SMT. SOWMITHRI VISHNU …PETITIONER
Vs.
UNION OF INDIA & ANR. …RESPONDENT

DATE OF JUDGMENT: 27/05/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION: 1985 AIR 1618 1985 SCR Supl. (1) 741

1985 SCC Supl. 137 1985 SCALE (1)960

CITATOR INFO : R 1988 SC 835 (4)

ACT:

Indian Penal Code, s. 497-Constitutional validity of.

HEADNOTE:

During the pendency of a divorce petition against the petitioner/wife on the grounds of desertion and adultery, the husband also filed a complaint against one Dharma Ebenezer u/s. 497 of the Penal Code charging him with having committed adultery with the petitioner. Thereafter the petitioner filed this writ petition for quashing the complaint on the grounds (1) that s. 497 of the Penal Code is violative of Art. 14 of the Constitution because, by making an irrational classification between men and women, it unjustifiably denies to women the right which is given to men This argument rests on the following three grounds- (i) Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; (ii) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and, (iii) Section 497 does not take in cases where the husband has sexual relations with an unmarried women, with the result that husbands have, as it were, a free licence under the law to have extramarital relationship with unmarried women; and (2) That the right to life includes the right to reputation and therefore if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought to be entitled appear and to be heard in that trial and since s. 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is bad as violating Art. 21 of the Constitution.

Dismissing the writ petition,

^
HELD: 1 (i) The law, as it is, does not offend Art. 14 or 15 of the Constitution. The offence of adultery by its very definition, can be committed by a man and not by a woman: The argument of the petitioner really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Where such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. Such arguments go to the policy of the law, not to its constitutionality, unless while implementing the policy, any provision of the Constitution is infringed. Therefore, it cannot be accepted that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. However, it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ’transformation’ which the society has undergone. [745 E-F; G-H; 746A]

1(ii) Section 497 does not envisage the prosecution of the wife by the husband for ’adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in s. 497 is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. [746 D-G]

1 (iii) Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried women. It only makes a specific kind of extramarital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another. [746H; 747A]

(2) It is correct to say that s.497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. There is no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected directly and immediately, by the decision of the court. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in s.497 cannot render that section unconstitutional as violating Art. 21. [748 A-D;]

Francies Coralie v. Union Territory AIR 1981 SC 736 & Board of Trustees, Fort of Bombay v. Nadkarni, AIR 1983 SC 109 referred to.

Yusuf Abdul Aziz v. The State of Bombay [1954] SCR 930 followed.

(3) In the instant case. there was general agreement that since the petitioner’s husband has already obtained divorce against her on the ground of desertion, no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer, against whom the husband has lodged a complaint u/s. 497 of the Penal Code-Accordingly, the Court quashed that complaint and directed that no further proceedings will be taken therein.

JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 845 of 1980.

(Under Article 32 of the Constitution of India)

Mrs. Nalini Chidambaram and Miss Seita Vaidyalingam for the Petitioner.

B. Datta and R.N. Poddar for the Respondent No. 1.

Miss Lily Thomas for the Respondent No. 2.

The Judgment of the Court was delivered by.

CHANDRACHUD, C.J. By this petition under Article 32 of the Constitution, the petitioner challenges the validity of section 497 of the Penal Code which defines the offence of ’adultery’ and prescribes punishment for it. A few facts, interesting but unfortunate, leading to this petition are these:

The petitioner filed a petition for divorce against her husband on the ground of desertion. The trial court dismissed that petition, holding that the petitioner herself had deserted the husband and not the other way about. Thereafter, the husband filed a petition for divorce against the petitioner on two grounds: firstly, that she had deserted him and secondly, that she was living in adultery with a person called Dharma Ebenezer. The petitioner conceded in that petition that in view of the finding recorded in the earlier proceeding that she had deserted her husband, a decree for divorce may be passed against her on the ground of desertion. So far so good. But, the petitioner contended further that the Court should not adjudicate upon the question of adultery since it was unnecessary to do so. That plea was opposed by the husband. He contended that he was entitled to obtain a decree of divorce against the petitioner not only on the ground of desertion but also on the ground of adultery and that, there was no reason why he should be denied an opportunity to show that the petitioner was living in adultery. The husband’s contention was accepted by the trial court but, in a revision application filed by the petitioner, the High Court accepted her plea and held that since, the finding recorded in the earlier petition was binding on the parties, a decree for divorce had to be passed in favour of the husband on the ground of desertion and that, it was unnecessary to inquire into the question of adultery. We are informed at the Bar that, pursuant to the High Court’s view, a decree for divorce has already been passed in favour of the husband on the ground that the petitioner had deserted him.

While his petition for divorce was pending against the petitioner, the husband filed a complaint against Dharma Ebenezer under section 497 of the Penal Code charging him with having committed adultery with the petitioner. This writ petition has been filed by the petitioner for quashing that complaint on the ground that the very provision which creates the offence of ’adultery’, namely, section 497 of the Penal Code, is unconstitutional.

Section 497 is one of the six sections is Chapter XX of the Penal Code, which is entitled ’Of Offences Relating to Marriage’. Section 497 reads thus:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

By reason of section 198(1) of the Code of Criminal Procedure, 1973, no Court can take cognizance of an offence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence. Subsection (2) of section 198 provides that, for the purposes of sub-section (1), “no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Penal Code”. Section 498 prescribes punishment for enticing or taking away or detaining a married woman with criminal intent.

Mrs. Nalini Chidambaram, who appears on behalf of the petitioner, contends that Section 497 of the Penal Code is violative of Article 14 of the Constitution because, by making an irrational classification between man and women, it unjustifiably denies to women the right which is given to men. This argument rests on the following three grounds: (1) Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; (2) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and, (3) Section 497 does not take in cases where the husband has sexual relations with an unmarried woman, with the result that husbands have, as it were, a free licence under the law to have extra-marital relationship with unmarried women. The learned counsel complains that Section 497 is flagrant instance of ’gender discrimination’, ’legislative despotism’ and ’male chauvinism’. It is urged that the section may, at first blush, appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ’Romantic Paternalism’, which stems from the assumption that women, like chattels, are the property of men.

These contentions have a strong emotive appeal but they have no valid legal basis to rest upon. Taking the first of these three grounds, the offence of adultery, by its very definition, can be committed by a man and not by a woman : “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man … … is guilty of the offence of adultery.”The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law my have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. For example, an argument could be advanced as to why the offence of robbery should be punishable with imprisonment for ten years under section 392 of the penal Code but the offence of adultery should be punishable with a sentence of five years only : ’Breaking a matrimonial home is not less serious a crime than breaking open a house’. Such arguments go to the policy of the law, not to its constitutionality, unless, while implementing the policy, any provision of the Constitution is infringed. We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman. This position my have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ’transformation’ which the society has undergone. The Law Commission of India in its 42nd Report, 1971, recommended the retention of Section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. The suggested modification was not accepted by the legislature. Mrs. Anna Chandi, who was in the minority, voted for the deletion of Section 497 on the ground that “it is the right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with our present day notions of woman’s status in marriage”. The repot of the Law Commission show that there can be two opinions on the desirability of retaining a provision like the one contained in Section 497 on the statute book. But, we cannot strike down that section on the ground that it is desirable to delete it.

In so far as the second of the three grounds is concerned, section 497 does not envisage the prosecution of the wife by the husband for ’adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.

The self-same answer holds good in the case of the third ground also. Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extra-marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most : A man seducing the wife of another. Mrs. Chidambaram says that women, both married and unmarried, have changed their life style over the years and there are cases where they have wrecked the peace and happiness of other matrimonial homes. We hope this is not too right but, an under-inclusive definition is not necessarily discriminatory. The alleged transformation in feminine attitudes, for good or bad may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of adultery to keep pace with the moving times. But, until then, the law must remain as it is. The law, it is, does not offend either Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried women should also be comprehended with in the definition of ’adultery’ is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery ? That is the grievance of the petitioner.

Mrs Chidambaram has challenged the validity of section 497 on yet another ground, namely, that it violates Article 21 of the Constitution. Relying upon the decisions of this Court in Francis Coralie v. Union Territory and Board of Trustees, Fort of Bombay v. Nadkarni, counsel argues that the right to life includes the right to reputation and, therefore, if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought to be entitled to appear and be heard in that trial. A law which does not confer upon such a person the right of being heard is violative of Article 21. This argument, for its better appreciation, may be put in a concrete shape by taking a hypothetical example : The husband ’A’ wants to get rid of his wife ’B’. He colludes with his friend ’C’ and prosecutes him for committing adultery with ’B’. C’s trial for adultery is mere pretence because, he and A are ad idem that he should be convicted for committing adultery with B. The argument of the counsel is that the real victim of such a prosecution is the wife B because, it is her reputation which is most importantly involved and assailed. Since section 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is said to be bad.

Counsel is right that section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife makes an application in the trial Court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the Court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the Court In fact, instances are not unknown in criminal law where, though the prosecution is in the charge of the Public Prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband, the accused had committed adultery with her. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in section 497 cannot render that section unconstitutional as violating Article 21.

Instead of embarking upon this discussion, we could have as well dismissed the writ petition by relying upon the decision of a Constitution Bench of this Court in Yusuf Abdul Aziz v. The State of Bombay, which held that section 497 of the Penal Code does not offend Articles 14 and 15 of the Constitution. However, the petitioner’s counsel had many more arguments to advance and since, more than 30 years have gone by since the decision in Yusuf Abdul Aziz was given, we thought that we might examine the position afresh, particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex.

Though it is true that the erring spouses have no remedy against each other within the confines of section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ’Adulter’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.

There was general agreement before us that since the petitioner’s husband has already obtained divorce against her on the ground of desertion, no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer, against whom the husband has lodged a complaint under section 497 of the Penal Code. Accordingly, we quash that complaint and direct that no further proceedings will be taken therein.

In the result, the writ petition is dismissed. There will be no order as to costs.

