S.N. KAUL v. UOI AND ANR

Order

which have been passed against the petitioners and are impugned in these writ petitions are tabulated below:- • 1 • . Writ Petition No. 2 3 4 5 6 Qumter Allotted Date of Retireiiieii t of Allottee Date of impuffiied order of Caiicellati on of Allotment 'Date of. inimmned Eviction Order Date of • the impugned order in Appeal • WP (C) No.15239 /2004 WP (C) No.l524d /2004 WP (C) No.15245 /2004 •WP (C) No. 15246 /2C)04 WP (C) No. 8 6 2/2 006 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 .

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 • 1 1

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 1 i 1 W.P.(C) No.15239/2004 "II— 1 Writ Petition •No. 2 Quarter Allotted 1 3 Date of Retiremen , t of Allottee. I 5 Date of'! hnBumied Eviction . • Order • 4 . Date of impugned order of Caiicellati ' on of Allotment

30.4.1998

1.9.1998

3.3.2004

22.1.2002 (Allottee Died while in service 4.8.2001) 1

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 j

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. 2 641 72006 WP (C) No.5681 /2007 WP (C) No.2869 /2008 • WF (C) No.8599 /2008 , ' WP (C) No.8600 /2008 WP (C) No.8601 /2008 WP (C) No.8641 /2009 WF (C) No.1137 • 3/252, Andrews Ganj, New- Delhi DG 915, Sarojini Nagar, New Delhi MS/1007, Sector VII, M.B. Road, New Delhi Allotted Quarter in Delhi New Delhi New Delhi New Delhi New Delhi GI-809, Sarojini Nagar, New Delhi .880, Lakshmi Bai Nagar, New Delhi /.P.(C) No.15239/2004 Page 15 of]57 .... . . 1 2 Date of Retiremen No. 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 AbT377 Sarojini Nagar, New Dellii K-4/12, Sector II, DIZ Area, Gole Marlcet, New Delhi 47/3A/, DIZ Area, Sector 2, Gole Market, New. Delhi . X-224, Sarojini Nagar, New Delhi ,Qr.Np.28 1, Type- IV, Sector-8, R.K.Pura m. New Delhi.

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 W.P.(C) No.15239/2004 "ir^

#14. In these writ petitions, the petitioners have aU contended they are permanent residents of Jammu & Kaslnnir and liave no desire whatsoever to reside in Delhi. However, 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 time , also has brought no change in the conditions prevalent in the state of Jammu Si Kashmir. The petitioners remain unable to return to their own homes.

#16. Mr. R.K.ITandoo, Mr. B.L. Wali and Mr. Samrat Nigam, learned counsels appearing the petitioners, with all 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 pubhc premises. Instances have respondents permitting 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 • W.P.(C) Ho.15239/2004 petitioners are concerned and have discriminated against thei. 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 permit the petitioners to retain the aUotment on payment of normal license fee is illegal and results in violation constitutional rights petitioner as well constitutional and public law obligations, responsibilities duties of the respondents.

#19. It submitted in the circumstances petitioners cannot be deemed to be in 'unauthorised occupation' the purposes 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 background, petitioners challenge inaction qua the rights of the petitioners; the legality and vahdity of the cancellation of the aUotments of the quarters; as well as the proceedings and all orders under the Public Premises (Eviction of Unauthorised Occupants) Act,

#1971. It is contended that the respondents have ignored ah relevant material in initiating the proceedings against petitioners, passing the impugned orders. l/l/.P.fC; No.15239/2004

#20. Mr. Jataii Singh, learned Standing Counsel for the Unio' 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 the Government by virtue 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 retirement. It is further urged that the petitioners have no right or entitlement to any accommodatioii 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 pleadinas

#21. Before examining these submissions, learned counsel petitioners attention 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;- Pleacliiicfs • Mo.15239/2004 the WP (C) Pleadings in com liter affid Grounds "A. Because the Hon'ble Supreme W.P.(C) No.15239/2004 u "That the contents of Groimds to H) are matter Xxx m similarly adjourned SXoP. - Sliri TX, Koiil & question regarding of the accommodation placed employees sine die the matter the Supreme Court decides the Respondents the . Petitioner Court No/7639/1977 Ors.-Vs. State off T&K & Ors. considered the possession finally, the matter cannot dispossess from the premises in cjuestion. Vide Hon'ble . Supreme Court of India in the said case passed the following orders:

26.8.1997 "List this matter on a regular day, after six weeks. • • respectiye In the meantime, Mr. P.P. Rao will ascertain from the State Govt. as can be put to whether the petitioners houses owned by them in the Kashmir valley and can ensure persons To facilitate that venture, counsel will give Rao the address of each petitioner where he would expect to be shifted." as also their property. the petitioner's protection to Mr. . situation Again vide order dated 28.1.1998 consideration taking Plon'ble present Supreme Court of India passed the' following matter •stay:- sine die and continued adjourning orders die. "Adjourned Stay to continue. The petition to be activated on mentioning State of Jammu and Kashmir as and when the by Counsel State is in a position to assure the the petitioners return in the Kashmir respective valley and ensure 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 annexure herewith Annexure. P-5 & P-6 respectively. herewith W.P.(C) No.15239/2004 Pieadiniis in counter afffidavill: "That the contents of are matter, record/ XXX B. Because the Ld. ADJ has not even considered tliat.the Hon'ble Trifomial Vs, Union of• India & Ors. lias cffone and directed into the is sue Respondents. to allow the Applicant Govt. therein accommodation SLP (Civil) No.7369/97. A copy of the order of the Ld. Tribunal aforesaid annexed retain pending decision

30.12.2002 herewith as Annexure P-7. C. Because the Ld. ADJ has failed to a appreciate that Petitioner Kashmiri migrant whose Kashmir was burnt and destroved by the militants,' he has no place to go. compelled to stay at He is, therefore, allotted to his Govt. accommodation in Kashmir the normalcy him ' till vaUey is restored and he could go back to his State one day and rebuild house. and reoccupy However, in a most the Respondents callous, unconcerned and mechanical manner the Petitioner. turned down the request of his destroyed ^ the Petitioner D. Because Fundamental Right to live which is guaranteed to him under the Article of India and 21 of the Constitution the Right includes which Right Shelter also. valley E. Because the Petitioner cannot go back to the Kashmir Vallev. his place of origin because his life is in danger in the ongoing militancy in the State of J & K and also because his own house in bv the Srinagar was burnt/destroved militants and he has no other shelter anywhere in India. account the WP F. Because the. Petitioner with his W.p.(C) Ho.15239/2004 ' alternate income received as pension meager cannot private accommodation in Delhi where he can live with dignity alongwith his family His pensionary inconie is members. sufficient He material has no other income whatsoever. for his family members, ensure . placed similarly proper India shelter provide the Respondent G. Because unless No.l namely, the Ministry of Urban Development who is the nodal agency suitable citizens to the Petitioner and accommodation Kashmiri price and in migrants retired Kashmiris their own and move to the same. The have of their own and Respondents The Respondents taken any positive action in at affordable can acquire installments, have not a house same. H. Because , in and abnormal peculiar circumstances prevailing in the State of conditions Jammu and Kashmir, the State of T & K were granted relief Supreme Court of by the Hon'ble India on humanitarian considerations and on the basis of ecfiialit'v.. employees XXX XXX XXX' to continue accommodation K. Because to have a shelter does not Petitioner iust because he has cease to exist service. retired from the GovermTiRTit to stay in the His right present alternate provided by the Respondents cannot be taken awav till his safety in his own State is ensured and his own house in Srinagar is renovated or re- built. accommodatioil allotted subject response 16.That contents of para K of ground, the petitioner is submitted Government accommodation allotment service. He was entitled to retain the Government during his service period and the cancelled has, been allotment retirement upon his consequent giving from, rules while he was Quarter- service W.P.(C) No.15239/2004 111 period Further concessional retention months. for a maximum period thereafter on medical grounds as per rules' has already been availed by him. four months response 17.That it is contents of para L of ground, submitted Government is made as quarter per the rules and pohcy laid down, by the Government. the allotment service. government Directorate general employees l! Because Estates allotting accommodation serving Government also to various other categories emiplovees who have nothing to do The employees worldng in the office of the journalists, political parties, freedom etc. are also allotted artists, fighters, general The Petitioner belongs to special category of displaced Kashmiri they also deserve special providing matter as in the case of the accommodation non-governmental aforesaid categories. Pandits treatment accommodation.

#18. That the, content of para M of the Ground needs no comments However, retiree pension." and getting petitioner a relrial has the power M. Because the Ld. ADJ has failed to consider Respondents to relax the Allotment Rules in respect of any person, to SR accoraraodation. 317-]B~25 Government (General Pool Government have the power to relax the Mlotment reproduced as under:- respect According the Allotment Residences Rules, in Delh) 1963, Rules 317-B-25: The Government may for reasons to be recorded in writing relax all or any of the provisions the Rules in this Division in the case of any officer or residence or class of officers or type of residences." l4/.P.fg No.15239/2004

#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. Constitutional ouarantees

#23. Before proceeding to examine the challenge laid by the petitioners, it is essential to exainine the right of the petitioners which is involved. Article 19(l)(e) of the Constitution of India states that all citizens shall have the right to reside and settle in any part of the 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, PM. Gupta Vs. State of Gujarat & Ors., the Supreme Court held that food, shelter and clothing are the minimal human rights. The court reiterated its earlier expansion of the right to residence and settlement by again holding that, is a "fundamental right under Article 19(1)(e) W.p.(C) No.15239/2004 ' Page 24 of 157 and it is afacet of inseparablemeaningfulriglit to lif^^'^jdey 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 Climiieli Siiiffli & Ors. Vs. State of U.P, & Aiir,, Supreme Court held that the right to shelter is a fundamental right available to every citizen of India. It was also read into the 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 All "8. society. Declaration of Human anv civilised exercised without social and cultural to food, water, decent environment, to live as a In any organised society,.,right human being is not ensured by meeting only the It is secured only when he is animal needs of man. assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. live mmraiiteed in any civilised society implies the education, rifflit care and shelter. These are basic human medical civil, ricrhts rights enshrined in the political, Universal Convention or under the Constitution of Incha cannot rights. Shelter is not a mere protection of his life and limb. It is home where he has oBBortmiities intellectuallv therefore, iiichides decent structures, sufficient sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The therefore, does not mean a mere riuM to shelter, Tifflit to all the infrastructure necessary to enable them to live and develop as a human heinij, r ademmte clean and decent surroundinas, electricity, to a roof over one's head but rig-Iit to m^ow physicallV', mentallv, for a human being, liviim space and air and water, an essential therefore, spirituallv. Rights the rmlit to live should be deemed to have beeii miaranteed fundamental riglit. as a As secure it for its citizens of course subject to its W.P.(C) No.15239/2004 ^ In a democratic society as a member of the organised civil community one should have Ejenimneiit shelter so as to physically, mentally and - intellectually excellence in the Fundamental Duties and to be a useful citizen and ecfual participant in democracy. The ultimate object of nialdng a man ecj[uipped with a rig-M to dignity of person and equality of status is to enable him to develop himself into a culture being. Want of decent as enjoined a useful improve oneself citizen the Constitutional animatioi 1 of riejlit economic residence, itself......" fundamental (Emphasis supplied) dimiiU^ of uerso m and riqlit mstice, to ecfu lalitVf ri€iM to tc} live 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 aha, the basic human right of shelter.

#27. The right to shelter as an essential concomitant of the fundamental to life was also pressed by the pavement dweUers in the pronouncement reported at (1997) 11 SCC 121 Ors. The Municipal Corporation of Ahmedabad was complaining against encroachment occupation pavements in the urban limits of Ahmedabad by the pavement dwellers (respondents therein). The court was concerned with the plea of vi.olation of fundamental rights of the pavement dweUers under Article 19(l)(e) and 21 of the Constitution 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 -1-! • also. Mter reiterating the principles in earher judgments, observations of the Supreme Court read as follows:- life, rights sections in status. inequalities to residents among all In that case, 38 and 46 of "13. Socio-economic equality of status justice, and of opportunity and dignity of person to fqster the fraternity society in an integrated Bharat is the arch of the set down in its preamble. Articles Constitution enjoins the State to provide facilities 39 and ^ and opportunities. Articles Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to in income and endeavour minimise to eliminate inequalities was held that to bring the Dalits and the Tribes the State into the mainstream of national was to provide facilities and opportunities as it is the basic human the duty of the State to fulfil and constitutional so as to In Shantistar to life meaningful. make the right Builders v. Naravan Kliimalal 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, clothincr and shelter. The ricfht to life is guaranteed in any civilised society. That would take within its sweep the riciht reasonable decent accommodation difference between the need of an animal and a human being for shelter has to be kept in view. For an it is the bare protection of the body; for a animal, suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. land was directed to The surplus urban-vacant In Olga to the poor. be used to provide shelter Tellis case (supra), the Constitution Bench had considered the right to dweU on pavements or in same was to life enshrined accepted as from the place under Article 21: their ejectment nearer their right to livelihood." to clothing, a The indigent a part of right to their work would be deprivation environment the right the right in. to food, being, a XXX XXX XXX ; person be clear It would, therefore, a encroach though no and erect structures or otherwise on footpath, pavement or public the State has earmarked for a public purpose, adequate the Constitutional facilities streets or any other place reserved duty to provide and opportunities by distributing W.P.(C) NO..15239./2004 'II for settlement of life and wealth and resources their heads to make erection of shelter over effective and fruitful. the ricrht to life meaninafiil. to liveMhood is meaningful because no one Right 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 would make life miserable and impossible to live. therefore, be the duty of the State It would, content and meaningfulness iiidmeiit weaker sections of the society in XXX XXX XXX • and, The living fraternity livelihood therefore, or better to prevent the Constitution and impermissible Preamble the nation, in that behalf would be unconstitutional. republic. democratic should be such that everyone provides 25. Article 19(l)(e) of the Constitution to all citizens fundamental rights to travel, settle down and reside in anv part of the Bharat and none have right their settlement. Any attempt assures' The intecfritv among the •people and dianitv of the person to make India in a socialist an integrated and united Bharat policy secular principle should have the opportunity to migrate and settle down in anv part, of Bharat where opportunity conditions employment available unconstitutional to prevent the persons from migrating and settling at places where they find their and means of It is to remember that the Preamble is avocation. the arch of the Constitution which accords India equality of opportunity political dignity of person in an and of status, rights and integrated Bharat. The fundamental and the preamble being the directive principles trinity of the Constitution, to residence and to settle in any part of the country is assured enshrined under Article'21 has been interpreted by this Court to life to include meaningful and not merely animal existence as elaborated in several including Hawkers' case, Olga TeUis case and the latest Chameli Singh's case and host of other decisions it to state that which need no reiteration. to live with right to residence human dignity. As held earlier, one' of fundamental rights the minimal right. Due to want of facilities liberties, fraternity, to life would include • right citizen justice; socio-economic this Court judgments the right Suffice' citizen The W.P.(C) No.15239/2004' residence opportunities, settlement is an illusion to the rural and urban poor. Articles 38. 39 and 4-6 mandate the state, to provide socio-economic . as its economic policy, in income and in justice to minimise inequalities charges opportunities the State to distribute its largess to the weaker sections of the society envisaged in Article 46 to . reality, so as to make the life worth living with dignity of person and egualitv of status and to constantly improve excellence." socio-economic and fruitful It positively and status. lustice . meaningful 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(l)(e) and which has been declared by the Supreme Court to be an integral and essential part also of their right life, guaranteed as a fundamental right under Article 21 of the Cons titution of India. In the several binding judicial precedents 9 noticed hereinabove, the Supreme Court has further held that such violation may also adversely impact and violate the right occupation profession under Article 19(l)(g) Constitution of India which is the other basic human right of the petitioners inextricably involved in the instant case. International principles and their appJicabilitv to present case conventions; perspective - norms; auidina

