Olga Tellis v. Bombay Municipal Corporation

Facts

Pavement and slum dwellers in Bombay, who made up nearly half the city's population, challenged the State's 1981 decision, announced by the Chief Minister, to demolish pavement dwellings and remove the occupants, and the demolitions that followed. The petitioners, including a journalist and civil liberties bodies, did not claim a right to live on pavements. They argued that eviction would deprive them of their livelihood and so of their right to life under Article 21, and that Sections 312 to 314 of the Bombay Municipal Corporation Act, 1888, which allow encroachments on streets to be removed without notice, were invalid. The Corporation objected that the petitioners had conceded in the Bombay High Court that they had no fundamental right to build on pavements and were estopped.

Questions before the Court

1. Can a concession in earlier proceedings that no fundamental right exists estop the petitioners from asserting their fundamental rights?
2. Does the right to life under Article 21 include the right to livelihood, and does eviction of pavement and slum dwellers deprive them of it?
3. Is Section 314 of the Bombay Municipal Corporation Act, which permits removal of encroachments without notice, an unfair and unreasonable procedure?

What the Court held

• There can be no estoppel against the Constitution. A concession by a person that he does not possess or will not enforce a fundamental right cannot bind him in that or any later proceeding; no individual can barter away the freedoms the Constitution confers.
• The right to life under Article 21 includes the right to livelihood, since no person can live without the means of living. The State may not be compellable to provide livelihood, but a person deprived of it except by just and fair procedure established by law can challenge that as offending Article 21.
• On the material before the Court, eviction of the petitioners would deprive them of their livelihood and so of life. But no one has a right to encroach on footpaths, pavements or other places reserved for a public purpose; putting up a dwelling on a pavement is trespass.
• Section 314 is an enabling provision: it lets the Commissioner remove encroachments with or without notice, a discretion to be exercised reasonably and, without notice, only sparingly in urgent cases. So read, it is not unreasonable. The petitioners had been fully heard in Court, and removal of their encroachments was justified.
• Evictions were deferred until 31 October 1985. Pavement dwellers censused in 1976 were to get alternative pitches, though not as a condition precedent to removal; censused slum dwellers were to get alternative sites; and slums existing about twenty years or more were not to be removed unless the land was needed for a public purpose, with alternative sites then provided.

Why it matters

The judgment holds that the right to life in Article 21 includes the right to livelihood, and that fundamental rights cannot be waived or lost by estoppel through a concession in litigation. It reads a power to act without notice as a discretion subject to the requirement of fair procedure, and it shows the Court combining a finding that encroachment on public land is unlawful with directions for deferment and resettlement.

In the Court's words

Copied from the official judgment; each passage links to its page.

Provisions interpreted

• Article 21, Constitution
• Article 32, Constitution
• Sections 312, 313 and 314, Bombay Municipal Corporation Act, 1888

Related judgments

• Follows Maneka Gandhi v. Union of India (1978)“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.” (page 26)
• Follows Basheshar Nath v. Commissioner of Income-tax (1958)“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.” (page 21)

Case and bench

Parties

Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. etc.

Case

Writ Petition Nos. 4610-4612 & 5068-5079 of 1981

Decided

10 July 1985

Bench

Chandrachud, Y.V. (CJ), Fazalali, Syed Murtaza, Tulzapurkar, V.D., Reddy, O. Chinnappa, Varadarajan, A.

Opinions

Unanimous. Judgment of the Court delivered by Chandrachud, CJ.

Questions on this case

4 questions in live Law Maker papers mention this case. A few from free papers:

1. Question 1 · Landmark Judgments Practice Set 1

   Assertion (A): In Olga Tellis v. Bombay Municipal Corporation (1985), pavement dwellers who had conceded before the High Court that they claimed no fundamental right to put up huts on pavements were not barred from enforcing their fundamental rights under Article 32. Reason (R): There can be no estoppel against the Constitution or against the enforcement of fundamental rights.

   1. A. Both A and R are true, but R is not the correct explanation of A
   2. B. A is true, but R is false
   3. C. Both A and R are true, and R is the correct explanation of A
   4. D. A is false, but R is true
   Show the answer

   C. Both A and R are true, and R is the correct explanation of A

   The Corporation argued that the petitioners were estopped by their concession and undertaking in the High Court. The Supreme Court rejected this, holding that there can be no estoppel against the Constitution, since fundamental rights are conferred in public interest and cannot be waived; that principle is exactly why the concession did not bar the Article 32 petition.