Bushan Lal Raina v. Estate Officer ,Directorate of Estates, Nirman Bhawan

Judgment?

¶2To be referred to the Reporter or not?

¶3Whether the judgment should be reported in the Digest? GITA MITTAL. T For orders see W.P.(C) No. 1523912004. [Jil^ry/- rtGrrA Mr?rAL) / JUDGE November 3O, 20L0 kr Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. /E, *xN. T'n-rE xlilc'f{ co{JRT oF' DElLFln AT' NTEW DEn n"nti Date of' decision: Novemrmeq$,6*0, P.I(. KOUL ... PeLitioner Thlough: Mr. B. L. Wali, Advocate VERSUS ESTATE OFFICER AND ANR. '....Responc1en[s . Through: Mr. Jatan Singh with Mr'. Abhisheh Aggarwal and Ms. Megha Bharara, Advocates. AND

(2) Writ Fetition (Civil) No. 15240/2CI04 ancl CM No. tr_L013/2OO4 T.K. OGRA ... petiLioner Through: Mr. B. L. Wali, Advoca[e VERSUS ESl'AT,tr OtrFICER AND ANR. ....Resirondents' Through: Mr, Jatan Singh wi[h Mr. Abhishek Aggarwal and Ms. Megha . Bharara, Advocates.

(3) Writ Fetition (Aivit) No. tr_52 4SlOq ancl CIW No. tl0Z6/2OAq A.K. MUKOO .. pe[itioner-Through: . Mr. B.L. Wali, AclvocaLe VERSUS ESTAT'E OFtrICEIlAND ORS. ....Itesponclen[s Through: Mr. Jatan Singh.with Mr. Al:hishelc Aggarwal ancl Ms. Megha tsharara, Advocates. Page I of t5Z lL4 tlt AND

(4) Wri[ Fetition (Civil) No. 15246/2004 ancl ClvI No. tr-L029n444 M.L.DULLU ... Petitioner Through: Mr. B.L. Wali, AdvocaLe VERSUS ESTAIE OFtrICER AND ANR. ...Respondent s Through: Mr. Jatan Singh wi[h Mr. Abhishelc Aggarwai and Ms. Megha Bharara, Aclvocates. AND

(5) Writ tretition (Civil) No. 862/2004 and CM No. 736/2006 A.K, TzuSAL ... pebitioner Through: Mr. Manoj V. George, Advocate VERSUS ESTATE OFFICER AND ANR. ...Respondenr.s . Through: Mr. Jatan Singh with Mr. Abhishel< Aggaqwal and Ms. M'egha Bharara, Advocates. AND

(6) Writ Fetition (Civil)'No. n SZ4j-,,ZAAL and CM No. tr L016/2004 T.S. BALI ... pe[itioner Through: Mr. B. L. Wali, Advocate VERSUS , ES"|ATII OFFICERAND ANR. ....Responclents Through: Mr. Jatan Singh wiLh Mr. Abhishek Aggarwal ancl Ms. Megha Bharara, Advocates. AND ' (7) Writ Fetition (Civit) No. nSZLqf,lAOq and CM No. ttrO&4nDDq P'N' KACI{R'' Tirro'grr: Mr. B. L. w;ii,n;;1:t"Jil: W.p'.(C) Uo.tSZZgtZOOq , page 2 of t57 , Iln:ffi^#;,Hit"Tif;lfi*H Bharara, Advocates. AND

(S) Writ tretition (Civil) No. n 5279/2004 ancl CM No. 11-050/2004 C.L,MISRI Petitioner Through: 'Mr. B. L. Wali, Advocate VERSUS ESTA|E OITFICER AND ANR. ....Responclen[s Through: Mr. Jatan Singh wi[h Mr. ' Abhisheh Aggarwal ancl Ms. Megha ' Bharara, Advocates.' .

(9) Writ tretition (Civil) No. 15698/2004 aircl CM No. I-tr 04412004 PHOOL/\ RAINA ... peritioner (Wife of late' Str.f.N.naina) Through: Mr. B. L. Wali, Advocate VERSUS ,ESTATE OFI]ICER AND ANB. VERSUS ESTATE OFITICER AND ANR. . TEJ KISHAN UOI & ANR. ....Responden.l,s .. . . Respondenl,s . Through: Mr. JaLan Singh with Mr. Abhishelc Aggarwal ancl Ms. Megha Bharara, Advocates. AND

(10) Wqit Fetition (Aivil) No. X-77912004 and CM No. 1b57,2AA6 rlrrousrr: Mr. sarnrat r<. Nisa,I:NHlt:Ir" VERSUS ....Responden[s ' Through: Mr. Ravinder Agarwal, Advocaie Page S .of 157 A.ND

(11) WriL Fetitfron (Civil) No. 2641/2006 & cMr No. 2379/2006 S.N.]IHAT ... petiLioner Through: Mr. Manoj V. George, AdvocaLe ' VERSUS uol AND ANR. ....ResponclenLs Through: Mr. Jatan Singh with Mr. Abhisheh Aggarwal and Ms. Megha Bharara, AdvocaLes. . ANE

(12) Writ Feririon (AiviX) No. 568 IJZWAT and CM No.. lLOb 47 ?UAT M.I( TIKOO ... petitioner Through: Mr. R.K. Hancloo with Mr. Yoginder l-Iandoo and Mr. Manish shulda & Mr. Atul Sharma, Advocates VERSUS uol AND ANR' rhrousrr: iur. n. v. si'ha *iiirff::ff;"tt Singh, Advocates.

(n3) Wnir; trerirf,on (Civit) No. 705 7 ,?:AOT arrd CM No. l34Zn,nAAq C.L. RAINA ... peLitioner Through' M1. Thakur Summi[, Aclvocate VERSUS uol AND ANR. ....Respondenbs Through: Mr. R. V. Sinha with ivlr. A.S. Singh, Advocates. W.P.(C) No.I52J9/2004 tY- . AND

(n4) Writ Fetition (Civil) No. 2869/2008 . and CM No. 5540/2008 S.N. KAUL ..' Petibioner I Through: Mr. R.K. I-Iandoo with.Mr. Yoginder Handoo and Mr. Manish ' Shukla & Mr. Atul Shartna, Advocates ;'}ff'tf iff:i" Singh, Advocates. AND '

(15) Writ'lPetition (Aivil) No. 8599/2008 and CM No. L6497/2008 KANTiAYANI GANJoo ... petitioner Throughr Mr. R.K. Flandoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul Sharma, Advocates VERSUS UOi AND ANR. ....Respondents Through: Mr. R. V. Sinha wiLh Mr. A.S. Singh,Advocates. A.ND

(16) Writ tretition (Aivit) No. 8600/2009 and Civn No., L6499/200S I-I.L. KOUL petitioner Through: Mr. R.I(. I{andoo with Mr". Yoginder Handoo and Mr. Manish Sllukla & Mr. Atul Sharma, Aclvoca[es VERSUS UOI AND ANR. ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocabes. tK AND

(17) Writ tretition (Civil) No. 8601/2008 cM NO.. 16501-/2008 VIJAY MAM, UOI AND ANR. P.L. KAUL UOI AND ANR. Y.S. JAMWAL UOI AND ANR. ... Petitioner Through: Mr. R.I( Handoo wi[h Mr. Yoginder l{andoo and Mr. Manish Shukla.& Mr. Atul Sharma, Advocates VERSUS rrrroush: Mr. R. v s;i;l*iittf;iff:i:t Singh, Advocates. . AND rl

(18) Writ Fetition (Civil) No. 864L/2009 and CM No. 5796/2009 ,.. Pe[itioner Through: Mr. Samra[ I(. Nigarn, Advocate VERSUS ...Respondents Through: Mr'. R. V. Sinha with M::. A.S. Singh, Advocates. : AND

(19) Wnit Fetition (Aivil) No. gGOg/2O09 & cM NO. 7654/2009 ... PeLitioner Through: .Mr. Naresh Thanai, Advocabe VERSUS rtrroush: Mr. R v. rt*ff:rffiff]t" Singh, Advocates. AND

(20) Writ Feririon (Civil) No. 1 1"877 lZAOE ,!. 8r n 0986/2009 M.K. BAZAZ ... petitioner ' Through.: Mr. R.I( Flancloo with Mr. Yoginder Handoo and Mr. Manish . Shulda & Mr. Abul Sharma, Advocates t1 .VERSUS ....ResPonden[s uol AND ANR' Through: ' Mr' Ja[an si'gir with Mr' . Abhisheh Aggarwal and Ms' Megha Bharara, Advocates. AND

(21) Wnit Fetition (Aivil) No. 1154S/2009 & ciu No. n 135n/2009 B.L. TAI(AROO .. Petitioner Through: Mr. Manoj V. George, Advocate VERSUS . UOI AND ANR. ...ResPonden[s Through: Mr. Jatan Singh with Mr. AbhishekAggarwal ancl Ms. Megha i ' Bh;;;;;; Actvocates. t'

(22) Writ tretition (CivA[) No. X.3-488/2009 & cM NO. LX.24212A0.g ... Petitioner MOTILAL I(AUL Through: Mr. B. L. Wali, Advocate VERSUS ESTATE OFFICE& DIRECTORATE OF ESTATES, NII.MAN BHAWAN rhroush: Mr. Jaran r*ttil,,ilt,1?1" Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND

(23) Writ Fetition (Civil),No. 114S9/2009 & cM NO. XrZ 44t2AAs ' IJ.L. RAINA ... petitioner T'hrough: Mr. Il. L. Wali, Aclvocate VERSUS ESTATE OFFICER ....Responclents Through: Mr. Jqtan Singll wiLh Mr. Al:hishek Aggarwal and Ms. Megha Bharara, Advocates. -11[-'--' '-*----' r--- -- Page 7 of '157 AND (2+1Writ tretition (C) No. n-lL49O/2009 & C.Mo.No.ln-246/2009 A.K. GIGOO ... Peti[ioner Through: Mr. B. L. Wali, Advoca[e VERSUS ....Responden[s Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha . Bharara, Advocates. ESTAIE OtrFICER COHAM: FIObil',tEn E MS. JIJST'ICE GITA MIIIT'A]L L. Whether reporLers of local papers may be allowecl to see Lhe Judgrnent? .

¶2To be referr:ed to the Reporter or not?.

¶3Whether the judgrnent should be repor[ed in [he Digest? @ L. The insl.anl. case is a testimony to events which leacl Lo an unprececlen.becl ethnic cleansing of a minority colnmunity from bire l(ashmir valley on account'of the inability of [he S[aLe to protect them and their property from violence, who, as a resrill;, wer:e reirderecl homeless. such turrnoil was facecl by l.he minori[y colt]trunity in the state of Jammu 6{ Kashrnir afLcr Decernber, L9Bg, cornpelling its members to flee horne, hear[h and StaLe for bare survival. Thesc writ petil"ions have been filed by sorrre of suc;h displaced persons who were central Governrnen[ ernployees seeking protection against forcible eviction of [he quarters occupied by Lhern on Lhe ground that it is the only roof available to thern. 'l I tlI I ! I\I X fq+ I/ IIt al

¶2'I-he pctitioners contencl that tirose represenl,ing tlie Central Government in the Kashrnir valley, especialiy [hose -who were rellresenting the intelligence agencies, paLa rnilitary and clefence forces as.well as ilre GovernrnerrI media becarne 1:rime Largets of the militants to bhe extent bhat lisLs of such person"s who haci l,o be targetecl were published ancl circulated in the localities. Farnily rnernbers and friends of such Governrnenl, empJ.oyees were hilled and their properties destroyed for [h,e nessage to permea[e. As a result, imrnedia[e s[eirs for evacuabion of such officials on ernergency'basis were talcen Jry the Governrnen[ of India in order to at least protect Lheir lives.

¶3The writ pe[itioners in W.P.(C) Nos. 5681/20Q7, 2869, 8599, 8600. 8601/2008. L1377/2009. 15239, 1_5240, 15245 L5246,862. L524'1,L5264.Lsn 264'112006; ' 705712007, 864t,' 9609 1,L548, LL4BB LI48g 11490 6i 11491i2009 were shifted from Jamrnu & I(ashmir l,o Delhi ancl posLecl in the local offices of the central organization ancl clepartmen[. where [hey were employecl.

¶4The facts disclose that all the petitioners (or the llerson on whonr l,hey were clepenclant as in the case of Srn[. phoo]a Raina widow of Late Sh. T.N. Raina writ. petitioner in W.P.(C). No. 15698/2004) upon being brought to Delhi were allot[ecl Government accornmoda[ion to reside'in, not only by virtue of their ernployment bub also their extrerne neecl for shelter. These allotLees of Lhe quarl.ers, superannuatecl frorn service orl ctifferenb clates over the periocJ of tirne.

¶5w.P.(c) No.15698/2004 has been filect bv smb. phoortr Raina, widow of Late Shri T.N. W.p.(C) No.J5239/2004 Raina who was a Governrnen[ Page 9 of't57 L2--servetn[. Shri Raina was the allo[tee of Governmen[ accommocta[ion bearing no. DG-91-5, Salojini Nagar, New Detlii-

¶23While sLill in service Shri T.N. Raina unforbunately expir:ed on l.he {tn ol August, 200L. The petitioner contends that laLe Sh. T.N. Raina ancl family which included herself were compelled Lo 'l 'flee' fronr. the valley in circurnstances identical to those of the obher petitioners. This peti[ionel is surviving on a meager 1:ension and she cannot afforcl any alternate accommod.ation.

¶6The peLibioner in W.P.(C) No.56B1/2007 evacuated in the sail]e emergent conditions, is stated to be afflic[ecl with the Pdr*inson's clisease since his retirernenb. I-Iis home in Kashmir sl.ands burnt. His relative, one Mrs. Chuni Lal irad gotte t.o rebrieve her J:elongings frorn Kashrnir, bu[ was shol, dead ab point blanh range. The petitioner is s[ated to ]re bareiy surviving on his pension. He has no place to rel,urn in his home state.

¶7So'far as the iretitioner in W.P.(C) No.2B69/2008 anct liis fami.ty are conOerned, they were shiftecl ou[ by the Governrlent on accbun[ of the perception of a serious threaL 'Lo Lheir lives. I[ is con'tended [ha[ the rnilitants have burnt the petitioner's aricestral home in orcler to demonstrate 'their in[en[ion of no[ sparing hirn. In addiLion, they have shoL dead his,uncle and wife at poinb blanl< range. As a result, other.than the quarter uncler occupation, the petitioner is without qny alternate shelter. B. shri P.K. I(oul, the petitioner in w.p.(c) No. 15239/2004, was a resident of Razclan, I(ochhaa, Bana Mohalla, Flabba Kaclal, srinagar ancl his entire properLy in srinagar has been clesLroyecl by Lhe cornmunal rio[s and terrorist nrovernents. I{e clear:ly Page I0 of 157 S[a'[es [hat he has no other hcluse anywhere in India. This pe[itioner was lastly posted as the Director Genera] with [he Borcler Securi[y Fbrce at R.K. PuLam, New Delhi. While in service, Lhis petitioner was allolted the premises no. I-I-52, Sarojini Nagar, New De1hi. On 3L't July, 2002, Lhe pebitioLer supera.nnua[ed. from service. The 'allotmen[. of Lhis accomrnoda[ion in his narne was cancelled by a le[ter cla[ecl 27l2}rt' August, 2002 with effect from L't Decernber, 2002 directing th.e petiLioner to vacate the accornrnodaLion irnrnediately and he was informed that on failure to vaeate, action to evict him under the Public Premises (Eviction of Unau[horised Occupants) Act; L97L would be tahen. Ttre respoldenbs also informed the pe[itioner that on failure to vacate, he would be liable to pay damage rent @ Rupees l_50, per sq. mtr. for the entire period of over stay. T'he petitioner was per;miLted bo retain l,he accomrnoclation frorn 19t December, 2002 Lo 3l-'t Apr1l, 2003 on payment of four times of the normal licen.se fee for [he nexttwo months.

¶9. The pe[il,ioirer ancl his farnily are permanen[ resiclents of Lhe State of J&K and did not leave their .horne sl,ate volultarily buL were driven ou[ of the Srinagar valley. Their householcl goods were looted ahd house was burnt by the Lerrorists. other than the one resiclence, which also stancls clesl,royecl by the miiitants in srinagar, Shri p.K. I(oul ownecl no other proper[y. A grievance is made that the respondents have tairen no actiol for [he reconstruc[ion of the. houses of the peti[ioners ancl others like hirn which were destroyecl by the miliLanLs ancl to rehabilitaLe thern resulting in a pitiable concli[ion a1d. absence ry. P. (C) N o. 7 5 2 -a 9 /2 004 I Page II of 157 of any security for them. Consequenbly, they ale. tinal:Ie Lo return [o their own homes. '10. In this background, tfue petitioner sul:rnittecl a representation dated 24tr' March, 2003 seeking perrnission from tire responclenL to retain his accommoda[ion on payment of [he existing norrnal license fee'setting out the above'facts. Despite permilting retention of accommodation by oLher similarly placed persons, this request of the petitioner was rejected by the letber da[ed 20tr' February, 2003. The respon"dent ]1o. 2 fur[h.er referred tb.e case for evicLion of the petiLioner, treating hirn as an irnarithorised occupant of public premises under the Pul:lic Premises (Eviction of Unauthorised Occupants) Act, Ig71. n. In these proceedings, the following eviction order clabed 23'd September, 2003 was passed agai.nst the petibioner wliich was served on him on i8ft November, 2003:- "OFtrICE OI] THE ESTATE OFFICER AND DEPUTY DIREC'rOR OF ESTATE (LrT.) DTRECTORATE Or ESTATES, NIRMAN BHAWAN, NEW DLEI-II. EC/93/AD ILIEIOSIT-D All persons concerned and in parbicular Shri P.K. Koui, l-23, Nor[h West Moti Bagh, I.[** Delhi whereas I, the undersigned am satisfiecl for the reasons recorded below that shri P.K. KouI is an unau[]rorizecl occupabion of the premises specified in the Schedule below I REASONS You have l:een continuing to occupy the premises specified in Lhe schedule below even after its allo[ment stands cancelled in your name w.e.f. t.2.03 vicle letber no. TLt 12931y1-23 I 9 6 dabed B.LI.0Z. ' You have failed '[o prove that you are not in unaul.horizecl occupa[ion of the ins[ant premises. Now, therefore, j.n exercise of the powers conferrecr on me under sub-sec[ion (I) of section 5 of lhe public premises W. P. (C) N o'. 7 52 3 9 /200 4 Page l2 of 157 I (Evic[ion of Unautho$zed Occupants) Act, t97t,I hereby order Shri P.K. I(oul, and all the persons who may be in occupal.ion of the said premises or any part thereof to vacate the same within 15 days from the date of issue of this orcler. In the event of iefusal or failure to cornply with this order within tire period specified above, l,he said Shri P.K. I(ouI and all obher persons concerned are liable to be evicted frorn the said premises, if need be, by the use of such force as nray'be necessaly. SCHEDULE l-23, NorLh West Moti Bagh, New Delhi. Date : 23.9.2003 Copy to A.D.-T-D." sd/_ (8.K. I(ulshreshtha) ' ESTATE OFFICER 1,2. The pel,i[ioner filed an appeal regisl.erecl as PPA No. 333/2003 challenging the said evicl.ion orcler. ' It is conLencLecl that the learnecl Aclditional District Juclge ir.eciranically clismissed the petitioner's appeal by an orcler clatecl 1-0u' Sep[ember, 2004 ignoring the orclers passed by Lhe Supreme Cour[ and obher precedents of this court in respect of iclentically placed. persons, necessitating Lhe present petition. , The sul:mission is Lhat the cancellation of the petitioner's allotrnent by the letter clatecl 271;2}th August, 2002; rejection of the peLitioner's recluesL by the letter datecl 20tr' of Febrr.rary, 2003; l.he order of eviction dated 23'd Septernber, 2003, as well as the order of the learned ADJ dated LOth september, 2004. are legally no t sustainable. 'fhe wri[ petition lays a challenge [o Lhese orclers as weil as Lhe non-action of [he respondents.

¶13' The facLs relabing to the other petitioners in this bunch of petil,ions are sirnilar ancl ale nol. disputed by the responclents. Ilor [he puq]oses of convenience anci clarity, the cle[ails of Page l3 of 157 t;he ailcl[rnen[ of accorntnodations wtiich were effecLecl in favour of the peti[ioners/the predecessor in interesh the dates of bheir rel,irement; the status of.allotment and par[iculars of the orclers which have been pa.ssecl against all the petilioners and are irnpu.gned in these wrib petiLions are tabulaLed below:- wit .tsetitiom IVo. Quarter ttr-Ilotted Date of X?.etiretnett tof ,AfIottee

31..7.2042

1..7.2002

30.9.2002 Date of intpuEtted order of Cancellati on of ',Allotntettt 'Date of i Date of l. intpuqnedl tlee Euiction I impwwed.. WP iCJ No.15239 12004 wP (c) No.15246 12004 WP (C) No.B62/2 wP (c) No.1779l 2006 H-52, Sarojini Nagar, New Delhi GI-BOO, Sarojini Nagar, New Delhi It-1.62, Sarojini Nagar, New Delhi

1.2311\r, North West Moti Bagh, New Delhi zz.g.iooi

25.9.2003

25.9.2003 '10.9.2004 ,

10.9.2004

20.'r2.2005t .

131.L0.2002 I I

131.10.2002 I-t--- lt.s.zooz Il----__ lt.s.zooz I Otder i srder int A47peatr

10.9.2004

23.9.2003

10.9.2004 499 A, Sector 3, IT.K. Puram , New Delhi z-20, Sarojini Nagar, New Delhi wP (c) No.15241 12004 WP (C) No.1-5264 12004

30.4.2005

1.9.2004

28.3.200s 1,2.1"2.2005

12.1.2.2005

1.:3.2002 118.9.2002

10.9.2004 Ll..7.2003

10.9.2004 i30.6.2002 I l--- _l-__ _ Page l4 of 157 Writ Fetitiott 'No. wP (c)' No. L 527 912004 wP (c) No.1-569 8t2004 wP (c) No.2641-t2006 wP (c) No.56B1 12007 wP (c) Nct.2B69 12008 Quatter ,4IIotted 31252, A:rdrews Gad, New Delhi DG 915, Sarojini Nagar, New Delhi Date of Iletirernen tof AIIottee Date of imtrtuEned order of Cancellati on of ,ALIotntent

30.4,1998

1.9. r 998 (Allottee Died while in service on

4.8.2001)

30.4.2004

3.3.2004

22.1".2002 L.7 .2004

25.+.2005 L.2.2006 MS/] 007, Sector VII, M.B. Road, New Delhi Allotted Quar[er in Delhi New Delhi wP (c) No.B599 /2008 , wP (c) No.B600 /2008 New Delhi New Delhi

30.9.2006

31..s.2007

31..1.2.2007 3L.I2.2007

31.1"2.2007 31:s.2008 3L.7.2008 wP (c) No.B60L 12008 New Delhi wP (c) No.B64L 12a09 wP (c) No.11-37 7 /2009 GI-809, Sarojini Nagar, New Delhi BBO, Lakshmi Bai Nagar, New Delhi zo.+ioos

3.8.2009 Page I5 of 157 SI/38, Sadiq Nagar, New Delhi S-r/6511"t, M.B. Road, New Delhi Quarter ,Altrotted DatE of R.etirenten tof AIIottee Date of irupugrned order of Cancellati on of AIIotment - bate of irnpuqned Euictiott Order ,6 Da[:e'of the irnpwqtaedi -m;ffi1 ,A,ppeaX 2s.8.2009

25.8.2009

25.8.2009 ;

25.8.2009 1,.9.2007

30.6.2008

1.8.200B

9.3.2009

30.11.2007 21".7 .2008 1_9. L.2009

30.4.2008 t8.8.2007

10.1L.200 B

30.6.2006 1_.11_.2006 1,8 .6.2007 LB.7 .2006

28.05.2007 AB-837,. Sarojini Nagar, New Deliri wP (c) No.1. L54 B/2009 wP(c) No.7057 /2007 wP(c) No.9609 12009 K-4tL2, Sector II, DIZ Area, Gole Market, New Delhi 4713N, DIZ Area, Sector 2, Gole Marhet, New Deliri x-224, Sarojini Nagar, New Delhi Qr.No.2B 1-, Type-' IV, Sector-8, R.I(Pura tr, New Delhi.

50.b2oo5 1,.2.2006

31.0B.2006

01.01_.2007

30.04.2008 31".1,2.2009 W ti{;i"o n e rs' c ott t;en ti otts t4. In these writ petitions, the petitioners h.ave all con[ended thaL they are permanent resiclents of Jarnrnu & I(ashrnir and have no clesire .whatsoeverlo resid.e in Delhi. However, on account of the prevailing circumstances ancl the inability of Lhe Governmenb Lo Secure .their lives and proper[ies in their hone state, Lhey ale.unable to leLurn Lo the state. Their properl"ies .and only homes in the vailey.have gither been desbroyecl or occupied

¶15'Passage of tirne .also has brought no change iir Lhe conclibions prevalent in the state of Jamrnu & I(ashnrir. The pelitioners lemain unabie to return to their own homes.

¶16Mr. R.I(FIandoo, Mr. B.L. WaIi and Mr. SarnraL Nigarn, Iearned counseils appearing for the petitioners,. with ali [he vehemence a'[ their cornrnand, have, urged that the s[a'Lus of the petitioners sLands reduced to'Lhat of 'refugees' in"'Lheir own coun[ry with nowhere to go and no suppor[ at all from bhe stale, the only clifference being that instead of being clisplacecl Lo 'anoiher coun'[ty, the petitioners s[and evicted. within Lheir ornin ' country

¶17'I'he petiLioirers have contended that cliscretion and ilowet: is ves[ed. in Lhe responclents under SR 3L7-B-25 of the Aliobrnen[ of the ''Governntenb Residence (General Pool in Delhi) Rules to pernfL any llerson to occupy public premises. InsLances lr.ave been cited of the respondents perrnitling ol,irer persons inclucling iclentically clisplaced l(ashmiris to occupy public lrlernises. It is complainecl that the responclenbs .h"ave unfairly failed. to consicler Lhe special circurnsl,ances so far as [he Page I7 of I57 pel,i[ioners. a]:e concerrlecl ancl have cliscrirnin"atecl against thcrn. The wri[ pe[itioners thus assail the failure of the respondeuts to exercise the discre[ion vesbed in them to permiL [he petifioners to con"[inue to occupy [he quarters, in accorciance with ]aw on bhe ground of arbitrariness.

¶18The submission is that the'refusal of [he r:espondenbs [o perurit the pebitioners to rebain the allotrnen[ on payment of 'norrnal license fee is illegal and results in violation of the consLifutional rights of t]re petitioner as well as . thc constitutional ancl public law obligations, responsibilities ancl duties of the respondents.

¶19It is sul:rnittecl that in thq given cilcurnstances the peLil-ioners cannob be cleernecl to be in 'unauthorisecl occupal.ion' for the purposes of the application of the Public Prernises (Eviction of Unauthorised Occupants) Ac[, '1971,. The pet"il"ioners contend that the respondenl,s wet"e consti[utionally manclatecl .to protect their right to life nncler ArLicle 21 of Lhe conslitution of India and having failed [o do so, were bound Lo ensure the right to shelter of the petitioners, which is an esse:ntial concomitant thereof. In bhis bachgrouncl, the iretitioners cirallenge inaction qua the rights of Lhe peLitioners; the legaiity ancl validity of the cancellation of [he al]otrnen[s of the cluarl.ers; as well as the proceeclings ancl all orclers uncler the Pul:lic Prernises (Eviction of unautrrorisecl occupanLs) Ac[, L971'. It is contendecl that the responclents have ignored all relevant material in initia[ing the proceeclings against l,]re petitioners, passing the impugned or.clers. Page lB of.157 Xte swx@e n t s c o il [; e n tr CI il q

¶20Mr. Ja[an Singh, learned Standing Counse] for bhe Union of Initia and Mr. R.V. Sinha, learned counsel for the respondbn[s challenge [he very rnaintainability of these writ peti[ions. it it contenclect that [he pubiic prernises were a]io[tecl to employees of the Government by virtue of their employrnenb. Such relabionships having corne l"o an end on superannr"ration/demise of [he governrnen'b serwant, learned counsels sLrongly urge [J.raL the petitioners liave no righ[ at all to conl,inue [o occupy l,he offici.al accomrllodation.after: their rebirernent. It is fur:ther urged bhat Lhe pe[itioners have no right or entitlernent [o any acco.mruoclation from [he respondents. The subrnission is that the cLecisions against the petitioners are in accordance wiLh the provisions of the AcL of I97L and judicial prececlenl.s cln bhe subjec'[ and cannot be faulted oq any legally tenable grounds. sl Matctial pleadinqs 2t. l3efore exarnining these submissions, learnecl counsel lor Lhe petitioners have drawn at[ention to Lhe petitioner:'s 1:leaclings in grouncls 4 to H, K, L & M of Wp @) Nct.1.5239/2004 P.K. r{oail vs. Estate offiaer ancl blic re.spondents resp"onse thereto whicli deserves bo be usefu]Jv considered in extenso and reads as follows:- Page I9 of 157 Pleaclinicrs. in the \Mp (C) Ntl.1U,39@04 Grounds "l\'. Because the Flon'ble Supremle Ftr eaallincrs in countel' a.fi'ff,clavit gour]t of nlxdia in S.n-.F. Ors. Vs. $tate of TCIK & Ors. has considered bhe question. regarding Lhe possession of the accommodation oI the stmilaflv Piaceo employees and adjourned the rnatter sine die and till Lhe Suprerne Court decides the matber finally, the Responden[s cannot dispossess the Petitioner from the premises in question. Vide order dated 26.8.1-997 the Hon'ble Suprenre 'Court of India in the said case passed the following orders: "List this rnatter on a regular day afl,er six weeks. In tire rneantime, Mr. P.P. Rao will ascertain from the State Govt. as to wh.eLher [ire peLitioners can be put back to their respective houses ownecl by thern in the Kasirmir val1ey ancl can ensure protection of the persons as also [heir property. To facilitate that venture, the petitioner's counseL witt give to Mr. Rao the ad.clress of each iretibioner where he woulcl expecb [o be shifted." Again vicle order' clated 28.1.l-998 taking into consideration of the present sibuation the Hon'b1e Suprerne Court of India passed the following orders adjourning the rnatber sine die and continued the stay:- "Ar{journed sine die. Stay to continue. The petition to be activated on rLentioning J:y Counsel for the Sta[e of Jammu and Kashmir as and when the PXeacnirnals irx the \MF (C) W State is in a positioir to assure the rel.uln of the petitioners bo their respecbive hoines in the l(ashrnir va1ley and ensure their safety ancl personal proper[y." Copies of Lhe aforesaid orders of l.he l-Ion'ble Supr:eme Courl, datecl

26.8.'1997 and 2B.L.1gg8 are annexecl herewith as annexure herewith as Annexure P-5 & P-6 respectivel 32-to H) are matten of' recorcll. neectr no comlmlents. Xxx Page 20 of I 57 B. l3ecause the Ld. ADJ has not even consiclerecl that,the FIon'ble T'ribunal in ,OA-No"2378/2002 - Tei Kishan vs. U into jnre--lssue. and directed the Respon-denl,s to aliow the Applicant therein [o retain the GovL. accornrnodation pendlng decision in SLP (Civil) No.7369197.. A copy of the aforesqid order of the Ld. Tribunal dated 30.1,2.2002 is annexed herewi[h as Alnexure P-7. C. Because the Ld. ADJ has failed to appreciabe that Petitioner being a I(ashur.iri miqrant whose house in Kash.rnir was burnt and destro'ved blr the rnilitants, he has no place to cro. He is, therefore, compelled. to stay ab iris GovL. accomlnodation allottecl to him till Lhe normalcy in l(ashmir vallelr is restored and he eould go back Lo his Stabe one day and iebuild and ':reoccupy his clestroyed house. However, the Respondents in a mosf callous, utlconcerned and rnechanical manner turned down th.e request of the Pet.itioner. l D. Because [he Pebitioner has the Fundamental Right to live which is guaranbeed bo him under the Article 21 of the Cons[itution of India and which Right includes bhe Ricrht to Shelter also. E. Because the Petitioner cannot go baclc [o the I(ashmir Valley, his place of origin l:ecause his life is in danger in the valley on account of the oirgoing rniiitancy in the State of J & . K and also l:ecause his own house in Srinagar was burnt/destroyed by the militants and he has no other shelter anywhere in India. 3> Fleacliucns in couuLen" af'ficllallirU "Tha[ l.he con[en[s of Gnotlnets ("t\ to H[) are ulatten of' necon:cn. rreecl n o colqlaleelts. XXX Bleqglipcrs in the WF (C). N0,.n,!regfao0rl F. Because the Petitioner with his W.P.(C) No.15239/2004 Page 2l of 157 '.\--. mcaqer income received as Pension cannot take an alternate Private accommoclation in Delhi where he can Iive wiLh dignity alongwith his family mernbers. His llensionarJr income.is not even sufficient to buli food maLerial for his family members. He has no obher incorne whatsoever" G. Because unless the Responden'[ No.l" namely, the Ministry of Urban Develolrment who is the nodal agency to ensure proper sheltef to the ci[izens of India 'provide suiLable acconr.rnodation to the Petitioner and other sirnilarly placed I(ashmiri rnigrants at affordable price and in easy installments, no retired IGshrniris can acquire a house of their own and move to the same. The I{espondents h.ave of their own and lnove l,o Lhe saure. The lltespondents have not tanre,n any positive action in this clirectiorn so that tlhe X(ashmiri ruri.Erants are netraahflnitaLectr pnoperly and. with cIiEnit5r" FI. Because , in the face of Lhe peculiar circurnsbances and abnormal condit"ions prevailing in [he State of Jamm.u ancl Kashmir, emploJrees of the S[abe of J & K were granted relibf by the .I{on'b1e Supreme Court of India on hurnanitarian considerations and on the traasis of, ecrualiW. sY

16.That in response [o Lhc contents of pafa K of grouncl, i[ is submittecl that the petitioner Governnr.er: l. subjec[ to allotrnent rules WhilB he was jn service. He was entitlecl to reLain the Governrnent Quarter or-rly during his service periocl and the allobnlent has. been cancelJccl consecluen'b upon his retiremenl, from service after _$vrng-hj rl XXX XXX XXX' K, Becarise the right to the Pel"itioner to have a shel[er does not cease to exist just because he has rebired from the Government seryice. I-Iis right to continue to stay in the pfesenl" accornrnodation or in an alternate accornmodation to , .be was allotbed accommodabion uil[. trlead L. Becairse the Directorate of Esl.ates are, alloLting' qeneral pool accommodal"ion not only to 'the serving Governrnent emploJrees but also Lo various other categories of employees who have nolhing to do with governrnent service. The ernplolrees working in the office of tire political par[ies, journa]isLs, freedom fiqhters, arLisLs. etc. are also allotted general pool accommodation. The Petitioner belonqs to slrecial category of dislllaced Kashmiri Pandits and they als;o deserve special treatment in the rnat[er of providing a'ccornrnodation as in the case of the aforesaid categories. M. Because the consicler the non-governmental tll the Allotnrent Rulgs in respect of any person and in respect of any accommodabion. According to S[t 3tr-7-lB-25 of the Allotment of Governrnenl. Residences (General PooI in Delh) Rules, LgO3, the Govemrnenb have tlr.e power to relax the Allotment llules which is reproduced as under:- for reasons Lo Jre recordecl in writing relax all or any of the provisions of Lhe Rules in this Division in'Lhe case of any officer or residence or class of officers or type of residences.,, has failed to that the 3i concessional period of lor-r.r rnonl,hs. Furthe:: reLentiou thereafber for a maxj.rnnin periotl of four monbh.s on medical grounds as per rules has ah'eacly been availed by hin. L7.ThaL in response [o L]re contenLs of pana n-of ground, il, js submitLed that the alloLr:-renl" oI Government cluar:ter is macle ai per the rules ancl policy laicl" clowrt bv the Governmen[. LB.That the con[enb of ]rara M of the Grouncl needs no comlmemts f'or rnran'L_of kllowlqlatge. I{owever, [he petil.ioner is a rgtiree and getting post r:elrial pension." Page 2j of I 57

¶22The a'bove nairation worrld show [hat [he respondents aclmit the correctness of the factual submissions, rights clairnecl ancl en.titlemenl.s of the petiLioners in th"ese grounds of the wri[ pebi[ion. Natpre of, riqhtsi involved in these petitiotts C ons ti tu ti on aI gtt aran te e s

¶23Before proceecling to exarnine the challenge laid by [he pe[i[ioners, it is essential to exainine the right of bhe petibioners which is involvecl. Article 19(1)(e) of the ConstibuLion of Inciia sl,ates that all cil.izens shallhave the right bo resicle ancl sel,l.le in any'pa.rt of Lhe terriboiy of India. Article 21, on the oLh.er hand s[ates tha[ no person shall be cleprivecl of his life or persotral liberty excepb according to lrrocedure established by law.

