OLGA TELLIS &ORS. v. BOMBAY MUNiCIPAL CORPORATION & ORS. ETC.

OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 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 Conmissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, with- out notice, cause an encroachmerit to be removed. Putting it differently, section 314 confers on the Commissioner the discre- J tion to cause · an encroachment to lie removed with or without notice. That discretion baa to lie 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 interpreta- tion because it helps sustain the validity of the law. Reading section 314 as containing a cOIIlll&ld not to issue notice before the removal of an encroachment will make the law invalid. D It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should lie exercised sparingly ·and in cases of urgency which brook · no delay. In all other cases, no departure from the audi alteram par'tem 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 re~son 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 lie affected by the proposed action must lie afforded an opportunity of being heard as to why that action should not be taken •..The hearing may lie given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may lie presumed to have been intended by the Legislature only in circum- stances 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 encro- H achment on a public property should not be removed. We have indi- cated above that far from so intending, the Legislature has left

90 SUPREME COUKT REPORTS [1985] SUPP.Z s.c.R.

A 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 B because he has no other place. to go t" 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 c 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 becau8e, there can be no effective answer to it, betrays' a mis- D understanding 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 impregn- ability of the proposed action. For example, in the common run of cases, a' person may contend in answer to a notice under setion 314 that (i) i:here was, in fact, no encroachment on any public road, footpath Or pavement, or (ii) the encroactnnent was so slight and negligible as to cause no nuisance or incovenience to other members of the public, or (iii) time may be granted for removal of · the encroachment in view of humane consiedrations 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 situations. 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 i1ot be given of a proposed action becuase, there can possibly be no answer to it, is cont- rary to the well-recognized understanding of the real import of the rule of hearing. That proposition 0•1erlooks that justice must H

OLGA TELLIS v. JlOMBAY MUNICIPAL CORPN. [CHANl>HACllUD, CJ.j 91

not only be done but must manifestly be seen to be done and A 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 safe~rds have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some insti- B tutional check on arbitrary action on the part of public autho- rities. (Kadi•h, "Methodology and Criteria in Due Process Adjudi- cation - 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 decisions C taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons. (Golberg v. Kelly, 397 u.s. 254, 264-65 [1970j right of the poor to participate in public processes). D ..Whatever its outcome, such a hearing r_epresents 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 consul- . ted 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 jeopar- dy 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 Coomit:tee 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 pers- pective that treats process as intrinsically signifi- H cant, the very essence of justice" , (See "American

92 SUPREME COURT REPORTS [1985] SUPP.2 s.c.R.

A 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 B fact accurately and consistently followed.

"It ensures that a challanged action accurately re- flects the substantive rules applicable to such action ' ; its point is less to assure participation than to use participation to assure accuracy."

c Any discussion of this topic would be incompelete without reference to an important decision of this Court in S.L. Kapoor v. Jagmoban, [19Sl] 1 s.c.R. 746,766. In that case, the superession of the New Delhi Municipal ColllIIlittee 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· superession was passed. Linked with that question was D 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, [1964j A.C.40 at 68; John v. l!eeas, [1970] 1 Chancery 345 at 402; AllDamutbodo v. Oilfields Workers'Trade Union, [1961] 3 E All E.I{. 621 (H.L.) at 625; Margarita Fuentes at al. v. Tobert L.Shevin, 32 L.E<J. 2d 556 at 574; Cbintepalli Agency Taluk Arrack Sales Cooperative Society Ltd. V• Secretary (Food & Agd.- culture) Government of Andhra Pradesh, [1978J 1 s.c.a. 563 at 567,569-570, and to an interesting discussion of the subject in Jackson's Natural Justice (1980 Ii.du.) 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 ~ill 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.

OLGA TJ::LLIS v. BOHllAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.) 93

The jurisprudence requiring hearill!l to be given to those who have encroached on pavements and other public properties .. evoked a ~harp response from the respondents counsel. " Hearing to be given to.trespassers who have encroached on public proper- ties? To persons who com.it crimes?", they seemed to ask in wondement. There i's no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. l!ut, 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 helpless- ness. lt is not as ·if they have a free choice to exercise as to whether to commit an encroachment and if so,. where. The en.._croach- ments 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 L law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reason- r able and· appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasol12.ble opportunity to depart before force is used to expel him. (See l!amasWamy Iyer's 'Law of Torts' 7th Ed. by Justice and Hrs. S.K.Uesai, (page 98, para 41). Besides, under the Law of Torts, necessity is a plausi.ble defence, which enables a person to es- cape liability on the ground that the acts complained of are E necessary to prevent greater damage, inter alia, to himself. "Here, as elsewhere in the law of torts, a balance has to be struck between competill!l sets of values •••••••• " (See Salmond and lleuston, 'Law of Torts', 18th Ed. (Chapter 21, page 463, Article 185 - 'Necessity'). F 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.Huttagi, 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 G 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 gener- H ally unemployed. Dr. Muttagi found among the pavement dwellers a

94 SUPREME COURT REPORTS [1985] SUPP:2 s.c.R.

A raduate of Marathwada Universl.ty and Muslim Post of some stand- ing. "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 B 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 desti- tute. 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 pave- c ment dwellers, when caught, defend themselV'es 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 'Equal~ty and Inequality, Theory and Practice' edited by Andre D Beteille, 1983.

