Olga Tellis & Ors Vs. Bombay
Municipal Corporation & Ors [1985] INSC 155 (10 July 1985)
CHANDRACHUD, Y.V. ((CJ) 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.
52 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.
53 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.
54 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 55 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.
56
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 be 57 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 58
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 59
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. 60 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 61 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-
H]
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]
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 62 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.
63 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, 64 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
65 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 66 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 67 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- 68 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
69 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 70 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 71 '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 72 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." 73 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, 74 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 75 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 76
(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 77 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 78 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 79 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 80 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 81 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 82 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 83 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".
84 "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 A.
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." By section 3(w), "street" includes a causeway, footway,
passage etc., over which the public have a right of passage or access.
85 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 86 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 87 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 88 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 89 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 90 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 91 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 92 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.
93 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 94 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, 95 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 96 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 97 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:
98 "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.
99 The Writ Petitions will stand disposed of
accordingly.
There will be no order as to costs.
M.L.A. Petitions disposed of.
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