P.L. Kaul v. UOI and Anr.

UOIANDANR., /....Respondents • Through: Mr. R. V. Sinha with Mr,A.S. Singh, Advocates..3) Writ Petition(CMl)No. 7057/2007 CM No. 13421/2004 C.L. RAINA... Petitioner Through: Mr.Thakur Summit,Advocate

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr.A.S. Singh,Advocates. S.N. ICAUL and CM No.5540/200S... Petitioner Tlirougli: Mr.R.K.liandoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul Sliarma, Advocates

VERSUS

UOI AND ANR.....Respondents Tlirongh: Mr. R. V. Sinha with Mr. A.S. Singh, Advocates. CM No. 16497/200S KANTIAYANI GANJOO... Petitioner Through:- Mr. R.K. Plandoo with Mr. Yoginder Handoo and Mr. Manish Shukla & Mr. AtiirSharma, Advocates

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr.A.S. Singh,Advocate.s. and CM No. H.L. KOUL... Petitioner Through: Mr. R.K. ITandoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul Sharma,Advocates VERSUS■ UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr. A.S.

VIJAY MAM UOI AND ANR. AND & CM NO.,1.6501/200S... Petitioner. Through: Mr. R.K.Plandoo with Mr. Yoginder Plandoo and Mr. Manish Shulda & Mr.Atul Sharma,Advocates VERSUS....Respondents. Through: Mr. R.V. Sinha with Mr.A.S. CM No. 5796/2009 P.L. ICAUL,.. Petitioner Through: Mr. Samrat K. Nigam, Advocate

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Y.S.JAMWAL Petition & CM NO.7654/2009... Petitioner Through:.Mr. Naresh Thanai, Advocate

VERSUS

UOI AND ANR......Respondents Through: Mr. R. V. Sinha with Mr. A.S. xj> 77/2009 & 10986/2009 M.K. BAZAZ... Petitioner Through: Mr. R.K. Plandoo with Mr. Yoginder Handoo and Mr. Manish 2010:DHC:12439 UOI AND ANR. VERSUS....Respondents Through: n Mr.Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha n Bharara, Advocates. B.L. TAKAROO & CM NO,. 11351/2009... Petitioner • Through: Mr. Manoj V. George, Advocate

VERSUS

UOr AND ANR.....Respondents Through: Mr.Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara,Advocates. (22)Writ Petition (Civil) & CM NO. 11242/2009 MOTILAL ICAUL... Petitioner Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER,DIRECTORATE OF ESTATES, NIRMAN BHAWAN;....Respondents Through: Mr.Jatan Singh with Mr. B.L. RAINA & CM NO. 11244/2009... Petitioner Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER....Respondents Through: Mr.Jatan Singh with Mr. Abhishek Aggarwal and Ms. Megha Bharara,Advocates. \ A.K. GIGOO ESTATE OFFIGER (C)No. & C.Mo.No.11246/2009... Petitioner Through: Mr. B. L. Wali, Advocate VERSUS....Respondents Through: Mr.Jatan Singh with Mr. COEAMs HON'BLE MS.JUSTICE GITA MITTAL'

1. Whether reporters oflocal papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

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

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

3. The writ petitioners in W.P.fCl Nos. 5681/2007, 2869, - 8599. 8600. 8601/2008. 11377/2009. 15239. 15240, 15245,

15246. 862, 15241. 15264. 15279. 15698. 1779/2004, 2641/2006. '7057/2007. 8641. 9609. 11548. 114-88. 11489. n 11490 &. 114-91/2009 were shifted from Jammu & Kashmir to Delhi and posted in the local offices of the central organization and department where they were employed. n 4. The facts disclose that all the petitioners(or the,person on whom they were dependant as in the case of Smt. Phoola Raina widow of Late Sh. T.N. Raina writ petitioner in W.P.(C) NO. 15698/2004) upon being brought to Delhi were allotted Government accommodation to reside'in, not only by virtue of their employment but also their extreme need for shelter. These allottees of the quarters, superannuated from service on different dates over the period oftime. 5- W.P.(C) No.15698/2004 has been filed.by Smt. Phoola Raina, widow of Late Shri T.N. Raina who was a Government 2010:DHC:12439 servant. Sliri Raina was the allottee of Government accoininodation hearing no. DG-915, Sarojini Nagai, New Delhi-

23. While still in service Sliri T.N. Raina unfortunately expiied on the 4"'ofAugust,2001. The-petitioner contends thatlate Sh. T.N. Raina and family which included herself were compelled to n flee from the valley in circumstances identical to those of the other petitioners. This petitioner is surviving on a meagei pension and she caiinot afford any alternate accommodation.

