W.P.(C)/2869/2008 of S.N.KAUL Vs UOI & ORS.

*IN THEHIGHCOURTOF DELHIAT NEWDELHI

Writ Petition(Civil) No.2869/2008and CM No. 5540/2008

Date of decision: November

30, 2010

S.N. KAUL... Petitioner

Through:Mr. R.K. Handoo with Mr. YoginderHandoo and Mr. Manish Shukla & Mr. Atul Sharma,Advocates

UOI AND ANR.

VERSUS

....Respondents

Through:Mr. R. V. Sinha with Mr. A.S. Singh,

Advocates.

CORAM:HON'BLE MS. JUSTICE GITA MITTAL

1. Whetherreporters of local papers may be allowed to see theJudgment?Judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in theDigest?Digest?

GITA MITTAL.T

For orders see W.P.(C) No. 15239/2004.

November 30, 2010

rXXITA MITK^L)JUDGE

Signature Not Verified

Digitally Signed By:AMULYACertify that the digital file andphysical file have been compared andthe digital data is as per the physicalfile and no page is missing.

*IN. THEHIGHCOURTOF DELHIAT NEWDELHI+W.P,(C)No.15239/2004& CM

Date of decision:November;^^,

P.K. KOUL

...PetitionerThrough:Mr. B. L. Wah, Advocate

VERSUS

ESTATE OFFICER AND ANR.

....Respondents

Through;Mr. Jatan Smgh with Mr.Abliishek Aggarwal and Ms. MeghaBharara. 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.''....RespondentsThrough:Mr. Jatan Singh with Mr.Abhishek Aggarwal,andMs. MeghaBharara, Advocates.

AND

(3) Writ Petition(Civil) No. 15245/04and CM No. 11026/2004

A.K. MUKOO

...Petitioner

Through:Mr. B.L. Wali, Advocate

VERSUS

ESiyiTE OFFICERAND ORS.

ORS.....RespondentsThrough:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

W.P.(C) No.15239/2004

Page 1of 157

• •I• • "'

(4) Writ Petition

(Civil) No. 15246/2004

and CM No. 11029/2004

M.L.DULLU

... Petitioner

Througli:Mr. B.L. Walt Advocate

VERSUS•

ESTATE OFFICER AND ANR.

....Respondents

Tlirougli:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

A.K. TRISAL

Through:Advocate

... Petitioner

Mr. Manoj V. George,

VERSUS

ESTATE OFFICER AND ANR.

....Respondents

Through:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

(6) Writ Petition(Civil) No.15241/2004and CM No. 11016/2004

T.S. BALI

Through:

... Petitioner

Mr. B. L. Wah, Advocate

VERSUS

ESWE OFFICERAND ANR.

....Respondents

Through:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

(7) Writ Petition

(Civil) No. 15264/2004

P.N. ICACHROO,

... Petitioner

Through:Mr. B. L. Walt Advocate

W.P.(C) Ho.15239/2004

Page 2 of 157

VERSUS

.ESTATE OFFICER AND ANR.

ANR.....RespondentsThrough:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

AND

(8) Writ Petition

(Civil) No. 15279/2004No. 11050/2004

C.L.MISRI

... Petitioner

Through:Mr. B. L. Wah, Advocate

VERSUS

ESTATE OFFICER AND ANR. ,•....RespondentsThrough:Mr. Jatan Singh with Mr.•Abhishek Aggarwal and Ms. MeghaBharara, Advocates.•

AND

Writ Petition(Civil) No. No. .1569S/2004CM'No. 11044/2004

(Civil) No. No. .1569S/2004

PITOOLA RAINA(Wife of late Sii.T.N.Raina)

...PetitionerThrough:Mr. B. L. Wali,Advocate

VERSUS

ESTATE OFFICER AND ANR.

....RespondentsThrough;Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

AND

(10) Wi:it Petition

(Civil) No. 1779/2004CM No.'1557/2006

,TEJKISHAN

...Petitioner

Through:Mr. Samrat K. Nigam, Advocate

VERSUS.

UOI St ANR..•Through:

....RespondentsMr. Ravinder Agarwal, Advocate

W.P.(C) No.15239/200A-

Page 3.of 157

AND

it Petition(Civil) No.NO. 2379/2006

S.N.BHAT

... PetitionerMr. Manoj V. George, Advocate'

Through:

VERSUS

UOI AND ANR.

....Respondents

Through:Mr. Jatan Singh with Mr. Abhishek. Aggarwal and Ms. Megha Bharara, Advocates.

AND

(12) Writ Petition

(Civil) No. 56S1/2007'

CM No,. 10547/2007

M.K. TIKOO

... Petitioner

Througli:Mr. R.K. Handoo witli Mr.Yoginder TIandoo and Mr. Manish Shulda &Mr. Atul Sharma, Advocates

UOI AND ANR.

VERSUS

....Respondents

Tlirough:Mr. R. V. Sinha with Mr., A.S.Singh, Advocates.

AND

(13) Writ Petition(Civil) No. No. 7057/2007and CM No. 13421/2004

(Civil) No. No. 7057/2007

C.L. FAINA

... Petitioner

Through:Mr. Thalmr Summit, Advocate

VERSUS

UOI AND ANR.

....Respondents

Through:Mr. R. V. Sinha with Mr. A.S.Singh, Advocates.

W.p.(C) No.15239/2004

AND

Writ Petition(Civil) No.23569/20)08and CM No. 5540/2008

S.N. ICAUL

... Petitioner

Through:Mr. R.K. Hancloo with Mr.Yogiiider Handoo and Mr. ManishShukla & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR.

....Respondents

Through:Mr. R. V. Sinha with Mr. A.S.Singh, Advocates.

AND

(15) Writ Petition(Civil) No. 8599/2008and CM No. 16497/2008

KANTIAYANI

GANJOO

... Petitioner

Througli:-Mr. R.K. ITandoo witli Mr.Yoginder Handoo and Mr. ManishSliulda & Mr. Atul Sliarma, Advocates

UOI AND ANR.

VERSUS

....Respondents

Tlirough:Mr. R. V. Sinha with Mr. A.S.Singh,Advocates.

Mr. R. V. Sinha with Mr. A.S.

IT.L. KOUL

AND

Writ Petition(Civil) No.and CM No. 16499/2008

... Petitioner

Tlirough:Mr. R.K. ITandoo with Mr.Yoginder Handoo and Mr. ManishShukla & Mr. Atul Sharma, Advocates

UOI AND ANR.

VERSUS

....RespondentsThrough:Mr. R. V. Sinha with Mr. A.S.Singh, Advocates.

W.P.(C) No.15239/2004

Page 5 of 157

VIJAY MAM

& CM NO., 16501/200S

... PetitionerThrough:Mr. R.K. Handoo with Mr.Yoginder Handoo and Mr. ManishShukla .& Mr. Atul Sharma, Advocates

UOI AND ANR.

VERSUS

....RespondentsThrough:Mr. R. V. Sinha with Mr. A.S.Singh, Advocates.

P.L. ICAUL

UOI AND ANR.

PetitionerThrough:Mr. Samrat K. Nigam,AdvocateVERSUS

....RespondentsThrough:Mr. R. V. Sinha with Mr. A.S.Singh, Advocates.

AND

Y.S. JAMWAL

UOI AND ANR.

... PetitionerTlirough:Mr. Naresli Thanai/AdvocateVERSUS

RespondentsThrough:Mr. R. V. Sinha with Mr. A.S.Singh, Advocates.

(20) Writ Petition(Civil) No. 11377/2009

M.K. BAZAZ

... Petitioner

Tlirough:Mr. R.K. Handoo with Mr.Yoginder Handoo and Mr. ManishShulda & Mr. Atul Sharma, AdvocaLes

\N.P.{Q No.15239/2004

UOI AND ANR.

.VERSUS

....Respondents

Through:• Mr. Jatan Smgh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

(21) Writ Petition(Civil) No. 11548/2009

B.L. TAICAROO

... Petitioner

Through:Mr. Manoj V. George,Advocate

UOI AND ANR.

VERSUS

....Respondents

Through:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBliarara,Advocates.

MOTILAL I<AUL

& CM NO. 11242/2009

... Petitioner

Through:Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER, DIRECTORATENIRMANBHAWAN

OF ESTATES,

....RespondentsThrough;Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. Megha. Bharara, Advocates.

B.L. RAINA

(23) .Wri

& CM NO. 11244/2009

... Petitioner

Through:Mr. B. L. Wali, Advocate

ESTATE OFFICER

VERSUS

....Respondents

Through:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

\N.P.{C) No.15239/2004

,& C.Mo.No.11246/2009

A.K. GIGOO... Petitioner

Tln^ougli:Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER....Respondents

Through:Mr. Jatan Singh with Mr.Abhishek Aggarwal and Ms. MeghaBharara, Advocates.

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reportersof localpapersmay be allowed

to seetheJudgment?

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

3. Whether the judgment should be reported in theDigest?Digest?

GITA MITTAL, I'

1.The instant case is testimony to events which lead to anunprecedentedethniccleansingof minoritycommunityfromthe Kashmir valley on accountof the inabilityof the State toprotect them and their property from violence,who, as resultwererenderedhomeless.Suchturmoilwasfacedbytheminoritycoinmunityin the stateof Jammu& KashmirafterDecember,1989, compellingits membersto flee home, hearthand State for bare survival.

Thesewritpetitionshavebeen filedby someof suchdisplacedpersonswho were ,Central Government employeesseeking protectionagainstforcible eviction of the quartersoccupied by them on the ground that it is the oiily roof availableto them..

2.Thepetitionerscontendthatthoserepresentingtlj,Central Governmentin the Kashmir valley, especiallythose whowere representingthe intelligenceagencies,para militaiyanddefence forcesaS' well as the Governmentmedia became primetargetsof the militantsto the extent that lists of such personswho had to be targetedwere publishedand circulatedin thelocalities.Family membersand friendsof suchGovernmentemployeeswere killed ,and their propertiesdestroyedfor themessagetopermeate.Asaresult'immediatestepsforevacuationof such officialson emergencybasis were taken bythe Governmentof India in order to at least protect their lives.3.The writpetitionersin 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& 11491/2009were shiftedfrom Jammu& KashmirtoDelhi and posted in the local offices of the central organizationand department, where they were employed.4.The facts disclose that all the petitioners(or the person onwhom they were dependantas in the case of Smt. Phoola Rainawido'wof LateSh. T.N. Raina writ petitionerin W.P.(C)No.15698/2004)uponbeingbroughttoDelhiwereallottedGovernmentaccommodationto reside'in,not only by virtue oftheir employment but also their extreme need for shelter.Theseallotteesofthecharters,superannuatedfromserviceondifferent dates over the period of time.5.W.P.fC)No.15698/2004has been filed ,by Smt.PhoolaRaina,widowof Late Shri T.N.Raina who wasa Government

lA/.P.fQ No.15239/2004Page 9 of]57

servant.SliriRainawastheallotteeofGovernmentaccomiiiodationbearing no. DG-915, Sarojini Nagar, New Delhi-23.While still in service Shri T.N. Raina unfortunatelyexpiredon the 4'^'' of August, 2001.The petitioner contends that late Sh.T.N. R.aina and family which included herself were compehed to•flee-fromthe valley in circumstancesidenticalto thoseof theotherpetitioners.Thispetitioneris survivingon meagerpension and she cannot afford any alternateaccommodation.6.The petitionerin W.P.(C)No.5681/2007evacuatedin thesameemergentconditions,is statedto be afflictedwith theParkinson'sdiseasesince his retirement.His home in Kashmirstandsburnt.His relative,one Mrs.ChuniLai had gonetoretrieveher belongingsfromKashmir,but was shot dead atpointblankrange.Thepetitionerisstatedtobebarelysurviving on his pension.He has no place to return in his homestate.7..So far as the petitionerin W.P.(C)No.2869/2008and hisfamily are concerned,they were shifted out by the Governmentoh account of the perceptionof serious threat to their lives.Itis contendedthatthemilitantshaveburntthepetitioner'sancestralhome in orderto demonstratetheir intentionof notsparmg him.In addition, they have shot dead his:uncle and wifeat point blank range.As result, other than the quarter underoccupation,the petitioner is without any alternate shelter.•8.Shri P.K. Koul, the petitionerin W.P.(G) No. 15239/2004.was resident of Razdan, Kochhaa, Bana Mohalla, Habba Kadal,Srinagar and his entire property in Srinagar has been destroyedby tlie communal riots and terrorist movements. He clearly

. W.p.(C) No.15239/2004Page Wof 157

states that he has no other house anywhere m India.This ^petitioner was lastly posted as the Director General with theBorderSecurityForce at R.K. Puram,New Delhi.While inservice,thispetitionerwasallottedthepremisesno.H-52,SarojiniNagar,New Delhi.On 31"^ July, 2002, the petitionersuperannuatedfromservice.Theallotmentofthisaccommodationin his name was cancelledby letterdated27/28'^'' August,2002witheffectfrom1®*^ December,2002directingthepetitionertovacatetheaccommodationimmediatelyand he was informedthaton failureto vacate,actiontoevicthim underthePublicPremises(EvictionofUnauthorisedOccupants)Act,1971wouldbe taken.Therespondentsalsoinformedthepetitionerthaton failuretovacate,he would be liable to pay damage rent(g) Rupees150per sq. mtr. for the entireperiodof over stay. The petitionerwas permittedto retain the accommodationfrom1®'- December,2002 to 31®' April, 2003 on payment of four times of the normallicense fee for the next two months.

9.The petitionerand his family are permanentresidentsofthe State of J&K and did not leave their home state voluntarilybut were driven put of the Srinagar ,valley.Their householdgoods were looted and house was burnt by the terrorists.Otherthan the one residence,which also standsdestroyedby themilitants in Srinagar, Shri P.K. Koul owned no other property.Agrievanceis made that the respondentshave taken no action forthe reconstructionof the houses of the petitionersand otherslike himwhichweredestroyed. by themilitantsandtorehabilitatethem resulting in pitiable condition and absence

W.P.(C) No.15239/2004

PageIIofI57

of any security for tliem.Consequently, they are unable toreturn to their own homes.10. ^Inthisbackground,thepetitionersubmittedarepresentationdated 24"' March, 2003 seeldng permissionfromthe respondentto retain his accommodationon payment of theexisting normal license fee" setting out the above facts.Despitepermitting retention of accommodationby other similarly placedpersons, this request of the petitionerwas rejected by the letterdated20"'February,2003.Therespondentno.2 furtherreferredthe case for evictionof the petitioner,treatinghim asan unauthorisedoccupantof public premisesunder the PubhcPremises(Eviction of UnauthorisedOccupants)Act, 1971.11.In these proceedings,the followingevictionorder dated23''^ September,2003 was passed against the petitioner whichwas served on him on 18"' November,2003:-

"O'FFICEOFTHEESTATEOFFICERANDDEPUTYDIPvECTOROFESTATE(LIT.)DIRECTORATEOFESTATES,NIRMAN BHAWAN, NEW DLEPII.

EC/93/AD/Lit/03/T-D

All persons concerned and in particular

Shri P;K. Koul,123, North West Moti Bagh,New Delhi. .•

WhereasI, the undersignedam satisfiedfor the reasonsrecordedbelowthatShriP.K.Koulis an unauthorizedoccupation,of thepremisesspecifiedintheSchedulebelow :

REASONSYouhavebeencontinuingtooccupythepremisesspecifiedin the schedulebelow even after its allotmentstands cancelled in your name w.e.f. 1.2.03 vide letter no.TD/283/M-23/96dated 8.11.02.You have failed to i^rove that you are not in unauthorizedoccupationof the instant premises.Now, therefore,in exercise of the powers conferred on meunder Sub-Section(I) of Section5 of the Pubhc Premises

(Evictionof UnautliorizedOccupants)Act, 1971, I herebyorder Shri P.K. Koul, and all the personswho may be inoccupationof the said premisesor any part thereoftovacate the same within 15 days from the date of, issue ofthis order.In the event of refusalor failureto complywith this order within the period specifiedabove, the saidShri P.K. Koul and all other persons concernedare liableto be evicted from the said premises,if need be, by theuse of such force as may be necessary.

SCHEDULE

123, North West Moti Bagh, New Delhi.

Date: 23.9.2003Copy to A.D.-T-D."

12.Thepetitionerfiledan appealregisteredasPPANo.333 /2003 challengingthe said eviction order.

It is contendedthat the learned AdditionalDistrict Judgemechanicallydismissedthepetitioner'sappealby an orderdated 10^'' September,2004 ignoringthe orders passed by theSupreme Court and other precedentsof this court in respect ofidentically placed persons, necessitatingthe present petition.The submissionis that, the cancellationof the petitioner'sallotmentby the letter dated 27/28'^^August, 2002; rejectionofthe petitioner'srequestby the letterdated20"' of February,2003; the order of eviction dated 23'"'^ September,2003, as weUas the order of the learned ADJ dated 10'^' September,2004 arelegally not sustainable.

The writ petitionlays challengeto these orders as wellas the non-action of the respondents.13.The facts relating to the other petitionersin this bunch ofpetitions are similar and are not disputed by the respondents.

For the purposes of convenience and clarity, the details of

W.p.(C) No.15239/2004

Page 13 of 157'

the allotmentof accommodationswhich wereeffected in favourof the petitioners/the predecessor in interest; the dates, of theipretirement;the status of allotment and particularsof the order:whichhavebeen passedagainstall the petitionersand areimpugned in these writ petitions are tabulated below:-

W.P.(C) No.15239/2004

/.P.(C) No.15239/2004

W.P.(C) No.15239/2004

Page 16 of 157

14.In these writ petitions, the petitioners have aU contendedthat they are permanentresidentsof Jammu & Kaslnnir andliaveno desirewhatsoeverto residein Delhi.However,onaccount of the prevailing circumstancesand the inability of theGovernmentto secure their lives and propertiesin their homestate, they are unable to return to the state.Their propertiesand only homesin the valleyhave eitherbeen destroyedoroccupied.

15.Passageof time ,alsohasbroughtnochangeintheconditionsprevalentin the stateof JammuSi Kashmir.Thepetitionersremainunable to return to their own homes.16.Mr.R.K.ITandoo,Mr.B.L. Wali and Mr. SamratNigam,learnedcounselsappearingforthepetitioners,withall thevehemenceat their command,have urged that the status of thepetitionersstandsreducedto that of 'refugees'in theirowncountry with nowhere to go and no support at all from the state,theonly differencebeing that insteadof beingdisplacedtoanother country,the petitionersstand evicted within their own• country.•17.The petitionershave contendedthat discretionand poweris vested in the respondentsunder SR 317-B-25 of the Allotmentof the ••'GovernmentResidence(GeneralPool in Delhi) Rules topermit any person to occupy pubhc premises.Instanceshavebeencitedof therespondentspermittingotherpersonsincludingidenticallydisplacedKashmiristooccupy publicpremises.It is complained that the respondentshave unfairlyfailedtoconsiderthespecialcircumstancesso faras the

• W.P.(C) Ho.15239/2004Page 17of 157

petitioners are concerned and have discriminated against thei.The writ petitioners thus assail the failure of the respondents toexercise the discretionvested in them to permit the petitionersto continueto occupy the quarters/in accordancewith law onthe ground of arbitrariness.

18. The submissionis that the refusalof the respondentstopermit the petitionersto retain the aUotmenton paymentofnormallicensefeeis illegaland resultsin violationof theconstitutionalrightsofthepetitioneraswellastheconstitutionaland publiclaw obligations,responsibilitiesandduties of the respondents.

19.Itissubmittedthatinthegivencircumstancesthepetitionerscannot be deemed to be in 'unauthorisedoccupation'for thepurposesoftheapplicationof thePublicPremises(EvictionofUnauthorisedOccupants)Act,1971.Thepetitionerscontendthat the respondentswere constitutionallymandatedto protecttheir right to life under Article21 of theConstitutionof India and having failed to do so, were bound toensuretherighttoshelterof thepetitioners,whichisanessentialconcomitantthereof.Inthisbackground,thepetitionerschallengeinactionqua the rights of the petitioners;the legality and vahdity of the cancellationof the aUotmentsofthe quarters;as well as the proceedingsand all orders underthe Public Premises(Eviction of UnauthorisedOccupants)Act,1971.It is contendedthat the respondentshaveignoredahrelevantmaterialininitiatingtheproceedingsagainstthepetitioners,passing the impugned orders.20.Mr. Jataii Singh, learned Standing Counsel for the Unio'of India and Mr. R.V. Sinha, learned counsel for the respondentschallengethe very maintainabilityof these writ petitions.It iscontendedthat the public premises were allottedto employeesof theGovernmentby virtueof theiremployment.Suchrelationshipshaving come to an end on superannuation/demiseof the governmentservant learned counsels stronglyurge thatthe petitionershave no right at all to continueto occupytheofficialaccommodationaftertheirretirement.It isfurtherurged that the petitionershave no right or entitlementto anyaccommodatioiifrom the respondents.The submissionis thatthe decisionsagainst the petitionersare in accordancewith theprovisionsof the Act of 1971 and judicialprecedentson thesubject and cannot be faulted on any legally tenable grounds.

Material pleadinas

21.Before examiningthese submissions,learnedcounsel forthepetitionershavedrawnattentiontothepetitioner'spleadingsingroundsAtoH,K,L&MofWP(C)No,15239/2004P.K,KoulVs.EstateOfficerandtherespondentsresponsetheretowhichdeservesto be usefullyconsideredin extenso and reads as follows;-

Page 22 of 157

l!BecausetheDirectorateofEstatesareallottinggeneralpoolaccommodationnotonlytotheservingGovernmentemployeesbutalsotovariousothercategoriesofemiploveeswhohavenothingtodowithgovernmentservice.Theemployeesworldng in the office of thepoliticalparties,journalists,freedomfighters,artists,etc. are also allottedgeneralpoolaccommodation.ThePetitionerbelongsto special categoryofdisplacedKashmiriPanditsandthey also deserve special treatment inthematterofprovidingaccommodationas in the case of theaforesaidnon-governmentalcategories.M.Because the Ld. ADJ has failed toconsiderthefactsthattheRespondentshas the powerto relaxthe AllotmentRules in respect of anyperson,andinrespectofanyaccoraraodation.AccordingtoSR317-]B~25oftheAllotmentofGovernmentResidences(GeneralPoolinDelh)Rules,1963,theGovernmenthave the power to relaxtheMlotmentRuleswhichisreproducedas under:-317-B-25:The Governmentmayfor reasons to be recordedin writingrelaxall or any of the provisionsofthe Rules in this Divisionin the caseof any officer or residenceor class ofofficers or type of residences."

l4/.P.fgNo.15239/2004

concessionalperiodoffourmonths.Furtherretentionthereafterfor maximumperiodoffourmonthsonmedicalgrounds as per rules' has alreadybeen availed by him.17.Thatinresponsetothecontents of para L of ground, it issubmittedthattheallotmentofGovernmentquarteris madeasper the rules and pohcy laid down,by the Government.

18.That the, contentof paraM ofthe Ground needs no commentsHowever,thepetitionerisaretireeandgettingpostrelrialpension."

22.Theabovenarrationwouldshowthattherespondentsadmit the correctnessof the factual submissions,rights claimedand entitlementsof the petitionersin these grounds of the writpetition.

Constitutionalouarantees

23. Before proceedingto examinethe challengelaid by thepetitioners,it is essential to exainine the right of the petitionerswhich is involved.Article19(l)(e)of the Constitutionof Indiastates that all citizens shall have the right to reside and settle inany part of the territoryof India.Article21 on the other handstates that no personshall be deprivedof his life or personalliberty except according to procedure establishedby law.24. The petitionersquestion the jurisdictionand legality of therespondent'sactions and threat to forcibly evict them from theironly shelter in purportedexerciseof statutorypowers utilizingthe processprescribedunder the PublicPremises(EvictionofUnauthorisedOccupants)Act, 1971 (hereafter referred to as the'Public Premises Act, 1971').25.In 1995 (2) SLR 72, PM. Gupta Vs. State of Gujarat &Ors., the Supreme Court held that food, shelter and clothing aretheminimalhumanrights.Thecourtreiterateditsearlierexpansionof the rightto residenceand settlementby againholding that,it is "fundamentalright under Article 19(1)(e)

' Page 24 of 157

and it is afacet of to inseparablemeaningfulriglit lif^^'^jdeyArticle 21" of the Constitutionof India.26.Fundamentalrights are guaranteedto the citizens of Indiaunder part III of the Constitution of India.In (1996) 2 SCC549 ClimiieliSiiiffli & Ors.Vs. State of U.P, & Aiir,, theSupremeCourt held that the right to shelter is fundamentalright available to every citizen of India.It was also read into theright to life guaranteedunder Article21 of the Constitutiontomake it more meaningful.In para 8 of the judgment,the courtsuccinctly set out the nature of the right and the mandate on the

state as follows

"8.In any organisedsociety,.,rightto live as ahumanbeingis not ensuredby meetingonlytheanimal needsof man. It is securedonly when he isassured of all facilitiesto develop himself and is freedfrom restrictionswhich inhibit his growth.All humanrightsare designedto achievethis object.live mmraiiteed in any civilisedsociety implies therifflit to food, water,decent environment,education,medicalcareand shelter.Thesearebasichumanricrhtsknowntoanvcivilisedsociety.Allcivil,political,socialand culturalrightsenshrinedin theUniversalDeclarationofHumanRightsaiidConventionor under the Constitutionof Incha cannotbeexercisedwithoutthesebasichumanrights.Shelterfor human being,therefore,is not mereprotectionof his life and limb.It is home where hehasoBBortmiitiestom^owphysicallV',mentallv,intellectuallvandspirituallv.therefore,iiichidesademmteliviimspaceanddecent structures,clean and decent surroundinas,sufficientlightpureairandwater,electricity,sanitationand other civic amenities like roads etc. soas to have easy accessto his daily avocation.TheriuM to shelter,therefore,does not meana mereTifflitto roof over one's head but rig-Iitto allthe infrastructurenecessaryto enablethemtolive and developas humanheinij,an essentialrthe rmlit to live should be deemed to have beeiimiaranteedasafundamentalriglit.Asissecure it for its citizens of course subjectto its

^ In democraticsocietyas amember of the organisedcivil communityone shouldhave Ejenimneiit shelter so as to physically,mentallyand - intellectuallyequiponeselftoimprovehisexcellenceasausefulcitizenasenjoinedin theFundamentalDutiesandto beausefulcitizenandecfual participantin democracy.The ultimate object ofnialdnga man ecj[uipped with rig-M to dignity ofperson and equality of status is to enablehim todevelop himself into culture being.Want of decentthe Constitutionalanimatioi 1 of riejlit to ecfulalitVfeconomicmstice,fundamentalri€iMtoresidence,dimiiU^of uerso mand riqlittc} liveitself......"(Emphasis supplied)

The Apex Court unequivocallydeclaredthat all the civil,political,social and culturalrightsenshrinedin the UniversalDeclarationof Human Rights and Convention,1948 or under theConstitutionof India cannot be exercisedwithout,inter aha, thebasic human right of shelter.

