olga tellis.doc

PETITIONER:

OLGA TELLIS & ORS.

Vs.

RESPONDENT:

BOMBAY MUNICIPAL CORPORATION & ORS. ETC.

DATE OF JUDGMENT10/07/1985

BENCH:

CHANDRACHUD, Y.V. ((CJ)

BENCH:

CHANDRACHUD, Y.V. ((CJ)

FAZALALI, SYED MURTAZA

TULZAPURKAR, V.D.

REDDY, O. CHINNAPPA (J)

VARADARAJAN, A. (J)

CITATION:

1986 AIR 180 1985 SCR Supl. (2) 51

1985 SCC (3) 545 1985 SCALE (2)5

CITATOR INFO :

F 1986 SC 204 (11)

RF 1986 SC 847 (12)

D 1989 SC 38 (13)

D 1989 SC1988 (8,20,21)

R 1990 SC1480 (41,109)

F 1991 SC 101 (23,32,223,239,258)

RF 1991 SC1117 (5)

RF 1991 SC1902 (24)

E 1992 SC 789 (13)

ACT:

Constitution of India, 1950 :

Article 32 - Fundamental Rights - Estoppel - Principle

behind - No estoppel can be claimed against enforcement of

Fundamental Rights.

Article 21, 19(1) (e) & (g) - Pavement and slum

dwellers Forcible eviction and removal of their hutments

under Bombay Municipal Corporation Act - Whether deprives

them of their means of livelihood and consequently right to

life - Right to life - Meaning of - Whether includes right

to livelihood.

Article 32 & 21 - Writ Petition against procedurally

ultra vires Government action - Whether maintainable.

Bombay Municipal Corporation Act, 1888, s.314 - Power

to remove encroachments "without notice , when permissible -

Section - Whether ultra vires the Constitution.

Administrative Law - Natural Justice - Audi alteram

partem - Notice - Discretion to act with or without notice

must be exercised reasonably, fairly and justly - Natural

justice - Exclusion - How far permissible.

HEADNOTE:

The petitioners in writ petitions Nos. 4610-12/81 live

on pavements and in slums in the city of Bombay. Some of the

petitioners in the second batch of writ petitions Nos.5068-

79 of 1981, are residents of Kamraj Nagar, a basti or

habitation which is alleged to have come into existence in

about 1960-61, near the Western Express Highway, Bombay,

while others are residing in structures constructed off the

Tulsi Pipe Road, Mahim, Bombay. The Peoples Union for Civil

Liberties, Committee for the Protection of Democratic Rights

and two journalists have also joined in the writ petitions.

Some time in 1981, the respondents - State of

Maharashtra and Bombay Municipal Corporation took a decision

that all pavement dwellers and the slum or busti dwellers in

the city of Bombay will be evicted forcibly and deported to

their respective places of origin or removed to places

outside the city of Bombay. Pursuant to that decision, the

pavement dwellings of some of the petitioners were in fact

demolished by the Bombay Municipal Corporation. Some of the

petitioners challenged the aforesaid decision of the

respondents in the High Court. The petitioners conceded

before the High Court that they could not claim any

fundamental right to put up huts on pavements or public

roads, and also gave an undertaking to vacate the huts on or

before October, 15, 1981. On such undertaking being given,

the respondents agreed that the huts will not be demolished

until October 15, 1981 and the writ petition was disposed of

accordingly.

In writ petitions filed under Article 32, the

petitioners challenged the decision of the respondents to

demolish the pavement dwellings and the slum hutments on the

grounds (i) that evicting a pavement dweller from his

habitat amounts to depriving him of his right to livelihood,

which is comprehended in the right guaranteed by Article 21

of the Constitution that no person shall be deprived of his

life except according to procedure established by law, (ii)

that the impugned action of the State Government and the

Bombay Municipal Corporation is violative of the provisions

contained in Article 19(1)(3), 19(1)(g) and 21 of the

Constitution, (iii) that the procedure prescribed by Section

314 of the Bombay Municipal Corporation Act, 1888 for the

removal of encroachments from pavements is arbitrary and

unreasonable since, not only does it not provide for the

giving of a notice before the removal of an encroachment

but, expressly enables that the Municipal Commissioner may

cause the encroachments to be removed without notice , (iv)

that it is constitutionally impermissible to characterise

the pavement dwellers as 'trespassers', because their

occupation of pavements arises from economic compulsions;

and (v) that the Court must determine the content of the

'right to life', the function of property in a welfare

state, the dimension and true meaning of the constitutional

mandate that property must subserve common good, the sweep

of the right to reside and settle in any part of the

territory of India which is guaranteed by Article 19(1) (a)

and the right to carry on any occupation, trade or business

which is guaranteed by Article 19(1) (g), the competing

claims of pavement dwellers on the one hand and of the

pedestrians on the other and, the larger question of

ensuring equality before the law.

The respondents contested the writ petitions contending

that (1) the petitioners must be estopped from contending in

the Supreme Court that the huts constructed by them on the

pavements cannot be demolished because of their right to

livelihood, since they had conceded in the High Court that

they did not claim any fundamental right to put up huts on

pavements or public roads and had given an undertaking to

the High Court that they will not obstruct the demolition of

the huts after October 15, 1981.; (2) that no person has any

legal right to encroach upon or to construct any structure

on a foot-path, public street or on any place over which the

public has a right of way. The right conferred by Article

19(1) (e) of the Constitution to reside and settle in any

part of India cannot be read to confer a licence to

encroach and trespass upon public property; (3) that the

provisions of sections 312, 313 and 314 of the Bombay

Municipal Corporation Act do not violate the Constitution,

but are conceived in public interest and great care is taken

by the authorities to ensure that no harassment is caused to

any pavement dweller by enforcing the provisions; (4) that

the huts near the Western Express Highway, Vile Parle,

Bombay, were constructed on an accessory road which is a

part of the Highway itself, and were never regularised by

the Corporation and no registration numbers were assigned to

them; (5) that no deprivation of life, either directly or

indirectly is involved in the eviction of the slum and

pavement dweller from public places. The Municipal

Corporation is under an obligation under section 314 of the

B.M.C. Act to remove obstruction on pavements, public

streets and other public places. The petitioners have not

only violated the provisions of the Bombay Municipal

Corporation Act, but they have contravened sections 111 and

115 of the Bombay Police Act also.

Disposing of the writ petitions,

HELD: 1.1 The petitions are clearly maintainable under

Article 32 of the Constitution. Where the action taken

against a citizen is procedurally ultra vires, the aggrieved

party can move the Supreme Court under Article 32. [79 C-D]

Naresh Shridhar Mirajkar v. State of Maharashtra [1966]

3 S.C.R. 744-770, followed.

Smt. Ujjam Bai v. State of Uttar Pardesh. [1963] 1

S.C.R. 778, referred to.

1.2 There can be no estoppel against the Constitution.

The Constitution is not only the paramount law of the land

but, it is the source and sustenance of all laws. Its

provisions are conceived in public interest and are intended

to serve a public purpose. The doctrine of estoppel is based

on the principle that consistency in word and action imparts

certainty and honesty to human affairs. If a person makes

representation to another, on the faith of which the latter

acts to is prejudice, the former cannot resile from the

representation made by him. He must make it good. This

principle can have no application to representations made

regarding the assertion or enforcement of fundamental

rights. [77 C-E]

1.3 Fundamental rights are undoubtedly conferred by the

Constitution upon individuals which have to be asserted and

en forced by them, if those rights are violated. But, the

high purpose which the Constitution seeks to achieve by

conferment of fundamental rights is not only to benefit

individuals but to secure the larger interests of the

community. The Preamable of the Constitution says that India

is a democratic Republic. It is in order to fulfil the

promise of the Preamble that fundamental rights are

conferred by the Constitution, some on citizens like those

guaranteed by Articles 15, 16, 19, 21 and 29 and, some on

citizens and non-citizens alike, like those guaranteed by

Articles 14, 21, 22 and 25 of the Constitution. No

individual can barter away the freedoms conferred upon him

by the Constitution. A concession made by him in a

proceedings, whether under a mis take of law or otherwise,

that he does not possess or will not enforce any particular

fundamental right, cannot create an estoppel against him in

that or any subsequent proceedings. Such a concession, if

enforced, would defeat the purpose of the Constitution. [77

F-H, 78 A-B]

The plea of estoppel is closely connected with the plea

of waiver, the object of both being to ensure bona fides in

day-to day transactions. [78 D]

In the instant case, notwithstanding the fact that the

petitioners had conceded in the Bombay High Court that they

have no fundamental right to construct hutments on pavements

and that they will not object to their demolition after

October 15, 1981, they are entitled to assert that any such

action on the part of public authorities will be in

violation of their fundamental rights. How far the argument

regarding the existence and scope of the right claimed by

the petitioners is well-founded is

another matter- But, the argument has to be examined despite

the concession. [78 C-D]

Basheshar Nath v. The Commissioner of Income Tax Delhi

(1959) Supp. 1 S.C.R. 528, referred to.

2.1 The sweep of the right to life conferred by Article

21 is wide and far reaching. It does not mean merely that

life cannot be extinguished or taken away as, for example,

by the imposition and execution of the death sentence,

except according to procedure established by law. That is

but one aspect of the right to life. An equally important

facet of that right is the right to livelihood because, no

person can live without the means of living, that is, the

means of livelihood. If the right to livelihood is not

treated as a part of the constitutional right to live, the

easiest way of depriving a person of his right to life would

be to deprive him of his means of livelihood to the point of

abrogation. Such deprivation would not only denude the life

of its effective content and meaningfulness but it would

make life impossible to live. And yet, such deprivation

would not have to be in accordance with the procedure

established by law, if the right to livelihood is not

regarded as a part of the right to life. That, which alone

makes it possible to live, leave aside what makes like

livable, must be deemed to be an integral component of the

right to life. [79 F-H, 80 A-B]

2.2 The principles contained in Articles 39(a) and 41

must be regarded as equally fundamental in the understanding

and interpretation of the meaning and content of fundamental

rights. If there is an obligation upon the State to secure

to the citizens an adequate means of livelihood and the

right to work, it would be sheer pedantry to exclude the

right to livelihood from the content of the right to life.

The State may not, by affirmative action, be compellable to

provide adequate means of livelihood or work to the

citizens. But, any person who is deprived of his right to

livelihood except according to just and fair procedure

established by law, can challenge the deprivation as

offending the right to life conferred by Article 21. [80 G-

H, 81 A]

Munn v. Illinois [1877] 94 US 113 and Kharak Singh v.

The State of U.P. [1964] 1 S.C.R. 332 referred to.

In Re: Sant Ram (1960) 3 S.C.R. 499, distinguished.

2.3 In a matter like the one in which the future of

half of the city's population is at stake, the Court must

consult authentic empirical data compiled by agencies,

official and non-official. It is by that process that the

core of the problem can be reached and a satisfactory

solution found. It would be unrealistic on the part of the

Court to reject the petitions on the ground that the

petitioners have not adduced evidence to show that they will

be rendered jobless if they are evicted from the slums and

pavements. Common sense, which is a cluster of life's

experiences, is often more dependable than the rival facts

presented by warring litigants. [82 B-C]

In the instant case, it is clear from the various

expert studies that one of the main reasons of the emergence

and growth of squatter-settlements in big Metropolitan

cities like Bombay, is the availability of job opportunities

which are lacking in the rural sector. The undisputed fact

that even after eviction, the squatters return to the cities

affords proof of that position. These facts constitute

empirical evidence to justify the conclusion that persons in

the position of petitioners live in slums and on pavements

because they have small jobs to nurse in the city and there

is nowhere else to live. Evidently, they choose a pavement

or a slum in the vicinity of their place of work, the time

otherwise taken in commuting and its cost being forbidding

for their slender means. To lose the pavement or the slum is

to lose the job. The conclusion, therefore, in terms of the

constitutional phraseology is that the eviction of the

petitioners will lead to deprivation of their livelihood and

consequently to the deprivation of life. [82 D, 83 B-D]

3.1 The Constitution does not put an absolute embargo

on the deprivation of life or personal liberty. It is far

too well settled to admit of any argument that the procedure

prescribed by law for the deprivation of the right conferred

by Article 21 must be fair, just and reasonable. Just as a

mala fide act has no existence in the eye of law, even so,

unreasonableness vitiates law and procedure alike. It is

therefore essential that the procedure prescribed by law for

depriving a person of his fundamental right, must conform to

the means of justice and fair play. Procedure, which is

unjust or unfair in the circumstances of a case, attracts

the vice of unreasonableness, thereby vitiating the law

which prescribes that procedure and consequently, the action

taken under it. Any action taken by a public authority which

is invested with statutory powers has, therefore, to be

tested by the application of two standards: The action must

within the scope of the authority conferred by law and

secondly, it must be reasonable. If any action, within the

scope of the authority conferred by law, is found to be

unreasonable, it must mean that the procedure established by

law under which that action is taken is itself unreasonable.

