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PETITIONER: OLGA TELLIS & ORS.

       Vs.

RESPONDENT: BOMBAY MUNICIPAL CORPORATION & ORS. ETC.

DATE OF JUDGMENT10/07/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1986 AIR  180            1985 SCR  Supl. (2)  51  1985 SCC  (3) 545        1985 SCALE  (2)5  CITATOR INFO :  F          1986 SC 204  (11)  RF         1986 SC 847  (12)  D          1989 SC  38  (13)  D          1989 SC1988  (8,20,21)  R          1990 SC1480  (41,109)  F          1991 SC 101  (23,32,223,239,258)  RF         1991 SC1117  (5)  RF         1991 SC1902  (24)  E          1992 SC 789  (13)

ACT:      Constitution of India, 1950 :      Article 32  - Fundamental Rights - Estoppel - Principle behind -  No estoppel  can be claimed against enforcement of Fundamental Rights.      Article 21,  19(1)  (e)  &  (g)  -  Pavement  and  slum dwellers Forcible  eviction and  removal of  their  hutments under Bombay  Municipal Corporation  Act -  Whether deprives them of  their means of livelihood and consequently right to life -  Right to  life - Meaning of - Whether includes right to livelihood.      Article 32  & 21  - Writ  Petition against procedurally ultra vires Government action - Whether maintainable.      Bombay Municipal  Corporation Act,  1888, s.314 - Power to remove encroachments "without notice , when permissible - Section - Whether ultra vires the Constitution.      Administrative Law  - Natural  Justice -  Audi  alteram partem -  Notice -  Discretion to act with or without notice must be  exercised reasonably,  fairly and  justly - Natural justice - Exclusion - How far permissible.

HEADNOTE:      The petitioners  in writ petitions Nos. 4610-12/81 live on pavements and in slums in the city of Bombay. Some of the petitioners in  the second batch of writ petitions Nos.5068- 79 of  1981, are  residents of  Kamraj  Nagar,  a  basti  or habitation which  is alleged  to have come into existence in about 1960-61,  near the  Western Express  Highway,  Bombay, while others  are residing in structures constructed off the

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Tulsi Pipe  Road, Mahim, Bombay. The Peoples Union for Civil Liberties, Committee for the Protection of Democratic Rights and two journalists have also joined in the writ petitions. 52      Some  time   in  1981,   the  respondents  -  State  of Maharashtra and Bombay Municipal Corporation took a decision that all pavement dwellers and the slum or busti dwellers in the city  of Bombay will be evicted forcibly and deported to their respective  places of  origin  or  removed  to  places outside the  city of  Bombay. Pursuant to that decision, the pavement dwellings  of some  of the petitioners were in fact demolished by  the Bombay Municipal Corporation. Some of the petitioners  challenged   the  aforesaid   decision  of  the respondents in  the High  Court.  The  petitioners  conceded before  the  High  Court  that  they  could  not  claim  any fundamental right  to put  up huts  on pavements  or  public roads, and also gave an undertaking to vacate the huts on or before October,  15, 1981.  On such undertaking being given, the respondents  agreed that the huts will not be demolished until October 15, 1981 and the writ petition was disposed of accordingly.      In  writ   petitions  filed   under  Article   32,  the petitioners challenged  the decision  of the  respondents to demolish the pavement dwellings and the slum hutments on the grounds (i)  that  evicting  a  pavement  dweller  from  his habitat amounts to depriving him of his right to livelihood, which is  comprehended in the right guaranteed by Article 21 of the  Constitution that no person shall be deprived of his life except  according to procedure established by law, (ii) that the  impugned action  of the  State Government  and the Bombay Municipal  Corporation is violative of the provisions contained in  Article  19(1)(3),  19(1)(g)  and  21  of  the Constitution, (iii) that the procedure prescribed by Section 314 of  the Bombay  Municipal Corporation  Act, 1888 for the removal of  encroachments from  pavements is  arbitrary  and unreasonable since,  not only  does it  not provide  for the giving of  a notice  before the  removal of  an encroachment but, expressly  enables that  the Municipal Commissioner may cause the  encroachments to be removed without notice , (iv) that it  is constitutionally  impermissible to  characterise the  pavement   dwellers  as  ’trespassers’,  because  their occupation of  pavements arises  from economic  compulsions; and (v)  that the  Court must  determine the  content of the ’right to  life’, the  function of  property  in  a  welfare state, the  dimension and true meaning of the constitutional mandate that  property must  subserve common good, the sweep of the  right to  reside and  settle  in  any  part  of  the territory of  India which is guaranteed by Article 19(1) (a) and the  right to carry on any occupation, trade or business which is  guaranteed by  Article 19(1)  (g),  the  competing claims of  pavement dwellers  on the  one hand  and  of  the pedestrians  on  the  other  and,  the  larger  question  of ensuring equality before the law. 53      The respondents contested the writ petitions contending that (1) the petitioners must be estopped from contending in the Supreme  Court that  the huts constructed by them on the pavements cannot  be demolished  because of  their right  to livelihood, since  they had  conceded in the High Court that they did  not claim  any fundamental right to put up huts on pavements or  public roads  and had  given an undertaking to the High Court that they will not obstruct the demolition of the huts after October 15, 1981.; (2) that no person has any legal right  to encroach  upon or to construct any structure on a foot-path, public street or on any place over which the

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public has  a right  of way.  The right conferred by Article 19(1) (e)  of the  Constitution to  reside and settle in any part of  India  cannot  be  read  to  confer  a  licence  to encroach and  trespass upon  public property;  (3) that  the provisions of  sections 312,  313  and  314  of  the  Bombay Municipal Corporation  Act do  not violate the Constitution, but are conceived in public interest and great care is taken by the authorities to ensure that no harassment is caused to any pavement  dweller by  enforcing the provisions; (4) that the huts  near the  Western  Express  Highway,  Vile  Parle, Bombay, were  constructed on  an accessory  road which  is a part of  the Highway  itself, and  were never regularised by the Corporation and no registration numbers were assigned to them; (5)  that no  deprivation of  life, either directly or indirectly is  involved in  the eviction  of  the  slum  and pavement  dweller   from  public   places.   The   Municipal Corporation is  under an obligation under section 314 of the B.M.C.  Act  to  remove  obstruction  on  pavements,  public streets and  other public  places. The  petitioners have not only  violated   the  provisions  of  the  Bombay  Municipal Corporation Act,  but they have contravened sections 111 and 115 of the Bombay Police Act also.      Disposing of the writ petitions, ^      HELD: 1.1  The petitions are clearly maintainable under Article 32  of the  Constitution.  Where  the  action  taken against a citizen is procedurally ultra vires, the aggrieved party can move the Supreme Court under Article 32. [79 C-D]      Naresh Shridhar Mirajkar v. State of Maharashtra [1966] 3 S.C.R. 744-770, followed.      Smt. Ujjam  Bai v.  State of  Uttar Pardesh.  [1963]  1 S.C.R. 778, referred to. 54      1.2 There  can be no estoppel against the Constitution. The Constitution  is not  only the paramount law of the land but, it  is the  source and  sustenance  of  all  laws.  Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and  honesty to  human affairs.  If a person makes representation to  another, on the faith of which the latter acts to  is prejudice,  the former  cannot resile  from  the representation made  by him.  He must  make  it  good.  This principle can  have no  application to  representations made regarding  the   assertion  or  enforcement  of  fundamental rights. [77 C-E]      1.3 Fundamental rights are undoubtedly conferred by the Constitution upon  individuals which have to be asserted and en forced  by them,  if those  rights are violated. But, the high purpose  which the  Constitution seeks  to  achieve  by conferment of  fundamental rights  is not  only  to  benefit individuals but  to  secure  the  larger  interests  of  the community. The Preamable of the Constitution says that India is a  democratic Republic.  It is  in order  to  fulfil  the promise  of   the  Preamble   that  fundamental  rights  are conferred by  the Constitution,  some on citizens like those guaranteed by  Articles 15,  16, 19,  21 and 29 and, some on citizens and  non-citizens alike,  like those  guaranteed by Articles  14,   21,  22  and  25  of  the  Constitution.  No individual can  barter away  the freedoms conferred upon him by  the   Constitution.  A  concession  made  by  him  in  a proceedings, whether  under a  mis take of law or otherwise, that he  does not possess or will not enforce any particular fundamental right,  cannot create an estoppel against him in that or  any subsequent  proceedings. Such  a concession, if

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enforced, would  defeat the purpose of the Constitution. [77 F-H, 78 A-B]      The plea of estoppel is closely connected with the plea of waiver,  the object of both being to ensure bona fides in day-to day transactions. [78 D]      In the  instant case, notwithstanding the fact that the petitioners had  conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that  they will  not object  to their  demolition  after October 15,  1981, they are entitled to assert that any such action  on  the  part  of  public  authorities  will  be  in violation of  their fundamental rights. How far the argument regarding the existence and scope    of the right claimed by the petitioners is well-founded is 55 another matter- But, the argument has to be examined despite the concession. [78 C-D]      Basheshar Nath  v. The Commissioner of Income Tax Delhi (1959) Supp. 1 S.C.R. 528, referred to.      2.1 The sweep of the right to life conferred by Article 21 is  wide and  far reaching.  It does not mean merely that life cannot  be extinguished  or taken away as, for example, by the  imposition and  execution  of  the  death  sentence, except according  to procedure  established by  law. That is but one  aspect of  the right  to life. An equally important facet of  that right  is the right to livelihood because, no person can  live without  the means  of living, that is, the means of  livelihood. If  the right  to  livelihood  is  not treated as  a part  of the constitutional right to live, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such  deprivation would not only denude the life of its  effective content  and meaningfulness  but it  would make life  impossible to  live. And  yet,  such  deprivation would not  have to  be  in  accordance  with  the  procedure established by  law, if  the  right  to  livelihood  is  not regarded as  a part  of the right to life. That, which alone makes it  possible to  live, leave  aside  what  makes  like livable, must  be deemed  to be an integral component of the right to life. [79 F-H, 80 A-B]      2.2 The  principles contained  in Articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If  there is  an obligation upon the State to secure to the  citizens an  adequate means  of livelihood  and  the right to  work, it  would be  sheer pedantry  to exclude the right to  livelihood from  the content of the right to life. The State  may not, by affirmative action, be compellable to provide  adequate   means  of  livelihood  or  work  to  the citizens. But,  any person  who is  deprived of his right to livelihood except  according  to  just  and  fair  procedure established  by   law,  can  challenge  the  deprivation  as offending the  right to life conferred by Article 21. [80 G- H, 81 A]      Munn v.  Illinois [1877]  94 US 113 and Kharak Singh v. The State of U.P. [1964] 1 S.C.R. 332 referred to.      In Re: Sant Ram (1960) 3 S.C.R. 499, distinguished. 56      2.3 In  a matter  like the  one in  which the future of half of  the city’s  population is  at stake, the Court must consult  authentic  empirical  data  compiled  by  agencies, official and  non-official. It  is by  that process that the core of  the problem  can  be  reached  and  a  satisfactory solution found.  It would  be unrealistic on the part of the Court to  reject  the  petitions  on  the  ground  that  the

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petitioners have not adduced evidence to show that they will be rendered  jobless if  they are evicted from the slums and pavements. Common  sense,  which  is  a  cluster  of  life’s experiences, is  often more  dependable than the rival facts presented by warring litigants. [82 B-C]      In the  instant case,  it is  clear  from  the  various expert studies that one of the main reasons of the emergence and  growth  of  squatter-settlements  in  big  Metropolitan cities like Bombay, is the availability of job opportunities which are  lacking in  the rural sector. The undisputed fact that even after eviction, the squatters return to the cities affords proof  of  that  position.  These  facts  constitute empirical evidence to justify the conclusion that persons in the position  of petitioners  live in slums and on pavements because they  have small jobs to nurse in the city and there is nowhere  else to  live. Evidently, they choose a pavement or a  slum in  the vicinity of their place of work, the time otherwise taken  in commuting  and its cost being forbidding for their slender means. To lose the pavement or the slum is to lose  the job. The conclusion, therefore, in terms of the constitutional phraseology  is  that  the  eviction  of  the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life. [82 D, 83 B-D]      3.1 The  Constitution does  not put an absolute embargo on the  deprivation of  life or  personal liberty. It is far too well settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by Article  21 must  be fair, just and reasonable. Just as a mala fide  act has  no existence in the eye of law, even so, unreasonableness vitiates  law and  procedure alike.  It  is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, must conform to the means  of justice  and fair  play. Procedure,  which  is unjust or  unfair in  the circumstances  of a case, attracts the vice  of unreasonableness,  thereby  vitiating  the  law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested  with statutory  powers has,  therefore,  to  be tested by  the application of two standards: The action must be 57 within the  scope of  the authority  conferred  by  law  and secondly, it  must be  reasonable. If any action, within the scope of  the authority  conferred by  law, is  found to  be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance  of  the  law  cannot  be  divorced  from  the procedure which  it prescribes  for, how  reasonable the law is, depends upon how fair is the procedure prescribed by it. [83 E, 85 F-H, 86 A]      3.2 In order to decide whether the procedure prescribed by section  314 is fair and reasonable, the Court must first determine the  true meaning  of that  section  because,  the meaning of  the law  determines its  legality. Considered in its proper  perspective, section  314 is in the nature of an enabling provision  and not  of a  compulsive character.  It enables the  Commissioner in  appropriate cases, to dispense with previous  notice  to  persons  who  are  likely  to  be affected by  the proposed  action. It  does not require and, cannot be  read to  mean that,  in total  disregard  of  the relevant circumstances  pertaining to a given situation, the Commissioner must  cause  the  removal  of  an  encroachment without  issuing   previous  notice.  The  primary  rule  of construction is  that the  language of  the law must receive its plain  and natural meaning. What section 314 provides is

