The Olga Tellis judgement has become relevant to the recent Supreme Court judgement on Jahangirpuri case.
What is the Jahangirpuri case about?
Recently, a fleet of bulldozers descended on Jahangirpuri in Delhi to demolish buildings, petty shops, and the entrance gate of a mosque.
Soon after the demolitions started, the Supreme Court in an urgent hearing ordered that “status quo” be maintained until further orders.
The Supreme Court held that pavement dwellers are different from trespassers which may become a game-changer in the Jahangirpuri case.
To know more about the Jahangirpuri eviction drive, click here
What is the Olga Tellis judgement?
Case background- In 1981, the State of Maharashtra and the Bombay Municipal Corporation decided that pavement and slum dwellers in Bombay city should be evicted.
Some demolitions were carried out before the case was brought to the Bombay High Court.
While they conceded that they did not have any fundamental right to put up huts on pavements or public roads.
Questions before Supreme Court- The case came up before the Supreme Court on larger questions of law.
Whether eviction of a pavement dweller would amount to depriving him/her of their livelihood guaranteed under Article 21 of the Constitution?
Whether the provisions in the Bombay Municipal Corporation Act, 1888, allowing the removal of encroachments without prior notice, were arbitrary and unreasonable?
Whether it was constitutionally impermissible to characterise pavement dwellers as trespassers?
State government’s defence- The State government and the corporation countered that pavement dwellers should be estopped.
Estoppel is a judicial device whereby a court may prevent or estop a person from making assertions.
Estoppel may prevent them from contending that the shacks constructed by them on the pavements cannot be demolished because of their right to livelihood.
How did the Supreme Court rule?
Eviction- In the Olga Tellis vs Bombay Municipal Corporation, 1985, the Bench threw out the government’s argument of estoppel, saying that there can be no estoppel against the Constitution.
It agreed that pavement dwellers do occupy public spaces unauthorised.
However, the pavement dwellers too have a right to life (which includes the right to livelihood) and dignity.
Removing encroachments without prior notice- The court held that such arbitrary powers are designed to operate as an “exception” and not the “general rule.”
It also said that they should be given a chance to be heard and a reasonable opportunity to depart before expelling them by force.
Pavement dwellers as trespassers- The court objected to authorities treating pavement dwellers as mere trespassers.
The pavement dwellers manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness.
The court had reasoned that encroachments committed by them are involuntary acts as they are compelled by inevitable circumstances and are not guided by choice.
Besides, the court noted, even trespassers should not be evicted by using force greater than what is reasonable and appropriate.