The substance of the law cannot be divorced from the

procedure which it prescribes for, how reasonable the law

is, depends upon how fair is the procedure prescribed by it.

[83 E, 85 F-H, 86 A]

3.2 In order to decide whether the procedure prescribed

by section 314 is fair and reasonable, the Court must first

determine the true meaning of that section because, the

meaning of the law determines its legality. Considered in

its proper perspective, section 314 is in the nature of an

enabling provision and not of a compulsive character. It

enables the Commissioner in appropriate cases, to dispense

with previous notice to persons who are likely to be

affected by the proposed action. It does not require and,

cannot be read to mean that, in total disregard of the

relevant circumstances pertaining to a given situation, the

Commissioner must cause the removal of an encroachment

without issuing previous notice. The primary rule of

construction is that the language of the law must receive

its plain and natural meaning. What section 314 provides is

that the Commissioner may, without notice, cause an

encroachment to be removed. It does not command that the

Commissioner, shall without notice, cause an encroachment to

be removed. Putting it differently, section 314 confers on

the Commissioner the discretion to cause an encroachment to

be removed with or without notice. That discretion has to be

exercised in a reasonable manner so as to comply with the

constitutional mandate that the procedure accompanying the

performance of a public act must be fair and reasonable. The

Court must leen in favour of this interpretation because it

helps sustain the validity of the law. Reading section 314

as containing a command not to the issue before the removal

of an encroachment will make the law invalid. [88 H, 89 A-D]

3.3 Section 314 is so designed as to exclude the

principles of natural justice by way of exception and not as

a general rule. There are situations which demand the

exclusion of the rules of natural justice by reason of

diverse factors like time, place, the apprehended danger and

so on. The ordinary rule which regulates all procedure is

that persons who are likely to be affected by the proposed

action must be afforded an opportunity of being heard as to

why that action should not be taken. The hearing may be

given individually or collectively, depending upon the facts

of each situation. A departure from this fundamental rule of

natural justice may be presumed to have been intended by the

Legislature only in circumstances which warrant it. Such

circumstances must be known to exist, when so required, the

burden being upon those who affirm their existence. [89 E-G]

3.4 The proposition that notice need not be given of a

pro posed action because, there can possibly be no answer to

it, is contrary to the well-recognized understanding of the

real import of the rule of hearing. That proposition

overlooks that justice must not only be done but must

manifestly be seen to be done and confuses one for the

other. The appearance of injustice is the denial of justice.

It is the dialogue with the person likely to be affected by

the proposed action which meets the requirement that justice

must also be seen to be done. Procedural safeguards have

their historical origins in the notion that conditions of

personal freedom can be preserved only when there is some

institutional check on arbitrary action on the part of the

public authorities. The right to be heard has two facets,

intrinsic and instrumental. The intrinsic value of that

right consists in the opportunity which it gives to

individuals or groups, against whom decision taken by public

authorities operate, to participate in the processes by

which those decisions are made, an opportunity that

expresses their dignity as persons. [90 H, 91 A-D]

E.P. Royappa v. State of Tamil Nadu [1974] 2 S.C.R.

348, Maneka Gandhi v. Union of India [1978] 2 S.C.R. 621,

M.O. Hoscot v. State of Maharashtra [1979] 1 S.C.R. 192,

Sunil Batra, I v. Delhi Administration [1979] 1 S.C.R. 392,

Sita Ram. State of U.P. [1979] 2 S.C.R. 1085, Hussainra

Khatoon, I v. Home Secret any State of Bihar, Patna [1979] 3

S.C.R. 532,537. Husinara Khatoon,II v. Home Secretary State

of Bihar, Patna [1980] 1 S.C.C. 81 Sunil Batra, II. v. Delhi

Administration [1980] 2 S.C.R. 557, Jolly George Verghese v.

The Bank of Cochin [1980] 2 S.C.R. 913, 921-922. Kasturi Lal

Lakshmi Redy v. State of Jammu & Kashmir [1980] 3 S.C.R.

1338, 1356, Francis Coralie Muliin v. The Administrator

Union Territory of Delhi [1981] 2 S.C.R. 516, 523-524, The

Influence of Remedies on Rights' (Current Legal Problems

[1953] Volume 6), Per Frankfurter, J. in Viterall v. Seton 3

L. Ed (2nd series) 1012, Ramana Dayaram Shetty v. The

International Airport Authority of India [1979] 3 S.C.R.

1014, 1032, referred to.

In the instant case, the procedure prescribed by

Section 314 of the Bombay Municipal Corporation Act for

removal of encroachments on the footpaths or pavements over

which the public has the

right of passage or access, cannot be regarded as

unreasonable, unfair or unjust. There is no static measure

of reasonableness which can be applied to all situations

alike. Indeed, the question is this procedure reasonable?"

implies and postulates the inquiry as to whether the

procedure prescribed is reasonable in the circumstances of

the case.

Francis Corlie Mullin v. The Administrator, Union

Territory of Delhi [1981] 2 S.C.R. 516, 523-524, referred

to.

3.5 Footpaths or pavements are public properties which

are intended to serve the convenience of the general public.

They are not laid for private use and indeed, their use for

a private purpose frustrates the very object for which they

are carved out from portions of public streets. The main

reason for laying out pavements is to ensure that the

pedestrians are able to go about their daily affairs with a

reasonable measure of safety and security. That facility,

which has matured into a right of the pedestrians, cannot be

set at naught by allowing encroachments to be made on the

pavements. [87 B-C]

3.6 No one has the right to make use of a public

property for a private purpose without the requisite

authorisation and, therefore, it is erroneous to contend

that the pavement dwellers have the right to encroach upon

pavements by constructing dwellings thereon. Public streets,

of which pavements form a part, are primarily dedicated for

the purpose of passage and, even the pedestrians have but

the limited right of using pavements for the purpose of

passing and repassing. So long as a person does not

transgress the limited purpose for which pavements are made,

his use thereof is legitimate and lawful. But, if a person

puts any public property to a use for which it is not

intended and is not authorised so to use it, he becomes a

trespasser. [87 D-F]

Putting up a dwelling on the pavement is a case which

is clearly on one side of the line showing that it is an act

of trespass. [87 H]

Hickman v. Maisey [1980] 1 Q.B. 752, referred to.

S.L. Kapoor v. Jagmohan [1981] 1 S.C.R. 746, 766, Ridge

v. Baldwin [1964] AC 40 at 68, John v. Rees [1970] 1

Chancery 345 at 402, Annamunthodo v. Oil fields Workers'

Trade Union [1961] 3 All E.R. 621 (H.L.) at 625, Margarits

Fuentes at al v. Tobert L.

Shevin 32, L. Ed. 2nd 556 at 574, Chintepalli Agency Taluk

Arrack Sales Cooperative Society Ltd. v. Secretary (Food and

Agriculture) [1978] 1 S.C.R. 563 at 567, 569-70, relied

upon.

4.1 There is no doubt that the petitioners are using

pavements and other public properties for an unauthorised

purpose. But, their intention or object in doing so is not

to "commit an offence or intimidate insult or annoy any

person", which is the gist of the offence of "Criminal

trespass" under section 441 of the Penal Code. They manage

to find a habitat in places which are mostly filthy or

marshy, out of sheer helplessness. It is not as if they have

a free choice to exercise as to whether to commit an

encroachment and if so, where. The encroachment committed by

these persons are involuntary acts in the sense that those

acts are compelled by inevitable circumstances and are not

guided by choice. Trespass is a tort. But, even the law of

Torts requires that though a trespasser may be evicted

forcibly, the force used must be no greater than what is

reasonable and appropriate to the occasion and, what is even

more important, the trespasser should be asked and given a

reasonable opportunity to depart before force is used to

expel him. [93 A-D]

In the instant case, the Court would have directed the

Municipal Commissioner to afford an opportunity to the

petitioners to show why the encroachments committed by them

on pavements or footpaths should not be removed. But, the

opportunity which was denied by the Commissioner was granted

by the Supreme Court in an ample measure, both sides having

made their contentions elaborately on facts as well as on

law. Having considered those contentions the Court is of the

opinion that the Commissioner was justified in directing the

removal of the encroachments committed by the petitioners on

pavements, footpaths or accessory roads. [94 E-F]

4.2 Pavement dwellers who were censused or who happened

to be censused in 1976 should be given, though not as a

condition precedent to their removal, alternate pitches at

Malavani or, at such other convenient place as the

Government considers reasonable but not farther away in

terms of distance; slum dwellers who were given identity

cards and whose dwellings were numbered in the 1976 census

must be given alternate sites for their resettlement; slums

which have been in existence for a long time, say for twenty

years or more, and which have been improved and developed

will not be removed unless the land on which they stand or

the appurtenant land, is required for a public purpose, in

which case, alternate sites of accommodation will be

provided to

them; the 'Low Income Scheme Shelter Programme' which is

proposed to be undertaken with the aid of the World Bank

will be pursued earnestly; and the 'Slum Upgradation

Programme (SUP)' under which basic amenities are to be given

to slum dwellers will be implemented without delay. In order

to minimise the hardship involved in any eviction, the

slums, wherever situated, will not be removed until one

month after the end of the current monsoon season, that is

until October 31, 1985 and, thereafter, only in accordance

with this judgment. If any slum is required to be removed

before that date, parties may apply to the Supreme Court.

Pavement dwellers, whether censused or uncensused, will not

be removed until the same date viz. October 31, 1984. [98 D-

4.3 In so far as the Kamraj Nagar Basti is concerned,

there are over 400 hutments therein. Since the Basti is

situated on a part of the road leading to the Express

Highway, serious traffic hazards arise on account of the

straying of the Basti children on to the Express Highway, on

which there is heavy vehicular traffic. The same criterion

would apply to the Kamaraj Nagar Basti as would apply to the

dwellings constructed unauthorisedly on other roads and

pavements in the city. [95 C-D]

JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition Nos. 4610-4612 &

5068-5079 of 1981.

(Under Article 32 of the Constitution of India.)

Miss Indira Jaisingh, Miss Rani Jethmalani, Anand

Grover and Sumeet Kachhwaha for the Petitioners in W.P. No.

4610-12 of 1981.

Ram Jethmalani, V.M. Tarkunde, Miss Darshna Bhogilal,

Mrs. Indu Sharma and P.H. Parekh for the Petitioners in W.P.

Nos. 5068-79 of 1981.

L.N. Sinha Attorney General, P. Shankaranarayanan and

M.N. Shroff for Respondent Nos. 2 & 3 in W.P. Nos. 4610-12

of 1981 and for Respondent Nos. 1 and 3 in W.P. No. 5068-79

of 1981.

K.K.Singhvi, F.N.D. Mollo and D.N. Mishra for

Respondent No. 1 in W.P. Nos. 4610-12 and for Respondent No.

2 in W.P. No.5068-79 of 1981.

The Judgment of the Court was delivered by :

CHANDRACHUD, CJ. These Writ Petitions portray the

plight of lakhs of persons who live on pavements and in

slums in the city of Bombay. They constitute nearly half the

population of

the city. The first group of petitions relates to pavement

dwellers while the second group relates to both pavement and

Basti or Slum dwellers. Those who have made pavements their

homes exist in the midst of filth and squalor, which has to

be seen to believed. Rabid dogs in search of stinking meat

and cats in search of hungry rats keep them company. They

cook and sleep where they ease, for no conveniences are

available to them. Their daughters, come of age, bathe under

the nosy gaze of passers by, unmindful of the feminine sense

of bashfulness. The cooking and washing over, women pick

lice from each other's hair. The boys beg. Menfolk, without

occupation, snatch chains with the connivance of the

defenders of law and order; when caught, if at all, they say

: "Who doesn't commit crimes in this city ?

It is these men and women who have come to this Court

to ask for a judgment that they cannot be evicted from their

squalid shelters without being offered alternative

accommodation. They rely for their rights on Article 21 of

the Constitution which guarantees that no person shall be

deprived of his life except according to procedure

established by law. They do not contend that they have a

right to live on the pavements. Their contention is that

they have a right to live, a right which cannot be exercised

without the means of livelihood. They have no option but to

flock to big cities like Bombay, which provide the means of

bare subsistence. They only choose a pavement or a slum

which is nearest to their place of work. In a word, their

plea is that the right to life is illusory without a right

to the protection of the means by which alone life can be

lived. And, the right to life can only be taken away or

abridged by a procedure established by law, which has to be

fair and reasonable, not fanciful or arbitrary such- as is

prescribed by the Bombay Municipal Corporation Act or the

Bombay Police Act. They also rely upon their right to reside

and settle in any part of the country which is guaranteed by

Article 19(1)(e).