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that  the   Commissioner  may,   without  notice,  cause  an encroachment to  be removed.  It does  not command  that the Commissioner, shall without notice, cause an encroachment to be removed.  Putting it  differently, section 314 confers on the Commissioner  the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in  a reasonable  manner so  as to comply with the constitutional mandate  that the  procedure accompanying the performance of a public act must be fair and reasonable. The Court must  leen in favour of this interpretation because it helps sustain  the validity  of the law. Reading section 314 as containing  a command not to the issue before the removal of an encroachment will make the law invalid. [88 H, 89 A-D]      3.3 Section  314 is  so  designed  as  to  exclude  the principles of natural justice by way of exception and not as a general  rule.  There  are  situations  which  demand  the exclusion of  the rules  of natural  justice  by  reason  of diverse factors like time, place, the apprehended danger and so on.  The ordinary  rule which  regulates all procedure is that persons  who are  likely to be affected by the proposed action must  be afforded an opportunity of being heard as to why that  action should  not be  taken. The  hearing may  be given individually or collectively, depending upon the facts 58 of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only  in circumstances  which warrant  it.  Such circumstances must  be known to exist, when so required, the burden being upon those who affirm their existence. [89 E-G]      3.4 The  proposition that notice need not be given of a pro posed action because, there can possibly be no answer to it, is  contrary to the well-recognized understanding of the real  import  of  the  rule  of  hearing.  That  proposition overlooks that  justice must  not  only  be  done  but  must manifestly be  seen to  be done  and confuses  one  for  the other. The appearance of injustice is the denial of justice. It is  the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also  be seen  to be  done. Procedural  safeguards have their historical  origins in  the notion  that conditions of personal freedom  can be  preserved only  when there is some institutional check  on arbitrary  action on the part of the public authorities.  The right  to be  heard has two facets, intrinsic and  instrumental. The  intrinsic  value  of  that right  consists   in  the  opportunity  which  it  gives  to individuals or groups, against whom decision taken by public authorities operate,  to participate  in  the  processes  by which  those   decisions  are   made,  an  opportunity  that expresses their dignity as persons. [90 H, 91 A-D]      E.P. Royappa  v. State  of Tamil  Nadu [1974]  2 S.C.R. 348, Maneka  Gandhi v.  Union of  India [1978] 2 S.C.R. 621, M.O. Hoscot  v. State  of Maharashtra  [1979] 1  S.C.R. 192, Sunil Batra,  I v. Delhi Administration [1979] 1 S.C.R. 392, Sita Ram.  State of  U.P. [1979]  2 S.C.R.  1085,  Hussainra Khatoon, I v. Home Secret any State of Bihar, Patna [1979] 3 S.C.R. 532,537.  Husinara Khatoon,II v. Home Secretary State of Bihar, Patna [1980] 1 S.C.C. 81 Sunil Batra, II. v. Delhi Administration [1980] 2 S.C.R. 557, Jolly George Verghese v. The Bank of Cochin [1980] 2 S.C.R. 913, 921-922. Kasturi Lal Lakshmi Redy  v. State  of Jammu  & Kashmir  [1980] 3 S.C.R. 1338, 1356,  Francis Coralie  Muliin  v.  The  Administrator Union Territory  of Delhi  [1981] 2 S.C.R. 516, 523-524, The Influence of  Remedies on  Rights’ (Current  Legal  Problems [1953] Volume 6), Per Frankfurter, J. in Viterall v. Seton 3 L. Ed  (2nd series)  1012,  Ramana  Dayaram  Shetty  v.  The

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International Airport  Authority of  India [1979]  3  S.C.R. 1014, 1032, referred to.      In  the  instant  case,  the  procedure  prescribed  by Section 314  of the  Bombay Municipal  Corporation  Act  for removal of  encroachments on the footpaths or pavements over which the public has the 59 right  of   passage  or   access,  cannot   be  regarded  as unreasonable, unfair  or unjust.  There is no static measure of reasonableness  which can  be applied  to all  situations alike. Indeed,  the question  is this procedure reasonable?" implies  and  postulates  the  inquiry  as  to  whether  the procedure prescribed  is reasonable  in the circumstances of the case.      Francis  Corlie  Mullin  v.  The  Administrator,  Union Territory of  Delhi [1981]  2 S.C.R.  516, 523-524, referred to.      3.5 Footpaths  or pavements are public properties which are intended to serve the convenience of the general public. They are  not laid for private use and indeed, their use for a private  purpose frustrates the very object for which they are carved  out from  portions of  public streets.  The main reason for  laying out  pavements  is  to  ensure  that  the pedestrians are  able to go about their daily affairs with a reasonable measure  of safety  and security.  That facility, which has matured into a right of the pedestrians, cannot be set at  naught by  allowing encroachments  to be made on the pavements. [87 B-C]      3.6 No  one has  the right  to make  use  of  a  public property  for   a  private  purpose  without  the  requisite authorisation and,  therefore, it  is erroneous  to  contend that the  pavement dwellers  have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which  pavements form a part, are primarily dedicated for the purpose  of passage  and, even  the pedestrians have but the limited  right of  using pavements  for the  purpose  of passing  and  repassing.  So  long  as  a  person  does  not transgress the limited purpose for which pavements are made, his use  thereof is  legitimate and lawful. But, if a person puts any  public property  to a  use for  which  it  is  not intended and  is not  authorised so  to use it, he becomes a trespasser. [87 D-F]      Putting up  a dwelling  on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. [87 H]      Hickman v. Maisey [1980] 1 Q.B. 752, referred to.      S.L. Kapoor v. Jagmohan [1981] 1 S.C.R. 746, 766, Ridge v. Baldwin  [1964] AC  40 at  68,  John  v.  Rees  [1970]  1 Chancery 345  at 402,  Annamunthodo v.  Oil fields  Workers’ Trade Union  [1961] 3  All E.R. 621 (H.L.) at 625, Margarits Fuentes at al v. Tobert L. 60 Shevin 32,  L. Ed.  2nd 556 at 574, Chintepalli Agency Taluk Arrack Sales Cooperative Society Ltd. v. Secretary (Food and Agriculture) [1978]  1 S.C.R.  563 at  567,  569-70,  relied upon.      4.1 There  is no  doubt that  the petitioners are using pavements and  other public  properties for  an unauthorised purpose. But,  their intention  or object in doing so is not to "commit  an offence  or intimidate  insult or  annoy  any person", which  is the  gist of  the  offence  of  "Criminal trespass" under  section 441  of the Penal Code. They manage to find  a habitat  in places  which are  mostly  filthy  or marshy, out of sheer helplessness. It is not as if they have a free  choice to  exercise  as  to  whether  to  commit  an

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encroachment and if so, where. The encroachment committed by these persons  are involuntary  acts in the sense that those acts are  compelled by  inevitable circumstances and are not guided by  choice. Trespass  is a tort. But, even the law of Torts requires  that though  a  trespasser  may  be  evicted forcibly, the  force used  must be  no greater  than what is reasonable and appropriate to the occasion and, what is even more important,  the trespasser  should be asked and given a reasonable opportunity  to depart  before force  is used  to expel him. [93 A-D]      In the  instant case, the Court would have directed the Municipal Commissioner  to  afford  an  opportunity  to  the petitioners to  show why the encroachments committed by them on pavements  or footpaths  should not  be removed. But, the opportunity which was denied by the Commissioner was granted by the  Supreme Court in an ample measure, both sides having made their  contentions elaborately  on facts  as well as on law. Having considered those contentions the Court is of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. [94 E-F]      4.2 Pavement dwellers who were censused or who happened to be  censused in  1976 should  be given,  though not  as a condition precedent  to their  removal, alternate pitches at Malavani  or,   at  such   other  convenient  place  as  the Government considers  reasonable but  not  farther  away  in terms of  distance; slum  dwellers who  were given  identity cards and  whose dwellings  were numbered in the 1976 census must be  given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or  more, and  which have  been improved and developed will not  be removed  unless the land on which they stand or the appurtenant  land, is  required for a public purpose, in which  case,   alternate  sites  of  accommodation  will  be provided to 61 them; the  ’Low Income  Scheme Shelter  Programme’ which  is proposed to  be undertaken  with the  aid of  the World Bank will  be   pursued  earnestly;  and  the  ’Slum  Upgradation Programme (SUP)’ under which basic amenities are to be given to slum dwellers will be implemented without delay. In order to minimise  the hardship  involved  in  any  eviction,  the slums, wherever  situated, will  not be  removed  until  one month after  the end  of the current monsoon season, that is until October  31, 1985  and, thereafter, only in accordance with this  judgment. If  any slum  is required to be removed before that  date, parties  may apply  to the Supreme Court. Pavement dwellers,  whether censused or uncensused, will not be removed until the same date viz. October 31, 1984. [98 D- H]      4.3 In  so far  as the Kamraj Nagar Basti is concerned, there are  over 400  hutments therein.  Since the  Basti  is situated on  a part  of the  road  leading  to  the  Express Highway, serious  traffic hazards  arise on  account of  the straying of the Basti children on to the Express Highway, on which there  is heavy  vehicular traffic. The same criterion would apply to the Kamaraj Nagar Basti as would apply to the dwellings constructed  unauthorisedly  on  other  roads  and pavements in the city. [95 C-D]

JUDGMENT:      ORIGINAL JURISDICTION  : Writ Petition Nos. 4610-4612 & 5068-5079 of 1981.

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    (Under Article 32 of the Constitution of India.)      Miss  Indira  Jaisingh,  Miss  Rani  Jethmalani,  Anand Grover and  Sumeet Kachhwaha for the Petitioners in W.P. No. 4610-12 of 1981.      Ram Jethmalani,  V.M. Tarkunde,  Miss Darshna Bhogilal, Mrs. Indu Sharma and P.H. Parekh for the Petitioners in W.P. Nos. 5068-79 of 1981.      L.N. Sinha  Attorney General,  P. Shankaranarayanan and M.N. Shroff  for Respondent  Nos. 2 & 3 in W.P. Nos. 4610-12 of 1981  and for Respondent Nos. 1 and 3 in W.P. No. 5068-79 of 1981.      K.K.Singhvi,  F.N.D.   Mollo  and   D.N.   Mishra   for Respondent No. 1 in W.P. Nos. 4610-12 and for Respondent No. 2 in W.P. No.5068-79 of 1981.      The Judgment of the Court was delivered by :      CHANDRACHUD,  CJ.  These  Writ  Petitions  portray  the plight of  lakhs of  persons who  live on  pavements and  in slums in the city of Bombay. They constitute nearly half the population of 62 the city.  The first  group of petitions relates to pavement dwellers while the second group relates to both pavement and Basti or  Slum dwellers. Those who have made pavements their homes exist  in the midst of filth and squalor, which has to be seen  to believed.  Rabid dogs in search of stinking meat and cats  in search  of hungry  rats keep them company. They cook and  sleep where  they ease,  for no  conveniences  are available to them. Their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness.  The cooking  and washing   over, women pick lice from  each other’s hair. The boys beg. Menfolk, without occupation,  snatch   chains  with  the  connivance  of  the defenders of law and order; when caught, if at all, they say : "Who doesn’t commit crimes in this city ?      It is  these men  and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid   shelters   without   being   offered   alternative accommodation. They  rely for  their rights on Article 21 of the Constitution  which guarantees  that no  person shall be deprived  of   his  life   except  according   to  procedure established by  law. They  do not  contend that  they have a right to  live on  the pavements.  Their contention  is that they have a right to live, a right which cannot be exercised without the  means of livelihood. They have no option but to flock to  big cities like Bombay, which provide the means of bare subsistence.  They only  choose a  pavement or  a  slum which is  nearest to  their place  of work. In a word, their plea is  that the  right to life is illusory without a right to the  protection of   the means by which alone life can be lived. And,  the right  to life  can only  be taken  away or abridged by  a procedure established by law, which has to be fair and  reasonable, not  fanciful or arbitrary such- as is prescribed by  the Bombay  Municipal Corporation  Act or the Bombay Police Act. They also rely upon their right to reside and settle in any part of the country which is guaranteed by Article 19(1)(e).      The three  petitioners in  the group  of Writ Petitions 4610  4612  of  1981  are  a  journalist  and  two  pavement dwellers. One  of these two pavement dwellers, P. Angamuthu, migrated from  Salem, Tamil Nadu, to Bombay in the year 1961 in search  of employment.  He was a landless labourer in his home town but he was rendered Jobless because of drought. He found a  Job in  a Chemical Company at Dahisar, Bombay, on a daily wage  of Rs-23  per day. A slum-lord extorted a sum of Rs.2,50  from him in exchange of a shelter of plastic sheets

