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OLGA TLLIS ! O"S #$ %O&%AY &'NICI(AL
CO"(O"ATION ! O"S [1985] INSC 155 )1*
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+!'87'81- $ 17 SC1:!7 +:1'17- F 11 SC 171 +89'98'889'89'8"!- $F 11
SC111; +"- $F 11 SC178 +8:- / 18 SC ;! +19-
%C15
Constitution of India' 1"7 5
%rticle 98 < Fundamental $i=hts < /stoppel < 2rinciple behind < #o estoppel can be
claimed a=ainst enforcement of Fundamental $i=hts)
%rticle 81' 1+1- +e- > +=- < 2a?ement and slum d@ellers Forcible e?iction and
remo?al of their hutments under AombaB 0unicipal Corporation %ct < Whether
depri?es them of their means of li?elihood and conseCuentlB ri=ht to life < $i=ht to
life < 0eanin= of < Whether includes ri=ht to li?elihood)
%rticle 98 > 81 < Writ 2etition a=ainst procedurallB ultra ?ires Do?ernment action <
Whether maintainable)
AombaB 0unicipal Corporation %ct' 1!!!' s)91: < 2o@er to remo?e encroachments
E@ithout notice ' @hen permissible < Section < Whether ultra ?ires the Constitution)
%dministrati?e La@ < #atural ,ustice < %udi alteram partem < #otice < Discretion to
act @ith or @ithout notice must be eFercised reasonablB' fairlB and GustlB < #atural
Gustice < /Fclusion < Ho@ far permissible)
H/%D#41/5
1he petitioners in @rit petitions #os) :617<18H!1 li?e on pa?ements and in slums in
the citB of AombaB) Some of the petitioners in the second batch of @rit petitions
#os)"76!< ; of 1!1' are residents of 3amraG #a=ar' a basti or habitation @hich is
alle=ed to ha?e come into eFistence in about 167<61' near the Western /Fpress
Hi=h@aB' AombaB' @hile others are residin= in structures constructed off the 1ulsi
2ipe $oad' 0ahim' AombaB) 1he 2eoples &nion for Ci?il Liberties' Committee for
the 2rotection of Democratic $i=hts and t@o Gournalists ha?e also Goined in the @rit
petitions)
"8 Some time in 1!1' the respondents < State of 0aharashtra and AombaB 0unicipal
Corporation took a decision that all pa?ement d@ellers and the slum or busti d@ellers
in the citB of AombaB @ill be e?icted forciblB and deported to their respecti?e places
of ori=in or remo?ed to places outside the citB of AombaB) 2ursuant to that decision'
the pa?ement d@ellin=s of some of the petitioners @ere in fact demolished bB the
AombaB 0unicipal Corporation) Some of the petitioners challen=ed the aforesaid
decision of the respondents in the Hi=h Court) 1he petitioners conceded before the
Hi=h Court that theB could not claim anB fundamental ri=ht to put up huts on
pa?ements or public roads' and also =a?e an undertakin= to ?acate the huts on or
before 4ctober' 1"' 1!1) 4n such undertakin= bein= =i?en' the respondents a=reed
that the huts @ill not be demolished until 4ctober 1"' 1!1 and the @rit petition @as
disposed of accordin=lB)
In @rit petitions filed under %rticle 98' the petitioners challen=ed the decision of the
respondents to demolish the pa?ement d@ellin=s and the slum hutments on the
=rounds +i- that e?ictin= a pa?ement d@eller from his habitat amounts to depri?in=
him of his ri=ht to li?elihood' @hich is comprehended in the ri=ht =uaranteed bB
%rticle 81 of the Constitution that no person shall be depri?ed of his life eFcept
accordin= to procedure established bB la@' +ii- that the impu=ned action of the State
Do?ernment and the AombaB 0unicipal Corporation is ?iolati?e of the pro?isions
contained in %rticle 1+1-+9-' 1+1-+=- and 81 of the Constitution' +iii- that the
procedure prescribed bB Section 91: of the AombaB 0unicipal Corporation %ct' 1!!!
for the remo?al of encroachments from pa?ements is arbitrarB and unreasonable since'
not onlB does it not pro?ide for the =i?in= of a notice before the remo?al of an
encroachment but' eFpresslB enables that the 0unicipal Commissioner maB cause the
encroachments to be remo?ed @ithout notice ' +i?- that it is constitutionallB
impermissible to characterise the pa?ement d@ellers as ItrespassersI' because their
occupation of pa?ements arises from economic compulsionsJ
and +?- that the Court must determine the content of the Iri=ht to lifeI' the function of
propertB in a @elfare state' the dimension and true meanin= of the constitutional
mandate that propertB must subser?e common =ood' the s@eep of the ri=ht to reside
and settle in anB part of the territorB of India @hich is =uaranteed bB %rticle 1+1- +a-
and the ri=ht to carrB on anB occupation' trade or business @hich is =uaranteed bB
%rticle 1+1- +=-' the competin= claims of pa?ement d@ellers on the one hand and of
the pedestrians on the other and' the lar=er Cuestion of ensurin= eCualitB before the
la@)
"9 1he respondents contested the @rit petitions contendin= that +1- the petitioners
must be estopped from contendin= in the Supreme Court that the huts constructed bB
them on the pa?ements cannot be demolished because of their ri=ht to li?elihood'
since theB had conceded in the Hi=h Court that theB did not claim anB fundamental
ri=ht to put up huts on pa?ements or public roads and had =i?en an undertakin= to the
Hi=h Court that theB @ill not obstruct the demolition of the huts after 4ctober 1"'
1!1)J +8- that no person has anB le=al ri=ht to encroach upon or to construct anB
structure on a foot<path' public street or on anB place o?er @hich the public has a ri=ht
of @aB) 1he ri=ht conferred bB %rticle 1+1- +e- of the Constitution to reside and settle
in anB part of India cannot be read to confer a licence to encroach and trespass upon
public propertBJ +9- that the pro?isions of sections 918' 919 and 91: of the AombaB
0unicipal Corporation %ct do not ?iolate the Constitution' but are concei?ed in public
interest and =reat care is taken bB the authorities to ensure that no harassment is
caused to anB pa?ement d@eller bB enforcin= the pro?isionsJ +:- that the huts near the
Western /Fpress Hi=h@aB' *ile 2arle' AombaB' @ere constructed on an accessorB
road @hich is a part of the Hi=h@aB itself' and @ere ne?er re=ularised bB the
Corporation and no re=istration numbers @ere assi=ned to themJ +"- that no
depri?ation of life' either directlB or indirectlB is in?ol?ed in the e?iction of the slum
and pa?ement d@eller from public places) 1he 0unicipal Corporation is under an
obli=ation under section 91: of the A)0)C) %ct to remo?e obstruction on pa?ements'
public streets and other public places) 1he petitioners ha?e not onlB ?iolated the
pro?isions of the AombaB 0unicipal Corporation %ct' but theB ha?e contra?ened
sections 111 and 11" of the AombaB 2olice %ct also)
Disposin= of the @rit petitions' K
H/LD5 1)1 1he petitions are clearlB maintainable under %rticle 98 of the Constitution)
Where the action taken a=ainst a citiLen is procedurallB ultra ?ires' the a==rie?ed
partB can mo?e the Supreme Court under %rticle 98) [; C<D] #aresh Shridhar
0iraGkar ?) State of 0aharashtra [166] 9 S)C)$) ;::<;;7' follo@ed)
Smt) &GGam Aai ?) State of &ttar 2ardesh) [169] 1 S)C)$) ;;!' referred to)
": 1)8 1here can be no estoppel a=ainst the Constitution)
1he Constitution is not onlB the paramount la@ of the land but' it is the source and
sustenance of all la@s) Its pro?isions are concei?ed in public interest and are intended
to ser?e a public purpose) 1he doctrine of estoppel is based on the principle that
consistencB in @ord and action imparts certaintB and honestB to human affairs) If a
person makes representation to another' on the faith of @hich the latter acts to is
preGudice' the former cannot resile from the representation made bB him) He must
make it =ood) 1his principle can ha?e no application to representations made
re=ardin= the assertion or enforcement of fundamental ri=hts) [;; C</]
1)9 Fundamental ri=hts are undoubtedlB conferred bB the Constitution upon
indi?iduals @hich ha?e to be asserted and en forced bB them' if those ri=hts are
?iolated) Aut' the hi=h purpose @hich the Constitution seeks to achie?e bB conferment
of fundamental ri=hts is not onlB to benefit indi?iduals but to secure the lar=er
interests of the communitB) 1he 2reamable of the Constitution saBs that India is a
democratic $epublic) It is in order to fulfil the promise of the 2reamble that
fundamental ri=hts are conferred bB the Constitution' some on citiLens like those
=uaranteed bB %rticles 1"' 16' 1' 81 and 8 and' some on citiLens and non<citiLens
alike' like those =uaranteed bB %rticles 1:' 81' 88 and 8" of the Constitution) #o
indi?idual can barter a@aB the freedoms conferred upon him bB the Constitution) %
concession made bB him in a proceedin=s' @hether under a mis take of la@ or
other@ise' that he does not possess or @ill not enforce anB particular fundamental
ri=ht' cannot create an estoppel a=ainst him in that or anB subseCuent proceedin=s)
Such a concession' if enforced' @ould defeat the purpose of the Constitution) [;; F<H'
;! %<A] 1he plea of estoppel is closelB connected @ith the plea of @ai?er' the obGect
of both bein= to ensure bona fides in daB<to daB transactions) [;! D] In the instant
case' not@ithstandin= the fact that the petitioners had conceded in the AombaB Hi=h
Court that theB ha?e no fundamental ri=ht to construct hutments on pa?ements and
that theB @ill not obGect to their demolition after 4ctober 1"' 1!1' theB are entitled to
assert that anB such action on the part of public authorities @ill be in ?iolation of their
fundamental ri=hts) Ho@ far the ar=ument re=ardin= the eFistence and scope of the
ri=ht claimed bB the petitioners is @ell<founded is "" another matter< Aut' the
ar=ument has to be eFamined despite the concession) [;! C<D] Aasheshar #ath ?) 1he
Commissioner of Income 1aF Delhi +1"- Supp) 1 S)C)$) "8!' referred to)
8)1 1he s@eep of the ri=ht to life conferred bB %rticle 81 is @ide and far reachin=) It
does not mean merelB that life cannot be eFtin=uished or taken a@aB as' for eFample'
bB the imposition and eFecution of the death sentence' eFcept accordin= to procedure
established bB la@) 1hat is but one aspect of the ri=ht to life) %n eCuallB important
facet of that ri=ht is the ri=ht to li?elihood because' no person can li?e @ithout the
means of li?in=' that is' the means of li?elihood) If the ri=ht to li?elihood is not treated
as a part of the constitutional ri=ht to li?e' the easiest @aB of depri?in= a person of his
ri=ht to life @ould be to depri?e him of his means of li?elihood to the point of
abro=ation) Such depri?ation @ould not onlB denude the life of its effecti?e content
and meanin=fulness but it @ould make life impossible to li?e) %nd Bet' such
depri?ation @ould not ha?e to be in accordance @ith the procedure established bB la@'
if the ri=ht to li?elihood is not re=arded as a part of the ri=ht to life) 1hat' @hich alone
makes it possible to li?e' lea?e aside @hat makes like li?able' must be deemed to be
an inte=ral component of the ri=ht to life) [; F<H' !7 %<A]
8)8 1he principles contained in %rticles 9+a- and :1 must be re=arded as eCuallB
fundamental in the understandin= and interpretation of the meanin= and content of
fundamental ri=hts) If there is an obli=ation upon the State to secure to the citiLens an
adeCuate means of li?elihood and the ri=ht to @ork' it @ould be sheer pedantrB to
eFclude the ri=ht to li?elihood from the content of the ri=ht to life)
1he State maB not' bB affirmati?e action' be compellable to pro?ide adeCuate means
of li?elihood or @ork to the citiLens) Aut' anB person @ho is depri?ed of his ri=ht to
li?elihood eFcept accordin= to Gust and fair procedure established bB la@' can
challen=e the depri?ation as offendin= the ri=ht to life conferred bB %rticle 81) [!7 D<
H' !1 %] 0unn ?) Illinois [1!;;] : &S 119 and 3harak Sin=h ?)
1he State of &)2) [16:] 1 S)C)$) 998 referred to)
In $e5 Sant $am +167- 9 S)C)$) :' distin=uished)
"6
8)9 In a matter like the one in @hich the future of half of the citBIs population is at
stake' the Court must consult authentic empirical data compiled bB a=encies' official
and non<official) It is bB that process that the core of the problem can be reached and a
satisfactorB solution found) It @ould be unrealistic on the part of the Court to reGect
the petitions on the =round that the petitioners ha?e not adduced e?idence to sho@ that
theB @ill be rendered Gobless if theB are e?icted from the slums and pa?ements)
Common sense' @hich is a cluster of lifeIs eFperiences' is often more dependable than
the ri?al facts presented bB @arrin= liti=ants) [!8 A<C] In the instant case' it is clear
from the ?arious eFpert studies that one of the main reasons of the emer=ence and
=ro@th of sCuatter<settlements in bi= 0etropolitan cities like AombaB' is the
a?ailabilitB of Gob opportunities @hich are lackin= in the rural sector) 1he undisputed
fact that e?en after e?iction' the sCuatters return to the cities affords proof of that
position) 1hese facts constitute empirical e?idence to GustifB the conclusion that
persons in the position of petitioners li?e in slums and on pa?ements because theB
ha?e small Gobs to nurse in the citB and there is no@here else to li?e) /?identlB' theB
choose a pa?ement or a slum in the ?icinitB of their place of @ork' the time other@ise
taken in commutin= and its cost bein= forbiddin= for their slender means) 1o lose the
pa?ement or the slum is to lose the Gob) 1he conclusion' therefore' in terms of the
constitutional phraseolo=B is that the e?iction of the petitioners @ill lead to
depri?ation of their li?elihood and conseCuentlB to the depri?ation of life) [!8 D' !9
A<D]
9)1 1he Constitution does not put an absolute embar=o on the depri?ation of life or
personal libertB) It is far too @ell settled to admit of anB ar=ument that the procedure
prescribed bB la@ for the depri?ation of the ri=ht conferred bB %rticle 81 must be fair'
Gust and reasonable) ,ust as a mala fide act has no eFistence in the eBe of la@' e?en so'
unreasonableness ?itiates la@ and procedure alike) It is therefore essential that the
procedure prescribed bB la@ for depri?in= a person of his fundamental ri=ht' must
conform to the means of Gustice and fair plaB) 2rocedure' @hich is unGust or unfair in
the circumstances of a case' attracts the ?ice of unreasonableness' therebB ?itiatin= the
la@ @hich prescribes that procedure and conseCuentlB' the action taken under it) %nB
action taken bB a public authoritB @hich is in?ested @ith statutorB po@ers has'
therefore' to be tested bB the application of t@o standards5 1he action must be ";
@ithin the scope of the authoritB conferred bB la@ and secondlB' it must be
reasonable) If anB action' @ithin the scope of the authoritB conferred bB la@' is found
to be unreasonable' it must mean that the procedure established bB la@ under @hich
that action is taken is itself unreasonable)
1he substance of the la@ cannot be di?orced from the procedure @hich it prescribes
for' ho@ reasonable the la@ is' depends upon ho@ fair is the procedure prescribed bB
it)
[!9 /' !" F<H' !6 %]
9)8 In order to decide @hether the procedure prescribed bB section 91: is fair and
reasonable' the Court must first determine the true meanin= of that section because'
the meanin= of the la@ determines its le=alitB) Considered in its proper perspecti?e'
section 91: is in the nature of an enablin= pro?ision and not of a compulsi?e
character) It enables the Commissioner in appropriate cases' to dispense @ith pre?ious
notice to persons @ho are likelB to be affected bB the proposed action) It does not
reCuire and' cannot be read to mean that' in total disre=ard of the rele?ant
circumstances pertainin= to a =i?en situation' the Commissioner must cause the
remo?al of an encroachment @ithout issuin= pre?ious notice) 1he primarB rule of
construction is that the lan=ua=e of the la@ must recei?e its plain and natural
meanin=) What section 91: pro?ides is that the Commissioner maB' @ithout notice'
cause an encroachment to be remo?ed) It does not command that the Commissioner'
shall @ithout notice' cause an encroachment to be remo?ed) 2uttin= it differentlB'
section 91: confers on the Commissioner the discretion to cause an encroachment to
be remo?ed @ith or @ithout notice) 1hat discretion has to be eFercised in a reasonable
manner so as to complB @ith the constitutional mandate that the procedure
accompanBin= the performance of a public act must be fair and reasonable) 1he Court
must leen in fa?our of this interpretation because it helps sustain the ?aliditB of the
la@) $eadin= section 91: as containin= a command not to the issue before the remo?al
of an encroachment @ill make the la@ in?alid) [!! H' ! %<D]
9)9 Section 91: is so desi=ned as to eFclude the principles of natural Gustice bB @aB of
eFception and not as a =eneral rule) 1here are situations @hich demand the eFclusion
of the rules of natural Gustice bB reason of di?erse factors like time' place' the
apprehended dan=er and so on) 1he ordinarB rule @hich re=ulates all procedure is that
persons @ho are likelB to be affected bB the proposed action must be afforded an
opportunitB of bein= heard as to @hB that action should not be taken) 1he hearin= maB
be =i?en indi?iduallB or collecti?elB' dependin= upon the facts "! of each situation) %
departure from this fundamental rule of natural Gustice maB be presumed to ha?e been
intended bB the Le=islature onlB in circumstances @hich @arrant it) Such
circumstances must be kno@n to eFist' @hen so reCuired' the burden bein= upon those
@ho affirm their eFistence) [! /<D]
9): 1he proposition that notice need not be =i?en of a pro posed action because' there
can possiblB be no ans@er to it' is contrarB to the @ell<reco=niLed understandin= of
the real import of the rule of hearin=) 1hat proposition o?erlooks that Gustice must not
onlB be done but must manifestlB be seen to be done and confuses one for the other)
1he appearance of inGustice is the denial of Gustice)
It is the dialo=ue @ith the person likelB to be affected bB the proposed action @hich
meets the reCuirement that Gustice must also be seen to be done) 2rocedural safe=uards
ha?e their historical ori=ins in the notion that conditions of personal freedom can be
preser?ed onlB @hen there is some institutional check on arbitrarB action on the part
of the public authorities) 1he ri=ht to be heard has t@o facets' intrinsic and
instrumental) 1he intrinsic ?alue of that ri=ht consists in the opportunitB @hich it
=i?es to indi?iduals or =roups' a=ainst @hom decision taken bB public authorities
operate' to participate in the processes bB @hich those decisions are made' an
opportunitB that eFpresses their di=nitB as persons) [7 H' 1 %<D] /)2) $oBappa ?)