¶24The ireLi[ioners question the jurisdiction ancl legalitry of Lhe responclent's acLions and threat to forcibly evict Lhern from Lheir: only shelter in p'ur:porLed exercise of sta[u1ofy powers uLilizing the lrrocess prescribed utrder the Public Prernises (EvicLion of unar.rthorisecl occupanLs) Act, 1,g7I (hereafter relerrecl to as Lhe 'PuJ:lic Prernises Act, 1 971,').

¶25In.n995 (2) SX.ff 72, P.G. Gwpata Vs" State effGu.jatat & ors., the suprenre courL helcl that foocl, shelber ancl ciothing are the rninimal human riqhts. Ttre courl. rjeiteraLed i[s earlier expansion of the right [o residence ancl settlement by again holcling that, ib is a "funclamental righ[ uncler Article ig(l)(e) I W.p.(C) No.75239/2004 " '- ' 'll-r' :q-- I \ and it is a faceL of inseparable meaningful rlghL [o life ur:.c[er Ar[ic1e 2']"" of the Cons[i[ution of Inciia.

¶26Fr-ind.amental rights-are guaranteed to [he citizens'of lndia nnde{ part III of the Cons[itution of India. In (n 996) 2 SCC 549 Chameni Sittgtrt & Or:s, Vs. State of [LF. & /int'., Lhe Suprerne Court held that the right to shelter is a ftrndamenLal riqht available to every citizen of Inclia. It was also read. into the lighL to life guaran[eed uncler Artic]e 21, of bhe Consbitution [o rnahe j.l, rnore meaningful. In para B of the juclgrnen[, [he courl, succinctly set out the nature of the right and the mandate on bhe sbate as follows:- "8. In any organisecl society, right to live as a hurnan being is not ensured by rnee[ing only [he animal needs of rnan. It is secured only when he is assured of all facilities to develop himself ancl is freed frorn res[ricl,ions wirich inhibit his growth. A11 hum.an ' rights are desigrned to achieve this object. Xl.iarht to llve qurarailrceq in any civilised sociely inttolies ffite !W! to food, wa.Ler, decent environrnen[, education, rnedical car:e and shenter. These are basic human rights hnown to any civilised socie[y. A]I civil, IJniversal Declaration of l{urnan Idsrhbs and nti itu[ion of Indi ithout sic human ri fore. is nol-a proLection of his li . It is naotne where .he -[tas.. b-"* -twttities to qrow p]nvsicallv. nenlaIly. ILiqht tot sntefter, tl:erefore, inclwdes adesuate liuins soaae ana{ ecent sttwctwres, clean and decen and w, The tto does a rnen"e Iu=ant, W a'roof tver ott t tu a.nn ffte astru o enab. 'nn t@ Rioltt to entur as an 'ntial te to Xive Ite d, to trta IN ental , ,4s is n D. the State gltould be deemed to be under an ,bXisation to ure i its ns of to its W.P.(C) No.75239/200.4 9K eaolnoilnic flzxdqeti ln a democral,ic society as a rnember of the organised civii commutlity one shoulcl anent shetr and inLellectually equip oneself to' implove his excellence as a useful citizen as enjoined in the-Fundarnental Duties and to be a useful citizen and equal participant in democracy. The ulbimate objecL of nrakiirg a man equipped. with a fiEtrtt'to digttity a,f troersonz and eqwality of statws is to enable him to develop lrimself into a culture being. WFnt of r[eaent I'esidence. theref,ore. tt"usttates tlne vervr ohiect af the Constitutional animatiort of tiatrtt to eqwanitv, eaonomic iustice. fundarnental riaht to !'esidenee. disnitv of, pefison atnd ri.qtrx.t to trive itseLf,......." (Emphasis supirlied) "Jlhe Apex Cour[ unequivocally dec]ared that all the civil, polilical, social and cultural rigirts ensh.rined in the Universal Declaration of Hurnan Rights ancl Convention, 1,948 or rincler; the Constitu[ion of Inclia cannot be exercisecl wibhoul., inter a]ia, [he l:asic hurnan" right of shelter.

¶27The righL to shelter as an essenbial concornil,ant of [he ' fundarnen[al right to ]ife was aiso pressed by the pavernen[ . dwellers in Lhe plronouncement reported at ft.997) In SCC nZn Atruue da"ft a d A{wtticigt aI C or'1t ot'at'iott \/s. Nawant, K]tan G u.ilant ' Khan ,& Ot"s. The Municipal Corpolation of Ahmedabacl was complaining againsL encroachrnent ancl occupation clf pavelnents in Lhe.urban limits of Airrnectabacl by the paven:enb dwellers (respondents therein). The court was concernecl with [he 'piea of violation of funclarnental righbs of the pavernen[ dwellers under Article 19(1)(e) and 2L of the Constitution of Inclia ancl their entitlement to shelter. The sumrna[ion by [he Courb.placing reliance o.n the several prececlents on the subjec[ throws lighL. on bhe ver]F question wtrich has been raisecl.herej.n Page 26 of tSt )1 also. AfLer reitera[ing the principles in earlier judgrnents, Lhe observa[ions of the Supreme Court reeid as follows:- "!3. Socio-economic justi"ce, eqriality of sta[us and of oppor'[unity and digmty of person to fosLer the frabernity among all the sections of the sociely in an inLegraLed Bharat is [he arch of [he Cons[ibution set clown in iLs preanrble' A::bic]es 39 and 38 enjoins the State to provide facilities and opporl,unities. A::ticles 38 and 46 of the Constitution eqjoin the State to promote welftrre of the people by securing social and econornic jusLice to the weaker sections of the socie'ty to rninimise inequalities in income and endeavour to eliminate inequalities in status. In tha[ case, it was held that to bring the Dalits and the Tri):es into the mains'Lream of national life, the SLate was to provide facilities and oppor[unil,ies as it is Lhe duty of the State to fulfil the basic hunan and constitutional rights to reSidents so as to rnahe the right to life meaningfui. in ShantisLar tsuilders v. Narayan l(himalal To[ame AIR 1990 SC 630, another Bench of three Judges hacl held LhaL basic needs of man have tradiLionallv been accepted to be three-food. clothing and shel[er. The right to life is cruaranteed in any civiliseil society. That would talce within its sweep the right to food, Lhe right to clothing, [he right to clecent environment and a reasonable accomrnodation to live in. The difference between the need of an animal and a hurnan being for shelter has to be kept in view. For an animal, i[ is the bare protection of the body; for a iruman being, it has to be a suibable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. The surplus urJrau-vacant land was directed to be used to provide shelterbo the poor. In Olga Teilis case (supra), the Constitution Bench had considered the right to dwell.on pavements or in slums by 'the indigent and the same was accepted as a part of right to life enshrined under Article 21-: [heir ejectment from the irLace nearer to their work would be deprivation of their riqhb to livelihood." It woulcl, therefore, be person has a right to XXX clear bhat though no encroach and erecb s'l,rucl.ures or otherwise.on footpath, pavemenl. or puJ:lic streets or any'other place reserved or earrnarked for a.pubiic purpose, the S[aLe has W.P.(C) No"75239/2004 Page 27 of I 57 Ys wealth and resources for seLtlement of life ancl erection of shelter over their heacls to make the riqhb to life meaninqful. effective and fruitful. Right to iivelihood is meaningful because no one can live wiLhout means of this Iiving, Lhat is the nreans of livelihood. The dep::ivabion of the ::ighL [o life in that context wou]d not only denude life of effecLive conLent and meaningfulness but it would make life miserable and irnpossible to live. ft wotild. tkerefore. be the datvr of ilte State to p,rouide risht to shelter to ilte poor and, indiqent weaker sectiorts of tlne Societ;v in fr.rtrf,ihnertt of, tlze c'onstitutional ohfectives,.

¶25ArLicle L9(l-)(e) of the Constitution provides to all ciLizens fundamental riqhts to Lravel, seLtle down and reside in anlr part of the Bhara'b and none have ricrh[ bo prevent their seLtlemenl. Any attempt in that behalf virould be unconstitulional. 'fhe Preambie of the Constitution assures in tecrrity of the nation. fraterni[y an].onq the people and dignil.v of the person to make India an integrated and united Bharat in a socialist secular clemocratic republic. The policy or principle should be such'that everyone should have the Opportunitv to migrate and settle down in any part of Bharat where gpportunity for employrnent or l:etter livinct conditions are available and, therefore. it would be unconsl"itutional and impermissil:ie bo prevenL the persons frorn miqratinq and set[]inq at places where thelr find their livelihood and means of avocation. It is to remember that the Preanr.ble is tirg arch of the Constitution which accords. to every citizen of India socio-econornic and political jus[ice, Iiberties, equality of opportunity and of status, fraternity, dignity of person in an integra[ed Bharat. The fundarnental ricrhts and and to sel,tle in anJr part of the counLry is assurecl to every ci[izen ..The riglit to life enshrined under Article 2L has been in[erpretecl by Lhis Courb to include rneaningfut righ[ to life and not merely animal existence as elaboratecl in several judgrnents of this Court inclucling Flawirers' case, Olga Tellis case and the latest Charneii Singh's case and host of other decisions sid hLs fundamental riqht. Due to want of facilities and which need no reiteration. Suffice iL to staLe thaL lnclud to livb wi iill-' opportLlni'lies, the rigtrt to residence and seltlernenL is an illusion to the rural and urban and frui wor[h living with diqnit]r of person and equaiity of status and to consbantly improve excellence." (Emphasis supplied)

¶28Tlre pe[iLioners are facing threaLenecl for:ci]rle evictioir frorn the only shelter they know.which was allotLed by the respondenbs, either to them or the person on whom [hey were dependan[. If cornpel]ed to vacate without provision of an alternative, l,he inevitable consequence is, Lhat the peLitioners woulcl l:e rendered homeless.

¶29l.t is obvious that the present petibions raise an impoitan[ aspect of right to shelter Of these displaced ilersons uncler ArLicle 19(1)(e) and which has been cleclarecl by the Sui:reuie Cour[ to be an inLegral and essential part also. of [heir right to lil'e, guaran[eecl as a fundamental right und6r Article 2i-of tire Constitu[ion of India. In the several bincling juclicial prececlents noticed hereinalrove, the Suprerne Cour[ has furbher he]d" thab such violal"ion may also adverseiy im.pact ancl violaue the righL [o occupal,ion ancl profession uncler Article 1g(tXg) of Lhe Constil,uLion of hidia which is the oLher basic human righL of the petitioners inex[ricably involved in the insLant case.

¶30so'far as righL to adecluate housing ancl its pro[ecLion is concernecl, [here is no specific dornestic legislaLion on th"e issue. 9t sections of the societlr envisaqed in ArLicle 46 to Page 29 of I 57 ,. In Ltre aforenol"iced pronouncernents the Suprerne Cour:[ has been of the view thal such right can also be sourcecl as a basic hurnan right uncler the international hurnan rights law.

¶31This court has had occasion to examine [he sou]:ce of [he right to housing, shelter and protec[ion againsL forci]:Ie evic[ions by resiclents of JhuggiJhopri clusters (hutrnen'ts) in Lhe juclgments clatecl 1-4'r' .1uly , 2006 in W.p.(C) No. S0O7lz0}z reportecl aE M,4N\D/DE/9327/2O06 entitled Jagrdisk us. DDA, ancl also the pronouncemenL of this court clatecl j.l-u'.Februaly, 20IO in W"F.(C) IVo. Eg04/200g Sudatna Sinarh &.Ots. uS OovWwnettt of eeAtW with connectecl writ peti[ions. In this regard, in Lhese judgrnenls as we].l, reference was made to the following international & regional covenants ancl cleclara[ions on the right to adecluate housing which declare that provision of housing as weil as the pro[ec[ion agains[ forcecl eviction is tire unequivocal responsibility of Lhe state :- (:i)Tlie [Irriyt-ls^tr D*"Iuration of, Hrru*^r, Ri*Iuts ng4g rna.lces the foilo*in "Ar[ic]e 25.1- - Everyone haF the right io a stanclarcl of livingr ' edequaue for the health aricl wel-beinffihimself ancl ]ris family including foqd, clothing, housing ancl medical care and necessaly social services, ancl the right to security in the evenL oj-uriemproSrrnent, sicrrriess, disabiiity, wiclowhood, old age or o[her lac]r .of livelihood i,. circumstances beyond his control.,, "Arl,icle 5 Iir coinpllance with [he funclarnenta] obligations laid down in article 2 of this Convention, SLates parLies unclertalce .to prohibit and to eliminate racial cliscrirnination W.P.(C) No.t5239/2004 uL 'll

(ii) The t-l3 in all iLs fornrs ancl to guarantee the right of everyone, without dis[incticln as to' race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyrnent of the following rights : . XXXX

(d) Other civil rights, in parlicular XXXX

(iii) The right to housing."

(iii). ArLicle LL of tlre Internationa.l Covenant on e adop[ed by Lhe General AssernJrly of the Uni[ed Nations on the L6th of December, l-966 further codifies the rlght to housing ancl sta[es l,]rus : "Arti.cle l_l_ "1. The State Parties to the presenl, Covenan[. recognize the right of everyone to an adecluate standard of living for hirnself and his farnily, including adequate food, clothing, and heuslng, and to the continuous improvement of living condibions..........." Inclia has signed and ra'bifiecl'[his covenan[ ancl is [hus a sta[e party [o it.

(iy) Part II of tlne Declaratiott of Social .Ftsqress and eelteloetgxent. tg ' "Social progress and developrnent shall airn aL the continuous raising of the rnaterial ancl. spiritual standards of living of al1 mernbers of society, with respect for and in corurliance with human rights ancl fundarnental freecloms Lhrough the attainrnent of the following main . goals: XXXX Article l-O(fl The provision for a]l, particularly persons low-income groups ancl large -farnilies, adecluate housing and commuirity services. (r') Part III section (B) of the vancowver Dec.latatiott lows : 1n of Page 3t of 157 \.1 "III Guidelines for Action XXXX B. Adequate shelter and services are a l:asic hurnan right which places an' obligabion on governmen[s to ensure their attainrnent by all people, beginning with direct assisLance l,o the Ieas'[ advantaged [hrough guided prograrnrnes. of self-help and cornmunity action. Governrn'ents should endeavor to remove ail impediments hinclering attainrnent of these goals. Of special imporbance is the elirnination of social and racial segregation, inter alia, through the creaLion of better balanced corirmunities, which blend different social groups, occupation, housing and eirnenities." The Recommendations for National Action in the n/ancowver Declaration 'contains inber. alia also the following :- Preamble. Point 3 The ideologies of States are reflectecl in their hurnan setilement policies. These being powerftrl j.nstrurnen Ls for change, they rnust not be used to ' dispossess people from their hornes and [heir land, or to entrench privilege and exploitation. The hurnan settlernent policies rnust l:e in conforrnity with the declaration of principles and Universal Declaration of Human Rights."

(vi) Article 8.1 of tlre Decxatation on the xliqlnt to Develoement. WgA also states that: "ArticlO B level, ail necessary measures for ftrG realizal,ion of the right to clevelopmenb ancl shall ensure, inter-alia, equality of opportunity for all in their access to basic resoul:ces, education, health services, foocl, l housing. employment ancl the fair clistribution of incorne...."

(vii) The above olrjectiv'es were arso reinforced the declaration made in the rrttentational vear of, ilae El'o4ltele=ss= in 1.g87 t V spoke of this right of all indivictuals in the following' terrns: "A. W.P,(C) No.J5239/2004 Page 32 of i57 qr "a real irome...one which provides probecbion from the' elements; has access to safe wa[er and sanibatiory provides for secure tenure and personal safety; and. within easy reach of centres for employment, education and health ca.re; and is at a cost which people ancl society . can afford."

(viii) On the issue of forcible evictions, the Gene-r"a.n Comnnent Z, dated ZQth Mav L997 on the righL to adequate housing '(Article tL.1. of the Covenant : Forced Evictions) by the Comtmissiom on Eaonotnia. S.ocial and Cultutal Rioltts is importanb and is exbracted hereafter : "(1) In its General Comrnent No. 4, (199L), [he CommitLee observed thaL all persons should possess a degree of security of tenure which guarantees leqal protection aqainsl, fOrcecl evicbion, harassment and obher threats. I[ concluded that forced evic[ions are prima facie incompatible with [he requirernent of the Covenant.

(2) The international cornmunity has lor.g recognized that the issue of forced evicUions"is a serious one. In 1,976, the Unibed Nations Conference on Human Settlernents no[ed [hat. special attention should be paid to "undertaking ' major clearance operations should tahe place clnly when conservation and rehabilitation are not feasible and relocation measures at:e rnade. In L9BB, in the Global Strategy for Shelter to Lhe Year 2000, adopted l:y the General AssemJ:ly i.n its resolution 43|LBL, the "fundamental ol2liga[ion (of Governmen[) to protect and improve houses and neighborhoods, ' rather than damage or des[roy then" was . recognized. Agenda 2L' sbated tha[ "people should be lrrotec[ed by law against unfair eviction frorn their hornes or lancl". In the , Habitat. Agenda Governments commitLecl Lhemselves to "protecting all people frorn, and providing legal protection and reclress for, ' forced evictions that are contlary [o the law, bahing humgn righ[s into consicleration; [ancl] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions il.-"'--'-' Page 33 of t57 \[-

(x) Annexure;I of tlre R.eport of the Specia.l , lays down some basic principles ancl guidelines on clevelopment based evicLions.and displacement. It provicles the cruidelines on relocation of the displacecl which read as follows : "52. Th.e Goventntent and anyr other partii\p for wst contpenbation and swff;icient a.ntemtative accornntodation- . or restitutiott wlten feasihtre.^must do so itnmediatelv wpon ilne euictian. except in cases of forqe rnqjeure. At a rninimum, regardless of the circum.sl,ances and without discrimination, cornpetent au[horities shall ensure that evicted persons or groups, essential food, potable water and sanitation; (b) .basic slteltey and housittE; (c) appropriate clothing; (d) essential rnedical serwices; (e) livelihood sources; (0 fodder for livestoch and access to common property resources previousiy depended upon; anct (g) education for children and childcare faciliLies. Sl.al,es XXX

¶55Identified relocation sites mus[ fulfil tlie criteria f.ot adequate housimq accorcling to in[ernational human rights law. These include: securitlr af,fordalttre

(a) of tenure; Xtousi-no:

(a) Xxx

(c)

(d) Itah,italile housing providing inhabitants wi[ir adecluate space, protection frorn cold, darnp, heat, rain, wind or other Lhreats to heal'th, structural hazards and disease vec[ors, ancl ensuring the physical safety of occnpanl.s; XXX

(d) No affecLed persons, groups or corntnuniLies shall suffer detriment as far as their human righbs are concerned, nor shall tireir right ,to the - continuous inrprovernen[ of living conditions be subjec[ to infringernent. This applies eclually to hosL communities aL resel.LlemenL siLes, a4d affecLecl persons, groups and comrnunities subjecLed t6 forcecl eviction; XXXX W,P.(C) No.75239/2004 separated as a result of evictions. Page 34 of I 57

¶57ILehahiJltation policies rnusl, include progralnrnes designed for .wornen and rnarginalized and vulnerable groups [o ensure tlreir equal enjo5rrnent of the hutnan tiqhts to hawsins, food, water, health, education, worli, of tlte degrading treatrnent, movernenL. cruel, inhuman and freedorn

¶58Fersons, gx"oups or comnxx.nxnities affected lty an euiction should ttot suffer detu:intent to tlteir ltuman rigtrtts, includingr tlreir right to the progressive realization of ilte t:igtrzt to adequate lzousing. This applies equaliy to host communities at relocation siLes. " (Ernphasis' supptied) ^ TIre UIV Cammittee on Econotmia-Sociatr amd QU!!W"aI Riqltts in Maw. 2O08, in its Cottc.[izcilittw Onse@, called upon the Inclian governmen[ q+ ol: of 3,2. the observations relating to India as a state party, statecl as follows:- 'Ihe Cornmittee is concerned al:out the laclc of individuals and groups, including those living in srums who are _reporLedly growing in numbers, by providing thern with low-cost housing units. The comrnittee also rJ:gre|.s tlrat suflicient information was noL provided the State party on the extent ancl causes hornelessness in Lhe State parfy. Tire Comrnibtee also requests the State party to i:rovide, in its next periodic reporL, detailecl inforrnation on hornelessness in the state party and the extent of particulariy to address the issue inclu.di.ng the need for disaggregated of rising hornelessness, data on the homeless. In it specifically of

¶70The comrnittee urges the state party to adclress' the acute shorbage of afforclable housing by aclopting a natiolal sLrategry.?r,d a plan of action on aoeq.rite housing and builcling of providing low-cos[ rental Page j5 of 157 housing units, especially for Lhe disadvantaged aud low income grolUls, including those iiving in slurns. In this connection, the Cornmitte.e remimds tlte State partv of its obliqations under 'A;'ticle 1'L of, tlte Covenant and refers to its General Cotntnent IVo. 4 ott the ttoa 'L99L ide the Iicies. ttee also iequests the State partv to prouide. itt its next petiodic report. detailed infonnation on homelesshess in the StatE partv and ilte extent of maAequate nousin sex. aaste. ethnici . 71-. The Connntittee rea'otntnends that t"lrc State partv take itnnnediate .tneasures to effeativenv enxton'ce ihiti. disptracetnent and forced euictions-and eteswte that persons .euicted from their homes anal tranc{s he prouided with. adequate contpensation and / ot' aff,ered altetitative accomtnodatiott, in accordance with Lhe guidelines adopted by the CommitLee in its . General Comment No. 7 on forced evictions (l-997). The Cornmil,l.ee also recommends that, irrior to irnplemenbing developmenb and urban renewal projects,, sporting events and other similar 'acbivities, the State party should under[ake open. par[icipatory and meaninqful consultations with affectecl residents and cornrnunities. In this connection, the Commibtee draws the attenbion of bhe StaLe party to its General CornrnenL No. 4 on.th.e r:ight to aclequate housing

(1991) and furLher requests [he Sbabe party to provide informabion in ibs next periodic reporl, bn progress achieved in this regard, including disaggregatecl statisLics reltiting to forced evictions."

¶33The above narration would show thab the internationai covenants and ins#uments refer to basic human rights. AII of v{ them have recognized essential for survival. right to shelter as a basic human riqrh[. IL needs no elaboral.ion that the concepb of human rights emanates from tire ancient doctrine. of natural righ[s basecl on natural law. The e"periences of the posL-Second worlcl war which brought forth the InternaLional char[ers and conventions leading to the emergence of the presen I day human fig]rts. The first docurnenl.ed use of Lhe expression 'hurnan righLs' is to be founcl in the charter of Lhe 'tt --- Unitecl Nations, acloptecl on 2Str'June, 1-945. This Charter was of course no[ bincling but stated that it was only an ideal to be later clevelopecl. By adopting the Universal Declaration of I{uman Rights in Decernber, L948 the UN General Assembly tooh the concrete step of formalising the various hurnan righl.s. This was followed by'the International 8il1 of Rights. The d.eficiency in the bincling nature of the declaration was rernovecl by the U.N. Genefai Assernbly by adopting on L6tr' DecentlleL, l-966, firstly, the Cgvenant gn Civil ancl Politica1 Ricthts which forrnulatecl legally enforceable rights of the incliviclr,ral ancl, secondly, bire Covenant on Economic. Social and Cuitural Riqthl,s which was addressed to the states to irnplernenL thorn l:y legislation. These covenan[s came into force in December, l-976 after ratification by the requisite numl:er of rnember s'[ates. aclop[ecl on ]-6t" December. 1966 and bincl this country

¶34'Ihe above narration shows tha[ homelessness nray resr-rlt frorn several causes including natural disasters; developrnen[ projects, economic deprivatioir as well as hurnan righ.Ls violaLions.' International law terms persons who s[ancl displacecl from Lheir countries as "refugees" and recognizes that they are entitlbd [o protection frorn being returnecl [o places where their lives or freedorn could l:e l.hreatened.

¶35At the sarne time there are growing insbances inuenr'ationally of persons ancl even commullities who are compellecl to abanclou homes on account of [hreat of imminent violence or stand forcibly evicted by use of violence ancl compellecl to relocabe to other places even within [heir own "llj--' counl.ry. They cannot teturn to their homes within thc boundaries of their own countries in the face of the continuing [hreert of persecution ancl danger to [heir properties. Such . persons cannot.be termed as "refugees" as described by learned counsels for [he petitioners. In international parlance, pe]:sons compelled to reloca[e within the boundaries of Lheir owll countries stancl. categorised as' "nnterna"f.ny D.isplaced Persgnd' (abl:reviaLed as' IDP s hereafter).

¶36Tihe presenL pe[itioners along wi[h several o[her families, have been compellecl to relocate wiLhin Inclia qncl woulcl therefore fall uncler the category of such internally displacecl persons ('IDPs') who have received eith.er insufficien[ o]: no protec[ion by the State, frorn or during their perseculion. 37 : Except that IDPs are forced.to'flee from their hornes to anot.lrer location with their own country, refugees ancl IDPs appear to be similarly situated. However, inl.ernational covenan l,s respect the principle . of non-interference with th.e iu[ernal poli[ics of one country, and consecluently [here exis[ no inl,erla[iona] convenl,ions relating to IDPs.

¶38The UniLed Nations High Cornm.issioper for Refugees has recognised that the IDPs also face Lhe same problems as internaLiona] refugees and require. to be treal.ecl with dignity by their own governnrents wittr full respect given to bheir basic human righbs. 39' In this regarcl, a guicling clocurnent has been frarnecl by Fraricis Denge, the representative of the secrelary General of the uniLed Nations on Internal Displacecl persons, in lgg8 wiriclr is titiecl as " Gutidinq ' Ftitzcipies a,nn nnteruan Page 38 of. 157 I plgplacemelnt' which was presented t"o the UNCHR. The .Cornmission in a unanirnously adopted resolu[ion toolc no[e of [hese prlnciples which address the specific needs of internally displaced personq worldwide and identify righbs ancl guarantees relevant to tire protecLion of persons from forcecL clisplacernent aucl [o their protgction and assistance cluring clisplacemenb as weII as d.uring return or resetblernent and. reintegration. Tire 'introduction to these Guidelines defines "Internally Displaced Persons" ('lDP's) in Clause 2 as foIIowS :- '."2. For: the purposes of these principles, inbernally displaced persons are persolls or groups of persons who have l:eOn forced or obliged to flee or to leave their It"om.es or places of habitual residence, in particular as a result clf or in order to avoid the effects of almed conflict, situations of generalized violence, violations of human ' rights or natural ol human made disas[er's, and who have not crossed an internationally recognized State l:order."

