CASE SUMMARY: OLGA TELLIS v.

BOMBAY
MUNICIPAL CORPORATION.
Name of the Case:

Olga Tellis v. Bombay Municipal Corporation.

Citation:

1985 SCC (3) 545.

Bench:

Chief Justice Y.V. Chandrachud, Justice Y.V. Chandrachud, Justice O. Chinnappa Reddy,
Justice S. Murtaza Fazal Ali and Justice V.D. Tulzapurkar.

Facts of the Case:

In the State of Maharashtra, in 1981, the Bombay Municipal Corporation decided to evict the
pavement and slum dwellers in the city of Bombay. The Chief Minister ordered their eviction
and then their deportation to the place of origin. This order was under Section 314 of the
Bombay Municipal Corporation Act. Aggrieved with this writ petition was filed in the Bombay
HIgh Court for an injunction restraining the officers of Bombay Municipal Corporation. The
High Court of Bombay granted an ad interim injunction to be in force until July 21 1981 and the
respondents agreed that the huts will not be demolished until October 15, 1981 but contrary to
the agreement, petitioners were deported out of Bombay on July 23, 1981. The respondents
challenged 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.

Issues involved:

1. Scope of Right to life and livelihood under Article 21 of the constitution.

2. Constitutionality of Section 312, 313 and 314 of the Bombay Municipal Corporation Act.

3. Question of Estoppels against fundamental rights or Waiver of Fundamental Rights.

4. Whether pavement dwellers are ‘trespasser’ under IPC?

Contention of the Parties:

Petitioners:
Petitioners contended that Right to life includes right to livelihood under Article 21 and this
eviction violates this right as evicting the dwellers from the slums and pavements deprives them
from their basic livelihood and hence unconstitutional. It was also argued that the Section 314 of
the BMCA is arbitrary and unreasonable as it includes a provision which gives absolute power to
municipal commissioner to evict the persons without requiring any prior notice.

Respondents:

Respondents contended that pavement dwellers had already conceded in High Court and had
agreed not to claim any Fundamental Rights to put up huts on the pavements and they have also
agreed to not to create hindrance in demolition of the huts after the due date.  On the question of
natural justice it was contended on behalf of the petitioner that is it viable or justifiable enough to
give this opportunity of hearing to the trespassers who have encroached on public properties?
The persons who have committed crime, do they deserve it?

Judgement:

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 court 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 Articles 39(a) and 41 of
the constitution.

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, sections 312(1) 313(1)(a) and 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 Constitution
and Fundamental Rights respectively. Individuals cannot barter away the rights granted to them
by the 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. As such a concession
harms and defeats the basic purpose of the provisions of the Constitution.

The Court on the issue of petitioners being called criminals hence do not deserve the right to be
heard, stated that before calling them trespassers under Section 441 of the IPC, 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 but 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.

Conclusion:

The result of the judgement was that the dwellers were expelled without any providing any
alternative site. The judgement since 1985, has been affirmed in certain subsequent judgements.
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 and Though court did not met the
demand of appellants in the present case but recognized that right to be heard is granted to
everyone and in the present case it has been violated. The case is stated as the example in which
civil and political rights are used to advance social rights and had enhanced the purview of a very
important right of our constitution but the problem here is that it failed to provide the right to
settlement and led to an injustice somewhere.