Ashok Kumar Gigoo v. Estate Officer Directorate of Estates, Nirman Bhawan

Judgment?

2.To be referred to the Reporter or not? S.Whether the judgment should be reported in the Digest? GITA MITTAL. T For orders see W.P.(C) No. 15239/2004. November 30, 2010 kr ((^A M1T¥AQ (/ JUDGE 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. *IN THE HIGH COURT OF DELHI AT NEW DELHI +• W.P;(C) No.15239/2004 & CM No. 11011/2004 . • . • Date of decision: Novem.bei'j)^,2010 P.K. KOUL ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS ESTATE OFFICER AND ANR. ~ ....Respondents Through: Mr. Jatan Singh with Mr." Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND

(2) Writ Petition (Civil) No. 15240/2004 and CM No. 11013/2004 T.K. OGRA ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS. ESTATE OFFICER AND ANR. ....Respondents ' Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND

(3) Writ Petition (Civil) No. 15245/04 and CM No. 11026/2004 A.K. MUKOO ... Petitioner Through: Mr. B.L. Wah, Advocate VERSUS ESTATE OFFICER AND ORS. ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. . Page ! of 157 AND' Writ PetitiO'ii(Civil)No. 15246/2004 ' M CM No. 11029/2004 • I M.L.DULLU ... Petitioner' Through: Mr. B.L. Wah, Advocate VERSUS • ESTATE OFFICER AND ANR. • ....Respondents Through; Mr. Jatan Singh with Mr. Abhishek Aggarwal and-Ms. Megha Bharara, Advocates. AND

(5) Writ Petition (Civil) No. S62/2004' and CM No. 736/2006 A.K. TRISAL ... Petitioner Through: Mr. Manoj V. George, Advocate • VERSUS ESTATE OFFICER AND ANR. ....Respondents Through: Mr. Jatan Singh with Mr'. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND •

(6) Writ Petition (Civil) No. 15241/2004 and CM No. 11016/2004 T.S. BALI ... Petitioner Through: Mr. B. L. Wali, Advocate • • VERSUS estate OFFICER AND ANR. ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND ' ' ' (7) Writ Petition (Civil) No. 15264/2004 and CM No. P.N. KACHROO ... Petitioner Through: Mr. B. L. Wali, Advocate . •W.P'.(C) No.15239/2004 • VERSUS .ESTATEOFFICERAND ANR. ....Respondents ^ Through: Mr. Jatan Smgh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND

(S) Writ Petition (Civil) No. 15279/2004 CM No. 11050/2004 C.L.MISRI ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS ESTATE OFFICERAND ANR. , '• ....Respondents Through: Mr. Jatan Singh with Mr. •Abhishek Aggarwal and Ms. Megha . Bharara, Advocates. • AND • •

(9) Writ Petition (Civil) No. 15698/2004 and CM No. 11044/2004 PHOOLA RAINA ...Petitioner (Wife oflate' Sli.T.N.Raina) Through: Mr= B. L. Wali, Advocate VERSUS ESTATE OFFICER AND ANR. ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND

(10) Wjcit Petition (Civil) No. 1779/2004 , and CM No.'1557/2006 .TEJKISHAN ...Petitioner Through: Mr. Samrat K. Nigam, Advocate VERSUS , UOI & ANR. ....Respondents •Through; Mr. Ravinder Agarwal, Advocate Page 3.of 157 "" r- /O • • AND Writ Petition (Civil) No. 2641/2006 & CM NO. -2379/2006 S.N.BHAT • ... Petitioner Through: Mr. Manoj V. George, Advocate ' VERSUS UOI AND ANR. ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. " • AND • (12) Writ Petition (Civil) No. 56S1/2007 and CM No.. 10547/2007 M.K. TIKOO ... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shukla St Mr. Atul Sharma, Advocates VERSUS UOI AND ANR. , / ....Respondents • Through: Mr. R. V. Sinha with Mr, A.S. Singh, Advocates.. AND

(13) Writ Petition (Civil) No. 7057/2007 and CM No. 13421/2004 C.L. RAINA . • • ... Petitioner Through: .Mr. Thakur Summit, Advocate VERSUS UOI AND ANR. • ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. • . AND

(14) Writ Petition (Civil) No. 2869/2008 and CM No. 5540/2008 S.N. ICAUL ... Petitioner Through; Mr. R.K. Handoo with Mr. Yogiiider Handoo and Mr. Manish Shukla & Mr. Atul Sharma, Advocates VERSUS UOI AND ANR. ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. AND Writ Petition (Civi!) No. 8599/2008 CM No. 16497/2008 KANTIAYANI GANJOO ... Petitioner Through:- Mr. R.K. ?Iandoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul'Sharma, Advocates VERSUS . UOI AND ANR. ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advo cates. AND

(16) Writ Petition (Civil) No. 8600/2008 and CM No. 16499/2008 .../Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish , • Shulda & Mr. Atul Sharma, Advocates VERSUS' H.L. KOUL UQI AND ANR. •....Respondents, Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. / ^ • AND Writ Petition (Civil). No. S601/200S & CM NO., 16501/2(0)08 VIJAY MAM ... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shukla ,& Mr. Atul Sharma, Advocates VERSUS ....Respondents Through: •Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. AND UOI AND ANR. P.L.. ICAUL

(18) Writ Petition (Civil) No. 8641/2009 and CM No. 5796/2009 ... Petitioner Through: Mr. Samrat K. Nigam, Advocate VERSUS UOI AND ANR; ' ....Respondents Through: Mr. R. V. Sinha witli Mr. A.S. Singh, Advocates. : AND

(19) Writ Petition (Civil) No. 9609/2009 & CM NO. 7654/2,009 Y.S: JAMWAL UOI AND ANR. ... Petitioner Through: Mr. Naresh Thanai, Advocate • VERSUS Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. . AND

(20) Writ Petition (Civil) No. 11377/2009 & 10986/2009 M.K. BAZAZ ... Petitioner •• Through: Mr. R.K. Handoo with Mr. : Yoginder Handoo and Mr. Manish Shukla & Mr. Atul Sharma, Advocates UOI AND ANR. .VERSUS .....Respondents Through: • Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha . Bharara, Advocates. AND • • . Writ Petition (Civil) No. 1154S/200S) & CM NO. 11351/2009 B.L. TAKAROO UOI AND ANR. ... Petitioner Tlirough: Mr. Manoj V. George, . Advocate VERSUS ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND

(22) Writ Petition (Civil) No. & CM'NO. 11242/2009 MOTILAL ICAUL ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS , ESTATE OFFICER, DIRECTORATE OF ESTATES, NIRMAN BHAWAN ....Respondents . Through: Mr. Jatan Singh with Mr. Ahhishek Aggarwal and Ms. Megha Bharara, Advocates. AND . (23) Writ Petition (Civil) No. 114S9/2009 & CM NO. 11244/2009 B.L. RAINA ESTATE OFFICER ... Petitioner Through: Mr. B. L. Wali, Advocate VERSUS ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal.and Ms. Megha Bharara, Advocates. W.P.(C) No. 15239/2004 "Tiir

(24)'Writ Petition'(C) No. 11490/2009 & C.Mo.No.11246/2009 A.K. GIGOO ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS ESTATE OFFICER ....Respondents • Through: Mr. Jatan Singh with Mr; Abhishek Aggarwal and Ms. Megha Bharara, Advocates. HON'BLE MS. JUSTICE GITA MITTAL

¶1Whether reporters of local papers may be allowed ,—7 to see thejudgment? ' J-Qjy • .2. To be referred to the Reporter or not?.

¶3Whether the judgment should be reported In the Digest? GITA MITTAL. T "1. The instant case is a testimony to events which lead to an unprecedented ethnic cleansing of a minority community from the Kashmir valley on account of the inability of the State to • protect them and their property from violence, who, as a result, were rendered homeless. Such turmoil was faced by ^ minority•community in the state of Jammu & Kashmir after December, 1989, compelling its members to flee home, hearth and State for bare survival. These writ petitions have been filed by some of such displaced persons who were Central Government employees seeking protection against forcible eviction of the quarters occupied by them on the ground that it is the only roof available to them. Page 8 of 157.

¶2the petitioners contend that those representing the ^ Central Government in the Kashmir valley, especially those who were representing the intelligence agencies, para military and defence forces aS' well as the Government media became prime targets of the militants to the extent that lists of such persons who had to be targeted were published and circulated in the localities. Family, members and friends of such Government employees were killed and their properties destroyed for the message to permeate. As a result, immediate steps for evacuation of such officials on emergeiicy basis were taken by the Government of India in order to at least protect their lives.

¶3The .writ petitioners in W.P.fC) Nos. 5681/2007. 2869. ' 8599. 8600. 8601/2008. 11377/2009. 15239. 15240. 15245, 15246, .862, 15241, 15-264. 15279. 15698; 1779/2004, 2641/2006. '7057/2007, 8641. 9609. ' 11548, 11488. 11489. 11490 & 11491/2009 were shifted from Jammu & Kashmir to Delhi and posted in the local offices of the central organization and department where they were employed.

¶4The facts disclose that all the petitioners (or the person on whom they were ;dependant as in the case of Smt. Phoola Raina widow of Late Sh. T.N. Raina writ petitioner in W.P.(C) No. 15698/2004) upon being brought to Delhi were allotted Government accommodation to reside'in, not only by virtue of their employment but also their extreme need for shelter. These allottees of quarters, superannuated from service . on different dates over the period of time.

¶5W.P.fC) Nq.15698/2004 has been ,filed. by Smt. Phoola Raina, widow of Late Shri T.N. Raina who was a Government ^"ir™ servant. Sliri Raina was allottee of Government accommodation bearing no. DG-915, Sarojini Nagar, New Delhi-

¶23While still in service Shri T.N. Raina unfortunately expired on the 4"' of August, 2001. The petitioner contends that late Sh. T.N. Raina and family which included herself were compelled to •flee from the valley in circumstances identical to those of the other, petitioners. This petitioner is surviving on a meager pension and she caiinot afford any alternate accommodation.

¶6The petitioner in W.P.(C) No.5681/2007 evacuated in the same emergent conditions, is stated to be afflicted with the Paridnson's disease since his retirement. His home in Kashmir stands burnt. His relative, one Mrs. Chuni Lai had gone to retrieve her belongings from Kashmir, but was shot dead at point blank range. The petitioner is stated to be barely surviving on his pension. He has no. place to return in his home state. • •

¶7• So far as the petitioner in W.P.(C) No.2869/2008 and his family are concerned, they were shifted out by the Government on account.of the perception of a serious threat to their lives. It is contended that militants have. burnt petitioner's ancestral home in order to demonstrate 'their intention of not sparing him. In addition, they have shot dead his: uncle and wife at point blank range. As a result, other than the quarter under occupation, the petitioner is without any alternate shelter. •

¶8Shri R.K. Koul, the petitioner in W.P.fG) No. 15239/2004. was a resident of Razdan, Kochhaa, Bana Mohalla, Habba Kadal, Srinagar and his entire property in Srinagar has been destroyed by the communal riots and terrorist movements. He clearly :W.P':(C)No.l'5239/2004 ' . Page 10 of157 states that he has no'other house anywhere m India. This petitioner was lastly posted as the Director General with the •Border Security Force at R.K. Puram, New Delhi. While in service, this petitioner was allotted the premises no. H-52, Sarojini Nagar, New Delhi. On 31"' July, 2002, the petitioner superannuated from service. The allotment •of this accommodation in his name was cancelled by a letter dated

2.7/28'^'' August, 2002 with effect from December, 2002 directing petitioner to vacate accommodation immediately and he was informed that on failure to vacate, action to evict him under Public Premises (Eviction of Unauthorised Occupants) Act, 1971 would be taken. The respondents also informed petitioner that on failure to vacate, he would be liable to pay damage rent

(g) Rupees per sq. mtr. for the entire period of over stay. The petitioner was permitted to retain the accommodation from 1?'^ December, 2002 to 31®' April, 2003 on payment of four times of the normal license fee for the next two months.

¶9.The petitioner and his family are permanent residents of the State of J&K and did hot leave their home state voluntarily but were driven out of the Srinagar valley. Their household goods were looted and house was burnt by the terrorists. Other than the one residence, which also stands destroyed by the militants in Srinagar, Shri P.K. Koul owned no other property. A grievance is made that the respondents have taken no action for the reconstruction of the houses of the petitioners and others like him which were destroyed. by militants to rehabilitate them resulting in a' pitiable condition and absence Page JI of 157 \ • of any security for them. Consequently, they are unable to return to their own homes.

¶10In this background, petitioner submitted a representation dated 24'^' March, 2003 seeking permission from . the respondent to retain his accommodation on payment of the existing normal license fee" setting out the above facts. Despite permitting retention of accommodation by other similarly placed personS) this request.of the petitioner was rejected by the letter dated 20''" February, 2003. The respondent no. 2 further referred the case for eviction of the petitioner, treating him as an unauthorised occupant of public premises under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

¶11In these proceedings, the following eviction order dated 23'^^ September, 2003 was passed against the petitioner which was served on him on November, 2003:- "OFFICE OF THE ESTATE OFFICER AND DEPUTY DIRECTOR OF ESTATE (LIT.). DIRECTORATE OF ESTATES, NIRMAN BHAWAN, NEW DLEHI. EC/93/AD/Lit/03/T-D All persons concerned and in particular , Shri P;K. Koul, 123, North West Moti Bagh, New Delhi Whereas I, the undersigned am satisfied for the reasons recorded below that Shri P.K. Koul is an uhauthorized occupation premises specified in the Schedule below : REASONS You have been continuing to occupy .premises specified in the schedule below even after its allotment stands cancelled in your name w.e.f. 1.2.03 vide letter no. TD/283/M-23/96 dated 8.11.02. You have failed to prove that you are not in unauthorized occupation of the instant premises. Now, therefore, in exercise of the powers conferred on me under Sub-Section

(I) of Section 5 of the Public Premises W.P.(C) Ha.15239/2004 (Evictionof UnauthorizedOccupants)Act, 1971, I hereby ^ order Shri P.K. Koul, and all the persons who may be in occupation of the said premises or any part thereof .to vacate the same within 15 days from the date of.issue of this order. In the event of refusal or failure to comply with this order within the period specified above, the said Shri P.K. Koul and all other persons concerned.are hable to be evicted from the said premises, if need be, by the use of such force as maybe necessary. , SCHEDULE 123, North West Moti Bagh, New Delhi. Sd/- (b;k. Kulshreshtha) • ESTATE OFFICER Date : 23.9.2003 . Copy to A.D.-T-D."

¶12The petitioner filed an appeal registered as PPA No. 333/2003 challenging the said eviction order. It is contended that the learned Additional District Judge mechanically dismissed petitioner's appeal by an order dated 10"' September, 2004 ignoring the orders passed by the Supreme Court and other precedents of this court in respect of identically placed persons, necessitating the present petition. The submission is that, the cancellation of the petitioner's allotment by the letter dated 27/28'^ August, 2002; rejection of the petitioner's request by the letter dated 20"' of February, 2003; the order of eviction dated 23"'^ September, 2003, as well as the order of the learned ADJ, dated lO"' September, 2004 are legally not sustainable. The writ petition lays a challenge to these orders as well as the non-action of the respondents.

¶13The facts relating to the other petitioners in this bunch of petitions are similar and are not disputed by the respondents. For the purposes of convenience and clarity, the details of ' 2^ tlie allotment of accommodations wllicli were effected in favom" of the petitioners/tlie predecessor in interest; tlie dates, of tlieir retirement; the status of allotment and particulars of the orders which have been passed, against all the petitioners and are impugned in these writ petitions are tabulated below-.- Date i • the order in Appeal

10.9.2004

10.9.2004

10.9.2004 Id.9.2004

20.12.2005: • I . • 4- . _ . Writ Petition' No, Quarter Allotted Da:te of Retireiheii t of Allottee •Date of fmpugned order of •Cancellati oil of Allotment 'Date of. imvuaned. Eviction Order WP (C) No. 1-52 39 /2004 H-52, Sarojini Nagar, New Delhi

31.7.2002

31.10.2002

23.9.2003

23.9.2003 i WP (C) No.15240 /2004 GI-8OO; Sarojini Nagar, New Delhi

1.7.2002

31.10.2002, WP (C) ,Nb.15245 /2004 H-162/ Sarojini Nagar,; New Delhi

7.5.2002

7.5.2002

25.9.2003

25.9.2003

28.3.2005 WP (C) No.15246 /2004 123/IV,, North West Moti Bagh, New Delhi

30.9.2002

7.5.2002 WP (C) No.862/2 499 A, Sector 3, R.K. Puram , New Delhi

30.4.2005 1,9.2004 WP (C) No.1779/ 2006 Z-20, Sarojini Nagar, New Delhi

12.12.2005

12.12.2005

31.1.2006 i 18^9.2002 I f WP (C) No.15241 /2004 11/5, Sector-1, M.B. Road, New Delhi

31.10.2001 1:3.2002 WP (C) • No.15264 /20b4 60/9,. Sector-1, Pushp Vihar, New Delhi

28.2.2002

30.6.2002

11.7.2003 i

31.1.2006

10.9.2004

10.9.2004 Page J4 of 157 _ I . • ! •3 • 4; \ Date of imwuaned Writ Petition • -No. ' • Quarter Allotted Date of Retiremen . t of Allottee. . Date.of impuffiied order of Caiicellati_ on of Allotment Date of imvumied Eviction . Order order in Appeal WP (C) • No.1527 9/2004 3/252, Andrews Ganj, New-Delhi

30.4.1998

1.9.1998

3.3.2004 WP (C) No.1569 8/2004 DG 915, Sarojini Nagar, New Delhi (Allottee Died while in service on

4.8,2001) .

22.1.2002

25.4.2005 ,1.2.2006 1 • WP (C) No.2641 /2006 MS/1007, Sector VII, M.B. Road, New Delhi

30.4.2004

1.7.2004 . WP (C) No.5681 /2007 ' Allotted Quarter ill Delhi'

30.9.2006

23.7.2007 WP (C) No.2869 /2008 New Delhi

31.5.2007 WP (C) No.8599 /2008 , • New Delhi

31.12.2007

10.11.2008

10.11.2008 WP (C) No.8600 /2008-New Delhi

31.12.2007 " WP (C) No.8601 /2008 New Delhi

31.12.2007 WP (C) • No.8641 /2009 GI-809, Sarojini Nagar, • New Delhi

31.5:2008

20.4.2009 WP (C) No.1137 7/2009 .880, Lakshmi Bai Nagar, New Delhi

31.7.2008

3.8.2009 W,p.(C) No.15239/2004 Page ]5 of 157 r\ 0% . , Writ Petition • Quarter- .Allotted Date of 'Retiremen ' Date of impugned •Date of imniiimied • Date'of No. t of order of Eviction imuumiedi Allottee Cancellati on of Allotment Order order in i Appeal - WP CO No.1148 8/2009 SI/38, Sadiq Nagai"/ New Delhi

30.6.2008

1.8.2008

9.3.2009

25.8.2009 WP (C) No.1148 9/2009 S-1/65/11, M.B. Road, New Delhi

30.11.2007

21.7.2008

19.1.2009 WP (C) No.1149 0/2009 AB-837, . Sarojini Nagar, New Delhi

30.4.2008

18.8.2007

10.11.200

25.8,2009 WP (C) No.1149 . 1/2009 K-4/12; Sector II, DIZ Area, Gole Market, New Delhi

30.6.2006 1,11.2006

18.6:2007

25.8;2009. y WP (C) No.1154 8/2009 47/3A/, DIZ Area, Sector 2, GoIg' Market,- New Delhi .

30.9.2005

1.2.2006

18.7.2006

25.8.2009' WP(C) No.7057 /2007 X-224, Sarojini. Nagar, New Delhi

31.0,8.2006

01.01.2007

28.05.2007

1.9.2007 WP(C) No.9609 /2009 Qr.No.28 1, Type-IV, Sector-8, R.K.Pura m. New Delhi. •

30.04.2008

31.12.2008

16.03.2009 W.P,(C) No.15239/2004 y)

¶14Ill these writ petitions, the petitioners have all contended that they are permanent residents of Jammu & Kashmir and have no desire .whatsoever to reside in Delhi. However, on account of the prevailing circumstances and the inability of the Government to secure their lives and properties in their home state, they, are unable to return to the state. Their properties and only honies in the valley have either been destroyed or. occupied.

¶15• Passage of time .also has brought no change in conditions prevalent in the state of Jammu & Kashmir. The petitioners remain unable to return to their own homes.

¶16Mr. R.K.Handoo, Mr. B.L. Wali and Mr. Samrat Nigam, learned counsels appearing for the petitioners, with all the vehemence at their command, have urged that the status of the petitioners stands reduced to that of 'refugees' in-their own country with nowhere to go and no support at all from the state, only difference being that instead of being displaced to aiiother country, the petitioners stand evicted within their own • country.

¶17The petitioners have contended that discretion and power is vested in the respondents under SR 317-B-25 of the Allotmeiit of the'Government Residence (General Pool in Delhi) Rules to permit any person to occupy public premises. Instances have been cited of respondents permitting other persons including identically -displaced Kashmiris to occupy public premises. It is complained that the respoiidents have unfairly failed to consider special circumstances so far as •' W.P.CC) No.15239/2004 Page 17 of ]57 petitioners,are concernedand have discriminatedagainstthem.^^ The writ petitioners tlius assail the failure of the respondents to exercise tlie disctetion vested in them to permit the petitioners to continue to occupy the quarters, in accordance with law on the ground of arbitrariness.

¶18The submission is that the refusal of the respondents to permit the petitioners to retain the allotment on payment of \ • • normal license fee is illegal and results in violation constitutional rights • of petitioner as well as constitutional and public-law obligations, responsibilities' duties of the respondents.

¶19It is submitted that in given circumstances petitioners cannot be deemed to be in 'unauthorised occupation' for the purposes of. application Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The petitioners contend that the respondents' were constitutionally mandated to protect their right to life under Article 21 of the Constitution of India and having failed to do so, were bound to ensure right to shelter, petitioners, which is an essential concomitant thereof. In this background, petitioners challenge inaction qua the rights of the petitioners'; the legality and validity of the cancellation of the allotments of the quarters; as well as the proceedings and all orders under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It is contended that the respondents have ignored ah relevant material in initiating proceedings against petitioners, passing the impugned orders. W.p.(C) No.15239/2004

¶20Mr. Jataii Singli, learned Standing Counsel for the Union of India and Mr. R.V. Sinha, learned counsel for the respondents challenge-the veiy maintainability of these writ petitions. It is contended that the public premises were allotted to employees Government by virtue of their employment. Such relationships having come to an end on superannuation/demise of the government servant,-learned counsels strongly urge that the petitioners have no right at all to continue to occupy the official accommodation after their retirement. It is further urged that the petitioners have no right or entitlement to any accommodation from the respondents. The submission is that the decisions against the petitioners are in accordance with the provisions of the Act of 1971 and judicial precedents on the subject and cannot be faulted on any legally tenable grounds. Material pleadings •

¶21Before examining these submissions, learned counsel for petitioners have drawn attention to petitioner's pleadings in grounds A to H, K, L & M of WP

(C) No.15239/2004 • P,K. Koiil Vs. Estate • Officer respondents response thereto which deserves to be usefully considered in extenso and reads as follows im WP

(C) Grounds "A. Because Hon'ble Supreme ill couiiter affida W.p.(C) No.15239/2004 SX.P. No.7639/1977 . - Shri TX. Koul & & Ors. has considered the, question, regarding the possession of the accommodation similarly placed employees adjourned the matter sine die till the Supreme Court decides the . matter finally, the Respondents cannot dispossess • the Petitioner from the preniises in question. Vide order dated

26.8.1997 Hon'ble . Supreme Court of India in said case passed following orders: "List this matter on a regular day. after six weeks. In the meantime, Mr. P.P. Rao will ascertain from the State Govt. as to" whether the petitioners can be put back to their respective, houses owned by them in the Kashmir valley and' can ensure protection persons as also their property. To facilitate that venture,, the petitioner's counsel will give to Mr. Rao address of each petitioner where he would expect to be shifted." Again vide order dated 28.1.1998 taking into consideration of present situation Hon'ble Supreme Court of India passed following orders .adjourning matter sine die continued stay:- , "Adjourned sine die. Stay to continue. The petition to be activated on mentioning •by Counser for State of Jammu and Kashmir as and when the Pleadiiicffs ' in WP

(C) NO.15239/2Q04' State is in a position to assure return of petitioners to their respective homes in Kashmir valley ensure their safety personal property." Copies of the aforesaid orders of Hon'ble. Supreme Court dated 26,8.1997 and 28'.1.1998 are annexed herevirith as annexure herewith as Annexure. P-5 & P-6 respectively. "That the nontehts of Groiuids are matter of no Xxx Page 20 of ]57 B. Because the Ld. ADJ has not even considered that.the Hon'ble Tribiinal in OA NO.2378/20Q2 - Tel Kishan Vs. Uiitom of India & Ors. has qrone issue directed Respondents to allow the Applicant therein to retain Govt. Rnrmmnodation pending decision in SLP (Civil) No.7369/9t A copy of the aforesaid order Ld. Tribunal dated

30.12.2002 is annexed herewith as Annexure P-7. C. Because the Ld. ADJ has failed to appreciate that Petitioner being a Kashmiri migrant whose house in Kashmir was burnt and destroved bv the militants,' he has no place to go. He is, therefore, compelled to stav at his Govt. accommodation allotted to him till normalcv in Kashmir valley is restored he could go back to his State one day and rebuild reoccupy his destroyed house. However, the Respondents in a most callous, unconcerned and mechanical manner turned down the request of the Petitioner. - D. Because Petitioner has Fundamental Right to live which is guaranteed to him under the Article Constitution of India which Right includes Right to Shelter also. . E. Because the Petitioner cannot ao back to the Kashmir Vallev. his place of origin because his life is in danger in valley on account of ongoing militancy in the State of J & K and also because his own house in Srinagar was burnt/destroved bv the militants and he has no other shelter anywhere in India. No.15239/2004 F. Because Petitioner with his Al. Pieadiiicirs in comiter affidavit "That the contents of Groimds (A are recoil XXX meager income received as pension rarinnt. take an alternate private accommodation in Delhi where he can hve witli dignity alongwith his family members. His pensidnarv incorhe is not even sufficient, to buy food material for his familv members, has no other income whatsoever-He G. Because unless Respondent No.l namely, the Ministry of Urban Development who is the nodal agency to ensure proper shelter to citizens of India provide suitable accommodation to the Petitioner other similarly placed Kashmiri migrants at affordable price and in easy installments, no . retired Kashmiris can acquire a house of their own and move to the same. The Respondents have of their own and move to same. The Respondents have' not taken any positive action in this direction so that Kashmiri migrants are rehabilitated properly with dignity. • ... H. Because , in face of peculiar circumstances and abnormal conditions prevailing in the State of Jammu Kashmir, employees of the State Of T & K were granted relief by the .Hon'ble Supreme Court, of India on humanitarian considerations and on the basis of XXX XXX XXX' K. Because right to Petitioner to have a shelter does not cease to exist iust because he has retired from the Government service. His right to continue to stay in the present accommodation or in an alternate accommodation to be provided by the Respondents nanuot be taken awav till his safety in his own State is ensured his own house in Srinagar is renovated or re built. W.P.(C) Ho.15239/2004

16.That in response to contents of para K of ground, it is submitted that petitioner was allotted Government accommodation subject to allotment rules while he was in service. He was entitled to retain Government Quarter-only during his semce period and the allotment has. been cancelled consequent upon his retirement from service after giving' m ,L! Because Directorate of Estates are allotting general pool accommodation not only to servii'ia Government employees but also to various other categories of employees who have-nothing to do with government service. The employees worldng in the office of the political parties, journalists, freedom fighters, artists, etc. are also allotted general pool accommodation. The Petitioner belongs to special category of displaced . Kashmiri Pandits they also deserve special treatment in matter qf providing accommodation as in the case of the aforesaid non-governmental categories. . M. Because the Ld: ADJ has failed to consider facts • that Respondeiits has the power to relax the Allotment Rules in respect of any person in respect of any accommodation.. According to S.R 317-1B-25 of Allotment of Government Residences (General Pool in Delh) Rules, 1963, Government-have the power to relax Allotment Rules which is reproduced as under:-, "SR,317-B-25: The Government may for reasons to be recorded in writing relax all or any of the provisions of the Rules in this Division in the case of any officer or residence or class of officers or type of residences." ' concessional period of four months. Further retention thereafter for a maximum period of four months .on medical grounds as per rules has already been availed by him.