¶40So far as housing of IDPs is concernecl, bhese.guideiines contain the following imporLant provisions :- ' ".Ftrinnciptre 3 L.Nationai authori.ties have the primarlr dutlr and responsibilitJr to Brovide protection and humani[arian assistance to internirlly displaced persons wi[hi.n bheir -lurigdisUeu

2.Internalilr displaced,persons hqve the ricrht to ' recluest and to receive protection and humanitarian assistance frorn these authorities. They shall not be persecuted.or punished for making such a request. Ftinciptre 7 Prior to any decision requiring the displacernent of persons, Lhe aubhoril.ies concerned shall ensure tha[ all feasible alternatives are explored in order to avoid displacerrrent altogether. Where no al[ernative exisf,, . all rneasures shail be taken to minimize clisplacernent and its adverse effects. proper accomrnodation is provided l"o the displaced persons, that such displacements are effectecl in Page j9 of I 57 5t 52-salisfactory conditions of safety nutrition, heallh and hygiene, and that members of the same family are noI separated

3.If displacement occurs in situations other [iran during the emergency stages of armed conflic[s and disasters, the following guarantees shall be complied with :

(a)A specific decision shall be taken by a S[ate authority empowered by law to order such neasures;

(b)Adequate rneasures shall be taken to guarantee '[o Lhose to be displaced full inforrnation on the r:easons and procedures for their displacement and, where applicable, on coilrpensation and relocation;

(c)The free and informed consent of those [o be displaced shall be soright;

(d)The authorities concerned shall endeavonr to involve those affected, pdrticularly women, in the planning and management of their relocabion;

(e)Law enforcement neasures, where recluired, shall l:e carried out by competent legal authoriLies; an,d (flTlie right to an'effective remedy, including the review of such decisions by appropriate judicial au.thorities, shall be respected. Frinciptre I Displacement shall not be carried ou[ in a il]annel: that violates Lhe riqhts to life, dignity, liber:ty'and security of those affected. XXX Frirtcinile n 4 1-.Everlr internally displaced person has the righ[ to rement and residence. r

2.In particular, internally displaced persons .have the right to rnove freely il and out of carni)s or oLher seLLlernenl,s. ' XXX Frimciptre L5 InternallJr displaced persons have:

(a)Ttrte risltt to seetrr safetv in another part of [&e cou@,. (l:)The right to leave their counbry;

(c)The righL to seek asylurn in anot"her country; and

(d)Ttrte riqht to he protected asainst foraible g'etwrn to or resettlentent in anv place where .t$elr nfe. safeW. nne @t rnsk. XXX s9 Fr"irtcip.[e L8

1.A11 in[ernallv displaced persons have the righl to an adecluale standard of livinq:

2.At the minimurn, regardless of 'bhe aZrcumstances-ana wlt pgmeetent authortti dlselaceA persons [e,

(a)Essenbial food and potable wa[er;,

(b)Basia sh.elter and hor.tsinq;

(c)Appropriate ciothing; and ( d) E ss en bial ne dical ser-vices and sanitation.

3.Special efforls should be made to ensure bire full participation of women in th.e 1:lanning and distribution of these basic supplies. XXX Fr"inciptre 2n l".No one shall be arbitrarily deprived of proper[y and possessions.

2.The proper[Jr and possessions of internally displaced persons shall in all circurnstances be protecLed, in particular, against the following' acts:

(a)Pillage;

(b)DirecL or indiscrirninate atLacks or other'acl.s of violence; .(c)Being used to .shield military operations or: objec[ives;

(d)Being rnade the object of reprisal; and

(e)Being destroyed or appropriated as a form of collec Live lrunishrnent.

3..Pt'opetW and possessions tref,t benfind hv, intemtaXly disptraced persoms sltonld fu,e pro,;tegtegtr p$ainst destrwction and atbittaty and innematr pg,pw-opriation, occ upation or ws e. XXX Frinciple 25 assx, o intemta.n. glselaceA eersons l XXX Seatio.tt \/. Frinciples relat-ingr re,s e tttr e tn e n t an d re in te Eta ti ort Frinciptre 28 to retutm, LCo ,tf,t au have tqg *eil,,, as pt"oride ' lgltg"naily. dtsplac _"ol*nt^ntv. ln s^ Page 4t of 157 5\ !"eparati@n." +L. llhe Uni[ed Nations shall endeavour to retulned or resettled Charter thus establishes the hontes or p.Iaces of t oluntarilv in . Such authorities facili[ate [h.e reinbegration of internally displaced persons.

2.Special efforts should be made to ensure tire par[icipation of internaily displaced persons in 1:lanning and rnanagernent of their return rese tLlernenl. and reinte gration. Fr"incfuial 29 L.Internally displaced persons who have returned to ilreir homes or plaies of habitual residence or wnto .lwve resemeA m anotne ,strlall ilot .be disariminated aqainst as a result of their having been displaced. They shali have'the right to participate fully and equally in public affairs a.t all levels and have eqrial access to public se'rvices.

2.Cornpetent autltotities have ttrte du.ttv. and .reseonsiIliliW to as ,tntemtallv displaced persons to recover, to the :ext;ettt possi.b.le, their propertv attd possessians .u@rcn mev rcn nen*t _wpon their disptracement, Wlten reaovew'of p_Uck raroeenv and posses :competent autltotities shall prouide ar assist .tnaese pe{sons in obtainins atapfoptiate Wnneensation ' or anq fr.rII the or obligation uporl member nations to promoLe the hey human riglrts. The Universal Declaration of l{uman Righ[s, 1.948 though n9t a treaby, ,but is a declaration publishecl by the General Assembly of the United Nations and is the primary docurnent which is concemecl wibh the listing of tire rights. It alfirmativeJy lays down th.e comnron standards of achievement for ali peoples and all nations. It consequently has an effect which is sirnilar to a treaty. Furbher eyery nation who is a signatory bo the aforenoticed International Covenanl, on Economic, Social ancl Cultural Rights ('ICESR') must refrain from acbs which woLrlcl defeat the object and purpose of the covenanL. The prearnble l,o SY the ICESCR esLablisires that "Ehe icleal of free human bejngs eqjoying freeclom from fear and want can only l:e achievecl if ') conditiorrs are created whereby everyone may enjoy his econornic, social ancl cultural righ[s as we]l as his civil anct polibj.cal r1ghts". ' Ar[icle Lt of t]ris covenant emphasises thaL the s[ate parbies recognises the right of every person to an adeclual,e s'[anclarcl. of living which inclucle aclecluate housing ancl conlinued irnprovernent of livirig condil.ions. The right for people to l:e free frorn want is the ver1l founcla[ion of [he ICESCR.

¶42'fhe international hurnan rights law l,hus esl,ablishes a legal obligation for ensuring minimurn *elfare guaranLees. fhe conven[ions, treaties and-declarations as well as the guicling principles rnanifest the interrrational consensus that every na'bion has a duty to ensure and provide these guaranl.ees inclucling, inter alia shelter and. basic general assistance l.o eve'qF llerson on i[s soils.

¶43The afolenoticecl in[ernationa] conven[ions which exist as well as the Guicleline Principles for IDPs therefore recognize that sirelter ancl housing is a basic hurnan right of every incliviclual which is the bare miniilum [o be irr"oviclecl to in [eirrally clisplace cl p ers ons. These Principles also ernphasise aII rights of displacccl person.s ancl caste a rnandate on the national auLhorities concei'ned of Lheir primary cluty ancL responsibility [o provicle protecbion ancl humanibadan assistance to internally displacecl Ilerson.s within Lheir jurisdiction which includes their righ[ bo sf" safety as well as probection againsI forcible re[urn ancl resettlernen[ in a place w]rere their life, safety, libbr[y ancl or healbh would l:e ensurecl. The Guiding Principles have lteen evolvecl af[er an elaborate consultal.ive process.

¶44Before proceeding any furth.er, it is necessary to examine the binding'ness of.the above principles on l.he.courLs in Inclia. The extenL, manner and applicability of International ConvenLions and treaties in interpretation ancl expansion of righ[s, have been apthoritatively considerecl ancl are wel] settlecl l:y a cal,ena of l:inding prececlents of the Suprerne Courb. In the anthorital"ive . pronouncement reported. aL JT7oos(ryscn tr, 200{f@)SC,4LE6g Entertaintient Network @ndia) X.td" Vs. susortt' cassette htdwstries Ltd. the Supreme courb tracecl the evoluLion of the jurisprudence on the issue uncler consicleral.i'on in paras 48 to 54 which may usefully be extracl,ecl and::ead as follows:- MANU/SC/0445/L973 : AIR L973 SC L461, bhere is indeed no dearth of case laws where Lhis CourL has applied the norms of international laws and in par[icular the internabional covenants to interpret clomestic legislation. In all these case$, this Court iras categorically held that there would.Jre no inconsistency s to tne oolnestlc C observed: "It is also well-se[tlecl Lh.at is onsoinq attd wittrt the *assaore of W.P.(C) No.15239/2004 . "48. Beginning from the decision of [his Cour[ in ion of S Page 44 of I 57 w ntav have to he found out wittrtitt the constltutiorial scheme. Horizons of con$titutional law are expandinq. "

¶49In bhe aforementioned judgmen[, this purpose of treaties and conventions. Yet again in Indian l-Iandicrafts Emporium and Ors. v. Union of India MANU/SC/0640/2003 : AIR 2003 SC 3240, this Court considered the Convention on Inbernational Trade in Endangered Species (CITIES) and applied the principles of purposive constructions as also not only the Directive Principles as contained in ParL IV of the ConstiLution but also Fundamental Duties as con'bainecl j.n Part IVA thereof. Referring to Motor General Traders ancl Anr. v. State of Andhra Pradesh and Ors. MANU/SC/0293/1-983 : (1986) L SCR 594, Rattan Arya ancl Ors. v. State of Tamil Nadu and Anr. IvIANU/SC/0550/19B6' : (1-986) 2 SCR 596 .and Synthetics and Chernicals Ltd, arid Ors. v. SLate of U.P. And Ors. MANU/SC/0595/1989 : AIR 1990 SC L927, 1;his Court helcl: "There cannot be any doubt whatsoever that a law which was at one .iroint of tirne was constitutional may be rendered. unconsti[utional I:ecause of passage of time. We may note [hat apart from the decisions ciLed by Mr. Sanghi, recenLly a similar view has been tahen in IGpila Hingorani v. State of Bihar . (supra) and John Vallamatbom and Anr. v. Union of India (supra)."

¶50These judgments were referred [o in t"he decision of Liverpool and London S.P. and I Asson. Lbcl. v. M.V. Sea Success I and Alr. MANU/SC/0951-/2003 :

(2004) I SCC 5'I2, wherein this Court observed that eg Ao smtwmry law in m lpteroretative cha'noes. if, anv. tnust. ,tltws .be. gTtade -ltavinq reqard to the ever chansino slohaX s@e,. Liverpool.also referred for the proposition" tlrat Lhe c.han i$'mind hauinq resard,to the fact that thbre daes got exist amv ntimar'act touchimq ilte suhfect AnA m ansence of ah g@r"@!y. .Comcurrinq witlt the said decisiotts it v!,as Xtowever apined. that the satme cowtral nat We@n that it restfiited tke iufisidiction of ilte

¶51to plethora of cases inter alia rhe state of wes: Bengrat v. Kesoram Industries Ltd. & Ois il' MANU/SC/0038/2004 : (2004) 2 66 ITR 721(SC). In Pratap Singh v. State of Tharkhand and Anr. MANU/SC/0075/2005 : 2005 CriLT 3091 wherein this Court directed to'interpret the Juvenile Jus[ice Act in light of the Cons[itutional as well as InLernational Law operaLing in the,field. (See also CentroLrade Minerals and Metal Inc. v. Hindus[an Copper Limited IVIANU/SC181.4612006 : (2006) 11 SCC 245 : State of Puqjab; State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. MANU/SC1096I12003 : (2004) IL SCC 26 and Anuj Garg and Ors. v. I{oLel Association of India and Ors. MANU/SC/8I73/2007 : AIR 2OOB SC 663:

¶52However, applicability of the Inbernabional 'Conventions and Covenants. as also the resolutions, etc. for the purpose of interpreting dornestic s[atute will depend upon the acceptability of tire Conventions in cluestion. If the country is a signatorv theieto subject of course to the provisions of the dornesl,ic law, tire International Covenants can be utilized. Where International Conventions are framecl upon under[akjng a ereat dea] of exercise upon criving an qfpor:tuniLy of hear a[ several levels as also upon taklnq ir'].bo consideration the different societal conditions in different countries iLO Conventions, the couirt would freelv avail the benefiLs thereof. Those Conventions to which lndia may riot be a signatory.but have been followecl blr way of enactment of new Parliarnentary sta[u[e or amenclmen'[ to Ehe existing enactment, recourse to In[erna[ional Convention is permissi]rle.

¶53This kind of stance is reflectecl frorn tlre decisions in PUCL v. Union of Inclia MANU/SC/02741L997: AIR L997 SC 1_203, John Vallameittom v. Union of India MANU/SC/0480/2003 : AIR 2003 SC 2902. Madhu Kishwar v. State of Bihar MANU/SC/0468/L996: AIR 1996 SC 1864. Kubic Darusz v. Union of India MANU/SC/0426/1990 : 1990 CriLT 796, Chameli Sirlgh v. 'State of n Council Y= 4.K. Chopra MANU/SC/00L4/].999 : (1999t 1 LLT .962 SC. Kapiia Hingorani v. State of Bihai SC L,ilr"rpool &.Londou S.P. & I Arrou. Lt.l. ,r. M.V. Suu S.,.."tr I MANUiSC/O951/2003 , (2004) 9 SCC S12.

¶45Vvith regard to the application of Idternational conventions anc'L trea'Lies in India, the supreme court taict the following principles in para 47 of the juclgment :- Page 46 of t sf s7 "In interpreting the domestic/murricipal laws, this court has exbensively macle use of Inbernational law inter alia for [he following purposes :

(i) As a means of interpretatioir;

(ii) Justification or fortification of a stance takery : , (iii) To fulfill spirit of international obligation which lndia has entered into, when they are not in conflict with the existing domestic law;

(iv) To leflect international changes and reflecI the wider civiliza[ion;

(v) To provide a relief conl,ained in a covenan[, but not in a national law;

(vi) To fill gaps in law."

¶46ht,A[It nggT SC SOIL Vishaka and ot-hets Vs. State of fitajasilean and otlters, the court was concernecl with a writ petition filed for preservation and enforcernent of the right to geircl.er ecluality ancl funclamental rights of working worner under Ar[icles LL rg ancl 2L of the consr,ituLion of Inclia, section 2 of Protection of Human Righ[s AcL, tgg3 ancl [he entiLlemenbs of woriring women uncler Lhe Convention on Eiimination of All Forms of Discrirninar.ion Agains[ women. There was no specific domestic legislation on the subject. wittr regard to the importance and applicabitity of inte::national conven[ions and trea[ies, the court he]cl as foilows - i7. L the absence of .domestic law occupying Ltre field, to formulabe effective measures to crrech Lhe evil of sexual harassment of working wornen at ail worlc places, the conl,ents of Internati.onal conven[ions ancl ncjrrns are significant for the purpose of interpretation of the guarantee of gender equality, right to worrr wi[h human dignity in Articles L4, ts, tg(t)isr) ancl 2l-of the constitution and the safeguards . against sexnal harassment irnplicit therein. Any' Inbernational Convention not inconsistent with the ftinclamenbal lights and in harmonv with its sbirit must l:e reacl inLo [lr*r" ]rronirionr to unlutgu thu ,.o"orring uu.l .otrtuu[ thereof, to prclmotg the object of the coiisJitiltional guarantee. This is implicib from Ar[icle 51(c) and bhe enabling power of the parliament to enact laws for implementing the'International conven[ions ancl Page 't7 of 157 6o norrns by virtue of Arbicle 253 reacl with En[ry L4 of the Union List in Seventh Schedule of the Constitution. Ar[icle 73 also is relevant. It provides [hat the executive power of the Union shall extend to the rnat[ers with resirect to which Panliament has power to make laws. 'The exectrtive power of the Union is, . therefore, . availhble LiIl the Parliament enacts legislation to expressly provide measures needecl to crirb the evil. 47 . In (L999) L SCC 759 Apparel Expot"t Ft'ontotion Cowmail us. ,4,.n{. Chapra, also the Suprerne Cour[ was clealing with the case of sexual harass'ment at the place of wor"lc which vitiaLecl l,he. working environment and observecl that the in1ernaLional instruments cast an obligation o11 the Inclian Sta[e to gender sensitise its laws and that the courl.s are uncler an obliga[ion to see that the rnessage .of the interna[ional instrurnents is not allowed to be drowned. 'Ihe Suprelne Cor.rrt again ernphasisect that the courr.s must never forget the core i:rinciples ernbodiect in Internabional Conventions ancl Instruments and reiterated the above principles.

¶48In (2OO3) 6 SCC n X{apila I{inEorani W. State af Bi.ha4 the Airex court "stressecl on the imlrorl.ance of resi:ecl,ing Interna[ional Treaties and Conventions while interprebing [he ConsLiLu'tion and clornestic iaw so as to elTecLuaLe'the recognisecl rights and ol:served as follows- "47 . It is also well-settled that a statube shoulcl be ' interprebecl in the light of the International Treaties ancl 'conven[ions. .In chairrnan, Railway ' Boarcl ancl Ors. v. Mrs. Ch.andrinra l)nc ar-rrl 00 : 2000CriLJ1473 this Court. v+e. - srJrvrvvrvv-L sbated bhe law thus:- "24. The International Covenanl,s' ancl Page 4B of I 57 tj d0/ appliaalailitv of, tlte Universal Deelaratiott r of, Efw.rnan Biqhts and t;Ite princip,.nes . intb ttrte domestia iurisprwdence." '49. As noLiced-above, right to resiclence ancl to settle in any part of the country is assurecl Lo every citizen as a fund.amental rigirt uncler Ar[ic]e 19(1)(e) of the Consbitution of Inclia. (Ref :

1.997 (11) qAA L2L ,A-hntedahad Mwticipal Ca'tVtot'atiott vs. Nawab K,ltan GuIaIt f{han & Ofis.) The r:ight to shelter springs from ttris right aucl has been considerecl to be an inbegral 1:arb for a meaningful eqjoyrnent of right Lo life under Article 21" of . the Constitution of Inclia. (Ref. : L995 Suppn. 3 SCC 456 : A,nR X996 SC nn4 U.F. Avas Euant Vikas Farisnmd &,4.nr. Vs. \ Ftiends Co-opetative I{ousing Society Ltd. &,Attt".)

¶50In [he instant case also there is no specific domcstic , legislabion al. all for inLerndiiy displaced irersons. As no[icecl hereinabove, l,here aie also no Internabional Convenl.ions . governing rights of such persons. It is now an accep[ed rule of juclicial cons[ruction that regarcl must ]re hacl [o interna[iona] .convenl,ions, norrns ancL guicling principles for constrning r' domesl,ic law when there is no inconsistency between them ancl there is a void in the domestic law. 51-. It is noteworthy that bhere is ro specific IaW, rule, regulation or instrument provicling for treatmen[ of IDPs or setting out any rninirnurn sLandarcls for . their protection, rehabilita[ion and relocation. The Guicling Princip]es on . Interna] Displacenrent reiterate tite veqF right to shel[er cons[il.utiona1ly guaranteed and recognizecl as a ]:asic hunal ' rigtit in the international instruments. These Guiclelines r.lius Page 49 of I 57 bz-consolidate and fill gaps in nal.ional and international law relating to such. displaced persons. They also provid.e a valual:le benchnrark for. what must l:e ensured as part. of the basic human" righ[s security of such persons ancl woulcl guicle consiclerution of the rights of the present petibioners.

¶52l[ has been observed by the Suprerne Court tn (2008) 6 SCC n X{apila E{ingorami Vs. State of, Bihar. that indisputably, the s[a[e parbies to the International Covenant on Econor4ic, social & cullural Rights were to take appropriate sl,eps to ensure realisation of this Lhought. So far a_s the present case is concerned, this covenant specifically-staLes Lhe righL of everyone to an adequate standarcl of living including housing.

¶53The rules laid d.own ancl right recognisecl in [he aforenoticed convenl,ions as well as the Guicling principles would bind [he present a{uctication also in the light of the following principle laicl clown in Entertaimntent lVetwol:trr (supra):- "54 Furl,herrnore, as regarcls l.he ques[iorr where ' t'h.e protection of hurnan rights, environment, ecology and other second generation or bhircl-generatioir righ[s is involved, the courts shourd not be loathe bo refer l,o the International Conventions.,,

¶54The peLi'tioners are memr:ers of the larger group frorn their comrnunily which stancls fo::cibly evicbeci from one parb of the country renclering them lromeless and resourceless. They are withou[ resources at the place of their relocation ancl are faced wiLh the tlr.reab of forcible evic.bion from [heir acco:mmoclation. By way of these writ jretitions, the pebiLioners seelc probecLion and enforcement of their funclarnenLal righL [o life which inclucles shelter. The internal.ional convenl.ions page 50 of t Sz 6> recognise shelter as a basic hurnan right. The Guiding Principles reiterate the same rights ancl responsibiliLies of bhe staLe so far as IDPs at:e concerned. Consideration of the petitioners' righl.s, therefore, would. uecessarily involve ensuring tl.re olrjec[ives and clec]arations macle in the al:ove. internationai insl.rumen[s especially those endorsed by Inclia reitera[ecl by the Guiding Principles for IDPs. TIte Protection of Hutnan Rigrltts Act 1993

¶55The isstie in the instan[ case has another.climension Lo it which is of irnportance. In discharge of the obligation unclef the international covenants, India promulgated an orclinance appointing cotrLlnissions and cour[s for the probection of human rights. This ordinance. was replaced by the Frotectia,rn of wwryn Mqntu act. ag93 was promulgateil on B.tr' January, L994 to provicle for the constitution of the. national ancl s[ate hnman rights commissions ancl human rights courts for be[ter: Probection ancl for matters connected therewiLh' or incid.enLal blrereto. 'Huntan dgltt! are clefinecl in clause (d) of sub-section

(1) of section 2 as the'figltts relating to life, Iiberry, eguality and digttity of the indiuidual guaranteed'Ity the Constitut'ion ot-embodied in the Interttational Covettants and etforcealtle ltv cout'ts in fndia' . Tlre expression 'intentational covenant! is also clefin..ecl to inclu.de l,he Lwo covenanLs acloptecl by the General Assembly on L6u' .December, 1-960 and such other covenan[s ancl conven[ions adopted by the Generai Assembly of the unitecl Nations as tLre central Governrnenu may specify by notificar,ion. The enforceqJ:ility of the several rights recogniseci uncler [he W.P.(C) No.15239/2004 Page.5l of 157 International Covenants, 'Lherefore, sl.ancls recognized by Lhis legislation in India., The said Acb was made by tire Parliarnen[ having regard [o the changing social realities and growing. concel:n in India abou'L issues relating to hunr.an rights wiLh a view of bringing about greater accountallility and bransparency in enforcemenL of the laws of the nation.

¶56It ls essenLial to note that in facL no new right is being createcl, recognizecl or'reiteratecl by the inLernal,ional insfrurnenbs or the said guidelines. The ::ighl to shell.er of every per-son has lleen r"ecognized as an essen[ia] concornitant of righ[ to life uncler Article 2L of the Cons[ibution of InElia. It worilcl i clear'ly be covered under the clefinition of a 'human right' uncler secbion 2(1)(d) of Lhe ProLectj.on of Hurnan Rights Act, Lg93 which inclucles right reiating to life, liberty, ecJuality and dignity. The r:ighL to shelter, an essential part of right to life, woulcl therefore also be a statutorily recognizecl right uncler Secl.ion 2(t)(d) of [he Act of 1-993 ancl enforceable as such a]so. The present petitioners, as persons crisplaced from uheir homes and s[ate, by way of these writ petitions are thus, seelcing enforcemehf of such right [o shelter.

¶57T'he al:ove cliscussion woulcl show tha[ state cour[s are bound lo use internaLional human rights covenanl,s, which also .s[and incorporatecl into Lhe protection of Fh-rman Rlgh[s Act, l-993, as a piilar of supporb for the rights recognisecL thereby and [o ensure the recluisite assistance as well as access l,o shelter as a positive right so that the bare rninimrirn for those in need is enabied. The petibioners assert such rights in Lhe challenge laicl in,these writ petitions. W.P,(C) No.15239/2004 e\ Page 52 of t57 6t Q_ Weilter the statutorrr prouisions of Fuhlia Fremises wauld have the eWct of defeatinct the aonstitaftio,nan A@tS 0f tke petitigners,. iltenti'

¶58On behalf of the respondents, it is rirgecl that [he allo'LmenL of bhe quartels to the petitioners (or their predecessors) stancls cancellecl. They are therefore in unau.thorised occupabion of the Government accornmoclaLion ancl 'therefore liable to be evicted under the provisions of the Public Prernises (Eviction of unauthorised occupants) Acl,, r971,. Tiie subrnisbion is that the proceedings taken by the responclen.ts and the orders passed againsb the petitioners were justifieci ancl are in accordance with law.

¶59on the other hancl, the petiLioners have.urgecl l,hat even in their wildest drearns, they had never envisagecl a situal,ion wiren they would nol" be in a position to reside in their own hornes after retirernenL. on u..oirnt of grave threa[s Lo their. safely, the pe[itioners have been prevented frorn re[urning to their hornes. The peLi[ioners are not residing in Delhi on account of a desire not to rel,urn [o the valley or to perpetua[e resiclence in Delhi, but for reasons toLally beyond control of bhese rretitiolcr:s. The wriL petitioners have stated thaL their hornes in Kashrnir-have ei[her ]reen destroyecl or renderecl inaccessible [o them primarily on account of bhe inability of the responclenbs t,o protect the sarne. They clo not have aclequate means to accluire any property in Delhi. It is the petitioners contenLion that Lhe I pension adrnissible [o thern does not enaJ:]e Lhe:n to a.ffor:d rentecl accolnuloclation or acquire tireir owl ltouses. ]lhe petitioners have submi[bed that the respondents have permiltecl similarly situated persons to continue in [he alioL[ect . -4... I accommoclal.ion. Reliance is also placecl on orclers of the Su1:r'erne Court, this Court and the Central Adrninistrative Tribunal also prohibiting eviction of sirnilarly placed pelsons . frorn allot[ecl accolnmoclation. In this background,.the petitioners assail also the failure to consicler their requests to the responclents to exelcise . discreLion vestecl in them under the Allotmeul, of Governrnenl, Ilesidences (General Pool in Delhi) Rules, 1963 to permi[ the pel,il"ioners l,o continue to occupy the alloLted prernise.s. IL is urgecl that this refusal was cliscriminaLory, arbitrary ancl iras failed to consider the relevant circumstances.

¶60It is contended by Lhe petitioners [hab in these facts, [hey are uol, in unaul,horizecl occuiration of the quarters and tha[ the . . respondents could not have taken recourse Lo proceeclings under the Public Prernises Act, 1"97I which woulcl have Lhe effec[ of ousting then and their families frorn their only lesiilence wibhoril, [ahing steps of rnaking provision of reasonable alternatives. The contention is tha[ bhe enl,ire ac'Lion taken by 'ttre respondents, and implernentabion of []re threat of forcible, eviction would result in violation of the funclarnental ancl basic human righbs of the pe[itioners ancl, therefore, is unconsbiLutional, without juriscliction anci cdrnpletely ittegal. W.P.(C) No.15239/2004 Bindin a j tt dicial p re c e den ts

¶61So far as the condil"ions which were in existence in [he sta[e of Jarnrnu & I(ashmir, the restor:ation of normalcy ancl [he 'circurnstances in which tlrey are occupying 'bhese quarters are corcernecl, reliance has been placed by the petitioners on the proceedings ancl orclers passed. in several sirnilar cases prior hitherLo which have been cornpletely ignorecl by the responclents. Abtentioir is drawn to the orclers of ilre Suprente Cou.t't of India in SLF (C) No.763g/Lggg Sltt:i l.n-. Koutr & ,A,nr. I/s. State oflanunw & X{ash.ntit- & Ot.s. ShriJ.L. I(oul & the other pe[itioners in this case were Kasirmiri pancli[s who were ernployees of the State Governrnenl, ancl being S[aLe Governmen[ servan ts, hacl been alloLtecl resiclential accommodations in Jammu between 1989-90. Their houses in the valley were eiLher clestroyecl or Jrrirnb clown by milibants. Eveir though they had retired from service, these pe[itioners were permitted l,o rebain the governrnent accomrnoda[ions in Jarnrnu for safety reasonsj such a step was considerecl' necessary and inevitabie by the State Governrnenl as [he atmospirere was no'l. congenial for the appellanl,s to rel,urn to [he valley, rnore so when they had iost their respective houses.

¶62. It appears t"hat other state government ernployees awaiting allotment of official accommociation, Coulcl noL geL the salne for bhe reason that these retired persons. continuecl l,o occupy. [he official accornrnodation. They fileci a writ pe[i[ion before Lhe Fligh cou.rt .of Jammu ancr l(ashmir complaining agains[ the failure of the SLabe Governrnenl. to provicle thern with oincial accornmoclation. A learnecl Single Juclge of the Lligli w.P.(C) No.t5239/2004 Cou::t of Jarnrnu & Kashmir had allowed the writ pet-ibion ancl passecl a juclgmenL on 24tr'January, 1997 clirec[ing eviction of all thosc persors who hacl ceased to be goverrment servan[s for any reason but were sbill occupyrng the state accomrnocla[ion. The l.earnecl Single Juclge had also direcLecl LhaL the persons wlr.o were noL in . government service but requirecl Governrnent accolnmoclation because of security reasons, sh.oulcl be triecl to tu u".orrlmoclatecl within o.ne colnplex so that their security is ensured, reducing the burden on the. state which woulcl have to incur lesser arnount for their security. 63, ' For []re reason that the state government was atternpting l,o evic[ t]rese occupants without providing thern with alternal,ive acco:mtnodations, a challenge was laid to Lhe judgmen'L of [he single Judge dated Lhe 24rr' of January, 1,997 by a leH.er:s patenL ai:peal. This appeal was dismissed by the Division liench by a judgmenL daLed 14u' March, L997, however, giving an opportuniLy l,o the appeilanLs to approaclr. the appropr:iaLe authbri[y for relief. In.this background, these persons lecl Jry sliri J.L. Koul, filed l,he above special leave petition before the Supreme Court. On a consideration of the rna'H,er, an interjnr. orcler orcler claLecl LLil' April, LggT was passecl by Lhe courl. clirecting the state goveinrnent to rnaintain status quo regarcling l.he possession of [he proper[y 64; Mr, R.K. I{ancloo, learnecl counsel for the peti[ioners has referrecl to cer[ain orclers passecl by the Supreme Conrt of Inc]ia in the saicl i:etition. on 26tr'Augnst. 1g97, l.he sulrreme court had required counsel representing the sta[e of Jainrnr.l & I(ashmir to ascertain from the sbate Government as to whe[her W..P. (C) N o. J 5239/2004 the pelitioners can be put )racl< in to the h.ouses owned by them in the Kashrnir Valley and to ensure pro[ec[ion of thei]: persons as also their properties.

¶65The case was thereafter taken up by the Supreme Cour[ on 28"'January, l-998 when the Supreme Court tooir notice of Lhe rnassacre of Kashrniri Pandits in the l(ashrnir Valley which hacl Lalcen place a few days prior to the hearing and recorclecl [he fol]owing order :- "This orcler is being macle in the backclrop of a massacre of Kashrniri PandiLs which took place a . corlple of days ago in the I(ashrnir valley. Adjournecl sine die. Stay to continue. The pe[ition [o be acbiva[ed on menbioninq by counsel for Lhe S[ate of Tarnrnu and Kashrnir as and when the State is in a respec[ive homes in the Kashmir valley and ensure t.[reir safetJr and ]rersonal propert]i." (Underlining supplied) .

¶66I[ is no[eworbhy that the Suprerne Court ]racl also passecl an order on 3'd Decernber, 2008 (in Shri [,L" Kown & A\hers us. Slarc an_f*f< anrenotl directing bhe respondent-sLa[e to frarne a rehabilitabion scheme within a period of six months and to place the sarne before' bhe court. For the reason that uo' inaLerial or scheme was placed. before it by the resironclents, on l-7tr' selrternber. 2009, the supr:eme couru clirectecl Lhe chief secretary of th.e sta[e to file a personal affidavil, as to wha[ . steps hacl been tahen lrursuant to the orders of [he cour[.

