P.K. KOUL v. ESTATE OFFICER AND ANR.

Judgment

1. The instant case is a testimony to events which lead to an unprecedented ethnic cleansing of a minority community from the Kashmir valley on account of the inability of the State to protect them and their property from violence, who, as a result, were rendered homeless. Such turmoil was faced by the minority community in the state of Jammu & Kashmir after December, 1989, compelling its members to flee home, hearth and State for bare survival. These writ petitions have been filed by some of such displaced persons who were Central Government employees seeking protection against forcible eviction of the quarters occupied by them on the ground that it is the only roof available to them. W.P.(C) No.15239/2004 Page 8 of 157

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

3. The writ petitioners in W.P.(C) Nos. 5681/2007, 2869, 8599, 8600, 8601/2008, 11377/2009, 15239, 15240, 15245, 15246, 862, 15241, 15264, 15279, 15698, 1779/2004, 2641/2006, 7057/2007, 8641, 9609, 11548, 11488, 11489, 11490 & 11491/2009 were shifted from Jammu & Kashmir to Delhi and posted in the local offices of the central organization and department where they were employed.

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

5. W.P.(C) No.15698/2004 has been filed by Smt. Phoola Raina, widow of Late Shri T.N. Raina who was a Government W.P.(C) No.15239/2004 Page 9 of 157 servant. Shri Raina was the allottee of Government accommodation bearing no. DG-915, Sarojini Nagar, New Delhi-

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

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

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

8. Shri P.K. Koul, the petitioner in W.P.(C) No. 15239/2004, was a resident of Razdan, Kochhaa, Bana Mohalla, Habba Kadal, Srinagar and his entire property in Srinagar has been destroyed by the communal riots and terrorist movements. He clearly W.P.(C) No.15239/2004 Page 10 of 157 states that he has no other house anywhere in India. This petitioner was lastly posted as the Director General with the Border Security Force at R.K. Puram, New Delhi. While in service, this petitioner was allotted the premises no. H-52, Sarojini Nagar, New Delhi. On 31st July, 2002, the petitioner superannuated service. The allotment accommodation in his name was cancelled by a letter dated 27/28th August, 2002 with effect from 1st December, 2002 directing the petitioner to vacate the accommodation immediately and he was informed that on failure to vacate, action to evict him under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 would be taken. The respondents also informed the petitioner that on failure to vacate, he would be liable to pay damage rent @ Rupees 150 per sq. mtr. for the entire period of over stay. The petitioner was permitted to retain the accommodation from 1st December, 2002 to 31st April, 2003 on payment of four times of the normal license fee for the next two months.

9. The petitioner and his family are permanent residents of the State of J&K and did not leave their home state voluntarily

but were driven out of the Srinagar valley. Their household goods were looted and house was burnt by the terrorists. Other than the one residence, which also stands destroyed by the militants in Srinagar, Shri P.K. Koul owned no other property. A grievance is made that the respondents have taken no action for the reconstruction of the houses of the petitioners and others like him which were destroyed by the militants and to rehabilitate them resulting in a pitiable condition and absence W.P.(C) No.15239/2004 Page 11 of 157 of any security for them. Consequently, they are unable to return to their own homes.

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

11. In these proceedings, the following eviction order dated 23rd September, 2003 was passed against the petitioner which was served on him on 18th November, 2003:- “OFFICE OF THE ESTATE OFFICER AND DEPUTY (LIT.) DIRECTORATE OF DIRECTOR OF ESTATE ESTATES, NIRMAN BHAWAN, NEW DLEHI. All persons concerned and in particular EC/93/AD/Lit/03/T-D Shri P.K. Koul, 123, North West Moti Bagh, New Delhi Whereas I, the undersigned am satisfied for the reasons recorded below that Shri P.K. Koul is an unauthorized occupation of the premises specified in the Schedule below : REASONS You have been continuing to occupy the premises specified in the schedule below even after its allotment stands cancelled in your name w.e.f. 1.2.03 vide letter no. TD/283/M-23/96 dated 8.11.02. You have failed to prove that you are not in unauthorized occupation of the instant premises. Now, therefore, in exercise of the powers conferred on me under Sub-Section (I) of Section 5 of the Public Premises W.P.(C) No.15239/2004 Page 12 of 157 (Eviction of Unauthorized Occupants) Act, 1971, I hereby order Shri P.K. Koul, and all the persons who may be in occupation of the said premises or any part thereof to vacate the same within 15 days from the date of issue of this order. In the event of refusal or failure to comply with this order within the period specified above, the said Shri P.K. Koul and all other persons concerned are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary. SCHEDULE 123, North West Moti Bagh, New Delhi. Sd/- (B.K. Kulshreshtha) ESTATE OFFICER Date : 23.9.2003 Copy to A.D.-T-D.”

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

13. The facts relating to the other petitioners in this bunch of petitions are similar and are not disputed by the respondents. For the purposes of convenience and clarity, the details of W.P.(C) No.15239/2004 Page 13 of 157 the allotment of accommodations which were effected in favour of the petitioners/the predecessor in interest; the dates of their retirement; the status of allotment and particulars of the orders which have been passed against all the petitioners and are impugned in these writ petitions are tabulated below:- 1 2 3 4 5 6 Writ Petition No. Quarter Allotted Date of Retiremen t of Allottee Date of impugned order of Cancellati on of Allotment Date of impugned Eviction Order Date of impugned order in Appeal

31.7.2002 31.10.2002 23.9.2003 10.9.2004

1.7.2002

31.10.2002 23.9.2003 10.9.2004

7.5.2002

7.5.2002

25.9.2003 10.9.2004

30.9.2002 7.5.2002

25.9.2003 10.9.2004

30.4.2005 1.9.2004

28.3.2005

20.12.2005

12.12.2005 12.12.2005 31.1.2006 31.1.2006

31.10.2001 1.3.2002

18.9.2002

10.9.2004

28.2.2002 30.6.2002 11.7.2003 10.9.2004 WP (C) No.15239 /2004 WP (C) No.15240 /2004 WP (C) No.15245 /2004 WP (C) No.15246 /2004 WP (C) No.862/2 006 WP (C) No.1779/ 2006 WP (C) No.15241 /2004 WP (C) No.15264 /2004 H-52, Sarojini Nagar, New Delhi GI-800, Sarojini Nagar, New Delhi H-162, Sarojini Nagar, New Delhi 123/IV, North West Moti Bagh, New Delhi 499 A, Sector 3, R.K. Puram , New Delhi Z-20, Sarojini Nagar, New Delhi 11/5, Sector-1, M.B. Road, New Delhi 60/9, Sector-1, Pushp Vihar, New Delhi W.P.(C) No.15239/2004 Page 14 of 157 1 2 3 4 5 6 Writ Petition No. Quarter Allotted Date of Retiremen t of Allottee Date of impugned order of Cancellati on of Allotment Date of impugned Eviction Order Date of impugned order in Appeal

30.4.1998 1.9.1998 3.3.2004 -

22.1.2002 - (Allottee Died while in service 4.8.2001)

30.4.2004

1.7.2004

25.4.2005

1.2.2006

30.9.2006

23.7.2007 -

31.5.2007 - -

31.12.2007

10.11.2008 -

31.12.2007 - -

31.12.2007

10.11.2008 -

31.5.2008

20.4.2009 -

31.7.2008

3.8.2009 - WP (C) No.1527 WP (C) No.1569 WP (C) No.2641 /2006 3/252, Andrews Ganj, New Delhi DG 915, Sarojini Nagar, New Delhi MS/1007, Sector VII, M.B. Road, New Delhi WP (C) No.5681 /2007 Allotted Quarter in Delhi WP (C) No.2869 /2008 WP (C) No.8599 /2008 WP (C) No.8600 /2008 WP (C) No.8601 /2008 WP (C) No.8641 /2009 WP (C) No.1137 New Delhi New Delhi New Delhi New Delhi GI-809, Sarojini Nagar, New Delhi 880, Lakshmi Bai Nagar, New Delhi W.P.(C) No.15239/2004 Page 15 of 157 1 2 3 4 5 6 Writ Petition No. Quarter Allotted Date of Retiremen t of Allottee Date of impugned order of Cancellati on of Allotment Date of impugned Eviction Order Date of impugned order in Appeal