17.That in response to contents of paira-L of ground, it is submitted that. the allotment of Government quarter is made as per the rules and policy laid down by the Government.

18.That the content of para M of the Ground needs no comments However, petitioner is a retiree getting post retrial pension."

¶22The above narration would show that the respondents admit the correctness of the factual submissions, rights claimed and entitlements of the petitioners in these grounds of the writ petition., Natur0 ofrmlits involved ill these Ksietitioiis Constitutional cruaraiitees

¶23Before proceeding to examine the challenge laid by the petitioners, it is essential to exainine the right of the petitioners which is involved. Article 19(l)(e) of the Constitution of India states that all citizens shall have the right to reside and settle in any part of the territoiy of India. Article 21 on the other hand states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

¶24The petitioners guestion the jurisdiction and legality of the respondent's actions and threat to forcibly evict them from their only shelter in purported exercise of statutory powers utilizing the process prescribed under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereafter referred to as the 'Public Premises Act, 1971').

¶25In 1995 (2) SLR 72, P,G. Gupta Vs. State of Gujarat & Ors., the-Supreme Court held that food, shelter and clothing are minimal human rights. The court reiterated its earlier expansion of the right to residence and settlement by again holding that, it is a "fundamental right under Article 19(l)(e) W.P.(C) No.l5239/2004. Page 24 of157 •ir and it is afacet of inseparablemeaningfulright to life undei^^ Article 21" of the Constitution of India.

¶26Fundamental rights are guaranteed to the citizens of India under part III of the Constitution of India. In (1996) 2 SCC . •549 Cimmeli Shiffli & Ors, Vs. State of U.F. & Ann, the Supreme Court held that the right to shelter is a fundamental ricrht available to every citizen of India. It was also read into the right to life guaranteed under Article 21 of the Constitution to ^ make it more meaningful. In para 8 of the judgment, the court succinctly set out the nature of the right and the mandate on the state as follows "8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. live ifuarajiteed in any civilised society implies the riQlit to. food, water, decent environment, education, medical care and shelter. These are basic human rights Imown to any civilised societv. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights Convention or under the Constitution of India cannot be exercised-without these basic human rights-Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has buuortuiiities to grow phvsicallv, mentallv, intellectuallv spirituallv. Right to shelter, therefore, includes ademiate Hying suace decent structures, clean and decent surroundings, sufficient light, pure air water, electricity, sanitation and other civic amenities like roads etc. So as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but riaht• the Infrastructure necessary to enable live and develop .as a human being. shelter when used as an essential reguisite to the right to live should be deemed-to have been as a tundamental right. As is enjoined in the Directive Principles, the State ' should be deemed to be under an obligation to secure it for its citizens of course subject to its • W.P.(C) No.15239/2004-econoinic budaetiiiQ, In a democratic society as a member of the organised civil community one should have mnimneiit shelter so as to iDhvsicallv, mentally intellectually equip oneself to improve his excellence as a useful citizen as enjoined in Fundamental Duties and to be a useful citizen equal participant in democracy. The ultimate object of maldng a man equipped with a right to dignity of person and equality of status is to enable him to.' develop himself into a culture being. Want of decent residence, therefore,- frustrates, the very object of ~tbe Constitutional animation ofright to emmlity, economic ' justice, fundamental residence, dimiitv of -njerson and right to live . Itself(Emphasis supphed) The Apex Court unequivocally declared that all the civil, political, social and cultural rights enshrined in the. Universal Declaration of Human Rights and Convention, 1948 or under the Constitution of India cannot be exercised without, inter alia, the basic human right of shelter.

¶27The right to shelter as an essential concomitant fundamental right to life, was also pressed by the pavement . dwellers in the pronouncement reported at (1997) 11 SCC 121 •Alimedabad Municipal Corporation Vs, Nawab,Klmn Khan & Ors. The Municipal Corporation of Ahmedabad was complaining against encroachment occupation of pavements in the urban limits of Ahmedabad by the pavement dwellers (respondents therein). The court was concerned with the plea of violation of fundamental rights of the pavement dwellers under Article 19(l)(e) and 21 of the Constitution of India and their entitlement to shelter. The summation by the Court.placing reliance on the several precedents on the subject throws light on the very question which has been raised herein ••|r~ - ri T-also. After reiterating the principles in earher judgments, observations of the Supreme Court read as follows:- "13. Socio-ecOnomic justice, equality of status and of opportunity and dignity of person to foster fraternity among, all the sections society in an integrated Bharat is the arch of the Constitution set down in its preamble. Articles 39 and M enjoins the State to provide facilities opportunities. Articles ^ and M Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavour to eliminate inequalities in status. In that case, it was held that to bring the Dalits and the Tribes into the mainstream of national life, State was to provide facilities and opportunities as it is the duty of the State to fulfil the basic human and constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders'v. Naravan Khimalal Totame AIR 1990 SC 630, another Bench of three Judges had held that basic needs of man have traditionallv been accepted to be three-food, clothing and shelter. The right to life is guaranteed in anv civilised societv. That would take within its sweep right to food, the right to clothing, the right to decent environment a reasonable accommodation to live in. The difference between need of an. animal a human being for shelter has to be kept in view. For an animal, it is the bare protection of the body; for a human being, it has to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. The surplus urban-vacant land was directed to be used to provide shelter to the poor. In Olga Tellis case (supra), the Constitution Bench had considered the right to dwell on pavements or in slums by indigent same wr.s' accepted as a part of right to life enshrined under Article 21: their ejectment from the place nearer to their work would be deprivation of their right to livelihood." XXX XXX ' XXX • It would, therefore, be clear that though no person has a right to encroach erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a.pubhc purpose, the State has the ConstitutloTial dutv to provide adegnatp facilities and opportunities bv distributing its W.P.(C) NO..15239./2004 ' Page27 of157 "~iiir wealth and, resourcesfor settlementof life and •^ ferectioii of shelter over their heads to make the ricrht to hfe meaningful, effective and fruitful. Right to livelihood is meaningful because no one can live without means of this living, that is the means of livelihood. The deprivation of the right to life in that context would not only denude life of effective content and meaningfulness but it would make life miserable and impossible to live. - to. indiQent weaker sections of the society ui fiilfiliiieiit of the constitutional obHectives. XXX XXX . XXX

¶25Article IQflKel of the Constitution provides to all citizens fundamental rights to travel, settle down and reside in anv part of the Bharat and none have right to prevent their settlement. Any attempt in that behalf would be unconstitutional. The Preamble of Constitution assures' integritv nation, fraternitv among people and dignitv of the person to make India an integrated and united Bharat in a socialist secular democratic republic. The policv or principle should be such that everyone should have the Opportunity to migrate and settle down in anv part-of Bharat where opportunity for employment or better living conditions are available and. therefore. it would be unconstitutional impermissible to prevent the persons from migrating and settling at places where thev find their livelihood and means of avocation. It is to remember that the Preamble is arch Constitution which accords to every citizen of India socio-economic political justice; liberties, equality of opportunity and of status, fraternity, dignity of person in an integrated Bharat. The fundamental rights the directive principles and the preamble being trinity of the Constitution, the right to residence and to settle in anv part of the country is assured to every citizen. ,v' The right to life enshrined under Article 21 has been interpreted by this Court to include meaningful right to life and not merely animal existence as elaborated in several judgments of this Court including Hawkers' case, Olga Tellis case and the latest Chameli Singh's case and host of other decisions which need no reiteration. Suffice it to state that right to life would include • right to live with human dignity. As held earher. right to residence is one • of minimal human rights as fundamental right. Due to want of facilities and • opportunities, the riglit to residence I settlement is an illusion to the rural and urban I poor. Articles 38. 39 and 46 mandate the state, as its econm-nin policy, to provide socio-economic justice to ininimise inequalities in income and in opportunities status. It positively charges the State to distribute its largess to the weaker sections of the society envisaged in Article 46 to make socio-economic iustice a . reality, . meaningful and fruitful so as to make the life . ' worth living with dignity of person and eguality of status and to constantly improve excellence." (Emphasis supplied)

¶28The petitioners are facing threatened forcible eviction from the only shelter they know which was allotted by the respondents, either to them or the person on whom they were dependant. If compelled to vacate without provision of an alternative, the inevitable consequence is, that the petitioners would be rendered homeless.

¶29It is obvious that the present petitions raise an important aspect of right to shelter Of these displaced persons under Article 19(l)(e) and which has been declared by the Supreme Court to be an integral and essential part also of their right to life, guaranteed as a fundamental right under Article 21 of the Constitution of India. In the several binding judicial precedents noticed hereinabove, the Supreme Court has further held that such violation may also adversely impact and violate the-right to occupation profession under Article 19(l)(g) of the. Constitutionof India whichis the other basic human right ofthe petitioners inextricably involved in the instant case. International perspective - conventions: norms: miiding principles and their applicability to present .case • , • I •

¶30So far as right to adequate housing and its protection is concerned, there is no specific domestic legislation on the issue. W.P.(C).No.l5239/2004 Page29 of157 In the aforenoticed pronouncements the Supreme Court has been of the view that such right can also be sourced as a basic human right under the international human rights law.

¶31This court has had occasion to examine the source of the right to housing, shelter and protection against forcible evictions by residents ofJhuggiJhopri clusters (hutments) in the judgments dated 14'^^ July, 2006 in W.P.(C) No. 5007/2002 ' reported-at MANU/DE/9327/2006 entitled Jagdish f??. DDA and also the pronouncement of this court dated 11'•'' February, 2010 in W.PAC) No. 8904/2009 Sudmna Shmli &.Ors. k? Government of Delhi & Anr, with connected writ petitions. In this regard, in these judgments as well, reference was made •to following international & regional covenants declarations on the right to adequate housing which declare that provision, of housing as well as the protection against forced eviction is the unequivocal responsibility of the state

(i)The UiiiversaLDeclamtion of Hiimmi Rmlits, 1948 makes the following statement: "Article 25.1 . • Everyone has right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, housing and medic.al care and necessary social sendees, and the right to security in event ' of unemployment, sickness, disability, vv^idowhood, old age • or other lack .of livelihood in circumstances beyond his control."

(ii) The Iiiteraatioiial Convention on th(R F.Ummatimi of AM forms of Racial Discrimination r 1965 contains the followinrr , "Article In compliance with fundamental obhgations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminateracial discrimination yy.P.(QHo.l523m00A^ Pegesoons? • "•ir- - in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, .to equality before law, notably in enjoyment of the following rights : xxxx

(d) Other civil rights, in particular xxxx

(iii) The right to housing."

(iii). Article IiiterimtimmJ Coweimiit on Ecoiiomiai, Social and Cultural Rmlits adopted by the General Assembly of the United Nations on the 16*^^ of December, 1966 further codifies the right to housing and states thus : "Article "1. The State Parties to the present Covenant, recognize the right of everyone to an adequate standard of livincr for himself and his family, including adequate food, clothing, housincT, and to the continuous improvement of . living conditions India has signed and ratified this covenant and is thus a state party to it.

(iv) Part II of the Declaration of Social Procjress and Develomnent. 1969 states thus :. "Social progress and development shall aim at the continuous raising of the material spiritual-standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms through the attainment of the following main goals: xxxx Article I'OCf) The provision for all, particularly persons in low-income groups and large famihes, of adequate housing and communitysemces.

(v) Part III Section(8) ofthe Vancouver Declaration ofHiiiiian Settlements, l^Z^-mandate.g nc, fonnwc . Page 3J of157- "•""irir "Ill Guidelines for Action \ xxxx

¶8Adequate shelter and services are a basic human right which places an obligation on governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided programmes; of self-help community action. Governments should endeavor to remove all impediments hindering attainment of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through creation of better balanced communities, which blend different social groups, occupation, housing amenities." . ' The Recmm-nendations for National Action in the Vmicouver DecMratioii contains inter alia also the following "A. Settlement Pohcies & Strategies Preamble, Point 3 The ideologies of States. are reflected in their human settlement policies. These being powerful instruments for change, they must not be used to • dispossess people from their homes and their land, or to entrench privilege exploitation. The human settlement policies must be in conformity with the declaration of principles and Universal Declaration of Human Rights."

(vi) Article

8.1 of the Declaratioii on the Rmlit fc Develomient, 1986 also states that: "Article 1-States should undertake, at the national level, all necessary measures for realization of the right to development and shall ensure, inter-alia, equality of opportunity for all in their access to basic resources, education, health services, food, ' housing, employment and the fair distribution of iiicome...."

(vii) The above objectiveswere also reinforced the declaration made in-the International nf th^ Homeless in /W by the United Nations whPin it toiiis-right of all individualsin the following No.25239/2004• ' Page 32 ofl57 ^•7"! "a real home...one which provides protection from the elements; has access to safe water and sanitation; provides for secure tenure and personal safety; and within easy reach of centres for employment, education and health care; and is at a cost which people and society can afford."

(viii) On the issue of forcible evictions, the General •CqniinmLJZ dated 2mh May 1997 on the right to adequate housing (Article 11.1 of the Covenant^ : Forced Evictions) by the Commission on Ecoiioiiiic, Social and. Cultural Riuhts is important is extracted hereafter : , . "(1) In its General Comment'No. 4, (1991), Committee observed that all persons should possess a degree of securitv of tenure which guarantees legal protection against forced eviction, harassment other threats. It concluded that forced evictions are prima facie incompatible with requirement of the Covenant

(2) The international community has long recognized that the issue of forced evictions'is a serious one. In 1976, United Nations . Conference on Human Settlements noted that, special attention should be paid to "undertaldng major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made. In 1988, in the Global Strategy for Shelter to Year .2000, adopted by General Assembly in its resolution 43/181, "fundamental obligation (of Government) to protect and improve houses and neighborhoods, rather than damage or destroy them" was recognized. Agenda 21' stated that "people should be protected by law against unfair eviction from their homes or land". In Habitat Agenda Governments committed themselves to "protecting all people from, and providing legal protection redress for, • forced evictions that are contrary to the law, taldng human rights into consideration; [and] when evictions are unavoidable, ensuring, as. appropriate, that alternative suitable solutions are provided". The Commission on Human Rights has also indicated that "forced evictions are a gross violation of human rights " W.P.(C) No:i5239/2004 ' . • Page 33 of157

(x) Aiinexurerl of Reuoi-t •Raworteur on Ademuate Hbusiim lays down some basic principles and guidelines on development based evictions and displacement. It provides the cruidelines on relocation of the displaced which read as follows : "52. The Government and any other parties resKPo n.islMe for m^ovidincF conipensation sufficient alternative accommodation, . or restitution when feasible,^'niiist do so immediately eviction, except in cases of force majeure. At a minimum, regardless of the circumstances and' without discrimination, competent authorities shall ensure that evicted persons or groups, especially those who are unable to provide for themselves, have safe and secure access to: (a) essential food, potable water and sanitation;

(b) basic shelter and liousinm

(c) appropriate clothing;

(d) essential medical services;

(e) livelihood sources;

(f) fodder for livestock access to common property resources previously depended upon; and (g) education for children• childcare facilities. States should also ensure that members of-the same extended family or communitv are not separated as a result of evictions. XXX

¶55Identified relocation sites must fulfil the criteria for adequate housing according to international human rights law. These include:

(a) security of tenure; Xxx

(c) affordable

(d) habitable housing providing inhabitants -• with adequate space, protection from cold, damp, heat, rain, wind or other threats to health, structural hazards and disease vectors, and ensuring the physical safety of occupants; xxx

(d) No affected persons, groups or communities shall suffer detriment as far as their human rights are concerned, nor shall their right to continuous improvement of living conditions be subject to infringement. This applies • egually to host communities at resettlement sites, affected persons, groups and communities subjected to forced eviction: xxxx l/l/.p.fc; No.15239/2004 \il

¶57RelmMlitation uoMcles must include \jf^ programmes designed for women marginalized and vulnerable groups to ensure • their equal enjoyment of the Jmmaii rmlits to liousinir. food, water, health, education, work, security uersoii, security 'of the home, freedom, from cruel, . inhuman or degrading treatment, freedom of movement.

¶58Persons^ groups or cominmiities affected' by an eviction should not suffer detriment to their human, rights, including their right to the progressive realization right to adequate housing. This applies . equally to host comniunities at relocation sites." • . (Emphasis' supplied) 3,2. The UN Committee on Economic. Social Cultural Rights "in .May, 2008. - in its Observations on India, called upon the Indian government particularly to address issue of rising homelessness. including the need for disaggregated data on the homeless. In the observations relating to India as a state party, it specifically stated as follows:- "30. The Committee is concerned about the lack of a national housing-policv. which particularlv addresses needs of disadvantaaed marginalized individuals and groups, including those living in slums who are reportedly growing in numbers, by providing them with low-cost housing units. The Committee also regrets that sufficient information was not provided by State party on extent causes of homelessness in the State party. The Committee also requests the State party to provide, in its next periodic report, detailed information on homelessness in the State party and the extent of inadeguate housing, disaggregated bv. inter aha, sex, caste, ethnicity and rehgion.

¶70The Committee urges the State party to. address the acute shortage of affordablehousingby adoptinga national strategy and a plan of action on adequate housing and building or providing low-cost rental • housing units, especially for the disadvantaged and low income groups, including those living in slums. In this • connection, the Committee reminds the State pmty of its oMiaatioiis under Article 11 of the Covmmiit • mid refers to its General Cojiimejit No. 4-on the riabt to adequate housing

(1991) to mude Government's \bousin€f policies. The Committee •^also requests the State uarty to provide, in its next periodic report, • ' detailed information on , homelessness iii.tlw State party and the' extent of inadequate Imusina, disauureaated bv, inter alia, sex, caste, ethnicity and religion.

¶71The Committee recommends that the State party take immediate measures to effectively enforce laws^ and' regulations proMMtinej displacement and forced evictions, ensure that persons .evicted from their homes and lands be provided with adequate compensation and / or offered alternative accommodation, in accordance with the guidelines adopted by the Committee in its General Comment No. 7 on forced evictions

(1997). The Committee also recommends that, prior to implementing development urban renewal projects, sporting events and other similar activities, State partv should undertake open, participatory and meaningful consultations with affected residents communities. In this connection, Committee draws the attention of the State party, to its General . Comment No. on the right to adequate housing

(1991) and further requests the'State party to provide information in its next periodic report on progress achieved in this regard, including disaggregated statistics relating to forced evictions."

¶33The above narration would show that international covenants and instruments refer to basic human rights. All of them have recognized right to shelter as a basic human right, essential for survival. It needs no elaboration that the concept of human rights emanates from the ancient doctrine ,of natural rights based on natural law. The experiences of the Post-Second Worid War which brought forth International Charters and Conventions leading to the emergence of the present day human rights. The first documented use of the expression 'human rights' is to be found in the Charter of the W.P.(C) No:i5239/2004 ' Page 36 of157 ( \ United Nations, adopted on 2June', 1945. This Charter wa's of course not binding but stated that it was only 'an ideal to be later developed. By adopting Universal Declaration of Human Rights in December, 1948 the UN General Assembly took the concrete step of formalising the.various human rights. This was followed by the International Bill of Rights. The deficiency in the binding nature of the declaration was removed by the U.N. General Assembly by adopting on 16"' December, 1966, firstly, the Covenant on Civil and Political Ricrhts which formulated legally enforceable rights of the. individual and, I • • secondly, the Covenant on Economic, Social and Cultural Ricrhts • which was addressed to states to implement them by legislation. These covenants came into force in December, 1976 after ratification by the requisite number of member states. India is a party to both these covenants which were adopted on 16*^'' December, 1966-and bind this country. .34. The above narration shows that homelessness may result from several causes including natural disasters; development projects, economic deprivation. as well as human rights violations.' International law terms persons who stand displaced from their countries as "refugees" and recognizes that they are entitled to protection from being returned to places where their lives or freedom could be threatened.

¶35At same time there are growing instances internationally of persons even communities who are compelled to abandon homes on account of threat of imminent violence or stand forcibly evicted by use of violence and compelled to relocate to other places even within their own y\l.P.{QNo.15239/2004 Page 37 of157 country. Tliey cannot return to their homes within the boundaries of their own countries in the face of the continuing threat of persecution and danger to their properties. Such persons cannot.be termed as "refugees" as described by learned counsels for the petitioners. In international parlance, persons compelled to relocate within boundaries of their own countries stand-categorised as- "Iiiterimlly Displaced FeiWjO^'(abbreviated as'ZttPs hereafter).

¶36The present petitioners along with several other families, have been compelled to relocate within India, and would therefore fall under the category of such internally displaced persons ('IDPs') who have. received either insufficient or no protection by the State, from ox during their persecution.

¶37Except that IDPs are forced to flee from their, homes to another location with their own country, refugees and IDPs appear to be similarly situated. However, international covenants respect principle of non-interference with internal politics of one country, and consequently there exist no international conventions relating to IDPs.

¶38The United Nations High Commissioner for Refugees has recognised that IDPs also face same problems as international refugees and require to be treated with dignity by their own governments with full respect given to their basic human rights.

¶39In this regard, a guiding document has been framed by Francis Denge, the representative of the Secretary General of the United Nations on Internal, Displaced Persons, in 1998 which is titled as Page3S of-157 ' which was presented to the UNCHR. The 5/ Commission in a unanimously adopted resolution took note of these principles which address, the specific needs of internally displaced persons, worldwide and identify rights and guarantees relevant to the protection of persons from forced displacement and to their. protection and assistance during displacement as well as during return or resettlement and reintegration. .The introduction to these Guidelines defines "Internally Displaced Persons" CIDP's) in Clause 2 as foUows "2. For the purposes of these principles, internally displaced persons'are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border."

¶40So far as housing of IDPs is concerned, these guidelines contain the following important provisions "Principle 1-National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.