Normally, we would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the en- croachments committed by them on pavements or ·footpaths should not be removed. But, the opportunity which was denied by the E Commissioner was granted by Us in an ample measure, both sides having made 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 observ.ed in S.L. Kapoor, (Supra) F "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 becuase it is not necessary to observe natural justice but beacuse 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 '1e 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,

OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRACHUD, CJ.] 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 cormnit- ted by them. B

Insofar as the Kam.raj Nagar Basti is concerned, there are over 400 hutments therein. The affidavit of the Municipal Connnissioner, Shri D.M.Sukhthankar, shows that the Bas ti was constructed on an accessory road, leading to the highway. It is also clear from that affidavit that the hutments were never regu- c larised and no re.gistration numbers were assigned to them by the Road Development Department. Since the Ba.sti is situated. on a part of the road leading to the Express Highway, serious traffic hazards arise on account of the straying of the Bast! children on to the Express Highway, on which there is heavy vehicular ( traffic. The same criterion would apply to the KamraJ Nagar t llasti 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, snows that the State Goverranent 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 Cesettle- ment 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 Jlombay. About 67% of the hutrnent dwellers produced photographs of the heads of their families, on the basis of which the hubnents 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 G the event that the land was so required, the policy of the State Government was to provide altenia.te accorm:npdation to the slum dwellers who were censused and possessed id entity cards. The Ciruclar, of the State Goverrunent dated February 4, 1976 (No. SIS/176/D-41) bears out this position. In the enumeration of the hutment dwellers, some persons occupying pavements also happened H to be given census cards. The Government decieded to. allot

96 SUPREME COURT REPORTS [l985J SUPP.2 s.c.R:

A pitches to such persons at a place near Malavani. These assurance held forth by the Goverrunent nrust 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 B removal of encroachments committed by them. Secondly, slum dweller~ who were censused and .were given identity cards :must be provided with alternate accolllillOdation 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 nrust be accorded by the State C Govermnent to the resettlement of these unfortunate persons by alloting to them such land as the Government finds to be conve- niently available. The Maharashtra Employment Guarantee Act, 1977, the Employment Guarantee Scheme, the 'New Twenty Point Socio-Economic Programme, 1982', the 'Affordable Low Income Shelter Programme in Bombay • Metropolitan Region' and the Programme of House Building for the economically weaker sections' D nrust not remain a dead letter· as such schemes and programmes often doe Not only that, but· more and more such progranmes 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 nruch for less governmental inter- ference as for positive governmental action to provide equal E treatment.to neglected segments of society. The profound rhetoric of socialism nrust be translated into practice for, the problems which confront the State are problems of human destiny.

Shri During the course of arguments, an affidavit was filed by S.K.Jahagirdar, Under Secretary in the Department of • F 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 G 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 H and 20,000 in the New Bombay region. The State Government is also

OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. (CHANDHACHUD, CJ. j 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 ~tilised systematically and effectively for achieving its purpose. • B There is no short term or marginal solution to the question of squatter colonies, nor are such colonies llllf:que to the cities of India. Every country, du.ring its historical evolution, has fated 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 c 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 cotmnon 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 ,opportu~ties 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 dwell~rs 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 - 'n.e Keal 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 :emain, for the production will go to those who already have plenty - to the developed world or to the wealthy in the Third G 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 : H

98 SUPREME COURT REPORTS (1985] SUPP.2 s.c.R.

A "Malnourished babies, wasted mothers, emaciated corp- ses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth .century, one cannot take this fatalistic view of the destiny of millions B 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 en- croach, ~Y erecting a structure or otherwise, on footpaths, pave- ments or any other place reserved or ear-marked for a public c purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Cor- poration 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 l!ighway. We have referredr to the assurances given by the State GOverment in its pleadings here which, we repeat, must be made good. Stated D 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 othe~ convenient place as the Goverrunent considers reason- able but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were nU1obered E in the l''.76 census must be given alternate sites for their re-- settlement; 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 imple- mented without delay. In order to minimise the hardship involved in any eviction, we direct that the sllllllS, 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 "!Je removed until the sam.e date viz. October 31, 1985. H

OLGA TELLIS v. BOMBAY MUNICIPAL CORPN. [CHANDRAC!IUD, CJ. J 99

The Writ Petitions will stand disposed of accordingly. A There will be no order as to costs.

M.L.A. Petitions disposed -of.