Vijay Mam v. UOI & Ors

Judgment?

¶2To be referred to the Reporter or not?

¶3Whether the judgment should be reported in the Digest? GITA MITTAL, T For orders see W.P.(C) No. 15239/2004. November 30, 2010 kr TA MITrAl5^ 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.CC) No.15239/2004 & CM No. 11011/20)04 decision: Novembe P.K. KOUL ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS ESTATE OFFICER AND ANR. ... .Respondents Through: Mr. Jatan Singh witli Mr. Abhishek Aggarwal and Ms. Meglia , 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 Througli: Mr. Jatan Singh with Mr. Abhishek AggarwaTand Ms. Meglia Bharara, Advocates. AND

(3) Writ Petition (Civil) No. 15245/04 and CM No. 11026/2004 A.K. MUKOO ... Petitioner • Tlirough: ,Mr. B.L. Wali, Advocate VERSUS ESTATE OFFICER AND ORS. ....Respondents Through: Mr. Jatan Singli with Mr. Abliisiiek Aggarwal and Ms. Megha Bharara, Advocates. W^P.(C) No.15239/2004 Page I of 157 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.

(5) Writ Petition (Civil) No. 862/2(004 and CM No. 736/2006 A.K. TRISAL ...Petitioner Through: ' Mr. Manoj V. George, Advocate VERSUS ESTATE OFFICER AND ANR. ....Respondents Througli: Mr. Jatan Singli with Mr. Abhishek Aggarwal and Ms. Megha Bliarara, Advocates. and CM No. 11016/2004 T.S. BALI ... Petitioner Through: Mr. B. L. Wah, Advocate VERSUS ESTATE OFFICERAND ANR. ....Respondents Through: Mr. Jatan Singh with Mr. /AbhishekAggarwal and Ms. Megha Bharara, Advocates. AND and CM No. 11044/2004 P.N. KACITROO ... Petitioner Through: Mr. B. L. Wali, Advocate •W.P.(C) No.15239/2004 Page2ofl57 II" VERSUS .ESTATE OFFICER AND ANR. ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Meglia Bharara, Advocates. AND

(S) Writ Petition (Civil) No. 15279)/2004 CM No. 11050/2004 C.L.MISRI ... Petitioner Tlirough: Mr. B. L. Wali, Advocate VERSUS ESTATE OFFICER AND ANR. . • ....Respondents Through; Mr. Jatan Singh with Mr. •Abhisliek Aggarwal and Ms. Megha Bliarara, Advocates. • AND

(9) Writ Petition (Civil) No. 156951/2,004 and CM No. 11044/2004 PHOOLA RAINA ...Petitioner (Wife of late-Sii.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) Writ Petition (Civil) No. 1779/2004 and CM No.'1557/2006 .TEJKISHAN ...Petitioner Through: Mr. Samrat K. Nigam, Advocate VERSUS . UOr& ANR. ....Respondents •Through: Mr. Ravinder Agarwal, Advocate Page 3.of 157 / !, \ ^ & 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 CM No. 10547/2007 M.K. TIKOO ... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shukla & Mr. AtuI 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. ....Resi^ondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. Page 4 of 157 ' S.N. ICAUL UOI AND ANR. AND Writ Petition (Civil) No. 2S69/2008 and CM No. 5540/200S ... Petitioner Through: Mr. R.K. Handoo with Mr. Yogiiider Handoo and Mr. Manish Shulda & Mr. Atul Sharma, Advocates VERSUS ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. AND

(15) Writ Petition (Civil) No. S599/2008 and CM No. 16497/200S KANTIAYANI GANJOO ... Petitioner Tlirough:- Mr. R.K. ITandoo with Mr. Yoginder Handoo and Mr. Manisli Shulda & Mr. Atul Sliarma, Advocates UOI AND ANR. H.L. KOUL UOI AND ANR. VERSUS ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh,Advocates. AND Writ Petition (Civil) No. and CM No. 16499/200S ... Petitioner Tln-'ough: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manisli Shukla & Mr. Atul Sharma, Advocates VERSUS• ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. •11 AND

(17) Writ Petition (Civil) No. & CM NO., 16501/200S VIJAY MAM UOI AND ANR. P.L. ICAUL UOI AND ANR. Y.S. JAMWAL UOI AND ANR. ... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul Sharma, Advocates VERSUS ....Respondents Through: •Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. AND Writ Petition (Civil) and CM No. 5796/2009 Petitioner Through: Mr. Samrat K. Nigam, Advocate VERSUS ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. : AND Writ Petition (Civil) No. 9609/2009 & CM NO. ... Petitioner Through: Mr. Naresli 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 Shulda & Mr. Atul Sharma, Advocates UOI AND ANR. VERSUS ....Respondents Through: • Mr. Jatan Smgh with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND Writ Petition (Civil) No. 115435/2009 & CM NO, 11351/2009 B.L. TAICAROO UOI AND ANR. ... Petitioner Through: 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. Wali, Advocate VERSUS ESTATE OFFICER, DIRECTORATE OF ESTATES, NIRMAN BHAWAN ....Respondents Tlirough: Mr. Jatan Singli with Mr. Abhishek Aggarwal and Ms. Megha Bharara, Advocates. AND . (23) Writ Petition (Civil) No. 114S9/2009 & CM NO. 11244/2009 B.L. EAINA ESTATE OFFICER ... Petitioner Through: Mr. B. L. Wali, Advocate VERSUS • • ....Respondents Through: Mr. Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha. Bharara, Advocates.

(24) Writ Petition (C) No. 11490/2009 . & C.Mo.No.11246/2009 A.K. GIGOO • ... Petitioner Tlirougli: Mr. B. L. Wait 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 f ^j to see the Judgment? |

¶2To be referred to the Reporter or not?.

¶3Whether the judgment should be reported in the Digest? •GITA MITTAL, T

¶1The 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 the 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. •W.P.(C) No.15239/2004 Page 8 of 15.7

¶2petitioners contend that tliose 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 hsts 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, 15264, 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 Governinent 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) No.15698/2004 has been filed by Smt. Phoola Raina, widow of Late Shri T.N. Raina who was a Government servant. Sliri Raina was allottee of Government accommodation bearing no. DG-915, Sarojini Nagar, New Delhi-2,3. While stih in service Sliri 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 froin the valley in circumstances identical to those of the other petitioners.- This petitioner is sui-viving on a meager pension and she cannot afford any alternate accommodation.

¶6The petitioner in W.P.fCl No.5681/2007 evacuated in the same emergent conditions, is stated to be afflicted with the Parkinson'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.

¶7So 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 the militants have burnt the 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 cjuarter under occupation, the petitioner is without a.ny alternate shelter. •

¶8Shri P.K. Koul, the petitioner in W.P.fGl 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 Wof 157 states that he has no other house anywhere in 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. Ii-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 27/28"^, August 2002 with effect from 1'^ December, 2002 directing petitioner to vacate accommodation immediately arid he was informed that on failure to vacate, action to evict him under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 would be taken. The respondents also informed the petitioner that on failure to vacate, he would be liable to pay damage rent @ Rupees 150 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 joayment of four times of the normal license fee for the next two months. •

¶9The petitioner and his family are permanent residents of the State of J&K and did not 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 and to rehabilitate them resulting in a pitiable condition and absence W.p.(C) No.15239/2004 Page II of 157 II of any security for tliem. Consequently; they are unable to return to their own homes.

¶10In tliis background, petitioner submitted a representation dated 24'^ March, 2003 seeldng 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 Pubhc 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 18^^'' November, 2003:- "QiFFICE 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 unauthorized occupation of the 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) Nd.15239/2004 Page J2 of 157 (Eviction of Unauthorized Occupants) Act, 1971, I hereBy order Sliri 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 liable to be evicted from the said premises, if need be, by the use of such force as may be 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 the 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 10'^ 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 the allotment of accommodations wllicli'were effected in favom" of the petitioners/the predecessor in interest; the dates,of their retirement; the status of aUotment and particulars of the orders which have been passed against all. the petitioners and are impugned in these writ petitions are tabulated below:- I Writ Petition Quarter Allotted Date of Retiremeii Date of impugned 'Date of. 1 hnnuaned Date of • the No, t of order of Eviction iinpumiGd AHottee •Cancellati on of A Hotment Order order in Appeal WP (C) No.1-5239 /2004 H-52, Sarojini Nagar, New Delhi

31.7.2002

31.10.2002

23.9.2003

10.9.2004 WP (C) No.15240 /2004 GI-800, Sarojini Nagar, New Delhi

1.7.2002

31...10.2002

23.9.2003

10.9.2004 WP (C) .No.15245 /2004 1-1-162/ Sarojini Nagar, New Delhi

7.5.2002

7.5.2002 '25^9.2003

10.9.2004 WP (C) No.15246 /2004 123/IV, North West Moti Bagh, New Delhi

30.9.2002

7.5.2002

25.9.2003

10.9.2004 i WP (C) No.862/2 499 A, Sector 3, R.K. Puram , New Delhi

30.4.2005

1.9.2004

28.3.2005

20.12.2005 WP (C) No.1779/ 2006 Z-20, Sarojini Nagar, New Delhi

12.12.2005

12.12.2005

31.1.2006

31.1.2006 i WP (C) No.15241 /2004 11/5, Sector-l, M.B. Road, New Dellii

31.10.2001 1:3.2002

18.9.2002

10.9.2004 WP (C) No.15264 /2004 60/9, Sector-1, Puslip Viliar, New Delhi

28.2.2002 30,6.2002

11.7.2003

10.9.2004 i l/l/.P.fC; No.15239/2004 Page'14 of 157 "• • 4^ •J • i Writ Petition Quarter Allotted Date of Retiremeii . Date' of impuffiied Date of' I immmned Date of •No. t of order of Eviction immmned Allottee. CmicelMti on of Allotment • Order order in Appeal WP (C) No.1527 9/2004 3/252, • • Andrews Gaiij, 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 WF'(C) No.2641 /2006 MS/1007, Sector VII, M.B. Road, New Delhi

30.4.2004

1.7..2004

25.4.2005

1.2.2006 WP (C) No.5681 ./2007 Allotted Quarter in Delhi

30.9.2006

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

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

31.12.2007

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

31.12.2007 ; WiP (C) . No.8601 /2008 New Delhi

31.12.2007

10.11.2008 j• i WP (C) No.8641 /2009 GI-809, Sarojini Nagar, New Delhi

31.5.2008

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

31.7.2008

¶1_

3.8.2009 , - . Writ Quarter Date of Date of Date of Petition No. Allotted Retiremen t of Allottee iinpuffned order of Caiicellati OM of Allotment imnumied Eviction Order WP (C) SI/38,

30.6.2008

1.8.2008

9.3.2009 No.1148 Sadiq 8/2009 Nagar, .. New • Delhi WP (C) S-

30.11.2007

21.7.2008

19.1.2009 No. 1148 1/65/11, 9/2009 M.B. Road, New-Delhi WP (C) AB-837, ,

30.4.2008

18.8.2007

10.11.200 No.1149 Sarojini 0/2009 Nagar, New Delhi WP (C) K-4/12,

30.6.2006-1,11.2006

18.6.2007 No.1149 Sector II, . 1/2009 DIZ Area, Gole Market, New" Delhi WP (C) 47/3A/,

30.9.2005

1.2.2006

18.7.2006 No.1154 DIZ Area, 8/2009 Sector 2, Gole Market, New Delhi WP(C) X-224;

31.08.2006

01.01.2007

28.05.2007 No.7057 Sarojini /2007 , Nagar, New Delhi WP(C)" Qr.NoT2'8" 30.04.2008

31.12.2008

16.03.2009 • No.9609

¶1Type- /2009 IV, Sector-8, R.K.Pura 111, New Delhi. W.P.iO No.15239/2004

25.8.2009

25.8.2009

25.8.2009

25.8.2009

1.9.2007

¶14In these writ petitions, the petitioners liave 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 homes in the valley have either been destroyed or occuiDied.

¶15• Passage of time also has brought no change in the conditions prevalent in the state of Jammu 8i 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, the only difference being that instead of being displaced to •another 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 AUotment of the "Government Residence (General Pool in Delhi) Rules to permit any person to occupy public premises. Instances have been cited of the respondents permitting other persons including identically displaced Kashmiris to occupy public premises. It is complained that the resj)ondents have unfairly failed to consider the special circumstances so far as W.p.(C) No.15239/2004 Page \7 of 157 petitioners are concerned and have discriminated against The writ petitioners thus assail the failure of the respondents to exercise the discretion 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 ahotment on payment of normal license fee is illegal and results in violation of the constitutional rights of petitioner as well as constitutional and public law obligations, responsibilities and duties of the respondents.

¶19It is submitted that in given circumstances petitioners cannot be deemed to be in 'unauthorised occupation' for the purposes of the application of the 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 the right to shelter of the 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 all relevant material in initiating proceedings against petitioners, passing the impugned orders.