#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 In the aforenoticecl pronouncements the Supreme Court has been of the A^ew'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 housing, shelter and protection against forcible evictions by residents of Jhuggi Jhopri clusters (hutments) in the judgments dated, July,. 2006 in,W.P.(C) No. 5007/2002 ' reported at MANU/DE/9327/2006 entitled Jagdisb vs. DBA and also the pronouncement of this court dated February, 2010 in W,P,(C) No. 8904/2009 Sudmna Slimli &. Ors. vs Govenimeiit of Delhi & Ajin with connected writ petitions. In this regard, in these judgments as well, reference was made following international & regional covenants declarations on the right to adeguate housing which declare that provision, of housing as well as the protection against forced eA^ction is the unequivocal responsibility of the state (i)The Universal Declaration of Hiiiimii RmMs, 1948 makes the following statement: "Article 25.1 a standard Everyone livincr adeguate 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 disabilitj^ vi^idowhood, circumstances beyond his control." unemployment, old age or other livelihood sickness, lack .of (ii) The Iiitenisitioiial Coiiventioii on the EUmiijation of All forms of Racial Discrhnhmtioii, 1965 con tains the following- : "Article 5 compliance In obligations Convention, prohibit and to eliminate racial discrimination fundamental 2 of undertake laid down in article Parties States W.p.(C) No.15239/2004 • colour, in all its forms and to guarantee the right of to' race, everyone^ without in the or - national before equality enjoyment of the following rights : distinction law, notably origin, ethnic (d) Other civil rights, in particular (iii) The right to housing." 11 of Iiiternatimml (iii). Article Economic, Social and Cultural RmMs adopted by the General Assembly of the United Nations on the 16"' of to housing and December, states thus : 19616 further codifies the right Covenant , "ArLicle 11 "1. The State Parties to the present Covenant, recognize the right of everyone to an adequate standard of livincr for himself and his family, clothing, including . food, housing, and to the continuous improvement of living conditions adequate " India has signed and ratified this covenant and is thus a state party to it. • (iv) Part II of the Declaration of Social Prooress and Develomiient, 1969 states thus : and development shall aim raising of the material and of living of all members of "Social progress at the continuous spiritual-standards for and in compliance society, with respect with human rights and fundamental freedoms through the attainment of the following main goals: Article lOffl The provision for all, particularly persons famihes, low-income adequate housing and community services. and large groups (v) Part III Section (8) of the Vancouver Declaration of Human Settlements, 1976 mandates as follows : l/K.P.rc; No.15239/2004 Page 31 of!57 "Ill Guidelines for Action

#8. Adequate shelter human .right which governments their attainment people, beginning with direct assistance least advantaged are a basic by all to the through guided programmes, of and services places to ensure obhgation • self-help should hindering importance segregation, better different amenities." endeavor community attainment action. Governments impediments remove of these goals.. Of special is the elimination of social and racial housing and balanced social groups, alia, communities, through the creation occupation, The Recommendations Vancouver Declaration the following for National Action in the inter alia also contains "A. Settlement Pohcies & Strategies Preamble, Point 3 for change, The ideologies human settlement instruments of States are reflected in their policies. These being powerful they must not be used to • dispossess people from their homes and their land, The human settlement policies must be' in conformity with the declaration and Universal Declaration of Human Rights." and exploitation. of principles to entrench privilege (vi) Article 8.1 of the Declaration Develomiient 1986 also states that: "Article 8 of the right should undertake, necessary measures the national •1. States level, to development realization equality to basic opportunity food, resources, housing, employment and the fair distribution of income...." for all education, in their access health services, inter-alia, ensure, The above objectives were also reinforced the (vii) declaration made in the International Year of Homeless spoke of this right of all terms: in 1987 by the United Nations when it in the following individuals W.P.(C) No.15239/2004 ' ^ has access liome...one which provides protection "a real from the 'elements; to safe water and sanitation; provides for secure tenure and and within easy reach of personal centres for employment, education and health care; and is at a cost which people and society can afford." safety; (viii) On the issue of forcible evictions, • Coiiiment adequate I'orced Evictions) by the Coiiimissioii on Ecoiioiiiic, Socml and. Cultural Rights extracted hereafter 7 dated 20tli May 1997 on the right the Covenant 11.1 the General : important housing (Article and is : "(1) . the Committee (1991), In its General Comment No. 4, all persons observed should possess a degree of security of tenure against which guarantees eviction, forced harassment It concluded that forced evictions are threats. requirement of the Covenant incompatible ijrotection one. adopted In 1976, obligation resolution community 2000, international (of Government) and rehabilitation in the Global Strategy for Shelter (2) The recognized that the issue of forced evictions is a the United Nations serious Conference noted that, on Human Settlements special attention should be paid to "undertaking should take place major clearance operations only when conservation, not feasible and relocation measures are made. In 1988, the General the Year Assembly 43/181, "fundamental protect and improve houses and neighborhoods, them" was rather than damage "people recognized. Agenda unfair should be protected In the eviction committed Habitat to "protecting all people from, and themselves protection providing for, that are contrary to the law, forced evictions [and] taking human rights when evictions appropriate, solutions on Human Rights has also indicated that "forced evictions are a gross violation of human rights by law against land". or destroy stated from their homes or into consideration; are unavoidable, The Commission that alternative Governments and redress provided". ensuring, Agenda suitable 21 " W.p.(C) No.15239/2004 , • Page 33 of 157 Annexurerl (x) Rapporteur on Adequate Hbiisiim lays down some and guidelines on development based basic principles the guidelines evictions and displacement. ; on relocation of the displaced which read as follows It provides "52. The GovermiWMit and any other parties competent regardless of the circumstances eviction, except in cases of force majeure. At a minimum, without discrimination, authorities shall ensure that evicted persons or . groups, especiallv those who are unable to provide for (a) themselves, have safe and secure access to: (b) food, potable water and sanitation; essential basic shelter and liousinm (c) appropriate sei-^ces; essential medical clothing; (e) livelihood sources; for livestock and (f) fodder resources access previously depended upon; and (g) education States should also ensure that members of the same extended separated as a result of evictions. and childcare community property common facilities. children family (d) XXX security for adequate human rights law. These include: tenure;

#55. Identified relocation sites must fulfil IioiisiBd according criteria international (a) Xxx (c) (d) habitable with adequate damp, heat, health, and ensuring the physical inhabitants from cold, threats structural hazards and disease vectors, safety of occupants; affordable housing space, rain, wind or other providing protection continuous suffer detriment (d) No affected persons, groups or communities as far as their human rights are concerned, nor shaU their living This conditions applies persons, resettlement to forced groups eviction; to infringement. sites, and communities affected subjected improvement be subject communities eguallv W.P.(C) No.15239/2004 include 57. Hell aMJj tail on policies must programmes designed marginalized and vulnerable groups to ensure their equal enjoyment of the Immmi riubts to food, water, health, education, work, Imiisiim, freedom from cruel, treatment, degrading movement. inhuman freedom

#58. Persons, groups their right rifflit equally sites." to the progressive to adequate to host housiiiff. communities realization of This applies relocation (Emphasis' supplied) 3,2. The UN Committee on Economic, Social and Observations on India, called upon the Indian crovernment particularly to address 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 foliows:- "30. The Committee is concerned about the lack of a national housincr policv. which particularly addresses the needs and marginalized disadvantacred including those living in slums individuals and groups, who are reportedly growing in numbers, by providing them with low-cost housing units. The Committee also information was not provided by regrets that sufficient homelessness in the State party. causes extent State The .Committee the State party to in its next periodic report, detailed information also requests in the State party and the extent of sex, inter aha, housing, disaggregated bv. provide, on homelessness iiiadeguate caste, ethnicitv 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 rental housing and building or providing low-cost W.P.(C) No.15239/2004 ... housing units, especially for the cUsadvantaged and low income groups, includingthose living in slums. In this connection, the Coiimiittee reminds tlw State party of its oMmatioiis under Article "11 of the Cov&iiaiit and refers to its General Comment Mo. 4 on ^ 's housing- policies. The boinelessness in the' State party and the extent of sex, caste, ethnicity and relimon.

#71. The enforce n that persons evicted from their homes and lands / I, that, recommends development adopted by the Committee sporting events and other similar with the guidelines General Comment No. 7 on forced evictions Committee implementing projects, the State ijartv should undertake and nleanincrful and communities. Comment No. 4 on the right (1991) and further information achieved statistics in accordance in its (1997). The renewal activities, open, participatory consultations with affected residents the Committee to its General housing the State party to provide report on progress disaggregated requests in its next periodic regard, relating to forced evictions." the attention of the State party, In this connection, to adequate including

#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 ricrht, 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 tlie Post- Second World War which brought International Charters and Conventions leading to the emergence present day human rights. The first documented use of expression 'human rights' is to be found in the Charter of the W.P.(C) No.15239/2004 United Nations, adopted on 25"'June, 1945. Tliis Charter was of course not binding but stated that it was only an ideal to be later developed. By adopting the Universal Declaration Human Ricrlits 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 a;dopting on 16"' 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. Incha a partv to both these covenants which were adopted on 16"' December, 1966 and bind this country. .34. The above narration shows that homelessness may result from several causes including natural disasters; development projects, economic deprivation as well as human fights violations. International law terms persons who stand displaced from their countries as "refugees" and recognizes they are entitled to protection from being returned to places where their lives or freedom could be threatened.

#35. At 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 compelled to relocate to other places even within their own W.P.(C) No.15239/2004 - "iir 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 their own countries stand- categorised as- "Internally Displaced Persons^' (abbreviated as 'IDPs hereafter).

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

#37. Except 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 the IDPs also face the same problems international refugees and require to be treated with dignity by their own governments with fuh 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 W.P.(C) No.15239/2004 Page 38 of-157 'r --n ' 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 well as during return or resettlement and reintegration. The "introduction to these Guidelines defines "Internally Displaced Persons" (TDP's) in Clause 2 as follows For the purposes of these principles, "2. internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their in particular as a homes or places of habitual result of or in order to avoid the effects of armed conflict, of human situations and who have rights or natural or human made disasters, not crossed an internationally recognized State border." of generalized residence, violations violence,

#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.

2.1nternally displaced• persons have the right request and to receive protection and humanitarian assistance from these authorities. persecuted or punished for maldng such a request. They shall not be XXX 7 the authorities Prior to any decision requiring the displacement of concerned shaU ensure that persons, are explored in order to avoid all feasible alternatives displacement exist, all measures shall be taken to minimize displacement and its adverse effects. 2 .The authorities, altogether. Where no alternative shall ensure, iproper accommodation persons, undertaldna to the greatest practicable such displacement is provided to the displaced are effected such displacements extent, W.P.(C) No.15239/2004 satisfactory conditions of safety nutrition, hygiene, not separated. liealtli and and that members of tlie same family are

#3. If displacement during tlie emergency stages of armed conflicts and disasters, shall be complied with : occm-s in situations otlier the following guarantees (a)A specific decision shall be taken by a State authority empowered by law to order such measures; (b)Adec£uate measures shall be taken to guarantee on the and, to those reasons and procedures where applicable, on compensation and relocation; for their displacement to be displaced information (c)The free and informed consent of those to be displaced shall be sought; (d)The authorities concerned shall endeayour in the required, legal authorities; involye particularly women, planning and management of their relocation; (e)Law enforcement measures, where affected, shall be carried out by competent (f)The right to an effectiye remedy, reyiew of such decisions authorities, shall be respected. by appropriate including the judicial Displacement that yiolates security of those affected. the rights shall not be carried out in a manner liberty' and to life, dignity, XXX l.Eyery internally displaced person has the right to liberty of moyement and freedom to choose his or her residence.

#2. In particular, internally displaced persons haye to moye freely in and out of camps or other the right settlements. XXX Principle 15 Internally displaced persons haye: (a) The riulit to seek safety hi miotlier ps&ri: of (b)The right to leaye their country; (c)The right to seek asylum in another country; and forcible (d) The riulit to be protected aajmnst XXX W.P.(C) No.15239/2004 1 -All internally displaced ipersons have the rialit an adequate standard of hvina; 2 .At circimistmices, minimum, regardless' and mdtlmut • discrimiimtioji. (a)Essential food and potable water;. (c)Appropriate clothing; and (d)Essential medical services and sanitation. 3.Special efforts should be made to ensure the full of women planning participation distribution of these basic supplies. . XXX Principle 21 1.No one shall be arbitrarily deprived of property and possessions.

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

#3. Propeitv and possessions left behind by XXX Principle 25 c displaced persons lies with national siutliorities. XXX Principle 28 1.1 as well as provide the means, which volmitarilv, in safety, and with dimiity, to their W.P.(C) No.15239/2004 • Such couiitry. facihtate internally displaced persons. tlie reintegration authorities sliall of returned or resettled endeavour

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

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

2.^ respoiisiMlity to assist returned mid/or resettled to the their prouerty and possessions extent possible, to recover, persons upon their displacement. such propei-ty and possessions When recovery of is not possible.

#41. The United Nations Charter 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 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 the ICE SCR estabhshes that "the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions created whereby everyone may enjoy economic, social and cultural rights as well as his civil and political rights". Article 11 of this covenant emphasises the state parties recognises the right of every person to an adequate standard living which include adequate housing continued improvement of living conditions. The right people to be free from want the very foundation of the ICESCR.

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

#43. The aforenoticed international conventions which exist the Guideline Principles 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 W.P.(CJ No.15239/2004 safety as well as protection against forcible return resettlement in a place where their life, safety, liberty and or health would be ensured. The Guiding Principles have been evolved after an elaborate consultative process.

#44. Before proceeding any further, it is necessary to exaniine the bindingness of the above principles on the courts in India. The extent, manner applicability International Conventions and treaties in interpretation and expansion rights, have been authoritatively considered and are well settled by a catena of binding precedents of the Supreme Court. In the authoritative pronouncement reported JT2008(7)SC11, 2008(9)SCALE69 Eiitertaiiiiiieiit Network (India) Ltd, Vs. Super Cassette Industries Ltd, the Supreme Court traced evolution jurisprudence consideration in paras 48 to 54 which may usefully be extracted and read as follows v. State Bharati : AIR 1973 SC 1461, "48. Beginning from the decision of this Court in Kerala this Court has laws and in particular domestic covenants there would be no inconsistencv held that to the domestic if bv reason thereof the tenor of domestic law Kesavananda MANU/SC/0445/1973 indeed no ' dearth of case laws where apphed the norms of international legislation. categorically in the use of legislation, is not breached and in case of anv such inconsistencv, the domestic legislation should prevail.. international In cases, this Court international interpret MANU/SC/0067/1980 observed: In Jaqdisli Saran and Ors. v. Union of India it was 2 SCR 831, (1980) : "It interpretation India or statutes would change time to time. Beiim a liviiiQ organ, it well-settled the Constitution. W.P.(C) No.15239/2004 limy have to be found out rndtliiii constitutional Horizons constitutional law are expandincf." scheme.

#49. In tlie judgment, of treaties on International aforementioned and conventions. : AIR 2003 SC 3240, for the Court referred to a large number of decisions purpose Yet again in Indian Handicrafts Emporium and Ors. v. Union , of India MANU/SC/0640/2003 Court the Convention considered Trade in Endangered Species (CITIES) and applied the as also not only principles of purposive the Directive Principles IV of the Constitution but also Fundamental Duties as contained to Motor General in Part Traders and Anr. v. State of Andhra Pradesh and Ors. 1 SCR 594. Rattan Ai^a MANU/SC/Q293/1983 and' Anr. and Ors. MANU/SC/Q550/1986 -and Svnthetics and Chemicals Ltd. and Ors. v. State of U.P. And Ors.' MANU/SC/0595/1989. : AIR 1990 SC 1927, this Court held: constructions as contained in Part of Tamil Nadu IVA thereof. SCR 596 Referring : (1986) (1986) State v. 2 - : cannot unconstitutional "There whatsoever that a law which was at one ^ point of time was constitutional may be rendered 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 of Bihar v. (supra) and John Vallamattom and Anr. V. Union of India (supra)." because , State

#50. to in the These judgments were referred decision of Liverpool and London S.P. and I Asson. Ltd. : V. M.V.. Sea Success I and Anr. MANU/SC/0951/2003 (2004) 9 see 512, wherein this Court observed that as Liverpool also referred for the proposition sceimrio. the cbaimiiKj ulobal scenario should be kept ill 'mind baviim reuard to the fact that there does toucMim tbe subject not exist any mimarv act to the and in absence of any, domestic lemslatioii contrary. Concurriacf with the said decisioas, m^as however opined that the same could not mean that it restricted tbe jurisdiction of the

#51. Liverpool and London S.P. and I Asson. Ltd. in' a (supra) has been followed bv the Supreme Court plethora of cases inter alia The State of West Bengal Ors. V. Industries Kesoram Ltd. & W.P.(C) No.15239/2004 • v. State Sincrli : (2004) of Tliarkliand 2 66 ITR 721(SC). MANU/SC/0038/2004 In Pratap and Anr. MANU/SC/0075/20Q5 : 2005 CrilT 3091 wherein this •Court directed to' interpret the Juvenile Justice Act in light of the Constitutional as well as International Law operating in the-field. (See also Centrotrade Minerals and Metal Limited 11 SCC 245 : State of. :.(2006) MANU/SC/8146/2006 Punjab; State of Punjab and Anr. v. Devans Modern : (2004) Brewaries Ltd. and Anr. MANU/SC/0961/2003 v. Hotel 11 : Association AIR 2008 SC 663. of India and Ors. MANU/SC/8173/2007 and Anuj Garg v. Hindustan and Ors. SCC 26 Copper Inc. a apiplicability