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

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

8. Shri P.K. Koul, the petitioner in W.P.fGl No. 15239/2004, was a resident of Razdan, Kochhaa,Bana Mohalla-, liabba Kadal, Srinagar and his entire property in Srinagar has been destroyed by the communal riots and terrorist movements. He clearly 2010:DHC:12439 states that he has no other house anywhere in India. This petitioner was lastly posted as the Director General, with the Border Security Force at R.K. Puram, New Delhi. While in service, this petitioner was allotted the premises no. 1-1-52, Sarojini Nagar, New Delhi. On 31^'July, 2002, the petitioner superannuated from service. The allotment of this accommodation in his name was cancelled by a letter dated 27/28"' August, 2002 with effect from V December, 2002 directing the petitioner to vacate the accommodation immediately and he was informed 'that on failure to vacate, action to evict,him under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 would be taken. The respondents also informed the petitioner that on failure to vacate, he would be liable to pay damage rent @ Rupees 150 per sq. mtr. for the entire period of over stay. The petitioner was permitted to retain the accommodation from IF December, 2002 to 3R'April, 2003 on payment of four times of the normal license fee for the next two months.

9. The petitioner and his family are permanent residents of the State ofJ&K and did not leave their home state voluntarily but were driven out of the Srinagar valley. Their household goods were looted and house was burnt by the terrorists. Other than the one residence, which also stands destroyed by the militants in Srinagar, Shri P.K. Koul owned no other property. A grievance is made that the respondents have taken no action for the reconstruction of the houses of the petitioners and others like him which were destroyed. by the militants and to 2010:DHC:12439 of any security for tliem. Consequently, they are unable to return to their own homes.

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

11. In these proceedings, the following eviction order dated 23''"^ September, 2003 was passed against the petitioner which was served on him on 18'^'' November, 2003:- "OFFICE OF THE ESTATE OFFICER AND DEPUTY DIRECTOR OF ESTATE (LIT.)

DIRECTORATE OF ESTATES, NIRMAN BHAWAN,NEW DLEITI. EC/93/AD/Lit/03/T-D All persons concerned and in particular Shri P;K. Koul, 123, North West Moti Bagh, New-Delhi Whereas I, the undersigned am satisfied for the reasons recorded below that Shri P.K. Koul is an unauthorized occupation of the premises specified in the Schedule below: REASONS You have been continuing to occupy the premises specified in the schedule below even after its allotment stands cancelled in your name w.e.f. 1.2.03 vide letter no. TD/283/M-23/96 dated 8.11.02. You have failed to prove that you are not in unauthorized occupation of the instant premises. Now,therefore,in exercise ofthe powers conferred on me 2010:DHC:12439 (Eviction of Unauthorized Occupants) Act, 1971, I hereby order Shri P.K. Koul, and all the persons who may be in occupation of the said premises or any-part thereof to vacate the same within 15 days from the date of.issue of this -order. In the event of refusal or failure to comply with this order within the period specified above, the said Shri P.K. Koul and all other persons concerned are liable to be evicted from the said premises, if need be, by the •use of such force as may be necessary.

SCEIEDULE 123, North West Moti Bagh, New Delhi. Sd/- n (B.K. Kulshreshtha) • ESTATE OEFICER Date: 23.9.2003 Copy to A.D.-T-D."

12. The petitioner filed an appeal registered as PPA NO. 333/2003 challenging the said eviction order. It is contended that the learned Additional District Judge mechanically dismissed the petitioner's appeal by an order dated 10"' September, 2004 ignoring the orders passed by the Supreme Court and other precedents of this court in respect of identically placed persons, necessitating the present petition. The submission is that the cancellation of the petitioner's allotment by the letter dated 27I2&^ August, 2002; rejection of the petitioner's request by the letter dated 20"' of Eebruary, 2003; the order of eviction dated 23'" September, 2003, as well as the order of the learned ADJ dated 10"'September, 2004 are legally not sustainable. The writ petition lays a challenge to these orders as well as the non-action ofthe respondents.