¶20Mr. Jataii Singh, learned Standing Counsel for the Union of India and Mr. R.V. Sinha, learned counsel for the respondents challenge the very maintainability of these writ petitions. It is contended that the public premises were allotted to employees of the 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 M^P

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

(C) | Pleadings in coiuiter affidavilL Mo.152',39/2004 Grounds "A. B.0cause the Hon'ble Court of SX.Po No.7639/1977 - Sliri TX. Koul & Ors. lias considered the question, regarding the possession of the accommodation of the similarly placed employees and adjourned the matter sine die and till the Supreme Court decides the , matter finally, the Respondents cannot dispossess Petitioner from the premises in question. Vide order dated

26.8.1997 Hon'ble Supreme Court of India in the said case passed, the following orders: "List this matter on a regular day after six weeks. In the meantime, Mr. P.P. Rao will ascertain from the State Goyt. as to whether the petitioners can be put back to their respectiye houses owned by them in the Kashmir yalley and can ensure protection of the persons as also their property. To facilitate that yenture, the petitioner's counsel will giye to Mr. Rao the address of each petitioner where he would expect to be shifted." Again yide order dated 28.1.1998 taldng into consideration of present situation Hon'ble Supreme Court of India passed the' following orders adjourning matter sine die and continued stay:- "Adjourned sine die. Stay to continue. The petition to be actiyated on mentioning by Counsel for State of Jammu and Kashmir as and wheii the in State is in a position to assure the return of petitioners to their respectiye homes in Kashmir yalley and ensure their safety and personal property." Copies of the aforesaid orders of Hon'ble Supreme Court dated 26,8.1997 and 28'. 1.1998 are annexed herev\;'ith as annexure herewith as Annexure. P-5 & P-6 respectiyely. 'That the contents of to H) are matter of record, need no comments. Xxx B. Because the Ld. ADJ has not even considered tliat.the Hon'ble Tribunal in OA No.237^/2002 - Tel Kishaii Vs. Uiiioii of India & Ors. has qrone issue and directed Respondents to allow tlie Aipphcant tlierein to retain Govt. accommodation pending decision in SLP (Civil) No.7369/97. A copy of the aforesaid order of the Ld. Tribunal dated

30.12.2002 is annexed herewith as Annexure P-7. G. Because the Ld. ADJ has failed to appreciate that Petitioner being a Kashmiri migrant ' whose house in Kashmir was burnt and destroyed by the militants,' he has no place to cro. He is, therefore, compelled to stay at his Govt. accommodation allotted to him till normalcy in Kashmir valley is restored and lie could go back to his State one day and rebuild and 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 21 of the Constitution. of India and which Right includes Right to Shelter also. E. Because the Petitioner cannot go back to the Kashmir Valley, 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/destroyed by the militants and he has no other shelter anywhere in India. r.3 F. Because the Petitioner with his \N.P.{Q No.15239/2004 Pleadings in counter affffidavilL "That the contents of Grounds (A are recon XXX meager income received as pension cannot take an alternate private accommodation in Delhi where lie can live with dignity alongwith his family members. His pensionary income is not even sufficient to buy food material for his family members. He has no other income whatsoever. G. B.ecause unless the 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 and •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 title Kashmiri migrants are H. Because , in face of peculiar circumstances and abnormal conditions prevailing in the State of Jammu and 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 emiialitv. XXX XXX XXX' K. Because right to Petitioner to have a shelter does not cease to exist lust 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 cannot be taken away till his safety in his own State is ensured and his own house in Srinagar is renovated or re-built.

16.That in response to l;iie contents of para K of ground, il; is submitted that the petitioner was allotted Government accommodation subject l.o allotment rules while he was in service. He was entitled to retain Government Quarter only during his service period and l;he allotment has. been cancelled consec[uent upon his retirement from • service after . giving him Ill No.l52;39/2004 L. Because Directorate of Estates are allotting general pool accommodation not only to sei-ving Goyernment employees but also to various other categories of employees who haye nothing to do with goyernment' seryice. The employees working 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 and they also deserye special treatment in matter of providing accommodation as in the case of the aforesaid non-goyernmental categories. M. Because the Ld. ADJ has failed to consider facts that Respondents has the power to relax the Allotment Rules in respect of any person and in respect of any accoramodation. According to SR 317~B~25 of Allotment of Goyernment Residences (General Pool in Delh) Rules, 1963, Goyernment have the power to relax Allotment Rules which is reproduced as under:-

31.7-B-25: The Goyernment 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." W.P.(C) No. 15239/2004 concessional period of lour 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 para 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 noeds no commiBjiits However, petitioner is a retiree and pension." getting post retrial V]

¶22The above narration would show that the responclenxs-admit the correctness of the factual submissions, rights claimed and entitlements of the petitioners in these grounds of the writ petition. Nature ofrialits involved in these Constitutional guarantees •23. Before proceeding to examine the challenge laid by the petitioners, it is essential to examine 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 territory 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 question 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, PM. Gupta Vs. State of Gujarat & Ors., the Supreme Court held that food, shelter and clothing are the minimal human rights. The court reiterated its earher expansion of the right to residence and settlement by again' holding that, it is a "fundamental right under Article 19(1)(e) "II • • and it is a facet of inseparable meaningful right to life under 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 Clmmeli Singh & Ors. Vs. State of U,P. & Aiir., the Supreme Court held that the right to shelter is a fundamental right 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 Qimraiiteed in any civilised society iiiwlies the ricffht to food, water, decent environment, education, medical care and slieltero These are basic human rights known to anv civilised societv. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human ricrhts. Shelter for a human being, therefore, is not a mere -protection of his life and limb. It is home where be has omcportimities to Qrow physically, mentally, intellectually and spirituallv. Right to shelter, therefore, includes • adeuuate living space and decent structures, clean and decent surroundincrs, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The rliiJit to shelter, therefore, does not mean a mere Tluht to a roof over one's head but right the infrastructure necessary to enable shelter when used as an essential reguislte to the rialit to live should be deemed to have beeii miaranteed as a fundamental riiilit. As is secure it for its citizens of course subject to its ; In a democratic society as a member of the organised civil community one should have mnimaeiit shelter so as to ipliysicallv, mentally ' and ^ intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a usefiil citizen and equal participant in democracy. The ultimate object of maldng a man equipped with a ligfM to diffiiity 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 economic justice, fundamental right to. nitself" (Emphasis supplied) 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 basicliuman right of shelter.

¶27The right to shelter as an essential concomitant of the fundamental right to life was also pressed by the pavement dwellers in the pronouncement reported at (1997) 11 SCC 121 Abmedabad Municipal Corporation Vs, Nawab.Klian Gulab Klmn &, Ors. The Municipal Corporation of Ahmedabad was complaining against encroachment and 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 Ai^ticle 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 W.P..(C) No.15239/2004 Page 26of 157 also. Mter reiterating the principles in earlier judgments, the observations of the Supreme Comt read as follows;- •'13. Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of society in an integrated Bharat is the arch of the Constitution set down in its preamble. Articles 39 and ^ enjoins the State to provide-facilities and opportunities. Articles ^ and M of the Constitution enjoin the State to promote welfare of the people iDy 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 thex^mainstream of national life, the 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 traditionally been accepted to be three-food, clothing and shelter. The ricrht to life is cmaranteed in any civilised society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and 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 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 and same was 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 ricrht to livelihood." XXX XXX XXX It would, therefore, be clear that though no person has a right to encroach and erect structures or otherwise on footpath, pavement or pubhc streets or any other place resei-ved or earmarked for a ,public purpose, the State has Constitutional duty to provide adequate facilities and opportunities bv distributing its W.P.(C) NO.15239./2004 wealth and resources for settlement of life and erection of shelter' over their heads to make the right to life 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. iiidmeiit weaker sections of the society in XXX XXX XXX

¶25Article 19(lKe) of the Constitution provides to all citizens fundamental rights to travel, settle down and reside in any 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' integrity of the nation,- fraternitv among people and dignity of the person to make India an integrated and united Bharat in a socialist secular democratic republic. The pohcy or principle should be such that everyone should have the opportunity to migrate and settle down in any part of Bharat where opportunity for employmient, or better living conditions are available and, therefore, it would be unconstitutional and impermissible to. prevent the persons from migrating and settling at places where they find their livelihood and means of avocation. It is to remember that the Preamble is the arch of the Constitution which accords to every citizen of India socio-economic and political justice; liberties, equality of opportunity and of status, fraternity, dignity of person in an integrated Bharat. The fundamental rights and the directive principles and the preamble being trinity of the Constitution, the right to residence and to settle in any part of the country is assured to every citizen 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, right to residence and settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the state, as its economic policy, to provide socio-economic justice to minimise inecrualities in income and in opportunities and' status. It positively charges the State to distribute its larcress to the weaker sections of the society envisacred in Article 46 to make socio-economic justice a . reality, meaningful and fruitful so as to make the life worth living with dicmitv of person and eguality of status and to constantly-improve excellence." (Emphasis supplied)

¶28The petitioners are facing threatened foixible 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 AAioIation may also adversely impact and violate the right to occupation and profession under Article 19(1 )(g) of Cpnstitution of India which is the other basic human right of the petitioners inextricably involved in the instant case. International persvective - conventions: norms; aiiidina vrincivles'and their avDlicabilitv to present case

¶30• So far as right to adequate housing and its protection is concerned, there is no specific domestic legislation on the issue. Page 29 of J57 Ill the aforenoticed proiiomicemeiiLs the Supreme Court ha 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 of Jliuggi Jhopri clusters (hutments) in the judgments dated 14'^ July,. 2006 in W.P.(C) No. 5007/2002 reported at MANU/DE/9327/2006 entitled Jagfdisli vs. DDA and also the pronouncement of this court dated 11"' February, 2010 in W.P.fC) No. 8904/2009 Siidmna. Siimli &.Ors, ks Goveriiiiient of Delhi & Aiir, with connected writ petitions. In this regard, in these judgments as well, reference was made to following international & regional covenants and 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 Universal Declaraitioii of Human Rmbts, 1948 makes the following statement: V-^"ticle 25.1 Everyone has right to a standard of livincr adequate for the health and well-being of himself and his family including food, clothing, housing and medical care and necessary social services, and the right to security in event of unemployment, sickness, disability, vwdowhood, old age or other lack of livelihood in circumstances beyond his control."

(ii) The Interiiatioiia:! Convention on the 'EMiiiiimtioii ofAll forms of Ra.cial Discrimination, 1965 contains the followincr: "Article 5 In comphance with fundamental obligations laid down in article of this Convention, States Parties undertake to prohibit and-to eliminate racial discrimination \N.P.{C) No.15239/2004 Page 30of 157 -11 • 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 of Economic, Social and Cultural MiffJits 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 11 . ' . "1. The State Parties to the present Covenant, recognize the right of everyone to an adequate standard of livLnq for himself and his family, including adequate food, clothing, and housing,, 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 ofSocial Progress and Develomnent, 1969 states thus : "Social progress and development shall aim at the continuous raising of the material and 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 foUowing main goals: xxxx Article 10(f) The provision for all, particularly persons in low-income groups and large famihes, of adeguate housing and community services.

(v) Part III Section (8) of the Vancouver Declaration ofHimian Settlements, 1976mandates as follows : W.P.CC; No.15239/2004 • "TTT HnirlRliinRS 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 and 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 aha, through the creation of better balanced communities, which blend different social groups, occupation, housing and amenities." The Recommendations for National Action in the Vmicouver DecMmtioii contains inter aha also the following "A. Settlement Pohcies & Strategies Preamble, Point 3 The ideologies of States are reflected in their human settlement pohcies. These being powerful instruments for change, they must not be used to • dispossess people from their homes and their land, or to entrench privilege and 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 Declaration Development, 1986 also states -that: "Article 8 .1. States should undertake, at the national level, all necessary measures for realization of the.right to development and shaU ensure, inter-aha, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income...!"

(vii) The above objectives were also reinforced the declaration made in-the International Year of the Homeless in 1987 by the United Nations when it spoke of this right of all individuals in the following terms: \N.P.(C) Ho.15239/2004 "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 dated 20tli May 1997 on the right to adecpate housing (Article 11.1 of the Covenant^ ; Forced Evictions) by the Commission on Ecoiiomm Social and Cultural Rialits is important and 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 cruarantees lecral protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with reciuirement 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 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 i^eople from, and • providing legal protection and 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 liuman Ricrhts has also indicated that "forced evictions are a crross violation of human rights " . •

(x) Annexurerl of .Rapporteur on Ademia.te^ Housiim lays clown some "basic principles and guidelines on development based evictions ,and displacement. It provides the .guidelines on relocation of the displaced which read as follows ; "52. The Government and any other parties compensation and sufficient alternative accommodation, . or restitution when feasible,^ must do so immediately upon the eviction, except in cases of force majeure. At a minimum, regardless of the circumstances and without discrimination, competent authorities shah ensure that evicted persons or crroups, especially those who are unable to i3rovide for themselves, have safe and secure access to: (a) essential food, potable water and sanitation; (b) basic shelter and liousincf,

(c)' appropriate clothing;

(d) essential medical services;

(e) livelihood sources; (f) fodder for livestock and access to common property resources previously depended upon; and (g) education for children and childcare facilities. States should also ensure that members of the same extended familv or communitv are riot separated as a result of evictions. XXX

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

(a) securitv 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 ricrhts are concerned, nor shaU their right to continuous improvement of living conditions be subject to infringement. This applies • ecruallv to host communities at resettlement sites, and affected persons, groups and communities subjected to forced eviction: xxxx Page 3^ of 157 "Kll

¶57RelmMMtatioii policies must include programmes designed for women and marginalized and vulnerable groups to^ ensure tlieir equal enjoyment of the human liaMs to IiOMsIuif, food, water, health, education, work, •security of the uersoii, security of the hoiiw, freedom from cruel, inhuman or degrading treatment, and freedom of movement.