#52. However, and Covenants, the purpose of interpretincr of the International as also the resolutions, Conventions statute domestic etc. of the Conventions will depend upon the acceptability sicrnatoiT thereto If the country is in question. subject of course to the provisions of the domestic law, can be utilized. Where the International Covenants International framed Conventions a great deal of exercise upon giving an undertaldncr opportunity of hearing to both the parties and filtered levels as also upon taldng into consideration at several in different countries the different by laying down the minimum norln. as for example, the couirt would freely avail ILQ Conventions, benefits to which India Those Conventions thereof. may not be a signatory, but have been followed by way amendment International Convention is permissible. of new ParUamentarv enactment, statute recourse societal conditions to the existing enactment 796, PUCL Union SC 1203, v. : AIR 1997 This kind of stance is reflected from the 53. India decisions John MANU/SC/0274/1997 : Vahamattom v. Union of India MANU/SC/0480/2003 AIR 2003 SC 2902. Madhu Kishwar v. State of Bihar : AIR 1996 SC 1864, Kubic MANU/SC/0468/1996 : 1990 Darusz v. Union of India MANU/SC/Q426/1990 CriLI Swaminathaswami : (1996) 1 SCR 1068, Apparel Export Promotion Council 1 LLI V. A.K. Chopra MANU/SC/0014/1999 SC, Kapila Hingorani 962 -Bihar MANU/SC/0403/2003 III LLI 31 SC, State of : (2003) Punjab and Anr. v. Devans Modern Breweries and Anr. MANU/SC/0961/2003 Liberpool & London S.P. & I Asson. Ltd. v. M.V. Sea Success I MANU/SC/0951/2003 Thirukoil MANU/SC/0441/1996 : (2004) 9 SCC 512." : (1999) SCC 26 Chameli (2004) "State Singh State 11 v. v. :•

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

#46. In AIR 1997 SC 3011 Vislmka and others Vs. Rajastliaii and Others, the court was concerned with a writ petition filed for preservation and enforcement of the right gender equality and fundamental rights of working women under Articles 14^ 19 and 21 of the Constitution India, Section 2 of Protection of Human Rights Act, 1993 and the entitlements of worldng women under the Convention Elimination of All Forms of Discrimination Against Women. There was no specific domestic legislation on the subject. With regard, to the importance and applicability international conventions and treaties, the court held as follows - for the purpose of interpretation "7. In the absence of domestic the contents of International Conventions law occupying the to formulate effective measures to check the evil of working women at aU work field, of sexual harassment places, norms are significant of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(l)fcr) and 21 of the Constitution sexual International harassment Convention fundamental inconsistent with rights and in harmony with its spirit must be read into to enlarge the meanincr and content these provisions thereof, the object of the constitutional cruarantee. This is implicit enabling power of the Parliament implementing from Article 51(c) and the laws for to enact Conventions implicit International safeguards to promote therein. against , Anv W.P.(C) NO.15Z39/2004 - Page47of]57 I II norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of tlfe Constitution. Article 73 power of executive matters with respect make laws. The executive therefore, legislation curb the evil." relevant. extend to the the Union shall to which Parliament has power to the Union is, enacts to expressly provide measures needed to power of It provides Parliament available

#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 worldng environment and observed international instruments cast an obligation on the Indian State to gender sensitise its laws and that the courts are under an obligation the message :of international instruments is not aUowed to be drowned. The Supreme Court again emphasised that the courts must never forget the core principles embodied International Conventions Instruments and reiterated the above principles.

#48. In (2003) 6 SCC 1 Kaplla Hiiigoraiil Vs. State -oi Bihar, the Apex court stressed on the importance of respecting International Treaties and Conventions while interpreting Constitution and domestic law so as to effectuate the recognised rights and observed as follows- "47. It is also well-settled that a statute should be interpreted in the light of the International Treaties and Conventions. Ors. V. Mrs. Ors. MANU/SC/Q046/2000 this Court stated the law thus:- : 2000CriLJ1473 In Chairman, Chandrima Railway Board Das "24. The International Covenants as adopted bv the United Nations Declarations have to be respected bv all sicrnatorv States and the meaning given to the above words in and Covenants have to be those Declarations such. effective rights. implementation W.p.(C) No.15239/2004 Page48of ]57 amlicaMMtv of the .Universal Declaration Human Rialits thereof iimv Imve ^to be into the domestic hirismndence." and the

#49. As noticed above, to residence and to settle in any part of the country is assured to every citizen as a fundamental right under Article 19(l)(e) of the Constitution of India. (Ref : 1997 (11) see 121 Ahniedabad Municipal Corporation rs, '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 Parisbad & 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, International Conventions governing rights of such persons. It is now an accepted rule of judicial construction that regard must be had to international conventions, and guiding principles construing domestic law when there is no inconsistency between them and there is a void in the domestic law.

#51. It is noteworthy is no specific law, rule, regulation or instrument providing for treatment of IDPs or setting any minimum standards protection, rehabilitation and relocation. The Guiding Principles Internal Displacement reiterate the very to shelter constitutionally guaranteed and recognized as a basic human in the international instruments. These Guidelines W.P.(C) No.15239/2004 ir ii" consolidate and fill gaps in national and international relating to such, displaced persons. They also provide c 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 . see 1 Kapila. Hiiigoratiii Vs. State of Bilmr indisputably, the state parties to the International Covenant on Econoinic, Social & Cultural Ri,ghts 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 adec[uate standard of living including housing.

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

#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 forcible eviction from their accommodation. By way of these writ jbetitions, the petitioners seek protection and enforcement of their fundamental right to life which includes shelter. The international conventions W.P.(C) No.15239/2004 recognise shelter a basic human right. The Guiding Principles reiterate the same rights and responsibilities of the so far as IDPs are concerned. Consideration 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 Hmiiaii Rmlits Act. 1993 was. promulgated on 8"' January, 1994 to provide for the constitution of the national and state human rights commissions and human rights courts for better protection and •for matters connected therewith or incidental thereto. 'Human rights are defined in clause (d) of sub-section (1) of Section 2 as the 'rigiits relating to life, liberty, equahty and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India'. The expression 'international covenants^ is also defined to include the two covenants adopted by the General Assembly on 16"' December, 1966 and such other covenants and conventions adopted by the General Assembly of the United Nations as the Central Government may specify by notification. The enforc.eability of the several rights recognised under W.P.(C) No.15239/2004 International Covenants, therefore, stands recognized by this legislation in India. The said Act was made by the Parhament having regard to the changing social realities and growing Concern in India about issues relating to human rights with a f 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 reiterated international instruments or the said guidelines. The right to shelter of every person has been recognized as an essential concomitant of right to lite under Article 21 of the Constitution of India. It would clearly be covered under the definition of a 'human right' under Section 2(l)(d) of the Protection of Human Rights Act, 1993 which includes right relating to life, liberty, equality and dignity. The right to shelter, an essential part of right to life, would therefore also be a statutorily recognized right, under Section 2(l)(d) of the Act of 1993 and enforceable as such also. The present petitioners, as persons displaced from their homes 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 incorporatecl into the Protection of Human Rights Act, 1993, as a pihar of support for the rights recognised thereby and to ensure the' recjuisite assistance as weU as access 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 •If ?

#58. On behalf respondents, is urged that allotment quarters petitioners (or predecessors) stands canceUed. They 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 iDetitioners 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 protect the same. They do not have adequate.means to acquire any property in Delhi. It is the petitioners contention that W.P.(C) No.15239/2004 ' Page 53 of 157 ir-- pension admissible to tliem does not enable them to affor rented accommodation or acquire their own houses. The petitioners have submitted that the respondents have permitted similarly situated persons continue aUotted accommodation. Reliance is also placed on orders 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 requests to the respondents to exercise discretion vested in them under the Allotment of Government Residences (General Pool in Delhi) Rules, 1963 to permit 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, are not in unauthorized occupation of the quarters and that the respondents could not have taken recourse to proceedings the Public Premises Act, 1971 which would have the effect of ousting them and their families from their residence without taking of making provision •reasonable alternatives. The contention is that the entire action taken by the respondents and implementation of the threat forcible eviction would result in violation fundamental and basic human rights of the petitioners and, therefore, unconstitutional, without jurisdiction completely illegal. /.P.(C) No.15239/2004 Bin din cf ill dicial preceden ts

#61. So far as the conditions which were in existence in the state of Jammu & Kashmir, tlie 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 completely ignored respondents. Attention is drawn to the orders of the Supreme Court of India in SLP (C) No.7639/1999 Sliri JX. Koul & Aiir. Vs. State ofJammu & Kashmir & Ors. Shri J.L. Koul Sr the other petitioners in this case were Kashmiri pandits who employees the State Government and being State Government servants, aUotted 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 Jammu safety reasons. Such a step was considered necessary and inevitable by the State Government atmosphere was not congenial for the appellants to return to the valley, more so when they had lost their respective houses.

#62. It appears 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 agaiiast the failure of the State Government to provide them with official accommodation. A learned Single Judge of the High • \f\/.P.(C) No.15239/2004 ' Court of Jammu St Kashmir had allowed the writ petition aM passed a judgment on 24"'January, 1997 directing eviction of aU those persons who had ceased to be government servants 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 reciuired Government accommodation because of security reasons, should be tried to be accommodated within one complex so that their security is ensured, reducing the burden on the. state which would have to incur lesser amount for their security.

#63. For the reason that the state government was attempting to evict these occupants without providing them with alternative accommodations, a challenge was laid to the judgment of the Single Judge dated the 24*^'' of January, 1997 by a letters patent appeal. This, appeal was dismissed by the Division Bench by a judgment 14"' March, 1997, however, giving opportunity to the appellants to approach appropriate authority for relief. In this background, these persons led by Shri J.L. Koul, filed the above special leave petition before the Supreme Court. On a .consideration of the matter, an interim order order dated 11"' 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 26"' 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.iQ Ho.15239/2004 " tlie petitioners can be put back in to the houses owned by them in the Kashmir Valley and to ensm^e protection of their persons as also their properties.

#65. ,, The case was thereafter taken up by the Supreme Court on 28"' January, 1998 when the Supreme Court took notice of the massacre of Kashmiri Pandits in the Kashmir VaUey 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 Kashmiri Pandits which took place of a a massacre couple of days ago in the Kashmir valley. Adjourned sine die. • Stay to continue. The petition to for the State of as and when the State is in a to their in the Kashmir valley and ensure be activated on mentioning by counsel lammu and Kashmir position to assure return of the petitioners respective their safety and personal property." (Underlining supplied)

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

#67. An affidavit dated 6"' October, 2009 was thereafter by the Chief Secretary in the case. The. appeal was disposed of by a final judgment on 27"' October, 2009 which stands reported at 2009 (1) AD SC 253 J.L. Koul & Others State of 'ir. So far as rehabilitation of the Kashmiri W.P.(C) Ho.15239/2004 T- ;• IT" migrants is concerned, tlie affidavit dated 6'^'" October, 2009 'iia been considered in para 7 of tlie judgment in the following handed already dated 6.10.2009. the Government to the State Department "7. In pursuance of the said order, affidavit the Chief Secretary In the said it has been disclosed that out of 54 appellants the ' Government and' the same employees. Only are presently in occupation of the It that there are 37,280 families who have been has filed the affidavit 23 accommodation had been allotted to 31 migrants/retirees Government clarified recristered including the accommodation and out of them only 5,000 families could be, provided it had been the accommodation undertaken facilities to all Kashmiri migrants till they are residing at the ipresent places. The relevant part of the affidavit reads as under the Government would TJrovide in the camps. However, accommodation. the rehef further • further "5. That that Govt. formulated a package for return and rehabilitation of Kashmiri Migrants which involves an outlay of Rs.1618.40 time since crores. This is for the first 1990, that Govt, of India has come uid submitted a building measures Kashmiri Migrants. The policy has been framed on the recommendations constituted by Govt, of India to suggest various in the J&K State. confidence While needs of migrants have been taken into consideration, as housing, revLvar of Agriculture Horticulture etc. The details of on 5'^' June 2008 are the package reproduced as under:- education, land, employment the policy various announced framing i) Return and Rehabilitation Kashmiri Migrants: The total package involves an outlay components Rs. 1618.40 of- the package are as under: Package crore. The (a) i) Assistance (5) Rs.7.5 lac for fully or partially damaged house left behind by migrant." (ii) Rs.2.00 lac for dilapidated/unused (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 "The J&K 1989 Migrant (Preservation, enactment Property and before Immovable houses. yy.P.(C) No.15239/2004 Protection 1997" on 30.5.1997. and Restraint of Distress Sale) Act, (b) Transit Accommodation : Construction at three sites transit accommodation (5) Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, Rs.1.00 ,incidental be accommodated in transit accommodation. expenses to those families who may not towards family rental families of Cash Relief (c) Continuation to Migrants: at' Jammu and Delhi who are Migrants- recipients 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. of cash relief and free it may be youth were serving

#7. That unemployed willingness response serving in Kashmir valley. expressed submitted further asked to convey their In in Kashmir Valley. in writing for to the same, 14074 unemployed their willingness

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

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

#10. That it may be further nearing submitted that 200 Sheikhpora Budgam. In addition to this, 18 flats are available at Mattan Anantnag. These flats are to'be used as by the Kashmiri migrants transit accommodation shaU who wish to return to valley. The migrants stav in the transit tiU thev re construct or renovate their houses. accommodation oversee

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

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

#13. That the State Government the Kashmiri Micrrants is keen to rehabilitate in the Kashmir valley and shall provide every tyi^e of assistance for their return and rehabilitation. The process for in vallev has been initiated in the rehabilitation Tune 2008 after Govt. of India miiiomiced t (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 appellants particularly •providing accommodation. Placing reliance . on affidavits/undertaldngs given by the respondents, the Court further observed authorities framed rehabihtation 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 by the State and after hearing Mrs. Purnima Bhat Kak, Ld. Counsel Anis for the State, we dispose of Suhrawardy, Ld. Counsel take aU the appeal with a pious hope that State shall •endeavours the jjersoiis who have ]3een victim of terrorism and till the State is able to rehabilitate appellants and Mr. . accoiiimodatioii to 31 auuellaiits-retirees/oiistees, continue poss&ss possession on this date," (Emphasis supplied)

#68. It is noteworthy the only difference between the petitioners before the Supreme Court and those who are before this. court is, petition before the Supreme Court W.P.(Q No.15239/2004 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, 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 petition iremained pending in the Supreme Court, some other similarly placed employees were facing threat of eviction the . present set of petitioners. Some such persons approached this court while others 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 2"^ August. 2006 in WF (C) No,11742/2005 entitled PJC Haiidoo Vs, Estate Officer & Aiir. by this court which is reported at 132 (2006) DLT 672. Shri P.K. Handoo was also a Kashmiri Pandit and part of the minority community in the Kashmir valley. -.An employee with the Intelligence Bureau of the Government of India, he had retired from the service on 3P'' July, 2004 whereafter efforts to cancel his allotment and evict him by way'of proceedings under the Pubhc Premises Act, 1971 had been undertaken. Sh. P.K.Handoo filed the writ petition assailing this action.and the eviction order dated 30'^'June, 2005 passed against him in the proceedings by the estate officer and also sought issuance of a writ of mandamus against respondents to allow him to retain the official accommodation \N.P.(C) No.15239/2004 which had been. aUotted to him tiU such time 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 2'^'^ 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 by the learned ^ gauche. submitted The argument the respondents "11. counsel lacks sensitivity. of terrorist activity which is mainly directed against Hindu Pandits. Due to the obstinacy of terrorists the government terror, Indian Constitution improve. citizens of India. Equal protection meq.ns the right should be no discrimination another legislation their position is the same. that a judicial or quasi Article 14. It is typically ICashmir has never ceased to be a hub The violence in the State is at its peak. and helplessness the situation could applies circumstances. There between one person and subject matter It is settled law judicial decision cannot offend to counter in similar treatment regards to all if as • 12. In the result, I allow the writ jpetitioii Respondents to payment of normal to allow the are directed petitioner to retain Quarter No.D-845, Mandir Marcr, New Delhi, pending decision in SLP © No.7369/2007, subject alternative accommodation anywhere in Delhi writ petition before the Hon'ble Supreme Court. costs." alternative family the pendency of the above said No • the respondents may provide fees or in the petitioner licence ' ' , (underlining supplied)

#72. Learned counsels for the petitioners liave also painstakingly pointed out the earlier similar directions made as back as on. 30'^'' December, 2002 by the Central Administrative Tribunal in OA No,2378/2002 entitled Tej Kislian Vs. Union S- Ors. on the same issue which have also been noticed W.P.(C) No.15239/2004 and reiterated in the P,K. Haiidoo (supra) judgment. It noteworthy that Shri Tej Kashan, 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 August, .2002. This refusal was assailed by way of proceedings before the Central Administrative Tribunal. In these proceedings, the Tribunal had placed reliance on a letter dated 2""^ July, 2002 written to the Delhi Development Authority ('DDA') by the Ministiy 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 permit But the situation ijrevailina "12. By referring to the letter dated 2.7.2002 written to the DDA by the Ministry of Urbam Developmeiit it is stated that this has been & Poverty Ailevatioji. decided as under:- in T&K is such that " Central Government' emplovees who retired/retiring can settle place. Keeping this background in view, a decision has been taken to allot about 100 MIG and LIG Flats in Dwarka Central Government Pool could be got vacated from them.. Accommodation therefore, DDA is, a housing J&K migrant Central scheme Government this Ministry within a fortnight retired/retiring employees retired/retirincr emplovees requested to formulate and send a draft for approval." I&K micrrant their native the Central retirement thereof so that (Underlining supplied)

#73. In above. judgment, the Central Administrative Tribunal also observed on violation of Article 14 by the respondents holding that . "the shall not by its discriminate as between two individuals who are similarly W.P:(C) No.15239/2004 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 of AmiL 2008 rendered in W.P.fC) No,1065/2007 M.K. Koul Vs, Union of Iiidm & 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 initiated by the respondents the Public Premises (Eviction of Unauthorised Occupants) Act,

#1971. During the course of hearing on 7''" April, 2008, a query was put to counsel for the respondent in this case in respect of the position with regard to the safety and security of the ICashmiri Pandits in the valley. The position was revealed to be the same as before. In para 14 of the said judgment, consequently it was recorded that "the respondents are not in a position to ensure their safety and protection and as such, in case they are displaced from the accommodation which they are occupying-, they willnot be in a position to return to their respective homes in the Kashmir valley". Consequently, the following directions were issued:- "15. Ill -'s Rllotmeiit or to enforce the eviction order which no doubt, the petitioner was 16. There is licence fee while he making payment of the normal Interest of justice and equity merit was in service. the petitioner be required to make ijavment of the hcence fee on the same basis tiU such time as the respondents are able to ensure safety of personal • • W.p.(C) No.15239/2004 ' property of the petitioner a position in their home State or are in provide to the petitioner similar alternative the petitioner , • accommodation acquires anv other residential pfopertv in Delhi. 17. In view of petition is.allowed. discussion, this writ , petitioner to, permit are directed The respondents to continue to occupy the Quarter No.N- 299, Sector-8, R.K. Puram, New Delhi payment of the same hcence fee as was being paid by This the petitioner order shall continue to operate till such time as the respondents alternative accommodation or the petitioner acquires any residential property in his name. provide to the petitioner, on the date when he retired. subject 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 failure of the Government of India to challenge the orders passed in Wl^fCJ No. 11742/2005 entitled - P.ICHandoo k Estate Officer & Ann; WP (C) No. 1065/2007 entitled M.K.Kaul V. UOI & Ors. and the other cases are immaterial and would have no bearing on the instant case. Rehance is placed on the pronouncement of the Apex Court reported at (2006) II see 709 CoL B,J, AMiara Vs. Government of India & Ors. in support of this submission.