State of 1amil #adu [1;:] 8 S)C)$)
9:!' 0aneka Dandhi ?) &nion of India [1;!] 8 S)C)$) 681' 0)4) Hoscot ?) State of
0aharashtra [1;] 1 S)C)$) 18' Sunil Aatra' I ?) Delhi %dministration [1;] 1
S)C)$) 98' Sita $am) State of &)2) [1;] 8 S)C)$) 17!"' Hussainra 3hatoon' I ?)
Home Secret anB State of Aihar' 2atna [1;] 9 S)C)$) "98'"9;) Husinara 3hatoon'II
?) Home SecretarB State of Aihar' 2atna [1!7] 1 S)C)C) !1 Sunil Aatra' II) ?) Delhi
%dministration [1!7] 8 S)C)$) "";' ,ollB Deor=e *er=hese ?)
1he Aank of Cochin [1!7] 8 S)C)$) 19' 81<88) 3asturi Lal Lakshmi $edB ?) State
of ,ammu > 3ashmir [1!7] 9 S)C)$)
199!' 19"6' Francis Coralie 0uliin ?) 1he %dministrator &nion 1erritorB of Delhi
[1!1] 8 S)C)$) "16' "89<"8:' 1he Influence of $emedies on $i=htsI +Current Le=al
2roblems [1"9] *olume 6-' 2er Frankfurter' ,) in *iterall ?) Seton 9 L) /d +8nd
series- 1718' $amana DaBaram ShettB ?) 1he International %irport %uthoritB of India
[1;] 9 S)C)$)
171:' 1798' referred to)
In the instant case' the procedure prescribed bB Section 91: of the AombaB 0unicipal
Corporation %ct for remo?al of encroachments on the footpaths or pa?ements o?er
@hich the public has the " ri=ht of passa=e or access' cannot be re=arded as
unreasonable' unfair or unGust) 1here is no static measure of reasonableness @hich can
be applied to all situations alike) Indeed' the Cuestion is this procedure reasonableME
implies and postulates the inCuirB as to @hether the procedure prescribed is
reasonable in the circumstances of the case)
Francis Corlie 0ullin ?) 1he %dministrator' &nion 1erritorB of Delhi [1!1] 8 S)C)$)
"16' "89<"8:' referred to)
9)" Footpaths or pa?ements are public properties @hich are intended to ser?e the
con?enience of the =eneral public)
1heB are not laid for pri?ate use and indeed' their use for a pri?ate purpose frustrates
the ?erB obGect for @hich theB are car?ed out from portions of public streets) 1he main
reason for laBin= out pa?ements is to ensure that the pedestrians are able to =o about
their dailB affairs @ith a reasonable measure of safetB and securitB) 1hat facilitB'
@hich has matured into a ri=ht of the pedestrians' cannot be set at nau=ht bB allo@in=
encroachments to be made on the pa?ements) [!; A<C]
9)6 #o one has the ri=ht to make use of a public propertB for a pri?ate purpose
@ithout the reCuisite authorisation and' therefore' it is erroneous to contend that the
pa?ement d@ellers ha?e the ri=ht to encroach upon pa?ements bB constructin=
d@ellin=s thereon) 2ublic streets' of @hich pa?ements form a part' are primarilB
dedicated for the purpose of passa=e and' e?en the pedestrians ha?e but the limited
ri=ht of usin= pa?ements for the purpose of passin= and repassin=) So lon= as a person
does not trans=ress the limited purpose for @hich pa?ements are made' his use thereof
is le=itimate and la@ful) Aut' if a person puts anB public propertB to a use for @hich it
is not intended and is not authorised so to use it' he becomes a trespasser) [!; D<F]
2uttin= up a d@ellin= on the pa?ement is a case @hich is clearlB on one side of the
line sho@in= that it is an act of trespass) [!; H] Hickman ?) 0aiseB [1!7] 1 N)A)
;"8' referred to)
S)L) 3apoor ?) ,a=mohan [1!1] 1 S)C)$) ;:6' ;66' $id=e ?) Aald@in [16:] %C :7
at 6!' ,ohn ?) $ees [1;7] 1 ChancerB 9:" at :78' %nnamunthodo ?) 4il fields
WorkersI 1rade &nion [161] 9 %ll /)$) 681 +H)L)- at 68"' 0ar=arits Fuentes at al ?)
1obert L)
67 She?in 98' L) /d) 8nd ""6 at ";:' Chintepalli %=encB 1aluk %rrack Sales
Cooperati?e SocietB Ltd) ?) SecretarB +Food and %=riculture- [1;!] 1 S)C)$) "69 at
"6;' "6<;7' relied upon)
:)1 1here is no doubt that the petitioners are usin= pa?ements and other public
properties for an unauthorised purpose) Aut' their intention or obGect in doin= so is not
to Ecommit an offence or intimidate insult or annoB anB personE' @hich is the =ist of
the offence of ECriminal trespassE under section ::1 of the 2enal Code) 1heB mana=e
to find a habitat in places @hich are mostlB filthB or marshB' out of sheer helplessness)
It is not as if theB ha?e a free choice to eFercise as to @hether to commit an
encroachment and if so' @here) 1he encroachment committed bB these persons are
in?oluntarB acts in the sense that those acts are compelled bB ine?itable circumstances
and are not =uided bB choice) 1respass is a tort) Aut' e?en the la@ of 1orts reCuires
that thou=h a trespasser maB be e?icted forciblB' the force used must be no =reater
than @hat is reasonable and appropriate to the occasion and' @hat is e?en more
important' the trespasser should be asked and =i?en a reasonable opportunitB to depart
before force is used to eFpel him) [9 %<D] In the instant case' the Court @ould ha?e
directed the 0unicipal Commissioner to afford an opportunitB to the petitioners to
sho@ @hB the encroachments committed bB them on pa?ements or footpaths should
not be remo?ed) Aut' the opportunitB @hich @as denied bB the Commissioner @as
=ranted bB the Supreme Court in an ample measure' both sides ha?in= made their
contentions elaboratelB on facts as @ell as on la@) Ha?in= considered those
contentions the Court is of the opinion that the Commissioner @as Gustified in
directin= the remo?al of the encroachments committed bB the petitioners on
pa?ements' footpaths or accessorB roads) [: /<F]
:)8 2a?ement d@ellers @ho @ere censused or @ho happened to be censused in 1;6
should be =i?en' thou=h not as a condition precedent to their remo?al' alternate
pitches at 0ala?ani or' at such other con?enient place as the Do?ernment considers
reasonable but not farther a@aB in terms of distanceJ slum d@ellers @ho @ere =i?en
identitB cards and @hose d@ellin=s @ere numbered in the 1;6 census must be =i?en
alternate sites for their resettlementJ slums @hich ha?e been in eFistence for a lon=
time' saB for t@entB Bears or more' and @hich ha?e been impro?ed and de?eloped @ill
not be remo?ed unless the land on @hich theB stand or the appurtenant land' is
reCuired for a public purpose' in @hich case' alternate sites of accommodation @ill be
pro?ided to 61 themJ the ILo@ Income Scheme Shelter 2ro=rammeI @hich is proposed
to be undertaken @ith the aid of the World Aank @ill be pursued earnestlBJ and the
ISlum &p=radation 2ro=ramme +S&2-I under @hich basic amenities are to be =i?en to
slum d@ellers @ill be implemented @ithout delaB) In order to minimise the hardship
in?ol?ed in anB e?iction' the slums' @here?er situated' @ill not be remo?ed until one
month after the end of the current monsoon season' that is until 4ctober 91' 1!" and'
thereafter' onlB in accordance @ith this Gud=ment) If anB slum is reCuired to be
remo?ed before that date' parties maB applB to the Supreme Court)
2a?ement d@ellers' @hether censused or uncensused' @ill not be remo?ed until the
same date ?iL) 4ctober 91' 1!:) [! D< H]
:)9 In so far as the 3amraG #a=ar Aasti is concerned' there are o?er :77 hutments
therein) Since the Aasti is situated on a part of the road leadin= to the /Fpress
Hi=h@aB' serious traffic haLards arise on account of the straBin= of the Aasti children
on to the /Fpress Hi=h@aB' on @hich there is hea?B ?ehicular traffic) 1he same
criterion @ould applB to the 3amaraG #a=ar Aasti as @ould applB to the d@ellin=s
constructed unauthorisedlB on other roads and pa?ements in the citB) [" C<D]
4$IDI#%L ,&$ISDIC1I4# 5 Writ 2etition #os) :617<:618 > "76!<"7; of 1!1)
+&nder %rticle 98 of the Constitution of India)- 0iss Indira ,aisin=h' 0iss $ani
,ethmalani' %nand Dro?er and Sumeet 3achh@aha for the 2etitioners in W)2) #o)
:617<18 of 1!1)
$am ,ethmalani' *)0) 1arkunde' 0iss Darshna Aho=ilal' 0rs) Indu Sharma and 2)H)
2arekh for the 2etitioners in W)2)
#os) "76!<; of 1!1)
L)#) Sinha %ttorneB Deneral' 2) ShankaranaraBanan and 0)#) Shroff for $espondent
#os) 8 > 9 in W)2) #os) :617<18 of 1!1 and for $espondent #os) 1 and 9 in W)2)
#o) "76!<; of 1!1)
3)3)Sin=h?i' F)#)D) 0ollo and D)#) 0ishra for $espondent #o) 1 in W)2) #os) :617<
18 and for $espondent #o)
8 in W)2) #o)"76!<; of 1!1)
1he ,ud=ment of the Court @as deli?ered bB 5
CH%#D$%CH&D' C,) 1hese Writ 2etitions portraB the pli=ht of lakhs of persons
@ho li?e on pa?ements and in slums in the citB of AombaB) 1heB constitute nearlB
half the population of 68 the citB) 1he first =roup of petitions relates to pa?ement
d@ellers @hile the second =roup relates to both pa?ement and Aasti or Slum d@ellers)
1hose @ho ha?e made pa?ements their homes eFist in the midst of filth and sCualor'
@hich has to be seen to belie?ed) $abid do=s in search of stinkin= meat and cats in
search of hun=rB rats keep them companB) 1heB cook and sleep @here theB ease' for
no con?eniences are a?ailable to them) 1heir dau=hters' come of a=e' bathe under the
nosB =aLe of passers bB' unmindful of the feminine sense of bashfulness) 1he cookin=
and @ashin= o?er' @omen pick lice from each otherIs hair) 1he boBs be=) 0enfolk'
@ithout occupation' snatch chains @ith the conni?ance of the defenders of la@ and
orderJ @hen cau=ht' if at all' theB saB 5 EWho doesnIt commit crimes in this citB M It is
these men and @omen @ho ha?e come to this Court to ask for a Gud=ment that theB
cannot be e?icted from their sCualid shelters @ithout bein= offered alternati?e
accommodation) 1heB relB for their ri=hts on %rticle 81 of the Constitution @hich
=uarantees that no person shall be depri?ed of his life eFcept accordin= to procedure
established bB la@) 1heB do not contend that theB ha?e a ri=ht to li?e on the
pa?ements) 1heir contention is that theB ha?e a ri=ht to li?e' a ri=ht @hich cannot be
eFercised @ithout the means of li?elihood) 1heB ha?e no option but to flock to bi=
cities like AombaB' @hich pro?ide the means of bare subsistence) 1heB onlB choose a
pa?ement or a slum @hich is nearest to their place of @ork) In a @ord' their plea is
that the ri=ht to life is illusorB @ithout a ri=ht to the protection of the means bB @hich
alone life can be li?ed) %nd' the ri=ht to life can onlB be taken a@aB or abrid=ed bB a
procedure established bB la@' @hich has to be fair and reasonable' not fanciful or
arbitrarB such< as is prescribed bB the AombaB 0unicipal Corporation %ct or the
AombaB 2olice %ct) 1heB also relB upon their ri=ht to reside and settle in anB part of
the countrB @hich is =uaranteed bB %rticle 1+1-+e-)
1he three petitioners in the =roup of Writ 2etitions :617 :618 of 1!1 are a Gournalist
and t@o pa?ement d@ellers) 4ne of these t@o pa?ement d@ellers' 2) %n=amuthu'
mi=rated from Salem' 1amil #adu' to AombaB in the Bear 161 in search of
emploBment) He @as a landless labourer in his home to@n but he @as rendered
,obless because of drou=ht) He found a ,ob in a Chemical CompanB at Dahisar'
AombaB' on a dailB @a=e of $s<89 per daB) % slum<lord eFtorted a sum of $s)8'"7
from him in eFchan=e of a shelter of plastic sheets and can?as on a pa?ement on the
Western /Fpress Hi=h@aB' AombaB) He li?es in it @ith his @ife and three dau=hters
@ho are 16' 19 and " Bears of a=e)
69 1he second of the t@o pa?ement d@ellers came to AombaB in 16 from
San=amner' District %hmedna=ar' 0aharashtra) He @as a cobbler earnin= ; to !