¶58Persons, groups or communities affected by an eviction should not suffer detriment to their human riffhts, including their right to the progressive reahzation of the . right to adequate housing. This applies , equally to host communities at relocation sites." (Emphasis' supplied) ,2. The UN Committee on Economic, Social Rights Ml ^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 disadvantaged and 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 iprovided bv State partv on extent and 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 alia, sex, caste, ethnicitv and religion.

¶70The Committee urges the State party to address the acute shortage of affordable housing by adopting a national strategy and a plan of action on adequate housing and building or providing low-cost rental \/y.P.(C) No.15239/2004 Page 35of 157 housing units, especially for the clisadvantaged and low-income groups, including those living in slimis. In this ,connection, the CoiiMiiittGe n and referfi to its General Comment No, 4 on the rialit to adeauate lioiisina {1991') to €imtde Government's Iioiislncf policies. The Committee also recFuests the State party to provide, in its next ni^rimditn renort, detailed information on homelessness in tlw State paitv aind the' eiitent of inadequate housina, disaaareQated bv, int'er alia. sex caste, etlmicitv and relimon.

¶71The Committee recommend.'s that til10 State party take immeidiate measures? to eftectivelv enforce laws and . reaiilations proMMtinnj displacement and forced evictio.IIS, and ensure that persons evictied from their h omes and lands be provided with aidemiate compe.iisation iMid / or offered alterimtlve acconiiiiodatioii, 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 and urban renewal projects, sporting events and other similar activities, the State partv should undertake oipen, ijarticipatorv and meaningful consultations with affected residents and communities. In this connection, the 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."

33.. The above narration would show that the 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 World 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 ' United Nations, adopted on 25^^''June, 1945. This Cliarter was o;E course not binding but stated that it was only an ideal to be later developed. By adopting. the Universal Declaration of Human Rig-hts 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, secondly, the Covenant on Economic, Social and Cultural Ricrhts which was addressed to the 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 partv to both these covenants which were adopted on 16*^'' December, 1966 and bind this countrv.

¶34The 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 and 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 •:ii: countiy. They cannot return to their homes within tiie boundaries of tlieir own countries in the face of the continuing tin-eat 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 the boundaries of ^their own countries stand-categorised • as- "'Interimlly Displaced Person^' (abbreviated as 'IDPs hereafter).

¶36The present petitioners along with several other famihes, 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 or 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. liowever, international covenants respect the principle of non-interference with the 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 the IDPs also face same problems as international refugees and require to be treated with dignity by their own governments with fuU 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 Page 38 of-157 ... which was presented to the UNCHR. The Commission in a unanimously adopted resolution took note of these principles which address the specific needs of internaUy 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" (TDP's) in Clause 2 as follows "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 3

1.National authorities have the primarv dutv and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.

2.Internally displaced •persons have the right to recruest and to receive protection and humanitarian assistance from these authorities. They shall not be persecuted or punished for maldng such a request. XXX Prior to any decision reqiimng 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 minimize displacement and its adverse effects.

2.The authorities undertaldncr such displacement shall ensure, to the greatest practicable extent, that proper accommodation is provided to the displaced persons, that such displacements are effected in satisfactory conditions of safety nutrition, liealtli and liygiene, 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 sliaU 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 oiit by competent legal authorities; and

(f)The right to an effective remedy, including the review of. such decisions by appropriate judicial authorities, shall be respected. Displacement shall not be carried out in a manner that violates the rights to life, dignity, liberty' and security of those affected. XXX 1-Every internally displaced person has the right to libertT of movement and freedom to choose his or 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: {Q)Tbe ricflit to seek safety in another nsLit of .(b)The right to leave their country;

(c)The right to seek asylum in another country; and {6)Tlie ricrlit to be urotected acraiiist forcible return to or resettlemeut in any place where their life, safety, liberty and/or health would be XXX Principle IS 1 -All internally displaced persons have the rialit to an adeemate standard of livincr; 2 .At minimum, recrardless' of circumstances, mid rndtliout • discrimination, conmetent authorities shall provide internally persons with and ensure safe access to-.

(a)Essential food and potable water;. (]:>)Basic shelter and liousincr-

(c)Appropriate clothing; and

(d)Essential medical services and sanitation.

3.Special efforts should be made to ensure the fuU participation of women in planning and distribution of these basic supplies. XXX Frinciple 21

1.No one shah be arbitrarily deprived of property and possessions. ,

2.The ipropertv and ipossessions of internallv displaced persons shaU in all circumstances be protected, in particular, against the following acts:

(a)Pillage; OD)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; and

(e)Being destroyed or appropriated as a form of collective punishment.

3.Property and possessions left internally displaced persons should be protected destruction and arMtrai-y appropriation, occupation or use. XXX XXX •25 l,Tlie primary duty and responsibility for proyidinu humanitarian assistance to internally displaced persons lies with national authorities. Section V. Principles relating resettlement and reintegration Principle 28

¶1Competent authorities have primary duty and responsibility to establish conditions, as well as provide means, internally displaced persons voluntarily, in safety, and with Page 4! of 157 jhoines or places of babitiml residence^ or to resettle voIuiitarMv in another part of Sucli 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 and management of their return or resettlement and reintegration.

1.Internally displaced persons who have returned to their homes or places of habitual residence or udio have resettled hi another part of the coiuitry shall not be discriminated amalnst 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 ecj;ual access to public services.

2.Competent authorities have respomuMMtv to assist returned and/€w resettled iiiterna.llv displaced persons to reco^ver, to the extent possible, their property and possessions which t':hev left behind or were dispcassessed of upon their displacement. When recoveiT of such pi'ropeitv and possessions is not possible. competent authorities shall provide' or assist these persons in obtainincf a\ppropriate compensation ' or another form of hist

¶41The United Nations Charter thus establishes obhgation 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 aU nations. It consec[uently has an effect wliich is similar to a treaty. Further eveiy nation who is a signatory to aforenoticed International Covenant on Economic, Social and Cultural Rights ('ICESR') must refrain from acts which would defeat the object and purpose of the covenant. The preamble to W.p.(C) No.15239/2004 ir the ICESCR estabhshes that "the ideal of free human being§ 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 weU as his civil and political rights". Article of this covenant emphasises that the state parties recognises the right of every person to an adequate standard of living which include adecjuate housing and continued improvement of living conditions. The right for people to be free from want is the very foundation of the ICESCR.

¶42The international human rights law thus establishes a legal obligation 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. 43; The 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 and 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 W.p.(C) No.15239/2004 "•""nr safety as well as protection against forcible return an 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 and appUcability 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 JT2008(7)SC11, 2008(9)SCALE69 Enteitaiiimeiit 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 follows:- . "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 apphed 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 inconsistency in use of international norms to domestic legislation, if by reason thereof the tenor of domestic law is not breached and in case of any such inconsistency, the domestic legislation should -prevail. In Tagdish Saran and Ors. v. Union of India MANU/SC/0Q67/1980 :

(1980) SCR 831, it was observed: "It is also well-settled that interpretation of Constitution. of India or statutes would change from • time to time. Beiim a Uviim ore, II time, law must clmnue. New rig-Ms W.p.(C) No.15239/2004 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 and conventions. Yet again in Indian Handicrafts Emporium and Ors. v. Union of India MANU/SC/0640/2003 : 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 iDut also Fundamental Duties as contained in Part IVA thereof. Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. MANU/SC/0293/1983 : (19861 1 SCR 594. Rattan Arva and Ors. v. State of Tamil Nadu and' Anr. ]y[ANU/SC/0550/1986 :

(1986) SCR -and Synthetics and Chemicals Ltd. and Ors. v. State of U.P. And Ors. 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. Sanglii, 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 Asson. Ltd. V. M.V.. Sea Success I and Anr. MANU/.SC/0951/2003 :

(2004) 9 see 512, wherein this Court observed that as no •statuton'- Mw in scenario. Liverpool also referred for the proposition that the clianmim global scenario should be kept in 'mind having recrard'to the fact that there does not exist any primary ' act touching the subject and in absence of any, domestic legislation to mean that it restricted the jiirisdiction of the Indian High Courts to interpret the domestic

¶51Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed bv the Supreme Court in' a plethora of cases inter alia The State of West Bengal V. Kesoram Industries Ltd. & Ors. , MANU/5C/0Q38/2004 : (20041 2 66 ITR 721(SC). In Pratap . Sinali v. State of Tliarkliancl and Anr. MANU/SC/0075/2005 : 2005 CriLT 3091 wherein tliis Court directed to interpret tlie Juvenile Justice Act in light of the Constitutional as well as International Law operating in the-field. (See also Centrotrade Minerals and 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) SCC and Anuj Garg and Ors. v. liotel Association of India and Ors. MANU/SC/S173/2007 : AIR 2008 SC 663.

¶52However, applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptabilitv of the Conventions in cruestion. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaldng a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taldng into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILQ Conventions, couirt would freely avail the benefits thereof. Those Conventions to' which India may hot be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to existing enactment, recourse to , International Convention is permissible.

¶53This kind of stance is reflected from the decisions in PUCL v. Union . of India MANU/SC/Q274-/1997 : AIR 1997 SC 1203, John VaUamattom 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, Kubic . - , Darusz v. Union of India MANU/SC/0426/1990 : 1990 CriLT 796, Chameli Singh 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) 1 LLl , 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/096r/2Q03 :

(2004) SCC and Liberpool &. London S.P. & LAsson. Ltd. v. M.V. Sea Success I MANU/SC/0951/2Q03 : (2004) 9 SCC 512."

¶45AA/ith regard to application • of International conventions and treaties in India/ the Supreme Court laid the following principles in para 47 of the judgment "iiir" "In interpreting the domestic/municipal laws, this court has extensively made use of International law inter aha for the foUowing purposes ;

(i) As a means of interpretation;

(ii) Justification or fortification of a stance-taken;

(hi) To fulfill spirit of international obligation which 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."

¶46.In AIR 1997 SC 3011 Vislmka aad others Vs. State of Rajastliaii 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 21 of the Constitution of India, Section 2 of Protection of Human Rights Act, 1993 and the entitlements of worldng 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 and applicability of international conventions and treaties, the court held as follows - ' If "7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14. 15, 19(l)(cr) and 21 of the Constitution and safeguards against sexual harassment implicit therein. Anv Intefnational Convention not inconsistent with fundamental ricrhts and in harmonv with its spirit must be read into these provisions to enlarge the meaning and content thereof, to ijromote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to enact laws for implementing International Conventions and Page 47 of 1.57 norms by virtue of Article 253 read witli Entry 14 of tlie Union List in Seventli Sclieduie of the Constitution. Article 73 also is relevant. It provides that executive power of the Union shall extend to matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the eAdl." .

¶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 worldng environment and 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 and Instruments and reiterated the above principles.

¶48In (2003) 6 SCC 1 Kapila Hiiigoranl Vs, State ol I^iJiar, the Apex court stressed on the importance of respecting International Treaties and Conventions while interpreting the Constitution and domestic law so as to effectuate the recognised rights and observed as foliows- "47. It is also well-settled that a statute should be interpreted in the hght of the International Treaties and Conventions. In Chairman, Railway' Board and Ors. V. Mrs. Chandrima Das and Ors. MANU/SC/0046/2000 : 2000CriLI1473 this Courl-. stated the law thus:- "24. The International Covenants' and Declarations as adopted bv the United Nations have'to be respected bv all signatory States and the meaning criven to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those rights. W.P.iO No.15239/2004 Page 48of 157 thereof may have to be read, if need be.

¶49As noticed above, right to residence and to settle in any part of the country is assured to eveiy citizen as a fundamental right under Article 19(l)(e) of the Constitution of India. (Ref : 1997 (11) see 121 Aliiiiedabad 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 Evani Vikas Parisliad & Aiir. Fs', 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 and 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 and relocation. The Guiding Principles on internal Displacement reiterate very right to shelter constitutionally guaranteed and recognized.as a basic human right in the international instruments. These Guidelines thus consolidate and fill gaps in national and international 1^^_ relating to such, .displaced persons. Tliey also provide a valuable bencliniark 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) 6 see Kapila. Hiiigormii Vs, State ' of Bihar , 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 and right recognised in aforenoticed conventions as well as Guiding Principles would bind the present adjudication also in the light of the following principle laid down in Eiitertamimeiit Network "54 Furthermore, as regards the question where the protection of human rights, environment, ecology and 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 resourceless. 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 protection and enforcement of their fundamental right to life which includes shelter. The international conventions (tP recognise shelter as a basic human right. The Guiding Principles reiterate the same rights and responsibilities of the state so far as IDPs are concerned. Consideration of the petitioners' rights, therefore, would necessarily involve ensuring the objectives and declarations made in the above international instruments especially those endorsed by India reiterated by the Guiding Principles for IDPs. The Protection ofHuman Eights Act, 1993

55.' The issue in the instant case has another dimension to it which is of importance. . In discharge of the obligation under ^the international covenants, India promulgated an ordinance appointing commissions and courts for the protection of human rights. This ordinance was replaced by the Hmiiaii Rmlits 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 riahtsf are defined in clause (d) of sub-section

(1) of Section 2 as the 'rights relatmg to Ufe, hberty, equahty 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 of the several rights recognised under . ^ International Covenants, therefore, stands recognized by this legislation in India. The said Act was made by the Parhament having regard to the changing social realities and 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 ITuman Rights Act, 1993 which includes right relating to life, liberty, ecjuality 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 and state,, by way of these writ petitions ' are thus, seeldng enfoixement of such right to shelter.