M.L.A. Petition dismissed.

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DATE OF JUDGMENT: 11/12/1985

BENCH: MUKHARJI, SABYASACHI (J) TULZAPURKAR, V.D. MISRA RANGNATH

CITATION:
1986 AIR 293 1985 SCR Supl. (3) 827
1986 SCC (1) 444 1985 SCALE (2)1267

ACT:
Income Tax Act 1922 : Section 28, Income Tax Act 1961: Sections 271 (1)(a), 297(1) and 297(2)(j). Delay in filing return for assessment year under 1922 Act – Penalty – Quantum of – Determination – 1961 Act coming into effect – Discretion to reduce penalty fixed under new Act – Provision of new Act – Availability of. Imposition of penalty – Assessment year or date of filing return – Not material – Satisfaction of assessing authority that default occurred – Importance of. Return – Non-filing of – Whether a continuing default.

HEADNOTE:

The appellant is the assessee. The year of assessment was 1961-62. The return was due by September 28, 1961 but the same was neither filed within that time, nor was any extension asked for. The assessee filed the return on May 3, 1962 beyond more than seven months of the due date. With effect from April 1, 1962 the Income Tax Act of 1961 had come into force. The Income Tax Officer finding that the assessee had not been prevented by any reasonable cause for not complying with the statutory obligation to make the return, took proceedings under section 271(1)(a) of the 1961 Act and imposed a penalty of Rs.4,060 for failure to furnish the return within time.

The assessee challenged the imposition of penalty by preferring an appeal to the Appellate Assistant Commissioner who refused to interfere and dismissed the appeal. On further appeal the Appellate Tribunal held that penalty was leviable under the 1961 Act, but the amount of penalty had to be quantified according to the provisions of section 28 of the Income Tax Act, 1922 and applying the provisions of the said Act reduced the penalty to Rs. 400. The question whether ‘the Tribunal was in law competent to reduce the penalty levied under section 271(1)(a) to a figure lower than the sum equal to 2% of the tax for every month during which the default continued’, was referred at the instance of the Revenue to the High Court which answered the reference in favour of the Revenue and against the assessee by relying upon section 297(2)(j) of the 1961 Act and holding that section 271(1) of the Act was applicable to the levy of penalty for defaults committed under the 1922 Act, and that the word ‘may’ used in section 297(1) of the 1961 Act vested in the Income Tax Officer discretion either to levy or not to levy a penalty but if he did decide to levy one, he had no option but to levy the penalty at the prescribed rate.

Dismissing the appeal of the assessee, this Court,

HELD: 1. The assessment was made on June 30, 1964 and proceedings for imposition of penalty were directed to be initiated that day. Provisions of section 271(1)(a) of the 1961 Act were fully applicable and the demand of penalty was thus justified being within the limits of law. [842 C]

2. Under the 1922 Income Tax Act liability to make a return was contingent upon service of notice under section 22, while under the 1961 Income Tax Act every person having a taxable income has under section 139 the liability to make a return within the time provided by the Act. [833 D] In the instant case, clause (f) of section 297(2) of the 1961 Act is not attracted because the return was filed on May 3, 1962 and assessment was made subsequent to April 1, 1962. [833 D]

3. For the imposition of penalty it was not the assessment year or the date of the filing of the return that was important but it was the satisfaction of the income tax authorities that a default had been committed by the assessee which attracted the provisions relating to penalty. Whatever be the stage at which the satisfaction was reached, the scheme of section 274(1) and 275 of the Act of 1961 was that the order imposing penalty must be made after the completion of the assessment. The crucial date, therefore, for the purpose of penalty is the date of such completion, and the satisfaction of the authority that proceedings for levy of penalty be initiated. [834 F-G]

In the instant case, though the default occurred in September 1961 the date relevant for the purpose of initiating proceedings for imposition of penalty is when, following theassessment made, the Income Tax Officer decided to initiate the penalty proceedings. The proper provision to apply for dealing with the situation relating to penalty is as provided in section 271(1)(a) of the 1961 Act. [837 A-B]

Jain Brothers & Ors. v. U.O.I. & Ors., 77 I.T.R. 107; Third Income Tax Officer, Mangalore v. M. Damodar Bhat, 71 I.T.R. 806 – [1969] 2 S.C.R. 29, referred to.

4. Under section 28 of the 1922 Act the upper limit of penalty only was provided and there was no prescription of any particular rate as found in section 271(1)(a) of 1961 Act. Penalty contemplated under the respective sections of the two Acts is quasi-criminal in character.[834 H – 835A]

5. Accrual of penalty depends upon the terms of the statute imposing it and in view of the language used in section 271(1)(a) of the 1961 Act, the position is beyond dispute that the Legislature intended to deem the non-filing of the return to be a continuing default the wrong for which penalty is to be visited, commences from the date of default and continues month after month until compliance is made and the default comes to an end. The rule of de die in diem is applicable not on daily but on monthly basis. [840 H] Corpus Juris Secundum, Vol 85, p. 1027, referred to.

6. The imposition of penalty not confined to the first default but with reference to the continued default is obviously on the footing that noncompliance with the obligation of making a return is an infraction as long as the default continued. Without sanction of law no penalty is impossible with reference to the defaulting conduct. The position that penalty is impossible not only for the first default but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law. [841 D-E]

Third Income Tax Officer, Mangalore v. M.Damodar Bhat, [1969] 2 S.C.R. 29, referred to and Commissioner of Wealth Tax, Amritsar v. Suresh Seth, [1981] 3 S.C.R. 419, explained and over-ruled.

7. If a duty continues from day to day, the non- performance of that duty from day to day is a continuing wrong. The legislative scheme under section 271(1)(a) of the 1961 Act in making provision for a penalty conterminous with the default to be raised provides for a situation of continuing wrong. [842 B]

Ajit Kumar Sarkar v. Assistant Registrar of Companies, West Bengal, [1979] Tax Law Reports 2001; United Savings and Finance Co. Pvt. Ltd. & Anr. v. The Deputy Chief Officer, Reserve Bank of India, [1980] Crl. L.J. 607; Oriental Bank of Commerce & Anr. v. Delhi Development Authority & Ors., [1982] Crl. L.J. 2230; G.D. Bhattar & Ors. v. The State, A.I.R. 1957 Cal. 483, referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1943 of 1974.

From the Judgment and Order dated 21.12.1972 of the Delhi High Court in Income Tax Reference No. 50 of 1968 S.K. Dholakia, R.C. Bhatia and P.C. Kapoor for the Appellant.

S.C. Manchanda, M.N. Tandon and Miss A. Subhashini for the Respondent.

The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The assessee is in appeal by special leave challenging the decision of the Delhi High Court reported in 92 I.T.R. 394.

The year of assessment is 1961-62. The return was due by September 28, 1961, but the same was neither filed within that time, nor was any extension asked for. The assessee filed the return on May 3, 1962 beyond more than seven months of the due date. With effect from April 1, 1962, the Income Tax Act of 1961 (‘1961 Act’ for short) had come into force. The Income Tax Officer took proceedings under section 271(1)(a) of the 1961 Act and imposed a penalty of Rs. 4,060 for failure to furnish the return within the time on a finding that the assessee had not been prevented by any reasonable cause for not complying with the statutory obligation to make the return. The assessee challenged the imposition of penalty by preferring an appeal to the Appellate Assistant Commissioner who refused to interfere and dismissed the appeal. On further appeal the Appellate Tribunal held that penalty was leviable under the 1961 Act but the amount of penalty had to be quantified according to the provisions of section 28 of the Income Tax Act, 1922 (‘1922 Act’ for short). Applying the provisions of the 1922 Act, the Tribunal reduced the penalty to Rs.400. At the instance of the Revenue the following question was referred to the High Court under section 256(1) of the 1961 Act:

“Whether, on the facts and in the circumstances of the case, the Tribunal was in law competent to reduce the penalty levied under section 271(1)(a) to a figure lower than the sum equal to 2% of the tax for every month during which the default continued but not exceeding the aggregate 50% of the tax?”
The High Court answered the reference in favour of the revenue and against the assessee.

Though the quantum of penalty is small, the question of law is of substantial importance, and covers on aspect which often arises for determination before the tax authorities and the High Courts.

Provisions of three sections, one of the 1922 Act and two of the 1961 Act, are relevant for the decision of the point at issue. Section 28 of the 1922 Act, as far as relevant, provided :

“Penalty for concealment of income or improper distribution of profits:-
(1) If the Income Tax Officer, or the Appellate Assistant Commissioner or the Appellate Tribunal, in the course of any proceedings under this Act, is satisfied that any person –
(a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish, by notice given under sub- section (1) or sub-section (2) of section 22 or section 34, or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or
(b) x x x x
(c) x x x x he or it may direct that such person shall pay by way of penalty in the case referred to in clause
(a) in addition to the amount of the income tax and super tax, if any, payable by him, a sum not exceeding one and a half times that amount….. ”
The two sections relevant to the point of the 1961 Act are sections 271 and 297. Section 271 is the corresponding provision of section 28. Sub-section (1)(a) thereof is the relevant provision. It provides :

“If the Income Tax Officer … is satisfied that any person :
(a) has without reasonable cause failed to furnish the return of total income which he was required to furnish under sub-section (1) of section 139 or by notice given under sub-section (2) of section 139 or section 148 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by sub-section (1) of section 139 or by such notice, as the case may be, or
(b) x x x x x
(c) x x x x x he may direct that such person shall pay by way of penalty :
(a) x x x x x
(b) in any other case, in addition to the amount of the tax, if any, payable by him, a sum equal to 2% of the assessed tax for every month during which the default continued.”
Section 297(1) repealed the 1922 Act. Sub-section (2), as far as relevant, provided :

“Notwithstanding the repeal of the Indian Income Tax Act, 1922 (hereinafter referred to as the repealed Act),-
(a) to (e) x x x
(f) any proceeding for the imposition of a penalty in respect of any assessment completed before the first day of April, 1962 may be initiated and any such penalty may be imposed as if this Act had not been passed ;
(g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on March 31, 1962, or any earlier year which is completed on or after first day of April, 1962 may be initiated and any such penalty may be imposed under this Act …”
It is sufficient to take note of the position that under the 1922 Act liability to make a return was contingent upon service of notice under section 22 while under the 1961 Act every person having a taxable income has under section 139 the liability to make a return within the time provided by the Act. On the facts of the case before us, clause (f) of section 297(2) of the 1961 Act is not attracted because the return was filed on May 3, 1962, and assessment was made subsequent to April 1, 1962.