27.The rightto shelteras an essentialconcomitantof thefundamentalrightto life was also pressedby the pavementdweUers in the pronouncementreported at (1997) 11 SCC 121Ors.The MunicipalCorporationof Ahmedabadwascomplainingagainstencroachmentandoccupationofpavementsin the urban limits of Ahmedabadby the pavementdwellers(respondentstherein).The court was concernedwiththe plea of vi.olation of fundamentalrights of the pavementdweUersunder Article19(l)(e)and 21 of the ConstitutionofIndia and their entitlement to shelter. The summation by theCourt placing reliance on the several precedentson the subjectthrows light on the very question which has been raised herein

W.P..(C) No.15239/2004

also. Mter reiteratingthe principles in earher judgments, theobservationsof the Supreme Court read as follows:-

"13.Socio-economicjustice,equalityof statusand of opportunityand dignity of person to fqsterthefraternityamongallthesectionsof thesociety in an integrated Bharat is the arch of theConstitutionset down in its preamble.Articles39 and ^enjoins the State to provide facilitiesandopportunities.Articles38and46of theConstitutionenjoin the State to promote welfareof the peopleby securingsocialand economicjusticeto the weaker sectionsof the societytominimiseinequalitiesin incomeand endeavourto eliminate inequalitiesin status. In that case, itwas held that to bring the Dalits and the Tribesintothe mainstreamof nationallife,theStatewas to provide facilitiesand opportunitiesas it isthe duty of the State to fulfil the basic humanand constitutionalrightsto residentsso as tomake the right to life meaningful.In ShantistarBuildersv. NaravanKliimalalTotameAIR 1990SC 630, another Bench of three Judges had heldthat basic needsof man have traditionallybeenacceptedto be three-food,clothincrand shelter.Thericfhtto lifeis guaranteedin any civilisedsociety.Thatwouldtakewithinitssweepthericiht to food,the right to clothing,the right todecentenvironmentandareasonableaccommodationtolivein.Thedifferencebetweentheneedof ananimalandahumanbeing for shelter has to be kept in view. For ananimal, it is the bare protectionof the body; for ahumanbeing,ithastobeasuitableaccommodationwhich would allow him to growin every aspect-physical,mental and intellectual.The surplusurban-vacantland was directedtobe used to provideshelterto the poor.In OlgaTelliscase (supra),the ConstitutionBench hadconsideredthe right to dweU on pavementsor inslumsbytheindigentandthesamewasacceptedasapartof righttolifeenshrinedunder Article21: their ejectmentfrom the placenearertotheirworkwouldbedeprivationoftheir right to livelihood."XXXXXXXXXIt would,therefore,beclearthatthoughno;personhasarighttoencroachanderectstructuresor otherwiseon footpath,pavement orpublicstreetsor any other placereservedorearmarkedfor public purpose,the State hastheConstitutionaldutytoprovideadequatefacilitiesandopportunitiesby distributingits

W.P.(C) NO..15239./2004

wealthand resourcesfor settlementof life anderectionof shelterover theirheadsto makethe ricrht to life meaninafiil.effectiveand fruitful.Right to liveMhood is meaningfulbecause no onecan live without means of this living,that is themeans of livelihood.The deprivationof the rightto life in that context would not only denude lifeof effectivecontentand meaningfulnessbut itwould make life miserableand impossibleto live.It would,therefore,be the duty of the Stateiiidmeiitweaker sectionsof the societyinXXXXXXXXX•25. Article19(l)(e)of the Constitutionprovidesto all citizens fundamentalrights to travel,settledown and residein anv part of the Bharatandnone have right to prevent their settlement.Anyattempt in that behalf would be unconstitutional.ThePreambleoftheConstitutionassures'intecfritvof thenation,fraternityamongthe•peopleand dianitvof the personto make Indiaan integratedand unitedBharatin socialistseculardemocraticrepublic.Thepolicyorprincipleshouldbe such thateveryoneshouldhave the opportunityto migrateand settle downinanvpart, of Bharatwhereopportunityforemploymentorbetterlivingconditionsareavailableand,therefore,itwouldbeunconstitutionalandimpermissibletopreventthe persons from migratingand settling at placeswheretheyfindtheirlivelihoodand meansofavocation.It is to remember that the Preambleisthe archof theConstitutionwhichaccordstoeverycitizenofIndiasocio-economicandpolitical justice; liberties,equality of opportunityand of status,fraternity,dignity of person in anintegratedBharat.The fundamentalrightsandthe directiveprinciplesand the preamblebeingtrinity of the Constitution,the right to residenceand to settle in any part of the country is assuredtoeverycitizenTherighttolifeenshrined under Article'21has been interpretedby this Court to include meaningfulright to lifeand not merely animal existenceas elaboratedinseveraljudgmentsofthisCourtincludingHawkers'case,Olga TeUis case and the latestChameli Singh's case and host of other decisionswhich need no reiteration.Suffice' it to state thatrighttolifewouldinclude •righttolivewithhuman dignity. As held earlier, right to residenceisone'oftheminimalhumanrightsasfundamentalright.Due to want of facilitiesand

opportunities,tiierighttoresidenceandsettlementis an illusionto the ruraland urbanpoor.Articles 38. 39 and 4-6 mandate the state,.as its economicpolicy, to provide socio-economicjustice to minimiseinequalitiesin income and inopportunitiesandstatus.It positivelychargesthe State to distributeits largessto the weakersectionsof the society envisagedin Article46 tomakesocio-economiclusticea. reality,. meaningfuland fruitfulso as to makethelifeworth living with dignityof personand egualitvof status and to constantlyimprove excellence."(Emphasissupplied)

28.Thepetitionersarefacingthreatenedforcibleevictionfromtheonly sheltertheyknow whichwasallottedby therespondents,either to them or the person on whom they weredependant.If compelledto vacatewithoutprovisionof analternative,the inevitableconsequenceis, that the petitionerswould be rendered homeless.

29.It is obvious that the present petitionsraise an importantaspectof rightto shelterof thesedisplacedpersonsunderArticle19(l)(e)and which has been declaredby the SupremeCourt to be an integral and essential part also of their right tolife, guaranteedas fundamentalright under Article 21 of theCons titution of India.In the several binding judicial precedentsnoticedhereinabove,the SupremeCourt has furtherheld thatsuch violation may also adversely impact and violate the right tooccupationandprofessionunderArticle19(l)(g)oftheConstitution of India which is the other basic human right of thepetitionersinextricablyinvolved in the instant case.

Internationalperspective-conventions;norms;auidinaprinciples and their appJicabilitvto present case

30.So far as right to adequate housing and its protection isconcerned, there is no specific domestic legislation on the issue.

In the aforenoticeclpronouncementsthe SupremeCourt hasbeen of the A^ew'that such right can also be sourced as basichuman right under the internationalhuman rights law.31.This court has had occasionto examine the sourceof therighttohousing,shelterandprotectionagainstforcibleevictions by residentsof Jhuggi Jhopri clusters (hutments)in thejudgmentsdated,July,. 2006in,W.P.(C)No.5007/2002' reported at MANU/DE/9327/2006entitled Jagdisbvs. DBAand also the pronouncementof this court datedFebruary,2010in W,P,(C)No.8904/2009SudmnaSlimli&. Ors.vsGovenimeiitof Delhi & Ajinwith connectedwrit petitions.In this regard,in these judgmentsas well, referencewas madetothefollowinginternational&regionalcovenantsanddeclarationson the rightto adeguatehousingwhichdeclarethatprovision,of housingas wellas theprotectionagainstforced eA^ction is the unequivocalresponsibilityof the state(i)TheUniversal Declarationof HiiiimiiRmMs, 1948makes the following statement:

"Article25.1

Everyonehastherighttoastandardoflivincradeguate for the health and well-beingof himself and hisfamily includingfood, clothing,housing and medical careand necessary social services,and the right to security intheeventofunemployment,sickness,disabilitj^vi^idowhood,oldageorotherlack.oflivelihoodincircumstancesbeyond his control."

(ii) The IiitenisitioiialCoiiventioiion the EUmiijationof All forms of Racial Discrhnhmtioii,1965 con tainsthe following-:

"Article5

Incompliancewiththefundamentalobligationslaiddowninarticle2of thisConvention,StatesPartiesundertaketoprohibit and to eliminate racial discrimination

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in all its forms and to guaranteethe right ofeveryone^withoutdistinctionasto' race,•colour,or - nationalorethnicorigin,toequalitybeforethelaw,notablyintheenjoyment of the following rights :

xxxx

(d) Other civil rights, in particular

xxxx

(iii) The right to housing."

(iii).Article11oftheIiiternatimmlCovenantEconomic,Social and Cultural RmMs adopted by theGeneralAssemblyof the UnitedNationson the 16"' ofDecember,19616 further codifies the right to housing andstates thus :,

"ArLicle11"1. The State Parties to the presentCovenant,recognize the right of everyoneto an adequatestandardof livincr for himself and his family,includingadequate. food,clothing,andhousing, and to the continuous improvementofliving conditions"

India has signed and ratified this covenant and is thus astate party to it.•

(iv) Part II of the Declarationof Social Prooress andDevelomiient,1969 states thus :

"Socialprogressand developmentshall aimat the continuousraising of the materialandspiritual-standardsof living of all members ofsociety,with respectfor and in compliancewith human rights and fundamentalfreedomsthroughthe attainmentof the following maingoals:

xxxx

Article lOffl

The provisionfor all, particularlypersonsinlow-incomegroupsandlargefamihes,ofadequate housing and community services.

(v) Part III Section (8) of the Vancouver DeclarationofHuman Settlements,1976 mandatesas follows:

l/K.P.rc;No.15239/2004

"Ill Guidelinesfor Action

xxxx

8. Adequateshelterand servicesarea basichuman.rightwhichplacesanobhgationongovernmentsto ensuretheirattainmentby allpeople,beginningwith directassistanceto theleast advantagedthroughguided programmes, of• self-helpandcommunityaction.Governmentsshouldendeavortoremoveallimpedimentshinderingattainmentof thesegoals.. Of specialimportanceis the elimination of social and racialsegregation,interalia, throughthecreationofbetterbalancedcommunities,whichblenddifferentsocialgroups,occupation,housingandamenities."

The Recommendationsfor National Action in theVancouverDeclarationcontainsinteraliaalsothe following

"A.SettlementPohcies& Strategies

Preamble,Point 3

The ideologiesof Statesare reflectedin theirhuman settlementpolicies.Thesebeing powerfulinstrumentsfor change,they must not be used to• dispossesspeople from their homes and their land,ortoentrenchprivilegeandexploitation.Thehuman settlementpoliciesmust be' in conformitywith the declarationof principlesand UniversalDeclarationof Human Rights."

(vi) Article8.1of the DeclarationonDevelomiient1986 also states that:

"Article8

•1. Statesshouldundertake,at thenationallevel,allnecessarymeasuresfortherealizationof the rightto developmentandshallensure,inter-alia,equalityofopportunityforall in theiraccessto basicresources,education,healthservices,food,housing,employmentand the fair distributionof income...."

(vii)The aboveobjectiveswere also reinforcedthedeclarationmadein the InternationalYear ofHomelessin 1987 by the UnitedNationswhen itspokeof this right of all individualsin the followingterms:

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"a real liome...onewhich providesprotectionfromthe 'elements;has accessto safe waterand sanitation; provides for secure tenure andpersonalsafety;andwithineasyreachofcentres for employment,educationand healthcare; and is at cost which people and societycan afford."

(viii) On the issue of forcible evictions,the General•Coiiiment7 dated 20tli May 1997 on the right toadequatehousing(Article11.1of theCovenant:I'orced Evictions)by the Coiiimissioiion Ecoiioiiiic,Socmland. CulturalRightsisimportantandisextractedhereafter:

"(1) In its GeneralCommentNo. 4, (1991),. theCommitteeobservedthatallpersonsshould possessa degree of security of tenurewhichguaranteeslegalijrotectionagainstforcedeviction,harassmentandotherthreats.It concludedthat forced evictionsareprimafacieincompatiblewiththerequirementof the Covenant. theCommitteeobservedthatallpersonsshould possessa degree of security of tenurewhichguaranteeslegalijrotectionagainstforcedeviction,harassmentandotherthreats.It concludedthat forced evictionsareprimafacieincompatiblewiththerequirementof the Covenant

(2)Theinternationalcommunityhaslongrecognized that the issue of forced evictions is aseriousone.In1976,theUnitedNationsConferenceon HumanSettlementsnotedthat,special attention should be paid to "undertakingmajorclearanceoperationsshouldtakeplaceonly when conservation,and rehabilitationarenot feasibleand relocationmeasuresare made.In 1988, in the GlobalStrategyfor SheltertotheYear2000,adoptedbytheGeneralAssemblyinitsresolution43/181,the"fundamentalobligation(ofGovernment)toprotect and improve houses and neighborhoods,ratherthandamageordestroythem"wasrecognized.Agenda21statedthat"peopleshouldbeprotectedbylawagainstunfairevictionfromtheirhomesorland".IntheHabitatAgendaGovernmentscommittedthemselvesto "protectingall people from,andprovidinglegalprotectionandredressfor,forcedevictionsthat are contraryto the law,takinghumanrightsintoconsideration;[and]whenevictionsare unavoidable,ensuring,asappropriate,that alternativesuitablesolutionsareprovided".TheCommissiononHumanRights has also indicatedthat "forcedevictionsare gross violationof human rights"

W.p.(C) No.15239/2004

(x)AnnexurerlRapporteuron AdequateHbiisiim lays down somebasic principlesand guidelineson developmentbasedevictionsand displacement.It providesthe guidelineson relocationof the displacedwhich read as follows;

"52. The GovermiWMit and any other partieseviction,except in cases of force majeure.At aminimum,regardlessof the circumstancesandwithoutdiscrimination,competentauthoritiesshallensurethatevictedpersonsor . groups,especiallvthose who are unableto provideforthemselves,have safe and secure access to: (a)essential food, potable water and sanitation;(b)basic shelterand liousinm(c)appropriateclothing;(d)essentialmedicalsei-^ces;(e)livelihoodsources;(f) fodderfor livestockandaccesstocommonpropertyresourcespreviouslydependedupon;and(g) educationforchildrenandchildcarefacilities.Statesshouldalsoensurethat membersof the sameextendedfamilyorcommunityarenotseparatedas result of evictions.

XXX

55. Identifiedrelocationsites must fulfilthecriteriaforadequateIioiisiBdaccordingtointernationalhuman rights law. These include:(a)securityoftenure;Xxx(c)affordable(d)habitablehousingprovidinginhabitantswithadequatespace,protectionfromcold,damp,heat,rain,windorotherthreatstohealth,structuralhazardsand diseasevectors,and ensuringthe physicalsafety of occupants;xxx(d) No affected persons,groups or communitiesshallsufferdetrimentas faras theirhumanrightsare concerned,nor shaU their righttothecontinuousimprovementoflivingconditionsbesubjecttoinfringement.Thisapplieseguallvtohostcommunitiesatresettlementsites,andaffectedpersons,groupsandcommunitiessubjectedto forcedeviction;

xxxx

57.Hell aMJj tail onpoliciesmustincludeprogrammesdesignedforwomenandmarginalizedand vulnerablegroupsto ensuretheir equal enjoymentof the Immmi riubts toImiisiim,food, water, health,education,work,freedomfromcruel,inhumanordegradingtreatment,andfreedomofmovement.

58.Persons,groupsortheir right to the progressiverealizationofrifflittoadequatehousiiiff.Thisappliesequallytohostcommunitiesatrelocationsites."

(Emphasis'supplied)

3,2.TheUN Committeeon Economic,SocialandinitsObservationson India,calledupon the Indiancrovernmentparticularlytoaddresstheissueof risinghomelessness,including the need for disaggregateddata on the homeless.Inthe observations relating to India as state party, it specificallystated as foliows:-

"30. The Committeeis concernedabout the lack ofa nationalhousincrpolicv.which particularlyaddressestheneedsofthedisadvantacredandmarginalizedindividuals and groups, including those living in slumswho are reportedly growing in numbers, by providingthem with low-cost housing units. The Committeealsoregrets that sufficientinformationwas not provided bytheStatepartvontheextentandcausesofhomelessnessin the State party.

The .Committeealso requeststheStatepartytoprovide, in its next periodic report, detailed informationon homelessnessin the State party and the extent ofiiiadeguatehousing,disaggregatedbv. inter aha,sex,caste, ethnicitvand religion.

70. The Committee urges the State party to addressthe acute shortage of affordable housing by adopting anational strategy and plan of action on adequatehousingand building or providing low-cost rental

W.P.(C) No.15239/2004

housing units, especially for the cUsadvantaged and lowincomethose in slums. In this groups, including livingconnection,the Coiimiitteereminds tlw State partyof its oMmatioiisunder Article"11 of the Cov&iiaiitand refersto its GeneralCommentMo.4 on'shousing-policies.Theboinelessnessin the' State party and the extent ofsex, caste, ethnicity and relimon.

71. Theenforcelawsandnthat personsevicted from their homes and lands/I, in accordancewiththe guidelinesadoptedby the Committeein itsGeneral Comment No. 7 on forced evictions(1997). TheCommitteealsorecommendsthat,priortoimplementingdevelopmentandurbanrenewalprojects,sportingeventsand other similaractivities,theStateijartvshouldundertakeopen,participatoryand nleanincrfulconsultationswithaffectedresidentsandcommunities.In thisconnection,theCommitteedrawsthe attentionof the State party, to its GeneralCommentNo.4ontherighttoadequatehousing(1991) and further requeststhe State party to provideinformationin itsnextperiodicreporton progressachievedinthisregard,includingdisaggregatedstatisticsrelatingto forced evictions."

33.Theabovenarrationwouldshowthattheinternationalcovenantsand instrumentsrefer to basic human rights.All ofthem have recognizedright to shelteras basic human ricrht,essentialfor survival.It needs no elaborationthat the conceptof human rights emanatesfrom the ancient doctrine. of naturalrightsbasedon naturallaw.Theexperiencesof tliePost-SecondWorldWarwhichbroughtforththeInternationalChartersandConventionsleadingto theemergenceof thepresentday humanrights.The first documenteduse of theexpression'human rights'is to be found in the Charter of the

United Nations, adopted on 25"'June,1945.Tliis Charter was ofcourse not binding but stated that it was only an ideal to belaterdeveloped.By adoptingtheUniversalDeclarationofHumanRicrlitsin December,1948 the UN GeneralAssemblytook the concretestep of formalisingthe.varioushuman rights.Thiswasfollowedby theInternationalBill of Rights.Thedeficiency in the binding nature of the declarationwas removedby the U.N. General Assemblyby a;dopting on 16"' December,1966,firstly,the Covenanton Civil and PoliticalRights whichformulatedlegallyenforceablerightsof theindividualand,secondly,the Covenant on Economic,Social and Cultural Rightswhichwasaddressedtothestatestoimplementthembylegislation.These covenantscame into force in December,1976after ratificationby the requisite number of member states.Inchaisapartvtoboththesecovenantswhichwereadopted on 16"' December,1966 and bind this country..34.The above narrationshows that homelessnessmay resultfromseveralcausesincludingnaturaldisasters;developmentprojects,economicdeprivationaswellashumanfightsviolations.Internationallaw terms persons who stand displacedfrom their countriesas "refugees"and recognizesthat they areentitled to protectionfrom being returned to places where theirlives or freedomcould be threatened.35.Atthesametimetherearegrowinginstancesinternationallyofpersonsandevencommunitieswhoarecompelledto abandonhomes on accountof threat of imminentviolenceorstandforciblyevictedbyuseof violenceandcompelledto relocateto other placeseven withintheirowncountry.Theycannotreturntotheirhomeswithintheboundariesof their own countriesin the face of the continuingthreatof persecutionand dangerto theirproperties.Suchpersons cannot.be termed as "refugees"as described by learnedcounselsfor the petitioners.In internationalparlance,personscompelledtorelocatewithintheboundariesof theirowncountriesstand-categorisedas-"InternallyDisplacedPersons^'(abbreviatedas 'IDPs hereafter).36.The present petitionersalong with several otherfamihes,havebeencompelledtorelocatewithinIndia,andwouldthereforefall under the categoryof such internallydisplacedpersonsC'IDPs')whohave. receivedeitherinsufficientor noprotectionby the State, from or during their persecution.37.Except that IDPs are forced to flee from their homestoanotherlocationwiththeirown country,refugeesandIDPsappeartobesimilarlysituated.However,internationalcovenantsrespectthe; principleof non-interferencewith theinternal politics of one country,and consequentlythere exist nointernationalconventionsrelating to IDPs.

38.The United NationsHigh Commissionerfor RefugeeshasrecognisedthattheIDPsalsofacethesameproblemsasinternationalrefugeesand require to be treated with dignity bytheir own governmentswith fuh respectgivento their basichuman rights.

39.In this regard,a guidingdocumenthas been framedbyFrancisDenge,the representativeof the SecretaryGeneraloftheUnitedNationson Internal. DisplacedPersons,in1998whichistitledas

' whichwas presentedto theUNCHR.TheCommissionin unanimouslyadoptedresolutiontook note ofthese principleswhich addressthe specificneeds of internallydisplacedpersons, worldwideand identify rights and guaranteesrelevantto the protectionof personsfrom forced displacementand to their protectionand assistanceduringdisplacementaswell as during return or resettlementand reintegration.The"introductionto theseGuidelinesdefines"InternallyDisplacedPersons"(TDP's) in Clause2 as follows

"2.For thepurposesof theseprinciples,internallydisplacedpersonsare personsor groups of personswhohavebeenforcedor obligedto fleeor to leavetheirhomes or places of habitualresidence,in particularas aresult of or in order to avoid the effects of armed conflict,situationsof generalizedviolence,violationsof humanrights or natural or human made disasters,and who havenot crossed an internationallyrecognizedState border."

40.So far as housingof IDPs is concerned,these guidelinescontain the following important provisions

"Principle31.Nationalauthoritieshave the primaryduty andresponsibilityto provide protectionand humanitarianassistanceto internallydisplacedpersons within theirjurisdiction.

2.1nternallydisplaced•personshavetherighttorequestand to receiveprotectionand humanitarianassistancefrom these authorities.They shall not bepersecutedor punished for maldng such request.

XXX

Prior to any decision requiring the displacementofpersons,the authoritiesconcernedshaU ensure thatall feasiblealternativesare explored in order to avoiddisplacementaltogether.Where no alternativeexist,all measures shall be taken to minimize displacementand its adverseeffects.2 .Theauthorities,undertaldnasuchdisplacementshall ensure,to the greatest practicableextent, thatiproper accommodationis providedto the displacedpersons,thatsuchdisplacementsareeffectedin

satisfactoryconditionsof safety nutrition,liealtli andhygiene,and that membersof tlie same familyarenot separated.3.If displacementoccm-s in situationsotlier thanduring tlie emergencystages of armed conflictsanddisasters,the followingguaranteesshall be compliedwith:(a)A specificdecisionshallbe takenby Stateauthority empowered by law to order such measures;(b)Adec£uatemeasuresshall be taken to guaranteetothosetobedisplacedfullinformationon thereasonsand proceduresfor their displacementand,where applicable,on compensationand relocation;(c)Thefreeand informedconsentof thoseto bedisplaced shall be sought;(d)Theauthoritiesconcernedshallendeayourtoinvolyethoseaffected,particularlywomen,in theplanning and managementof their relocation;(e)Lawenforcementmeasures,whererequired,shall be carriedout by competentlegal authorities;and(f)The right to an effectiyeremedy,includingthereyiewofsuchdecisionsbyappropriatejudicialauthorities,shall be respected.

Displacementshall not be carried out in mannerthat yiolatesthe rightsto life,dignity,liberty' andsecurity of those affected.

XXX

l.Eyery internallydisplaced person has the right toliberty of moyement and freedom to choose his or herresidence.2.In particular,internallydisplacedpersonshayethe right to moye freely in and out of camps or othersettlements.

XXX

Principle 15Internallydisplaced persons haye:

(a) The riulit to seek safety hi miotlierps&ri: of

(b)The right to leaye their country;

(c)The right to seek asylum in another country; and(d) The riulitto be protectedaajmnst forcible

XXX

W.P.(C) No.15239/2004

1 -All internallydisplacedipersonshave the rialit toan adequatestandardof hvina;2 .Attheminimum,regardless'ofthecircimistmices,andmdtlmut • discrimiimtioji.(a)Essentialfood and potable water;.(c)Appropriateclothing;and(d)Essentialmedical services and sanitation.3.Specialefforts should be made to ensure the fullparticipationofwomenintheplanninganddistributionof these basic supplies.

.XXXPrinciple211.No one shall be arbitrarilydeprivedof propertyand possessions.2.Thepropertvandpossessionsofinternallvdisplacedpersonsshallinallcircumstances-beprotected,in particular,against the following acts:(a)Pillage;(b)Director indiscriminateattacksor other acts ofviolence;.(c)Beingusedtoshieldmilitaryoperationsorobjectives;(d)Being made the object of reprisal;and(e)Beingdestroyedor appropriatedas form ofcollectivepunishment.3.Propeitvandpossessionsleftbehindbyiiii

XXX

Principle25cdisplaced persons lies with national siutliorities.

XXX

Principle281.1aswellasprovidethemeans,whichallowvolmitarilv,in safety,and with dimiity,to their

couiitry. •Suchauthoritiessliallendeavourtofacihtatetlie reintegrationof returnedor resettledinternallydisplaced persons.2.Specialefforts should be made to ensure the fullparticipationof internallydisplacedpersonsin theplanningandmanagementoftheirreturnorresettlementand reintegration.

1.internallydisplacedpersonswho have returnedto their homes or places of habitual residenceorasa resultoftheirhavingbeen, displaced.They shallhavetheright to participatefully and equally in public affairsat all levels and have equal access to public services.2.^respoiisiMlityto assist returned mid/or resettledpersonsto recover,to theextentpossible,their prouertyand possessionsupontheirdisplacement.Whenrecoveryofsuchpropei-tyand possessionsis not possible.

41.TheUnitedNationsCharterthusestablishestheobligationupon membernationsto promotethe key humanrights. The Universal Declarationof Human Rights, 1948 thoughnotatreaty, .butis declarationpublishedby theGeneralAssemblyof the United Nationsand is the primarydocumentwhich is concerned with the listing of the rights.It affirmativelylays down the common standards of achievement for all peoplesand all nations.It consequentlyhas an effect which is similar toatreaty.Furthereverynationwhoisa signatorytotheaforenoticedInternationalCovenanton Economic,SocialandCulturalRights('ICESR')must refrainfrom acts which woulddefeat the object and purpose of the covenant.The preamble to

W.P.(C) No.15239/2004

the ICE SCR estabhshesthat "the idealof free human beingsenjoyingfreedomfrom fear and want can only be achievedifconditionsarecreatedwherebyeveryonemayenjoyhiseconomic,socialand culturalrightsas wellas hiscivil andpolitical rights".

Article11of thiscovenantemphasisesthatthestatepartiesrecognisesthe rightof everypersonto an adequatestandardoflivingwhichincludeadequatehousingandcontinuedimprovementof livingconditions.Therightforpeopleto be freefromwantis the veryfoundationof theICESCR.42.The internationalhuman rights law thus estabhshesalegal obligationfor ensuring minimum welfare guarantees.Theconventions,treatiesand declarations'as well as the guidingprinciplesmanifesttheinternationalconsensusthateverynationhasa. duty toensureandprovidetheseguaranteesincluding,interaliashelterand basicgeneralassistancetoever/ person on its soils.

43.TheaforenoticedinternationalconventionswhichexistaswellastheGuidelinePrinciplesforIDPsthereforerecognizethat shelterand housingis basic human right ofevery individualwhich is the bare minimumto be providedtointernally displaced persons.

ThesePrinciplesalso emphasiseall rightsof displacedpersonsandcasteamandateonthenationalauthoritiesconcernedof their primaryduty and responsibilityto provideprotectionand humanitarianassistanceto internallydisplacedpersonswithin their jurisdictionwhich includestheir right to

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safetyaswellasprotectionagainstforciblereturnairesettlementin place where their life, safety,liberty and orhealthwould be ensured.The GuidingPrincipleshave beenevolved after an elaborateconsultativeprocess.44.Before proceedingany further,it is necessaryto exaniinethe bindingnessof the above principleson the courts in India.Theextent,mannerandapplicabilityofInternationalConventionsand treatiesin interpretationandexpansionofrights, have been authoritativelyconsideredand are well settledby catena of binding precedentsof the Supreme Court.In theauthoritativepronouncementreportedatJT2008(7)SC11,2008(9)SCALE69EiitertaiiiiiieiitNetwork (India) Ltd,Vs.Super CassetteIndustriesLtd,the SupremeCourt tracedtheevolutionofthejurisprudenceontheissueunderconsiderationin paras 48 to 54 which may usefully be extractedand read as follows"48.Beginning from the decision of this Court inKesavanandaBharativ.StateofKeralaMANU/SC/0445/1973:AIR1973SC1461,thereisindeedno ' dearthof caselawswherethisCourthasapphed the norms of internationallaws and in particulartheinternationalcovenantstointerpretdomesticlegislation.Inallthesecases,thisCourthascategoricallyheld that there would be no inconsistencvintheuseofinternationalnormstothedomesticlegislation,if bv reason thereof the tenor of domestic lawis not breachedand in case of anv such inconsistencv,the domestic legislationshould prevail..In JaqdisliSaran and Ors. v. Union of IndiaMANU/SC/0067/1980:(1980)2SCR831,itwasobserved:

"Itisalsowell-settledthatinterpretationoftheConstitution.ofIndiaorstatuteswouldchangefromtime to time.Beiim liviiiQ organ, it

limy have to be found out rndtliiiitheconstitutionalscheme.Horizonsofconstitutionallaw are expandincf."

49.Intlieaforementionedjudgment,thisCourt referredto large numberof decisionsfor thepurposeof treatiesandconventions.YetagaininIndianHandicraftsEmporiumandOrs.v.Union ,ofIndiaMANU/SC/0640/2003: AIR 2003SC 3240,thisCourtconsideredtheConventiononInternationalTrade in EndangeredSpecies(CITIES)and applied theprinciplesof purposiveconstructionsas also not onlythe DirectivePrinciplesas containedin Part IV of theConstitutionbut also FundamentalDuties as containedinPartIVAthereof.ReferringtoMotorGeneralTradersand Anr. v. Stateof AndhraPradeshand Ors.MANU/SC/Q293/1983: (1986)1 SCR 594. Rattan Ai^aandOrs.v.StateofTamilNaduand'Anr.MANU/SC/Q550/1986- :(1986)2SCR596-andSvntheticsand ChemicalsLtd. and Ors. v. State of U.P.And Ors.' MANU/SC/0595/1989.: AIR 1990SC 1927,this Court held:

"Therecannotbeanydoubtwhatsoeverthata law which was at one^ point of time was constitutionalmay berenderedunconstitutionalbecauseofpassage of time.We may note that apartfrom the decisionscited by Mr. Sanghi,recently similar view has been taken inKapilaHingoraniv. , StateofBihar(supra)and John Vallamattomand Anr.V. Union of India (supra)."