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and canvas  on a  pavement on  the Western  Express Highway, Bombay. He lives in it with his wife and three daughters who are 16, 13 and 5 years of age. 63      The second  of the two pavement dwellers came to Bombay in 1969 from Sangamner, District Ahmednagar, Maharashtra. He was a cobbler earning 7 to 8 rupees a day, but his so-called house in  the village fell down. He got employment in Bombay as a  Badli Kamgar  for Rs.  350 per  month. He was lucky in being able  to obtain  a "dwelling  house" on  a pavement at Tulsiwadi by paying Rs. 300 to a goonda of the locality. The bamboos and the plastic sheets cost him Rs. 700.      On  July   13,  1981   the  then   Chief  Minister   of Maharashtra, Shri  A.R. Antulay,  made an announcement which was given wide publicity by the newspapers that all pavement dwellers in  the city of Bombay will be evicted forcibly and deported to  their respective places of origin or removed to places outside  the  city  of  Bombay.  The  Chief  Minister directed the Commissioner of Police to provide the necessary assistance   to   respondent   1,   the   Bombay   Municipal Corporation, to  demolish the  pavement dwellings and deport the pavement  dwellers. The apparent justification which the Chief Minister  gave to his announcement was : "It is a very inhuman existence.  These structures  are flimsy and open to the elements.  During the  monsoon there  is  no  way  these people can live comfortably."      On July  23, 1981 the pavement dwelling of P. Angamuthu was demolished  by the  officers  of  the  Bombay  Municipal Corporation. He  and the members of his family were put in a bus for  Salem. His  wife and daughters stayed back in Salem but he  returned to Bombay in search of a job and got into a pavement  house  once  again.  The  dwelling  of  the  other petitioner was  demolished even earlier, in January 1980 but he rebuilt  it. It  is like  a game  of hide  and seek.  The Corporation removes the ramshackle shelters on the pavements with the  aid of  police, the pavement dwellers flee to less conspicuous pavements  in by-lanes  and, when  the officials are gone,  they return  to their  old habitats.  Their  main attachment to  those places is the nearness thereof to their place of work.      In the  other batch  of writ  petitions Nos. 5068-79 of 1981, which  was heard  along with the petitions relating to pavement dwellers,  there are 12 petitioners. The first five of  these   are  residents  of  Kamraj  Nagar,  a  basti  or habitation which  is alleged  to have come into existence in about 1960-61, near the Western Express Highway, Bombay. The next  four   petitioners   were   residing   in   structures constructed off the Tulsi Pipe Road, 64 Mahim, Bombay.  Petitioner No.  10 is  the Peoples’ Union of Civil Liberties,  petitioner No. 11 is the Committee for the Protection of Democratic Rights while petitioner No. 12 is a journalist.      The case  of the  petitioners in the KamraJ Nagar group of cases  is that  there  are  over  500  hutments  in  this particular basti  which was  built in  about 1960 by persons who were  employed by  a  Construction  company  engaged  in laying water  pipes along  the Western  Express Highway. The residents of  Kamraj Nagar  are municipal employees, factory or hotel  workers, construction  supervisors and  so on. The residents of  the Tulsi  Pipe Road  hutments claim that they have been living there for 10 to 15 years and that, they are engaged in  various small trades. On hearing about the Chief Minister’s announcement,  they filed  a writ petition in the High Court  of Bombay for an order of injunction restraining

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the  officers   of  the  State  Government  and  the  Bombay Municipal Corporation from implementing the directive of the Chief  Minister.   The  High  Court  granted  an  ad-interim injunction to be in force until July 21, 1981. On that date, respondents agreed  that the  huts will  not  be  demolished until October  15, 1981. However, it is alleged, on July 23, 1981, the  petitioners were  huddled  into  State  Transport buses for  being deported  out of  Bombay. Two  infants were born during  the deportation  but that  was set  off by  the death of two others.      The decision of the respondents to demolish the huts is challenged by  the petitioners  on the  ground  that  it  is violative of  Articles 19  and 21  of the  Constitution. The petitioners also  ask for  a declaration that the provisions of sections  312,  313  and  314  of  the  Bombay  Municipal Corporation Act, 1888 are in valid as violating Articles 14, 19 and  21 of the Constitution. The reliefs asked for in the two groups of writ petitions are that the respondents should be  directed  to  withdraw  the  decision  to  demolish  the pavement dwellings and the slum hutments and, where they are already demolished,  to restore  possession of  the sites to the former occupants.      On behalf  of the Government of Maharashtra, a counter- affidavit has  been filed  by V.S.Munje,  Under Secretary in the Department  of Housing.  The counter-affidavit meets the case of  the petitioners thus. The Government of Maharashtra neither proposed  to deport  any payment  dweller out of the city of  Bombay nor  did it, in fact, deport anyone. Such of the  pavement   dwellers,  who  expressed  their  desire  in writing, that  they wanted to return to their home towns and who sought assistance from the Government in 65 that behalf  were offered  transport facilities  up  to  the nearest rail  head and  were also  paid railway  fare or bus fare and  incidental expenses  for the  onward journey.  The Government of  Maharashtra had  issued instructions  to  its officers to visit specific pavements on July 23, 1981 and to ensure  that  no  harassment  was  caused  to  any  pavement dweller. Out  of 10,000  hutment-dwellers who were likely to be  affected   by  the   proposed  demolition   of  hutments constructed on  the pavements,  only 1024  persons opted  to avail  of   the  transport   facility  and  the  payment  of incidental expenses.      The counter-affidavit says that no person has any legal right to  encroach upon  or to  construct any structure on a footpath, public  street or  on any  place  over  which  the public has  a right  of way.  Numerous hazards of health and safety  arise   if  action  is  not  taken  to  remove  such encroachments. Since,  no civic amenities can be provided on the  pavements,  the  pavement  dwellers  use  pavements  or adjoining streets  for easing  themselves. Apart  from this, some of  the pavement  dwellers indulge  in anti-social acts like chain-snatching,  illicit distillation  of  liquor  and prostitution.  The  lack  of  proper  environment  leads  to increased criminal  tendencies, resulting  in more  crime in the cities. It is, therefore, in public interest that public places like pavements and paths are not encroached upon. The Government of Maharashtra provides housing assistance to the weaker sections  of the  society like landless labourers and persons belonging  to low  income groups,  within the  frame work of  its planned  policy  of  the  economic  and  social development of  the State. Any allocation for housing has to be made after balancing the conflicting demands from various priority sectors.  The paucity of resources is a restraining factor on  the ability of the State to deal effectively with

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the question  of providing housing to the weaker sections of the society. The Government of Maharashtra has issued policy directives that  75 percent  of the housing programme should be allocated  to the  lower income  groups  and  the  weaker sections of  the society.  One of the objects of the State’s planning policy  is to  ensure that the influx of population from the rural to the urban areas is reduced in the interest of a  proper and balanced social and economic development of the State  and of  the  country.  This  is  proposed  to  be achieved by  reversing the  rate of  growth of  metropolitan cities and  by increasing  the rate  of growth  of small and medium towns. The State Government has therefore, devised an Employment Guarantee  Scheme to enable the rural population, which remains unemployed or underemployed at certain periods of the year, to get employment during such periods. A sum 66 of about  Rs. 180 crores was spent on that scheme during the years 1979-80  and 1980-81.  On October  2, 1980  the  State Government launched  two additional  schemes  for  providing employment opportunities  for those  who cannot get work due to old age or physical infirmities. The State Government has also  launched   a  scheme   for  providing  self-employment opportunities  under  the  ’Sanjay  Gandhi  Niradhar  Anudan Yojana’. A  monthly pension  of Rs.  60 is paid to those who are too  old to  work or are physically handicapped. In this scheme, about  1,56,943 persons  have been  identified and a sum of  Rs. 2.25  crores was disbursed. Under another scheme called ’Sanjay  Gandhi  Swawalamban  Yojana’,  interest-free loans, subject  to a  maximum of Rs. 2,500, were being given to  persons   desiring  to   engage  themselves  in  gainful employment  of   their  own.   About  1,75,000  persons  had benefited under this scheme, to whom a total sum of Rs. 5.82 crores was disbursed by way of loan. In short, the objective of the  State Government  was to  place greater  emphasis on providing infrastructural  facilities to  small  and  medium towns and to equip them so that they could act as growth and service centres  for the rural hinterland. The phenomenon of poverty which  is common  to all developing countries has to be tackled  on an  All-India basis  by making  the gains  of development available to all sections of the society through a policy  of equitable  distribution of  income and  wealth. Urbanisation is  a major  problem facing the entire country, the migration  of people  from the  rural to the urban areas being a  reflection of  the colossal poverty existing in the rural  areas.   The  rural   poverty  cannot,   however,  be eliminated by  increasing  the  pressure  of  population  on metropolitan cities  like Bombay. The problem of poverty has to be  tackled by  changing the  structure of the society in which there  will be a more equitable distribution of income and greater  generation of  wealth. The State Government has stepped up  the rate  of construction  of tenements  for the weaker sections of the society from 2500 to 9500 per annum.      It  is   denied  in   the  counter-affidavit  that  the provisions of  sections 312,  313  and  314  of  the  Bombay Municipal Corporation  Act violate  the Constitution.  Those provisions are  conceived in  public interest and great care is taken  by the authorities to ensure that no harassment is caused  to   any  pavement   dweller  while   enforcing  the provisions of  those sections.  The decision  to remove such encroachments was  taken by  the  Government  with  specific instructions that  every reasonable  precaution ought  to be taken to  cause the  least  possible  inconvenience  to  the pavement dwellers.  What is  more important, so the counter- affidavit says,  the Government  of Maharashtra  had decided that, on the basis of

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67 the census  carried out in 1976, pavement dwellers who would be uprooted should be offered alternate developed pitches at Malvani where  they  could  construct  their  own  hutments. According to that census, about 2,500 pavement hutments only were then in existence.      The counter-affidavit of the State Government describes the various  steps taken by the Central Government under the Five  year  Plan  of  1978-83,  in  regard  to  the  housing programmes. The  plan shows that the inadequacies of Housing policies in  India have  both quantitative  and  qualitative dimensions. The total investment in housing shall have to be of the  magnitude of Rs. 2790 crores, if the housing problem has to be tackled even partially.      On  behalf  of  the  Bombay  Municipal  Corporation,  a counter-affidavit has  been filed  by Shri  D.M. Sukthankar, Municipal Commissioner  of Greater  Bombay.  That  affidavit shows that  he had  visited the  pavements on the Tulsi Pipe Road (Senapati Bapat Marg) and the Western Express High Way, Vile  Parle  (east),  Bombay.  On  July  23,  1981,  certain hutments on  these pavements  were demolished  under section 314 of the Bombay Municipal Corporation Act. No prior notice of demolition  was given  since the section does not provide for such  notice. The  affidavit  denies  that  the  intense speculation in  land prices,  as alleged, owes its origin to the High  rise buildings  which have  come up in the city of Bombay. It  is also denied that there are vast vacant pieces of land  in the  city which  can be utilised for housing the pavement dwellers.  Section 61  of the  B.M.C. Act lays down the obligatory  duties of the Corporation. Under clauses (c) and (d)  of  the  said  section,  it  is  the  duty  of  the Corporation to  remove excrementitious  matters, refuse  and rubbish and  to take measures for abatement of every kind of nuisance. Under  clause(g) of  that section, the Corporation is under  an obligation  to take measures for preventing and checking the spread of dangerous diseases. Under clause (o), obstructions and  projections in  or upon public streets and other public  places have  to be  removed.  Section  63  (k) empowers the  Corporation to take measures to promote public safety, health  or convenience,  not  specifically  provided otherwise. The  object of Sections 312 to 314 is to keep the pavements and  foot-paths free from encroachment so that the pedestrians do  not have to make use of the streets on which there is  heavy vehicular  traffic.  The  pavement  dwellers answer the nature’s call, bathe, cook and wash their clothes and utensils  on the  foot-paths  and  on  parts  of  public streets adjoining the foot- 68 paths. Their  encroachment creates  serious  impediments  in repairing the  roads, foot-paths  and drains. The refusal to allow the  petitioners and  other persons similarly situated to  use  foot-paths  as  their  abodes  is,  therefore,  not unreasonable,  unfair,   or  unlawful.   The   basic   civic amenities, such  as drainage,  water and  sanitation, cannot possibly be  provided to  the pavement  dwellers. Since  the pavements are  encroached upon, pedestrians are compelled to walk on  the streets, thereby increasing the risk of traffic accidents and  impeding the free flow of vehicular movement. The Municipal Commissioner disputes in his counter-affidavit that any  fundamental right  of the petitioners is infringed by removal  of the  encroachment committed by them on public property, especially the pavements. In this behalf, reliance is placed  upon an order dated July 27, 1981 of Lentin J. of the Bombay  High Court,  which records  that counsel for the petitioners had  stated expressly  on July 24, 1981, that no