¶57The above chscussion 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 pihar of support for the rights recognised thereby and to ensure the recjuisite 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. 7^

¶58On behalf of 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 and therefore liable to be evicted under the provisions of the Pubhc 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 and 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 adec[uate means to acquire any property in Delhi. It is the petitioners contention that the W.P.(C) Ho.15239/2004 ' Page 53 of157 pension admissible to them does not enable them to afiorc 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 of the Suprem.e Court, this Court and the 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, 1963 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 the Public Premises Act, 1971 which would'have the effect of ousting them and their families from their only resicieiice without taldng steps of maldng provision of reasonable alternatives. The contention is that the entire action taken by the respondents and implementation of the threat of forcible eviction would result in violation-of the fundamental and basic human rights of the petitioners and, therefore, is unconstitutional, without jurisdiction and completely iUegal. •'ir^ r r^O Bindincr judicial precedents

¶61So far as the conditions whicli were in existence in the , state of Jammu & Kaslmiir, the restoration of normalcy and the circumstances in wliich they are occupying these quarters are concerned, rehance lias 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. Koul & Anr. Vs, 'State ofJammu & Kashmir.& Ors. Shri J.L. Koul & the other petitioners in this case were Kashmiri pandits who were employees of the State Government and being State Government servants, had been ahotted 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 ,and 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 ahotment 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-Page 55of 157 ' n Court of Jammu & Kashmir had aUowed the writ petition and 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 Single Judge 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 one 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 of the Single Judge dated the 24'^'" of January, 1997 by a letters patent appeal. This a.ppeal 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 mterim order order dated 11"' April, 1997 was passed by the court directing the state government to maintain status Cfuo regardijig the possession of the property.

¶64Mr. 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"'Aucrust. 1997. the Supreme Court had required counsel representing the State of Jammu & Kashmir to ascertain from the State Government as to whether W..P.(C) No.15239/2004 Y tlie petitioners can be put back in to the houses owned by tliem in the Kashmir VaUey and to ensure protection of their persons I as also their properties.

¶65. The case was thereafter taken up by the Supreme Court on 28"' Tanuarv. 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 mentionincr bv counsel for the State of lammu and Kashmir as and when the State is in a position to assure return of the petitioners to their respective homes in the Kashmir valley and ensure their safety and personal property.". (Underlining supplied)

¶66It is noteworthy that the Supreme Court had also passed an order on 3'''^ December, 2008 (in Sliri LL, Koiil & Others vs. State of F&K aiforeiioticed) 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 Vs. State of JaiMiimu & Kashmir. So far as rehabilitation of the Kashmiri W-.P.(C) No.15239/2004 "I it migrants is concerned, tlie affidavit dated 6"' October, 2009 lias been considered in para 7 of the judgment in the following terms "7. In pursuance of the said order, the Chief Secretary has filed the affidavit dated 6.10.2009. In the 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 of the. Government accommodation. It has further been clarified that there are 37.280 families who have been recristered for the relief including the accommodation and out of them only 5,000 families could be provided the accommodation in the camps. However, it had been undertaken that the Government would provide such facilities to ah Kashmiri migrants till thev are residing at the ipresent places. The relevant part of the 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 outlav of Rs.1618.40 crores. This is for the first time since 1990, that Govt. of India has come up 11-Kashmiri Mmraiits. The policy has been framed on recommendations of a constituted by Govt. of India to suggest various confidence building measures in the JSiK State. While framing policv various needs of migrants have been taken into consideration, such as housing, education, revival of Agriculture and 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 (a) 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 and before enactment of •"The J&K' Migrant Immovable Property (Preservation, Protection and Restraint of Distress Sale) Act, 1997" on 30.5.1997.

(b) Transit Accommodation : Construction of transil: accommodation at three sites @ Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, Rs.1.00 lac per family towards rental and 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 and free ration would continue to receive the same (a) 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 /\.nantnag. These flats are to be used as transit accommodation by the Kashmiri migrants who wish to return to valley. The micrrants shall stav in the 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 and Rehabilitation packacre for Kashmiri Micn^ants in the month of September 2009 and immediately after the constitution of the Apex Level 8 Committee, various suggestions were put forth in a.meeting held on 23.9.2009.

¶12That it may be further submitted that the State Cabinet vide its decision No. 130/11/2009 dated 1.10.2009 has approved the package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Vallev. However, with regard to W.p.(C) No.15239/2004 implementation of employment scheme a Committee has also been ordered to be constituted to go into the legal and other implications 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 State Government is keen to rehabilitate the Kashmiri Migrants in the Kashmir vallev and shall provide every tyiDe of assistance for their return and rehabilitation. The process for the rehabilitation in vallev has been initiated in lune 2008 after Govt, of India, aiiiimuiced the (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 and particularly for providing them accommodation. Placing reliance , on above affidavits/undertaldngs given by the respondents, Court further observed that authorities have framed rehabilitation scheme and for imiDlementation of the same, it has got sufficient resources also. In this background, the Suprenie 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 and Mr. Anis Suhrawardy, Ld. Counsel for the State, we dispose of • the appeal with a pious hope that State shall take all endeavours to rehabilitate the persons who have been victim of terrorism and till the State is able accoiiimodation to 31 amjelMiits-retirees/oustees, to possess (Emphasis supplied)

¶68It is noteworthy that the only difference between the petitioners before the Supreme Court and those who are before this court is, that the petition before the Supreme Court W.p.(C) No.15239/2004 "IF related to persons wlio were retired employees of the State Goverament while the present petitioners are ah employees of the Central Government and its departments. However, the petitioners before the Supreme Court and the present writ petitioners are' identically placed victims of the militancy and 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 rec[uires to be also made to a judgment passed on 2"^ Aucaist, 2006 in WP (C) NoA1742/2005 entitled PJC Haiidoo Vs. Estate Officer & Anr. 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 ahotment 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 the respondents to allow him to retain the official accommodation W.p.(C) Ho.15239/2004 "•it~ ^1 tMe which had been, allotted to him till such' time that Government made it possible for him to return to Srinagar or tiU suitable alternative accommodation is proAdded to him in Delhi.

¶71The observations made by this court in the judgment dated 2""^ August, 2006 in P.K. Haiidoo (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. Ecpal protection means the right to ecfual treatment in similar circumstances. There ' should be no discrimination between one person and another if as regards subject matter of legislation their position is the same. It is settled law that a judicial or cj;uasi judicial decision cannot offend Article 14.

¶12In the result, I case of I.L. Koiil Vs, State of Taiiimii and Kasliiiiir (supra). Respondents are directed to ahow petitioner to retain Quarter-No.D-845, Mandir Marq, New Delhi, pending decision in SLP © No.7369/2007, subject to pavment of normal licence fees or in the alternative respondents mav provide alternative accommodation to petitioner and his familv anwhere in Delhi till the pendency of the above said writ petition before the Hon'ble Supreme Court. No costs." ' • (underlining supplied)

¶72Learned counsels for tlie petitioners liave also painstakingly pointed out the earlier similar directions made as back as on. 30'^'' December, 2002 by Central Adiiiiiiistrative Tribunal in OA No,2378/2002 entitled Tej Kislian Vs. Union ofIndia & Ors. on the same issue which have' also been noticed and reiterated in tlie PJC Haiidoo (supra) judgment. It is noteworthy that Shri Tej Rishan, 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 aUotnient 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 DDA by the Ministry of Urban Developiiieiit & 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 emplovees 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 J&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 thereof to this Ministry within a fortnight for approval." (Underlining supplied)

¶73In above. judgment, Central Administrative Tribunal also observed on violation of Article by respondents holding that "the state shall not by its act discriminate as between two individuals who are similarly W.P:(C) No.15239/2004 Page 63 of]57 circumstanced." These findmgs are also noticed in para 10 of the judgment in P.K. liandoo's case (supra).

¶74I have , had occasion to deal with a similar issue in a judgment dated the 11'^' of Amil 2008 rendered in W.PJC}' No.1065/2007 MJC KoisJ Vs. Union ofIndia & Ors, In this case also the petitioner was a retired Kashmiri employee of the 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 cjuery was put to counsel for the respondent in this , case in respect of the 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 will hot be in a position to return to their respective homes in the Kashmir valley". Consequently, the following directions were issued:- "15... In certainly cannot be petitiouer's allotment or to enforce the eviction order which

¶16There is no doubt, that the petitioner was maldng payment of the normal hcence fee while he was in service. Interest of justice and equity merit that the petitioner be required to make ipayment of the licence fee on the same basis till such time as the respondents are able to ensure safety of personal • l/l/.P.rg No.15239/2004 ' qf property of the petitioner in their home State or are in a position to provicle similar alternative accommodation to the, petitioner or the petitioner accmires any other residential property in Dellii.

¶17In view of tlie above discussion, tliis writ petition is.allowed. The respondents are directed to permit the , 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 shah 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 of the Government of India to challenge the orders passed in WP(C) No.11742/2005 entitled PJCHmidoo k Estate Officer & Aim; 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. AMmra Vs. Government of India & Ors. in support of this submission.

¶76It is noteworthy that Col. BJ. AMiara's case '(sMpra) related to efforts of the Government to recover payment of excess amount as pension. Certain orders stood passed in the writ petition filed by other employees who had raised a similar chahenge. These orders had not been challenged by the Government. In this background, the petitioner had.contended that the Government was estopped from recovering the amount from, him in view of those orders which liad attained finality The Apex Court rejected the contentions and held that the Union of India would not be barred from resisting subsequent writ petitions involving similar issues or challenging subsecfuent 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 or ulterior motives. It was held that principles of estoppel, res judicata, legitimate expectation 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 AMiara's case (supra) with those of the present cases.

¶77The aforenoticed judgments and 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 I'ecords do not show any consideration of the aforenoticed judgments and orders so far as the rights and plight of the petitioners -are concerned. Cancellation ofallotments 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 allotments and to initiate the proceedings under the Public Premises Act, 1971 as well as the orders of the Estate Officer and the judgments of the Appellate Court are in terms of statutory provisions cannot be assailed by way of these writ petitions. Rehance is placed on the pronouncements of this court reported at {1995} II AD Delhi 293 Union ofIndia Vs. S.M. Affffarwal & 31 others-,

2.000 (55) DRJ 57 BMiii Singh Vs, Union of India & Anr.) AIR 1977 Delhi 268 Hardwari Lai Vernm 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 Maneka Gandhi Vs Union ofIndia and others. In this case, the court had made the following observations with regard to the impact of action taken under provisions of the Passport Act;- "Now, if effect of State action on a fundamental right is direct and 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 applied for the purpose of ' determining whether Section 10 (3) (c ) of the impugned order made under it is violative of Article 19 (l)(a) or

(g)."

¶80The Supreme Court further ruled that it is not necessary to assail the constitutional validity of the statutory provisions W:p.(C) No.15239/2004 Page 67 of157 under wliicli the impugned order is made and that the 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 violate 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 statutorv iprovision empowerincr an authority to take action is constitutionally valid, action taken under it • may offend a fundamental right, and in that event, thoucrh the statutorv provision is valid! the action may 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 by the statutory provision, but must also stand the 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 statutorv grant of power that the authority on which the power is conferred, should act constitutionally and not in violation of any 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 imjDacted fundamental rights of the petitioners, it would have to be voided. This objection to the maintainability of 'i'i the present writ petitions is therefore misconceived and is rejected.

¶82An examination of order of cancellation of allotment requires to be undertaken. The only rules relied upon in support of the power to permit occupancy of the quarters are the Mlotmeiit of Goveriimejit Residences (Geiieml Pool in Delhi) Rules, 1963. Cancellation of the allotment has been effected under these very rules.

¶83The 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 the reason that they have cancelled the allotments.

¶84In view of this stand of the respondents, it becomes necessary to examine the provisions of the Public Premises Act, 1971. '

¶85For the purposes of the instant case, expression "unauthorized occupation" as defined under section 2(g) of the Public-Premises (Eviction of Uimutliorised 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 iDublic 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 aUowed to occupy the premises, has expired or has been determined for any reason whatsoever." W.p.(C) No.15239/2004

¶86So far as the proceedings for. eviction under the Pubhc Premises 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 ag-aiast order . of eviction, - (1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, Estate Officer shaU 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 the grounds on which the order of , eATLction is proposed to be made; and

(b) require all persons concerned, that is to say, ah 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, and '

(ii) to appear before the Estate Officer on the date specified in the notice along with the evidence which they intend to produce in support of the 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 4 and [any evidence produced bv him in support of the 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-pubhc 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, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2), If any person refuses or fails to comply witli 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 pubhc." (Underlining supplied)

¶87The present cases raise a pertinent c[uestion as to whether the cancellation of the allotments to the petitioners was justified and vahd and whether the petitioners' occupancy thereafter could be brought within meaning of expression "unauthorised" under Section 2(g) of the Pubhc 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 of the present cases. In this regard the oft quoted words of Justice P.N. Bhagwati in

(1983) SCC 228 National Textile Workers' Union 'vs. P.R. Ramalarislman 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 fails 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." '

¶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 'SCC '601 State of MaimrasMra vs. Dr. Praful D. Desai ; (1997) 5 SCC 482 CJT Vs. Foddar Cement Pvt. Ltd.; (2000) 8 SCC 740 Basavaraj E. PatiJ vs. State of Kariiataka}. These principles have been noticed in (1996) 2 SCC 428 State vs. SJ. Clioudlmry read as follows "(2) It is presumed that Parhament 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 spealdng. 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, the meaning of words, and 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. Parliament, 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 spealdng stating that W.P:(C) 'No.15239/2004 Page 72 of157 -.|r "An enactment of former days is thus to be read today^^ in the hght of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and 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 and 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 Vs. SJ.CImudliary}. "Tsfotice 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 Pubhc 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 proiDerties.