50.These judgmentswerereferredto in thedecisionof Liverpooland London S.P. and I Asson.Ltd.V. M.V.. Sea SuccessI and Anr. MANU/SC/0951/2003:(2004)9 see 512, wherein this Court observedthat assceimrio.Liverpoolalso referredfor the propositionthat the cbaimiiKjulobal scenarioshould be keptill 'mind baviim reuard to the fact that there doesnot exist any mimarv act toucMimtbe subjectand in absence of any, domestic lemslatioiito thecontrary.Concurriacfwiththe said decisioas,itm^as howeveropinedthatthesamecouldnotmeanthat it restrictedtbejurisdictionof the

51.Liverpooland LondonS.P. and I Asson.Ltd.(supra)has been followedbv the SupremeCourt in' aplethoraof cases inter aliaThe State of West BengalV.KesoramIndustriesLtd.&Ors.

W.P.(C) No.15239/2004

45.WithregardtotheapplicationofInternationalconventionsand treatiesin India, the SupremeCourt laid thefoUowingprinciples in para 47 of the judgment

46.In AIR 1997 SC 3011Vislmka and othersVs.Rajastliaiiand Others,the court was concernedwith writpetitionfiled for preservationand enforcementof the right togenderequalityand fundamentalrightsof workingwomenunderArticles14^19and21of theConstitutionof India,Section2 of Protectionof HumanRightsAct,1993and theentitlementsofworldngwomenundertheConventiononEliminationof All Formsof DiscriminationAgainstWomen.There was no specific domestic legislationon the subject.Withregard,totheimportanceandapplicabilityof internationalconventionsand treaties,the court held as follows -

"7. In the absenceof domesticlaw occupyingthefield, to formulateeffectivemeasuresto check the evilof sexual harassmentof workingwomen at aU workplaces,the contentsof InternationalConventionsandnorms are significantfor the purpose of interpretationof the guaranteeof gender equality, right to work withhuman dignity in Articles 14, 15, 19(l)fcr) and 21 of theConstitutionandthesafeguardsagainstsexualharassmentimplicittherein., AnvInternationalConventionnotinconsistentwiththefundamentalrights and in harmony with its spirit must be read intotheseprovisionsto enlargethe meanincrand contentthereof,to promotetheobjectof theconstitutionalcruarantee.This is implicitfrom Article 51(c) and theenablingpowerof the Parliamentto enact laws forimplementingtheInternationalConventionsand

norms by virtueof Article 253 read with Entry 14 ofthe Union List in Seventh Scheduleof tlfe Constitution.Article 73alsoisrelevant.Itprovidesthattheexecutivepowerof theUnionshallextendtothematters with respect to which Parliament has power tomakelaws.Theexecutivepowerof theUnionis,therefore,availabletilltheParliamentenactslegislationto expresslyprovidemeasuresneededtocurb the evil."

47.In(1999)1SCC759 ApparelExportPromotionCouncil vs. A.K. Chopra,also the Supreme Court was dealingwith the case of sexual harassmentat the place of work whichvitiatedtheworldngenvironmentandobservedthattheinternationalinstrumentscast an obligationon the Indian Stateto gendersensitiseits laws and that the courtsare under anobligationtoseethatthemessage:oftheinternationalinstrumentsis not aUowed to be drowned.The Supreme Courtagain emphasisedthat the courtsmust never forgetthe coreprinciplesembodiedinInternationalConventionsandInstrumentsand reiteratedthe above principles.48.In(2003)6 SCC 1 KapllaHiiigoraiilVs. State-oiBihar, the Apex court stressed on the importanceof respectingInternationalTreatiesand ConventionswhileinterpretingtheConstitutionand domestic law so as to effectuatethe recognisedrights and observed as follows-

"47. It is also well-settledthata statuteshould beinterpretedin the light of the InternationalTreatiesandConventions.In Chairman,RailwayBoardandOrs. V. Mrs.ChandrimaDasandOrs. MANU/SC/Q046/2000:2000CriLJ1473thisCourtstated the law thus:-"24.TheInternationalCovenantsandDeclarationsas adopted bv the United Nationshave to be respectedbv all sicrnatorvStatesand the meaninggiven to the above words inthoseDeclarationsand Covenantshave to besuch.aswouldhelpineffectiveimplementationofthoserights.

W.p.(C) No.15239/2004

amlicaMMtvof the .UniversalDeclarationHumanRialitsandthethereof iimv Imve ^to beinto the domestic hirismndence."

49.As noticed above, right to residenceand to settle in anypart of the country is assured to every citizen as fundamentalright under Article19(l)(e)of the Constitutionof India.(Ref :1997 (11) see 121 Ahniedabad MunicipalCorporationrs,'Nawab Khan Gulab Khan & Ors,) The right to shelter springsfrom this right and has been consideredto be an integralpart•for meaningfulenjoymentof right to life under Article21 ofthe Constitutionof India.(Ref.: 1995 SuppL 3 SCC 456 ; AIR1996 SC 114U.P. Avas EvamVikas Parisbad& AnrVs,Friends Co-operativeHousing- Society Ltd. & Anr.)50.In the instantcasealso thereis no specificdomesticlegislationat all for internallydisplacedpersons.As noticedhereinabove,therearealsonoInternationalConventionsgoverningrights of such persons.It is now an acceptedrule ofjudicialconstructionthat regard must be had to internationalconventions,normsandguidingprinciplesforconstruingdomestic law when there is no inconsistencybetween them andthere is void in the domesticlaw.51.Itisnoteworthythatthereisnospecificlaw,rule,regulationor instrumentprovidingfor treatmentof IDPs orsettingoutanyminimumstandardsfortheirprotection,rehabilitationandrelocation.TheGuidingPrinciplesonInternalDisplacementreiteratetheveryrighttoshelterconstitutionallyguaranteedand recognizedas basic humanright in the internationalinstruments.TheseGuidelinesthus

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consolidateandfillgapsinnationalandinternationallawrelatingtosuch, displacedpersons.Theyalsoprovidecvaluablebenchmarkfor what must be ensuredas part of thebasic human rightssecurityof such personsand would guideconsiderationof the rights of the present petitioners.52..It has been observed by the. SupremeCourt in (2003)6.see1Kapila.HiiigoratiiiVs.Stateof Bilmrthatindisputably,the state parties to the InternationalCovenantonEconoinic,Social& CulturalRi,ghts were to take appropriatesteps to ensure realisationof this thought.So far as the presentcase is concerned,this covenantspecificallystates the right ofeveryone to an adec[uate standard of living including housing.53.TheruleslaiddownandrightrecognisedintheaforenoticedconventionsaswellastheGuidingPrincipleswouldbind the presentadjudicationalsoin the lightof thefollowingprinciplelaiddownin. EiiteitmiimeiitNetwork

"54Furthermore,as regards the question wherethe protectionof human rights,environment,ecologyandothersecondgenerationorthird-generationrightsis involved,the courtsshould not be loathetorefer to the InternationalConventions."

54.The petitionersare membersof the largergroupfromtheir community which stands forcibly evicted from one part ofthe country rendering them homeless and resourceless.Theyare without resourcesat the place of their relocationand arefacedwiththethreatofforcibleevictionfromtheiraccommodation.By way of these writ jbetitions, the petitionersseek protection and enforcement of their fundamental right tolifewhichincludesshelter.Theinternationalconventions

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recogniseshelterasabasichumanright.TheGuidingPrinciplesreiteratethe same rightsand responsibilitiesof thestatesofarasIDPsareconcerned.Considerationofthepetitioners'rights,therefore,would necessarilyinvolve ensuringthe objectivesand declarationsmade in the above internationalinstrumentsespecially those endorsed by India reiteratedby theGuiding Principlesfor IDPs.

The ProtectionofHuman Rights Act. 199355.The issue in the instant case has anotherdimensionto itwhich is of importance..In dischargeof the obligationunderthe internationalcovenants,Indiapromulgatedan ordinanceappointingcommissionsand courts for the protectionof humanrights.Thisordinancewas replacedby theHmiiaiiRmlits Act. 1993 was. promulgatedon 8"' January,1994 to providefor the constitutionof the nationaland statehuman rights commissions and human rights courts for betterprotectionand •for mattersconnectedtherewithor incidentalthereto.'Human rights are defined in clause (d) of sub-section(1) of Section 2 as the 'rigiits relating to life, liberty, equahtyand dignity of the individual guaranteed by the Constitutionorembodied in the InternationalCovenants and enforceable bycourts in India'.

The expression'internationalcovenants^is also defined toinclude the two covenants adopted by the General Assembly on16"' December, 1966 and such other covenants and conventionsadopted by the General Assembly of the United Nations as theCentralGovernmentnotification.Themayspecifybyenforc.eability of the several rights recognised under the

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InternationalCovenants,therefore,standsrecognizedby thislegislationin India.The said Act was made by the Parhamenthavingregardto thechangingsocialrealitiesandgrowingfConcern in India about issuesrelatingto human rightswith aview of bringing about greater accountabilityand transparencyin enforcementof the laws of the nation.

56.It is essentialto note that in fact no new right is beingcreated,recognizedorreiteratedbytheinternationalinstrumentsor the said guidelines.The right to shelter of everyperson has been recognizedas an essential concomitantof rightto lite under Article21 of the Constitutionof India.It wouldclearly be covered under the definition of 'human right' underSection2(l)(d)of the Protectionof Human Rights Act, 1993which includes right relating to life, liberty, equality and dignity.The right to shelter,an essential part of right to life, wouldthereforealso be statutorilyrecognizedright, under Section2(l)(d) of the Act of 1993 and enforceableas such also.

The present petitioners,as personsdisplaced from theirhomes and state,by way of these writ petitionsare thus,seeking enforcementof such right to shelter.57.The abovediscussionwould show that statecourtsarebound to use internationalhuman rights covenants,which alsostand incorporatecl into the Protection of Human Rights Act,1993, as pihar of support for the rights recognised therebyand to ensurethe' recjuisiteassistanceas weU as accesstoshelter as positive right so that the bare minimum for those in 'need is enabled.The petitioners assert such rights in thechallenge laid in these writ petitions.

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58.Onbehalfoftherespondents,itisurgedthattheallotmentofthequarterstothepetitioners(ortheirpredecessors)standscanceUed.Theyarethereforeinunauthorisedoccupationof the Governmentaccommodationandthereforeliable to be evicted under the provisions of the PublicPremises(Eviction of UnauthorisedOccupants)Act, 1971.Thesubmission is that the proceedingstaken by the respondentsand the orders passed against the petitionerswere justified andare in accordancewith law.

59.On the other hand, the petitionershave urged that even intheir wildest dreams, they had never envisaged situation whenthey would not be in positionto residein their own homesafter retirement.On account of grave threatsto their, safety,the petitionershave been preventedfrom returningto theirhomes.The petitionersare not residing in Delhi on account of adesire not to return to the valley or to perpetuateresidenceinDelhi, but for reasons totally beyond control of these petitioners.The writ iDetitionershave stated that their homes inKashmirhave either been destroyedor renderedinaccessibleto themprimarilyon accountof the inabilityof therespondentstoprotect the same.They do not have adequate.meansto acquireany property in Delhi.It is the petitionerscontentionthat the

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' Page 53 of 157

pensionadmissibleto tliemdoesnot enablethemtoafforrentedaccommodationor acquiretheirown houses.Thepetitionershave submitted that the respondentshave permittedsimilarlysituatedpersonstocontinueintheaUottedaccommodation.Relianceisalsoplacedonordersof theSupremeCourt,thisCourtandtheCentralAdministrativeTribunalalsoprohibitingevictionof similarly' placedpersonsfrom allottedaccommodation.

In this background,the petitionersassail also the failuretoconsidertheirrequeststotherespondentstoexercisediscretionvestedin them under the Allotmentof GovernmentResidences(GeneralPool in Delhi)Rules,1963 to permitthepetitionersto continueto occupy the allottedpremises.It isurged that this refusalwas discriminatory,arbitraryand hasfailed to consider the relevant circumstances.60.It is contended by the petitionersthat in these facts, theyare not in unauthorizedoccupationof the quartersand that therespondentscouldnothavetakenrecoursetoproceedingsunderthePublicPremisesAct,1971whichwouldhavetheeffectof oustingthemandtheirfamiliesfromtheironlyresidencewithouttakingstepsofmakingprovisionof•reasonablealternatives.Thecontentionis thattheentireactiontakenby the respondentsand implementationof thethreatof forcibleevictionwouldresultinviolationof thefundamentaland basichumanrightsof the petitionersand,therefore,isunconstitutional,withoutjurisdictionandcompletely illegal.

Page 54 of 157

Bin din cf ill dicial preceden ts

61.So far as the conditionswhich werein existencein thestate of Jammu & Kashmir,tlie restorationof normalcyand the•circumstancesin which they are occupyingthese quartersareconcerned,reliancehas been placed by the petitionerson theproceedingsand orderspassedin severalsimilarcasespriorhithertowhichhavebeencompletelyignoredbytherespondents.Attentionis drawn to the orders of the SupremeCourt of India in SLP (C) No.7639/1999Sliri JX. Koul &Aiir.Vs. State ofJammu & Kashmir & Ors.Shri J.L. Koul Srthe other petitionersin this case were Kashmiripanditswhowereemployeesof theStateGovernmentandbeingStateGovernmentservants,hadbeenaUottedresidentialaccommodationsin Jammu between1989-90.Their houses inthe valley were eitherdestroyedor burnt down by militants.Even thoughthey had retiredfromservice,thesepetitionerswere permittedto retainthe governmentaccommodationsinJammuforsafetyreasons.Suchastepwasconsiderednecessaryandinevitableby theStateGovernmentastheatmospherewas not congenial for the appellantsto return to thevalley, more so when they had lost their respectivehouses.62.Itappearsthatotherstategovernmentemployeesawaiting allotmentof official accommodation,could not get thesame forthe reasonthat theseretiredpersonscontinuedtooccupy the official accommodation.They filed writ petitionbeforetheHighCourtof Jammuand Kashmircomplainingagaiiast the failureof the StateGovernmentto providethemwith official accommodation. Alearned Single Judge of the High

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qoCourt of Jammu St Kashmir had allowed the writ petitionaMpassed judgment on 24"'January,1997 directing eviction of aUthose personswho had ceased to be governmentservantsforany reason but were still occupyingthe state accommodation.The learned Single Judge had also directed that the persons whowerenotingovernmentservicebutreciuiredGovernmentaccommodationbecauseof security reasons,should be tried tobe accommodatedwithin one complexso that their securityisensured,reducing the burden on the. state which would have toincur lesser amount for their security.63.For the reason that the state governmentwas attemptingto evict these occupants without providing them with alternativeaccommodations,a challengewas laid to the judgmentof theSingle Judge dated the 24*^'' of January,1997 by letters patentappeal.This, appeal was dismissedby theDivision Bench by ajudgmentdated14"'March,1997,however,givinganopportunitytotheappellantstoapproachtheappropriateauthorityfor relief.In this background,these personsled byShri J.L. Koul, filed the above special leave petitionbefore theSupremeCourt.On .considerationof the matter,an interimorder order dated11"' April, 1997 was passedby the courtdirecting the state government to maintain status quo regardingthe possessionof the property.64.'Mr. R.K. Handoo, learned counsel for the petitionershasreferred to certain orders passed by the Supreme Court of Indiain the said petition.On 26"' August. 1997. the Supreme Courthad requiredcounsel representingthe Stateof Jammu &Kashmir to ascertainfrom the State Governmentas to whether

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tlie petitionerscan be put back in to the houses owned by themin the Kashmir Valley and to ensm^e protectionof their personsas also their properties.

65.,, The case was thereaftertaken up by the SupremeCourton 28"' January,1998 when the SupremeCourt took notice ofthe massacreof KashmiriPandits in the Kashmir VaUey whichhad taken place few daysprior to the hearing and recordedthe followingorder,

"Thisorderis beingmadein thebackdropof amassacreof KashmiriPanditswhichtookplaceacouple of days ago in the Kashmir valley.Adjournedsine die. •Stay to continue.The petition tobe activatedon mentioningby counsel for the State oflammuandKashmiras and whentheStateis inapositiontoassurereturnof thepetitionersto theirrespectivehomesintheKashmirvalleyandensuretheir safety and personal property."

(Underliningsupplied)

66.It is noteworthythat the SupremeCourt had also passedan order on 3"^^ December.2008 (in Sliri J,L,vs. State of T&K aforeiioticed)directing the respondent-stateto framea rehabilitationscheme within period of six monthsand to place the same before the court.For the reason that nomaterial or scheme was placed before it by the respondents,on17"' September,2009, the SupremeCourt directedthe ChiefSecretaryof the Stateto filea personalaffidavitas to whatsteps had been taken pursuant to the orders of the court.67.An affidavitdated6"' October,2009 was thereafterfiledby the Chief Secretary in the case.The. appeal was disposed ofby final judgment on 27"' October, 2009 which stands reportedat 2009 (1) AD SC 253 J.L. Koul & OthersState of'ir.So far as rehabilitationof the Kashmiri

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migrantsis concerned,tlie affidavit dated6'^'" October,2009 'iiabeen consideredin para7 of tlie judgmentin the followingterms

"7. In pursuanceof the said order, the Chief Secretaryhasfiledtheaffidavitdated6.10.2009.In thesaidaffidavit it has been disclosed that outof 54 appellants23hadalreadyhandedoverthe' Governmentaccommodationto the State Departmentand' the samehad been allottedtothe Governmentemployees.Only31 migrants/retireesare presentlyinoccupationof theGovernmentaccommodation.Ithasfurtherbeenclarifiedthat there are 37,280 familieswho have beenrecristeredfor the rehef includingtheaccommodationand out of them only 5,000 familiescould be, providedthe accommodationin the camps. However,it had beenundertakenthattheGovernmentwouldTJrovidesuchfacilitiesto all Kashmiri migrants till they are residing atthe ipresentplaces.The relevantpart of the affidavitreads as under

"5.ThatitisfurthersubmittedthatGovt.•formulateda package for return and rehabilitationof KashmiriMigrantswhich involvesan outlayofRs.1618.40crores.This is for the firsttime since1990,thatGovt,of IndiahascomeuidKashmiri Migrants.The policy has been framedontherecommendationsofaconstitutedby Govt, of India to suggest variousconfidencebuildingmeasuresin the J&K State.Whileframingthepolicyvariousneedsof themigrantshave been taken into consideration,suchas housing,education,revLvar of AgricultureandHorticultureland,employmentetc. The detailsofthepackageannouncedon5'^' June2008arereproducedas under:-

i)ReturnandRehabilitationPackageofKashmiriMigrants:The total packageinvolvesanoutlayofRs. 1618.40crore.Thecomponentsof- the packageare as under:(a)i) Assistance(5) Rs.7.5 lac for fully or partiallydamaged house left behind by migrant."(ii) Rs.2.00 lac for dilapidated/unusedhouses.(iii) Rs.7.5.lac for purchase/constructionof ahousein GroupHousingSocietiesfor those whohave sold their propertiesduring the period after1989andbeforetheenactmentof"TheJ&KMigrantImmovableProperty(Preservation,

ProtectionandRestraintofDistressSale)Act,1997" on 30.5.1997.(b)TransitAccommodation: Constructionoftransitaccommodationat threesites(5) Rs.20.00crore each for total Rs.60.00crore.Alternatively,Rs.1.00lacperfamilytowardsrentaland,incidentalexpensesto those familieswho may notbe accommodatedin transit accommodation.(c)Continuationof CashRelieftoMigrants:Migrants-familiesat' JammuandDelhiwhoarerecipientsof cashreliefandfreerationwouldcontinue to receive the same @ Rs.5000 per familyper month (includingrations)for periodof twoyears after their return to the valley.7.ThatitmaybefurthersubmittedthatunemployedyouthwereaskedtoconveytheirwillingnessforservinginKashmirValley.Inresponseto the same,14074unemployedyouthhaveexpressedtheirwillingnessin writingforserving in Kashmir valley.

8. That it is further submittedthat form called"EXPRESSIONOEINTEREST"wascirculatedamongthemigrantsin orderto ascertaintheirwillingnessto returnto valleyandso far1676families liave expressed their willingnessto returnto valley and avail the concessionavailableunderthe package.

9. That it is furthersubmittedthat land at thefollowingthree sites have already' been identifiedforconstructionof transitaccommodation,thedetailswhereofare as under:a- Land at Vessu,DistrictKulgam 100 Kanals.b- Land at Qazigund,District Anantnag25 Kanals.c- Land at Khanpura,District, Baramulla50 Kanals10. That it may be furthersubmittedthat 200flatsarenearingcompletionatSheikhporaBudgam.In additionto this,18 flats are availableat Mattan Anantnag.These flats are to'be used astransitaccommodationby the Kashmirimigrantswho wish to returnto valley.The migrantsshaUstavinthetransitaccommodationtiUthevreconstructor renovate their houses.11. That it may be further submitted that StateGovernment had also constitutedan, Apex AdvisoryCommitteetooverseetheimplementationofReturnandRehabilitationpackageforKashmiriMigrantsin themonthof September2009andimmediatelyaftertheconstitutionof theApexLevel 8 Committee,varioussuggestionswere putforth in meeting held on 23.9.2009.12. That it may be furthersubmittedthat theStateCabinetvideitsdecisionNo. 130/11/2009dated1.10.2009has approvedthe packageforReturn and Rehabilitationof KashmiriMigrantstoKashmirVaUev.However,withregardto

W.P.(C) No.15239/2004

implementationofemploymentschemeaCommitteehas also been orderedto be constitutedtogointothelegaland otherimplicationsformaking recruitmentsof the migrant youth againstvariousposts ,before, the said schemeis formallynotified.The Committeehas to submitits reportwithin period of two weeks.13.ThattheStateGovernmentiskeentorehabilitatethe KashmiriMicrrantsin the Kashmirvalleyand shall provideevery tyi^e of assistancefor their returnand rehabilitation.The processfortherehabilitationin vallevhasbeeninitiatedinTune2008afterGovt.of Indiamiiiomicedt(Emphasissupplied)

The Supreme Court observed that this case had remainedpending before it for twelve years and that the court had beeninsistingupon the state to frame the scheme of rehabilitationoftheappellantsandparticularlyfor•providingthemaccommodation.Placingreliance. ontheaboveaffidavits/undertaldngsgivenby therespondents,theCourtfurtherobservedthattheauthoritieshaveframedtlierehabihtationscheme and for implementationof the same, it hasgot sufficientresourcesalso-.In this background,the Supreme/Court issued the followingdirections:-

"9. In view of the, above affidavit/undertakinggivenby the State and after hearing Mrs. Purnima Bhat Kak,Ld.CounselfortheappellantsandMr.AnisSuhrawardy,Ld. Counsel for the State, we disposeofthe appeal with apious hope that State shall take aU•endeavoursto rehabilitatethejjersoiiswhohave]3een victimof terrorismand till the State is able.accoiiimodatioiito 31 auuellaiits-retirees/oiistees,continuetoposs&sspossessionon this date,"

(Emphasis supplied)

68.It is noteworthythattheonly differencebetweenthepetitionersbefore the Supreme Court and those who are beforethis. courtis, that thepetitionbeforethe SupremeCourt

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relatedto personswho ^were retiredemployeesof the StateGovernmentwhile the present petitionersare all employeesofthe CentralGovernmentand its departments.However,thepetitionersbeforetheSupremeCourtandthepresentwritpetitionersare identicallyplaced victimsof the militancyandthe rightsassertedby both sets of the petitionersand issuesraised by them are identical.69.WhiletheabovepetitioniremainedpendingintheSupremeCourt,someothersimilarlyplacedemployeeswerefacingtilesamethreatofevictionasthe . presentsetofpetitioners.Some such personsapproachedthis court whileothersfiledapetitionbeforetheCentralAdministrativeTribunal.The orders passed in these matters would also have abearing, on the present consideration.70.Referencerequiresto be also made to judgment passedon 2"^ August.2006 in WF (C) No,11742/2005entitled PJCHaiidooVs, EstateOfficer& Aiir.by this court whichisreported at 132 (2006) DLT 672.Shri P.K. Handoo was also aKashmiriPanditand partof the minoritycommunityin theKashmir valley.-.An employeewith the IntelligenceBureau ofthe Governmentof India, he had retired from the service on 3P''July,2004 whereaftereffortsto cancel his allotmentand evicthim by way'of proceedingsunder the Pubhc PremisesAct, 1971had been undertaken.Sh. P.K.Handoo filed the writ petitionassailing this action.and the eviction order dated 30'^'June, 2005passed against him in the proceedingsby the estate officer andalsosoughtissuanceof writof mandamusagainsttherespondentsto allow him to retain the officialaccommodation

whichhadbeen.aUottedtohimtiUsuchtimethatthGovernment made it possible for him to return to Srinagar or tillsuitable alternativeaccommodationis provided to him in Delhi.71.Theobservationsmadeby thiscourtin the judgmentdated2'^'^ August,2006 in P.K. Handoo (supra) while dealingwith the very objectionsurged in these proceedings,deserve tobe consideredin extenso and read as follows"11.The argumentsubmittedby the learned^counselfor the respondentsis typicallygauche.Itlacks sensitivity.ICashmir has never ceased to be hubof terroristactivity which is mainly directed against theHindu Pandits.The violence in the State is at its peak.Due to the obstinacyof terroristsand helplessnessofthe governmentto counter terror,the situationcouldnot improve.IndianConstitutionappliestoall thecitizensof India.Equal protectionmeq.ns the right toequaltreatmentinsimilarcircumstances.Thereshould be no discriminationbetweenone person andanotherifasregardsthesubjectmatterofthelegislationtheir positionis the same.It is settled lawthat judicialor quasi judicialdecisioncannot offendArticle14.• 12.In the result,I allow the writ jpetitioiiinRespondentsaredirectedtoallowthepetitionerto retainQuarterNo.D-845,MandirMarcr,New Delhi,pendingdecisionin SLP© No.7369/2007,subjectto paymentof normallicencefeesor in thealternativetherespondentsmayprovidealternativeaccommodationtothepetitionerandhisfamilyanywherein Delhi till the pendencyof the above saidwrit petitionbeforethe Hon'bleSupremeCourt.Nocosts."'',•(underliningsupplied)

72. Learned counsels for the petitionersliave also painstakinglypointedout the earliersimilardirectionsmade as back as on.30'^''December,2002bytheCentralAdministrativeTribunal in OA No,2378/2002entitledTej KislianVs. UnionS- Ors. on the same issue which have also been noticed

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and reiteratedin the P,K. Haiidoo(supra)judgment.It isnoteworthythat Shri Tej Kashan,a KashmiridisplacedpersonhadmadearequestforretentionofGovernmentaccommodationbeyond superannuationwhich was turned downby the Governmentby an order datedAugust, .2002.Thisrefusalwas assailedby way of proceedingsbefore the CentralAdministrativeTribunal.In these proceedings,the Tribunal hadplaced relianceon letter dated2""^ July, 2002 writtento theDelhi DevelopmentAuthority('DDA') by the Ministiyof UrbanDevelopment& Poverty Alleviationon the subject of preferentialallotmentof DDA flatsto J&K migrantCentralGovernmentemployees who had retired or were retiring.The tribunal notedthe letter in the following terms

"12. By referring to the letter dated 2.7.2002 writtento the DDA by the Ministry of Urbam Developmeiit& Poverty Ailevatioji.it is stated that this has beendecided as under:-"But the situationijrevailinain T&K is such thatdoesnotpermitthesafereturnoftheseretired/retiringCentralGovernment'emploveeswhocansettleafterretirementattheirnativeplace.Keeping this backgroundin view, decision has beentaken to allot about 100 MIG and LIG Flats in Dwarkatosuchretired/retirincrI&KmicrrantCentralGovernmentemploveessothattheCentralPoolAccommodationcouldbegot vacatedfromthem..DDA is, therefore,requestedto formulatea housingschemeforretired/retiringJ&KmigrantCentralGovernmentemployeesand send draft thereof tothis Ministry within fortnight for approval."(Underliningsupplied)

73.Intheabove. judgment,theCentralAdministrativeTribunalalsoobservedon violationof Article14 by therespondentsholdingthat ."thestateshallnotby itsactdiscriminate as between two individuals who are similarly

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circumstanced."These findingsare also noticed in para 10 ofthe judgment in P.K. Handoo's case (supra).74.I have-hadoccasiontodealwithasimilarissueinajudgmentdatedtheof AmiL 2008 renderedin W.P.fC)No,1065/2007M.K. Koul Vs, Union of Iiidm& Ors.In thiscase also the petitionerwas retired Kashmiri employee of theCentralGovernmentwho could not returnto Kashmirfor thesame reasonas the petitioners.Proceedingsfor his evictionwerealsoinitiatedbytherespondentsunderthePublicPremises(EvictionofUnauthorisedOccupants)Act,1971.During the course of hearing on 7''" April, 2008, query was putto counsel for the respondentin this case in respectof theposition with regard to the safety and security of the ICashmiriPandits in the valley.The position was revealed to be the sameas before. In para 14 of the said judgment, consequently it wasrecorded that "the respondentsare not in positionto ensuretheir safety and protectionand as such, in case they aredisplaced from the accommodation which they are occupying-,they willnot be in position to return to their respective homesin the Kashmir valley".