rupees a daB' but his so<called house in the ?illa=e fell do@n) He =ot emploBment in
AombaB as a Aadli 3am=ar for $s) 9"7 per month) He @as luckB in bein= able to
obtain a Ed@ellin= houseE on a pa?ement at 1ulsi@adi bB paBin= $s) 977 to a =oonda
of the localitB) 1he bamboos and the plastic sheets cost him $s) ;77)
4n ,ulB 19' 1!1 the then Chief 0inister of 0aharashtra' Shri %)$) %ntulaB' made an
announcement @hich @as =i?en @ide publicitB bB the ne@spapers that all pa?ement
d@ellers in the citB of AombaB @ill be e?icted forciblB and deported to their
respecti?e places of ori=in or remo?ed to places outside the citB of AombaB) 1he
Chief 0inister directed the Commissioner of 2olice to pro?ide the necessarB
assistance to respondent 1' the AombaB 0unicipal Corporation' to demolish the
pa?ement d@ellin=s and deport the pa?ement d@ellers) 1he apparent Gustification
@hich the Chief 0inister =a?e to his announcement @as 5 EIt is a ?erB inhuman
eFistence) 1hese structures are flimsB and open to the elements) Durin= the monsoon
there is no @aB these people can li?e comfortablB)E 4n ,ulB 89' 1!1 the pa?ement
d@ellin= of 2) %n=amuthu @as demolished bB the officers of the AombaB 0unicipal
Corporation) He and the members of his familB @ere put in a bus for Salem) His @ife
and dau=hters staBed back in Salem but he returned to AombaB in search of a Gob and
=ot into a pa?ement house once a=ain) 1he d@ellin= of the other petitioner @as
demolished e?en earlier' in ,anuarB 1!7 but he rebuilt it) It is like a =ame of hide and
seek) 1he Corporation remo?es the ramshackle shelters on the pa?ements @ith the aid
of police' the pa?ement d@ellers flee to less conspicuous pa?ements in bB<lanes and'
@hen the officials are =one' theB return to their old habitats) 1heir main attachment to
those places is the nearness thereof to their place of @ork)
In the other batch of @rit petitions #os) "76!<; of 1!1' @hich @as heard alon= @ith
the petitions relatin= to pa?ement d@ellers' there are 18 petitioners) 1he first fi?e of
these are residents of 3amraG #a=ar' a basti or habitation @hich is alle=ed to ha?e
come into eFistence in about 167<61' near the Western /Fpress Hi=h@aB' AombaB)
1he neFt four petitioners @ere residin= in structures constructed off the 1ulsi 2ipe
$oad' 6: 0ahim' AombaB) 2etitioner #o) 17 is the 2eoplesI &nion of Ci?il Liberties'
petitioner #o) 11 is the Committee for the 2rotection of Democratic $i=hts @hile
petitioner #o) 18 is a Gournalist)
1he case of the petitioners in the 3amra, #a=ar =roup of cases is that there are o?er
"77 hutments in this particular basti @hich @as built in about 167 bB persons @ho
@ere emploBed bB a Construction companB en=a=ed in laBin= @ater pipes alon= the
Western /Fpress Hi=h@aB) 1he residents of 3amraG #a=ar are municipal emploBees'
factorB or hotel @orkers' construction super?isors and so on) 1he residents of the
1ulsi 2ipe $oad hutments claim that theB ha?e been li?in= there for 17 to 1" Bears
and that' theB are en=a=ed in ?arious small trades) 4n hearin= about the Chief
0inisterIs announcement' theB filed a @rit petition in the Hi=h Court of AombaB for
an order of inGunction restrainin= the officers of the State Do?ernment and the
AombaB 0unicipal Corporation from implementin= the directi?e of the Chief
0inister) 1he Hi=h Court =ranted an ad<interim inGunction to be in force until ,ulB 81'
1!1) 4n that date' respondents a=reed that the huts @ill not be demolished until
4ctober 1"' 1!1) Ho@e?er' it is alle=ed' on ,ulB 89' 1!1' the petitioners @ere
huddled into State 1ransport buses for bein= deported out of AombaB) 1@o infants
@ere born durin= the deportation but that @as set off bB the death of t@o others)
1he decision of the respondents to demolish the huts is challen=ed bB the petitioners
on the =round that it is ?iolati?e of %rticles 1 and 81 of the Constitution) 1he
petitioners also ask for a declaration that the pro?isions of sections 918' 919 and 91:
of the AombaB 0unicipal Corporation %ct' 1!!! are in ?alid as ?iolatin= %rticles 1:'
1 and 81 of the Constitution) 1he reliefs asked for in the t@o =roups of @rit petitions
are that the respondents should be directed to @ithdra@ the decision to demolish the
pa?ement d@ellin=s and the slum hutments and' @here theB are alreadB demolished'
to restore possession of the sites to the former occupants)
4n behalf of the Do?ernment of 0aharashtra' a counter< affida?it has been filed bB
*)S)0unGe' &nder SecretarB in the Department of Housin=) 1he counter<affida?it
meets the case of the petitioners thus) 1he Do?ernment of 0aharashtra neither
proposed to deport anB paBment d@eller out of the citB of AombaB nor did it' in fact'
deport anBone) Such of the pa?ement d@ellers' @ho eFpressed their desire in @ritin='
that theB @anted to return to their home to@ns and @ho sou=ht assistance from the
Do?ernment in 6" that behalf @ere offered transport facilities up to the nearest rail
head and @ere also paid rail@aB fare or bus fare and incidental eFpenses for the
on@ard GourneB) 1he Do?ernment of 0aharashtra had issued instructions to its
officers to ?isit specific pa?ements on ,ulB 89' 1!1 and to ensure that no harassment
@as caused to anB pa?ement d@eller) 4ut of 17'777 hutment<d@ellers @ho @ere likelB
to be affected bB the proposed demolition of hutments constructed on the pa?ements'
onlB 178: persons opted to a?ail of the transport facilitB and the paBment of incidental
eFpenses)
1he counter<affida?it saBs that no person has anB le=al ri=ht to encroach upon or to
construct anB structure on a footpath' public street or on anB place o?er @hich the
public has a ri=ht of @aB) #umerous haLards of health and safetB arise if action is not
taken to remo?e such encroachments) Since' no ci?ic amenities can be pro?ided on
the pa?ements' the pa?ement d@ellers use pa?ements or adGoinin= streets for easin=
themsel?es) %part from this' some of the pa?ement d@ellers indul=e in anti<social acts
like chain<snatchin=' illicit distillation of liCuor and prostitution) 1he lack of proper
en?ironment leads to increased criminal tendencies' resultin= in more crime in the
cities) It is' therefore' in public interest that public places like pa?ements and paths are
not encroached upon) 1he Do?ernment of 0aharashtra pro?ides housin= assistance to
the @eaker sections of the societB like landless labourers and persons belon=in= to
lo@ income =roups' @ithin the frame @ork of its planned policB of the economic and
social de?elopment of the State) %nB allocation for housin= has to be made after
balancin= the conflictin= demands from ?arious prioritB sectors) 1he paucitB of
resources is a restrainin= factor on the abilitB of the State to deal effecti?elB @ith the
Cuestion of pro?idin= housin= to the @eaker sections of the societB) 1he Do?ernment
of 0aharashtra has issued policB directi?es that ;" percent of the housin= pro=ramme
should be allocated to the lo@er income =roups and the @eaker sections of the societB)
4ne of the obGects of the StateIs plannin= policB is to ensure that the influF of
population from the rural to the urban areas is reduced in the interest of a proper and
balanced social and economic de?elopment of the State and of the countrB) 1his is
proposed to be achie?ed bB re?ersin= the rate of =ro@th of metropolitan cities and bB
increasin= the rate of =ro@th of small and medium to@ns) 1he State Do?ernment has
therefore' de?ised an /mploBment Duarantee Scheme to enable the rural population'
@hich remains unemploBed or underemploBed at certain periods of the Bear' to =et
emploBment durin= such periods) % sum 66 of about $s) 1!7 crores @as spent on that
scheme durin= the Bears 1;<!7 and 1!7<!1) 4n 4ctober 8' 1!7 the State
Do?ernment launched t@o additional schemes for pro?idin= emploBment
opportunities for those @ho cannot =et @ork due to old a=e or phBsical infirmities)
1he State Do?ernment has also launched a scheme for pro?idin= self<emploBment
opportunities under the ISanGaB Dandhi #iradhar %nudan (oGanaI) % monthlB pension
of $s) 67 is paid to those @ho are too old to @ork or are phBsicallB handicapped) In
this scheme' about 1'"6':9 persons ha?e been identified and a sum of $s) 8)8" crores
@as disbursed) &nder another scheme called ISanGaB Dandhi S@a@alamban (oGanaI'
interest<free loans' subGect to a maFimum of $s) 8'"77' @ere bein= =i?en to persons
desirin= to en=a=e themsel?es in =ainful emploBment of their o@n) %bout 1';"'777
persons had benefited under this scheme' to @hom a total sum of $s) ")!8 crores @as
disbursed bB @aB of loan) In short' the obGecti?e of the State Do?ernment @as to place
=reater emphasis on pro?idin= infrastructural facilities to small and medium to@ns
and to eCuip them so that theB could act as =ro@th and ser?ice centres for the rural
hinterland) 1he phenomenon of po?ertB @hich is common to all de?elopin= countries
has to be tackled on an %ll<India basis bB makin= the =ains of de?elopment a?ailable
to all sections of the societB throu=h a policB of eCuitable distribution of income and
@ealth)
&rbanisation is a maGor problem facin= the entire countrB' the mi=ration of people
from the rural to the urban areas bein= a reflection of the colossal po?ertB eFistin= in
the rural areas) 1he rural po?ertB cannot' ho@e?er' be eliminated bB increasin= the
pressure of population on metropolitan cities like AombaB) 1he problem of po?ertB
has to be tackled bB chan=in= the structure of the societB in @hich there @ill be a
more eCuitable distribution of income and =reater =eneration of @ealth) 1he State
Do?ernment has stepped up the rate of construction of tenements for the @eaker
sections of the societB from 8"77 to "77 per annum)
It is denied in the counter<affida?it that the pro?isions of sections 918' 919 and 91: of
the AombaB 0unicipal Corporation %ct ?iolate the Constitution) 1hose pro?isions are
concei?ed in public interest and =reat care is taken bB the authorities to ensure that no
harassment is caused to anB pa?ement d@eller @hile enforcin= the pro?isions of those
sections) 1he decision to remo?e such encroachments @as taken bB the Do?ernment
@ith specific instructions that e?erB reasonable precaution ou=ht to be taken to cause
the least possible incon?enience to the pa?ement d@ellers) What is more important' so
the counter< affida?it saBs' the Do?ernment of 0aharashtra had decided that' on the
basis of 6; the census carried out in 1;6' pa?ement d@ellers @ho @ould be uprooted
should be offered alternate de?eloped pitches at 0al?ani @here theB could construct
their o@n hutments)
%ccordin= to that census' about 8'"77 pa?ement hutments onlB @ere then in
eFistence)
1he counter<affida?it of the State Do?ernment describes the ?arious steps taken bB the
Central Do?ernment under the Fi?e Bear 2lan of 1;!<!9' in re=ard to the housin=
pro=rammes) 1he plan sho@s that the inadeCuacies of Housin= policies in India ha?e
both Cuantitati?e and Cualitati?e dimensions) 1he total in?estment in housin= shall
ha?e to be of the ma=nitude of $s) 8;7 crores' if the housin= problem has to be
tackled e?en partiallB)
4n behalf of the AombaB 0unicipal Corporation' a counter<affida?it has been filed bB
Shri D)0) Sukthankar' 0unicipal Commissioner of Dreater AombaB) 1hat affida?it
sho@s that he had ?isited the pa?ements on the 1ulsi 2ipe $oad +Senapati Aapat
0ar=- and the Western /Fpress Hi=h WaB' *ile 2arle +east-' AombaB) 4n ,ulB 89'
1!1' certain hutments on these pa?ements @ere demolished under section 91: of the
AombaB 0unicipal Corporation %ct) #o prior notice of demolition @as =i?en since
the section does not pro?ide for such notice) 1he affida?it denies that the intense
speculation in land prices' as alle=ed' o@es its ori=in to the Hi=h rise buildin=s @hich
ha?e come up in the citB of AombaB) It is also denied that there are ?ast ?acant pieces
of land in the citB @hich can be utilised for housin= the pa?ement d@ellers) Section 61
of the A)0)C) %ct laBs do@n the obli=atorB duties of the Corporation) &nder clauses
+c- and +d- of the said section' it is the dutB of the Corporation to remo?e
eFcrementitious matters' refuse and rubbish and to take measures for abatement of
e?erB kind of nuisance) &nder clause+=- of that section' the Corporation is under an
obli=ation to take measures for pre?entin= and checkin= the spread of dan=erous
diseases) &nder clause +o-' obstructions and proGections in or upon public streets and
other public places ha?e to be remo?ed) Section 69 +k- empo@ers the Corporation to
take measures to promote public safetB' health or con?enience' not specificallB
pro?ided other@ise) 1he obGect of Sections 918 to 91: is to keep the pa?ements and
foot<paths free from encroachment so that the pedestrians do not ha?e to make use of
the streets on @hich there is hea?B ?ehicular traffic) 1he pa?ement d@ellers ans@er
the natureIs call' bathe' cook and @ash their clothes and utensils on the foot<paths and
on parts of public streets adGoinin= the foot< 6! paths) 1heir encroachment creates
serious impediments in repairin= the roads' foot<paths and drains) 1he refusal to allo@
the petitioners and other persons similarlB situated to use foot<paths as their abodes is'
therefore' not unreasonable' unfair' or unla@ful) 1he basic ci?ic amenities' such as
draina=e' @ater and sanitation' cannot possiblB be pro?ided to the pa?ement d@ellers)
Since the pa?ements are encroached upon' pedestrians are compelled to @alk on the
streets' therebB increasin= the risk of traffic accidents and impedin= the free flo@ of
?ehicular mo?ement)
1he 0unicipal Commissioner disputes in his counter<affida?it that anB fundamental
ri=ht of the petitioners is infrin=ed bB remo?al of the encroachment committed bB
them on public propertB' especiallB the pa?ements) In this behalf' reliance is placed
upon an order dated ,ulB 8;' 1!1 of Lentin ,) of the AombaB Hi=h Court' @hich
records that counsel for the petitioners had stated eFpresslB on ,ulB 8:' 1!1' that no
fundamental ri=ht could be claimed to put up a d@ellin= on public foot<paths and
public roads)
1he 0unicipal Commissioner has stated in his counter< affida?it in Writ 2etitions
"76!<; of 1!1 that the huts near the Western /Fpress Hi=h@aB' *ile 2arle' AombaB'