#76. . It is noteworthy that CoL BJ. AM&ra's case '(supra) related to efforts of the Government to recover payment of excess amount as pension. Certain orders stood passed in the writ petition filed by other employees who had raised a similar challenge. These orders had not been challenged by the Government. In this background, the petitioner had.contended that the Governmentwas estoppedfrom recoveringthe amount W.P.(C) No.15239/2004 from liim in view of those orders which had attained finahty. The Apex Court rejected the contentions and held that Union of India would not be barred fi-om resisting subsequent writ petitions involving similar issues or chahenging subsequent judgments the High Court realising seriousness or magnitude of the issues or financial implications. The position would be different only if it is estabhshed that the Governirient 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, iegitimate expectation or fairness in action were not attracted on the facts of the case. No,plea of violation of fundamental rights was involved in Akkcu-a's case (supra). There can be no comparison with the facts ofAM^m-a'scase (supra) with.thoseof the present cases.

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

#78. Mr. Jatan Singh, learned counsel appearing for respondent No.1 has contendedthat the decision to cancel the W.P.(C) Nod5239/2004 Page.66ofJ57 . allotments and to initiate the proceedings 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. Affffarwal & 31 others-, 2000 (55) DRJ 57 BMm Singh Vs. Union of India & Aar.; AIM 1977 Delhi 268 Hardwari Lai Verma Vs, The Estate Offic; er& Ors. in suijport.

#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 cfuestion as to manner in which such action and orders viz-a-viz effect on fundamental rights wiU be examined, stands answered discussing' "But that does not mean that an order made under Section 10(3)(c) ) may not violate Article 19(l)(a) or (g). While impunged petitioner, we. shall have occasion to point out that even where a statutory provision empowering an authority to valirl^ action taken under it take action is constitutionally • may offend a fundamental though the statutory provision is vahd, constitutional impounding the action may be void. ricrht. and in that event, validity passport is true, straightaway and we must It conceded that merely because a statutory provision empowering an authority to take action in specified circumstances constitutionally vahd as not being in conflict with any fundamental rights/it does not give a carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the provision. Every offer made under a statutory provision must not only be within the authority conferred by the statutory provision, rights. but must cannot be presumed to have intended Parliament confer power on an authority to act in contravention fundamental It assumption the authority should act constitutionally fundamentakright. and no authority is necessary in support of it." constitutional every statutoiT grant of power is conferred, in violation of anv This would seem to be elementary on which the power and not also stand the test of fundamental rights. underlying a basic • (Underlining supplied)

#81. In the above case, the Supreme Court held that even though the impugned order was within the terms of the relevant section, it must nevertheless, not contravene any fundamental rights and if it does, it would be void". So far as the present case is concerned, even it were to be held that the action taken by the respondents was permissible under the statutory provisions, but if it violated or adversely impacted fundamental rights of the petitioners, it would have to be voided. This objectionto the maintainabilityof W.P.(C) No.15239/2004 Page 68 of157 the present writ petitions therefore misconceived and is rejected. '82. An examination of' the order of cancellation allotment requires to be undertaken. The only rules relied upon in support of the power to permit occupancy of the quarters are the Allotiiiejit of Goverimient Residences- (Geiiera.1 Pool in Delhi) Rules, 1963. Cancellation of the allotment has been effected under these very rules.

#83. The respondents have permitted the petitioners to occupy the same in exercise of jDower conferred on them. It is not the respondents' case that the petitioners came into possession of the quarters illegally or without authority. The occupancy is being treated as unauthorised by the respondents for" the reason that they have cancelled the allotments.

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

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

#86. So far as the proceedings for. eviction under the Pubhc Premises Act 1971 are concerned. Sections 4 and 5 thereof deserve to be also considered. Tlie relevant extract reads thus;- premises of eviction.. is' of opinion - (1) If the estate officer that any persons are in unauthorised occupation of they should be any public evicted, in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. the Estate Officer and that (2) The notice shaU- (a) specify the grounds eviction is proposed to be made; and on which the order (b) require all persons concerned, that is to say, aU persons who are, or may be in occupation of, or in, the public premises,- claim interest (i) to show cause,^ if any, against the proposed order on before such date as is specified in the notice, being a date not earlier than seven days form the date of issue thereof, and in the notice (ii) to appear before the Estate Officer on the date along with the evidence specified in support of the which they intend to produce cause shown, and also for personal hearing, if such hearing is desired.]

#5. Eviction of unauthorised occupants, - (1) If, if any, shown by any after, considerincr the cause, person in pursuance of a notice under section 4 and [any evidence produced bv him in support of if any, given the same and after personal hearing, under clause (b) of sub-section (2) of section 4], the the public premises estate officer is satisfied that the estate officer occupation, ai-e in unauthorised to be for reasons may make an order of eviction, recorded public that- directing, therein, premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. thereof or any iDart thereof, W.P.iC) No.15239/2004 (2), If any person refuses or fails to comply with the order of eviction [ on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later.] the estate officer or any other officer duly authorised by the estate officer in his behalf [ may, after the date so specified or after the expiry of the period aforesaid, whichever person] from, and take possession of, the public." later, . (Underlining supplied)

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

#88. The statutory definition of the expression "unauthorised occupation" in Section 2(g) of the Public Premises Act, 1971 requires judicial interpretation the purposes of the present cases. In this regard the oft quoted words of Justice P.N. Bhagwati in (1983) 1 SCC 228 National Textile Workers' Union vs, P.M. MamalaisliJian would be apposite when it was stated as foUows "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still : it must change with the changing social concepts and values. If the bark that protects the tree fails to grow it will either choke the and expand along with the tree, tree or if it is a living tree, it will shed that bark and if the law grow a new living bark for itself. Similarly, fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke it will its iDrogress or if the society is vigorous enough, cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind." W.p.(QUO.15239/2004 ' Page7Iof}57

#89. While interpreting statutory provisions, the Supreme Court also approved and applied in a number of cases, principle of "updating construction" while interpreting statutes set out by the leading jurist Francis Bennion in his commentaries titled 'Statutory Interpretation', 2""^ Edn,, pg 617. {Ref : (2003) 4 'SCC 601 State of MalmraisMra vs. Dm\ Praful DJ Desai ; (1997) 5 SCC 482 CIT Vs, Poddar Cement Pvt. Ltd.; (2000) 8 SCC 740 Basavaraj M. Patil vs. State of Kariiataka}. These principles have been noticed in (1996) 2 SCC 428 State vs. S.J. and read as follows construction ongoing Act the Act was "(2) It is presumed that Parhanient intends the court to a continuously updates its wording to allow for changes (an updating initially it is to be treated construction). While it remains law, as always speaking. the language of the Act, though necessarily any date, to be embedded it as construed in accordance with the need to treat current This means in its application in its own time, is nevertheless framed law." At page (618-19), of the report, it is further noted that:- passing, the Act's the interpreter intention. Accordingly, technology, is to the interpreter 'Tn construing an ongoing Act, presume that Parhament intended the Act to be apphed at any future time in such a way as to give-effect to the true original to make allowances for any relevant changes that have social occurred, conditions, other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is regarded as 'a living Act'. That today's construction involves the suppositionthat Parhament was catering long ago for a state of affairs that did not then exist no argument against the wording of an enactment, is expected to anticipate temporal developments. The drafter will tiy to foresee the future, and allow for it in the wording." the meaning of words, that construction. Parliament, in law, It was, therefore, observed that an ongoing Act is taken to'be always spealdng stating that W.P:(C)'No.15239/2004 Page 72 of]57 . "All enactment of former days is thus to be read today, in the hght of dynamic processing received over years, with such modification of the current meaning of to the original its language The reality and effect of dynamic legislative processing the gradual year in and year constituted by judicial by executive out. officials." as will now give effect intention. provides inteipretation, adjustment. processing comprises It It Thus, the courts have over the period of time applied this principle to interpret various and phrases including "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive"; "telegraph" to include "telephone"; "banker's book" to include "microfilm"; "to take note" to include "use of tape recorder"; "documents" include "data bases"; "handwriting" was construed to include "tyiDewriting" {Ref: 1996(2) SCC 428 State Vs. SJ,CImudlmry}. '"^^otice in writing" in Section 138 of the Negotiable Instruments Act were construed to include a "notice by fax". {Ref ; (1999) 4 SCC 567. SIL Import USA Vs. Emm Aides Silk Exporters}. This principle of legal interpretation would squarely apply to the construction to be placed on the provisions of Pubhc Premises Act, 1971.

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

#91. The state authorities, assessed the threat perception and danger to the lives to some of the petitionerswho were bodily evacuated from their homes in the valley. The transfer of the W.P.(C) No.15239/2004 Rage 73 of 157 ^4 petitioners, (or that of the persons on wliom they were dependent), to Delhi, which preceded the allotment of quarters, compelled by the inability of the respondents protect and ensure the right to life of the petitioners. The same was certainly involuntary. The allotments were a result of the extreme necessity recognised and adjudged by the respondents themselves. It is also noteworthy that"those fleeing to safety had no opportunity to secure or salvage their properties.

#92. It is an admitted fact that over this period, the i3roperties the petitioners in Jammu & Kashmir either been destroyed or, in' other cases, occupied by militants majority groups in the state. On account of the inability of the Government to protect properties of the petitioners, despite the Constitutional mandate, petitioners have been deprived of properties, unable to return . to their homes and face danger to their lives, if they do so.

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

#94. The petitioners have been at the receiving end of the threats not only for the reason that they were from another W.P.(C) No.15239/2004 •||| community but also largely because they represented the face of the Central Government in the valley as its employees.

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

#96. • It is also noteworthy that the affidavit filed before Supreme Court refers to a total package the Central Government involvincr an outlav of Rupees 1618.40 crores.

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

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

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

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

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

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

#103. The respondents also placed reliance on the pronouncement of this court reported at AIR 1977 Delhi 268 Hardnw Lai Veniia Vs. The Estate Officer & Ors. wherein the court held that an allottee of a Government quarter is W.P.(C) No.15239/2004 merely a licencee. There can be no dispute at all proposition. However, HardwariLai Verma had also not raised any question of violation of basic human and constitutional rights as the petitioners have in the present case. No fact situation as in the present case was involved.

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

#105. Within the larger group of the IDPs from Kashmir, petitioners form a special class and are retired government personnel. When the petitioners were forced to relocate, received government accommodation not only as an incidence of their service, but also on account of their compulsive eviction from their homes. They have also not been able to get any benefit of any of the schemes framed by the government which W.p.(C) No.15239/2004 . Page 78 of 157 - clearty admit tlie special needs and entitlement of displaced persons.

#106. Despite reality, representations, undertaldngs and promises of the Central Government, retirement, the allotments to the petitioners stand cancelled vacate Government accommodation; otherwise they face the threat of eminent forcible eviction therefrom pursuant to proceedings against them under Public Premises (Eviction Unauthorised Occupants) Act, 1971.

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

#108. The respondents have themselves recognised the entitlement of the petitioners to apiDropriate residence, when they made the allotments. The only reason advanced by the respondents for their decision to cancel the 'aUotment and to the petitioners is that they have retired. The relevant factor as to the developments in the state of Jammu & Kashmir W.P.(C) No.15239/2004 and the effect of such eviction lias not even been remotely- considered. No examination of the issue of whether the spirit or intendment avowed policy rehabilitation achieved, or not, has been undertaken.

#109. The situation which was to be addressed in these cases was truly exceptional. This aspect has als.o not even remotely entered the respondents consideration. In fact the decisions of the respondents amply illustrates that .the respondents are not rational, reasonable or consistent in their decision maldng.' The construction placed by the respondents in the cases of these IDPs on the permissibility of the occupancy of the quarters under the Allotment Rules as relateable solely to their service results in violation of constitutional guarantees and was ,clearly and completely unwarranted. It needs no further elaboration that the rights which the petitioners are complaining breach of, are the rights guaranteed to them under Article 19(l)(e) and •Article 21 of the Constitution of India. For these reasons, interpretation of the expression "unauthorised occupation" by the respondents as well as in the impugned orders is blinkered, restricted and impermissible in the given facts. The expression "authority for such occupation" appearing in Section 2(g) must take within its .ambit the constitutional violations which result from the restricted worldng of the statutory provisions by the respondents.. It was incumbent upon all concerned with the decision maldng to take into consideration the most material developments in the home state of the petitioners and the fact that the State was unable to guarantee protection of life and liberty to the petitioners in case they return; the insufficiency W.P.(C) No.15239/2004 Page SO of 157 and inability of the resettlement/rehabilitation effort and the absence of any alternative to the petitioners for the purposes of construction of the expression "authority for such occupation". No legal interpretation could be acceptable which does not take into its consideration these relevant facts and circumstances. The petitioners are occupying the accommodation beca.use of the failure .of the respondents to discharge the constitutional mandate and their public law obligations of protecting the right to life and liberty of the petitioners. As noticed above, authority to occupy the quarters so far as the petitioners were concerned was derived from the constitutional guarantees. Such occupancy cannot be deemed or held to be "unauthorised" by any measure.

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

#111. -The • respondents records circumstances in which the petitioners and their successors interest were transferred and evacuated to Delhi and also the extreme necessity of making the allotments of the quarters these persons who were not only Government servants but also IDPs. The Directorate of Estates which has effected impugned decisions cancelling the aUotments would be aware of the pronouncements in respect of identically placed persons of the Supreme Court in P.K. Kdiil Vs. Estate Officer, W.P.(C) No.15239/2004 Page SI of 157 ""•"in- court in J,K. Koul 1/3?, Union of India, tlie order of tlie Central Administrative Tribunal in Tej Kislmii Vs. Union of India & Ors.. and implemented the same. The respondents are aware of the prevalent situation.

#112. No legal interpretation would be acceptable which does consideration relevant circumstances. There can also be.no statutory interpretation which results in violation and constitutional guarantees protection. The present petitioners certainly cannot be "compared with or treated in the same manner in which the respondents would deal with any other occupant who has not suffered the gross violations and deprivations as the petitioners, and is unauthorisedly occupying the public premises. 113- It, therefore, has to be held that the occupation by petitioners cannot be construed as "unauthorized occupation" of the quarters within the meaning of the expression in Section 2(g) Pubhc Premises (Eviction of Unauthorized Occupants) Act, 1971.

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

#115. The sole reason given by the Estate Officerfor passing the impugned orders of eviction is that the allotments in favour of the petitioners stand cancelledand that they had failed to prove W.P.(C) No.15239/2004 r\ they were not m unauthorized occupation of the instant premises. None of the other contentions of the petitioner have been even mentioned let alone considered.