Consequently,the following directions were issued:-

"15.Ill-'sRllotmeiit or to enforcethe evictionorder which16.There isno doubt, that the petitioner wasmaking paymentof the normal licencefee while hewas in service.Interest of justice and equity meritthat the petitioner be required to make ijavment ofthe hcence fee on the same basis tiU such time as therespondentsareableto ensuresafetyof personal •

• W.p.(C)No.15239/2004 '

property of the petitionerin their home State or are inapositiontoprovidesimilaralternative, • accommodationtothepetitioneror thepetitioneracquiresanv other residentialpfopertv in Delhi.17.Inviewoftheabovediscussion,thiswritpetition is.allowed.Therespondentsaredirectedto, permitthe, petitionerto continueto occupythe QuarterNo.N-299,Sector-8,R.K. Puram,NewDelhisubjecttopayment of the same hcence fee as was being paid bythe petitioneron the date when he retired.Thisorder shall continueto operatetill such time as therespondentsprovidesimilaralternativeaccommodationto the petitioner,or the petitioneracquires any residentialproperty in his name.This writ petition is allowed in the above terms. .There shall be no order as to costs."(Emphasissupplied)

It is noteworthythat these orders have not been assailed

and have attained finality.

75.It is urged by learnedcounsel for the respondentsthatfailure of the Government of India to challenge the orderspassedinWl^fCJNo. 11742/2005entitled -P.ICHandookEstateOfficer& Ann;WP(C)No. 1065/2007entitledM.K.KaulV. UOI & Ors. and the other cases are immaterialand would have no bearingon the instantcase.Rehance isplaced on the pronouncement of the Apex Court reported at(2006) II see 709 CoL B,J, AMiaraVs. GovernmentofIndia & Ors.in support of this submission.76. . It is noteworthy that CoL BJ. AM&ra's case '(supra)related to efforts of the Government to recover payment ofexcess amount as pension.Certain orders stood passed in thewrit petition filed by other employees who had raised similarchallenge.These orders had not been challenged by theGovernment.In this background, the petitioner had.contendedthat the Governmentwas estoppedfrom recoveringthe amount

W.P.(C) No.15239/2004

from liim in view of those orders which had attainedfinahty.The ApexCourtrejectedthecontentionsand held thattheUnionofIndiawouldnotbebarredfi-om resistingthesubsequent writ petitions involving similar issues or chahengingsubsequentjudgmentsoftheHighCourtrealisingtheseriousnessor magnitude of the issues or financial implications.The position would be different only if it is estabhshed that theGovernirient had adopted pick and choose method. only toavoid relief to the petitioneron account of mala fide or ulteriormotives.It was held that principles of estoppel, res judicata,iegitimate expectation or fairness in action were not attractedon the facts of the case.

No,plea of violation of fundamental rights was involved inAkkcu-a's case (supra). There can be no comparison with thefacts ofAM^m-a's cases.case (supra) with.thoseofthe present77.The were aforenoticed judgments and orders clearlyreleA^ant andforand binding upon the respondents construingtaldng view on the contentionsand claims of the petitioners.The respondents were also bound by the deposition and thepohcy placed before the Supreme Court which resulted in itsjudgment dated 6'^ of October, 2009. The available records donot show considerationof the aforenoticedand anyjudgments01dels so far as the rights and plight of the petitionersareconcerned.

Cancellation of allotments and action under the Puhlic PremisesAct 197178.Mr. Jatan Singh, learned counsel appearing for therespondent No.1 has contendedthat the decisionto cancel the

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allotmentsand to initiatethe proceedingsunderthePublicPremisesAct,1971 as well as the ordersof the EstateOfficerand the judgmentsof theAppellateCourtarein termsofstatutoryprovisionscannotbe assailedby way of thesewritpetitions.

Relianceis placedon the pronouncementsof this courtreportedat {1995) II AD Delhi 293 Union of IndiaVs, S.M.Affffarwal & 31 others-,2000 (55) DRJ 57 BMm Singh Vs.Union of India& Aar.; AIM 1977 Delhi 268 Hardwari LaiVerma Vs, The Estate Offic;er& Ors. in suijport.79.This objection of the respondentsignores well settled firstprinciples'of law.Merely because the impugned action is takenand order passed in purported exercise of statutory powerwould not render it immune fromjudicial scrutiny. The cfuestionas to mannerin whichsuch actionand ordersviz-a-viztheireffect on fundamentalrights wiU be examined, stands answeredby the Supreme Court in AIR 1978 SC 597; (1978) 1 SCC 248Maiieka Gandhi Vs Union ofIndia and others.In this case,the court had made the following observationswith regard tothe impact ofactiontaken under provisionsof the PassportAct:-

"Now,iftheeffectofStateactiononafundamentalrightis directandinevitable,thenafortiorari,it must be presumedto have been intendedbythe authority taking the action and hence, this doctrineof direct and inevitable effect has been described bysome juristsas the doctrineof intendedand real effect.This is the test which must be apphed for the purpose ofdeterminingwhetherSection10 (3) (c ) ofthe impugnedorder made under it is violative of Article 19 (Dfa) or(g)."

80. The SupremeCourtfurtherruledthatit is not necessarytoassail the constitutionalvalidity of the statutory provisions

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under wliiclithe impugnedorder is made and tliat the courtwould still be able to examineas to Whether the order made inexerciseof statutorypower was invalidfor the reasonthat itcontraveneda fundamentalright holding as follows

"But thatdoesnot meanthatan ordermadeunderSection 10(3)(c) ) may not violate Article 19(l)(a) or (g).Whilediscussing'theconstitutionalvalidityoftheimpungedorderimpoundingthepassportofthepetitioner,we. shall have occasion to point out that evenwhere statutoryprovisionempoweringan authoritytotake action is constitutionallyvalirl^ action taken under it•may offend fundamentalricrht. and in that event, thoughthe statutory provision is vahd, the action may be void.

It is true,and we must straightawayconcededthatmerely because statutory provision empowering anauthorityto takeaction in specifiedcircumstancesisconstitutionally vahd as not being in conflict with anyfundamental rights/itdoes not give carte blanche tothe authority to make any order it likes so long as it iswithin the parameters laid down by the provision.Everyoffer made under statutoryprovisionmust not only bewithin the authority conferred by the statutory provision,but mustalsostandthetestof fundamentalrights.Parliamentcannotbe presumedto haveintendedtoconfer power on an authorityto act in contraventionoffundamentalrights.Itisabasicconstitutionalassumptionunderlyingevery statutoiTgrantof power• that theauthorityon which the poweris conferred,shouldact constitutionallyand not in violationof anvfundamentakright.This would seem to be elementaryand no authority is necessary in support of it."(Underliningsupplied)

81.In the above case, the Supreme Court held that eventhough the impugned order was within the terms of the relevantsection, it must nevertheless, not contravene any fundamentalrights and if it does, it would be void".

So far as the present case is concerned, even it were tobe held that the action taken the was by respondentspermissible under the statutory provisions, but if it violated oradversely impacted fundamental rights of the petitioners, itwouldhave to be voided. This objectionto the maintainabilityof

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thepresentwritpetitionsis thereforemisconceivedandisrejected.

'82.Anexaminationof' theorderofcancellationoftheallotment requires to be undertaken.The only rules relied uponin support of the power to permit occupancy of the quarters arethe Allotiiiejitof GoverimientResidences-(Geiiera.1 Pool inDelhi) Rules,1963.Cancellationof the allotmenthas beeneffected under these very rules.

83.The respondents have permitted the petitioners to occupythe same in exerciseof jDower conferredon them.It is not therespondents'case that the petitioners came into possession ofthe quarters illegally or without authority.The occupancy isbeing treatedas unauthorisedby the respondentsfor" thereason that they have cancelled the allotments.

84.In view of this stand of the respondents,it becomesnecessary to examine the provisions of the Public Premises Act,1971.

85.'For the purposes of the instant case, the expression"unauthorized occupation"as defined under section 2(g) of theAct, 1971 has to be construed.

Section 2(g) of the said statute reads as follows

"2(g)"unauthorisedoccupation".in relationtoany public premises, means the occuiDationby anyperson of the pubhc premises without authority forsuch occupation,and includesthe continuanceinoccupation by any person of the pubhc premisesafter the authority,(whether by way of grant or anyothermodeof transfer)underwhichhewasallowedto occupythe premises, has expired or hasbeen determined for any reason whatsoever."

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86.So far as the proceedingsfor. eviction under the PubhcPremisesAct 1971are concerned.Sections4 and 5 thereofdeserve to be also considered.Tlie relevant extract reads thus;-

of eviction..- (1) If the estate officer is' of opinionthat any persons are in unauthorisedoccupationofanypublicpremisesandthattheyshouldbeevicted,theEstateOfficershallissueinthemannerhereinafterprovideda noticein writingcalling upon all personsconcernedto show causewhy an order of eviction should not be made.

(2) The notice shaU-

(a)specifythegroundsonwhichtheorderofeviction is proposed to be made; andeviction is proposed to be made; and(b) requireall personsconcerned,that is to say, aUpersonswho are, or may be in occupationof, orclaim interest in, the public premises,-personswho are, or may be in occupationof, orclaim interest in, the public premises,-

(i) to showcause,^ if any,againsttheproposedorder on beforesuch date as is specifiedin thenotice,beinga date not earlierthan sevendaysform the date of issue thereof,and

(ii) to appear before the Estate Officer on the datespecifiedin thenoticealongwiththeevidencewhich they intendto producein supportof thecause shown, and also for personal hearing, if suchhearing is desired.]

xxxx

5. Evictionof unauthorisedoccupants,- (1) If,after, considerincr the cause, if any, shown by anypersonin pursuanceof noticeunder section4and [any evidence produced bv him in support ofthe same and after personal hearing, if any, givenunder clause (b) of sub-section(2) of section 4], theestate officer is satisfied that the public premisesai-e in unauthorisedoccupation,the estateofficermay make an order of eviction,for reasonsto berecordedtherein,directing,that-thepublicpremises shall be vacated,on such date as may bespecified in the order, by all persons who may bein occupationthereofor any iDart thereof,andcause copy of the order to be affixed on the outerdoor or some other conspicuous part of the publicpremises.

(2), If any person refuses or fails to comply with theorder of eviction[ on or before the date specifiedin the said order or within fifteen days of the dateof its publicationunder sub-section(1), whicheveris later.] the estate officer or any other officer dulyauthorisedby the estate officer in his behalf [ may,after the date so specified or after the expiry of theperiodaforesaid,whicheverislater,evictthatperson] from, and take possessionof, the public."(Underliningsupplied)

87.Thepresentcasesraiseapertinentquestionastowhetherthe cancellationof the allotmentsto the petitionerswas justifiedand valid and whether the petitioners'occupancythereaftercouldbebroughtwithinthemeaningoftheexpression"unauthorised"underSection2(g)of thePubhcPremises Act, 1971.

88.The statutorydefinitionof the expression"unauthorisedoccupation"in Section2(g) of the PublicPremisesAct,1971thusrequiresjudicialinterpretationfor the purposesof thepresentcases.In this regard the oft quoted words of JusticeP.N.Bhagwatiin(1983)1SCC 228NationalTextileWorkers'Union vs, P.M. MamalaisliJianwould be appositewhen it was stated as foUows

"We cannot allow the dead hand of the past to stiflethe growth of the living present.Law cannot stand still: it must change with the changing social concepts andvalues. If the bark that protects the tree fails to growand expand along with the tree, it will either choke thetree or if it is living tree, it will shed that bark andgrow new living bark for itself. Similarly, if the lawfails to respond to the needs of changing society, theneither it will stifle the growth of the society and chokeits iDrogress or if the society is vigorous enough, it willcastaway the law which standsin the way of itsgrowth. Law must therefore constantly be on the moveadapting itself to the fast changing society and not lagbehind."

89.While interpretingstatutory provisions,the Supreme Courthasalsoapprovedandappliedin numberof cases,theprincipleof "updatingconstruction"while interpretingstatutesassetoutbytheleadingjuristFrancisBennioninhiscommentariestitled 'Statutory Interpretation',2""^ Edn,, pg 617.{Ref : (2003)4 'SCC 601 Stateof MalmraisMravs.Dm\Praful DJ Desai ; (1997) 5 SCC 482 CIT Vs, Poddar CementPvt. Ltd.; (2000) 8 SCC 740 Basavaraj M. Patil vs. State ofKariiataka}.These principleshave been noticed in (1996)2SCC 428 Statevs. S.J.and read as follows

"(2) It is presumed that Parhanientintends the court toapplytoanongoingActaconstructionthatcontinuouslyupdates its wording to allow for changessincetheActwasinitiallyframed(anupdatingconstruction).While it remains law, it is to be treatedas always speaking.This means in its applicationonany date, the languageof the Act, though necessarilyembeddedinitsowntime,isneverthelesstobeconstruedin accordancewith the need to treatit ascurrent law."

At page (618-19),of the report, it is further noted that:-

'Tn construingan ongoing Act, the interpreteris topresume that Parhament intended the Act to be apphedat any future time in such way as to give-effect to thetrue original intention.Accordingly, the interpreteristo make allowances for any relevant changes that haveoccurred,sincetheAct'spassing,inlaw,socialconditions,technology,themeaningof words,andother matters. Just as the US Constitution is regardedas 'a living Constitution', so an ongoing British Act isregardedas 'a living Act'.That today's constructioninvolves thethat Parhament was supposition cateringlong ago for state of affairs that did not then exist isno argumentagainst that construction.Parliament,inthe wordingof an enactment,is expected to anticipatetemporal developments. The drafter will tiy to foreseethe future, and allowfor it in the wording."

It was, therefore, observed that an ongoing Act is takento'be always spealdng stating that

W.P:(C)'No.15239/2004

. "All enactmentof former days is thus to be read today,in the hght of dynamicprocessingreceivedover theyears, with such modificationof the current meaning ofits languageas will now giveeffectto theoriginallegislativeintention.The reality and effect of dynamicprocessingprovidesthegradualadjustment.Itisconstitutedby judicial inteipretation,year in and yearout.Italsocomprisesprocessingbyexecutiveofficials."

Thus, the courts have over the period of time applied thisprincipletointerpretvarioustermsandphrasesincluding"stagecarriage"hasbeeninterpretedtoinclude"electrictramcar";"steam tricycle"to include"locomotive";"telegraph"to include"telephone";"banker'sbook" to include"microfilm";"to take note" to include "use of tape recorder";"documents"toinclude"data bases";"handwriting"was construedto include"tyiDewriting"{Ref:1996(2)SCC428StateVs.SJ,CImudlmry}.'"^^otice in writing"in Section138 of theNegotiableInstrumentsActwereconstruedtoincludea"notice by fax".{Ref ; (1999) 4 SCC 567. SIL Import USAVs. Emm Aides Silk Exporters}.This principle of legalinterpretationwould squarely apply to the constructionto beplacedontheprovisionsof PubhcPremisesAct,1971.90.Because of the pecuhar circumstances prevalent in theKashmir valley, members of the minority community weretargettedand singled out for hostility as class in their homestate.Admittedly, the state was unable to protect their rightsor properties.

91.The state authorities,assessed the threat perception and to the lives to some of thewho weredanger petitioners bodilyevacuated from their homes in the valley.The transfer of the

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^4petitioners,(orthatofthepersonsonwliomtheyweredependent),to Delhi, which preceded the allotment of quarters,wasthuscompelledbytheinabilityof therespondentstoprotect and ensure the right to life of the petitioners.The samewas certainlyinvoluntary.The allotmentswere result of theextreme necessity recognisedand adjudged by the respondentsthemselves.It is also noteworthythat"thosefleeing to safetyhadno opportunityto secureor salvagetheirproperties.92.It is an admitted fact that over this period, the i3ropertiesof thepetitionersin Jammu& Kashmirhaveeitherbeendestroyedor, in' othercases,occupiedby militantsor themajority groups in the state.On accountof the inability of theGovernment to protectthelivesandpropertiesof thepetitioners,despitetheConstitutionalmandate,thepetitionershavebeendeprivedof theirproperties,areunabletoreturn . to theirhomes and face danger to theirlives, if they do so.93. The accommodation allotted to the petitioners is the onlyaccommodation which they have ever known in this city.The do not ownpetitioners state that they any other property. It isthe same sheer necessity which compels the petitioners tocontinue to occupy the premises which was allotted to them.Itis clearly evident that havingidentifiedand supphed such needof the petitioners,absent any alternative with them, therespondentswould be required to maintain the same.94.The petitioners have been at the receiving end of thethreats not only for the reason that they were from another

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community but also largely because they representedthe face ofthe Central Government in the valley as its employees.95..It is importantto note that the schemenoticedin theaforenoticedaffidavit dated 6'^^' October,2009 (filed by the ChiefSecretarybefore the Supreme Court in J,IC Koiil vs. Uiiimi ofIndia(supra.)-,talks of 'Return and Rehabilitatioii.It does noteven advert to resettlement.No referenceis made to the safetyor security of the migrantswho agreed or attemptedto return.Interestingly,there is referenceto 37280 Kashmiri familieswhohad registeredfor the relief includingaccommodationout ofwhichoutof whichonly5000familieshavebeenprovidedaccommodation.An undertaldngstood given to the SupremeCourt that the governmentwould providesuch facilitiesto alltheKashmirimigrantstiU they are residingat the presentplaces.Personsas the petitionersare not even covered underthose who are dealt with in this affidavit.96. • It is also noteworthythat the affidavitfiledbeforetheSupremeCourtreferstoatotalpackageoftheCentralGovernmentinvolvincr an outlav of Rupees 1618.40 crores.97.The affidavit of the Chief Secretary does not even refer tothe utilisation of this huge amount of jDublicmoney and the fateof the proposed facilities.There is nothing even before thiscourt which could suggest that the facilities promised before theSupreme Court, have even come into existence.

98.The alternatives propounded and the schemes pertainingto Kashmiri migrants noticed in the judgments of the SupremeCourt and of this court remain in the realm of proposals andunimplemented schemes alone without any element of reality or

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rfairness.No alternativeat all lias been made availableto oroffered to the petitioners-evenduring the hearingsbefore thiscourt.In the lightof the well settledprincipleslaid in theaboveprecedents,theinevitableconclusionisthattherespondentshavenottakentherelevantfactorsintoconsiderationandhaveactedarbitrarilyandunreasonably.The above discussionclearly manifeststhat the respondentshave not acted fairly in dischargeof their positive obligationandhavenotsufficientlyengagedwiththeproblemsanddifficultiesof the petitioners..

99.The petitionershave been prevented from residing in theirhomes in Jammu& Kashmir for the reasonthat the State hasbeen unable to secure their lives or protect their homes.Infact,therespondentsalsoadmittheirinabilitytoensureprotectionto the life and limb of the petitionersin case theywere to returnto the home state,let aloneany measureofsecurity for their continued residence in the place of their birth,in case they returned.100. On behalf of the respondents, it has been argued at lengthevenintheseproceedingsthattheUnionofIndiahasformulateda packageforreturnandrehabilitationof thedisplaced persons.This by itself shows that the situationis notsuch that the petitioners are in position to return to their'homes. The respondents are.clearly unable to ensure protectionto the lives of the petitioners and their families or security intheir homes.

101. Mr. Jatan Singh, learned standing counsel for the UOI hasplaced reliance on the pronouncementofthis court reported at

Page 76 of 157

2000 (55) DRJ 57 BMm SiiigliVs.' Union ofIndia & Anr.In.thiscase,thepetitionerhadsoughtupgradationoftheaccommodationallotted to him on grounds of the security coverwhich had been grantedto him as presidentof. politicalparty.A challengewas also laid to the eviction proceedings.Itwas held that the accommodationallottedto him was not hableto be upgraded.It is noteworthy that the petitioner in that casedid not hail from the Kashmir valley.No plea that the petitionercouldnotreturntohisownaccommodationon accountofinability of the state to protect either his life or the property wasputforth or considered.In the present case, the petitionersseekno upgradationof accommodationbut only protectionof theirbasic human right and the fundamentalright to life. There is noparity at all betweenBMm Singh'scase (supra)and thepresent cases.

102. It needsno elaborationthata judgmenthasto beexaminedin the context of the factual matrix which it decides.The judgmentreportedat {1995) II AD Delhi 293 Union ofIndia Vs. S.M. Aggarwal & 31 Others, also relied upon by therespondents,was case of eviction of shopkeepers who werelicencees in shops which were public premises and had failed toshow cause in answer to the notice issued by the Estate Officer.This case cannot be compared with the factual matrix noticedhereinabove.

103. Therespondentshavealsoplacedrelianceonthepronouncementof this court reportedat AIR 1977 Delhi 268Hardnw Lai Veniia Vs. The Estate Officer & Ors. whereinthe court held that an allottee of Government quarter is

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licencee. There can be no at allmerely disputeproposition. However,HardwariLai Vermahad also not raisedanyquestion of violation of basic human and constitutionalrights as the petitionershave in the presentcase.No factsituation as in the present case was involved.104.The petitionersare not continuingto occupy the subjectpremises because they want to do so. They are also not claiminga right to indefinitelyoccupy the public premises or assertingatitle or right theretoin respect of the subject property.Thepetitionershavemerelysoughtprotectionof theirrighttosheltertill such time,as the respondentsare able to ensuretheirrighttolifein theirhomestateor makeavailableareasonablealternativesheltertothepetitioners.Therespondentshavethemselvesconsideredsuchrecfuestsandpermittedidenticallyplaced persons to continueto occupy theaUottedaccommodation.Suchaclaimhasalsobeenentertainedand granted by not only the SupremeCourt,butalsoby thiscourtasweU in severalprecedentsnoticedhereinabove.The respondentshave admitted in their counteraffidavit that the petitioners have nowhere else to go.105. Within the larger group of the IDPs from Kashmir, thepetitionersform special class and are retiredgovernmentpersonnel. When the petitioners were forced to relocate, theyreceived government accommodation not only as an incidenceof their service, but also on account of their compulsive evictionfrom their homes.They have also not been able to get anybenefit of any of the schemes framed by the government which

clearty admit tlie special needs and entitlementof thesedisplaced persons.

106.Despitethishardreality,therepresentations,undertaldngsand promisesof the CentralGovernment,uponretirement,the allotmentsto the petitionersstandcancelledandtheyarebeingaskedtovacateGovernmentaccommodation;otherwisetheyfacethethreatof eminentforcibleevictiontherefrompursuanttoproceedingstakenagainstthemunderthePublicPremises(EvictionofUnauthorisedOccupants)Act, 1971.

107.The petitionersmay thereby be compelled to return to theviolentsituationwherefromthey wereevicted/evacuated/orforced to flee.Forcing the petitionerswho are IDPs to returnto the area where they were persecuted violates the principle ofnon-refoulement•whichis theprinciplein internationallawforbiddingthe expulsionof refuge into an area where suchpersonmightsbeagainsubjectedtopersecution.Therespondentscannotbepermitted,toona hyper-technicalconstructionof statutoryprovisionor arbitraiyexerciseofpower to create situation where the homelesspetitionersarecompelled to return to the areas where they may face violenceand threat to their life and liberty.108.The respondentshave themselvesrecognisedtheentitlementof the petitionersto apiDropriate residence,whenthey made the allotments. The only reason advanced by therespondentsfor their decisionto cancel the 'aUotmentand toevict the petitionersis that they have retired.The relevantfactor as to the developments in the state of Jammu & Kashmirand the effectof such evictionlias not even been remotely-considered.No examinationof the issue of whether the spirit orintendmentoftheavowedpolicyofrehabilitationbeenachieved,or not, has been undertaken.109.The situationwhich was to be addressedin these caseswas truly exceptional.This aspect has als.o not even remotelyentered the respondentsconsideration.In fact the decisionsofthe respondentsamply illustratesthat .the respondentsare notrational, reasonableor consistent in their decision maldng.' Theconstructionplaced by the respondentsin the casesof theseIDPson the permissibilityof the occupancyof the quartersunder the AllotmentRules as relateablesolely to their serviceresults in violationof constitutionalguaranteesand was ,clearlyand completelyunwarranted.It needs no furtherelaborationthat the rights which the petitionersare complainingbreach of,are the rightsguaranteedto them under Article19(l)(e)and•Article21 of the Constitutionof India.For these reasons,theinterpretationof the expression "unauthorisedoccupation" bythe respondentsas well as in the impugned orders is blinkered,restrictedand impermissible in the given facts.The expression"authority for such occupation" appearing in Section 2(g) musttake within its .ambit the constitutionalviolationswhich resultfrom the restricted worldng of the statutory provisions by therespondents..It was incumbentupon all concernedwith thedecisionmaldngto take into considerationthe most materialdevelopments in the home state of the petitioners and the factthat the State was unable to guarantee protection of life andliberty to the petitioners in case they return; the insufficiency

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and inability of the resettlement/rehabilitation effort and theabsence of any alternative to the petitioners for the purposes ofconstructionof the expression"authorityfor such occupation".No legal interpretationcould be acceptable which does not takeinto its considerationtheserelevantfactsand circumstances.The petitionersare occupyingthe accommodationbeca.useofthe failure .of the respondentsto dischargethe constitutionalmandate and their public law obligationsof protectingthe rightto life and libertyof the petitioners.As noticedabove,theauthorityto occupy the quartersso far as the petitionerswereconcerned was derived from the constitutionalguarantees.

Suchoccupancycannotbedeemedorheldtobe"unauthorised"by any measure.110.Thesignificantdifferencebetweenthecasesof thepetitionersand thatof an unauthorisedoccupantof publicpremisesis that the writ petitionershave continuedto occupythe public premises only on account of the inability of the stateto protectthefundamentaland basichumanrightsof thepetitioners.

111.-The • respondentswouldhavetherecordsofthecircumstancesin which the petitionersand their successorsininterestwere transferredand evacuatedto Delhi and also theextreme necessityof making the allotmentsof the quarterstothese persons who were not only Government servants but alsoIDPs.TheDirectorateof Estateswhichhaseffectedtheimpugneddecisionscancellingthe aUotmentswould be awareof the pronouncements in respect of identically placed personsof the Supreme Court in P.K. Kdiil Vs. EstateOfficer, thisW.P.(C) No.15239/2004Page SI of 157

court in J,K. Koul 1/3?, Union ofIndia, tlie order of tlie CentralAdministrativeTribunal in Tej KislmiiVs. Union of India &Ors.. and implementedthe same. The respondentsare aware ofthe prevalent situation.

112.No legal interpretationwould be acceptablewhich doesnottakeintoitsconsiderationtherelevantfactsandcircumstances.There can also be.no statutory interpretationwhichresultsin violationand constitutionalguaranteesandprotection.The presentpetitionerscertainlycannotbe "comparedwith or treated in the same manner in which the respondentswould deal with any other occupantwho has not sufferedthegrossviolationsanddeprivationsas thepetitioners,and isunauthorisedlyoccupying the public premises.113-It, therefore,has to be held that the occupation bypetitioners cannot be construed as "unauthorized occupation" ofthe quarterswithin the meaning of the expression in Section2(g)ofthePubhcPremises(EvictionofUnauthorizedOccupants)Act, 1971.

114.An . examinationoftheimpugnedordersisnownecessitated.The cancellationof the allotmentsand the actioninitiated under the Public Premises Act, 1971 were resisted bythe petitionerson the several grounds on which these writpetitionsare premised.However,the same resultedin theimpugned orders of eviction.

115. The sole reason givenbythe Estate Officerfor passing theimpugned orders of eviction is that the allotmentsin favour ofthe petitionersstand cancelledand that they had failedto prove

that they were not m unauthorizedoccupation of the instantpremises.None of the other contentions of the petitioner havebeen even mentioned let alone considered.116. The petitioners'appealsassailingtheseeviction ordersstand rejected.

117.The petitionershad placed the several decisions relatingto similarly situated persons before the respondents,the EstateOfficer as well as the learned AdditionalDistrict Judges.A pleawas taken that becauseof failureof the respondentsto ensurehe protectionof the rights of the petitionersunder Article 21 ofle Constitutionof India they continuedto occupy the quarters,he petitionershad also urged that they stood deprived of homeand hearth becauseof the failureof the respondentsto ensuretheconstitutionalguaranteesanddischargethemandatethereunder.