2.Internally displaced -persons have ricrht to request and to receive protection and humanitarian assistance from these authorities. They shall not be persecuted or punished for making such a request. XXX ~'\r Prior to any decision requiring the displacement of persons, the authorities concerned shall ensure that all feasible alternatives are explored in order to avoid displacement altogether. Where no alternative exist, all measures shall be taken to minimizedisplacement and its adverse effects.

2.The authorities, uudertaldna such displacement shall ensure, to the greatest practicable extent, that proper accommodation i.s provided to the displaced persons, that such displacements are effected in Page 39 of157 satisfactory conditions of safety nutrition, liealtli and hygiene, and tliat members of the same family are not separated.

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

(a)A specific decision shall be taken by a State authority empowered by law to order such measures;

(b)Adequate measures shall be taken to guarantee to' those to be displaced full information on the reasons and procedures for their displacement and,, where applicable, on compensation and relocation;

(c)The free and informed consent of those to be displaced shall be sought;

(d)The authorities concerned shall endeavour to involve those affected, particularly women, in the planning and management of their relocation;

(e)Law enforcement measures, where required, shall be carried out by competent legal authorities;

(f)The right to an effective remedy, including review of. such decisions by appropriate judicial authorities, shall be respected. Displacement shall not be carried out in a manner that violates rights to life, dicrnity, liberty' and security of those affected. XXX

1.Every internally displaced person has the right to liberty of movement and freedom to choose his of her residence.

2.In particular, internally displaced persons .have the right to move freely in and out of camps or other settlements. ' . ' XXX Principle 15 ' Internally displaced persons have:

(a) The rinlit to seek safety in another nait of

(b)The right to leave their country;

(c)Theright to seek asylumiii another country; and

(d)I7i0 right to be protiBcted ag-aiiist forcible return ^to or resettlement in any Mace where XXX W.P.{QNp.l523m004 . Page ¥0 of757 Prmcipl© IH l.All internally displaced persons have tlie right to an adequate standard of living; 2 .At minimum. regardless' of circum.^t/f^nces, • and, without-discrimijiatioji^ coimaetent authorities shall provide internally displaced persons with and ensure safe access to\ •

(a)Essential food and potable water;. {h)Basic shelter and liousinm

(c)Appropriate clothing;

(d)Essential medical services and sanitation.

3.Special efforts should be made to ensure the full participation of .women in planning' distribution of these basic supplies. XXX Principle

1.No one shall be arbitrarily deprived of property and possessions.

2.The property possessions of internallv displaced persons shall in all circumstances-be protected, in particular, against the following acts:

(a)Pillage;

(b)Direct or indiscriminate attacks or other acts of violence; .(c)Being used to shield military operations or objectives;

(d)Being made the object of reprisal;

(e)Being destroyed or -appropriated as a form of collective punishment. ?).Property ' and possessions left behind by internally displaced persons should be protected against destruction arbitrary appropriation, occupation or use, XXX Principle l,Tlie primary .duty responsibility providinif Immanitarian assistance to internally displaced persons lies with national Authorities. XXX • . Section V. Principles relating-to return, resettlement and reintegration Principle 1-Competent authorities have primary and responsibility to establish conditions'. as well as provide 'the means, which allow internallv displaced persons. - to return voluntarily, in safety, and_ with dignity, ta> their. I W.P.fCJNo.15239/2004 Page 41 of157 covjntr\r Sucll authorities' shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.

2.Special efforts should be made to ensure the full participation of internally displaced persons in the planning management of their return or resettlement and reintegration.

1.Internally displaced persons who have returned to their homes or places of habitual residence or discrlmfnattfid agamst as a result of their having been displaced. They shall have the right to participate fully and equally in public affairs at all levels and have equal access to public services.

¶2Comneteiit authorities respoiisibility to assist returned and/or resettled iiiterimllv displaced persons to recover, to the extent possiMe, their urouertv and possessions which they left behind or were dispossessed of sucll: property 'and possessions 'is not possible.

¶41The United Nations Charter thus establishes obligation upon member nations to promote the key human rights. The Universal Declaration of Human Rights, 1948 though not a treaty, .but is a declaration published by the General Assembly of the United Nations and is the primary document which is concerned with the listing of the rights. It affirmatively lays down the common standards of achievement for all peoples and all nations. It consequently has an effect which is similar to a treaty. Further every nation who is a signatory to the aforenoticed International Covenant on Economic, Social and Cultural Rights (TCESR') must refrain from acts which would .defeatthe objectand purposeofthe covenant; The preambleto 11-the ICESCR establishes that "the ideal of free human bemgs enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his, economic, social and cultural rights as well as his civil and political rights". . ' Article of this covenant emphasises that state parties recognises the right of every person to an adequate standard of living which include adequate housing continued improvement of living conditions. The right for people to be free from want is. the very foundation ICESCR.

¶42The international human rights law thus establishes a legal obhgation for ensuring minimum welfare guarantees. The conventions, treaties and declarations as well as the guiding principles manifest international consensus that every nation has a duty to ensure and provide these guarantees including, inter alia shelter and basic •general assistance to . every person on its soils.

¶43The aforenoticed international conventions which exist as well as Guideline Principles for IDPs therefore recognize that shelter and housing is a basic human right of every individual which is the bare minimum to be provided to internally displaced persons. These Principles also emphasise all rights of displaced persons caste a mandate on national authorities concerned of their primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction which includes their right to safety as well as protection against forcible return resettlement in a place where their life, safety, liberty and or health would be ensured. The Guiding-Principles have been evolved after an elaborate consultative process.

¶44Before proceeding any further, it is necessary to examine the bindingness of,the above principles on the courts, in India. The extent, manner applicability of International Conventions and treaties in interpretation and expansion of rights, have been authoritatively considered and are well settled by a catena of binding precedents of the Supreme Court. In the authoritative pronouncement reported at JT20(}8(7)SC11, 2008(9)SCALE69 Entertainment Network (India) Ltd. Vs, Super Cassette Industries Ltd. the Supreme Court traced evolution of jurisprudence on issue under consideration in paras 48 to 54 which may usefully be extracted and read as foliows:- "48. Beginning from the decision of this Court in Kesavananda Bharati v. State of Kerala MANU/SC/0445/1973 ; AIR 1973 SC 1461, there is indeed no ' dearth of case laws where this Court has applied the norms of international laws and in particular international covenants to interpret domestic legislation. In all these cases, this Court has. categorically held that there would be no inconsistencv in use of international norms to domestic lecrislation. if bv reason thereof the tenor of domestic law is not breached and in case of anv such inconsistencv. the domestic legislation should prevail. In Taqdish Saran and Ors. v. Union of India MANU/SC/0Q67/1.:98Q : (19801 SCR

¶831it was observed: "It is also well-settled that interpretation of Constitution, of India or statutes would change from time to time. Being a livina is. oniroiim and with the njassacFe timer law must change. New rights limy Imve. to be found out witMii the constitutional scheme. Horizons of constitutional law are expanding."

¶49In aforementioned ^judgment, this Court referred to a large number of decisions for the purpose of treaties conventions. Yet again in Indian Handicrafts Emporium Qrs. v. Union ,of India MANU/SC/0640/20Q3 : AIR 2003 SC 3240, this Court considered Convention on International Trade in Endangered Species (CITIES) and applied the principles of purposive constructions as also not only the Directive Principles as contained in Part IV of the Constitution But also Fundamental Duties as contained in Part IVA thereof. Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Qrs. MANU/SC/0293/1983 : (1986) 1 SCR 594. Rattan Arya Qrs. v. State of Tamil Nadu and' Anr. MANU/SC/0550/1986 • :

(1986) SCR -and Synthetics and Chemicals Ltd. and Qrs. v. State of U.P. And Qrs. MANU/SC/0595/1989. : AIR 1990 SC 1927, this Court held: "There cannot be any doubt whatsoever that a law which was at one • point of time was constitutional may be rendered unconstitutional because of passage of time. ,We may note that apart from the decisions cited by Mr. Sanghi, recently a similar view has been taken in Kapila Hingorani v. State of Bihar (supra) and John Vallamattom and Anr. V. Union of India (supra)."

¶50These judgments were referred to in the decision of Liverpool and London S.P. and I Assbn. Ltd. V. M.V.. Sea Success I and Anr. MANU/SC/0951/2003 :

(2004) 9 see 512. wherein this Court observed that a.s iateivretative ' clmimes, if any, must, .thus be ma.de liayiiia regard to the ever cbanghnif sjlobM scenario. Liverpool also referred for the proposition that the chanmnu global scenario should be kept in'mindliaviimregard-10 the fact that there does 'not exist any mimarv'act toucliiim the subject and in absence of any, domestic legislation to the contrary. Concurring with the said decisions, it M^as howeyer opined that same could not mean that it restricted jurisdiction Indian High Courts to interpret domestic

¶51Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed by the Supreme Court in' a plethora of cases inter alia The State of West Bengal Y: Kesoram Industries . Ltd. Qrs. •. S? •MANU/SC/0Q38/2004 : (2004) 2 66 ITR 721(SC). Ill Pratap Sinali v. State of Tharkliand Anr. MANU/SC/OQ75/2005 : 2005 CriLT 3091 wherein this Court directed to interpret the Juvenile Justice Act in light of the Constitutional as well as International Law operating in the-field. (See also Centrotrade Minerals Metal Inc. v. Hindustan Copper Limited MANU/SC/8146/2006 : .(2006) 11 SCC 245 : State of Punjab; State of Punjab .and Anr. v. Devans Modern Brewaries Ltd. and Anr. MANU/SC/0961/2003 : (2004) ^11 SCC Anuj Garg Oris. v. Hotel Association of India and Ors. MANU/SC/8173/2007 ; , AIR 2008 SC 663. ' V, 52. However, applicability International •Conventions and Covenants, as also the resolutions, . etc. for the purpose of interpretincr domestic statute will depend upon the acceptabilitv of the Conventions in question. If the countrv is a sianatorv thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon .qivina an "• opportunitv of hearing to both the parties, and filtered at several levels as also upon taldng into consideration the different societal conditions in different countries bv laving down the minimum norin, as for example, ILO Conventions, couirt would freelv avail benefits thereof. Those Conventions to which India • mav hot be a sigiiatorv. but have .been followed bv wav of enactmeiit of new Parliamentary statute or amendment to existing enactment, recourse to International Convention is permissible.

¶53This kind of ,stance is reflected from decisions ' in PUCL v. Union of India MANU/SC/0274/1997 : AIR 1997 SC 1203. Tohn Vahamattom v. Union of India MANU/SC/0480/2003 : . AIR 2003 SC. 2902. Madhu Kishwar v. State of Bihar MANU/SC/0468/1996 •: AIR 1996 SC 1864. ICubic f ) . Darusz v. Union of India MANU/SC/0426/1990 : 1990 CriLl

¶796: Chameh Siagh v. State of Swaminathaswami thirukoil MANU/SC/0441/1996 :

(1996) 1 SCR 1068. Apparel Export Promotion Council V. A.K. Chopra MANU/SC/0014/1999 : (1999)

¶1LLT . 962 SC. Kapila Hingorani v. State of Bihar MANU/SC/0403/2003 : (2003) III LLT 31.SC. State of Punjab and Anr. v. Devans Modern Breweries and Anr. MANU/SC/0961/2003 :•

(2004) SCC Liberpool &. London S.P.' & I Asson. Ltd. v. M.V. Sea Success I MANU/SC/0951/2003 : (2004) 9 SCC 512."

¶45With regard to apphcation of International conventions and treaties in India, the Supreme Court laid the followingprinciplesin ^ara^ ofthe judgment w.p.(C)Ho.15239/2004 "Ill interpreting domestic/municipal laws, this court has extensivelymade use of International I law inter aha for the following purposes :

(i) As a means of interpretation;

(ii) Justification or fortification of a stance taken;

(iii) -To fulfill spirit of international obligation whicii India has entered into, when they are not in conflict with existing domestic law;

(iv) To reflect international changes and reflect the wider civilization;

(v) To provide a relief contained in a covenant, but not in a national law;

(vi) To fill gaps in law."

¶46In AIR 1997 SC 3011 Vislmka and others Vs. State of Rajastbaii and Others, the court was concerned with a writ petition filed for preservation and enforcement of the right to gender equality and fundamental rights of working women under' Articles 14^ 19 and Constitution of India, Section 2 of Protection of Human Rights Act, 1993 and the entitlements of working women under Convention on Elimination of All Forms of Discrimination Against Women. There was no specific domestic legislation on the subject. With regard to. the importance applicability of international conventions and treaties, the court held as follows ^ II— "7. In the absence of domestic law occupying field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with, human dignity in Articles 14,15, 19fl)fcr) and 21 of the Constitution safeguards against sexual harassment implicit therein. Anv' International Convention not inconsistent with fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote object constitutional guarantee. This is implicit from Article 51(c") and the enabling power of the Parliament to enact laws for-implementing International Conventions norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 . also is relevant. It provides that executive power Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power Union is, therefore, available • till Parliament enacts legislation to expressly provide measures needed to curb the evil." .

¶47In

(1999) SCC Council vs. A.K. Chopra, also the Supreme Court was dealing with the case of sexual harassment at the place of work which vitiated working environment observed that international instruments cast an obligation on the Indian State to gender sensitise its laws and that the courts are under an obligation to see that message ;of international instruments is not allowed to be drowned. The Supreme Court again emphasised that the courts must never forget the core principles embodied in International Conventions Instruments and reiterated the above principles.

¶48In (2003) 6 SCC 1 Kaplla Hhigoranl "Vs. State of Biliai-y the Apex court stressed on the importance of respecting International Treaties and Conventions while interpreting Constitution and domestic law so as to effectuate the recognised rights and observed as follows- "47. It is also well-settled that a statute should be • interpreted in the light of the International Treaties and Conventions. In Chairman, Railway Board Ors. V. Mrs. • Chandiima Das Qrs. MANU/SC/0046/2000 : 2000CriLJ1473 this Court stated the law thus:- "24. The International Covenants' I Declarations as adopted bv the-United Nations have to be respected bv all signatorv States • and the meanincr given to the above words in those Declarations' and Covenants have to be s'U-ch as would help in effective implementation of those rights.. Page 48 of157 "•ir— awulicability of the .Universal Declaraitioii of Human RiaMs thereof may have' to be "read, if into the domestic mrisurudence."

¶49As noticed above, right to residence and to settle in any part of the country is assured to every citizen as a fundamental right under Article 19(l)(e) of the Constitution of India. (Ref : 1997 (11) see 121 Alimedabad Municipal Corporation vs. Nawab Khan Gulab Khan & Ors.) The right to shelter springs from this right and has been considered to be an integral part •for a meaningful enjoyment of right to life under Article 21 of the Constitution of India. (Ref.: 1995 SuppL 3 SCC 456 ; AIR 1996 SC 114 U.P. Avas Evam Vikas Parisliad & Anr. Vs. Friends Co-operative Housing Society Ltd. &Anr.)

¶50In the instant case also there is no specific domestic legislation at all for internally displaced persons. As noticed hereinabove, there are also no International Conventions governing rights of such persons. It is now an accepted rule of judicial construction that regard must be had to international conventions, norms guiding principles for construing domestic law when there is no inconsistency between them and there is a void in the domestic law.

¶51It is noteworthy that there is no specific law, rule, regulation or instrument providing for treatment of IDPs or setting out any minimum standards for their protection, rehabilitation relocation. The Guiding Principles on internal Displacement reiterate the very right to shelter constitutionally guaranteed and recognized as a basic human right in the international instruments. These Guidelines thus W.p.(C) No.15239/2004 consolidate fill gaps in national international law relating to such, displaced persons. They also provide a valuable benchmark for what must be ensured as part of the basic human rights security of such persons and would guide consideration of the rights of the present petitioners.

52.. It has been observed by the. Supreme Court in (2003) see Kapila Hmgoraiii Vs. State of Bibar , that indisputably, the state parties to the International Covenant on Economic, Social & Cultural Rights were to take appropriate steps to ensure realisation of this thought. So far as the present case is concerned, this covenant specifically states the right of everyone to an .adequate standard of living including housing.

¶53The rules laid down right recognised in aforenoticed conventions as well as Guiding Principles would bind the present adjudication also in the light following principle laid down in. Enteitaimiieiit Network "54 Furthermore, as regards the. question where the. protection of human rights, environment, ecology other second' generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions."

¶54The petitioners are members of the larger group from their community which stands forcibly evicted from one part of the country rendering them homeless and fesourceless. They are without resources at the place of their relocation and are •faced with threat of forcible eviction from their accommodation..By way of these writ petitions, the petitioners seek protectionand enforcementof their fundamentalright to life which includes shelter. The international conventions W.p.(C) No.15239/2004 ' Page 50 of157 recognise shelter as a basic human right. The Guiding Principles reiterate the same rights and responsibilities state so far as IDPs are concerned. Consideration petitioners' rights, therefore, would necessarily involve ensuring the objectives and declarations made in the above international yj instruments especially those endorsed by India reiterated by the Guiding Principles for IDPs. The Protection ofHuman Rights Act 1993

¶55The issue in the instant case has another dimension to it which is of importance. . In discharge of the obligation under international covenants, India promulgated an ordinance appointing commissions and courts for the protection of human rights. This ordinance was replaced by the Protection of Huniaii ilmlits Act, 1993 was,, promulgated on 8."' January, • 1994 to provide for the constitution of the national and state human rights commissions and human rights courts for better protection and for matters connected therewith or incidental thereto. 'Human rights are defined in clause (d) of sub-section:

(1) of Section 2 as the 'rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India'. The expression 'international covenants^ is also defined to include the two covenants adopted by the General Assembly on 16'^' December, 1966 and such other covenants and conventions adopted by the General Assembly of the United Nations as the Central Government may specify by notification. The enforc.eability several rights recognised -under W.p.(C) No.15239/2004 Page 5] of 157 lh International Covenants, therefore, stands recognized by this legislation in India. The said Act was made by the Parliament having regard to the changing social realities growing Concern in India about issues relating to human rights with a view of bringing about greater accountability and transparency in enforcement of the laws of the nation.

¶56It is essential to note that in fact no new right is being created, recognized or reiterated by international instruments or the said guidelines. The right to shelter of every person has been recognized as an essential concomitant of right to life under Article 21 of the Constitution of India. It would clearly be covered under the definition of a 'human right' under Section 2(l)(d) of the Protection of Human Rights Act, 1993 which includes right relating to life, liberty, equality and dignity. The right to shelter, an essential part of right to •life, would therefore also be a statutorily recognized right under Section 2(l)(d) of the Act of 1993 and enforceable as such also. The present petitioners, as persons displaced from their homes state, by way of these writ petitions are thus, seeldng enforcement of such right to shelter.

¶57The above discussion would show that state courts are bound to use international human rights covenants, which also stand incorporated into the Protection of Human' Rights Act, 1993, as a pillar of support for the rights recognised thereby and to ensure the requisite assistance as well as access to shelter as a positive right so that the bare minimum for those in ' need is enabled. The petitioners assert such rights in the challenge laid in these writ petitions. . (Eviction of' Unauthorised Occupants) Act, 1971wMcli riabts of the jietitioners, could be validlvinvoked anainst

¶58On behalf of' the respondents, it is urged that allotment of quarters to petitioners (or their predecessors) stands cancelled. They are therefore in unauthorised occupation of the Government accommodation therefore liable to be evicted under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The submission, is that the proceedings taken by the respondents and the orders passed .against the petitioners were justified are in accordance with law.

¶59On the other hand, the petitioners have.urged that even in their wildest dreams, they had never envisaged a situation when they would not be in a position to reside in their own homes after retirement. On account of grave threats to their, safety, ' the petitioners have been prevented from returning to their homes. The petitioners are not residing in Delhi on account of a desire not to return to the valley or to perpetuate residence in Delhi, but for reasons totally beyond control of these petitioners. The writ petitioners have stated that their homes in Kashmir have either been destroyed or rendered inaccessible to them primarily on account of the inability of the respondents to protect the same. They do not have adequate.means to acquire any property in Delhi. It is the petitioners contention that the ' Page 53 of157 —f,— . I pension admissible to tliem does not enable tliem to afford . rented accommodation or acquire their own houses. The petitioners have submitted that the respondents have permitted similarly situated persons to continue in allotted accommodation. Reliance is also placed on orders Supreme . Court, this Court Central Administrative Tribunal also prohibiting eviction of similarly placed persons from allotted accommodation. In this background, the petitioners assail also the failure to consider their requests to respondents to .exercise discretion vested in them under the Allotment of Government Residences (General Pool in Delhi) Rules, 196'3 to permit the . petitioners to continue to occupy the allotted premises. It is •urged that this refusal was discriminatory, arbitrary and has failed to consider the relevant circumstances.

¶60It is contended by the petitioners that in these facts, they are not in unauthorized occupation of the quarters and that the respondents could not have taken recourse to proceedings, under Public Premises Act, 1971 which would have effect of ousting them their families from •their only residence without taking steps of maldng provision of reasonable alternatives; The contention is that entire action taken by the respondents and implementation threat of forcible eviction would result in violation-of the fundamental and basic human rights of the petitioners and, therefore, is unconstitutional, without jurisdiction completely illegal. . Page 54 of157 Pir-Bindinajudicialvrecedeiits iol

¶61So far as the conditions which were in existeiice in the state of Jammu & Kashmir, tlie restoration of normalcy and the •circumstances in wliicli they are occupying tliese quarters are concerned, reliance has been placed by the petitioners on the proceedings and orders passed in several similar cases prior hitherto which have been completely ignored by respondents. Attention is drawn to the orders of the Supreme Court of India in SLP (C) No,7639/1999 Sliri J,L. Koiil & Anr. Vs,- State ofJammu & Kashmir & Ors. Shri J.L. Koul & the other petitioners in this' case were Kashmiri pandits who were employees State Government being State Government servants, had been allotted residential accommodations in Jammu between 1989-90. Their houses in the valley were either destroyed or burnt down by militants. Even though they had retired from service, these petitioners were permitted to retain the government accommodations in Jammu for safety reasons; Such a step was considered' necessary inevitable by the State Government as atmosphere was not congenial for the appellants to return to the valley, more so when they had lost their respective houses.

¶62It appears that other state government employees awaiting allotment of official accommodation, could not get the same for the reason that these retired persons continued to occupy the official accommodation. They filed a writ petition before the High Court of Jammu and Kashmir complaining against the failure of the' State Government to provide them with official accommodation. A learned Single Judge of the High ' •W.P.(C) No.15239/2004-Court of Jaiiimu & Kashmir had allowed the writ petition passed a judgment on 24^''January, 1997 directing eviction of all those persons who had ceased to be government servants for any reason but, were still occupying the state accommodation. The learned SingleJudge had also directed that the persons who ^ were not in government service but required Government accommodation because of security reasons, should be tried to be accommodated within oiie complex so that their security is ensured, reducing the burden on the. state which would have to incur lesser amount for their security.

¶63• For the reason that the state government was attempting to evict these occupants without providing them with alternative accommodations, a challenge was laid to the judgment Single Judge dated the 24'^ of January, 1997 by a letters patent appeal. This appeal was dismissed by the Division Bench by a judgment dated 14'^'" March, 1997, however, giving an opportunity to appellants to approach appropriate • authority for relief. In this background, these persons led by Shri J.L. Koul, filed the above special leave petition before the Supreme Court. On a consideration of the matter, an interim order order dated ll'^'" April, 1997 was passed by the court directing the state govehiment to maintain status quo regarding the possession of the property.

64.' Mr. R.K. Handoo, learned counsel for the petitioners has referred to certain orders passed by the Supreme Court of India in the said petition. On 26"' August, 1997. the Supreme Court had required counsel representing State of Jammu & Kashmir to ascertain from the State Government as to whether W.P.iC) No.15239/2004 ' Page 56of 157 """ir™- tliepetitionerscanbe putbackin to the housesownedby tlien"^*^ in the Kashmir Valley and to ensure protection of their persons . as also their properties. .

¶65The case was thereafter .taken up by the Supreme Court on 28"' January, 1998. when the Supreme Court took notice of the massacre of Kashmiri Pandits in the Kashmir Valley which ' had taken place a few days prior to the hearing and recorded the following order , •This order is being made in the backdrop of a massacre of Kashmiri Pandits which took place a couple of days ago in the Kashmir valley. Adiourned sine die. •Stay to continue. The -petition to be activated on mentioning by counsel for the State of Tammu and Kashmir as and when State is in a position to assure return petitioners to their respective homes in the Kashmir valley ensure their safety and personal property." (Underlining supplied)

¶66It is noteworthy that the Supreme Court had also passed an order on 3"^ Decemberi 2008 (in Sbri LL. vSc State of T&K aforeiioticed) directing the respondent-state to frame a rehabilitation scheme within a period of six months and to place the same before the court.. For the reason that no' material or scheme was placed before it by the respondents, on 17"' September. 2009. the Supreme Court directed the Chief Secretary, of the State_ to file a personal affidavit as to what steps had been taken pursuant to the orders of the court.