30.6.2008 1.8.2008 9.3.2009 25.8.2009

30.11.2007 21.7.2008 19.1.2009 -

30.4.2008 18.8.2007 10.11.200

25.8.2009 8

30.6.2006 1.11.2006 18.6.2007 25.8.2009

30.9.2005 1.2.2006 18.7.2006 25.8.2009

31.08.2006 01.01.2007 28.05.2007 1.9.2007

30.04.2008 31.12.2008 16.03.2009 - WP (C) No.1148 WP (C) No.1148 WP (C) No.1149 WP (C) No.1149 WP (C) No.1154 WP(C) No.7057 /2007 WP(C) No.9609 /2009 SI/38, Sadiq Nagar, New Delhi S- 1/65/11, M.B. Road, New Delhi AB-837, Sarojini Nagar, New Delhi K-4/12, Sector II, DIZ Area, Gole Market, New Delhi 47/3A/, DIZ Area, Sector 2, Gole Market, New Delhi X-224, Sarojini Nagar, New Delhi Qr.No.28 1, Type- IV, Sector-8, R.K.Pura m, New Delhi. W.P.(C) No.15239/2004 Page 16 of 157 Petitioners’ contentions

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

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

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

17. The petitioners have contended that discretion and power is vested in the respondents under SR 317-B-25 of the Allotment of the Government Residence (General Pool in Delhi) Rules to permit any person to occupy public premises. Instances have been cited of the respondents permitting other persons including identically displaced Kashmiris to occupy public premises. It is complained that the respondents have unfairly failed to consider the special circumstances so far as the W.P.(C) No.15239/2004 Page 17 of 157 petitioners are concerned and have discriminated against them. The writ petitioners thus assail the failure of the respondents to exercise the discretion vested in them to permit the petitioners to continue to occupy the quarters, in accordance with law on the ground of arbitrariness.

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

19. It is submitted that in the given circumstances the petitioners cannot be deemed to be in „unauthorised occupation‟ for the purposes of the application of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The petitioners contend that the respondents were constitutionally mandated to protect their right to life under Article 21 of the Constitution of India and having failed to do so, were bound to ensure the right to shelter of the petitioners, which is an essential concomitant thereof. In this background, the petitioners challenge inaction qua the rights of the petitioners; the legality and validity of the cancellation of the allotments of the quarters; as well as the proceedings and all orders under the Public Premises (Eviction of Unauthorised Occupants) Act,

1971. It is contended that the respondents have ignored all relevant material in initiating the proceedings against the petitioners, passing the impugned orders. W.P.(C) No.15239/2004 Page 18 of 157 Respondents contentions

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

21. Before examining these submissions, learned counsel for the petitioners have drawn attention to the petitioner's pleadings in grounds A to H, K, L & M of WP (C) No.15239/2004 P.K. Koul Vs. Estate Officer and the respondents response thereto which deserves to be usefully considered in extenso and reads as follows:- Pleadings No.15239/2004 the WP (C) Pleadings in counter affidavit Grounds “A. Because the Hon'ble Supreme W.P.(C) No.15239/2004 Page 19 of 157 “That the contents of Grounds (A to H) are matter of record, need no comments. Xxx S.L.P. India Court No.7639/1977 – Shri J.L. Koul & Ors. Vs. State of J&K & Ors. has considered the question regarding the possession of the accommodation of the similarly placed employees and adjourned the matter sine die and till the Supreme Court decides the matter finally, the Respondents cannot dispossess the Petitioner from the premises in question. Vide order dated 26.8.1997 the Hon'ble Supreme Court of India in the said case passed the following orders: “List this matter on a regular day after six weeks. In the meantime, Mr. P.P. Rao will ascertain from the State Govt. as to whether the petitioners can be put their respective houses owned by them in the Kashmir valley and can ensure protection of the persons as also their property. To facilitate that venture, the petitioner's counsel will give to Mr. Rao the address of each petitioner where he would expect to be shifted.” situation Again vide order dated 28.1.1998 into consideration of taking present the Hon'ble Supreme Court of India passed the following orders adjourning matter sine die and continued the stay:- “Adjourned sine die. Stay to continue. The petition to be activated on mentioning by Counsel for the State of Jammu and Kashmir as and when the Pleadings No.15239/2004 the WP (C) State is in a position to assure the return of the petitioners to their in the Kashmir respective homes valley and ensure their safety and personal property.” Copies of the aforesaid orders of the Hon'ble Supreme Court dated 26.8.1997 and 28.1.1998 are annexed herewith as annexure herewith as Annexure P-5 & P-6 respectively. W.P.(C) No.15239/2004 Page 20 of 157 Pleadings in counter affidavit “That the contents of Grounds (A to H) are matter of record, need no comments. B. Because the Ld. ADJ has not even considered that the Hon'ble Tribunal in OA No.2378/2002 – Tej Kishan Vs. Union of India & Ors. has gone into the issue and directed the Respondents to allow the Applicant therein the Govt. retain accommodation pending decision in SLP (Civil) No.7369/97. A copy of the aforesaid order of the Ld. Tribunal annexed herewith as Annexure P-7.

30.12.2002 C. Because the Ld. ADJ has failed to appreciate that Petitioner being a Kashmiri migrant whose house in Kashmir was burnt and destroyed by the militants, he has no place to go. He is, therefore, compelled to stay at his Govt. accommodation allotted to him till the normalcy in Kashmir valley is restored and he could go back to his State one day and rebuild and reoccupy his destroyed house. However, the Respondents in a most callous, unconcerned and mechanical manner turned down the request of the Petitioner. D. Because the Petitioner has the Fundamental Right to live which is guaranteed to him under the Article 21 of the Constitution of India and which Right includes the Right to Shelter also. E. Because the Petitioner cannot go back to the Kashmir Valley, his place of origin because his life is in danger in the valley on account of the ongoing militancy in the State of J & K and also because his own house in Srinagar was burnt/destroyed by the militants and he has no other shelter anywhere in India. Pleadings No.15239/2004 the WP (C) F. Because the Petitioner with his W.P.(C) No.15239/2004 Page 21 of 157 meager income received as pension cannot take an alternate private accommodation in Delhi where he can live with dignity alongwith his family members. His pensionary income is not even sufficient to buy material for his family members. He has no other income whatsoever. G. Because unless the Respondent No.1 namely, the Ministry of Urban Development who is the nodal agency to ensure proper shelter to the citizens of India provide suitable accommodation to the Petitioner and similarly placed Kashmiri migrants at affordable price and in retired Kashmiris can acquire a house of their own and move to the same. The Respondents have of their own and The Respondents have not taken any positive action in this direction so that the Kashmiri migrants are rehabilitated properly and with dignity. installments, same. face of H. Because peculiar circumstances and abnormal conditions prevailing in the State of Jammu and Kashmir, employees of the State of J & K were granted relief by the Hon'ble Supreme Court of India on humanitarian considerations and on the basis of equality. K. Because Petitioner to have a shelter does not cease to exist just because he has retired from the Government service. His right to continue to stay in the in an present accommodation or alternate to be accommodation provided by the Respondents cannot be taken away till his safety in his own State is ensured and his own house in Srinagar is renovated or re- built. subject response 16.That contents of para K of ground, it is submitted that the petitioner Government allotted accommodation allotment rules while he was in service. He was entitled to retain the Government Quarter only during his service period and the allotment has been cancelled consequent upon his retirement from service after giving him W.P.(C) No.15239/2004 Page 22 of 157 Pleadings No.15239/2004 the WP (C) concessional period months. retention Further thereafter for a maximum period four months on medical grounds as per rules has already been availed by him. response

17.That contents of para L of ground, it is submitted that the allotment of Government quarter is made as per the rules and policy laid down by the Government. L. Because the Directorate of Estates are allotting general pool accommodation not only serving Government employees but also to various other categories of employees who have nothing to do The with government service. employees working in the office of the political parties, journalists, freedom fighters, artists, etc. are also allotted general pool accommodation. The Petitioner belongs to special category of displaced Kashmiri Pandits and they also deserve special treatment in providing accommodation as in the case of the aforesaid non-governmental categories. matter