The three petitioners in the group of Writ Petitions

4610 4612 of 1981 are a journalist and two pavement

dwellers. One of these two pavement dwellers, P. Angamuthu,

migrated from Salem, Tamil Nadu, to Bombay in the year 1961

in search of employment. He was a landless labourer in his

home town but he was rendered Jobless because of drought. He

found a Job in a Chemical Company at Dahisar, Bombay, on a

daily wage of Rs-23 per day. A slum-lord extorted a sum of

Rs.2,50 from him in exchange of a shelter of plastic sheets

and canvas on a pavement on the Western Express Highway,

Bombay. He lives in it with his wife and three daughters who

are 16, 13 and 5 years of age.

The second of the two pavement dwellers came to Bombay

in 1969 from Sangamner, District Ahmednagar, Maharashtra. He

was a cobbler earning 7 to 8 rupees a day, but his so-called

house in the village fell down. He got employment in Bombay

as a Badli Kamgar for Rs. 350 per month. He was lucky in

being able to obtain a "dwelling house" on a pavement at

Tulsiwadi by paying Rs. 300 to a goonda of the locality. The

bamboos and the plastic sheets cost him Rs. 700.

On July 13, 1981 the then Chief Minister of

Maharashtra, Shri A.R. Antulay, made an announcement which

was given wide publicity by the newspapers that all pavement

dwellers in the city of Bombay will be evicted forcibly and

deported to their respective places of origin or removed to

places outside the city of Bombay. The Chief Minister

directed the Commissioner of Police to provide the necessary

assistance to respondent 1, the Bombay Municipal

Corporation, to demolish the pavement dwellings and deport

the pavement dwellers. The apparent justification which the

Chief Minister gave to his announcement was : "It is a very

inhuman existence. These structures are flimsy and open to

the elements. During the monsoon there is no way these

people can live comfortably."

On July 23, 1981 the pavement dwelling of P. Angamuthu

was demolished by the officers of the Bombay Municipal

Corporation. He and the members of his family were put in a

bus for Salem. His wife and daughters stayed back in Salem

but he returned to Bombay in search of a job and got into a

pavement house once again. The dwelling of the other

petitioner was demolished even earlier, in January 1980 but

he rebuilt it. It is like a game of hide and seek. The

Corporation removes the ramshackle shelters on the pavements

with the aid of police, the pavement dwellers flee to less

conspicuous pavements in by-lanes and, when the officials

are gone, they return to their old habitats. Their main

attachment to those places is the nearness thereof to their

place of work.

In the other batch of writ petitions Nos. 5068-79 of

1981, which was heard along with the petitions relating to

pavement dwellers, there are 12 petitioners. The first five

of these are residents of Kamraj Nagar, a basti or

habitation which is alleged to have come into existence in

about 1960-61, near the Western Express Highway, Bombay. The

next four petitioners were residing in structures

constructed off the Tulsi Pipe Road,

Mahim, Bombay. Petitioner No. 10 is the Peoples' Union of

Civil Liberties, petitioner No. 11 is the Committee for the

Protection of Democratic Rights while petitioner No. 12 is a

journalist.

The case of the petitioners in the KamraJ Nagar group

of cases is that there are over 500 hutments in this

particular basti which was built in about 1960 by persons

who were employed by a Construction company engaged in

laying water pipes along the Western Express Highway. The

residents of Kamraj Nagar are municipal employees, factory

or hotel workers, construction supervisors and so on. The

residents of the Tulsi Pipe Road hutments claim that they

have been living there for 10 to 15 years and that, they are

engaged in various small trades. 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 Corporation from implementing the directive of the

Chief Minister. The High Court granted an ad-interim

injunction to be in force until July 21, 1981. On that date,

respondents agreed that the huts will not be demolished

until October 15, 1981. However, it is alleged, on July 23,

1981, the petitioners were huddled into State Transport

buses for being deported out of Bombay. Two infants were

born during the deportation but that was set off by the

death of two others.

The decision of the respondents to demolish the huts is

challenged by the petitioners on the ground that it is

violative of Articles 19 and 21 of the Constitution. The

petitioners also ask for a declaration that the provisions

of sections 312, 313 and 314 of the Bombay Municipal

Corporation Act, 1888 are in valid as violating Articles 14,

19 and 21 of the Constitution. The reliefs asked for in the

two groups of writ petitions are that the respondents should

be directed to withdraw the decision to demolish the

pavement dwellings and the slum hutments and, where they are

already demolished, to restore possession of the sites to

the former occupants.

On behalf of the Government of Maharashtra, a counter-

affidavit has been filed by V.S.Munje, Under Secretary in

the Department of Housing. The counter-affidavit meets the

case of the petitioners thus. The Government of Maharashtra

neither proposed to deport any payment dweller out of the

city of Bombay nor did it, in fact, deport anyone. Such of

the pavement dwellers, who expressed their desire in

writing, that they wanted to return to their home towns and

who sought assistance from the Government in

that behalf were offered transport facilities up to the

nearest rail head and were also paid railway fare or bus

fare and incidental expenses for the onward journey. The

Government of Maharashtra had issued instructions to its

officers to visit specific pavements on July 23, 1981 and to

ensure that no harassment was caused to any pavement

dweller. Out of 10,000 hutment-dwellers who were likely to

be affected by the proposed demolition of hutments

constructed on the pavements, only 1024 persons opted to

avail of the transport facility and the payment of

incidental expenses.

The counter-affidavit says that no person has any legal

right to encroach upon or to construct any structure on a

footpath, public street or on any place over which the

public has a right of way. Numerous hazards of health and

safety arise if action is not taken to remove such

encroachments. Since, no civic amenities can be provided on

the pavements, the pavement dwellers use pavements or

adjoining streets for easing themselves. Apart from this,

some of the pavement dwellers indulge in anti-social acts

like chain-snatching, illicit distillation of liquor and

prostitution. The lack of proper environment leads to

increased criminal tendencies, resulting in more crime in

the cities. It is, therefore, in public interest that public

places like pavements and paths are not encroached upon. The

Government of Maharashtra provides housing assistance to the

weaker sections of the society like landless labourers and

persons belonging to low income groups, within the frame

work of its planned policy of the economic and social

development of the State. Any allocation for housing has to

be made after balancing the conflicting demands from various

priority sectors. The paucity of resources is a restraining

factor on the ability of the State to deal effectively with

the question of providing housing to the weaker sections of

the society. The Government of Maharashtra has issued policy

directives that 75 percent of the housing programme should

be allocated to the lower income groups and the weaker

sections of the society. One of the objects of the State's

planning policy is to ensure that the influx of population

from the rural to the urban areas is reduced in the interest

of a proper and balanced social and economic development of

the State and of the country. This is proposed to be

achieved by reversing the rate of growth of metropolitan

cities and by increasing the rate of growth of small and

medium towns. The State Government has therefore, devised an

Employment Guarantee Scheme to enable the rural population,

which remains unemployed or underemployed at certain periods

of the year, to get employment during such periods. A sum

of about Rs. 180 crores was spent on that scheme during the

years 1979-80 and 1980-81. On October 2, 1980 the State

Government launched two additional schemes for providing

employment opportunities for those who cannot get work due

to old age or physical infirmities. The State Government has

also launched a scheme for providing self-employment

opportunities under the 'Sanjay Gandhi Niradhar Anudan

Yojana'. A monthly pension of Rs. 60 is paid to those who

are too old to work or are physically handicapped. In this

scheme, about 1,56,943 persons have been identified and a

sum of Rs. 2.25 crores was disbursed. Under another scheme

called 'Sanjay Gandhi Swawalamban Yojana', interest-free

loans, subject to a maximum of Rs. 2,500, were being given

to persons desiring to engage themselves in gainful

employment of their own. About 1,75,000 persons had

benefited under this scheme, to whom a total sum of Rs. 5.82

crores was disbursed by way of loan. In short, the objective

of the State Government was to place greater emphasis on

providing infrastructural facilities to small and medium

towns and to equip them so that they could act as growth and

service centres for the rural hinterland. The phenomenon of

poverty which is common to all developing countries has to

be tackled on an All-India basis by making the gains of

development available to all sections of the society through

a policy of equitable distribution of income and wealth.

Urbanisation is a major problem facing the entire country,

the migration of people from the rural to the urban areas

being a reflection of the colossal poverty existing in the

rural areas. The rural poverty cannot, however, be

eliminated by increasing the pressure of population on

metropolitan cities like Bombay. The problem of poverty has

to be tackled by changing the structure of the society in

which there will be a more equitable distribution of income

and greater generation of wealth. The State Government has

stepped up the rate of construction of tenements for the

weaker sections of the society from 2500 to 9500 per annum.

It is denied in the counter-affidavit that the

provisions of sections 312, 313 and 314 of the Bombay

Municipal Corporation Act violate the Constitution. Those

provisions are conceived in public interest and great care

is taken by the authorities to ensure that no harassment is

caused to any pavement dweller while enforcing the

provisions of those sections. The decision to remove such

encroachments was taken by the Government with specific

instructions that every reasonable precaution ought to be

taken to cause the least possible inconvenience to the

pavement dwellers. What is more important, so the counter-

affidavit says, the Government of Maharashtra had decided

that, on the basis of

the census carried out in 1976, pavement dwellers who would

be uprooted should be offered alternate developed pitches at

Malvani where they could construct their own hutments.

According to that census, about 2,500 pavement hutments only

were then in existence.

The counter-affidavit of the State Government describes

the various steps taken by the Central Government under the

Five year Plan of 1978-83, in regard to the housing

programmes. The plan shows that the inadequacies of Housing

policies in India have both quantitative and qualitative

dimensions. The total investment in housing shall have to be

of the magnitude of Rs. 2790 crores, if the housing problem

has to be tackled even partially.

On behalf of the Bombay Municipal Corporation, a

counter-affidavit has been filed by Shri D.M. Sukthankar,

Municipal Commissioner of Greater Bombay. That affidavit

shows that he had visited the pavements on the Tulsi Pipe

Road (Senapati Bapat Marg) and the Western Express High Way,

Vile Parle (east), Bombay. On July 23, 1981, certain

hutments on these pavements were demolished under section

314 of the Bombay Municipal Corporation Act. No prior notice

of demolition was given since the section does not provide

for such notice. The affidavit denies that the intense

speculation in land prices, as alleged, owes its origin to

the High rise buildings which have come up in the city of

Bombay. It is also denied that there are vast vacant pieces

of land in the city which can be utilised for housing the

pavement dwellers. Section 61 of the B.M.C. Act lays down

the obligatory duties of the Corporation. Under clauses (c)

and (d) of the said section, it is the duty of the

Corporation to remove excrementitious matters, refuse and

rubbish and to take measures for abatement of every kind of

nuisance. Under clause(g) of that section, the Corporation

is under an obligation to take measures for preventing and

checking the spread of dangerous diseases. Under clause (o),

obstructions and projections in or upon public streets and

other public places have to be removed. Section 63 (k)

empowers the Corporation to take measures to promote public

safety, health or convenience, not specifically provided

otherwise. The object of Sections 312 to 314 is to keep the

pavements and foot-paths free from encroachment so that the

pedestrians do not have to make use of the streets on which

there is heavy vehicular traffic. The pavement dwellers

answer the nature's call, bathe, cook and wash their clothes

and utensils on the foot-paths and on parts of public

streets adjoining the foot-

paths. Their encroachment creates serious impediments in

repairing the roads, foot-paths and drains. The refusal to

allow the petitioners and other persons similarly situated

to use foot-paths as their abodes is, therefore, not

unreasonable, unfair, or unlawful. The basic civic

amenities, such as drainage, water and sanitation, cannot

possibly be provided to the pavement dwellers. Since the

pavements are encroached upon, pedestrians are compelled to

walk on the streets, thereby increasing the risk of traffic

accidents and impeding the free flow of vehicular movement.

The Municipal Commissioner disputes in his counter-affidavit

that any fundamental right of the petitioners is infringed

by removal of the encroachment committed by them on public

property, especially the pavements. In this behalf, reliance

is placed upon an order dated July 27, 1981 of Lentin J. of

the Bombay High Court, which records that counsel for the

petitioners had stated expressly on July 24, 1981, that no

fundamental right could be claimed to put up a dwelling on

public foot-paths and public roads.

The Municipal Commissioner has stated in his counter-

affidavit in Writ Petitions 5068-79 of 1981 that the huts

near the Western Express Highway, Vile Parle, Bombay, were

constructed on an accessory road which is a part of the

Highway itself. These hutments were never regularised by the

Corporation and no registration numbers were assigned to

them.

