Case Note & Summary
By special leave, the Supreme Court considered an appeal from the Gujarat High Court judgment in Special Civil Application No. 5351 of 1982. The case concerned 29 pavement-dwellers who had constructed huts on footpaths of Rakhial Road, a main road in Ahmedabad, without authorization. When the Ahmedabad Municipal Corporation attempted to remove the encroachments on 10 December 1982, the dwellers filed a writ petition under Article 226. The High Court granted interim stay and ultimately directed that the huts not be removed until suitable accommodation was provided and that a hearing consistent with natural justice be held before removal. The Corporation appealed. The Supreme Court appointed an amicus curiae and legal aid counsel. By order dated 11 September 1995, it directed the Corporation to frame a scheme for alternative accommodation. The Corporation framed a scheme; records showed that only 10 original petitioners remained, some had converted huts into commercial units, and 56 persons were in occupation. The Court framed two questions: whether the respondents were liable to ejectment and whether audi alteram partem applied; and whether the Corporation was obliged to provide permanent residence. On the first question, the Court examined Sections 63(i)(19), 312 and 314 of the Bombay Municipal Corporation Act, 1955 and Section 231 of the Bombay Provincial Municipal Corporation Act. It reiterated that public streets, pavements, and footpaths are public property intended for the convenience and safety of pedestrians; no person has a right to encroach or use them for private purposes without authorization. It relied on Sadan Singh v. New Delhi Municipal Committee, which held there is no fundamental right to occupy a particular place on a pavement, and Olga Tellis v. Municipal Corporation of Greater Bombay, which upheld the procedure under Section 314 as reasonable. The Court further held that if encroachment is of recent origin, no prior hearing is necessary; but if the Corporation has allowed long-standing encroachments, a modicum of notice—two weeks or ten days—with personal or substituted service should be given. It concluded that the Corporation's action did not violate natural justice. On the second question, the Court recognized that Article 19(1)(e) guarantees residence and settlement, and Article 21 assures right to life; it referred to Article 25(1) of the Universal Declaration of Human Rights and Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, as well as Chameli Singh v. State of U.P., to hold that right to shelter is a fundamental right under Article 21. It observed that shelter includes adequate living space, safe and decent structure, clean surroundings, light, water, electricity, sanitation and other civic amenities. The Court, therefore, balanced the public interest in removing encroachments with the need for alternative accommodation, leading to the direction for a scheme. The final operative directions are not fully included in the provided excerpt, but the Court held the Corporation's removal action valid and laid down the procedural requirement of notice for long-standing encroachments.
Headnote
A) Public Law - Encroachment on Public Streets - No Fundamental Right to Occupy Pavement - Bombay Municipal Corporation Act, 1955 Sections 312 and 314; Constitution of India Article 19(1)(e) - Footpaths, streets and pavements are public property intended for general public convenience and safety; no person has a right to encroach or use public property for private purpose without authorization; pavement dwellers' huts are permanent obstructions to free passage and pedestrian safety; Court held that respondents are liable to ejectment. (Paras not mentioned) B) Natural Justice - Audi Alteram Partem - Scope of Hearing in Encroachment Removal - Constitution of India Article 21; Bombay Municipal Corporation Act, 1955 Section 314 - For recent encroachments, no prior hearing is necessary; but for long-standing encroachments a modicum of reasonable notice of two weeks or ten days with personal or substituted service is required; full hearing is not mandatory; appellant Corporation's action was not violative of natural justice. (Paras not mentioned) C) Constitutional Law - Right to Shelter - Article 21 and International Instruments - Universal Declaration of Human Rights Article 25(1); International Covenant on Economic, Social and Cultural Rights Article 11(1); Constitution of India Article 21 - Right to shelter is a fundamental right under Article 21 and includes adequate living space, safe and decent structure, clean surroundings, light, water, electricity, sanitation and civic amenities; state must consider alternative accommodation before eviction; Court directed Corporation to frame a scheme. (Paras not mentioned) D) Municipal Law - Statutory Power to Remove Encroachments - Bombay Provincial Municipal Corporation Act Section 231; Bombay Municipal Corporation Act, 1955 Section 63(i)(19) - Commissioner is empowered to remove any wall, fence, rail, post, step, booth or other structure or fixture erected on any street contrary to Section 312; this power is conferred on the highest officer who acts with high degree of responsibility and duty to implement the Act. (Paras not mentioned)
Issue of Consideration
Whether the respondents were liable to ejectment from encroachments of pavements and whether the principle of natural justice, viz., audi alteram partem required to be followed and its scope; whether the appellant was under an obligation to provide permanent residence to hutment dwellers and the parameters in that behalf
Final Decision
The Court held that the respondents were liable to ejectment from pavement encroachments; the appellant Corporation's action was not violative of natural justice; for long-standing encroachments, a modicum of notice of two weeks or ten days with personal or substituted service was necessary; right to shelter under Article 21 recognized and scheme for alternative accommodation directed; final operative order beyond these points is not mentioned in the provided text.
Law Points
- No person has a right to encroach on public streets
- pavements or footpaths
- public property cannot be used for private purpose without authorization
- natural justice in removal of encroachments requires only a modicum of notice for long-standing encroachments
- right to shelter is a fundamental right under Article 21
- alternative accommodation scheme must be considered by the State