The Income Tax Officer found that there was default for a little more than seven months. He imposed penalty at the rate of 2% as provided in section 271(1)(a) of the 1961 Act and raised a demand of Rs. 4,060. That demand has been upheld in appeal. The Tribunal did not refer to the provisions of section 271 (1)(a) while reducing the penalty to Rs. 400 but the reduction was directed on the basis that the assessee was ill and had been absent from headquarters on that account. Before the High Court the Revenue had taken the stand that there was statutory prescription in the matter of imposition of penalty and the Act having provided that the penalty shall be a sum equal to 2% of the assessed tax for every month during which the default continued, a sum equal to the prescribed rate had to be imposed and could not be reduced. The High Court accepted the stand of the Revenue and found support for its conclusion by relying upon section 297(2)(j) of the 1961 Act and holding that section 271(1) of that Act was applicable to the levy of penalty for defaults committed under the 1922 Act. According to the High Court the words “such penalty” occurring in clause (g) of section 297(2) of the 1961 Act related to penalty which was referred to in the earlier part of that clause, namely, penalty impossible under section 271 of the 1961 Act and had no reference to penalty under section 28 of the 1922 Act. It was of the further view that the word ‘may’ under section 297(1) of the 1961 Act vested in the Income Tax Officer discretion either to levy or not to levy a penalty but if he did decide to levy one, he had no option but to levy penalty at the prescribed rate. In the instant case, the Income Tax Officer was, therefore, obliged to levy penalty at the rate of 2% per month subject to a maximum of 50% of the demanded tax. Exercising the same powers as the Income Tax Officer did, the Appellate Tribunal had no jurisdiction to reduce the penalty to a sum lesser than the prescribed rate. Support for the conclusion of the High Court was drawn from a Constitution Bench decision of this court in Jain Brother & Ors. v. Union of India & Ors., 77 I.T.R. 107.

In Jain Brothers’ Case this Court mainly examined and decided about the vires of section 297(1)(g) as also the justification of fixing the commencement of the Act of 1961 with effect from April 1, 1962. Challenge was on the basis of Article 14 of the Constitution. This Court took the view that it was for the Legislature to fix the date when a particular statute would come into force and with the repealing of the 1922 Act Parliament was fully competent and it was within its legislative jurisdiction to fix April 1, 1962, as the date of commencement of the 1961 Act. The validity of section 297 (2) and in particular clauses (f) and (g) thereof was upheld. The Court held that penalty proceedings were not necessarily a continuation of the assessment proceedings. It was well settled that in fiscal enactments the legislature has a larger discretion in the matter of classification so long as there was no departure from the rule that persons included in a class are not singled out for special treatment. It was not possible to say that while applying the penalty provisions contained in the Act of 1961 to cases of persons whose assessments were not completed after April 1, 1962, any class has been singled out for special treatment. It was obvious that for the imposition of penalty it was not the assessment year or the date of the filing of the return that was important but it was the satisfaction of the income tax authorities that a default had been committed by the assessee which attracted the provisions relating to penalty. Whatever the stage at which the satisfaction was reached the scheme of sections 274(1) and 275 of the Act of 1961 was that the order imposing penalty must be made after the completion of the assessment. The crucial date, therefore, for the purpose of penalty is the date of such completion, and the satisfaction of the authority that proceedings for levy of penalty be initiated.

Under section 28 of the 1922 Act the upper limit of penalty only was provided and there was no prescription of any particular rate as found in section 271(1)(a) of 1961 Act. That penalty contemplated under the respective sections of the two Acts is quasi-criminal in character is not disputed. Mr. Dholakia for the appellant canvassed before us that in Jain Brothers’ case the challenge raised by the assessee was not examined with reference to the provisions of Art. 20(1) of the Constitution. Under sub-art. (1) of Art. 20 no person is to be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. According to counsel, when there was default in furnishing the return within September 28, 1961, the breach had occurred and the assessee had exposed himself to be visited with penalty. That was a time when the Act of 1922 was in force. Therefore, for levying penalty on the assessee resort should have been made to the provisions of section 28 of the 1922 Act and not to section 271(1)(a) of the 1961 Act. If the 1922 Act applied, in the absence of a prescription of any particular rate or the minimum, it was open to the Tribunal to reduce the penalty in the manner it has done and no objection could be raised to the reduction of the quantum of penalty. In Jain Brothers’ case the conclusions of a three Judge Bench in Third Income Tax Officer, Mangalore v. M. Damodar Bhat, 71 I.T.R. 806 – [1969] 2 S.C.R. 29, were quoted with approval. In Damaodar Bhat’s case this Court had said :

“In other words, the procedure of the new Act will apply to the cases contemplated by section 297(2)(j) of the new Act mutatis mutandis.”
In Jain Brothers’ case the Court held that “similarly the provisions of section 271 of the Act of 1961 will apply mutatis mutandis to proceedings relating to penalty initiated in accordance with section 297(2)(g) of that Act.”

Learned counsel for the appellant has taken the stand that the observations in Damodar Bhat’s case which were approved by the five Judge Bench in Jain Brother’s case related only to the procedural part of it and this Court did not decide the question of quantum.

The contention of Mr. Dholakia that in providing a prescribed rate of penalty for imposition under section 271(1)(a) of the 1961 Act there has been breach of Article 20(1) of the Constitution cannot be accepted. A five Judge Bench of this Court in K. Satwant Singh v. The State of Punjab, [1960] 2 S.C.R. 89, examined a similar submission at great length keeping Article 20 of the Constitution in view. In the matter before the Constitution Bench this question arose for consideration in view of the fact that no minimum sentence of fine had been provided under section 420 of the Indian Penal Code which was the law in force at the time of the occurrence but the provisions of Ordinance No. 29 of 1943 made imposition of a minimum fine compulsory. Imam, J. who spoke for the Constitution Bench, at page 113 of the report stated :

“In the present case even if it be assumed that section 10 of the Ordinance was an ex post facto law in that in the matter of penalty a minimum sentence of fine was directed to be imposed by a court whereas at the time that the appellant committed the offence, section 420 contained no such provision, what is prohibited under Article 20 of the Constitution is the imposition of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The total sentence of fine – ‘ordinary’ and ‘compulsory’ – in the present case cannot be said to be greater than that which might have been imposed upon the appellant under the law in force at the time of the commission of the offence, because the fine which could have been imposed upon him under section 420 was unlimited. A law which provides for a minimum sentence of fine on conviction cannot be read as one which imposes a greater penalty than that which might have been inflicted under the law at the time of the commission of the offence where for such an offence there was no limit as to the extent of fine which might be imposed.

Mr. Dholakia candidly accepts that his submission is contrary to the ratio of the decision. It is conceded that under section 28 of the 1922 Act in the facts of the case a fine of more than Rs. 4,060 (being within the limit of 1/2 times of the tax amount) could have been levied. While conceding to that extent, Mr. Dholakia submits that the decision of the Constitution Bench of this Court in Satwant Singh’s case requires reconsideration as it has not taken into account the ratio of an important decision of the United States Supreme Court in the case of Elbert B. Lindsay v. State of Washington, (1937) 81 L. Ed. 1182. We are bound by the decision of the Constitution Bench. It has held the field for a quarter of a century without challenge and non- consideration of an American decision which apparently was not then cited before this Court does not at all justify the submission at the Bar for a reconsideration of the decision of this Court in Satwant Singh’s case. On the ratio of Jain Brothers’ case, the following conclusions are reached :

(a) Though the default occurred in September, 1961 the date relevant for the purpose of initiating proceedings for imposition of penalty is when, following the assessment made, the Income Tax Officer decided to initiate penalty proceedings;

(b) The proper provision to apply for dealing with the situation relating to penalty is as provided in section 271(1)(a) of the 1961 Act.

The question that remains for consideration now is as to whether the default of non-filing of the return within the time stipulated by law is not a continuing offence. This aspect is relevant in the matter of imposition of penalty and its quantification. In the decision of this Court in Commissioner of Wealth Tax, Amritsar v. Suresh Seth, 129 I.T.R. 328 = [1981] 3 S.C.R. 419, the default related to non-filing of the return under section 18(1)(a) of the Wealth Tax Act. The law relating to penalty under that Act was amended in 1964 and again in 1969. These amendments were not retrospective. With reference to the application of these amendments the question as to whether the default was a single one or a continuing one fell for consideration. The amended Wealth Tax provided for imposition of penalty with reference to every month during which the default continued. This Court took the view that such a provision indicated the legislative intention that a multiplier had to be adopted for determining the quantum of penalty and did not have the effect of making the default a continuing one. The default having already occurred prior to the enforcement of the amendments, the amending provisions had no application. Dealing with the point this Court observed :

“A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act which law prohibits him from doing it and attaches a penalty for doing it, he is stated to have committed an act of commission which amounts to a wrong in the eye of law. Similarly, when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, he is said to have committed an act of omission which is also a wrong in the eye of law.

Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Article 20(1) of the Constitution which declares that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
There can be no dispute to what has been stated above. In Suresh Seth’s case this Court proceeded to say :

“In other cases, however, even though the liability may be enhanced it can only be done by a subsequent law (of course subject to the Constitution) which either by express words or by necessary implication provides for such enhancement. In the instant case the contention is that the wrong or the default in question has been altered into a continuing wrong or default giving rise to a liability de die in diem, that is, from day to day. The distinctive nature of a continuing wrong is that the law that is violated makes the wrong doer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as required by law and if it is held that the he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of a delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day.
This conclusion has been seriously disputed by learned counsel for the Revenue and according to him the amended Wealth Tax Act and section 271(1)(a) of the 1961 Act provides for a continuing default. A Bench of this Court in State of Bihar v. Deokaran Nenshi, [1973] 1 S.C.R. 1004, while examining the provisions of section 66 of the Mines Act, very appropriately drew the distinction between continuing offence and offences which take place when an act or omission is committed once and for all. Shelat, J. speaking for the Court stated :

“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”
Under Regulation 3 read with section 66 of the Mines Act failure to file the annual return by the appropriate date becomes an offence. There was no scope for applying the rule or de die in diem.

VENKATARAMIAH, J. in Suresh Seth’s case quoted Lord Lindley in Hole v. Chard Union, [1894]1 Ch. D. 293, where the following observation had been made :

“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”
Some decisions of different High Courts were also quoted with approval by Venkataramiah, J. in support of the conclusion that the default had been committed on the last day allowed to file the return and there was no case of a continuing default. We are inclined to agree with counsel for the Revenue that the conclusion reached in Suresh Seth’s case is contrary to law. Jain Brother’s case was not referred to all in Suresh Seth’s case. On the facts found in Suresh Seth’s case where the returns for the assessment years 1964-65 and 1965-66 had been filed on March, 18, 1971, and for which assessment was made on March 22, 1971, the ratio of Jain Brothers’ case would have been fully applicable. Though Jain Brothers’ case was with reference to the Income Tax Act, 1961, the provisions of section 18(1)(a) of the Wealth Tax Act, as amended, brought in a similar provision and a sum equal to 2% of the tax for every month during which the default continued with an optimum of 50% of the tax due become payable. As rightly pointed out in Jain Brothers’ case, the question of imposition of penalty would arise only after assessment of tax is made and, therefore, in Suresh Seth’s case on the analogy of the ratio accepted by this Court in Jain Brothers’ case the amended provisions would become applicable.

In ‘Words & Phrases’, Permanent Edition, under the head ‘Continuing Offence’, instances have been given which indicate that as long as the default continues the offence is deemed to repeat and, therefore, it is taken as a continuing offence. As has been appropriately indicated in Corpus Juris Secundum, Vol. 85, p. 1027, accrual of penalty depends upon the terms of the statute imposing it and in view of the language used in section 271(1)(a) of the 1961 Act, the position is beyond dispute that the Legislature intended to deem the non-filing of the return to be a continuing default – the wrong for which penalty is to be visited, commences from the date of default and continues month after month until compliance is made and the default comes to an end. The rule of de die in diem is applicable not on daily but on monthly basis.

In State v. A.H. Bhiwandiwalla, A.I.R. 1955 Bombay 161, (a decision referred to in Suresh Seth’s case), Gajendragadkar, J. (as he then was), after quoting the observations of Beaumount, C.J. in an earlier Full Bench decision of that Court observed:

Even so, this expression has acquired a well- recognised meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But we may have offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences.”

The imposition of penalty not confined to the first default but with reference to the continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. Without sanction of law no penalty is imposable with reference to the defaulting conduct. The position that penalty is imposable not only for the first default but as long as the default continues and such penalty is to be calculated as a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law.

There are several statutory provisions where such default is stipulated to be visited with daily penalty. For instance, see Ajit Kumar Sarkar, v. Assistant Registrar of Companies, West Bengal 1979 Tax Law Reports 2001, where the Calcutta High Court dealing with the provisions of section 159 and 162 of the Companies Act of 1956, held the liability to be a continuous one; United Savings and Finance Co. Pvt. Ltd. & Anr. v. The Deputy Chief Officer, Reserve Bank of India, 1980 Crl.L.J. 607, where referring to section 58B(2) of the Reserve Bank of India Act it was held that refusal to comply with the terms of the said section created an offence and continued to be an offence so long as such failure or refusal persisted; Oriental Bank of Commerce Anr. v. Delhi Development Authority & Ors., 1982 Crl.L.J. 2230, where referring to the provisions of the Delhi Development Act of 1957, the Court held that the offence was a continuous one. In G.D. Bhattar & Ors. v. The State, A.I.R. 1957 Cal. 483, it was pointed out that a continuing offence or a continuing wrong is after all a continuing breach of the duty which itself is continuing. If a duty continues from day to day, the non- performance of that duty from day to day is a continuing wrong. We are of the view that the legislative scheme under section 271(1)(a) of the 1961 Act in making provision for a penalty conterminus with the default to be raised provides for situation of continuing wrong.

In the instant case assessment was made on June 30, 1964, and proceedings for imposition of penalty were directed to be initiated that day. Provisions of section 271(1)(a) of the 1961 Act were fully applicable and the demand of penalty was thus justified being within the limits of law. In our opinion the High Court had taken the right view and the appeal has, therefore, to be dismissed. In the facts of the case we direct parties to bear their own costs.

N.V.K. Appeal dismissed.

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IN THE SUPREME COURT OF INDIA
RURAL LITIGATION AND ENTITLEMENT KENDRA DEHRADUN & ORS. …PETITIONER
Vs.
STATE OF U.P. & ORS. …RESPONDENT
DATE OF JUDGMENT: 12/03/1985
BENCH: BHAGWATI, P.N. SEN, AMARENDRA NATH (J) MISRA RANGNATH
CITATION:
1985 AIR 652 1985 SCR (3) 169
1985 SCC (2) 431 1985 SCALE (1)408
CITATOR INFO :
RF 1987 SC2426 (1)
E 1988 SC2187 (36)

ACT:

Constitution of India, Arts.32 and 48A Environmental pollution – Lime. stone deposits-quarrying and excavation of-ascertainment of pollution-Courts, jurisdiction to appoint Committees-Suggestion of remedial measures by committees-Necssity of.

ORIGINAL JURISDICTION: Writ Petition Nos. 8209 & 8821 of 83.

Under Article 32 of the Constitution of India) M.K. Ramamurthi B. Dutta, Anil Divan, Dr. L.M. Singhvi, O.P Rana, S.N Kackar, M.C. Bhandare, Shanti Bhushan. Milan K. Banerji, Additional Solicitor General, M.A.

Krishnamoorthy, Rishi Kesh, K.N Bhat, M.G. Ramachandran, Miss A. Subhashini, K.K. Jain. A.D. Sangar, P. Dayal, C.V Subba Rao, Raju Ramachandran S.M. Suri R.N. Mehrotra, S.M.

Suri, C.M. Nayyar, Harjinder Singh, G.N. Rao, M.

Karanjawala, Shakeel Ahmed Syed, S.K. Jain, Mrs. Shobha Dikshit, P.P. Juneja, P.K Jain, J.B.D. & Co., Indra Makwana, A. SubbaRao, B.P. Singh, Parijat Sinha, C.P. Lal, Shri Narain, S.K. Gupta, K.R. Namiar, S.S. Jauhar, D. M.

Nargolkar, Mrs Rani Chhabra, Kapil Sibbal, B.P. Maheshwari, R.P. Singh, S.A. Syed for the appearing parties.

The Judgment of the Court was delivered BHAGWATI, J. This case has been argued at great length before us not only because a large number of lessees of lime stone quarries are involved and each of them has pains- takingly and exhaustively canvassed his factual as well as legal points of view but also because this is the first case of its kind in the country involving issues relating to environment and ecological balance and the questions arising for considerations are of grave moment and significance not only to the people residing in the Mussoorie 173 Hill range forming part of the Himalayas but also in their implications to the welfare of the generality of people living in the country. It brings into sharp focus the conflict between development and conservation and serves to emphasise the need for reconciling the two in the larger interest of the country. But since having regard to the voluminous material placed before us and the momentous issues raised for decision, it is not possible for us to prepare a full and detailed judgment immediately and at the same time, on account of interim order made by us, mining operations carried out through blasting have been stopped and the ends of justice require that the lessees of lime stone quarries should know, without any unnecessary delay, as to where they stand in regard to their lime stone quarries, we propose to pass our order on the writ petitions. The reasons for the order will be set out in the judgment to follow later.

We had by Order dated 11th August 1983 appointed a Committee consisting of Shri D.N. Bhargav, Controller General, Indian Bureau of Mines, Nagpur, Shri M.S. Kahlon, Director General of Mines Safety and Col. P. Mishra, Head of the Indian Photo Interpretation Institute (National Remote Sensing Agency) for the purpose of inspecting, the lime stone quarries mentioned in the writ petition as also in the list submitted by the Government of Uttar Pradesh. This Committee which we shall hereinafter for the sake of convenience refer to as the Bhargav Committee, submitted three reports after inspecting most of the lime stone quarries and t divided the lime stone quarries into three groups. The lime stone quarries comprised in category were those where in the opinion of the Bhargav Committee the adverse impact of the mining operations was relatively less pronounced; category comprised those lime stone duarries where in the opinion of the Bhargav Committee the adverse impact of mining operations was relatively more pronounced and category covered those lime stone quarries which had been directed to be closed down by the Bhargav Committee under the orders made by us on account of deficiencies regarding safety and hazards of more serious nature.

It seems that the Government of India also appointed a working Group on Mining of Lime Stone Quarries in Dehradun Mussoorie area, some time in 1983. The Working Group was also headed by the same Sh. D.N. Bhargav who was a member 174 of the Bhargav Committee appointed by us. There were five other members of the Working Group along with Shri D.N.

Bhargav and one of them was Dr. S.Mudgal who was at the relevant time Director in the Department of Environment, Government of India and who placed the report of the Working Group before the Court along with his affidavit. The Working Group in its report submitted in September 1983 made a review of lime stone quarry leases for continuance or discontinuance of mining operations and after a detailed consideration of various aspects recommended that the lime stone quarries should be divided into two categories, namely category 1 and category 2; category 1 comprising lime stone quarries considered suitable for continuance of mining operations and category 2 comprising lime stone quarries which were considered unsuitable for further mining.