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

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

#118. The appellate orders notice the petitioners' contention the petitioners have made several representations various authorities allowing them to retain accommodation on the giround that they belong to Kashmir and it was not' feasible to return in view of the communal riots and terrorists movements. These requests have not been acceded to. The impugned appellate orders record that the petitioners have challenged the eviction orders on the ground that Estate Officer had failed to consider the fact they were Kashnim migrants and cannot return to Srinagar tih normalcy is restored. It was also a ground of appeal the Estate Officer had not considered the orders in SLP No. 1369/1997 by the Supreme Court and that the petitioners' cases were on the W.p.(C) No.15239/2004 Page 83 ofJS? same footings. Tlie challenge had also been laid to the orders of the estate officer on grounds of arbitrariness and violation of principles of natural justice. ,

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

#120. As a result, such worldng of the Public Premises Act by the respondents, the petitioners are being threatened with eviction from the only shelters they know, without alternative being available to them.

#121. The respondents are bound to act in a manner which is compatible with the constitutional rights of the petitioner while this court has to take into account and require the legislation to be read compatibly with such rights. The object is to ensure that the actions and orders must be such as to avert or rectify any violation of such basic rights-. W.P.(C) No.15239/200A A

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

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

#124. The letter from Ministiy of Urban Development to Delhi Development Authority placed on record in Tej Kislmii UOI (supra) before the Central Administrative Tribunal (also relied upon in 132 (200S) DLT 672 P.K. Haiidoo vs. Estate Officer indicates engagement of the authorities with this issue and the decision of the Central Government directing that schemes be •framed by the Delhi Development Authority-as well for making preferential allotments of accommodation to Kashmiri migrants. In addition, the Government affidavit dated 6"' October, 2009 in W.P.(C) No.15239/2004 Page S5 of 157 ri" J.L. Koiil (supra) filed, in the Supreme Court of India also expresses the same concern as has been expressed in the above Guiding Principles on Internal Displacement. These actions unequivocally manifest the respondents' awareness about the positive obligation imposed upon them to ensure that the persons displaced from Kashmir are required to be resettled and/or rehabilitated. There is admission responsibility and culpability. The working of the measures, however, reflects the steps which have been taken are inadequate and hopelessly insufficient. Even in the prolonged . hearing before court, the respondents could place no alternative so far as the petitioners were concerned.

#125. In AIR 2010 SC 1476 State of West Beiiffal vs. The Comiimiilty for Protection -of Democratic Rights, West Bengal & Ors., the Supreme Court has also held that the court was required to weigh the impact of a particular government scheme, statute, or action on the fundamental rights of those effected by the government scheme, statute or action. In case any statute or action abrogates or abridges such rights, it would be violative of the basic structure/doctrine of the Constitution. • For this reason as well, any application or enforcement of statutory provisions, rules, , regulations impacts impinges fundamental rights has to be struck down.

#126. In [2004] EWCA Civ 540 Secretaiy of State Home Department Wayoka Linibuela, Biiiyam Tesema & Yusif Adam, the House of Lords has larescribed a test to determine whether a statutory scheme or a government pohcy caused a violation of fundamental rights. It was observed W.P.(C) No.15239/2004 that when a reasonable evaluation of all relevant circumstances shows that a government policy would subject petitioners to an immediate and serious deprivation of the basic necessities of life, then the court may properly grant relief. It was also held that the state would be liable for both action and inaction as long as the action or inaction results in a serious deprivation of rights or human dignity.

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

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

#129. The proceedings as well as the impugned decisions and orders have completely failed to take into consideration material issue of the impact of the proceedings and the orders which would result in forcible eviction of the petitioners from W.P.(C) No.15239/2004 the only shelters known to them without any alternative. The •impugned cancellation of allotments, the orders of eviction passed by the Estate Officer and the aforenoticed orders dismissing the appeals of the petitioners are in the teeth of the constitutional guarantees to the petitioners under Articles 19(l)(e)(g) and 21 and therefore not sustainable.

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

#131. The proportionality of the impact on the fundamental involved by worldng of the statutory provision as against objective of the concerned'statute is another important test for adjudicating upon the legality of the interference with the right which would have a bearing on the present .case. In a pronouncement the House of Lords reported (2007) UMJIL 11:(2007) 4 All EE 15 Huang Vs. Secretaiy of State for the Home Department, the decision maldng role and function of the appellate immigration authorities in the context of the Human Rights Act, 1998 and the Immigration and Asylum Act, 1999 was in issue. The House examined the scope of reviews by the prescribed authorities. • The private parties complained of violation of their rights under Article 8 of the W.P.(C) No.15239/2004 European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 which provides as under:- of this to respect for his private "1. Everyone has the right 2. and family life, his home and his correspondence. by a ]3ublic authority There shall be no interference such as is in with the exercise accordance with the in a democratic society in the interests of national security, public safety or the economic well-being of the country, of disorder protection of health or morals, or for the protection of the rights and freedoms of others." law and is necessary the prevention right except crime, The consideration by the tlouse of Lords oh the principle of proportionality of the impact of the interference on the right vis-a- vis, the legitimate end in view is important and reads as fohows :- XXX In most cases where the applicants complain in a case where the of a violation of their art 8 rights, bv law for a decision impucrned lack of lecritimate object respect) to engage oiperation or art 8, the crucial Question is likelv to be for lack of resp>ect) whether and the interference the interference is of sufficient seriousness authorised end soimht subject of such importance treatment. to be achieved. Proportiona11tv_is_R separate as to reguire PROPORTIONALITY In de Freitas Vs. Permanent Ministiy of Agriculture, Fisheries, Lands and liousing [19991 1 AC 69 at 80, [1998] 3 WLR 675 at 684, Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is, proportionate Secretary : : fi) (ii) legislative to justify limiting a fundamental ' •••-Whether sufficientlv important ridht; legislative objective are rationallv connected to it: and (iii) the means used to impair the right or freedom are ao more necessary objective." the measures accomplish to meet objective designed W.P.(C) No.15239/2004 This derives. deficient 1 SCR 103, from which this formulation was formulation But counsel has been widely for the apphcants approach This feature is (at 139) cited and applied. (with the support of Liberty, in a valuable written intervention) suggested omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] proportionality need to balance the interests of society with those of This is indeed an aspect individuals The which should never be overlooked or discounted. House recognised as much in R (Razgar) v Secretary of State for the Home Dept [2004] UKHL 27 at [17]- [2004] 2 All ER 821 at [17]- [20], 2 AC 368 when, [20], haviiig adjudicator would have to ask and answer in deciding a judgment on proportionality - [2004] of questions which [27], [27], suggested [60],[77], [60], a and groups. [77], series convention [26], [26], said ' (at question, [20]) 'must always involve balance between the rights of the individual interests consequences assessment at this stage.' and the in the of the interference will call for careful of the community which is inherent convention. severity striking The a If, as counsel suggest, insufficient the failure attention has should be been paid to this requirement, made good. (Emphasis supplied)

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

#133. The petitioners have also complained that the respondents had discretion to perinit the petitioners to continue to occupy premises under' SR 317-B-25

#1963. It is •contended that the respondents were bound to consider the matter on the relevant consideration of the right to shelter the petitioners which was involved- and cannot premise their action on extraneous and impermissible reasons or considerations. Mr. B.L. Walt learned counsel for petitioners has urged that the failure to exercise discretion in favour of the petitioners is in fact not only in violation of the constitutional obligations of the respondents, but is arbitrary and unreasonable.

#134. Shri P.K. Kaul, (writ petitioner in W.P.(C) No.l5239/2004) had earlier filed WP (C) No.6551/2003, submitting respondents had arbitrarily failed to consider his request regularization despite having knowledge special circumstances of the case. Mr.B.L.Wali, learned counsel for this petitioner has placed the order which was passed on 15^'' •I October, 2003 in the earlier writ petition, which directed the respondents to consider the question regularization allotment in favour of the petitioner in view of the special circumstances. . It was directed that the petition including its enclosures should also be considered while disposing of the petitioner's representation.

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

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

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

#138. The respondents on the other hand place rehance on the pronouncement of the court in (1997) 1 SCC 444 SMv Saffar Tlwvari vs. Union of India and dispute that they have any discretion in the matter.

#139. AUotment of government accommodations are effected under the provisions of Allotment of Goveriimeiit Residences (General Pool in Delbi) Rules, 1963. Reference is made to SR 317-B-25 thereof which empowers the Government to relax \N.P.{C) No.15239/2004 ,^0 the provisions of these rules and deserves to be considered in extenso. The same reads as follows:- " 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."

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

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

#142. On the issue of exercise of discretion, in the judgment reported at AIR 1980 SC 1622, MmiicipaLl Council Ratlaai Vs, Vardiclmn & Ors., the court was concerned with the pubhc power of the Magistrate under Section 133 of the Code of Criminal Procedure. The court observed that the 'pubhc power of the magistrate under the Code' is 'a public duty to the members of the pubhc who are victims of nuisance and so he shall exercise it when the jurisdictional facts are present as heie . So far as exercise of discretion is concerned, it was observed as follows "9. So the guns of Section m go into action there is public nuisance. The public power of wherever the Macristrate under the Code is a pubhc duty to the w.p.(C) No.15239/2004 members of the pubhc who are victmis of the nuisance, and so lie shall exercise it when the jurisdictional are present as here. "Ailpower is a trust-timt we are from the people, accomitaMe and all must exist." and for the beneficiary Discretion, becomes a duty wiieii brinas borne for its benimi exercise. for its exercise-that, the circumstances the people, all springs, \/I • xxxx"

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

#144. The pronouncement of the Supreme Court, reported at (1997) 1 see 444 entitled SMv Sag-ar Tiwari Vs, Union of India & Ors., has been placed before this court by the respondents. In this case, the court was concerned with gross misuse of discretionaiy relating allotment accommodation to government employees. As against permissible discretionary quota of 10 per cent, such allotments had shot up to 70 per cent. On top of these, 8,768 houses were aUotted on "Special Compassionate Grounds" in exercise discretion under the authority of a letter dated 18"'July, 1996 from the Cabinet Secretary. The Government of India had submitted that it had exercised discretion vested in it under the W.P.(C) No.15239/2004 aforenoticed SR. The court had concluded that the conduct of the respondents did not disclose apphcation of mind and discretion was not exercised fairly. In para 56 of the judgment, it was observed as follows \o1 "where be made number considered of out-of-turn purpose "56. The decision of the present Central Government on this aspect as finding place in the letter of the Cabinet dated 18-7-1996 bearing DO No. 1/44/1/96- Secretary absolutely CAV is allotments .necessaiT" for which Ministries/Departments would formulate clear rules and on being guidelines. is at all desired to know as to why out-of-turn allotment required, Union of India was that there are a few officers, who by virtue to facilitate quarters accommodated smooth functioning of the Government.xxx" During the course of hearing, the submission in government on behalf of discharged, advanced duties

#145. In view of the gross abuse of the discretion vested in the respondents, in para 57 at page 463 of the report, it was held that a case to permit minimal out of turn allotments was made out which has to be regulated and transparency has to be maintained in such allotments. The court considered private citizens who could be allotted out of the discretionary which included accredited journalists and news cameraman, political parties, artistes, social worker organizations as well. In SMv Sagar Tiwari vs. UOI (supra), it was held that the discretion conferred has to be exercised to advance purpose to subserve which the power exists and that even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no discretion in the matter or unfettered discretion. The Supreme Court held that exercise of W.P.(C) No.15239/2004 Page95ofJ57 SLicIi discretion was an excGPtioii and deprecated the abovG action the Govermnent making the same into a norm. Noteworthy, is tlie GoveriiTnent's stand in this case that vesting of some discretion in the matter of allotment of quarters was essential. In this background, the contention of the respondents that exercise of discretion was prohibited by the Supreme Court in this case is totally misconceived.

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

#147. The standards on which an authority would exercise discretion were settled by the Supreme Court in the judgment reported at (1979) 3 'SCC 489 entitled Raiimim Bayaram Slietty vs. International Airport Authority of India & Ors. as follows It XXX indeed unthinkable a "10. governed by the rule of law the executive democracy Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason is the very and should be free from arbitrariness. That essence law and its bare minimal requirement. And to the apphcation of this principle it makes not difference whether the exercise of the power involves privilege." or denial of some affection W.P.(C) No.15239/2004 XXX \\ • sweet will and, 12 cannot It must, act arbitrarily the Government like a private individual, therefore, be taken to be the law is dealing With the public, that where the Government whether by way of giving jobs or entering into contracts or issuing cfuotas or licences or granting other forms of largess, deal with any its action must be in conformity person it pleases, but with standard or norms which is not arbitraiy, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of iobs, contracts, etc., must be confined and structured bv rational, standard or norm and if the Government departs such standard or norm in anv particular case or cases, the action of the Government would be liable to be struck that the down, unless it can be shown by the Government departure was not arbitrary, but was based on some vahd principle which in itself was not irrational, unreasonable or discriminatory." (emphasis supplied) and non-discriminatory licences relevant guotas,

#148. In para 85 .of the pronouncement reported at AIR 1974 SC 555 entitled E.P, Royappa vs. State of Tamilaadii & Aiir, the Supreme Court laid down the following binding principles . State relating to political any matter action must be based on eguivalent and equality of treatment. They require In fact equality and arbitrariness one belongs "85 enemies; while the other, monarch. Where an act is arbitrary it is implicit both according is unequal Constitutional employment, and 16 strike at arbitrariness fairness are sworn to the rule of law in a repubhc to the whim and caprice of an absolute in it that law and is therefore violative of Article 14, affects public it is also violative of Article W. Articles 14 in State action and ensure relevant situate and it or irrelevant because that would be denial of egualitv. action, from the inducing and relevant is not legitimate the area of permissible it would amount to mala fide exercise of is hit bv Articles 14 and 16. Mala fide lethal the former. Both are inhibited bv principles alike to all siiTiilarlv must not be cruided bv anv extraneous considerations Where distinguished antechamber of the mind, considerations, power and that exercise of power and arbitrariness radiations latter comprehends Articles 14 and 16." emanating from the same vice : in fact reason from motive is extraneous are different and outside applicable operative State- (emphasis supphed) W.P.(C) No.15239/2004 . Therefore, even if it were to be held as urged by the respondents this court could be held to be powerless direct exercise of discretion in a particular manner, in view of the clear principles laid down in these judicial precedents, is no prohibition upon this court from examining as to whether the respondents have failed to exercise discretion on relevant criterion. There is also no prohibition on this court, to examine whether the respondents have acted arbitrarily or discriminated against the petitioners. The impugned action the respondents against petitioners and the orders assailed herein have to be tested on the above principles.

#149. A similar argument of the respondent the allottees were prohibited from permitting retention of accommodation beyond the permissible period after retirement was rejected by the Central Administrative Tribunal in the aforenoticed decision rendered on 30"' December, 2002 in 0,A. No.2378/2002 Sliri Tej Kislmii Vs. Union of India & Ors. The Tribunal had examined the petitioner's challenge to the respondent's action on the plea of discrimination premised on the conduct of the respondents in exercising discretion in favour of some similarly situated migrants and not in favour of the petitioners observed as follows:- "31. Resvondents Kashmir micfrmits who were identica.llv mid e^imlly on their request have been allowed to situated, till the normalcy comes retain the accommodation back in State of T&K and till they are returned, ensured further the safety of their persons and reconstruction of their bouses. these three Kashmir migrants, m4io are placed ii i similar and with same conditions, situation W.P.(C) No.15239/2004 ' different criteria, was adojjted on the around of — " • • • — • a reasonable to be achieved. mveii a arejiemJ wvMcatioii. Applicant who is also a Kashmir- migrant having no place to live in Delhi a large is on a similar footing with those who family to support, were allowed to retain the accommodation. In order to satisfy the reguirements of law, the respondents have to differentia establish that there has been an intelligible nexus with the object and which has sought forthcome which relevant law and to pass dual test which will render the decision in consonance with the Article 14 of the Constitution of that the India. should not have been applicant in my This being violative considered Article 14 of the Constitution of India." reasonable for to mete out the aforesaid reguirements In absence of any reasons and the fact is egual a view, No grounds whatsoever is unsustainable can be treated in all respects differential treatment.

#150. The tribunal rejected the arguments of the respondents premised on the pronouncement in SMv Sagar Tiwari (supra) as well as scarcity of resources holding as follows

#32. period, retention Moreover, accommodations the Government the contention that of accommodation beyond the specified the directions issued in SMv Sagar Tiwari's case supra and the fact are few and the persons claiming the same are more and the rules do not permit is no iustification for rejecting the case of the applicant as in T.L. Koul's case, even in an interim order passed, Apex Court was well aware about the decision rendered case as weh as the Rules were in Shiv Sagar Tiwari's at that 'time as well which prohibits also in existence reteiition the permissible period. Conscious of this, the Apex Court in the hght of the fact and conditions as well as circumstances Kashmir migrants, who have their own houses destroyed in Kashmir and those retired inclined to go back directed the Government to ensure their protection and as well as of their property so that they may be put back to their respective 28.1.1998 i.e. much after the decision of S,S. Tiwari's through OM in cas& siipra as well as the instructions 17.11.1997, the matter has been pending sine die and to be activated only after the State of Jammu and Kashmir respective ensures the petitioners The Homes with safety of their persons and property. aforesaid petition is stiU pending before the Apex Court. by them in Kashmir return of to their beyond houses .