@ere constructed on an accessorB road @hich is a part of the Hi=h@aB itself) 1hese
hutments @ere ne?er re=ularised bB the Corporation and no re=istration numbers @ere
assi=ned to them)
In ans@er to the 0unicipal CommissionerIs counter< affida?it' petitioner no) 18)
2rafulla chandra Aid@ai @ho is a Gournalist' has filed a reGoinder assertin= that 3amraG
#a=ar is not located on a foot<path or a pa?ement) %ccordin= to him' 3amraG #a=ar is
a basti off the Hi=h@aB' in @hich the huts are numbered' the record in relation to
@hich is maintained bB the $oad De?elopment Department and the AombaB
0unicipal Corporation) Contendin= that petitioners 1 to " ha?e been residin= in the
said basti for o?er 87 Bears' he reiterates that the public has no ri=ht of @aB in or o?er
the 3amraG #a=ar) He also disputes that the huts on the foot<paths cause anB
obstruction to the pedestrians or to the ?ehicular traffic or that those huts are a source
of nuisance or dan=er to public health and safetB) His case in para=raph 81 of his
replB<affida?it seems to be that since' the foot<paths are in the occupation of pa?ement
d@ellers for a lon= time' foot<paths ha?e ceased to be foot<paths) He saBs that the
pa?ement d@ellers and the slum or basti d@ellers' @ho number about :;); lakhs'
constitute about "7 per cent of the total population of Dreater AombaB' that theB
supplB the maGor @ork force 6 for AombaB from menial ,obs to the most hi=hlB
skilled Gobs' that theB ha?e been li?in= in the hutments for =enerations' that theB ha?e
been makin= a si=nificant contribution to the economic life of the citB and that'
therefore' it is unfair and unreasonable on the part of the State Do?ernment and the
0unicipal Corporation to destroB their homes and deport them 5 % home is a home
@here?er it is) 1he main theme of the replB<affida?it is thatE 1he slum d@ellers are
the sine Cua non of the citB) 1heB are entitled to a Cuid pro Cuo) EIt is conceded
eFpresslB that the petitioners do not claim anB fundamental ri=ht to li?e on the
pa?ements) 1he ri=ht claimed bB them is the ri=ht to li?e' at least to eFist)
4nlB t@o more pleadin=s need be referred to' one of @hich is an affida?it of Shri %nil
*) Dokak' %dministrator of 0aharashtra Housin= and %reas De?elopment %uthoritB'
AombaB' @ho @as then holdin= char=e of the post of SecretarB' Department of
Housin=) He filed an affida?it in ans@er to an application for the modification of an
interim order @hich @as passed bB this Court on 4ctober 1' 1!1) He saBs that the
le=islature of 0aharashtra had passed the 0aharashtra *acant Land +2rohibition of
unauthorised 4ccupation and SummarB /?iction- %ct' 1;" in pursuance of @hich the
Do?ernment had decided to compile a list of slums @hich @ere reCuired to be
remo?ed in public interest) It @as also decided that after a spot inspection' "77 acres
of ?acant land in and near the AombaB Suburban District should be allocated for re<
settlement of the hutment d@ellers @ho @ere remo?ed from the slums) % 1ask Force
@as constituted bB the Do?ernment for the purpose of carrBin= out a census of the
hutments standin= on lands belon=in= to the Do?ernment of the 0aharashtra' the
AombaB 0unicipal Corporation and the AombaB Housin= Aoard) % Census @as'
accordin=lB' carried out on ,anuarB :' 1;6 bB deploBin= about ;'777 persons to
enumerate the slum d@ellers spread o?er approFimatelB !"7 colonies all o?er
AombaB) %bout 6; per cent of the hutment d@ellers from a total of about 8'67'777
hutments produced photo=raphs of the heads of their families' on the basis of @hich
hutments @ere numbered and their occupants @ere =i?en identitB cards) It @as
decided that slums @hich @ere in eFistence for a lon= time and @hich @ere impro?ed
and de?eloped @ould not normallB be demolished unless the land @as reCuired for a
public purpose) In the e?ent that the land @as so reCuired' the policB of the State
Do?ernment @as to pro?ide alternati?e accommodation to the slum d@ellers @ho
@ere censused and possessed identitB cards) 1his is borne out bB a circular of the
Do?ernment dated FebruarB :' 1;6 +#o) SIS 11;6HD) :1-) Shri Dokak saBs that the
State Do?ernment has ;7 issued instructions directin=' inter alia' that Eaction to
remo?e the slums eFceptin= those @hich are on the foot<paths or roads or @hich are
ne@ or casuallB located should not' therefore' be taken @ithout obtainin= appro?al
from the Do?ernment to the proposal for the remo?al of such slums and their
rehabilitation)E Since' it @as ne?er the policB of the Do?ernment to encoura=e
construction of hutments on foot< paths' pa?ements or other places o?er @hich the
public has a ri=ht of @aB' no census of such hutments @as e?er intended to be
conducted) Aut' sometime in ,ulB 1!1' @hen the Do?ernment officers made an effort
to ascertain the ma=nitude of the problem of e?ictin= pa?ement d@ellers' it @as
disco?ered that some persons occupBin= pa?ements' carried census cards of 1;6) 1he
Do?ernment then decided to allot pitches to such occupants of pa?ements)
1he onlB other pleadin= @hich deser?es to be noticed is the affida?it of the Gournalist
petitioner' 0s) 4l=a 1ellis' in replB to the counter<affida?it of the Do?ernment of
0aharashtra) %ccordin= to her' one of the important reasons of the emer=ence and
=ro@th of sCuatter<settlements in the 0etropolitan cities in India is' that the
De?elopment and 0aster 2lans of most of the cities ha?e not been adhered to)
1he densitB of population in the AombaB 0etropolitan $e=ion is not hi=h accordin=
to the 1o@n 2lannin= standards)
Difficulties are caused bB the fact that the population is not e?enlB distributed o?er the
re=ion' in a planned manner)
#e@ constructions of commercial premises' small<scale industries and entertainment
houses in the heart of the citB' ha?e been permitted bB the Do?ernment of
0aharashtra contrarB to la@ and e?en residential premises ha?e been allo@ed to be
con?erted into commercial premises) 1his' coupled @ith the fact that the State
Do?ernment has not shifted its main offices to the northern re=ion of the citB' has led
to the concentration of the population in the southern re=ion due to the a?ailabilitB of
,ob opportunities in that re=ion) &nless economic and leisure acti?itB is decentralised'
it @ould be impossible to find a solution to the problems arisin= out of the =ro@th of
sCuatter colonies)
/?en if sCuatters are e?icted' theB come back to the citB because' it is there that ,ob
opportunities are a?ailable)
1he alternate pitches pro?ided to the displaced pa?ement< d@ellers on the basis of the
so<called 1;6 census' are not an effecti?e means to their resettlement because' those
sites are situated far a@aB from the 0alad $ail@aB Station in?ol?in= cost and time
@hich are beBond their means) 1here are no facilities a?ailable at 0ala?ant like
schools and hospitals' @hich dri?es them back to the stran=lehold of the citB) 1he
permission =ranted to the ;1 I#ational Centre of 2erformin= %rtsI to construct an
auditorium at the #ariman 2oint' AackbaB $eclamation' is cited as a I=rossI instance
of the short<si=hted' suicidal and discriminatorB policB of the Do?ernment of
0aharashtra)
It is as if the sea is reclaimed for the construction of business and entertainment
houses in the centre of the citB' @hich creates Gob opportunities to @hich the homeless
flock)
1heB @ork therein and li?e on pa?ements) 1he =rie?ance is that' as a result of this
imbalance' there are not enou=h Gobs a?ailable in the northern tip of the citB) 1he
impro?ement of li?in= conditions in the slums and the re=ional distribution of Gob
opportunities are the onlB ?iable remedies for relie?in= con=estion of the population
in the centre of the citB) 1he increase allo@ed bB the State Do?ernment in the Floor
Space IndeF o?er and abo?e 1)99' has led to a further concentration of population in
the centre of the citB)
In the matter of housin=' accordin= to 0s) 1ellisI affida?it' Do?ernment has not put to
the best use the finances and resources a?ailable to it) 1here is a @ide =ap bet@een the
demand and supplB in the area of housin= @hich @as in the nei=hbourhood of fortB
fi?e thousand units in the decade 1;1<!1) % hu=e amount of hundreds of crores of
rupees shall ha?e to be found bB the State Do?ernment e?erB Bear durin= the period of
the SiFth 2lan if adeCuate pro?ision for housin= is at all to be made) 1he &rban Land
Ceilin= %ct has not achie?ed its desired obGecti?e nor has it been properlB
implemented) 1he emploBment schemes of the State Do?ernment are like a drop in
the ocean and no steps are taken for increasin= ,ob opportunities in the rural sector)
1he ne=lect of health' education transport and communication in that sector dri?es the
rural folk to the cities' not onlB in search of a li?in= but in search of the basic
amenities of life) 1he alle=ation of the State Do?ernment re=ardin= the criminal
propensities of the pa?ement d@ellers is stoutlB denied in the replB<affida?it and it is
said to be contrarB to the studies of manB eFperts) FinallB' it is stated that it is no
lon=er the obGecti?e of the SiFth 2lan to re?erse the rate of =ro@th of metropolitan
cities) 1he obGecti?e of the earlier plan +1;!<!9- has under=one a si=nificant chan=e
and the tar=et no@ is to ensure the =ro@th of lar=e metropolitan cities in a planned
manner) 1he affida?it claims that there is adeCuate land in the AombaB metropolitan
re=ion to absorb a population of 87 million people' @hich is eFpected to be reached bB
the Bear 8777 %)D)
1he ar=uments ad?anced before us bB 0s) Indira ,aisin=h' 0r) *)0) 1arkunde and 0r)
$am ,ethmalani co?er a @ide ran=e but ;8 the main thrust of the petitionersI case is
that e?ictin= a pa?ement d@eller or slum d@eller from his habitat amounts to
depri?in= of his ri=ht to li?elihood' @hich is comprehended in the ri=ht =uaranteed bB
%rticle 81 of the Constitution that no person shall be depri?ed of his life eFcept
accordin= to procedure established bB la@) 1he Cuestion of the =uarantee of personal
libertB contained in %rticle 81 does not arise and @as not raised before us) Counsel for
the petitioners contended that the Court must determine in these petitions the content
of the ri=ht to life' the function of propertB in a @elfare state' the dimension and true
meanin= of the constitutional mandate that propertB must subser?e common =ood' the
s@eep of the ri=ht to reside and settle in anB part of the territorB of India @hich is
=uaranteed bB %rticle 1+1-+e- and the ri=ht to carrB on anB occupation' trade or
business @hich is =uaranteed bB %rticle 1 +1-+=-' the competin= claims of pa?ement
d@ellers on the one hand and of the pedestrians on the other and' the lar=er Cuestion
of ensurin= eCualitB before the la@) It is contended that it is the responsibilitB of the
courts to reduce ineCualities and social imbalances bB strikin= do@n statutes @hich
perpetuate them) 4ne of the =rie?ances of the petitioners a=ainst the AombaB
0unicipal Corporation %ct' 1!!! is that it is a centurB old antiCuated piece of
le=islation passed in an era @hen pa?ement d@ellers and slum d@ellers did not eFist
and the consciousness of the modern notion of a @elfare state @as not present to the
mind of the colonial le=islature) %ccordin= to the petitioners' connected @ith these
issues and Bet independent of them' is the Cuestion of the role of the Court in settin=
the tone of ?alues in a democratic societB)
1he ar=ument @hich bears on the pro?isions of %rticle 81 is elaborated bB saBin= that
the e?iction of pa?ement and slum d@eller @ill lead' in a ?icious circle' to the
depri?ation of their emploBment' their li?elihood and' therefore' to the ri=ht to life)
4ur attention is dra@n in this behalf to an eFtract from the Gud=ment of Dou=las , in
AakseB ?) Aoard of $e=ents' 9:; 0)D) ::8 +1":- in @hich the learned ,ud=e said5
E1he ri=ht to @ork I ha?e assumed @as the most precious libertB that man possesses)
0an has indeed' as much ri=ht to @ork as he has to li?e' to be free and to o@n
propertB) 1o @ork means to eat and it also means to li?e)E ;9 1he ri=ht to li?e and the
ri=ht to @ork are inte=rated and interdependent and' therefore' if a person is depri?ed
of his Gob as a result of his e?iction from a slum or a pa?ement' his ?erB ri=ht to life is
put in GeopardB) It is ur=ed that the economic compulsions under @hich these persons
are forced to li?e in slums or on pa?ements impart to their occupation the character of
a fundamental ri=ht)
It is further ur=ed bB the petitioners that it is constitutionallB impermissible to
characterise the pa?ement d@ellers as EtrespassersE because' their occupation of
pa?ements arises from economic compulsions) 1he State is under an obli=ation to
pro?ide to the citiLens the necessities of life and' in appropriate cases' the courts ha?e
the po@er to issue order directin= the State' bB affirmati?e action' to promote and
protect the ri=ht to life) 1he instant situation is one of crisis' @hich compels the use of
public propertB for the purpose of sur?i?al and sustenance) Social commitment is the
Cuintessence of our Constitution @hich defines the conditions under @hich libertB has
to be enGoBed and Gustice has to be administered) 1herefore' Directi?e 2rinciples'
@hich are fundamental in the =o?ernance of the countrB' must ser?e as a beacon li=ht
to the interpretation of the Constitutional pro?isions) *ie@ed in this conteFt' it is
ur=ed' the impu=ned action of the State Do?ernment and the AombaB 0unicipal
Corporation is ?iolati?e of the pro?isions contained in %rticles 1+1-+e-' 1+1-+=- and
81 of the Constitution) 1he paucitB of financial resources of the State is no eFcuse for
defeatin= the fundamental ri=hts of the citiLens)
In support of this ar=ument' reliance is placed bB the petitioners on @hat is described
as the Ifactual conteFtI) % publication dated ,anuarB 1!8 of the 2lannin=
Commission' Do?ernment of India' namelB' I1he $eport of the /Fpert Droup of
2ro=rammes for the %lle?iation of 2o?ertBI' is relied on as sho@in= the hi=h incidence
of po?ertB in India) 1hat $eport sho@s that in 1;;<;!' :!O of the population li?ed
belo@ the po?ertB line' @hich means that out of a population of 979 million @ho li?ed
belo@ the po?ertB line' 8"8 million belon=ed to the rural areas) In 1;<!7 another !