It is interesting to note that the lime stone quarries comprised in category of the Bhargav Committee Report were the same lime stone quarries which were classified in category 1 by the Working Group and the lime stone quarries in categories and of the Bhargav Committee Report were classified in category 2 of the Report of the Working Group.

It will thus be seen that both the Bhargav Committee and the Working Group were unanimous in their view that the lime stone quarries classified in category by the Bhargav Committee Report and category 1 by the Working Group were suitable for continuance of mining operations. So far as the lime stone quarries in category of the Bhargav Committee Report are concerned, they were regarded by both the Bhargav Committee and the Working Group as unsuitable for continuance of mining operations and both were of the view that they should be closed down. The only difference between the Bhargav Committee and the Working Group was in regard to lime stone quarries classified in category B. The Bhargav Committee Report took the view that these lime stone quarries need not be closed down, but it did observe that the adverse impact of mining operations in these lime stone quarries was more pronounced, while the Working Group definitely took the view that these lime stone quarries were not suitable for further mining.

While making this Order we are not going into the various remifications of the arguments advanced before us but we may 175 observe straight away that we do not propose to rely on the Report of Prof. K S. Valdia, who was one of the members of the Expert Committee appointed by us by our Order dated 2nd September 1983, as modified by the Order dated 25th October 1983. This Committee consisted of Prof. K.S. Valdia, Shri Hukum Singh and Shri D.N. Kaul and it was appointed to enquire and investigate into the question of disturbance of ecology and pollution and affectation of air, water and environment by reason of quarrying operations or stone crushers or lime stone kilns. Shri D.N. Kaul and Shri Hukum Singh submitted a joint report in regard to the various aspects while Prof. K.S. Valdia submitted a separate report.

Prof. K.S. Valdia’s Report was confined largely to the geological aspect and in the report he placed considerable reliance on the Main Boundary Thrust (hereinafter shortly referred to as M.B.T.) and he took the view that the lime stone quarries which were dangerously close to the M.B.T.

should be closed down, because they were in this sensitive and vulnerable belt. We shall examine this Report in detail when we give our reason but we may straight away point out that we do not think it safe to direct continuance or discontinuance of mining operations in lime stone quarries on the basis of the M.B.T. We are therefore not basing our conclusions on the Report of Prof. K.S. Valdia but while doing so we may add that we do not for a moment wish to express any doubt on the correctness of his Report.

We shall also examine in detail the question as to whether lime stone deposits act as aquifers or not. But there can be no gain saying that lime stone quarrying and excavation of the lime stone deposits do seem to affect the perennial water springs. This environmental disturbance has however to be weighed in the balance against the need of lime stone quarrying for industrial purposes in the country and we have taken this aspect into account while making this order.

We are clearly of the view that so far as the lime stone quarries classified in category in the Bhargav Committee Report are concerned which have already been closed down under the directions of the Bhargav Committee, should not be allowed to be operated. If the leasees of these lime stone quarries have obtained any stay order from any court permitting them to continue the mining operations, such stay order will stand dissolved and if there 176 are any subsisting leasees in respect of any of these lime stone quarries they shall stand terminated without any liability against the State of Uttar Pradesh. If there are any suits or writ petitions for continuance of expired or unexpired leases in respect of any of these lime stone quarries pending, they will stand dismissed.

We would also give the same direction in regard to the lime stone quarries in the Shasradhara Block even though they are placed in category by the Bhargav Committee. So far as these lime stone quarries in Sahasradhara Block are concerned, we agree with the Report made by the Working Group and we direct that these lime stone quarries should not be allowed to be operated and should be closed down forthwith. We would also direct, agreeing with the Report made by the Working Group that the lime stone quarries placed in category 2 by the Working Group other than those which are placed in categories and by the Bhargav Committee should also not be allowed to be operated and should be closed down save and except for the lime stone quarries covered by mining leases Nos. 31, 36 and 37 for which we would give the same direction as we are giving in the succeeding paragraphs in regard to the lime stone quarries classified as category in the Bhargav Committee Report. If there are any subsisting leases in respect of any of these lime stone quarries they will forthwith come to an end and if any suits or writ petitions for continuance of expired or unexpired leases in respect of any of these lime stone quarries are pending, they too will stand dismissed.

So far as the lime stone quarries classified as category in the Bhargav Committee Report and/or category 1 in the Working Group Report arc concerned, we would divide them into two classes, one class consisting of those lime stone quarries which are within the city limits of Mussoorie and the other consisting of those which are outside the city limits. We take the view that the lime stone quarries falling within category of the Bhargav Committee Report and/or category 1 of the Working Group Report and falling outside the city limits of Mussoorie, should be allowed to be operated subject of course to the observance of the requirements of the Mines Act 1952, the Metallferous Mines Regulations, 1961 and other relevant statutes, rules and regulations. Of course when we say this we must make it clear 177 that we are not holding that if the leases in respect of these lime stone quarries have expired and suits or writ petitions for renewal of the leases are pending in the courts, such leases should be automatically renewed. It will be for the appropriate courts to decide whether such leases should be renewed or not having regard to the law and facts of each case. So far as the lime stone quarries classified in category in the Bhargav Committee Report and or category 1 in the Working Group Report and falling within the city limits of Mussoorie are concerned, we would give the same direction which we are giving in the next succeeding paragraph in regard to the lime stone quarries classified as category in the Bhargav Committee Report.

That takes us to the lime stone quarries classified as category in the Bhargav Committee Report and category 2 in the Working Group Report. We do not propose to clear these lime stone quarries for continuance of mining operations nor to close them down permanently without further inquiry. We accordingly appoint a high powered Committee consisting of Mr. D. Bandyopadhyay, Secretary, Ministry for Rural Development as Chairman and Shri H.S. Ahuja. Director General, Mines Safety, Dhanbad, Bihar, Shri D.N. Bhargav, Controller General, Indian Bureau of Mines, New Secretariat Building, Nagpur and two experts to be nominated by the Department of environment, Government of India within four weeks from the date of this Order. The lessees of the lime stone quarries classified as category in Bhargav Committee Report and for Category 1 in the working Group Report and falling within the city limits of Mussoorie as also the lessees of the lime stone quarries classified as category in the Bhargav Committee Report will be at liberty to submit a full and detailed scheme for mining their lime stone quarries to this Committee (hereinafter called the Bandyopadhyay Committee) and if any such scheme or schemes are submitted the Bandyopadhyay Committee will proceed to examine the same without any unnecessary delay and submit a report to this Court whether in its opinion the particular lime stone quarry can be allowed to be operated in accordance with the scheme and if so, subject to what conditions and if it cannot be allowed to be operated, the reasons for taking that view. The Bandyopadhyay Committee in making its report will take into account the various aspects which we had directed the Bhargav Committee and the Kaul Committee to consider while making their respective reports including 178 the circumstance that the particular lime stone quarry may or may not be within the city limits of Mussoorie and also give an opportunity to the concerned lessee to be heard, even though it be briefly. The Bandyopadhyay Committee will also consider while making its report whether any violations of the provisions of the Mines Act 1952, the Metalliferous Mines Regulations, 1961 and other relevant statutes, rules and regulations were committed by the lessee submitting the scheme or schemes and if so, what were the nature, extent and frequency of such violations and their possible hazards.

The Bandyopadhyay Committee will also insist on a broad plan of exploitation coupled with detailed mining management plans to be submitted along with the scheme or schemes and take care to ensure that the lime stone deposits are exploited in a scientific and systematic manner and if necessary, even by two or more lessees coming together and combining the areas of the lime stone quarries to be exploited by them. It should also be the concern of the Bandyopadhyay Committee while considering the scheme or schemes submitted to it and making its report, to ensure that the lime stone on exploitation is specifically utilised only in special industries having regard to its quality and is not wasted by being utilised in industries for which high grade lime stone is not required. The necessary funds for the purpose of meeting the expenses which may have to be incurred by the members of the Bandyopadhyay Committee will be provided by the State of Uttar Pradesh including their travelling and other allowances appropriate to their office.

The State of Uttar Pradesh will also provide to the members of the Bandyopadhyay Committee necessary transport and other facilities for the purpose of enabling them to discharge their functions under this Order. If any notice, are to be served by the Bandyopadhyay Committee the District Administration of Dehradun will provide the necessary assistance for serving of such notices on the lessees or other interested parties. The Bandyopadhyay Committee will also be entitled before expressing its opinion on the scheme or schemes submitted to it, to hear the petitioner, the interventionists in this case and such other persons or organisations as may be interested in maintenance and preservation of healthy environment and ecological balance.

The Indian Bureau of Mines will provide secretarial facilities to the Bandyopadhyay Committee. The report submitted by the Bandyopadhyay Committee in each case will be considered by the Court and a decision will then be taken whether the limit stone quarry or quarries in respect of which the report has been 179 made should be allowed to be operated or not. But until then these lime stone quarries will not be allowed to be operated or worked and the District Authorities of Dehradun will take prompt and active steps for the purpose of ensuring that these lime stone quarries are not operated or worked and no mining activity is carsied on even clandestinely. This order made by us will supersode any stay or any other interim order obtained by the lessee of any of these lime stone quarries permitting him to carry on mining operations and notwithstanding such stay order or other interim order or subsisting lease, the lessees shall not be entitled to carry on any mining activity whatsoever in any of these lime stone quarries and shall desist from doing so. The lessees of these limestone quarries will also not in the meanwhile be permitted to rectify the defects pointed out in the orders issued by the District Mining authority but they may include the proposal for which rectification in the scheme or schemes which they may submit to the Bandyopadhyay Committee. We may however make it clear that non rectification of the defects pursuant to the notices issued by the District Mining authorities shall not be taken advantage of by the State of Uttar Pradesh as a ground for terminating the lease or leases.