In answer to the Municipal Commissioner's counter-

affidavit, petitioner no. 12. Prafulla chandra Bidwai who is

a journalist, has filed a rejoinder asserting that Kamraj

Nagar is not located on a foot-path or a pavement. According

to him, Kamraj Nagar is a basti off the Highway, in which

the huts are numbered, the record in relation to which is

maintained by the Road Development Department and the Bombay

Municipal Corporation. Contending that petitioners 1 to 5

have been residing in the said basti for over 20 years, he

reiterates that the public has no right of way in or over

the Kamraj Nagar. He also disputes that the huts on the

foot-paths cause any obstruction to the pedestrians or to

the vehicular traffic or that those huts are a source of

nuisance or danger to public health and safety. His case in

paragraph 21 of his reply-affidavit seems to be that since,

the foot-paths are in the occupation of pavement dwellers

for a long time, foot-paths have ceased to be foot-paths. He

says that the pavement dwellers and the slum or basti

dwellers, who number about 47.7 lakhs, constitute about 50

per cent of the total population of Greater Bombay, that

they supply the major work force

for Bombay from menial Jobs to the most highly skilled jobs,

that they have been living in the hutments for generations,

that they have been making a significant contribution to the

economic life of the city and that, therefore, it is unfair

and unreasonable on the part of the State Government and the

Municipal Corporation to destroy their homes and deport them

: A home is a home wherever it is. The main theme of the

reply-affidavit is that" The slum dwellers are the sine qua

non of the city. They are entitled to a quid pro quo. "It is

conceded expressly that the petitioners do not claim any

fundamental right to live on the pavements. The right

claimed by them is the right to live, at least to exist.

Only two more pleadings need be referred to, one of

which is an affidavit of Shri Anil V. Gokak, Administrator

of Maharashtra Housing and Areas Development Authority,

Bombay, who was then holding charge of the post of

Secretary, Department of Housing. He filed an affidavit in

answer to an application for the modification of an interim

order which was passed by this Court on October 19, 1981. He

says that the legislature of Maharashtra had passed the

Maharashtra Vacant Land (Prohibition of unauthorised

Occupation and Summary Eviction) Act, 1975 in pursuance of

which the Government had decided to compile a list of slums

which were required to be removed in public interest. It was

also decided that after a spot inspection, 500 acres of

vacant land in and near the Bombay Suburban District should

be allocated for re-settlement of the hutment dwellers who

were removed from the slums. A Task Force was constituted by

the Government for the purpose of carrying out a census of

the hutments standing on lands belonging to the Government

of the Maharashtra, the Bombay Municipal Corporation and the

Bombay Housing Board. A Census was, accordingly, carried out

on January 4, 1976 by deploying about 7,000 persons to

enumerate the slum dwellers spread over approximately 850

colonies all over Bombay. About 67 per cent of the hutment

dwellers from a total of about 2,60,000 hutments produced

photographs of the heads of their families, on the basis of

which hutments were numbered and their occupants were given

identity cards. It was decided that slums which were in

existence for a long time and which were improved and

developed would not normally be demolished unless the land

was required for a public purpose. In the event that the

land was so required, the policy of the State Government was

to provide alternative accommodation to the slum dwellers

who were censused and possessed identity cards. This is

borne out by a circular of the Government dated February 4,

1976 (No. SIS 1176/D. 41). Shri Gokak says that the State

Government has

issued instructions directing, inter alia, that "action to

remove the slums excepting those which are on the foot-paths

or roads or which are new or casually located should not,

therefore, be taken without obtaining approval from the

Government to the proposal for the removal of such slums and

their rehabilitation." Since, it was never the policy of the

Government to encourage construction of hutments on foot-

paths, pavements or other places over which the public has a

right of way, no census of such hutments was ever intended

to be conducted. But, sometime in July 1981, when the

Government officers made an effort to ascertain the

magnitude of the problem of evicting pavement dwellers, it

was discovered that some persons occupying pavements,

carried census cards of 1976. The Government then decided to

allot pitches to such occupants of pavements.

The only other pleading which deserves to be noticed is

the affidavit of the journalist petitioner, Ms. Olga Tellis,

in reply to the counter-affidavit of the Government of

Maharashtra. According to her, one of the important reasons

of the emergence and growth of squatter-settlements in the

Metropolitan cities in India is, that the Development and

Master Plans of most of the cities have not been adhered to.

The density of population in the Bombay Metropolitan Region

is not high according to the Town Planning standards.

Difficulties are caused by the fact that the population is

not evenly distributed over the region, in a planned manner.

New constructions of commercial premises, small-scale

industries and entertainment houses in the heart of the

city, have been permitted by the Government of Maharashtra

contrary to law and even residential premises have been

allowed to be converted into commercial premises. This,

coupled with the fact that the State Government has not

shifted its main offices to the northern region of the city,

has led to the concentration of the population in the

southern region due to the availability of Job opportunities

in that region. Unless economic and leisure activity is

decentralised, it would be impossible to find a solution to

the problems arising out of the growth of squatter colonies.

Even if squatters are evicted, they come back to the city

because, it is there that Job opportunities are available.

The alternate pitches provided to the displaced pavement-

dwellers on the basis of the so-called 1976 census, are not

an effective means to their resettlement because, those

sites are situated far away from the Malad Railway Station

involving cost and time which are beyond their means. There

are no facilities available at Malavant like schools and

hospitals, which drives them back to the stranglehold of the

city. The permission granted to the

'National Centre of Performing Arts' to construct an

auditorium at the Nariman Point, Backbay Reclamation, is

cited as a 'gross' instance of the short-sighted, suicidal

and discriminatory policy of the Government of Maharashtra.

It is as if the sea is reclaimed for the construction of

business and entertainment houses in the centre of the city,

which creates job opportunities to which the homeless flock.

They work therein and live on pavements. The grievance is

that, as a result of this imbalance, there are not enough

jobs available in the northern tip of the city. The

improvement of living conditions in the slums and the

regional distribution of job opportunities are the only

viable remedies for relieving congestion of the population

in the centre of the city. The increase allowed by the State

Government in the Floor Space Index over and above 1.33, has

led to a further concentration of population in the centre

of the city.

In the matter of housing, according to Ms. Tellis'

affidavit, Government has not put to the best use the

finances and resources available to it. There is a wide gap

between the demand and supply in the area of housing which

was in the neighbourhood of forty five thousand units in the

decade 1971-81. A huge amount of hundreds of crores of

rupees shall have to be found by the State Government every

year during the period of the Sixth Plan if adequate

provision for housing is at all to be made. The Urban Land

Ceiling Act has not achieved its desired objective nor has

it been properly implemented. The employment schemes of the

State Government are like a drop in the ocean and no steps

are taken for increasing Job opportunities in the rural

sector. The neglect of health, education transport and

communication in that sector drives the rural folk to the

cities, not only in search of a living but in search of the

basic amenities of life. The allegation of the State

Government regarding the criminal propensities of the

pavement dwellers is stoutly denied in the reply-affidavit

and it is said to be contrary to the studies of many

experts. Finally, it is stated that it is no longer the

objective of the Sixth Plan to reverse the rate of growth of

metropolitan cities. The objective of the earlier plan

(1978-83) has undergone a significant change and the target

now is to ensure the growth of large metropolitan cities in

a planned manner. The affidavit claims that there is

adequate land in the Bombay metropolitan region to absorb a

population of 20 million people, which is expected to be

reached by the year 2000 A.D.

The arguments advanced before us by Ms. Indira

Jaisingh, Mr. V.M. Tarkunde and Mr. Ram Jethmalani cover a

wide range but

the main thrust of the petitioners' case is that evicting a

pavement dweller or slum dweller from his habitat amounts to

depriving of his right to livelihood, which is comprehended

in the right guaranteed by Article 21 of the Constitution

that no person shall be deprived of his life except

according to procedure established by law. The question of

the guarantee of personal liberty contained in Article 21

does not arise and was not raised before us. Counsel for the

petitioners contended that the Court must determine in these

petitions the content of the right to life, the function of

property in a welfare state, the dimension and true meaning

of the constitutional mandate that property must subserve

common good, the sweep of the right to reside and settle in

any part of the territory of India which is guaranteed by

Article 19(1)(e) and the right to carry on any occupation,

trade or business which is guaranteed by Article 19 (1)(g),

the competing claims of pavement dwellers on the one hand

and of the pedestrians on the other and, the larger question

of ensuring equality before the law. It is contended that it

is the responsibility of the courts to reduce inequalities

and social imbalances by striking down statutes which

perpetuate them. One of the grievances of the petitioners

against the Bombay Municipal Corporation Act, 1888 is that

it is a century old antiquated piece of legislation passed

in an era when pavement dwellers and slum dwellers did not

exist and the consciousness of the modern notion of a

welfare state was not present to the mind of the colonial

legislature. According to the petitioners, connected with

these issues and yet independent of them, is the question of

the role of the Court in setting the tone of values in a

democratic society.

The argument which bears on the provisions of Article

21 is elaborated by saying that the eviction of pavement and

slum dweller will lead, in a vicious circle, to the

deprivation of their employment, their livelihood and,

therefore, to the right to life. Our attention is drawn in

this behalf to an extract from the judgment of Douglas J in

Baksey v. Board of Regents, 347 M.D. 442 (1954) in which the

learned Judge said:

"The right to work I have assumed was the most

precious liberty that man possesses. Man has

indeed, as much right to work as he has to live,

to be free and to own property. To work means to

eat and it also means to live."

The right to live and the right to work are integrated and

interdependent and, therefore, if a person is deprived of

his job as a result of his eviction from a slum or a

pavement, his very right to life is put in jeopardy. It is

urged that the economic compulsions under which these

persons are forced to live in slums or on pavements impart

to their occupation the character of a fundamental right.

It is further urged by the petitioners that it is

constitutionally impermissible to characterise the pavement

dwellers as "trespassers" because, their occupation of

pavements arises from economic compulsions. The State is

under an obligation to provide to the citizens the

necessities of life and, in appropriate cases, the courts

have the power to issue order directing the State, by

affirmative action, to promote and protect the right to

life. The instant situation is one of crisis, which compels

the use of public property for the purpose of survival and

sustenance. Social commitment is the quintessence of our

Constitution which defines the conditions under which

liberty has to be enjoyed and justice has to be

administered. Therefore, Directive Principles, which are

fundamental in the governance of the country, must serve as

a beacon light to the interpretation of the Constitutional

provisions. Viewed in this context, it is urged, the

impugned action of the State Government and the Bombay

Municipal Corporation is violative of the provisions

contained in Articles 19(1)(e), 19(1)(g) and 21 of the

Constitution. The paucity of financial resources of the

State is no excuse for defeating the fundamental rights of

the citizens.

In support of this argument, reliance is placed by the

petitioners on what is described as the 'factual context'. A

publication dated January 1982 of the Planning Commission,

Government of India, namely, 'The Report of the Expert Group

of Programmes for the Alleviation of Poverty', is relied on

as showing the high incidence of poverty in India. That

Report shows that in 1977-78, 48% of the population lived

below the poverty line, which means that out of a population

of 303 million who lived below the poverty line, 252 million

belonged to the rural areas. In 1979-80 another 8 million

people from the rural areas were found to live below the

poverty line. A Government of Maharashtra Publication

"Budget and the new 20 Point Socio-Economic Programme"

estimates that there are about 45 lakh families in rural

areas of Maharashtra who live below the poverty line.

Another 40% was in the periphery of that area. One of the

major causes of the persistent rural poverty of landless

labourers,

marginal farmers, shepherds, physically handicapped persons

and others is the extremely narrow base of production

available to the majority of the rural population. The

average agricultural holding of a farmer is 0.4 hectares,

which is hardly adequate to enable him to make both ends

meet. Landless labourers have no resource base at all and

they constitute the hard-core of poverty. Due to economic

pressures and lack of employment opportunities, the rural

population is forced to migrate to urban areas in search of

employment. 'The Economic Survey of Maharashtra' published

by the State Government shows that the bulk of public

investment was made in the cities of Bombay, Pune and Thane,

which created employment opportunities attracting the

starving rural population to those cities. The slum census

conducted by the Government of Maharashtra in 1976 shows

that 79% of the slum-dwellers belonged to the low income

group with a monthly income below Rs.600. The study

conducted by P. Ramachandran of the Tata Institute of Social

Sciences shows that in 1972,91% of the pavement dwellers had

a monthly income of less than Rs.200. The cost of obtaining

any kind of shelter in Bombay is beyond the means of a

pavement dweller. The principal public housing sectors in

Maharashtra, namely, The Maharashtra Housing and Area

Development Agency (MHADA) and the City and Industrial

Development Corporation of Maharashtra Ltd. (CIDCO) have

been able to construct only 3000 and 1000 units respectively

as against the annual need of 60,000 units. In any event,

the cost of housing provided even by these public sector

agencies is beyond the means of the slum and pavement-

dwellers. Under the Urban Land (Ceiling and Regulation) Act

1975, private land owners and holders are given facility to

provide housing to the economically weaker sections of the

society at a stipulated price of Rs.90 per sq.ft., which

also is beyond the means of the slum and pavement-dwellers.