#33. I also find that the Government by the .letter dated 2,.7.2002 to hold the retirees or retiral officials of Kashmir migrants working in Delhi, who could in order W.P.(C) No.15239/2004 The situation, approval. a, not get .back to J&K due to prevailing decision has been taken to allot about 100 MIG/LIG Flats and for which PDA has been requested to formulate the to the Housing Scheme for which a draft has been sent Ministry decision incorporated Kashmir migrants retiring or retired so that the general got vacated from them. This on a pool accommodation literal consideration connotes that the Kashmir migrants who are in retention of general pool accommodation the PDA retirement, formulate them. a Housing Scheme to allot MIG/LIG flats are being allotted these, houses aforesaid evicted to be , of approval compliance respondents In my considered view, the review undertaken 34. by the earlier direc tions of this Court has not taken note of letter dated If 2.7.2Q02 as well as the directions in Koul's case supra. a post-facto by CCA and approval by the Ministry for Urban Pevelopment denying the same to the applicant who is similarly situated and is and hostile discrimination which, as per various pronouncements the Apex Court, cannot be countenanced and would be an antithesis to rule of laws doctrine of ecfuality.- smacks- of arbitrariness can be accorded in all respects,

#35. . In the result and for the forgoing reasons, OA Impugned order dated 13.8.2002 is are clirected the Government (Civil) Respondents retain decision is partly allowed. cjuashed and set aside. accommodation No.7369/97. No costs." applicant pending SLP (underlining supplied) This decision of the Central Administrative Tribunal has attained finality and also stands implemented.

#151. Before respondents attempted to show how the present petitioners can be distinguished from either Sbri Tej Kisliaii (supra) or from the instances noticed in para 31 of the judgment of the Tribunal. On the contrary, as set out above, in answer to grounds (A) and (B) of the writ petition noticed in para 22 above, respondents have stated that these contentions of the ]Detitioner are a "matter of record". W.P.(C) No.15239/2004 . \\5

#152. There is no dispute also to the fact the orders JXJCoul FrK.Haudoo, MJCJCoiil Tej Kislmia (supra) have attained finality and these persons continue to occupy the allotted accommodation despite:superannuation.

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

#154. As noticed above, the respondents contended before the Supreme Court in' SMv Sagar Tiwarl (supra) they have the discretion to draw exceptions in the matter of aUotments of public premises and have relied on instances and categories when this discretion was exercised in favour of persons who were even not in public service and were never even employed by the Government.

#155. In ground L of WP(C ) no.15.329/2004, Shri P.K.Koul, the petitioner has stated that the respondents have allotted the Government accommodation not only sei'ving Government employees, but to various other categories of employees who have nothing to do with Government service. It has- been stated that "employees working in the office of the political parties, journalists, freedom fighters, artists etc." are also aUotted general pool accommodation. This averment is not contested by the respondents who have only submitted that the W.P.(C} No.15239/2004 allotment of the quarter is made as per the rules and policy laid down by the Government.

#156. It is trite that residuary rules are interpreted and worked to empower authorities permitting exceptions from applicability of the rule to remove hardships (Ref : 1993 Supp,3 SCC 515 (para '3'3,) Syed KlmlM Rizvi vs. UOI & Ors; (1996) 8 SCC 762 ^BI & Ors. KasMimtli Klier & Ors.; (1988) 4 SCC . 179 Asliok Kr. Uppai and Ors. vs. State ofJ&K).

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

#158. No explanation is rendered reason given by the respondents for the rejection of identical requests of some of the petitioners for not favourably considering requests of the petitioners. The failure to even consider requests despite the specific directions in P.K. Koul's previous writ petition reflect highhandedness, unreasonableness arbitrariness on the part of the respondents. The respondents have granted approval to similarly situated persons. Denial thei^eof to the equally placed petitioners certainly tantamounts to hostile discrimination against them which is impermissible and as observed above 'an antithesis to the equality clause'. The action of the respondents in not favourablyconsideringthe petitioners' representations; in cancelling the allotments of the W.P.(C) No.15239/2004 Rage 102 of 157 petitioners and proceeding against them under the Pubhc Promises Act 1971 as well the impugned orders are; therefore, not sustainable also being in violation of Articles 14 and 16 of the Constitution.

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

#160. In a recent judgment of the Supreme Court reported at MANU/SC/0476/2010 Sindliu Education Society & Aiir. Vs. The Chief Secretary, Govt. of NCT of Delhi & Ors., Supreme Court obsei-vedthat framing a pohcy is the domain of the Government. The frameworkof the policy and the working of such Government Pohcy has essentially to be done within the framework of the Constitution & the laws. As and when Governmentchanges its pohcy decision, it is expected to give W.p.(C) No.15239/2004 Page 103 of ]57 valid reasons thereof and act in larger interest of the entire community rather, than a section. In para 66 of the judgment, the Supreme Court held that : " a It settled canon of administrative that state action, must be supported by jurisprudence reasons filed on behalf of application of mind. the state, nothing in this regard could be pointed out • and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non- application of mind would give colour of arbitrariness to the state action." should In the affidavits The position in the cases in hand is no different. The state does not again even suggest a reasonable explanation or valid reason for the change from the rehabilitative policy to the decision to evict the petitioners and thereby threatening them with imminent homelessness

#161. • The respondents would have the right to change its policy upon change in circumstances. (Ref: (1991 1120 State of Punjab & Ors. vs. Ram LuMiaya Ors.). No such change is pointed out in the present cases. The decision to treat the petitioners as unauthorized occupants without their resettlement is clearly not premised a change of policy upon application of mind and therefore not sustainable. Responsibility of the Central Gove.rnmmit

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

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

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

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

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

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

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

#169. So far as. ensuring the right to shelter is concerned, Supreme Court has held that the state is deemed to be under an obhgation to secure the same to its citizens IRef : (1996) 2 SCC 549 Climiieli Singh & Ors. vs. State of U.P,(supra), that it is imperative for the state to provide permanent housing accommodation to the deprived.

#170. In 1995 (2) SLR 72 P.G. Gupta vs. State of Gujarat the Supreme Court had further declared that it was the duty of the state to construct houses at reasonable costs and make them w.p.(C) No.15239/2004' Page.107of.157 easily accessible to the poor, and that such principles have been expressly embodied in our Constitution to ensure economic democracy so that everyone has a right to life, liberty and security of the person. In this context, in para 11 of the pronouncement, the court expressly laid down the imperative duty of the state to provide permanent housing accommodation to the poor in the housing schemes undertaken by it, or its instrumentality and observed as foliows:-

#21. Food, Article shelter the right and clothing is a fundamental As stated earlier, to residence and "11. rig-ht under Article 19fl)(e) settlement to life and it is a facet of inseparable meaningful minimal human rights. The State has undertaken as its of the country economic policy of planned development As its and has undertaken massive housing schemes. part, allotment of houses was adopted, as is enjoined by Arts. 38, 39 and 46, Preamble and 19(l)(e), facilities and to the weaker sections of the society of the opportunities and liveable right to residence, make the life meaningful It is, therefore, in equal status with dignity of person. inmerative nermmmiit to the poor in the housing boiislna accommodatiou schemes undertaken bv it or its instrumentalities within they could make the payment and have permanent settlement and residence assured under (Bconomic means so that in easy instalments, of the State the price vrovide Article 19(l)(e) and 21 of the Constitution, xxxxx" (Underlining supphed)

#171. The Supreme Court has repeatedly reiterated the well settled position that the state has the constitutional duty to provide adequate facilities and opportunities to aU including the disadvantaged and the displaced, by distributing its wealth and resources for the settlement of life and erection of shelter over their heads. The court has emphasizedthe constitutionalright of every citizen to migrate and settle in any part of India for . W.P.(C) No.15239/2004 . \ better employment opportmiity and it would be the duty of-the state to provide right to shelter to the disadvantaged in society. (Ref : Aliiimdabad Municipal Corporation Vs. Nawab Khan Gulab Khan & Ors. (supra).

#172. The forcible removal of pavement and slum dwellers by agencies state without resettlement rehabilitation has been repeatedly deprecated by the courts in the plethora of judgments on the subject. In case they have to be evicted from the place they are occupying, state authorities are bound to formulate schemes and pohcies. The respondents have gone on record with regard to such projects as are in vogue for their relocation, resettlement and rehabilitation. (Ref: (1985) 3 see 545 Olga Tellis v. Bombay Municipal Corporation & Ors.; (1997) 11 SCC 121 Abmedabad Municipal Corporation Vs. Nawab Klian Gulab Khan & Ors.; MANU/DE/9327/2006Jagdisli vs. DDA; decision of this court- dated 11"^^ February, 2010 W.P.(C) No. 8904/2009 Sudama Singh & Ors.) Placing rehance on the obhgations under the international instruments, the courts have rejDeatedly stated that adeguate and reasonable facilities for resettlement and effective steps taken for rehabilitation have to be made available before forcible eviction.

#173. An issue involving chakmas who were tribals erstwhile East Pakistan (now Bangladesh)went to the Supreme Co'urt in the case reported at {1996) 1 SCC 742 Human Rights Commission vs. State of Pradesh Anr. In this case, a pubhc interest htigation was filed the National Human Rights Commission seeking W.P.(C) No.15239/2004 Page 109 of] 57 enforcement rights under Article 21 Indian Constitution, of about 65,000 Chakma/Hajong tribals. It was alleged that these Chakiiias had settled primarily in the State of Arunachal Pradesh and were being persecuted by sections of the citizens of the state i.e. the All Arunachal Pradesh Students Union referred to as "AAPSU" hereafter. It was additionally complained the applications of the Cliakmas under' Citizenship Act and Rules thereunder were not being forwarded by the State Government consideration to the Central Government in accordance with law. In deciding the matter, the Supreme Court placed citizens as well as non-citizens on a common platform so far as the rights under Article 14 and 21 the Constitution concerned. So far as the constitutional and the statutoiy obhgations of the states to protect the rights of those who reside within the territory of that state are concerned, the court observed as follows estabhshed by law. Thus "20. We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human- being and certain other rights on citizens. Every person is entitled to equality before the law and equal .protection of the laws. So also, no person can be deprived of his life or personal liberty except according the State is to procedure bound to protect the life and liberty of every human- being, be he a citizen or otherwise, and it cannot permit any body or group of persons, threaten the ChakmaS to leave the-state, failing which they would be forced to do so. No State Government worth the name can tolerate such threats bv one group it is dutv bound of person-to another group of persons: and if it to protect fails to do so, it will fail to form its Constitutional as well as statutorv obligations. Those giving such (Sic) would be hable to be dealt with in. accordance with law. The . State Government must act impartiallv and carir out its the fSic) group from such assaults the AAPSU, e.g., W.P.(C) No.15239/2004 \ legal obligations being of Chakmas inhibited by local forward rights. Constitutional to safeguard the life, health and well- residing in the State without being are denied to be considered for politics. Besides, the Chakmas and statutory, by refusing applications, , being registered as citizens of India." The court considered the factual matrix and prevalent circumstances in detail and thereafter issued, inter alia, a writ of mandamus directing the State of Arunachal Pradesh, ensure that the life and personal liberty of each and every Chakma residing within the State shall be protected and any attempt to forcibly evict or drive them out of the State by organised groups, such as the AAPSU, shaU be repelled, necessary by reguisitioning the service of para-military or police force. The Union of India was directed to provide additional force as is necessary to protect the lives and liberty of the Chakmas on the reguest of the first respondent. The Supreme Court further directed that the Chakmas shall not be evicted from their homes except in accordance with law and shall not be denied domestic life and comfort therein; the State Government was directed to deal with the guit notices , and ultimatums issued by the AAPSU and any other group which tantamounted to threats to the life and liberty of each and every Chakma in accordance with law. The Supreme Court has thus recognized the responsibility the Central Government provide forces to protect the right to life of the threatened persons.

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

175.- It is the constitutional duty of the state to protect human rights and the fundamental rights of all persons. The distinction between such rights and legal rights which may require adjudication appropriate proceedings emphasised on several occasions. In (1982) 3 see 235 People's Union for Democratic Rights & Ors. Vs. Union of India & Ors., the court observed that denial of statutoiy rights of the labour force, which was a vulnerable section of the community, tantamounted to breach of constitutional rights and was therefore enforceable against the government. It was held that it was the duty of the Union of India, the Delhi Administration and the DDA to ensure that the constitutionalobligationtowardslabourare discharged by the Contractors to whom they had entrusted construction work. It was held that the Union of India, Delhi Administration and DDA cannot fold their hands in despair and become silent spectators of the breach of constitutional prohibitions being W.P.(C) No.15239/2004 committed by their own contractors. In this context, the court Y held as follows of interdicting of the fundamental the person whose fundamental the State from its constitutional "21.. Before leaving this subject, we may point 'out the emphasis at Our command that whenever with all against right, which is enforceable any fundamental, ijrivate individuals such as, for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, obligation of the State to take the it is the constitutional necessary steps the purpose violation and ensuring observance right by the private individual who is transgressing the right is same. Of course, violated can always approach the court for the purpose right, but that cannot of enforcement of his fundamental obligation to absolve right of see that there is no violation of the fundamental such person, to the particularly when he belongs weaker Section humanity and is unable to wage a legal a strong and powerful opponent who is battle against exploiting the • Delhi and the Delhi Development Authority Administration be held to be under an obligation to therefore ensure observance labour laws by the and if the provisions of any of these labour contractors laws are violated by the contractors, the petitioners the cause of the workmen are entitled to indicating the Union of India, enforce this obligation against Delhi Administration the Delhi Development by filing the present writ petition. The Authority preliminai-y ' objections respondents must accordingly be rejected." of these various The Union behalf India, him. The failure of the state to ensure statutory rights was held to provide the essential basis for maintaining the writ petition under Article 32 for enforcing fundamental rights against the State and its agencies.

#176. It is noteworthy that a writ petition was filed in this court in connection with compensation payable to residents Kashmir whose property had been destroyed in the disturbances in Kashmir. The judgment of this court reported at AIR 2005 110 B.L. Wall & Ors. 1^, Union of India & Ors. has W.P.(C) No.15239/2004 made observations on this very unacceptable stand of Government India affidavit consideration. These observations before the Court read as under:- "20. Respondent No.l, Union of India, has also filed an affidavit under the signatures of Mr. K.M. Kuti, Under said Ministry Secretary Department Respondent of Jammu & Kashmir No.l/UOI by way of the said affidavit effectively washes its hands off the matter. relief and' Para 2 of the parawise rehabilitation reply may be reproduced to show the stand of the Union of India: are State sublects. dealing with is stated that affairs. It UOI incorrect "2. That to protect to rehabilitate the averments made in para 2 of the invested petition responsibility and provide relief to the citizens who suffer as a result of failure of their ' life property and. The misconceived, denied. respectfully answering respondent submits Law and Order as well Relief Ministry Rehabilitation are State Subjects. of providinq Home Affairs has the responsibility from West Relief and Rehabilitation (now Paldstan Bangladesh), repatriated answering present respondent (now Pakistan), Sri Lanka, Indian Nationals. petition is not maintainable." Therefore, East Paldstan Tibet to refucrees of India, The Government considered for providing relief and rehabilitation 21. responsibility refugees, who are not citizens of this country, but not to citizens of the country who are refugees in their own country. The apathy is writ large on its face. thus, There is a vast para para phernelia of military 22. and para military personnel in the State, of lammu & Kashmir of the Central Government. The boundaries of the country are to be protected. The condition in the State was so serious that it has been taken as a priority issue. The dislocation of persons from the VaneyMs__a well-known undisputed fact. How can the Government absolve itself of the responsibility for providing a safe living to the citizens of the country? India wash its hands the whole matter

#23. Article 21 of the Constitution of India provides for of Life and the Fundamental Right of Protection existence. Personal Persons who are displaced and suffered injury to life Life cannot be bare Liberty. W.P.(C) No.15239/2004 to protect and . property as a result of terrorism cannot be left It is the duty and responsibility, of the without remedy. State are victims of environment, which is not petitioners their own creation. create an environment for safe and dignified existence of the citizens." The State owes a responsibility citizens. Citizens (Emphasis supplied) This court rejected the stand of the Government of India that the responsibility towards the payment of the compensation rests with the State Government alone holding as follows of India cannot "31.The Government also absolve itself of the responsibility and is liable to ensure that remits the amount. A large the State Government amount of funds flow to the State of Jammu & from the Central Government keeping into Kashmir consideration the disturbed conditions and, Central Government cannot sav that it has no role to play. The State of Jammu & Kashmir is an integral part • of our country and the writ of the Central Government In the cases of victims of Charari funds have been disbursed out of Sharief the Prime Minister Relief Fund to make a package of Rs.2 lakhs of ex-gratia fi-^om other benefits." compensation incident, thus, runs.