¶91The state authorities, assessed the threat perception and danger to the lives to some of the petitioners who were bodily evacuated from their homes in the valley. The transfer of the W.P.iC) No.15239/2004 petitioners, (or that of the persons on whom they were dependent), to Delhi, which preceded the allotment of quarters, was thus ' compelled by the inability of the 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 the 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 and properties of the 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 the same sheer necessity which compels the petitioners to continue to occupy the premises which was allotted to them. It is clearly evident that having identified and supplied such need of the 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 W.P.(C) No:i5239/2004 Page 74 ofI57 iTr community but also largely because they represented the face o;: the Central Government in the valley as its employees.

¶95It 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/./C 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 rehef including accommodation out of which out 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. the 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 the Supreme Court refers to a total package of the Central Government invoMncr an outlav of Rupees 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 noticed in the judgments of the Supreme Court and of this court remain in the realm of proposals and 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 court. 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 and have acted arbitrarily and unreasonably. The above discussion clearly manifests that the respondents have not acted fairly in discharge of their positive obhgation and have not sufficiently engaged with the problems and difficulties of the petitioners.

¶99The petitioners have been prevented from residing in their homes 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 and rehabilitation of the 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 families 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 Page76of}57 2000 (55) DEJ 57 Blum Singh Vs. Union ofIndia & Anr. In tliis case, petitioner had sought upgradation of the 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 putforth 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 BMni 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 Union 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 reliance on pronouncement of this court reported at AIR 1977 Delhi 268 Hardwari Lai Verina Vs, The Estate Officer & Ors. wherein the court held that an ahottee of a Government quarter is Page 77 of 157 " merely a licencee. There can be no dispute at all with this j , proposition. However, Hardwari Lai Verma 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 pubhc 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 resp'Ondents have themselves considered such requests and 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 herelnabove. The respondents have admitted in their counter affidavit that the petitioners have nowhere else to go.

¶105Within the larger group of the IDPs from Kashmir, the 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 nr cleaii3A admit the special needs and entitlement of these displaced persons.

¶106Despite, this hard reality, representations, undertaldngs and promises of the Central Government, upon retirement, the allotments to the petitioners stand cancelled and they are being asked to vacate Government accommodation; otherwise they, face the threat of eminent forcible eviction therefrom 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 non-refoulement 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 the 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 Page 79of]57 • - -Jt u and the effect of such eviction has not even been remotely considered. No examination of the issue ofwhether the spirit or intendment of the 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 making. 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 service 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) and •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 making 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 W.p.(C) No.15239/2004 (XX 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 could be 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 pubhc law obhgations 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 of the 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 the 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 cj;uarters 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 the Supreme Court in P.K. Koul Vs. Estate Officer, this Page SI of 157 court mJ,K. Koul f5?. Union ofIndia, the order of the Centi Administrative Tribunal in Tej laslmn 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 and circumstances. There can also be.no statutory interpretation which results in violation and constitutional guarantees and 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 the gross violations and deprivations as the petitioners, and 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 under the Public Premises Act, 1971 were resisted by the petitioners on the several grounds on which these writ petitions are premised. However, the same resulted in the impugned orders of eviction.

¶115The sole reason given by the Estate Officer for passing the impugned orders of eviction is that the allotments in favour of the petitioners stand cancelled and that they had failed to prove that tliey were not in unauthorized occupation of tlie instant premises. None of the other contentions of the petitionei have 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 and discharge mandate thereunder.

¶118The appellate orders notice the petitioners' contention that the petitioners have made several representations to various authorities for allowing 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 same footings. The challenge had also been laid to the orders ofthe estate officer on grounds ofarbitrariness 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 orders had been sustained in view of these conclusions.

¶120As a result, such worldng of the Public Premises Act by the respondents, the petitioners are being threatened with eviction from the only shelters that they know, 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 S4 of 157

¶122The scheme of the Pubhc Premises (Eviction of Uiiauthorised Occupants) Act, 1971 shows thatthe notice which is issued under Section 4 to show cause is required to specify the grounds on wliich the eviction is proposed to be made and require tlie persons concerned to show cause against the proposed order before the specified date when they are to produce evidence in support of tlie sliow cause. Under Section 5 of the Act, the Estate Officer is required to consider the show cause by tlie 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 aU to support satisfaction to order eviction. The impugned orders do not reflect the consideration of the 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 Kislimi vs. UOI (supra) before the Central Administrative Tribunal (also rehed upon in 132 (2006) DLT 672 P.K. Haiidoo 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 making preferential allotments of accommodation to ICashmiri migrants. In addition, the Government affidavit dated 6"' October, 2009 in • Page S5 of 157 J.L. Koul (supra) filed in the Supreme Court of India al^ 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 the measures, however, reflects that the steps which have been taken are inadequate and hopelessly insufficient. Even in the prolonged . hearing before this court, the respondents could place no alternative so far as the petitioners were concerned.

¶125In AIR 20W SC 1476 State of West Bengal ks. The Community for Protection of Democratic Eig-Jits^ 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. • 126. In [2004] EWCA Civ 540 Secretary of State for the Home Department vs. Wayoka Linibuela, Binyaiii 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 \N.P.{Q No.15239/2004 II \0 that when a reasonable evaluation of all relevant facts and circumstances 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 rehef. It was also held that the state would be hable for both action and inaction as long as the action or inaction results in a serious deprivation of rights or human dignity.

¶127In the hght 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, the 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 compelled to return to violent situations.

¶129The proceedings as well as the impugned decisions and orders have completely failed to take into consideration the material issue of the impact of the proceedings and the orders which would result in forcible eviction of the petitioners from the only shelters Imown to them without any alternative 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 aUotment 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. It is manifest therefore such that such application of law as would have an impact of violating fundamental rights of petitioners is impermissible under the constitutional scheme. Proportionality test

¶131The proportionality of the impact on the fundamental right involved by worldng of the statutory provision as against the 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 the present case. In a pronouncement of the'House of Lords reported at (2007) UKHL 11:(2007) 4 All ER 15 Huaiiff Vs. Secretaiy ofState \ for the Home Department, the decision maldng role and function of the appeUate immigration authorities in the context of the Huinan 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 , . - European Convention for the Protection of Human Riglits and Fundamental Freedoms, 1950 which provides as under "1. Eveiyone has the right to respect for his private and family life, his home and his correspondence. 2. . There shall ,be no interference by a pubhc 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 impucrned decision . is authorised bv law for a lecritimate object and the interference (or lack of , respect) is of sufficient seriousness to engage the operation or art 8, the crucial guestion is likelv to be whether the iuterfereiice (or lack of respect) end soimht to be achieved. ' Proportionality is a subiect of such importance as to reguire separate treatment. PROPORTIONALITY In de Freitas Vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and liousing [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is, proportionate : \...Whether :

(i) legislative obiective is sufficiently important to justify limiting a fundamental right:

(ii) measures designed to meet legislative objective are rationallv connected to it: and

(iii) the means used to impair the right or freedom are no more than is necessarv to accomplish objective." . W.P.(C) No.15239/2004: Page 89 of.157 This formulation has been widely cited and apphed. But counsel for the apphcants (with the support of Liberty, in a valuable written intervention) suggested that the 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], [60],[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 the judgment on proportionality - ' must always involve the .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 and 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 for eviction as well as impugned orders against the petitioners are not in accordance with law even on reasonable assessment of proportionality viz-a-viz the object of eviction of unauthorised occupants of the Public Premises Act, 1971. W:P.(C) No.15239/2004

¶133The petitioners have also complained that the respondents had discretion to peiinit the petitioners to continue to occupy the premises under' SR 317-B-25 of the It is contended that the respondents were bound to consider the matter on the relevant consideration of the right to shelter of the petitioners which was involved and 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.fO No.15239/20041 had earlier filed WP

(C) No.6551/2003/ submitting that the respondents had arbitrarily failed to consider his request for regularization despite having knowledge of special circumstances .of the case. Mr.B.L.Wali, learned counsel for this petitioner has placed the order which was passed on October/2003 in the earlier writ petition, which directed the 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 of the petitioner's representation.

¶135Despite these orders, the writ petitioner has contended, that there has, been no consideration in terms of this order tiU • W.P.(C) No.15239/2004 \ i.ii date. He lias, therefore, filed the writ petition being WP (C1 Nn.15239/2004 challenging the 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 recj;uests to the 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 Pubhc 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 deiiied to the petitioners. Learned counsels contend that the respondents' action so far as the present petitioners are concerned, is discriminatory and not sustainable.

138.' The respondents on the other hand place reliance on the pronouncement of the court in (1997) 1 SCC ^444 SMv Sag-'ar 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 Pool in Delhi) Rules, 1963. Reference is made to SR 317-B-25 thereof which empowers the Government to relax it r 317-B-25: The Government mayfor reasons to be recorded in writing-relax all or any of the provisions of the Rules in this Division in the case ofany officer or residence or class ofofficers or type ofresidences."

¶140It is undisputed before us that despite the propounded rehabilitation schemes stated before the Supreme Court and 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 Ratlmii Vs. Vardlcliau & Ors., the court was concerned with the public power of the Magistrate under Section 133 of the Code of Criminal Procedure.. The court observed that the 'public power of the. magistrate under the 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 guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a Pubhc dutT-to the W.p.(C) No.15239/2004 ,-oS the provisions of tliese rules and deserves to be consideied in extenso. The same reads as follows:-

¶143Given the estabhshed violation of the fimdamental rights of "the 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 of the Supreme Court in Municipal Council Ratlam vs. Vardiclian i (supra) would bind even the court.

¶144The pronouncement of the Supreme Court reported at

(1997) 1 see 444 entitled Sliiv Sagar Tiwari Union of India & Ors,, has been placed before this court by the respondents. In this case,, the court'was concerned with gross misuse , of discretionary power relating to allotment of accommodation to government employees. As against permissible discretionary quota of 10 per cent, such ahotments 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 ' members of the pubhc who are victims of the musance, and so he shall exercise it when the jurisdictional facts are present as here. "AMpower is a. tnist-tlmt we are accomitaMe for its exercise-\^aX., from the people, and for the people, aU springs, and ah must exist." Discretion becomes a duty when tile beiieficiary Mings borne the circumstances for its exercise. xxxx" aforenoticed 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 follows:- "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 absolutelv necessary" small number of out-of-turn allotments would be made for which purpose also Ministries/Departments would formulate clear rules and guidelines. During the course of hearing, on being desired to know as to why out-of-turn allotment is at all required, the submission advanced on behalf of the Union of India was that there are a f^w officers, who by virtue of duties discharged, have to be accommodated in government quarters to facilitate smooth functioning of the Government.xxx" \>o^

¶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 minimal 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 aUotted out of the discretionary quota which included accredited journalists and news cameraman, political parties, artistes, .social worker etc and other organizations as well. '• In SMv Saffar Tiwari vs. UOI (supra), it was held that the discretion conferred has to be exercised to advance the "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 SLicIi discretion was an exceDtion and deprecabed the above action of the Government making the same into a norm. Noteworthy, is the Government's stand in this case that vesting of some discretion in the matter of allotment of quarters 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 the arbitrariness in exercise of the discretion admittedly conferred on the respondents and the .failure to permit continuation of occupation of allotted accommodation in exceptionable circumstances and 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 Rmiimia. Dayaraiii Slmtty vs, Iiiternatioiml Aiijjoit Authority of India & Ors, as follows "10. ,xxx It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the 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 and 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." W.p.(Q No.15239/2004 Page.96ofJ57 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 I against the petitioners. The impugned action of the respondents against the petitioners and the orders assailed herein have to be tested on the above principles.

¶149A similar argument of the respondent that the aUottees 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 December, 2002 m 0,A. No.2378/2002 Sliri Tej Kislmii Vs. Union ofIndia. & Ors. The Tribunal had examined the petitioner's challenge to the respondent's action on the plea of discrimination premised on the conduct of the respondents in exercising discretion in favour of some similarly situated migrants and not in favour of the petitioners, and observed as follows "31. Respondents have not disputed Kashmir miifmiits who were identically and situated, on their recfuest have been' allowed retain the, accommodation till the normalcy back in State of T&K and till they are returned, ensured further the, safety of their persons and. reconstruction of their houses. these three Kashmir miurants, who are placed li. similar situation and with same conditions, i W.p.(C) No.15239/2004 Page 98 of 157. merits Ml their case. ^ a general wifUcatioii. Applicant who is also a Kashmir migrant having no place to Uve 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 reguirements of law, the respondents have to estabhsh that there has been an inteUigible differentia • and which has a reasonable nexus with object sought to be achieved. No grounds whatsoever have forthcohie 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 aiiv 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 premised on the pronouncement in SMv Sagar 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 rnore and the rules do not permit retention beyond specified period, is no iustification for rejecting the case of the applicant as in. I.L. Koul's case, even in an interim order passed, the . 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 and 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, of the petitioners to their respective Homes with safety of their persions and property. The aforesaid petition is still pending before the Apex Court. 33; I also find that the Government by the .letter dated 2.7.2002 in order to hold the retirees or retiral officials of Kashmir migrants working in Delhi, who could not get back to J&K due to prevailing situation, a. decision has been taken to allot about 100 MIG/LIG Flats and for wliicli PDA has been requested to formulate the . 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 micrrants who are in retention of aeneral pool accommodation on retirement, are to be evicted onlv after PDA formulate a -Housing Scheme to allot MIG/LIG flats to them. '

¶34In my considered view, the review undertaken bv 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 Koul's case supra. If a post-facto •approval can be accorded by CCA and approval by the Ministry for Urban Pevelopment denying the same to the applicant who is similarlv situated and is , equal 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, ,0A 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.