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fundamental right  could be  claimed to put up a dwelling on public foot-paths and public roads.      The Municipal  Commissioner has  stated in his counter- affidavit in  Writ Petitions  5068-79 of  1981 that the huts near the  Western Express  Highway, Vile Parle, Bombay, were constructed on  an accessory  road which  is a  part of  the Highway itself. These hutments were never regularised by the Corporation and  no registration  numbers were  assigned  to them.      In answer  to  the  Municipal  Commissioner’s  counter- affidavit, petitioner no. 12. Prafulla chandra Bidwai who is a journalist,  has filed  a rejoinder  asserting that Kamraj Nagar is not located on a foot-path or a pavement. According to him,  Kamraj Nagar  is a  basti off the Highway, in which the huts  are numbered,  the record  in relation to which is maintained by the Road Development Department and the Bombay Municipal Corporation.  Contending that  petitioners 1  to 5 have been  residing in  the said basti for over 20 years, he reiterates that  the public  has no  right of way in or over the Kamraj  Nagar. He  also disputes  that the  huts on  the foot-paths cause  any obstruction  to the  pedestrians or to the vehicular  traffic or  that those  huts are  a source of nuisance or  danger to public health and safety. His case in paragraph 21  of his reply-affidavit seems to be that since, the foot-paths  are in  the occupation  of pavement dwellers for a long time, foot-paths have ceased to be foot-paths. He says that  the pavement  dwellers  and  the  slum  or  basti dwellers, who  number about  47.7 lakhs, constitute about 50 per cent  of the  total population  of Greater  Bombay, that they supply the major work force 69 for Bombay from menial Jobs to the most highly skilled jobs, that they  have been living in the hutments for generations, that they have been making a significant contribution to the economic life  of the city and that, therefore, it is unfair and unreasonable on the part of the State Government and the Municipal Corporation to destroy their homes and deport them : A  home is  a home  wherever it  is. The main theme of the reply-affidavit is  that" The slum dwellers are the sine qua non of the city. They are entitled to a quid pro quo. "It is conceded expressly  that the  petitioners do  not claim  any fundamental right  to  live  on  the  pavements.  The  right claimed by them is the right to live, at least to exist.      Only two  more pleadings  need be  referred to,  one of which is  an affidavit  of Shri Anil V. Gokak, Administrator of Maharashtra  Housing  and  Areas  Development  Authority, Bombay,  who   was  then  holding  charge  of  the  post  of Secretary, Department  of Housing.  He filed an affidavit in answer to  an application for the modification of an interim order which was passed by this Court on October 19, 1981. He says that  the legislature  of Maharashtra  had  passed  the Maharashtra  Vacant   Land  (Prohibition   of   unauthorised Occupation and  Summary Eviction)  Act, 1975 in pursuance of which the  Government had decided to compile a list of slums which were required to be removed in public interest. It was also decided  that after  a spot  inspection, 500  acres  of vacant land  in and near the Bombay Suburban District should be allocated  for re-settlement  of the hutment dwellers who were removed from the slums. A Task Force was constituted by the Government  for the  purpose of carrying out a census of the hutments  standing on  lands belonging to the Government of the Maharashtra, the Bombay Municipal Corporation and the Bombay Housing Board. A Census was, accordingly, carried out on January  4, 1976  by deploying  about  7,000  persons  to enumerate the  slum dwellers  spread over  approximately 850

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colonies all  over Bombay.  About 67 per cent of the hutment dwellers from  a total  of about  2,60,000 hutments produced photographs of  the heads of their families, on the basis of which hutments  were numbered and their occupants were given identity cards.  It was  decided that  slums which  were  in existence for  a long  time  and  which  were  improved  and developed would  not normally  be demolished unless the land was required  for a  public purpose.  In the  event that the land was so required, the policy of the State Government was to provide  alternative accommodation  to the  slum dwellers who were  censused and  possessed identity  cards.  This  is borne out  by a circular of the Government dated February 4, 1976 (No.  SIS 1176/D.  41). Shri  Gokak says that the State Government has 70 issued instructions  directing, inter  alia, that "action to remove the slums excepting those which are on the foot-paths or roads  or which  are new  or casually located should not, therefore, be  taken without  obtaining  approval  from  the Government to the proposal for the removal of such slums and their rehabilitation." Since, it was never the policy of the Government to  encourage construction  of hutments  on foot- paths, pavements or other places over which the public has a right of  way, no  census of such hutments was ever intended to be  conducted. But,  sometime  in  July  1981,  when  the Government  officers   made  an   effort  to  ascertain  the magnitude of  the problem  of evicting pavement dwellers, it was  discovered   that  some  persons  occupying  pavements, carried census cards of 1976. The Government then decided to allot pitches to such occupants of pavements.      The only other pleading which deserves to be noticed is the affidavit of the journalist petitioner, Ms. Olga Tellis, in reply  to the  counter-affidavit  of  the  Government  of Maharashtra. According  to her, one of the important reasons of the  emergence and  growth of squatter-settlements in the Metropolitan cities  in India  is, that  the Development and Master Plans of most of the cities have not been adhered to. The density  of population in the Bombay Metropolitan Region is not  high  according  to  the  Town  Planning  standards. Difficulties are  caused by  the fact that the population is not evenly distributed over the region, in a planned manner. New  constructions   of  commercial   premises,  small-scale industries and  entertainment houses  in the  heart  of  the city, have  been permitted  by the Government of Maharashtra contrary to  law and  even residential  premises  have  been allowed to  be converted  into  commercial  premises.  This, coupled with  the fact  that the  State Government  has  not shifted its main offices to the northern region of the city, has led  to the  concentration  of  the  population  in  the southern region due to the availability of Job opportunities in that  region. Unless  economic and  leisure  activity  is decentralised, it  would be impossible to find a solution to the problems arising out of the growth of squatter colonies. Even if  squatters are  evicted, they  come back to the city because, it  is there  that Job opportunities are available. The alternate  pitches provided  to the  displaced pavement- dwellers on  the basis of the so-called 1976 census, are not an effective  means to  their  resettlement  because,  those sites are  situated far  away from the Malad Railway Station involving cost  and time which are beyond their means. There are no  facilities available  at Malavant  like schools  and hospitals, which drives them back to the stranglehold of the city. The permission granted to the 71 ’National  Centre   of  Performing  Arts’  to  construct  an

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auditorium at  the Nariman  Point, Backbay  Reclamation,  is cited as  a ’gross’  instance of the short-sighted, suicidal and discriminatory  policy of the Government of Maharashtra. It is  as if  the sea  is reclaimed  for the construction of business and entertainment houses in the centre of the city, which creates job opportunities to which the homeless flock. They work  therein and  live on  pavements. The grievance is that, as  a result  of this  imbalance, there are not enough jobs  available  in  the  northern  tip  of  the  city.  The improvement of  living  conditions  in  the  slums  and  the regional distribution  of job  opportunities  are  the  only viable remedies  for relieving  congestion of the population in the centre of the city. The increase allowed by the State Government in the Floor Space Index over and above 1.33, has led to  a further  concentration of population in the centre of the city.      In the  matter of  housing, according  to  Ms.  Tellis’ affidavit, Government  has not  put  to  the  best  use  the finances and  resources available to it. There is a wide gap between the  demand and  supply in the area of housing which was in the neighbourhood of forty five thousand units in the decade 1971-81.  A huge  amount of  hundreds  of  crores  of rupees shall  have to be found by the State Government every year during  the  period  of  the  Sixth  Plan  if  adequate provision for  housing is  at all to be made. The Urban Land Ceiling Act  has not  achieved its desired objective nor has it been  properly implemented. The employment schemes of the State Government  are like  a drop in the ocean and no steps are taken  for increasing  Job opportunities  in  the  rural sector. The  neglect  of  health,  education  transport  and communication in  that sector  drives the  rural folk to the cities, not  only in search of a living but in search of the basic  amenities  of  life.  The  allegation  of  the  State Government  regarding   the  criminal  propensities  of  the pavement dwellers  is stoutly  denied in the reply-affidavit and it  is said  to be  contrary  to  the  studies  of  many experts. Finally,  it is  stated that  it is  no longer  the objective of the Sixth Plan to reverse the rate of growth of metropolitan cities.  The  objective  of  the  earlier  plan (1978-83) has  undergone a significant change and the target now is  to ensure the growth of large metropolitan cities in a  planned  manner.  The  affidavit  claims  that  there  is adequate land  in the Bombay metropolitan region to absorb a population of  20 million  people, which  is expected  to be reached by the year 2000 A.D.      The  arguments   advanced  before   us  by  Ms.  Indira Jaisingh, Mr.  V.M. Tarkunde  and Mr. Ram Jethmalani cover a wide range but 72 the main  thrust of the petitioners’ case is that evicting a pavement dweller or slum dweller from his habitat amounts to depriving of  his right to livelihood, which is comprehended in the  right guaranteed  by Article  21 of the Constitution that  no  person  shall  be  deprived  of  his  life  except according to  procedure established  by law. The question of the guarantee  of personal  liberty contained  in Article 21 does not arise and was not raised before us. Counsel for the petitioners contended that the Court must determine in these petitions the  content of the right to life, the function of property in  a welfare state, the dimension and true meaning of the  constitutional mandate  that property  must subserve common good,  the sweep of the right to reside and settle in any part  of the  territory of  India which is guaranteed by Article 19(1)(e)  and the  right to carry on any occupation, trade or  business which is guaranteed by Article 19 (1)(g),

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the competing  claims of  pavement dwellers  on the one hand and of the pedestrians on the other and, the larger question of ensuring equality before the law. It is contended that it is the  responsibility of  the courts to reduce inequalities and  social  imbalances  by  striking  down  statutes  which perpetuate them.  One of  the grievances  of the petitioners against the  Bombay Municipal  Corporation Act, 1888 is that it is  a century  old antiquated piece of legislation passed in an  era when  pavement dwellers and slum dwellers did not exist and  the consciousness  of  the  modern  notion  of  a welfare state  was not  present to  the mind of the colonial legislature. According  to the  petitioners, connected  with these issues and yet independent of them, is the question of the role  of the  Court in  setting the  tone of values in a democratic society.      The argument  which bears  on the provisions of Article 21 is elaborated by saying that the eviction of pavement and slum  dweller  will  lead,  in  a  vicious  circle,  to  the deprivation  of  their  employment,  their  livelihood  and, therefore, to  the right  to life. Our attention is drawn in this behalf  to an extract from the judgment of Douglas J in Baksey v. Board of Regents, 347 M.D. 442 (1954) in which the learned Judge said:           "The right  to work  I have  assumed was  the most           precious  liberty  that  man  possesses.  Man  has           indeed, as  much right  to work as he has to live,           to be  free and  to own property. To work means to           eat and it also means to live." 73 The right  to live  and the right to work are integrated and interdependent and,  therefore, if  a person  is deprived of his job  as a  result of  his eviction  from  a  slum  or  a pavement, his  very right  to life is put in jeopardy. It is urged  that  the  economic  compulsions  under  which  these persons are  forced to  live in slums or on pavements impart to their occupation the character of a fundamental right.      It is  further urged  by the  petitioners  that  it  is constitutionally impermissible  to characterise the pavement dwellers  as  "trespassers"  because,  their  occupation  of pavements arises  from economic  compulsions. The  State  is under  an   obligation  to   provide  to  the  citizens  the necessities of  life and,  in appropriate  cases, the courts have the  power to  issue  order  directing  the  State,  by affirmative action,  to promote  and protect  the  right  to life. The  instant situation is one of crisis, which compels the use  of public  property for the purpose of survival and sustenance. Social  commitment is  the quintessence  of  our Constitution  which   defines  the  conditions  under  which liberty  has   to  be   enjoyed  and   justice  has   to  be administered. Therefore,  Directive  Principles,  which  are fundamental in  the governance of the country, must serve as a beacon  light to  the interpretation of the Constitutional provisions.  Viewed  in  this  context,  it  is  urged,  the impugned action  of the  State  Government  and  the  Bombay Municipal  Corporation   is  violative   of  the  provisions contained in  Articles 19(1)(e),  19(1)(g)  and  21  of  the Constitution. The  paucity of  financial  resources  of  the State is  no excuse  for defeating the fundamental rights of the citizens.      In support  of this argument, reliance is placed by the petitioners on what is described as the ’factual context’. A publication dated  January 1982  of the Planning Commission, Government of India, namely, ’The Report of the Expert Group of Programmes  for the Alleviation of Poverty’, is relied on as showing  the high  incidence of  poverty in  India.  That

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Report shows  that in  1977-78, 48%  of the population lived below the poverty line, which means that out of a population of 303 million who lived below the poverty line, 252 million belonged to  the rural  areas. In  1979-80 another 8 million people from  the rural  areas were  found to  live below the poverty  line.   A  Government  of  Maharashtra  Publication "Budget and  the  new  20  Point  Socio-Economic  Programme" estimates that  there are  about 45  lakh families  in rural areas of  Maharashtra  who  live  below  the  poverty  line. Another 40%  was in  the periphery  of that area. One of the major causes  of the  persistent rural  poverty of  landless labourers, 74 marginal farmers,  shepherds, physically handicapped persons and others  is  the  extremely  narrow  base  of  production available to  the majority  of  the  rural  population.  The average agricultural  holding of  a farmer  is 0.4 hectares, which is  hardly adequate  to enable  him to  make both ends meet. Landless  labourers have  no resource  base at all and they constitute  the hard-core  of poverty.  Due to economic pressures and  lack of  employment opportunities,  the rural population is  forced to migrate to urban areas in search of employment. ’The  Economic Survey  of Maharashtra’ published by the  State Government  shows  that  the  bulk  of  public investment was made in the cities of Bombay, Pune and Thane, which  created   employment  opportunities   attracting  the starving rural  population to  those cities. The slum census conducted by  the Government  of Maharashtra  in 1976  shows that 79%  of the  slum-dwellers belonged  to the  low income group  with   a  monthly  income  below  Rs.600.  The  study conducted by P. Ramachandran of the Tata Institute of Social Sciences shows that in 1972,91% of the pavement dwellers had a monthly  income of less than Rs.200. The cost of obtaining any kind  of shelter  in Bombay  is beyond  the means  of  a pavement dweller.  The principal  public housing  sectors in Maharashtra,  namely,   The  Maharashtra  Housing  and  Area Development Agency  (MHADA)  and  the  City  and  Industrial Development Corporation  of Maharashtra  Ltd.  (CIDCO)  have been able to construct only 3000 and 1000 units respectively as against  the annual  need of  60,000 units. In any event, the cost  of housing  provided even  by these  public sector agencies is  beyond the  means of  the  slum  and  pavement- dwellers. Under  the Urban Land (Ceiling and Regulation) Act 1975, private  land owners and holders are given facility to provide housing  to the  economically weaker sections of the society at  a stipulated  price of  Rs.90 per  sq.ft., which also is  beyond the means of the slum and pavement-dwellers. The reigning  market price  of houses  in Bombay varies from Rs.150 per  sq.ft. outside  Bombay to  Rs.2000 per sq.ft. in the centre of the city.      The  petitioners   dispute  the   contention   of   the respondents regarding  the non-availability  of vacant  land for allotment to houseless persons. According to them, about 20,000 hectares  of unencumbered  land is  lying  vacant  in Bombay. The Urban Land (Ceiling and Regulation) Act,1975 has failed to  achieve its  object as  is evident  from the fact that in  Bombay, 5% of the land-holders own 55% of the land. Even though  2952.83 hectares of Urban land is available for being acquired by the State Government as being in excess of the permissible  ceiling area,  only 41.51%  of this  excess land was, so far, acquired. Thus, the 75 reason why  there are  homeless people in Bombay is not that there is  no land  on which homes can be built for them but, that the  planning policy  of the  State Government  permits

