However, 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. One may here refer to the judgment of the Supreme Court in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others . Therein the Supreme Court has approvingly quoted from Ramaswamy Iyer’s ‘Law of Torts’ 7th Edn., which reads as follows:
Trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him.
Similar observations from other books have been extracted by the Supreme Court which are to the effect that 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. Therefore, the Supreme Court has observed: ‘Here, as elsewhere in the Law of Torts, a balance has to be struck between competing sets of values….’ In view of the aforesaid observations made by the Supreme Court it has got to be held that before evicting the petitioners the respondents ought to have afforded an opportunity of being heard to the petitioners.
While enforcing the law, the procedure that should be adopted by the respondent-Authorities should be reasonable, fair and just. This is the law laid down by the Supreme Court in the case of Olga Tellis (supra) (See: para 42). In para 42 of the judgment the Supreme Court has answered the question as to how the reasonableness or otherwise of the procedure is to be determined. Referring to its earlier decision in the case of Francis Coralis Mullin v. Union Territory of Delhi 1981(2) SCC 516 : AIR 1981 SC 746 the Court has observed:
…. 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 case is by procedure, which is reasonable, fair and just or it is otherwise.
Thus, as laid down by the Supreme Court, in all cases it will be for the Court to decide whether the procedure adopted is reasonable, fair and just or otherwise. The necessary corollary of the aforesaid observation is that the Court may in a given case indicate what procedure would be reasonable, fair and just. In the instant case it would be necessary to point out as to which procedure should be followed by the respondent-Authorities before evicting the petitioners from the places or their business.