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.

The petitioners in writ petitions Nos. 46102 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 Tulsi Pipe Road, Nahim, Bombay. The Peoples Union for Civil Liberties, Committee for the Protection of Democratic Rights and two journalists have also joined in the writ petitions.

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 hitments 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 Corpoation 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 'tresspassers', 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.

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 footpath, public street or on any place over which the 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.