¶67An affidavit dated 6"' October, 2009 was thereafter filed by the Chief Secretary in the case. The appeal was disposed of by a final judgment on 27"' October, 2009 which stands reported " at 2009 (1) AD SC 253 J,L. Koul & Others 1^, State of in So far as rehabilitation of the Kashmiri ij-- migrants is concerned, tlie affidavit dated 6"' October, 2009 has/ been considered in para 7 of the judgment in the foUowing terms "7. In pursuance of the said order, the' Cliief Secretary lias filed affidavit dated

6.10.2009. In said affidavit it has been disclosed that out of 54 appellants had already handed over Government accommodation to the State Department and' the same had been allotted to the Government employees. Only 31 migrants/retirees are presently in occupation Government accommodation. It has further been clarified that there are 37,280 families who have been recristered for the relief including accommodation and out of them only 5,000 families could be provided the accommodation in the camps. However, it had been undertaken that Government would provide-such facilities to all Kashmiri migrants till they are residing at the present places. The relevant part affidavit reads as under "5. That it is further submitted that Govt. formulated a package for, return and rehabilitation of Kashmiri Migrants which involves an outlay of Rs.1618.40 crores. This is for the first time since 1990, that Govt. of India has come up II Kaslimiri Migrants. The policy has been framed on recommendations of a constituted by Govt. of India to suggest various' confidence building measures in the J&K State. While framing policy various needs migrants have been taken into consideration, such as housing, education, revivar of Agriculture, Horticulture land, employment etc. The details of package announced on 5'^'' June, 2008 are reproduced as under:-

i) Return . and Rehabilitation Package of Kashmiri Migrants: The total package involves an outlay of Rs.1618.40 crore. The components of the package are as under:

(a)

i) Assistance

(g) Rs.7.5 lac for fully or partially damaged house left behind by migrant."

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

(iii) Rs.7.5. lac for purchase/construction of a house in Group Housing Societies for those who have sold their properties during the period after 1989 before enactment of "The J&K Migrant Immovable Property (Preservation, •W.P.(C) No.15239/2004 V ir--.. • Protection Restraint of Distress Sale) Act, 1997" on 30.5.1997.

(b). Transit Accommodation : Construction of •transit accommodation at three sites

(g) Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, Rs.1.00 lac per family towards rental ,incidental expenses to those families who may not be accommodated in transit accommodation.

(c) Continuation of Cash Relief to Migrants: Migrants families at' Jammu and Delhi who are recipients of cash relief free ration would continue to receive the same (g) Rs.5000 per family per month (including rations) for a period of two years after their return to the valley.

¶7That it may be further submitted that unemployed youth were asked to convey their willingness for serving in Kashmir Valley. In response to the same, 14074 unemployed youth have expressed their willingness in writing for serving in Kashmir valley.

¶8That it is further submitted that a form called "EXPRESSION OF INTEREST" was circulated among the migrants in order to ascertain their willingness to return to valley and so far 1676 families have expressed their willingness to return to valley and avail the concession available under the package.

¶9That it is further submitted that land at the following three sites have already been identified for construction of transit accommodation, details whereof are as under: a-Land ,at Vessu, District Kulgam 100 Kanals. b-Land at Qazigund, District Anantnag 25 Kanals; c-Land at Khanpura, District, Baramulla 50 Kanals

¶10That it may be further submitted that 200 flats are nearing completion at • Sheikhpora Budgam. In addition to this, 18 flats are available at Mattan Anantnag. These flats are to be used as .transit accommodation by the Kashmiri migrants who wish to return to valley. The niirrrants shall stay in transit accommodation till they re construct or renovate, their houses.

¶11That it may be further submitted that State Government had also constituted an, Apex Advisory Committee to oversee implementation of Return Rehabilitation packacre for Kashmiri Migrants in the month of September 2009 immediately after constitution Apex Level 8 Committee, various suggestions were put forth in a meeting held on 23.9.2 009.

¶12That it may be further submitted that the State Cabinet vide its decision No.13,0/11/2009 dated

1.10.2009 has approved package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Vallev. However, with regard to Page 59of 157 7/ implementation of employment scheme a Committee has also been ordered to be constituted / to go into the legal and other imphcations for maldng recruitments of the migrant youth against various posts before, the said scheme is formally notified. The Committee has to submit its report within a period of two weeks.

¶13That' the State Government is keen to rehabilitate the Kashmiri Migrants in the Kashmir valley and shall provide every type of assistance for their return and rehabilitation. The process for rehabilitation in vallev has been initiated in Tune 2008 after Govt. of India announced package for their return." (Emphasis supplied) The Supreme Court observed that this case had remained pending before It for twelve years-and that the court had been insisting upon the state to frame the scheme of rehabilitation of appellants particularly for providing them accommodation. Placing reliance , on •above affidavits/undertaldngs given by the respondents, Court further observed that authorities have framed tlie rehabilitation scheme and for implementation of the same, it has got sufficient resources also. In this background, the Supreme Court issued the following directions:- "9. In view of the, above affidavit/undertaldng given by the State and after hearing Mrs. Purnima Bhat Kak, Ld. Counsel for appellants Mr. Anis Suhrawardy, Ld. Counsel for the State, we dispose of the appeal with a pious hope that State shall take all •endeavours to reliaMMtate the uersons who'have been victim of terrorism and till the State is to •rehabilitate iirovide accommodation to 31 amellaiits-retirees/oustees, they shall continue to possess the' • accommodations 'which are in their .respective possession on this date." (Emphasis supplied)

¶68It is noteworthy that the ^only difference between petitioners before the Supreme Court and those who are before this court is, that the petition before the Supreme Court 7^ related to persons who. were retired employees of the State Government while the present petitioners are aU employees of the Central Government and its departments. However, petitioners before Supreme Court and the present writ petitioners are' identically placed victims of the militancy the rights asserted by both sets of the petitioners and issues raised by them are identical.

¶69While above petition remained pending in Supreme Court, some other similarly placed employees were facing same threat of eviction as the . present set of petitioners.. Some such persons approached this court while others filed a petition before Central Administrative Tribunal. The orders passed in these, matters would also have a bearing on the present consideration.

¶70Reference requires to be .also made to a judgment passed on 2"^ August. 2006 in WF (C) No,11742/2005 entitled PJC Haiidoo Vs. Estate Officer & Aiir. ' by this court which is reported at 132 (2006) DLT 672. Shri P.K. Handoo was also a Kashmiri Pandit and part of the minority community in the Kashmir valley. '.An employee with the Intelligence Bureau of the Government of India, he had retired from the service on 31®'- July, 2004 whereafter efforts to cancel his allotment and evict him by way of proceedings under the Public Premises Act, 1971 had been undertaken. Sh. P.K.Handoo filed the writ petition assailing this action.and the eviction order dated 30"^June, 2005 passed against him in the proceedings by the estate officer and also sought issuance of -a writ of mandamus against respondents to allow him to retain the official accommodation l/l/.P.rCjHo.15239/2004' Page 61 of157 which had been, allotted to him till such time. that Government made it possible for him to return to Srinagar or till suitable alternative accommodation is provided to him m Delhi.

¶71The observations made by this court in the judgment • dated 2"^^ August 2006 in P.K. Hmidoo (supra) while dealing with the very objections urged in these proceedings, deserve to be considered in extenso and read as follows "11. The argument submitted by the learned counsel for the respondents is typically gauche. It lacks sensitivity. Kashmir has never ceased to be a hub of terrorist activity which is mainly directed against the Hindu Pandits. The violence in the State is at its peak. Due to the obstinacy of terrorists and helplessness of the government to counter terror, the situation could not improve. Indian Constitution applies to all the citizens of India. Equal protection means the right to equal treatment in similar circumstances. There should be no discrimination between one person and another if as regards the' subject matter of legislation their position is the same. It is settled law that a judicial or quasi judicial decision cannot offend Article 14.

¶12In the result, I allow the writ jjetitimi in terms of the order passed by the Ai^ex Court iii the • case of J,L, Koul Vs. State of Tammu and Kashmir (sum^a). Respondents are directed to allow petitioner to retain Quarter No.D-845. Mandir Maro, New Delhi, pending decision in SLP © No.7369/2007, subject to pavment of normal licence fees or in the alternative the ' respondents may provide alternative accommodation to petitioner his familv anywhere in' Delhi till the pendency of the above said writ petition before the Hon'ble Supreme Court. No costs." (underlining supplied)

¶72Learned counsels for the petitioners have also painstakingly pointed out the earlier similar directions made as back as on 30"' December. 2002 by the • Central Administrative Tribunal in OA No,2378/2002 entitled Tei Kishan Vs. Union ofIndia & Ors. on the same issue which have also been noticed and reiterated in the P.K, Haiidoo (supra) judgment. It i noteworthy that Shri Tej Kishan, a Kashmiri displaced person had made-a request for retention of Government accommodation beyond superannuation which was turned down by the Government by an order dated 13*^^ August.2002. This refusal was assailed by way of proceedings before the Central Administrative Tribunal. In these proceedings, the Tribunal had placed reliance on a letter dated 2""^ July, 2002 written to the Delhi. Development Authority ('DDA') by the Ministry, of Urban Development & Poverty Alleviation on the subject of preferential allotment of DDA flats to J&K . migrant Central Government employees who had retired or were retiring. The tribunal noted the letter in the following terms "12. By referring to the letter dated 2.7^2002-written to the -DBA by the Ministry of Urbw Deweloimient & Poverty Allevatioii. it is stated that this has been decided as under:- " But the. situation prevailing in T&K is such that does not ' -permit safe return of these retired/retiring Central Government' employees who can settle after retirement at their native place. Keeping this background in view, a decision has been taken to allot about 100 MIG and LIG Flats in Dwarka to such retired/retiring T&K migrant Central Government emplovees so that Central Pool Accommodation could be got vacated from them. DDA is, therefore, requested to formulate a housing scheme for retired/retiring J&K migrant. Central Government employees and send a draft tliereof to this Ministry within a fortnight for approval." (Underlining supplied) 7,3. In above. judgment, Central Administrative Tribunal also observed on violation of Article 14 by the respondents holding that "the state shall not by its act discriminate as between two individuals who are similarly W.P.XC) No.15239/2004 oJ^ circumstanced." These findings are also noticed in para 10 of/ the judgment in P.K. Handoo's case (supra).

¶74I have • had occasion to deal with a similar issue in a judgment dated the 11"' of AmM 2008 rendered in W.P.(C) No, 1065/2007-MJC Koul Vs. Union of India & Ors. In this case also the petitioner was a retired Kashmiri employee Central Government who could hot return to Kashmir .for the ' same reason as the petitioners. Proceedings for his eviction were also initiated by respondents under Public Premises (Eviction of Unauthorised Occupants) Act 1971. During the course of hearing on 7"' April, 2008, a query was put to counsel for the respondent in this ,case in respect position with regard to the safety and security of the Kashmiri Pandits in the valley. The. position was revealed to be the same as before. In para 14 of the said judgment, consequently it was recorded that "the respondents are not in a position to ensure their safety and protection and as such, in case they are displaced from the accommodation which they are occupying-, they willnot be in a position to return to their respective homes in the Kashmir valley". . - Consequently, the following directions were issued:- "15.. In order of cancellation of . the petitioner's allotment or to enforce the eviction order which has been passed against the petitioner or to evict the petitioners from the prejiiises which they are

¶16There is no doubt, that the petitioner was making payment of the normal licence fee while he was in service. Interest of justice and equity merit that the petitioner be required to make payment of the licence fee on the same basis till such time as the respondents are able to ensure safety of ipersonal W.p.(C)No.15239/2004 ' proTPertv of the petitioner in their home State or are in a position to provide similar alternative accommodation to tile petitioner or the petitioner accruires anv other residential pfopertv in Delhi.

¶17In view of above discussion, this writ petition is.allowed. The respondents are directed to. permit , petitioner to continue to occupy the Quarter No.N-299,. Sector-8, R.K. Puram, New Delhi subject to payment of the same licence fee as was being paid by the petitioner on the date when he retired. This order shall continue to operate, till such time as the respondents provide similar alternative accommodation to the petitioner, or the petitioner acquires any residential property in his name. This writ petition is allowed in the above terms. . There shall be no order as to costs." (Emphasis supplied) It is noteworthy that these orders have not been assailed and have attained finality. -

¶75It is urged by learned counsel for the respondents that failure Government of India to challenge orders passed in WPfCJ No.11742/2005 entitled P.ICHmidoo v. Estate Officer & Ann/ WP

(C) No.1065/2007. entitled M.K.Kaul V. UOI & Ors. and the other cases are immaterial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex Court reported at

(2006) II see 709 Col. B.J. AMsara Vs. Government of India & Ors. in support of this submission.

¶76It is noteworthy that Col. B.J. AMara's case (supra) related to efforts of the Government to recover paym.ent of excess amount as pension. Certain orders stood passed in the writ petition filed by other employees who had raised a similar challenge. These orders had not been challenged by the Government. In this background, the petitioner had contended that the Governmentwas estoppedfrom recoveringthe amount . -77 from him in view of those orders which had attained finahty. The Apex Court rejected contentions and held that Union of India would not be barred from resisting subsequent writ petitions involving similar issues or challenging subsequent judgments of High Court realising seriousness or magnitude of the issues or financial implications. The position would be different only if it is established that the Government had adopted a pick and choose method. only to avoid relief to the petitioner on account of mala fide of ulterior motives. It was held that principles of estoppel, res judicata, legitimate expectatioli or fairness in action were not attracted on the facts of the case. No .plea of violation of fundamental rights was involved in Akkara's case (supra). There can be. no comparison with the facts of Ald^ara's case (supra) with those of the present cases.

¶77The aforenoticed judgments orders were clearly relevant and binding upon, the respondents for construing and taking a view on the contentions and claims of the petitioners. The respondents were also bound by the deposition and the policy placed before the Supreme Court which resulted in its judgment dated 6'*^ of October, 2009. The available records do not show any considerationof the aforenoticedjudgments and 01dels so far as the rights and.plight of the petitioners are concerned. Cancellation of allotments and action under the Public Premises Act. 1971

¶78Mr. Jatan Singh, learned counsel appearing for the respondent No.l has contended that the decision to cancel the yy.P.{C) No.l523m004 Page 66 of157 allotments and to initiate the proceedings under Public Premises Act, 1971 as well as the orders of the Estate Officer and the judgments Appellate Court are in terais of statutory provisions cannot be assailed by way of these writ petitions. Reliance is placed on the pronouncements of this court reported at {1995) II AD Delhi 293 Union of India Vs. S.M. Aggarwal & 31 others-, 2000 (55) DRJ 57 BMm Singh Vs. Union of India & Anr.-, AIR 1977 Delhi 268 Hardwari Lai Verma Vs. The Estate Officer & Ors. in support.

¶79This objection of the respondents ignores well settled first principles' of law. Merely because the impugned action is taken and order passed in purported exercise of statutory power would not render it immune from judicial scrutiny. The question as to manner in which such action and orders viz-.a-viz their effect on fundamental rights will be examined, stands answered by the Supreme Court in AIR 1978 SC 597; (1978) 1 SCC 248 Maiieka Gandhi Vs Union ofIiidia and others. In this case, the court had made the following observations with regard to . the impact of action taken under provisionsof the Passport Act:- • "Now, if effect of State action on a fundamental right is direct inevitable, then a fortiorari, it must be presumed to have been intended by the authority taking the action and hence, this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be appliedfor. the purpose of . determiningwhether Section10 (3) (c ) ofthe impugned order made under it is violative of Article 19 (l)(a) or

(g)."

¶80The SupremeCourtfurtherruledthat it is not necessaryto assail the constitutionalvalidity of the statutory ,provisions• \ under which tlie impugned order is made and that tlie court would still be able to examine as to whether the order made in • exercise of statutory power was invalid for the reason that it contravened a fundamental right holding as follows "But that does not mean that an order made under Section 10(3)(c) ) may not vioiate Article 19(l)(a) or (g). While discussing constitutional validity of impunged order impounding passport of petitioner, we. shall have occasion to point out that-even where a statutory provision empowering an authority to take action is constitutionally valid, action taken under it may offend a fundamental right, and in that event, though the statutory provision is valid, the action'mav be void. It is true, and we must straightaway conceded that merely because, a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights/it does not give a .carte blanche to the authority to make any -order it likes so long as it is within the parameters laid down by the provision. Every offer made under a statutory provision must not only be within the authority conferred bv the statutory provision, but must also stand test of fundamental rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights. It is a basic constitutional assumption underlying every statutory grant of power that authority on which power is conferred, should act constitutionallv and not in violation of anv fundamental "right. This would seem to be elementary and no authority is necessary in support of it." (Underlining supplied)

¶81In the above case, the Supreme Court held that even though the impugned order was within the terms of the relevant section, "it must nevertheless, not contravene any fundamental rights and if it does, it would be void". So far as the present case is concerned, even it were to be held that action taken by the respondents was permissible under the statutory provisions, but if it violated or adversely impacted fundamentalrights of the petitioners, it wouldhave to be voided. This objectionto the maintainabilityof ' Page6Sof]57 'S) the present writ petitions is therefore misconceived and is rejected. •82. An examination of' the order of cancellation of allotment requires to be midertaken. The only rules relied upon in support of the power to permit occupancy of the quarters are the Allotnient of Government Residences- (General Pool in DelM) Rules, 1963. Cancellation of the allotment has been effected under these very rules. •83. The respondents have permitted the petitioners to occupy the same in exercise of power conferred on them. It is not the .respondents' case that the petitioners came into possession of the quarters illegally or without authority. The occupancy is being treated as unauthorised by the respondents for reason that they have cancelled the allotments.

¶84. In view of this stand respondents, it becomes necessary to examine the provisions of the Public Premises Act 1-971.

¶85For the purposes of the .instant case, expression "unauthorized occupation" as defined under section ,2(g) bf the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 has to be construed. • Section 2(g) of the said statute reads as follows •"2(g) "unauthorised occupation". in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever." W.p.(C) No.15239/2004 ' Page 69 of157 ('

¶86So far as tlie proceedings for, eviction under the Public Px-emises Act 1971 are concerned, Sections 4 and 5 thereof \ deserve to be also considered. The relevant extract reads thus:- "4. Issue of notice to show cause affaiiist order of eviction. - (1) If the estate officer is of opinion that, any persons are in unauthorised occupation of any public premises that they should be evicted, Estate Officer shall issue in manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall-

(a) specify grounds on which order of eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all persons who are, or may be in occupation of, or claim interest in, the public premises,-

(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 form the date of issue thereof,

(ii) to appear before the Estate Officer on the date specified in the notice along with evidence which they intend to produce in support cause shown, and also for personal hearing, if such hearing is desired.] xxxx .

¶5Eviction of unauthorised occupants, - (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section and [any evidence produced bv him in support of tiie same and after personal hearing, if any, given under clause (b) of sub-section

(2) of section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing, that-public premises shall be vacated, on such date as may be ' specified in the order, by all persons who may be in occupation thereof or any part thereof, cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. . W.p.(C) No.15239/2004 •

(2), If any person refuses or fails to comply with the order of eviction [ on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section

(1), whichever is-later.] the estate officer or any other officer duly authorised by the estate officer in his behalf.[ may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, and take possession of, the public." (Underlining supplied)

¶87The present cases raise a pertinent question as to whether the cancellation of the allotments to the petitioners was justified and valid and whether the petitioners'' occupancy thereafter could be brought within meaning of expression "unauthorised" under Section 2(g) Public Premises Act, 1971.

¶88The statutory definition of the expression "unauthorised occupation" in Section 2(g) of the Public Premises Act, 1971 thus requires judicial interpretation for the purposes present cases. In this regard the oft quoted words of Justice P.N. Bhagwati in

(1983) '1 SCC Nsitionml Textile Workers' Union'vs, P,R. Raiiiakrislmmi would be apposite when it was stated as follows "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still : it must change with the changing social concepts and values. If the bark that protects the tree fa:ils to grow and. expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke •its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move , adapting itself to the fast changing society and not lag behind:" ' Page 7] of 157

¶89While interpreting statutory provisions, the Supreme Court has also approved and applied in a number of cases, the-principle of "updating construction" while interpreting statutes as set out by leading jurist Francis Bennion in his commentaries titled 'Statutory Interpretation', 2""^ Edn., pg 617. • {Ref : (2003). 4 'see 601 State of Maliarasliira vs. Dr. Praful D. 'Desai / (1997) 5 SCC 482 CIT Vs. Poddar Cement Pvt. Ltd.; (2000) 8 SCC 740 Basavaraj R. Patil vs. State of Karnataka}. These principles have been noticed in (1996) 2 SCC 428 State vs. S.J. Cboudhary read as follows "(2) It is presumed that Parliament intends the court to . apply to an ongoing Act a construction that continuously updates its wording to allow for changes since Act was. initially framed (an updating construction). While it remains law, it is to be treated ^as always speaking. This means in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law." At page (618-19), of the report, it is further noted that:- "In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give-effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since Act's passing, in law, social conditions,- technology, meaning of words, other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is , regarded as 'a living Act'. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parhament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee . the future, and allow for it in the wording." It was, therefore, observed that an ongoing Act is taken to be always speaking stating that W.P.YQ'No.15239/2004 Page 72 of157 "All enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modificationof the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides gradual adjustment. ' It is constituted by judicial interpretation, year in arid year out.. It also comprises processing by executive officials." Thus, the courts have over the period of time applied this principle to interpret various terms phrases including "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive"; "telegraph" to include "telephone"; "banker's book" to include "microfilm"; "to take note" to include "use of tape recorder"; "documents" to include "data bases"; "handwriting" was construed to include "typewriting" {Ref: 1996(2) SCC State Fs', SJ.Chaudlmiy}. "Notice in writing" in Section 138 of the Negotiable Instruments Act, were construed to include a "notice by fax". {Ref : (1999) 4 SCC 567. SIL Import USA Vs, Exim Aides Silk Exporters}. This principle of legal interpretation would squarely apply to the construction to be placed on provisions of Public Premises Act, 1971.

¶90Because of the peculiar circumstances prevalent in the Kashmir valley, members of the minority community were targetted and singled out for hostility as a class in their home state. Admittedly, the state was unable to protect their rights or properties.

¶91The state authorities assessed the threat perception and dangerto the lives to some ofthe petitionersw;ho were bodily evacuated from their homes in the valley. The transfer of the 'Rage 73 of 157 if-petitioners, (or that persons on whom they were dependent), to Delhi, which preceded the allotment of quarters, was thus compelled by the inability respondents to protect and ensure the right to life of the petitioners. The same was certainly involuntary. The allotments were a result of the extreme necessity recognised and adjudged by the respondents themselves. It is also noteworthy that'those fleeing to safety had no opportunity to secure or salvage their properties.

¶92It is an admitted fact that over this period, the properties of petitioners in Jammu .& Kashmir have either been destroyed or, in" other cases, occupied by militants or the majority groups in the state. On account of the inability of the Government to protect lives properties petitioners, despite Constitutional mandate, petitioners have been deprived of their properties, are unable to return , to their homes and face danger to their lives, if they do so.

¶93The accommodation allotted to the petitioners is the only accommodation which they'have ever known in this city. The petitioners state that they do not own any other property. It is same sheer necessity which compels petitioners to continue to occupy the premises which was allotted to them. It is clearly evident that having identified and supplied such need of petitioners, absent any alternative with them, respondents would be required to maintain the same.

¶94The petitioners have been at the receiving end of the threats not only for the reason -that they were from another communitybut also largely because tliey represented tlie face of the Central Government in the valley as Its employees.

95.. It is important to note that the scheme noticed in the aforenoticed affidavit dated 6'^ October, 2009 (filed by the Chief Secretary before the Supreme Court in J,K. Koul vs. Union of India (supra)-, talks of 'Return and Rehabilitatioii: It does not even advert to resettlement. No reference is made to the safety or security of the migrants who agreed or attempted to return. Interestingly, there is reference to 37280 Kashmiri families who had registered for the relief including accommodation out of which oiit of which only 5000 families have been provided accommodation. An undertaking stood given to the Supreme Court that the government-would provide such facilities to all Kashmiri migrants till they are residing at the present places. Persons as the petitioners are not even covered under those who are dealt with in this affidavit.

¶96It is also noteworthy that the affidavit filed before Supreme Court refers to a total package of Central Government invoMncr an outlav of Ruijees 1618.40 crores.

¶97The affidavit of the Chief Secretary does not even refer to the utilisation of this huge amount of public money and the fate of the proposed facilities. There is nothing even before this court which could suggest that the facilities promised before the Supreme Court, have even come into existence.

¶98The alternatives propounded and the schemes pertaining to Kashmiri migrants iioticed in the judgments of the Supreme Court and of this court remam in the realm of proposals unimplemented schemes alone without any element of reality or W.P.{C) No.15239/2004 . — fairness. No alternative at all has been made available to or offered to the petitioners even during the hearings before this coMrt. In the hght of the well settled principles laid in the above precedents, inevitable conclusion is that respondents have not taken relevant factors into consideration have acted arbitrarily unreasonably. The above discussion clearly manifests that the respondents have not acted fairly in discharge of their positive obligation have not sufficiently engaged with problems difficulties of the petitioners.

¶99The petitioners have been prevented from residing in their ' ' d • • hoines in Jammu. & Kashmir for the reason that the State has been unable to secure their lives or protect their homes. In fact, respondents also admit their inability to ensure protection to the life and limb of the petitioners in case they were to return to the home state, let alone any measure of security for their continued residence in the place of their birth, in case they returned.