18.That the content of para M of the Ground needs no comments knowledge. for want However, the petitioner is a retiree and getting post retrial pension.” M. Because the Ld. ADJ has failed to consider Respondents has the power to relax the Allotment Rules in respect of any person and respect of any accommodation. According to SR the Allotment of 317-B-25 of (General Government Residences Pool in Delh) Rules, 1963, Government have the power to relax the Allotment Rules which reproduced as under:- “SR 317-B-25: The Government may for reasons to be recorded in writing relax all or any of the provisions of the Rules in this Division in the case of any officer or residence or class of officers or type of residences.” W.P.(C) No.15239/2004 Page 23 of 157

22. The above narration would show that the respondents admit the correctness of the factual submissions, rights claimed and entitlements of the petitioners in these grounds of the writ petition. Nature of rights involved in these petitions Constitutional guarantees

23. Before proceeding to examine the challenge laid by the petitioners, it is essential to examine the right of the petitioners which is involved. Article 19(1)(e) of the Constitution of India states that all citizens shall have the right to reside and settle in any part of the territory of India. Article 21 on the other hand states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

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

25. In 1995 (2) SLR 72, P.G. Gupta Vs. State of Gujarat & Ors., the Supreme Court held that food, shelter and clothing are the minimal human rights. The court reiterated its earlier expansion of the right to residence and settlement by again holding that, it is a “fundamental right under Article 19(1)(e) W.P.(C) No.15239/2004 Page 24 of 157 and it is a facet of inseparable meaningful right to life under Article 21” of the Constitution of India.

26. Fundamental rights are guaranteed to the citizens of India under part III of the Constitution of India. In (1996) 2 SCC 549 Chameli Singh & Ors. Vs. State of U.P. & Anr., the Supreme Court held that the right to shelter is a fundamental right available to every citizen of India. It was also read into the right to life guaranteed under Article 21 of the Constitution to make it more meaningful. In para 8 of the judgment, the court succinctly set out the nature of the right and the mandate on the state as follows:- “8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space and decent structures, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens of course subject to its W.P.(C) No.15239/2004 Page 25 of 157 intellectually equip oneself to economic budgeting. In a democratic society as a member of the organised civil community one should have permanent shelter so as to physically, mentally improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a culture being. Want of decent residence, therefore, frustrates the very object of the Constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself.......” (Emphasis supplied) The Apex Court unequivocally declared that all the civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention, 1948 or under the Constitution of India cannot be exercised without, inter alia, the basic human right of shelter.

27. The right to shelter as an essential concomitant of the fundamental right to life was also pressed by the pavement dwellers in the pronouncement reported at (1997) 11 SCC 121 Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan & Ors. The Municipal Corporation of Ahmedabad was complaining against encroachment and occupation of pavements in the urban limits of Ahmedabad by the pavement dwellers (respondents therein). The court was concerned with the plea of violation of fundamental rights of the pavement dwellers under Article 19(1)(e) and 21 of the Constitution of India and their entitlement to shelter. The summation by the Court placing reliance on the several precedents on the subject throws light on the very question which has been raised herein W.P.(C) No.15239/2004 Page 26 of 157 also. After reiterating the principles in earlier judgments, the observations of the Supreme Court read as follows:- “13. Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Articles 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavour to eliminate inequalities in status. In that case, it was held that to bring the Dalits and the Tribes into the mainstream of national life, the State was to provide facilities and opportunities as it is the duty of the State to fulfil the basic human and constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders v. Narayan Khimalal Totame AIR 1990 SC 630, another Bench of three Judges had held that basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the right to food, the right to clothing, the right to reasonable decent accommodation in. The difference between the need of an animal and a human being for shelter has to be kept in view. For an animal, it is the bare protection of the body; for a human being, to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. The surplus urban-vacant land was directed to be used to provide shelter to the poor. In Olga Tellis case (supra), the Constitution Bench had considered the right to dwell on pavements or in slums by the indigent and the same was accepted as a part of right to life enshrined under Article 21; their ejectment from the place nearer to their work would be deprivation of their right to livelihood.” environment it has a It would, therefore, be clear that though no person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose, the State has the Constitutional duty to provide adequate facilities and opportunities by distributing its W.P.(C) No.15239/2004 Page 27 of 157 wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful, effective and fruitful. Right to livelihood is meaningful because no one can live without means of this living, that is the means of livelihood. The deprivation of the right to life in that context would not only denude life of effective content and meaningfulness but it would make life miserable and impossible to live. It would, therefore, be the duty of the State to provide right to shelter to the poor and indigent weaker sections of the society in fulfilment of the constitutional objectives. and,

25. Article 19(1)(e) of the Constitution provides to all citizens fundamental rights to travel, settle down and reside in any part of the Bharat and none have right to prevent their settlement. Any attempt in that behalf would be unconstitutional. The Preamble of the Constitution assures integrity of the nation, fraternity among the people and dignity of the person to make India an integrated and united Bharat in a socialist secular democratic republic. The policy or principle should be such that everyone should have the opportunity to migrate and settle down in any part of Bharat where opportunity for living conditions are employment or better available it would therefore, unconstitutional and impermissible to prevent the persons from migrating and settling at places where they find their livelihood and means of avocation. It is to remember that the Preamble is the arch of the Constitution which accords to India socio-economic and every citizen of political justice, liberties, equality of opportunity and of status, fraternity, dignity of person in an integrated Bharat. The fundamental rights and the directive principles and the preamble being trinity of the Constitution, the right to residence and to settle in any part of the country is assured to every citizen. enshrined under Article 21 has been interpreted by this Court to include meaningful right to life and not merely animal existence as elaborated in including several Hawkers' case, Olga Tellis case and the latest Chameli Singh's case and host of other decisions which need no reiteration. Suffice it to state that right to life would include right to live with human dignity. As held earlier, right to residence is one of the minimal human rights as fundamental right. Due to want of facilities and ……….The right to judgments of this Court W.P.(C) No.15239/2004 Page 28 of 157 the right to residence and opportunities, settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the state, as its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status. It positively charges the State to distribute its largess to the weaker sections of the society envisaged in Article 46 to reality, meaningful and fruitful so as to make the life worth living with dignity of person and equality of status and to constantly improve excellence.” socio-economic justice a (Emphasis supplied)

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

29. It is obvious that the present petitions raise an important aspect of right to shelter of these displaced persons under Article 19(1)(e) and which has been declared by the Supreme Court to be an integral and essential part also of their right to life, guaranteed as a fundamental right under Article 21 of the Constitution of India. In the several binding judicial precedents noticed hereinabove, the Supreme Court has further held that such violation may also adversely impact and violate the right to occupation and profession under Article 19(1)(g) of the Constitution of India which is the other basic human right of the petitioners inextricably involved in the instant case. International perspective – conventions; norms; guiding principles and their applicability to present case

30. So far as right to adequate housing and its protection is concerned, there is no specific domestic legislation on the issue. W.P.(C) No.15239/2004 Page 29 of 157 In the aforenoticed pronouncements the Supreme Court has been of the view that such right can also be sourced as a basic human right under the international human rights law.

31. This court has had occasion to examine the source of the right to housing, shelter and protection against forcible evictions by residents of Jhuggi Jhopri clusters (hutments) in the judgments dated 14th July, 2006 in W.P.(C) No. 5007/2002 reported at MANU/DE/9327/2006 entitled Jagdish vs. DDA and also the pronouncement of this court dated 11th February, 2010 in W.P.(C) No. 8904/2009 Sudama Singh & Ors. vs Government of Delhi & Anr. with connected writ petitions. In this regard, in these judgments as well, reference was made to the following international & regional covenants and declarations on the right to adequate housing which declare that provision of housing as well as the protection against forced eviction is the unequivocal responsibility of the state :- (i) The Universal Declaration of Human Rights, 1948 makes the following statement: “Article 25.1 Everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” (ii) The International Convention on the Elimination of All forms of Racial Discrimination, 1965 contains the following : “Article 5 compliance with In fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination W.P.(C) No.15239/2004 Page 30 of 157 in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the in the enjoyment of the following rights : law, notably (d) Other civil rights, in particular (iii) The right to housing.” (iii). Article 11 of the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th of December, 1966 further codifies the right to housing and states thus : “Article 11 “1. The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, clothing, and including adequate housing, and to the continuous improvement of living conditions………..” food, India has signed and ratified this covenant and is thus a state party to it. (iv) Part II of the Declaration of Social Progress and Development, 1969 states thus : “Social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms through the attainment of the following main goals: Article 10(f) The provision for all, particularly persons in low-income groups and large families, of adequate housing and community services. (v) Part III Section (8) of the Vancouver Declaration of Human Settlements, 1976 mandates as follows : W.P.(C) No.15239/2004 Page 31 of 157 “III Guidelines for Action

