presentation 1 on slum laws

8/11/2019 Presentation 1 on slum laws

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AIR 1986 SC 18

P RESENTATION ON CASE STUDY REPORT OF OLGA TELLIS & ORS.V S . BOMBAY MUNICIPAL

CORPORATION


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Legal aplitude of the casePARTIES IN THE CASEAppellant Ms. Olga TellisVayyapuri Kuppusami

Respondent Bombay Municipal CorporationState of MaharashtraLAWS INVOLVED IN THE CASEConstitution of India 1950: Articles 14, 15, 16, 19, 19(1),21, 22, 25, 29, 32, 37, 39, and Article 41I.P.C, 1860: Section 441.Bombay Municipal Corporation Act, 1888: Sections 312,313, 314.


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Facts of the caseThe state of Maharashtra and the Bombay MunicipalCorporation somewhere in the June of 1981 decided toevict the pavement dwellers and those who were residingin slums in Bombay. Pursuant to that, the then ChiefMinister of Maharashtra Mr. A. R. Antulay ordered on July

13 to evict slum dwellers and pavement dwellers out ofBombay and to deport them to their place of origin.The eviction was to proceed under Section 314 of theBombay Municipal Corporation Act 1888.On hearing about the Chief Ministers announcementregarding eviction of slum dwellers and pavement dwellersout of Bombay they filed a writ petition in the High Court ofBombay for an order of injunction restraining the officers ofthe state government and the Bombay MunicipalCorporations from implementing the directive of the Chief

Minister.


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Cont.The High Court of Bombay granted an ad interiminjunction to be in force until July 21 1981.Respondents agreed that the huts will not bedemolished until October 15, 1981. Contrary to

agreement, on July 23 1981, petitioners werehuddled in to State Transport buses for beingdeported out of Bombay.They respondents action was challenged by thepetitioner on the ground that it is violation of

Articles 19(1)(3), 19(1)(g) and Article 21 of theConstitution. The Respondents also ask for adeclaration that Section 312, 313 and 314 of theBombay Municipal Corporation Act 1888 are

violative of Article 14, 19 and 21 of theConstitution.


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Issue InvolvedQuestion of Estoppels against fundamentalrights or Waiver of Fundamental Rights.Constitutionality of provisions of BombayMunicipal Corporation Act, 1888Scope of right to life under Article 21 of theConstitutionWhether pavement dwellers are trespasser

under IPC.


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Quest ion of Estop pels against fun damental r igh ts or Waiver ofFund amental Rights .

Court Observed, there can neither estoppelagainst the Constitution nor waiver offundamental rights. Court observed : Noindividual can barter away the freedomsconferred upon him by the Constitution. Aconcession made by him in a proceeding whetherunder a mistake of law or otherwise that he doesnot possess or will not enforce any particularfundamental right, cannot create an estoppelagainst him in that or any subsequentproceedings. Such a concession if enforcedwould defeat the purpose of the Constitution.


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Scope of right to life under Article 21 of theCons t i tu t ion

Court observed, The sweep of the right to life conferred by Article 21 of the constitution of India is wide and far reaching. Itdoes not mean merely that life cannot be reduce or taken awayexcept according to procedure established by law. That is butone of the important aspect of the right to life. An equallyimportant aspect of that right is the right to livelihood because noperson can live without the means of livelihood. If the right tolivelihood 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 toremove him of his means of livelihood to the point of abrogation.

And such deprivation would not only denude the life of itseffective content and meaningfulness but it would make lifeimpossible to live. And yet, the Court further added, such

deprivation would not have to be in accordance with theprocedure established by law, if the right to livelihood is notregarded as a part of the right to life. Deprive a person of hisright to livelihood and you shall have deprived him of his life. Itwould be a total didacticism, in the light of Article 39(a) and 41, toexclude the right to livelihood from the content of the right to life


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Cons t i tu t ional ity o f p rov i s ions o f B om bay Munic ipalCorp orat ion Ac t , 1888

the Constitution does not put an absolute embargo on the deprivation oflife or personal liberty. By Article 21 such deprivation has to beaccording to procedure established law.Section 314 is in the nature of an enabling provision and not of acompulsive character. It confers on the commissioner the discretion tocause an encroachment to be removed with or without notice. It is sodesigned as to exclude the principles of natural justice by way ofexception and not as a general rule. The sections 312(1), 313(1)(a), and314 empowers the Municipal Commissioner to cause to removedencroachment on footpaths over which the public has the right ofpassage, cannot be regarded as unreasonable, unfair or unjust.Justice Chinnappa Reddy, J. Said: In our view the principles of natural

justice know of no exclusionary rule dependent on whether it wouldhave made any difference if natural justice had been observed. Thenon-observance of natural justice is itself prejudice to any man andproof of prejudice independently of proof of denial of natural justice isunnecessary. It will come from a person who has denied justice that theperson who has been denied justice is not prejudiced.


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Whether pavement dwellers are trespasser underIPC.

Who does not commit crime in this city? There is nodoubt that the petitioners are using pavements andother public properties for an unauthorized 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 or the offence of 'Criminaltrespass' under Section 441 of the Penal Code.The encroachments committed by these persons areinvoluntary acts in the sense that those acts arecompelled by inevitable circumstances and are notguided by choice. Trespass is a tort. But, even the lawof Torts requires that though a trespasser may beevicted forcibly, the force used must be no greaterthan what is reasonable and appropriate to theoccasion and, what is even more important, thetrespasser should be asked and given a reasonable

opportunity to depart before force is used to expelhim.


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Cou rt HeldThough the Court declined to hold that evicteddwellers had a right to an alternative site but insteadmade orders that:No person has the right to encroach on footpaths,pavements or any other place reserved or ear markedfor public purpose.The provision contained in Section 314 of the BombayMunicipal Corporation Act is not unreasonable in thecircumstances of the case.

Sites should be provided to residents censused in1976.Slums in existence for 20 years or more were not tobe removed unless land was required for publicpurposes and in that case, alternative sites must beprovided.


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Concluding RemarksThis judgment reflects very much the Principle of Utilitypropounded by Jeremy Bentham. Principle of Utility contain thatmotto of a state action should be the maximum happiness of themaximum number. According to Jeremy Bentham happinesscan be maximized only if instance of pain are lighter and fewer.The judgment delivered by the Honble Court can be said to bethe replica of the idea embodied in the Principle of Utility. Slumand pavement dwellers constitute almost half of the totalpopulation of the Bombay. Involvement of interests of such alarge number of peoples compelled the Court to pen down intheir favour despite of the existence of the specific law for theeviction of pavement dwellers. According to chief justiceY.V.Chandrachud, although the petitioners are using pavements

and public properties unauthorizedly, but they are in no waycriminal trespassers under section 441 of the Indian PenalCode since their object or reason behind doing so is not tocommit any offence or intimidates, insult or annoy any person,rather they are compelled by inevitable circumstances and arenot guided by choice. They just manage to find a habitat in filthyor marshy places. This decision where widened the scope of theterm life, has also paved the way for reformation of substantivelaw.


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Thank you !

presentation 1 on slum laws

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