We may point out that so far as the lime stone quarries at Sl. Nos. 1 7 to 20 in category in the Bhargav Committee Report are concerned we are informed that they have already been closed down and no further direction therefore is necessary to be given in regard to them save and except in regard to removal of the lime stone, dolomite and marble chips which may have already been mined and which may be lying at the site for which we are giving separate directions in one of the succeeding paragraphs in this order.

The consequence of this Order made by us would be that the lessees of lime stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, would be thrown out of business in which they have invested large sums of money and expanded considerable time and effort. This would undoubtedly cause hardship to the but It is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal H 180 disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment However, in order to mitigate their hardship, we would direct the Government of India and the State of Uttar Pradesh that whenever any other area in the State of Uttar Pradesh is thrown open for grant of lime stone or dolomite quarrying, the lessees who are displaced as a result of this order shall be afforded priority in grant of lease of such area and intimation that such area is available for grant of lease shall be given to the lessees who are displaced so that they can apply for grant of lease of such area and on the basis of such application, priority may be given to them subject, of course, to their otherwise being found fit and eligible. We have no doubt that while throwing open new areas for grant of lease for lime stone or dolomite quarrying, the Government of India and the State of Uttar Pradesh will take into account the considerations to which we have averted in this order.

We are conscious that as a result of this Order made by us, the workmen employed in the lime stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, will be thrown out of employment and even those workmen who are employed in the lime stone quarries which have been directed to be closed down temporarily pending submission of scheme or schemes by the lessees and consideration of such scheme or schemes by the Bandyopadhyay Committee, will be without work for the time being. But the lime stone quarries which have been or which may be directed to be closed down permanently will have to be reclaimed and afforestation and soil conservation programme will have to be taken up in respect of such lime stone quarries and we would therefore direct that immediate steps shall be given for reclamation of the areas forming part of such limestone quarries with the help of the already available Eco-Task Force of the Department of Environment, Government of India and the workmen who are thrown out of employment in consequence of this Order shall, as far as practicable and in the shortest possible time, be provided employment in the afforestation and soil conservation programme to be taken up in this area.

There are several applications before us for removal of lime 181 stone, dolomite and marble chips mined from the quarries and lying at the site and these applications also are being disposed of by this Order. So far as lime stone quarries classified as category in the Bhargav Committee Report and for category 1 in the Working Group Report and falling outside the city limits of Mussorrie are concerned, we have permitted the lessees of these lime stone quarries to carry on mining operations and hence they must be allowed to remove whatever minerals are lying at the site of these lime stone quarries without any restriction whatsoever, save and except those prescribed by any statutes, rules or regulations and subject to payment of royalty. So far as the other lime stone quarries are concerned, whether comprised in category of Bhargav Committee Report or category 1 of the Working Group Report and falling within the city limits of Mussorrie or falling within category or category of the Bhargav Committee Report or category 2 of the Working Group Report, there is a serious dispute between the lessees of these lime stone quarries on the hand and the petitioners and the state of Utter Pradesh on the other as to what is the exact quantity of minerals mined by the lessees and lying at the site. We had made an order on 15th December 1983 requiring the District Magistrate Dehradun to depute some officer either of his Department or of the Mining Department to visit the site of these lime stone quarries for the purpose of assessing the exact quantity of lime stone lying there and to report in this connection. The District Magistrate, Dehradun deputed the Sub-Divisional Magistrates of Mussoorie and Tehsildar (Quarry) Dehradun to inspect the 20 stone quarries comprised in category of the Bhargav Committee Report which had been ordered to be closed down under the directions of the Bhargav Committee and an affidavit was filed on behalf of the District Magistrate Dehradun, by Kedar Singh Arya, Tehsildar (Quarry) Dehradun, annexing a chart showing the details of the minerals mined by the lessees of those lime stone quarries and lying at the site. Thereafter, when again the case came up for hearing before us an 5th January 1984, we, in order to allay any apprehensions on the part of the lessees that the District Authorities had not done their job correctly in assessing the quantity of minerals lying at the site, appointed a Committee of two officers, namely, Shri D. Bandophadyay and Director of Geology (Mines) Lucknow for the purpose of visiting the time stone quarries which had been directed to be closed down and to assess the quantity of minerals lying on the site of those limestone quarries 182 after giving notice to the concerned lessees as also to the District Magistrate Dehradun and the representatives of the petitioners. Pursuant to this order made by us, Shri D, Bandhopadhyay and the Director of Guology (Mines) Lucknow visited the lime stone quarries comprised in category of the Bhargav Committee Report and directed to be closed down and assessed the quantity of minerals lying at the site of each of these lime stone quarries. The quantity of minerals lying at the site, a cording to Shri D. Bandopadhyay and the Director of Geology (Mines), was very much less than what was claimed by the lessees and it does appear that though these lime stone quarries were directed to be closed down, illegal mining was being carried on clandestinely, because otherwise it is difficult to understand how the figures of the quantity of the minerals lying at the site as assessed in December. 1983 by the District Authorities became inflated when Shri D. Bandophadyay and Director of Geology (Mines) made their assessment in January 1984 and thereafter the figures again got inflated if the quantity now claimed by the lessees as lying on the site is correct. We do not, however, propose to go into the question as to what was the precise quantity of minerals mined by the lessees of these limestone quarries and lying at the site at the time when these lime stone quarries were closed down under the directions of the Bhargav Committee. We would permit the lessees of these lime stone quarries to remove whatever minerals are found lying at the site or its vicinity provided and of course such minerals are covered by their respective leases or quarry permits. Such removal will be carried out and completed by the lessees within four weeks from the date of this Order and it shall be done ill the presence of an officer not below the rank of Deputy Collector to be nominated by the District Magistrate, Dehradun, a gazetted officer from the Mines Department nominated by the Director of Mines and a public spirit individual in Dehradun, other than Mr. Avdesh Koushal, to be nominated by Shri D. Bandopadhyay. These nomination shall be made within one week from today and they may be changed from time to time depending on the exigencies of the situation. Notice of intended removal of minerals lying at the site shall be given by the lessees to the District Magistrate Dehradun, Director of Mines Dehradun and the person nominated by Shri D. Bandophadyay. No part of the minerals lying at the site shall be removed by the lessees except in the presence of the above mentioned three persons.

The lessees will on the expiry of the period of four weeks 183 submit a report to this Court setting out the precise quantities of minerals removed by them from the site pursuant to this Order made by us. The lessees shall not be entitled to remove any minerals after the expiration of the period of four weeks.

Before we close we wish to express our sense of appreciation for the very commendable assistance rendered to us by Shri Pramod Dayal, learned advocate appearing on behalf of some of the lessees. He undertook the responsibility of arranging the various affidavits and written submissions in a proper and systematic manner and we must confess that but for the extremely able assistance rendered by him, it would not have been possible for us to complete the hearing of this case satisfactorily and to pass this order within such a short time. We would direct that the Government of India and the State of Uttar Pradesh should each pay a sum of Rs. 5,000 to Shri Pramod Dayal for the work done by him. We may point out that this payment to Shri Pramod Dayal is not in lieu of costs but is an additional remuneration which we are directing to be paid in recognition of the very valuable assistance rendered by him to the Court.

M.L.A.

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IN THE SUPREME COURT OF INDIA
MOHD. AHMED KHAN …PETITIONER
Vs.
SHAH BANO BEGUM AND ORS. …RESPONDENT
DATE OF JUDGMENT: 23/04/1985
BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:
1985 AIR 945 1985 SCR (3) 844
1985 SCC (2) 556 1985 SCALE (1)767

CITATOR INFO :
F 1986 SC 587 (4)
RF 1987 SC1103 (10)
D 1988 SC 644 (5,6)

ACT:

Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of “talaq” and on the expiry of the period of iddat a divorced wife ceases to be a wife.

Code of Criminal Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the proviso thereto and section 127 (3) (b), scope and interpretation of-Correctness of three Judges.’ Bench decision reported in [1978] INSC 199; (1979) 2 SCR 75 and [1980] INSC 111; (1980) 3 SCR 1127 to the effect that section 125 of the code applies to Muslims and divorced Muslim wife is entitled to maintenance-Whether there is any conflict between the provisions of section 125 and that of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife.

Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the Shariat Act XXVI of 1937-Whether section 127 (3) (b) debars payment of maintenance to a divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to maintain a divorced wife is limited to the period of “iddat” Nature of Mahr or dower-Whether Mehr is maintenance.

Held: (Per Chandrachud, C. J.)

1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, “payment of Mahr money, as a customary discharge is within the cognizance of that provision”. Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code. [865H, 866A-C]

2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125.

[855A-B: 854B]

2.2 Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not re married after the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section 125 of the Code is truly secular in character. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves.

Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what ii the religion professed by the neglected wife, child or parent. [834D-E:

855E-G]

2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the indi- 847 viduals’ obligation to the society t a prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed With relation.

[834G-Hl That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law. Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1963] INSC 34; [1964] 2 SCR 73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied.

3.1 The contention that, according to Muslim Personal Law the husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat.

despite the fact that she is unable to maintain herself cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code. Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself. [838H, 851A-B]

3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. The application of those statements of law to the contrary in text-books on Muslim Law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. [858D-G]

3.3 The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. Thus there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife 848 who is unable to maintain herself. Aiyat No. 241 and 242 of ‘the Holy Koran’ fortify that the Holy Koran imposed an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of Koran.

[859C-D; 862C-D]

3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F]

3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called ‘prompt” which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify that it is payable ‘on divorce’.

even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce.

[863B-D]

3.6 Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore. no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce’.

Thus, the payment of Mahr may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. [863D-G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable ‘on divorce.’ But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to.

849 OBSERVATION (Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.)

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

103 of 1981.

From the Judgment and Order dated 1. 7. 1980 of the Madhya Pradesh High Court in Crl. Revision No. 320 of 1979.

P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms.

Sangeeta and S.K Gambhir for the Appellant.

Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N.Singh for the Respondents.

