directing the removal of the encroachments. In order to support its decision the Court once again referred to the SL Kapoor case in which it was observed that “where on indisputable facts only one conclusion is possible….. the Court may not issue a writ to compel the observance of natural justice, not because it is not necessary but because the Courts do not issue futile writs.” Thus, it was concluded that Section 314 of the BMC Act is procedurally fair and reasonable. At the end the Court passed an order which it believed that the Commissioner should have passed had he heard the petitioners. It was ordered that the petitioners should not be evicted from the pavements until one month after the end of the monsoon season (until 31 October 1985).

    Analysis

    While writing the judgement the Court has paid due respect to the helpless situation of the pavement dwellers. For the misfortune of the pavement dwellers this recognition finds its place in the obiter rather than the ratio decidendi. While the provision of giving alternative accommodation was discussed at length, the Court made it clear while prescribing the time until which they should not be removed that the eviction of the dwellers is not conditional upon them being provided with alternative accommodation. One of the petitioners, Ms. Olga Tellis (a journalist) through her affidavit pointed out that a significant factor for such condition of the pavement dwellers is that the population is not evenly distributed and the Maharashtra Government has allowed new commercial constructions in the heart of the city. Also, the State Government has not shifted its focus towards the northern part of the city due to which there is high concentration of people in the southern part. Her petition also drew attention towards the lack of job opportunities and public housing facilities. 

    The Court in this case tried to strike a proper balance between the interests of the pavement dwellers and public rights. Had the Court allowed the petitioners the right to reside on the pavements it would have caused severe barriers in developmental work and would also have led to severe inconvenience to the pedestrians. Moreover, such a decision would have been a disincentive for the State Government to construct affordable public housing facilities. This would have happened because the government could then take recourse to the decision by the Court by saying that the Court itself has recognized the living of people on pavements and thus there being no wrong in it they are freed of their obligation to provide affordable housing. On the other hand, if the Court had denied any waiting period for which the pavement dwellers should not be removed it would have been a blatant violation of their right to livelihood and, in turn, of their right to life.[4]

    However, even after its attempt to balance the two interests the judgement can be criticized on some grounds. One of the grounds can be the fact that the Court did not sufficiently recognize the government’s mismanagement of the city in the context of population, jobs and housings which had contributed to such condition of the pavement dwellers. Also, the Court somewhat underestimated the effect of evicting the pavement dwellers. Even if some time is provided to the dwellers before demolishing the settlements it does not seem reasonable that such time provides a fair opportunity to them to arrange for another accommodation and job. Even after accepting that the pavement dwellers deserve a fair right of hearing no attempt was made to appreciate that the non-requirement of giving a notice no matter how sparingly used compromises the principle of audi alteram partem. In the judgement it was said that the burden of proving that such conditions exist which justify the exclusion of the right of hearing to one of the parties is on the one who claims that such circumstances exist. This statement was qualified by the phrase “whenever required”. No attempt was made to clarify what is exactly meant by this phrase or when could the situation be understood to be requiring proof for the denial of right of hearing. This creates ambiguity and uncertainty. 

    Thus, the rationale of the Court appears to be more skewed towards attaching high significance to the written and positive law than towards its corrective powers under judicial review. One additional reason for saying this is that the BMC Act is an Act of colonial era and when it was passed there was not any such huge problem of pavement and footpath dwellers. Therefore, there was a possibility that the Court could have distinguished the present situation from what was intended by the Legislature to be covered by the Act and thereby provided some relief to the dwellers. In its entirety, the judgement appears to be caring and sympathizing with the miserable circumstances of the pavement dwellers but falls short in suggesting equitable remedies for alleviating them.

    References

    1. 347 US 442.
    2. Kharak Singh v. State of U.P, AIR 1963 SC 1295.
    3. S.L Kapoor v. Jagmohan, (1980) 4 SCC 379.
    4. Olga Tellis v BMC, “Thirty years after a landmark Supreme Court verdict, slum dwellers’ rights are still ignored”, Scroll.in, 21 December 2015, available at <https://scroll.in/article/776655/thirty-years-after-a-landmark-supreme-Court-verdict-slum-dwellers-rights-are-still-ignored> (last visited 28 October 2020).

    BY VAIBHAV YADAV | NATIONAL LAW UNIVERSITY , DELHI

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