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high density areas to develop with vast tracts of land lying vacant. The  pavement-dwellers  and  the  slum-dwellers  who constitute 50%  of the population of Bombay, occupy only 25% of the city’s residential land. It is in these circumstances that out  of sheer  necessity  for  a  bare  existence,  the petitioners are  driven to  occupy the  pavements and slums. They live  in Bombay because they are employed in Bombay and they live on pavements because there is no other place where they can  live. This  is the  factual context  in which  the petitioners claim  the right under Articles 19(1)(e) and (g) and Article 21 of the Constitution.      The petitioners challenge the vires of section 314 read with  sections   312  and   313  of   the  Bombay  Municipal Corporation Act,  which empowers  the Municipal Commissioner to remove,  without  notice,  any  object  or  structure  or fixture which  is set  up in  or  upon  any  street.  It  is contended that,  in the  first place,  section 314  does not authorise the  demolition of  a dwelling  even on a pavement and secondly,  that a  provision which allows the demolition of  a   dwelling  without   notice  is  not  just,  fair  or reasonable. Such  a provision  vests arbitrary  and unguided power in  the Commissioner.  It  also  offends  against  the guarantee of  equality  because,  it  makes  an  unjustified discrimination between pavement dwellers on the one hand and pedestrians on the other. If the pedestrians are entitled to use the  pavements for  passing and  repassing, so  are  the pavement dwellers  entitled to  use pavements  for  dwelling upon them.  So the  argument goes.  Apart from  this, it  is urged, the  restrictions which  are sought  to be imposed by the respondents on the use of pavements by pavement-dwellers are  not  reasonable.  A  State  which  has  failed  in  its constitutional obligation to usher a socialistic society has no right  to evict slum and pavement-dwellers who constitute half of  the city’s  population. Therefore, sections 312,313 and 314 of the B.M.C. Act must either be read down or struck down.      According  to   the   learned   Attorney-General,   Mr. K.K.Singhvi and  Mr. Shankaranarayanan  who appear  for  the respondents, no one has a fundamental right, whatever be the compulsion, to  squat  on  or  construct  a  dwelling  on  a pavement, public road or any other place to which the public has a  right of  access.  The  right  conferred  by  Article 19(1)(e) of  the Constitution  to reside  and settle  in any part of India cannot be read to confer a licence to encroach and trespass upon public property. Sections 3(w) and 76 (x) of the B.M.C. Act define "Street" and "Public Street" to include a  highway, a  footway or  a passage  on  which  the public has  the right  of passage  or access.  Under section 289(1) of  the Act, all pavements and public streets vest in the  Corporation   and  are   under  the   control  of   the Commissioner. In  so far  as Article  21  is  concerned,  no deprivation of  life,  either  directly  or  indirectly,  is involved in  the eviction  of the slum and pavement-dwellers from public  places. The  Municipal Corporation  is under an obligation under  section 314  of the  B.M.C. Act  to remove obstructions on  pavements, public  streets and other public places. The  Corporation does  not even possess the power to permit any  person to occupy a pavement or a public place on a permanent  or quasi-permanent  basis. The petitioners have not only violated the provisions of the B.M.C. Act, but they have contravened  sections 111  and 115 of the Bombay Police Act also.  These sections  prevent a person from obstructing any other  person in  the latter’s use of a street or public place or  from committing  a nuisance.  Section 117  of  the

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Police Act  prescribes punishment for the violation of these sections.      We will  first  deal  with  the  preliminary  objection raised by  Mr. K.K.Singhvi,  who appears  on behalf  of  the Bombay  Municipal  Corporation,  that  the  petitioners  are estopped  from   contending  that   their  huts   cannot  be demolished by  reason of  the fundamental  rights claimed by them. It  appears that a writ petition, No. 986 of 1981, was filed on  the Original  Side of the Bombay High Court by and on behalf  of the pavement dwellers claiming reliefs similar to those  claimed in  the instant batch of writ petitions. A learned  Single   Judge  granted  an  ad-interim  injunction restraining the  respondents from  demolishing the  huts and from evicting  the pavement dwellers. When the petition came up for hearing on July 27, 1981, counsel for the petitioners made a  statement in  answer to a query from the court, that no fundamental right could be claimed to put up dwellings on foot-paths or public roads. Upon this statement, respondents agreed not  to demolish  until October  15, 1981, huts which were constructed  on the  pavements or public roads prior to July 23,1981.  On August  4, 1981, a written undertaking was given by the petitioners agreeing, inter alia, to vacate the huts on  or before  October 15, 1981 and not to obstruct the public authorities  from demolishing them. Counsel appearing for the  State of  Maharashtra responded to the petitioners’ undertaking by  giving an undertaking on behalf of the State Government that, until October 15, 1981, no pavement dweller will be  removed out  of the  city against  his wish. On the basis of  these undertakings,  the learned Judge disposed of the 77 writ  petition  without  passing  any  further  orders.  The contention of the Bombay Municipal Corporation is that since the pavement  dwellers had  conceded in  the High Court that they did  not claim  any fundamental right to put up huts on pavements or  public roads  and  since  they  had  given  an undertaking to  the High  Court that  they will not obstruct the demolition  of the  huts after October 15, 1981 they are estopped  from  contending  in  this  Court  that  the  huts constructed by  them on  the pavements  cannot be demolished because of  their right to livelihood, which is comprehended within the  fundamental right  to life guaranteed by Article 21 of the Constitution.      It is  not possible  to accept  the contention that the petitioners are  estopped from  setting up their fundamental rights as  a defence to the demolition of the huts put up by them on  pavements or parts of public roads. There can be no estoppel against  the Constitution.  The Constitution is not only the paramount law of the land but, it is the source and substance of  all laws.  Its  provisions  are  conceived  in public interest and are intended  to serve a public purpose. The doctrine  of estoppel  is based  on the  principle  that consistency in word and action imparts certainty and honesty to human  affairs. If  a person  makes a  representation  to another, on  the faith  of which  the  latter  acts  to  his prejudice, the  former cannot resile from the representation made by  him. He  must make it good. This principle can have no  application   to  representations   made  regarding  the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not  exercise his  right to free speech and expression or the  right to  move freely  throughout the  territory  of India cannot deprive him of those constitutional rights, any more than  a concession  that  a  person  has  no  right  of personal liberty  can justify  his detention contrary to the

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terms of  Article 22 of the Constitution. Fundamental rights are  undoubtedly   conferred  by   the   Constitution   upon individuals which  have to be asserted and enforced by them, if those  rights are  violated. But,  the high purpose which the  Constitution   seeks  to   achieve  by   conferment  of fundamental rights is not only to benefit individuals but to secure the  larger interests  of the community. The Preamble of  the   Constitution  says  that  India  is  a  democratic Republic. It  is in  order to  fulfil  the  promise  of  the Preamble  that  fundamental  rights  are  conferred  by  the Constitution, some  on citizens  like  those  guaranteed  by Articles 15,16,19,21  and 29,  and some on citizens and non- citizens alike, like those guaranteed by Articles 78 14,21,22 and  25 of  the  Constitution.  No  individual  can barter  away   the  freedoms   conferred  upon  him  by  the Constitution. A  concession made  by him  in  a  proceeding, whether under  a mistake  of law  or otherwise, that he does not possess  or will  not enforce any particular fundamental right, cannot  create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid,  an all-powerful state could easily tempt an individual to  forego  his  precious  personal  freedoms  on promise  of   transitory,  immediate   benefits.  Therefore, notwithstanding the  fact that  the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct  hutments on  pavements and  that they will not object to  their demolition after October 15, 1981, they are entitled to  assert that  any such  action on  the  part  of public authorities will be in violation of their fundamental rights. How  far the  argument regarding  the existence  and scope of  the right  claimed by  the  petitioners  is  well- founded is  another matter.  But, the  argument  has  to  be examined despite the concession.      The plea of estoppel is closely connected with the plea of waiver,  the object of both being to ensure bona fides in day-today   transactions.   In   Basheshar   Nath   v.   The Commissioner of  Income Tax Delhi, [1959] Supp. 1 S.C.R. 528 a Constitution  Bench of  this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor J.) held  that there  can be  no waiver  of the  fundamental right founded  on Article 14 of the Constitution. Two others (N.H.Bhagwati and  Subba Rao,JJ.)  held that  not only could there be no waiver of the right conferred by Article 14, but there could  be no  waiver of  any other  fundamental  right guaranteed by Part III of the Constitution. The Constitution makes no  distinction,  according  to  the  learned  Judges, between fundamental  rights enacted  for the  benefit of  an individual and  those  enacted  in  public  interest  or  on grounds of public policy.      We must,  therefore, reject  the preliminary  objection and proceed  to consider  the validity  of the  petitioners’ contentions on merits.      The scope  of the  jurisdiction of  this Court  to deal with writ petitions under Article 32 of the Constitution was examined by  a special Bench of this Court in Smt. Ujjam Bai v. State  of  Uttar  Pradesh.  [1963]  1  S.C.R.  778.  That decision would 79 show that,  in three  classes  of  cases,  the  question  of enforcement of  the fundamental  rights would arise, namely, (1) where  action is  taken under  a statute  which is ultra vires the  Constitution ;  (2) where  the statute  is  intra

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vires but  the action taken is without jurisdiction; and (3) an authority under an obligation to act judicially passes an order in  violation of  the principles  of natural  justice. These categories  are, of  course, not exhaustive. In Naresh Shridhar Mirajkar  v. State  of Maharashtra, [1966] 3 S.C.R. 744-770, a  Special Bench  of nine  learned Judges  of  this Court held that, where the action taken against a citizen is procedurally ultra  vires, the aggrieved party can move this Court under Article 32. The contention of the petitioners is that the  procedure prescribed  by section 314 of the B.M.C. Act  being  arbitrary  and  unfair,  it  is  not  "procedure established by  law" within  the meaning  of Article 21 and, therefore, they  cannot be  deprived  of  their  fundamental right to  life by resorting to that procedure. The petitions are  clearly   maintainable  under   Article   32   of   the Constitution.      As we  have stated  while summing  up the  petitioners’ case, the  main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood  and  since,  they  will  be  deprived  of  their livelihood if  they are evicted from their slum and pavement dwellings, their  eviction is  tantamount to  deprivation of their life  and is  hence unconstitutional.  For purposes of argument, we  will assume  the factual  correctness  of  the premise that  if the  petitioners  are  evicted  from  their dwellings, they  will be  deprived of their livelihood. Upon that assumption,  the question  which we have to consider is whether the  right to life includes the right to livelihood. We see  only one  answer to  that question,  namely, that it does. The sweep of the right to life conferred by Article 21 is wide  and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and  execution  of  the  death  sentence,  except according to  procedure established  by law. That is but one aspect of  the right  to life. An equally important facet of that right is the right to livelihood because, no person can live without  the means  of living,  that is,  the means  of livelihood. If  the right  to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his  means of livelihood to the point of abrogation. Such deprivation would  not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to 80 be in  accordance with  the procedure established by law, if the right  to livelihood  is not  regarded as  a part of the right to  life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right  to livelihood  and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population  to big  cities. They  migrate because they have no  means of  livelihood in  the villages.  The  motive force which  people their  desertion of  their  hearths  and homes in  the village s that struggle for survival, that is, the struggle  for life.  So unimpeachable is the evidence of the nexus  between life  and the  means of  livelihood. They have to eat to live: Only a handful can afford the luxury of living to  eat. That  they can do, namely, eat, only if they have the  means of  livelihood. That is the context in which it was  said by  Douglas J. in Baksey that the right to work is the  most  precious  liberty  because,  it  sustains  and enables a  man to  live and  the right to life is a precious freedom. "Life",  as  observed  by  Field,  J.  in  Munn  v.