Mohd. Yunus Salim and Shakeel Ahmed for Muslim Personal Law Board.

S.T. Desai and S.A. Syed for the Intervener Jamat- UlemaHind.

The Judgment of the Court was delivered by CHANDRACHUD,C.J. This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance.

Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. ‘ Nastree swatantramarhati” said Manu, the Law giver: The woman does not deserve independence. And, it is alleged that the ‘fatal 850 point in Islam is the ‘degradation of woman'(l). To the Prophet is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly.

This appeal, arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs 500 per month. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq.

His defence to the respondent’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat.

In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband is before us by special leave.

Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife ? Undoubtedly, the Muslim husband enjoys the privilege of being (1) ‘Selections from Kuran’-Edward William Lane 1843, Reprint 1982, page xc (Introduction) 851 able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of a pittance during the period of iddat ? And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him for ever from the duty of paying adequately so as to enable her to keep her body and soul together ? Then again, is there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’ ? These are some of the important, though agonising, questions which arise for our decision.

The question as to whether section 125 of the Code applies to Muslims also is concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia(1) and Fazlunbi v. K. Khader Vali.(2) These decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under section 125. But, a Bench consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined to the view that those cases are not correctly decided. Therefore, they referred this appeal to a larger Bench by an order dated February 3, 1981, which reads thus:

“As this case involves substantial questions of law of far-reaching consequences, we feel that the decisions of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia & Anr and Fuzlunbi v. K. Khader Vnli & Anr. require reconsideration because, in our opinion, they are not only in direct contravention of the plain and an unambiguous language of s. 127(3)(b) of the Code of Criminal Procedure, 1973 which far from overriding the Muslim Law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed. The decision also appear to us to be against the fundamental concept of divorce by the husband and its consequences (1) [1978] INSC 199; 1979 (2) SCR 75 (2) 1980 (3)SCR 1127 852 under the Muslim law which has been expressly protected by s. 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed by the aforesaid decisions. We, therefore, direct that the matter may be placed before the Honorable Chief Justice for being heard by a larger Bench consisting of more than three Judges. ” Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus: “Order for maintenance of wives, children and parents 125. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, (b)…

(c)…

(d)…

a Magistrate of the first class may, upon proof of such neglecter refusal, order such person to make a monthly allowance for the maintenance of his wife .. at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit Explanation-For the purposes of this Chapter,- (a)……

(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband has not remarried.

(2)….. .

853 (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided……

Provided further that if such person offers to maintain his wife on condition of her living with him.

and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.” Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus:

“Alteration in allowance 127. (1)…..

(2)……

(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that- (a)…..

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the Sum which, 854 under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i) in the case where such sum was paid before such order, from the date on which such order was made.

(ii) in any other case, from the date of expiry of the period, if any, for Which maintenance has been actually paid by the husband to the woman.” Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), ‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and obligations of the parties belonging to particular, religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent ? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.

True, that they do not supplant the personal law of the parties but, equally the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and 855 destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope.

Section 125 is truly secular in character.

Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences. In Jagir kaur v. Jaswont Singh,(1) Subba Rao, J. speaking for the Court said that Chapter XXXVI of the Code of 1898 which contained section 488, corresponding to section 125, “intends to serve a social purpose”. In Nanak Chand v. Shri Chandra Kishore Agarwala.(2) Sikri, J., while pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and that of section 488 was different, said that section 488 was “applicable to all persons belonging to all religions and has no relationship with the personal law of the parties”.

Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that. right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be, extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to section 125(1), which provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1&98 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of ‘wife, so as to include a divorced woman lends even greater weight to that (1) [1963] INSC 34; 1964 (2) SCR 73, 84.

(2) 1970 (l) S CR 565.

856 conclusion. ‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefor, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.

The conclusion that the right conferred by section 125 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance not with standing the offer of the husband, if he is satisfied that there is a just ground for passing such an order. According to the Explanation to the proviso:

“If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.” It is too well-known that “A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular”. (See Mulla’s Mahomedan Law,18th Edition, paragraph 25S, page 285, quoting Baillie’s Digest of Moohummudan Law; and Ameer Ali’s Mahomedan Law, 5th Edition, Vol. II, page 280). The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125 overrides the personal law, if is any there conflict between the two.

The whole of this discussion as to whether the right conferred by section 125 prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the Muslim Personal Law. The argument that by reason of section 2 of the Shariat Act, 857 XXVI of 1937, the rule of decision in matters relating, inter alia, to maintenance “shall be the Muslim Personal Law” also proceeds upon a similar assumption. We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because, in so far as it lies in our power, we wanted to set at rest, once for all, the question whether section 125 would prevail over the personal law of the parties, in cases where they are in conflict.

The next logical step to take is to examine the question, on which considerable argument has been advanced before us, whether there is any conflict between the provisions of section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife.

The contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat. In support of this proposition, they rely upon the statement of law on the point contained in certain text books. In Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, “After divorce, the wife is entitled to maintenance during the period of iddat”. At page 302, the learned author says: – ‘Where an order is made for the maintenance of a wife under section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat.

The result is that a Mahomedan may defeat an order made against him under section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her iddat,” Tyabji’s Muslim law (4th Edition, para 304, pages 268- 269). contains the statement that:

“On the expiration of the iddat after talaq, the wife’s right to maintenance ceases, whether based on the Muslim 858 Law, or on an order under the Criminal Procedure Code-” According to Dr Paras Diwan:

“When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat…. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced.” (Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text book are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and induration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four rupees (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinton that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain 859 herself. Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected.

The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.

There can be no greater authority on this question than the Holy Quran, “The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God’s will”. (The Quran- Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 . of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduced below:

Arabic version English version Ayat No. 241 For divorced women WA LIL MOTALLAQATAY Maintenance (should be MATA UN Provided) BIL MAAROOFAY On a reasonable (Scale) HAQQAN This is a duty ALAL MUTTAQEENA On the righteous.

Ayat No. 242 KAZALEKA YUBAIYYANULLAHO Thus doth God 860 LAKUM AYATEHEE LA ALLAKUM Make clear His Signs TAQELOON To you: in order that ye may understand.

(See ‘The Holy Quran’ by Yusuf Ali, Page 96).

The correctness of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word ‘Mata’ in Aiyat No. 241 means ‘provision’ and not ‘maintenance’. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the’ Mutta Queena’, that is, to the more pious and the more God-fearing, not to the general run of the Muslims, the ‘Muslminin’. In Aiyat 242, the Quran says: “It is expected that you will use your commonsense”.

The English version of the two Aiyats in Muhammad Zafrullah Khan’s ‘The Quran’ (page 38) reads thus:

“For divorced women also there shall be provision according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand.” The translation of Aiyats 240 to 242 in ‘The Meaning of the Quran’ (Vol. I, published by the Board of Islamic Publications, Delhi) reads thus .

“240-241.

Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year’s maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way;

Allah is All Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people.

861 242. A Thus Allah makes clear His commandments for you:

It is expected that you will use your commonsense.” In “The Running Commentary of The Holy Quran” (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus:

“241 And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent.” In “The Meaning of the Glorious Quran, Text and Explanatory Translation”, by Marmaduke Pickthall, (Taj Company Ltd.,karachi), Aiyat 241 is translated thus:

‘-241.

For divorced women a provision in kindness: A duty for those who ward off (evil).” Finally, in “The Quran Interpreted” by Arthur J.

Arberry. Aiyat 241 is translated thus:

“241.

There shall be for divorced women provision honourable-an obligation on the god fearing.” So God makes clear His signs for you: Happily you will understand.” Dr. K.R. Nuri in his book quoted above: ‘The Running Commentary of the Holy Quran”, says in the preface:

“Belief in Islam does not mean mere confession of the existence of something. It really means the translation of 862 the faith into action. Words without deeds carry no meaning in Islam. Therefore the term “believe and do good” has been used like a phrase all over the Quran.

Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments…” These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the Quran. As observed by Mr. M. Hidayatullah in his introduction to Mulla’s Mahomedan Law, the Quran is Al- furqan’ that is one showing truth from falsehood and right from wrong.

The second plank of the appellant’s argument is that the respondent’s application under section 125 is liable to be dismissed be cause of the provision contained in section 127 (3) (b). That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received “the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce”.

That raises the question as to whether, under the Muslim Personal law, any sum is payable to the wife ‘on divorce’.

We do not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce. We find it impossible to accept this argument.

In Mulla’s principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in paragraph 285 as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.” Dr. Paras Diwan in his book, “Muslim Law in Modern India” (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable “in consideration of marriage” but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the 863 fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage. We need not enter into this controversy and indeed, Mulla`s book itself contains the further statement at page 308 that the word ‘consideration’ is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of respect for the wife. We are concerned to find is whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called “prompt”, which is payable on demand, and the other is called “deferred “, which is payable on the dissolution of the marriage by death or by divorce. But, the tact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband hl consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce.

Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce.

The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And. he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.

In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v.

Zubaide Bibi(1) sum- (1) 43 1. A. 294.

864 med up the nature and character of Mahr in these words:

“Dower is an essential incident under the Muslim Law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called “prompt” payable before the wife can be called upon to enter the conjugal domicil; the other ” deferred”, payable on the dissolution of the contract by the death of either of the parties or by divorce.” (p. 300-301) This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain v. Farzand Hasan.(1) It is not quite appropriate and seems invidious to describe any particular Bench of a court as “strong” but, we cannot resist the temptation of mentioning that Mr. Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain. These decisions show that the payment of dower may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events.

It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was on the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs:

“Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is (1) 65 I.A. 119, 127 865 a demand for change in the Muslim Personal Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystalise before we try to change this customary right or make changes in their personal law. Above all, this is hardly, the place where we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous situation.

