The entire story of Olga Tellis case

The Olga Tellis case is considered as one of the important case in judicial history that Changed India. In the case, the court gave the fundamental right of ‘Right to livelihood”. If we say in two lines, this case emerged when Bombay municipality went to slum and Pavment dwellings to remove them, the slum adn pavement dwellers approached the Bombay high court and high court gave interim relief, despite the interim relief, the pavement dwellings were removed and the dwellers forcibly deported to their home towns. Against this the dwellers approached Supreme court with the help of journalists and social activists and one of the journalist was Olga tellis.

And, now the story in detail-

Backstory of the case

July 13, 1981

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 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.”

July 23, 1981

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 removed the ramshackle shelters on the pavements with the aid of police, the pavement dwellers fled to less conspicuous pavements in by-lanes and, when the officials were gone, they returned to their old habitats. Their main attachment to those places was the nearness thereof to their place of work.

The backstory of these miserable people

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 used to live in it with his wife and three daughters who were 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.

Origin of the Case

Against the removal of pavement dwellings, two group of petitioners approached the court. First group had the these above mentioned two persons and a journalist.

The other group was of 12 petitioners whose petitions were heard with first group. The first five of these were residents of Kamraj Nagar, a basti or habitation which was 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 was the Peoples’ Union of Civil Liberties; petitioner No. 11 was the Committee for the Protection of Democratic Rights while petitioner No. 12 was the journalist Prafulla chandra Bidwai.

The story of Kamraj Nagar

The case of the petitioners in the Kamraj Nagar group of cases was that there were 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 were 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.

Case in the High Court

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, 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.

Ground for the relief

The decision of the respondents to demolish the huts was challenged by the petitioners on the ground that it violate Articles 19 and 21 of the Constitution. The petitioners also asked for a declaration that the provisions of sections 312, 313 and 314 of the Bombay Municipal Corporation Act, 1888 are invalid as violating Articles 14, 19 and 21 of the Constitution.

The petitioners challenged the vires of section 314[1] 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 was contended 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

The reliefs asked for in the two groups of writ petitions were 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.

The side of Government

To counter the argument of the petitioner, on behalf of the Government of Maharashtra, a counter- affidavit filed.

As per the counter-affidavit, 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 said 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.

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.

The side of Bombay Municipal Corporation

On behalf of the Bombay Municipal Corporation, a counter-affidavit has been filed. That affidavit shows that 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 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.”

Rejoinder of the petitioner

In answer to the Municipal Commissioner’s counter- affidavit, petitioner no. 12. Prafulla chandra Bidwai who was a journalist, filed a rejoinder asserting that Kamraj Nagar was not located on a foot-path or a pavement.

According to him,

• Kamraj Nagar was a basti off the Highway, in which the huts were numbered, the record in relation to which was maintained by the Road Development Department and the Bombay Municipal Corporation.

• Contending that petitioners 1 to 5 had been residing in the said basti for over 20 years, he reiterated that the public had no right of way in or over the Kamraj Nagar.

• He also disputed that the huts on the foot-paths caused any obstruction to the pedestrians or to the vehicular traffic or that those huts were a source of nuisance or danger to public health and safety.

• Since, the foot-paths are in the occupation of pavement dwellers for a long time, foot-paths have ceased to be foot-paths.

• He said that the pavement dwellers and the slum or basti dwellers, supply the major work force for Bombay from menial Jobs to the most highly skilled jobs, that they had 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.

• 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.

Main thrust of the petitioner’s case

The main thrust of the petitioners’ case was 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.

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).

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.

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 were 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.

The decision of the court

After reviewing the many aspects of ‘Right to livelihood’, the measurement of poverty, the condition of pavement and slum dwellers, and considering the specific conditions of the case, the court held 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; the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads.

• The charge made by the State Government in its affidavit that slum and pavement dwellers exhibit especial criminal tendencies is unfounded.

• the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; section 314 is in the nature of an enabling provision and not of a compulsive character. 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.

• 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 Malvani 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 or accommodation will be provided to them,

• 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 court directed 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.

Reference

Olga Tellis & Ors vs Bombay Municipal Corporation; 1986 AIR 180, 1985 SCR Supl. (2) 51

[1] 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;

(c) any article whatsoever hawked or exposed for 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.”