million people from the rural areas @ere found to li?e belo@ the po?ertB line) %
Do?ernment of 0aharashtra 2ublication EAud=et and the ne@ 87 2oint Socio<
/conomic 2ro=rammeE estimates that there are about :" lakh families in rural areas of
0aharashtra @ho li?e belo@ the po?ertB line)
%nother :7O @as in the peripherB of that area) 4ne of the maGor causes of the
persistent rural po?ertB of landless labourers' ;: mar=inal farmers' shepherds'
phBsicallB handicapped persons and others is the eFtremelB narro@ base of production
a?ailable to the maGoritB of the rural population) 1he a?era=e a=ricultural holdin= of a
farmer is 7): hectares' @hich is hardlB adeCuate to enable him to make both ends
meet) Landless labourers ha?e no resource base at all and theB constitute the hard<core
of po?ertB) Due to economic pressures and lack of emploBment opportunities' the
rural population is forced to mi=rate to urban areas in search of emploBment) I1he
/conomic Sur?eB of 0aharashtraI published bB the State Do?ernment sho@s that the
bulk of public in?estment @as made in the cities of AombaB' 2une and 1hane' @hich
created emploBment opportunities attractin= the star?in= rural population to those
cities) 1he slum census conducted bB the Do?ernment of 0aharashtra in 1;6 sho@s
that ;O of the slum<d@ellers belon=ed to the lo@ income =roup @ith a monthlB
income belo@ $s)677) 1he studB conducted bB 2) $amachandran of the 1ata Institute
of Social Sciences sho@s that in 1;8'1O of the pa?ement d@ellers had a monthlB
income of less than $s)877) 1he cost of obtainin= anB kind of shelter in AombaB is
beBond the means of a pa?ement d@eller) 1he principal public housin= sectors in
0aharashtra' namelB' 1he 0aharashtra Housin= and %rea De?elopment %=encB
+0H%D%- and the CitB and Industrial De?elopment Corporation of 0aharashtra Ltd)
+CIDC4- ha?e been able to construct onlB 9777 and 1777 units respecti?elB as a=ainst
the annual need of 67'777 units) In anB e?ent' the cost of housin= pro?ided e?en bB
these public sector a=encies is beBond the means of the slum and pa?ement< d@ellers)
&nder the &rban Land +Ceilin= and $e=ulation- %ct 1;"' pri?ate land o@ners and
holders are =i?en facilitB to pro?ide housin= to the economicallB @eaker sections of
the societB at a stipulated price of $s)7 per sC)ft)' @hich also is beBond the means of
the slum and pa?ement<d@ellers)
1he rei=nin= market price of houses in AombaB ?aries from $s)1"7 per sC)ft) outside
AombaB to $s)8777 per sC)ft) in the centre of the citB)
1he petitioners dispute the contention of the respondents re=ardin= the non<
a?ailabilitB of ?acant land for allotment to houseless persons) %ccordin= to them'
about 87'777 hectares of unencumbered land is lBin= ?acant in AombaB) 1he &rban
Land +Ceilin= and $e=ulation- %ct'1;" has failed to achie?e its obGect as is e?ident
from the fact that in AombaB' "O of the land<holders o@n ""O of the land)
/?en thou=h 8"8)!9 hectares of &rban land is a?ailable for bein= acCuired bB the
State Do?ernment as bein= in eFcess of the permissible ceilin= area' onlB :1)"1O of
this eFcess land @as' so far' acCuired) 1hus' the ;" reason @hB there are homeless
people in AombaB is not that there is no land on @hich homes can be built for them
but' that the plannin= policB of the State Do?ernment permits hi=h densitB areas to
de?elop @ith ?ast tracts of land lBin= ?acant) 1he pa?ement<d@ellers and the slum<
d@ellers @ho constitute "7O of the population of AombaB' occupB onlB 8"O of the
citBIs residential land) It is in these circumstances that out of sheer necessitB for a bare
eFistence' the petitioners are dri?en to occupB the pa?ements and slums)
1heB li?e in AombaB because theB are emploBed in AombaB and theB li?e on
pa?ements because there is no other place @here theB can li?e) 1his is the factual
conteFt in @hich the petitioners claim the ri=ht under %rticles 1+1-+e- and +=- and
%rticle 81 of the Constitution)
1he petitioners challen=e the ?ires of section 91: read @ith sections 918 and 919 of
the AombaB 0unicipal Corporation %ct' @hich empo@ers the 0unicipal
Commissioner to remo?e' @ithout notice' anB obGect or structure or fiFture @hich is
set up in or upon anB street) It is contended that' in the first place' section 91: does
not authorise the demolition of a d@ellin= e?en on a pa?ement and secondlB' that a
pro?ision @hich allo@s the demolition of a d@ellin= @ithout notice is not Gust' fair or
reasonable) Such a pro?ision ?ests arbitrarB and un=uided po@er in the
Commissioner) It also offends a=ainst the =uarantee of eCualitB because' it makes an
unGustified discrimination bet@een pa?ement d@ellers on the one hand and
pedestrians on the other) If the pedestrians are entitled to use the pa?ements for
passin= and repassin=' so are the pa?ement d@ellers entitled to use pa?ements for
d@ellin= upon them) So the ar=ument =oes) %part from this' it is ur=ed' the
restrictions @hich are sou=ht to be imposed bB the respondents on the use of
pa?ements bB pa?ement<d@ellers are not reasonable) % State @hich has failed in its
constitutional obli=ation to usher a socialistic societB has no ri=ht to e?ict slum and
pa?ement<d@ellers @ho constitute half of the citBIs population) 1herefore' sections
918'919 and 91: of the A)0)C) %ct must either be read do@n or struck do@n)
%ccordin= to the learned %ttorneB<Deneral' 0r)
3)3)Sin=h?i and 0r) ShankaranaraBanan @ho appear for the respondents' no one has
a fundamental ri=ht' @hate?er be the compulsion' to sCuat on or construct a d@ellin=
on a pa?ement' public road or anB other place to @hich the public has a ri=ht of
access) 1he ri=ht conferred bB %rticle 1+1-+e- of the Constitution to reside and settle
in anB part of India cannot be read to confer a licence to encroach and trespass upon
public propertB) Sections 9+@- and ;6 +F- of the A)0)C) %ct define EStreetE and
E2ublic StreetE to include a hi=h@aB' a foot@aB or a passa=e on @hich the public has
the ri=ht of passa=e or access) &nder section 8!+1- of the %ct' all pa?ements and
public streets ?est in the Corporation and are under the control of the Commissioner)
In so far as %rticle 81 is concerned' no depri?ation of life' either directlB or indirectlB'
is in?ol?ed in the e?iction of the slum and pa?ement<d@ellers from public places) 1he
0unicipal Corporation is under an obli=ation under section 91: of the A)0)C) %ct to
remo?e obstructions on pa?ements' public streets and other public places) 1he
Corporation does not e?en possess the po@er to permit anB person to occupB a
pa?ement or a public place on a permanent or Cuasi<permanent basis) 1he petitioners
ha?e not onlB ?iolated the pro?isions of the A)0)C) %ct' but theB ha?e contra?ened
sections 111 and 11" of the AombaB 2olice %ct also) 1hese sections pre?ent a person
from obstructin= anB other person in the latterIs use of a street or public place or from
committin= a nuisance) Section 11; of the 2olice %ct prescribes punishment for the
?iolation of these sections)
We @ill first deal @ith the preliminarB obGection raised bB 0r) 3)3)Sin=h?i' @ho
appears on behalf of the AombaB 0unicipal Corporation' that the petitioners are
estopped from contendin= that their huts cannot be demolished bB reason of the
fundamental ri=hts claimed bB them) It appears that a @rit petition' #o) !6 of 1!1'
@as filed on the 4ri=inal Side of the AombaB Hi=h Court bB and on behalf of the
pa?ement d@ellers claimin= reliefs similar to those claimed in the instant batch of
@rit petitions) % learned Sin=le ,ud=e =ranted an ad<interim inGunction restrainin= the
respondents from demolishin= the huts and from e?ictin= the pa?ement d@ellers)
When the petition came up for hearin= on ,ulB 8;' 1!1' counsel for the petitioners
made a statement in ans@er to a CuerB from the court' that no fundamental ri=ht could
be claimed to put up d@ellin=s on foot<paths or public roads) &pon this statement'
respondents a=reed not to demolish until 4ctober 1"' 1!1' huts @hich @ere
constructed on the pa?ements or public roads prior to ,ulB 89'1!1) 4n %u=ust :'
1!1' a @ritten undertakin= @as =i?en bB the petitioners a=reein=' inter alia' to ?acate
the huts on or before 4ctober 1"' 1!1 and not to obstruct the public authorities from
demolishin= them) Counsel appearin= for the State of 0aharashtra responded to the
petitionersI undertakin= bB =i?in= an undertakin= on behalf of the State Do?ernment
that' until 4ctober 1"' 1!1' no pa?ement d@eller @ill be remo?ed out of the citB
a=ainst his @ish) 4n the basis of these undertakin=s' the learned ,ud=e disposed of the
;; @rit petition @ithout passin= anB further orders) 1he contention of the AombaB
0unicipal Corporation is that since the pa?ement d@ellers had conceded in the Hi=h
Court that theB did not claim anB fundamental ri=ht to put up huts on pa?ements or
public roads and since theB had =i?en an undertakin= to the Hi=h Court that theB @ill
not obstruct the demolition of the huts after 4ctober 1"' 1!1 theB are estopped from
contendin= in this Court that the huts constructed bB them on the pa?ements cannot be
demolished because of their ri=ht to li?elihood' @hich is comprehended @ithin the
fundamental ri=ht to life =uaranteed bB %rticle 81 of the Constitution)
It is not possible to accept the contention that the petitioners are estopped from settin=
up their fundamental ri=hts as a defence to the demolition of the huts put up bB them
on pa?ements or parts of public roads) 1here can be no estoppel a=ainst the
Constitution) 1he Constitution is not onlB the paramount la@ of the land but' it is the
source and substance of all la@s) Its pro?isions are concei?ed in public interest and
are intended to ser?e a public purpose)
1he doctrine of estoppel is based on the principle that consistencB in @ord and action
imparts certaintB and honestB to human affairs) If a person makes a representation to
another' on the faith of @hich the latter acts to his preGudice' the former cannot resile
from the representation made bB him) He must make it =ood) 1his principle can ha?e
no application to representations made re=ardin= the assertion or enforcement of
fundamental ri=hts) For eFample' the concession made bB a person that he does not
possess and @ould not eFercise his ri=ht to free speech and eFpression or the ri=ht to
mo?e freelB throu=hout the territorB of India cannot depri?e him of those
constitutional ri=hts' anB more than a concession that a person has no ri=ht of personal
libertB can GustifB his detention contrarB to the terms of %rticle 88 of the Constitution)
Fundamental ri=hts are undoubtedlB conferred bB the Constitution upon indi?iduals
@hich ha?e to be asserted and enforced bB them' if those ri=hts are ?iolated) Aut' the
hi=h purpose @hich the Constitution seeks to achie?e bB conferment of fundamental
ri=hts is not onlB to benefit indi?iduals but to secure the lar=er interests of the
communitB) 1he 2reamble of the Constitution saBs that India is a democratic
$epublic) It is in order to fulfil the promise of the 2reamble that fundamental ri=hts
are conferred bB the Constitution' some on citiLens like those =uaranteed bB %rticles
1"'16'1'81 and 8' and some on citiLens and non< citiLens alike' like those
=uaranteed bB %rticles ;! 1:'81'88 and 8" of the Constitution) #o indi?idual can
barter a@aB the freedoms conferred upon him bB the Constitution) % concession made
bB him in a proceedin=' @hether under a mistake of la@ or other@ise' that he does not
possess or @ill not enforce anB particular fundamental ri=ht' cannot create an estoppel
a=ainst him in that or anB subseCuent proceedin=) Such a concession' if enforced'
@ould defeat the purpose of the Constitution) Were the ar=ument of estoppel ?alid' an
all<po@erful state could easilB tempt an indi?idual to fore=o his precious personal
freedoms on promise of transitorB' immediate benefits) 1herefore' not@ithstandin= the
fact that the petitioners had conceded in the AombaB Hi=h Court that theB ha?e no
fundamental ri=ht to construct hutments on pa?ements and that theB @ill not obGect to
their demolition after 4ctober 1"' 1!1' theB are entitled to assert that anB such action
on the part of public authorities @ill be in ?iolation of their fundamental ri=hts) Ho@
far the ar=ument re=ardin= the eFistence and scope of the ri=ht claimed bB the
petitioners is @ell< founded is another matter) Aut' the ar=ument has to be eFamined
despite the concession)
1he plea of estoppel is closelB connected @ith the plea of @ai?er' the obGect of both
bein= to ensure bona fides in daB<todaB transactions) In Aasheshar #ath ?) 1he
Commissioner of Income 1aF Delhi' [1"] Supp) 1 S)C)$) "8! a Constitution Aench
of this Court considered the Cuestion @hether the fundamental ri=hts conferred bB the
Constitution can be @ai?ed) 1@o members of the Aench +Das C),) and 3apoor ,)- held
that there can be no @ai?er of the fundamental ri=ht founded on %rticle 1: of the
Constitution) 1@o others +#)H)Aha=@ati and Subba $ao',,)- held that not onlB could
there be no @ai?er of the ri=ht conferred bB %rticle 1:' but there could be no @ai?er
of anB other fundamental ri=ht =uaranteed bB 2art III of the Constitution) 1he
Constitution makes no distinction' accordin= to the learned ,ud=es' bet@een
fundamental ri=hts enacted for the benefit of an indi?idual and those enacted in public
interest or on =rounds of public policB)
We must' therefore' reGect the preliminarB obGection and proceed to consider the
?aliditB of the petitionersI contentions on merits)
1he scope of the Gurisdiction of this Court to deal @ith @rit petitions under %rticle 98
of the Constitution @as eFamined bB a special Aench of this Court in Smt) &GGam Aai
?) State of &ttar 2radesh) [169] 1 S)C)$) ;;!) 1hat decision @ould ; sho@ that' in
three classes of cases' the Cuestion of enforcement of the fundamental ri=hts @ould
arise' namelB' +1- @here action is taken under a statute @hich is ultra ?ires the
Constitution J +8- @here the statute is intra ?ires but the action taken is @ithout
GurisdictionJ and +9- an authoritB under an obli=ation to act GudiciallB passes an order
in ?iolation of the principles of natural Gustice)
1hese cate=ories are' of course' not eFhausti?e) In #aresh Shridhar 0iraGkar ?) State
of 0aharashtra' [166] 9 S)C)$)
;::<;;7' a Special Aench of nine learned ,ud=es of this Court held that' @here the
action taken a=ainst a citiLen is procedurallB ultra ?ires' the a==rie?ed partB can mo?e
this Court under %rticle 98) 1he contention of the petitioners is that the procedure
prescribed bB section 91: of the A)0)C)
%ct bein= arbitrarB and unfair' it is not Eprocedure established bB la@E @ithin the
meanin= of %rticle 81 and' therefore' theB cannot be depri?ed of their fundamental
ri=ht to life bB resortin= to that procedure) 1he petitions are clearlB maintainable
under %rticle 98 of the Constitution)
%s @e ha?e stated @hile summin= up the petitionersI case' the main plank of their
ar=ument is that the ri=ht to life @hich is =uaranteed bB %rticle 81 includes the ri=ht to
li?elihood and since' theB @ill be depri?ed of their li?elihood if theB are e?icted from
their slum and pa?ement d@ellin=s' their e?iction is tantamount to depri?ation of their
life and is hence unconstitutional) For purposes of ar=ument' @e @ill assume the
factual correctness of the premise that if the petitioners are e?icted from their
d@ellin=s' theB @ill be depri?ed of their li?elihood) &pon that assumption' the
Cuestion @hich @e ha?e to consider is @hether the ri=ht to life includes the ri=ht to
li?elihood)
We see onlB one ans@er to that Cuestion' namelB' that it does) 1he s@eep of the ri=ht
to life conferred bB %rticle 81 is @ide and far reachin=) It does not mean merelB that
life cannot be eFtin=uished or taken a@aB as' for eFample' bB the imposition and
eFecution of the death sentence' eFcept accordin= to procedure established bB la@)
1hat is but one aspect of the ri=ht to life) %n eCuallB important facet of that ri=ht is the
ri=ht to li?elihood because' no person can li?e @ithout the means of li?in=' that is' the
means of li?elihood) If the ri=ht to li?elihood is not treated as a part of the
constitutional ri=ht to life' the easiest @aB of depri?in= a person his ri=ht to life @ould
be to depri?e him of his means of li?elihood to the point of abro=ation) Such
depri?ation @ould not onlB denude the life of its effecti?e content and meanin=fulness
but it @ould make life impossible to li?e) %nd Bet' such depri?ation @ould not ha?e to
!7 be in accordance @ith the procedure established bB la@' if the ri=ht to li?elihood is
not re=arded as a part of the ri=ht to life) 1hat' @hich alone makes it possible to li?e'
lea?e aside @hat makes life li?able' must be deemed to be an inte=ral component of
the ri=ht to life) Depri?e a person of his ri=ht to li?elihood and Bou shall ha?e
depri?ed him of his life) Indeed' that eFplains the massi?e mi=ration of the rural
population to bi= cities) 1heB mi=rate because theB ha?e no means of li?elihood in the
?illa=es) 1he moti?e force @hich people their desertion of their hearths and homes in
the ?illa=e s that stru==le for sur?i?al' that is' the stru==le for life) So unimpeachable
is the e?idence of the neFus bet@een life and the means of li?elihood) 1heB ha?e to
eat to li?e5 4nlB a handful can afford the luFurB of li?in= to eat) 1hat theB can do'
namelB' eat' onlB if theB ha?e the means of li?elihood) 1hat is the conteFt in @hich it
@as said bB Dou=las ,) in AakseB that the ri=ht to @ork is the most precious libertB
because' it sustains and enables a man to li?e and the ri=ht to life is a precious
freedom) ELifeE' as obser?ed bB Field' ,) in 0unn ?)