¶100On behalf of the respondents, it has been argued at length even in these proceedings that Union of India has formulated • a package for return rehabilitation displaced persons. This by itself shows that the situation is not such that the petitioners are in a position to return to their homes. The respondents are.clearly,unable to ensure protection to the lives of the petitioners and their famihes or security in their homes...

¶101Mr. Jatan Singh, learned standing counsel for the UOI has placed reliance on the pronouncement of this court reported at •W.p.(C) No.15239/2004 Page 76of 157 2000 (55) DRJ 57 BMm Singh Vs. Union ofIndia & Aiir. In this case, petitioner had sought upgradation ; accommodation allotted to him on grounds of the security cover which had been granted to him as a president of. a political party. A challenge was also laid to the eviction proceedings. It ' was held that the accommodation allotted to him was not liable to be upgraded. It is noteworthy that the petitioner in that case did not hail from the Kashmir valley. No plea that the petitioner could not return to his own accommodation on account of inability of the state to protect either his life or the property was putfdrth or considered. In the present case, the petitioners seek no upgradation of accommodation but only protection of their basic human right and the fundamental right to life. There is no parity at all between BMm Singh's case (supra) and the present cases.

¶102It needs no elaboration that a judgment has to be examined in the context of the factual matrix which it decides. The judgment reported at {1995) 'II AD Delhi 293 Unioii of-India Vs. S.M. Aggarwal & 31 Others^ also relied upon by the respondents, was a case of eviction of shopkeepers who were licencees in shops which were public premises and had failed to show cause in answer to the notice issued by the Estate Officer. This case cannot be compared with the factual matrix noticed hereinabove.

¶103The respondents have also placed rehance on pronouncement of this court reported at AIR 1977 Delhi 26^ • Hardwari Lai Verma Vs. The Estate Officer & Ors. wherein the court held that an allottee of a Government quarter is Page 77of 157 merely a licencee. There can be no dispute at all with this proposition. However, Hardwari LaiVerma had also not raised any question of violation of basic human and constitutional rights as the petitioners have in the present case. , No fact situation as in the present case was involved.

¶104The petitioners are not continuing to occupy the subject premises because they want to do so. They are also not claiming a right to indefinitely occupy the public premises or asserting a title or a right thereto in respect of the subject property. The petitioners have merely sought protection of their right to shelter till such time, as the respondents are able , to ensure their right to life in their home state or make available a reasonable alternative shelter to petitioners. The • respondents have themselves considered such requests permitted identically placed persons to continue to occupy the allotted accommodation. Such a claim has also been entertained and granted by not only the Supreme Court, but also by this court as well in several precedents noticed hereinabove. The respondents have admitted in their counter affidavit that the petitioners have nowhere else to go.

105.. Within the larger group of the IDPs from Kashmir, petitioners form a special class and are retired government personnel. When the petitioners were forced to relocate, they received government accommodation not only as an incidence of their service, but also on account of their compulsive eviction from their homes. They have also not been able to get any benefit of any of the schemes framed by the government which • Page7Sof]57 clearly admit special needs entitlement of th.es displaced persons.

¶106Despite this hard reality, representations, undertakings, and promises of the Central Government, upon retirement, the allotments to the petitioners stand cancelled they are being asked to vacate Government accommodation; otherwise they face threat of eminent forcible eviction therefroin pursuant to proceedings taken against them under Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

107.' The petitioners may thereby be compelled to return to the violent situation where from they were evicted/evacuated/or forced to flee. Forcing the petitioners who are IDPs to return to the area where they were persecuted violates the principle of hon-refbulement which is the principle in international law forbidding the expulsion of a refuge into an area where such person mights-be again subjected to persecution. The respondents cannot be permitted, to on a hyper-technical construction of statutory provision or arbitrary exercise of power to create a situation where the homeless petitioners are compelled to return to the areas where they may face' violence and threat to their life and liberty.

¶108The respondents have themselves recognised entitlement of the .petitioners to appropriate residence, when they made the allotments. The only reason advanced by the respondents for their decision to cancel the allotment and to evict the petitioners is that they have retired. The relevant factor as to the developments in the state of Jammu & Kashmir TP and the effect of such eviction has not even been remotely Op^ considered. No examination of the issue of whether the spirit or intendment of avowed policy of rehabilitation been achieved, or not, has been undertaken.

¶109The situation which was to be addressed in these cases was truly exceptional. This aspect has also not even remotely entered the respondents consideration. In fact the decisions of the respondents amply illustrates that .the respondents are not rational, reasonable or consistent in their decision maldng. The construction placed-by the respondents in the cases of these IDPs on the permissibility of the occupancy of the quarters under the Allotment Rules as relateable solely to their sei-vice results in violation of constitutional guarantees and was clearly 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 19(l)(e) •Article 21 of the Constitution of India. For these reasons, the' interpretation of the expression "unauthorised occupation" by the respondents as well as in the impugned orders is. blinkered, restricted and impermissible in the given facts. The expression "authority for such occupation" appearing in Section 2(g) must take within its ambit the constitutional violations which result from the restricted working of the statutory provisions by the respondents.. It was incumbent upon all concerned with the decision maldng to. take into consideration the most material developments in the home state of the petitioners and the fact that the State was unable to guarantee protection of life and liberty to the petitioners in case they return; the insufficiency •• Page80ofJ57 and inability of the resettlement/rehabilitation effort and the ' absence of any alternative to the petitioners for the purposes of construction of the expression "authority for such occupation . No legal.interpretation couldbe acceptable which does not take into its consideration these relevant facts and circumstances. The petitioners are occupying the accommodation because of the failure of the respondents to discharge the constitutional mandate and their public law obligations of protecting the right to life and liberty of the petitioners. As noticed above, the authority to occupy the quarters so far as the petitioners were concerned was derived from the constitutional guarantees. Such occupancy cannot be deemed or held to be "unauthorised" by any measure.

¶110The significant difference between the cases petitioners and that of an unauthorised occupant of public premises is that the writ petitioners have continued to occupy the public premises only on account of the inability of the state to protect fundamental and basic human rights of the . petitioners.

¶111The respondents would have records of. circumstances in which the petitioners and their successors in interest were transferred and evacuated to Delhi and also the . extreme necessity of making the allotments of the quarters to these persons who were not only .Government servants but also IDPs. The Directorate of Estates which has effected impugned decisions cancelling the allotments would be aware of the pronouncements in respect of identically placed persons of tile Supreme Court in P.K. Kdul Vs. Estate Officer, this ' Page.81of157 . court in J.K, Koul vs. Union of India, tlie order of tlie Central Administrative Tribunal in Tej Kislmii Vs. Union of India. & Ors. and implemented the same. The respondents are aware of the prevalent situation. '

¶112No legal interpretation would be acceptable which does not take, into its consideration relevant" facts circumstances. There can also be. no statutory interpretation which results in violation and constitutional guarantees protection. The present petitioners certainly cannot be •compared with or treated in the same manner in which the respondents would deal with any other occupant who has not suffered gross violations deprivations as the petitioners, is unauthorisedly occupying the public premises.

¶113It, therefore, has to be held that the occupation by petitioners cannot be construed as "unauthorized occupation" of the quarters within the meaning of the expression in Section 2(g) of Public Premises (Eviction of Unauthorized Occupants) Act,.1971.

¶114An examination of impugned orders is now necessitated. The cancellation of the allotments and the action initiated uiider the Public Premises Act, 1971 were resisted by the petitioners-on the several grounds on which these writ petitions are premised. However, same resulted in-the impugned orders of eviction.

¶115The sole reason givenby the Estate Officerfor passing the impugned orders of eviction is that the allotments in favour of the petitioners stand cancelled and that they had failed to prove ' Page 82 of157 that they were not m unauthorized occupation of the instant premises. None ofthe other contentionsofthe petitionerhave been even mentioned let alone considered;

¶116The petitioners' appeals assailing these eviction orders stand rejected.

¶117The petitioners had placed the several decisions relating to similarly situated persons before the respondents, the Estate Officer as well as the learned Additional 'District Judges. A plea was taken that because of failure of the respondents to ensure the protection of the rights of the petitioners under Article 21 of the Constitution of India they continued to occupy the quarters. The petitioners had also urged that they stood deprived of home and hearth because of the failure ,of the respondents to ensure constitutional guarantees discharge mandate •thereunder.

¶118The appellate orders notice the petitioners' contention that petitioners have made several representations to various authorities for aUowing them . to retain accommodation on the ground that they belong to Kashmir and it was not feasible to return in view of the communal riots and terrorists movements. These requests have not been acceded to. The impugned appellate orders record that the petitioners have challenged the eviction orders on the ground that the Estate Officer had failed to consider the fact that they were Kashmiri migrants and cannot return to Srinagar till normalcy is restored. It was also a ground of appeal that the Estate Officer had not considered the orders in SLP No. 1369/1997 by the Supreme Court and that the petitioners' cases were on the w.p.(cym.15239/2004 same footings. The challengehad. also been laid to the orders ^ of the estate officer on grounds of arbitrariness and violation of principles of natural justice. .

¶119The appellate court in the impugned. orders has also proceeded on the sole ground that there was no lease or license deed issued in favour of the petitioners by the Government of India. The orders of the Apex Court were not considered on the sole ground, that copy of the Special Leave Petition had not been placed before the court and that the petitioners were not a party, to the proceedings. The learned appellate court was also of the view that the petitioners were provided accommodation in Delhi because they were in service in Delhi and not because of terrorists threats and further that accommodation was given only by virtue of employment. It was also concluded that no relief had been granted to the petitioners by the Supreme Court and therefore, the orders did not assist the Supreme Court. The eviction drders had been sustained _in view of these conclusions.

¶120As a result such'working of the Public Premises Act by respondents, petitioners are being threatened with eviction from only shelters that they Imow, without any alternative being available to them.

¶121The respondents are bound to act in a manner which is compatible with the constitutional rights of the petitioner while this court has to take into account and require the legislation to be read compatibly with such rights. The object is to ensure ' that the actions and orders must be such as to avert or rectify •any violation of such basic rights-. Page 84of 157

¶122The scheme of Pubhc Premises (Eviction of Unauthorised Occupants)Act, 1971 showsthat the notice which is issued under Section 4 to show cause is required to specify the grounds on which the evictionis proposed to be made and require the persons concerned to sliow cause against the proposed order before the specified date when they are to produce evidence in support of the show cause. Under Section 5 of the Act, the Estate Officer is required to consider, the show cause by the noticee under Section 4 as well as the evidence produced by him and after personal hearing, if any, given.' Thereafter, the Estate Officer is required to record reasons for his satisfaction for making an order of eviction. The orders of estate officer discloses no reasons at all to support satisfaction to order eviction. The impugned orders do not reflect consideration contentions on the evidence placed by the petitioners. • ' .

¶123The due process clause in the Constitution mandates ensuring that the state provides a humane standard of living to its citizens.,

¶124The letter from-.Ministry of Urban Development to Delhi Development Authority placed on record, in Tej Kislmii vs, UOI

(supm) before the Central Administrative Tribunal (also rehed upon in 132 (2006) DLT 672 P.K. Hmidoo vs. Estate Officer indicates engagement of the authorities with this issue and the decision of the^ Central Government directing that schemes be •framed by the Delhi Development Authority as well for maldng l^referential allotments of accommodation to Kashmiri migrants. In addition, the Government affidavit dated 6"' October, 2009 in Page 85 of.157 "•ir J.L, Koul (supra) filed in tlie Supreme Court of India also^_ expresses the same concern as has been expressed in the above Guiding Principles on Internal Displacement. These actions unequivocally manifest the respondents' awareness about the positive obligation imposed upon them to ensure that the persons displaced from Kashmir are required to be resettled and/or rehabilitated. There is admission of responsibility and culpability. The worldng of tliie measures, however, reflects that the steps which have been taken are inadequate and hopelessly insufficient. Even in the prolonged hearing before this court, respondents could place no alternative so far as the petitioners were concerned.

¶125In AIR 20W SC 1476 State of West Bengal vs. The Community for Protection .of Democratic Rights, West Bengal & Ors., the Supreme Court has also held that the court was required to weigh the impact of a particular government scheme, statute, or action on the fundamental rights of those effected by the government scheme, statute or action. In case any statute or action abrogates or abridges such rights, it would be violative of the basic structure/doctrine of the Constitution. For this reason as well, any application or enforcement of statutory provisions, rules, , regulations that impacts or impinges fundamental rights has to be struck down.

¶126In [2004] EWCA Civ 540 Secretaiy of State for the Home Department vs. Wayoka Limbuela, Binyam Tefera Tesema & Yusif Adam, the House of Lords has prescribed a test to determine whether a statutory scheme or a government policy caused a violation of fundamental rights. It was observed that when a reasonable evaluation of all relevant facts and ly circmiistances shows that a government policy would subject petitioners to an immediate and serious deprivation of the basic necessities of life, then the court may properly grant relief. It was also held that the state would be liable for both action and inaction as long as the action or inaction results in a serious deprivation of rights or human dignity.

¶127In the light of the directions by the Supreme' Court and this court in the aforenoticed cases relating to identically situated displaced persons who are victims of violence, contest by the respondents to the present writ "petitions on technical, specious and legally untenable grounds is unfair to say the least. Similar issues have arisen before and orders stand passed in favour of the similarly placed persons therein.

¶128The petitioners -have suffered on account of respondents failure to protect their life and liberty when they were compelled to flee from their homes in Kashmir. In international law, refugees are protected from being compelled to return to places or situations where their lives or freedom could be threatened. It is pointed out that the respondents have implemented this principle in the cases of Chakmas, Tibetans, and else where IDPs, who are citizens of the same country, certainly cannot be treated differently and compehed to return to violent situations. •

¶129The proceedings as well as the impugned decisions and orders have completely failed to take into consideration material issue of the impact of the proceedings and the orders which would result in forcible eviction of the petitioners from Page S7 of 157 the only shelters known to them without any alternative. The •impugned cancellation of allotments, the orders of eviction passed by the Estate Officer and the aforenoticed orders dismissing the appeals of the petitioners are in the teeth of the constitutional guarantees to the petitioners under Articles 19(l)(e)(g) and 21 and therefore not sustainable.,

¶130Such cancellation of allotment and forcible eviction at the hands of the State utilizing the shield of a statutory .right to do so under the Public Premises Act, 1971 results in violation of the constitutional rights of the petitioners. If is manifest therefore such that such application of law as would have an impact of violating ' the fundamental rights of petitioners is impermissible under the constitutional scheme. Proportionality test

¶131The proportionality of the impact on the fundamental right involved by working of the statutory provision as against objective of the concerned'statute is another important test for adjudicating .upon the legality, of the interference with the right which would have a bearing on present case. In a pronouncement House of Lords reported at UKHL 11;(2007) 4 AM ER 15 Huang Vs. Secretary for the Home Department, decision maldng role, and function of the appellate immigration authorities in the context of the Human Rights Act, 1998 and the Immigration and Asylum Act, 1999 was in issue. The House examined the scope of reviews by the prescribed authorities. - The private parties complained of violation ,of their rights, under Article 8 of the "ir"" European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 which provides as under "1. Everyone has the right to respect for his private and family life, his home and his correspondence.

¶2There shall be' no interference by a public authority with the exercise of this right except such as is in accordance, with law and • is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for prevention of disorder or crime, for protection of health or morals, or for the protection of the rights and freedoms of others." The consideration by the House of Lords oh the principle of proportionality of the impact of the interference on the right vis-a vis, the legitimate end in view is important and reads as follows :- XXX xxxx In most cases where the applicants complain of a violation of their art 8 rights, in a case where the impugned decision is authorised by law for a . lecritimate object interference (or lack of respect) is of sufficient seriousness to engage operation or art 8, the crucial guestion is likelv to-be whether interference (or lack of resjyect) complained of is jjroportionate to the lemtimate end' sought to be 'achieved. Proportionality is a subject of such importance as . to reguire separate treatment. PROPORTIONALITY In de Freitas Vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684, the Privy Council, drawing on South African, Canadian Zinibabwean authority, defined the , questions generally to be asked in deciding whether a measure is, proportionate : '...-Whether fi) legislative objective is sufficiently important to justify limiting a fundamental right:

(ii) measures designed to meet legislative objective are rationally r.nririected to it: and

(iii) the means used to impair the right or freedom are no more than is necessary to accomplish objective." W.P.(C) No.15239/2004' This formulation has been widely cited arid . appUed. But counsel for the apphcants (with the support of Liberty, in. a valuable written intervention) suggested that formulation was deficient in. omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [19861 1 SCR 103,. from which this approach to proportionality derives. This feature is (at 139) the, • need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The • , House recognised as much in R (Razgar) v Secretary of State for the Home Dept [2004].UKHL

27.at [17]- [20], [26], [27], [601,[77], [2004] 2 All ER 821 at [17]- [20], [26], [27], [60], [77], [2004] 2 AC 368 when, having suggested, a series of questions which an adjudicator would have to ask and answer in deciding a convention question, it said (at [20]) that judgment on proportionality - 'must • always involve strildng of a fair balance between, the rights of the individual and the interests of the community which is inherent in the whole of convention. The severity consequences of the interference will call for careful assessment at this stage.' , ' If, as counsel suggest, insufficient attention has been paid to this requirement, the failure •should be • made good. xxxx" (Emphasis supplied)

¶132Having regard to the drastic violation which results from the impugned action and orders, it has to be held that the decision of the authorities to cancel the allotments and proceed f for eviction as well as impugned orders against petitioners are not in accordance with law even on reasonable assessment of proportionality vLz-a-viz the object of eviction of unauthorised occupants of the Pubhc Premises Act, 1971. W:P.(C) No.15239/2004 ' Violation ofAiticIe 14 of the Constitution

¶133The petitioners have also complained that the respondents had discretion to permit the petitioners to continue to occupy premises under' SR 317-B-25 of 1963. It is contended that the respondents were bound to consider the matter on the relevant consideration of the right to shelter petitioners which was involved cannot premise their action on extraneous and impermissible reasons or considerations. Mr. B.L. Wali, learned counsel for petitioners, has urged that the failure to exercise discretion in favour of the petitioners is in fact not only in violation of the constitutional obligations of the respondents, but is arbitrary and unreasonable.

¶134Shri P.K. Kaul, (writ petitioner in W.P.fC) No.15239/2004) had earlier filed WP

(C) No.6551/2003, submitting that respondents had arbitrarily failed to consider his request for regularization despite having Imowledge of special circumstances of the case. Mr.B.L.Wali, learned counsel for this petitioner has placed order which was passed on 15''' October, 2003 in the earher writ petition, which directed respondents to consider question of regularization of allotment in favour of the petitioner in view of the special circumstances. It was directed that the ,petition including its enclosures should also be considered while disposing petitioner's representation.

¶135Despite these orders, the writ petitioner has contended that there has.been.no consideration in terms of this order till • W.P.(C) No.15239/2004 date. He has, therefore,filed the writ petitionbeing WP (C) 0^ No.15239/2004 challenging notice issued by the Estate Officer under section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1972 to him.

¶136The other writ petitioners have also made similar requests to respondents for exercise of discretion which were reiterated by them in the reply to the notices issued by the Estate officer under Section 4 of the Public Premises Act as well as in the appeals which were filed. The same ground of challenge to the respondents' action has been urged in these writ petitions.

¶137Mr.B.L.Wali, learned counsel appearing for some of the petitioners has pointed out that the respondents have exercised discretion favourably and permitted some identically situated displaced Kashmiris to continue in allotted premises after retirement whereas this has been arbitrarily denied to the petitioners. Learned counsels contend that respondents' action so far as present petitioners are concerned, is discriminatory and not sustainable.

¶138The respondents on the other hand place reliance on the pronouncement of the court in (1997) .1 SCC 444 SMv Sagfar Tiwari vs. Union of India and dispute that they have any / discretion in the matter.

¶139Allotment of government accommodations are effected under the provisions of Allotment of Government Residences {Geaeral Fool in Delhi) Rules, 1963. Reference is made to SR 317-B-25 thereof which empowers the Government to relax tlie provisionsof these rules and deserves to be consideredin extenso. The same reads as follows;- l,317-B-25: The Government may for reasons to be recorded in writing relax all or any of the provisions of the Rules in this Division in the case of any officer or residence or class of officers or type ofresidences."

¶140It is undisputed before us that despite the propounded rehabilitation schemes stated before the Supreme Court establishment of preferential quotas in allotments placed before the Central Administrative Tribunal, the respondents have not been able to rehabilitate or resettle any of the petitioners.

¶141The respondents have also not denied the availability of the discretion under SR. 317.B 25 of the Allotment Rules, 1963 and its favourable exercise, in favour of some Kashmiri IDPs. Yet, the respondents have failed to exercise the same discretion in favour of the present petitioners. No explanation for the same is even attempted.

¶142On the issue of exercise of discretion, in the judgment reported at AIR 1980 SC 1622, Municipal Council Eatlam Vs. Vardiclian & Ois,, the court was concerned with the public power Magistrate under Section Code of Criminal Procedure. The court observed that the 'public power of the magistrate under Code' is 'a public duty to the members of the public who are victims of nuisance and so he shall exercise it when the jurisdictional facts are present as here'. So far as exercise of discretion is concerned, it was observed as follows "9. So the guns of Section go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the W.P.(Q No.15239/2004 members of tlie public who are victims of the nuisance, and so he shah exercise it when the jurisdictional facts are present as here. "Allpower is a trust-that we are accomitable •'for its exercise-^oX., from the people, and for the people, all springs, and aU must exist." brinsTs' home circumstances for its beaimi xxxx

¶143Given the estabhshed violation of the fundamental rights of petitioners resulting in their displacement; destruction of their property coupled with prevalent conditions in •their home state; and lack of any alternate to them, the exercise of discretion under the SR-317 B-25 of the allotment of Allotment of Government Residences (General Pool in Delhi) Rules, 1963 in favour of the petitioners would thus be the bounden duty ,of the respondents. The mandate Supreme Court in Municipal Council Ratlam vs. Vardiclian (supra) would bind even the court.

¶144The pronouncement of the Supreme Court reported at

(1997) 1 see 444 entitled Sliiv Sagar Tiwari Vs, Union of '>rs,, has been placed before this court by respondents. In this case, the court was concerned with gross misuse , of discretionary power relating to allotment of accommodation to government employees. As against permissiblfe discretionary quota of 10 per cent,- such allotments f had shot up to 70 per cent.- On top of these, 8,768 houses were allotted on "Special Compassionate Grounds" in exercise of discretion under the authority of a letter dated 18"' July, 1996 from Cabinet Secretary. The Government of India had submitted that it had exercised discretion vested in it under the W.P.(C)No.l5239/2004 \^1 aforeiioticed SR. The court had concluded that the conduct of .the respondents did not disclose application of mind and discretion was not exercised fairly. In para 56 of the judgment, it was observed as foliows:- "56. The decision of,the present Central Government on this aspect as finding place in the letter of the Cabinet Secretary dated 18-7-1996 bearing DO No. 1/44/1/96-CAV is that "where it is considered absolutely , necessary" small' number of out-of-turn allotments would be made for which puriDose also Ministries/Departments would formulate clear rules and guidelines. During course of hearing, on being desired to know as to why out-of-turn allotment is at all required, submission advanced on behalf Union of India was that there are a few officers, who by virtue of duties discharged, have to be accommodated in government quarters to facilitate smooth functioning of the Government.xxx"

¶145In view of the gross abuse of the discretion vested in the respondents, in para 57 at page 463 of the report, it was held that a case to permit miniinal out of turn allotments was made out which has to be regulated and transparency has to be maintained in such allotments. The court considered private citizens who could be allotted out of the discretionary quota which included accredited journalists and news cameraman, political parties, artistes, social worker etc other organizations as well. In SJilv Saffar Tiwari vs. UOI (supra)^ it was held that discretion conferred has to be exercised to advance purpose to subserve which the power exists and that even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no discretion in the matter or unfettered discretion. The Supreme Court held that exercise of #• such, discretioii was an exception and deprecated the above action Government making same into a norm. Notewortliy, is the Government's stand in tliis case that vesting of some discretion in the matter of allotment of guarters was essential. In this background, the contention of the respondents that exercise of discretion was prohibited by the Supreme Court in this case is totally misconceived.

¶146On the other hand, in the instant cases, the petitioners have assailed arbitrariness in exercise discretion admittedly conferred on the respondents and the failure to permit continuation of occupation of allotted accommodation in exceptionable circumstances conditions in which they were placed. The pronouncement of the Supreme Court, in fact, assists the petitioners as the court recognized existence of and permissible exercise of. discretion while deprecating its abuse.