Divorced women have been included and brought within the admit of clause 125, but a limitation is being imposed by this amendment to clause 127, namely, that the maintenance orders would ceases to operate after the amounts due to her under the personal law are paid to her. This is a healthy compromise between wh lt has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem. We have made an advance and not tried to transgress what are the personal rights of Muslim women. So this, I think, should satisfy Hon.

Members that whatever advance we have made is in the right direction and it should be welcomed.” lt does appear from this speech that the Government did not desire to interfere with the personal law of the Muslim through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystalise on the reforms in their personal law. However, we do not concerned with the question whether the Government did not desire to bring about changes in the Muslim Personal Law by enacting sections 125 and 127 of the Code.

As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression ‘wife’ to include a divorced wife. It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife’s refusal to live with him. The provision contained in section 127 (3) (b) may have been introduces because of the misconception that dower is an amount payable “on divorce”. But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.

It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (Krishna 866 Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society. We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.

Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgement There is a statement at page 80 of the report, in the context of section 127 (3) (b), that “payment of Mahr money, as a customary discharge, is within the cognizance of that provision”. We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision.

It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves. The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself. The facile answer of the Board is (that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her. This is a most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women’s Association for the uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the wife It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for 867 framing a common civil code for the country.A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning.

Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

Dr. Tahir Mahmood in his book ‘Muslim Personal Law’ (1977 Edition, pages 200-202), has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: “In pursuance of the goal of secularism, the State must stop administering religion based personal laws”. He wants the lead to come from the majority community but, we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community:

“Instead of wasting their energies in exerting theological and political pressure in order to secure an “immunity” for their traditional personal law from the state` legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.” At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi? he also made an appeal to the 868 Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146).

Before we conclude, we would like to draw attention to the Report of the Commission on marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955. The answer of the Commission to Question No.5 (page 1215 of the Report) is that “a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children.” The Report concludes thus:

“In the words of Allama Iqbal, “the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution-a question which will require great intellectual effort, and is sure to he answered in the affirmative ” For these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.

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IN THE SUPREME COURT OF INDIA
OLGA TELLIS & ORS. …PETITIONER
Vs.
BOMBAY MUNICIPAL CORPORATION & ORS. ETC. …RESPONDENT
DATE OF JUDGMENT: 10/07/1985
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.

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 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 [1876] USSC 149; [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] INSC 68; (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 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 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 [1978] INSC 138; [1979] 1 S.C.R. 192, Sunil Batra, I v. Delhi Administration [1978] INSC 148; [1979] 1 S.C.R. 392, Sita Ram. State of U.P. [1979] INSC 17; [1979] 2 S.C.R. 1085, Hussainra Khatoon, I v. Home Secret any State of Bihar, Patna [1979] INSC 67; [1979] 3 S.C.R. 532,537. Husinara Khatoon,II v. Home Secretary State of Bihar, Patna [1979] INSC 35; [1980] 1 S.C.C. 81 Sunil Batra, II. v. Delhi Administration [1979] INSC 269; [1980] 2 S.C.R. 557, Jolly George Verghese v.

The Bank of Cochin [1980] INSC 19; [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] INSC 12; [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 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] INSC 12; [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 [1980] INSC 183; [1981] 1 S.C.R. 746, 766, Ridge v. Baldwin [1963] UKHL 2; [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 [1972] USSC 128; 32, L. Ed. 2nd 556 at 574, Chintepalli Agency Taluk Arrack Sales Cooperative Society Ltd. v. Secretary (Food and Agriculture) [1977] INSC 182; [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 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]

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

(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 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 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 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 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 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 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 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), 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 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 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 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 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 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.

Illinois[1876] USSC 149; , (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] INSC 68; , [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 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 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 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, [1973] INSC 214; [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, [1978] INSC 138; [1979] 1 S.C.R. 192; Sunil Batra, I v. Delhi Administration, [1978] INSC 148; [1979] 1 S.C.R. 392; Sita Ram v. State of U.P., [1979] INSC 17; [1979] 2 S.C.R. 1085;

Hussainara Khatoon, I v. Home Secretary, State of Bihar, Patna, [1979] INSC 67; [1979] 3 S.C.R. 532,537; Hussainara Khatoon, II v.

Home Secretary, State of Bihar, Patna[1979] INSC 35; , [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] INSC 19; [1980] 2 S.C.R. 913,921-922; Kasturi Lal Lakshmi Keddy v. State of Jammu & Kashmir, [1980] INSC 118; [1980] 3 S.C.R. 1338,1356; and Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [1981] INSC 12; [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 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] INSC 111; [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] INSC 12; , [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 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 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 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, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons. (Golberg v. Kelly[1970] USSC 68; , 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, [1951] USSC 49; 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, [1980] INSC 183; [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[1972] USSC 190; , 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 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 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 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 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 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.

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DATE : 16 August 1985

BENCH : VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION: 1987 AIR 478 1985 SCR Supl. (2) 569 1985 SCC (4) 43 1985 SCALE (2)354

CITATOR INFO :

RF 1991 SC1286 (5)

ACT:

Constitution of India 1950, Articles 14 and 16 – State Government – Appointment of ‘ad hoc’ teachers in regular vacancies – Validity and legality of.

HELD: 1. The policy of “ad-hocism” followed by the State Government in the appointment of teachers for quite a long period has led to the breach of Articles 14 ant 16 of the Constitution. Such a situation cannot be permitted to last any longer. The State Government is expected to function as a motel employer. [571 E] In the instant case the State Government is directed to take immediate steps to fill up in accordance with the relevant rules the vacancies in which those who are appointed on an at-hoc basis are now working ant to allow all those who are now holding these posts on an at-hoc basis to remain in those posts till the vacancies are duly fillet up. These at-hoc teachers shall be paid salary ant allowances for the period of summer vacation as long as they held office. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules.[571 F, 572 A-B]

2. The State Government has a duty to appoint teachers in existing vacancies in accordance with the rules. The State Government has failed to discharge that duty. A substantial number of ad-hoc appointments are mate in the existing vacancies which have remained unfilled for three to four years. In some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. [571 A-Bl 570 The number of teachers in the State who are appointed on such ad-hoc basis is very large indeed. If the teachers had been appointed regularly, they would have been entitled to the benefits of summer vacation along with the salary and allowances payable in respect of that period and to all other privileges such as casual leave medical leave, maternity leave etc. available to all the Government servants. These benefits are denied to these ad-hoc teachers unreasonably on account of this pernicious system of appointment adopted by the State Government. [571 B-C]

3. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad-hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational Institutions and the children studying there. [571 D]

ORIGINAL JURISDICTION : Writ Petitions Nos. 4600,4600A of 1985 etc.

(Under Article 32 of the Constitution of India.) Rishi Kumar, S.M. Ashri, Naunit Lal, Kailash Vasdev, Mrs. Vinod Arya, R.C. Pathak, Vishnu Mathur, Mahabir Singh, Pankaj Kalra, Serva Mitter, R.P. Singh, K.C. Dua, N.D. Garg, S. Srinivasan, Rathin Dass, K.K. Gupta, S.K. Bagga, R.

Ramachandran S.K. Bisaria, Laxmi Arvind, K.P. Gupta, R.

Bana, Ranbir Singh Yadav, H.M. Singh, Mrs. S.C.Jindal, R.K.

Agnihotri, B.S. Gupta, P.C. Kapur, Kripal Singh and Amlan Ghosh for the Petitioners.

V.C. Mahajan, I.S. Goel, C.V. Subba Rao and R.N. Poddar for the Respondents.

The Judgment of the Court was delivered by VENTAKARAMIAH, J. In all these petitions the common question which arises for decision is whether it is open to the State Government to appoint teachers on an ad-hoc basis at the commencement of an academic year and terminate their services before the commencement of the next s = r vacation or earlier to appoint them again on an ad-hoc basis at the commencement of next academic year and to terminate their services before the commencement of the succeeding summer vacation or earlier and to continue to do so year after year. A substantial number of such ad-hoc appointments are made in the existing vacancies which have 571 remained unfilled for three to four years. It is the duty of the State Government to take steps to appoint teachers in those vacancies in accordance with the rules as early as possible. The State Government of Haryana has failed to discharge that duty in these cases. It has been appointing teachers for quite some time on an ad-hoc basis for short periods as stated above without any justifiable reason. In some cases the appointments are made for a period of six months only and they are renewed after a break of a few days. The number of teachers in the State of Haryana who are thus appointed on such ad-hoc basis is very large indeed. If the teachers had been appointed regularly they would have been entitled to the benefits of summer vacation along with the salary and allowance payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave etc. available to all the Government servants. These benefits are denied to these ad-hoc teachers unreasonably on account of this pernicious system of appointment adopted by the State Government. These ad-hoc teachers are unnecessarily subjected to an arbitrary ‘hiring and firing’ policy. These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad-hoc basis with miserable conditions of service. The government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of ‘ad-hocism’ followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer.

We, therefore, direct the State Government to take immediate steps to fill up in accordance with the relevant rules the vacanies in which those who are appointed on an ad-hoc basis are now working and to allow all those who are now holding these posts on ad-hoc basis to remain in those posts till the vacancies are duly filled up. The teachers who are now working on such ad-hoc basis if they have the prescribed qualification may also apply for being appointed regularly in those posts. The State Government may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case of those who have been victims of this system of ‘ad-hoc’ appointments. If any of the petitioners in these petitions has under any existing rule acquired the right to be treated as a regularly appointed teacher, his case shall be considered by the State Government and an appropriate order may be passed in his case.

572 We strongly deprecate the policy of the State Government under which ‘ad-hoc’ teachers are denied the salary and allowances for the period of the summer vacation by resorting to the fictional breaks of the type referred to above. These ‘ad-hoc’ teachers shall be paid salary and allowances for the period of summer vacation as long as they hold the office under this order. Those who are entitled to maternity or medical leave, shall also be granted such leave in accordance with the rules.

If the petitioners have any other grievances, they may approach the High Court of Punjab and Haryana.

These petitions are accordingly disposed of.

A.P.J. Petition dismissed.

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