The reigning market price of houses in Bombay varies from

Rs.150 per sq.ft. outside Bombay to Rs.2000 per sq.ft. in

the centre of the city.

The petitioners dispute the contention of the

respondents regarding the non-availability of vacant land

for allotment to houseless persons. According to them, about

20,000 hectares of unencumbered land is lying vacant in

Bombay. The Urban Land (Ceiling and Regulation) Act,1975 has

failed to achieve its object as is evident from the fact

that in Bombay, 5% of the land-holders own 55% of the land.

Even though 2952.83 hectares of Urban land is available for

being acquired by the State Government as being in excess of

the permissible ceiling area, only 41.51% of this excess

land was, so far, acquired. Thus, the

reason why there are homeless people in Bombay is not that

there is no land on which homes can be built for them but,

that the planning policy of the State Government permits

high density areas to develop with vast tracts of land lying

vacant. The pavement-dwellers and the slum-dwellers who

constitute 50% of the population of Bombay, occupy only 25%

of the city's residential land. It is in these circumstances

that out of sheer necessity for a bare existence, the

petitioners are driven to occupy the pavements and slums.

They live in Bombay because they are employed in Bombay and

they live on pavements because there is no other place where

they can live. This is the factual context in which the

petitioners claim the right under Articles 19(1)(e) and (g)

and Article 21 of the Constitution.

The petitioners challenge the vires of section 314 read

with sections 312 and 313 of the Bombay Municipal

Corporation Act, which empowers the Municipal Commissioner

to remove, without notice, any object or structure or

fixture which is set up in or upon any street. It is

contended that, in the first place, section 314 does not

authorise the demolition of a dwelling even on a pavement

and secondly, that a provision which allows the demolition

of a dwelling without notice is not just, fair or

reasonable. Such a provision vests arbitrary and unguided

power in the Commissioner. It also offends against the

guarantee of equality because, it makes an unjustified

discrimination between pavement dwellers on the one hand and

pedestrians on the other. If the pedestrians are entitled to

use the pavements for passing and repassing, so are the

pavement dwellers entitled to use pavements for dwelling

upon them. So the argument goes. Apart from this, it is

urged, the restrictions which are sought to be imposed by

the respondents on the use of pavements by pavement-dwellers

are not reasonable. A State which has failed in its

constitutional obligation to usher a socialistic society has

no right to evict slum and pavement-dwellers who constitute

half of the city's population. Therefore, sections 312,313

and 314 of the B.M.C. Act must either be read down or struck

down.

According to the learned Attorney-General, Mr.

K.K.Singhvi and Mr. Shankaranarayanan who appear for the

respondents, no one has a fundamental right, whatever be the

compulsion, to squat on or construct a dwelling on a

pavement, public road or any other place to which the public

has a right of access. The right conferred by Article

19(1)(e) of the Constitution to reside and settle in any

part of India cannot be read to confer a licence to encroach

and trespass upon public property. Sections 3(w) and

(x) of the B.M.C. Act define "Street" and "Public Street" to

include a highway, a footway or a passage on which the

public has the right of passage or access. Under section

289(1) of the Act, all pavements and public streets vest in

the Corporation and are under the control of the

Commissioner. In so far as Article 21 is concerned, no

deprivation of life, either directly or indirectly, is

involved in the eviction of the slum and pavement-dwellers

from public places. The Municipal Corporation is under an

obligation under section 314 of the B.M.C. Act to remove

obstructions on pavements, public streets and other public

places. The Corporation does not even possess the power to

permit any person to occupy a pavement or a public place on

a permanent or quasi-permanent basis. The petitioners have

not only violated the provisions of the B.M.C. Act, but they

have contravened sections 111 and 115 of the Bombay Police

Act also. These sections prevent a person from obstructing

any other person in the latter's use of a street or public

place or from committing a nuisance. Section 117 of the

Police Act prescribes punishment for the violation of these

sections.

We will first deal with the preliminary objection

raised by Mr. K.K.Singhvi, who appears on behalf of the

Bombay Municipal Corporation, that the petitioners are

estopped from contending that their huts cannot be

demolished by reason of the fundamental rights claimed by

them. It appears that a writ petition, No. 986 of 1981, was

filed on the Original Side of the Bombay High Court by and

on behalf of the pavement dwellers claiming reliefs similar

to those claimed in the instant batch of writ petitions. A

learned Single Judge granted an ad-interim injunction

restraining the respondents from demolishing the huts and

from evicting the pavement dwellers. When the petition came

up for hearing on July 27, 1981, counsel for the petitioners

made a statement in answer to a query from the court, that

no fundamental right could be claimed to put up dwellings on

foot-paths or public roads. Upon this statement, respondents

agreed not to demolish until October 15, 1981, huts which

were constructed on the pavements or public roads prior to

July 23,1981. On August 4, 1981, a written undertaking was

given by the petitioners agreeing, inter alia, to vacate the

huts on or before October 15, 1981 and not to obstruct the

public authorities from demolishing them. Counsel appearing

for the State of Maharashtra responded to the petitioners'

undertaking by giving an undertaking on behalf of the State

Government that, until October 15, 1981, no pavement dweller

will be removed out of the city against his wish. On the

basis of these undertakings, the learned Judge disposed of

the

writ petition without passing any further orders. The

contention of the Bombay Municipal Corporation is that since

the pavement dwellers had conceded in the High Court that

they did not claim any fundamental right to put up huts on

pavements or public roads and since they had given an

undertaking to the High Court that they will not obstruct

the demolition of the huts after October 15, 1981 they are

estopped from contending in this Court that the huts

constructed by them on the pavements cannot be demolished

because of their right to livelihood, which is comprehended

within the fundamental right to life guaranteed by Article

21 of the Constitution.

It is not possible to accept the contention that the

petitioners are estopped from setting up their fundamental

rights as a defence to the demolition of the huts put up by

them on pavements or parts of public roads. There can be no

estoppel against the Constitution. The Constitution is not

only the paramount law of the land but, it is the source and

substance of all laws. Its provisions are conceived in

public interest and are intended to serve a public purpose.

The doctrine of estoppel is based on the principle that

consistency in word and action imparts certainty and honesty

to human affairs. If a person makes a representation to

another, on the faith of which the latter acts to his

prejudice, the former cannot resile from the representation

made by him. He must make it good. This principle can have

no application to representations made regarding the

assertion or enforcement of fundamental rights. For example,

the concession made by a person that he does not possess and

would not exercise his right to free speech and expression

or the right to move freely throughout the territory of

India cannot deprive him of those constitutional rights, any

more than a concession that a person has no right of

personal liberty can justify his detention contrary to the

terms of Article 22 of the Constitution. Fundamental rights

are undoubtedly conferred by the Constitution upon

individuals which have to be asserted and enforced by them,

if those rights are violated. But, the high purpose which

the Constitution seeks to achieve by conferment of

fundamental rights is not only to benefit individuals but to

secure the larger interests of the community. The Preamble

of the Constitution says that India is a democratic

Republic. It is in order to fulfil the promise of the

Preamble that fundamental rights are conferred by the

Constitution, some on citizens like those guaranteed by

Articles 15,16,19,21 and 29, and some on citizens and non-

citizens alike, like those guaranteed by Articles

14,21,22 and 25 of the Constitution. No individual can

barter away the freedoms conferred upon him by the

Constitution. A concession made by him in a proceeding,

whether under a mistake of law or otherwise, that he does

not possess or will not enforce any particular fundamental

right, cannot create an estoppel against him in that or any

subsequent proceeding. Such a concession, if enforced, would

defeat the purpose of the Constitution. Were the argument of

estoppel valid, an all-powerful state could easily tempt an

individual to forego his precious personal freedoms on

promise of transitory, immediate benefits. Therefore,

notwithstanding the fact that the petitioners had conceded

in the Bombay High Court that they have no fundamental right

to construct hutments on pavements and that they will not

object to their demolition after October 15, 1981, they are

entitled to assert that any such action on the part of

public authorities will be in violation of their fundamental

rights. How far the argument regarding the existence and

scope of the right claimed by the petitioners is well-

founded is another matter. But, the argument has to be

examined despite the concession.

The plea of estoppel is closely connected with the plea

of waiver, the object of both being to ensure bona fides in

day-today transactions. In Basheshar Nath v. The

Commissioner of Income Tax Delhi, [1959] Supp. 1 S.C.R. 528

a Constitution Bench of this Court considered the question

whether the fundamental rights conferred by the Constitution

can be waived. Two members of the Bench (Das C.J. and Kapoor

J.) held that there can be no waiver of the fundamental

right founded on Article 14 of the Constitution. Two others

(N.H.Bhagwati and Subba Rao,JJ.) held that not only could

there be no waiver of the right conferred by Article 14, but

there could be no waiver of any other fundamental right

guaranteed by Part III of the Constitution. The Constitution

makes no distinction, according to the learned Judges,

between fundamental rights enacted for the benefit of an

individual and those enacted in public interest or on

grounds of public policy.

We must, therefore, reject the preliminary objection

and proceed to consider the validity of the petitioners'

contentions on merits.

The scope of the jurisdiction of this Court to deal

with writ petitions under Article 32 of the Constitution was

examined by a special Bench of this Court in Smt. Ujjam Bai

v. State of Uttar Pradesh. [1963] 1 S.C.R. 778. That

decision would

show that, in three classes of cases, the question of

enforcement of the fundamental rights would arise, namely,

(1) where action is taken under a statute which is ultra

vires the Constitution ; (2) where the statute is intra

vires but the action taken is without jurisdiction; and (3)

an authority under an obligation to act judicially passes an

order in violation of the principles of natural justice.

These categories are, of course, not exhaustive. In Naresh

Shridhar Mirajkar v. State of Maharashtra, [1966] 3 S.C.R.

744-770, a Special Bench of nine learned Judges of this

Court held that, where the action taken against a citizen is

procedurally ultra vires, the aggrieved party can move this

Court under Article 32. The contention of the petitioners is

that the procedure prescribed by section 314 of the B.M.C.

Act being arbitrary and unfair, it is not "procedure

established by law" within the meaning of Article 21 and,

therefore, they cannot be deprived of their fundamental

right to life by resorting to that procedure. The petitions

are clearly maintainable under Article 32 of the

Constitution.

As we have stated while summing up the petitioners'

case, the main plank of their argument is that the right to

life which is guaranteed by Article 21 includes the right to

livelihood and since, they will be deprived of their

livelihood if they are evicted from their slum and pavement

dwellings, their eviction is tantamount to deprivation of

their life and is hence unconstitutional. For purposes of

argument, we will assume the factual correctness of the

premise that if the petitioners are evicted from their

dwellings, they will be deprived of their livelihood. Upon

that assumption, the question which we have to consider is

whether the right to life includes the right to livelihood.

We see only one answer to that question, namely, that it

does. The sweep of the right to life conferred by Article 21

is wide and far reaching. It does not mean merely that life

cannot be extinguished or taken away as, for example, by the

imposition and execution of the death sentence, except

according to procedure established by law. That is but one

aspect of the right to life. An equally important facet of

that right is the right to livelihood because, no person can

live without the means of living, that is, the means of

livelihood. If the right to livelihood is not treated as a

part of the constitutional right to life, the easiest way of

depriving a person his right to life would be to deprive him

of his means of livelihood to the point of abrogation. Such

deprivation would not only denude the life of its effective

content and meaningfulness but it would make life impossible

to live. And yet, such deprivation would not have to

be in accordance with the procedure established by law, if

the right to livelihood is not regarded as a part of the

right to life. That, which alone makes it possible to live,

leave aside what makes life livable, must be deemed to be an

integral component of the right to life. Deprive a person of

his right to livelihood and you shall have deprived him of

his life. Indeed, that explains the massive migration of the

rural population to big cities. They migrate because they

have no means of livelihood in the villages. The motive

force which people their desertion of their hearths and

homes in the village s that struggle for survival, that is,

the struggle for life. So unimpeachable is the evidence of

the nexus between life and the means of livelihood. They

have to eat to live: Only a handful can afford the luxury of

living to eat. That they can do, namely, eat, only if they

have the means of livelihood. That is the context in which

it was said by Douglas J. in Baksey that the right to work

is the most precious liberty because, it sustains and

enables a man to live and the right to life is a precious

freedom. "Life", as observed by Field, J. in Munn v.

Illinois, (1877) 94 U.S. 113, means something more than mere

animal existence and the inhibition against the deprivation

of life extends to all those limits and faculties by which

life is enjoyed. This observation was quoted with approval

by this Court in Kharak Singh v. The State of U.P., [1964] 1

S.C.R. 332.