8. Adequate shelter and services are a basic human right which places an obligation on governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided programmes of self-help and community action. Governments should endeavor to remove all impediments hindering attainment of these goals. Of special importance is the elimination of social and racial segregation, inter alia, through the creation of communities, which blend better balanced different social groups, occupation, housing and amenities.” The Recommendations for National Action in the Vancouver Declaration contains inter alia also the following :- “A. Settlement Policies & Strategies Preamble, Point 3 The ideologies of States are reflected in their human settlement policies. These being powerful instruments for change, they must not be used to dispossess people from their homes and their land, or to entrench privilege and exploitation. The human settlement policies must be in conformity with the declaration of principles and Universal Declaration of Human Rights.” (vi) Article 8.1 of the Declaration on the Right to Development, 1986 also states that: “Article 8

1. States should undertake, at the national level, all necessary measures realization of the right to development and opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income....” inter-alia, equality ensure, (vii) The above objectives were also reinforced the declaration made in the International Year of the Homeless in 1987 by the United Nations when it spoke of this right of all individuals in the following terms: W.P.(C) No.15239/2004 Page 32 of 157 “a real home...one which provides protection from the elements; has access to safe water and sanitation; provides for secure tenure and personal safety; and within easy reach of centres for employment, education and health care; and is at a cost which people and society can afford.” (viii) On the issue of forcible evictions, the General Comment 7 dated 20th May 1997 on the right to adequate housing (Article 11.1 of the Covenant : Forced Evictions) by the Commission on Economic, Social and Cultural Rights is important and is extracted hereafter : “(1) In its General Comment No. 4, (1991), the Committee observed that all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are incompatible with requirement of the Covenant…………… resolution 43/181, international community has (2) The recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that special attention should be paid to "undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made. In 1988, in the Global Strategy for Shelter to the General the Year 2000, adopted by Assembly “fundamental obligation (of Government) to protect and improve houses and neighborhoods, rather than damage or destroy them” was recognized. Agenda 21 stated that “people should be protected by law against unfair eviction from their homes or land”. In the Habitat Agenda Governments committed themselves to “protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taking human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided”. The Commission on Human Rights has also indicated that “forced evictions are a gross violation of human rights.…….” W.P.(C) No.15239/2004 Page 33 of 157 Annexure-I of the Report of the Special (x) Rapporteur on Adequate Housing lays down some basic principles and guidelines on development based evictions and displacement. It provides the guidelines on relocation of the displaced which read as follows : providing “52. The Government and any other parties responsible compensation and sufficient alternative accommodation, or restitution when feasible, must do so immediately upon the eviction, except in cases of force majeure. At a minimum, regardless of the circumstances and without discrimination, competent authorities shall ensure that evicted persons or groups, especially those who are unable to provide for themselves, have safe and secure access to: (a) essential food, potable water and sanitation; (b) basic shelter and housing; (c) appropriate clothing; (d) essential medical services; (e) livelihood sources; (f) fodder for livestock and resources access previously depended upon; and (g) education for children and childcare facilities. States should also ensure that members of the same family or community are not extended separated as a result of evictions. property common tenure; housing; security affordable

55. Identified relocation sites must fulfil the criteria for adequate housing according to international human rights law. These include: (a) Xxx (c) (d) habitable housing providing inhabitants with adequate space, protection from cold, damp, heat, rain, wind or other threats to health, structural hazards and disease vectors, and ensuring the physical safety of occupants; (d) No affected persons, groups or communities shall suffer detriment as far as their human rights are concerned, nor shall their right to living conditions be subject to infringement. This applies equally to host communities at resettlement sites, and affected persons, groups and communities subjected to forced eviction; improvement continuous W.P.(C) No.15239/2004 Page 34 of 157 designed for women include 57. Rehabilitation policies must programmes marginalized and vulnerable groups to ensure their equal enjoyment of the human rights to housing, food, water, health, education, work, security of the person, security of the inhuman or home, freedom degrading movement. from cruel, treatment, freedom

58. Persons, groups or communities affected by an eviction should not suffer detriment to their human rights, including their right to the progressive realization of the right to adequate housing. This applies equally to host communities at relocation sites.” (Emphasis` supplied)

32. The UN Committee on Economic, Social and Cultural Rights in May, 2008, its Concluding Observations on India, called upon the Indian government particularly to address the issue of rising homelessness, including the need for disaggregated data on the homeless. In the observations relating to India as a state party, it specifically stated as follows:- “30. The Committee is concerned about the lack of a national housing policy, which particularly addresses the needs of the disadvantaged and marginalized individuals and groups, including those living in slums who are reportedly growing in numbers, by providing them with low-cost housing units. The Committee also regrets that sufficient information was not provided by the State party on the extent and causes of homelessness in the State party. The Committee also requests the State party to provide, in its next periodic report, detailed information on homelessness in the State party and the extent of inadequate housing, disaggregated by, inter alia, sex, caste, ethnicity and religion.

70. The Committee urges the State party to address the acute shortage of affordable housing by adopting a national strategy and a plan of action on adequate housing and building or providing low-cost rental W.P.(C) No.15239/2004 Page 35 of 157 housing units, especially for the disadvantaged and low income groups, including those living in slums. In this connection, the Committee reminds the State party of its obligations under Article 11 of the Covenant and refers to its General Comment No. 4 on the right to adequate housing (1991) to guide the Government's housing policies. The Committee also requests the State party to provide, in its next periodic report, detailed information on homelessness in the State party and the extent of inadequate housing, disaggregated by, inter alia, sex, caste, ethnicity and religion.

71. The Committee recommends that the State party take immediate measures to effectively enforce laws and regulations prohibiting displacement and forced evictions, and ensure that persons evicted from their homes and lands be provided with adequate compensation and / or offered alternative accommodation, in accordance with the guidelines adopted by the Committee in its General Comment No. 7 on forced evictions (1997). The Committee recommends implementing development and urban renewal projects, sporting events and other similar activities, the State party should undertake open, participatory and meaningful consultations with affected residents and communities. In this connection, the Committee draws the attention of the State party to its General Comment No. 4 on the right to adequate housing (1991) and further requests the State party to provide information in its next periodic report on progress including disaggregated in this regard, achieved statistics relating to forced evictions.” that,

33. The above narration would show that the international covenants and instruments refer to basic human rights. All of them have recognized right to shelter as a basic human right, essential for survival. It needs no elaboration that the concept of human rights emanates from the ancient doctrine of natural rights based on natural law. The experiences of the Post- Second World War which brought forth the International Charters and Conventions leading to the emergence of the present day human rights. The first documented use of the expression „human rights‟ is to be found in the Charter of the W.P.(C) No.15239/2004 Page 36 of 157 United Nations, adopted on 25th June, 1945. This Charter was of course not binding but stated that it was only an ideal to be later developed. By adopting the Universal Declaration of Human Rights in December, 1948 the UN General Assembly took the concrete step of formalising the various human rights. This was followed by the International Bill of Rights. The deficiency in the binding nature of the declaration was removed by the U.N. General Assembly by adopting on 16th December, 1966, firstly, the Covenant on Civil and Political Rights which formulated legally enforceable rights of the individual and, secondly, the Covenant on Economic, Social and Cultural Rights which was addressed to the states to implement them by legislation. These covenants came into force in December, 1976 after ratification by the requisite number of member states. India is a party to both these covenants which were adopted on 16th December, 1966 and bind this country.

34. The above narration shows that homelessness may result from several causes including natural disasters; development projects, economic deprivation as well as human rights violations. International law terms persons who stand displaced from their countries as “refugees” and recognizes that they are entitled to protection from being returned to places where their lives or freedom could be threatened.