¶67An affidavib date.l ou' october, 2009 was tliereaf[er filecl by the chief secretary in the case. The appeal was clisposecl of Jry a final juclgrnen'7 on 27rtt October, 2009 which stancls reportecl at z'oag u) ,4D sc 2F3 l.L. f,{oail & oiltens vs. state of ianttnu & Kaskmir, So far as rehabili[aLion of'the Kashmir:i Wt.rc) No.15239/2004 nrigrants is concerned, l.he affidavit claLed 6rr'Octol:er, 2009 has been consiclerecl in para 7 of the juclgmqn[ in lhe following terms:- "7 . ht pursuance of the saicl order, the Chief Secrel,ary has filed the affidavit dated 6.1-0.2009. In the saicl affidavit ib has l:een disclosed tha[ out of 54 appellanl.s .23 had already hande.d over the Governmen[ accommodation to [he State Department ancl'the sarne had been allotted to the Governm.ent enr.ployees. OnIy 31-migrants/retirees are presently in occupation of the Governrnenl, accommodabion. It has further been clarified that there are 37,280 farnilies who h.ave been regristered for the relief including the accotltllrodation ancl oul" of thern only 5,000 families Could be provided the accornrnodation in the campS. Flowever, it had been .undertalcen that the Govemrnent would provide such facilities to all I(ashrniri migrants till they are residincr at resent places. The relevant parb of bhe affidavi[ reads as under:- "5. Tha[ it is further subrnitted Lhat Govt. fonnulabed a pachage for re'l.urn and rehabiliLation of Kashmiri Migrants which involves an ou[lay of Rs.l-618.40 crores. This is for the first'birne since

¶990that ome LlD wittrt a too-{icv for Xletunt and Xlelzabitritation otr and Xlelzabitritation of Kashmiri Minrants. The policy has been framed on [lre recommendations of a workinn crroaryt constituted bv Govt. of trndia to suggest various confidence building measures in the J&K State. While frarninq the policlr various needs of the migrants have l:een tahen into coir.sideration, such as hbusing, education, revival of Agricul[ure. ancl Ijlorticulture land, emploSrment e[c. The details of Lhe package announced on str' June 2008 are reproduced as under:-

i) Return and Rehabili[ation Pachagre of Kashmiri Migrants: The total paclcage involves an ontlay of XXs.L6LE.4O ct"ore. The tnain cornponemts of the package are as under: (a) E{ousins

i) Assistance @ Rs.7.5 lac for fully or partially damaged house left behind by rnigran[.'

(ii) Rs.2.00 lac for dilapidated/unused houses.

(iii) Rs.7.5. lac for purchase/consl.ruction of a house in Group Housing Societies for those who have sold their properties during Lire period afLer 1-9Bg and before the enac'LrnenL of "The J&K Migrant Immovable Property (preserwation, tl ' Probection and RestrainL of Dislress Sale) Ac[, 1"997 ". on 30.5.L997.

(b) Transib Accornmoda[ion : Consl,r'uclion of transit accommoda[ion at three si[es @ Its.20.00 clore each for total Rs.60.00 crore. Al[ernatively, Rs.l-.00 lac per family towards ren[al and ,incidental expenses to those farnilies who rnay not .b e accornmo date d in transit accolllmo da [ion. . (c) Continua[ion of Cash Relief to Migran[s: Migrants families at' Jammu and Delhi who are recipients of cash relief and free ration would continue to recej.ve the same @ Rs.5000 per farnily per month (including rations) for a period of two years after their return to the valley.

¶7That it may be further subrni[tecl tha[ unemployed youth were asked to convey their willingness for serving in Kashmir Vatley. In response to the saine, L407 4 unemployed yorith have expressed .their willi.ngness in writing for. serving in Kashrnir valley. B. That iL is furbher submitted thal, a forrn callecl "EXPRESSION OF INTEREST" was circulatecl anrong the migrantq in order to ascertain [heir wiilingness to reburn to valley and so far 1,676 farnilies have expressed their willingness to return Lo valley and avail the concession available under the package.

¶9That it is ftrrther submitted []ra[ lancl at the following three sites have already been identifiecl for cons[ruction of transit accotnmoclation, [he details whereof are as.under: a-Land at Vessu, Disbrict I(ulgam 1-00 Kanals. b-Land ab Qazignrld, District Ananl,nag 25 Kanals. c-Lancl al, I(hanpura, District, Bararnulla 5 0 I(anals

¶101"hat it may be ftrrther subrnit.Leci Lhat 200 flats are nearing completion al" Sheihhpora Budgam. In addition to this, LB fla[s are available at Mabl,an Ananbnag. These fla[s are [o l:e usecl as transit accourlllodation by the Kashmiri migrants who wish to return to valley. The micrranLs shall stay in [he transit accommodation till thev re-l-1. That it may be further submittecL bhat Sbate Governrnent. had also constitutecl aq Apex Aclvisory Cornrnittee to oversee the irnplementa[ion of ' Return and Rehabiiitation pachage for Kashmiri Migrants in the month of Septernber 200g ancl immediaLely afLer the constitution of Lhe Apex Level B Cornmittee, various suggestions "were pu[ forLh in a meeting held on 23.g.2009. 1-2. That it rnay be further subrniLtecl that the State Cabineb vide its decision No.LBOlLi.l2TTg dated L.10.2009 has approved the pachage for I(ashmir Valley. However, with regard fo I irnplernentation 'of employrnent scheme a Comrnittee has also been ordered to J:e constitu[ed to go into the legal and other irnpllcabions for rnaking recruitments of the migranL youth againsL various posts before the said scherne is formally noLified. The Comrnittee has to subrnib ibs report within a period of [wo weeks.

¶13That the State Government is heen to .. rehabilitate the Kashmiri Migrants in bhe Kashmir valley and shall provide 'every type of assistance for their return and rehabilitation. The process for the rehabilitation in valley has been initia[ed in Iune 2008 afLer Gavt. of fndia annouxrced Mte packaEe for theit' returtr." (Emphasis supplied) The Supreme Cour[ observed thad t]ris case hacl rernainecl pencling l:efore it for twelve years and thaL Lhe court had been insis[ing upon the state to frame the scheme of rehabi]iLalion of the appellants ancl particularly for providiirg them accolrrrnodation. Placing reiiance on l.he al:ove afficlavits/unclerLalcings given' by the resl:onclents, bhe Courl, further o]rserved that the authorities h.ave framed []re rehabilitabion scherne and for implernenLal,ion of [he sallre, il, has goL sufficienl. resources also. In Lhis bachground, the Supreme Cotirt issued Lhe following directions:- "9. In view of the. above affidavit/under[aking given bythe State and after hearing Mrs. Purnima Bhat Kah, Ld. Counsel for thb appellants and Mr. Anis Suhrawardy, Ld. Counsel for the State, we clispose of Lhe appeal with a pious hope that Sta[e shall bake all 'endeavours to rehabilitate the persons wko have l:een victim of'terronisrrr and f,il/ f/ze Sfafe /s a,b/e tate tlte appj sItaII ,acconttnodatioi,ts wltich ate in ttrzeir resp,ectitre posse.ssion.on ttrtis date." (Emphasis supplied)

¶68IL is no[eworthy that the only difference bgtween the petitioners before the Supreme Court ancl those who.are before this courl, is, thaL the petil,ion before Lhe supreme courL I f-"- to relaLed l,o persons who were retired employees of the StaLe Governrnen[ while the present petitioners are a]l ernployees of l.he Central Govelnment ancl its d.epar[rnents. Flowever, tire pebitioners. before the Suprerne Court ancl Lhe presenl, wri[ peLitionelrs are iclenLicaliy placecl victirns of the milil.ancy ancl the rights asserted by both seLs of the petitioners ancl issues raisecl by them are iclentical.

¶69While tlr.e 'above petition iemained pending in, the Supreme Court, sorne other sirnilar:Iy ,placecl employees were facing the same thleat of eviction as Lhe present set of pebiti.oners. Some such. persons approached this cour[ while ol.hers filed a peLition before the Central Achninisr,rative Tribunal. The orders passed in these rnatters woulcl also have a bearing on Lhe present consideration.

¶70Reference requires to be also rnacle to a juclgrnent passecl on 2"d Auqust, 2006 tn WF (C) 1Vo.1.1.742/20O5 enffiffied p"X{. .[dandoo vs. Estate officer & ,Ant'. by Lhis court which is reportecl aE 132 (2006) DLT 672. shri p.K. I'Iancloo was also a I(ashmiri Panclit ancl part of the rninoriLy comlnunity in the I(ashrnir; valley. ,An employee with the In[elligence Burean of the Government of Inclia, he had retired frorn [he serwice on 3J..t July, 2004 whereafber efforts to cancel his alloLment ancl evict lriin by way of proceedings under the public premises Act, Lg7 r hacl been nnclertalcen. Sh. p.K.Handoo filect the writ pe[ition assailing Lhis action.and the eviction orcler clatecl 30d'June , zoos passed against him in Lhe proceeclings by [he esta[e officer alcl also soughl" issuance of a wriL of rnanclarnus againsL Lhe respondents to allow him to retain the official accornrnoclation W.P.(C) No.15239/2004 Page 6l of 157 -'tt--"'---"-T-ry I't , ) which had been. alloLLed to him till such tirne that [he Governrnen[ mad.e. i[ possible for him [o return [o Sr:inagar or [ill sui[abie alternative accommodation is provided to him in Dellii. 7L. The observations made by this courb in the judgmen[ dated 2"d August, 2006 in F.I{. Ifandoa (supra) wirile dealing with l,he verly objections urged in these proceeclings, cleserve to. be considered in ex[enso and read as follows :- "LL. The argument. subrnitted. by the learnecl counsel for the respondents is typically gauche. iL Iacks sensitivity. I(ashmir has never.ceased to be a hub of terrorist acLivity which is mainly directed against the Hindu Pandits. The. violence in the State is at its peah. Due to the obstinacy of terrorists and helplessness of the gbvemment to coun[er t€rror, [he si[ua[ion coulcl not improve. Inclian Constitution applies [o aI] the . citizens of India. Equal protectioil means the right to ec1ual treatment in sirnilar circumstances. There should be no discrimination between one person and another if as regards the subject matter of Lhe legislation their position is the same.' it is seLtled law that a judicial or quasi judicial decision cannob offencl Article 14. 1,2. In tlre result, I allow tlze wtit petitiott in temtzs of the order passed bv the Apex Cout*t in the . case of r L. I{otil Vs. State of [amntw anc{ f,dashmir {supta\. Respondents are directecl to allow the din @ No.736 en'[ fees or t2 in NIew sul:it anywhere in Delhi till the pendency of the al:ove saicl wrib petition before the Hon'ble Supreme CourL. No cost s. " (underiining supplied)

¶72Learned counsels for the petitioners have also painstakingly pointed out the earlier similar clirections macle as l:ack as on SffL Decemleer 2002 by the centtral\,rnrninistrative Mta g Org on the satne issue which have also been nol,icecl I I-.. Page 62 of I 57 { and rei[erated in the P.K. Mandoo (supra) judgment. It is noteworthy that Shri Tej Kishan, a l(ashrniri displaced person had rnade' a recluest for rebention Of, Governnren[ accornrnoclal.ion beyonci superannuation which was l.urnecl clown by the Governrnent by an order dated 1-3tr'Augus[,.2002. flij.s refusal was assailed by way of 'proceedings J:efore [he Cen[ral Adminis[rative Tribunal. In these proceedings, the Tribunal hacl placed reliance on a leLter dated 2"d July, 2002 wril,ten to bhe Delhi. Development Authority ('DDA') by the Ministry of urban Deveioprnent & PovertyA-lleviation on the subject of preferenti.,al allotment of DDA flats to J&I( migrant Cen[ral Government ernployees who had retired or were retiring. The [ri]runal no[ecl .the letler in the following.terrns:- ",1"2. J)y referring to Lhe letber dated 2.7.2002 wriLten Lo tlre DDA by tlre Ministrvr of urban Devenov,ment & Fovertv Ailevation, it is stated tha[ this ]ras beeri decided as under:- "......BuL I(eeping this background in view, a clecision has been tahen to allot about 100 MIG and LIG Frats in Dwarlca to such retired/retiring J&K rnigrant central Government employees so that the Centrai lrool Accomrnodation could be got vaca[ecl frorn thern. DDA is, 'bherefore, requqsted to forrnulate. a housing 'scherne for retired/retiring J&K migrant centra"I Gbvernment employees ancr.sencl a cliaft thereof [o this Ministry within a fortnight for approval.,, , (Underlining supplied)

¶73In the above . juclgment, the central Aclministrative Tribunal also observecl on violation of ArLicle 1,4 by []re responclenbs holding that i'the state shall noI by its act discrirninatb as between two indiviciuals who are similariv W.P:(C) No.J5239/2004 % circumstanced." These findings are also nobiced in para the juclgrnent in P.K. Handoo's case (supra).

¶74I have.hacl occasion to cleal wil,h a similar issue 1-0 of ina judgrnent dated tJne L1.t1' @f ,A.tytj!, 20OS renderecl tn W"F"(CI WAS/ZOOZ tul.t<. IAA Ys. Union of, India & Ors. In this case alsd Lhe petitioner was a retired Kashmiri ernployee of .l,he Central Government who couicl not retrirn to l(ashrnir for the salne reason as Lhe.pe[itioners. Proceeclings for his eviction were also initiatecl by the responclents uncler the public Irremises (Eviction of unauthorisecl occupanLs) AcL, 'rg7J,. During tlr.e course of hearing on 7u'Apri], 2008, a quely was put Lo counsel for the responclenL in this case in respect of the position wiLh regarcl Lo the safety and security of the Kashrniri Pancli[s in the valley. The position was revealecl Lo be the same as befole. In para L4 of the saj.d juclgmenl,, consecluently i[ was recorclecl that " the respondents are not fui a position to erjsut-e Lheir safety and ptntection and as sych, in case they are displaced fi'om the accontntodation whiclt tltey are occLtpying, they wiII ttot be in a position to return to tlteir respective hontes in the Kashntir valley''. consecluently, the followirrg directions were issued.:- " L5. rm 'tted main tlte order of ,€ ent xo. wlaicnt .5' e. to ev. tlte peti

¶16There is no doul:t, that the petitioner was making payrnent of the normar ricence fee wrrile rre was i' service. Interesr. of justice ancl ecluity merit l+]i\.[: t:etirionel.bu requiiecl to' rnai.e ;;fi;;;; r.nnrrnhzl^.-&^ - 1 l -'il--'- W.P.(C) No.15239/2004 Page 64 of t57 prorrertlr of [he petitioner in their homb State or are in a position bo provide similar altemative , accommodation to the pe[itioner or the peLitioner acquires anlr other residential properLv in Delhj. 'L7. In view of the above discussion, this writ pe[ition is allowed. The respondenLs are direcLed [o perrnil" the . petitloner tg continue to occupy the Quar[er No.N-299, Sector-8, R.K. Puram, New Delhi subject to payment of the same licence fee as was being l:aid by Lhe petibioner on the date when he retired. This order shall continue to operate till such l,ime as the respondents provicle -similar al'l"ernal,ive ' accommodation to the petitioner, 01. the petitioner acquires any residential pioperby in his name. This writ peti[ion is allowed in the above terms. . There shall be no order as to costs." (Emphasis suppliecl) ( It is noteworl.hy that these orclers have not l:een assailecl and have attained finality.

¶75It is urged by learned counsel for the responclents Lhat failure of Lire Government of Inclia to challenge the orders passecl in wP(c) No.L1742/zoos entittred F.-K.fdarndoo v. Esta$e officer * anr.; wp (c) IVo.r.o6s/zoo7 etaffiiled. M..K.KawI v. aor & ors. and the otrrer cases are immaber:ial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex court. reporl,ecl at (zoofl) M'scc 7og col. ts..[. ,A,klrara n/s. Governrnettt of, futdia & Qrc. in support of this submission. 76-It is nobeworthy that col. BJ. ,Akkana's case (swntm) relatecl to efforts of the Government to recover paymen[ of excess arnount as pension. cerlain orders stood passed-in the wd[ petition filed by o[her employees who hacl raisecl a similar challenge. These orcLers rract not been challenged by bhe Governrnent. In this bachground", the peLitioner lacl contenclecl thaL Lhe Governmenb was estopped from recovering tire arnounr, W.P (C) No.J5239/2004 ll .-'' --'-Tr' Page 65 of t5Z frorn hirn in view of those orders which had at[ainecl finalii.y. The Apex Court rejected the contentions and held that tire Union bf India , would not be barred from resistinq the ving sirnilar issues o, ..hutt""rlging subsequenL writ petitions involving sirnilar issr suJ:sequent judgrnents of the High Court reaii.sing the seriousness or magnibucle of the. issues or financial irnptications. The posil,ion woulcl be clifferent only if iL is establishecl tha[ the Government had adopted a pick and ch.oose meLhod . only to avoicl relief Lo the petitioner on account of mala fide or rilterior motives. It was held that principles of :estoppel, res juclicata, iegitimate expecbation or fairness in action were not attracLed .on l.lr.e facts of tire case. NIo plea of violation of funclamental rights was involvecl in Alchara's case (supra). There can be no comparison wiLh [iie faets of. 'Akxrat'a's case (swpra)with those of the present cases.

¶77The aforenoticed judgments ild orders were clearly reievan1-and l:inding upon the respondents for cons[ruing ancl taking a view on'the contentions ancl clairns of the petitioners. T'he respondents were also bound rry the cleposition ancl Lhe Policy placed before the Suprerne CourL which resultecl in ils judgment da[ed Gtr' of october, 2009. The available recorcls clo not show any consideration of the aforenoticecl judgmenl,s alcl orders so far .as the rights ancr piight of the petitioners are concernecl. cancellation of allotntents and action under [-]te puLtfic prerrir", Act 1971

¶78Mr' Jaban si'grr, rear'ed cou'ser apireari'g for respondent No.L has con[enciecl tliat the decision to cancei W.P.(C) No.t5239/2004 the tl:e Page 66 of I 57 alloLnlenbs ancl to initiate the proceeclings under Lhe Public Premises Ac[, ]-971-as well as the orders of the Estate Officer ancl the juclgmenl,s of the Appeilate Court are in terrns of statutory provisions cannot be assailed by way of these wri[ peti[ions Reliance is placecl on the pronouncemenl,s of this courl, reported at (.L995) II AD Delhi 293 Union af India Vs. S"M, A,grEarwatr & 3n othets; 2.OOO (55) Dfff 57 Btrtint SinEh Vs. Umiw of trttdia & ,Ant'.; ,A,nR L977 Detrhi 268 .E{ardwafi .[,aI Vertna Vs. TIte Estate Officer & Ors. tn suplrorb.

¶79This objection of the respondents ignores well settled firsb principles of law. lvtereiy because the impugned, action is tahen ancl order passecl in purported exercise of s[abu[ory l]ower woulcl not rencler it irnmune from juclicial scrutiny. The ciuesbion as bo rnanner in which such ac[ion and orders viz-a-viz r,heir effect on funclamental rights will be examinecl, sl,ancls answerccl by tlre Suprerne CorirL tn,Af6l L97E SC 597; (Xgfy) n SCC 248 Mane.lra Gandlti r/s [.Inion of fridla amd olhers. In this case, the court hacl made the following ol:servations wi[h regarcl. [o Lhe irnpac'b of action taken under provisions of bhe passport Ac[:- "NorM, if the effect of State action on a .fundamental right is direct ancl inevitabre, then a .fortiorari, it rnust be presumed'to have been intenclecl by bhe authority Laking the action and hence, this cloc[rine of direct and inevitable effect has been clescribed bv ' some jurists as'the doctrine of intencred and real effec[. 'rhis is the test which must be appried for the purpose of determining whether secLion Lo (sl (c ) of the-irnpugnecl order rnade under it is violative of Article l_g cf )(al or:

(s)."

¶80The supreme court furlher ruled that it is nob necessary bo assail bhe constitutional valiclity of Lhe statutory provisions W.P.(C) No.J5239/2004 Page 67 of I 57 uncter whicl.r the impugned order is rnade and that [he court woul.cl stiil be able to examine as to whether the order made in .exercise of sLabu[ory power was inva]id for the reason thab i[ contravened a fundarnental right holding as follows :- "But that does not mean that an orcler nacle uncler Section 10(3)(c) ) may not violate Article 19(1)(a) or (g). Whiie dis,cussing the. constitutional validity of the . impunged order impounding the passport of the petitioner, we. shall have occasion to point ou[ that eve]t wliere a statutory provision emrrowerinq an authority to take action is constitutionally valid, ac[ion taken under i[ malr offend a fundamenLai riqht and in that evenb. thoucth the statutory provision is valid. the action rnav l:e void. It is true, and we must straigh[away conceded tha[ rnerely because a statu[ory provision empowering an auLhoriLy to take action in specified circumsbances is constiLuLionally valid as not being in conflict with any ftrndamental rights, 'it does not give a .carte Ltlattche Eo the authority to rnake any order iL lihes so long as it is wibhin the parameters laid down by the provision. Every offer rnade under a statutory provision mus[ noL only ]:e withi.n the authority conferred by the st.atubory provision, but must also stand the test of fundam.enbal ricrh[s. 'Parliament cannot be presumed to have intendecl to confei power on an authority to act in contravention of funclamental fights. It is a basic constitutional assumlrtioir und.erlying every statutory grant of power that the arithority on which the power is conferrecl. ulcl ftrn rn to b'e

¶81In the al:ove case, the supreme courr. helct trrat even though the impugned order was within the terms of the relevanb sec'tion, "it must nevertheless, not contravene anv fundamental rights and if it does, it would be void". so far as Lhe present case is concernecl, even it were to be held that the ac[ion taken by the respondents was perurissible under the statutory provisions, but if iL violatecl or aclverseiy impacLecl funclamental rights of the pe[itioners, iL would have to be voidecl. This objectiqn to the maintainabitiLy of (Underlining supirlied) a .t the present writ petitions is therefore rnisconceived ancl is rejected. '82. An exarnination of ' the order of cancellation of [he allo[ment recluires bo be underta]<en. The only ruies relied upon in support of .the power to pelmi[ occupancy of the cluarters are tJ;e oLXnoffinent of Gove DeXl'tB XXwIeg, 1963.. Cancellation of the ailotment has l:een elTectecl under these very rules.

¶83The respondents have permitted the petitioners Lo occupy the same in exer:cise of power conferred on l.hem. It is not the lesponclents' case that the petitioners came into possession of tire qualters i1lega1ly or without authorily. The occupancy is bbing [reated as un"authorised by t]re respondents for btre reason that they have cancelled. the allo[ments.

¶84In view of this stancl of the responctenrs, it becorno, necessalY Lo exarnine the piovisions of the Public Premises Act, L971.

¶85For Lhe purposes of bhe instant case, th: expression "unauthorized occupation" as definecl uncler section 2(g) of tlie Fw.fa.lic Frermises (Euiction of [htawt]zo.r-ised occupartts) Act, n.971. has to be construed. ' section 2(g) of the said statute reads as foilows :- \ " 2(g) "unauthorised occupation", in relal.ion to any public _premises, means the occupation by any ilerson of the public premises withouf aurhori"ty for: such occupation, and inclucles the continuance in occupal,ion l?y any person of the puJrlic premi.ses after the authotty (whether by way of grant or any other mode of Eransfer) under - whiih he was allowecl to occupy tlie premises, has expirecl or has been deLefmined for any reaSon whatso6rrer.,, W,P,(C) No,15239/2004 Page 69 of I 57 B2-.

¶86. So far as the proceedings for. eviction uncler the Pul:lic Premises Ac'[, 1,97L are concerned, Sections 4 and 5 thereof cleserve to Jre also consiclered., The relevant extract reads thus:- ' " 4. nssue of notice to gn",* cause agrainst oz'der of evictiott. - (1) If the estate officer is of opiriion tha[ any persons are in unauthorised occupation of any public premises and that they should be evic[ed, lhe Estate Officer shail issue in the rnanner hereinafter provided a no[ice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall-

(a) speciSr the grounds on which the order of eviction is proposed to he rnade; and 0j) reciuire all persons concerned., that is to say, all persons who are, or may be in occupation of, or clairn inl,erest in, the public prernises,-

(i) to show cause,. if any, against the proposed order on before such date as is specified in the notice, being a date not earlier than seven days forrn the date of issue thereof, and

(ii) to appear before the Estate Officer on the da[e specified in the notice along with the eviden.ce which they intend to produce in suppor[ of t]re cause shown, and also for personal hearing, if such hearing is desired.l XXXX

¶5Euiction of wmawthotised occupailfs. - (1-) If, after considerinq the cause, if any, shown by any person in pursuance of a notice under sec[ion 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of section 41, the estabe officer is satisfied that the public premises are in unauthorised occupation, the estate officer 1rray make an order of eviction, for reasons to be recorded tirerein,. directing. that, the irublic premises shall be vacated, on such date as rnay be .specjfied in the order, by all persons who may be in occupaLion thereof or any part thereof, and cause a copy of the order to be affixed on [he outer door or some other conspicuous part of the public prernises Page 70 of I 57 I t'.." 8>

(2). If any person refuses or fails to: cornply wibh the ' o::cler of -e,tiction I on qr before the date sirecified in the saicl orcler or within fifteen days of the date of its publicaLion under sub-section (l-), whichever is larei.l the estate officer or any other officer duly authorisecl by the estate officer in his behalf I rnay, af[er the clate so specified or after the expiry of the period. aforesaid, whichever is laLer, evict that personl from, and take possession of, the public." (Underlining supplied)

¶87f'he preserit cases raise a 1:ertinent ques[ion aS tcl whether the canceliation of the allotments to the petibioners was justified and valid and whether the petilioners' occtlpancy thereafter couid be brought within the rneaning of the expression "unauthorised" under Section 2(g) of the Public Pre,rnises Act, I97L. BB, The. sLatutory clefinition of the expression "unaul.h.orj.secl occupaLion" in Section 2(g) of the Public Premises.Ac[, 1,971" thus requires jucliciat interpretation for bhe purlloses of the present cases. In this regard the oft quo[ed words of Justice P.N. I3lragwati in (L9E3) L SCC 228 lVationa.tr Texffine Worlrers' [Iniott us. F.R.. trLam,alrtislutan woulcl be apposite wlien it was statecl as follows :- "We cannot allow the clead hancl of the pas[ to stifle the growLh of the living present. Law cannot stand still : it rnust change with the changing social concepl"s and . values. If the bark that protects the tree fails to grow and expand along with the tree, it will either chohe l,he tree or if it is a living tree, it will shed that bark ancl grow a new living bar[< for itself. Sirnilarly, if the 1aw fails to respond to the needs of changing sclcie[y, [hen either it will stifle the growth of the society ancl chohe its progress .or if the society is vigorous enough, i[ will cast away the law which stands in the way of its growth. Law must therefore constantly be on Lhe move adgpting itself to the fast changing society ancl not lerg behind. " W.P.(C) No;75239/2004 Page 7l of 157

¶89While interpreting statu[ory provisions, the Su.preme Colrr[ has also approvecl and applied in a number of cases, the principle of "upclabing construction" while interpretilg sl,atu[es as set oul. by tlr.e leacling jurist Francis Bennion in his comme.ntaries titied ''Statutory Interpretatiott', 2"d Edn., pg 61-7. {R.ef : (2003) 4 SCC 60L State of Vfuaharas.lttra vs. Dr. Fraf,ul D. Desai ; (1997) 5 SCC 482 CIT Vs. Foddar-Centettt PW. [,td.; (20OO) E SCC 74O Basavaraj R. fuaffitr us. State of .Kamtatanra]. These principles have been noticecl in (1996) 2 SCC 428 State us. SJ. Cltoudlnryand t:ead as follows :- ' "(2) It is presumecl that Parliament intencls the cour[ bo . apply l.o an ongoing Act a construcLion tha[ continuously updabes its wording to allow for changes .since the Act was initially framed (an updating ' construction). While it rernains law, it is to be tiea[ecl as always speaking. This m'eans in iLs applicabion on any date, the language of the Acb, thougir necessarily embeddecl in its owll time, is nevertheless to be cons'brued in accordance with the need to treat it as current law." At page (618-L9), of the report, it is ftrrther notecl [hat:- "In construing an ongoing Act, the interpre[er is lo presume [hat Parliament intended the Act to ]re appliect at any future time in such a way as to give.effec[ to the - true original intentj.on. Accordingly, Lhe inLerpreter is l.o malce allowances for any relevant crranges [hat rrave occurred, since the Act's passing, in law, social conditions,. l,ech.nology, the meaning of worcls, ancl other rnatters. Just as the US constitubion is regardecl ' a.s 'a living constitutiorl', so an ongoing Britisir Act is regarded as 'a living Act'. That today's construction involves the supposition that parliamenb was caterincr long ago for a state of affairs that clici not then exist ii no argurnent against that construction. parliament, in the wording of an enactment, is expected to anticipaLe ternporal developments. The drafter will try to foresee the future, and allow for it in the worcling.,, II was, therefore, observed that an ongoing Act is ta]ren to be always speaking stating that :- W.P;(C) No.15239/2004 tr'" -- --- Page 72 of I 57 . "Ar1 enactlnen[ of former days is bhus to be read today, in the light of dynamic processing received ovel the years, with such moclification of the.current meaning o! ifs language as will now give effect to [ire original legislafive inteption. The reality and effec[ of dynarnic processing pr:ovides the graduai adjustment. It is constitutect by judicial interpretation, year in and year oul,.. It also comprises processing by executive officials." . Thus, the courts have over the period of time eipplied Lhis principle to inLerpret various terms ancl phrases inclucling "stage carriage" has been interprel.ed to include "electric trarncar"; "steam tricycle" to include "Iocomotive"; "telegraph" to include "'Lelephone"; "banlceL's boek"'to include "microfilnt"; "to l;ake note" to include "use of tape recorder"; "docunlen[s" bo include "data bases"; "handwriting" was construed to inclucle "typewriting" {R.ef: 1996(2) SCC 428 State I/s. S.j.Chaudkary]. 'lJotice in writing" in Section 138 of the Negotiable Instrurnents Act, were cons[ruecl to inclucle a "nobice by fax". {Ref : (L999) 4 SCC 567 5M. lmport US,A Vs. Exitn ,A.ides SiIXr Exportersj. This principle of legal in[erpretation would squarely apply to the construction r,o be piaced on the provisions of Public Premises Act, i,g71,.

¶90Because of the peculiar circumstances prevalenb in [he Kashmir valley, members of the minorily communi[y were targetted and singled out for hostility as a class in their horne . state. Admittedly, the state was unal:le to protect bheir rlghLs or propbrl,ies.

¶91The state authoriLies assessed the threab perceirl,ion ancl danger to bhe lives bo sorne of the petitioners who wel:e boclily evacua[ecl from their ho]nes in the valley. The [ransfer of the il' f' Page 73 of I 57 petitioners, (gt that of the pelsons o11 whorn Lhey were clepenclen[), to De1hi, which preceded [he a]lotrnent of quar[ers, was thus compelled by the inabitity of the lespondents Lo protec[ ancl ensure the right to life of the petitioners. The sarne was certainly involuntary. The allotments were a resulb of Lhe extreme necessi[y recognisecl ancl acljuctgecl by the respotlclen[s thernselves. It is also .noteworthy that'those fleeing to safely had no opportunity 'to secure or salvage their properl"ies.

¶92It is an aclmittecl fact that over this period, the properl,ies of the pebitioners in Jarnmu & Kashmir have ei[her been destroyecl or, in'other cases, occupied by militants or the rnqjoriLy groups in bhe state. On account of the inability of the Governrnent to protect the iives ancl properfies of. [he petitioners, clespite Lhe Constitutionai mandpte,, tir-e petitioners have beeir deprived of their properties, afe unable to return to their homes and face danger Lo []reir lives, if they do so.

¶93The accomrnodation allotted to the petitioners is the only accommodation which they have ever'hnown in this city. The petitioners state that they do not.own any oLher properl,y. Lt is the sarne sheer necessity which cornpels the per,ir.ioners bo continue to occupy ttre prernises which was allol.tecl bo Lhern. It is clearly evident that having iclentifiecl ancl suppliecl such neecl of the 1:e'l.ibioners, absent any alternative with bhem, the responden[s woulcl ]re requirecl to rnaintain l.he same.

¶94The petitioners lr.ave .been at tlre receiving encl of bhe threats no[ only for the reason that they we]re from another ill community but also largely because they representect the face of the Central Governmen[ in the valley as its employees.