13. The facts relating to the other petitioners in this bunch of petitions are similar and are.not disputed by the respondents. For the purposes of convenience and clarity, the details of 2010:DHC:12439 the allotment of accommodations which were effected in favour df the petitioners/the predecessor in interest; the dates,of fheir retirement; the status of allotment and particulars of the orders which have been passed against all the petitioners and are impugned in these writ petitions are tabulated below:n I. ' 2 3 4 n. 5 6. Writ Petition Quarter Allotted- - Date of ■Retireiiien Date of impugned 'Date of. imnuaned Date of • the No, t of order of Eviction immmned Allottee ■ Cancellati on of Allotment- Order.orderin Appeal WP (C) No.1-5239 /2004 H-52, Sarojini Nagaf, New Delhi 31.7.2002 31.10.2002 23.9.2003 10.9.2004 WP (C) No.15240 /2004 GI-800, Sarojini Nagar, New Delhi 1.7.2002 31.10,2002 23.9.2003 10.9.2004 WP (C),No.l5245 /2004 I-I-162, Sarojini Nagah New Delhi 7.5.2002 7.5.2002 25.9.2003, 10.9.2004 ' WP (C) No.15246 /2004 123/IV, ■ North West Moti Bagh, New Delhi 30.9.2002 7.5:2002 25.9.2003 10.9.2004 WP (C). No.862/2 499 A/ Sector 3, R.K. Puram, New Delhi 3,0.4.2005 1.9.2004 28.3.2005 20.12.2005 WP (c) ■ No.1779/ Z-20, Sarojini Nagar, New Delhi 12.12.2005 12.12.2005 31.1.2006 31.1.2006 WP (C) ■No.15241 /2004 11/5,. Sector-1, M.B. Road, New Delhi 31.10.2001 1:3.2002 18.9.2002 10.9.2004 ■ WP (C) ' No.15264 /2004 60/9, Sector-1, Pushp Vihar, New Delhi 28.2.2002 30.6.2002 11.7.2003 10.9.2004 2010:DHC:12439 1 2 n ' \ ■3 • 4 ■ 3 \ Writ r Petition ■No. Quarter Allotted Date of Retiremeii. Date of impugned order of Caiicellati ' on of Allotment Date of i imnuarned t of Allottee. Eviction. Order WP (C) No.1527 9/2004 3/252, Andrews Ganj, New Delhi 30.4.1998. 1.9N998 3.3.2004 \ WP (C) No.1569- 8/2004 DG 915, Sarojini Nagar, New. Delhi (Allottee Died while in service on 4.8,2001). 22.1.2002 WP (C) No.2641 /2006 MS/1007,- Sector VII, M.B. Road, New Delhi 30.4.2004 1:7.2004 25.4.2005 WP (C) No.5681 /2007 Allotted Quarter in Delhi 30.9.2006 23.7.2007 WP (C) No.2869 /2008 New Delhi 31.5.2007' WP (C) No.8599 /2008, ■ New Delhi 31.12.2007 10.11.2008 WP (C) No.8600 /2008 New Delhi ■ 31.12.2007 " WP (C) No.8601 /2008 New Delhi 31.12.2007 10.11.2008 WP (C) ■ No.8641 /2009 Gl-809, Sarojini Nagar, • New Delhi 31.5.2008 20.4.2009 WP (C) No.1137 7/2009 880, Lakshmi • Bai Nagar, New Delhi 31.7.2008 ' ■ 3.8.2009 1.2.2006 2010:DHC:12439 WP(C) No.1148 8/2009 WP(C) No.1148 9/2009 WP(C) No.1149 0/2009 WP(C) No.1149 1/2009 WP(C) No.1154 8/2009 WP(C) No.7057 /2007 WF(C) No.9609 /2009 SI/38, Sadiq Nagar, New Delhi 8- 1/65/11, M.B. Road; New Delhi AB-837, Sarojini Nagar, New Delhi K-4/12, Sector II, DIZ Area, Gole Market, New' Delhi 47/3A/, DIZ Area, Sector 2, Gole Market, New Delhi. X-224, Sarojini- Nagar, New Delhi Qr.No.28 1,Type-' IV, Sector-8, R.K.Pura 111, New Delhi. DaLfe of reiiM of 30.6.2008 1.8.2008 9.3.2009 30.11.2007 30.4.2008 30.6.2006 21.7.2008 18.8.2007 1.11.2006 25.8.2009 19.1.2009 10.11.200 25.8.2009 18.6.2007 25.8:2009 30.9.2005 31.08.2006 30.04.2008 1.2.2006 01.01.2007 31.12.2008 18.7.2006 28.05.2007 16.03.2009 25.8.2009 1.9.2007 2010:DHC:12439