#177. In this judgment, the court held that what holds true for loss of life and limb, would hold true for loss of property occasioned by failure of the State to protect the same. It is noteworthy that in the present writ petitions, the petitioners have not been deprived of their property and homes in accordance with law as, for instance, in the case of acquisition proceedings. The deprivation is a direct result of the failure to control the violence against the petitioners. The principleslaid down in the above judgment would apply to, the Kashmiri migrants on eveiy score. More importantis the clear finding by the court of the responsibility of the Central Governmentfor the rehabilitation and relief to the IDPs from Kashmir. W.P.(C) No.15239/2004

#178. It is imfortunate that despite this adjudication, the stand which was rejected has again been talien m these proceedings. Tliis position on belialf. of tlie Central Government in fact ignores the commitments made in legal proceedings noticed above.

#179. It is noteworthy that the displacement of the petitioners is also not intra-state. The petitioners have been compelled to leave the boundaries of their state and are residing in Delhi. •180. The Central Government acknowledged responsibility in the matter inasmuch it has intervened.in matter. Several of the present petitioners stand evacuated by it and the allotments of the quarters in the instant case stand made it. Central resources are being utilized for development projects and security purposes in the state and admittedly the Central Government has accepted and assumed responsibility towards rehabilitation and resettlement of the persons displaced as weU in the grants and reservation made by it.

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

#182. The expansion and interpretation by the courts has affirmativelyestablished a positive right to housing and shelter • for eveiy person as part of the fundamental right. Human W.P.(C) No.15239/2004 • \M rights and fundamental rights are inalienable; their yiolations are indefeasible. The state is under a constitutional obligation and duty to protect these rights. When violated, a citizen is entitled to their enforcement. The constitutional mandate upon it, is coupled with the statutory duty and public law obligations to ensure the protection of the fundamental and basic human rights to all, in addition to its obligation the several international instruments noticed above. This essentially remains in the exclusive domain of state functions. Failure to protect the citizens from eminent loss of life and property as weh as maintenance of public order, implicates the state for culpable inaction.

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

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

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

#186. This submissionfails to consider the nature of the rights which are involvedin the case in hand. Metcalfe Hodgkinson Pvt. Ltd. (supra) related to a challenge to award of a tender W.P.(Q No.15239/2004 and contract of work of professional services to the appellant and was not concerned with a plea of violation of basic human .rights and constitutional guarantees as are involved in the instant case. The consideration in Metcsilfe Hodgldiison P\rt, Ltd, (supra) has no application to the present case.

#187. In (2003) 6 SCC 1 Kapila Hingoraiii vs, ,State of Bihar & Ors. the State Government had, however, pleaded financial stringency to shift its liability to the Union of India or to the State of Jharkhand.' In para 67 of the judgment dated 9"' of May, 2D03 Supreme Court had held that the liability of the state of Bihar , cannot be shifted to the Union of India only because it is the repository of funds raised by it through excise and other central levies and impost, and consequently it would not be indirectly or vicariously liable for the failings on the part of the State Public Sector Undertaldngs. It was held that either precedentially or jurisprudentially, the Union of India cannot be held liable and no such direction as was being sought by the state government could be issued. The Supreme Court, however, clearly declared position that financial stringency may not be a ground for not. issuing requisite directions when a question of violation of fundamental right arises. In,this regard, the court noticed the emphasis given by it on this aspect including the judgments reported [1987J1SCR641 Rural Litigatmii Eiititleiiieiit Keiidra and Ors. k State of Uttar Pradesh and Ors. ; 1980CriLJ1075 Municipal Council Ratlam vs, Vardicimn & Ors,; [1996J3SCR80 BX,. Wadliera v. of India ; (1995)4SCC507 State of v, H,P, W.P.(C) No.15239/2004 Page ]]9 of 157 Recognised & Aided Schools Maimffiiiff Coimiiiittees Ors.; AIR 1996 SC 2426 PascJiliii Bmiga. Kliet Mazdoor Saimiti & Ors. vs. State of West Bengal & Aiir.J In para 65 (2003) 6 SCC 1 entitled Kapila Hingoraiii Vs. State of Bihar & ors, the Court rejected the contention of the State of Bihar also to this effect.

#188. In para 6 at page 589 of (1993) 3 SCC 584 Imam Organisation vs. UOI, the Supreme Court held that:- of pavincr the obligations thev can meet the Walrf Boards such that . Imams as thev are being paid in the State of Punjab. "6....Much was argued on behalf of the Union and financial position was not It was also urged that the number of mosgues is so large that it would entail-heavy expenditure which the Boards of different States would not be able to bear. We. do not two. • Financial between difficulties fundamental been entrusted with the responsibilitv .and administering then it resources harness the most praver created." cannot If the Boards have of supervising the Wakf is their dutv to to pav those persons who perform important dutv namelv of leading communitv for which is the very purpose of the institution ridlit of a citizen. in a- mosgue correlation

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

#190. The observations of the Supreme Court at (2005) 2 SCC 262 Kapila Hingorahi F5r, ,State of Bihar & Others, while dismissing the review petition filed by the Bihar Government, seeking a review of the earher order dated 9^^ May, 2003 are W.P.(C) No.15239/2004 also topical on this objection of the respondents and need to be considered. The State of Bihar had submitted that the state had no liability to j^ay the salaries of the employees of the statutory corporations/companies incorporated Indian Companies Act and that they were not completely under ,the control of the State. Before the Supreme Court, counsel for the State of Bihar had urged that the remedy of the employee was to file appropriate applications before the Company Judge who was seized of the winding up proceedings in relation to such company. These submissions were rejected by court observing that in the order dated May, 2003., the court had considered the matter from the human rights aspect as well as the fundamental rights employees in the j)ublic sector undertaking operating in the state of Bihar; The court noticed that after the passing of the order dated 9"' May, 2003, several employees died due to non-payment of their salaries. The court placed reliance, inter alia on para 24 of the directions dated 9"^ May, 2003 and while rejecting the review petition filed by the respondents observed as follows "24. This Court further observed that has a constitutional capacity vis-a-vis performance duties undertaking's relation thereto." the State obligation and acts in a fiduciarv of its constitutional sector functions as it has constitutional obligations (Underlining supplied) So far as protection of such human rights fundamental rights, and remedy for violation thereof, y\I.P.{C)No.l5239/200A Page 12] of 157 concerned, the court issued directions to the state government to pay the salaries of employees in the public sector undertaldngs in the following terms . "22. 21 Government compahies/public is the. sole' shareholder. Although in law, sector being 'States' would be constitutionally The undertakings liable to respect life and libertv of all persons in terms India. They, the Constitution of Article therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport liability towards the debtors of the Company may be confined to the shares held by it but having regard to the deep and pervasive control in the matter of enforcement companies; Goveriiment of human rights and/or rights of the citizen of life and the State has also an additional duty to see that libertv. are not the rights of employees of such corporations infringed. it exercises over The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and libertv clause in respect of the is fiillv safeguarded. The Government of the employees thus, had a constitutional obligation to State of Bihar, and liberty protect who are owned companies/corporations Government the citizens of India. It had an additional habilitv having regard to its right of extensive affairs of the company." supervision employees XXX directions the public that we have not

#37. We make it clear salaries undertaliings have a Immmi right as also a fundaiiieMital aforementioned Tharkhand on the premise that the employees but on the ground that issued to the States of Bihar and they are bound to pay sector the employees • , under Article 21 which the States are boimd 'to protect. The directions, which have been issued by this Court on 9^^^ ]y[ay^ 2003 as also which are being issued ' herein, rights of the employees concerned and not fundamental by way of an enforcement of their legal right to arrears of salaries. The amount of salary joayable to tlie concerned employees or workmen would undoubtedly be adjudicated upon in the projDer proceedings. However, necessary for their survival. Undoubtedly, any amount paid by Justice Uday Sinha Committee pursuant these directions shall be duly credited for!" (Emphasis supphed) issued which furtherance directions yV.P.(C) No.15239/2004 Page 122 of157 •~ir

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

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

#193. Before this' court, the respondents have not stated that there is any assessment or calibration in terms of priorities of the various of the several projects which the respondents need undertake or the various areas which Government business addresses. The respondents explain neither the financial ' W.P:{C) No.15239/2004 Page 123 of J57 "11 burden of ensuring shelter to these IDPs nor the extent of the available .resource. Mere announcement schemes allocatioii of large volume of funds by the Government as a reaction to court directions upon occurrence of events in the country b3A themselves are insufficient and may prove to be meaningless. Displacement as that of the present petitioners clearly reflects the imperative to take a holistic view and for the decision makers to take a 'minimum-needs' based approach ensuring basic human rights and social welfare concerned.

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

#195. Instance instance schemes in Delhi regularising iUegal unauthorised constructions but also large scale encroachments on public land are in existence and being implemented. So much so that the Central Government has promulgated ordinances and statutes prohibltting demolitions of huge illegal buildings and even interdicting court orders. Interestingly such legislations benefit . W.P.(C) No.15239/2004. law breakers who do not even need rehabilitation or state support, who are certainlynot disadvantagedor displaced. The Delhi Laws (Special. Provisions) Act, 2006 was enacted by the Parliament concerned that action for violation of the provisions of the Master Plan 2001 and building bye laws was causing hardship and irreparable loss to a large number of people. No reference public safety, public interest, environment concerns, enforcement legal provisions financial impact and loss is displayed.

#196. The judgment reported at 2010 (III) AD (DeiM) 513 Harijan Kalymi Samiti Regd. & Ors, vs. .Government of NCT of Delhi makes a reference to Government policy to regularise 1400 unauthorised colonies. The huge loss to the public exchecj[uer indiscriminately regularising ihegal encroachments on land acquired after payment of large sums as compensation from public government; encroachments on public land as also violations building regulations is not even computed, let alone addressed. (Ref: (2006) 3 SCC 399 M.C. Melita UOI & Ors.; AIR , 2005 SC 1 Friends Colony- Development Committee vs. State of Orissa & OrsJ

#197. Yet the respondents urge "financial stringency" so far as the present petitioners are concerned. The essence of the policy rehabilitation and resettlement, petitioners is concerned has not only been given a complete go by but the respondents are completely denying all liability for the same. W.P.(C) No.15239/2004 1<9

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

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

#200. In AIR 1983 SC 1086 Rudul Sail vs. State of Biliar, the court was concerned with violation of rights resulting from illegal detention. The observations of the court on the duty of W.P.(C) No.15239/2004 Page ]26 of 157 the court deserve to be considered in extenso and read as follows "10^ content of release is to mulct infringements to passing orders Article 21, which guarantees to life and' liberty will be denuded of its if the power of this Court were •sim-iificant from illegal limited detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 in the payment of its violators secured, monetary compensation. Administra:tive sele(sic)sis leading to flagrant of fundamental rights cannot be corrected by any other method open to the colTLpensation is some palliative the unlawful in the name of acts of instrumentalities which act public If civilisation is not to perish in this country, as it has too well-known to suffer perished in some others mention, for the rights of individuals accepting that, State must repair the damage done by its officers to the petitioner's and which . protection the powers of the State as a shield. the true bastion of democracy. Therefore, it is necessary to educate ourselves to adopt. The judiciary respect rights." interest present

#201. So far as the remedy which would be available in cases involving infringement, of fundamental rights and the power of courts. Dr. A.S. Anand, J [as his Lordship then was] in his concurring judgment in AIR 1993 SC I960 entitled Nilabati Beliara @ Lalita Behura Vs. State of Orissa had observed as follows the indefeasible as exemplary damages, 226 bv the High Courts, "33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary conipensation, proceedings under Article 32 by this Court or under Article established right guaranteed infringement remedv a under Article available law and is based • on the strict liability for contravention of the guaranteed basic and indefeasible public law is not only to civilize public power but also a legal to assure system which aims ijreserve moulds they live under rights. Therefore, when the the citizen. The purpose 21 of the Constitution the citizen that relief bv granting "compensation" to protect interests in public rights W.p. (C) No.15239/2004 • and fixing enforcement or protection proceedings under Article 32 or 226 of—the seeldna Constitution it does so under the pubhc law by fundamental rights, way of penahsina the . wrongdoer habilitv for the pubhc wrong on the State which has failed in its pubhc duty to protect the fundamental rights of the citizen. The payment of compensation in as it is generally such cases is not to be understood, understood in a ciyil action for damages under priyate sense of providing in the broader relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights is in the nature of of the citizen. The compensation the wrongdoer 'exemplary damages' awarded against and is independent of claim compensation under the private law in an action jurisdiction or/and instituted in a court of competent prosecute the offender under the penal law. based on tort, law duty law but through breach a XXX XXX being' I citizen,

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

#202. In (19H8)' 4 SCC Slieela Barse vs. UOI & Ors,, court was concerned with gross violations of 'the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints. While commenting on W.P.fCJ No.15239/2004 Page '128 of 157 the nature of proceedingsin public interest litigation and the issue of protection and enforcement of their rights, the court made the following, observations with regard to the duty of the disinterested the Court importantly More a passive, is hot "6 merely onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief and-- implementation thereof." also supervising important umpire --

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

#204. Unlike the several cases noted hereinabove including cases of Rudul SliaJi^ D.Kc Basu, Leelawati Beliura, Slieela Barse (supra) etc. in the instant case, • instrumentalities itself not, harmed or punished petitioners. However, the state has totally failed to protect fundamental to life of the petitioners and to protect from violence, harassment and pogroms, This in clear abdication of the constitutional responsibility the State. Responsibility for the violence in the State is not the question W.P.(C) No.15239/2004 • before this court: The issue before' this court is restricted to the question of the rights of the petitioner.

#205. So far as the approach of a court on such issues concerned, in para 13 of the pronouncement reported at (2003) 4 see mi state of Maharashtra Br D. FrafulB. Desai, the Supreme Court stated that one needs to set out approach which a court must adopt in deciding sucli questions and reiterated that the first duty of the court is to do justice.

#206. In para 15 of AIR WHO SC 1622 Municipal Comicil Ratlam vs. Vardicbaii & Ors., the court observed that:- "15. The nature of the judicial process is that of an not purely adiudicatorv nor is it functionallv umpire action to make the remedv effective is of the essence of the ricrht which otherwise becomes sterile." onlv. Affirmative

#207. In para 11 of (1997) 6 SCC 241 VisbaMia & Ors, vs. State of Rajas than & Ors,^ the Supreme Court held that the obligation the Supreme Court under Article 32 of Constitution for the enforcement of fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 representing minimum standards necessary to be observed in order maintain the independence and effective functioning .of the judiciary. The objectives the. judiciary mentioned in the Beijing Statement are: "Objectives of the Judiciary: W.P.(C) No.15239/2004

#10. The objectives and functions of the judiciary include the following: (a) to ensure that all persons are able to live securely under the Rule of Law; (b) to promote, within the proper limits of the judicial function, observance and the attainment of human rights: and (c) to administer among persons and between persons and the State." the law impartially In Clause 10(a) of the objectives the Chapter 'Objectives of the Judiciary', it has been clearly stipulated that the objectives and functions of the judiciary include ensuring that all persons are able to live securely under the rule of law.

#208. So far as the manner in which relief is required to be moulded so as to ensure protection of the constitutional rights of the petitioners in this bunch of writ petitions are concerned, learned counsel for petitioner has placed reliance on the pronouncement of this court dated 10"^^ September, 2004 in WFfCJ No. 172/1997 entitled SmL Kamla Devi vs. Govt. of NCT of Delhi & Ors. In this judgment, learned brother B.D. Ahmed, J was dealing with a case relating to a prayer compensation for the death of one Uday Singh, an electrician who was killed in an explosion on account of terrorist activity in Delhi. The court held that lower courts would-lose their efficacy if they cannot possibly respond to the needs of the society - technicalities there might be many but the justice-oriented approach to not be thwarted on the basis of such W.P.(C) No.15239/2004 technicalitysince technicalitycannot and ought not to outweigh )0 the course of justice.

#209. While referring to several pronouncements of the Apex Court with regard to compensation for custodial death; death of school children on a picnic; death of a passenger in a train in action on the part of the railway employees, it was further observed in Kamla Devi's case (supra) OlS follows "7,. XXX The fact of the matter is that Uday Singh lost his life on account of an act of terrorism. The State failed it. The Primarv duty of the State is to to prevent If maintain peace and harmonv amongst is unable the lid on to put then it is its duty to protect simmering discontent, in this duty, innocent then it must compensate the citizens who have been wronged." from harm.. If it fails its citizens. reason, citizens Reliance was placed on the pronouncement SC 1960 Nilabati Behara @ Lalita Beliura Vs, State Orissa wherein it had been also observed that while directing monetary compensation for estabhshed infringement fundamental rights, the courts take into account not only the interest the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles.