118.The appellateordersnotice the petitioners'contentionthatthepetitionershavemadeseveralrepresentationstovariousauthoritiesforallowingthemtoretaintheaccommodationon the giround that they belong to Kashmir andit was not' feasibleto return in view of the communalriots andterroristsmovements.These requestshave not been accededto.The impugnedappellateorders record that the petitionershave challengedthe eviction orderson the ground that theEstateOfficer had failed to considerthe fact that they wereKashnim migrants and cannot return to Srinagar tih normalcyis restored.It was also ground of appealthat the EstateOfficer had not considered the orders in SLP No. 1369/1997 bythe Supreme Court and that the petitioners' cases were on the

same footings.Tlie challenge had also been laid to the ordersof the estate officer on grounds of arbitrarinessand violation ofprinciplesof natural justice.,

119.Theappellatecourtin theimpugnedordershasalsoproceededon the sole ground that there was no lease or licensedeed issued in favour of the petitionersby the GovernmentofIndia.The orders of the Apex Court were not consideredon thesole ground that copy of the Special Leave Petition had not beenplacedbeforethecourtand that the petitionerswerenotaparty to the proceedings.The learned appellatecourt was alsoof the view that the petitionerswere providedaccommodation.in Delhi because they were in service in Delhi and not becauseof terroriststhreats and further that accommodation'was givenonly by virtueof employment.It was also concludedthat norelief had been granted to the petitionersby the Supreme Courtand therefore,the ordersdid -not assist the SupremeCourt.Theevictionordershadbeensustainedinviewoftheseconclusions.120. As result, such worldng of the Public Premises Act bytherespondents,thepetitionersarebeingthreatenedwithevictionfromthe only sheltersthat they know, withoutanyalternativebeing available to them.121.The respondentsare bound to act in manner which iscompatible with the constitutional rights of the petitioner whilethis court has to take into account and require the legislation tobe read compatibly with such rights.The object is to ensurethat the actions and orders must be such as to avert or rectifyany violation of such basic rights-.proceededon the sole ground that there was no lease or licensedeed issued in favour of the petitionersby the GovernmentofIndia.The orders of the Apex Court were not consideredon thesole ground that copy of the Special Leave Petition had not beenplacedbeforethecourtand that the petitionerswerenotaparty to the proceedings.The learned appellatecourt was alsoof the view that the petitionerswere providedaccommodation.in Delhi because they were in service in Delhi and not becauseof terroriststhreats and further that accommodation'was givenonly by virtueof employment.It was also concludedthat norelief had been granted to the petitionersby the Supreme Courtand therefore,the ordersdid -not assist the SupremeCourt.Theevictionordershadbeensustainedinviewoftheseconclusions.120. As result, such worldng of the Public Premises Act bytherespondents,thepetitionersarebeingthreatenedwithevictionfromthe only sheltersthat they know, withoutanyalternativebeing available to them.121.The respondentsare bound to act in manner which iscompatible with the constitutional rights of the petitioner whilethis court has to take into account and require the legislation tobe read compatibly with such rights.The object is to ensurethat the actions and orders must be such as to avert or rectifyany violation of such basic rights-.

W.P.(C) No.15239/200A

A122.TheschemeofthePubhcPremises(EvictionofUnauthorisedOccupants) Act, 1971 shows tliat the notice wliichis issued under Section 4 to show cause is requiredto specify. tlie grounds on which the eviction is proposed to be made andrequiretliepersonsconcernedtosliowcauseagainsttheproposedorder beforetlie specifieddatewlientlieyare toproduce evidence in support of tlie show cause.Under Section5 of the Act, the Estate Officer is required to consider the showcause by tlie noticeeunder Section4 as well as the evidenceproducedby him and afterpersonalhearing,if any,given.Thereafter,the Estate Officer is requiredto record reasons forhis satisfactionfor maldng an order of eviction.The orders oftheestateofficerdisclosesnoreasonsatalltosupport•satisfactionto ordereviction.The impugnedordersdo notreflecttheconsiderationof thecontentionson theevidenceplaced by the petitioners.123. Thedueprocessclausein theConstitutionmandatesensuring that the state providesa humane standard of living toits citizens.•.124.The letter from Ministiyof Urban Developmentto DelhiDevelopment Authority placed on record in Tej KislmiiUOI(supra) before the Central AdministrativeTribunal(also reliedupon in 132 (200S) DLT 672 P.K. Haiidoovs. Estate Officerindicatesengagementof the authoritieswith this issue and thedecision of the Central Government directing that schemes be•framed by the Delhi Development Authority-as well for makingpreferentialallotments of accommodationto Kashmiri migrants.In addition,the Governmentaffidavit dated 6"' October,2009 in

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J.L. Koiil (supra)filed, in the Supreme Court of India alsoexpresses the same concern as has been expressed in the aboveGuiding Principleson Internal Displacement.

Theseactionsunequivocallymanifesttherespondents'awarenessabout the positiveobligationimposed upon them toensure that the persons displaced from Kashmir are required toberesettledand/orrehabilitated.Thereisadmissionofresponsibilityand culpability.The workingof the measures,however,reflectsthat the stepswhich havebeen takenareinadequateand hopelesslyinsufficient.Even in the prolonged. hearingbeforethiscourt,therespondentscouldplacenoalternativeso far as the petitionerswere concerned.125.In AIR 2010 SC 1476 State of West Beiiffalvs. TheComiimiiltyfor Protection-of DemocraticRights,WestBengal & Ors., the Supreme Court has also held that the courtwas requiredto weigh the impact of particulargovernmentscheme,statute, or actionon the fundamentalrightsof thoseeffected by the governmentscheme, statuteor action.In caseany statute or action abrogates or abridges such rights, it wouldbe violativeof the basic structure/doctrineof the Constitution.•For this reason as well, any applicationor enforcementof statutoryprovisions,rules, , regulationsthatimpactsorimpinges fundamentalrights has to be struck down.126.In [2004] EWCA Civ 540 Secretaiy of StateHome DepartmentWayoka Linibuela,BiiiyamTesema & Yusif Adam, the House of Lords has larescribed atest to determine whether statutory scheme or governmentpohcy caused violation of fundamentalrights.It was observed

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that whena reasonableevaluationof all relevantfactsandcircumstancesshows that governmentpolicy would subjectpetitioners to an immediate and serious deprivation of the basicnecessitiesof life, then the court may properly grant relief.Itwas also held that the state would be liable for both action andinactionas long as the action or inactionresultsin seriousdeprivationof rights or human dignity.127.In the hght of the directionsby the Supreme' Court- andithiscourtintheaforenoticedcasesrelatingtoidenticallysituateddisplacedpersonswhoarevictimsof violence,thecontestby the respondentsto the presentwritpetitionsontechnical;speciousand legally untenablegroundsis unfair tosay the least.Similarissueshavearisenbeforeand ordersstand passed in favour of the similarly placed persons therein.128.Thepetitionershavesufferedonaccountoftherespondentsfailureto protect their life and liberty when theywerecompelledtofleefromtheirhomesinKashmir.Ininternationallaw, refugeesare protected from being compeUedto returnto placesor situationswheretheir lives or freedomcould be threatened.It is pointed out that the respondentshaveimplementedthisprinciplein thecasesof Chakmas,Tibetans,and else whereIDPs, who are citizensof the samecountry, certainly cannot be treated differently and compelledto return to violent situations.

129.The proceedings as well as the impugned decisions andordershavecompletelyfailedto take intoconsiderationthematerial issue of the impact of the proceedings and the orderswhich would result in forcible eviction of the petitioners from

Page 87 of 157

uvthe only shelters known to them without any alternative.The•impugned cancellationof allotments,theordersof evictionpassedby theEstateOfficer andtheaforenoticedordersdismissing the appeals of the petitionersare in the teeth of theconstitutionalguaranteestothepetitionersunderArticles19(l)(e)(g)and 21 and therefore not sustainable.130.Such cancellationof aUotmentand forcibleevictionat thehands of the State utilizing the shield of statutory right to doso under the Public Premises Act, 1971 results in violationof theconstitutionalrights of the petitioners.It'is manifest thereforesuch that such applicationof law as would have an impact ofviolatingthefundamentalrightsofthepetitionersisimpermissibleunder the constitutionalscheme.ProDortionalitvtest

131.The proportionalityof the impact on the fundamentalrightinvolvedby worldngof the statutoryprovisionas againsttheobjectiveof the concerned'statuteis another important test foradjudicatingupon the legality of the interferencewith the rightwhichwouldhavea bearingon thepresent.case.Inapronouncementof theHouseof Lordsreportedat(2007)UMJIL 11:(2007)4 All EE 15 Huang Vs. Secretaiy of Statefor the Home Department,thedecisionmaldngroleandfunctionof the appellateimmigrationauthoritiesin the contextof the Human Rights Act, 1998 and the Immigration and AsylumAct, 1999 was in issue.The House examined the scope ofreviewsby the prescribedauthorities. • The privatepartiescomplainedof violationof their rights under Article8 of the

EuropeanConventionfor the Protectionof Human Rights andFundamentalFreedoms,1950 which provides as under:-

"1. Everyonehas the right to respectfor his privateand familylife, his home and his correspondence.2.Thereshall be no interferenceby ]3ublicauthoritywith theexerciseof thisrightexceptsuchas is inaccordancewiththelawandisnecessaryinademocraticsociety in the interestsof nationalsecurity,public safety or the economic well-beingof the country,forthepreventionofdisorderorcrime,fortheprotectionof health or morals,or for the protectionofthe rights and freedoms of others."

The considerationby the tlouse of Lords oh the principleofproportionalityof the impact of the interferenceon the right vis-a-vis, the legitimateend in view is important and reads as fohows :-

XXXxxxx

In most cases where the applicantscomplainof violation of their art 8 rights, in case where theimpucrneddecisionisauthorisedbvlawforalecritimateobjectandtheinterferenceforlackofrespect)isof sufficientseriousnesstoengagetheoiperationor art 8, the crucial Questionis likelv to bewhethertheinterferencefor lack of resp>ect)end soimht to be achieved.Proportiona11tv_is_Rsubjectof suchimportanceas to reguireseparatetreatment.

PROPORTIONALITY

IndeFreitasVs.PermanentSecretaryofMinistiy of Agriculture, Fisheries, Lands and liousing[19991 1 AC 69 at 80, [1998] 3 WLR 675 at 684, thePrivyCouncil,drawingon South African,CanadianandZimbabweanauthority,definedthequestionsgenerally to be asked in deciding whether measureis, proportionate:

' •••-Whether:fi)thelegislativeobjectiveissufficientlvimportantto justify limitinga fundamentalridht;(ii)themeasuresdesignedtomeetthelegislativeobjectiveare rationallvconnectedto it: and(iii) the means used to impair the right or freedom areaomorethanisnecessarytoaccomplishtheobjective."

W.P.(C) No.15239/2004

Thisformulationhasbeenwidelycitedandapplied.But counsel for the apphcants(with thesupport of Liberty, in valuable written intervention)suggestedthattheformulationwasdeficientinomitting referenceto an overriding requirementwhichfeaturedin the judgmentof Dickson CJ in R v Oakes[1986]1SCR103,fromwhichthisapproachtoproportionalityderives.This featureis (at 139) theneed to balance the interestsof society with those ofindividualsand groups.This is indeedan aspectwhich should never be overlookedor discounted.TheHouse recognisedas much in R (Razgar)v Secretaryof 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 AC368 when,haviiigsuggestedaseriesof questionswhichanadjudicatorwould have to ask and answer in decidingaconventionquestion,itsaid ' (at[20])thatthejudgment on proportionality-

'mustalwaysinvolvethestrikingofafairbalancebetweenthe rightsof the individualand theinterestsof the communitywhich is inherentin thewholeoftheconvention.Theseverityandconsequencesof the interferencewill call for carefulassessment at this stage.'

If, as counsel suggest,insufficientattentionhasbeen paid to this requirement,the failureshould bemade good.

132.Having regard to the drastic violation which results fromthe impugnedactionand orders,it has to be held that thedecision of the authoritiesto cancel the allotmentsand proceedforevictionaswellastheimpugnedordersagainstthepetitionersare not in accordancewith law even on reasonableassessmentof proportionalityviz-a-viz the object of evictionofunauthorisedoccupantsof the Public Premises Act, 1971.

W:P.(C) No.15239/2004

ViolationofAiticIe14 of the Constitution

133. The petitionershave also complained that the respondentshad discretionto perinit the petitionersto continueto occupythepremisesunder'SR317-B-25ofthe1963.It is •contendedthat the respondentswere bound toconsider the matter on the relevant considerationof the right toshelterof thepetitionerswhichwasinvolved-andcannotpremisetheir actionon extraneousand impermissiblereasonsor considerations.

Mr. B.L. Walt learned counsel for petitionershas urgedthat the failureto exercise discretionin favour of the petitionersis in fact not only in violationof the constitutionalobligationsofthe respondents,but is arbitrary and unreasonable.134.Shri P.K. Kaul, (writ petitionerin W.P.(C) No.l5239/2004)had earlierfiledWP (C) No.6551/2003,submittingthat therespondentshad arbitrarilyfailedto considerhis requestforregularizationdespitehavingknowledgeofthespecialcircumstancesof the case.Mr.B.L.Wali,learned counsel for this•Ipetitionerhasplacedtheorderwhichwaspassedon 15^''October,2003 in the earlier writ petition,which directedtherespondentstoconsiderthequestionof regularizationofallotment in favour of the petitioner in view of the specialcircumstances.. It was directed that the petition including itsenclosures should also be considered while disposing of thepetitioner'srepresentation.

135.Despite these orders,-the writ petitioner has contendedthat there has. been no considerationin terms of this order tiU

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date.He has, therefore,filed the writ petitionbeing WP (C)No.15239/2004challenging.thenoticeissuedby theEstateOfficerundersection4of thePublicPremises(EvictionofUnauthorisedOccupants)Act 1972 to him.

136.The other writ petitionershave also made similar requeststotherespondentsforexerciseofdiscretionwhichwerereiteratedby them in the reply to the noticesissuedby theEstate officer under Section4 of the Public Premises Act as wellas in theappealswhichwerefiled.Thesamegroundofchallengeto the respondents'action has been urged in thesewrit petitions.137.Mr.B.L.Wali, learned counsel appearingfor some of theIDetitioners has pointed out that the respondentshave exerciseddiscretionfavourablyand permittedsome identicallysituateddisplacedKashmiristocontinueinallottedpremisesafterretirementwhereasthishasbeenarbitrarilydeniedto thepetitioners.Learnedcounselscontendthatthe respondents'actionso farasthepresentpetitionersareconcerned,isdiscriminatoryand not sustainable.

138.The respondentson the other hand place rehance on thepronouncementof the court in (1997) 1 SCC 444 SMv SaffarTlwvari vs. Union of India and dispute that they have anydiscretionin the matter.

139.AUotmentof governmentaccommodationsare effectedunder the provisionsof Allotment of Goveriimeiit Residences(General Pool in Delbi) Rules,1963. Referenceis made toSR 317-B-25 thereof which empowers the Government to relax

the provisionsof these rules and deservesto be consideredin

extenso.The same reads as follows:-

"SR,317-B-25:The Government may for reasons tobe recorded in writing- relax all or any of the provisionsof the Rules in this Division in the case of any officer orresidence or class of officers or type ofresidences."

140.It is undisputedbeforeus that despitethe propoundedrehabilitationschemesstatedbeforetheSupremeCourtandestablishmentof preferentialquotas in allotmentsplaced beforethe Central AdministrativeTribunal,the respondentshave notbeen able to rehabilitateor resettle any of the petitioners.141. The respondentshave also not denied the availabilityofthe discretionunder SR 317, 25 of the AllotmentRules,- 1963and its favourableexercisein favourof someKashmiriIDPs.Yet, the respondentshave failed to exercise the same discretionin favourof the presentpetitioners.No explanationfor thesame is even attempted.142. On the issue of exercise of discretion, in the judgmentreportedat AIR 1980 SC 1622, MmiicipaLl Council RatlaaiVs, Vardiclmn & Ors., the court was concerned with the pubhcpowerof theMagistrateunderSection133of theCodeofCriminal Procedure.The court observed that the 'pubhc powerof the magistrate under the Code' is 'a public duty to themembersof the pubhc who are victimsof nuisanceand so heshall exercise it when the jurisdictional facts are present asheie .So far as exercise of discretion is concerned, it wasobserved as follows

"9. So the guns of Section mgo into actionwherever there is public nuisance. The public power ofthe Macristrate under the Code is pubhc duty to the

w.p.(C)No.15239/2004

members of the pubhc who are victmis of the nuisance,and so lie shall exercise it when the jurisdictionalfactsare present as here. "Ailpower is trust-timtwe areaccomitaMefor its exercise-that,from the people,and for the people,all springs,and all mustexist."Discretion,becomesaduty wiieiithe beneficiarybrinasbornethecircumstancesfor itsbenimiexercise.xxxx"

143.Given the establishedviolationof the fundamentalrightsofthepetitionersresultingintheirdisplacement;thedestructionoftheirpropertycoupledwiththeprevalentconditionsin •theirhomestate;and lack of any alternatetothem,the exerciseof discretionunder the SR-317B-25 of theaUotment of Allotmentof GovernmentResidences(General Poolin Delhi) Rules, 1963 in favour of the petitionerswould thus bethe boundenduty of the respondents.The mandateof theSupremeCourt in MunicipalCouncil Ratlamvs, Vardicban(supra) would bind even the court.

144.The pronouncementof the SupremeCourt, reportedat(1997) 1 see 444 entitled SMv Sag-ar Tiwari Vs, Union ofIndia& Ors.,hasbeenplacedbeforethiscourtby therespondents.In this case, the court was concerned with grossmisuseofdiscretionaiypowerrelatingtoallotmentofaccommodationtogovernmentemployees.Asagainstthepermissible discretionary quota of 10 per cent, such allotmentshad shot up to 70 per cent.On top of these, 8,768 houses wereaUottedon "SpecialCompassionateGrounds"in exerciseofdiscretion under the authority of letter dated 18"'July, 1996from theCabinetSecretary.The Governmentof India hadsubmitted that it had exercised discretion vested in it under the

aforenoticedSR.The court had concludedthat the conduct ofthe respondentsdid notdisclose apphcation of mind anddiscretionwas not exercised fairly.In para 56 of the judgment,it was observed as follows"56. The decision of the present Central Governmentonthis aspect as finding place in the letter of the CabinetSecretarydated18-7-1996bearingDO No. 1/44/1/96-CAVisthat"whereitisconsideredabsolutely.necessaiT"smahnumberofout-of-turnallotmentswouldbemadeforwhichpurposealsotheMinistries/Departmentswould formulateclear rules andguidelines.Duringthecourseof hearing,on beingdesired to know as to why out-of-turnallotmentis at allrequired,thesubmissionadvancedon behalfof theUnion of India was that there are few officers,who byvirtueofthedutiesdischarged,havetobeaccommodatedingovernmentquarterstofacilitatesmooth functioningof the Government.xxx"

145.In view of the gross abuse of the discretion vested in therespondents,in para 57 at page 463 of the report,it was heldthat case to permit minimal out of turn allotmentswas madeout whichhas to be regulatedand transparencyhas to bemaintainedin such allotments.The court consideredprivatecitizenswho could be allottedout of the discretionaryquotawhichincludedaccreditedjournalistsand newscameraman,politicalparties,artistes,socialworkeretcandotherorganizationsas well.In SMv Sagar Tiwari vs. UOI (supra), it was held thatthediscretionconferredhas to be exercisedto advancethepurposeto subservewhich the power exists and that even theMinister, if he/she be the repository of discretionarypower,cannot claim that either there is no discretionin the matter orunfettereddiscretion.The Supreme Court held that exercise of

SLicIi discretionwas an excGPtioiianddeprecatedtheabovGactionoftheGovermnentmakingthesameintoanorm.Noteworthy,is tlie GoveriiTnent's stand in this case that vestingof some discretionin the matterof allotmentof quarterswasessential.

In this background,the contentionof the respondentsthat exercise of discretion was prohibitedby the Supreme Courtin this case is totally misconceived.

146.On the other hand, in the instantcases, the petitionershaveassailedthearbitrarinessinexerciseof thediscretionadmittedlyconferredon therespondentsand thefailuretopermitcontinuationofoccupationoftheallottedaccommodationintheexceptionablecircumstancesandconditionsin which they were placed.The pronouncementofthe SupremeCourt, in fact, assists the petitionersas the courtrecognizedexistenceof and permissibleexerciseof. discretionwhile deprecatingits abuse..

147.Thestandardson whichan authoritywouldexercisediscretionwere settled by the SupremeCourt in the judgmentreportedat (1979)3 'SCC 489 entitledRaiimimBayaramSlietty vs. InternationalAirport Authority of India & Ors.as follows

"10.XXXItisindeedunthinkablethatinademocracygovernedby the ruleof law theexecutiveGovernment or any of its officers should possess arbitrarypower over the interestsof the individual.Every action ofthe executiveGovernmentmust be informed with reasonand should be free from arbitrariness.That is the veryessenceoftheruleoflawanditsbareminimalrequirement.And to the apphcationof this principle itmakes not difference whether the exercise of the powerinvolvesaffectionof somerightordenialof someprivilege."

XXX

12It must, therefore,be taken to be the lawthat wherethe Governmentis dealingWith the public,whether by way of giving jobs or enteringinto contractsor issuingcfuotas or licencesor grantingother forms oflargess,theGovernmentcannotactarbitrarilyat its• sweet will and, like privateindividual,deal with anypersonit pleases,but its actionmust be in conformitywith standardor norms which is not arbitraiy,irrationalor irrelevant.The power or discretionof the Governmentin the matter of grant of largessincludingaward of iobs,contracts,guotas,licencesetc.,mustbeconfinedandstructuredbv rational,relevantand non-discriminatorystandardor normand if theGovernmentdepartsfromsuch standardor norm in anv particularcaseor cases,the action of the Governmentwould be liable to be struckdown, unless it can be shown by the Government that thedeparturewas not arbitrary,but was based on some vahdprinciplewhich in itself was not irrational,unreasonableor discriminatory."(emphasissupplied)

148.In para 85 .of the pronouncementreportedat AIR 1974SC 555 entitled E.P, Royappavs. State of Tamilaadii& Aiir,the Supreme Court laid down the following binding principles"85In factequalityand arbitrarinessare swornenemies;one belongsto the rule of law in repubhcwhile the other, to the whim and caprice of an absolutemonarch. Where an act is arbitrary it is implicit in it thatitisunequalbothaccordingtopoliticallogicandConstitutionallaw and is therefore violativeof Article 14,andifitaffectsanymatterrelatingtopublicemployment,it is also violativeof ArticleW. Articles14and 16 strike at arbitrarinessin State action and ensurefairnessand equalityof treatment.They requirethat. Stateactionmustbebasedoneguivalentrelevantprinciplesapplicablealike to all siiTiilarlvsituateand itmustnotbecruidedbv anvextraneousor irrelevantconsiderationsbecause that would be denial of egualitv.WheretheoperativereasonforState-action,asdistinguishedfrommotiveinducingfromtheantechamberof the mind, is not legitimateand relevantbut is extraneousand outsidethe areaof permissibleconsiderations,it would amount to mala fide exerciseofpower and that is hit bv Articles14 and 16. Mala fideexerciseof power and arbitrarinessare differentlethalradiationsemanatingfrom the same vice: in fact thelattercomprehendsthe former.Both are inhibitedbvArticles14 and 16."

(emphasis supphed)

Therefore,even if it wereto be heldas urgedby therespondentsthat this court could be held to be powerlesstodirect exerciseof discretionin particularmanner,in view ofthe clear principleslaid down in these judicial precedents,thereis no prohibitionupon this court from examiningas to whetherthe respondentshave failed to exercisediscretionon relevantcriterion.There is also no prohibitionon this court, to examinewhether the respondentshave acted arbitrarilyor discriminatedagainst the petitioners.

Theimpugnedactionof therespondentsagainstthepetitionersand the orders assailedherein have to be tested onthe above principles.

149.A similar argumentof the respondentthat the allotteeswere prohibitedfrompermittingretentionof accommodationbeyond the permissibleperiod after retirementwas rejected bythe Central AdministrativeTribunal in the aforenoticeddecisionrenderedon 30"' December,2002 in0,A.No.2378/2002Sliri Tej KislmiiVs. Union of India & Ors.The Tribunal hadexamined the petitioner'schallengeto the respondent'sactionon theplea of discriminationpremisedon the conductof therespondentsin exercising discretion in favour of some similarlysituatedmigrantsand not in favourof the petitionersandobservedas follows:-

"31.ResvondentshaveKashmir micfrmits who were identica.llv mid e^imllysituated,on their requesthave beenallowedtoretain the accommodationtill the normalcy comesback in State of T&K and till they are returned,ensured furtherthe safety of their personsand reconstructionof their bouses.these three Kashmir migrants,m4io are placed iisimilarsituationandwithsameconditions,i

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differentcriteria,was adojjtedon the aroundof—"•••—•mveii arejiemJ wvMcatioii.Applicantwho is also aKashmir- migrant having no place to live in Delhi largefamily to support,is on similar footing with those whowere allowed to retain the accommodation.In order to'satisfy the reguirementsof law, the respondentshave toestablishthat there has been an intelligibledifferentiaandwhichhasareasonablenexuswiththeobjectsoughtto be achieved.No groundswhatsoeverhaveforthcomewhichcanbetreatedasreasonableorrelevantfor to mete out the aforesaidreguirementsoflaw and to pass dual test which will render the decisionin consonancewith the Article14 of the ConstitutionofIndia.In absenceof any reasonsand the fact that theapplicantis egual in all respectsshould not have beenmetedoutadifferentialtreatment.Thisinmyconsideredview,isunsustainablebeingviolativeofArticle14 of the Constitutionof India."

150.The tribunalrejectedthe argumentsof the respondentspremised on the pronouncementin SMv Sagar Tiwari (supra)as well as scarcity of resources holding as follows

32.Moreover,the contentionthat the directionsissued in SMv Sagar Tiwari's case supra and the factthat the Governmentaccommodationsare few and thepersons claiming the same are more and the rules do notpermitretentionbeyondthespecifiedperiod,isnoiustificationfor rejectingthe case of the applicantas inT.L. Koul'scase,even in an interimorderpassed,theApex Court was well aware about the decisionrenderedin Shiv Sagar Tiwari'scase as weh as the Rules werealso in existenceat that 'timeas well which prohibitsreteiitionofaccommodationbeyondthepermissible.period.Consciousof this, the Apex Court in the hght ofthefactandconditionsaswellascircumstancesofKashmir migrants,who have their own houses destroyedin Kashmir and those retired inclined to go back directedthe Governmentto ensure their protectionand as well asof their property so that they may be put back to theirrespectivehousesownedbytheminKashmiron28.1.1998i.e. much after the decisionof S,S.Tiwari'scas& siipraas well as the instructionsthroughOM in17.11.1997,the matter has been pending sine die and tobe activatedonly after the State of Jammu and Kashmirensuresreturnof thepetitionersto theirrespectiveHomes with safetyof their personsand property.Theaforesaid petition is stiU pending before the Apex Court.33.I also find that the Governmentby the .letterdated2,.7.2002in order to hold the retireesor retiralofficials of Kashmir migrants working in Delhi, who could

W.P.(C) No.15239/2004

notget .backto J&Kduetoprevailingsituation,a,decision has been taken to allot about 100 MIG/LIG Flatsand for which PDA has been requestedto formulatetheHousingScheme for which draft has been sent to theMinistryforapproval.Theaforesaiddecisionalsoincorporatedthatthese, housesarebeingallottedtoKashmir migrantsretiringor retired so that the generalpool accommodationgot vacated from them.This on aliteralconsiderationconnotesthat the Kashmir migrantswho are in retentionof generalpool accommodationonretirement,aretobeevictedonlyafterthePDAformulatea HousingSchemeto allotMIG/LIGflatstothem.

34.In my consideredview, the review undertakenbytherespondentsincompliance, oftheearlierdirec tions of this Court has not taken note of letter dated2.7.2Q02 as well as the directionsin Koul's case supra.Ifapost-factoapprovalcanbeaccordedbyCCAandapproval by the Ministry for Urban Pevelopmentdenyingthe same to the applicantwho is similarly situated and isegual in all respects,smacks- of arbitrarinessand hostilediscriminationwhich, as per various pronouncementsofthe Apex Court,cannot be countenancedand would bean antithesisto rule of laws doctrine of ecfuality.-35. .In the result and for the forgoing reasons,OAis partlyallowed.Impugnedorder dated13.8.2002iscjuashedand set aside.RespondentsareclirectedtoallowtheapplicanttoretaintheGovernmentaccommodationpendingdecisioninSLP(Civil)No.7369/97.No costs."

(underliningsupplied)

This decisionof the CentralAdministrativeTribunalhasattained finality and also stands implemented.

151. Beforethiscourttherespondentshavenotevenattemptedtoshowhowthepresentpetitionerscanbedistinguished from either Sbri Tej Kisliaii (supra) or from theinstancesnoticed in para 31 of the judgmentof the Tribunal.On the contrary, as set out above, in answer to grounds (A) and(B)of thewritpetitionnoticedinpara22above,therespondents have stated that these contentions of the ]Detitionerare "matter of record".

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152.Thereis no disputealso to the fact thatthe ordersinJXJCoulFrK.Haudoo,MJCJCoiilTej Kislmia(supra)haveattainedfinalityandthesepersonscontinuetooccupytheallotted accommodationdespite:superannuation.