¶95It is irni:or[ant to note t]rat the scherne noticed in the aforenoticecl afficlavib d.ated 6tr' October, 2009 (filed by the Chief Secretary before the Supreme Court in "f.X{. I{otttr us. Wniatt of nnd.ta (swpta); tallrs of 'Retuin and Reltabilitalion'. It cloes no[ even advert to resettlement. No reference is macle to the safety or security of the migrants who agreed oll attempted to reburn. Iu'Lerestingly, there is reference to 37280 Kashmiri farnilies who hacl. registerecl for the relief inclucling accomrnoclation out of which out of which only 5000 families have been provided' accommoclabion. An under[aking stood given to the Supreme Court thaL the governrnent woulcl provicle such facilities to all the I(ashrniri nr.igrants till they are resicling at t]re presenl, places. Persons as the petitioners are no[ even covered undgr those who are clealt with in this afficlavit.

¶96IL is also notewortiry that the ,affidavit filed,before Lhe suprerne Court refers to a total pachaqe of the Central GqvernnenL involving an outlay of Rupees LO1B.40 crores.

¶97The afficlavit of Lhe chief secretary cloes nor. even refer to the utilisation of this hu$e arnount of public molrey and the fate of the proposecl facilities. There is nothing even before this cour[ which coulcl suggest that the facili[ies prornisect before the Sup:rerne CourL, have even corne into existence.

¶98The alternatives propoundecl and the schemes per[aining to Kashmiri rnigrants hoticed in the judgrnenLs of the Suprerne Court and of [his court remain in the reahn of proposals ancl unimplemented schemes alone without any element of reatity or |I" fairness. No alterna[ive at all has l:een rnade availa]rle to or offered to the petitioners.even during the hear:ings befole [his cour[. In Lhe light of t]re well settled principles laid in tire above precedents, Lhe inevitable conclusion is thaI l.he respondents have not talcen the relevan[ factors into consicleration ancl have actecl arbitrarily and unreasotlabty. The above discussion clearly manifests that the responclenLs have not acted fairly in discharge of their posil,ive obliga[ion and have noL sufficiently engagecl with [he problems and difficull,ies of the peLitioners.

¶99The petitioners have been prevenbed frorn residing in [heir homes in Jamrnu & I(ashmir for the reason that Lhe State has bee:n unal:le to secure their lives or protect [heir homes. In fact, the respondents also adrnit their inabiliLy to en.sure protection to the'life and limb of the pel,itioners in case [hey *9r: to reLurn to the home state, leb alone any measure of security for their continued residence in the place of their birblr, in case they returned

¶100on behalf of the responclents, it has been arguecl a! Ieng[h that the Union of fnOiu has even in these proceedings that the Unic formulatecl' a pachage for return ancl rehabilita[ion of L]re displacecl persons. This by itself shows tha[ the situation is no[ such that the putitiorrurs are in a position to return to [heir homes. The responclents are"clearly unable to ensure protection to the lives of the petitioners and their farnilies or secut:itv i1 their horr.es. 10L. Mr. Jatan singh, learnecl stancling counsel for Lhe uol has placed reliance on the pronouncement of Lhis court reportecl a[ W.P. (C) N o..1 5239/2004 Page 76 of I 57 il' ' l a" 2000 (55) DW 57 Bltittt Singh Vsj [-fttiott of nttdia & A'ttt" In this case, the pe[itioler had sought upgradation of the acco'rtmoclation allottecl to him on grounds of the securi[y cover which hacl been granted. to hirn as a president of .a poljLical parby. A chailengie was also laid to the eviction proceecliirgs. It was helcl that [he accommodation allotted to hirn was not ]iable ' to be upgraclecl. It is noteworttry th.at the pe[itioner in that case clicl nob hail from the I(ashpir valley. No plea that the pebit'ioner could. not return to his own accommoclabion on account of inability of the state to protect ei[her his life or the properby was putfortlr. or consiclered.. In the present CaSe, [he petitioners seek no upgradation of accomrnodation but only probection of [heir basic human right and the fundamental right to life. There is no pariby at aII between .tsItim Singh's case (supra) ancl the presenI chses. L02, It needs no elaboration that a judgment has [o be exarnined in the context of the factual rual,rix which it decicles. The judgment reported at (X995) II "4,D Denki 293 Wfiam of futdia Vs. S.M. ,A.EEarwaI e 31 Others, also reliecl upon by the respondents, was a case of eviction of shopheepers who were licencees in shops which were public premises and had failecl [o show cause in answer to the notice issued by ttie Eslal,e Officer. This case cannot be compared with the factual rna[rix no[iced hereinalrove.

¶103The 'responclents have also placecl reliance on Lhe ' pronouncernent of this coult reported at ,Afrx n 977 De]hi 268 tr{atdwafi r,al vernta vs. The Estate off,icer & ors. wherein the coult helct that an allottee of a Governrnen[ quarter is W.P,(C) No.15239/2004 Page tt of I 57 merely a licbncee. There can be no clispute at all with Lhis proposition. However, Hardwari Lal Verma hacl also not raisecl any question of violation of basic human and constifutional rights as 'the petitioners have in the present case. No fact sil,ua'bion as in the present case was involved. tO4. The peti[ioners are not continuing to occupy th9 subject premises because they want to do so. They are also no[ ciaimiug a right to indefinitely occupy the public premises or assb::ting a title or a right thereto in respecl, of the subject property. The. pebitioners have merely sought protection 'of their right to shelLer till such time, as the responclenLs are able to eltstue their right to life in their home state or make available a reasonable. alternative shelter to the peLitioners. The respondeirbs have themselves considerecl such reclues[s and permil,l,ecl iclenLically placed persons to continue to occtipy Lhe allotted accoiltrnodation. Such a claim has aiso l:een enterLained and gran'Led by not only the Suprerne Courl,, but also by this court as well in several' precedents noticecl hereinal:ove. .The responclents have aclmittecl in [heir coun[er afTidavi'L thaL Lhe petitioners have nowher'e eise to go.

¶105witliin the iarger'group of the IDPs from Kashmir, the Petitioners form a special .class and are reLirecl government ' personnel. When the petitioners were forcecl [o reloca[e, tiiey receivecl government accommoclation not only as an inciclence of ttLeir service, but aiso on accounL of their cornpuisive evic[ion fron their homes. They have also not been able to geb any benefit of any of the schernes framecl by the governlnent which Page 78 of I 57 I clearly achni[ the special need.s ancl entitlernen[ of th.ese displaced persons.

¶106Despite this ftard reality, Lhe ]:epresentabions, und.ertakings ancl prornises of the Central Government, upon retirement, the allotrnents to ttre petitioners stand cancellecl ancl they . are being asked. Lo vacate Govelurnen[ accom[Ioclation; o[herwise they face the threab of em.inenb fclrcil:le evictlon 'l,herefrorn pursuant to p::oceedipgs [ahen against thern u1cl.er the Public Prernises . (Evic[ion of Unautirorised Ociupants) Act, 1'97 t. 1,07.' The peLitioners may thereby be compellecl l,o rel,urn [o the violenb situation where from they wele evicbed/evacuated/or forced to flee. Forcing Lhe petitioners who are IDPs l,o return to the area where they were persecu[ed vio]ates bhe principle of non-refoulernent which is the principle in international law forbidding the expulsion of a refuge into an area where suclr person rnighLs be again subjected to persecu[ion. The respondents cannot be permitted, io on a hyper-technicai construction of statutory provision or arbitrary exercise of power to create a situation where the homeless pel,il,ioners are compelled to return to the areas where they may face'violence ancl threa'b to their life and libertv.

¶108The responclents have themselves recognisecl ilie entitlement of the .petitionels to appropriate residence, when they made the allotrnents. The only reason advanced by the respondents for their clecision to cancel Lhe allotment ancl l.o evicL the petitioners is that tlr"y have retirecl. The relevanb 'factor as to the developments in the state of Jammu & IGshrnir il" Page 79 of t sz flt-ancl the effect of sucfu eviction has not even been remo[ely considerecl. No examination of the issue of whether [he spiri[ or inte:rchnent of the avowed policy of rehabilita[ion been achieved, or: not, has been undertahen.

¶109The situation which was to be ad.clressed. in these cases was truly excep[ional. This aspect has a]so no[ even remotely enl.ered the responclents consideration. In fact the decisions of the respondenLs amply illustrates that the respondents are not rational, reasonable or bonsistent in theii decision rnaking. The construcbion placed by the respondents in the cases of these IDPs on the permissibility of the occupancy of the quarters under the Allo[ment Rules as relateable so]ely [o bheir service resnlts in violation of constitutional guarantees and was clear"ly and completely unwarranted. It needs no further elaboration that the rights which the petitioners are complaining breach of, are the rights guaranteed. to them under Article L9(1)(e) ancl 'Article 21" of the .Constitution of India. For these reasons, [he interpretation of the expression "unauthorised occupa[ion" by the respondenbs as well as in the impugned orders is blinlcerecl, restric'Led ancl irnperrnissible in the given facLs. The expression "authori[y for such occupation" appearing in section 2(g) mus[ tahe wiLhin its ambit the constitutional violaLions which resul[ from the restricted working of the statutory provisions by [he respondenbs. It was incumbent upon all .concernecl with Lhe decisiotl mahing to l,aire into consicleration the rnoist mal,erial developrnents in the home state of the petitioners ancl tire facl, that Lhc State was unable to guaranbee protection of life aricl libe:r[y to t]re petitioners in case they return; . the insufficiency lll Page B0 of 157 qz alcl ilability of "Lhe resettlernent/rehabiiitation efforb and the airsepce of any aiternative to the petitioners for the pulposes of construction of the expression "authority for Such occupation"' No legal inLerpretation coulcl be acceptal:le which cloes nob [ake in[o its consicleration these relevant facts and circurnstances' The peti'[ioners ale bccupyl]lg the'accomrnoda'[ion because of the failure.of the responclents to clischarge the constibri[ional manclate ancl their public law obligations of protec[ing the r:ight Iticecl above, Lhe to life and liberty of the petitionels. As nc authority Lo occupy the quarters so far as the petitioners were coltcernecl was clerived. from the constitutiolal guaralLees. Such occupancy cannot be deemed or held to be "nnauthorised" by any measure.

¶110The significant difference between the cases of the pebiLioners and that of an unaul,horisecl occulranl. of public prern.ises is bhat the writ petitioners have continuecl. bo occul:y [he irublic prerni'ses only on account of the inability of the state to protect [he funclarnental and basic hurnan rights of the pel,ibioners. L1,L. .The respondents would have the records of bhe circurnstances in which the peLitioners and their successors in interesb were transferred and evacuated to Delhi and also l,he exLrem.e necessiby of making the allotmenls of the qua::ters [o these persons who were no'[ only Government servan[s bu[ aiso IDPs. The Directorate of Estates which has effec[ed the irnpugned clecisiorls cancelling the allobrnen[s wou]d be aware of the pronouncements in respect of identically placeci per:sons of [lre Supreme Court tn F.K. x{oul \/s. Estate officer this Page BI of 157 ?T t cour[ tn j.n{. Idowtr us. [Jttiott of lttdia, the order of the Cen[rai Aclministrative Tribunai tn Tei .Xdisltan Vs. Miott of'Ittdia & @rs. ancl irnplementecl the same. The respondents are aware of the prevalent si[uation. LLz. No lega1 interpretation woulcl be accep[able which cloes not [ahe, into its cbnsideration the relevant' facts ancl circumstances. There can aiso be. no statutory interpreba[ion which resulbs in violation and constitutional guaranbees and protection. The present petitioners cer[ainly cannot Jre.'cornpared wiLh or treated in the same manner in which the responclents woulcl cleai with any other occupant who has not sufferecl. [he gross viola[ions and deprivations as the petitioners, and is unauLhorisedly occupying the public premises. 1,L3. I[, [herefore, has to be held that the occupation by petitioners cannot be construed as "unauthorized occupation" of 'the quarters within the rneaning of the expression in Section 2(g) of the . Public Premises (Eviction of Unaubhorized Occupants) Act, 1,97L I1"4. An examination of the irnpugned . orders is tlow necessita[ecl. The cance]lation of the allotments and the ac[ion iniLiatecl uncler the Public Fremises Act, 1.g7 L were resistecl liv i on the several grouncls on which these *r; petitions are premised. However, tlie same resulted in the impugneci orclers of evicLion.

¶115The sole reason given by the Estate officer for passing Lhe impugned orders of eviction is that the allotments in favorir of [he peti[ioners stand cance]led and that they had failed to prove l--------'-'Jl- '. I i----- Page B2 of I 57 tha[ the5l were not in unauthorized occupa'bion of the insl.an[ premises. None of the other contentions of the pebitioner have been even mentionecl let alone consiclerecl.

¶116The petitioners' appeals assailing these eviction orders sband rejected. 11"7. The peti[ioners had placed. the several decisions relating to sirnilarly situatecl persons before the'respond.ents, [he Estal,e Officer as well as the learned Additional Disl,rictJuclges. A plea was Uaken [haL because of failure of the responden'bs to ensure tlre pro[ec[ion of [he rights of the petitioners under Article 2'L of. the Constitution of Inclia they continued to occupy the quarl-el:s. The petitioners lrad also urgecl that they stoocl cleprived of horne and hearth because of the failure of the respondents to.ensule tlle constitutional guarantees ancl clischarge the mancla[e thereunder. lt8. The appellaLe orders notice the petitioners' conl.enbion that the petitioners have made several representations to various authorilies for allowing them to retain the accommodation on the ground that they belong to l(ashmir and it was not feasible to return in view of the communal riots and terrorists moveulents. These requests lrave noI been accecled to. The impugnecl appellate orclers record that tire petition.ers have challenged Lhe eviction orders on the grouncl that the Estate officer iracl failed. to consider the facr bhat thev were I(asJrmiri inigrants and cannot return to Srinagar Lill normalcy is restored. Ib was also a ground of appeal that the Esta[e officer hacl not considered the orders in slp No. l-36glLgg7 by the Suprerne Court and that the petitioners' cases wer:e on [he q, il-Page 8j of 157 sarne foo[ings. The challenge had. also been laid to the orders of ilre esbate officer on grouncls of arbitrarine'ss ancl violatiorr of principles of natural jus[ice. tlg. The appellate court in the impugnecl orders haE also proceeclecl on the sole gro.und that there was no lease or license cleecl issuecl in favour of the petitioners by the Goverumenb of Inclia. T[e orders of the Apex Court were no[ considerecl on the sole grouncl:that cApy of the Special Leave Petition had not been placecl before the court ancl thab the petibioners were nob a party to the probeedings. The learned appellate cottrt was also of the view that the petitioners were provided accommodation in Delhi l:ecause they were in service in Delhi ancl not because of berroris[s threabs.ancl further that accommoclabion was given only by virtue of employrnent. It was also concluclecl tha[ no lelief hacl been grantecl to the petitioners by the Supreme Collr:l, i and therefore, the orders did'not assist the Sup::eme Cour:t. The eviction orders had been sustained in view of these conclusions. tzl. As a result, such'working of the Public Premises Ac[ by the responclents,. the petitioners are being thleatenecl *it1t evic[ion from [he only shelters that they know, withott[ any alternaLive being available to them. I2L The respbndents are bound to ac[ in a manner which is cornpabible with the constitutional rights of the peti[ioner while this courl has to take into account ancl require the legislation [o be reacl cornpatibly with such rights. The olrject. is to ensure that Lhe actions ancl ordels rnust be such as to avei[ or rectifv . any violation of snch basic rights, {6 Page 84 of I 57 qT l-22..i.The scherne of the Public Prernises . (Eviction ol Unan[horisecl Occupants) Act, tgTt shows [hab [he no[ice which is isslecl uncler Section 4 to show cause is required to specify the grouncls on which the eviction is pr:oposecl to be macle ancl requ.ire the persons concerned-to show cause against the proposecl orcler. before ttre specified clate when they are [o produce eviclence in supporb of the show caUse. Under Secbion 5 of the Act, the Estate Officeris requirecl to consicler.the show cause by the noticee uncler Secbion 4 as well as [he evidence proilucecl fuy hirn and after personal hearilg, if any, given. Thereafter, the Es[ate Officer is required to record reasotrs lbr his sabisl'action for making an order of eviction. The orders of the estate offic.er discloses no reasons a[ al] to supporL satisfactioir to order eviction. The impugned orders do no[ reflect tlr.e consideration of the contentions on the eviclence placecl by the petil.ioners.

¶123The due process clause in the Constitution rnanclates ensuring [hat bhe state provides a humane stanclard of living to its ciLizens. LV4. The letber frorn Ministry of Urban Developrnent to Delhi Development,Authority placed on recordtn Tej X{ishan us. UCItr (supra) before the Central Administrative Tribunal (also relied upon rn n 32 (2006) D[.T 672 P.I( E{andoo us. Estate Officer indicaLes engagement of the authoril,ies with this issue ancl the clecision of the. Central Government directing that schemes be 'framecl by the Delhi Developrnent Authority as well for making preferen[ia] allotrnen[s of accommodation to Kas]rrniri migrants. In addition, the Government affidavit dated 6u' Oc[ober, 2009 in Page 85 of tst *- ll*-* --'-- Tr--"- tr.L. X{ouI (supra) filed in tlle Suprerne cor"rrt of India also expresses the salne collcern as has been exllressecl in the above Guicling Principles on In[ernal Disp]acemen[' These actions unequivocally manifest the responclents'. awareness about the positive obligaLion imposed upon them [o ensure that the persons clisplacecl from l(ashmir alre required to l:e resebLled and/or rehql:ilita[ecl. There is adrnission of responsibility ancl culpability. The working of the'measllres, however, Leflects that the steps wliich have been Laken are inaclecluabe ancl hopelessly insufficient. Even in the prolongecl. hearing before this court, the responclents could piace no alternative so far as the petitioners were concernecl. L25. In A.nR 20L0 SC L476 State of West tsenEran vs. The Cornntunity for Frotriction of Detnocratic Rigrhts, West ffienEral & Ot:s., the Supreme Court has also helcl [hat the court _ was recluired [o weigh the impact of a particular govelnrnent sclterne, statute. or action on the fundamental righLs of those effectecl by the governlnent scheme, statube or ac'[ion. In case any sLaLute or action abrogates or abrid$es such rights, i[ would be violative of the basic structure/doctrine of the Constitution. For this reason as weI1, any application or enforcernent of sta[utory provisions, rules, . regulations that irnpac[s or impinges funclamental rights has to be struck clown. L26. In [2OO4] EWC,A Civ 54O Secretaty of, State t.br' ffite E{otme Departntent us. Wayoka LintbweXa, Bimyam Tet'era Tesetma & Vusif ,A.darn, the House of Lorcls has prescribed a test'to deterrnine whether a sLatutory schene or a government policy caused a violation of fundamental rights. It was obser-vcd q1 thiit when a reasonable evalua[ion of all relevan't fac[s auct ci::cllmstances shows l,hat a govel:nlnent policy would" sulrjecl' petitioners [o an immecliate and serious deprivation of the basic necessities of life, then the court may properly grant r:elief' It: was also helcl that the state would be liable for bo[h qction and inaction as long as the action or inaction results in a seLious deprivation of rights or human digntty.

1.27. In the light of the clirections by the Suprelne Court and this courb in the aforenoticed cases relating. to identicaily situatecl clisplacecl persons lvho are victims of violence, l.he conl,est by the respondents to the present writ'petitions on technical, specious ancl legally untenable grouncls is unfair [o say the least. Sirnilar issuei have arisen Jrefore and or:ders stand passed in favour of the similarly placed persons therein. 1"28. The petitioners 'have suffered on account of Lhe respondents failure to protect their life and liberty when bhey were cornpelled to flee from their homes. in Kashmir. In internabional law, refugees are protected from being compellecl to return bo places or situations where their lives or freedom coulcl be threatenecl. It is poinLed out that Lhe responclenl,s have implementecl this principle in the cases of Chahmas, Tibetans, and else where IDPs, who are citizens of the sarne country, certainly cannob be treated differently ancl cornpellecl. to return. to violent situations.

1.29. The proceedings, as well as the impugnecl clecisions ancl orders have compleLely failed to take into consideration the maierial issue of the impact oi th" proceeclings ancl [he orclers which.would resul[ in forcible eviction of the petitioners from Page 87 of I 57 IN Lhe olly shelteis hnown to them without a1y alterla[ive' 'fhe .impngnecl cancellation of allotmenbs, the orclers of evic[ion 1:assecl by the Es[ate Officer ancl the aforenoticed orclers dismissilg tire afpeals of the petitioners are in l,he teeth of thc; consbituLional guarantees to the pebitioners under Ar[icles 19(1)(e)(g) ancl 21 and the::efore not sus[ainab]e'

¶130Such cancellation of allotment ancl forcible evicbion al, the h.ancls of the State utilizing the shield of a sl"atutory righL to clo so uncler the Public Premises Act, t97L resuits in violation of the consl,itutional rights of the petitioners. IL is manifesb therefore such t\ab'such application of law as woulcl have an impacb of violating thq funclamental rights of [he peti[ioners is impermissible und.er the constitutional scherne. Pt'o p o rti o n alitlr te s t 131-. The proportionaliLy of the impact on the funclamen[al righL involved by wor'king of th.e statutory provision as'againsb [he oJ:jec[ive of lhe conce]:ned'statute is another irnpor[ant [es[ Ibr acljuclicating upon the legality of the interference with the right which would irave a bearilg on the presen[ case. In a pronouncement of the i{ouse of Lords. reiror[ed at Q007) AKI{I. 1L:(2007) 4 AII EIt L5 XfwanE \/s. Sect'etaty af State for tXae Hotne Departntettt, the decision making role ancl ftrnction of the appellate imrnigration authorities in Ll:e conLexb of tlr.e Human Rights Act, l-998 and tire Immigrabion and Asylurn Act, 1999 was in issue. The House examinecl the scope of reviews by the prescribed authorities. The priva[e par[ies complained of violation of their rights uncler Article B of tlre -il' Page BB of 157 pl European Convention for the Protection of Flurnan Rights ancl Fundamen[al Freecloms, 1950 which provicles as Llncler:- "L. Everyone has the right to respecb for his prival'e and. famiiy life, his home and his correspondence. 2. There shall be no interference by a public aubholity ' with the exercise of this. right except such as is in ' accorclance with the law and is necessalY in q clernocratic society in the interests of lational security, pqblic safety or tlie economic well-being of t5e counbry, lor the pr-even[ion of 'disorder or critne, for the proLectiori of irealth or morals, or for [he protection of the rights and freedorns'of oth.ers."' Th.e consideraLio.n by the Flouse of Lords on the principle of proporl.ionaliLy of the impact of the interference on the right vis-a-vis, l,he iegitirnabe encl in view iS imporLan[ ancl reacls as follows :- ' In rnost cases where the applicants cornplain of a violaEion of their art B rights, in a case wh.ere the irnpugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness Lo engage the operation or art B. the crucial question is lihely to be wlzetlter tlr.e interf,erence (or Xac"h of, respect), contptrained of is pronortionate to the neoitimate emd sor.rotrtt to be achieved. ProportionaltLv ts a subject of such importance as. to reguire separate t_reatrnent PROPORTIONALITY In' de Freitas Vs. Perrnanent Secretary of Ministry of Agriculture, Fisheries, Lancls ancl Floirsing t19991 1 AC 69 at 80, []-9981 3 WLR 675 at 684, the Prwy Council, drawing on South African, Canadian and Zirnbabwean authorify, defined the cluesLions generally to be ashed in deciding wheth.er a measure is. proporbionate : '....Whether : (i) the legislaLive objective is sufticienUfr irnrro riglht; (ii) the measures designed to rneet the lecrislative cibjective are rationallv connected Lo it; and

(iii) the means rised to impair the right or freedom are no more than is necessary to accomplish the ol:iec[ive. " l--'-ll'--' Page 89 of I 57 i rtrisformulationhasbeenwicleiy.citedarrd appliecl. But counsel for the appiicants (wirh"ttie r"ppotr of Liberty, in a valuable written intewention) suggested. Lhat the formulation was deficient in orriilfiug referen ce to an overriding ::equirernent w]rich featureil in the judgment of Dichsol CJ in R v Oalces [1986] 1 SCR-].03, frorn wlrich tlris approa-clr to ptopoitiolality clerives. This feature is (at 139) Lhe t1"ea to balance the ilterests of socieby witft those of ind.ivicluals and groups. This is indeed an aspect which should ne,rer be overloolced or discounted. The I{ouse recognisecl as much in R (Razgar) v secrebaty of StaLe fof the Home Dept t20041 UKFIL 27 at lITl-l2ol,'1261, 1271, 160l,177l, 120041 2 A11 EI1 821 at [L7]- l2ol, 1261, 1271, [60], 177), [2004] 2 AC 368 whett, having suggestecl a seiies of ques[ions which an acijuclicatoi woulcl have to ask and answer in deciding a convention question, 'it said (at t20l) that the judgrnerrt on proportionalitY 'milst always involv.e the striking of a fair balance bel.ween the rights of the individual ancl the interests of the community which is inherenL in the whole of the convention. The severiLy and consequences of the interference will call for careful assessment aL this stage.' If, as counsel suggest, insufficien[ attenlion has . been paid to this requirement, the failure should be madq good. 10> XXXX,, (Emphasis supplied) 1,32. Having regard to the drastic violation which results from the impugned action and orders, it has to be held that [he clecision of tire authorities to cancel the allotrnents and proceecl for eviction as well as the impugned orders against the petiLioners are not in accordance with law even on reasonable assessmenL of prciportionality vLz-a-vrz the oJrject of eviclion of unauthorised occupants of the Public Premises Act, I97L. W.P.(C) No.15239/2004 Page 90 of tsz Iq Wonqfugn .,of 'Lt'tictre L4 of the .Constittttiott

¶133The petitioners have also complainecl that the responclen[s hacl discrebion bo permit the petitioners [o couLiutte to occupy tlre premlses uncler SR 31,7 -B-25 of Lhe A'nfutument aff I Xg6A. It is contencled that the respondents weire bounci l'o . consider bhe matter on the reievant considpralion of Lhe right to sirelter of the petitioners which was involved ancL cannot prerrrise their ac[ion on extraneous and imperrnissi]rIe reasorfs or qonsiclera[iolls. Mr. B.L. WaIi, Iearned counsel for petitioners has urged that the failure to exercise'discretion in favour o.f the petitioners is in facb not only in violation of the constitutional obligations of the respondents, but is arbitrary and unreasonable 1,34. Shri P.K. I(aul, (writ petitioner in W.P.(C) No.1-5239/2004) lracl earlier filecl WP (C) No.6551/2003, submitting that [he respondents had arbitrarily failed to consider his reques[ for' r:cgulariZation despi[e having lanowleclge of the special circurnsbances of,tn. case. Mr.B.L.Wali, learued counsel for [hi.s pe'[iLioner has lrlacecl the order which was irassed on l5Lrr October, 2003 in the earlier writ peti[ion, which clirectecl the responclen'ts [o consicler t]re question of regularization of allotrnent in favour of bhe petitioner ln view of Lhe speciai circnmstances. It was directed that the petition inclucling its enclosures sh.ould also be considered while disposing of thb pe Litioner' s representation 1-35. Despite Lhese orclers, the writ petitioner has contenclecl that there has been rlo consicleration in terms of ihis orcler till Page 9l of 157 l0v cla[e. I-Ie has, [herefore, filecl tire writ pe[i[ion Jreing WP (C) No.15239/2004 challenging .the notice issued' by the Es[a[e officer uncler secl,ion 4 of the Public Prernises (Eviction of Unauthorisecl Occupants) Act, Lg72 to him' 1-36. The oLher writ pebitioners have also made similar reqdesLs to the respond-ents for exercise of cliscretion which welre reiteratecl by them in the reply to the notices issued by the Estate officer-uncle:: Seition 4 of the Public Premises Act as well as in the appeals which were filed. The same g::ound of chalienge to [he respondents' action has been urged. in these wriL petitions.

1.37. Mr.B.L.Wali, learned counsel appearilg for sQme of the petitioners has poinbed out that the respondents have exercisecl cliscr:el.ion favoulably and permitted some identically situaLed clisplacecl Kashmiris to con[inue in aI]obtecl prernises afLer retirernen'[ whereas' this hris been arbitrarily denied to [he pe[itioners. Learned counsels 'con[end that [he re.sponden[s' action so far as the presenL petitioners are concerned, is discriminal"ory and noL sustainable.

¶138The respondents on the other hand place reliance on the pronouncernenl. of the court tn (tr 997) n SCC 444 Skiv SaErar Tiwati us. Llttiort of India ancl clispute bhat [hey have atly cliscretion in the matter.

¶139Allo[ment of government accommodabions are effecbed under tlre provisions of Allotment of Gotremtment Resic[ences (Genera.I .trool in DeIItit R.ules, 1963. Reference is rnade l.o SR 3 L7-Il-25 thereof which empowers the Government to reiax 'il " .'..'rr"--- l-"-l Page 92 of I 57 t0y l,he provisions of these rules ancl deser-ves bo be considerecl in ex[enso. The same reads as follows:- ,, 5R. 3n.7-ts-25: The Govenllllellt nlay for reasons to be recorcled in wfiting relax all ot" any of tlte pro-uisiotts of tie Rules in tltis Diuision in the case of any officer or resiclence or class of officers or firpe of residences." 1"40. It is unclispul.ecl before us that clespibe the propouncled rehabilitation sclr.ernes stated. before tire Sup::eme Courb and estafulishnen[ of preferential quotas in a]lotments placed before the Central Aclministrative Tribunal, the responden[s have nob been able to rehabiliLate or resettle any of the petitioners. 1-41". The resitondenLs have also not denied the availability of tlre cliscretion uncler SR 3L7 B 25 of the Allotment Rules,' L963 ancl its favourable exercise in favour of some l(ashrniri IDPs. Yet, the l:espondenl.s have failed to exercise the Samo discretion in favour of Lhe present petitioners. No explanation for the salne is even attemp[ecl.