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Illinois, (1877) 94 U.S. 113, means something more than mere animal existence  and the inhibition against the deprivation of life  extends to  all those limits and faculties by which life is  enjoyed. This  observation was quoted with approval by this Court in Kharak Singh v. The State of U.P., [1964] 1 S.C.R. 332.      Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct  its policy  towards  securing  that  the citizens, men  and women  equally,  have  the  right  to  an adequate means  of livelihood.  Article 41, which is another Directive Principle,  provides, inter  alia, that  the State shall, within  the  limits  of  its  economic  capacity  and development, make effective provision for securing the right to work  in cases  of unemployment  and of  undeserved want. Article 37  provides that  the Directive  Principles, though not enforceable  by any  court, are nevertheless fundamental in the  governance of  the country. The Principles contained in Articles  39 (a)  and 41  must  be  regarded  as  equally fundamental in  the understanding  and interpretation of the meaning and  content of  fundamental rights.  If there is an obligation upon  the State  to secure  to  the  citizens  an adequate means of livelihood and the right to work, it would be sheer  pedantry to  exclude the  right to livelihood from the content  of the  right to  life. The  State may  not, by affirmative action, be compellable to provide adequate means of livelihood  or work to the citizens. But, any person, who is deprived of his right to livelihood 81 except according  to just  and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.      Learned  counsel  for  the  respondents  placed  strong reliance on  a decision  of this  Court in  In Re: Sant Ram, [1960] 3 S.C.R. 499, in support of their contention that the right to  life guaranteed by Article 21 does not include the right to  livelihood. Rule  24 of  the Supreme  Court  Rules empowers the  Registrar to  publish lists of persons who are proved to  be habitually  acting  as  touts.  The  Registrar issued a  notice to  the appellant  and one  other person to show cause  why their  names should  not be  included in the list of  touts. That  notice was challenged by the appellant on the ground, inter alia, that it contravenes Article 21 of the Constitution  since, by the inclusion of his name in the list of  touts, he  was deprived of his right to livelihood, which is  included in  the right  to life.  It was held by a Constitution Bench  of  this  Court  that  the  language  of Article 21 cannot be pressed in aid of the argument that the word ‘life’  in Article  21 includes ‘livelihood’ also. This decision is distinguishable because, under the Constitution, no person  can claim  the right to livelihood by the pursuit of  an  opprobrious  occupation  or  a  nefarious  trade  or business, like  tourism, gambling  or living on the gains of prostitution. The  petitioners before  us do  not claim  the right to  dwell on  pavements or in slums for the purpose of pursuing any  activity which is illegal, immoral or contrary to public  interest. Many  of them  pursue occupations which are humble but honourable.      Turning to the factual situation, how far is it true to say that  if the petitioners are evicted from their slum and pavement dwellings,  they will be deprived of their means of livelihood? It  is impossible, in the very nature of things, together reliable  data on  this subject  in regard  to each individual petitioner  and, none has been furnished to us in that form.  That the eviction of a person from a pavement or

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slum will inevitably lead to the deprivation of his means of livelihood, is  a proposition  which does  not  have  to  be established in  each individual  case. That  is an inference which can  be drawn  from acceptable data. Issues of general public importance,  which affect the lives of large sections of  the   society,  defy   a  just  determination  if  their consideration is  limited  to  the  evidence  pertaining  to specific individuals.  In the  resolution  of  such  issues, there are  no symbolic samples which can effectively project a true picture of 82 the grim  realities of  life. The  writ petitions  before us undoubtedly involve  a question  relating to dwelling houses but, they  cannot be  equated with a suit for the possession of a  house by one private person against another. In a case of the  latter kind, evidence has to be led to establish the cause of  action and justify the claim. In a matter like the one before  us, in  which the  future of  half of the city’s population is  at stake,  the Court  must consult  authentic empirical data  compiled  by  agencies,  official  and  non- official. It is by that process that the core of the problem can be  reached and  a satisfactory solution found. It would be unrealistic  on our  part to  reject the petitions on the ground that  the petitioners  have not  adduced evidence  to show that  they will be rendered jobless if they are evicted from the  slums  and  pavements.  Commonsense,  which  is  a cluster of life’s experiences, is often more dependable than the rival facts presented by warring litigants.      It is clear from the various expert studies to which we have  referred  while  setting  out  the  substance  of  the pleadings that, one of the main reasons of the emergence and growth of  squatter-settlements in  big Metropolitan  cities like Bombay,  is the availability of job opportunities which are lacking  in the  rural sector.  The undisputed fact that even after  eviction, the  squatters return  to  the  cities affords proof  of that  position. The  Planning Commission’s publication, ‘The  Report of  the Expert Group of Programmes for the  Alleviation of  Poverty’ (1982)  shows that half of the population  in India  lives below  the poverty  line,  a large part  of which lives in villages. A publication of the Government of  Maharashtra, ‘Budget  and the  New  20  Point Socio-Economic Programme’  shows  that  about  45  lakhs  of families in  rural areas  live below  the poverty  line  and that, the average agricultrual holding of a farmer, which is 0.4 hectares,  is hardly  enough  to  sustain  him  and  his comparatively large  family.  The  landless  labourers,  who constitute the  bulk of  the village  population, are deeply imbedded in the mire of poverty. It is due to these economic pressures that  the rural population is forced to migrate to urban areas  in search  of employment.  The affluent and the not-so-affluent are  alike in  search of  domestic servants. Industrial and  Business Houses  pay  a  fair  wage  to  the skilled workman  that a  villager becomes in course of time. Having found  a job,  even if  it means washing the pots and pans, the  migrant sticks to the big city. If driven out, he returns in  quest of  another job. The cost of public sector housing is  beyond his modest means and the less we refer to the deals  of private builders the better for all; excluding none. Added to 83 these factors  is the stark reality of growing insecurity in villages on  account of  the  tyranny  of  parochialism  and casteism. The  announcement made  by the  Maharashtra  Chief Minister  regarding  the  deportation  of  willing  pavement dwellers afford  some indication that they are migrants from

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the interior  areas, within  and outside  Maharashtra. It is estimated that  about 200  to 300  people enter Bombay every day  in   search  of   employment.  These  facts  constitute empirical evidence to justify the conclusion that persons in the position  of petitioners  live in slums and on pavements because they  have small jobs to nurse in the city and there is no  where else to live. Evidently, they choose a pavement or a  slum in  the vicinity of their place of work, the time otherwise taken  in commuting  and its cost being forbidding for their slender means. To loss the pavement or the slum is to lose  the job.  The conclusion, therefore in terms of the constitutional phraseology  is  that  the  eviction  of  the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.      Two conclusions  emerge from this discussion: one, that the right  to life which is conferred by Article 21 includes the right to livelihood and two, that it is established that if the  petitioners are  evicted from  their dwellings, they will be  deprived of  their livelihood. But the Constitution does not  put an absolute embargo on the deprivation of life or personal  liberty. By Article 21, such deprivation has to be according to procedure established by law. In the instant case, the  law which  allows the  deprivation of  the  right conferred by  Article 21 is the Bombay Municipal Corporation Act, 1888, the relevant provisions of which are contained in Sections 312(1),313(1)(a)  and  314.  These  sections  which occur in  Chapter XI  entitled ‘Regulation  of Streets’ read thus :      Section 312  - Prohibition  of structures  or  fixtures                     which cause obstruction in streets.           (1) No person shall, except with the permission of           the Commissioner under section 310 or 317 arect or           set up any wall, fence, rail, post, step, booth or           other structure  or fixture  in or upon any street           or upon  or over  any open  channel, drain well or           tank in  any street  so as  to form an obstruction           to, or an encroachment upon, or a projection over,           or  to    occupy,  any  portion  or  such  street,           channel, drain, well or tank". 84      "Section 313  - Prohibition of deposit, etc., of things                     in streets.           (1) No  person  shall,  except  with  the  written           permission of the Commissioner, -           (a) place  or deposit  upon any street or upon any           open channel  drain or  well in any streets (or in           any public  place) any  stall, chair,  bench, box,           ladder, bale  or other  thing so  as  to  form  an           obstruction thereto or encroachment thereon."      "Section 314  - Power to remove without notice anything                     erected   deposited    or   hawked    in                     contravention of  Section 312,313 or 313                     A.           The Commissioner  may, without notice, cause to be           removed -           (a) any  wall, fence,  rail, post,  step, booth or           other structure  or fixture which shall be erected           or set  up in  or any  street, or upon or over any           open channel,  drain, well or tank contrary to the           provisions of subsection (1) of section 312, after           the same  comes into  force in  the city or in the           suburbs, after  the date  of the coming into force           of the Bombay Municipal (Extension of Limits) Act,           1950 or  in the extended suburbs after the date of           the coming  into force  of  the  Bombay  Municipal

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         Further  Extension  of  Limits  and  Schedule  BBA           (Amendment) Act, 1956;           (b) any  stall, chair,  bench, box,  ladder, bale,           board  or  shelf,  or  any  other  thing  whatever           placed,   deposited,   projected,   attached,   or           suspended in,  upon,  from  or  to  any  place  in           contravention of sub-section (1) of section 313;           (c) any  article whatsoever  hawked or exposed for           sale in  any public  place or in any public street           in contravention of the provisions of section 313A           and any vehicle, package, box, board, shelf or any           other thing  in or on which such article is placed           or kept for the purpose of sale." By section  3(w), "street"  includes  a  causeway,  footway, passage etc.,  over which the public have a right of passage or access. 85      These provisions, which are clear and specific, empower the  Municipal   Commissioner  to   cause  to   be   removed encroachments on  footpaths  or  pavements  over  which  the public have  a right  of passage or access. It is undeniable that, in  these cases,  wherever constructions have been put up on  the pavements,  the public have a right of passage or access over those pavements. The argument of the petitioners is that  the procedure  prescribed by  section 314  for  the removal of  encroachments from  pavements is  arbitrary  and unreasonable since,  not only  does it  not provide  for the giving of  a notice  before the  removal of  an encroachment but, it  provides expressly  that the Municipal Commissioner may cause the encroachment to be removed "without notice".      It is  far too  well-settled to  admit of  any argument that the  procedure prescribed by law for the deprivation of the right  conferred by  Article 21  must be  fair, just and reasonable. (See  E.P.Royappa v. State of Tamil Nadu, [1974] 2 S.C.R.  348; Maneka  Gandhi v.  Union of  India, [1978]  2 S.C.R. 621;  M.O.Hoscot v.  State of  Maharashtra, [1979]  1 S.C.R. 192; Sunil Batra, I v. Delhi Administration, [1979] 1 S.C.R. 392; Sita Ram v. State of U.P., [1979] 2 S.C.R. 1085; Hussainara Khatoon,  I v.  Home Secretary,  State of  Bihar, Patna, [1979]  3 S.C.R.  532,537; Hussainara  Khatoon, II v. Home Secretary,  State of  Bihar, Patna, [1980] 1 S.C.C. 81; Sunil Batra,  II v.  Delhi Administration,  [1980] 2  S.C.R. 557; Jolly  George Verghese  v. The Bank of Cochin, [1980] 2 S.C.R. 913,921-922;  Kasturi Lal  Lakshmi Keddy  v. State of Jammu &  Kashmir, [1980]  3 S.C.R.  1338,1356;  and  Francis Coralie Mullin  v. The  Administrator,  Union  Territory  of Delhi, [1981] 2 S.C.R. 516,523-24.)      Just as  a mala fide act has no existence in the eye of law, even  so, unreasonableness  vitiates law  and procedure alike.  It   is  therefore   essential  that  the  procedure prescribed by  law for depriving a person of his fundamental right, in  this case  the right to life, must confirm to the norms of justice and fairplay. Procedure, which is unjust or unfair in  the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure  and consequently, the action taken under it. Any action  taken by  a public  authority which  is invested with statutory  powers has,  therefore, to  be tested by the application of  two standards: The action must be within the scope of  the authority  conferred by  law and  secondly, it must be  reasonable. If  any action, within the scope of the authority conferred  by law,  is found to be unreasonable it must mean  that the procedure established by law under which that 86

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action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribe for, how reasonable the law is, depends upon how fair is the procedure prescribed  by it, Sir Raymond Evershad says that, from the  point of  view of  the ordinary citizen, it is the procedure that  will most  strongly weigh  with him. He will tend to  form his judgment of the excellence or otherwise of the legal  system from his personal knowledge and experience in seeing  the legal  machine at  work", [‘The  influence of Remedies on  Rights’ (Current  Legal Problems  1953,  Volume 6.)]. Therefore,  He that  takes the  procedural sword shall perish with  the sword. "[Per Frankfurter J. in Viteralli v. Seton 3 L.Ed. (2nd Series) 1012]      Justice K.K.Mathew  points out  in his  article on ‘The welfare State, Rule of Law and Natural Justice’, which is to be found in his book ‘Democracy, equality and Freedom’, that there is "substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual  against arbitrary exercise of power wherever it  is  found".  Adopting  that  formulation,  Bhagwati  J., speaking for  the Court,  observed in Ramana Dayaram, Shetty v. The  International Airport  Authority of  India, [1979] 3 S.C.R. 1014,1032 that it is "unthinkable that in a democracy governed by the rule of law, the executive Government or any of its  officers should  possess arbitrary  power  over  the interest of  the individual.  Every action  of the executive Government must  be informed  with reason and should be free from arbitrariness.  That is the very essence of the rule of law and its bare minimal requirement".      Having given  our anxious  and solicitous consideration to this  question, we  are of the opinion that the procedure prescribed  by   Section  314   of  the   Bombay   Municipal Corporation  Act   for  removal   of  encroachments  on  the footpaths or  pavements over  which the public has the right of passage  or access,  cannot be  regarded as unreasonable, unfair  or   unjust.  There   is  no   static   measure   of reasonableness which can be applied to all situations alike. Indeed, the  question "is this procedure reasonables implies and postulates  the inquiry  as  to  whether  the  procedure prescribed is  reasonable in  the circumstances of the case, In Francis Coralie Mullin, [1981] 2 S.C.R. 516, Bhagwati,J., Said :           "... ... it is for the Court to decide in exercise           of its  constitutional power  of  judicial  review           whether  the   deprivation  of  life  or  personal           liberty in a given 87           case is  by procedure,  which is  reasonable, fair           and just  or it is otherwise." (emphasis supplied,           page 524).      In the  first place,  footpaths or pavements are public properties which  are intended  to serve  the convenience of the general  public. They  are not  laid for private use and indeed, their  use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The  main reason  for laying  out pavements  is  to ensure that the pedestrians are able to go about their daily affairs with  a reasonable  measure of  safety and security. That facility,  which  has  matured  into  a  right  of  the pedestrians,  cannot   be  set   at   naught   by   allowing encroachments to  be made  on the  pavements.  There  is  no substance  in   the  argument  advanced  on  behalf  of  the petitioners that  the claim  of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use  of the  pavements for  passing and  repassing, are