153.The respondentsare unable to point single distinction,let alonea relevantone, betweenthe presentpetitionersandthoseinthedecidedcases.The petitionersareidenticallysituated,yet have been denied equal treatment.Not whit ofe^Dlanationfor not treatingthese petitionersas thosein thecited precedentsis suggestedby the respondents.Even theimpugned orders unfortunatelydo not attempt to deal with thisaspect of the matter.154.As noticed above, the respondentscontended before theSupremeCourt in' SMv Sagar Tiwarl (supra) that they havethe discretionto draw exceptionsin the matter of aUotmentsofpublic premisesand have relied on instancesand categorieswhen this discretionwas exercised in favour of persons whowere even not in public service and werenever even employedby the Government.

155.In ground L of WP(C ) no.15.329/2004,Shri P.K.Koul, thepetitionerhas statedthat the respondentshaveallottedtheGovernmentaccommodationnotonly sei'vingGovernmentemployees, but to various other categories of employees whohave nothingto do with Governmentservice.It has- beenstated that "employees working in the office of the politicalparties,journalists,freedomfighters,artistsetc."arealsoaUotted generalpool accommodation.This avermentis notcontested by the respondents who have only submitted that the

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allotment of the quarter is made as per the rules and policy laiddown by the Government.

156.It is trite that residuary rules are interpretedand workedto empower authoritiespermittingexceptionsfrom applicabilityof the rule to remove hardships(Ref : 1993 Supp,3 SCC 515(para'3'3,) Syed KlmlM Rizvi vs.UOI & Ors; (1996)8 SCC762 ^BI & Ors.KasMimtliKlier & Ors.; (1988)4 SCC. 179 Asliok Kr. Uppai and Ors. vs. State ofJ&K).

157.TheordersinTeJ Kishaii(supra)makea detailedreferenceto the voluntaryexerciseof discretionin favourofthree migrantsby the respondentswhich was the entire basisof the findingof arbitrarinessby the Tribunalin the actiontakenagainstTejKishanandco-petitioners.Theseveryfindings squarely apply to the cases of the present petitioners.158.No explanationis renderedor reasongivenby therespondentsfor the rejectionof identicalrequestsof some ofthepetitionersor for notfavourablyconsideringthesaidrequestsof the petitioners.The failureto even considertheserequestsdespite the specific directions in P.K. Koul's previouswritpetitionreflecthighhandedness,unreasonablenessandarbitrariness on the part of the respondents. The respondentshave granted approval to similarly situated persons.Denialthei^eof to the equally placed petitionerscertainly tantamountsto hostile discrimination against them which is impermissibleand as observed above 'an antithesis to the equality clause'.The action of the respondents in not favourablyconsideringthepetitioners' representations; in cancelling the allotments of the

petitionersandproceedingagainstthemunderthePubhcPromisesAct1971aswellastheimpugnedordersare;therefore,not sustainablealso being in violationof Articles14and 16 of the Constitution.

ill

159.There is yet another importantside to the claim assertedby the petitionerswhich requiresconsideration.The declaredpolicyof the statewith regardto the IDPs fromKashmirisconcernedwith their rehabilitation.Forcibleeviction from theircurrent residenceswithout an alternativeis not even remotelysuggestedin thesepolicies.Thesameis evidentfromtheaffidavit placed before'theSupreme Court in J.L.KoiiIStateofJmimiu & Kasliiiii'r(supra)and the letter dated 2'"' July,2002 placed before the Central Administrative Tribunal in TeJKislieiiVs, Union of India(supra).The decisiontaken tocancelthe petitioners'allotmentsand to initiateproceedingsunder the Public Premises (Eviction of Unauthorised Occupants)Act, 1971 without making available of alternative shelter clearlysuggestsa drasticchange in the governmentpohcy so far asthese IDPs are concerned.

160. In recent judgment of the Supreme Court reported atMANU/SC/0476/2010Sindliu Education Society & Aiir. Vs.The Chief Secretary,Govt. of NCT of Delhi & Ors., theSupreme Court obsei-vedthat framing pohcy is the domain ofthe Government. The frameworkof the policy and the workingof such Government Pohcyhas essentially to be done within theframeworkof the Constitution & the laws.As and whenGovernmentchanges its pohcy decision, it is expectedto give

W.p.(C) No.15239/2004

valid reasonsthereofand act in larger interestof the entirecommunity rather,thana section.In para 66 of the judgment,the Supreme Court held that :

"Itisasettledcanonofadministrativejurisprudencethat state action, must be supportedbysomevalidreasonsandshouldbeupondueapplicationof mind.In the affidavitsfiled on behalf ofthe state, nothing in this regard could be pointed out• and in fact, none was pointed out during the course ofarguments.Absenceof reasoningand apparentnon-applicationof mind would give colour of arbitrarinessto the state action."

The position in the cases in hand is no different.The statedoes not again even suggesta reasonableexplanationor validreasonfor thechangefromtherehabilitativepolicyto thedecision to evict the petitionersand thereby threateningthemwith imminent homelessness161. •The respondentswould have the right to changeitspolicyuponchangein circumstances.(Ref:(19911120 State of Punjab& Ors.vs. Ram LuMiayaOrs.).No such change is pointed out in the present cases.Thedecision to treatthe petitioners as unauthorizedoccupantswithout their resettlement is clearly not premised change ofpolicy upon applicationof mind and therefore not sustainable.Responsibilityof the Central Gove.rnmmit162. It, has- been suggestedby Mr. JatanSingh, learnedstandingcounsel • fortheUnionofIndiathattheCentralGovernment has no responsibility vis-a-vizthe petitioners in thegiven facts and that only the State of Jammu and Kashmir ishable for the infraction of the rights ofthe petitioners.

163.The submissionon behalf of the petitionerson the otherhand is that the duty and responsibihtyof the state authoritiesvis-a-vis these groupsof personswhich stands recognizedandadmittedby the both the state and CentralGovernmentitself.Assuch,therightsof thepetitioners'cannotbeignored,imperilledor violated by any of the respondents.164.It is urged that the respondentshave heartilyengagedwith and manifestedextremeconcernfor refugeesfrom othercountries,but have handledinadequately,and even failedtoaddress the difficultiesof internally displaced persons.165.Referenceis also made to the policies of regularizationofunauthorizedconstructionsand encroachmentson pubhc landsarepointedout.Severalschemesandpoliciesoftherespondentswith regard to the disadvantagedmasses so far asrehabilitationand resettlementis concerned.The attentionofthis court is drawn also to the. several judgments concerned withthe right of shelter of pavement and jhuggi-jhompri dwehersincluding Olffa Tellis v. Bombay MunicipalCorporation&Ors.; AlimedabadMunicipalCorporationvs, Nawab KhanGiilab Khan & Ors-,; JaffdislivSc DDA; SudaniaSingh &Ors.vs,Governmentof Delhi& Anr.whichhavebeenreferred above. The petitioners have urged at some length thatthe respondents have shown utter insensitivity not only inprotectingtheir rightsbut even in the pursuitof the matterbefore this court.

166. The question which begs an answer is having failed toensure the life and safety of the petitioners or to protect theirproperty,or to guaranteeeither ,of them, what would be the

W.P.(C) No.15239/2004Page 105 of 157

obligation,duty and responsibilityof the respondentsqua thepetitioners.

167.ItisanadmittedfactthatthepetitionerswereaUemployed by the Central Governmentor its agencies.In orderto avoid compromisingthe securityissuesof these persons,amoredetailedanalysisof thefactualmatrixisnotbeingundertaken., However,the presentcases set out instancesofextremetraumafacedbythepetitionersandtheirfamilymembersaswellasthecontinuedthreattotheirlifeandproperty.In one of the cases, the petitioneris destituteladywho was worldng in the Ministry of Information& Broadcastingof the Governmentof India used to give live performancesandconductedprogramson behalf of the CentralGovernmentinremote villages in the valley as well as on the electronicmediamaldngherfaceknownto themilitants.Hertroupewasattackedin 1987whileperformingat Kliamabalin DistrictAnantnag and they had to flee for their life. In this background,she was transferred to Delhi, and was aUotted the premises bythe respondents.The petitioner points out that in mid-1990, theSongs and Drama Division Office in Srinagar,Kashmir wasblown up and the entire stafftransferredto Delhi. Not only the,house of her in-laws but her ancestral/parental rental house alsostands burnt down and she has no place to return to in Kashmir.'Even after she was evacuated from the valley, her brotherreceived threats to her life by way of communicationsadvisingthe petitioner to desist from participating or performing inprogramsin supportof the Government.This communicationhas been placed on record. The petitionerwas desertedby her

W.p.(C) Ho.15239/2004

liusbanddecadesago and she stands abandonedby the Statewith none to assist to her.The writ petition states tliat she isgettinga meageramount of ^4500/- as pension, insufficienteven to sustain her, let alone acquiring rights in any property.168.Another petitionerwho was the author and the voice of aprogrammeon the All India Radio in Srinagardivisionwhichbecame popularacross the line of control was so targettedbythe militants.A price for his head was even announced.In oneof the cases,despite the securitycover,an attempt was madeon the lifeof the petitionerwhosepropertyand belongingsstand looted and gutted in Srinagar and he has no property atall anywherein the country.There are other petitionerswhowere working in the intelligence,agenciesin the state who wereevacuatedon emergency basis after their colleagueswere shotdead.Severalof the petitionershave lost closefriendsandrelativeson account of the attacks by militants.

The petitionerswere targettedbecausethey were theface of the Central Government in the Kashmir valley and areunable to return for the same reason.169.So far as. ensuring the right to shelter is concerned,theSupreme Court has held that the state is deemed to be under anobhgation to secure the same to its citizens IRef : (1996) 2 SCC549 Climiieli Singh & Ors. vs. State of U.P,(supra), that it isimperative forthestatetoprovide permanenthousingaccommodationto the deprived.170. In 1995 (2) SLR 72 P.G. Gupta vs. State of Gujarat theSupreme Court had further declared that it was the duty of thestate to constructhousesat reasonablecosts and make them

easily accessible to the poor, and that such principles have beenexpresslyembodiedinourConstitutiontoensuresocioeconomic democracyso that everyone has right to life, libertyand security of the person.

In this context, in para 11 of the pronouncement,the courtexpresslylaid down the imperativeduty of the state to providepermanenthousingaccommodationto the poor in the housingschemesundertakenby it, or its instrumentalityand observedas foliows:-

"11.As stated earlier,the right to residenceandsettlementis fundamentalrig-ht under Article19fl)(e)and it is facetof inseparablemeaningfulright to lifeunderArticle21.Food,shelterandclothingareminimalhuman rights.The State has undertakenas itseconomicpolicy of planned developmentof the countryand has undertakenmassivehousingschemes.As itspart, allotmentof houses was adopted,as is enjoined byArts. 38, 39 and 46, Preamble and 19(l)(e),facilitiesandopportunitiesto the weaker sections of the society of theright to residence,make the life meaningfuland liveablein equal status with dignity of person.It is, therefore,inmerativeoftheStatetovrovidenermmmiitboiislnaaccommodatiouto the poor in the housingschemes undertakenbv it or its instrumentalitieswithintheir(Bconomicmeansso that theycouldmakethepaymentof thepriceineasyinstalments,andhavepermanentsettlementand residenceassured underArticle 19(l)(e) and 21 of the Constitution,xxxxx"(Underliningsupphed)

171.The SupremeCourt has repeatedlyreiteratedthe wellsettled position that the state has the constitutionalduty toprovide adequate facilities and opportunitiesto aU including thedisadvantaged and the displaced, by distributing its wealth andresourcesfor the settlementof life and erectionof shelter overtheir heads. The court has emphasizedthe constitutionalrightof every citizen to migrate and settle in any part of India for

.W.P.(C) No.15239/2004

better employmentopportmiityand it would be the duty of-thestate to provide right to shelter to the disadvantagedin society.(Ref : AliiimdabadMunicipalCorporationVs. Nawab KhanGulab Khan & Ors. (supra).

172.The forcibleremovalof pavementand slum dwellersbytheagenciesofthestatewithouttheirresettlementorrehabilitationhas been repeatedlydeprecatedby the courts inthe plethora of judgmentson the subject.In case they have tobe evicted from the place they are occupying,state authoritiesare bound to formulateschemes and pohcies.The respondentshave gone on record with regard to such projectsas are invogue for their relocation,resettlementand rehabilitation.(Ref:(1985)3 see 545OlgaTellisv. BombayMunicipalCorporation&Ors.;(1997)11SCC121AbmedabadMunicipalCorporationVs. NawabKlianGulabKhan&Ors.; MANU/DE/9327/2006Jagdislivs. DDA; decision of thiscourt- dated11"^^ February,2010W.P.(C)No.8904/2009Sudama Singh & Ors.)Placing rehance on the obhgationsunder the international instruments, the courts have rejDeatedlystated that adeguateand reasonablefacilitiesfor resettlementand effectivesteps taken for rehabilitationhave to be madeavailablebefore forcibleeviction.

173.An issueinvolvingchakmaswhoweretribalsfromerstwhile East Pakistan (now Bangladesh)went to the SupremeCo'urt in the case reportedat {1996) 1 SCC 742HumanRightsCommissionvs.StateofPradeshAnr. In this case, pubhc interest htigation was filedbytheNationalHumanRightsCommission seeking

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enforcementofrightsunderArticle21oftheIndianConstitution,of about 65,000Chakma/Hajongtribals.It wasalleged that these Chakiiias had settled primarily in the State ofArunachalPradeshand were being persecutedby sectionsofthe citizensof the state i.e. the All ArunachalPradeshStudentsUnionreferredto as"AAPSU"hereafter.It wasadditionallycomplainedthat theapplicationsof theCliakmasunder' theCitizenshipAct and Rules thereunder were not being forwardedby theStateGovernmentforconsiderationto theCentralGovernmentin accordancewith law.In deciding the matter, the Supreme Court placed citizensas well as non-citizenson commonplatformso far as therightsunderArticle14and21oftheConstitutionareconcerned.So far as the constitutionaland the statutoiyobhgationsof the states to protect the rights of those who reside within theterritoryof thatstateare concerned,the courtobservedasfollows

"20. We are country governed by the Rule of Law. OurConstitution confers certain rights on every human-being and certain other rights on citizens. Every personisentitledtoequalitybeforethelaw andequal.protectionof thelaws.So also,no personcan bedeprived of his life or personal liberty except accordingtoprocedureestabhshedby law.ThustheStateisbound to protect the life and liberty of every human-being, be he citizen or otherwise, and it cannot permitany bodyor groupof persons,e.g.,the AAPSU, tothreaten the ChakmaS to leave the-state, failing whichthey would be forcedto do so. No StateGovernmentworth the name can toleratesuch threats bv one groupof person-toanother group of persons:it is dutv boundto protectthe fSic)group from such assaultsand if itfails to do so, it will fail to form its Constitutionalas wellas statutorvobligations. Those giving such (Sic) wouldbe hable to be dealt with in. accordancewith law. The .State Government must act impartiallv and carir out its

W.P.(C) No.15239/2004

legal obligationsto safeguardthe life, health and well-beingof Chakmasresidingin the Statewithoutbeinginhibitedbylocalpolitics.Besides,byrefusingtoforwardtheirapplications,theChakmasaredeniedrights. Constitutionaland statutory,to be consideredfor, being registeredas citizens of India."

Thecourtconsideredthe factualmatrixand prevalentcircumstancesin detail and thereafterissued,inter alia,a writof mandamusdirectingtheStateof ArunachalPradesh,toensurethat thelifeand personallibertyof eachand everyChakmaresidingwithin the State shall be protectedand anyattemptto forciblyevictor drivethemout of theStatebyorganisedgroups,suchas theAAPSU,shaU be repelled,ifnecessary by reguisitioningthe service of para-militaryor policeforce.TheUnionof Indiawasdirectedtoprovidesuchadditional force as is necessary to protect the lives and liberty oftheChakmason the reguestof the first respondent.TheSupremeCourt furtherdirectedthat the Chakmasshall not beevictedfrom their homes except in accordancewith law andshall not be denied domestic life and comfort therein;the StateGovernmentwas directedto deal with the guit notices , andultimatums issued by the AAPSU and any other group whichtantamounted to threats to the life and liberty of each and everyChakma in accordance with law. The Supreme Court has thusrecognizedtheresponsibilityof theCentralGovernmenttoprovide forces to protectthe right to life of the threatenedpersons.

174.Unlike theChakmas,thepetitionersareIDPs whocomplain of violation of the same rights and seek redressalthereof.However, the extreme situation of hardship and

W.P.(C) No.15239/2004Page III of 157

difficultiesbeing facedby the petitionersand other personssimilarlyplacedis no different.The StateGovernmenthasbeen unableto protector securethe life and propertyof thepetitioners.TheCentralGovernmenthas not beenabletoadequatelyaddress the several issues which have been raised.Many of the petitionershad been physicallyevacuatedby theCentral Governmentin extremesituations.All the petitionerswereemployeesoftheGovernmentinDelhiandhavesuperannuatedin Delhi.The attempt being made at present isalso by the Central Governmentat Delhi is to. forcibly evict thepetitionersby taldng recourse to statutory provisions.175.- It is the constitutional duty of the state to protect humanrights and the fundamentalrights of all persons.The distinctionbetweensuch rightsand legal rightswhich may requireadjudicationinappropriateproceedingshasalsobeenemphasisedon several occasions.In (1982) 3 see 235 People'sUnion for DemocraticRights & Ors. Vs. Union of India & Ors., the court observedthat denial of statutoiy rights of the labour force, which was avulnerable section of the community, tantamounted to breach oftheirconstitutionalrightsandwasthereforeenforceableagainst the government. It was held that it was the duty of theUnion of India, the Delhi Administrationand the DDA to ensurethat the constitutionalobligationtowardslabourare dischargedby the Contractors to whom they had entrusted constructionwork. It was held that the Union of India, Delhi Administrationand DDA cannot fold their hands in despair and become silentspectators of the breach of constitutional prohibitions being

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committedby their own contractors.held as follows

In this context, the court

"21.. Beforeleavingthis subject,we may point 'outwith all the emphasisat Our commandthat wheneveranyfundamental,right,whichisenforceableagainstijrivateindividualssuch as, for examplea fundamentalright enacted in Article 17 or 23 or 24 is being violated,it is the constitutionalobligationof the State to take thenecessarystepsforthepurposeof interdictingsuchviolationand ensuringobservanceof the fundamentalright by the privateindividualwho is transgressingthesame. Of course, the person whose fundamentalright isviolated can always approach the court for the purposeof enforcementof his fundamentalright, but that cannotabsolvethe Statefrom its constitutionalobligationtosee that there is no violationof the fundamentalright ofsuchperson,particularlywhenhebelongstotheweaker Section humanityand is unable to wage legalbattleagainsta strong and powerfulopponentwho isexploitinghim.TheUnionofIndia,the • DelhiAdministrationand theDelhi DevelopmentAuthoritymustthereforebe held to be underan obligationtoensure observanceof these various labour laws by thecontractorsand if the provisionsof any of these labourlawsare violatedby thecontractors,the petitionersindicatingthecauseof the workmenareentitledtoenforcethis obligationagainst the Union of India, theDelhiAdministrationandtheDelhiDevelopmentAuthoritybyfilingthepresentwritpetition.Thepreliminai-y ' objectionsurgedonbehalfoftherespondentsmust accordingly be rejected."

The failure of the state to ensure statutory rights was heldto provide the essential basis for maintaining the writ petitionunder Article 32 for enforcing fundamental rights against theState and its agencies.176.It is noteworthy that writ petition was filed in this courtinconnectionwithcompensationpayabletoresidentsofKashmir whose property had been destroyed in the disturbancesin Kashmir. The judgment of this court reported at AIR 2005110 B.L.Wall & Ors. 1^, Union of India & Ors. has

W.P.(C) No.15239/2004

madeobservationsonthisveryunacceptablestandof theGovernmentofIndiainitsaffidavitwhichisunderconsideration.TheseobservationsbeforetheCourtreadasunder:-

"20.RespondentNo.l,Union of India,has also filedan affidavit under the signaturesof Mr. K.M. Kuti, UnderSecretaryinthesaidMinistrydealingwiththeDepartmentof Jammu& Kashmiraffairs.RespondentNo.l/UOIby way of the said affidaviteffectivelywashesitshandsoff thematter.It is statedthatreliefand'rehabilitationare State sublects.Para 2 of the parawisereply may be reproducedto show the stand of the Unionof India:

"2.That the avermentsmade in para 2 of thepetitionthatUOIisinvestedwiththeresponsibilityto rehabilitateand provide relief tothecitizenswho sufferasa resultof failureofstatetoprotecttheir ' lifeandpropertyismisconceived,incorrectand.isdenied.TheansweringrespondentrespectfullysubmitsthatLawandOrderaswellasReliefandRehabilitationareStateSubjects.MinistryofHome Affairshas the responsibilityof providinqRelief and Rehabilitationto refucreesfrom WestPaldstan(nowPakistan),EastPaldstan(nowBangladesh),SriLanka,TibetandtotherepatriatedIndianNationals.Therefore,thepresentwritpetitionquatheansweringrespondentis not maintainable."

21.TheGovernmentof India,thus,considereditsresponsibilityfor providingrelief and rehabilitationtorefugees,who are not citizensof this country,but notto citizens of the country who are refugeesin their owncountry.The apathy is writ large on its face.

22.Thereis vast para parapherneliaof militaryand para militarypersonnelin the State, of lammu&Kashmir of the Central Government.The boundariesofthe country are to be protected.The condition in theState was so serious that it has been taken as priorityissue.The dislocationof persons from the VaneyMs__awell-knownundisputedfact.How can the Governmentof Indiawashitshandsof thewholematterandabsolveitself of the responsibilityfor providinga safeliving to the citizens of the country?

23.Article 21 of the Constitution of India provides fortheFundamentalRightof ProtectionofLifeandPersonalLiberty.Lifecannotbebareexistence.Persons who are displaced and suffered injury to life

W.P.(C) No.15239/2004

and .propertyas resultof terrorismcannotbe leftwithout remedy.It is the duty and responsibility,of theStatetoprotectitscitizens.Citizenslikethepetitionersarevictimsof environment,whichis nottheir own creation.The State owes responsibilitytocreatean environmentfor safe and dignifiedexistenceof the citizens."

(Emphasissupplied)

This court rejectedthe stand of the Governmentof Indiathat the responsibilitytowards the payment of the compensationrests with the State Government alone holding as follows

"31.TheGovernmentof Indiacannotalsoabsolveitself of the responsibilityand is liable to ensure thatthe State Government remits the amount.A largeamountof fundsflowtotheStateof Jammu&Kashmir from the Central Governmentkeeping intoconsiderationthe disturbed conditionsand, thus, theCentral Governmentcannot sav that it has no role toplay.The State of Jammu & Kashmir is an integralpart •of our countryand the writof theCentralGovernmentruns.In the cases of victims of CharariSharief incident,funds have been disbursedout ofthe Prime Minister Relief Fund to make package ofRs.2 lakhsof ex-gratiacompensationapartfi-^omother benefits."

177.In this judgment,the court held that what holds true forloss of life and limb, would hold true for loss of propertyoccasionedby failure of the State to protect the same.It isnoteworthy that in the present writ petitions, the petitionershave not been deprived of their property and homes inaccordance with law as, for instance, in the case of acquisitionproceedings.The deprivation is direct result of the failure tocontrolthe violenceagainstthe petitioners. The principleslaiddown in the above judgment would apply to, the Kashmirimigrants on eveiy score.More importantis the clear findingby the court of the responsibilityof the Central Governmentforthe rehabilitation and relief to the IDPs from Kashmir.

W.P.(C) No.15239/2004Page 115 of157

178.It is imfortunatethat despite this adjudication,the standwhich was rejected has again been talien m these proceedings.Tliispositiononbelialf.of tlieCentralGovernmentin factignoresthe commitmentsmade in legal proceedingsnoticedabove.

179.It is noteworthythat the displacementof the petitionersis also not intra-state.The petitionershave been compelledtoleave the boundariesof their state and are residing in Delhi.•180.TheCentralGovernmenthasacknowledgeditsresponsibilityin the matter inasmuchit has intervened.inthematter.Several of the present petitionersstand evacuatedby itand the allotmentsof the quartersin the instantcase standmade it.Central resourcesare being utilized for developmentprojectsand security purposesin the state and admittedlytheCentral Government has accepted and assumed responsibilitytowards rehabilitationand resettlementof the persons displacedas weU in the grants and reservation made by it.

181.It was observed in •(1978) 1 SCR 1 State of Rajastlmii& Ors, vs. l/OIhy Chief Justice Beg that

"In our country national planning involves disbursementsof vast amounts of money collected as taxes from citizensresiding in aU the States and placed at the disposal ofthe CentralGovernmentfor the benefitsof the Stateswithout even the "conditional grants" mentionedabove.. Hence, the manner in which State Governmentfunctionand deal with sums placed at their disposal by the UnionGovernment,orhowtheycanyonthegeneraladministrationmayalsobemattersofconsiderableconcern to the Union Government."

182. The expansion and interpretation by the courts hasaffirmativelyestablisheda positiveright to housingand shelter•for eveiy person as part of the fundamental right.Human

rightsand fundamentalrightsare inalienable;their yiolations\Mare indefeasible.The state is under constitutionalobligationand duty to protectthese rights.When violated,a citizenisentitled to their enforcement.The constitutionalmandate uponit, is coupled with the statutoryduty and public law obligationsto ensurethe protectionof the fundamentaland basic humanrightsto all,in additionto itsobligationundertheseveralinternationalinstrumentsnoticedabove.Thisessentiallyremainsin the exclusivedomainof state functions.Failuretoprotect the citizens from eminent loss of life and propertyasweh as maintenanceof public order,implicatesthe state forculpable inaction.

183.Mr. Jatan Singh, learned standing counsel for the Unionof India has urged that these petitionersare not public servantsand can claim no right to continue in the allotted publicpremises.It has been vehementlyurged that on accountoftheir sujDerannuation,they ceased to be GovernmentservantsandaredisentitledtoretainGovernmentaccommodation.Learned Standing Counsel has urged at some length that theGovernment of India has formulated rehabilitation packagewhich necessitatesthat all these petitioners must return to theirhomes in Kashmir.It is contended that by their failure towho arevacate, the rights of the several Governmentemployeeswaitingto be allottedGovernmentaccommodationare adverselyeffected.Unfortunately the respondentsare unable to submitthat the petitioners would be safe upon returnor how thelespondents propose to ensure protection of life and liberty of

the petitionersor ensurerestorationof their propertyin tlieKashmir valley;184.Before the Supreme Court of India, the respondentshaveaccepted responsibilityand obligationto the IDPs from Kashmirandclaimedto haveadvancedhugegrantsto theStateofJammuKashmirandalsosetoutadetailed.schemein theaffidavit filed before the Supreme Court.

In the instantcase given the natureand extentof theviolations, the Union of India cannot abdicateresponsibilityinthe matter,or avoid its constitutionalobligationof at leastensuring reasonableshelter or roof to these petitioners.185. Placing relianceon the judgmentreportedatsee 138 Master Marine Services Pvt. Ltd. vs. Metcalfe andHodgkinsonPvt. Ltd. & Anr., it has been further argued byMr. Jatan Singh that this court is bound to exercise judicialrestraintand cannot be unmindfulof the administrativeburdenand increase in unbudgeted expenditure on account of quashingdecisions. It is urged that in this background, while exercisingpower of judicial review of an administrativedecision, the court•cannotsubstitute its own decision without the necessaryexpertiseand compel the respondentsto exercisediscretiontopermit the petitioner to continue to occupy the aforenoticedaccommodation.