¶151Before this court respondents have not 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) and

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

¶152There is no dispute also to the fact that the orclT ~ ' in j.L.}(oUJ1/ P.I(.Handoo/ M.K'/(oul/ Tej Kisi1alJ1 (supra) hav.e attained finality and these persons continue to occupy Lhe allotted accommodation despite superannuation.

¶153The re~pondents are unable to point a single distincLiol1, let alone a relevant one, between the present petitioners fwd those in the decided cases. The petitioners are identically situated, yet have been denied equal treatment. Not a whiL of e:x;planation for not treating these petitioners as those in the cited precedents is suggested by the respondents. Even lhe 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 Shiv 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.

¶155In ground L ofWP(C) no.15329/2004, Shri P.K.Koul, the petitioner has stated that the respondents have allotted the 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 state that "employees working in the office of the . poltUcal parties, journalists, freedom fighters, artists etc." are (llso allotted general pool accommodation. This averment is not contested by the respondents who have only submitted that l.he WP.(C) NO.15239/2004 Page JOJ of J57 II 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 (fpara 33) Syed Klmlid Rizvi vs. U'OI. & Ors;-' (1996) 8 SCC .762 ^BI & Ors, vs, KasMimth Klier & Ors.; (198^) 4 SCC 179 Asliok Kr. Uppal and Ors. vs. State ofJ&K).

¶157'The orders in Tej Kisimn (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 and co-petitioners. These very findings squarely apply to the cases of the present petitioners.

¶158No explanation is rendered or reason given by respondents for the rejection of identical requests of some of jDetitioners or for not favourably considering the 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 and arbitrariness on the part of the respondents. The respondents have granted approval to similarly situated persons. Denial thereof to the equally placed petitioners certainly tantamounts to hostile discriminatipn against them which is impermissible and as observed above 'an antithesis to the equality clause'. The action of the respondents in not favourably considering the petitioners' representations; in cancelling the allotments of the Page'102 of 157 petitioners and •proceeding against tliem under tlie Public Premises Act 1971 as well as impugned orders are; therefore, not sustainable also being in violation of Articles 14 and 16 of the Constitution. ill 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 the affidavit placed before the Supreme Court in J,L,KoiiJ vs. State ofJammu & Kaslmiir (supra) and the letter dated 2"'' July, 2002 placed before the Central Administrative Tribunal in Tej Klslieii 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 & Aiir. Vs. The Chief Secretary, Govt. of NCT of Delhi & Ors., the Supreme Court observed that framing a pohcy is the domain of the Government. The framework of the policy and the working of such Government Policy has essentially to be done within the framework of the Constitution & the laws. As and when Government changes its policy decision, it is expected to give W.p.(C) No.15239/2004 . \\\ valid reasons thereof and act in larger interest of the entlfe community rather than a section. In para 66 of the judgment, the Supreme Court held that: /I........... It is a settled canon of admi,nistrative jurisprudence that state actioI!' must be supported by some valid reasons and should be upon due application of mind. In the ~ffidavits 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 stilte does not again even suggest a reasonable explanation or valid reason for the change from the rehabilitative policy to the decision to evict the petitioners and thereby threatening tllelTI with imminent homelessness

¶161The respondents would have the right to change its policy upon change in circumstances. (Ref: (1998) 1 SCR 112() State of Punjab & Drs. vs. Rain LllhlJiaya Begga &: Drs.). No such change is pointed out in the present cases. The decision to treat the petitioners as unauthorized occupants without their resettlenlent is clearly not premised a change of policy upon application of mind and therefore not sustainable. ResponSlhilitv oftile CeniTal Government

¶162It has been suggested by Mr. Jatan Singh, learned standing counsel for the Union of India that the Ccnlr~ 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.(C) NO.15239/2004 Page liM of }5 7 Ii - -'.~--,-­ \JI'1 • better employment opportunity and it would be the duty of the state to provide right to shelter to the disadvantaged in society. (Ref: Ahmedabad Municipal COlporalioll Vs. Nawab }(baIB GlIJah IOlal1 & Ors. (supra).

¶172The forcible removal of pavement and slum dwellers by the agencies ' of the 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 authori ties 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. (Hef: (1.985) 3 SCC 545 Olga Tellis v. BOillhay lUl uIlicip al COlporatiol1 & Drs.; (1997) 11 sec 121 AJlllledabilld jWu~.licipaJ Corporation Vs. Nawab /(ilan GuJab KilaJl & Ors.; jillANU/DE/9327/2006Jagdish vs. DDA; decision of this court dated 11 tl\ February, 2010 w.P. (C) No. 8904/2(}09 Sud.ama Singh & Drs.) Placing reliance on the obligaliol1s 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 ll1()de available before forcible eviction.

¶173An issue involving chakmas who were tribals [rom erstwhile East Pakistan (now Bangladesh) went to the Supreme Court in the case reported at (1996) 1 sec 7412 lVa.liou aj H Uil1ail Rigllts CIYlnlnission vs. State of Arunachal PradesJl Anr~ In this case, a public interest litigation was fiJed by National Human Rights Commission seeking WP.(C) No.15239/2004 Page IU9 of 157

¶163The submission on behalf of the petitioners on the other hand is tliat the duty and responsibihty of the state authorities vis-a-vis tliese groups of persons whicli stands recognized and admitted by the both the state and Central Government itself. As such, 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 handled 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 and 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 Tellis v. Bombay Muiiicipatl Corporation & Ors,; Alimedabad Municipal Corporation vs, Nawab Khan •Gulab Khan & Ors.; Jaffdish vs. DDA;' Sudama Singh & Ors.vs, Government 'of Delhi & Ann 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 Page 105 of157 • . r~ obligation, duty and responsibility of the respondents qua Lhe petitioners.

¶167It is an admitted fact that the 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 of the factual matrix is not being undertaken. However, the present cases set out instances of extreme trauma faced by the petitioners and their family members as well as the continued threat to their life and property. In one of the cases, the petitioner is a destitute lady who was working in the Ministry of Information & Broadcas ting of the Government of India used to give live performances and conducted programs on behalf of the Central Government in remote villages in the valley as well as on the electronic media malting her face known ' to the 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, the Song and Drama Division Office inSrinagar, 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 jn 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 Slate . with none to assist to her. 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 the militants. A price for his head was even announced. In one of the cases, despite the security cover, an attempt 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 intelligenceagencies in the state who were evacuated on emergency basis after their colleagues were shot dead. Several of the petitioners have lost close friends and 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 right to shelter is concerned, the Supr me Court has held that the state is deemed to be under an obligation to secure the same to its citizens [Ref: (1996) 2 sec 549 Cllal11eli Sillgll & Drs. vs. State of u.P. (supra), that it is imperative for the state to provide permanent housing accom.modation to the deprived.

¶170In 1995 (2) SLR 72 P.G. Gupta vs. State ofGujaratthe 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.1523912004 Page 1U7 of 157 II - r --­ easily accessible to the poor, and that such principles have beeJY?? expressly embodied in our Constitution to ensure socio­ economic democracy so that everyone 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:­ fill. As stated earlier, the right to residence and settlement is a fundamental right under Article 19(1)l!D. and it is a facet of inseparable meaningful rignt to life under Article 21. Food, shelter and clothing aro minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As i.ts part allotment of houses was adopted, as is enjoined by Arts. 38, 39 and 46, Preamble and 19(1)(eL facilities and 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.L ilnperative of tile State to provide permanellt housinq accommodation to tbe poor in the housing schemes undertaken by it or its instrumentalities withi n. th eir economic means so that they could make the payment of the price in easy instalments. and have permanent 'settlement and residence assured under Article 19(1)(e) and 21 of the Constitution. xxxxx" (Underlining supplied) 1 71. The Supreme Court has repeatedly reiterated the well settled position that the state has the constitutional duty to provide adequate facilities and opportunities to all includin q Lhe disad antaged 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 - --Ii - --­ \JI'1 • better employment opportunity and it would be the duty of the state to provide right to shelter to the disadvantaged in society. (Ref: Ahmedabad Municipal COlporalioll Vs. Nawab }(baIB GlIJah IOlal1 & Ors. (supra).

¶172The forcible removal of pavement and slum dwellers by the agencies ' of the 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 authori ties 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. (Hef: (1.985) 3 SCC 545 Olga Tellis v. BOillhay lUl uIlicip al COlporatiol1 & Drs.; (1997) 11 sec 121 AJlllledabilld jWu~.licipaJ Corporation Vs. Nawab /(ilan GuJab KilaJl & Ors.; jillANU/DE/9327/2006Jagdish vs. DDA; decision of this court dated 11 tl\ February, 2010 w.P. (C) No. 8904/2(}09 Sud.ama Singh & Drs.) Placing reliance on the obligaliol1s 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 ll1()de available before forcible eviction.

¶173An issue involving chakmas who were tribals [rom erstwhile East Pakistan (now Bangladesh) went to the Supreme Court in the case reported at (1996) 1 sec 7412 lVa.liou aj H Uil1ail Rigllts CIYlnlnission vs. State of Arunachal PradesJl Anr~ In this case, a public interest litigation was fiJed by National Human Rights Commission seeking WP.(C) No.15239/2004 Page IU9 of 157 liarl enforceiient of rights under Article of the Indiaii Constitution, of about 65,000 Chakma/Hajong tribals. It was alleged that these Chakinas had settled primarily in the State of Aruiiachal 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 apphcations of the Chakmas under the Citizenship Act and Rules thereunder were not being forwarded by the State Government for consideration to the Central Government 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 and of Constitution are concerned. So far as the constitutional and the statutory obhgations of the states to protect the rights of those who reside within the territory of that state are concerned, the 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. Every person . is entitled to equality before law and ec[ual protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is 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 bv one crroup of person to another group of persons; it is dutv bound to protect the (Sic) group from such assaults and if it fails to do so, it will fail to form its Constitutional as weU as statutorv obligations. Those giving such (Sic) would be liable to be dealt with in accordance with law. The . State Government must act impartiallv and carry out its ry^ lecral obligations to safeguard the life, health and well- ^ being of Chalanas residing in the State without being inhibited bv local politics. Besides, by refusing to forward their applications, the Chakmas 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 the 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 police force. The Union of India was directed to provide such additional force as is necessary to protect the lives and liberty of the Chakmas 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 and 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 the responsibility of the 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 \ 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 of the petitioners. The Central Governnient 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 and 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 taking 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 and legal rights which may require adjudication in appropriate proceedings has also been emphasised on several occasions. In (1982) 3 see 235 People's Uiiioii for Democratic Rights & Ors. Vs. Union ofIndia & Ors.,t]iQ 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 and 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 beiiig 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 individuals 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 the purpose of interdicting such violation and ensuring observance of the fundamental right bv the private individual who is transgressing the 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 the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularlv -when ' he belongs to weaker Section humanitv 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, the petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Administration and 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 Delhi 110 B.L. Wali & Ors. Vs. Union of India & Ors. has \N.P.(C) No.15239/2004 Page.]13 of 157 made observations on tliis very unacceptable stand of the Government of India in its affidavit which is under consideration. These obsei-^ations 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 and 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 , the responsibility to rehabilitate and provide relief to the citizens who suffer as a result of failure of state to protect their ' life and property is misconceived, incorrect and is denied. The answering respondent respectfullv submits that Law and Order as well as Relief and Rehabilitation are State Subiects. Ministry of Home Affairs has the responsibility of providincf Relief and Rehabilitation to refugees from West Pakistan (now Paldstan), East Pakistan (now Bangladesh), Sri Lanka, Tibet and to repatriated Indian Nationals. Therefore, present; writ petition qua answering respondent is not maintainalDle."

¶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.

¶22There is a vast para para phernelia of military and para militaiT 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-lmown undisputed fact. How can the Government of India wash its hands of the whole matter and 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 and Personal Liberty. Life cannot be bare' existence. Persons who are displaced and suffered injury to life J ( .andproperty as a result of terrorism cannot be left without remedy. It is the duty and resijonsibilitv of the State to protect its citizens. Citizens like petitioners are victiiTis of environment, which is not their own creation.' The State owes a responsibility to create an environment for' safe and dignified existence of the citizens." (Emphasis 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 liable to ensure that the State Government remits the amount. A large amount 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 of the 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 protect the same.- It is noteworthy that in the present writ petitions, the petitioners have not been deprived of their property and 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 relief to the IDPs from'Kashmir.

¶178It is imfortmiate that despite this adjudication, the stand whicli was rejected has again been taken in tliese proceedings, tliis 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. •180. The 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.