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competing claims  and that the former should be preferred to the latter.  No one  has the  right to  make use of a public property  for   a  private  purpose  without  the  requisite authorisation and,  therefore, it  is erroneous  to  contend that the  pavement dwellers  have the right to encroach upon pavement by  constructing dwellings thereon. Public streets, of which  pavements form a part, are primarily dedicated for the purpose  of passage  and, even  the pedestrians have but the limited  right of  using pavements  for the  purpose  of passing  and  repassing.  So  long  as  a  person  does  not transgress the limited purpose for which pavements are made, his use  thereof is  legitimate and lawful. But, if a person puts any  public property  to a  use for  which  it  is  not intended and is not intended and is not authorised so to use it, he  becomes a  trespasser. The  common example  which is cited in  some of  the  English  cases  (see,  for  example, Hickman v.  Maisey, [1900]  1 Q.B. 752, is that if a person, while using  a highway  for passage, sits down for a time to rest himself  by the  side of the road, he does not commit a trespass. But,  if a  person  puts  up  a  dwelling  on  the pavement, whatever  may be  the economic  compulsions behind such  an   act,  his  user  of  the  pavement  would  become unauthorised. As  stated in  Hickman, it is not easy to draw an exact  line between the legitimate user of a highway as a highway and  the user  which goes beyond the right conferred upon the  public by  its dedication.  But, as  in many other cases, it  is not difficult to put cases well on one side of the line.  Putting up  a dwelling  on the pavement is a case which is  clearly on one side of the line showing that it is an act  of trespass.  Section 61  of  the  Bombay  Municipal Corporation Act lays down the obligatory 88 duties of  the Corporation, under clause (d) of which, it is its duty to take measures for abetment of all nuisances. The existence of  dwellings on the pavements is unquestionably a source of  nuisance to  the public,  at least for the reason that they  are denied  the use  of pavements for passing and repassing. They  are compelled,  by reason of the occupation of pavements by dwellers, to use highways and public streets as  passages.   The  affidavit   filed  on   behalf  of  the Corporation shows  that the fall-out of pedestrians in large numbers on  highways and streets constitutes a grave traffic hazard. Surely,  pedestrians deserve  consideration  in  the matter of  their physical safety, which cannot be sacrificed in order  to accommodate  persons who  use public properties for a  private purpose,  unauthorizedly. Under clause (c) of section 61  of the  B.M.C. Act,  the Corporation is under an obligation  to   remove  obstructions  upon  public  streets another  public   places.  The   counter-affidavit  of   the Corporation  shows   that  the   existence  of  hutments  on pavements is  a serious  impediment in  repairing the roads, pavements, drains  and  streets.  Section  63(k),  which  is discretionary, empowers  the Corporation to take measures to promote   public   safety,   health   or   convenience   not specifically provided otherwise. Since it is not possible to provide any  public conveniences to the pavement dwellers on or near  the pavements, they answer the nature’s call on the pavements or  on the  streets adjoining  them.  These  facts provide the  background to  the  provision  for  removal  of encroachments on pavements and footpaths.      The challenge of the petitioners to the validity of the relevant provisions  of the Bombay Municipal Corporation Act is directed  principally  at  the  procedure  prescribed  by section 314  of that  Act, which provides by clause (a) that the Commissioner  may, without  notice, take  steps for  the

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removal of  encroachments in  or upon  ay  street,  channel, drain, etc.  By reason  of section 3(w), ‘street’ includes a causeway, footway or passage. In order to decide whether the procedure prescribed  by section 314 is fair and reasonable, we must  first determine  the true  meaning of  that section because, the  meaning of the law determines its legality. If a law  is found  to direct  the doing  of an  act  which  is forbidden  by   the  Constitution   or  to  compel,  in  the performance of  an act, the adoption of a procedure which is impermissible under  the Constitution,  it would  have to be struck down.  Considered in  its proper perspective, section 314 is  in the  nature of an enabling provision and not of a compulsive  character.   It  enables  the  Commissioner,  in appropriate cases,  to  dispense  with  previous  notice  to persons who are likely to be affected by the proposed 89 action. It  does not  require and,  cannot be  read to  mean that, in  total  disregard  of  the  relevant  circumstances pertaining to a given situation, the Commissioner must cause the removal  of an  encroachment  without  issuing  previous notice.  The  primary  rule  of  construction  is  that  the language of  the law  must receive  its  plain  and  natural meaning. What  section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does  not  command  that  the  Commissioner  shall,  without notice, cause  an encroachment  to be  removed.  Putting  it differently, section  314 confers  on the  Commissioner  the discretion to  cause an  encroachment to  be removed with or without notice.  That discretion  has to  be exercised  in a reasonable manner  so as  to comply  with the constitutional mandate that the procedure accompanying the performance of a public act  must be  fair and  reasonable. We  must lean  in favour of  this interpretation  because it helps sustain the validity of  the law.  Reading section  314 as  containing a command not  to  issue  notice  before  the  removal  of  an encroachment will make the law invalid.      It must  further be presumed that, while vesting in the Commissioner  the   power  to   act  without   notice,   the Legislature intended  that the  power  should  be  exercised sparingly and  in cases  of urgency which brook no delay. In all other  cases, no  departure from the audi alteram partem rule (’Hear  the other side’) could be presumed to have been intended. Section  314 is  so designed  as  to  exclude  the principles of natural justice by way of exemption and not as a general  rule.  There  are  situations  which  demand  the exclusion of  the rules  of natural  justice  by  reason  of diverse factors  like time, place the apprehended danger and so on.  The ordinary  rule which  regulates all procedure is that persons  who are  likely to be affected by the proposed action must  be afforded an opportunity of being heard as to why that  action should  not be  taken. The  hearing may  be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only  in circumstances  which warrant  it.  Such circumstances must  be shown to exist, when so required, the burden being upon those who affirm their existence.      It was  urged by  Shri K.K.Singhvi  on  behalf  of  the Municipal Corporation  that the  Legislature may  well  have intended that no notice need be given in any case whatsoever because, no  useful purpose  could be  served by  issuing  a notice as to why an encroachment on a public property should not be  removed. We  have indicated  above that  far from so intending, the Legislature has left 90

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it to  the discretion  of the Commissioner whether or not to give  notice,   a  discretion  which  has  to  be  exercised reasonably. Counsel  attempted to  demonstrate the practical futility of  issuing the  show cause  notice by pointing out firstly, that  the only answer which a pavement dweller, for example, can  make to  such a notice is that he is compelled to live  on the pavement because he has no other place to go to and  secondly, that it is hardly likely that in pursuance of such  a notice,  pavement dwellers or slum dwellers would ask for time to vacate since, on their own showing, they are compelled to  occupy some  pavement or  slum or the other if they are  evicted. It  may be  true  to  say  that,  in  the generality   of    cases,   persons   who   have   committed encroachments on pavements or on other public properties may not have an effective answer to give. It is a notorious fact of contemporary  life in metropolitan cities, that no person in his  senses would opt to live on a pavement or in a slum, if any  other choice were available to him. Anyone who cares to have  even a  fleeting glance  at the  pavement  or  slum dwellings will  see that  they are  the very  hell on earth. But, though  this is  so, the  contention of the Corporation that no  notice need  be given  because,  there  can  be  no effective answer  to it,  betrays a  misunderstanding of the rule of  hearing, which  is  an  important  element  of  the principles of natural justice. The decision to dispense with notice cannot  be founded  upon a presumed impregnability of the proposed  action. For  example, in  the  common  run  of cases, a  person may  contend in  answer to  a notice  under section 314  that (i) there was, in fact, no encroachment on any  public   road,  footpath   or  pavement,  or  (ii)  the encroachment was  so slight  and negligible  as to  cause no nuisance or inconvenience to other members of the public, or (iii) time may be granted for removal of the encroachment in view  of  humane  consideration  arising  out  of  personal, seasonal or  other factors.  It would not be right to assume that the  Commissioner would  reject these  or similar other considerations without  a careful application of mind. Human compassion must  soften the  rough edges  of justice  in all situation. The  eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end  of all  that one  holds dear  in life.  Humbler the dwelling, greater  the suffering  and more intense the sense of loss.      The proposition  that notice  need not  be given  of  a proposed action  because, there can possibly be no answer to it, is  contrary to the well-recognized understanding of the real  import  of  the  rule  of  hearing.  That  proposition overlooks that justice must 91 not only  be done but must manifestly be seen to be done and confuses one  for the  other. The appearance of injustice is the denial  of justice.  It is  the dialogue with the person likely to be affected by the proposed action which meets the requirement that  justice must  also be  seen  to  be  done. Procedural safeguards  have their  historical origins in the notion that  conditions of personal freedom can be preserved only when  there is  some institutional  check on  arbitrary action  on   the  part   of  public   authorities.  (Kadish, "Methodology and  Criteria in  Due Process  Adjudication - A Survey and  Criticism," 66  Yale L.J.  319,340  [1957].  The right  to   be  heard   has  two   facets,   intrinsic   and instrumental. The  intrinsic value of that right consists in the opportunity  which it  gives to  individuals or  groups, against whom  decision  taken by public authorities operate,

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to participate in the processes by which those decisions are made,  an   opportunity  that  expresses  their  dignity  as persons. (Golberg  v. Kelly,  397 U.S.  254,  264-65  [1970] right of the poor to participate in public processes).           "Whatever its outcome, such a hearing represents a           valued human  interaction in  which  the  affected           person experience  at least  the  satisfaction  of           participating  in   the  decision   that   vitally           concerns   her,    and   perhaps    the   separate           satisfaction of  receiving an  explanation of  why           the decision  is being made in a certain way. Both           the right  to be  heard from,  and the right to be           told why, are analytically distinct from the right           to secure  a different  outcome; these  rights  to           inter change  express the  elementary idea that to           be a person, rather than a thing is at least to be           consulted about  what is  done with  one.  Justice           Frankfurter  captured   part  of   this  sense  of           procedural  justice   when  he   wrote  that   the           "Validity and  moral  authority  of  a  conclusion           largely  depend  on  the  mode  by  which  it  was           reached......... No  better  instrument  has  been           devised for  arriving at  truth  than  to  give  a           person in  jeopardy of  serious loss notice of the           case against  him and  opportunity to meet it. Nor           has a  better way  been found  for generation  the           feeling, so  important to  a  popular  government,           that justice  has been  done". Joint  Anti-fascist           refugee Committee v. Mc Grath, 341, U.S. 123, 171-           172 (1951).  At stake  here is  not Just the much-           acclaimed  appearance   of  justice  but,  from  a           perspective that  treats process  as intrinsically           significant, the  very essence  of justice",  (See           American 92           Constitutional  Law"   by   Laurence   H.   Tribe,           Professor of  Law, Harvard  University (Ed.  1978,           page 503). The instrumental  facet of  the right of hearing consists in the means which it affords of assuring that the public rules of conduct,  which result  in benefits and prejudices alike, are in fact accurately and consistently followed.           "It ensures  that a  challenged action  accurately           reflects the  substantive rules applicable to such           action; its  point is less to assure participation           than to use participation to assure accuracy."      Any  discussion  of  this  topic  would  be  incomplete without reference  to an important decision of this Court in S.L. Kapoor  v. Jagmohan,  [1981] 1  S.C.R. 746,766. In that case, the  suppression of  the New Delhi Municipal Committee was challenged on the ground that it was in violation of the principles of  natural justice  since, no  show cause notice was issued  before the  order  of  suppression  was  passed. Linked with  that question  was  the  question  whether  the failure to observe the principles of natural justice matters at all,  if such  observance would  have made no difference, the admitted  or indisputable facts speaking for themselves. After referring to the decisions in Ridge v. Baldwin, [1964] A.C.40 at  68; John  v. Reeas, [1970] 1 Chancery 345 at 402; Annamuthodo v.  Oil fields Workers’ Trade Union,[1961] 3 All E.R. 621  (H.L.) at  625; Margarita Fuentes at al. v. Tobert L.Shevin, 32  L.Ed. 2d  556 at 574; Chintepalli Agency Taluk Arrack Sales  Cooperative Society  Ltd. v. Secretary (Food & Agriculture) Government  of Anadhra Pradesh, [1978] 1 S.C.R. 563 at  567,569-570, and to an interesting discussion of the