186. This submissionfails to considerthe nature of the rightswhich are involvedin the case in hand. Metcalfe HodgkinsonPvt. Ltd. (supra) related to challenge to award of tender

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and contractof work of professionalservicesto the appellantand was not concernedwith plea of violationof basic human.rightsandconstitutionalguaranteesas areinvolvedin theinstant case.The considerationin Metcsilfe HodgldiisonP\rt,Ltd, (supra) has no applicationto the present case.187.In(2003)6 SCC 1 KapilaHingoraiiivs, ,StateofBihar& Ors. the StateGovernmenthad,however,pleadedfinancialstringencyto shift its liabilityto the Union of India orto the State of Jharkhand.'In para 67 of the judgment dated 9"'of May, 2D03 SupremeCourt had held that the liabilityof thestateof Bihar , cannotbe shiftedto the Unionof Indiaonlybecause it is the repositoryof funds raised by it through exciseand other central levies and impost, and consequently it wouldnot be indirectly or vicariously liable for the failings on the partof the State Public Sector Undertaldngs.It was held that eitherprecedentiallyor jurisprudentially,the Union of India cannot beheld liable and no such direction as was being sought by thestate governmentcould be issued.TheSupremeCourt,however,clearlydeclaredtheposition that financial stringency may not be ground for not.issuing requisitedirections when question of violation offundamental right arises.In,this regard, the court noticed theemphasis given by it on this aspect including the judgmentsreportedat[1987J1SCR641RuralLitigatmiiandEiititleiiieiitKeiidraand Ors.k State of Uttar Pradeshand Ors. ; 1980CriLJ1075Municipal Council Ratlam vs,Vardicimn& Ors,;[1996J3SCR80BX,. Wadlierav.of India ;(1995)4SCC507State ofv, H,P,

W.P.(C) No.15239/2004

Recognised& Aided Schools MaimffiiiffCoimiiiitteesOrs.; AIR 1996 SC 2426 PascJiliiiBmiga.Kliet MazdoorSaimiti & Ors. vs. State of West Bengal & Aiir.J

Inpara65of(2003)6SCC1entitledKapilaHingoraiiiVs. State of Bihar & ors, the Court rejectedthecontentionof the State of Bihar also to this effect.188.In para 6 at page 589 of (1993)3 SCC 584Imam Organisationvs. UOI, the Supreme Court held that:-

"6....Muchwas arguedon behalfof the Unionandthe Walrf Boardsthat theirfinancialpositionwas notsuch that thev can meet the obligationsof pavincrthe.Imams as thev are being paid in the State of Punjab.Itwas also urged that the number of mosguesis so largethat it would entail-heavyexpenditurewhich the Boardsof differentStates would not be able to bear. We. do notfindanvcorrelationbetweenthetwo. • Financialdifficultiesof theinstitutioncannotfundamentalridlit of acitizen.If the Boardshavebeenentrustedwiththeresponsibilitvof supervising.andadministeringtheWakf thenit is theirdutvtoharnessresourcesto pav thosepersonswho performthe most importantdutv namelv of leadingcommunitvpraverina- mosguetheverypurposeforwhichiscreated."

189.On the same issue in (1995)4 SCC 507 State of IIP.vs. II.P.StateRecognised& AidedSchoolsManagingCommittees,the Supreme Court observed that:-

"16. Theconstitutionalmandateto the State,asupheld by this Court in Unni Rrishnan case - to providefree education to the children up to the age of fourteen- cannot be permittedto be circumventedon theground -of lack of economiccapacity or financial• incapacity."

190. The observations of the Supreme Court at (2005) 2 SCC262 Kapila HingorahiF5r, ,State of Bihar & Others,whiledismissing the review petition filed by the Bihar Government, review of the earher order dated 9^^ 2003 areseeking May,

also topical on this objectionof the respondentsand need to beconsidered.The State of Bihar had submittedthat the state hadno liabilityto j^ay the salariesof the employeesof the statutorycorporations/companiesincorporatedundertheIndianCompaniesAct and that they were not completelyunder ,thecontrol of the State.Before the Supreme Court, counsel for theState of Bihar had urged that the remedy of the employeewasto file appropriateapplicationsbefore the Company Judge whowas seizedof the windingup proceedingsin relationto suchcompany.

These submissionswere rejected by court observing thatin the order datedMay, 2003., the court had consideredthematter from the human rights aspect as well as the fundamentalrightsof theemployeesin thej)ublic sectorundertakingoperatingin the state of Bihar;The court noticed that after thepassing of the order dated 9"' May, 2003, several employeesdied due to non-payment of their salaries.The court placedreliance, inter alia on para 24 of the directions dated 9"^ May,2003 and whilerejecting the review petition filed by therespondentsobserved as follows

"24. This Court furtherobservedthat the Statehas constitutionalobligationand acts in fiduciarvcapacityvis-a-visperformanceof its constitutionaldutiesandfunctionsbvthepubhcsectorundertaking'sas it has constitutionalobligationsinrelation thereto."

(Underliningsupplied)

Sofarasprotectionof suchhumanrightsandfundamental rights,and remedy for violation thereof, is

concerned,thecourtissued directionsto the state governmentto pay the salaries of employees in the public sectorundertaldngsin the following terms

TheGovernmentcompahies/publicsectorundertakingsbeing'States'wouldbe constitutionallyliable to respect life and libertv of all personsin termsofArticle21oftheConstitutionofIndia.They,therefore,must do so in cases of their own employees.The Governmentof the State of Bihar for all intent andpurportis the. sole' shareholder.Althoughin law,itsliabilitytowardsthe debtorsof the Companymay beconfinedto the shares held by it but having regard tothe deep and pervasivecontrolit exercisesover theGoveriimentcompanies;in the matterof enforcementof human rightsand/or rightsof the citizenof life andlibertv.the State has also an additionalduty to see thatthe rightsof employeesof such corporationsare notinfringed.

The rightto exercisedeepand pervasivecontrolwould in its turn make the Governmentof Bihar liableto see that the life and libertv clause in respectof theemployeesis fiillv safeguarded.The Governmentof theState of Bihar, thus, had constitutionalobligationtoprotectlifeandlibertyoftheemployeesoftheGovernmentownedcompanies/corporationswhoarethe citizens of India. It had an additionalhabilitv havingregardto its rightof extensivesupervisionover theaffairs of the company."XXX37.Wemakeit clearthatwehavenotissuedaforementioneddirectionsto the Statesof Bihar andTharkhandon the premisethat they are bound to paysalariesof theemployeesof thepublicsectorundertaliingsbut on the groundthat theemployeeshave Immmi right as also fundaiiieMitalrmht• ,under Article21 which the States are boimd 'toprotect. The directions, which have been issued by thisCourt on 9^^^ ]y[ay^ 2003 as also which are beingissued' herein,areinfurtheranceofthehumanandfundamentalrights of the employees concerned and notby way of an enforcementof their legal right to arrearsof salaries.The amountof salaryjoayable to tlieconcerned employees or workmen would undoubtedly in thebe adjudicated upon projDer proceedings.However,thesedirectionsareissuedwhicharenecessary for their survival. Undoubtedly, any amountpaid by Justice Uday Sinha Committee pursuant tothese directions shall be duly credited for!"(Emphasis supphed)

yV.P.(C) No.15239/2004

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191. The principle reiterated by the Supreme Court was thatfinancialdifficultiesof the institutionor the statecannot beaboAAB the fundamentah rights of the citizen.It has also beenobserved that in situation of the nature which was before thecourt, it was obliged to issue necessary directions to mitigatethe extremehardshipof the employees involving of humanrights of the citizens of the country at the haiids of the stategovernmentandcompaniesandcorporationsownedandcontrolledby it.•

192.OtherthanthebaldreferencetothejudgmentinMetcalfe(supra),learnedstandingcounselhasplacedno' factual assertionsin support thereof.'Such submissionis clearlyuntenablein view of the admittedGovernmentpositionin theaffidavitdated6"^ October,2009filedin JJC Koul (supra)before the Supreme Court of its responsibilityas well as liabilityqua the displacedKashmiris.The same stands admittedin thediscretionexercisedin favour of the three persons cited in TejKisbmi(supra)and the letterdated2""^ July,2002placedbefore the Central AdministrativeTribunalas also in the policyof reservation/preferentialallotmentoftheflats.Therespondentshave clearly admittedtheir responsibilityand arebound by their commitments.193.Before this' court,the respondentshave not stated thatthere is any assessmentor calibrationin terms of prioritiesofthe various of the several projects which the respondentsneedundertakeor thevariousareaswhichGovernmentbusinessaddresses.The respondentsexplain neither the financial

burden of ensuringshelter to these IDPs nor the extent of theavailable.resource.Mereannouncementofschemesandallocatioiiof largevolumeof fundsby the Governmentas areactionto court directionsupon occurrenceof events in thecountryb3A themselvesare insufficientand may proveto bemeaningless.Displacementas that of the presentpetitionersclearly reflects the imperativeto take holistic view and for thedecisionmakersto takea'minimum-needs'basedapproachwhereensuringbasichumanrightsandsocialwelfareareconcerned.

194.Experienceandexamplesaboundin thiscityandtheaforenoticedjudicial precedentsof forcibleevictionsrelatingtoslumsand jhuggidwellers.Defencelessanddisadvantagedcitizensare forciblyevicted from their shelterswhich are thendestroyed.And then, the long arm of the state,gives hyiDertechnicalinterpretationto legal definitions,.takes the shield ofstatutoryprovisionsand implementswhat is touted as the "i:uleof law" in removalof "encroachments"by the disadvantaged.Othersillegalconstructionsand deviantsare "regularised"or"compounded".This very, ethos is illustratedin the present writpetitions.

195.InstanceafterinstanceofschemesinDelhiforregularisingnotonlyrankiUegalandunauthorisedconstructionsbut also large scale encroachmentson public landare in existenceand being implemented.So much so that theCentralGovernmenthas promulgatedordinancesand statutesprohiblttingdemolitionsof hugeillegalbuildingsandeveninterdictingcourt orders.Interestinglysuch legislationsbenefit

sucli law breakerswho do not even need rehabilitationor statesupport,who are certainlynot disadvantagedor displaced. TheDelhi Laws (Special.Provisions) Act, 2006 was enacted by theParliamentconcerned that action for violationof the provisionsof the MasterPlan 2001and buildingbye laws was causinghardship and irreparableloss to large number of people.Noreferencetopublicsafety,publicinterest,environmentconcerns,enforcementof legalprovisionsor thefinancialimpact and loss is displayed.

196.The judgmentreportedat 2010 (III) AD (DeiM) 513HarijanKalymiSamiti Regd.& Ors,vs. .GovernmentofNCT of Delhi makesa referencetoGovernmentpolicytoregularise1400 unauthorisedcolonies.The huge loss to thepublicexchecj[uerofindiscriminatelyregularisingihegalencroachmentson land acquired after payment of large sums ascompensationfrompublicfundsbythegovernment;encroachmentsthoseonpubliclandasalsoviolationsofbuilding regulationsis not even computed,let alone addressed.(Ref:(2006)3 SCC 399 M.C. MelitaUOI & Ors.; AIR, 2005 SC 1 FriendsColony- DevelopmentCommitteevs.State of Orissa & OrsJ197.Yet the respondentsurge "financialstringency"so far asthepresentpetitionersareconcerned.Theessenceof thepolicyofrehabilitationandresettlement,sofarasthepetitionersis concerned has not only been given completegoby but the respondentsare completelydenying all liability forthe same.

W.P.(C) No.15239/2004

198.Apartfrom vague suggestionof insufficiencyof funds,the respondents do not substantiate such plea with anymaterial. The respondents have not shown any consideration ofthe petitioners' needs, let alone any steps take to address theirphght. There is nothing which could enable this court to arriveat conclusion that the respondentshad difficulty in workingthe rights of the petitioners on account of financial incapacity.To say the least, similar submissions were termed as "typicallygauche"and"lacking insensitivity" by thiscourt in P,K.Haiidoo vs. Estate Officer (supra) and already stand rejectedin BX. Wall & Ors. vs. UOI (supra).The impugned actionandthesubmissionsmanifeststhehugebarrierswhichadisplaced citizen of the country faces in accessing even basicandguaranteedconstitutionalrightsdespitetheadmittedresponsibility of the state for the breaches and violations of theconstitutionalprotectionssuffered by them.remedy, role of the court and nature ofrelief199. It is now necessary to consider the nature of remedy, andrelief which would be availableto citizen for violationof thefundamentalrightto life as w:ell as threatthereto.TheSupreme Court has repeatedly judicially awarded compensationin casesof establishedbreachof publicduty to protectthefundamentalrightsandviolationsthereof,especiallytheguaranteesof personal liberty and life.

200.In AIR 1983 SC 1086 Rudul Sailvs. State of Biliar,the court was concernedwith violationof rights resultingfromillegal detention.The observationsof the court on the duty of

the courtdeserveto be consideredin extensoand readasfollows

"10^Article21, whichguaranteestherightto life and' libertywill be denudedof its•sim-iificantcontentif the power of this Court werelimitedtopassingordersof releasefromillegaldetention.Oneof thetellingwaysin whichtheviolation of that right can reasonablybe preventedand due compliancewith the mandateof Article 21secured,is to mulct its violatorsin the paymentofmonetarycompensation.Administra:tive sele(sic)sisleadingto flagrantinfringementsof fundamentalrights cannot be correctedby any other methodopentothejudiciarytoadopt.TherighttocolTLpensationis somepalliativefor theunlawfulactsof instrumentalitieswhich act in the name ofpublicinterestandwhichpresentfortheir. protectionthe powersof the Stateas shield.Ifcivilisationis not to perish in this country,as it hasperishedin some otherstoo well-knownto suffermention,it is necessaryto educateourselvesintoaccepting that, respect for the rights of individualsis the truebastionof democracy.Therefore,theState must repair the damage done by its officers tothe petitioner'srights."201.So far as the remedy which would be availablein casesinvolving infringement,of fundamentalrights and the power ofcourts.Dr. A.S. Anand,J [as his Lordshipthenwas]in hisconcurring judgment in AIR 1993 SC I960 entitledNilabatiBeliara @ Lalita BehuraVs. State of Orissa had observed asfollows

"33. The public law proceedingsservea differentpurpose than the private law proceedings.The reliefof monetary conipensation,as exemplary damages,inproceedingsunder Article32 by this Court or underArticle226bvtheHighCourts,forestablishedinfringementoftheindefeasiblerightguaranteedunderArticle21of theConstitutionisaremedvavailablein publiclawandis based •on thestrictliability for contraventionof the guaranteedbasic andindefeasiblerightsof thecitizen.Thepurposeofpublic law is not only to civilize public power but alsoto assurethecitizenthat they liveundera legalsystemwhichaimstoprotecttheirinterestsandijreservetheirrights.Therefore,whenthecourtmouldsthereliefbvgranting"compensation"in

proceedingsunderArticle32or226of—theConstitutionseeldnaenforcementor protectionoffundamentalrights, it does so under the pubhc law bywayof penahsinathe . wrongdoerandfixingthehabilitv for the pubhc wrong on the State which hasfailed in its pubhc duty to protect the fundamentalrights of the citizen. The payment of compensation insuch cases is not to be understood,as it is generallyunderstoodin ciyil actionfor damagesunder thepriyatelaw but in the broadersenseof providingrelief by an order of making 'monetary amends' underthe public law for the wrong done due to breach ofpublic duty of not protectingthe fundamentalrightsof the citizen.The compensationis in the natureof'exemplary damages' awarded against the wrongdoerforthebreachofitspubhclawdutyandisindependentof claim compensationunder the privatelawinanactionbasedontort,throughasuitinstitutedin court of competent jurisdictionor/andprosecutethe offender under the penal law.

XXXXXXxxxx

37.ThisCourtandtheHmliCourts,being' the protectorsof the civil libertiesof theI citizen,Imve not only the uower and jurisdictionbut also an obligationto grant relief in exerciseof its jurisdictionunder Articles32 and 226 oftbe Constitutionto the victim or the heir of thevictimwhose fundamentsrightsunder Article21 of the Constitutionof India 'are establishedtohave been flagrantlyinfringedby callingupontheStateto repairthedamagedoneby itsofficers 'to the fundamentalrights of the citizen,notwithstandingthe right of the citizen to the remedyby way of civil suit or criminalproceedings.TheState,of coursehas the right to be indemnifiedbyand take such action as may be availableto it againstthewrongdoerin accordancewithlaw- throughappropriateproceedings.Of course, relief in exerciseof thepowerunderArticle^or226wouldbegranted only once it is establishedthat there has beenan infringementof thefundamentalrightsof thecitizen and no other form of appropriateredressalbythe court in the facts and circumstancesof the case;is possible."

(Emphasissupplied)

202.In (19H8)' 4 SCCSlieelaBarsevs.UOI & Ors,,thecourt was concernedwith gross violationsof'the constitutionaland statutory rights of large number of children in the countrywho were sufferingcustodialrestraints.While commentingon

W.P.fCJ No.15239/2004

the nature of proceedingsin public interest litigationand theissue of protection and enforcementof their rights, the courtmade the following,observationswith regard to the duty of thecourt

"6MoreimportantlytheCourtishotmerelyapassive,disinterestedumpireoronlooker,but has more dynamic and positiverole with the responsibilityfor the organisationof the proceedings,moulding of the relief and--thisisimportant--alsosupervisingtheimplementationthereof."

203. Where infringement of fundamental rights is estabhshed,the duty of the court does not stop at givinga mere declaration.In 1997 (1) see 416Basu vs. State of West Bengal itwas laid down that in such case, the court mustproceedfurther and give compensatory relief, not by way of damages asa civil action but by way,of compensation under the pubhc lawjurisdiction for the wrong done, due to breach of the pubhc dutyby the State of not protecting the fundamental right to life ofthe citizens.To repair the wrong done and give judicial redressfor legal injury is compulsion of judicial conscience.204.Unliketheseveralcasesnotedhereinaboveincludingcases of Rudul SliaJi^ D.Kc Basu, Leelawati Beliura,SlieelaBarse(supra)etc.in theinstantcase,thestateor its• instrumentalitiesitselfhavenot, harmedorpunishedthepetitioners.However, the state has totally failed to protect thefundamentalright to life of the petitionersand to protect themfromviolence,harassmentandpogroms,Thisis inclearabdicationof theconstitutionalresponsibilityof theState.Responsibilityfor the violence in the State is not the question

before this court: The issue before' this court is restrictedto thequestion of the rights of the petitioner.

205.So far as the approachof courton such issuesisconcerned, in para 13 of the pronouncement reported at (2003)4 see mi state ofMaharashtraBr D. FrafulB.Desai,theSupremeCourtstatedthatone needsto set out tlieapproach which court must adopt in deciding sucli questionsand reiteratedthat the first duty of the court is to do justice.206. In para 15 of AIR WHO SC 1622 MunicipalComicilRatlam vs. Vardicbaii& Ors., the court observed that:-

"15.The nature of the judicial processisnot purely adiudicatorvnor is it functionallvthat of anumpireonlv.Affirmativeactionto maketheremedveffectiveis of the essenceof the ricrht which otherwisebecomes sterile."

207.In para 11 of (1997)6 SCC 241 VisbaMia& Ors,vs.State of Rajasthan & Ors,^ the Supreme Court held that theobligationof theSupremeCourtunderArticle32of theConstitutionfor the enforcementof fundamentalrightsin theabsenceof legislationmust be viewedalong with the role ofjudiciary envisaged in the Beijing Statementof Principlesof theIndependenceof the Judiciaryin the LAWASIA region.Theseprincipleswere acceptedby the Chief Justicesof the Asia andthePacificatBeijingin1995asthoserepresentingtheminimumstandardsnecessarytobeobservedinordertomaintaintheindependenceandeffectivefunctioning.of thejudiciary.Theobjectivesof the. judiciarymentionedin theBeijing Statement are:

"Objectivesof the Judiciary:

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10. The objectives and functions of thejudiciary include the following:

(a) to ensure that all persons areable to live securely under the Ruleof Law;

(b) to promote, within the properlimits of the judicial function,theobservanceand the attainmentofhuman rights: and

(c) to administer the law impartiallyamong persons and betweenpersons and the State."

InClause10(a)of theobjectivesof theChapteron'Objectives of the Judiciary',it has been clearly stipulatedthatthe objectivesand functionsof the judiciaryincludeensuringthat all persons are able to live securely under the rule of law.208.So far as the mannerin which reliefis requiredto bemoulded so as to ensure protectionof the constitutionalrightsof the petitionersin this bunch of writ petitionsare concerned,learnedcounselforpetitionerhasplacedrelianceonthepronouncementof this court dated10"^^ September,2004 inWFfCJ No. 172/1997 entitledSmL Kamla Devi vs. Govt. ofNCT of Delhi & Ors.In this judgment,learned brother B.D.Ahmed,J wasdealingwitha caserelatingtoa prayerforcompensationfor the death of one Uday Singh,an electricianwho was killed in an explosion on account of terroristactivity inDelhi.

The court held that lower courts would-losetheir efficacyif they cannotpossiblyrespondto the needsof the society-technicalitiestheremightbe manybut the justice-orientedapproachoughttonotbethwartedonthebasisof such

technicalitysince technicalitycannot and ought not to outweighthe course of justice.

209. While referring to several pronouncementsof the ApexCourt with regard to compensation for custodial death; death ofschool children on picnic; death of passenger in train inaction on the part of the railway employees, it was furtherobserved in Kamla Devi's case (supra)OlS follows

"7,. XXXThe fact of the matter is that Uday Singh lost hislife on account of an act of terrorism.The State failedto preventit.ThePrimarvdutyof theStateis tomaintainpeace and harmonv amongst its citizens.Ifforsomereason,itisunabletoputthelidonsimmeringdiscontent,then it is its duty to protectinnocentcitizensfrom harm.. If it failsin thisduty,then it must compensatethe citizenswho have beenwronged."

Reliance was placed on the pronouncementinSC 1960 NilabatiBehara@ LalitaBeliuraVs, StateOrissa wherein it had been also observedthat while directingmonetarycompensationforestabhshedinfringementof thefundamentalrights,the courts take into account not only theinterestof theapplicantand the respondentbutalsotheinterestsof the public as whole with view to ensure thatpublic bodies or officials do not act unlawfullyand do performtheir public duties properly particularlywhere the fundamentalright of citizen under Article 21 is concerned.Law is in theprocess of developmentand the process necessitatesdevelopingseparate public law proceduresas also public law principles.210., In AIR 1989 Mad. -205 R. Gandiii& Ors,UOI &Anr., the Madras High court was concerned with the inability ofthe State to enforce public order putting in jeopardy the life and

W.P.(C)'No.15239/2004

liberty, home and hearth of the victims involved. The petitionsoughtredressal for the trials and tribulationsundergoneby theminority Sikh communityof Coimbatorein Tamil Nadu and afewothersin thewakeof theassassinationof latePrimeMinister Smt. Indira Gandhi on 31st October,1984.Obsei-vingon the violation of the fundamentalrights and the duty of thestate,theMadrasHighCourtplacedrehanceontheobseiTationsof the Supreme Court in the Olga. Tellhcase, and held as follows

"21.Themaintenanceof law and orderis theprimary dutv of the State and under our Constitutionit isaStatesubjectandtopstheStateList.NoGovernmentworththenamecanabdicatethisfunctionand put the life and liberty,the hearth andhomeof thecitizensin ieopardv.ArticleoftheConstitutionenjoins on the State to strive to promotethe welfare of the people by securing and protecting,as effectively as it may, social order in which justice,. social,economicand political,shallinformall theinstitutionsof the nationallife.Under/(drticlei9(a)and (g) of the Constitution,any citizen of this countryis entitledto resideand settlein any partof theTerritory of India and to practice any professionor tocarry on any occupation, trade or business. Article 21lays down that no person-shall be deprived of his rightor personal liberty except according to the procedureestablishedby law. As pointedout by the SupremeCourtinBombayPavementDweller's' case,MANU/SC/0039/1985: AIR1986SC180, nopersoncanlivewithoutthemeansof living,thatis,themeans of livelihoodand the easiest way of deprivingaperson of his .right to life would be to deprive him ofhis meansof livelihoodto the pointof abrogation.Under Article300(A)of the Constitution,no personshall be deprived of his property save by authorityoflaw and to ahow his propertiesto be reduced to ashesby the force of darkness and evil is clear deprivationoftherighttopropertyguaranteedbytheConstitution.Themembersof theSikhCommunityform an integral part of the Indian societ5/-; they haveevery right to settle down in Coimbatoreand carry ontheir profession.They have the Constitutionalright tolive and they cannot be deprivedof their meansoflivelihood.Their rightto propertyis inviolable.AlltheseConstitutionalrightsof theSiklisand fewmembersoftheothercommunitieshavebeen

flagrantly infringed by the inaction of the lawenforcingauthorities. -Fundamentalrightsare notmerebrutumfulmen.Theyare •the,throbbingaspirations and realities of civilised human life, theycannotbe rendereddesuetudeor dead-letteror asobservedby Bhagwati, J. as he then was, 'a paperparchment, teasing illusion and promise ofunreality', bv the failure of the State to protect thoserights.Theseunfortunatevictimsofarsonandviolence are, therefore,entitled to seek reasoimblecoinwensatioB.from the State of Tamil Nadu, whichhas failed in its dutv to protect their Constitutionaland legal rights.

22It is matter of regret that the State ofTamilNadu,whichhasfailedtocarryoutitselementaryfunctionof enforcingpublic order shouldtreat the victimsof its own lapsesas beggarswithbowls for alms. It is not charity that is expected of theGovernment,but legal recompensefor wrongsdoneto them, for injuriesinflictedon them on accountofthe break-downof the Governmentalmachinery.Thesecondrespondent-Stateof TamilNaducajiiiot,therefore,sMrkItsrestJousiMlitv' fortheseuiifortmmte'Imppenincfsor try to escape from itsoMmationasasocialwelfareStateto makesuitableamends,"

(underlining

supphed)

211. Examining the claim for compensation on account of deathof spouse in similar riots targetingmembers'ofthe same.community in Delhi in 1984, Anil Dev Singh, J in the judgmentreported at 1996 (3) AD (Delhi) 333 / 199§ (38) DBJ 203'Bliajan Kaurws. Delhi Admn.. has observed as .follows:-

"(10)Article21 is the Nation'scommitmenttobring every individual or group of persons within itsprotective fold. This Nation belongs to members of allthe communities.They arc equal members of the Indiansociety. Equality before law and equal protectionoflawsisensuredtothembyArticle14oftheConstitutiontothem.Noneistobefavouredordiscredited.Theconductof any personor groupofpersons has to be controlledby the State for the loftypurpose enshrined in Article 21 of the Constitution.It isthe duty of the State to createa climatewherethecleavage between members of the society belonging todifferentfaiths,casteand creedare eradicated.TheState must act in time so that the preciouslives of thepeopleare not destroyedor threatened.Otherwise,Article 21 will remain paper guarantee.Time is longoverdue for adopting measures that have more than

hortatoryeffectmenforcing Article21of theConstitution.TheStatecannotadopta "do nothingaltitude". Like disease prevention, the State must takeevery precaution,measureand initiativeto preventterrorem popuh of the magnitude represented by 1984. riots and in the event of an outbreak of riots it must ,actswiftly to curb the same and not allow precious time toslip by, as any inaction or passivity on its part canresult ill loss of precious life and liberty of individualsamounting to violation and negation of Article 21. of theConstitution.TheStatehastoenforceminimumstandardsof civilized behavior of its citizens so that thelife,libertv.dianitvandworthof anindividualisprotectedandpreservedandis notjeopardisedorendangered.If it is not able to do all that then it cannot. escapethe habilitvto pav adequatecompensationtothe family of the person killed during riots as his or herlife has been extinguishedin clear violationof Article21 of the Constitutionwhich mandatesthat life cannotbe takenawayexcept, accordingto theprocedureestablishedby law. "

It is noteworthythat in para 25, the learned JudgeinBhajan Kaur's case, was of the view that the judicial trend is toawardsubstantialcompensationforillegalextinctionordeprivationof life and liberty.212.I had also occasionto considera claim for compensationfor injuries and loss suffered by the petitionerin the 1984 riotsin Delhi in the aftermathof the assassinationof late Smt. IndiraGandhi in which members of one community were, targetted.Inthe judgment reported at 120 .(2005) DLT 156 Maiijit SmffliSawIiMiey vs. l/OI & Ors., placingrelianceon the principleslaiddown in theaforenoticedpronouncements,it had beenobservedas follows

"20. The award of monetary relief to the victim fordeprivationof fundamental.rightis to be guided by theafore statedprinciplerequiringthestatetomakemonetaryamends under public law for the wrong donedue to breachof the publicduty of not protectingthefundamentalrights of the citizens.This computationisnot guided by any strict arithmeticalformula and it has

W.P.(C) No.15239/2004

to be bornein mind that money cannotremovethetrauma and the battering suffered by victim."

213. The observationsof the Supreme Court in AIR 1981 SC487 AJayHasia iks?. Klmlid Mujib. Sehrawardi & Ors. are alsoclassical and topical on this aspect and shed light on the issueunder considerationas follows

"Whereconstitutionalfundamentalsvitaltothemaintenanceof human rightsare at stake,functionalrealism and not facial cosmetics must be the diacrnostictool, for constitutionallaw must seek the substanceandnottheform.....It mustberememberedthatthefundamentalrights are constitutionalguaranteesgiven'to the people of India, and : are not merely paper hopesor fleeting promises and so long as they find place intheConstitution,theyshouldnot be allowedto beemasculatedin theirapphcationbya narrowandconstrictedjudicial interpretation.The Courts shouldbeanxioustoenlargethescopeandwidthof theFundamentalRightsbv bringingwithintheirsweepevery authoritvwhich is an instrumentalitvor agencyof the Governmentor through the corporatepersonalityof which the Governmentis acting,so as to subject theGnvRrmriRntinallitsmvriad.activities,whetherthroughnatural personsor throughcorporateentities,to the basic obligationsof the FundamentalRights."