Article 39(a) of the Constitution, which is a Directive

Principle of State Policy, provides that the State shall, in

particular, direct its policy towards securing that the

citizens, men and women equally, have the right to an

adequate means of livelihood. Article 41, which is another

Directive Principle, provides, inter alia, that the State

shall, within the limits of its economic capacity and

development, make effective provision for securing the right

to work in cases of unemployment and of undeserved want.

Article 37 provides that the Directive Principles, though

not enforceable by any court, are nevertheless fundamental

in the governance of the country. The Principles contained

in Articles 39 (a) and 41 must be regarded as equally

fundamental in the understanding and interpretation of the

meaning and content of fundamental rights. If there is an

obligation upon the State to secure to the citizens an

adequate means of livelihood and the right to work, it would

be sheer pedantry to exclude the right to livelihood from

the content of the right to life. The State may not, by

affirmative action, be compellable to provide adequate means

of livelihood or work to the citizens. But, any person, who

is deprived of his right to livelihood

except according to just and fair procedure established by

law, can challenge the deprivation as offending the right to

life conferred by Article 21.

Learned counsel for the respondents placed strong

reliance on a decision of this Court in In Re: Sant Ram,

[1960] 3 S.C.R. 499, in support of their contention that the

right to life guaranteed by Article 21 does not include the

right to livelihood. Rule 24 of the Supreme Court Rules

empowers the Registrar to publish lists of persons who are

proved to be habitually acting as touts. The Registrar

issued a notice to the appellant and one other person to

show cause why their names should not be included in the

list of touts. That notice was challenged by the appellant

on the ground, inter alia, that it contravenes Article 21 of

the Constitution since, by the inclusion of his name in the

list of touts, he was deprived of his right to livelihood,

which is included in the right to life. It was held by a

Constitution Bench of this Court that the language of

Article 21 cannot be pressed in aid of the argument that the

word `life' in Article 21 includes `livelihood' also. This

decision is distinguishable because, under the Constitution,

no person can claim the right to livelihood by the pursuit

of an opprobrious occupation or a nefarious trade or

business, like tourism, gambling or living on the gains of

prostitution. The petitioners before us do not claim the

right to dwell on pavements or in slums for the purpose of

pursuing any activity which is illegal, immoral or contrary

to public interest. Many of them pursue occupations which

are humble but honourable.

Turning to the factual situation, how far is it true to

say that if the petitioners are evicted from their slum and

pavement dwellings, they will be deprived of their means of

livelihood? It is impossible, in the very nature of things,

together reliable data on this subject in regard to each

individual petitioner and, none has been furnished to us in

that form. That the eviction of a person from a pavement or

slum will inevitably lead to the deprivation of his means of

livelihood, is a proposition which does not have to be

established in each individual case. That is an inference

which can be drawn from acceptable data. Issues of general

public importance, which affect the lives of large sections

of the society, defy a just determination if their

consideration is limited to the evidence pertaining to

specific individuals. In the resolution of such issues,

there are no symbolic samples which can effectively project

a true picture of

the grim realities of life. The writ petitions before us

undoubtedly involve a question relating to dwelling houses

but, they cannot be equated with a suit for the possession

of a house by one private person against another. In a case

of the latter kind, evidence has to be led to establish the

cause of action and justify the claim. In a matter like the

one before us, in which the future of half of the city's

population is at stake, the Court must consult authentic

empirical data compiled by agencies, official and non-

official. It is by that process that the core of the problem

can be reached and a satisfactory solution found. It would

be unrealistic on our part to reject the petitions on the

ground that the petitioners have not adduced evidence to

show that they will be rendered jobless if they are evicted

from the slums and pavements. Commonsense, which is a

cluster of life's experiences, is often more dependable than

the rival facts presented by warring litigants.

It is clear from the various expert studies to which we

have referred while setting out the substance of the

pleadings that, one of the main reasons of the emergence and

growth of squatter-settlements in big Metropolitan cities

like Bombay, is the availability of job opportunities which

are lacking in the rural sector. The undisputed fact that

even after eviction, the squatters return to the cities

affords proof of that position. The Planning Commission's

publication, `The Report of the Expert Group of Programmes

for the Alleviation of Poverty' (1982) shows that half of

the population in India lives below the poverty line, a

large part of which lives in villages. A publication of the

Government of Maharashtra, `Budget and the New 20 Point

Socio-Economic Programme' shows that about 45 lakhs of

families in rural areas live below the poverty line and

that, the average agricultrual holding of a farmer, which is

0.4 hectares, is hardly enough to sustain him and his

comparatively large family. The landless labourers, who

constitute the bulk of the village population, are deeply

imbedded in the mire of poverty. It is due to these economic

pressures that the rural population is forced to migrate to

urban areas in search of employment. The affluent and the

not-so-affluent are alike in search of domestic servants.

Industrial and Business Houses pay a fair wage to the

skilled workman that a villager becomes in course of time.

Having found a job, even if it means washing the pots and

pans, the migrant sticks to the big city. If driven out, he

returns in quest of another job. The cost of public sector

housing is beyond his modest means and the less we refer to

the deals of private builders the better for all; excluding

none. Added to

these factors is the stark reality of growing insecurity in

villages on account of the tyranny of parochialism and

casteism. The announcement made by the Maharashtra Chief

Minister regarding the deportation of willing pavement

dwellers afford some indication that they are migrants from

the interior areas, within and outside Maharashtra. It is

estimated that about 200 to 300 people enter Bombay every

day in search of employment. These facts constitute

empirical evidence to justify the conclusion that persons in

the position of petitioners live in slums and on pavements

because they have small jobs to nurse in the city and there

is no where else to live. Evidently, they choose a pavement

or a slum in the vicinity of their place of work, the time

otherwise taken in commuting and its cost being forbidding

for their slender means. To loss the pavement or the slum is

to lose the job. The conclusion, therefore in terms of the

constitutional phraseology is that the eviction of the

petitioners will lead to deprivation of their livelihood and

consequently to the deprivation of life.

Two conclusions emerge from this discussion: one, that

the right to life which is conferred by Article 21 includes

the right to livelihood and two, that it is established that

if the petitioners are evicted from their dwellings, they

will be deprived of their livelihood. But the Constitution

does not put an absolute embargo on the deprivation of life

or personal liberty. By Article 21, such deprivation has to

be according to procedure established by law. In the instant

case, the law which allows the deprivation of the right

conferred by Article 21 is the Bombay Municipal Corporation

Act, 1888, the relevant provisions of which are contained in

Sections 312(1),313(1)(a) and 314. These sections which

occur in Chapter XI entitled `Regulation of Streets' read

thus :

Section 312 - Prohibition of structures or fixtures

which cause obstruction in streets.

(1) No person shall, except with the permission of

the Commissioner under section 310 or 317 arect or

set up any wall, fence, rail, post, step, booth or

other structure or fixture in or upon any street

or upon or over any open channel, drain well or

tank in any street so as to form an obstruction

to, or an encroachment upon, or a projection over,

or to occupy, any portion or such street,

channel, drain, well or tank".

"Section 313 - Prohibition of deposit, etc., of things

in streets.

(1) No person shall, except with the written

permission of the Commissioner, -

(a) place or deposit upon any street or upon any

open channel drain or well in any streets (or in

any public place) any stall, chair, bench, box,

ladder, bale or other thing so as to form an

obstruction thereto or encroachment thereon."

"Section 314 - Power to remove without notice anything

erected deposited or hawked in

contravention of Section 312,313 or 313

The Commissioner may, without notice, cause to be

removed -

(a) any wall, fence, rail, post, step, booth or

other structure or fixture which shall be erected

or set up in or any street, or upon or over any

open channel, drain, well or tank contrary to the

provisions of subsection (1) of section 312, after

the same comes into force in the city or in the

suburbs, after the date of the coming into force

of the Bombay Municipal (Extension of Limits) Act,

1950 or in the extended suburbs after the date of

the coming into force of the Bombay Municipal

Further Extension of Limits and Schedule BBA

(Amendment) Act, 1956;

(b) any stall, chair, bench, box, ladder, bale,

board or shelf, or any other thing whatever

placed, deposited, projected, attached, or

suspended in, upon, from or to any place in

contravention of sub-section (1) of section 313;

sale in any public place or in any public street

in contravention of the provisions of section 313A

and any vehicle, package, box, board, shelf or any

other thing in or on which such article is placed

or kept for the purpose of sale."

By section 3(w), "street" includes a causeway, footway,

passage etc., over which the public have a right of passage

or access.

These provisions, which are clear and specific, empower

the Municipal Commissioner to cause to be removed

encroachments on footpaths or pavements over which the

public have a right of passage or access. It is undeniable

that, in these cases, wherever constructions have been put

up on the pavements, the public have a right of passage or

access over those pavements. The argument of the petitioners

is that the procedure prescribed by section 314 for the

removal of encroachments from pavements is arbitrary and

unreasonable since, not only does it not provide for the

giving of a notice before the removal of an encroachment

but, it provides expressly that the Municipal Commissioner

may cause the encroachment to be removed "without notice".

It is far too well-settled to admit of any argument

that the procedure prescribed by law for the deprivation of

the right conferred by Article 21 must be fair, just and

reasonable. (See E.P.Royappa v. State of Tamil Nadu, [1974]

2 S.C.R. 348; Maneka Gandhi v. Union of India, [1978] 2

S.C.R. 621; M.O.Hoscot v. State of Maharashtra, [1979] 1

S.C.R. 192; Sunil Batra, I v. Delhi Administration, [1979] 1

S.C.R. 392; Sita Ram v. State of U.P., [1979] 2 S.C.R. 1085;

Hussainara Khatoon, I v. Home Secretary, State of Bihar,

Patna, [1979] 3 S.C.R. 532,537; Hussainara Khatoon, II v.

Home Secretary, State of Bihar, Patna, [1980] 1 S.C.C. 81;

Sunil Batra, II v. Delhi Administration, [1980] 2 S.C.R.

557; Jolly George Verghese v. The Bank of Cochin, [1980] 2

S.C.R. 913,921-922; Kasturi Lal Lakshmi Keddy v. State of

Jammu & Kashmir, [1980] 3 S.C.R. 1338,1356; and Francis

Coralie Mullin v. The Administrator, Union Territory of

Delhi, [1981] 2 S.C.R. 516,523-24.)

Just as a mala fide act has no existence in the eye of

law, even so, unreasonableness vitiates law and procedure

alike. It is therefore essential that the procedure

prescribed by law for depriving a person of his fundamental

right, in this case the right to life, must confirm to the

norms of justice and fairplay. Procedure, which is unjust or

unfair in the circumstances of a case, attracts the vice of

unreasonableness, thereby vitiating the law which prescribes

that procedure and consequently, the action taken under it.

Any action taken by a public authority which is invested

with statutory powers has, therefore, to be tested by the

application of two standards: The action must be within the

scope of the authority conferred by law and secondly, it

must be reasonable. If any action, within the scope of the

authority conferred by law, is found to be unreasonable it

must mean that the procedure established by law under which

that

action is taken is itself unreasonable. The substance of the

law cannot be divorced from the procedure which it prescribe

for, how reasonable the law is, depends upon how fair is the

procedure prescribed by it, Sir Raymond Evershad says that,

from the point of view of the ordinary citizen, it is the

procedure that will most strongly weigh with him. He will

tend to form his judgment of the excellence or otherwise of

the legal system from his personal knowledge and experience

in seeing the legal machine at work", [`The influence of

Remedies on Rights' (Current Legal Problems 1953, Volume

6.)]. Therefore, He that takes the procedural sword shall

perish with the sword. "[Per Frankfurter J. in Viteralli v.

Seton 3 L.Ed. (2nd Series) 1012]

Justice K.K.Mathew points out in his article on `The

welfare State, Rule of Law and Natural Justice', which is to

be found in his book `Democracy, equality and Freedom', that

there is "substantial agreement in juristic thought that the

great purpose of the rule of law notion is the protection of

the individual against arbitrary exercise of power wherever

it is found". Adopting that formulation, Bhagwati J.,

speaking for the Court, observed in Ramana Dayaram, Shetty

v. The International Airport Authority of India, [1979] 3

S.C.R. 1014,1032 that it is "unthinkable that in a democracy

governed by the rule of law, the executive Government or any

of its officers should possess arbitrary power over the

interest of the individual. Every action of the executive

Government must be informed with reason and should be free

from arbitrariness. That is the very essence of the rule of

law and its bare minimal requirement".

Having given our anxious and solicitous consideration

to this question, we are of the opinion that the procedure

prescribed by Section 314 of the Bombay Municipal

Corporation Act for removal of encroachments on the

footpaths or pavements over which the public has the right

of passage or access, cannot be regarded as unreasonable,

unfair or unjust. There is no static measure of

reasonableness which can be applied to all situations alike.