¶147The standards on which an authority would exercise discretion were settled by the Supreme Court in the judgment reported at (1979) 3 SCC 489 entitled Rmiimm Dayaraiii as follows "10. XXX It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or an^/- of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence. of rule of law its bare minimal requirement. And to the application of this principle it makes not difference whether the exercise of the power involves affection of some right or denial of some privilege." • '/O XXX

¶12.• It must therefore, be taken to be the law that where the Govermnent is dealing with the public, whether by way of giying jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, Government cannot act arbitrarily at its . sweet will and, like a jprivate individual, deal with any person it pleases, but its action must be.in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of laraess including award of jobs, contracts, guotas, licences etc.. must be confined structured bv rational, relevant and non-discriminatorv standard or norm and if the Government departs from such standard or norm in anv particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable of discriminatory." (emphasis supplied)

¶148In para' 85,of the pronouncement reported at AIM 1974 SC 555 entitled E.P. Royappa vs. State of Tamlhiadu & Aan the Supreme Court laid down the following binding principles "85 In fact equality and arbitrariness are sworn enemies; 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 implicit in it that it is unequal both according to political logic Constitutional law and is therefore violative of Article 14, •and if it affects any matter relating to pubhc employment, it is also violative of Article 16. Articles and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that . State action must be based on eguivalent relevant principles applicable alike to-all similarlv situate and it must not be guided bv anv extraneous or irrelevant considerations because that would be denial of egualitv. Where operative reason for State-action, as distinguished from motive inducing from antechamber of the mind, is not legitimate and relevant . but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit bv Articles 14 and .16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both ai-e inhibited bv Articles 14 and 16." (emphasis supplied) . Therefore, •even if it were to be held as urged by the respondents that this court could be' held to be powerless to . direct exercise of discretion in a particular manner, in view of the-clear principles laid down in these judicial precedents, there is no prohibition upon this court from examining as to whether the respondents have failed to exercise discretion on relevant criterion. There is also no prohibition on this court, to examine whether the respondents have acted arbitrarily or discriminated against the petitioners. • The impugned action respondents against petitioners and the orders assailed herein have to be tested on the above principles.

¶149A similar argument of the respondent that the allottees were prohibited from permitting retention of accommodation beyond the permissible period after retirement was rejected by the Central Administrative Tribunal in the aforenoticed decision rendered on 30^'' December, 2002 in 0,A. No.2378/2002 Sliri Tej Kislmii Vs. Union of India. & 'Ors. The Tribunal had examined the petitioner's challenge to the respondent's action on the plea of discrimination premised' on the conduct respondents in exercising discretion in favour of some similarly situated migrants and not in favour petitioners observed as follows "31. Reswiidents have not disputed that Kashmir mierrants who' were identically and effually retain the accommodation till the normalcy comes ensured further the safety of their uersons jproi^erty and. reconstruction of their houses. For these three Kashmir migrants, who are placed in similar situation -and with same conditions^ a Page 98 of.157' /O different criteria was adosjted on the around merits in their case, and the Brincivle not to mvmi a arejieral amJication. Applicant who, is also a Kashmir migrant havina no place to live in Delhi a large . . family to support. Is on a similar footing with those who were allowed, to retain the accommodation. In order to satisfy the reguireniehts of law, the respondents have to establish that there has been an intelligible differentia which has a reasonable nexus with object sought to be achieved. No grounds whatsoever have forthcome which can be treated as reasonable, or relevant for to mete out the aforesaid reguirements of law and to pass dual test which will render the decision in consonance with the Article 14 of the .Constitution of India. In absence of anv reasons and the fact that the applicant is egual in all respects should not have been meted out a differential treatment. • This in my considered view, is unsustainable being violative of Article 14 of the Constitution of India."

¶150The tribunal rejected the arguments of the respondents •5 premised on the pronouncement in SMv Saffar Tiwari (supra) as well as scarcity of resources holding as follows

¶32Moreover, the contention that the directions issued in SMv Sagar Tiwari's case supra and the fact that the Government accommodations are few and the persons claiming the same are more and the rules do not permit retention bevond specified period, is no justification for rejecting the case of the applicant as in I.L. Koul's case, even in an interim order passed, Apex Court 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 retelition of accommodation beyond permissible .' period. Conscious of this, the Apex Court in the light of fact conditions as well as circumstances of Kashmir migrants, who have their own houses destroyed in Kashmir and those retired inclined to go back directed ; the Government to ensure their protection and as well as of their property so that they may be put back to their respective houses owned by them in Kashmir on

28.1.1998 i.e. much after the decision of S,S. Tiwari's case supra as well as the instructions through OM in

17.11.1997, the matter has been pending sine die and to be activated only after the State of Jammu and Kashmir ensures return petitioners to 'their respective ' Homes with safety of their persons and property. The aforesaid petition is still pending before the Apex Court.

¶33I also find that the Government bv the .letter dated

2.7.2002 in order to hold the retirees or retiral officials of Kashmir migrants working in Delhi, who could It not get .back to J&K due to prevailing situation, a. decision has been taken to allot about 100 MIG/LIG Flats and for which PDA has been requested to formulate Housing Scheme for which a draft has been sent to the Ministry for approval. The aforesaid decision, also incorporated that these, houses are being allotted to Kashmir migrants retiring or retired so that the .general pool accommodation got vacated from them. This on a literal consideration connotes that the Kashmir migrants who are in retention of general tdooI accommodation on retirement, are to be evicted only after the-PDA formulate a Housing Scheme to allot MIG/LIG flats to them.

¶34Tri my considered view, the review undertaken by respondents in compliance of earlier directions of this Court has not taken note of letter dated

2.7.2002 as well as the directions in Ko.ul's case supra. If a post-facto approval can be accorded by CCA and approval by the Ministiy for Urban Pevelopment denying the same to the applicant who is similarly situated and is egual in all respects, smacks of arbitrariness and hostile discrimination which, as per various pronouncements of the Apex Court, cannot be countenanced and would be an antithesis to rule of laws doctrine of equality.

¶35In the result and for the forgoing reasons, OA is partly allowed. Impugned order dated

13.8.2002 is quashed and set aside. Respondents are directed to allow applicant to retain Government accommodation pending decision in SLP (Civil) No.7369/97. No costs." (underlining supplied) This decision of the Central Administrative Tribunal has attained finality and also stands implemented. 151'. Before this court respondents have hot even attempted to show how present petitioners can be . distinguished from either Sliri Tej Kislmii (supra) or from .the instances noticed in para 31 of the judgment of the Tribunal. On the contrary, as set out above, in answer to grounds. (A) aiid

(B) of writ petition noticed in para above, respondents have stated that these contentions of the petitioner are a "matter of record". =ii'" \\>

¶152There is no dispute also to the fact that the orders in JX.KquI KICHandoo, MJCKoul, TeJ Kisbmi (supra) have attained finality and these persons continue to occupy the . allotted accommodation despite superannuation.

¶153The respondents are unable to point a single distinction, let alone a relevant, one, between the present petitioners and. those in the decided cases. The petitioners are identically situated, yet have been denied equal treatment. Not a whit of e^^planatidn for not treating these petitioners as those in the cited precedents is suggested by the respondents. Even the impugned orders unfortunately do not attempt to deal with this aspect of the matter.

¶154As noticed above, the respondents contended before the Supreme Court in' SMv Sagar Tiwari (supra) that they have the discretion to draw exceptions in the matter of allotments of public premises and have relied on instances and categories when this discretion was exercised in favour of persons who were even not in public service and were never even employed by. the Government. . 155! In ground L of WP(C ) no.15329/2004, Shri P.K.Koul,the petitioner has stated that the respondents have allotted Government accommodation not only serving Government ' employees, but to various other categories of employees who have nothing to do with Government service. It has been stated that "employees worldng in the office of the political parties, journalists, freedom fighters, artists etc." are also allotted general pool accommodation. This averment is not contested by.the respondents who have only submitted that the \T1 allotment of the quarter is made as per the rules and pohcy laid down by the Government.

¶156It is trite that residuary rules are interpreted and worked to empower authorities permitting exceptions from applicability of the rule to remove hardships (Ref ; 1993 Supp,3 SCC 515 (para 33) Syed KIiaJM Rizvi vs. UOl & Ors; (1996) 8'SCC 762 SBI & Ors, vs, KasMimtb Klier & Ors.; (1988) 4 SCC 179 Asliok Kr. Uppal and Ors. vs. Staite ofJ&K).

¶157The orders in Tej Kislmn (supra) make a detailed reference to the voluntary exercise of discretion in favour of three migrants by the respondents which was the entire basis of the finding of arbitrariness by the Tribunal in the action taken against Tej Kishan co-petitioners. These very findings squarely apply to the cases of the present petitioners.

¶158No explanation is rendered or reason given by the respondents for the rejection of identical requests of some of petitioners or for not favourably considering said requests of the petitioners. •The failure to even consider these requests despite the specific directions in P.K. Koul's previous writ petition reflect highhandedness, unreasonableness arbitrariness on the part of the respondents. The respondents have, granted approval to similarly situated persons. Denial thereof to the equally placed petii;ipners certainly tantamounts to hostile discrimination against them which is impermissible .and as observed above 'an antithesis to the equality clause'. The action of the respondents in not favourably considering petitioners' representations; in cancelling the allotments "IT'~ petitioners and proceeding against them under the Piibhc Premises Act, 1971 as well as the impugned orders are; therefore, not sustainable also being in violation of Articles 14 and 16 of the Constitution. Clmaae in Policy

¶159There is yet another important side to the claim asserted by the petitioners which requires consideration. The declared policy of the state with regard to the IDPs from Kashmir is concerned with their rehabilitation. Forcible eviction from their current residences without an alternative is not even remotely suggested in these policies. The same is evident from affidavit placed before the Supreme Court m JX.Koiil vs. State ofJmnmu & Kashmir (supra) and the letter dated 2'"^ July, 2002 placed before the Central Administrative Tribunal in Tej Kislieii Vs, Union of India (supra). The decision taken ,to cancel the petitioners' allotments and to initiate proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 without making available of alternative shelter clearly suggests a drastic change in the government policy so far as these IDPs are concerned.

¶160In a recent judgment of the Supreme Court reported at MANU/SC/0476/2010 Sindliu Education Society & Aur. Vs. The Chief Secretary, Govt. of NCT of Delhi & Ors., Supreme Court observed that framing a policy is the domain of the Government. The framework of the policy and tile working of such Government Policy has essentially to be done within the framework Constitution & laws. As when Government changes its policy decision, it is expected to give W.p.(C) No.15239/2004 11 r""'"-' \\^ valid reasons thereof and act in larger interest of the entire community rather^than a section. In para 66 of the judgment, the Supreme Court held that: " It is a settled canon of administrative jurisprudence that state action, must be supported by some, valid reasons should be upon due application of mind. In the affidavits filed on behalf of the state, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action." The' position in the cases in hand is no different. The state does not again even suggest a reasonable explanation or valid reason for the change from rehabilitative policy to the decision to evict the petitioners and thereby threatening them with imminent homelessness

¶161The respondents would have the right to change its policy upon change in circumstances. (Ref: ?, vs. Ors.). No such change is pointed out in the present cases. The decision to treat petitioners as unauthorized occupants without their resettlement is clearly not premised a change of policy upon application of mind and therefore not sustainable. Resvonsibilitv of the Central Government

¶162It. has been suggested by Mr. Jatan Singh, learned standing counsel for Union of India that Central Government has no responsibility vis-a-viz the petitioners in the given facts and that only the State of Jammu and Kashmir is liable for the infraction of the rights of the petitioners. W.P.iC) No.15239/2004

¶163The submission on behalf of the petitioners on the other hand is that the duty and responsibility of the state authorities vis-a-vis these, groups of persons which stands recognized and admitted by the both the state and Central Government itself. As such, the rights of the petitioners cannot be ignored, imperilled or violated by any of the respondents.

¶164It is urged that the respondents have heartily engaged • with and manifested extreme concern for refugees from other countries, but have liandled inadequately, and even failed to address the difficulties of internally displaced persons.

¶165Reference is also made to the policies of regularization of unauthorized constructions and encroachments on public lands are pointed out. Several schemes policies of respondents with regard to the disadvantaged masses so far as rehabilitation and resettlement is concerned. The attention of this court is drawn also to the. several judgments concerned with the right of shelter of pavement and jhuggi-jhompri dwellers including Olga TelMs v. Bombay Municipal Corporation & Ors,; Alimedabad Municipal Corporation vs. Nawab Khan Gulab Khan & Ors-.; Jagdish vs. DDA; Sudama Singh .& Ors.vs. Government 'of Delhi & Aiir, which have been referred above. The petitioners have urged at some length that the.- respondents have shown utter insensitivity not only in protecting their rights but even in the pursuit of the matter before this court.

¶166The question which begs an answer is having failed to ensure the life and safety of the petitioners or to protect their property, or to guarantee either of them, what would be the V\I'.P.{C) No.15239/2004 obligation, duty and responsibility of tlie respondents qua the. petitioners.

¶167It is an admitted fact that petitioners were all employed by the Central Government or its agencies; In order to avoid compromising the security issues of these persons/ a more detailed analysis factual matrix is. not being undertaken. However, the present cases set out instances of extreme trauma faced by the petitioners their family members as well as continued threat to their life property. In one of the cases, the petitioner is a destitute lady who was working in the Ministry of Information & Broadcasting of the Government of India used to give live performances conducted programs on behalf of the Central Government in remote villages in the valley as well as on the electronic media making her face known to militants. Her troupe was attacked in 1987 while performing at Khamabal in District Anantnag and they had to flee for their life. In this background, she was transferred to Delhi, and was allotted the premises by the respondents. The petitioner points out that in mid-1990, Songs Drama Division Office in -Srinagar, Kashmir 'was blown up and the entire staff transferred to Delhi. Not only the, house of her in-laws but her ancestral/parental rental house also stands burnt down and she has no place to return to in Kashmir. Even after she was evacuated from the valley, her brother received threats to her life by way of communications advising the petitioner to desist from participating or performing in programs in support of the Government. This communication has been placed on record. The petitioner was deserted by her W.p.(C) No.15239/2004 husband decades ago and she stands abandoned by the State with none to assist to lier. The writ petition states that she is getting a meager amount of ?4500/- as pension, insufficient even to sustain her, let alone acquiring rights in any property.

¶168Another petitioner who was the author and the voice of a programme on the All India Radio in Srinagar division which became popular across the line of control was so targetted by *1. the militants. A price for his head was even announced. In one of the cases, despite the security cover, an a;ttempt was made on the life of the petitioner whose property and belongings stand looted and gutted in Srinagar and he has no property at all anywhere in the country. There are other petitioners who were working in the intelligence,.agencies in the state who were evacuated on emergency basis after their colleagues were shot dead. Several of the petitioners have lost close friends relatives on account of the attacks by militants. The petitioners were targetted because they were the. face of the Central Government in the Kashmir valley and are unable to return for the same reason.

¶169So far as ensuring the iright to shelter is concerned, Supreme Court has held that the state is deemed to be under an obligation to secure the same to its citizens [Ref : (1996) 2 SCC 549 Cliaimeli Singh & Ors. vs. State of U.P,(suprk), that it is imperative for state to provide permanent housing accommodation to the deprived.

¶170In 1995 (2) SLR 72 P.G. Gupta vs. State of-Gujarat the Supreme Court had further declared that it was the duty of the state to construct houses at reasonable costs and make them W.P.(C) No.15239/2004- ' Page 107 of157 \1^ easily accessible to the poor, and that such principles haye been expressly embodied in our Constitution to ensure socio economic democracy so that eyeryone has a right to life, liberty and security of the person. In this context, in para 11 of the pronouncement, the court expressly laid down the imperative duty of the state to provide permanent housing accommodation to the poor in the housing schemes undertaken by it, or its instrumentality and observed as follows:- "11. • As stated earlier, the right to residence settlement is a fundamental right under Article

1.9(l)(e) and, it is a facet of inseparable meaningful right to life under ' Article

¶21Food, shelter clothing are TniniTTial human rights.• The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As .its part, allotment of houses was adopted, as is enjoined by Arts. 38, 39 and 46, Preamble and 19(l)(e), facilities opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imjjerative ' of State to vrovide wnermanent bousiiiQ accommodation to the poor in the housing schemes undertaken bv it or its instrumentalities within their ©conQinic means so that they could make the. pavment price in easy instalments, have permanent settlement and residence assured under Article 19(lKe) and 21 of the Gonstitution. xxxxx" (Underlining ppphed)

¶171The Supreme Court has repeatedly reiterated the well settled position that the state has the constitutional duty to provide adequate facilities and opportunities, to all including the disadvantaged and the displaced, by distributing its wealth and resources for the settlement of life and erection of shelter over their heads. The court has emphasized the constitutional right of every citizen to migrate and settle in any part of India for . W.P.(C) No.1523.9/2004 better employmerLt.opportunity and it would be the duty of-the state to provide right to shelter to the disadvantaged in society. (Ref : Alimedabad Mumcipal Corporation Vs. Nawab Kliaii Guiab KImii & Ors. (supra).

¶172The forcible removal of pavenient and slum dwellers by agencies of state without their resettlement or rehabilitation has been repeatedly deprecated by the courts in the plethora of judgments on the subject. In case they have to be evicted from the place they are occupying, state authorities are bound to formulate schemes and policies. The respondents have gone on record with regard to such projects as are in vogue for .their relocation, resettlement and rehabilitation. (Ref:

(1985) see Olga Tellis v. Bombay 'Municipal Corporation & Ors.;

(1997) SCC Alimedabad Municipal Corporation Vs. Nawab Khan Gulab Kliaa & OrSy' MANU/DE/9327/2006 Jagdish vg. DDA; decision of this court dated Februaiy, 2010 W.P.(C) No. ^i$904/2(j09 Sudaina Singh & Ors.) • Placing reliance on the obligations under the international instruments, the courts have repeatedly 'Stated that adequate and reasonable facilities for resettlement and effective steps taken for rehabilitation have to be made available before forcible eviction.

¶173• An issue involving chalmias who were tribals from erstwhile East Pakistan (now Bangladesh) went to the Supreme Co'urt in the case' reported at {1996) 1 SCC 742 National Human Rights Commission vs. •State of Arunaclial Pradesh Anr. In this case, a public interest litigation was filed by National Human Rights Commission seeking . Page 109of 157 -ir enforcement of riglits under Article of tlie Indian Constitution, of about 65,000 Chakina/Hajong tribals. It was alleged that these Chakmas had settled primarily in the State of , Arunachal Pradesh and were being persecuted by sections of the citizens of the state i.e. the All Arunachal Pradesh Students Union referred to as "AAPSU" hereafter. It was additionally complained that the applications of the Chakmas under Citizenship Act and Rules thereunder were not being forwarded by the State Government for consideration to the Central Governrrfent in accordance with law. In deciding the matter, the Supreme Court placed citizens as well as non-citizens on a common platform so far as the rights under Article of Constitution are concerned. . , , So far as the constitutional and the statutory obligations of the states to protect the rights of those who reside within the territory of that state are concerned, court observed as follows. "20.,We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human-being and certain other rights on citizens. Eveiy person, is entitled to equality before law equal protection laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the state, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one crroup of person-to another group of persons: it is dutv bound to protect fSic) crroup from such assaults and if it fails to do so, it will fail to form its Constitutional as well as statutorv obligations. Those giving such (Sic) would be liable to be dealt with in. accordance with law. The . Sta:te Government must act impartiallv and carrv out its W:P.(C) No.15239/2004 legal oblicratioiis to safecruard tlie life, health and well-beincr of Chakrnas residing in the State without being inhibited bv local politics. Besides, by refusing to forward their applications, Chakrnas are denied rights. Constitutional and statutory, to be considered for being registered as citizens of India." The court considered the factual matrix and prevalent circumstances in detail and thereafter issued, inter alia, a writ of mandamus directing State of Arunachal Pradesh, to ensure that the life and personal liberty of each ,and every Chakma residing within the State shall be protected and any attempt to forcibly evict or drive them out of the State by organised groups, such as the AAPSU, shall be repelled, if necessary by requisitioning the service of para-military or pohce force. The Union of India was directed to provide such additional force as is necessary to protect the lives and liberty of Chakrnas on the request of the ,first respondent. The Supreme Court further directed that the Chakmas shall not be evicted from their homes except in accordance with law and shall not be denied domestic life and comfort therein; the State Government was directed to deal with the quit notices ultimatums issued by the AAPSU and any other group which tantamounted to threats to the life and liberty of each and every Chakma in accordance with law. The Supreme Court has thus recognized responsibility Central Government to provide forces to protect the right to life of the threatened persons. ' •

¶174Unlike Chakmas, petitioners are IDPs who complain of violation of the same rights and seek redressal thereof. However, the extreme situation of hardship and W.p.(C) No.15239/2004 . Page IH of 157 difficulties being, faced by the petitioners and other persons similarly placed is no, different. The State Government has been unable to protect or secure the life and property petitioners. The Central Government has not been able to adequately address the several issues which have been raised. Many of the petitioners had been physically evacuated by the Central Government in extreme situations. All the petitioners were employees of Government in Delhi have superannuated in Delhi. The attempt being made at present is also by the Central Government at Delhi is to forcibly, evict the petitioners by taldng recourse to statutory provisions.

175.' It is the constitutional duty of the state to protect human rights and the fundamental rights of all persons. The distinction between such rights legal rights which may require adjudication in appropriate proceedings has also been emphasised on several occasions. In (1982) 3 see 235 People's Union for .Democratic Rights & Ors. 1^. Union of India & Ors.,Xh.e court observed that denial of statutory, rights of the labour force, which was a vulnerable section of the community^ tantamounted to breach of their constitutional rights was therefore enforceable .against the government. It was held that it was the duty of the Union of India, the Delhi Administration and the DDA to ensure that the constitutional obligation towards -labour are discharged by the contractors to whom they had entrusted construction work. It was held that the Union of India, Delhi Administration and DDA cannot fold their hands in despair and become silent spectators of the breach of constitutional prohibitions being Page ]12 of 157 ,0^ : committed, by their own contractors. In this context, the court held as follows "21.. Before leaving this subject we may point 'out with all the emphasis at our command that-whenever anv fundamental, right, which is enforceable' against private iiidividuals such as, for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, • it is the constitutional obligation of the State to take the necessary steps for purpose of interdicting such violation and ensuring observance of the fundamental right bv the private individual who is transgressing same. Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, but that cannot absolve State from its constitutional obligation to see that there is no violation of the, fundamental right of such person, particularly. when he belongs to weaker Section humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Union of India, Delhi Administration and the Delhi Development Authority must therefore be held to be under an obligation to ensure observance of these various labour laws by the contractors and if the provisions of any of these labour laws are violated by the contractors, petitioners indicating cause of the workmen are entitled to enforce this obligation against the Union of India, Delhi Administration Delhi Development Authority by filing present writ petition. The preliminary objections urged on behalf of respondents must accordingly be rejected." The failure of the state to ensure statutory rights was held to provide the essential basis for maintaining the writ petition under Article 32 for enforcing fundamental rights against the State and its agencies.

¶176It is noteworthy that a writ petition was filed in this court in connection with compensation payable to residents of Kashmir whose property had been destroyed in the disturbances in Kashmir. The judgment of this court reported at 'AIR 2005 110 B.L. Wali & Ors. Union of India. & Ors. has made observations on tliis very unacceptable stand Government of Iildia in its affidavit which is under consideration. These observations before the Court read as under "20. Respondent No.l, Union of India, has also filed an affidavit under the signatures of Mr. K.M. Kuti, Under Secretary in said Ministry dealing with Department of Jammu & Kashmir affairs. Respondent No.l/UOI by way of the said affidavit effectively washes its hands off the matter. It is stated that relief rehabilitation 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 made in para 2 of the • petition that UOI is invested with responsibility to rehabilitate and provide relief to the citizens who suffer as a result of failure of . state to protect their' life property is misconceived, incorrect is denied. The answering respondent respectfullv submits that Law Order as well as Relief Rehabilitation are State Subjects. Ministrv of • Home Affairs has the responsibility of providing Relief and Rehabilitation to refugees from West . Paldstan (now. Pakistan). East Pakistan (now Bangladesh). Sri Lanka. Tibet to repatriated Indian Nationals. Therefore, present writ petition qua answering respondent is not maintainable."

¶21The Government of India, thus, considered its • responsibility for providing relief, and rehabilitation to refugees, who are not citizens of this country, but not to citizens of the country who are refugees in their own country. The apathy is writ large on its face. 22, There is a vast para para phernelia of inilitarv and para military personnel in the State, of lammu & Kashmir of the Central Government. The boundaries of the country-are to be protected. The condition in the State was so serious that it has been taken as a priority issue. The dislocation of persons from the Valley is a well-known undisputed fact. How can the Govenn-nent of India wash its hands whole matter absolve itself of the responsibility for providing a safe living to the citizens of the country? '

¶23Article 21 of the Constitution of India provides for Fundamental Right of Protection of Life Personal Liberty. Life cannot be bare" existence. Persons who are displaced and suffered injury'to life and .property as a result of terrorism' cannot be left without remedy. It is the duty and responsibility, of the State to protect its citizens. Citizens like petitioners are yictims of environment, which is not their own creation.' The State owes a responsibility to create an environment for safe and tlianified existence of the citizens." (Empliasis supplied) This court rejected the stand of the Government of India that the responsibility towards the payment of the compensation rests with the State Government alone holding as follows "31 .The Government of India cannot also absolve itself of the responsibility and is hable to ensure that the State Government remits the amount. • A large aniount of funds flow to the State of Jammu & Kashmir.from the Central Government keeping into consideration the disturbed conditions and, thus, the Central Government cannot say that it has no role to play. The State of Jammu & Kashmir is an integral part •of our country and the writ Central Government runs. In the cases of victims of Charari Sharief incident, funds have been disbursed out of the Prime Minister Relief Fund to make a package of Rs.2 lakhs of ex-gratia compensation apart from other benefits."