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

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

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

17. The petitioners have contended that discretion and power is vested in the respondents under SR 317-B-25 of the Allotment < K * of the'Government Residence (General Pool in Delhi) Rules to. permit any person to occupy public premises. Instances have been cited of the respondents permitting other persons including identically, displaced Kashmiris to occupy public premises. It is complained that the respondents have unfairly failed to consider the special circumstances so far as the 2010:DHC:12439 petitioners,are concerned and have discriminated against them. The writ petitioners thus assail the failure ofthe 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 umfusal of the respondents to permit the petitioners to retain the allotment on payment of n normal license fee is illegal and results in violation of the constitutional rights of the petitioner as well as the constitutional and public law obligations, responsibilities and duties ofthe respondents.

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

1971. It is contended that the respondents have ignored all relevant material in initiating the proceedings against- the petitioners, passing the impugned orders.

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

21. Before examining these submissions, learned counsel for the petitioners have drawn attention to the petitioner's pleadings in grounds A to H, K, L & M of WP (C) NO. 15239/2004 P.K. Koul Vs. Estate Officer and the respondents response thereto which deserves to be usefully considered in extenso and reads as follows:- Pleadiiicis- in the WP (C) PleadiiKus in counter affidavit No.15239/2004 Grounds

Vs. Unnfioii of liidia & Ors. has none issue and directed the Respondents to allow the Applicant therein to retain -the Govt. accommodation pending decision in SLP (Civil) No.7369/97. A copy of the aforesaid order of the Ld. Tribunal dated 30.12.2002 is annexed herewith as Annexure P-7.

Kashmiri migrant whose house in Kashmir was burnt and destroved bv the militants, he has no place to go. He is; therefore, compelled to stay at his Govt. accommodation allotted to him ' till the normalcy in Kashmir valley is restored and he could go back to his State one day and rebuild and reoccupy his destroyed house. However, the Respondents in a most callous, unconcerned and mechanical manner'turned down the request of the Petitioner.

Fundamental Right to live which is guaranteed to him under the Article 21 of the Constitution of India and which Right includes the Right to Shelter also..

No.l namely the Ministrv of-Urban Development who is the nodal agency to ensure proper shelter to the citizens of India provide suitable accommodation to the Petitioner and other similarly placed Kashmiri migrants at affordable price and in easy installments, no. retired Kashmiris can acquire a. house of their own and move to the same. The Respondents have of their own and move to the same.. The Respondents liave not taken any positive action in this direction so the Kashmiri migrants are

XXX XXX XXX'

Petitioner to have a shelter does not cease to exist just because he has retired from the Government service. Plis right to continue to stav in the present accommodation or in an alternate accommodation to be provided by the Respondents cannot be taken awav till his safety in his own State is ensured aud his own house in Srinagar is renovated or re- /ip response to the K.of ground, il;

16. That in contents of is submitted that the petitioner was allotted Government accommodation subject to allotment rules while he was in service. He was entitled to retain the Government Quarter during his service period and allotment has', been cancelled consequent uiDon his retirement Ill L: Because the Directorate of Estates are allotting - general pool acconiinodation not only to the servincr Government employees but also to various other categories of employees who have nothing to do with government service. The employees worldna in the office of.the political parties, journalists, freedom ficrhters, artists, etc. are also allotted general pool accommodation. The Petitioner belongs to special category of displaced Kashmiri Pandits and they also deserve special treatmeint in the matter of providing accommodation as in the case of the aforesaid non-governmental categories.

Respondents has the power to relax the Allotment Rules in respect of any person and in respect of any accommodation. According to SR 317-B-25 of the Allotment of Government Residences (General Pool in Delh) Rules, 1963, the Goverilment have the power to relax the Allotment Rules which is reproduced as under "SR.317-13-25; 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 tyiDe ofresidences." concessional period of., lour months.. Further retention thereafter for a maximum period of four n months on medical grounds as per rules has already been availed by him.