Illinois' +1!;;- : &)S) 119' means somethin= more than mere animal eFistence and
the inhibition a=ainst the depri?ation of life eFtends to all those limits and faculties bB
@hich life is enGoBed) 1his obser?ation @as Cuoted @ith appro?al bB this Court in
3harak Sin=h ?) 1he State of &)2)' [16:] 1 S)C)$) 998)
%rticle 9+a- of the Constitution' @hich is a Directi?e 2rinciple of State 2olicB'
pro?ides that the State shall' in particular' direct its policB to@ards securin= that the
citiLens' men and @omen eCuallB' ha?e the ri=ht to an adeCuate means of li?elihood)
%rticle :1' @hich is another Directi?e 2rinciple' pro?ides' inter alia' that the State
shall' @ithin the limits of its economic capacitB and de?elopment' make effecti?e
pro?ision for securin= the ri=ht to @ork in cases of unemploBment and of undeser?ed
@ant)
%rticle 9; pro?ides that the Directi?e 2rinciples' thou=h not enforceable bB anB court'
are ne?ertheless fundamental in the =o?ernance of the countrB) 1he 2rinciples
contained in %rticles 9 +a- and :1 must be re=arded as eCuallB fundamental in the
understandin= and interpretation of the meanin= and content of fundamental ri=hts) If
there is an obli=ation upon the State to secure to the citiLens an adeCuate means of
li?elihood and the ri=ht to @ork' it @ould be sheer pedantrB to eFclude the ri=ht to
li?elihood from the content of the ri=ht to life)
1he State maB not' bB affirmati?e action' be compellable to pro?ide adeCuate means
of li?elihood or @ork to the citiLens) Aut' anB person' @ho is depri?ed of his ri=ht to
li?elihood !1 eFcept accordin= to Gust and fair procedure established bB la@' can
challen=e the depri?ation as offendin= the ri=ht to life conferred bB %rticle 81)
Learned counsel for the respondents placed stron= reliance on a decision of this Court
in In $e5 Sant $am' [167] 9 S)C)$) :' in support of their contention that the ri=ht
to life =uaranteed bB %rticle 81 does not include the ri=ht to li?elihood) $ule 8: of the
Supreme Court $ules empo@ers the $e=istrar to publish lists of persons @ho are
pro?ed to be habituallB actin= as touts) 1he $e=istrar issued a notice to the appellant
and one other person to sho@ cause @hB their names should not be included in the list
of touts) 1hat notice @as challen=ed bB the appellant on the =round' inter alia' that it
contra?enes %rticle 81 of the Constitution since' bB the inclusion of his name in the
list of touts' he @as depri?ed of his ri=ht to li?elihood' @hich is included in the ri=ht
to life) It @as held bB a Constitution Aench of this Court that the lan=ua=e of %rticle
81 cannot be pressed in aid of the ar=ument that the @ord PlifeI in %rticle 81 includes
Pli?elihoodI also) 1his decision is distin=uishable because' under the Constitution' no
person can claim the ri=ht to li?elihood bB the pursuit of an opprobrious occupation or
a nefarious trade or business' like tourism' =amblin= or li?in= on the =ains of
prostitution) 1he petitioners before us do not claim the ri=ht to d@ell on pa?ements or
in slums for the purpose of pursuin= anB acti?itB @hich is ille=al' immoral or contrarB
to public interest) 0anB of them pursue occupations @hich are humble but
honourable)
1urnin= to the factual situation' ho@ far is it true to saB that if the petitioners are
e?icted from their slum and pa?ement d@ellin=s' theB @ill be depri?ed of their means
of li?elihoodM It is impossible' in the ?erB nature of thin=s' to=ether reliable data on
this subGect in re=ard to each indi?idual petitioner and' none has been furnished to us
in that form) 1hat the e?iction of a person from a pa?ement or slum @ill ine?itablB
lead to the depri?ation of his means of li?elihood' is a proposition @hich does not
ha?e to be established in each indi?idual case) 1hat is an inference @hich can be
dra@n from acceptable data) Issues of =eneral public importance' @hich affect the
li?es of lar=e sections of the societB' defB a Gust determination if their consideration is
limited to the e?idence pertainin= to specific indi?iduals) In the resolution of such
issues' there are no sBmbolic samples @hich can effecti?elB proGect a true picture of
!8 the =rim realities of life) 1he @rit petitions before us undoubtedlB in?ol?e a
Cuestion relatin= to d@ellin= houses but' theB cannot be eCuated @ith a suit for the
possession of a house bB one pri?ate person a=ainst another) In a case of the latter
kind' e?idence has to be led to establish the cause of action and GustifB the claim) In a
matter like the one before us' in @hich the future of half of the citBIs population is at
stake' the Court must consult authentic empirical data compiled bB a=encies' official
and non< official) It is bB that process that the core of the problem can be reached and
a satisfactorB solution found) It @ould be unrealistic on our part to reGect the petitions
on the =round that the petitioners ha?e not adduced e?idence to sho@ that theB @ill be
rendered Gobless if theB are e?icted from the slums and pa?ements) Commonsense'
@hich is a cluster of lifeIs eFperiences' is often more dependable than the ri?al facts
presented bB @arrin= liti=ants)
It is clear from the ?arious eFpert studies to @hich @e ha?e referred @hile settin= out
the substance of the pleadin=s that' one of the main reasons of the emer=ence and
=ro@th of sCuatter<settlements in bi= 0etropolitan cities like AombaB' is the
a?ailabilitB of Gob opportunities @hich are lackin= in the rural sector) 1he undisputed
fact that e?en after e?iction' the sCuatters return to the cities affords proof of that
position) 1he 2lannin= CommissionIs publication' P1he $eport of the /Fpert Droup of
2ro=rammes for the %lle?iation of 2o?ertBI +1!8- sho@s that half of the population in
India li?es belo@ the po?ertB line' a lar=e part of @hich li?es in ?illa=es) % publication
of the Do?ernment of 0aharashtra' PAud=et and the #e@ 87 2oint Socio</conomic
2ro=rammeI sho@s that about :" lakhs of families in rural areas li?e belo@ the
po?ertB line and that' the a?era=e a=ricultrual holdin= of a farmer' @hich is
7): hectares' is hardlB enou=h to sustain him and his comparati?elB lar=e familB) 1he
landless labourers' @ho constitute the bulk of the ?illa=e population' are deeplB
imbedded in the mire of po?ertB) It is due to these economic pressures that the rural
population is forced to mi=rate to urban areas in search of emploBment) 1he affluent
and the not<so<affluent are alike in search of domestic ser?ants)
Industrial and Ausiness Houses paB a fair @a=e to the skilled @orkman that a ?illa=er
becomes in course of time)
Ha?in= found a Gob' e?en if it means @ashin= the pots and pans' the mi=rant sticks to
the bi= citB) If dri?en out' he returns in Cuest of another Gob) 1he cost of public sector
housin= is beBond his modest means and the less @e refer to the deals of pri?ate
builders the better for allJ eFcludin= none) %dded to !9 these factors is the stark realitB
of =ro@in= insecuritB in ?illa=es on account of the tBrannB of parochialism and
casteism) 1he announcement made bB the 0aharashtra Chief 0inister re=ardin= the
deportation of @illin= pa?ement d@ellers afford some indication that theB are
mi=rants from the interior areas' @ithin and outside 0aharashtra) It is estimated that
about 877 to 977 people enter AombaB e?erB daB in search of emploBment) 1hese
facts constitute empirical e?idence to GustifB the conclusion that persons in the
position of petitioners li?e in slums and on pa?ements because theB ha?e small Gobs to
nurse in the citB and there is no @here else to li?e) /?identlB' theB choose a pa?ement
or a slum in the ?icinitB of their place of @ork' the time other@ise taken in commutin=
and its cost bein= forbiddin= for their slender means) 1o loss the pa?ement or the slum
is to lose the Gob) 1he conclusion' therefore in terms of the constitutional phraseolo=B
is that the e?iction of the petitioners @ill lead to depri?ation of their li?elihood and
conseCuentlB to the depri?ation of life)
1@o conclusions emer=e from this discussion5 one' that the ri=ht to life @hich is
conferred bB %rticle 81 includes the ri=ht to li?elihood and t@o' that it is established
that if the petitioners are e?icted from their d@ellin=s' theB @ill be depri?ed of their
li?elihood) Aut the Constitution does not put an absolute embar=o on the depri?ation
of life or personal libertB) AB %rticle 81' such depri?ation has to be accordin= to
procedure established bB la@) In the instant case' the la@ @hich allo@s the depri?ation
of the ri=ht conferred bB %rticle 81 is the AombaB 0unicipal Corporation %ct' 1!!!'
the rele?ant pro?isions of @hich are contained in Sections 918+1-'919+1-+a- and 91:)
1hese sections @hich occur in Chapter QI entitled P$e=ulation of StreetsI read thus 5
Section 918 < 2rohibition of structures or fiFtures @hich cause obstruction in streets)
+1- #o person shall' eFcept @ith the permission of the Commissioner under section
917 or 91; arect or set up anB @all' fence' rail' post' step' booth or other structure or
fiFture in or upon anB street or upon or o?er anB open channel' drain @ell or tank in
anB street so as to form an obstruction to' or an encroachment upon' or a proGection
o?er' or to occupB' anB portion or such street' channel' drain' @ell or tankE)
!: ESection 919 < 2rohibition of deposit' etc)' of thin=s in streets)
+1- #o person shall' eFcept @ith the @ritten permission of the Commissioner' < +a-
place or deposit upon anB street or upon anB open channel drain or @ell in anB streets
+or in anB public place- anB stall' chair' bench' boF' ladder' bale or other thin= so as to
form an obstruction thereto or encroachment thereon)E ESection 91: < 2o@er to
remo?e @ithout notice anBthin= erected deposited or ha@ked in contra?ention of
Section 918'919 or 919 %)
1he Commissioner maB' @ithout notice' cause to be remo?ed < +a- anB @all' fence'
rail' post' step' booth or other structure or fiFture @hich shall be erected or set up in or
anB street' or upon or o?er anB open channel' drain' @ell or tank contrarB to the
pro?isions of subsection +1- of section 918' after the same comes into force in the citB
or in the suburbs' after the date of the comin= into force of the AombaB 0unicipal
+/Ftension of Limits- %ct' 1"7 or in the eFtended suburbs after the date of the
comin= into force of the AombaB 0unicipal Further /Ftension of Limits and
Schedule AA% +%mendment- %ct' 1"6J
+b- anB stall' chair' bench' boF' ladder' bale' board or shelf' or anB other thin=
@hate?er placed' deposited' proGected' attached' or suspended in' upon' from or to anB
place in contra?ention of sub<section +1- of section 919J
+c- anB article @hatsoe?er ha@ked or eFposed for sale in anB public place or in anB
public street in contra?ention of the pro?isions of section 919% and anB ?ehicle'
packa=e' boF' board' shelf or anB other thin= in or on @hich such article is placed or
kept for the purpose of sale)E AB section 9+@-' EstreetE includes a cause@aB' foot@aB'
passa=e etc)' o?er @hich the public ha?e a ri=ht of passa=e or access)
!" 1hese pro?isions' @hich are clear and specific' empo@er the 0unicipal
Commissioner to cause to be remo?ed encroachments on footpaths or pa?ements o?er
@hich the public ha?e a ri=ht of passa=e or access) It is undeniable that' in these cases'
@here?er constructions ha?e been put up on the pa?ements' the public ha?e a ri=ht of
passa=e or access o?er those pa?ements) 1he ar=ument of the petitioners is that the
procedure prescribed bB section 91: for the remo?al of encroachments from
pa?ements is arbitrarB and unreasonable since' not onlB does it not pro?ide for the
=i?in= of a notice before the remo?al of an encroachment but' it pro?ides eFpresslB
that the 0unicipal Commissioner maB cause the encroachment to be remo?ed
E@ithout noticeE)
It is far too @ell<settled to admit of anB ar=ument that the procedure prescribed bB la@
for the depri?ation of the ri=ht conferred bB %rticle 81 must be fair' Gust and
reasonable) +See /)2)$oBappa ?) State of 1amil #adu' [1;:] 8 S)C)$) 9:!J 0aneka
Dandhi ?) &nion of India' [1;!] 8 S)C)$) 681J 0)4)Hoscot ?) State of 0aharashtra'
[1;] 1 S)C)$) 18J Sunil Aatra' I ?) Delhi %dministration' [1;] 1 S)C)$) 98J Sita
$am ?) State of &)2)' [1;] 8 S)C)$) 17!"J
Hussainara 3hatoon' I ?) Home SecretarB' State of Aihar' 2atna' [1;] 9 S)C)$)
"98'"9;J Hussainara 3hatoon' II ?)
Home SecretarB' State of Aihar' 2atna' [1!7] 1 S)C)C) !1J
Sunil Aatra' II ?) Delhi %dministration' [1!7] 8 S)C)$)
"";J ,ollB Deor=e *er=hese ?) 1he Aank of Cochin' [1!7] 8 S)C)$) 19'81<88J
3asturi Lal Lakshmi 3eddB ?) State of ,ammu > 3ashmir' [1!7] 9 S)C)$)
199!'19"6J and Francis Coralie 0ullin ?) 1he %dministrator' &nion 1erritorB of
Delhi' [1!1] 8 S)C)$) "16'"89<8:)- ,ust as a mala fide act has no eFistence in the eBe
of la@' e?en so' unreasonableness ?itiates la@ and procedure alike) It is therefore
essential that the procedure prescribed bB la@ for depri?in= a person of his
fundamental ri=ht' in this case the ri=ht to life' must confirm to the norms of Gustice
and fairplaB) 2rocedure' @hich is unGust or unfair in the circumstances of a case'
attracts the ?ice of unreasonableness' therebB ?itiatin= the la@ @hich prescribes that
procedure and conseCuentlB' the action taken under it)
%nB action taken bB a public authoritB @hich is in?ested @ith statutorB po@ers has'
therefore' to be tested bB the application of t@o standards5 1he action must be @ithin
the scope of the authoritB conferred bB la@ and secondlB' it must be reasonable) If anB
action' @ithin the scope of the authoritB conferred bB la@' is found to be unreasonable
it must mean that the procedure established bB la@ under @hich that !6 action is taken
is itself unreasonable) 1he substance of the la@ cannot be di?orced from the
procedure @hich it prescribe for' ho@ reasonable the la@ is' depends upon ho@ fair is
the procedure prescribed bB it' Sir $aBmond /?ershad saBs that' from the point of
?ie@ of the ordinarB citiLen' it is the procedure that @ill most stron=lB @ei=h @ith
him) He @ill tend to form his Gud=ment of the eFcellence or other@ise of the le=al
sBstem from his personal kno@led=e and eFperience in seein= the le=al machine at
@orkE' [P1he influence of $emedies on $i=htsI +Current Le=al 2roblems 1"9'
*olume 6)-]) 1herefore' He that takes the procedural s@ord shall perish @ith the
s@ord) E[2er Frankfurter ,) in *iteralli ?)