¶181It was observed in -(1978) 1 SCR 1 State ofRajastliaii & Ors. vs, UOIhy ChiefJustice 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 disposal of the Central Government for the benefits of the States without even the "conditional grants" mentioned above. Hence, the ,manner in which 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 and interpretation by the courts has affirmatively established a positive right to housing and shelter for every person as part of the fundamental right. Human Page 116of 157 "I[ • W.p.(C) Ho.15239/2004 Page ]J7ofl57 rights and fundamental rights are inalienable; 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 obhgation 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 weh 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 pubhc servants and can claim no right to continue in allotted public premises. It has been vehemently urged that on account of their superannuation, they ceased to be Government servants and 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 the petitioners or ensure restoration of their property in tlie 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 and also set out a detailed .scheme in the affidavit filed before the Supreme Court. In the instant case given the nature and extent of the 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 see 138 Master Marine Seiidces Pvt. Ltd. vs. Metcalfe and HodffMiisoii Pvt. Ltd. & Aiir., 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 W.P.(C) Ho.152391200^: Page 118of 157 13^ and contract of work of professional services to the 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 Hodgld Ltd, (supra) has no apphcation to the present case.

¶187In (2003) 6 SCC I Kapila Hingorani vs. State Bilmr & 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 .ofthe judgment dated 9"' of May, 2003 Supreme Court had held that the hability of the 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 Undertaldngs. 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 Aaolation of fundamental right arises. In this regard, the court noticed the emphasis given by it on this aspect including the judgments reported at [1987J1SCR641 Rural Lltiffatibii Eiititleiiieiit Keiidra and Ors, v. State of Uttai and Ors. ; 1980CriLJ1075 Municipal Council Ratlam i/s, Vardlclmn & Ors.; [W96J3SCR80 BX.. Wadliera k of India ;

(1995)4SCC507 State of H.P, f. H.P. Recoffiiised & Aided Schools Managiiiff Coiiiiiiittees Ors.; AIR 1996 SC 2426 PascMiii Banffa R Saimiti '& Ors. ks. State of WestBengal & Aiir.] In para 65 of (2003) SCC 1 entitled Hingorani Vs. State of Bihar & ors, the 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 •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 paving the Imams as thev are being paid in the State of Punjab. It was also urged that the number of mosgues is so large that it would entail-heaw expenditure which the Boards of different States would not be able to bear. We. do not find anv correlation between two. Financial difficulties, of the institution cannot fundamental right of a citizen. If the Boards have been entrusted with the responsibilitv of supervising and administering the Wakf then, it is their dutv to harness resources to pav those persons who perform the most important dutv namelv of leading communitv praver in a mosgue the verv purpose for which is created."

¶189On, the same issue in (1995) 4 SCC 507 State vs. H.P. State Recognised & Aided Schools Committees, the Supreme Court observed that:- "16. The constitutional mandate to the State, as upheld by this Court in Unni ICrishnan case - to provide free education to the children up to the age of fourteen - cannot be permitted to be circumvented on the groiuid-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 petition filed by the Bihar Government, seeldng a review of the earlier order dated 9"^ May, 2003 are Page 120of 157 also topical on tins objection of the respondents and need 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 the matter from the human rights aspect as well as the fundamental rights of the 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 directions dated 9"' May, 2003 and while rejecting the review petition filed, by' the respondents.observed as follows "24. This Court further observed that the State has a constitutional obligation and acts in a fiduciary capacity vis-a-vis performance of its constitutional duties and functions by public sector undertaMnqs as it has constitutional obligations in relation thereto." (Underlining supphed) So far as protection of such human rights and fundamental rights, and remedy for violation thereof, is W.P.{Q No.15239/2004 Page 12} of]57 "ir"" concerned, the court issued directions to tlie state government to pay the salaries of employees in the pubhc sector undertaldngs in the following terms "22 The Government compaiiies/public sector undertaldngs being 'States' would be constitutionally 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 inay 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 ricrhts of the citizen of life and libertv, the State has also an additional dutv to see that the ricrhts of emplovees 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 of the emplovees is fullv safeguarded. The Government of the State of Bihar, thus, had a constitutional obligation to protect life and libertv of emplovees of Government owned companies/corporations who are the citizens of India. It had an additional liabilitv having regard to its right of extensive supervision over the affairs of the.companv." XXX

¶37We make it clear that we have not issued aforementioned directions to the States of Bihar and Tharkhand oh the premise that they are bound to pav salaries of the emplovees of the pubhc sector undertakings but on the ground that the emplovees have a Iimiiaii rmlit as also a fujidaiiieiital rmiit under Article 21 which the States are protect. The directions, which have been issued by this Court on 9^^^ May, 2003 as also which are being issued herein, are in furtherance of human and fundamental rights of the emplovees concerned and not bv wav of an enforcement of their legal right to arrears of salaries. The amount of salary payable to tlie 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 supphed) W.P.(C) No.15239/2004 •

¶191The principle reiterated 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 Metcalfe (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. Koiil (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 Kislmii (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 ' W.P.(C) No.15239/2004 ••ii burden of ensuring shelter to these IDPs nor the extent of the available ..resource. Mere announcement of schemes and allocation of large volume of funds by the Government as a reaction to court directions upon occurrence of events in the country by themselves are insufficient and may prove to be meaningless. 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 and 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 and disadvantaged citizens are forcibly evicted from their shelters which are then destroyed. And then, the long arm of the state, gives a hyiDer technical interpretation to legal definitions, takes the shield of statutory provisions and implements what is touted as the "rule 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 and 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 dem^olitions of huge illegal buildings and even interdicting court orders. Interestingly such legislations benefit , W.P.(C) No.15239/2004. yo such law breakers who do not even need rehabilitation or state support, who are certainly not disadvantaged or displaced. The Delhi Laws (Special. Provisions) Act 2006 was enacted by the Parhament 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 pubhc safety, pubhc interest, environment concerns, enforcement of legal provisions or financial impact and loss is displayed.

¶196The judgment reported at 2010 (III) AD (Delhi) 513 Haiijaii Kalymi Smiiiti Regd. & Ors, vs. Government of .NCT of Delhi makes a reference to Government pohcy 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.

¶197Yet the respondents urge "financial stringency" so far as the present petitioners are concerned. The essence of the policy of rehabilitation and 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 sanie. II—' 19-8. Apart from a vague suggestion of insufficiency of funds, tlie 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" and "lacking insensltivity" by this court in PJC Hajidoo vs. Estate Officer (supra) and already stand rejected "in B.L. Wall & Ors. vs. UOI (supra). The impugned action and the submissions manifests huge barriers which a displaced citizen of the country faces in accessing even basic and guaranteed constitutional rights despite admitted responsibility of the state for the breaches and violations of the constitutional protections suffered by them. Aiajpropriate remedy, role ofthe 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 of the fundamental right to life as well as threat thereto. The Supreme Court has repeatedly judicially awarded compensation in cases of established breach of public duty to protect the fundamental rights and 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 Ai-ticle 21, which guarantees the right to life and liberty wih be denuded of its i^irp-iifinai-it content if the power of this Court were lirpitfif] to passing orders of release from illegal detention. One of the teUing ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetaiy compensation. Administrative sele(sic)sis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and 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, the 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 @ Lallta Beliura Vs, State of Orissa had observed as follows "33. The pubhc law proceedings sei-^e 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 bv High Courts, for estabhshed iTifrinaement of the indefeasible right guaranteed under Article of the Constitution is a remedy available in public law and is based-on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and . preserve their rights. Therefore, when court moulds rehef bv granting "compensation" in Page ]27 of 157 proceedings under Article or 226—of—ttie Constitution seekincr enforrpn^f^T^t or protection of fundamental ricrhts. it does so under the public law by way of penalising the .wrongdoer and fixing the habilitv for the pubhc wrong on the State which has failed in its pubhc duty to protect the fundamental rights of the citizen. The payment Of compensation m such cases is not to be understood, as it is generally understood in a civil action for damages under the priyate law but in the broader sense of providing rehef by an order of making ^monetary amends' under the pubhc law for the wrong done due to breach of pubhc duty of not protecting the -fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for breach of its pubhc law duty and is independent of claim compensation under the private 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• This Comt and Hmli Couits, beiim the protectors of the civil liberties of the t citizeUj have not only the power and jiirisdlctioii 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 21 of the Constitution ofIndia are established have been flagrantly infringed bv calling the State to repair the 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 civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article ^ or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case; is possible." (Emphasis supplied)

¶202In (1988) 4 SCC Slieela Barse vs. UOI & Ors,, the court was concerned with gross violations of the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints. While commenting on W.p.(C) No.15239/2004 ' the nature of proceedings in pubhc interest htigation and t issue of protection and enforcement of their riglits, the couit made the following, observations with regard to the duty of the court "6 More importantly the Court is not merely a passive, disinterested umpire or onlooker, but has a more dvnamic 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 established, the duty of the court does not stop at giving a mere declaration. In 1997 (1) see 416 D.K. Basu 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.

¶204Tinlike the several cases noted hereinabove including cases of Rudul Shah, DJC Basu, Leelawati Bebura, Sbeela Barse (supra) etc. in the instant case, 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 and pogroms. This is in clear abdication of the constitutional responsibility of the State. Responsibility for the violence in the State is not the question Page 129 of J57 before this court. The issue before tliis court is restricted to the question of the rights of the petitioner.

¶205So far as tlie approach of a court on such issues, is concerned, in para 13 of the pronouncement reported at (2003) 4 see 601 State ofMaharashtra, fs. Dr D, PrafuJ B. Desai, tlie Supreme Court stated that one needs to set out the 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. Vardichaii & Ors., the court observed that:- "15. The nature of the judicial process is not Dur'elv adiudicatorv nor is it functionally tliat of an umpire onlv. Affirmative action to make the remedv effective is of tlie essence of the ricrht which otherwise becomes sterile."

¶207In para 11 of (1997) 6 SCC 241 VishaMia & Ors. vs. State of Rajastban & Ors., the Supreme. Court held that the obligation of the Supreme Court under Article of the 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 of the Independence of the Judiciary in the L/v.WASIA 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 the independence and effective functioning .of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are: "Objectives of the Judiciary:

¶10The 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 and the attainment of human rights: and , ,

(c) to administer the law impartially among persons and between persohs and the State." In Clause 10(a) of the objectives of the Chapter on 'Objectives of the Judiciary', it has been clearly stipulated that the obiectives and functions of the judiciary include ensurincr that all persons are able to live securely under the rule of law. 208': So far as the manner in which relief 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 Wl^fCJ No. 172/1997 eiiXitlQd Smt. Kajiila Devi vs. 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 Page I3J of I5'7 technicality since technicality cannot and ought not to outwei 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 Kaiala. Devi's case (supra)-OiS follows "1, 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 of the State is to i-nRintaiu peace and harmonv amongst its citizens. If for some reason, it is unable to put the lid on simmering discontent then it is its duty to protect innocent citizens from harm.. If it fails in this duty, then it must compensate the citizens who have been wronged." Rehance was placed on the pronouncement in SC 1960 Nilabati Beliara @ Lalita Behura Vs. State Orissa wherein it had been also observed that while directing monetary compensation for established infringement of the fundamental rights, the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act 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. '20'5 R. Gandhi & Ors. UOI & Ann, the Madras High court was concerned with the inability of the State to enforce public order putting in jeopardy the life and Page J32 of 157 liberty, home and hearth of the victims involved. The petition sought redressal for the trials and tribulations undergone by the minority Sikh community of Coimbatore in Tamil Nadu and a few others in the wake of the 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 rehance on obsei-vations of the Supreme Court in the Olffa Tellis case, and held as follows "21. The maintenance of law and order is the piimaTv duty of the State and under our Constitution it is a State subject and tops the State List. No Government worth name can abdicate this function and put the life and liberty, the hearth and home of the citizens in jeopardy. Article 38 of the Constitution enjoins on the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Under Article i£(a) and (g) of the Constitution, any citizen of this country is entitled to reside and settle in any part of the Territoiy of India and to practice any profession or to cany on 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 the 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 shaU 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 of the Sikh Community form an integral part of the Indian societ^^; 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 of the Sikhs and a few members of other communities have been Page 133 of J57 flagrantly infringed by the inaction of the 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 and a promise of unreality', bv the failure of the State to protect those rights. These unfortunate victims of arson and violence are, therefore, entitled to seek reasoimble comueiisatioii from the State of Tamil Nadu, which has failed in its dutv to protect their Constitutional and lecral rights.' 22-It is a matter of regret that the State of Tamil Nadu, which has failed to carrv out its elementary function of enforcing public order should treat the victims of its own lapses as beggars with hnwi.q fnr alms. It is not charitv that is expected of the Government, but legal recompense for wrongs done to them, for injuries inflicted on them on account of the break-down of the Governmental machinerv. The second respondent— State of Tamil Nadu cminot, therefore, shirk its resnonsiMlitv ' for these unfortunate hsLweiiinus or try to escwe from its oMination as a social' welfare State to make suitable amends." (underlining supplied) 211, Examining 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 Bliajan Kaiir vs. Delhi Admn. has observed as follows:- "(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 aU 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 , I hortatory effect in enforcing Article 21 of the 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, in 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 and worth of an individual is protected and preserved and is not jeopardised or endangered. If it is not able to do all that then it cannot escape the liabilitv to pav adequate compensation to the fFimilv 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 the 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 iUegal 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 judgment reported at 120 .(2005) DLT 156 Mamjit Siiigli Sawhiiey vs, UOI & Ors., placing reliance on the principles laid down in the aforenoticed pronouncements, it had been observed as follows "20. The award of monetary rehef 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 dutv of not protecting the fundamental rights of the citizens. This computation is not guided by any strict arithmetical formula and it has Page J35 of]57 to be borne in mind that money cannot remove the trauma and the battering suffered by a victim."