¶177In this judgment, the court held that what holds true for loss, of life and limb, would hold true for loss of property occasioned by failure of the State to protfect the same.- It is noteworthy that in the present writ petitions, the petitioners have not been deprived of their property homes in accordance with law as, for instance, in the case of acquisition proceedings. The deprivation is a direct result of the failure to control the violence against the petitioners. The principles laid down in the, above judgment would apply to, the Kashmiri migrants on every score. More important is the clear finding by the court of the responsibility of the Central Government for the rehabilitation and rehef to the IDPs from -Kashmir. i. •... • im

¶178It is unfortunate that despite this adjudication, the stand which was rejected has again been taken in these proceedings. This position on behalf, of the Central Government in fact ignores the commitments made in legal proceedings noticed above.

¶179It is noteworthy that the displacement of the petitioners is also not intra-state. The petitioners have been compelled to leave the boundaries of their state and are residing in Delhi.

¶180The Central Government has • acknowledged its • responsibility in the matter inasmuch it has intervened, in the matter. Several of the present petitioners stand evacuated by it and the allotments of the quarters in the instant case stand made it. Central resources are being utilized for development projects and security purposes in the state and admittedly the , Central Government has accepted and assumed responsibility towards rehabilitation and resettlement of the persons displaced as well in the grants and reservation made by it.

181.' It was observed in •(1978) 1 SCR 1 State of Raja.stlmii & Ors. vs, £/0/by Chief Justice Beg that "In our country national planning involves disbursements of vast amounts of money collected as taxes from citizens residing in all the States and placed at the chsposal of , the Central Government for the benefits States without even the "conditional grants" mentioned above. , Hence, the manner in Miich State Government function and deal with sums placed at their disposal by the Union Government, or how they carry on general administration may also be matters of considerable concern to the Union Government."

¶182The expansion interpretation by courts has affirmatively established a positive right to housing and shelter for every person as part of the fundamental right. Human Page 116of 157 \ rights and fundamental rights are inahenable; their violations are indefeasible. The state is under a. constitutional obligation and duty to protect these rights. When violated, a citizen is entitled to their enforcement. ' The constitutional mandate upon it, is coupled with the statutory duty and pubhc law obhgations to ensure the protection of the fundamental and basic human rights to all, in addition;to its obligation under the several international instruments noticed above. This essentially remains in the exclusive domain of state functions. Failure to protect the citizens from eminent loss of life and property as well as maintenance of public order, implicates 'the state for culpable inaction.

¶183Mr. Jatan Singh, learned standing counsel for the Union ' of India has urged that these petitioners are not public servants can claim no right to continue in the allotted public premises. It has been vehemently urged that on account of their superannuation, they ceased to be Government servants are disentitled to retain Government accommodation. Learned Standing Counsel has urged at some length that the Government of India has formulated a rehabilitation package which necessitates that all these petitioners must return to their homes in Kashmir. It is contended that by their failure to vacate, the rights, of the several Government employees who are waiting to be allotted Government accommodation are adversely • effected. Unfortunately the respondents are unable to submit that the petitioners would be safe upon return or how the respondents propose to ensure protection of life and liberty of W.P.(c\ No.15239/2004 Page 117of 157 the petitioners or ensure restoration of their property in the Kashmir valley. .

¶184Before the Supreme Court of India, the respondents have accepted responsibility and obligation to the IDPs from Kashmir and claimed to have advanced huge grants to the State of Jammu Kashmir also set out a detailed scheme in the affidavit filed before the Supreme Court. In the instant case given the nature and extent violations, the Union of India cannot abdicate responsibility in the matter, or avoid its constitutional obligation of at least ensuring reasonable shelter or a roof to these petitioners.

¶185Placing reliance on the judgment reported at (2005) see 138 Master Marine Services Pvt. Ltd. vs. Metcailfe HodgMnson Pvt. Ltd. & Anr, it has been further argued by Mr. Jatan' Singh that this court is bound to exercise judicial restraint and cannot be unmindful of the administrative burden and increase in unbudgeted expenditure on account of quashing decisions. It is urged that in this background, while exercising power of judicial review of an administrative decision, the court •cannot substitute its own decision without necessary expertise and compel the respondents to exercise discretion to permit the petitioner to continue to occupy the aforenoticed accommodation.

¶186This submission fails to consider the nature of the rights which are involved in the case in hand. Metcalfe Hodgkinson Pvt. Ltd, (supra) related to a challenge to award of a tender Page ]}8 of 157 )> - and contract of work of professional services to tlie appellant and was not concerned with a plea of violation of basic human rights and constitutional guarantees as are involved in the instant case. The consideration in Metcalfe Hodgfkmsoii Ltd. (supra) has no application to the present case.

¶187In (2003) 6 SCC 1. Kapila Hingoraiii vs. State Bihar & Ors. the State Government had, however, pleaded financial stringency to shift its liability to the Union of India or to the State of Jharkhand.' In para 67 .of the judgment dated 9"' of May, 2003 Supreme Court had held that the liability state of Bihar , cannot be shifted to the Union of India only because it is the repository of funds raised by it through excise and other central levies and impost,, and consequently it would not be indirectly or vicariously liable for the failings on the part of the State Public Sector Undertakings. It was held that either precedentially or jurisprudentially, the Union of India cannot be held liable and no such direction as was being sought by the state government could be issued. .The Supreme Court, however, clearly declared position that financial stringency may not be a ground for not. issuing requisite directions when a question of violation of fundaniental right arises. In. this-regard, the court noticed the I emphasis given by it on this aspect including the judgments reported at [1987]1SCR641 Rural Litigation Entitlement ICendra and-Ors. v. State of Uttar Pradesh and Ors. ; 19H0CriLJ1075 Municipal Council^ Rat.!am vs. Vardiclian & Ork; [1996]3SCRm B.L. .Wadliera k of India ;

(1995)4SCC507-State of H.P, v. •W.P.(C) No.15239/2004 Recognised &'Aided Schools Manaffiiiff Committees Ors,; AIR ,1996 SC 2426 Pasclilm Baiiga Kliet Mazdoor Saimiti &' Ors. vs. State of West Bengal & AiirJ In ^para 65 of

(2003) SCC entitled Kapila Hingorani Vs. State of Bihar & ors,.th.Q Court rejected the contention of the State of Bihar also to this effect.

¶188In para 6 at page 589 of (1993) 3 SCC 584 All India Imam Organisation vs. UOI, the Supreme Court held that:- "6....Much was argued on behalf of the Union and the Wakf Boards that their financial -position was, not such that thev can meet the obligations of paying the •Imams as they are being paid in the State of Punjab. It was also urged that the number of mosgues is so large , that it would entail heavy expenditure which the Boards of different States'would not be able to bear. We. do not •find any^ correlation between two. Financial difficulties institution cannot be' above • fundamental ritfbt of a -citizen. If the Boa:rds haye been entrusted with responsibility of supervising administering Wakf then it is their duty to harness resources to pay those persons who perform the most important duty namely of leading community prayer in a mosgue very purpose for which is created."

¶189On the same issue in (1995) 4 SCC 507 State of H.P. vs. H.P. State Recognised & Aided Schools Managing Committees, the Supreme Court observed that:- "16. The constitutional mandate to the State,- as upheld by this Court in Unni Krishnan case - to provide free education to the children up to the age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial • incapacity."

¶190The observations of the Supreme Court at (2005) 2 SCC 262 Kapila Hingorani vs. State of Bihar & Others, while dismissing the review petitioii filed by the Bihar Government seeking a review of the earlier order dated 9'^ May, 2003 are W.P:(C) No.15239/2004 Page 120of 157 I also topical on this objection of the respondents and heed to be considered. The State of Bihar had submitted that the state had no liability to pay the salaries of the employees of the statutory corporations/companies incorporated under Indian Companies Act and that they were not completely under ,the control of the State. Before the Supreme Court, counsel for the State of Bihar had urged that the remedy of the employee was to file appropriate applications before the Company Judge who was seized of the winding up proceedings in relation to such company. • . These submissions' were rejected by court observing that in the order dated 9*^^ May, 2003., the court had considered matter from the human rights ^.spect as well as the fundamental rights of employees in public sector undertaking operating in the state of Bihar^ The court noticed that after the passing of the order dated 9"' May, 2003, several employees died due to. non-payment of their salaries. The court placed reliance, inter alia on para 24 of the directiohs dated 9"' May, 2003 while rejecting review petition filed by' the respondents observed as follows "24. This Court further observed that the State has a constitutional oblicration and acts in a fiduciary capacity vis-a-vis performance of its constitutional duties functions bv public sector undertakings as it has constitutional obligations in relation thereto." • (Underlining supplied) So far as protection of such human rights fundamental rights, remedy for violation thereof, is "Ti-The Government companies/public , sector undertaMngs being 'States' would be co'nstitutionallv liable to respect life and libertv of all persons in terms of Article of Constitution of India. They, therefore, must do so in cases of their 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 may be confined to the shares held by it but having regard to the deep, and pervasive control it exercises over the Goveriiment companies; in the matter of enforcement of human ricrhts and/or rights of the citizen of life and libertv, the State has also an additional dutv to see that the rights of employees of such corporations are not infringed. The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and libertv clause in respect employees is fullv safeguarded. The Government State of Bihar, thus, had a constitutional obligation to protect life liberty of employees of Government owned companies/corporations who are the citizens of India. It had an additional liability having regard to its right of extensive supervision over the affairs of the company." XXX

¶37We make it clear that we have not issued aforementioned directions to the States of Bihar Tharldiand on the premise that thev are bound to pay salaries employees pubhc sector undertakings but on the ground that the employees have a bummi right as also a fundameiitail rmlit under Article which the States are bound'to protect. The directions, which have been issued by this Court on 9^^^ May, 2003 as also which are beingissued herein, are in furtherance of human fundamental rights of the employees concerned aiirl not by way of an enforcement of their legal right to arrears of salaries. The amount of .salary payable to concerned employees or workmen would undoubtedly be adjudicated upon in proper proceedings. However, these directions are issued which are necessary for their survival. Undoubtedly, any amount paid by Justice Uday Sinha Committee pursuant to these directions shall be duly credited for." (Emphasis supplied) Page 122 of J57 concerned, court issued directions to the state government to pay the salaries of employees in the pubhc sector undertaMngs in the following terms "22 IV l'^

¶191The principlereiterated by the Supreme Court was that financial difficulties of the institution or the state cannot be above the fundamentar rights of the citizen. It has also been observed that in a. situation of the nature which was before the court, it was obhged to issue necessary directions to mitigate the extreme hardship of the employees involving of human rights of the citizens of the country at the hands of the state government and companies and corporations owned and controlled by it. . •

¶192Other than bald reference to judgment in Metcailfe, (supra), learned standing counsel has placed no factual assertions in support thereof.' Such submission is clearly untenable in view of the admitted Government position in the affidavit dated 6"^ October, 2009 filed in J,K. Koul (supra) before the Supreme Court, of its responsibility as .well as liability qua the displaced Kashmiris. The same stands admitted in the discretion exercised in favour of the three persons cited in TeJ Kislimi (supra) and the letter dated 2"^ July, 2002 placed before the Central Administrative Tribunal as also in. the policy of reservation/preferential allotment of flats. The respondents, have clearly admitted their responsibility and are bound by their commitments. -

¶193Before this' court, the respondents have not stated that there is any assessment or calibration' in terms of priorities of the various of the several projects which the respondents need undertake or the various areas which Government business addresses'. The respondents explain neither the financial Page 123 of ]57 burden of ensuring slielter to these IDPs nor tlie extent of tlie available resource. Mere announcement of schemes allocatioii of large volume of funds by the Goveriiment as a reaction to court directions upon occurrence of events in the country by themselves are insufficient and may prove to be ineaningless. Displacement as that of the present petitioners clearly reflects the imperative to take a holistic view and for the decision makers to take a 'minimum-needs' based approach where ensuring basic human rights social welfare are concerned.

¶194Experience -and examples abound in this city and the aforenoticed judicial precedents of forcible evictions relating to slums and jhuggi dwellers. Defenceless disadvantaged citizens are forcibly evicted from their shelters which are then destroyed. And then, the long arm of the state, gives a hyper technical interpretation to legal definitions, takes the shield of statutory provisions and implements what is touted as the "r,ule of law" in removal of "encroachments" by the disadvantaged. Others illegal constructions and deviants are "regularised" or "compounded". This very, ethos is illustrated in the present writ petitions.

¶195Instance after instance of schemes in Delhi for regularising not only rank illegal unauthorised constructions but also large scale encroachments on public land are in existence and being implemented. So much so that the Central Government has promulgated ordinances and statutes prohibitting demolitions of huge illegal buildings even interdicting court orders. Interestingly such legislations benefit . W.p.(C) No.15239/2004. such law breakers who do not even need rehabilitation or state support,who are certainlynot disadvantagedor displaced. The Delhi Laws (Special, Provisions) Act 20,0.6 was enacted by the Parliament concerned that action for violation of the provisions of the Master Plan 2001 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 financial impact and loss is displayed.

¶196The judgment reported at 2010 (III)-AD

(BelM) 513 vs. .Govemment of .NCT of Delhi makes a reference to Government policy to regularise 1400 unauthorised colonies. The huge loss to the public exchequer of indiscriminately regularising illegal encroachments on land acquired after payment of large sums as compensation from public funds by government; encroachments those on public land as also violations of building regulations is not even computed, let alone, addressed. (Ref:

(2006) 3 SCC 399 M.C. Melita vs. UOI & Ors.;'AIR , 2005 SC 1 Friends Colony-Development Committee vs. State of Orissa & Ors.)

¶197Yet the respondents urge "financial stringency" so far as the present petitioners are concerned. The essence pohcy of rehabilitation resettlement, : so far ''as petitioners is concerned has not only been given a complete go by but the respondents are completely denying all liability for the same. - ' Page ]25 of157

19.8. Apart from a vague suggestion of insufficiency of funds, the respondents do not substantiate such plea with any material. The respondents have not shown any consideration of the petitioners' needs, let alone any steps take to address their plight. There is nothing which could enable this court to arrive at a conclusion that the respondents had difficulty in working the rights of the petitioners on account of financial incapacity. To say the least, similar submissions were termed as "typically gauche" "lacking insensitivity" by this court in P.K. Handoo vs. Estate Officer (supra) and already staiid rejected in B.L. Wali & Ors. vs. UOI (supra). The impugned action submissions manifests huge barriers which a displaced citizen of the country faces in accessing even basic guaranteed constitutional rights despite admitted responsibility of the state for the breaches and violations of the constitutional protections suffered by them. Appropriate remedy, role of the court and nature ofrelief

¶199It is now necessary to consider the nature of remedy, and relief which would be available to a citizen for violation fundamental right to life as w.ell as^ threat thereto. The Supreme Court has repeatedly judicially awarded compensation in cases of established breach of public duty to protect fundamental rights violations thereof, especially guarantees of personal liberty and life.

¶200In AIR 1983 SC 1086 Rudul Sab vs. State of Bihar, the court was concerned with violation of rights resulting from illegal detention. The observations of the court on the duty of • the court deserve to be considered in extenso and read as follows , "10 Article

¶21which guarantees right to life and liberty will be denuded of its •sim-iificant content if the power of this Court were limited to passing orders of release from illegal detention. One of tlie telling ways in which violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 seciired, is to mulct its violators in the payment of monetary compensation. Administrative sele(sic)sis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to judiciary to adopt. The right to compensation is some palliative for unlawful acts of instrumentalities which act in the name of public interest which present for their , protection the powers of the State as a shield. If civilisation is not to perish in this country, as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, State must repair the damage done by its officers to the petitioner's rights."

¶201So far as the remedy which would be available in cases involving infringement of fundamental rights and the power of courts. Dr. A.S. Anand, J [as his Lordship then was] in his concurring judgment in AIR-1993 .SC 1960 entitled Nilabati Belmra @ Lalita Beliura. Vs. State of Orissa 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 by High Courts, for established infringement indefeasible right guaranteed under Article Constitution is a remedy available in public law is based • on the strict liability for contravention of the guaranteed basic and indefeasible rights citizen. The purpose of public law is not only to civilize public power but also to assure citizen that they live under a legal system which aims to protect. their interests preserve their rights. Therefore, when court moulds relief by granting "compensation" in proceedings under Article or of—the Constitution seeking erforcement or protection of fnnHRTnRnt.a1rmhts. it does so under the public law by way of pfinalisinq the .wrongdoer and fixing the liability for the pubhc wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a ciyil action for damages under the priyate law but'in the broader sense of proyiding relief by an order of making ^monetary amends' under the public law for the wrong'done due to breach of public duty, of not protecting the fundamental rights. of the citi/Rn. The compensation is in the nature of ^exemplary damages' awarded against the wrongdoer for breach of its pubhc law duty is independent of claim compensation under the priyate law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. XXX XXX xxxx

¶37• ThK •Court Hmb Comts, • beiua the protectors of the civil liberties I citizen, have not only the power and mrisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under 'Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon State to repair damage done by its , officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a ciyil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be ayailable to it against wrongdoer in accordance with law - through appropriate proceedings. Of course, rehef in exercise power under Article ^ or would be granted only once it is established that there has been an infringement fundamental rights citizen and no other form of appropriate re dress al by the court in the facts and circumstances of the case; is possible." (Emphasis supplied)

¶202In (1988)' 4. SCC Sheela Barse vs, UOI & Ors., court was concerned with gross yiolations of the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints. While commenting on the nature of proceedings in public interest litigation and the issue of protection and enforcement. of their rights, the court made the following, observations with regard to the duty of the cburt^:- "6 More importantly Court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief and- . this is important -- also supervising implementation thereof."

¶203Where infringement of fundamental rights is estabhshed, the duty of the court does not stop at giving a mere declaration. In 1997 (1) see 416 D.K. Basil vs. State of West Bengal, it was laid down that in such a case, the court must proceed . further and give compensatory relief, not by way of damages as a civil action but by way. of compensation under the public law jurisdiction for the wrong done, due to breach of the public duty by the State of not protecting the fundamental right to life of the citizens. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

¶204Unlike several cases noted hereinabove including cases of Rudul Shah, D.K. Basu, Leelawati Bebura, Slieela Barse (supra) etc. in instant case, the ' state or its instrumentalities itself have not, harmed or punished petitioners. However, the state has totally failed to protect the fundamental right to life of the petitioners and to protect them from violence, harassment pogroms. This is in clear abdication of. the constitutional responsibility State. Responsibility for the violence in the State is not the question r \ \M>^ before this court. The issue before 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 13 of the pronouncement reported at (2003) 4 see 601 State ofMalmrashtra vSc Br, D, Praful B. Desai, tlie Supreme Court stated that one needs to set out tlie 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 1980 SC 1622 Municipal Council Ratlam vs. Vardichan & Ors.; the court observed that:- "15. The nature of the judicial process is not purelv adiudicatorv nor is it functionally that of an umpire only. Affirmative action to make remedy effective is of the essence of the ricrht which otherwise becomes sterile." 207; In para 11 of (1997) 6 SCC 241 VislmJdia & Ors. State of Rajastlmn Ors.^ the Supreme' Court held that the' obligation Supreme Court under Article Constitution for the enforcement of fundamental rights in the absence of legislation must be viewed along with ,the role of judiciary ,envisaged in the Beijing Statement of Principles Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and Pacific at Beijing in 1995 as those representing minimum standards necessary to be observed in order to maintain independence effective functioning .of the judiciary. The objectives of the, judiciary mentioned in the Beijing Statement are: "Objectives of the Judiciary: " W.P.(C) No.15239/2004 , ' ' ' Page 130.of157

¶10Tlie objectives 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 proper ' limits of the judicial function, the " • observance aiid the attainment of human ricrhts:

(c) to administer the law impartially among persons and between persons and the State." , . In Clause'10(a) objectives Chapter on 'Objectives^ofthe Judiciary',it has been clearlystipulatedthat the objectives and functions of the judiciary include ensuring that all persons are able to live securelv under the rule of law.

¶208So far as the manner in which rehef is required to be moulded so as to ensure protection of the constitutional rights of the petitioners in this bunch of writ petitions are concerned, learned counsel for petitioner has placed reliance on the pronouncement of this court dated 10'^,September, 2004 in WP(C) No. 172/1997 evititled SmL Kamla Devi Govt. of NCT of Delhi Ors. In this judgment, learned brother B.D. Ahmed, J was dealing with a case relating to a prayer for compensation for the death of one Uday Singh, an electrician who was killed in an explosion on account of terrorist activity in •Delhi. • • The court held that lower courts would'lose their efficacy if they cannot possibly respond to the needs of the society - technicalities there might be many but the justice-oriented approach ought to not be thwarted on basis of such . ' technicality since technicality cannot and ought not.to outweigh the course of justice.

¶209While referring to several pronouncements •of the Apex Court with regard to compensation for custodial death; death of school children on a picnic; death of a passenger in a train in action on the part ,of the railway employees, it was further observed in KbjmM Devi's case (supra),follows . "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 prevent it. The Primarv duty State is to Tnaintain peace and harmony amongst its citizens. If for some, reason, it is unable to put lid on simmering discontent, then it is its duty to protect innocent citizens from harm., If it fails, in this duty, then it mu^t compensate the citizens who have been wronged." Reliance was placed on the pronouncement in SC 1960 NiMbati Behara @ Lalita. Bebura Vs. State Orissa wherein it had been also observed that while directing monetary compensation for established infringement •fundamental rights, the •courts-take into account not only the interest applicant respondent but also interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties 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 law.procedures as also public law principles.

¶210. In AIR 1989 Mad. '205 R. Gandhi & Ors. UOI & Anr, the Madras High court was concerned with the inability of the State to enforce public order putting in jeopardy the life and W.p.(C) No.15239/2004 Page 132 of 157-• \H^ liberty, home and hearth of the victims involved. The petition sought redressal for the trials and tribulations undergone by the minority Sildi community of Coimbatore in Tamil Nadu and a few others in the wake assassination of late Prime Minister Snit. Indira Gandhi on 31st October, 1984. Observing on the violation of the fundamental rights and the duty of the state; Madras High Court placed reliance on observations of the Supreme Court in .the Olga TelMs (supra) case, and held as follows "21. The maintenance of law order is the Diiinarv duty of the State and under our Constitution it is a State subject toTJ.s the State List. No Government worth ' the name can abdicate this function and put the life and liberty, the hearth home citizens in jeopardy. Article ^ 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) and (g) of the Constitution, any citizen of this country is entitled to reside and settle in any part Territory of India and to practice any profession or to carry oh any occupation, trade or business. Article 21 lays down that no person-shall be deprived 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 : AIR1986SC180 , no .person can live without means of living, that is, means of livelihood and the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Under Article 300(A) of the Constitution,, no person shall be deprived of his property 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 right to property guaranteed by Constitution. The members Sikh Community form an integral part of the Indian society; they have every right to settle down in Coimbatore and carry on • their profession. They have the Constitutional right to live and they cannot be deprived of their means of livelihood. Their right to property is inviolable. All these Constitutional-rights Siklis and a few members ' of other communities have been flagrantly infringed by the inaction law enforcing authorities. Fundamental rights are not mere brutum fulmen. They are the, throbbing aspirations and realities of civilised human life, they cannot be rendered desuetude or dead-letter or as observed, by Bhagwati, J. as he then was, 'a paper . parchment, a teasing illusion a promise of unreality', bv the failure of the State to protect those rights. These unfortunate, victims of arson • violence, are, therefore, entitled to seek reasoimMe comuenssiriifjoni from the State of Tamil Nadu, which has failed in its 'dutv to protect their Constitutional and legal rights. It is a matter of regret that the State -of Tamil Nadu, which has • failed to carrv out, its elementarv function of enforcing public order should treat the victims of its own lapses as beggars with bowls for alms. Tt is not charitv that is expected of the nhveniment. but legal recompense for wrongs done to them, for injuries inflicted on them on account of the break-down of the Governmental machinery. The second respondent-State of Tamil Nadu caimot, therefore,' shirk its resuoiisiMMtv 'for these unfortunate haweninQS or. try to escaue from its obliaatioii -as a. social welfare State •to make suitable amends" (underlining supplied)

¶211Examining the claim for compensation on account of death of a spouse in similar riots targeting members of the same community in Delhi in 1984, Anil Dev Singh, J in the judgment reported at 1996 (3) AD (Delhi) 333 ; 1996 (38) DRj 203 BbaJan.Kaur vs.-Delhi Admn. has observed as foUows:- "(10) Article 21 is the Nation's commitment to bring every individual or group of persons within its protective fold. This Nation belongs to members of all the communities. They arc equal members of the Indian society. Equality before law and equal protection of laws is ensured to them. by Article of Constitution to 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 21 of the Constitution. It is the duty of the State to create a climate where the cleavage between 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 will remain a paper guarantee. Time is long overdue for adopting measures that have more than a W.P.(C) No.15239/2004. • VH'? hortatoiy effect in enforcing Article of Constitution. The. State cannot adopt a "do nothing altitude". Like disease prevention, the State must take every precaution, measure and initiative' to •prevent terrorem popuh of the magnitude represented by 1984 . riots and in the event of an outbreak of riots it must act swiftly to curb the same and not allow precious time to slip, by, as any inaction or passivity on its part can . result ill loss of precious life and liberty of individuals amounting to violation and negation of Article 21 of the Constitution. The State has to enforce minimum standards of civilized behavior of its citizens so that the life, libertv. dianitv worth of an individual is protected preserved is not leopardised or endangered. If it is not able to do all that then it cannot escape the liabilitv to pav adequate compensation to the familv of the person killed durincr riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution which mandates that life cannot be taken away except, according to procedure established by law. " It is noteworthy that in para 25, the learned Judge in Bhajan Kaur's case, was of the view that the judicial trend is to award substantial compensation for .illegal extinction or deprivation of life-and liberty.