17. That in. response to the contents of para L of ground, it is submitted that..the allotment of Government c[uarter is made as per the rules and policy laid down by the Government.

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

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. Constitut'ional auarantees

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

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

25. In 1995(2)SLR 72,P.G- Gupta Vs, State ofGujarat& Ors., the Supreme Court held thatfood,shelter and clothing are the minimal human ricrhts. The court reiterated its earlier expansion of the right to residence and settlement by again holding that, it is a "fundamental right under Article 19(1) (e) and it is a facet of inseparable meaningful right to life under Article 21" of the Constitution ofIndia.

26. Fundamental rights are guaranteed to the citizens of India under part III of the Constitution of India. In (1996)2 SCC n 549 Cbmneli Siiiffb & Ors. Vs. State of U.F. <&■ -Aiir., the Supreme Court held,that the right to shelter is a fundamental right available to every citizen of India. It was also read into the right to life guaranteed under Article 21 of the Constitution to make it more medningful. Jn para 8 of the judgment the court succinctly set out the nature of the right and the mandate on the state as follows:- "8. In any organised society, right to live as a human being is- not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop liimself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. live msaraiiteedin any civilised society iinolies to food, water, decent environment, education. medical care and shelter. These are basic human rights known to- any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. ' Slfdlter for a human being, therefore, is notm mere protection of his life and limb. It is has booortunities to grow physically, mentally, intellectually and spirituallv. therefore, includes adequate liviuo snace ■ decent structures, clean and decent suiTouhdinas. sufficient, light, pure air and water, electricity,' sanitation and other civic amenities Jike roads etc. so as to have easy access to his daily avocation. ricfJit to shelter; therefore, does not mean a mei Tmbt to a roof over one's bead but shelter when used as an essential remilsite to If mmranteed as a fundamental rialit. As is enjoined in ■ the Directive Princiiiles, the State In a democratic society as a memlDer of the organised civil community one should have venimneEitshelter30 as to nhvsicallv, mentally and intellectually equip oneself to' improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy.The ultimate object of maldng a man equipped with a right to dignity of person and equality ofstatus is to enable him to develop himself into a culture being. the CoiistitutkjiiaJ aiiiiiiatioii ofrimilt to eqiialitVjeconomic ' justice, fundamental riplit to residence, dmrnitv of person and riqlit to[1] live itself,,,,,," (Emphasis supplied) The Apex Court unequivocally declared that all the civil, political, social and. cultural rights enshrined in the Universal Declaration of Human Rights and Convention, 1948 or under the Constitution of India cannot be exercised without, inter alia, the basic human right of shelter.

27. The right to shelter as an essential.concomitant of the fundamental right to life, was also pressed by the pavement dwellers in the pronouncement reported at(1997)11 SCC121 Municipal Corporation Ffe, Nawab.KIian Gulab Ors. The Municipal Corporation of Ahmedabad was complaining against encroachment and occupation of pavements in the urban limits of Ahmedabad by the pavement dwellers (respondents therein). The court was concerned with the plea of violation of fundamental rights of the pavement dwellers under AiTicle 19(l)(e) and 21 of the Constitution of India and their entitlement to shelter. The summation by the Court.placing reliance on the several precedents on the subject throws light on the very question which has been raised herein 2010:DHC:12439 also. After reiterating tire principles in earlier judgments, th observations ofthe Supreme Court read as follows:- "13. Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among, all the sections of the n society in an integrated Bharat is the arch of the Constitution set down in its preamble. Articles 39 and M enjoins the State to provide facilities and opportunities. Articles ^ and 46 of the Constitution enjoin the State to promote welfare • of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavour to eliminate inequalities in status. In that case, it was held that to bring the Dalits and the Tribes into the mainstream of national life, the State was to provide facilities and opportunities as it is the duty of the State to. fulfil the basic human and constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders v. Naravan Khimalal T.otame AIR 1990 SC 630, another Bench of three Judges had held that basic needs of man have traditionallv been accepted to be three-food, clothincr and shelter. The ricrht to life is cmaranteed in any civilised society. That would take within its sweep the ricrht to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For an animal,it is the bare protection of the body;for a human being, it has to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. The surplus urban-vacant land was directed to be used to provide shelter to the poor. In Olga Tellis case (supra), the Constitution Bench had considered the right to dwell on pavements or in slums by the indigent and the.same was accepted as a part of ricrht to life enshrined under Article 21: their ejectment from the place nearer to their work would be deprivation of their right to livehhoorl."