1.42. On the issue of exercise of discretion, in the judgtnent reportecl at ,A,XX\ tg80 SC L622, Mwnicinaatr Cowtzcitr Railant Vs. Vardicntan & Oirs'., the court was concerned with ttre puUtic power of the Magistrate under Section 1-33 of the Cocle of Criurinal Proceclure. The court observed. bhat the 'public power of the rnagistrate under the Code' is 'a public duty [o bhe nr.embers of the public who are'victirns of nuisance ancl so h.e shall exer:cise it when the jurisdictional facts are presen I as here'. So far as exeircise of discretion is concerned, i[ was oJ:served as follows :- '9. So the guns of Section 133 go into action wherever there is public nuisance. The public power of the Magisbrate under the Code is a pul:Iic cluby to the t06 rnentbers of the public who are victinr.s of the nuisattce, ancl so he shall exercise it when the jurisdictional facts are pl:esent aS here. "AXI loower is a tmtst-ttraat we an'e acalowntabtre for its exercise[hat, from the people, ancl for the people, all springs, and all mus[ exist'" Piscretion becomes a dutv when t&e l2enef,iciqrvr ffi circumstances for its heniatt exercise xxxx" L43. Given the established violation of [he fundarnenLal righLs of the pel,itioner:s resulting in their clisplacernen[; the clestruction of their propertry couplecl with the prevalent conclitions in their home state; ancl lach of any albernate to them, the exercise of discretion uncler the SR-3 L7 B-25 of the allotment of Allotment of Government Residences (General Pool in Deltri) Rules, 1963 in favour of the petitioners would thus l:e the bounden du[y of the respondents. , The mandate of the suprenre Court in Mutticipal council R.attrarrx E/s' vardic'hatt (swpra)would bincl even the court. 1"44. The pronouncernent of the Supreme Cour[ reporbed at QggT) 1 flCC 444 entitled S/riv Sagar Tiwari Vs. [Jnion atf futdia & Ors., has l:een placecl before Lhis court by the respondents. In Lhis case, the courL'was concerned with gross tnisuse of discretionary power relating to allotmen[ of accolllllodation to government employees. As against the permissible discretionary quoba of 10 per cent, such allo[rnents . had shoL up l,o 70 per cent. On [op of l,hese, 8,768 ]rouseis were allotted on "Special Compassionate Grounds" in exercise of cliscretion under the auLhority of a letter clatecl L8th July, 1996 from the cabinet Secretdry. The Government of .Inclia hacl subrnit[ed bhat it had exercised discretion vestecl in it uncler [he tY ir aforenobicect SR. The court hacl concluclecl Lhat Lhe concluc[ of the responclents clict not clisclose application of rnind and d.iscretion was not exercisecl fairly. In para 56 of Lhe juctgment, it was oltservecl a$ follows:- "56. 'fhe clecision of the pr.r"nt central Govenrnr.ent ou this aspect as finclilg place in the letter of []re Cabir]q[ secretarfi datecl LB-7-1"996 bearing Do No.1.l44ltl96-CAV is that "where it is considered absoiutqiy ,necessary" small number of out-of-turn ailotme[bs would. i:e mad.e for which . purpose also Lhe Ministries/Departments would formulate clear rules arld guiclelines. During the course of hearing, on being desirecl [o hnow as to why out-of-turn allol,ment is at all requirecl, the submission advanced on behalf of [he Union of India was tha'L there are a few officers, who by virtue of the duties discharged, have to l:e accornmodated in. government quar[ers to faciiita[e smooth functioning of the Governmen[.xxx" I45. 'in view of the gross abuse of the discretion vested in [he respondents, in para 57 at page 463 of the reporb, i[.was helcl thab a case bo perrnib rninihral out of turn allo[menLs was nr.acle out which has to be reguiated and transparency has to be maintainecl in such allotments. The court consiclerecl privgte citizens who could be ailotted out of the cliscre[ionary cluota which included accredited journalists and news carnel:aman, political par[ies, ar[istes, social worher etc and o[her organizations as well. In Strtiv Sagrar' f,iwari us. UOf (supr.a),it was helcl Lhat the cliscrel,ion conferred has to be exercised to advance the purpose [o su]:serve whiqh the polyer exists and tirat .even the Minister, if he/she be the repository of cliscretionary power, cannot clairn ilrat either there is no discretion in the matber or unfel,terecl cliscretion. The Supreme Court held that exer-cise of W.P. (C) N o.7 5239/2'004 il-- { Ib Notewo::Lhy, is the t's tter essential. In this background, the contention of Lhe r:espondents that exertcise of cliscrel.ion was prohibited by [he Supreme Cor'rrt in this case is totally rnisconceived. L46. On the other hand-, in the instant cases, the petitioners have assailed the arbitrariness in exercise of [he discr:etion aclmiLLedly conferred on the respondents and the failure Lo perrnit conlinuation of occupation of the alloLbecl accornmodation in ttie exceptionable circurnsl.ances and conclitions in which they were placecl. .The pronouncemenL of the Suprerne Court, in fact, assists the petitioners as the court recognized existence of and permissible exercise of discretiou while cleprecafing its abuse. 1,47. The standards on which cliscretion were settled by the Supreme Cour[ in the juclgrnenb reporLed at (X97g) 3 SCC 489 entitled. "[i.antana ..Daya.r-ant Sketty us. nnternational Airpoft ,AuiltoriW of Xndia & Ors. as follows :- 'l-0. xxx........It is iriOeeO unthinl<able that in a . clemocracy governed by the rule of law the execu[ive Governrnenl, or any of its officers should possess arbitrary power over the inberests of the individual. Every action of the executive Government rnust be informecl with reason and should be free from arbitrariness. That is the vetT . essence of the rule of law and its bare minimal recluirernent. And to the application of this principle it mahes not difference whether the exercise of l,he power involves affection of sotne right or clenial of some privilege." an au:Lhoriby would exercise Page 96 of I 57 ttl XXX L2. ......It lnust, therefore, be tal<en to be the iaw ' tlraL where the Government is dealing with the public, whether by way of giving jobs or eltering into con[rac[s or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, iike a i2rivate individual, deal wiLh any perSon it pleases, bul. its action must l:e in conformily with standard or nol:llts which is not aqbitrary, irrational

1.or irrelevant. The power or discretion of the Government in Lhe matter of grant of largess inclirding award of jobs' sl.rucbured by rational. relevant and non-discritninaborlr stanclard or norm and if the Golrernrneint departs from such s[andard or norm in anJr particulal case or cases. the ac[ion of the Government would be liable bo be struch clown, unless it can be shown by the Governmen[ thab the departure was not arbitrary, but was based on some valicl principle which in itself was not irrational, unreasonable or discriminatorv." (emphasis supplied) L4B. In para 85.of the pronouncernent reporLed at A,nR n974 SC 555 entil,led E.P. Itoyappa us. State of Tatnitrrtadu & A.fur'. tire Supreme Court laicl down the following binding principles :- '85. .....In fact equality and arbitrariness are swor-ll enernies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute , monarch. Where an act is arbitrary it is irnplicit in it that ' it is unequal both according to poli[ical logic ancl Constitri[ional law and is therefore vio]ative of Ar[icLe 1,4, and if it affects any matter rela[ing to puJ:lic employment, it is also violative of Article 16. A,rticles L4 ancl l-6 strii<e at arbitrariness in State action and ensure fairness and equality of treatrnent. They require bha[ . State acl,ion rnust be based on eguivalenL relevan[ mus[ not ]re guided bJr anJr extraneous or irrelevanl. becau d be deni acnon, as dis[inguished antecharnber of frorn rnobive inducirig from thc the mind, is not legritirnate and reievant a oI Derillrssl (emphasis sripplied) exercise of power and arbitrariness are different lethal fn*t*fure,, even if it were to be helcl as ur:ged-by the responclentb that this court coulcl be held to be powerless t'o clirec[ exercise of cliscretion in a par[icu1ar manner, in view of the clear pr:inciples laicl down in these jucticial precedents, there is no prohibition upon this court from exarnining as to wheth'er the responclents have failed to exercise d-iscretion on relevanl' criterion. There is also no prohibition on bhis cour[. to exami:re wheLher the responclents have acted arbitrarily or cliscriminaLecl against the pel,ibioners. The impugned action of the responclents against the petibioners ancl the orclers assailed herein have to be testecl on the above principles. L4g. A sirnilar argument of the respondent bhat t'he allot[ees were prohibitecl from perrnitting retention of accommocla[ion beyoncl th.e irerrnissil:le period after retirement was rejec[ecl Jly the CenLraI Administrative Tribunal in the aforenol,iced decision renclerecl on 3d'; .Decentbet', 2OE2 itt 0.'4. No.2378/2002 Strtti Tej Kistrtan Vs. [,Ittiott of trndia & hrc. The Tribunal hacl examined the peLitioner's challengb to the respondent's ac[ion on th.e plea of discrimination premised on [he conduct of the respondents in exercising discretion in favour of sonre similarly situated migrants and nob in favour of the peti[ioners aud observed as follows:- '31-. -Respondents .ltave not disrawte.d tnmt X{ashmir iniqbanis rilto" were identicatrIv awd eqMaLMv sitwated. on their request ltave lteen aMowed to retain the accontmodatibn tiII the nommalavr comes hactrr im State .af, f&trd and tiII thev are z"etwrutean. enswred fttt-tlter tlte saf,ettr of ttrteir persons and proeeW anA reconst .. Wese three l{ashmir miqrants, who are p-Iaceal iq . sinnitrar situation and writlt _same aonditions a W.P.(C) No,75239/2004 Page 98 of I 57 ilo ll._-' trl re er on nob aDD]iC me[ed out a differentia] treatmenL.. considered view, is unsustainable being Article 1,4 of the ConstituLion of India." This in violative n my of

¶150The bribunal rejected the arguments of the respondents premisecl on the pronouncement tn Shiv Sagrar Tiwafi (supra) as well as scarcity of resources holding as follows :-

¶32Moreover, the contention bhal. Lhe direc[ions issued tn Shiv Sagar Tiwari's case supxa and the fact that the Governrnent accommodations are few and the " pQrsons claiming the sarne are more and the rules do not pernr.it retention beyond the specified period, is no iectins the case T.L. Koul's case, even in an'interiin order passed, the Apex CourL was well aware about the decision rendered in Shiv Sagar Tiwari's case as well as the Rules were also in existence at that time as well which prohibits reLeirtion of accoir.moclation beyond "the perrnissible period. Conscious of this, the Apex Court in the light of the fact and conditions as well as circumstances of Kashmir migrants, who have thbir own houses destroyed in I(ashmir and those retired inclined to go back direcLed the Governrnent to ensure their protecLion and as well as ' of their property so that they may be put'bach to their respective houses owned by them in I(ashmir on

28.L.1998 i.e. much after the decision of .9".9" Tiwa{i's case supra as well as.the instructions through OM in L7 .II.1"997, the matter has been pending sine die and to be activated only after the State of Jammu and l(ashrnir ensures return of the petitioners to their respec'[ive Flomes with safety of their persons and property. The aforesaid petition is still pending before the Apex Courl,.

¶33I aiso find that the Governrnenl. bv the letter

2.7 .2002 ld the souqht to be aChieved. officials of Kashmir miqrants workinq in Delhi, who could Ilt-nob get bach to J&K due to prevailing siLuation, a sio and for wtiich ppa has been requesled to formulate [he Fiousmg Scherne for wfiich a drafb has been sent to the Ministry for approval. The aforesaid decision also incorporated. tfuat these houses. are being allot[ed to I(ashmir rnigrants retiring or retired so tha[ Lhe gener:al pool accornmodation got vacated from them. This on a t, -l- --- : -- --- : --*^ -- l.^ derati t

¶34In my considered view, the review rLndertalten blr the respondents in compliance of the earlier directions of this Court has not tahen nobe of letter dated

2.7.2002 as well as the dirbctions in I(oul's case supra. If a post-fac'bo approval can be accorded lly CCA ancl approval by the Ministry for Urban Developrnen[ denyincl annlicant w itriated ec{ual in ali respects. smacks of arbitrariness and hostile discriminal"ion which, as per various pt:onouncernents of the Apex Court, cannot be countenanced and would be an antithesis to rule of laws doctrine of eclualiby.

¶35In the result and for the forgoing reasons,,OA is parLly allowed. Impugned order dated 13.8.2002 is quashed and set aside. Respondents are directecl to allow the applicant [o retain tire Governmen[ accommodation pending decision in SLP (Civit) No.7369/97. No costs." (underlining supplied) . This ctecision of the Central Achninistrative Tril:unal has attained finality and also stands implemented.

¶151Before bhis court the respondenbs have not even Show how :nu presen[ petitioners carl be from either Strtri Tej ffislta.rz (supra) or frorr. [he instances noticecl in para 3L of the judgrnenL of the Tribunal. On the contrary, as set out alrove, in answer [o grounds (A) and

(B) of the writ petition noticed in para 22 above, the responden[s have stated bhaL these contenlions of Lhe pe[itioner are a "rna[[er of recorcl". attempted to distinguished who are'in re[entiqn of qeneral pool accommodetion on thern. 1t3 L52. There is no clispufe also to tire fac[ that the orders in l.[..X{autr, P.K.Itrandoo, M.I{.KowI, Tei f{istrtan (supra) have a[bainecl tlnality and these persons continue to occupy the allotted accomrnodation despite superannual,ion.

¶153The redpondents are unable to poin[ a single distincbion, Ieb alone a relevant otte, bel.ween the presen[ petitioners ancl those in the decided cases. The petitioners al:e iden[ically situa.tecl, yet have been denied equal treatment. Not a whil of erqplanation for not treating these petitionel:s as those in the cited precedenbs is suggested by the responden[s. Even [he im1:ugnecl orclers unfortunately clo not atternpL to cleal with this aspecL of Lhe rna[ter. L54. As noticed above, the respondents contended before the Supreme Cour[ tn' Strtiv SaEar Tiwari (supra) that they have the cliscretion to clraw exceptions in the ma[ter of a]lotrlenbs of public premises ancl have relied on instances ancl cabegories when Lhis discretion was exercised in favour of persons who were even not in public service and were never even ernployecl 'by tire Governrnenl,.

¶155In ground L of WP(9 ) no.1,532912004, Shri P.I(:I(oril, l,he petibioner has stated that the responclents have aliottecl the Govdrnment accorrm.odation not only serving Government 'employees, J:ut to various other categories of ernployees who h.ave nothing to do with.Government service. IL has been stated that "employees worlcing in the oftice of the poliLical p.arties, journalists, freedom fighters, artists ebc.,, are also allot[ed general pool accommoclation. This averment is no[ contestecl by the respondents who have only submitted that the ll--' '--'--T--' Page IOt of tsz rlY' .. ' allol,rnent of the quarl,er is mad.e as per bhe rules and policy laid clown by the Government.' 1-56. It is trite that residuary rules are interpretecl and wor:lceci to empower authorities permitting exceptions from applicability of tlre rule to remove hardships (Ref : 1.993 5wpp.3 SCC 5n5 (para 33) Syed X(halid Rizui us. UOI & Ot's; (tgg6) S SCC 762 5BI & Ors. us. I{ashimath f,{her & Ors.; (n988) 4 SCC n 79 Astrtotrr X{r. Uppal and Ors. us. State of lenQ. 1,57. The orders in Tej n{isham (swpra) mal<e a detailed reference to the voluntary exercise of discrel,ion in favonr of three migrants by the respondents which was the entire basis of the fincling of arbitrariness by Lhe Tribunal in the acLion taken against Tej Kishan and co-peLitioners. These veiy finclings scluarely apply to the cases of the present pe'bitioner:s. 1'58. No explanation is rendered or rehson given by the reslronclents for the'rejection of iclenbicai requesl.s of some of the petitioners or for not favourably consicler:ing the saicl. recluests of the pebilioners. The failure to even consider these requests, clespite the specific directions in P.K Koulis previous writ petition reflect highhandedness, unreasonableness and arbitrariness .on the part of the respondents. The responclenl,s have granted approval to similarly situated persons. Denjal thereof Lo bhe equally placecl petitioners certainly tantamounts to hosLile discrirnination against them which is irnl:ermissible ancl as observecl above 'an antithesis to the eqr.iality clause,. The action of the responclents in noL favourably considering the petiLioners' represenbations; in cancelling the allotrnenbs of tne --lt"--. pebitioners ancl proceecling agains[ them uncler the Pu]:lic Prernises Act, 1,97 L as well as the impugned orders are,' therefore, not susLainable also being in violation of Articles \4 and l-6 of the Constitution. Chamse in Folicv L59. There is yet another imporLant side to Lhe clairn assertecl by the petitioners which requires consideration. The declared policy of l.ire state with regarcl to the IDPs from Kashmir is concernecl with [heir rehabilitation. Forcible eviction from their currenl. resiclences without an alternative is noL even remo[ely suggestecl in bhese policies. The same is evident frotn the affictavit ptacecl before the Suprerne Cour[ in J.L"ndowL,. St^t* oil Jamtnw & Kashmir (supra) and the le[ter dated 2"d JttJy, 2OOZ placed.before the Central Achninistra[ive Tribun aI in Te.f X{ishen Vs. Union of htdia (supra). The decision taken. to. cancel the petitioners' allotments and to ini[iate proceedings rincler the Public Premises (Eviction of Unauthorised Occupants) Act, 1971-wiLhouL mairing available of all.ernal,ive shelter clearly suggests a clrastic change in the government policy so lar as these IDPs are concerned..

¶160In a recen'b juclgrnent of the suprerne court repor[ccl ab MA,IVU/SC/0476/?0L0 sindltu Education Society & .A.nr. vs. The Ckief Sectetaty, Govt. of NCT af Deltrai & Ots., Lhe Supreme Court obserwed that frarning a policy is the dornain of the Governmen[. The framework of the policy ancl [he working of such Governrnent Policy has essentially to be clone within tire frarneworh of the constiluLion & the laws. As ancl. when Governrnent changes its policy clecision, i[ is expecl,ecl Lo give Page I 03 of. I 57 lL valicl reasons thereof and act in larger interesb of the entire communiby rather-than a'section. In para 66 of bhe judgmen[, the Supr:erne Court held tha'L : . "........... It is a settled canon of adrninistrative jurisprudence that state action, musl. be supported.by some valid. reasons and 'should be upon due application of mind. In the affidavits filed on behalf of bhe state, nothing iri this regard could be poin[ed ouL and. in fact, none was pointed out during the course of . arguments. Absence of reasoning and apparent non- . applicabion of rnind would give colour of arbitrariness to the state actiott." The position in the cases in hand is no differen[. The stal.e cloes not again even suggest a reasonable explanaLion or valicl reason for the change from the rehabilitative policy to Lhe clecision to evicl, the petitioners and thereby threatening them wibh imrninent hbrnelessne ss L61. The respondents would have the r:igh[ to change.its policy upon ch.ange in circumstances. (Ref: (1998) n SCR Ln2O State of Pwmjab & Ors. us. F(amt nwbhaya BegrEa & Ors.). No such change is pointed out in the presenb cases. The decision to l"reat the petitioners as unaul.horized occupan.r.s without their resettlement is clearly noL premisecl a change of policy upon application of mind and therefore not susr.ainable. Res-" "qibilit-v of tlte Central Governnteilt

¶162It has' been suggested by Mr. Ja[an singh, Iearned standing counsel' for the Union of .India that the central Governrnent has no responsibility vis-a-viz the petitioners in l,he given facts and thab only the State of Jammu and Kashmir is lial:Ie for the infraction of the rights of the pel,itioners. IW

¶163Tle sg'brnission on l:ehalf of the petitioners on the other hand is thaL the cluty and responsibility of the sta[e authori[ies vis-a-vis th.ese groups of per:sons which stands recognized and aclmitted by the both the state ancl Cenbral Government i[se]f. As such, the rights of the petitioners' canlot be ignorecl, impe::ilied or violated by any of the. respondenLs. L64. It is urged that the respondents have heartily engaged with ancl rnanifested extreme concern for refugees frorn o[her coun[ries, but have ]iandled inadequately, and even failett Lo address the clifficulties of internally displaced persons.

¶165Reference is also made to the poiicies of regulariza'l,ion of unaul,horized constructions and encroachmenLs on public lancls are pointed out. Several schemes and policies of Lhe respondents with regard to the disadvantaged lnasses so far as rehabilitation and resettlement is concerned. The atLention of this court is clrawn also to the,several jtidgments concerned wi[h the right of shelter of pavement and jhuggi-jhompri clwellers including Olgra TeIIis v. bomltay lvfumicipal Cottrooration & Ors.; ,4,Iameda,trtad \Wunicipal Cot'poration us. Iva*ab ntnean Gulab f{ham & Ors.; lagdistrt us. DDA; Swdanna Singrk '& Ors.us" Governntent 'of Delhi & ,A.rtt'. which have been referred above. The petitioners have urged a[ some'length [hat [he respondenl.s have s]rown utter insensibivity not only in proLecting bheir righLs but even in ilre pursuiL of tne rnatter before this court.

¶166The question which begs an answer is having failecl to ' ensure the life and safety of the petitioners or l,o pro[ect ilreir lrroperby, or to guararitee either of them, what would l:s [he W.P.(C) No.t5239/2004 1-- +- ttl Itr obiigation, d.u[y and. responsibility of the respolrdents qua the' petitioners.

¶167It is an admitted fact that the petitioners were-all empioyecl by the Central Government or its agencies. In order to avoid cornpromising the security issues of these persons, a more ctetailecl analysis of the factual matrix is. not being undertaken. However, the p.resent cases set out instances of . extreme trauma faced by the petitioners and Lheir family rnembers as well as the. continued threab to their life and property. I.n one of the cases, the.petitioner is a desti[ute lady who was working in the Ministry of InformaLion & Broaclcasting of the Governrnent of Inclia used to give live perforrnances and conducbed programs orl behalf of the CenLral Governmenb in remote villages in Lhe valley as well as on the electronic media rnaking her face hnornm to the militants. Her troupe was a[fackecl in rgBT while perforrning at lCrarna]ral in District Anantnag and they had to flee for their life. In [iris backgrouncl, she was bransferred to Deihi, and was allottecl the premises by the respondents. The petitioner points out thaL in mid-l-990, Lh; songs ancl Drama Division office in :srinagar, Kashmir was blown up and the entire staff transferred to Deltri. Not only [he, house of her in-laws but her ancestral/parental rental house-also s[ands burnt down ancl she has no place to return to in Kashmir. Even afber she was .evacuated from the vailey, her'brother received threats to her life by way of communications advising the petitioner to desist .from participating or performing i:r llrograms in support of the Government. This colnilLutlical,ion has l:een placecl on recorcl. The petitioner was deserbed bv her il7 husbancl d-ecacles ago and she stancls.abandoned by the S[a[e wi[h none to assist to her. The writ petition sta[es that she is getting a meager amonnt of {4500/- as pension, insr"rfficien[ even [o sustain her, Iet aione acquiring rights in any property. 1-68. Another petitioner who was Lhe author and the voice of a programm.e on the All India Radio in Srinagar division which became popular acl:oss the line of control was so targetted by the militants. A price for his head. was even announced.. In one of the CaSeS., despite the security cover, all atternpt was rnade on the life of the petitioner whose proper[y ancl belongings stand looted and gutted in Srinagar and he has no proper[y ab all anywhere in the country. There are other pe[itiohers who were working in the intelligence-agencies in the state who were evacuatecl on emergency basis after their colleagues were shot clead. Several of the iretitioners have lost close friends ancl relatives on account of the atbachs by militants. The petitioners were targetted because they wers l.he face of the Central Government in the Kashmir valley and are unable to return for the same reason. L69. So far as ensuring the right to shelter is concernecl, bhe Sripreme Cour[ has held that the state is deerned to be unde:: an obligation to secure the same to its citizens [Ref : @996) 2 SCC 549 Cltameli Singlt & Ors. us. State of U.F.(sutrora), that it is imperabive for the state to provide permanent housing accolnmodation to the deprived 1'70. rn x.995 (2) snR 72 P.G. Gupta us. state of Gujataf,the Supreme Court hacl further declarecl tha[ it was the cluty of the sLate to construct houses at reasonable costs and make 'thern ,l i * *'il'*- '*--'r l?E easily accessible to [he poor, and that such principles have ]reen exitressiy emboclied i" our Constitution to ensure socio-econornic clemocragy so that everyone has a right to life, iiber[y and securi[y of the Person' In tiris con'Lext, in para.11 of the pronouncement, the courL expressly laicl down tire imperative duty of the s[a[e [o provicle perrrandnt housing accolnmoclation to the poor in the housing schernes unclertaken by it, or its instrurnenLaliLy and observed as follows:- :"rt. As itated earlier, the right to residence ancl fun under Article 1-9(L isht under minimal human riqhts. The State has undertaken as its economic policlr of planned development of the counLry and has undertaken massive housing schemes. As its part, allotrnent of houses was adopted, as is e.njoined by arts. 38, 39 ancL 46, Prearnble and l-9(1)(e), facilities and opportunities to the weaker sections of the soc.iety of Lhe righ[ bo residence, make the ]ife meaningful and iiveable in equal status with dignity of person. It is, therefore, intperative of the State to pt'ouicle pern'zament ntows. rln schemes undertahen by it or its instrumenl.alities witnrin thein econouri.c means so that thev could rnake l.he payinent of the price in easJr instalmen'bs. and naave penrnanent'settlennent and residence assured under Article 1-9(1)(e) and 2l-of the Constittil.ion. xxxxx" . (Underlining supplied) I7I. The Suprerne Courl. has repeateclly reiteratecl f;he well seLLiecl posibion that tire state iras the constitutional ctuly bo provide adequate facilities and oppor[unities to all including the disadvanbaged and the displaced, by distributing its wealth and resources for the settlement of life ancl erection of shelber over their heads. The court has emphasized the constibutional right of every citizen to rnigrate and settle in any parb of Inclia for: seu" and l.l be[ter ernployment opportunity and it would be the duty of'the state to provide right to shelter to the disaclvantaged. in socie[y' (Ref : ,4htnedatread Municipal CotTtoratiort Vs. Nawatrt Khan Gwtrah X{han & Ors. (swPra). 1"72. .The forcible rernoval of pavement and slum dweller:s by the agencies of the state without their reseLtlement ol: rehabilita'bion has been repeatedly deprecated by the coul[s in the plethora of juclgments on the subjec[.'In case they have to be evicted. from the plbce they are occupylng, state authorities are bouncl to formulate schernes and policies. The responclen[s have gone on recold with regard to such projects as are ilL vogue for.their relocation, resettlement and rehabilitation. (Ref:

(1955) 3 SCC 545 OIga TeIIis t/. Botnhay Municipan Cotytoration & Ors.; (1997) LL SCC L2L Ahmedabarn fifunicipal Corp,otation Vs. ]Vawa"b .K.trtatt Gulah. Ktrtatt & Ors.; Iv{ANU/DE/9327/2OO6 Jagdish us. DD'L; decision of this courb' clabecl l-Lu\. February, }OLO WP.(C) No. .8904/2009 Swdanta Singlt & Ot"s.) Placing reliance on []re obliga[ions under the international instruments, the courts have repea[edIy 'stated that adequate and reasonable facilities for resettlement ancl effective steps taken for rehabilitdtion 'have to be macle available before forcible eviction. 1,73. An issue involving chakmas who were Lribals frorn erstwhile East Pakistan (now Bangladesh) went to Lhe Suprerne Co'urt in tire case reportecl at (1.996) I SCC 242 Nationan Ilwtnan Rigrtrzts Cotmtnission us. State of A,twnac.hal .Ftaetres,lt Attt'.In this case, a public interest liLigation was filecl by the National Fluman Rights Commission seelcing enforcement of rights und.er Article 21, of Lhe Indian Cons[i[utiott, of a]rout 65,000 Chakma/Hqong tril:als. . Ib was allegecl that these Chakmas had settled primar:ily in [he State of Arunachal Praclesir ancl were being persecuted by sections of the citizens of the state i.e. the A11 Arunachal Pradesh sludenLs Union referrecl to aS 'AAPSU" fiereafter. I[ was additionally complainecl that the applications of the Chakrnas under Lhe Citizenshiir Act ancl Ruies thereunder were not being forwarciecl by the Sl.abe Government for consideration to the Cenl,r:al GovernrnenL in accordance with law. In clecicling the ntatter, the Supreme Court piacecl cibizens as well as non-citizens on a common plaLforrn so far as the righLs under ArLicle 1.4 and 21" of ' the Constitution are concerned. So far as the constitutional and.the stal.utory obligations of the states to protect the rights of those who reside wiLhin the terri[ory of that state are concerned, the court observed as foliows :- "20..We are a country governed by the Rule of Law. Ogr Constitution confers certain righ[s or1 ever1r hurnan- \ being and certain other rights on citizens. Every person is entitled to equality before the law and eclual .probection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is J:ound to protect the life and liberfy of every hurnan-being, be he a citizen or otherwise, and i[ cannot permi[ any body or group of persons, e.gf., the AAPSU, to threaten bhe Chakmas to leave bhe state, failing which they would be forced to do so. No Sl,ate Governmen[ the name can tolerate such threa of person'to another group of persons; i[ is cluty bouncl to protecb the (Sic) group from such assauiLs and if it faiis [o do so. it wi]l fail to form its Constitr.rtionai as weli as s[atutor]r obligations. Those giving such (Sic) woulcl be liable Lo be dealt with in accordance with law. The w> Page I l0 of 157 t its -- ---l t---**---'-- t-_.- t+ Iteing of Chaknas residing in the StaLe wifhout beincr inhibi[ed by ]ocal politics. Besides, by refusing [o forwarcl their applications, the Chakmas are d"eniecl righbs, Qonstitutional and statutory, to be corisidered for being regisbered as citizens of India." The court consid.ered the factual matrix and prevalenb circurnstances in detail and thereafter issuecl, inter alia, a wri[ of nandamus clirecting the State of Arunachal Prad.esh, . to ensure that the life and personal liberty of each and everY Chakma residing within the State shall be protec[ed ancl any attempt Lo forcibly evict or drive them oul, of the State by organised groups, such. as the AAPSU, shall be repelled, if necessaqF by requisitioning the service of para-miiitary or police force. The Union of India was directed to provide such aclditional force as is necessary to pro[ect the lives ancl liberiy of the Chakrnas on. the request of the first responclent. Tfe Supreme Court fur[her directed that the Cha]<mas shall nol, l:e , evicLed from their homes except in accordance with law and shail not be cteniecl clomestic life and cornfor[ therein; the S[ate Government was directed to deal with the quit notices and ultirnaturns issued'by the AAPSU ancl any other group which tantamountecl to threats Lo the life ancl liberLy of each ancl eve.ry chakma in accorclance with law. The supreme Cour[ has [hus recognizecl [he responsibility of the Central Governrnen[ Lo a provide forces to protect the right to life of the threatenecl persons. L7 4, unlihe the chakmas, the petitioners are IDps who complain of violation of the same rights ancl seek redressal thereof. I{owever, the extreme situation of harclship ancl Pagelllofl5T clifficulties J:eing faced by the petitioners and other persons sirnilarly placecl is no different. The State Governmen[ has l:een unable to protect or secure the life and property of the. petitioners. The Central Goverlment has not been able to aclequately aclclress the several issues which have been raised. Many of the pebitioners hacl been'physically evacuated by the Central Goverrrinent in ex[rerne situations. A]l the pe[itioners were ernployees of the Government in Delhi and ]rave superannuated in Delhi. The attempt being made at presenl, is also by the Central Government at Delhi is to forcibly evic[ the . petitioners by talcing recourse to statutory provisions. L75. It is the constitutional duW of the state to protect human rights and the fundamental rights of aII pbrsons. The distinction between such rights and legal rights which may lecg.rire acJ,judicabion in appropriate proceeclings has also been ernphasisecl on severai occasions. In (1.982) 3 SCC 235 People's Uttiott for Democratic XtiEXnts & Ors. Vs. Uniott of fndia & Ors., the court observed thaL clenial of statutory righ[s of the labour force, which was a vulnerable section of Lhe cgrnrnunity, tantarnounr,ed to breach. of tireir coustitutional rights Td was therefor ei enforceable against the government. It was held that it was the duty of the union of Inclia, the Delhi Administration ancl [he DDA to ensure that the constitutional obligation towarcls labour are discharged by the contrac[ors [o whom they had entrusbecl construc[ion worh. It was helcl that the Union of India, Delhi Actministration and DDA cannot foiill their hands in despair ancl becorne silenL spectators of the breach of constitutionai prohibitions beiirg t1 ..-l I----------l Page ll2 of 157 8( committed by their held as follows :- contractors. In this con[ext, the cour[ "2L. Before leaving this subject, we may point'ont with all the emphasis at our command that whenever anv fundamental riqht, which is enforceable against private individuals such as, for example a fundamen[al right enacted in Article t7 or 23 or 24 is l:eincr violated, ' il" is the constitutional obligation of the State to tahe the necessahr' steps. for the purpose of interdictinq snch violation and ensuring observance of the frindamenl"al same. O bv the private individual who is transqressing tlre . Of course, the person whose fundarnental right is violated can always approach the courL for the pltrpose of enforcement of his fundamental right, bu'[. Lhat cannot absolve the State from its constitutional ol:liqation t"o see that there is no violation of the fundamenbal right of such lrerson, particularly when he beionqs to the weaker Section humanitv and is unable to waqe a lec{al battle aqainst a strong and powerful opponenl, who is exploitiriq him. The Union of India, the Delhi Aclministration and the .Delhi Developrnent AuthoriLy must bherefore be held to be under an oJ:ligation to ensure ol:servance of these various labour laws by the contractors and if the provisions of any of these lairour laws are vioiated by the contractors, the pel,itioners indicating the cause of the worhrnen are entitled to enforce this obligation against the Union of India, the Delhi Administration and the Delhi DevelopmenL Authority by filing the present wril. petiLion. .The preliminary objections urged on behalf of the respondents must accordingly be rejecl,ed." The failure of the state to ensure statutory rights was held to provide the essentlal basis for maintaining the writ peLiLion under Articie 32 f.or enforcing fundamental rights againsL bhe S[ate and its agencies 1"76. It is noLeworthy that a writ petition was fiiecl in this court in connection with compensaLion payable to resiclents of Kashmir whose property had been destroyecl in the disturbances in Kashmir. The judgment of this court reported at ,AnR zoos Delhi xLo ts.L. watri & ors. vs. [.htion af, rmdia & @rs. has W.P,(C) No,75239/2004 Page I I3 of 157 own PG made observations on this very unaccep[able stand of [he Governrnent of Inclia in its affidavit which is uncler considerabion. 'Ihese observations'before l.he Court reacl as under:- "20. Respondent Nq.L, Union of Inclia, has aiso filecl an affidavit under the signatures of Mr. K.M. I(uLi, Under Secretary in Lhe said Ministry ciealing with the Department of Jammu & Kashmir affairs. Respondent No.1/UOI J:y way of the said affidavit effectively wash.es its hands off the matter. It is stated that relief and ::ehabiiitation are State subjects. Para 2 of the parawise reply may be reproduced to show the stand of the Union of India:"2. That the averments madg in irara 2 of the petition that UOI is invested with the lesponsibility to rehabilitate and provicle relief to the citizens who suffer as a result of faiiure of staLe to protect their' life and property is rnisconceived, incorrect and is denied. The answerinq respondent respectfully submits that ' Law and Orde,r as well as Relief and Rehabilitation are State Subjects. Ministry of Home Affairs has the responsibility of providing Relief and Rehal:ilitation to refugees from Wesb Pakistan (now. Palcistan), East Pakistan (now Banqladesh). Sri Lanka, Tibet and to the repatriated Indian Nationals. Therefore, the present writ petition qua the answering respondent is not maintainable." '

2.1". The Government of India, thus. considerecl its responsil:ilit-y for providinq relief and rehabilitation Lo who of this coun to citizens of the country who are refugrees in th.eir own countrfr. Thd apathy is writ large on its face.