Indeed, the question "is this procedure reasonables implies

and postulates the inquiry as to whether the procedure

prescribed is reasonable in the circumstances of the case,

In Francis Coralie Mullin, [1981] 2 S.C.R. 516, Bhagwati,J.,

Said :

"... ... it is for the Court to decide in exercise

of its constitutional power of judicial review

whether the deprivation of life or personal

liberty in a given

case is by procedure, which is reasonable, fair

and just or it is otherwise." (emphasis supplied,

page 524).

In the first place, footpaths or pavements are public

properties which are intended to serve the convenience of

the general public. They are not laid for private use and

indeed, their use for a private purpose frustrates the very

object for which they are carved out from portions of public

streets. The main reason for laying out pavements is to

ensure that the pedestrians are able to go about their daily

affairs with a reasonable measure of safety and security.

That facility, which has matured into a right of the

pedestrians, cannot be set at naught by allowing

encroachments to be made on the pavements. There is no

substance in the argument advanced on behalf of the

petitioners that the claim of the pavement dwellers to put

up constructions on pavements and that of the pedestrians to

make use of the pavements for passing and repassing, are

competing claims and that the former should be preferred to

the latter. No one has the right to make use of a public

property for a private purpose without the requisite

authorisation and, therefore, it is erroneous to contend

that the pavement dwellers have the right to encroach upon

pavement by constructing dwellings thereon. Public streets,

of which pavements form a part, are primarily dedicated for

the purpose of passage and, even the pedestrians have but

the limited right of using pavements for the purpose of

passing and repassing. So long as a person does not

transgress the limited purpose for which pavements are made,

his use thereof is legitimate and lawful. But, if a person

puts any public property to a use for which it is not

intended and is not intended and is not authorised so to use

it, he becomes a trespasser. The common example which is

cited in some of the English cases (see, for example,

Hickman v. Maisey, [1900] 1 Q.B. 752, is that if a person,

while using a highway for passage, sits down for a time to

rest himself by the side of the road, he does not commit a

trespass. But, if a person puts up a dwelling on the

pavement, whatever may be the economic compulsions behind

such an act, his user of the pavement would become

unauthorised. As stated in Hickman, it is not easy to draw

an exact line between the legitimate user of a highway as a

highway and the user which goes beyond the right conferred

upon the public by its dedication. But, as in many other

cases, it is not difficult to put cases well on one side of

the line. Putting up a dwelling on the pavement is a case

which is clearly on one side of the line showing that it is

an act of trespass. Section 61 of the Bombay Municipal

Corporation Act lays down the obligatory

duties of the Corporation, under clause (d) of which, it is

its duty to take measures for abetment of all nuisances. The

existence of dwellings on the pavements is unquestionably a

source of nuisance to the public, at least for the reason

that they are denied the use of pavements for passing and

repassing. They are compelled, by reason of the occupation

of pavements by dwellers, to use highways and public streets

as passages. The affidavit filed on behalf of the

Corporation shows that the fall-out of pedestrians in large

numbers on highways and streets constitutes a grave traffic

hazard. Surely, pedestrians deserve consideration in the

matter of their physical safety, which cannot be sacrificed

in order to accommodate persons who use public properties

for a private purpose, unauthorizedly. Under clause (c) of

section 61 of the B.M.C. Act, the Corporation is under an

obligation to remove obstructions upon public streets

another public places. The counter-affidavit of the

Corporation shows that the existence of hutments on

pavements is a serious impediment in repairing the roads,

pavements, drains and streets. Section 63(k), which is

discretionary, empowers the Corporation to take measures to

promote public safety, health or convenience not

specifically provided otherwise. Since it is not possible to

provide any public conveniences to the pavement dwellers on

or near the pavements, they answer the nature's call on the

pavements or on the streets adjoining them. These facts

provide the background to the provision for removal of

encroachments on pavements and footpaths.

The challenge of the petitioners to the validity of the

relevant provisions of the Bombay Municipal Corporation Act

is directed principally at the procedure prescribed by

section 314 of that Act, which provides by clause (a) that

the Commissioner may, without notice, take steps for the

removal of encroachments in or upon ay street, channel,

drain, etc. By reason of section 3(w), `street' includes a

causeway, footway or passage. In order to decide whether the

procedure prescribed by section 314 is fair and reasonable,

we must first determine the true meaning of that section

because, the meaning of the law determines its legality. If

a law is found to direct the doing of an act which is

forbidden by the Constitution or to compel, in the

performance of an act, the adoption of a procedure which is

impermissible under the Constitution, it would have to be

struck down. Considered in its proper perspective, section

314 is in the nature of an enabling provision and not of a

compulsive character. It enables the Commissioner, in

appropriate cases, to dispense with previous notice to

persons who are likely to be affected by the proposed

action. It does not require and, cannot be read to mean

that, in total disregard of the relevant circumstances

pertaining to a given situation, the Commissioner must cause

the removal of an encroachment without issuing previous

notice. The primary rule of construction is that the

language of the law must receive its plain and natural

meaning. What section 314 provides is that the Commissioner

may, without notice, cause an encroachment to be removed. It

does not command that the Commissioner shall, without

notice, cause an encroachment to be removed. Putting it

differently, section 314 confers on the Commissioner the

discretion to cause an encroachment to be removed with or

without notice. That discretion has to be exercised in a

reasonable manner so as to comply with the constitutional

mandate that the procedure accompanying the performance of a

public act must be fair and reasonable. We must lean in

favour of this interpretation because it helps sustain the

validity of the law. Reading section 314 as containing a

command not to issue notice before the removal of an

encroachment will make the law invalid.

It must further be presumed that, while vesting in the

Commissioner the power to act without notice, the

Legislature intended that the power should be exercised

sparingly and in cases of urgency which brook no delay. In

all other cases, no departure from the audi alteram partem

rule ('Hear the other side') could be presumed to have been

intended. Section 314 is so designed as to exclude the

principles of natural justice by way of exemption and not as

a general rule. There are situations which demand the

exclusion of the rules of natural justice by reason of

diverse factors like time, place the apprehended danger and

so on. The ordinary rule which regulates all procedure is

that persons who are likely to be affected by the proposed

action must be afforded an opportunity of being heard as to

why that action should not be taken. The hearing may be

given individually or collectively, depending upon the facts

of each situation. A departure from this fundamental rule of

natural justice may be presumed to have been intended by the

Legislature only in circumstances which warrant it. Such

circumstances must be shown to exist, when so required, the

burden being upon those who affirm their existence.

It was urged by Shri K.K.Singhvi on behalf of the

Municipal Corporation that the Legislature may well have

intended that no notice need be given in any case whatsoever

because, no useful purpose could be served by issuing a

notice as to why an encroachment on a public property should

not be removed. We have indicated above that far from so

intending, the Legislature has left

it to the discretion of the Commissioner whether or not to

give notice, a discretion which has to be exercised

reasonably. Counsel attempted to demonstrate the practical

futility of issuing the show cause notice by pointing out

firstly, that the only answer which a pavement dweller, for

example, can make to such a notice is that he is compelled

to live on the pavement because he has no other place to go

to and secondly, that it is hardly likely that in pursuance

of such a notice, pavement dwellers or slum dwellers would

ask for time to vacate since, on their own showing, they are

compelled to occupy some pavement or slum or the other if

they are evicted. It may be true to say that, in the

generality of cases, persons who have committed

encroachments on pavements or on other public properties may

not have an effective answer to give. It is a notorious fact

of contemporary life in metropolitan cities, that no person

in his senses would opt to live on a pavement or in a slum,

if any other choice were available to him. Anyone who cares

to have even a fleeting glance at the pavement or slum

dwellings will see that they are the very hell on earth.

But, though this is so, the contention of the Corporation

that no notice need be given because, there can be no

effective answer to it, betrays a misunderstanding of the

rule of hearing, which is an important element of the

principles of natural justice. The decision to dispense with

notice cannot be founded upon a presumed impregnability of

the proposed action. For example, in the common run of

cases, a person may contend in answer to a notice under

section 314 that (i) there was, in fact, no encroachment on

any public road, footpath or pavement, or (ii) the

encroachment was so slight and negligible as to cause no

nuisance or inconvenience to other members of the public, or

(iii) time may be granted for removal of the encroachment in

view of humane consideration arising out of personal,

seasonal or other factors. It would not be right to assume

that the Commissioner would reject these or similar other

considerations without a careful application of mind. Human

compassion must soften the rough edges of justice in all

situation. The eviction of the pavement or slum dweller not

only means his removal from the house but the destruction of

the house itself. And the destruction of a dwelling house is

the end of all that one holds dear in life. Humbler the

dwelling, greater the suffering and more intense the sense

of loss.

The proposition that notice need not be given of a

proposed action because, there can possibly be no answer to

it, is contrary to the well-recognized understanding of the

real import of the rule of hearing. That proposition

overlooks that justice must

not only be done but must manifestly be seen to be done and

confuses one for the other. The appearance of injustice is

the denial of justice. It is the dialogue with the person

likely to be affected by the proposed action which meets the

requirement that justice must also be seen to be done.

Procedural safeguards have their historical origins in the

notion that conditions of personal freedom can be preserved

only when there is some institutional check on arbitrary

action on the part of public authorities. (Kadish,

"Methodology and Criteria in Due Process Adjudication - A

Survey and Criticism," 66 Yale L.J. 319,340 [1957]. The

right to be heard has two facets, intrinsic and

instrumental. The intrinsic value of that right consists in

the opportunity which it gives to individuals or groups,

against whom decision taken by public authorities operate,

to participate in the processes by which those decisions are

made, an opportunity that expresses their dignity as

persons. (Golberg v. Kelly, 397 U.S. 254, 264-65 [1970]

right of the poor to participate in public processes).

"Whatever its outcome, such a hearing represents a

valued human interaction in which the affected

person experience at least the satisfaction of

participating in the decision that vitally

concerns her, and perhaps the separate

satisfaction of receiving an explanation of why

the decision is being made in a certain way. Both

the right to be heard from, and the right to be

told why, are analytically distinct from the right

to secure a different outcome; these rights to

inter change express the elementary idea that to

be a person, rather than a thing is at least to be

consulted about what is done with one. Justice

Frankfurter captured part of this sense of

procedural justice when he wrote that the

"Validity and moral authority of a conclusion

largely depend on the mode by which it was

reached......... No better instrument has been

devised for arriving at truth than to give a

person in jeopardy of serious loss notice of the

case against him and opportunity to meet it. Nor

has a better way been found for generation the

feeling, so important to a popular government,

that justice has been done". Joint Anti-fascist

refugee Committee v. Mc Grath, 341, U.S. 123, 171-

172 (1951). At stake here is not Just the much-

acclaimed appearance of justice but, from a

perspective that treats process as intrinsically

significant, the very essence of justice", (See

American

Constitutional Law" by Laurence H. Tribe,

Professor of Law, Harvard University (Ed. 1978,

page 503).

The instrumental facet of the right of hearing consists in

the means which it affords of assuring that the public rules

of conduct, which result in benefits and prejudices alike,

are in fact accurately and consistently followed.

"It ensures that a challenged action accurately

reflects the substantive rules applicable to such

action; its point is less to assure participation

than to use participation to assure accuracy."

Any discussion of this topic would be incomplete

without reference to an important decision of this Court in

S.L. Kapoor v. Jagmohan, [1981] 1 S.C.R. 746,766. In that

case, the suppression of the New Delhi Municipal Committee

was challenged on the ground that it was in violation of the

principles of natural justice since, no show cause notice

was issued before the order of suppression was passed.

Linked with that question was the question whether the

failure to observe the principles of natural justice matters

at all, if such observance would have made no difference,

the admitted or indisputable facts speaking for themselves.

After referring to the decisions in Ridge v. Baldwin, [1964]

A.C.40 at 68; John v. Reeas, [1970] 1 Chancery 345 at 402;

Annamuthodo v. Oil fields Workers' Trade Union,[1961] 3 All

E.R. 621 (H.L.) at 625; Margarita Fuentes at al. v. Tobert

L.Shevin, 32 L.Ed. 2d 556 at 574; Chintepalli Agency Taluk

Arrack Sales Cooperative Society Ltd. v. Secretary (Food &

Agriculture) Government of Anadhra Pradesh, [1978] 1 S.C.R.

563 at 567,569-570, and to an interesting discussion of the

subject in Jackson's Natural Justice (1980 Edn.) the Court,

speaking through one of us, Chinnappa Reddy, J. Said:

"In our view the principles of natural justice

know of no exclusionary rule dependent on whether

it would have made any difference if natural

justice had been observed. The non-observance of

natural justice is itself prejudice to any man and

proof of prejudice independently of proof of

denial of natural justice is unnecessary. It will

comes from a person who has denied justice that

the person who has been denied justice is not

prejudiced."

These observations sum up the true legal position regarding

the purport and implications of the right of hearing.