XXX XXX XXX It would, therefore, be clear that though no person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a.public purpose, the State has fhe Constitutional duty to provide adequate 2010:DHC:12439 wealth and resources for settlement of life and erection of shelter over their heads to make the fight to life meaningful, effective and fruitful. Right to livelihood is meaningful because no one can live without means of this living, that is the means of livelihood. The deprivation of the right to life in that context would not only denude life of effective Content and meaningfulness but it would make life miserable and impossible to live. It would, therefore, be the duty ofthe Staite. to urovide^ riulit to shelter to the poor and indioent weaker sections of the society in XXX XXX XXX

25. Article 19(l)(e) obthe Constitution provides to all citizens fundamental rights to travel, settle down and reside in any part of the Bharat and none have right to prevent their settlement. Any attempt in that behalf would be unconstitutional. The Preamble of the Constitution assures integritv of the nation, fraternity among the people and dignity of the person to make India an integrated and united Bharat in a socialist secular democratic republic. The policy or principle should be such that everyone should have the opportunity to migrate and settle down in any part- of Bharat where opportunity for employment or better living conditions are available and. therefore, it would be unconstitutional and impermissible to prevent the persons from migrating and settling at places where thev find their livelihood and means of avocation. It is to remember that the Preamble is the arch of the Constitution which accords to eyeiy. citizen of India socio-economic,, and political justice, liberties, equality of opportunity and of status, fraternity,.dignity of person in an integrated Bharat. The fundamental rights and the directive principles and the preamble being trinity of the Constitution. the right to residence and to settle in any part of the country is assured to every citizen The right to life enshrined under Article 21 has been interpreted by this Court to include meaningful right to life and not merely animal existence as elaborated in several judgments- of this Court including Hawkers' case, Olga Tellis case and the latest • Chameli Singh's case and host of other decisions which need no reiteration. Suffice'it to state that right to life would include • right to live with human dignity. As held earlier, right to residence is one • of the minimal human rights as fundamental fight. Due to want of facilities and 2010:DHC:12439 opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the state, as its economic nolicv. to provide socio-economic justice to minimise inequalities in income and in opportunities and status. It nositivelv charges the State to distribute its laraess to the weaker sections of the society envisaaed in Article 46 to make socio-economic justice a. reality, meaningful and fruitful so as to make the life worth livina with dignity of person and eaualitT of status and to constantly improve excellence." (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 to life, guaranteed as a fundamental right under Article 21 of the Constitution of India. In the several binding judicial precedents noticed hereinabove, the Supreme Court has further held that such violation may also adversely impact and violate the right to occupation and profession under Article 19(l)(g) of the. Constitution ofIndia which is the other basic human right ofthe petitioners inextricably involved in the instant case. International perspective - conventions; norms: miidinrr 'mlncioles and their auulicabilitv to presentcase

30. So far as right to adequate housing and its protection is concerned,there is no siDecific domestic legislation on the issue. In the aforenoticed pronouncements the Supreme Court has|^^^^ been of the view that such right can also be sourced as a basic human right under the international human rights law.

31. This court has had occasion to examine the source of the right to housing, shelter and protection against forcible evictions by residents ofJhuggiJhopri clusters(hutments)in the judgments dated 14"^ July,- 2006 in W.P.(C) No. 5007/2002 reported at MANU/DE/9327/2006 entitled. iwp. DBA and also the pronouncement'of this court dated ll"\February, 2010 in WcP,(C) No.. 8904/2009 Sudama Siimli &.Ors. vs ^ Aim with connected writ petitions. In this regard, in these judgments as well, reference was made to the following international & regional covenants -and declarations on the right to adequate housing which declare that provision of housing as well as the protection against forced eviction is the unequivocal responsibility of the state (i)The n makes the following statement: "AiTicle 25.[1] Everyone has the right to a standard of livincr adequate for the health and well-being of himself and his.family including food, clothing, housing and medical care and necessary social services, and the right to security in the event of uilemployment, sickness, disability, vhdowhood, old age or other lack of livelihood in circumstances beyond his control."