¶212I had also occasion to consider a claim for compensation for injuries and loss suffered by the petitioner in the 1984 riots in Delhi in the aftermath of the assassination of late Smt. Indira Gandhi in which members of one community were, targetted. In the judgrnent reported at 120 .(2005) DLT 156 Manjit Singh Sawbney vs.. UOI & Ors., placing reliance on the principles laid down in the aforenoticed pronouncements, it had been observed as follows "20. The award of monetaiy relief to the victim for deprivation of fundamental.right is to be guided by the aforestated principle requiring state to make monetary amends under public law for the wrong done due to breach of the pubhc duty of not protecting fundamental rights of the citizens. This computation is not guided by any strict arithmetical formula and it has to be borne in mind that money cannot remove trauma and the battering suffered by a victim."

¶213The observations of the Supreme Court in AIR 1981 SC 487 Ajay Hasia rs, Klmlid Mujib. Sebravardi & Ors. are also •classical and topical on this aspect and shed hght on the issue under consideration as follows "Where constitutional fundamentals vital to maint.eTimnce of human rights are at stake, functional reahsm and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance not form..... It must be remembered that fundamental rights are constitutional guarantees given' to the.people of India, and : are not merely paper hopes or fleeting promises and so long as they find a place in Constitution, they should not be allowed to be emasculated in their application by a narrow constricted judicial interpretation. The Courts should he RTiyiou.s to enlarge scope width of .the Fundamental Rights bv bringing' within their sweep everv authority which is an instrumentalitv or agency of the Government or through the corporate personality of which the Government is acting, so as to subiect the' Government in all its nivriad activities, whether • through natural persons or through corporate entities, to the basic obligations of the Fundamental Rights."

¶214It is a well settled principle of interpretation constitution as well as statutes that the sarne have to be. read keeping 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 see ,1 Kapila Hinfforajii State of Bihar 60 at page 30). The imperative necessity to take recourse to take 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 judgments and reiterated that the first duty of the court is'to do iustice. In para 62, the W.P.(C) No.l5239/2004- ' Supreme Court also declaredthat the right to developmentin the developinq country is itself a.human right.

¶215The duty to ensure constitutionalrights rests not only on the Supreme Court or the High Court in exercise of jurisdictionunderArticle 32 and 226 but would be the mandate of every court and its essentialjudicialfunction. The claims in the present cases have to be adjudicatedon these principles.

¶216In P.K. Koul (supra), a specificorder was passed on.l5"' October, 2003 in W.P.'(C) No. 6.551/2003by this court to decide the petitioner's representation dated 16"^^January, 2003 seeking permission to' continue to retain the quarter. Without meaningfully complying with this order, the respondents have taken recourse to the proceedings under the Public Premises (Eviction of Unauthorised Occ;upants) Act, 1971. Such •a decision of the respondent patently violates the petitioner's basic human rights constitutional guarantees noted hereinabove. Other petitioners have also made similar representations on which orders have not been passed by 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 4'^'" August, 2001. She and family were dependent on late Shri T.N.Raina residing with him in allotted quarter. The respondents have been unable to rehabilitate this legal heir who is also a Kashmiri displaced person and if forcibly evicted from the premises in her possession, she has nowhere to go. It is contended by Phoola Raina that the meager pension she is receiving is her only source of income which is • W.P.(C) No.15239/2004 , Page 137of.157 \S insufficient to even bear the expense -of food for her family members. The writ petitioner has also placed reliance on SR-B-25 of allotment of Allotment of Government -Residences (General Pool in Delhi) Rules, 1963. In view of the above discussion, it is clearly evident that so far as her claim 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.

¶218The petitioners in the present cases have complained of violation of their-right to life in their home state. This situation has come to be despite 1984 riots, which mark an unfortunate watershed in Indian. history, when examined from any aspect.. The threatened breach of primarily of.their right to shelter, a basic human right an integral part guarantee under Article 21 of the Constitutionof India, even at their displaced location at the hands of the respondents has compeUed invocation of this court's extra-ordinary jurisdiction under Article 226 of the Constitution.

¶219The pleadings in the case would show that there is no dispute to the facts pleaded by present petitioners! There cannot be and there is not even, a suggestion that the right to shelter of the petitioners in their home state has been abridged by any procedure estabhshed by law. Such infraction of their rights is purely on account of the inability of the respondents to discharge their constitutiona! obhgation; duty and responsibility of protecting the life and property of the petitioners. The respondents have a positive duty to provide basic necessities to its citizens. It certainly defies commonsense W.p.(C) No.15239/2004 v^- all notions of human dignity to permit the respondents, to exclude such facilities as bare shelter which is essential and necessary to encourage the self respect and dignity of these, displaced persons in a human manner consistent with weU recognized modern standards thereof. . The courts have a constitutional duty and international legal obhgationsto 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 the 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.

¶221The 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 life and personal liberty, the court is not helpless to grant relief and should be prepared to forge new tools and devise new remedres for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty. {ReL: (19.81) 1 SCC 62?: AIR 1981 SC 928 Klmtri & OrSc. Vs. State ofBihar & Ors.).

¶222Ill: '(1991)

¶4SCC 584 : AM 1992 SC 248 'Union Carbide Corporation Vs. Union of India, it was stated by the Chief Justice Ranganath Misra that "we have to 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 and which is likely to arise in future there is no reason why we should hesitate' to evolve such principle of. .W.p:(C)No.15239/2004 Page 139 of157 \S-^ liability.; The^ observationsof Venkataclialiah,J (as his Lordship then was) in this case who had rendered the leading judgment in the Bhopal Gas case with regard to the courts' power to grant relief are the same. These principles have been reiterated in AIR 1993 SC 19(50 SmL Nilabati Behera alias Lalita Beliera Vs. State of

¶223The jurisdiction of the court to mould the rehef so as to do justice to a party complaining of infringement of Chapter III rights is wide and requires to fit the contours of the right which is violated. It is essential, therefore, that while adjudicating on the questions raised, the relief to be granted has to be moulded keeping in mind the unique challenges laid and the claims made in these petitions. •224.' In (1987) 1 SCC 395 M:C. Mehta UOI & Ors., the court expanded on the jurisdiction and obligation of the court to mould a new relief in the following terms "3 It may now be taken as well settled that Article ^ does not merely confer power on this Court to issue a direction, order or writ for enforcement fundamental rights but it also lays a. constitutional obligation on this Court to protect fundamental rights of the people and for that purpose this Court has . all incidental and' ancillarv powers including the power to forge new remedies fashion new strategies ' designed to enforce fundamental rights. It is in realisation of this constitutional obligation that this . Court has in the past innovated new. methods strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom, freedom and liberty, have no meaning." \S>

¶225The, Supreme Court has categorically held in (1996 ) 9,. see .300 J.P. Mavidais & Ors. Navyuvaik Hairijaiii Uttlmpan Multi Unit Industrial Coop. Society Ltd. & Ors, that any contract or action which is opposed to constitutional animation, is void. The court as custodian and protector of fundamental and basic human rights has a sacred duty to deter breaches thereof. - •

¶226It ,is also wrell settled that it is not only the right of the litigants, but also the duty of the court to not only enforce fundamei^stal rights but also award compensation against state for violation of those rights. In other words, 'the power of the court is not only injunctive in ambit, that is preventing infringement of a fundameiital right but it is also remedial in scope provides relief against .the breach fundamental right already committed.' {AIR 1989^ Mad. 205 K Gandhi vs. UOI & Aiir. (supra}

¶221On the aspect of appropriate compensation for established breaches of fundamental rights, reference can also usefully be made to the observations of the Division Bench of this court in the judgment reported at 2001 (1) JCC Delhi 57 Government of NCT of Delhi vs. Sliri Nasiruddin (Father of deceased

¶1Yasin) to the following eifect "21. It is true that perfect comBensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Morris in West v. Shephard

(1964) AC 326. Justice requires. that it 'should be egrnial in value, althoudh not alike in Mnd. Object of providing compensation is to place claimant as far as possible in same position financially, as he was before accident Comiiensation awarded uiireasonaMe. excessive, nor deficient There-can' \ be no exact-uniform rule for measurinfj

¶228Ill the present cases, the, petitioners have complainedof grievousviolenceto theirlives and propertiesand the admitted helplessness of the respondents to protect the same. We are concerned with forced ouster, though not by the State, but which is a direct result of the inability of the state to protect the life and property of a class of its citizens,resulting in their forced displacements. The petitionersare now threatenedwith compulsive,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 forced evictions are a gross violation of human rights. The International Community has long recognised forced eviction as a serious matter and it has been, reported repeatedly that clearance operations should take place only when conservation arrangements and rehabilitation are not feasible, relocation measures stand made.• 229, In (199.0) SCC S.M.D. Kiram Paslm ' Government of A.P., the Supreme Court had observed that a writ petition, would be maintainable 'under Article 226 of the Constitution of India also when a right under Article is threatened as contradistinguished from the right when it is infringed. 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 legal obhgation esdsting towards this individual; or a private right in the technical sense -the legal power bestowed upon an individual to bring about by-legal action enforcement of fulfillment of an W.p.(C) No.15239/2004 ' ' Page 142 of157 ' obligationexistingtoward him, that is, the legal power. • From the above analysis it is clear that in the instant case the appellant's fundamental right to liberty is the reflex of a-lecral obligation of the rest of the society, inrlnrling the State, and it is the appellant's legal power bestowed upon him to bring about by a legal action the enforcement of fulfillment of that obligation - existing towards hini. Denial of the legal action would, therefor*^ amount to denial of his right of enforcement of his right to liberty. A petition for a writ of habeas corpus would not be a substitute for this enforcement. (Emphasis supplied) These principles haye been reiterated by the Apex Court in (2003) 6 SCC 1 Kapila Hingoraiii vs. State ofBihar,

¶230These judicial concepts haye eyolyed from conseryatiye traditional judicial systems concepts. Legal interpretation as well as judicial pronouncements lean towards providing for social needs of society societal developments.. In this background, the objection of the respondents that the petitioners are disentitled to relief is devoid of legal merit.

¶231In view of the harm inflicted by a third party against which the state could offer no protection in the present cases, a positive obligation is also imposed upon the state to compensate the petitioners in reparation of the effects of the liarm^caused by the third party. It remains a fact that the State's inability to secure the life and property of the petitioners compelled them to flee-their homes. The same inability prevents the petitioners' return to their homes. /

¶232So far as compensation is concerned, it is again well settled that the same would not be monetary alone. Principle 18 of the Guiding Principles for IDPs as-set out by the UN mandates that competent authorities shall provide internally • • displacedpersonswith and ensure safe access to essentialfood and potable water, basic shelter and housincr, appropriate clothing, essential medical services sanitation etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate fully and equally in pubhc affairs at all levels and are entitled to-equal accessto public servicesin the part ofthe countrywhere they are resettled. Principle29 mandates'when recoveryofthe property and possessions which the IDPs left behind or were dispossessed of upon their displacement is not possible, they are entitled to, be provided approDriate compensation or another form, of 'just reparation'.

¶233Reference can usefully be made to the observations Constitutional Court of South Africa in (2001)'3 LRC 209 ri Governaient of Republic of South Africa. '& Ors. vs. Gootboom &.Ors. wherein the court observed as follows "93... this case shows desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges 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.security to those unable to support themselves and their dependants. The^ state must also 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 built thatched house or a mansion considered in Shantistar (supra), without security of limb and life as well as the property, no enjoyment 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 W.p.(C) No,15239/2004 . \S7 elements, but from the larger-threats and dangers which have been created by mankind. Even if the respondents weie in a positionto provide shelter in the home state of the petitioners as,envisagedin the affidavitfiled in/.X. Koul (supra), in-order •for such right to be meaningfullyenjoyed, it has to be ensuied that there is peace within the communityand the state; that its law enforcement agencies are' able to ensure that constitutional guarantees and protections of the citizens are fully secured. • '

¶235The respondents are. not in .a position to facilitate the return to their homes for the petitioners. Even if the petitioners were to so return, the respondents are not in a position to state they couldprotect and guarantee their safety and security. The respondents do not even remotely suggest that they could get restitution to the petitioners of their properties which had been left behind in the Kashmir valley.

¶236The.Supreme Court has also prescribed different rehefs in cases involving breaches of constitutional rights.. In.:Municipal Council Ratlam Vs, Vardichan & Ors. (supra), the Supreme • Court was of the view that punitive action in the given facts was the remedy which was effective to ensure the essence right involved.

¶237In National Human Eights Commission State of Arunacbal Pradesh Anr. (supra), the court had directed state to ensure that the life and personal liberty of each and every Chakma residing within Government of Arunachal Pradesh, the state was protected and any attempt to forcibly W:p.(C) No.15239/2004 ' evict or" drive them out was repelled' in view of the violations ' and threat to their lives. • As noticed above, in para 13 of Nllabati Belmra.

(S) Lalita. Bebura Vs. State of Orissa(supra), the court had moulded relief by granting monetary compensation in view of the failure to protect fundamental rights of the persons.' In fact the court held that the refusal to pass orders for compensation would be doing lip service and that the court was under an obligation to grant relief (para 37). . .In 1997 (1) see 416 D.K. Basis vs. State of West Bengal, 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 Hingorani State of BMiar '

¶238Compensation to these petitioners which could be considered appropriate and perfect thus would have to include comprehensive resettlement such as economic rehabilitation 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 court cannot shut its eyes or judicial conscience or remain oblivious to the stark realities. . . ' w.p.(C)No.15239/2004 Page 146of157 / J ^

¶239The issues raised in the present case have arisen before in tlie context of persons facing displacement on account of developmentand infrastructure projects especiallymajor river •valleyprojects; In (2000) 10 SCC 664 / AIR 2000 SC 3751 Marisisda Mstcliao Andolan vs. Union of Iiidia. the Supieme. •Court was concerned with the displacement of tribals as a result of construction of the Sardar Sarovar Dam. In para 62 at page ; 702 of the SCC report the court held that if the displaced persons were in a better positionto lead a decent life enjoying better amenities and facilities and earn their livelihood in the rehabilitated location, their fundamental rights guaranteed under Article 21 of the Constitution would per se not be violated by the construction of the dam.and the resultant displacement. This position was reiterated in (2005) 4 SCC 32 Narm^da Bacliao Andolan vs, UOI <& Ors.

¶240In para 60 (pg 394) of (2004) 9 SCC 362 N.D. Jayal & • Aiir. Vs. . UOI & Ors., Rajendra 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 petitioners should not be similarly treated given violations of their constitutional 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 W.P.(C) No,15239/2004 . Page 147of 157 tlieir constitutional 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 to protect their Constitutional rights. In case rehabilitation is.not possible then the respondents have no option but to ensure meaningful and reasonable resettlement 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 shelter as part of proportional compensation ,to the petitioners for violation of their basic and fundamental rights. Such 'just reparation' would constitute part of "reasonable compensation" would be a step towards suitable rehabilitation of the petitioners. Relief in these petitions has to be so moulded.

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

¶243Mr. Jatan Singh.and Mr. R.V. Sinha, learned counsel for the Union of India 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 alternate arrangeriients with this unavoidable event in mind.

¶244. The further contention is. that; the government ensures adequate financial security to retiring employees, who have the benefit of pension as weir as other retiral benefits which run ' ' into several laklis of rupees including gratuity, provident fund etc. and nothingfurther can be expected ofthe respondents.

¶245Pension, gratuity and other retiral benefits are not uniqueto the petitioners,but are'availableto every personwho retires from the service of the country. What-distinguishes these petitioners is the, fact that they have been placed in a unique position and are unable to return to their homes as a consequence of the inability of the State to dischaige its constitutional obligations. ,

¶246The question stih remains as to whether the pension and the monetary retiral benefits could be "adequate compensation" for the infringement of the petitioners indefeasible rights to life and due discharge of the constitutional obhgation of the State. The answer clearly has to be in the negative.

¶247We are here concerned with the entitlement of shelter to IDPs. -So far as the nature of ±he 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 [1990) see SJiaiitlstar Builders' Vs, NairaLya.ii 'Kbiiimlal Totame & (I2r^,,.the Supreme Court had observed as follows:- "9; Basic needs of nian have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food,, the right to clothing, right to decent environment a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect - physical, mental and intellectual. , The .Constitution aims at ensuing fuller development of , every child. That would be possible onlyif the child is in • . a proper home. It is not necessary that every citizen •must be ensured of UvinCT in a well-built coinfortable house but a reasonable hoiiie TParticularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation." (Emphasis supplied) Undoubtedly, so far as the reasonableness and adequacy of the measures which the respondents are required to take, must meet principles laid down in the aforenoticed pronouncements of the courts, the international conventions, the standards in the guiding principles for IDPs and ensure the rights of the petitioners.

¶248•The above International instruments and Guidelines for IDPs provide'not only for the right to adequate shelter and housing services but also refer 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 possible to ensure complete realisation of the right to adequate housing of the petitioners. It is evident that the. respondents cannot avoid their responsibility and duty to ensure that the aforenoticed basics to the petitioners. These are the principles which had to guide the consideration of the issues which were ^ before the respondents and have been raised in this bunch of writ petitions.

¶249The claim for shelter in these writ petitions is thus pressed as part of the compensation for the violation petitioners rights. The petitioners seek directions to respondents to permit them to occupy the premises in their occupation till such time the respondents are able to discharge their constitutional duty of protecting the lives and property of its citizens and providing them' permanent residences. In simila,rcases, the Supreme Court and this court has permitted the displaced persons to continue to occupy the occupied . quarter. Order to this effect stand passed by the Central Administrative Tribunal as well. The • respondents . have permitted some of IDPs to continuewith their occupationof 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. Rmlits of dependants of deceased allottees.

¶250There is yet another aspect of the matter. The petitioners-before this court include Smt. Phoola Raina, a widow allottee. The respondents do not dispute that she was . a dependant of the allottee and that she is also an IDP. It is also not the respondeiit's case that she is a person of meaiis who is living in Delhi in. circumstances .which are different from those of the others from her home State. There is no material to show that this petitioner has any alternative shelter under schemes and policy of the respondents or has. been adequately compensated.

¶251So far as the claimed rights or the violations urged by Smt. Phoola Raina are concerned, other than a bald plea that she was not the allottee> the respondents are unable to point out any distinction from the other petitioners. The respondents do not state that she can safely return to any residence in the Kashmir valley. It is also,not averred that this petitioner owns any property into which she could shift. It is not even suggested Page J5] of 157 O; that there is any difference in the constitutional rights or scheme between her and the other petitioners. Not a. single circumstance which could disentitle this petitioner to grant of relief against the threatened eviction and violation of her constitutional 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' also without any doubt * . constitutionally impermissible.

¶252As noted above the respondents have admittedly made discretionary allotments in favour of persons who are not Government servants. • It. is not explained as to 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 till alternate shelter was made available would not violate any rule as well. • The same would clearly be in consonance with the constitutional maiidate and the principles which emerge from the several judgments noticed above. It is clearly evident that such a dependant would be permitted to continue to occupy the allotted • accommodation till such tinie that respondents meaningfully resettle 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 meaningful reasonable arrangements. ' Page 152 ofl57 « o

¶253In view of the above discussion, absent any alternative; admitted failure of respondents to protect constitutional rights of the petitioner and the threats which subsist in. case they were compelled to return to their State; given-the arbitrary .and wrongful failure to exercise the discretion under SR-317 B-25 of Allotment of Government Residences (General Pool in Delhi) Rules, 1963 in favour of petitioners; drastic violation of fundamental and basic human rights of the petitioner which results, upon such. implementation of the statutory provisions; keeping view the schemes of rehabilitation and resettlement of Kashmiri migrants of the respondents, and-also the several judicial precedents and administrative orders in respect of similarly placed persons, action respondents in treating petitioners as unauthorised occupants proceeding against them under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. was completely misdirected and unwarranted.

¶254It is evident that learned appellate courts in the appeals also adopted a hyper technical approach ignoring serious violation of constitutional rights which has resulted to the petitioners and the drastic consequences of rendering them homeless which results on implementation of the eviction order. The constitutional rights litigants are not only well established but are without any limitations. The orders do not indicate that the several important questions raised by the petitioners were deemed to deserve an adjudication including the manner in which superior courts had dealt with similarly W.p:(C) No.15239/2004 Page 153 of'l57 . situated displaced persons. The learned courts paid no attention to declared pohcy. of resettlement rehabilitation of Government or the constitutional rights guarantees which all courts are bound to enforce..

¶255The action respondents in denying favourable consideration of the request to continue to occupy the quarters suffers from, the vice of discrimination, and arbitrariness. The , decision to treat the petitioners as unauthorized occupants and proceed against them under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 as well as the impugned orders are in violation constitutional guarantees . basic human rights petitioners, do not show , application of mind to relevant material or consideration thereof. The impugned decision to cancel the allotments, action under the Public Premises Act;; and the impugned orders of Estate Officer appellate orders are constitutionally and legally,not sustainable.

¶256The special leave petition in J.L KbuI (supra) was filed in 1997 and the rehabilitation scheme was placed before court for the first time in 2006 which proceedings culminated in the judgment dated 3'''^ December, 2008 after twelve years. Adjudication was'still necessitated in P.K. Handoo vs. Estate Officer (supra) decided on 2°^ August, 2006; M.K. Koul (supra) decided onllth April, 2008. I find that the Central Administrative Tribunal had passed a detailed judgment on 30"' December, 2002 in OA No. 2378/2002 entitled Tej Kisban vs. UOI. In all these cases by final adjudications, the petitioners have, been permitted to continue with occupation of the quarter Page 154 ofI57 A concerned.. Despite the proceedings and judgments in tiie abovenoticed matters, the respondents have still proceeded against the petitioner in the manner noticed above.

¶257Instead of facilitating the resettlement and rehabilitation of the petitioners who are internally displaced persons as per the declared policy, they have arbitrarily been exposed to' the additional trauma of the threat of forcible evictions and the uncertainty and insecurity of seeking the adjudication by pursuing litigation. In these circumstances, the petitioners are entitled to exemplary costs from the respondents inasmuch as the threat of forcible eviction by the process resorted to by the respondents impacts the fundamental rights of the petitioners.

¶258In this background, while allowing the writ petitions and having regard to the number of the petitions which have been unnecessarily generated and the lack of material with regard to the persons responsible for the unfortunate decision making, only.the litigation costs of the present cases are being awarded. • ^

¶259It is essential to. make it clear that it is only in the peculiar fact situation of the present cases and .the extreme, hardship of petitioners involving violation of fundamental rights and human rights of the citizens of,India, that such continued occupation of the public premises by the petitioners has to be permitted. No inference can be laid that any person ,not having a property of its own ,or not having suffered the violations aforenoticed can or has been permitted - to continue to indefinitely occupy public premises. Therefore, the principles laid down in this judgment would bind . only a fact situation as in present case or similar W.p.(Q No.15239/2004 ciixiimstances-when the State has been unable to protect the fundamental and basic human rights of its citizens'compelling them to be displaced from the place of their residence and is not in a position to ensure their safety or security in case they return to the place of their residence. In view of the above discussion, it is directed, as follows •(i) The impugned orders cancelling allotment petitioners; the orders of eviction passed in the proceedings held against the petitioners under the Public Premises (Eviction of Unauthorised Occupants) Act and the appellate orders which are detailed in para 13 are hereby set aside and quashed.

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

(iii) Till such -time, respondents are .able to provide alternative accommodation to the petitioner his/or her family anywhere in Delhi> the petitioners shall be' allowed to retain and occupy the allotted accommodation (also detailed in column no. 2 of para 13 above) subject to payment of normal license fees.

(iv) Each petitioners shall be entitled to costs of Rs.25,000/- which shall be paid within a period of six weeks from the date of passing the order. These writ petitions are allowed in the above terms. 1102 9/2004, 731S/2€t06, ]L1016/2004. 1104L-4/2004. 1105 0/2004; 11-444/2004. 1557/2006, 237'9/2006. - W.p:(C) No.15239/2004 iy:3i//^uy/. j-.: 16449/2008. ' JL kj i_y TtU'/onLf-acu 5796/2009.' 76554/2009, 109IB6/2009. 11351/20(D9. 11242/2009. 11244/2009 & •111 view orders passed, in the respective writ petitions, these apphcations do not require further adjudication and are disposed of accordingly. iber^t^ aa/kr • .

*IN THE HIGH COURT OF DELHI AT NEW DELHI j^ Writ Petition (C) No. 11490/2009 & C.Mo.No.11246/2009 Date of decision : November 30/ 2010 A.K. GIGOO ESTATE OFFICER ... Petitioner Through; Mr. B. L. Wah, Advocate VERSUS ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. CORAM: HON'BLE MS. JUSTICE GITA MITTAL 1.Whether reporters of local papers may be allowed to see the