The jurisprudence requiring hearing to be given to

those who have encroached on pavements and other public

properties evoked a sharp response from the respondents

counsel. "Hearing to be given to trespassers who have

encroached on public properties? To persons who commit

crimes?" they seemed to ask in wonderment. There is no doubt

that the petitioners are using pavements and other public

properties for an unauthorised purpose. But, their intention

or object in doing so is not to "commit an offence or

intimidate, insult or annoy any person", which is the gist

of the offence of 'Criminal trespass' under section 441 of

the Penal Code. They manage to find a habitat in places

which are mostly filthy or marshy, out of sheer

helplessness. It is not as if they have a free choice to

exercise as to whether to commit an encroachment and if so,

where. The encroachments committed by these persons are

involuntary acts in the sense that those acts are compelled

by inevitable circumstances and are not guided by choice.

Trespass is a tort. But, even the law of Torts requires that

though a trespasser may be evicted forcibly, the force used

must be no greater than what is reasonable and appropriate

to the occasion and, what is even more important, the

trespasser should be asked and given a reasonable

opportunity to depart before force is used to expel him.

(See Ramaswamy Iyer's 'Law of Torts' 7th Ed. by Justice and

Mrs. S. K. Desai, (page 98, para 41). Besides, under the Law

of Torts, necessity is a plausible defence, which enables a

person to escape liability on the ground that the acts

complained of are necessary to prevent greater damage, inter

alia, to himself. "Here, as elsewhere in the law of torts, a

balance has to be struck between competing sets of values

............ " (See Salmond and Heuston, 'Law of Torts',

18th Ed. (Chapter 21, page 463, Article 185-'Necessity').

The charge made by the State Government in its

affidavit that slum and pavement dwellers exhibit especial

criminal tendencies is unfounded. According to Dr.

P.K.Muttagi, Head of the unit for urban studies of the Tata

Institute of Social Sciences, Bombay, the surveys carried

out in 1972, 1977,1979 and 1981 show that many families

which have chosen the Bombay footpaths just for survival,

have been living there for several years and that 53 per

cent of the pavement dwellers are self-employed as hawkers

in vegetables, flowers, ice-cream, toys, balloons, buttons,

needles and so on. Over 38 per cent are in the wage-employed

category as casual labourers, construction workers, domestic

servants and luggage carriers. Only 1.7 per cent of the

total number is generally unemployed. Dr. Muttagi found

among the pavement dwellers a

graduate of Marathwada University and Muslim Post of some

standing. "These people have merged with the landscape,

become part of it, like the chameleon", though their contact

with their more fortunate neighbours who live in adjoining

high-rise buildings is casual. The most important finding of

Dr. Muttagi is that the pavement dwellers are a peaceful

lot, "for, they stand to lose their shelter on the pavement

if they disturb the affluent or indulge in fights with their

fellow dwellers". The charge of the State Government,

besides being contrary to these scientific findings, is born

of prejudice against the poor and the destitute. Affluent

people living in sky-scrapers also commit crimes varying

from living on the gains of prostitution and defrauding the

public treasury to smuggling. But, they get away. The

pavement dwellers, when caught, defend themselves by asking,

"who does not commit crimes in this city ? As observed by

Anand Chakravarti, "The separation between existential

realities and the rhetoric of socialism indulged in by the

wielders of power in the government cannot be more

profound." 'Some aspects of inequality in rural India : A

Sociological Perspective published in 'Equality and

Inequality, Theory and Practice' edited by Andre Beteille,

1983.

Normally, we would have directed the Municipal

Commissioner to afford an opportunity to the petitioners to

show why the enroachments committed by them on pavements or

footpaths should not be removed. But, the opportunity which

was denied by the Commissioner was granted by us in an ample

measure, both sides having mate their contentions

elaborately on acts as well as on law. Having considered

those contentions, we are of the opinion that the

Commissioner was justified in directing the removal of the

encroachments committed by the petitioners on pavements,

footpaths or accessory roads. As observed in S.L. Kapoor,

(Supra) "where on the admitted or indisputable facts only

one conclusion is possible and under the law only one

penalty is permissible, the Court may not issue its writ to

compel the observance of natural justice, not because it is

not necessary to observe natural justice but because Courts

do not issue futile writs . Indeed, in that case, the Court

did not set aside the order of supersession in view of the

factual position stated by it. But, though we do not see any

justification for asking the Commissioner to hear the

petitioners, we propose to pass an order which, we believe,

he would or should have passed, had he granted a hearing to

them and heard what we did. We are of the opinion that the

petitioners should not be evicted from the pavements,

footpaths or accessory roads until one month after the

conclusion of the current monsoon season, that is to say,

until October 31,

1985. In the meanwhile, as explained later, steps may be

taken to offer alternative pitches to the pavement dwellers

who were or who happened to be censused in 1976. The offer

of alternative pitches to such pavement dwellers should be

made good in the spirit in which it was made, though we do

not propose to make it a condition precedent to the removal

of the encroachments committed by them.

Insofar as the Kamraj Nagar Basti is concerned, there

are over 400 hutments therein. The affidavit of the

Municipal Commissioner, Shri D.M.Sukhthankar, shows that the

Basti was constructed on an accessory road, leading to the

highway. It is also clear from that affidavit that the

hutments were never regularised and no registration numbers

were assigned to them by the Road Development Department.

Since the Basti is situated on a part of the road leading to

the Express Highway, serious traffic hazards arise on

account of the straying of the Basti children on to the

Express Highway, on which there is heavy vehicular traffic.

The same criterion would apply to the Kamraj Nagar Basti as

would apply to the dwellings constructed unauthorisedly on

other roads and pavements in the city.

The affidavit of Shri Arvind V. Gokak, Administrator of

the Maharashtra Housing and Areas Development Authority,

Bombay, shows that the State Government had taken a decision

to compile a list of slums which were required to be removed

in public interest and to allocate, after a spot inspection,

500 acres of vacant land in or near the Bombay Suburban

District for resettlement of hutment dwellers removed from

the slums. A census was accordingly carried out on January

4, 1976 to enumerate the slum dwellers spread over about 850

colonies all over Bombay. About 67% of the hutment dwellers

produced photographs of the heads of their families, on the

basis of which the hutments were numbered and their

occupants were given identity cards. Shri Gokak further says

in his affidavit that the Government had also decided that

the slums which were in existence for a long time and which

were improved and developed, would not normally be

demolished unless the land was required for a public

purposes. In the event that the land was so required, the

policy of the State Government was to provide alternate

accommodation to the slum dwellers who were censused and

possessed identity cards. The Circular of the State

Government dated February 4, 1976 (No. STS/176/D-41) bears

out this position. In the enumeration of the hutment

dwellers, some persons occupying pavements also happened to

be given census cards. The Government decided to allot

pitches to such persons at a place near Malavani. These

assurance held forth by the Government must be made good. In

other words despite the finding recorded by us that the

provision contained in section 314 of the B.M.C. Act is

valid, pavement dwellers to whom census cards were given in

1976 must be given alternate pitches at Malavani though not

as a condition precedent to the removal of encroachments

committed by them. Secondly, slum dwellers who were censused

and were given identity cards must be provided with

alternate accommodation before they are evicted. There is a

controversy between the petitioners and the State Government

as to the extent of vacant land which is available for

resettlement of the inhabitants of pavements and slums.

Whatever that may be, the highest priority must be accorded

by the State Government to the resettlement of these

unfortunate persons by allotting to them such land as the

Government finds to be conveniently available. The

Maharashtra Employment Guarantee Act, 1977, the Employment

Guarantee Scheme, the 'New Twenty Point Socio-Economic

Programme, 1982', the 'Affordable Law Income Shelter

Programme in Bombay Metropolitan Region' and the Programme

of House Building for the economically weaker sections' must

not remain a dead letter as such schemes and programmes

often do. Not only that, but more and more such programmes

must be initiated if the theory of equal protection of laws

has to take its rightful place in the struggle for equality.

In these matters, the demand is not so much for less

governmental interference as for positive governmental

action to provide equal treatment to neglected segments of

society. The profound rhetoric of socialism must be

translated into practice for, the problems which confront

the State are problems of human destiny.

During the course of arguments, an affidavit was filed

by Shri S.K.Jahagirdar, Under Secretary in the Department of

Housing, Government of Maharashtra, setting out the various

housing schemes which are under the consideration of the

State Government. The affidavit contains useful information

on various aspects relating to slum and pavement dwellers.

The census of 1976 which is referred to in that affidavit

shows that 28.18 lakhs of people were living in 6,27,404

households spread over 1680 slum pockets. The earning of 80

per cent of the slum house holds did not exceed Rs.600 per

month. The State Government has a proposal to undertake 'Low

Income Scheme Shelter Programme' with the aid of the World

Bank. Under the Scheme, 85,000 small plots for construction

of houses would become available, out of which 40,000 would

be in Greater Bombay, 25,00 in the Thane-Kalyan area and

20,000 in the New Bombay region. The State Government is

also

proposing to undertake 'Slum Upgradation Programme(SUP)'

under which basic civic amenities would be made available to

the slum dwellers. We trust that these Schemes, grandiose as

they appear, will be pursued faithfully and the aid obtained

from the World Bank utilised systematically and effectively

for achieving its purpose.

There is no short term or marginal solution to the

question of squatter colonies, nor are such colonies unique

to the cities of India. Every country, during its historical

evolution, has faced the problem of squatter settlements and

most countries of the under-developed world face this

problem today. Even the highly developed affluent societies

face the same problem, though with their larger resources

and smaller populations, their task is far less difficult.

The forcible eviction of squatters, even if they are

resettled in other sites, totally disrupts the economic life

of the household. It has been a common experience of the

administrators and planners that when resettlement is

forcibly done, squatters eventually sell their new plots and

return to their original sites near their place of

employment. Therefore, what is of crucial importance to the

question of thinning out the squatters' colonies in

metropolitan cities is to create new opportunities for

employment in the rural sector and to spread the existing

job opportunities evenly in urban areas. Apart from the

further misery and degradation which it involves, eviction

of slum and pavement dwellers is an ineffective remedy for

decongesting the cities. In a highly readable and moving

account of the problems which the poor have to face, Susan

George says: ('How the other Half Dies The Real Reasons for

World Hunger' (Polican books).

"So long as thorough going land reform, re-

grouping and distribution of resources to the

poorest, bottom half of the population does not

take place, Third World countries can go on

increasing their production until hell freezes and

hunger will remain, for the production will go to

those who already have plenty to the developed

world or to the wealthy in the Third World itself.

Poverty and hunger walk hand in hand ."(Page 18).

We will close with a quotation from the same book which

has a massage:

"Malnourished babies, wasted mothers, emaciated

corpses in the streets of Asia have definite and

definable reasons for existing. Hunger may have

been the human race's constant companion, and 'the

poor may always be with us', but in the twentieth

century, one cannot take this fatalistic view of

the destiny of millions of fellow creatures. Their

condition is not inevitable but is caused by

identifiable forces within the province of

rational, human control". (p.15)

To summarise, we hold that no person has the right to

encroach, by erecting a structure or otherwise, on

footpaths, pavements or any other place reserved or ear-

marked for a public purpose like, for example, a garden or a

playground; that the provision contained in section 314 of

the Bombay Municipal Corporation Act is not unreasonable in

the circumstances of the case; and that, the Kamraj Nagar

Basti is situated on an accessory road leading to the

Western Express Highway. We have referred to the assurances

given by the State Government in its pleadings here which,

we repeat, must be made good. Stated briefly, pavement

dwellers who were censused or who happened to be censused in

1976 should be given, though not as a condition precedent to

their removal, alternate pitches at Malavani or at such

other convenient place as the Government considers

reasonable but not farther away in terms of distance; slum

dwellers who were given identity cards and whose dwellings

were numbered in the 1976 census must be given alternate

sites for their resettlement; slums which have been in

existence for a long time, say for twenty years or more, and

which have been improved and developed will not be removed

unless the land on which they stand or the appurtenant land,

is required for a public purposes, in which case, alternate

sites or accommodation will be provided to them, the 'Low

Income Scheme Shelter Programme' which is proposed to be

undertaken with the aid of the World Bank will be pursued

earnestly; and, the Slum Upgradation Programme (SUP)' under

which basic amenities are to be given to slum dwellers will

be implemented without delay. In order to minimise the

hardship involved in any eviction, we direct that the slums,

wherever situated, will not be removed until one month after

the end of the current monsoon season, that is, until

October 31,1985 and, thereafter, only in accordance with

this judgment. If any slum is required to be removed before

that date, parties may apply to this Court. Pavement

dwellers, whether censused or uncensused, will not be

removed until the same date viz. October 31, 1985.

The Writ Petitions will stand disposed of accordingly.

There will be no order as to costs.

M.L.A. Petitions disposed of.

100