10 Judgements that Changed

India | Olga Tellis vs BMC Case

By Sumiet More
• In Olga Tellis v. Bombay Municipal Corporation , the state
of Maharashtra in 1981 and the Bombay Municipal
Corporation decided to evict the pavement dwellers and
those who were residing in slums in Bombay.
• Pursuant to that, the then Chief Minister of Maharashtra
Mr A. R. Antulay ordered on July 13 to evict slum dwellers
and pavement dwellers out of Bombay and to deport them
to their place of origin.
• The eviction was to proceed under Section 314 of the
Bombay Municipal Corporation Act 1888.
• On hearing about the Chief Minister’s announcement they
filed a writ petition in the High Court of Bombay for an
order of injunction restraining the officers of the State
Government and the Bombay Municipal Corporations
from implementing the directive of the Chief Minister.
• The High Court of Bombay granted an ad interim
injunction to be in force until July 21, 1981.
• Respondents agreed that the huts will not be demolished
until October 15, 1981.
• Contrary to agreement, on July 23, 1981, petitioners were
huddled into State Transport buses for being deported out
of Bombay.
• The respondent’s action was challenged by the petitioner
on the grounds that it is violative of Articles 19 and 21 of
the Constitution.
• They also asked for a declaration that Section 312, 313
and 314 of the Bombay Municipal Corporation Act 1888 is
violative of Articles 14, 19 and 21 of the Constitution.
• Issues involved
• The issues which were considered by the Hon’ble
Supreme court:
• Question of Estoppels against fundamental rights or
Waiver of Fundamental Rights?
• Scope of right to life under Article 21 of the Constitution?
• Constitutionality of provisions of Bombay Municipal
Corporation Act, 1888.
• Whether pavement dwellers are “trespasser” under IPC.
• Arguments
• Respondent
• Defence counsel stated that the pavement residents had
admitted to the High Court that they did not claim any
basic right to install cabins on sidewalks or public roads
and that they would not prevent their demolition after the
scheduled date.
• Petitioners

• The council on the applicant’s behalf argued that the

“right to life” guaranteed by Article 21 included the right to
a means of subsistence and that he would be deprived of
his livelihood if he were expelled from his slums.
• Which would amount to a deprivation of their rights.
• Observations of the Court
• The court said: “No individual can trade the freedoms that
are conferred on him by the Constitution.
• A concession made by him in a proceeding, whether by
an error of law or otherwise, that he does not possess or
assert a particular fundamental right, cannot create an
estoppel against him in this proceeding or in any other
subsequent procedure.
• Such a concession, if implemented, would run counter to
the purpose of the Constitution.“
• Court observed

• “The right to life conferred by section 21 is vast and far-

reaching.
• It does not simply mean that life can be extinguished or
removed only in accordance with the procedure
established by law.
• This is just one aspect of the right to life.
• The right to livelihood is an equally important aspect of
this right because no one can live without means of
subsistence.
• However, the Court added, such deprivation should not
necessarily be in accordance with the procedure
established by law if the right to livelihood is not
considered to be part of the right to life.
• In light of Article 39(a) and 41, it would be pedantry to
exclude the right to livelihood from the content of the right
to life.”
• Petitioner argued that the procedure prescribed by
Section 314 of the 1888 Act to eliminate encroachment on
the sidewalk is arbitrary and unreasonable, since not only
does it not provide for notification prior to the elimination
of encroachment, but it also provides that The municipal
commissioner can ensure that the encroachment is
removed “without notice”.
• Court held
• Sections 312(1), 313(1)(a), and 314 empower the
Commissioner of Municipalities to stop encroachment on
trails where the public has the right to pass, can not be
considered unreasonable, unjust or unjust.
• Decision
• Although the Court refused to conclude that the expelled
inhabitants were entitled to an alternative site, it ordered
that:

• No one has the right to encroach on trails, sidewalks or

any other place reserved for public purposes.
• The provision of section 314 of the Bombay Municipality
Act is not unreasonable in the circumstances of this case.
• Sites must be provided to censored residents in 1976.
• Slums existing for 20 years or more should not be
removed unless the land is required for public purposes
and, in this case, alternate sites must be provided.
• High priority should be given to resettlement.
• The case of the Narmada Dam, adequate resettlement
was ordered, but most of the evicted persons affected
were not properly resettled and the majority of the Court
refused to
• Outcomes
• The inhabitants of the causeway were expelled without
relocation.
• Since 1985, the principles, in this case, have been
affirmed in many subsequent decisions, often leading to
large-scale evictions without resettlement.
• Critical Analysis

• The large population of the petitioners (slum dwellers and

pavement dwellers) through this class action, compelled
the Court to pen down conditionalities and due process
before eviction.
• This was despite the existence of specific law that
provides for the eviction of such pavement dwellers and
slum dwellers (Bombay Municipal Corporation Act 1988).
• Section 312, 313 and 314 of the Bombay Municipal
Corporation Act 1988 deals with prohibition on housing
and depositions of various items on the pavements by the
dwellers.
• In this judgement, the Court held that although the
petitioners were using pavements and public properties
unauthorisedly, they are in no way “criminal trespassers”
under section 441 of the Indian penal code since their
object or reasons for doing so was/is not to commit any
offence or intimidate, insult or annoy any person.
• Rather they are/ were compelled by inevitable
circumstances and are not guided by choice.
• Much of these findings would be relevant to assess
whether or not due process was followed before/during
the Shakur basti and Balegaon demolitions in Delhi in
October and December 2015.
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