35. At the same there are growing instances internationally of persons and even communities who are compelled to abandon homes on account of threat of imminent violence or stand forcibly evicted by use of violence and compelled to relocate to other places even within their own W.P.(C) No.15239/2004 Page 37 of 157 country. They cannot return to their homes within the boundaries of their own countries in the face of the continuing threat of persecution and danger to their properties. Such persons cannot be termed as “refugees” as described by learned counsels for the petitioners. In international parlance, persons compelled to relocate within the boundaries of their own countries stand categorised as “Internally Displaced Persons” (abbreviated as „IDP‟s hereafter).

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

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

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

39. In this regard, a guiding document has been framed by Francis Denge, the representative of the Secretary General of the United Nations on Internal Displaced Persons, in 1998 titled as “Guiding Principles on Internal W.P.(C) No.15239/2004 Page 38 of 157 Displacement” which was presented to the UNCHR. The Commission in a unanimously adopted resolution took note of these principles which address the specific needs of internally displaced persons worldwide and identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration. The introduction to these Guidelines defines “Internally Displaced Persons” („IDP‟s) in Clause 2 as follows :- “2. For the purposes of these principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border.”

40. So far as housing of IDPs is concerned, these guidelines contain the following important provisions :- “Principle 3 1.National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.

2.Internally displaced persons have the right to request and to receive protection and humanitarian assistance from these authorities. They shall not be persecuted or punished for making such a request. Principle 7 Prior to any decision requiring the displacement of persons, the authorities concerned shall ensure that all feasible alternatives are explored in order to avoid displacement altogether. Where no alternative exist, all measures shall be taken to minimize displacement and its adverse effects.

2.The authorities undertaking such displacement shall ensure, to the greatest practicable extent, that proper accommodation is provided to the displaced persons, that such displacements are effected in W.P.(C) No.15239/2004 Page 39 of 157 satisfactory conditions of safety nutrition, health and hygiene, and that members of the same family are not separated.

3.If displacement occurs in situations other than during the emergency stages of armed conflicts and disasters, the following guarantees shall be complied with : (a)A specific decision shall be taken by a State authority empowered by law to order such measures; (b)Adequate measures shall be taken to guarantee to those to be displaced full information on the reasons and procedures for their displacement and, where applicable, on compensation and relocation; (c)The free and informed consent of those to be displaced shall be sought; (d)The authorities concerned shall endeavour to involve those affected, particularly women, in the planning and management of their relocation; (e)Law enforcement measures, where required, shall be carried out by competent legal authorities; (f)The right to an effective remedy, including the review of such decisions by appropriate judicial authorities, shall be respected. Principle 8 Displacement shall not be carried out in a manner that violates the rights to life, dignity, liberty and security of those affected. Principle 14 1.Every internally displaced person has the right to liberty of movement and freedom to choose his or her residence.

2.In particular, internally displaced persons have the right to move freely in and out of camps or other settlements. Principle 15 Internally displaced persons have: (a)The right to seek safety in another part of the country; (b)The right to leave their country; (c)The right to seek asylum in another country; and (d)The right to be protected against forcible return to or resettlement in any place where their life, safety, liberty and/or health would be at risk. W.P.(C) No.15239/2004 Page 40 of 157 Principle 18 1.All internally displaced persons have the right to an adequate standard of living;

2.At the minimum, circumstances, and without discrimination, competent authorities shall provide internally displaced persons with and ensure safe access to: regardless (a)Essential food and potable water; (b)Basic shelter and housing; (c)Appropriate clothing; and (d)Essential medical services and sanitation. 3.Special efforts should be made to ensure the full the planning and participation of women distribution of these basic supplies. Principle 21 1.No one shall be arbitrarily deprived of property and possessions.

2.The property and possessions of internally displaced persons shall in all circumstances be protected, in particular, against the following acts: (a)Pillage; (b)Direct or indiscriminate attacks or other acts of violence; (c)Being used to shield military operations or objectives; (d)Being made the object of reprisal; and (e)Being destroyed or appropriated as a form of collective punishment.

3.Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use. Principle 25 1.The primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities. Section V. Principles relating to return, resettlement and reintegration Principle 28 1.Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety, and with dignity, to their W.P.(C) No.15239/2004 Page 41 of 157 homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.

2.Special efforts should be made to ensure the full participation of internally displaced persons in the their return or planning and management of resettlement and reintegration. Principal 29 1.Internally displaced persons who have returned to their homes or places of habitual residence or who have resettled in another part of the country shall not be discriminated against as a result of their having been displaced. They shall have the right to participate fully and equally in public affairs at all levels and have equal access to public services.

2.Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.”

41. The United Nations Charter thus establishes obligation upon member nations to promote the key human rights. The Universal Declaration of Human Rights, 1948 though not a treaty, but is a declaration published by the General Assembly of the United Nations and is the primary document which is concerned with the listing of the rights. It affirmatively lays down the common standards of achievement for all peoples and all nations. It consequently has an effect which is similar to a treaty. Further every nation who is a signatory to the aforenoticed International Covenant on Economic, Social and Cultural Rights ('ICESR') must refrain from acts which would defeat the object and purpose of the covenant. The preamble to W.P.(C) No.15239/2004 Page 42 of 157 the ICESCR establishes that “the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights as well as his civil and political rights”. Article 11 of this covenant emphasises that the state parties recognises the right of every person to an adequate standard of living which include adequate housing and continued improvement of living conditions. The right for people to be free from want is the very foundation of the ICESCR.

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

43. The aforenoticed international conventions which exist as well as the Guideline Principles for IDPs therefore recognize that shelter and housing is a basic human right of every individual which is the bare minimum to be provided to internally displaced persons. These Principles also emphasise all rights of displaced persons and caste a mandate on the national authorities concerned of their primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction which includes their right to W.P.(C) No.15239/2004 Page 43 of 157 safety as well as protection against forcible return and resettlement in a place where their life, safety, liberty and or health would be ensured. The Guiding Principles have been evolved after an elaborate consultative process.

44. Before proceeding any further, it is necessary to examine the bindingness of the above principles on the courts in India. The extent, manner and applicability of International Conventions and treaties in interpretation and expansion of rights, have been authoritatively considered and are well settled by a catena of binding precedents of the Supreme Court. In the authoritative pronouncement reported at JT2008(7)SC11, 2008(9)SCALE69 Entertainment Network (India) Ltd. Vs. Super Cassette Industries Ltd. the Supreme Court traced the evolution of the jurisprudence on the issue under consideration in paras 48 to 54 which may usefully be extracted and read as follows:- v. State Bharati “48. Beginning from the decision of this Court in Kesavananda Kerala MANU/SC/0445/1973 : AIR 1973 SC 1461, there is indeed no dearth of case laws where this Court has applied the norms of international laws and in particular interpret domestic legislation. this Court has categorically held that there would be no inconsistency in the use of international norms to the domestic legislation, if by reason thereof the tenor of domestic law is not breached and in case of any such inconsistency, the domestic legislation should prevail. international covenants In all these cases, In Jagdish Saran and Ors. v. Union of India it was MANU/SC/0067/1980 : (1980) 2 SCR 831, observed: “It also well-settled interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with the passage of time, law must change. New rights W.P.(C) No.15239/2004 Page 44 of 157 may have to be found out within the constitutional scheme. Horizons of constitutional law are expanding.”

49. In the aforementioned judgment, this Court referred to a large number of decisions for the purpose of treaties and conventions. Yet again in Indian Handicrafts Emporium and Ors. v. Union of India MANU/SC/0640/2003 : AIR 2003 SC 3240, this Court considered the Convention on International Trade in Endangered Species (CITIES) and applied the principles of purposive constructions as also not only the Directive Principles as contained in Part IV of the Constitution but also Fundamental Duties as contained in Part IVA thereof. Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. MANU/SC/0293/1983 : (1986) 1 SCR 594, Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 2 SCR 596 and MANU/SC/0550/1986 Synthetics and Chemicals Ltd. and Ors. v. State of U.P. And Ors. MANU/SC/0595/1989 : AIR 1990 SC 1927, this Court held: : “There cannot be any doubt whatsoever that a law which was at one point of time was constitutional may be rendered unconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi, recently a similar view has been taken in Kapila Hingorani v. State of Bihar (supra) and John Vallamattom and Anr. v. Union of India (supra).”