210., In AIR 1989 Mad. -205 R. Gandiii & Ors, UOI & Anr., the Madras High court was concerned with the inability of the State to enforce public order putting in jeopardy the life and W.P.(C)'No.15239/2004 . liberty, home and hearth of the victims involved. The petition sought redressal for the trials and tribulationsundergone by the minority Sikh community of Coimbatore in Tamil Nadu and a few others in the wake of the assassination of late Prime Minister Smt. Indira Gandhi on 31st October, 1984. Obsei-ving on the violation of the fundamental rights and the duty of the state, the Madras High Court placed rehance on the obseiTations of the Supreme Court in the Olga. Tellh case, and held as follows economic and political, a State subject of law and order and tops "21. The maintenance inform all /(drticle in ieopardv. Articleof is the primary dutv of the State and under our Constitution the State List. No abdicate Government worth the hearth and function and put the life and liberty, home of the citizens Constitution enjoins on the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, . social, i9(a) institutions life. Under of the national and (g) of the Constitution, any citizen of this country is entitled to reside and settle in any part of the Territory of India and to practice any profession or to trade or business. Article 21 carry on any occupation, lays down that no person-shall be deprived of his right or personal liberty except according to the procedure by law. As pointed out by the Supreme established Court ' case, Bombay , no person MANU/SC/0039/1985 can live without is, means of livelihood and the easiest way of depriving a person of his .right to life would be to deprive him of to the point of abrogation. his means of livelihood no person Under Article 300(A) of the Constitution, shall be deprived of his property save by authority of law and to ahow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation Constitution. The members of the Sikh Community form an integral part of the Indian societ5/-; they have every right to settle down in Coimbatore and carry on their profession. They have the Constitutional right to live and they cannot be deprived of their means of livelihood. Their to property is inviolable. All rights of the Siklis and a few these Constitutional members : AIR1986SC180 the means of living, guaranteed communities Pavement Dweller's property W.P.(C) No.15239/2004 ' Page 133 of ]57 ^ They are • the, -Fundamental brutum fulmen. flagrantly infringed by the inaction of the law rights are not enforcing authorities. throbbing aspirations and realities of civilised human life, they or as cannot be rendered desuetude observed by Bhagwati, J. as he then was, 'a paper parchment, a teasing illusion and a promise of unreality', bv the failure of the State to protect those rights. violence are, entitled to seek reasoimble from the State of Tamil Nadu, which coinwensatioB. their Constitutional has failed in its dutv to protect and legal rights. or dead-letter unfortunate therefore, victims These 22 failed It is a matter of regret that the State of Tamil Nadu, which elementary function of enforcing public order should the victims of its own lapses as beggars with bowls for alms. It is not charity that is expected of the Government, for wrongs done to them, inflicted on them on account of the break-down of the Governmental machinery. The second respondent- State of Tamil Nadu cajiiiot, therefore, uiifortmmte'Imppenincfs or try to escape from its as a social welfare State to make oMmation suitable amends," restJousiMlitv recompense for injuries sMrk Its but legal ' for (underlining supphed)

#211. Examining the claim for compensation on account of death of a spouse in similar riots targeting members'of the same. community in Delhi in 1984, Anil Dev Singh, J in the judgment reported at 1996 (3) AD (Delhi) 333 / 199§ (38) DBJ 203 'Bliajan Kaurws. Delhi Admn.. has observed as .follows:- ensured commitment "(10) Article 21 is the Nation's them by Article bring every individual or group of persons within its protective fold. This Nation belongs to members of all the communities. They arc equal members of the Indian society. Equality before law and equal protection of to them. None Constitution The conduct of any person or group of discredited. persons has to be controlled by the State for the lofty purpose enshrined in Article 21 of the Constitution. It is the duty of the State to create a climate where the cleavage between members of the society belonging to different caste and creed are eradicated. The State must act in time so that the precious lives of the or threatened. Otherwise, people Article 21 will remain a paper guarantee. Time is long that have more than a overdue for adopting measures 14 of to be favoured are not destroyed faiths, W.P.(C) No.15239/2004 . and initiative The State cannot adopt effect m enforcing Article 21 of hortatory a "do nothing Constitution. the State must take altitude". Like disease prevention, every precaution, measure to prevent terrorem popuh of the magnitude represented by 1984 riots and in the event of an outbreak of riots it must ,act swiftly to curb the same and not allow precious time to slip by, as any inaction or passivity on its part can result ill loss of precious life and liberty of individuals amounting to violation and negation of Article 21. of the Constitution. enforce minimum standards of civilized behavior of its citizens so that the life, protected and is not If it is not able to do all that then it cannot endangered. the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution which mandates that life cannot be taken away except, according to the procedure established by law. " and worth of an individual jeopardised dianitv and preserved compensation The State libertv. . escape the habilitv to pav adequate It is noteworthy that in para 25, the learned Judge in Bhajan Kaur's case, was of the view that the judicial trend is to substantial compensation illegal extinction deprivation of life and liberty.

#212. I had also occasion to consider a claim for compensation for injuries and loss suffered by the petitioner in the 1984 riots in Delhi in the aftermath of the assassination of late Smt. Indira Gandhi in which members of one community were, targetted. In the judgment reported at 120 .(2005) DLT 156 Maiijit Smffli SawIiMiey vs. l/OI & Ors., placing reliance on the principles laid down in the aforenoticed pronouncements, it had been observed as follows principle "20. The award of monetary relief to the victim for is to be guided by the deprivation of fundamental.right afore stated to make requiring monetary amends under public law for the wrong done due to breach of the public duty of not protecting the rights of the citizens. This computation is fundamental formula and it has not guided by any strict arithmetical W.P.(C) No.15239/2004 to be borne in mind that money cannot trauma and the battering suffered by a victim." remove the

#213. The observations of the Supreme Court in AIR 1981 SC 487 AJay Hasia iks?. Klmlid Mujib. Sehrawardi & Ors. are also classical and topical on this aspect and shed light on the issue under consideration as follows fundamentals It must be remembered constitutional of human rights are at stake, to the "Where maintenance functional realism and not facial cosmetics must be the diacrnostic law must seek the substance and tool, for constitutional the form..... fundamental rights are constitutional guarantees given' to the people of India, and : are not merely paper hopes or fleeting promises and so long as they find a place in they should not be allowed to be the Constitution, emasculated by a narrow and interpretation. The Courts should constricted judicial and width of the be anxious Fundamental Rights bv bringing within their every authoritv which is an instrumentalitv or agency of the Government or through the corporate personality so as to subject of which the Government GnvRrmriRnt activities, whether through natural persons or through corporate entities, to the basic obligations of the Fundamental Rights." is acting, its mvriad. apphcation to enlarge the scope in their

#214. It is a well settled principle interpretation constitution as well as statutes the same have to be read keeping the societal changes and growth. Law must change to keep pace with the on going developments and new rights meiy have to be found out within the constitutional scheme. (Ref : (2003) 6 see 1 Kapila Hingorani vs. State o/i^iAar (para 60 at page 30). The imperative necessity to take recourse to take such interpretative changes b^;- the courts has resulted in the expansion to the right to life ensured under Article 21 of the Constitution of India. The court relied on earlier judgments and reiterated that the first duty of the court is to do justice. In para 62, W.P.(C) No.15239/2004' Supreme Court also declared that the riiTht to develoijmentin the developing country is itself a human right.

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

#216. In P.K, Koul (supra), a specific order was passed on 15'-'' October, 2003 in W.P.(C) No. 6551/2003 by this court to decide the petitioner's representation dated 16'^'"January, 2003 seeking permission to continue to retain the quarter. Without meaningfully complying with this order, the respondents have taken recourse to the proceedings under the Pubhc Premises (Eviction of Unauthorised Occjupants) Act, 1971. Such a decision of the respondent patently violates the petitioner's rights constitutional guarantees hereinabove. Other petitioners also made similar representations on which orders have not been passed by the respondents.

#217. Smt. Phoola Raina who is the petitioner in W.P.(C) No. 15698/2004 is the wife of late Sh. T.N.' Raina whO' expired in harness on 4'^'^ August, 2001. She and family were dependent on late Sliri T.N.Raina and residing with him in the allotted quarter. The respondents have been unable to rehabilitate legal heir who is also a Kashmiri displaced person and if forcibly evicted from the premises in her possession, she has nowhere to go. It is contended by Phoola Raina that the meager pension receiving is her only source income which W.P.(C) No.15239/2004 insufficient to even bear the expense of food for her family members. The writ petitioner has also placed reliance on SR- 317 B-25 allotment of Allotment of Government Residences (General Pool in Delhi) Rules, 1963. In view of the above discussion, it is clearly evident that so far as her claim is concerned, the same fundamental and human rights as those of the other writ petitioners are involved and she is entitled to the same relief and consideration as the others.

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

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

#220. The above discussion would show that there cannot be any dispute about the nature of and protection of the right of the petitioners. However, the manner in which it is to be enforced against the respondents deserves consideration.

#221. The instant cases, relate to a unique situation. It has been repeatedly stated by the Supreme Court that in case of violation of the right to life and personal liberty, the court is not helpless to grant relief and should be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental to life and personal liberty. {Ref.: (19.81) 1 SCC 627: AIR 1981 'SC 928 Klmtri & Ors, Vs, State of Bihar & Ors.).

#222. In (1991) ^ SCC 584 / AIR 1992 SC 248 Carbide Corporation Vs. Union of India, it was stated by the Chief Justice Ranganath Misra that "we have to develop our own law and if we find that is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future there is no reason why we should hesitate to evolve such principle W.P.'iO No.15239/2004 liability.; The observations of Venkatachaliah,J (as his Lordship then was) in this case who had rendered the leading judgment in the Bhopal Gas case with regard to the courts power to grant relief are the same. These principles have been reiterated in AIR 1993 SC 1960 SmL NiMbati Behem alias Lalita Bebem Vs. State of . Orissa & Ors.

#223. The jurisdiction of the court to mould the rehef so as to do justice to a party complaining of infringement of Chapter III rights is wide and requires to fit the contours of the right which is violated. It is essential, therefore, that while adjudicating on the questions raised, the relief to be granted has to be moulded keeping in mind the unique challenges laid and the claims made in these petitions.

#224. In (1987) 1 SCC 395 M.C. Melita rs. UOI & Ors., court expanded on the jurisdiction and obligation of the court to mould a new relief in the following terms it also lays to protect rights but on this Court settled that It may now be taken as well does not merely confer power on this Court to of the "3 Article ^ issue a direction, order or writ for enforcement fundamental a constitutional the fundamental obligation rights of the people and for that purpose this Court has all incidental and ancillarv powers including the power new strategies to forge new remedies is in designed to enforce rights. realisation Court has strategies the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning." for the purpose of securing enforcement It new. methods and fashion the fundamental in the past constitutional obligation innovated W.P.fC; No.15239/2004

#225. The Supreme Court has categoricaUyheld ui (1996 ) 9 see 300 J.P. Ramdas & Ors. vs. Navyuvak Harijaii Uttlmpan Multi Unit Industrial Coop. Society Ltd. & Ors. that any contract or action which is opposed to constitutional animation is void. The court as custodian and protector of fundamental and basic human rights has a sacred duty to deter breaches thereof.

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

#221. On the aspect of appropriate compensation for established breaches of fundamental rights, reference can also usefully be made to the observations of the Division Bench of this court in the judgment reported at 2001 (1) JCC Delhi 57 Government of NCT of Delhi vs. Shri Nasiruddin (Father of deceased Molid. Yasin) to the following effect It "21. is true that perfect compensation renew a physique hardly possible and money cannot as stated frame that has been battered and shattered, by Lord Morris in West v. Shephard (1964) AC 326. Justice requires that it should be equal in value, . although not alike in Mad. Object of providing compensation is to place claimant as far as possible in financially, before accident. Coiimensatioii mifeasoimble, should excessive, nor deficient. There as he was awarded should inadequate position neither and' . W.P.(C) No.15239/2004 Page 14J of 157 be no exact uniform rule for measisrinff

#228. In the present cases, the petitioners have complained of grievousAaolence to their lives and properties and the admitted helplessness of the respondents to protect the same. We are concerned with forced ouster, though not by the State, but which is a direct result of the inability of the state to protect life and property of a class of its citizens, resulting in their forced displacements. The petitioners are now threatened with compulsive eviction from their occupied quarters without any alternative despite the threats to their lives in their home state. The UN Commission on Human Rights has unequivocally stated that forced evictions are a gross violation of human rights. The International Community has long recognised forced eviction as a serious matter and it has been reported repeatedly clearance operations should take place only when conservation arrangements and rehabilitation are not feasible, relocation measures stand made.

#229. li\ (199.0) 1 see 328 S.M,D. Klrain FasJia rs. Government of A.P., the Supreme Court had observed that a writ petition would be maintainable under Article 226 of the Constitution of India also when a right under Article 21 is threatened as contradistinguished from the right when it infringed. In para 21 at page 342 of the report, the court held as follows - In the language is either "21. individual legal obligation private in the technical bestowed upon an individual action enforcement this individual; of Kelsen the right of an reflex of or a sense -the legal power to bring about by legal a mere reflex right-the existing towards fulfillment . W.P.(C) No.15239/2004 Page M2 of 157 •r\ / it is clear that obligationexisting toward Mm, that is, the legal power. in the instant From the above analysis case the appellant's to liberty is the fundamental reflex of a-lecral oblicration of the rest of the society, inr.lnrlina the State, and it is the appehant's legal power bestowed upon him to brincr about by a legal action the RTiforcement obligation fulfillment existing towards him. Denial of the legal action would, therefor^, mnonnt to denial of his right of enforcement of his right to liberty.' A petition for a writ of habeas corpus would not be a substitute for this enforcement." (Emphasis supphed) These principles have been reiterated by the Apex Court in (2003) 6 SCC 1 KapilaHingorani fs?. State 'ofBihar,

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

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

#232. So far as compensation is concerned, is again well settled that the same would not be monetary alone. Principle 18 of the Guiding Principles for IDPs as set out by the UN mandates that competent authorities, shall provide internally W.P.(C) No.15239/2004 displacedpersons with and ensure safe access to essentialfood and potable Water, basic shelter and housing, appropriate clothing, essential medical services sanitation etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate and equally in public affairs at all levels and are entitled to equal access to public sei^vicesin the part of the country where they are resettled. Principle 29 mandates when recovery of the property and possessions which the IDPs left behind or were dispossessed of upon their displacement is not possible, they are entitled to be provided appropriate compensation or another form, of 'just reparation'.

#233. Reference can usefully be made to the observations of the Constitutional Court of South Africa in (2001) 3 LRC 209. Government of Republic of South Africa & Ors, vs. Gootboom & Ors. wherein the .court observed as follows obhaes people thousands desperation living conditions throughout "93... hundreds the country. The deplorable the state to act positively to • Constitution is to ameliorate provide sufficient food and water, and social security to those unable and their dependants. The to support themselves state must also foster conditions to enable citizens to gain access to land on an equitable basis." these conditions. The obligation to housing, health care, access

#234. There can be no dispute at all that whether it be a jhuggi or mud built thatched house or a mansion considered Shantistar (supra), without security of limb and life as well as the property, no enjoyment thereof is possible. In order to be meaningful, the shelter which, is envisaged has to be in an environment which is safe and secure, not only from the \N.p.(C) No.15239/2004 elements, but from the larger threats and dangers which have been created by manldnd. Even if the respondents were in a position to provide shelter in the .home state of the petitioners as envisagedin the affidaAdtfiled Koul (supra), in oidei for such right to be meaningfullyenjoyed, it has to be ensured that there is peace within the communityand the state; that its law enforcement agencies able to ensure constitutional guarantees and protections of the citizens are fully secured.

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

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

#237. In National Human RigMs. Commission State of Armiaclial Pradesh Anr. (supra), the court had directed the state to ensure that the life and personal liberty of each and every Chakma residing within the Government of Arunachal Pradesh, the state was protected and any attempt to forcibly w:p.(C) No.15239/2004 evict; or drive tliem out was repelled in view of the violations mid threat to their lives. As noticed above, in para 13 of NiMbati Behm-ai @ Laiita Beliura Vs. State of OrisSa(supra), the court had moulded relief by granting monetary compensation in view of the failure to protect fundamental rights of the persons. In fact the court held that the refusal to pass orders for compensation would be doing lip service and that the court was under an obligation to grant relief (para 37). iR '1997 (1) see 416 D.K. Basu State of West Bmiffal the Supreme Court emphasized a justice oriented approach which was responsive to the needs of the society. The court had also granted monetary compensation for violations in this case. Denial of wages was the consideration and relief moulded appropriately in Kapila Hingoraiii Vs. State, of Bihar

#238. Compensation to these petitioners which could be considered appropriate and perfect thus would have to include comprehensive resettlement such as economic rehabilitation and affordable housing schemes which have been clearly envisaged by the respondents. Several other measures towards meaningful rehabilitation essential in terms of the Guiding Principles entered. respondents' consideration. The same has however not been possible so far. This court cannot shut its eyes or judicial conscience or remain oblivious to the stark realities. W.P.(C) No.15239/2004

#239. The issues raised in the present case have arisen before in the context of persons facing displaceihent on account of development and infrastructure projects especially major river