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subject in  Jackson’s Natural Justice (1980 Edn.) the Court, speaking through one of us, Chinnappa Reddy, J. Said:           "In our  view the  principles of  natural  justice           know of  no exclusionary rule dependent on whether           it would  have  made  any  difference  if  natural           justice had  been observed.  The non-observance of           natural justice is itself prejudice to any man and           proof  of  prejudice  independently  of  proof  of           denial of  natural justice is unnecessary. It will           comes from  a person  who has  denied justice that           the person  who has  been denied  justice  is  not           prejudiced." These observations  sum up the true legal position regarding the purport and implications of the right of hearing. 93      The jurisprudence  requiring hearing  to  be  given  to those who  have encroached  on pavements  and  other  public properties evoked  a sharp  response  from  the  respondents counsel. "Hearing  to  be  given  to  trespassers  who  have encroached on  public  properties?  To  persons  who  commit crimes?" they seemed to ask in wonderment. There is no doubt that the  petitioners are  using pavements  and other public properties for an unauthorised purpose. But, their intention or object  in doing  so is  not to  "commit  an  offence  or intimidate, insult  or annoy  any person", which is the gist of the  offence of  ’Criminal trespass’ under section 441 of the Penal  Code. They  manage to  find a  habitat in  places which  are   mostly  filthy   or  marshy,   out   of   sheer helplessness. It  is not  as if  they have  a free choice to exercise as  to whether to commit an encroachment and if so, where. The  encroachments committed  by  these  persons  are involuntary acts  in the sense that those acts are compelled by inevitable  circumstances and  are not  guided by choice. Trespass is a tort. But, even the law of Torts requires that though a  trespasser may be evicted forcibly, the force used must be  no greater  than what is reasonable and appropriate to the  occasion and,  what  is  even  more  important,  the trespasser  should   be  asked   and  given   a   reasonable opportunity to  depart before  force is  used to  expel him. (See Ramaswamy  Iyer’s ’Law of Torts’ 7th Ed. by Justice and Mrs. S. K. Desai, (page 98, para 41). Besides, under the Law of Torts,  necessity is a plausible defence, which enables a person to  escape liability  on the  ground  that  the  acts complained of are necessary to prevent greater damage, inter alia, to himself. "Here, as elsewhere in the law of torts, a balance has  to be  struck between  competing sets of values ............ "  (See Salmond  and Heuston,  ’Law of  Torts’, 18th Ed. (Chapter 21, page 463, Article 185-’Necessity’).      The  charge   made  by  the  State  Government  in  its affidavit that  slum and  pavement dwellers exhibit especial criminal  tendencies   is  unfounded.   According   to   Dr. P.K.Muttagi, Head  of the unit for urban studies of the Tata Institute of  Social Sciences,  Bombay, the  surveys carried out in  1972, 1977,1979  and 1981  show that  many  families which have  chosen the  Bombay footpaths  just for survival, have been  living there  for several  years and  that 53 per cent of  the pavement  dwellers are self-employed as hawkers in vegetables,  flowers, ice-cream, toys, balloons, buttons, needles and so on. Over 38 per cent are in the wage-employed category as casual labourers, construction workers, domestic servants and  luggage carriers.  Only 1.7  per cent  of  the total number  is generally  unemployed.  Dr.  Muttagi  found among the pavement dwellers a 94 graduate of  Marathwada University  and Muslim  Post of some

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standing. "These  people have  merged  with  the  landscape, become part of it, like the chameleon", though their contact with their  more fortunate  neighbours who live in adjoining high-rise buildings is casual. The most important finding of Dr. Muttagi  is that  the pavement  dwellers are  a peaceful lot, "for,  they stand to lose their shelter on the pavement if they disturb the affluent or indulge in fights with their fellow  dwellers".  The  charge  of  the  State  Government, besides being contrary to these scientific findings, is born of prejudice  against the  poor and  the destitute. Affluent people living  in sky-scrapers  also commit  crimes  varying from living  on the gains of prostitution and defrauding the public treasury  to  smuggling.  But,  they  get  away.  The pavement dwellers, when caught, defend themselves by asking, "who does  not commit  crimes in  this city ? As observed by Anand  Chakravarti,   "The  separation  between  existential realities and  the rhetoric  of socialism indulged in by the wielders  of   power  in   the  government  cannot  be  more profound." ’Some  aspects of  inequality in  rural India : A Sociological  Perspective   published   in   ’Equality   and Inequality, Theory  and Practice’  edited by Andre Beteille, 1983.      Normally,  we   would  have   directed  the   Municipal Commissioner to  afford an opportunity to the petitioners to show why  the enroachments committed by them on pavements or footpaths should  not be removed. But, the opportunity which was denied by the Commissioner was granted by us in an ample measure,  both   sides   having   mate   their   contentions elaborately on  acts as  well as  on law.  Having considered those  contentions,   we  are   of  the   opinion  that  the Commissioner was  justified in  directing the removal of the encroachments committed  by the  petitioners  on  pavements, footpaths or  accessory roads.  As observed  in S.L. Kapoor, (Supra) "where  on the  admitted or  indisputable facts only one conclusion  is possible  and  under  the  law  only  one penalty is  permissible, the Court may not issue its writ to compel the  observance of natural justice, not because it is not necessary  to observe natural justice but because Courts do not  issue futile writs . Indeed, in that case, the Court did not  set aside  the order of supersession in view of the factual position stated by it. But, though we do not see any justification  for  asking  the  Commissioner  to  hear  the petitioners, we  propose to pass an order which, we believe, he would  or should have passed, had he granted a hearing to them and  heard what  we did. We are of the opinion that the petitioners  should  not  be  evicted  from  the  pavements, footpaths or  accessory roads  until  one  month  after  the conclusion of  the current  monsoon season,  that is to say, until October 31, 95 1985. In  the meanwhile,  as explained  later, steps  may be taken to  offer alternative pitches to the pavement dwellers who were  or who  happened to be censused in 1976. The offer of alternative  pitches to  such pavement dwellers should be made good  in the  spirit in which it was made, though we do not propose  to make it a condition precedent to the removal of the encroachments committed by them.      Insofar as  the Kamraj  Nagar Basti is concerned, there are  over   400  hutments  therein.  The  affidavit  of  the Municipal Commissioner, Shri D.M.Sukhthankar, shows that the Basti was  constructed on  an accessory road, leading to the highway. It  is also  clear from  that  affidavit  that  the hutments were  never regularised and no registration numbers were assigned  to them  by the  Road Development Department. Since the Basti is situated on a part of the road leading to

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the  Express  Highway,  serious  traffic  hazards  arise  on account of  the straying  of the  Basti children  on to  the Express Highway,  on which there is heavy vehicular traffic. The same  criterion would apply to the Kamraj Nagar Basti as would apply  to the  dwellings constructed unauthorisedly on other roads and pavements in the city.      The affidavit of Shri Arvind V. Gokak, Administrator of the Maharashtra  Housing and  Areas  Development  Authority, Bombay, shows that the State Government had taken a decision to compile a list of slums which were required to be removed in public interest and to allocate, after a spot inspection, 500 acres  of vacant  land in  or near  the Bombay  Suburban District for  resettlement of  hutment dwellers removed from the slums.  A census  was accordingly carried out on January 4, 1976 to enumerate the slum dwellers spread over about 850 colonies all  over Bombay. About 67% of the hutment dwellers produced photographs  of the heads of their families, on the basis  of   which  the  hutments  were  numbered  and  their occupants were given identity cards. Shri Gokak further says in his  affidavit that  the Government had also decided that the slums  which were in existence for a long time and which were  improved   and  developed,   would  not   normally  be demolished  unless  the  land  was  required  for  a  public purposes. In  the event  that the  land was so required, the policy of  the State  Government was  to  provide  alternate accommodation to  the slum  dwellers who  were censused  and possessed  identity   cards.  The   Circular  of  the  State Government dated  February 4,  1976 (No. STS/176/D-41) bears out  this  position.  In  the  enumeration  of  the  hutment dwellers, some  persons occupying pavements also happened to be given census cards. The Government decided to allot 96 pitches to  such persons  at a  place near  Malavani.  These assurance held forth by the Government must be made good. In other words  despite the  finding recorded  by us  that  the provision contained  in section  314 of  the B.M.C.  Act  is valid, pavement  dwellers to whom census cards were given in 1976 must  be given alternate pitches at Malavani though not as a  condition precedent  to the  removal of  encroachments committed by them. Secondly, slum dwellers who were censused and  were   given  identity  cards  must  be  provided  with alternate accommodation  before they are evicted. There is a controversy between the petitioners and the State Government as to  the extent  of vacant  land which  is  available  for resettlement of  the inhabitants  of  pavements  and  slums. Whatever that  may be, the highest priority must be accorded by  the  State  Government  to  the  resettlement  of  these unfortunate persons  by allotting  to them  such land as the Government  finds   to  be   conveniently   available.   The Maharashtra Employment  Guarantee Act,  1977, the Employment Guarantee  Scheme,  the  ’New  Twenty  Point  Socio-Economic Programme,  1982’,   the  ’Affordable   Law  Income  Shelter Programme in  Bombay Metropolitan  Region’ and the Programme of House Building for the economically weaker sections’ must not remain  a dead  letter as  such schemes  and  programmes often do.  Not only  that, but more and more such programmes must be  initiated if the theory of equal protection of laws has to take its rightful place in the struggle for equality. In these  matters, the  demand  is  not  so  much  for  less governmental  interference   as  for  positive  governmental action to  provide equal  treatment to neglected segments of society.  The   profound  rhetoric   of  socialism  must  be translated into  practice for,  the problems  which confront the State are problems of human destiny.      During the  course of arguments, an affidavit was filed

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by Shri S.K.Jahagirdar, Under Secretary in the Department of Housing, Government  of Maharashtra, setting out the various housing schemes  which are  under the  consideration of  the State Government.  The affidavit contains useful information on various  aspects relating  to slum and pavement dwellers. The census  of 1976  which is  referred to in that affidavit shows that  28.18 lakhs  of people  were living  in 6,27,404 households spread  over 1680 slum pockets. The earning of 80 per cent  of the  slum house holds did not exceed Rs.600 per month. The State Government has a proposal to undertake ’Low Income Scheme  Shelter Programme’  with the aid of the World Bank. Under  the Scheme, 85,000 small plots for construction of houses  would become available, out of which 40,000 would be in  Greater Bombay,  25,00 in  the Thane-Kalyan  area and 20,000 in  the New  Bombay region.  The State  Government is also 97 proposing to  undertake  ’Slum  Upgradation  Programme(SUP)’ under which basic civic amenities would be made available to the slum dwellers. We trust that these Schemes, grandiose as they appear, will be pursued faithfully and the aid obtained from the  World Bank utilised systematically and effectively for achieving its purpose.      There is  no short  term or  marginal solution  to  the question of  squatter colonies, nor are such colonies unique to the cities of India. Every country, during its historical evolution, has faced the problem of squatter settlements and most  countries  of  the  under-developed  world  face  this problem today.  Even the highly developed affluent societies face the  same problem,  though with  their larger resources and smaller  populations, their  task is far less difficult. The  forcible  eviction  of  squatters,  even  if  they  are resettled in other sites, totally disrupts the economic life of the  household. It  has been  a common  experience of the administrators  and   planners  that  when  resettlement  is forcibly done, squatters eventually sell their new plots and return  to   their  original   sites  near  their  place  of employment. Therefore,  what is of crucial importance to the question  of   thinning  out   the  squatters’  colonies  in metropolitan cities  is  to  create  new  opportunities  for employment in  the rural  sector and  to spread the existing job opportunities  evenly in  urban areas.  Apart  from  the further misery  and degradation  which it involves, eviction of slum  and pavement  dwellers is an ineffective remedy for decongesting the  cities. In  a highly  readable and  moving account of  the problems  which the poor have to face, Susan George says:  (’How the other Half Dies The Real Reasons for World Hunger’ (Polican books).           "So  long  as  thorough  going  land  reform,  re-           grouping and  distribution  of  resources  to  the           poorest, bottom  half of  the population  does not           take  place,  Third  World  countries  can  go  on           increasing their production until hell freezes and           hunger will  remain, for the production will go to           those who  already have  plenty to  the  developed           world or to the wealthy in the Third World itself.           Poverty and hunger walk hand in hand ."(Page 18).      We will close with a quotation from the same book which has a massage: 98           "Malnourished babies,  wasted  mothers,  emaciated           corpses in  the streets  of Asia have definite and           definable reasons  for existing.  Hunger may  have           been the human race’s constant companion, and ’the           poor may  always be with us’, but in the twentieth

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         century, one  cannot take  this fatalistic view of           the destiny of millions of fellow creatures. Their           condition is  not  inevitable  but  is  caused  by           identifiable  forces   within  the   province   of           rational, human control". (p.15)      To summarise,  we hold  that no person has the right to encroach,  by   erecting  a   structure  or   otherwise,  on footpaths, pavements  or any  other place  reserved or  ear- marked for a public purpose like, for example, a garden or a playground; that  the provision  contained in section 314 of the Bombay  Municipal Corporation Act is not unreasonable in the circumstances  of the  case; and  that, the Kamraj Nagar Basti is  situated on  an  accessory  road  leading  to  the Western Express  Highway. We have referred to the assurances given by  the State  Government in its pleadings here which, we repeat,  must be  made  good.  Stated  briefly,  pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal,  alternate pitches  at Malavani  or  at  such other  convenient   place  as   the   Government   considers reasonable but  not farther  away in terms of distance; slum dwellers who  were given  identity cards and whose dwellings were numbered  in the  1976 census  must be  given alternate sites for  their resettlement;  slums  which  have  been  in existence for a long time, say for twenty years or more, and which have  been improved  and developed will not be removed unless the land on which they stand or the appurtenant land, is required  for a public purposes, in which case, alternate sites or  accommodation will  be provided  to them, the ’Low Income Scheme  Shelter Programme’  which is  proposed to  be undertaken with  the aid  of the  World Bank will be pursued earnestly; and,  the Slum Upgradation Programme (SUP)’ under which basic  amenities are to be given to slum dwellers will be implemented  without delay.  In  order  to  minimise  the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end  of the  current  monsoon  season,  that  is,  until October 31,1985  and, thereafter,  only in  accordance  with this judgment.  If any slum is required to be removed before that  date,  parties  may  apply  to  this  Court.  Pavement dwellers,  whether  censused  or  uncensused,  will  not  be removed until the same date viz. October 31, 1985. 99      The Writ  Petitions will stand disposed of accordingly. There will be no order as to costs. M.L.A.                                Petitions disposed of. 100