¶22There is a vast para para pherneiia of rnili[ar]r a mili nnel in mmu & . The boundaries of the counLry are to be protected. The condition in bhe S[ate was sp selious that iL ]ras been taken as a priority issue. The dislocation of persons from the Valley is a

¶23Article 2r of. the constitution of Inclia provides for the Fundamental Right of ProLection of Life ancl Personal Liberty. Life cannot be l:are' existence. Persons who are displaced and suffered ir:jury to rife Page ll4 of 157 ph .and, properly as a result of terrorisilt' canno[ be lefL without rernedy. It is the duty and responsibiiity of [ire State to Brotecb its ci[izens. Citizens li]re t]re pe'bitioners are victims of environmen[, whic]r is noL their own creation. The State owes a responsibility to create an environment for safe and diqnified existence of [he ci.tizeu.s." This court rejected that the responsibility towards the payrnent of the. compensation rests with the State Government alone holding as follows:- (Emphasis supplied) the stand of the Governrnent of India "3L.The Government of India cannot also absolve itself of the responsibilitv and is liable to ensure that Lhe SLate Governrnent remits the amount. A large arnount of funds fLow to the State of Jammu & Kashmir: from the Central GovernmenL lceeping into consideration the disturbed conditions and, thus, the Central Governinent cannot saJr that it has no rqle to plalr. The State of Jammu & Kashrnir is an integral part' of our country and the writ of the Central Government runs. In the cases of'victims of Charari Sharief incident, funds have been clisbursed out of the Prime Minister Relief Fund to malce a paclcage of R's.z lakhs of ex-gratia compensation apart froin other benefits. " ' In this judgment, the court held thaL whaL hold.s true for State to probbct the same.. It is 1,77 . loss of life and limb, would hold true for loss of proper[y occasioned Jry failure of the no[eworthy Lhat in the present writ petitions, Lhe petiLioners '. have nol, I:een d.eprived of their property ancl hornes in accorclance with. law as, for instance, in the case of acquisi[ion proceedings. The deprivation is a direct resull. of [he failure [o con[rol t]re violence against the petitionei-s. 'rhe principles laicl down in the above juclgment would apply to, the Kashrniri mrgrants on every score. More important is the clear finclipg by the courl, of the responsibility of the cenl,ral Government for the rehabilil,aLion ancl rerief to the IDps frorn l(ashrnir. W.P.(C) No.t5239/2004 Page Il5 of 157 t2-{ L7B. It is qlfortunate that ciespite this acljuclication, the stancl wirich was rejected has again been [ahen in these proceedings' 'Ihis position on behalf. of the Central Govelnrnent in facl: ignores the commitrnents made in legal proceedings noticed above. : t79. I[ is noteworthy that the displacernenb of [he petitionels is also not intra-state. The petitioners have been compellecl Lo leave the boundaries of their state and are residing in Delhi.

¶180The' Central Government has achnowledgecl i[s r:esponsibili'ty in the rnatter inasrnuch iL has in[ervenecl in [Jre matter. Several of the present pel,itioners sband evacuated by it ancl [he allo[ments of the quarters in [he instant case stancl rnacle it. Central resources are being utilizecl for clevelopment projects and security purposes in the sl,aLe and aclmitteclly the Cenl;ral Governrnent has accep[ed and assumecl responsibiliLy towards rehabilibation and. resettlemenI of the persolrs clispiacecl. as well in the granl,s and reservation made by it.

¶181Il, was observecl tn(1978) L SCX? I State of Ra.t'asthatn & O.ts. us. U0nby Chief Justice Beg that :- "In our country national planning involves clisbursernenl,s of vast amounts of rnoney coliected as taxes from citizens .residing in all [he States and placed at the clisposal of the Central Government for the benefits of the Stal.es without even the "conditional grants" rnenl,ioned above. . I-Ience, the manner in which state Governrnenb function and deal with sums placed at their disposal iry the union Government. or how they carly on the general administration may also be matters of consiclerabre concern to the Union Government." 1"82. The expansion hnd interpre[ation ]:y the courts has affirrnal"ively established a positive righL to housing ancl shclLer for eyery person as parl, of the fundamental right. Hlrman Page I 16 of 157 righbs and. funclarnen[a1 rights are inalienable; their violal'io1s are inclefeasible. The state is under a constitutional obliga[ion ancl clutyto protect these rights. When viola[ecl, a ci[izen is entitlecl to their enforcement. The constitutional rnanclate upon i[, is coupled. with the statuLory cluty ancl public law obligabions [o ensure the protection of the funclamental ancl basic human righ[s to a]1, j.n ad.ctition to its obligation under the several inLernabional instrumenbs noticed above. This essentially rernains in the'exclusive domain of state ftrnctions. Failure to protect [he ci[izens from eminent loss of ]ife ancl properly as well as maintenance of public order, implicabes [he s[ate for culpable inaction. tB3. Mr. Jaban Singh, learned standing counsel for the Union of Inclia has urged that these petitioners are not publib servanl.s and can ciaim no right to continue in the allot[ed public premises. It has been vehemently urged that on accounl. of their super:annuation, they ceased to be Governrnent servanl,s and are disentitled to retain Government accomtnodation. Learned .Stancling Counsel has urged. at sorne length that the Governrnen[ of India has formulated a re]rabilitation package which necessitates that all these petitioners must return to bireir homes in l(ashrnir. It is contencled tha[ by th.eir failure [o vacate, the rights of the several Governrnenl. employees who are waibing to be allotled Governrnent accommodal.ion are adversely effected. Unfortuna[ely the responclents are una]:le to submit that the petitioners would be safe upon return or how the respondents propose to ensure protection of life ancl liberty of W.P.(C) No.752i9/2004 Page l 17 oT tsz the pe[itioners or enslrre restoration of their properby in IGshrnir vaIley,

¶184Before the Supreme Court of India, Lhe respondents lLave acceptecl responsibility and obligation Lo the IDPs frorn I(ashmir ancl clairnecl to have advanced huge grants to the State of -Jarnmu Kashrnir and also.set out a detailed.scheme in the affidavit filecl before the Supreme Court. ' In the instant case given the nature and extent of Lhe violations, the Urrion of India cannot abdicate responsibiliLy in the matLer, or avoid its constiLutional obligabion of at leas[ ensuring reasonable shelter or a roof to tlr.ese peLitioners. Financial strimcrencv of the Governrnbnt

¶185Piacing reliance on the juclgment reporbecl at (2005) 6 SCC' L3E lvXaster \Viarime Seruices Fvt. [,td. us. Metaalfe and tr{odgrnrinson Fvt. nffi. & Anr.; it has been furLher argued by Mr. Jatan'Singh that this court is bound to exercise judicial res'[rainb and cannot be unmindfu] of the adrninish:ative burden and increase in unJruclgeted expenditure on account of cluashing decisions. It is urged that in this background, while exercising power of judicial review of an administrative decision, the corirb' .cannot substi[ute its own decision withouL the necessaly expertise and cornpel the respondents to exercise discretion [o permib the pebitioner to continue to occupy the aforenoticecl accolnm.odation.

¶186This submission fails to consider the nature of the rights whiclr are involved in the case in hancl. lvfetca.lfe HodErlrinson Pw" lt td. (swpra) related to a challenge to award of a tencler W.P.(C) No.I5239/2004 Page I I8 of 157 [he B\ ancl con[rac[ of work of professional sewices to bhe ap1:ellant ancl was not concernecl with a plea of violation of basic hurnau rights ancl consl,itutional guarantees as are involved in [he instant case. The consideration Ln Metaatrfe t{odgrnrtnsott Fvt' X,tttr. (suptal has no application to the present case. LB7. In (2003) 6 SCC n l{apila Elingrofafii us. Statb of Bihar & Ors. the State Government had, however, ple-acled financial sl,ringency to shift its liability to Lhe Union of India or to Lhe SLate of Jharkhand.' In para 67 of the juclgment clatecl glr' of May, 2003 Supieme CourL had held thaL the liability of the sl,al.e of Bihar cannot be shifted to the Union of India only because it is the repository of funds raised by it through excise and clther central levies and impost, and consequently it woulcl not be inclirectly or vicariously liable for the failings on th'e part of the State Pul:lic Sector Und.ertakings. It was helcl that either prececientially or jurisprudentially, the Union of Inctia cannol. be heict liable and no such direc.tion as was being sought by [he state government could. be issuecl. The Suprerne Court, however, clearly cleclareci Lhe posibion [hat financial stringency may not be a ground for noL. issuing requisibe directions when a quesLion of violation of fundamental righ[ arises. In this regard, the cour[ no[icecl the ernl:hasis given by it on this aspect inclucling the juclgrnenLs repor[ed at ft98nLSCR.G4L .Rwra.[ LitiEratibtt and Entittrement [dendra and ors. v. State of uttar" Fradesh amd ors. ; L98ocrin"{Lo7s Municitrta.r caumclL Railanx vs. I vardiahan & ons"; HggLISscRBo E.L..wadhera v. [htion of lndia ; (L995)4sccso7 state of Er.F" v. .E{.p. state Page I 19 of 157 bw Recogrnised & tlided Scltools lVlanagringr Contntittees and ot-s.; ,4,[R. n 996 sc 2426 Faschim EattEa Khet Mazdoof Saimiti & Ors. us. State of West Eengal & "Lttt"'J In para 65 of (2003) , 6 SCC L entittred Kantina Elingrorani Vs. Statej of Bihar & ors, the CourL rejecLed Lhe conLenLion of the State of Bihar also to this effect. 1BB. In para 6 ar page 589 of (L993).3 SCC 584 A,il Xildia .fntatn Orgranisation us. IIOL the Supreme Court held tha[:- "6....Much was arqued. on behalf of the Union and tire Wakf Boards that their financial position was no[ such that they can meet the obligations of payincr bhe hnarns as they are beinq paid in the StaLe of Punjab. It was also urgecl that the number of mosques is so IaIC{e that it woulct entalI hearry expenditure which the Boarcls of different Sbates'would not be al:Ie to bear. We. clo noI find anlr correlation between the [wo. ffizlazlcfa/ dif,ficutrties of, the institwtion cannot be afuove fundamental tiqh.t of a citizen. If the Boards ltave been entrusted with the responsibility of supervisinq .and administering the Wakf then it is tireir du[v to harness'resources to paJr those persons who perform ' the rnost important duty namellr of leadincl community pralrer: in a mosque the very purpose for which is created." ' 1B9. On the same issue in (L995) 4 SCC 507 State of, nd.F" . vs. M.p. State R.ecoEnised & ,A,ided Sctrtootrs lvfanaErimgr Conwnittees, bhe Supreme Court observed bha[:- "1-6. 'flre constitutional mandate to tb.e Sta[e, as upheld by this Court in Unni l(rishnan case - to provide free education to the children up to the age of fourl.een - caxnn@t be pennitted to be circwtnvented on ttrte grround af lacnr of economic capacity o.r. finanaian ittcalaacityt"

¶190The ohservabions of the Supreme Court at QAAil 2 SCC ' 262 X{apila I{imEorani us. State of Bihat' & Others, while disnt.issing the review petition filecl by the Bihar Governmen[, seeking a review of the earlier order clatecl 9th May, 2003 are \b9 also topical on this objection of the respondenbs and need Lo l:e consiclel:ecl. The S[ate of Bihar had submitted that the state had no liabiliW to pay the salaries of the employees of the statutory corporations/companies incorporated uncler . the Inclian Cornpanies Act and that they were not completely under the 'conl,rol of the Sta[e. Before the Supreme Court, couttsel for l,]re State of Bihar had urged that the rernedy of the ernployee was to tile appropriaLe applications befbre the Company Judge who was seized of the winding up proceedings in relation l.o such comllany . These submissions were rejecLed by corul. oJ:ser-ving that in the order dated 9u' May, 2003.; bhe court had considered l.he rnatterfrom the hurnan rights Espect as well as [he fundarnenbal rights of the employees in the public sector undertaking operating in the state of Bihar, The court noticed. that afber Lhe passing of the ord.er datecl 9th May, 2003, several employees died due l-o non-paSrment of their salaries. Th.e court placed reliance, inter alia on para 24 of. the clirections clated 9tr' May, 2003 and while rejecting the rgview petition filect by the respondents observed as follows :- "24. This Court further obsewed that the State hab a constitutional ohliqation and acts in a fiduciary capacity vis-fi-vis performance of its consLi.tu[ional duties and functions bli the public sector undertakings as it has constitutional obliqations in relaLion thereto." . (Underlining supplied) So far as protection of such hurnan rights ancl fundarnen'bal rights, and remedy for viojation thereof, is p\ Concernecl, the courl, issued directions to the state governmen[ to pay ilre salaries of employees in the public sector unclcrtakings in the following bertns :- "22. The Government companies/public sector unclertakings being 'States' would be constitutionaily liable to respect life and libertv of all persons in terns of Article 2l-of the Constitution of India' They, l.herefore, must do so in cases of thgir own employees. The Government of the State of Bihar for all intent and purport is the. sole shareholder. Although in law, its liability towards the debtors of the Company rnay bb confined to the shares held by it but having regard [o bhe deep and pewasive control it exercises over the GovernmenL companies; ln the matter of enforcement of hurnan rights andior rights of the ciLizen of life and liberty, the State has also an additional duty to see tha[ the rights of employees of such corporations are no[ infrinqed. The riqht to exercise d.eep ancl per:vasive control would in its turn make the Government of ljihar liable Lo see that the life and liberty clairse in reslrect of bhe emplbvees is fuliv safeguarded. The Governrnent of the .. State of Bihar, thus, had a constitutional ol:ligation [o protect life and liberty of the ernployees of the GovernmenL owned companies/corporations who are reclard to its right of extensive supervision over the affairs of the companlr." xxx . 37. We make it clear that we have nob issuecl aforementionecL directions to the m Jharkhand on the premise that thelr are boirnd to pav ES f the nub undertalcings but on the qrorind that Lhe ernplovees have a ltwman rioht as also a func{amental riantt wnctrer ,Artictre 2L wltich the States are hownd'to naz'otect. The directions, which have been issued by this Courb on 9th May, 2003 as also which are being issuecl herein, are in fuItherance of the human ancl of their leqal ricrht to of salaries. The amount of .salary payable to the concerned employees or worhmen would undoubteclly lru a{udicated upon in the proper proceedings. However, these directions arb isluect - which ire necessaqy for their survival. undouJrbedly, any arnounl, qaid by Justice uctay sinha cornrnitbee priisuant to these direcl"ions shall be duly credited for.,, (Emph.asis supplied) '( 1-91-. The principle reiterate.I Jrv the suprerne court was [hab financial ctifficulties of the institution or the sta[e cannot ]:e above the fund-arneltal"rights of the citizen. It has also been observed. that in a .situation of the nature which was before Lhe cburt, it was obliged to issue necessa4/ directions [o mi[igale lhe exbrerne hardship of the employees involvilg of hurnan rights of the citizens of the country at the hairds of the sLate governnel't. and. companies and corpora[ions owned and controllecl by it. Lgz. Olher bhan the bald reference to the judgrnent in lVfetuanfe (supra), learned. stancling counsel has piaced no facl.r,ral assertions iq supporl, thereof. Such subrnission is clearly untenable in view of the admitted Government position in the affiitavit clatecl 6th October, 2009 filed tn i.[d. n{oun @trytra) before the Supreme Court of its responsibiliby as well as liability qua the dispJ.aced. I(ashmiris. The sarne stands admitLecl in the discretion exercised in favour of the three persons cited tn Tei 'f{is,han (swpra) ancl the letter datecl 2"d July, 2OO2 placecl before bhe Central Achninistrative Tribunal as also in the policy of reserval,ion/preferential allotment of the flats. The respondents have cleariy adrnitted their responsiJlility ancl are bouncl by their commitrnents.

¶193lJefore 'this'court, the responclents have not sta[er]. that there is any assessment or calibration in terms of priorities of the various of the several projects which the responclents neecl unclerbakb or the various areas which Governinen'L business aclclresses. the responcients explain neithbr the financial Page l2j of 157 \F burclen of ensuring shelter to these IDPs nor Ehe ex[6nt of th"e available . resource. 'Mere announcement of SChemeS and allocation of large volume of funds by the Government as a t:eacLiott to court clirections upon occqlrence of events in the colLtry by thepselvbs are insufficient a1d may prove to be ineaningless. Displacement as that of the presenb petitioners clearly reflects the imperative to take a holisLic view and for: the cLecision makers to take a 'rninimum-needs' .based approach wher.e ensuling basic human rights and social welfare are concerned. Lg4. Experience ancl exarnples abouncl in tiris ci[y and the aforenoticecl juclicial precedents of foicible evicLions.relating [o slums ancl jhuggi clwellers. Defenceless and disadvantaged citizens are forciirly evicted frorn their shelters which are.l.hen d.estroyecl. AncI then, the long arm of the s[al.e, gives a hyper technical in[erpretation to iegal clefinitions, takes [ire shie]cl of statutory provisions and implements what is tori[ed as the "qule of law" in removal of "encroachments" by the disadvantagecl. O[hers itlegai constructions ancl d.evian[s are "regularised" or "comllounded".. Thls very ethos is illustrated in the presen[ writ petitions

¶195Instance after instance of schemes in Delhi for 'r-egularising not only ranlc illegal ancl unau[horisecl cons[ructions ]:ut also large scale encroachmen[s on,public lancl are in existence and being implernented. So much s.o that l-lie Central Government has prornulgated ordinances and statu[es prohibitting dernolitions of huge illegal buildings ancl even interclicting court orders. Interestingly such legis'lations benefit D^aa ,1/ ^l | <1 ragc rz+ vt rJl { such law l:realcers who do not even need.rehabili[ation or state support, who are cer[ainly not clisaclvantaged or displaced' The Delhi Laws (Special. Pr-ovisions) Act, 2006 was enacted by Lhe parliament concerned that action for violation of the provisigns of the Master PIan 2OOI and building bye laws was causing hardship and irreparable loss to a large number of people. No reference to public . safety, public interest, environment concerns, enforcement of legal, provisions or [he financial irnpacL arid ioss is displayed.

¶196Tlre judgrnenL reporLecl at 20L0 @M) '4D (Denntil 5L3 E{arijan X{alyatt Samiti R.eEd. & Ors. vs. Goveitttnent of AICT of Detrtrtf mahes a reference to Governmenb policy [o regularise 1400 unau'[horisecl colonies. The huge loss [o [Ir.e public exchequer of indiscriminately regularising illegal encroachrnenbs on land accluired. after paymenb of large surns as compensation from public funds by the goveinrnenl,; encroachments those on public land as also violations of building regulations is not even computecl, leL alone adclressecl. (Ref: QOAD 3 $CC 3gg IW.C. Mehta us. UOn & Ons.; ,LIR. . 2005 SC X. .Friettds Colony Developntemt Cotmmittee w. State of Otissa & 0rs.) 1,97. Yet the respondents urge "financial stringency" so far as the presenb petitioners are concerned. The essence of Lhe policy of rehabilitation and resettlement, so far as the petitioners is concerned has not only been given a comple[e go by but the respondents are completely clenying all liability for the same. v{

19.8. . Apart from a vague suggestion of insufficiency of funds, the respond.ents do not substantiate such plea wiLh any fiaterial. The respondents have not shown any consideration of the petitioners' needs, Iet alone any steps take to address their plight. There is nothing which could enable this court to arrive a[ a conc]usion thatthe .respondents had difficulty in working the rights of the petitioners on account of financial incapaci[y' To say the least, similar submissions were termed. as "typicaliy grauche" and "lacking insensitivity" by this court in P.I{' ndandoo us. Estate Officer (supra) and already stand rejected rn ts.L. WaIi & Ors. x/s. UOI (supra). The impugned action and the subrnissions manifests the huge barriers which a displaced. citizen of the countly faces in accessing even basic ancl guaranbeed constitutional rights despite the aclmitted responsibiiity of the state for the breaches and violations of the constitutional protections suffered by them. Appropriate remedvr. role of the cowrt amd natwre of retrie{

¶199It is now necessary to'consider the nature of remedy.a4d relief which would be available to a citizen for violation of thp fundamental right to life as well as threat thereto. The .supreme Court has repeatedly judicially awardecl compensation in cases of established breach of public duty to protect the fundamental rights and violations thereof, especially [he guarantees of personal liberty and life.

¶200ht,4,IR. L9E3 SC L086 R.udwl SaIt us. State of Bi"ntar, the court was concerned with violation of righLs resulting from illegal debention. The observations of the court on the duty of the court cleserve to be follows r- "l_0. right to urt fro ancl clue complianc-e wittr the mandate of Article 2l-secirred., is to mulct its violators in the payment of monetary compensation. Administrative sele(sic)sis leading io flagrant infringements of fuldamenLai rights -cannot be corrected by any other method detentiotl. One of the telling ways i1 which the "iol-tion of that right can reasonably be prevented open to the judiciary to adopt. T4" right to compensation is some ofi -civilisation is not to perish in this country, as it has perished. in some others too well-hnown to sriffer inention, iL is necessary to educate ourseives into accepting that, respect for the rights of individuals is the tiue bastion of democracy. Therefore, the State must repair the damage done by its officers to ^A' (b\ Y\ considered in extenso and read as \ .........Artic1e 2l-, which guarantees the Iife a4d liberty will be denuded of its the petitioner's rights. " 20L. So far as the remedy which would be available in cases involving infringement of fundamental rightS ancl the power: of courts, Dr. A.S. Anand, J las his Lordship then was] in his concurring judgment in ,LIR'1.gg3 5C 1960 entitled Nitrabati Behara @ Lalita .Ele.hura Vs. State of Otissa had observed as follows :- "33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the l{igh Courts, for establishecl infrinqement of the indefeasible riqht guaranteed under Article 21 of the Constitution is a remedy ' available in public law and is based'on the strict liability for contravention of the guaranteed basic ancl indefeasible riqhts of the citizen. The purpose of public law is not only to civilize public power but also bo assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting "compensation" in w.P.(C) No.75239/2004 N proceedings under Article 32 or 226 of the n see ro[ecti.on of ntal failed rights in its public' of the citizen. duW to protect the fundamental The pa],rment of comPensation in uch c be unders a lic law done d ublic the of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdodr foi the breach of its public law duty and is independent of claim compensation under the private law in an action based on torb, through a suit ins[ituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. XXX XXXX 37 . Ttrtis Court and the ndiqlt Cow'ts-heins the -rotectons of the civil liberties of ffite " aitizen. have mot onlv the power and iwtisdiction hwt also an obliqation to orant relief, in exercise of its iurisdiction under 'ArticXes 32 and 226 of tke Comstitution to tlte uictim or tlte heir of ttrte uictim wliose f,undamental riqhts wnder .Article 2L of the Constitution of India are estahlistrted ta. have been tlaqrantlv infrinoed hv callinq upon ttrte State to repair tlte damaae done hv its officers'to ttrte f,undamental rialtts of the citizqn. notwithstanding the right of the citizen to the rernedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it agains[ the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be gran Led only once it is established that there has been an infringement of the fundamental rights 'of the citizen and no other forrn of appropriaLe redressal by the court in the facts and circums'Lances of the case,, is possible.f' (Emphasis supplied)

¶202In (1955) 4 SCC Sheela .Barse us. AOI & Ors., Lhe courL was concerned with gross violations of Lhe constitutionai hof and statutory rights of a large number of who were suffering custodial restraints. children in the country While commenting on Page I2B of 157 which has \\\ the nature of proceedings in public interest'litigation ancl the issue of pro'becl,ion and enforcement. of their rights, the court macle the following. observations with regard to the duff of the court :- "6. ........Morq importantly the Court is not merely a passive, disinterested urnpire or onlooker, but has a more dlmamic and positive role with the responsibilitlr for the organisation

¶203Where infringement of fundame.ntal rights is established, the duty of the court does not stop at giving a :mere declaration. In L997 (1.) SCC 4n 6 D.I{. Basu us. state of, west Bengtal, rt was laid. clown that in suqh a case, the coult must proceed furLher and give compensatory relief, not by way of darnages as a civil ac[ion but by way of compensation under the public law juriscliction for the wrong.done, due to breac.h of the public duty by the Sta[e of not protecting the fundamental right to life of the ci[izens.' To repair the wrong done and give judicia] redress for legal idury is'a compulsion of judicial conscience.

¶204Unlike the several caies noted. hereinabove inclucling ca.ses of fitudwl Shah, D.I{. Basu, Leelawati Be.Izura, S.ltee.la Barse (swpra) etc. in the instant case, bhe state or its instrumentalities itself have not harmed or punished the petitioners. However, the state has totally failed to proLect the fundamental right to life of the petitioners and to prol"ect them from violence, harassment and pogroms. This is in clear abdication of the constitutional responsibility of [he Sta[e. Responsibility for the violence in the State is not the question $o/ before this court. The issue befor.e'this court is restricted to the question of the rights of the petitioner.

¶205So far as the approach of a court on such.issues. is concerned, in para L3 of the pronouncemenL reported at (2003) 4 SCC 6Ot State of Maharashtra us. Dr. D. Frafwl -8. Desai, the Suprerne Court stated that one needs to set out tire approach which a court must adopt in deciding such questions and reiterated that the first duty of the court is to do justice.

¶206In para 15 of AIR L980 SC 1.622 Mutiicipal Couttcin, trlatXam us. Vardicltam & Ors.; the court obsqrwed bhat:- "I5; .. Tbe nature of the judicial process is not purely adjudicatory nor is it functionaliy that of an umpire onllr. Affirmative action to make the remedlr effective is of the essence of the riglht wltich otherwise becornes sterile." 207 ' In para LL of (1997) 6 SCC 24L Vishandta & Ors. vs. State of ftajasth.am & Ors., the Supreme Court held that the obligation of the Supreme Court " under Article 32 of the Constitution for the enforcement of funclamental rights in the absence of legislation must be viewed along with the role of jridiciary envisaged in the Beijing Statement of Principles of the Inclependence of the Judiciary in the LI\WASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those :representing Lhe minimum standards necesSary to be observed in orcler to maintain the inclependence and effective functioning .of the judiciary. The olrjectives of the judiciary mentioned in the Beijing StatemenL are: "Objectives of the Judiciary: L0. The object"ives and functions of the judiciary. include the following:

(a) to ensure that all Persons are able to live securely under the Rule . of Law;

(b) to promote, within the ProPeP limits of the judicial function, the ' observance and the attainment of ' human rights; and .(c) to administer the law impartially ' among persons and between . persons and the State." In Clause tO(a) of the objectives of the Chapter on 'Objectives of the Judiciary', it has been clearly stipulated that the objecbives and functlons of the iudiciary include ensurincl that all persons are able to live securellr under the'rule of law.