Seton 9 L)/d) +8nd Series- 1718] ,ustice 3)3)0athe@ points out in his article on P1he
@elfare State' $ule of La@ and #atural ,usticeI' @hich is to be found in his book
PDemocracB' eCualitB and FreedomI' that there is Esubstantial a=reement in Guristic
thou=ht that the =reat purpose of the rule of la@ notion is the protection of the
indi?idual a=ainst arbitrarB eFercise of po@er @here?er it is foundE) %doptin= that
formulation' Aha=@ati ,)' speakin= for the Court' obser?ed in $amana DaBaram'
ShettB ?) 1he International %irport %uthoritB of India' [1;] 9 S)C)$) 171:'1798 that
it is Eunthinkable that in a democracB =o?erned bB the rule of la@' the eFecuti?e
Do?ernment or anB of its officers should possess arbitrarB po@er o?er the interest of
the indi?idual) /?erB action of the eFecuti?e Do?ernment must be informed @ith
reason and should be free from arbitrariness) 1hat is the ?erB essence of the rule of
la@ and its bare minimal reCuirementE)
Ha?in= =i?en our anFious and solicitous consideration to this Cuestion' @e are of the
opinion that the procedure prescribed bB Section 91: of the AombaB 0unicipal
Corporation %ct for remo?al of encroachments on the footpaths or pa?ements o?er
@hich the public has the ri=ht of passa=e or access' cannot be re=arded as
unreasonable' unfair or unGust) 1here is no static measure of reasonableness @hich can
be applied to all situations alike)
Indeed' the Cuestion Eis this procedure reasonables implies and postulates the inCuirB
as to @hether the procedure prescribed is reasonable in the circumstances of the case'
In Francis Coralie 0ullin' [1!1] 8 S)C)$) "16' Aha=@ati',)' Said 5
E))) ))) it is for the Court to decide in eFercise of its constitutional po@er of Gudicial
re?ie@ @hether the depri?ation of life or personal libertB in a =i?en !; case is bB
procedure' @hich is reasonable' fair and Gust or it is other@ise)E +emphasis supplied'
pa=e "8:-)
In the first place' footpaths or pa?ements are public properties @hich are intended to
ser?e the con?enience of the =eneral public) 1heB are not laid for pri?ate use and
indeed' their use for a pri?ate purpose frustrates the ?erB obGect for @hich theB are
car?ed out from portions of public streets) 1he main reason for laBin= out pa?ements
is to ensure that the pedestrians are able to =o about their dailB affairs @ith a
reasonable measure of safetB and securitB)
1hat facilitB' @hich has matured into a ri=ht of the pedestrians' cannot be set at nau=ht
bB allo@in= encroachments to be made on the pa?ements) 1here is no substance in the
ar=ument ad?anced on behalf of the petitioners that the claim of the pa?ement
d@ellers to put up constructions on pa?ements and that of the pedestrians to make use
of the pa?ements for passin= and repassin=' are competin= claims and that the former
should be preferred to the latter) #o one has the ri=ht to make use of a public propertB
for a pri?ate purpose @ithout the reCuisite authorisation and' therefore' it is erroneous
to contend that the pa?ement d@ellers ha?e the ri=ht to encroach upon pa?ement bB
constructin= d@ellin=s thereon) 2ublic streets' of @hich pa?ements form a part' are
primarilB dedicated for the purpose of passa=e and' e?en the pedestrians ha?e but the
limited ri=ht of usin= pa?ements for the purpose of passin= and repassin=) So lon= as
a person does not trans=ress the limited purpose for @hich pa?ements are made' his
use thereof is le=itimate and la@ful) Aut' if a person puts anB public propertB to a use
for @hich it is not intended and is not intended and is not authorised so to use it' he
becomes a trespasser) 1he common eFample @hich is cited in some of the /n=lish
cases +see' for eFample' Hickman ?) 0aiseB' [177] 1 N)A) ;"8' is that if a person'
@hile usin= a hi=h@aB for passa=e' sits do@n for a time to rest himself bB the side of
the road' he does not commit a trespass) Aut' if a person puts up a d@ellin= on the
pa?ement' @hate?er maB be the economic compulsions behind such an act' his user of
the pa?ement @ould become unauthorised) %s stated in Hickman' it is not easB to
dra@ an eFact line bet@een the le=itimate user of a hi=h@aB as a hi=h@aB and the user
@hich =oes beBond the ri=ht conferred upon the public bB its dedication) Aut' as in
manB other cases' it is not difficult to put cases @ell on one side of the line) 2uttin= up
a d@ellin= on the pa?ement is a case @hich is clearlB on one side of the line sho@in=
that it is an act of trespass) Section 61 of the AombaB 0unicipal Corporation %ct laBs
do@n the obli=atorB !! duties of the Corporation' under clause +d- of @hich' it is its
dutB to take measures for abetment of all nuisances) 1he eFistence of d@ellin=s on the
pa?ements is unCuestionablB a source of nuisance to the public' at least for the reason
that theB are denied the use of pa?ements for passin= and repassin=) 1heB are
compelled' bB reason of the occupation of pa?ements bB d@ellers' to use hi=h@aBs
and public streets as passa=es) 1he affida?it filed on behalf of the Corporation sho@s
that the fall<out of pedestrians in lar=e numbers on hi=h@aBs and streets constitutes a
=ra?e traffic haLard) SurelB' pedestrians deser?e consideration in the matter of their
phBsical safetB' @hich cannot be sacrificed in order to accommodate persons @ho use
public properties for a pri?ate purpose' unauthoriLedlB) &nder clause +c- of section 61
of the A)0)C) %ct' the Corporation is under an obli=ation to remo?e obstructions upon
public streets another public places) 1he counter<affida?it of the Corporation sho@s
that the eFistence of hutments on pa?ements is a serious impediment in repairin= the
roads' pa?ements' drains and streets) Section 69+k-' @hich is discretionarB' empo@ers
the Corporation to take measures to promote public safetB' health or con?enience not
specificallB pro?ided other@ise) Since it is not possible to pro?ide anB public
con?eniences to the pa?ement d@ellers on or near the pa?ements' theB ans@er the
natureIs call on the pa?ements or on the streets adGoinin= them) 1hese facts pro?ide
the back=round to the pro?ision for remo?al of encroachments on pa?ements and
footpaths)
1he challen=e of the petitioners to the ?aliditB of the rele?ant pro?isions of the
AombaB 0unicipal Corporation %ct is directed principallB at the procedure prescribed
bB section 91: of that %ct' @hich pro?ides bB clause +a- that the Commissioner maB'
@ithout notice' take steps for the remo?al of encroachments in or upon aB street'
channel' drain' etc) AB reason of section 9+@-' PstreetI includes a cause@aB' foot@aB or
passa=e) In order to decide @hether the procedure prescribed bB section 91: is fair
and reasonable' @e must first determine the true meanin= of that section because' the
meanin= of the la@ determines its le=alitB) If a la@ is found to direct the doin= of an
act @hich is forbidden bB the Constitution or to compel' in the performance of an act'
the adoption of a procedure @hich is impermissible under the Constitution' it @ould
ha?e to be struck do@n) Considered in its proper perspecti?e' section 91: is in the
nature of an enablin= pro?ision and not of a compulsi?e character) It enables the
Commissioner' in appropriate cases' to dispense @ith pre?ious notice to persons @ho
are likelB to be affected bB the proposed ! action) It does not reCuire and' cannot be
read to mean that' in total disre=ard of the rele?ant circumstances pertainin= to a
=i?en situation' the Commissioner must cause the remo?al of an encroachment
@ithout issuin= pre?ious notice) 1he primarB rule of construction is that the lan=ua=e
of the la@ must recei?e its plain and natural meanin=) What section 91: pro?ides is
that the Commissioner maB' @ithout notice' cause an encroachment to be remo?ed) It
does not command that the Commissioner shall' @ithout notice' cause an
encroachment to be remo?ed) 2uttin= it differentlB' section 91: confers on the
Commissioner the discretion to cause an encroachment to be remo?ed @ith or @ithout
notice) 1hat discretion has to be eFercised in a reasonable manner so as to complB
@ith the constitutional mandate that the procedure accompanBin= the performance of
a public act must be fair and reasonable) We must lean in fa?our of this interpretation
because it helps sustain the ?aliditB of the la@) $eadin= section 91: as containin= a
command not to issue notice before the remo?al of an encroachment @ill make the
la@ in?alid)
It must further be presumed that' @hile ?estin= in the Commissioner the po@er to act
@ithout notice' the Le=islature intended that the po@er should be eFercised sparin=lB
and in cases of ur=encB @hich brook no delaB) In all other cases' no departure from
the audi alteram partem rule +IHear the other sideI- could be presumed to ha?e been
intended) Section 91: is so desi=ned as to eFclude the principles of natural Gustice bB
@aB of eFemption and not as a =eneral rule) 1here are situations @hich demand the
eFclusion of the rules of natural Gustice bB reason of di?erse factors like time' place
the apprehended dan=er and so on) 1he ordinarB rule @hich re=ulates all procedure is
that persons @ho are likelB to be affected bB the proposed action must be afforded an
opportunitB of bein= heard as to @hB that action should not be taken) 1he hearin= maB
be =i?en indi?iduallB or collecti?elB' dependin= upon the facts of each situation) %
departure from this fundamental rule of natural Gustice maB be presumed to ha?e been
intended bB the Le=islature onlB in circumstances @hich @arrant it) Such
circumstances must be sho@n to eFist' @hen so reCuired' the burden bein= upon those
@ho affirm their eFistence)
It @as ur=ed bB Shri 3)3)Sin=h?i on behalf of the 0unicipal Corporation that the
Le=islature maB @ell ha?e intended that no notice need be =i?en in anB case
@hatsoe?er because' no useful purpose could be ser?ed bB issuin= a notice as to @hB
an encroachment on a public propertB should not be remo?ed) We ha?e indicated
abo?e that far from so intendin=' the Le=islature has left 7 it to the discretion of the
Commissioner @hether or not to =i?e notice' a discretion @hich has to be eFercised
reasonablB) Counsel attempted to demonstrate the practical futilitB of issuin= the sho@
cause notice bB pointin= out firstlB' that the onlB ans@er @hich a pa?ement d@eller'
for eFample' can make to such a notice is that he is compelled to li?e on the pa?ement
because he has no other place to =o to and secondlB' that it is hardlB likelB that in
pursuance of such a notice' pa?ement d@ellers or slum d@ellers @ould ask for time to
?acate since' on their o@n sho@in=' theB are compelled to occupB some pa?ement or
slum or the other if theB are e?icted) It maB be true to saB that' in the =eneralitB of
cases' persons @ho ha?e committed encroachments on pa?ements or on other public
properties maB not ha?e an effecti?e ans@er to =i?e) It is a notorious fact of
contemporarB life in metropolitan cities' that no person in his senses @ould opt to li?e
on a pa?ement or in a slum' if anB other choice @ere a?ailable to him) %nBone @ho
cares to ha?e e?en a fleetin= =lance at the pa?ement or slum d@ellin=s @ill see that
theB are the ?erB hell on earth)
Aut' thou=h this is so' the contention of the Corporation that no notice need be =i?en
because' there can be no effecti?e ans@er to it' betraBs a misunderstandin= of the rule
of hearin=' @hich is an important element of the principles of natural Gustice) 1he
decision to dispense @ith notice cannot be founded upon a presumed impre=nabilitB
of the proposed action) For eFample' in the common run of cases' a person maB
contend in ans@er to a notice under section 91: that +i- there @as' in fact' no
encroachment on anB public road' footpath or pa?ement' or +ii- the encroachment @as
so sli=ht and ne=li=ible as to cause no nuisance or incon?enience to other members of
the public' or +iii- time maB be =ranted for remo?al of the encroachment in ?ie@ of
humane consideration arisin= out of personal' seasonal or other factors) It @ould not
be ri=ht to assume that the Commissioner @ould reGect these or similar other
considerations @ithout a careful application of mind) Human compassion must soften
the rou=h ed=es of Gustice in all situation) 1he e?iction of the pa?ement or slum
d@eller not onlB means his remo?al from the house but the destruction of the house
itself) %nd the destruction of a d@ellin= house is the end of all that one holds dear in
life) Humbler the d@ellin=' =reater the sufferin= and more intense the sense of loss)
1he proposition that notice need not be =i?en of a proposed action because' there can
possiblB be no ans@er to it' is contrarB to the @ell<reco=niLed understandin= of the
real import of the rule of hearin=) 1hat proposition o?erlooks that Gustice must 1 not
onlB be done but must manifestlB be seen to be done and confuses one for the other)
1he appearance of inGustice is the denial of Gustice) It is the dialo=ue @ith the person
likelB to be affected bB the proposed action @hich meets the reCuirement that Gustice
must also be seen to be done)
2rocedural safe=uards ha?e their historical ori=ins in the notion that conditions of
personal freedom can be preser?ed onlB @hen there is some institutional check on
arbitrarB action on the part of public authorities) +3adish' E0ethodolo=B and Criteria
in Due 2rocess %dGudication < % Sur?eB and Criticism'E 66 (ale L),) 91'9:7 [1";])
1he ri=ht to be heard has t@o facets' intrinsic and instrumental) 1he intrinsic ?alue of
that ri=ht consists in the opportunitB @hich it =i?es to indi?iduals or =roups' a=ainst
@hom decision taken bB public authorities operate' to participate in the processes bB
@hich those decisions are made' an opportunitB that eFpresses their di=nitB as
persons) +Dolber= ?) 3ellB' 9; &)S) 8":' 86:<6" [1;7] ri=ht of the poor to
participate in public processes-)
EWhate?er its outcome' such a hearin= represents a ?alued human interaction in @hich
the affected person eFperience at least the satisfaction of participatin= in the decision
that ?itallB concerns her' and perhaps the separate satisfaction of recei?in= an
eFplanation of @hB the decision is bein= made in a certain @aB) Aoth the ri=ht to be
heard from' and the ri=ht to be told @hB' are analBticallB distinct from the ri=ht to
secure a different outcomeJ these ri=hts to inter chan=e eFpress the elementarB idea
that to be a person' rather than a thin= is at least to be consulted about @hat is done
@ith one) ,ustice Frankfurter captured part of this sense of procedural Gustice @hen he
@rote that the E*aliditB and moral authoritB of a conclusion lar=elB depend on the
mode bB @hich it @as reached))))))))) #o better instrument has been de?ised for
arri?in= at truth than to =i?e a person in GeopardB of serious loss notice of the case
a=ainst him and opportunitB to meet it) #or has a better @aB been found for
=eneration the feelin=' so important to a popular =o?ernment' that Gustice has been
doneE) ,oint %nti<fascist refu=ee Committee ?) 0c Drath' 9:1' &)S) 189' 1;1< 1;8
+1"1-) %t stake here is not ,ust the much< acclaimed appearance of Gustice but' from a
perspecti?e that treats process as intrinsicallB si=nificant' the ?erB essence of GusticeE'
+See %merican 8 Constitutional La@E bB Laurence H) 1ribe' 2rofessor of La@'
Har?ard &ni?ersitB +/d) 1;!' pa=e "79-)
1he instrumental facet of the ri=ht of hearin= consists in the means @hich it affords of
assurin= that the public rules of conduct' @hich result in benefits and preGudices alike'
are in fact accuratelB and consistentlB follo@ed)
EIt ensures that a challen=ed action accuratelB reflects the substanti?e rules applicable
to such actionJ its point is less to assure participation than to use participation to
assure accuracB)E %nB discussion of this topic @ould be incomplete @ithout reference
to an important decision of this Court in S)L) 3apoor ?) ,a=mohan' [1!1] 1 S)C)$)
;:6';66) In that case' the suppression of the #e@ Delhi 0unicipal Committee @as
challen=ed on the =round that it @as in ?iolation of the principles of natural Gustice
since' no sho@ cause notice @as issued before the order of suppression @as passed)
Linked @ith that Cuestion @as the Cuestion @hether the failure to obser?e the
principles of natural Gustice matters at all' if such obser?ance @ould ha?e made no
difference' the admitted or indisputable facts speakin= for themsel?es)
%fter referrin= to the decisions in $id=e ?) Aald@in' [16:] %)C):7 at 6!J ,ohn ?)