¶213The observations of the Supreme Court in AIR 1981 SC 487 AjayHasia fs'. Khalid Mujib. Sebrawardi& Ors. are also classical and topical on this aspect and shed hght on the issue under consideration as follows "Where constitutional fundamentals vital to the maintenance of human ricrhts are at stake, functional reahsm and not facial cosmetics must be the diagnostic, tool, for constitutional law must seek the substance and not the form..... It must be remembered that the 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 the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The Courts should be ariyious to enlarge the scope and width of the Fundamental Rights bv brinaing within their sweep everv authority which is an instrumentality or agency nf thR Covernment or through the corporate personality of which the Government is acting, so as to subject the Government in all its mwiad activities, whether through natural persons or through corporate entities, to the basic obligations of the Fundamental Rights."

¶214It is a weU settled principle of interpretation of the constitution as well as statutes that the same 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 HMfforani State of Bihar (para 60 at page 30). The imperative necessity to take recourse to take such interpretative changes bjA the courts has resulted in the expansion to the right to life ensured under Article 21 of the Constitution of India. The court rehed on earher judgments and reiterated that the first duty of the court is to do justice. In para 62, the Page 136 of J57 Supreme Court also declared that the right to development m the developing country is itself a human ricrht.

¶215The duty to ensure constitutional rights rests not only on the Supreme Court or the High Court in exercise of jurisdiction under Article 32 and 226 but would be the mandate of every court and its essential judicial function. The claims in the present cases have to be adjudicated on these principles.

¶216In P.K, Koul (supra), a specific orderwas passed on 15'" October, 2003 in W.P.(C) No. 6.551/2003 by this court to decide the petitioner's representation dated 16'^January, 2003 seeking jDermission 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 and 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 and residing with him in the 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 Page 137of 157 insufficient to even bear the expense of food for her famil; members. The writ petitioner has also placed rehance on SR-

3.17 B-25 of the 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 viola.tion of their right to life in their home state. This situation has come to be despite the 1984 riots, which mark an unfortunate watershed in Indian. history, when examined from any aspect. The threatened breach ofprimarily of their right to shelter, a basic human right and an integral part of the guarantee under Article 21 of the Constitution of India, even at their displaced location at the hands of the respondents has compelled 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 established by law. Such infraction of their rights is purely on account of the inability of the respondents to discharge their constitutional obligation; 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 and 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 obhgations to ensure the right of every person to be free from, want of basic essentials. , %

¶220The above discussion would show that there cannot be any dispute about 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 Courtthat in case ofviolation of the right to life and personal liberty, the court is not helpless to grant rehef and should be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty. {ReL: (WMl) 1 SCC &27f AIR 1981 SC 928 Klmtri & Ors, Vs. State ofBihar & Ors.).

¶222l\\ '(1991) 4 see 584 ; AIR 1992 SC 248 Carbide Corporation 1^. Union ofIndia, it was stated by the ChiefJustice Ranganath Misra that "we have to develop our own law and if we find that it is necessary to construct a new principle of hability 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 liability.; ". The observations of Venkatachahah, J (as his Lordship then was) in this case who had rendered the leading judgment in the Bhopal Gas case with regard to the couits power to grant relief are the same. These principles have been reiterated in AIR 1993 SC 1960 SmL Nilabati Beliera alias Lalita Behera Vs. State of Orissa & Ors.

¶223Thejurisdiction 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 ofthe 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.

¶224In (1987) 1 SCC 395 M.C. MeMa rs, UOI & Ors., the court expanded on the jurisdiction and obligation of the court to mould a new rehef in the fohowing terms "3 It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also la^/s a constitutional obhcration on this Court to protect the fundamental rights of the people and for that purpose this Court has ah incidental and ancillary powers including the power to forcre new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new. methods and 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 meaiiing."

¶225The Supreme Court has categorically held m ^ 7 300 JcP' Ravidas & Ors, vs. Navyuvak Haiijaii Uttbapaii MuJtl Unit Industrial Coop, SocietyLtd. & 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 weh settled that it is not only the right of the litigants, but also the duty of the court to not only enforce fundamental rights but also award compensation against the state for violation of those rights. In other words, 'the power of the court is not only injunctive in ambit, that is preventing the infringement of a fundamental right but it is also remedial in scope and provides the relief against the breach of the fundamental right already committed.' {AIR 1989 Mad. 205 R. Gandhi vs. UOI & Aiir. (supra) Til. On the aspect of appropriate compensation for estabhshed 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 ofDelhi rs, Sbri Nasiruddin (Father of deceased Molid. Yasin) to the following effect "21. It is true that perfect compensation 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 eaual in value, . although not alike in land. Object of providing compensation is to place claimant as far as possible in same position financially, as he was before accident. .• Compensation awarded should be iimdeauate and should neither , unfeasoimMe, excessive, nor deficient There Page J4J of 157 be no exact uniform rule for measuriim

¶228Ill the present cases, the petitioners have complained of grievous violence to their lives and properties and 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 petitioners are now threatened with 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 328 S.M.D, Kiraii Pasba vs. Government ofA.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 21 is threatened as contradistinguished from the right when it is infringed. In para 21 at page 342 of the report, the court held as foUows "21. In the language of Kelsen the right of an individual is either a mere reflex right-the reflex of legal obligation existing 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 obligation existing toward 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-leaal obligation of the rest, of the society^ inrlnriinrr the State, and it is the appellant's legal power bestowed upqti him to bring about bv a legal action the Rnfnrcement of fulfillment of that obligation existing towards him. Denial of the legal action would, therefore, 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 have been reiterated by the Apex Court in (2003) 6 SCC 1 Kapila HMfforani rs. State ofBihar,

¶230These judicial concepts have evolved from conservative and traditional judicial systems and concepts. Legal interpretation as well as judicial pronouncements lean towards providing for social needs of society and societal developments. In this background, the objection of the respondents that the petitioners are disentitled to rehefis devoid oflegal 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 harm caused by the third party. It remains a fact that the State's inability to secure the life and property of the petitioners compeUed 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 I • ' • • displaced persons with and ensure safe access to essential food and potable water, basic shelter and housing, appropriate clothing, essential medical services and sanitation etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate fully and equally in public affairs at all levels and are entitled to equal access to public services in the part of the country where they are resettled. Principle 29 mandates when recoveiy of the property and possessions which the IDPs left behind or were dispossessed of upon their displacement is not possible, they are entitled to be provided appropriate compensation or another form, of 'iust reparation'.

¶233Reference can usefully be made to the observations of the Constitutional Court of South Africa in (2001) 3 LRC 209 Goveriimeiit 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 Sliantistar (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 W.P.iQ No.15239/2004 \\f> elements, but from the larger threats and dangers which have been created by mankind. Even if the respondents were in a position to provide shelter in the home state of the petitioneis as envisaged in the affidavit filed in/.X. Koul (supra), in order •for such right to be meaningfully enjoyed, it has to be ensured that there is peace within the community and the state; that its law enforcement agencies are able to ensure that constitutional guarantees and protections of the citizens aie 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 could protect 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 vaUey.

¶236The Supreme Court has also prescribed different rehefs in cases involving breaches of constitutional rights.. In Municipal Council Ratlam Vs, Vardiclian & 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 of the right involved.

¶237In National Human RiffMs Commission vs. State of Aruiiaclial Pradesh Anr. (supra), the court had directed the state to ensure that the life and personal liberty of each and every Chakma residing within the Government of Arunachal Pradesh, the state was protected and any attempt to forcibly W:P.(C) No.15239/2004 Page 145 of J57 evict or drive them out was repelled in view of the violations and threat to their lives. As noticed above, in para 13 of Nilabati Belmra @LaJlta Belmra Vs. State of Orissa(supm), the court had moulded rehef 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 obhgation to grant relief (para 37). In 1997 (1) see 416 D.K. Basu State of West Beiiffal the Supreme Court emphasized a justice oriented approach which was responsive to the needs ofthe society. The court had also granted monetary compensation for violations in this case. Denial of wages was the consideration and rehef moulded appropriately in Kapila Hinfforani Vs. State of Bibar (supra).

¶238Compensation to these petitioners which could be considered appropriate and perfect thus would have to include comprehensive resettlement such as economic rehabilitation and affordable housing schemes which have been clearly envisaged by the respondents. Several other measures towards meaningful rehabilitation essential in terms of the Guiding Principles have not even entered 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.

¶239The issues raised in the present case have arisen before in the context of persons facing displacement on account of development and infrastructure projects especially major river valley projects. In (2000) 10 SCC 664 : AIR 2000 SC 3751 Nm-^mada Baclmo Aiidolan vs. Union of India the Supreme, 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 see report the court held that if the displaced persons were in a better position to lead a decent life enjoying better amenities and facilities and earn 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 Narmada Bacbao Andolan vs. UOI & Ors.

¶240In para 60 (pg 394) of (2004) 9 SCC 362 N.D. Jayal & Anr. Vs. UOI & Ors., Rajeiidra 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 aU as to why forcibly displaced persons as petitioners should not be similarly treated given violations of their constitutional rights.

¶241Before 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 their constitutional obhgation 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 rehabihtation is not possible then the respondents have no option but to ensure nieaningful and reasonable resettlement in the above terms. To mitigate effects of the displacement from home, hearth and property, the respondents are thus legally obhged 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" and 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 and parameters of the state responsibility.

¶243Mr. Jatan Singh,and Mr. R.V. Sinha, learned counsel for tjie 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 and alternate arrangements with this unavoidable event in mind.

¶244The further contention is that, the government ensures adequate financial security to retiring employees, who have the benefit of pension as well as other retiral benefits which run Page MS of 157 into several lakhs of rupees including gratuity/provident fund etc. and nothing further can be expected of the respondents.

¶245Pension, gratuity and other retiral benefits are not unique to the petitioners, but are available to every person who 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 discharge 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 obligation 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 the development which would meet the guarantee of shelter and ensure a life of dignity to the person concerned, in para 9 of the pronouncement reported at {1990) see 520 SImntistar Builders Vs. Narayaii KliimalaJ Totame & Ors., the Supreme Court had observed as folio WS:- "9. Basic needs of man have traditipnally 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, the right to decent environment and 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 everv aspect - phvsical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen rniist be ensured of hvina in a well-built colnfortable house but a reasonable home particularly for people iii ludia 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 the principles laid down in the aforenoticed pronounceln.ents of the courts, the international conventions, the standards in the guiding principles for IDPs and ensure the rights of the petitioners.

¶248The 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 of the petitioners rights. The petitioners seek directions to the 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 l/l/.P.CQ No.15239/2004 Page 150of 157 its citizens and providing them permanent residences. In similar cases, the Supreme Court and this court lias 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 soiiie of IDPs to continue with their occupation of the ahotted quarters after retirement. There is clearly no justification at aU for not permitting the petitioners to do so in the given facts and circumstances.

¶250There is yet another aspect of the matter. The petitioners before this court include Smt. Phoola Raina, a widow of the 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 respondent's case that she is a person of means 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 the 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 vaUey. It is also not averred that this petitioner owns any property into which she could shift. It is not even suggested 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 hei 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 aUotments 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 mandate 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 time that the 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 and reasonable arrangements.

¶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 tile 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, the action of the respondents in treating petitioners as unauthorised occupants and proceeding against them under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was completely misdirected and unwarranted.

¶254It is evident that the learned appellate courts in the appeals also adopted a hyper technical approach ignoring the 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 of the 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.1523912004 situated displaced persons. The learned courts paid no attention to declared policy of resettlement and rehabilitation of Government or the constitutional rights and guarantees which all courts are bound to enforce.

¶255The action of the respondents in denying favourable consideration of the request to continue to occupy the quarters suffers 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 of the constitutional guarantees and basic human rights of the petitioners, and do not show application of mind to relevant material or consideration thereof. The impugned decision to cancel the allotments, the action under the Public Premises Act;; and the impugned orders of Estate Officer and appellate orders are constitutionally and legally not sustainable.

¶256. The special leave petition in/.Z Koul (supra) was filed in 1997 and the rehabilitation scheme was placed before the court for the first time in 2006 which proceedings culminated in the judgment dated 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 Kisimii vs, UOI. In all these cases by final adjudications, the petitioners have, been permitted to continue with occupation of the quarter W.P.(C) No.15239/2004 _ Page 154of 157 \r concerned. Despite the proceedings and judgments in the 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 maldng, only the litigation costs of the present cases are being awarded. •

¶259It is essential to make it clear that it is oply 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 pubhc 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 the present case or similar Page 155 of !57 circumstances 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 the allotment of the 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 and reasonably rehabihtate and resettle the petitioners, making provisions for appropriate accommodations for them.

(iii) Till such time, the respondents are able to provide alternative accommodation to the petitioner and 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 of the petitioners shall be entitled to costs of Rs.25,000/- which shaU be paid within a period of six weeks from the date of passing the order. These writ petitions are allowed in the above terms. Page 156of 157 •In view of the orders passed in the respective• writ petitions, these applications do not require further adjudication and are disposed of accordingly. mber^t aa/kr ITA Page 157of 157

*IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. 8601/2008 & CM NO. 16501/2008 VIJAY MAM UOI AND ANR. Date of decision : November 30, 2010 ... Petitioner Through; Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shukla & Mr. Atul Sharma, Advocates I VERSUS ....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. CORAM: HON'BLE MS. JUSTICE GITA MITTAL 1. Whether reporters of local papers may be allowed to see the