50. These judgments were referred to in the decision of Liverpool and London S.P. and I Asson. Ltd. v. M.V. Sea Success I and Anr. MANU/SC/0951/2003 : (2004) 9 SCC 512, wherein this Court observed that as no statutory law in India operated in the field, interpretative changes, if any, must, thus be made having regard to the ever changing global scenario. Liverpool also referred for the proposition that the changing global scenario should be kept in mind having regard to the fact that there does not exist any primary act touching the subject and in absence of any domestic legislation to the contrary. Concurring with the said decisions, it was however opined that the same could not mean that it restricted the jurisdiction of the Indian High Courts to interpret the domestic legislation strictly according to the judge made law.

51. Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed by the Supreme Court in a plethora of cases inter alia The State of West Bengal Ors. v. Industries Kesoram Ltd. & W.P.(C) No.15239/2004 Page 45 of 157 MANU/SC/0038/2004 : (2004) 2 66 ITR 721(SC). In Pratap Singh v. State of Jharkhand and Anr. MANU/SC/0075/2005 : 2005 CriLJ 3091 wherein this Court directed to interpret the Juvenile Justice Act in light of the Constitutional as well as International Law operating in the field. (See also Centrotrade Minerals and Metal Inc. v. Hindustan Copper Limited MANU/SC/8146/2006 : (2006) 11 SCC 245 : State of Punjab; State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. MANU/SC/0961/2003 : (2004) 11 SCC 26 and Anuj Garg and Ors. v. Hotel Association of India and Ors. MANU/SC/8173/2007 : AIR 2008 SC 663.

52. However, applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the couirt would freely avail the benefits thereof. Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible. framed 796, PUCL v. Union

53. This kind of stance is reflected from the decisions India MANU/SC/0274/1997 : AIR 1997 SC 1203, John Vallamattom v. Union of India MANU/SC/0480/2003 : AIR 2003 SC 2902, Madhu Kishwar v. State of Bihar MANU/SC/0468/1996 : AIR 1996 SC 1864, Kubic Darusz v. Union of India MANU/SC/0426/1990 : 1990 CriLJ Swaminathaswami Thirukoil MANU/SC/0441/1996 : (1996) 1 SCR 1068, Apparel Export Promotion Council V. A.K. Chopra MANU/SC/0014/1999 : (1999) 1 LLJ 962 SC, Kapila Hingorani v. State of Bihar MANU/SC/0403/2003 : (2003) III LLJ 31 SC, State of Punjab and Anr. v. Devans Modern Breweries and Anr. MANU/SC/0961/2003 (2004) 11 SCC 26 and Liberpool & London S.P. & I Asson. Ltd. v. M.V. Sea Success I MANU/SC/0951/2003 : (2004) 9 SCC 512.” Chameli Singh State v. :

45. With regard the application of International conventions and treaties in India, the Supreme Court laid the following principles in para 47 of the judgment :- W.P.(C) No.15239/2004 Page 46 of 157 “In interpreting the domestic/municipal laws, this court has extensively made use of International law inter alia for the following purposes : (i) (ii) As a means of interpretation; Justification or fortification of a stance taken; (iii) To fulfill spirit of international obligation which India has entered into, when they are not in conflict with the existing domestic law; (iv) To reflect international changes and reflect the wider civilization; (v) To provide a relief contained in a covenant, but not in a national law; (vi) To fill gaps in law.”

46. In AIR 1997 SC 3011 Vishaka and others Vs. State of Rajasthan and Others, the court was concerned with a writ petition filed for preservation and enforcement of the right to gender equality and fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India, Section 2 of Protection of Human Rights Act, 1993 and the entitlements of working women under the Convention on Elimination of All Forms of Discrimination Against Women. There was no specific domestic legislation on the subject. With regard to the importance and applicability of international conventions and treaties, the court held as follows – “7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual International harassment Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of the Parliament to enact laws for International Conventions and implementing therein. Any implicit W.P.(C) No.15239/2004 Page 47 of 157 norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available the Parliament enacts legislation to expressly provide measures needed to curb the evil.”

47. In (1999) 1 SCC 759 Apparel Export Promotion Council vs. A.K. Chopra, also the Supreme Court was dealing with the case of sexual harassment at the place of work which vitiated the working environment and observed that the international instruments cast an obligation on the Indian State to gender sensitise its laws and that the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. The Supreme Court again emphasised that the courts must never forget the core principles embodied International Conventions and Instruments and reiterated the above principles.

48. In (2003) 6 SCC 1 Kapila Hingorani Vs. State of Bihar, the Apex court stressed on the importance of respecting International Treaties and Conventions while interpreting the Constitution and domestic law so as to effectuate the recognised rights and observed as follows- “47. It is also well-settled that a statute should be interpreted in the light of the International Treaties and Conventions. Ors. v. Mrs. Ors. MANU/SC/0046/2000 : 2000CriLJ1473 this Court stated the law thus:- In Chairman, Railway Board Chandrima Das "24. The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be effective rights. The implementation as would W.P.(C) No.15239/2004 Page 48 of 157 applicability of the Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence."

49. As noticed above, right to residence and to settle in any part of the country is assured to every citizen as a fundamental right under Article 19(1)(e) of the Constitution of India. (Ref : 1997 (11) SCC 121 Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan & Ors.) The right to shelter springs from this right and has been considered to be an integral part for a meaningful enjoyment of right to life under Article 21 of the Constitution of India. (Ref.: 1995 Suppl. 3 SCC 456 : AIR 1996 SC 114 U.P. Avas Evam Vikas Parishad & Anr. Vs. Friends Co-operative Housing Society Ltd. & Anr.)

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

51. It is noteworthy that there is no specific law, rule, regulation or instrument providing for treatment of IDPs or setting out any minimum standards for their protection, rehabilitation and relocation. The Guiding Principles on Internal Displacement reiterate the very right to shelter constitutionally guaranteed and recognized as a basic human right in the international instruments. These Guidelines thus W.P.(C) No.15239/2004 Page 49 of 157 consolidate and fill gaps in national and international law relating to such displaced persons. They also provide a valuable benchmark for what must be ensured as part of the basic human rights security of such persons and would guide consideration of the rights of the present petitioners.

52. It has been observed by the Supreme Court in (2003) 6 SCC 1 Kapila Hingorani Vs. State of Bihar that indisputably, the state parties to the International Covenant on Economic, Social & Cultural Rights were to take appropriate steps to ensure realisation of this thought. So far as the present case is concerned, this covenant specifically states the right of everyone to an adequate standard of living including housing.

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

54. The petitioners are members of the larger group from their community which stands forcibly evicted from one part of the country rendering them homeless and resourceless. They are without resources at the place of their relocation and are faced with threat of forcible eviction accommodation. By way of these writ petitions, the petitioners seek protection and enforcement of their fundamental right to life which includes shelter. The international conventions W.P.(C) No.15239/2004 Page 50 of 157 recognise shelter as a basic human right. The Guiding Principles reiterate the same rights and responsibilities of the state so far as IDPs are concerned. Consideration of the petitioners‟ rights, therefore, would necessarily involve ensuring the objectives and declarations made in the above international instruments especially those endorsed by India reiterated by the Guiding Principles for IDPs. The Protection of Human Rights Act, 1993

55. The issue in the instant case has another dimension to it which is of importance. In discharge of the obligation under the international covenants, India promulgated an ordinance appointing commissions and courts for the protection of human rights. This ordinance was replaced by the Protection of Human Rights Act, 1993 was promulgated on 8th January, 1994 to provide for the constitution of the national and state human rights commissions and human rights courts for better protection and for matters connected therewith or incidental thereto. „Human rights‟ are defined in clause (d) of sub-section (1) of Section 2 as the „rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India‟. The expression „international covenants‟ is also defined to include the two covenants adopted by the General Assembly on 16th December, 1966 and such other covenants and conventions adopted by the General Assembly of the United Nations as the Central Government may specify by notification. The enforceability of the several rights recognised under the W.P.(C) No.15239/2004 Page 51 of 157 International Covenants, therefore, stands recognized by this legislation in India. The said Act was made by the Parliament having regard to the changing social realities and growing concern in India about issues relating to human rights with a view of bringing about greater accountability and transparency in enforcement of the laws of the nation.