¶208So far as the manner in which relief is required to be rnoulded so as to ensure protection of the constitutional rights of the petitioners in this bunch of writ petitions are corcerned, learned counsel for petitioner has placed reliance on the pronouncement of this court dated 10'h September, 2004 in WP(C) No. 1.72/X.997 entitl.ed Smt. I{arnla Deui us. Govt. of NCT of Delhi & Ors. In this judgment, learned brother B.D. Ahmecl, J was dealing with a case relating to a prayer for cornpensation for the death of one Uday Singh, an elec[rician who was killed in an explosion on account of terrorist activitv in Delhi. The court held Lhat lower courts would.lose their efficacy if they canncit possibly respond to the needs of the society - technlcalities there might be many but the justice-orientecl approach ought to not be thwarbecl on the basis of such. NP ___Ji Page l3l of 157 N\ technicali[y since technicality cannot and ought nob to oubweigh the course ofjustice. 2Og. While referring to several pronouncemenl,s of the Apex Court with regard. to compens.ation for custodj.al death; death of schooi children on a picnic; death of a passenger in a'tiain in action on the part of the railyray employees, it was further observecl in f,{annla D.eui's case (supra),as foilows r- "7 . xxx The fact of the matter is that Uday Singh lost his life on account of an act of terrorism. The State failed to preveirt it. The Primary duty of the State is to maintain peace and harmonJr amongst its citizens. If for some reason, it is unable to pub the lid on simmering discontent, then it is its duty to protect innocent citizens from harm.. If it fails in this duty, bhen it muqt compensate the citizens who have been wronged." Reliance was placed on.the pronouncetnent in '$,IR 1.993 " SC L960 lVilahati Eeltara @ Lalita Behura W. State of Otissa.wherein it had been also observecl that while clirecbing rnonetary compensation for established infringement of l;he funclamental rights, the'courts' take into account not only the interest of the applicant and the respondent but also the interests of the public as. a whole with a view to ensure that public bodies or officials do not act unlarnrfully and db perform their public du[ies properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public iaw proc.edures as also public law principles. 21"0. . In ,AIR l gEg lvfad. ' 205 R.. Gamdhi & Ors. \/s. AOn 6t Anr., the Madras High court was concerned w:lth the inability of the State to enforce public order putting in jeopardy the life and $ Iiberty, home and hearth of the victims involved. The petition sought red,ressal for lhe trials and tribulations undergone by the rninority Sikh community of Coimbatore in t'amil Nad.u and a few others in the wake of the assassination of late Prime Minister Srlt. Indira Gandhi on 3Lst October, 1.984. Obser-ving on the violation of the fundamental rights and the duty of the state, the Madras High Court placed .:reliance on the observations of the Supreme Court in the OIEra TeIIis (supra) case, and held as follows:- "2L. The maintenance of law and order is the prirnarv duty of the State and under our Constitution it is a State subject and tops the State List. No Government worth' the name can abdicate this function and put the life and liberty, the hearbh and home of the citizens in jeopardlr. Article 38 of the Constitution. enjoins on the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Under Article 19(a) apd (g) of the Constitutiqn, any citizen of Lhis country is entitled to reside and settle in any .part of the Territory bf India and to practice any piot"'ession or to carly on any occupation, trade or business. Article 21, lays down that no person-shall be deirrived of his right or personal liberty except according to the procedure established by law. As pointed out by the Supreme Court in Bombay Pavement Dweller's 'case, MANU/SC/0039/1985 : AIRL9B6SCI-80, ro person can live without the means of living, that is, the means of livelihood and"the easiest way of depriving a person of his right to life woulcl be to deprive him-of his means of livelihood to the poinb of abrogation. Under Article 300(A) of the Constitution, no person shall be deprived of his pioperty save by authority of .Law and to allow his properties'to be reduced to ashes .by the force of darkness and evil is a clear deprivation of the right to property guaranteed - by the Constitution. The members of the Silft Community form an integral part of the Indian socieflr; they have every right to setile down in Coimbatore and carry on bheir profession. They have the Constitutional right to live and they cannot be deprived of their means of . livelihood. Their right to properfy is inviolable. AII . these Constitutional rights of the Sikhs and a few members of the other communities have been 'i Page l3j of 157 \6 flagrantly infringed by the inaction of the law eniorcing authorities. "Fundamental risLLts _ are nol, mere biuLum fulmen. They are the. tirrobbing aspirotions and realities of civilised .human life, they cairnot be rendbred desuetude or dead-letter or as unrealiFy', by the failure of the State to protecb those ricrhts. These unfortunate victims of arson and violence are, therefore, entitled ' for' observed by Bhagwati, J. as he parchment, a teasing illusion then was, 'a PaPer and a promise of Page I 34 of I 57 re respon ,rtunate lta or trv to from ohliqatiott welfare zlt. Examining the claim for compensation on account of death of a spouse in similar riots targeting members of the same community in Delhi in l-984, Anil Dev Singir, J in the judgment rbported at 1996 (3) AD (Delhi) 333: L990 (38) DRi 203 Ehajan Kaur us. DetrIti 'Admn.. has observed as follows:- "(10) ArLicle 21 is the Nation's commitmenl. to bring every individual or group of persons within its protective fold. This Nation belorigs to members of all tire communities. They arc equal members of the Indian society. Equality before law and equal protection of laws is ensured to them by Article L4 of the Constitution [o them., None is to be favoured or discredited. The conduct of any person or group of persons has to be controlled by the State for the lofty purpose enshrined in Article 2L of the Constitution. It is the duty of the State to create a climate where the cleavage'l:etween members of the society belonging. to different faiths, caste and creed are eradicated. The State must act in time so that the precious lives of the people are not destroyed . or threatened. Otherwise, Article 21 wilI remain a paper guarantee. Time is long overdue for adopting measures that have more than a and leqal rights. suitabtre amends." (underlining supplied) \s( hortatory 'effect in enfdrcing Artic'le 2L of [he Constitulion. The State cannot adopt a "do nothing altitudei'. Like disease prevention, the State must talce ever1y precau'[ion, measure and initiative to'prev-ent terrorem populi of the magnitude represented by 1984 riots and in the event of an outbreah of riots it must act swiftly to curb the same and not allow precious time to slip by, as any inaction or passivity on i[s part can result-in loss of precious life and liberty of individuals amounting to violation and negation of Ar"ticle 2L of the Constitution. The State has tci enforcb minimum escape the liability to pay adequate compensation to the famillr of the person killed durinq riots as his or her life has been extinguished in clear'violation of Article 2I of. the Constitution which mandates that life cannot t e taken away except, hccording to thg procedure established by law. " . It is notewor[hy that in para 25, Bhajan Kaur's case, was of the view that award substantial cornpensation for deprivation of life and liberty. 2L2. I had also occasion to consid.er a claim'for for iqjuries and loss suffered in Delhi in the af[ermath of the assassination of late Smt. Indira Gandhi in which rnernl:ers of one community were targettecl. In tlre judgment reported aE L20 (2005) DtrT L56 Manjit Sipgrk Sawhney us. UOI & Ot:s., placing reliance. on the principles taid down in the aforenoticed pronouncements, it had been observed as follows :- "20. The award of monetaly relief to the victirn for deprivation of fundamental.right is to be guided by the aforestated principle requiring the state to make monetary amends under public law for the wrong done due to breach of the public dut-y of not protecting the fundamental rights of the citizens. This computation is not guided by any strict drithmetical formula and it has dis do aIl by the petitioner in the. learned Judge in the judicial trend is to illegai extinction or compensation the l-984 riots s( to be borne in mind that money cannot rerpove the trauma and the batterirlg suffered by a victim." 2L3. TIre obsewations of the Supreme Court tn AilX lg81' SC 487 ,Ajay I{asia us. KItaIid Muiilt. Sehravartli & Ors. are also classical and topical on this aspect and shed light on the issue under consideratioir as follows :: "Where constitutional fundamentais vital to the maintenance of human rights are at stake' functional realism and not facial'cosmetics must be the diagnostic w must It must be remembered that the fundamental rights are constitutional guarantees given' to the people of India, and : are not m.erely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The Courts should be anxious to enlarge the scope and width of the Fundamental Riqhts by bringing within their sweep everv authority which is an instrumentatrit.v'or aqency of the Government or through th'e corporate personality of which the Government is actinq, so as to subject the Government in all its myriad activities. whether throuqh natural persons or through corpgrate entities. to the l:asic obligrations of the Fundamental Rishts." a well settled principle of interpretation of the as well as statutes that the same have to be reacl heeping the societal changes and growth. Law must change to keep pace.with the on going developments and new rights may have to be found out within the constitutional scheme. (Ref. :

(2003) 6 SCC L l{apila Ilingorani us. State of tsiltar (para 60 at page 30). The imperative necessity to take recourse to t'ake such interpretative changes by the courts has resulted in the expansion to the right to life ensured under Article 21 of the Constitution of India. . The court relied on earlier judgmenLs and reiterated that the first dutv of the court is to do justice. In para 62, the 2L4. It is constitution Page Ij6 of 157 H a\ supreme court also d.eclared that the right to developrnent in the developing country is itself a human right' 2I5. The duty to ensure constitutional rights rests not only on the Supreme Court or' the High Court in exercise of jnrisdicLion under Article 32 and 226 but would be the mandate of errery court ancl its essential judicial function.' The claims \ in the presen'L cases have to be a{udicated on these principles. . 216. In F.I{. I{ouI (supra), a specific order was passed on 15tr' October,2003 i1 W.P.(C) No. 6.551"12003 bythis court'to decide the petitioner's representation dated 1-6ftJanuary, 2003 seeking perrnission. to continue to retain the quar[er. Without . meaningfully complying with this order, the respondents have . taken recourse to the proceedings under the Public Premises ' (Eviction of Unauthorised Occ*upants) Act, L97L. Such a decision of the respondent patently violates the petitioner's basic human rights and constitutional guarantees noted hereinabove. Other petitioners have also rnade similar representations on which orders have no[ been passed ]ry the respondents.

¶217Smt. ,Phoola Raina who is the petitioner in W.P.(C) No. 15698/2004 is the wife of late Sh. T.N. Raina who.expired in harness on 4th August, 2O0L She and family were clepenclenb on late Shri T.N.Raina and residing with him in the alloLted quarler. The respondents have been unable to rehabilitate this legal heir who is alqo a l(ashmiri displaced person hnd if fOrcibly ' evicted from the premises in her possession, she has nowirere to go. It is contended by Phoola Raina that the meager pension she is receiving is her only sou.rce of incorne which is W.P. (C) N o.'7 523 9/2004 rp insufficient to even bear the expense of food for her farnily rneml:ers.- The writ peti'tioner has also placecl reliance on SR-3I7 B-25 of the. allotment of Allotment of Governtnen[ Resiclences (General Pool in Delhi) Rules, 1963. In view of the above cliscussion, it is clearly evident that so far as her ciaim is concerned., the Same fundamental and human rights as those of .the other writ.petitioners are involved and she is entitled to the same relief and consideration as the others. 2IB. The petitioners in the presen't'cases have complained of : violation of their right to life in their home state. This situation has come to be despite Lhe 1984 riots, which .mark an unfortunate watershed in. Indian.history, when examined from any aspect. The tirreatened breach of primarily of their right to shelter, a basic human right and. an in[e'gral part of the guarantee under Article 2I of the Constitution of India, even at their displaced location at the hands of the resporidents has compelled. invocation of this' court's extra-ordinary juriscliction under Article 226 of the Constitution. 2L9. The pleadings in the case would s;how that there is no clispute to the facts pleaded by present petitioners. There cann.ot be and there is not even a suggestion th.at the right [o shelter of Lhe petitioners in their home sLal.e has been a.bridged by any proceclure established by law. Such infraction of Lheir rights is purely on account of the inability of the respondents to discharge their constitutional obligation; duty'and responsibility of protecting the life and properfy of the petitioners. The respondents have a positive duty. to provide basic necessities to its citizens. It certainly defies commonsense and Page l38 of 157 l(\ rJ I qll notions of human dignity to permit the respondents to exclud.e such facilities as bare shelter whicir is essential and necessary. to encourage the self respect and dignity of these Q.ispJ.aced. persons in a human manner consistent with weII recognized modern standards thereof' The courts have a constitutional duty and international Iegat obligations to ensure the right of every person to be free from. want of basic essentials. .

¶220The above discussion would show that there cannot be any dispute about thre nature of and protection of the right of the petitioners. However, the manner in which it is to be enforced against the respondents deserves consideration. 22L. The instant cases relate to a unique situation. It has been repeatedly stated by the Supreme Court that in case of violation of the right to iife and personal liberty, the court is not helpless to grant relief and should be prepared to forge new tools and clevise new remedies for the purpose of vindicating the rnost precious of the precious fundamental right to life and personal liberty. GLef.: (lgSI) L SCC.627: AIR 198L SC g2S lthatri & Ors. Vs. State of Biltar & Or"s.).

¶222In (1991) 4 SCC 584 : AtrR L992 SC 248 [Jniom Carbide Corporation tr/s. Union of, India. it was stated by the Chief Justice Ranganath Misra that "we ha.ve tci develop our own law and if we find. that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen ancl which is likely to arise in future .. there is no reason why we should hesitate to evolve such principle of W.P;(C) No.75239/2004 t;v Iiability.:........". The observations of Venkatachaliah, J (as his Lord.ship then was) in this case who had rendered the leading judg.ment in tire Bhopal'Gas case with regard. to the courts' power to grant relief are Lhe same' These principles have been reiterated.tn AnR L993 SC 1960 Smt. Nitrabati Behera alias Latrita .Behera Vs. State of Orissa & Ors. : ?23. The jurisdiction of the court to mould the relief so as to do justice to a party complaining of infringement of Chapter III rights is wicle and requires to fit the contours of the right which is violated. Ib is essential, therbfore, that whil.e adjudicating on the cluestions raised, the relief to be gran[ed has to be moulded keeping in mind the unique challenges laid and the claims made in these petitions

¶224In (L987) I SCC 395 M.C. Mekta us. AOI & Ot's., I]ne court expanded on the jurisdiction and obligation of the court to rnould a new relief in the following terms :- "3........It may now be tahen as well settled that Arbicle 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that pur.pose this Court has all incidental and ancillary powers including the power 'to forqe new remedies and fashion new s'l,rateqies' desiqnecl to enforce the fundamenLal riqhts. It is in realisation of this constitutional obligation that Lhis Court has in the fast innovated new. methods and strategies for the purpose of securj.ng enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic hurnan rights and to whom freedom and liberty have no ' meaning. " 't .\' . - -----t- \9 .

¶225Ttre supreme court has categorically held tn (1.996 ) I scc 300 tr,P. Rauidas 8r ors. us. Ndvyt-tuah wafi.t'an tFttltapan IWuIti [Init .[ndustrial Coop. Society I'td. & Ors. that any contract or action which is opposed to constitutional animation is void. The courf as custodian ancl protector of fund.amental and basic human rights has a sacred. duW to deter breaches thereof,

¶226It is also well settted that it iS not only the right of the litigants, but also the duty of the courL. to not only enforce funclamental rights but also award. compensation against the state for violation of those rights. In other words, 'the power of the court is not only injunctive in ambit, tha[ is preventing the infringement of a fundamental right but it is also remedial in scope and provides the relief against the breach of the fundamental right already committe d..' (AIR. L9S9 lutrad. 2O5 R. Gand.lti us. UOI & Anr.(supra)

¶227On the aspect of appropriate compensation for established breaches of fundamental righ.ts, reference can also usefully be made to the observations of the DMsion Bench of this court in ( n ? tiie judgment reporl,ed at 2OOI (1) jCC De.lhi 57 Goventntent of, NCT of DeIIti us. Sltti Nasiruddim (Father of deceased Moltd. Yasin) to the following effect :- "2L. It is true that perfect ,cslgwtlon is hardly possible and money cannot renew a physique frame that has been battered and shat[ered, as stated by Lord Morris in West v. Shephard (1964) AC 326. fwstice requires that it'sltould I]e equal in value. altltouoh not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially, as he was before accident ... Compensation awarded sltould not trte inadeqwate and' sltould neither be unieasonahle. excessive nor def;i.cient" ,There can 'l he no exact unifornn rule for nteasutino tlte damaqe."

¶228In the present cases, the petitioners have complained of grievous violence to their lives and. properties and the admitted helplessness ef the respondents to protect the'.same. We are concerned with forcecl ouster, though not by the State, but which is a clirect resulL of the inabitity of the state Lo protect the life and property of a qlass of its citizens, resulting in their forced displacernents. The petitioners are now threatenecl with cornpulsive eviction from their occupied quarters without any alternative despite the threats to their lives in their home state. The UN Commission on Human Rights has unequivocally Stated that forcecl evictions are a gross violation of human rigtits. The International Community has long recognised fdrced eviction as a'serious rnatter and it has been reported repea[edly that clearance operations shouid take place only when cqnservation arrangements and rehabilitation are not feasible, relocation measures stand made.

¶229. In (1990). L SCC 328 S.lW.n. I{iran Faslm vs. Governntent of ,4.P., th.e Supieme Court had observed that a writ petition would be maintainable uncler Article 226 of the Constitution of India also when a right under Article 2L is threatenecl as contradistinguished from the right when it is infringecl. In para 21. at page 342 of. the report, the court held as follows :- . "21-. In the language of Kelsen the right of an individual is either a mere reflex right-the reflex of 1egal obligation exjsting towards this individual; or a private right in the technical sense -the legal power bestowed upon an individual tb bring about by legal action the enforcement of the fulfillment of an -'r I obligation existing toward him, that is, the legal Power. that in the ins rh of his riqht to libertv. A petition for a writ of habeas (Emphasis supplied) These principles have been reiterated by the Apex Court tn (2003) 6 SCC L ltupila l{inEorani us-State of tsihar.

¶230These judicial concepts have evolved from conservative and traditional SuOiciat systems and eoncepts. Legai interpretation as well as jucticial pronouncements lean toward.s providing _ for the social needs of society and societal developments. In this background, the objection of the respondents that the petition'ers are disentitled to relief is devoid of legal merit. 23L. In view of the harm inflicted by a third parby against wirich the state coulcl offer no protection j.n the present cases, a positive obligation is aiso irnposed. upon the state to compensate the petitioners in reparation of the effects'of the harm caused by the third party.. It remains a fact that the State's inability to secure the life ancl property of the petitioners compellecl them to flee'their homes. The same inability prevents the petitioners' . retirr:n to their iromes. \

¶232So far as compensation is concerned,. it is again well settled that the same would not be monetary alone. 'Principle 1-B of tlre Guidingr trfinciples for fDFs as set out by the UN rnandates that competent authorities sh.ali provicle inbernaliy enforcement of the fulfillment of that obliqation \tb .t) displ.acgd. persons with and ensure safe access Lo essential food ancl potable watdr, basic shelter and hbusing, appropriate clothing, essential medical services and. sanitation etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate fully and equally in public affairs at all level.s and are entitled to equal access to public services in the part of the coun[ry where they are resettlecl. Principle 29 mandates when recovery of the property and possessions which the IDPs left behind or were dispossessed of upon their displacement is not possible, they are entitled to be form. of Just reparation

¶233Reference can usefully be made to the observations of Lhe Constitutional Court of South Africa in. (2001) 3 LRC 209 Gov-ermtnent of R.epuhtric of Soutlt Africa & Ot's. vs. Gootboom & Ors.wherein the court observecl as followS :- "93... this case shows the desperatio.n of hundreds of thousands . of people living in deplorable conditions throughout the country. The Constitution obliqes the state to act positively to ameliorate these conditions. The obligation is to provide access to housing. health care, sufficient food and water. and social securitlr to those unable to support themselves and their dependants. The . state must aiso foster conditions to enable citizens to gain access to land on an equitable basis.

¶234There can be no dispute at all that whether it be a jhuggi or mud lfuilt thatched ,house 'or a mansiori considered in Sltaptistar (supra), witirout security of limb and life as weil as the 1:roperty, no dnjoyrnent thereof is possible. In order to be meaningful, the shelter which is envisaged has to be in an environment which is safe and secure, not only from the \r elements, bu[ from the larger threats ancl clangers which.have been createcl J:y mankind. Even if the respondents were in a position Lo provide shelter in the home state of the petitioners as envisaged in the affid.avit filed. tn J.n,. ,I{owI (supra), in order 'for such right to be meaningfuliy eqjoyed, it has to be ensured" that there is peace within the communlff and the state; that its Iaw enforcement .agencies , are able to ensure that the constitutional guarantees and protections of the citizens are fully secured.

¶235The respondents'are not in a position to facilitate the retu::n to their homes for the petitioners. Even if the petitioners were to so return, the respondents are not in a position to staLe they coulcl protect and guarantee their safety and security. The respondents d.o not even remotely suggest that they could get restitution to thg petitioners of their properties which had been left behind in the Kashmir vallev.

¶236The Suppeme Court has also pres.cribed different reliefs in cases involving breaches of constitutional rights. .In'Mutticipal Cowttcil R.atlam W. Vardichan & Ors.(supra). the Supreme Court was of the view that punitive action in the given facts was the remedv which was effective'to ensure the essence of Lhe riglrf involved 237 . In Natiomal ltuman Rights Cotnrmission us. btate of Arunacltal Pradesh Anr.(supra), the court had directecl the state to ensure that the life and personal liberty of each ancl every Chakma residing within the Government of Arunachal Pradesh, the state was protected and any atLempt to forcibly \* evict or clrive them out was repelled in view of the violations and 'Lhreat to their lives. As noticed above, in para L3 of Nilabati Behara @ Latrita .Behura Vs. State of Orissa(supta), the courL had moulded relief by granting monetary compensation in view of the.failure to pr:otect fundamentai rights of the persons. In fact the court hetd that the refusal to pass orders for compensation would be doing iip seririce a1d that the court was under an obligation to srant ::"'r' :;'"J' uoc 41 6 D.K. Basw vs. state or wesi BemEaI, the Supreme Court emphasized a justice oriented approach which was responsive to the needs of 'the society. The court had.also granted monetary compensation for violations in this case Denial of wages was the consideration and relief moulded appropriately in Kapila llingorani Vs. State of Eihar (swpra).

¶238Compensation to these petitioners which could be considered appropriate and perfect thus would hgve Lo include comprehensive resettlement such as economic rehabilitation and affordable housing schemes which have been clearly envisaged by the respondents. Several other measures towards meaningful. rehabilitation essential in terms of the Guiding Principles have not even entered the respondents' consideration. The same has however not been possible so far. This courl, cannot shut its eyes or judicial. conscience or rernain oblivious to the stark realities. s 23g. The issues raised. in the present case have arisen before in the contexL of perspns facing displacement on dccount of development and-infrastr-ucture projects especially major river valleyprojects.In(20o0)10SCC664:AnR.20005C3751. Narntada Bachao ,A,ndolan us. [.Iniom of Imdia the Supreme . Couit was concerned-with the displacement of tribals as a result of construction of the Sarilar Sarovar Darn. In para 62 atpage 702 of the SCC report the court held that if the displaced persons were in a better position to lead a decent life enjoying better amenities and facilities and earn [heir livelihoocl in the rehabititated location, their fundamental rights guaranteed under Arbicle 2L of the Constitution would per se not be violated by tl]e construction of the dam.and the resultant displacernent. Tlris position was reiterated in (2005) 4 SCC 32 Nannada Bachao Amdolan urs. UOI & Ors.

¶240In para 60 (pg 394) ot (2OO4) g SCC 362 N.D. Jayal dr Anr. Vs. UOI & Ot's., R.ajendra -Babu, J held that rehabilitation of oustees of a dam is a logical corollary of Article 21" of the Constitution and that the oustees .should be in the better position to lead a decent life and earn livelihood in the new locations. No reason at all as to why forcibly displaced persons as the petitioners should not be similarly treated given the violations of their constibutional rights. 241,.. Before this court, the petitioners are aggrieved by the deprivation of their homes and property and the threat by the respondents to evict them from the only shelter possessed by them. Looked at from any angle, the respondents cannot avoid Page 147 of tst : their constiLutional obligation of protecting the life and liberty of the petitioners and. ensuring shelter to these victims of criminal acts who stand displaced from their home for no fault of theirs, primarily on account of failure of the respondents bo protect their Constitutional rights. In case rehabilitation is not possible then the respondents .have no option but to ensure meaningful and reasonable resgttlement in the above terms' To mitigate effects of the displacement from home, hearth and property, the respondents are thus legally obliged to provide at least reasonable sirelter as parL of the proporl,ional compensation.to the petitioners for violation of their basic and fundamental rights. Such Just reparation' would colstitttte part of "reasonable compensation" and. woulcl be a step'towards suiLable rehabilitation of the petitioners. Relief in these petitions has to be so moulded.

¶242It is now necessary to examine the contours and parameters of the. state responsibility.

¶243Mr. Jatan Singh"and Mr. R.V. Sinha, learned counsel for .tire Union of .Incliii have urged at length that the petitioners were fully aware about the fact that eventually they were to retire from the Government service. The submission is that they were required to have made their life plans and alternate arra:ngements with this unavoidable event in mind.

¶244The further contention is that, the government ensul:es adequate financial security to retiring employees, who have the benefit of pension as well as other retiral benefits which run W.P.G) No.75239/2004 \6\ into several lakhs of rupees including graLui[y, proviclent fund etc. ancl nothing further can be expected of the respondents.

¶245Pension, gratuity and other retiral benefits are not unique to thb petitioners, but are'available to every person who retires frorn lbhe seryice of the country. What distinguishes these petitioners is the fact that they have been placed in a uniqug position and are unable to return to their homes as a consequence of the inability of the State to discharge its c onstitutionai obligations. 2!6. The question still remains as to whether the pension and the inonetary retiral benefits could be "adequate compensa[iott" for. the infringement of the petitioners indefeasible rights to life and due discharge of the constitutional obligation of the State. The answer clearly has to be in the negative. 247 . We are here concerned. with the entiLlernent of shelter to IDPs. So far as the nalure of the development which would meet the guarantee of shelter and ensure a life of dignity to the person concerned, in para 9 of the pronouncement.'reported at

(lggh) L SCC 520 Shantistar Euilders Vs. Natayam Khimalal Totante & Ors., the Supreme Cour.b had qbserved as follows:- "9. Basic neecls of man have traditionally been accepLed to be three-food, clothing and shelter. Thp right to life is guaranteed in any civilized society. Thab would tahe within its sweep the right to food, the right to clo[hing, the right to decenL environment and a reasonable accommodation to .live in. The difference beLween the need of an animal and a human being for shelter lias to be kept in view. For the animal it is the bare protection of the body; for a human being it has to grow in every aspect - phybical, mental and intellectual. The Constitution aims at ensuring fulier development of every child. That would be possible only'if the child is in M a proper home. must b (Emphasis suPPiied) Undoubtedly, so far as the reasonableness and adequacy of the measures which the respondents are .required to take, must meet the principles laid down in the aforenoticed pronounceinents of the courts, the inter:national conventions, the standards in the guiAing principles for IDPs and ensure the rights of the petitioners.

¶248The above International instruments and Guictelines for IDPs provide not only for the right to adequate shelter and housing services but also refeq to access to land on equitable basis to all, They recognise and cast a positive obligation on the state i.e. the respondents, to take other reasonable measures poqsible to ensure complete realisation of the right to adequal"e housing of the petitioners. It is evid.ent that the. respondenbs cannot avoid their responsibility and duty to ensure thab Lire aforenoticed basics to the petitioners. These are the principles which had to guicle the consideration of the i'ssues which were before the respondents and have been raised in this bunch of writ petitions.

¶249The clairn for shelter in these writ petitions is thus pressed. as parL of the compensation for the violation of the petitioners rights: The petitioners seek clirections to tire respondents to permit them to occupy the premises in their occupation till such time the respondents are able to discharge tn*eir constitutional duty of protecting the lives and properLy of III(IIIT UiI.II. SVUII Ug UILTLT-ULTUL LTTC built fire-proof accommodation. " Page 150 of tsr ttl its ci[izens and providing bhem permanent residences. In similar cases, the Supreme Court and thj.s co.urL has per:mitted the displaced. persons 'bo continue to occupy the occupied quarter. Order to this effect stand passed by the Central Achninistrative Tribunal as well. Thq respondents have permitted some of IDPs to continue with their occupation of the allotted quarters after retirement. There is clearly no justification. at all for not permitting the petitioners to do so in the given facts and circumstances WAts of aepenAant .

¶250There is yet anotirer aspect of the matter. The petitioners before thi.s court include Smt. Phoola'Raina, a widow of the allottee. The respondents'clo not dispute that she was a d.epend.ant of the allottee and that she is also an IDP. It is also not the respondeht's case that she is a person of lneans who is living in Delhi in circumstances.which are differenl. frorn those of the others from her home State. There is no material to show thaL this petitioner has any alternative shelter under the schemes and policy of the respondents or has been adecluately compensated. 25L. So far as the claimed rights or the violations urged by Smt. Phoola Raina are concerned, other than a bald plea that she was"nob the alloLtee, the respondents are unable to point out any distinction from the other petitioners. The respondents do not state that she' can safelv return to anv residence in the It is also ,ro, u,r.rred that thi, putltioner owns I(ashmir valley. any property into which she could shift. It is not even suggested W.P.(C) No.15239/2004 Page I5t of t57 Uhat there is any difference in the constitutional rights or scheme between .her and the other petitioners. Not a single circlmstance which could disentitle this petiiiorru, to grant of relief against tire thr'eatened eviction and violation of her . consLitutional rights has been placed or made out in the case. Till such time that the respondents are able to meaningfully and reasonably rehabilitate this petitioner, her. forcible eviction under the shield-of statutory process is a.lso without any doubt constitutionalty impermis sible.

¶252As noted. above the respondents have admittedly mad"e discretionary allotments in ,favour of persons who are no[ Government servants. It. is not explai.ned. as Lo why such discretion could not be exercised in favour of this petitioner. Certainly permitting such a dependant of'the deceased allottee . to continue to occupy the accommodation under occupation tili alternate shelter was made available would not violate any ruie as well. ' The same would clearly be in consonance with the constitutional mandate and the principles which emerge from rl I ! the severai judgments noticed above. It is clearly evident that such a dependant would be permitted to c;ontinue to occupy Lhe allotLed accomrnodation till such bime that the respondents ' meaningfully iesettle and rehabilitate the,IDPs or they acquire their own alternatives or if.the respondents are able to show' that they have the means to make alternate meaninsful and reasonable arrangernents. A0nclystons \t] t Page t52 of 157 $t ::.

¶253In view of the above discussion,'absent any alternative; the ad.mittecl failure of the respond.ents to protect the constitutional rights of the petitioner and the threats which ' subsisL in. case they were compelled to return to their S[ate; given the arbitrary .and wrongful fail.ure to exercise the discretion under the SR-3L7 B-25 of the Allotment of Government Residences (General Pool in Delhi)'Rules, L963 in favour of ttie petitioners; the drastic violation of the funclamental ancl basic human rights of the petitiorier which results upon such impiernentation of the statutory provisions; keeping view the schemes of rehabilitation and resettlement of I(ashmiri migrants of the respondents, and. also the severai judicial precedents and administrative orders in respect of simiJ.arly placed persons,' the action of the respondenLs in treal;ing the petitioners as . unauthorised. occupants and proceeding against them under the Public Premises (Eviction of Unauthorised. .Occupants) Act, 1,97 I was completely misdirected and'unwarranted

¶254It is eviclent that the learned appellate courts in the ' appeais also adopted a hyper technical approach ignoring the serious violation of constitutional rights which has resulted [o the petitioners and the drastic consequences of rendering thern homeless which results on implementation of the eviction order. The constitutional rights of the litigants are' not only well estal:lished but are witliout any limitations. The orders do not indicate that the several important questions raised by the petitioners were deemed to. deserve an a{udication including the :nariner in which superibr courts had dealt with similarly Page I 53 of I 57 situated clisplaced persons. The learned courts paid no attention to the declared policy. of resettlernent' and rehabilitation of Government or the constiLutional rights and guarantees which all courts are bound to enforce.

¶255The action of the respondents.in denying favourable consideration of the request to continue to occupy the quarters suffers frorri the vice of discrimination and arbitrariness. The d.ecision to treat the petitioners as unauthorized occupants and proceed against them under the Public Premises (Eviction of Unauthorized Occupants) Act, I97L as well as the impugned orders are in violation of the constitutional guarantees and basic . human rights of the petitioners, and do not show application of mind to ielevant material or consideration thereof. The impugned decision to cancel the allotments, the action under the Public Premises Act;; and the impugned orders of the Estate Officer ancl the appellate ord.ers are constitutionally and. Iegally not sustainable.

¶256The special leave petition in j.L .KowI (swpra) was filed in L997 and the rerr*abilitation scheme was placed before the court for the first time in 2006 which proceedings culminatecl in . the judgment dated 3'd December, 2008 after twelve years. Af,judication was still necessitated tn F.trd. Efandoo us. Estate Officer' (supra) decided on z,'d August, 2006; lW.X{. .Kown (sug:tra) deciclecl onl-Lth April, 2008. I fincl that the Central AdminisLrative Tribunal had passed a detailed judgment on 30rr' December, 2002 in OA No. 237812002 entitletl Tej X{ishaw vs. UOL In a1l these cases by final acljuclications, the petitioners have been perrnitted to continue with occupa[ion of the quarter (( - concet:necl. Despite the proceedings and judgments iir [he abovenoticecl mabters, the respondents have still proceeded. agai:nst the petitioner in the manner noticed above. 257 . Insteacl of facilitating the resettlerrLent.and rehabilitation of l.tre petitioners who are internally displaced persons as per the d.eclared policy, they have arbitrarily been exposed to the actclitional trauma of the threat of forci.ble evicLions and the uncertainby and insecurity of seeking the adjudication lly pursuing litigation. In these circumstances, the petitioners are entitled to exemplary costs fi:om the respondents inasmuch as the threat'of forcible eviction by the process resorted to by the respondents impacts the fundamental rigltts of the petitioners.

¶258In this background, while allowing the'writ peti.tions and having regarcl to the number of the petitions which hgve l:een unnecessarily generated and the lack of material with regarcl to the persons responsible for the unfortunate decision making, only the litigation costs of the present cases are being awardecl.

¶259It is essential to make it clear that it is only in the peculiar fqct situation of the present cases .and .the extrerne. hardship of the petitioners involving violation of bhe fundarnental rights and human rights of the citizens of India that such continued occupation of [he public premises by the petitioners has Lo be permitted. No inference can be laid that any person ;not.having a properfy of its own or not having suffered the violations aforenoticed can or has been perrnittecl ,( to continue to indefinitely occupy the public premises. Therefore, the principles laid down in this judgment would bind only a fact situation as in the present case or similar Page I 55 of I 57 \d t, circumstances when the S[ate has been unable to probect t]re fund.amental and basic hurnan rights of its ciLizens compelling thenr to be displaced, from the place of their residence and is not in a position to ensure their safety or securi.ty in case Lhey return to the place of their residence. Resg,!! In view of the above discussion, it is directed as follows

(i) The impugned orders cancelling the allotment of the peLitioners; the orders of eviction passed in the proceedings held against the petitioners under the Pubtic Premises (Eviction of Unauthorised. Occupants) Act and the appellate orders which are detailed in para i3 are hereby set asicle ancl quashecl.

(ii) A direction is issued t: the respondents to make all endeavours to adequately, effectively and reasonably rehabilitate and resettle the petitioners, making provisions for appropriate accornrnodations for them.

(iii) Till such-time, the respondents are able to provicle alternative abcornrnoclation to the petitioner and" his/or her fami.ly anywhere in Delhi, the petitioners shall be allowed to retain and occupy the allotted accommod.ation (also cletaiied. in column no. 2 of para l-3 above) subject to payment of normal license fees.

(iv) Each of the petitioners shall be entitled to costs of Rs.25,000/- which shall be paid within a period of six weehs from the date of passing the order. TheSe wrib petitions are alllowed in the above terms. CM Nos. 1x011/2oo4. L tr-O13/2OO4. 1-1-O26/2OO4. 1L42812804. 736t20A6, LTAL6|2A04. LX,04412A04, n 1050/2004. n 1444i2004. 1557/20061 2379/2006. w.P.(?) No.7523e/2004 Page I 56 of I 57 \^ lrz@/2ooe 'In. view of the .orders Passed in petitions, these applications do not require and. are disposed of accordingiY. -/( NovernberJ0', 2010. aa/kr ]L oo9, 765 o09 LL2 o09 & the respective writ further adjudicalion JUDGE I o LX_

l2- *IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. L l4B9l2OOg & cM NO. 1124412009 Date of decision : November 30, 2O1-O B.L. RAINA ... Petitioner Through: Mr. B. L. WaIi, Advocate VERSUS ESTATE OFFICER ....ResPondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. CORAM: HON'BLE MS. JUSTICE GITA MITTAL L. Whether reporters of local papers may be allowed to see the