214.It isa wellsettledprincipleof interpretationof theconstitutionas well as statutesthat the same have to be readkeeping the societal changes and growth.Law must change tokeep pace with the on going developmentsand new rights meiyhave to be found out within the constitutionalscheme.(Ref :(2003)6 see 1 Kapila Hingoranivs. State o/i^iAar (para60 at page 30).The imperativenecessityto take recoursetotake such interpretativechangesb^;- the courts has resultedinthe expansion to the right to life ensured under Article 21 of theConstitutionof India.

The courtreliedon earlierjudgmentsand reiteratedthat the first duty of the court is to do justice.In para 62, the

W.P.(C) No.15239/2004'

Supreme Court also declared that the riiTht to develoijmentinthe developing country is itself human right.

215.The duty to ensure constitutional rights rests not onlyon the Supreme Court or the High Court in exercise ofjurisdiction under Article 32 and 226 but would be the mandateof every court and its essential judicial function.The claimsin the present cases have to be adjudicated on these principles.216. In P.K, Koul (supra), specific order was passed on 15'-''October, 2003 in W.P.(C) No. 6551/2003 by this court to decidethe petitioner'srepresentationdated 16'^'"January, 2003 seekingpermissiontocontinuetoretainthequarter.Withoutmeaningfully complying with this order, the respondentshavetaken recourseto the proceedingsunder the Pubhc Premises(EvictionofUnauthorisedOccjupants)Act,1971.Suchadecisionof the respondentpatentlyviolatesthe petitioner'sbasichumanrightsandconstitutionalguaranteesnotedhereinabove.Otherpetitionershavealsomadesimilarrepresentationson which orders have not been passed by therespondents.

217.Smt.PhoolaRaina who is the petitionerin W.P.(C)No.15698/2004is the wife of lateSh. T.N.' RainawhO' expiredinharness on 4'^'^ August, 2001.She and family were dependent onlateSliriT.N.Rainaandresidingwithhimintheallottedquarter.The respondentshave been unable to rehabilitatethislegal heir who is also Kashmiri displaced person and if forciblyevicted from the premises in her possession,she has nowhere togo.It is contendedby Phoola Raina that the meager pensionsheisreceivingisheronlysourceofincomewhichis

W.P.(C) No.15239/2004Page 137 of 157

insufficient to even bear the expense of food for her familymembers.The writ petitioner has also placed reliance on SR-317B-25oftheallotmentofAllotmentofGovernmentResidences (General Pool in Delhi) Rules, 1963.In view of theabove discussion, it is clearly evident that so far as her claim isconcerned,the same fundamentaland human rights as those ofthe other writ petitioners are involved and she is entitled to thesame relief and considerationas the others.218. The petitionersin the present cases have complained ofviolation of their right to life in their home state.This situationhascometobedespitethe1984riots,whichmarkanunfortunatewatershedin Indian, history,when examinedfromany aspect.The threatened breach of primarily of their right toshelter,a basichumanrightandan integralpartof theguaranteeunder Article 21 of the Constitutionof India, even attheir displacedlocationat the handsof the respondentshascompelledinvocationof this court'sextra-ordinaryjurisdictionunder Article226 of the Constitution.219.The pleadingsin the case would show that thereis nodisputeto the facts pleadedby presentpetitioners.Therecannot be and there is not even suggestionthat the right toshelter of the petitionersin their home state has been abridgedby any procedureestablishedby law.Such infractionof theirrights is purely on account of the inabilityof the respondentstodischargetheir constitutionalobligation;duty and responsibilityof protecting the life and property of the petitioners.

The respondentshavea positiveduty to providebasicnecessitiesto its citizens.It certainly defies commonsenseand

W.P.(C) No.15239/2004

all notionsof humandignity to permitthe respondentstoexcludesuch facilitiesas bare shelterwhichis essentialandnecessary to encourage the self respect and dignity of thesedisplaced persons in human manner consistent with wellrecognized modern standards thereof.

The courtshavea constitutionalduty and internationallegal obligations to ensure the right of every person to be freefrom, want of basic essentials..

220.The above discussionwould show that there cannot be anydisputeabout the nature of and protectionof the right of thepetitioners.However, the manner in which it is to be enforcedagainst the respondentsdeserves consideration.

221.The instant cases, relate to unique situation.It has beenrepeatedly stated by the Supreme Court that in case of violationof the right to life and personal liberty, the court is not helplessto grant relief and should be preparedto forge new tools anddevisenew remediesfor the purposeof vindicatingthe mostpreciousof the precious fundamentalright to life and personalliberty. {Ref.: (19.81) 1 SCC 627: AIR 1981 'SC 928 Klmtri &Ors,Vs, State ofBihar & Ors.).

222.In(1991)^SCC 584/ AIR1992SC 248Carbide CorporationVs. Union of India, it was stated by theChief Justice RanganathMisra that "we have to develop our ownlaw and if we findthat it is necessaryto constructa newprincipleof liability to deal with an unusual situationwhich hasarisenand which is likely to arise in futurethere is noreasonwhy we shouldhesitatetoevolvesuchprincipleof

liability.;The observationsof Venkatachaliah,J (as hisLordship then was) in this case who had rendered the leadingjudgment in the Bhopal Gas case with regard to the courtspower to grant relief are the same.

These principles have been reiterated in AIR 1993 SC1960 SmL NiMbati Behem alias Lalita Bebem Vs. State of. Orissa& Ors.

223. The jurisdiction of the court to mould the rehef so as to dojustice to party complaining of infringement of Chapter IIIrights is wide and requires to fit the contours of the right whichis violated.It is essential,therefore,that while adjudicatingonthe questions raised, the relief to be granted has to be mouldedkeeping in mind the unique challenges laid and the claims madein these petitions.

224.In (1987) 1 SCC 395 M.C. Melita rs. UOI & Ors., thecourt expanded on the jurisdictionand obligation of the court tomould new relief in the following terms

"3It may now be takenas wellsettledthatArticle ^does not merely confer power on this Court toissuea direction,order or writ for enforcementof thefundamentalrightsbut it alsolaysa constitutionalobligationonthisCourttoprotectthefundamentalrights of the people and for that purpose this Court hasall incidentaland ancillarvpowers includingthe powertoforgenewremediesandfashionnewstrategiesdesignedtoenforcethefundamentalrights.It isinrealisationof thisconstitutionalobligationthatthisCourthasin thepastinnovatednew.methodsandstrategiesfor the purposeof securingenforcementofthe fundamentalrights,particularlyin the case of thepoor and the disadvantagedwho are denied their basichuman rights and to whom freedom and liberty have nomeaning."

225. The Supreme Court has categoricaUyheld ui (1996 ) 9see300 J.P.Ramdas & Ors.vs. Navyuvak HarijaiiUttlmpan Multi Unit Industrial Coop. Society Ltd. & Ors.that any contract or action which is opposed to constitutionalanimation is void.The court as custodian and protectoroffundamental and basic human rights has sacred duty to deterbreachesthereof.

226.It is also well settled that it is not only the right of thelitigants, but also the duty of the court to not only enforcefundamental rights but also award compensation against thestate for violation of those rights.In other words, 'the power ofthe court is not only injunctive in ambit, that is preventing theinfringement of fundamental right but it is also remedial inscope and provides the relief against the breachof thefundamentalright already committed.' {AIR 1989 Mad. 205 R.Gandhi vs. UOI & Aiir. (supra}221. On the aspect of appropriate compensation for establishedbreachesof fundamentalrights, referencecan also usefully bemade to the observationsof the DivisionBench of this court inthe judgment reported at 2001 (1) JCC Delhi 57 Governmentof NCT of Delhivs. Shri Nasiruddin(Father of deceasedMolid.Yasin) to the followingeffect

"21.It istruethatperfectcompensationishardly possibleand money cannot renewa physiqueframe that has been batteredand shattered,as statedby Lord Morris in West v. Shephard(1964)AC 326.Justice requiresthat it should be equal in value,. althoughnot alikein Mad.Objectof providingcompensationis to place claimant as far as possible inthesamepositionfinancially,ashewasbeforeaccident.Coiimensatioiiawarded shouldbeinadequateand'shouldneither.mifeasoimble,excessive,nor deficient.There

W.P.(C) No.15239/2004

be noexactuniformruleformeasisrinff

228.In the present cases, the petitioners have complained ofgrievousAaolenceto their lives and properties and the admittedhelplessness of the respondents to protect the same.We areconcernedwith forcedouster,thoughnot by the State,butwhich is direct result of the inability of the state to protect thelife and property of class of its citizens, resulting in theirforced displacements. The petitioners are now threatened withcompulsive eviction from their occupied quarters without anyalternativedespite the threats to their lives in their home state.The UN Commission on Human Rights has unequivocallystatedthat forced evictions are gross violation of human rights.TheInternationalCommunity has long recognised forced eviction asa seriousmatterand it hasbeenreportedrepeatedlythatclearance operationsshould takeplace only when conservationarrangementsand rehabilitationare not feasible,relocationmeasuresstand made.

229.li\(199.0)1see328S.M,D.KlrainFasJiars.Government of A.P., the Supreme Court had observed that awrit petitionwould be maintainableunder Article 226 of theConstitutionof Indiaalso whena rightunderArticle21 isthreatenedas contradistinguishedfrom the right when it isinfringed.In para 21 at page 342 of the report,the court heldas follows-

"21.In the languageof Kelsenthe rightof anindividualis eithera merereflexright-thereflexoflegalobligationexistingtowardsthis individual;or aprivateright in the technicalsense-the legal powerbestowedupon an individualto bring about by legalactiontheenforcementofthefulfillmentofan

. W.P.(C) No.15239/2004

obligationexistingtoward Mm, that is, the legal power.From the above analysisit is clear that in the instantcase the appellant's fundamental right to liberty is thereflex of a-lecral oblicration of the rest of the society,inr.lnrlina the State, and it is the appehant'slegal powerbestowed upon him to brincr about by legal action theRTiforcementofthefulfillmentofthatobligationexisting towards him. Denial of the legal action would,therefor^,mnonnt to denial of his right of enforcementof his right to liberty.' petitionfor writ of habeascorpus would not be substitute for this enforcement."

(Emphasis supphed)

These principles have been reiterated by the Apex Courtin (2003) 6 SCC1 KapilaHingorani fs?. State 'ofBihar,

230. These judicial concepts have evolved from conservative• andtraditionaljudicialsystemsandconcepts.Legalinterpretation as well as judicial pronouncements lean towardsproviding for thesocial needs of society and societal.developments.

In this background, the objection of the respondents thatthe petitioners are disentitled to relief is devoid of legal merit.231.In view of the harm inflictedby third partyagainstwhich the state could offer no protectionin the present cases, apositive obligation is also imposed upon the state to compensatethe petitioners in reparation of the effects of the harm causedby the third party. It remains fact that the State's inability tosecure the life and property of the petitionerscompelled themto flee'theirhomes. The same inability prevents the petitioners'return to their homes.

232. So far as compensationis concerned,it is again wellsettled that the same would not be monetary alone.Principle18of theGuiding Principlesfor IDPs as set out by the UNmandatesthatcompetentauthorities,shall provideinternally

displacedpersonswith and ensure safe access to essentialfoodand potable Water, basic shelter and housing, appropriateclothing,essentialmedicalservicesandsanitationetc.Resettlementand reintegrationare an essentialpart of therehabilitationof IDPs.They have the right to participatefullyand equally in public affairs at all levels and are entitled toequal access to public sei^vicesin the part of the country wherethey are resettled.Principle 29 mandates when recovery of theproperty and possessions which the IDPs left behind or weredispossessed of upon their displacement is not possible, they areentitledto be providedappropriatecompensationor anotherform, of 'just reparation'.233. Reference can usefully be made to the observations of theConstitutionalCourt of South Africain (2001)3 LRC 209.Governmentof Republicof SouthAfrica&Ors,vs.Gootboom& Ors. wherein the .court observed as follows

"93...thiscaseshowsthedesperationofhundredsofthousandsofpeoplelivingindeplorableconditions throughoutthe country. The• Constitutionobhaesthe stateto act positivelytoamelioratetheseconditions.Theobligationis toprovideaccessto housing,healthcare,sufficientfood and water, and social security to those unableto supportthemselvesand theirdependants.Thestate must also fosterconditionsto enablecitizensto gain access to land on an equitable basis."

234.There can be no dispute at all that whether it be jhuggiormudbuiltthatchedhouseoramansionconsideredinShantistar(supra), without security of limb and life as well asthe property,no enjoyment thereof is possible.In order to bemeaningful,the shelterwhich, is envisagedhas to be in anenvironmentwhichissafeandsecure,notonlyfromthe

\N.p.(C) No.15239/2004

Page 144 of 157

elements, but from the larger threats and dangers which havebeen created by manldnd. Even if the respondents were in apositionto provide shelter in the .home state of the petitionersas envisagedin the affidaAdtfiledKoul (supra), in oideifor such right to be meaningfullyenjoyed, it has to be ensuredthat there is peace within the communityand the state; that itslawenforcementagenciesareabletoensurethattheconstitutionalguaranteesand protectionsof the citizens arefully secured.

235.The respondents are not in position to facilitate thereturn to their homes for the petitioners.Even if the petitionerswere to so return, the respondentsare not in position to statethey couldprotectand guaranteetheirsafetyand security, therespondents do not even remotely suggest that they could getrestitution to the petitioners of their properties which had beenleft behind in the Kashmir valley.236. The Supreme Court has also prescribed different rehefs incases involving breaches of constitutional rights.. In MunicipalCouncil RatlamVs, Vardichan& Ors. (supra),the SupremeCourt was of the view that punitive action in the given facts wasthe remedy which was effective to ensure the essence of theright involved.

237.In National Human RigMs. CommissionState ofArmiaclial PradeshAnr. (supra),the court had directed thestate to ensurethat the life and personallibertyof each andeveryChakmaresidingwithin the Governmentof ArunachalPradesh,the state was protectedand any attemptto forcibly

evict; or drive tliem out was repelled in view of the violationsmid threat to their lives.

As noticed above, in para 13 of NiMbati Behm-ai @ LaiitaBeliuraVs. State of OrisSa(supra),the court had mouldedrelief by granting monetary compensation in view of the failureto protect fundamental rights of the persons. In fact the courtheld that the refusal to pass orders for compensation would bedoing lip service and that the court was under an obligation togrant relief (para 37).

iR '1997(1) see 416 D.K. BasuState of WestBmiffalthe Supreme Court emphasized justice orientedapproach which was responsive to the needs of the society. Thecourt had also granted monetary compensation for violations inthis case.

Denial of wages was the consideration and relief mouldedappropriatelyinKapilaHingoraiiiVs.State, of Bihar

238.Compensationtothesepetitionerswhichcouldbeconsideredappropriateand perfect thus would have to includecomprehensiveresettlementsuchas economicrehabilitationandaffordablehousingschemeswhichhavebeenclearlyenvisaged by the respondents.Several other measures towardsmeaningfulrehabilitationessentialin termsof theGuidingPrincipleshavenotevenentered.therespondents'consideration.The same has however not been possibleso far.This court cannot shut its eyes or judicial conscienceor remainobliviousto the stark realities.

239.The issues raised in the present case have arisen beforein the context of persons facing displaceihent on account ofdevelopmentand infrastructure projects especiallymajor rivervalley projects. In (2000) 10 SCC 664 : AIR 2000 SC 3751NariimdaBaclmo AndoMiJvs. Uniou of IndiaSupreme.Court was concei'ned with the displacement of tribals as resultof constructionof the Sardar Sarovar Dam.In para 62 at page702 of the SCC report the court held that if the displacedpersons were in better position to lead decent life enjoyingbetter amenitiesand facilitiesand earn their livelihoodin therehabilitatedlocation,theirfundamentalrightsguaranteedunder Article 21 of the Constitution would per se not be violatedby the construction of the dam and the resultant displacement.This position was reiterated in (2005) 4 SCC 32 NariimdaBaclmo Aiidolanvs. UOI & Ors.240.In para 60 (pg 394) of (2004) 9 SCC 362 N.D. Jayal&Anr.Vs.UOI&Ors.,RajeiidraBabu,Jheldthatrehabilitationof oustees of dam is logical corollary of Article21 of the Constitutionand that the ousteesshouldbe in thebetter position to lead decent life and earn livelihood in thenew locations.

No reason at all as to why forciblydisplacedpersonsasthepetitionersshouldnotbesimilarlytreatedgiventheviolationsof their constitutionalrights.241.Beforethis court,the petitionersare aggrievedby thedeprivationof their homes and property and the threat by therespondentsto evict them from the only shelter possessed bythem.Looked at from any angle, the respondentscannot avoid

\N.P.{C) No.15239/2004Page 147 of 157

their coiistitutionalobhgationof protecting the hfe and hbertyof the petitioners and ensuring shelter to these victims ofcriminal acts who stand displaced from their, home for no faultof theirs, primarily on account of failure of the respondents toprotect their Constitutionalrights. In case rehabilitationis notpossible then the respondents have no option but to ensuremeaningfuland reasonableresettlementin the above terms. Tomitigate effects of the displacementfrom home, hearth andproperty, the respondents are thus legallyobhgedto provide atleastreasonableshelteraspartoftheproportionalcompensation,to the petitionersfor violationof their basic andfundamentalrights.

Such 'just reparation' would constitute part of "reasonablecompensation" andwouldbeasteptowardssuitablerehabilitation of the petitioners.Rehef in these petitions has tobe so moulded.242.It is now necessarytoexaminethecontoursandparametersof the state responsibility..243.Mr. Jatan Singh.and Mr. R.V. Sinha, learned counsel forthe Union of India have urged at length that the petitionerswere fully aware about the fact that eventually they were toretire from the Governmentservice.The submissionis that theywererequiredto havemadetheirlife plansand alternatearrangementswith this unavoidable event in mind.

244.The furthercontentionis that, the governmentensuresadequate financial security to retiring employees, who have thebenefit of pension as well as other retiral benefits which run

into several lakhs of rupees including gratuity, provident fundetc. and nothing further can be expected of the respondents.245.Pension,gratuityand otherretiralbenefitsarenotunique to the petitioners,but are'availableto every person whoretiresfrom the serviceof the country.What distinguishesthese petitioners is. the, fact that they have been placed in aunique position and are unable to return to their homes as aconsequence of the inability of the State to discharge itsconstitutionalobligations.

246.The question still remains as to whether the pension andthe monetary retiral benefits could be "adequate compensation"for the infringement of the petitioners indefeasible rights to lifeand due discharge of the constitutional obligation of the State.The answer clearly has to be in the negative.

247.We are here concerned with the entitlementof shelter toIDPs.So far as the natureof the developmentwhich wouldmeet the guarantee of shelter and ensure life of dignity to theperson concerned, in para 9 of the pronouncement reported at{1990)1see520SlmntistarBuildersVs.NarayaiiKliimalailTotame & Ors., the Supreme Court had observed asfolio WS:-

"9.Basicneedsof man havetraditionallybeenacceptedto be three-food,clothingand shelter.Theright to life is guaranteedin any civilized society. Thatwould take within its sweep the right to food, the righttoclothing,therightto decentenvironmentandareasonableaccommodationtolivein.Thedifferencebetween the need of an animal and human being forshelter has to be kept in view. For the animal it is thebare protectionof the body; for human being it has tobe suitableaccommodationwhich would allow him togrow in every aspect - physical,mental and intellectual.The Constitutionaims at ensuring fuller developmentofevery child. That would be possible only if the child is in

home. Tt.a proper is not necessary that every citizenmust be ensuredof hvina in well- built coinfortablehouse but reasonablehome particularlyfor people illTiirlia r.an even be mud-builtthatchedhouse or mud-built fire-proofaccommodation."

(Emphasis supplied)

Undoubtedly, so far as the reasonablenessand adequacyof the measureswhich the respondentsare requiredto take,mustmeettheprincipleslaiddown in theaforenoticedpronounceiments of the courts, the international conventions,the standards in the guiding principles for IDPs and ensure therights of the petitioners.

248.The above Internationalinstrumentsand GuidelinesforIDPs provide not only for the right to adequate shelter andhousing services but also refer .to access to land on equitablebasis to all. They recognise and cast positive obligation on the•state i.e. the respondents,to take other reasonablemeasurespossible to ensure complete realisation of the right to adequatehousing of the petitioners.It is evident that the. respondentscannot avoid their responsibilityand duty to ensure that theaforenoticedbasics to the petitioners.These are the principleswhich had to guide the considerationof the issues which werebefore the respondentsand have been raised in this bunch ofwrit petitions.

249.Theclaimforshelterin thesewritpetitionsisthuspressedas part of the compensationfor the violationof thepetitionersrights.Thepetitionersseekdirectionstotherespondentsto permit them to occupythe premisesin theiroccupation,till such time the respondentsare able to dischargetheir constitutionalduty of protectingthe lives and property of

its citizens and providing them permanentresidences.Insimilar cases^ the Supreme Court and this court lias permittedthe displaced persons to continue to occupy the occupiedquarter.Order to this effect stand passed by the CentralAdministrativeTribunalaswell.Therespondentshavepermitted some of IDPs to continuewith their occupationoftheallotted quartersafter retirement.There is clearly nojustificationat aU for not permitting the petitioners to do so inthe given facts and circumstances.

Rmbts of deweiidmits of deceased a.Ilottees.

250. There is yet another aspect of, the matter.The petitionersbeforethis court includeSmt. PhoolaRaina,a widow of theallottee.Therespondentsdo notdisputethatshewasadependant of the allottee and that she is also an IDP.It is alsonot the respondent'scase that she is person of means who isliving in Delhi in circumstances which are different from thoseof the others from her home State.There is no material to showthatthispetitionerhasany alternativeshelterundertheschemes and policy of the respondentsor has been adequatelycompensated.

251.So far as the claimed rightsor the violationsurged bySmt. PlioolaRaina are concerned,other than bald plea thatshe was not the allottee> the respondentsare unable to point outany distinction from the other petitioners.The respondentsdonot state that she can safely returnto any residencein theKashmir valley.It is also not averred that this petitionerownsany property into which she could shift. It is not even suggested

W.P.(Q No.15239/2004

that there is any difference in the constitutional rights orscheme between her and the other petitioners.Not singlecircumstancewhich could disentitle this petitionerto grant ofrehef against the threatened eviction and violation of herconstitutional rights has been placed or made out in the case.TiU such time that the respondents are able to meaningfully andreasonably rehabilitate this petitioner, her. forcible evictionunder the shield of statutoiy process is also without any doubtconstitutionallyimpermissible.

252.As noted above the respondentshave admittedlymadediscretionaryallotmentsin favourof personswho arenotGovernmentservants.It. is notexplainedas to why suchdiscretioncould not be exercisedin favourof this petitioner.Certainly permitting such dependant of the deceased allotteeto continue to occupy the accommodation under occupation tiUalternateshelter was made availablewould not violate any ruleas well.The same would clearly be in consonancewith theconstitutionalmandateand the principleswhich emergefromthe several judgments noticed above.It is clearly evident thatsuch dependant would be permitted to continue to occupy theaUottedaccommodationtillsuchtimethattherespondentsmeaningfully resettleand rehabilitatethe IDPs or they acquiretheir own alternativesor if the respondentsare able to showthat they have the means to make alternatemeaningful andreasonablearrangements.

W.P.(C) No.15239/2004

253.In view of the above discussion,absent any alternative;theadmittedfailureoftherespondentstoprotecttheconstitutional rights of the petitioner and the threats whichsubsist in case they were compelled to return to their State;given the arbitrary and wrongful failure to exercise thediscretionundertheSR-317B-25oftheAllotmentof«GovernmentResidences(GeneralPool in Delhi) Rules, 1963 infavouroftilepetitioners;thedrasticviolationofthefundamentaland basic human rightsof the petitionerwhichresults upon such implementationof the statutoryprovisions;keeping view the schemes of rehabilitation and resettlement ofKashmiri migrantsof the respondents,and also the severaljudicial precedentsand administrativeorders in respectofsimilarly placedpersons/theactionof therespondentsintreatingthepetitionersasunauthorisedoccupantsandproceeding against them under, the Public Premises (Eviction ofUnauthorisedOccupants) Act, 1971 was completely misdirectedand unwarranted.

254.It is evidentthatthe learnedappellatecourtsin theappeals also adopted hyper technical approach ignoring theseriousviolationof constitutional.rightswhich has resultedtothe petitionersand the drastic consequencesof rendering themhomeless which results on implementationof the eviction order.Theconstitutionalrightsof thelitigantsarenotonly wellestablishedbut are without any limitations.The orders do notindicatethattheseveralimportantquestionsraisedby thepetitionerswere deemed to deservean adjudicationincludingthe manner in which superiorcourts had dealt with similarlyW.P.(C) No.l5239f2004Page 153 ofl57

situateddisplaced persons.The learnedcourts paid noattentiontothedeclaredpolicyofresettlementandrehabilitationof Governmentor theconstitutionalrightsandguarantees which all courts are bound to enforce..255.The actionof the respondentsin denying favourableconsiderationof the request to continue to occupy the quarterssuffersfrom, the vice of discriminationand arbitrariness.Thedecision to treat the petitioners as unauthorized occupants andproceed against them under the Public Premises (Eviction ofUnauthorizedOccupants) Act, 1971 as well as the impugnedordersare in violationof the constitutionalguaranteesandbasichumanrightsof thepetitioners,anddo notshowapplicationof mindtorelevantmaterialorconsiderationthereof.The impugneddecision to cancel the allotments,theaction under the Pubhc Premises Act;; and the impugned ordersoftheEstateOfficerandtheappellateordersareconstitutionallyand legally not sustainable.256.The special leave petition in/.X Koul (supra) was filedin 1997 and the rehabilitationschemewas placed beforethecourt for the first time in 2006 which proceedingsculminated inthe judgmentdatedDecember,2008aftertwelveyears.Adjudicationwas still necessitatedin P.K. Hmidoo vs. Estater (supra)decidedon2^"^ August,2006;M.K.KouldecidedonllthApril,2008.I find that the CentralAdministrativeTribunal had passed detailed judgment on 30'^''December,2002 in OA No. 2378/2002e-n\At\Q'6. Tej Kisbmirs.UOI.In all these cases by final adjudications,the petitionershave been permittedto continue with occupationof the quarter

W.P.(C) No.15239/2004

concerned.Despite the proceedings and judgments in theabovenoticed matters,the respondentshave still proceededagainst the petitioner in the manner noticed above.257.Instead of facihtating the resettlement .and rehabihtationof the petitioners who are internally displaced persons as perthe declared policy, they have arbitrarily been exposed to theadditionaltraumaof the threatof forcible evictions and theuncertainty and insecurity of seeking the adjudication bypursuing litigation. In these circumstances, the petitioners areentitled to exemplary costs from the respondents inasmuch asthe threat of forcible eviction by the process resorted to by therespondents impacts the fundamental rights of the petitioners.258.In this background, while allowing the writ petitions andhaving regard to the number of the petitions which have beenunnecessarily generated and the lack of material with regard tothe persons responsible for the unfortunate decision maldng,only the litigation costs of the present cases are being awarded.259.It is essentialto make it clear that it is only mthepeculiar fact situation of the presentcases and the extremehardshipofthepetitionersinvolvingviolationofthefundamentalrights and human rights of the citizens of Indiathat such continuedoccupationof the pubhc premisesby thepetitioners has to be permitted.No inference can be laid thatany person aiot having propertyof its own or not havingsuffered the violationsaforenoticedcan or has been permittedtocontinuetoindefinitelyoccupythepubhcpremises.Therefore,the principles laid down in this judgment would bindonlyafactsituationasinthepresentcaseorsimilar

W.P.(C) No.15239/2004Page 155 of 157

circumstanceswhen the State has been unable to protect thefundamentaland basic human rights of its citizens compellingtherii to be displaced from the place of their residence and isnot in position to ensure their safety or security in case theyreturn to the place of their residence.

In view of the above discussion,it is directed as follows(i)The impugnedorderscancelling the allotmentof thepetitioners;the orders of eviction passed in the proceedingsheld against the petitioners under the Public Premises (Evictionof UnauthorisedOccupants) Act and the appellate orders whichare detailed in para 13 are hereby set aside and quashed.(ii)A directionis issuedto the respondentsto makeallendeavourstoadequately,effectivelyandreasonablyrehabilitateand resettlethe petitioners,making provisions forappropriateaccommodationsfor them.(iii)Tillsuch -time,therespondentsareabletoprovidealternativeaccommodationto thepetitionerand' his/orherfamily anywherein Delhi, the petitionersshall be allowed toretain and occupy the allotted accommodation(also detailed incolumn no. 2 of para 13 above)subject to payment of normallicense fees.

(iv)Eachof thepetitionersshallbeentitledtocostsofRs.25,000/-which shall be paid withina periodof six weeksfrom the date of passing the order.

These writ petitions are allowed in the above terms.

W.P.(C) No.15239/2004

10547/2007.13421/2007.15540/2',00^r16497/2008,1fi;44!q/200a.16503/2008.5796/2009,7654/2009,10986/2009.11351/2009.11242/2009.11244/2009&

In view of the orders passed, in the respectivewritpetitions,these apphcationsdo not requirefurtlieradjudicationand are disposed of accordingly.

aUITA

i)er5t"^aa/kr