56. It is essential to note that in fact no new right is being created, recognized or reiterated by international instruments or the said guidelines. The right to shelter of every person has been recognized as an essential concomitant of right to life under Article 21 of the Constitution of India. It would clearly be covered under the definition of a „human right‟ under Section 2(1)(d) of the Protection of Human Rights Act, 1993 which includes right relating to life, liberty, equality and dignity. The right to shelter, an essential part of right to life, would therefore also be a statutorily recognized right under Section 2(1)(d) of the Act of 1993 and enforceable as such also. The present petitioners, as persons displaced from their homes and state, by way of these writ petitions are thus, seeking enforcement of such right to shelter.

57. The above discussion would show that state courts are bound to use international human rights covenants, which also stand incorporated into the Protection of Human Rights Act, 1993, as a pillar of support for the rights recognised thereby and to ensure the requisite assistance as well as access to shelter as a positive right so that the bare minimum for those in need is enabled. The petitioners assert such rights in the challenge laid in these writ petitions. W.P.(C) No.15239/2004 Page 52 of 157 Q Whether the statutory provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 which would have the effect of defeating the constitutional rights of the petitioners, could be validly invoked against them?

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

59. On the other hand, the petitioners have urged that even in their wildest dreams, they had never envisaged a situation when they would not be in a position to reside in their own homes after retirement. On account of grave threats to their safety, the petitioners have been prevented from returning to their homes. The petitioners are not residing in Delhi on account of a desire not to return to the valley or to perpetuate residence in Delhi, but for reasons totally beyond control of these petitioners. The writ petitioners have stated that their homes in Kashmir have either been destroyed or rendered inaccessible to them primarily on account of the inability of the respondents to protect the same. They do not have adequate means to acquire any property in Delhi. It is the petitioners contention that the W.P.(C) No.15239/2004 Page 53 of 157 pension admissible to them does not enable them to afford rented accommodation or acquire their own houses. The petitioners have submitted that the respondents have permitted similarly situated persons to continue the allotted accommodation. Reliance is also placed on orders of the Supreme Court, this Court and the Central Administrative Tribunal also prohibiting eviction of similarly placed persons from allotted accommodation. In this background, the petitioners assail also the failure to consider their requests to the respondents to exercise discretion vested in them under the Allotment of Government Residences (General Pool in Delhi) Rules, 1963 to permit the petitioners to continue to occupy the allotted premises. It is urged that this refusal was discriminatory, arbitrary and has failed to consider the relevant circumstances.

60. It is contended by the petitioners that in these facts, they are not in unauthorized occupation of the quarters and that the respondents could not have taken recourse to proceedings under the Public Premises Act, 1971 which would have the effect of ousting them and their families from their only residence without taking steps of making provision of reasonable alternatives. The contention is that the entire action taken by the respondents and implementation of the threat of forcible eviction would result in violation of the fundamental and basic human rights of the petitioners and, therefore, is unconstitutional, without jurisdiction and completely illegal. W.P.(C) No.15239/2004 Page 54 of 157 Binding judicial precedents

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

62. It appears that other state government employees awaiting allotment of official accommodation, could not get the same for the reason that these retired persons continued to occupy the official accommodation. They filed a writ petition before the High Court of Jammu and Kashmir complaining against the failure of the State Government to provide them with official accommodation. A learned Single Judge of the High W.P.(C) No.15239/2004 Page 55 of 157 Court of Jammu & Kashmir had allowed the writ petition and passed a judgment on 24th January, 1997 directing eviction of all those persons who had ceased to be government servants for any reason but were still occupying the state accommodation. The learned Single Judge had also directed that the persons who were not in government service but required Government accommodation because of security reasons, should be tried to be accommodated within one complex so that their security is ensured, reducing the burden on the state which would have to incur lesser amount for their security.

63. For the reason that the state government was attempting to evict these occupants without providing them with alternative accommodations, a challenge was laid to the judgment of the Single Judge dated the 24th of January, 1997 by a letters patent appeal. This appeal was dismissed by the Division Bench by a judgment dated 14th March, 1997, however, giving an opportunity to the appellants to approach the appropriate authority for relief. In this background, these persons led by Shri J.L. Koul, filed the above special leave petition before the Supreme Court. On a consideration of the matter, an interim order order dated 11th April, 1997 was passed by the court directing the state government to maintain status quo regarding the possession of the property.

64. Mr. R.K. Handoo, learned counsel for the petitioners has referred to certain orders passed by the Supreme Court of India in the said petition. On 26th August, 1997, the Supreme Court had required counsel representing the State of Jammu & Kashmir to ascertain from the State Government as to whether W.P.(C) No.15239/2004 Page 56 of 157 the petitioners can be put back in to the houses owned by them in the Kashmir Valley and to ensure protection of their persons as also their properties.

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

66. It is noteworthy that the Supreme Court had also passed an order on 3rd December, 2008 (in Shri J.L. Koul & Others vs. State of J&K aforenoticed) directing the respondent-state to frame a rehabilitation scheme within a period of six months and to place the same before the court. For the reason that no material or scheme was placed before it by the respondents, on 17th September, 2009, the Supreme Court directed the Chief Secretary of the State to file a personal affidavit as to what steps had been taken pursuant to the orders of the court.

67. An affidavit dated 6th October, 2009 was thereafter filed by the Chief Secretary in the case. The appeal was disposed of by a final judgment on 27th October, 2009 which stands reported at 2009 (1) AD SC 253 J.L. Koul & Others Vs. State of Jammu & Kashmir. So far as rehabilitation of the Kashmiri W.P.(C) No.15239/2004 Page 57 of 157 migrants is concerned, the affidavit dated 6th October, 2009 has been considered in para 7 of the judgment in the following terms:- “7. In pursuance of the said order, the Chief Secretary has filed the affidavit dated 6.10.2009. In the said affidavit it has been disclosed that out of 54 appellants 23 had already handed over the Government accommodation to the State Department and the same had been allotted to the Government employees. Only 31 migrants/retirees are presently in occupation of the further been Government accommodation. clarified that there are 37,280 families who have been registered for the relief including the accommodation and out of them only 5,000 families could be provided the accommodation in the camps. However, it had been undertaken that the Government would provide such facilities to all Kashmiri migrants till they are residing at the present places. The relevant part of the affidavit reads as under:- It has "5. That it is further submitted that Govt. formulated a package for return and rehabilitation of Kashmiri Migrants which involves an outlay of Rs.1618.40 crores. This is for the first time since 1990, that Govt. of India has come up with a policy for Return and Rehabilitation of Kashmiri Migrants. The policy has been framed on the recommendations of a working group constituted by Govt. of India to suggest various confidence building measures in the J&K State. While framing the policy various needs of the migrants have been taken into consideration, such as housing, education, revival of Agriculture and Horticulture land, employment etc. The details of the package announced on 5th June 2008 are reproduced as under:- i) Return and Rehabilitation Package of Kashmiri Migrants: The total package involves an of Rs.1618.40 crore. The main outlay components of the package are as under: (a) Housing i) Assistance @ Rs.7.5 lac for fully or partially damaged house left behind by migrant. (ii) Rs.2.00 lac for dilapidated/unused houses. (iii) Rs.7.5. lac for purchase/construction of a house in Group Housing Societies for those who have sold their properties during the period after 1989 and before the enactment of "The J&K (Preservation, Migrant Immovable Property W.P.(C) No.15239/2004 Page 58 of 157 Protection and Restraint of Distress Sale) Act, 1997" on 30.5.1997. (b) Transit Accommodation : Construction of transit accommodation at three sites @ Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, Rs.1.00 towards rental and incidental expenses to those families who may not be accommodated in transit accommodation. lac per family (c) Continuation of Cash Relief to Migrants: Migrants families at Jammu and Delhi who are recipients of cash relief and free ration would continue to receive the same @ Rs.5000 per family per month (including rations) for a period of two years after their return to the valley.

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

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

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

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

11. That it may be further submitted that State Government had also constituted an Apex Advisory Committee to oversee the implementation of Return and Rehabilitation package for Kashmiri Migrants in the month of September 2009 and immediately after the constitution of the Apex Level 8 Committee, various suggestions were put forth in a meeting held on 23.9.2009.

12. That it may be further submitted that the State Cabinet vide its decision No.130/11/2009 dated 1.10.2009 has approved the package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Valley. However, with regard W.P.(C) No.15239/2004 Page 59 of 157 scheme employment a implementation Committee has also been ordered to be constituted to go into the legal and other implications for making recruitments of the migrant youth against various posts before the said scheme is formally notified. The Committee has to submit its report within a period of two weeks.