$eeas' [1;7] 1 ChancerB 9:" at :78J
%nnamuthodo ?) 4il fields WorkersI 1rade &nion'[161] 9 %ll /)$) 681 +H)L)- at 68"J
0ar=arita Fuentes at al) ?) 1obert L)She?in' 98 L)/d) 8d ""6 at ";:J Chintepalli
%=encB 1aluk %rrack Sales Cooperati?e SocietB Ltd) ?) SecretarB +Food >
%=riculture- Do?ernment of %nadhra 2radesh' [1;!] 1 S)C)$)
"69 at "6;'"6<";7' and to an interestin= discussion of the subGect in ,acksonIs
#atural ,ustice +1!7 /dn)- the Court' speakin= throu=h one of us' Chinnappa $eddB'
,) Said5
EIn our ?ie@ the principles of natural Gustice kno@ of no eFclusionarB rule dependent
on @hether it @ould ha?e made anB difference if natural Gustice had been obser?ed)
1he non<obser?ance of natural Gustice is itself preGudice to anB man and proof of
preGudice independentlB of proof of denial of natural Gustice is unnecessarB) It @ill
comes from a person @ho has denied Gustice that the person @ho has been denied
Gustice is not preGudiced)E 1hese obser?ations sum up the true le=al position re=ardin=
the purport and implications of the ri=ht of hearin=)
9 1he Gurisprudence reCuirin= hearin= to be =i?en to those @ho ha?e encroached on
pa?ements and other public properties e?oked a sharp response from the respondents
counsel) EHearin= to be =i?en to trespassers @ho ha?e encroached on public
propertiesM 1o persons @ho commit crimesME theB seemed to ask in @onderment)
1here is no doubt that the petitioners are usin= pa?ements and other public properties
for an unauthorised purpose) Aut' their intention or obGect in doin= so is not to
Ecommit an offence or intimidate' insult or annoB anB personE' @hich is the =ist of the
offence of ICriminal trespassI under section ::1 of the 2enal Code) 1heB mana=e to
find a habitat in places @hich are mostlB filthB or marshB' out of sheer helplessness) It
is not as if theB ha?e a free choice to eFercise as to @hether to commit an
encroachment and if so' @here) 1he encroachments committed bB these persons are
in?oluntarB acts in the sense that those acts are compelled bB ine?itable circumstances
and are not =uided bB choice)
1respass is a tort) Aut' e?en the la@ of 1orts reCuires that thou=h a trespasser maB be
e?icted forciblB' the force used must be no =reater than @hat is reasonable and
appropriate to the occasion and' @hat is e?en more important' the trespasser should be
asked and =i?en a reasonable opportunitB to depart before force is used to eFpel him)
+See $amas@amB IBerIs ILa@ of 1ortsI ;th /d) bB ,ustice and 0rs) S) 3) Desai' +pa=e
!' para :1-) Aesides' under the La@ of 1orts' necessitB is a plausible defence' @hich
enables a person to escape liabilitB on the =round that the acts complained of are
necessarB to pre?ent =reater dama=e' inter alia' to himself) EHere' as else@here in the
la@ of torts' a balance has to be struck bet@een competin= sets of ?alues )))))))))))) E
+See Salmond and Heuston' ILa@ of 1ortsI' 1!th /d) +Chapter 81' pa=e :69' %rticle
1!"<I#ecessitBI-)
1he char=e made bB the State Do?ernment in its affida?it that slum and pa?ement
d@ellers eFhibit especial criminal tendencies is unfounded) %ccordin= to Dr)
2)3)0utta=i' Head of the unit for urban studies of the 1ata Institute of Social
Sciences' AombaB' the sur?eBs carried out in 1;8' 1;;'1; and 1!1 sho@ that
manB families @hich ha?e chosen the AombaB footpaths Gust for sur?i?al' ha?e been
li?in= there for se?eral Bears and that "9 per cent of the pa?ement d@ellers are self<
emploBed as ha@kers in ?e=etables' flo@ers' ice<cream' toBs' balloons' buttons'
needles and so on) 4?er 9! per cent are in the @a=e<emploBed cate=orB as casual
labourers' construction @orkers' domestic ser?ants and lu==a=e carriers) 4nlB 1); per
cent of the total number is =enerallB unemploBed) Dr) 0utta=i found amon= the
pa?ement d@ellers a : =raduate of 0arath@ada &ni?ersitB and 0uslim 2ost of some
standin=) E1hese people ha?e mer=ed @ith the landscape' become part of it' like the
chameleonE' thou=h their contact @ith their more fortunate nei=hbours @ho li?e in
adGoinin= hi=h<rise buildin=s is casual) 1he most important findin= of Dr) 0utta=i is
that the pa?ement d@ellers are a peaceful lot' Efor' theB stand to lose their shelter on
the pa?ement if theB disturb the affluent or indul=e in fi=hts @ith their fello@
d@ellersE) 1he char=e of the State Do?ernment' besides bein= contrarB to these
scientific findin=s' is born of preGudice a=ainst the poor and the destitute) %ffluent
people li?in= in skB<scrapers also commit crimes ?arBin= from li?in= on the =ains of
prostitution and defraudin= the public treasurB to smu==lin=) Aut' theB =et a@aB) 1he
pa?ement d@ellers' @hen cau=ht' defend themsel?es bB askin=' E@ho does not
commit crimes in this citB M %s obser?ed bB %nand Chakra?arti' E1he separation
bet@een eFistential realities and the rhetoric of socialism indul=ed in bB the @ielders
of po@er in the =o?ernment cannot be more profound)E ISome aspects of ineCualitB in
rural India 5 % Sociolo=ical 2erspecti?e published in I/CualitB and IneCualitB' 1heorB
and 2racticeI edited bB %ndre Aeteille' 1!9)
#ormallB' @e @ould ha?e directed the 0unicipal Commissioner to afford an
opportunitB to the petitioners to sho@ @hB the enroachments committed bB them on
pa?ements or footpaths should not be remo?ed) Aut' the opportunitB @hich @as
denied bB the Commissioner @as =ranted bB us in an ample measure' both sides
ha?in= mate their contentions elaboratelB on acts as @ell as on la@) Ha?in=
considered those contentions' @e are of the opinion that the Commissioner @as
Gustified in directin= the remo?al of the encroachments committed bB the petitioners
on pa?ements' footpaths or accessorB roads) %s obser?ed in S)L) 3apoor' +Supra-
E@here on the admitted or indisputable facts onlB one conclusion is possible and
under the la@ onlB one penaltB is permissible' the Court maB not issue its @rit to
compel the obser?ance of natural Gustice' not because it is not necessarB to obser?e
natural Gustice but because Courts do not issue futile @rits ) Indeed' in that case' the
Court did not set aside the order of supersession in ?ie@ of the factual position stated
bB it) Aut' thou=h @e do not see anB Gustification for askin= the Commissioner to hear
the petitioners' @e propose to pass an order @hich' @e belie?e' he @ould or should
ha?e passed' had he =ranted a hearin= to them and heard @hat @e did) We are of the
opinion that the petitioners should not be e?icted from the pa?ements' footpaths or
accessorB roads until one month after the conclusion of the current monsoon season'
that is to saB' until 4ctober 91' " 1!") In the mean@hile' as eFplained later' steps
maB be taken to offer alternati?e pitches to the pa?ement d@ellers @ho @ere or @ho
happened to be censused in 1;6) 1he offer of alternati?e pitches to such pa?ement
d@ellers should be made =ood in the spirit in @hich it @as made' thou=h @e do not
propose to make it a condition precedent to the remo?al of the encroachments
committed bB them)
Insofar as the 3amraG #a=ar Aasti is concerned' there are o?er :77 hutments therein)
1he affida?it of the 0unicipal Commissioner' Shri D)0)Sukhthankar' sho@s that the
Aasti @as constructed on an accessorB road' leadin= to the hi=h@aB) It is also clear
from that affida?it that the hutments @ere ne?er re=ularised and no re=istration
numbers @ere assi=ned to them bB the $oad De?elopment Department)
Since the Aasti is situated on a part of the road leadin= to the /Fpress Hi=h@aB'
serious traffic haLards arise on account of the straBin= of the Aasti children on to the
/Fpress Hi=h@aB' on @hich there is hea?B ?ehicular traffic)
1he same criterion @ould applB to the 3amraG #a=ar Aasti as @ould applB to the
d@ellin=s constructed unauthorisedlB on other roads and pa?ements in the citB)
1he affida?it of Shri %r?ind *) Dokak' %dministrator of the 0aharashtra Housin= and
%reas De?elopment %uthoritB' AombaB' sho@s that the State Do?ernment had taken a
decision to compile a list of slums @hich @ere reCuired to be remo?ed in public
interest and to allocate' after a spot inspection' "77 acres of ?acant land in or near the
AombaB Suburban District for resettlement of hutment d@ellers remo?ed from the
slums) % census @as accordin=lB carried out on ,anuarB :' 1;6 to enumerate the
slum d@ellers spread o?er about !"7 colonies all o?er AombaB) %bout 6;O of the
hutment d@ellers produced photo=raphs of the heads of their families' on the basis of
@hich the hutments @ere numbered and their occupants @ere =i?en identitB cards)
Shri Dokak further saBs in his affida?it that the Do?ernment had also decided that the
slums @hich @ere in eFistence for a lon= time and @hich @ere impro?ed and
de?eloped' @ould not normallB be demolished unless the land @as reCuired for a
public purposes) In the e?ent that the land @as so reCuired' the policB of the State
Do?ernment @as to pro?ide alternate accommodation to the slum d@ellers @ho @ere
censused and possessed identitB cards) 1he Circular of the State Do?ernment dated
FebruarB :' 1;6 +#o) S1SH1;6HD<:1- bears out this position) In the enumeration of
the hutment d@ellers' some persons occupBin= pa?ements also happened to be =i?en
census cards) 1he Do?ernment decided to allot 6 pitches to such persons at a place
near 0ala?ani) 1hese assurance held forth bB the Do?ernment must be made =ood) In
other @ords despite the findin= recorded bB us that the pro?ision contained in section
91: of the A)0)C) %ct is ?alid' pa?ement d@ellers to @hom census cards @ere =i?en
in 1;6 must be =i?en alternate pitches at 0ala?ani thou=h not as a condition
precedent to the remo?al of encroachments committed bB them) SecondlB' slum
d@ellers @ho @ere censused and @ere =i?en identitB cards must be pro?ided @ith
alternate accommodation before theB are e?icted) 1here is a contro?ersB bet@een the
petitioners and the State Do?ernment as to the eFtent of ?acant land @hich is a?ailable
for resettlement of the inhabitants of pa?ements and slums)
Whate?er that maB be' the hi=hest prioritB must be accorded bB the State Do?ernment
to the resettlement of these unfortunate persons bB allottin= to them such land as the
Do?ernment finds to be con?enientlB a?ailable) 1he 0aharashtra /mploBment
Duarantee %ct' 1;;' the /mploBment Duarantee Scheme' the I#e@ 1@entB 2oint
Socio</conomic 2ro=ramme' 1!8I' the I%ffordable La@ Income Shelter 2ro=ramme
in AombaB 0etropolitan $e=ionI and the 2ro=ramme of House Auildin= for the
economicallB @eaker sectionsI must not remain a dead letter as such schemes and
pro=rammes often do) #ot onlB that' but more and more such pro=rammes must be
initiated if the theorB of eCual protection of la@s has to take its ri=htful place in the
stru==le for eCualitB)
In these matters' the demand is not so much for less =o?ernmental interference as for
positi?e =o?ernmental action to pro?ide eCual treatment to ne=lected se=ments of
societB) 1he profound rhetoric of socialism must be translated into practice for' the
problems @hich confront the State are problems of human destinB)
Durin= the course of ar=uments' an affida?it @as filed bB Shri S)3),aha=irdar' &nder
SecretarB in the Department of Housin=' Do?ernment of 0aharashtra' settin= out the
?arious housin= schemes @hich are under the consideration of the State Do?ernment)
1he affida?it contains useful information on ?arious aspects relatin= to slum and
pa?ement d@ellers)
1he census of 1;6 @hich is referred to in that affida?it sho@s that 8!)1! lakhs of
people @ere li?in= in 6'8;':7: households spread o?er 16!7 slum pockets) 1he
earnin= of !7 per cent of the slum house holds did not eFceed $s)677 per month) 1he
State Do?ernment has a proposal to undertake ILo@ Income Scheme Shelter
2ro=rammeI @ith the aid of the World Aank) &nder the Scheme' !"'777 small plots for
construction of houses @ould become a?ailable' out of @hich :7'777 @ould be in
Dreater AombaB' 8"'77 in the 1hane<3alBan area and 87'777 in the #e@ AombaB
re=ion) 1he State Do?ernment is also ; proposin= to undertake ISlum &p=radation
2ro=ramme+S&2-I under @hich basic ci?ic amenities @ould be made a?ailable to the
slum d@ellers) We trust that these Schemes' =randiose as theB appear' @ill be pursued
faithfullB and the aid obtained from the World Aank utilised sBstematicallB and
effecti?elB for achie?in= its purpose)
1here is no short term or mar=inal solution to the Cuestion of sCuatter colonies' nor
are such colonies uniCue to the cities of India) /?erB countrB' durin= its historical
e?olution' has faced the problem of sCuatter settlements and most countries of the
under<de?eloped @orld face this problem todaB) /?en the hi=hlB de?eloped affluent
societies face the same problem' thou=h @ith their lar=er resources and smaller
populations' their task is far less difficult)
1he forcible e?iction of sCuatters' e?en if theB are resettled in other sites' totallB
disrupts the economic life of the household) It has been a common eFperience of the
administrators and planners that @hen resettlement is forciblB done' sCuatters
e?entuallB sell their ne@ plots and return to their ori=inal sites near their place of
emploBment) 1herefore' @hat is of crucial importance to the Cuestion of thinnin= out
the sCuattersI colonies in metropolitan cities is to create ne@ opportunities for
emploBment in the rural sector and to spread the eFistin= Gob opportunities e?enlB in
urban areas) %part from the further miserB and de=radation @hich it in?ol?es' e?iction
of slum and pa?ement d@ellers is an ineffecti?e remedB for decon=estin= the cities) In
a hi=hlB readable and mo?in= account of the problems @hich the poor ha?e to face'
Susan Deor=e saBs5 +IHo@ the other Half Dies 1he $eal $easons for World Hun=erI
+2olican books-)
ESo lon= as thorou=h =oin= land reform' re< =roupin= and distribution of resources to
the poorest' bottom half of the population does not take place' 1hird World countries
can =o on increasin= their production until hell freeLes and hun=er @ill remain' for the
production @ill =o to those @ho alreadB ha?e plentB to the de?eloped @orld or to the
@ealthB in the 1hird World itself)
2o?ertB and hun=er @alk hand in hand )E+2a=e 1!-)
We @ill close @ith a Cuotation from the same book @hich has a massa=e5
! E0alnourished babies' @asted mothers' emaciated corpses in the streets of %sia
ha?e definite and definable reasons for eFistin=) Hun=er maB ha?e been the human
raceIs constant companion' and Ithe poor maB al@aBs be @ith usI' but in the t@entieth
centurB' one cannot take this fatalistic ?ie@ of the destinB of millions of fello@
creatures) 1heir condition is not ine?itable but is caused bB identifiable forces @ithin
the pro?ince of rational' human controlE) +p)1"-
1o summarise' @e hold that no person has the ri=ht to encroach' bB erectin= a
structure or other@ise' on footpaths' pa?ements or anB other place reser?ed or ear<
marked for a public purpose like' for eFample' a =arden or a plaB=roundJ that the
pro?ision contained in section 91: of the AombaB 0unicipal Corporation %ct is not
unreasonable in the circumstances of the caseJ and that' the 3amraG #a=ar Aasti is
situated on an accessorB road leadin= to the Western /Fpress Hi=h@aB) We ha?e
referred to the assurances =i?en bB the State Do?ernment in its pleadin=s here @hich'
@e repeat' must be made =ood) Stated brieflB' pa?ement d@ellers @ho @ere censused
or @ho happened to be censused in 1;6 should be =i?en' thou=h not as a condition
precedent to their remo?al' alternate pitches at 0ala?ani or at such other con?enient
place as the Do?ernment considers reasonable but not farther a@aB in terms of
distanceJ slum d@ellers @ho @ere =i?en identitB cards and @hose d@ellin=s @ere
numbered in the 1;6 census must be =i?en alternate sites for their resettlementJ
slums @hich ha?e been in eFistence for a lon= time' saB for t@entB Bears or more' and
@hich ha?e been impro?ed and de?eloped @ill not be remo?ed unless the land on
@hich theB stand or the appurtenant land' is reCuired for a public purposes' in @hich
case' alternate sites or accommodation @ill be pro?ided to them' the ILo@ Income
Scheme Shelter 2ro=rammeI @hich is proposed to be undertaken @ith the aid of the
World Aank @ill be pursued earnestlBJ and' the Slum &p=radation 2ro=ramme +S&2-I
under @hich basic amenities are to be =i?en to slum d@ellers @ill be implemented
@ithout delaB) In order to minimise the hardship in?ol?ed in anB e?iction' @e direct
that the slums' @here?er situated' @ill not be remo?ed until one month after the end of
the current monsoon season' that is' until 4ctober 91'1!" and' thereafter' onlB in
accordance @ith this Gud=ment) If anB slum is reCuired to be remo?ed before that date'
parties maB applB to this Court) 2a?ement d@ellers' @hether censused or uncensused'
@ill not be remo?ed until the same date ?iL) 4ctober 91' 1!")
1he Writ 2etitions @ill stand disposed of accordin=lB)
1here @ill be no order as to costs)
0)L)%) 2etitions disposed of)
$eproduced in accordance @ith s"8+C- of the CopBri=ht %ct 1"; +India-)
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