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

68. It is noteworthy that the only difference between the petitioners before the Supreme Court and those who are before this court is, that the petition before the Supreme Court W.P.(C) No.15239/2004 Page 60 of 157 related to persons who were retired employees of the State Government while the present petitioners are all employees of the Central Government and its departments. However, the petitioners before the Supreme Court and the present writ petitioners are identically placed victims of the militancy and the rights asserted by both sets of the petitioners and issues raised by them are identical.

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

70. Reference requires to be also made to a judgment passed on 2nd August, 2006 in WP (C) No.11742/2005 entitled P.K. Handoo Vs. Estate Officer & Anr. by this court which is reported at 132 (2006) DLT 672. Shri P.K. Handoo was also a Kashmiri Pandit and part of the minority community in the Kashmir valley. An employee with the Intelligence Bureau of the Government of India, he had retired from the service on 31st July, 2004 whereafter efforts to cancel his allotment and evict him by way of proceedings under the Public Premises Act, 1971 had been undertaken. Sh. P.K.Handoo filed the writ petition assailing this action and the eviction order dated 30th June, 2005 passed against him in the proceedings by the estate officer and also sought issuance of a writ of mandamus against the respondents to allow him to retain the official accommodation W.P.(C) No.15239/2004 Page 61 of 157 which had been allotted to him till such time that the Government made it possible for him to return to Srinagar or till suitable alternative accommodation is provided to him in Delhi.

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

12. In the result, I allow the writ petition in terms of the order passed by the Apex Court in the case of J.L. Koul Vs. State of Jammu and Kashmir (supra). Respondents are directed to allow the petitioner to retain Quarter No.D-845, Mandir Marg, New Delhi, pending decision in SLP © No.7369/2007, subject to payment of normal licence fees or in the alternative the respondents may provide alternative accommodation to the petitioner and his family anywhere in Delhi till the pendency of the above said writ petition before the Hon'ble Supreme Court. No costs.” (underlining supplied)

72. Learned counsels for the petitioners have also painstakingly pointed out the earlier similar directions made as back as on 30th December, 2002 by the Central Administrative Tribunal in OA No.2378/2002 entitled Tej Kishan Vs. Union of India & Ors. on the same issue which have also been noticed W.P.(C) No.15239/2004 Page 62 of 157 and reiterated in the P.K. Handoo (supra) judgment. It is noteworthy that Shri Tej Kishan, a Kashmiri displaced person had made a request retention of Government accommodation beyond superannuation which was turned down by the Government by an order dated 13th August, 2002. This refusal was assailed by way of proceedings before the Central Administrative Tribunal. In these proceedings, the Tribunal had placed reliance on a letter dated 2nd July, 2002 written to the Delhi Development Authority („DDA‟) by the Ministry of Urban Development & Poverty Alleviation on the subject of preferential allotment of DDA flats to J&K migrant Central Government employees who had retired or were retiring. The tribunal noted the letter in the following terms:- return of “12. By referring to the letter dated 2.7.2002 written to the DDA by the Ministry of Urban Development & Poverty Allevation, it is stated that this has been decided as under:- “......But the situation prevailing in J&K is such that does not permit retired/retiring Central Government employees who can settle after retirement at their native place. Keeping this background in view, a decision has been taken to allot about 100 MIG and LIG Flats in Dwarka J&K migrant Central Government employees so that the Central Pool Accommodation could be got vacated from them. DDA is, therefore, requested to formulate a housing scheme for retired/retiring J&K migrant Central Government employees and send a draft thereof to this Ministry within a fortnight for approval.” (Underlining supplied) retired/retiring

73. In the above judgment, the Central Administrative Tribunal also observed on violation of Article 14 by the respondents holding that “the state shall not by its act discriminate as between two individuals who are similarly W.P.(C) No.15239/2004 Page 63 of 157 circumstanced.” These findings are also noticed in para 10 of the judgment in P.K. Handoo‟s case (supra).

74. I have had occasion to deal with a similar issue in a judgment dated the 11th of April, 2008 rendered in W.P.(C) No.1065/2007 M.K. Koul Vs. Union of India & Ors. In this case also the petitioner was a retired Kashmiri employee of the Central Government who could not return to Kashmir for the same reason as the petitioners. Proceedings for his eviction were also initiated by the respondents under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. During the course of hearing on 7th April, 2008, a query was put to counsel for the respondent in this case in respect of the position with regard to the safety and security of the Kashmiri Pandits in the valley. The position was revealed to be the same as before. In para 14 of the said judgment, consequently it was recorded that “the respondents are not in a position to ensure their safety and protection and as such, in case they are displaced from the accommodation which they are occupying, they will not be in a position to return to their respective homes in the Kashmir valley”. Consequently, the following directions were issued:- “15. In this background, the respondents certainly cannot be permitted to maintain the order of cancellation of the petitioner's allotment or to enforce the eviction order which has been passed against the petitioner or to evict the petitioners from the premises which they are occupying. 16. There is no doubt, that the petitioner was making payment of the normal licence fee while he was in service. Interest of justice and equity merit that the petitioner be required to make payment of the licence fee on the same basis till such time as the respondents are able to ensure safety of personal W.P.(C) No.15239/2004 Page 64 of 157 position property of the petitioner in their home State or are in a alternative accommodation to the petitioner or the petitioner acquires any other residential property in Delhi. 17. petition is allowed. In view of the above discussion, this writ provide similar The respondents are directed to permit the petitioner to continue to occupy the Quarter No.N- 299, Sector-8, R.K. Puram, New Delhi subject to payment of the same licence fee as was being paid by the petitioner on the date when he retired. This order shall continue to operate till such time as the respondents alternative accommodation to the petitioner, or the petitioner acquires any residential property in his name. provide similar This writ petition is allowed in the above terms. There shall be no order as to costs.” (Emphasis supplied) It is noteworthy that these orders have not been assailed and have attained finality.

75. It is urged by learned counsel for the respondents that failure of the Government of India to challenge the orders passed in WP(C) No.11742/2005 entitled P.K.Handoo v. Estate Officer & Anr.; WP (C) No.1065/2007 entitled M.K.Kaul v. UOI & Ors. and the other cases are immaterial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex Court reported at (2006) II SCC 709 Col. B.J. Akkara Vs. Government of India & Ors. in support of this submission.

76. It is noteworthy that Col. B.J. Akkara's case (supra) related to efforts of the Government to recover payment of excess amount as pension. Certain orders stood passed in the writ petition filed by other employees who had raised a similar challenge. These orders had not been challenged by the Government. In this background, the petitioner had contended that the Government was estopped from recovering the amount W.P.(C) No.15239/2004 Page 65 of 157 from him in view of those orders which had attained finality. The Apex Court rejected the contentions and held that the Union of India would not be barred from resisting the subsequent writ petitions involving similar issues or challenging subsequent judgments of the High Court realising the seriousness or magnitude of the issues or financial implications. The position would be different only if it is established that the Government had adopted a pick and choose method only to avoid relief to the petitioner on account of mala fide or ulterior motives. It was held that principles of estoppel, res judicata, legitimate expectation or fairness in action were not attracted on the facts of the case. No plea of violation of fundamental rights was involved in Akkara‟s case (supra). There can be no comparison with the facts of Akkara's case (supra) with those of the present cases.

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

78. Mr. Jatan Singh, learned counsel appearing for the respondent No.1 has contended that the decision to cancel the W.P.(C) No.15239/2004 Page 66 of 157 allotments and to initiate the proceedings under the Public Premises Act, 1971 as well as the orders of the Estate Officer and the judgments of the Appellate Court are in terms of statutory provisions cannot be assailed by way of these writ petitions. Reliance is placed on the pronouncements of this court reported at (1995) II AD Delhi 293 Union of India Vs. S.M. Aggarwal & 31 others; 2000 (55) DRJ 57 Bhim Singh Vs. Union of India & Anr.; AIR 1977 Delhi 268 Hardwari Lal Verma Vs. The Estate Officer & Ors. in support.

79. This objection of the respondents ignores well settled first principles of law. Merely because the impugned action is taken and order passed in purported exercise of statutory power would not render it immune from judicial scrutiny. The question as to manner in which such action and orders viz-a-viz their effect on fundamental rights will be examined, stands answered