(ii) The Iiiteriiatioiial Coiivejition on the EPmhiatloii ofAllforms ofRacial Discrimination, 1965 contains the following: "Article 5, In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to 2010:DHC:12439 in all its forms and to guarantee,the right of. everyone, without distinction as to race, r. colour, or - national or ethnic origin, to ^ equality before the law, notably in the enjoyment ofthe following rights: xxxx

(d) Other civil rights,in particular xxxx

(hi)The right to housincr." (hi). Article H of the Ecoiiomic, Social and Cultural Elcflits adopted by the General Assembly of the United Nations on the 16"' of December, 1966 further codifies the right to housing and states thus:, "Article 11 "1. The State Parties to the present Covenant, recognize the right of everyone to an adequate standard of IMiiq for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions India has signed and ratified this covenant and is thus a state party to it.

(iv) Part,II ofthe Declaration ofSocialProur&ss states thus:

"Social progress and development shall aim at the continuous raising of the material and spiritual standards of living of all members of society, with respect for and in compliance with human rights and fundamental freedoms through the attainment of the following main goals:, xxxx, n. Article 10(f) The provision for all, particularly persons in low-income groups and large families, of adequate housing and community services.

(v) Part III Section (8) of the Vancouver i Settlements, 1976mandates as follows

8. Adequate shelter and services are a basic liuinan- right which places' an' obligation on governments to ensure their attainment by all people, beginning with direct assistance to the least advantaged through guided programmes.of self-help and community action. Governments should endeavor to remove all impediments hindering attainment of these goals. Of special importance is the elimination of social and racial segregation, inter aha, through the creation of better balanced communities, which blend different social groups, occupation, housing and amenities." The Recommendations for National Action in the contains inter, aha also the following

(vi) Article 8.[1] of the t 19H6also states that:

1. States should undertake, at the nutional level, all necessary measures for the realization of the right to development and shall ensure, inter-alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income...."

(vii) The above objectives were also reinforced the declaration made in the by the United Nations when it spoke of this right of all individuals in the following terms: "a real home...one which provides protection from the elements; has access to safe water and sanitation; provides for secure tenure and personal safety; and within easy reach of centres for employment, education and health care; and is at a cost which people and society can afford."

(viii) On. the issue of forcible evictions, the extracted hereafter:

"(1) In its General.Comment No. 4, (1991), the Committee, observed that, all persons should possess a degree of securitv of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirement ofthe Covenant (2) The international community has long recognized that the issue offorced'evictionsus a serious one. In 1976, the United Nations Conference on Human Settlements noted that, special attention should be paid to "undertaking major clearance operations should take place only when conservation and rehabilitation are not feasible and relocation measures are made. In 1988, in the Global Strategy for Shelter to the.Year 2000, adopted by the General Assembly in its resolution 43/181, the "fundamental obligation (of Government) to protect and improve houses and neighborhoods, rather than damage or destroy them" was recognized. Agenda 21 stated that "people should be protected by law against unfair eviction from their homes or land". In the Habitat Agenda Governments committed themselves to "protecting all people from, and providing legal protection and redress for, forced-evictions that are contrary to the law, taking human rights into consideration; [andl when evictions are. unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided". The Commission on Human Rights has also indicated that "forced evictions are a gross violation of human rights " 7 dated 2mii May 1997 on the right to adequate housing (Article 11.[1] of the Covenant Forced Evictions) by the Commissioii is important' and is 2010:DHC:12439

(x) Annexurerl of the lays down some basic principles and guidelines on development based evictions and displacement. It provides the guidelines on relocation ofthe displaced which read as follows: "52. ar.r.mnmodatJon.. or ' restitution eviction, except in cases offorce majeure. At a minimum, regardless of the circumstances and without discrimination, competent authorities shall ensure that evicted nei-sons or groups, especiallv those who are unable to provide for themselves, have safe and secure access to:(a). essential food, potable water and sanitation;(b) basic shelter and liousinm (c) appropriate clothing; (d) essential medical services; (e) livelihood sources; (f) fodder for livestock and access to common property resources previously depended upon; and (g) education for children and childcare facilities. States should also ensure that members of the same extended familv or communitv are hot separated as a result of evictions. XXX

55. Identified relocation sites must fulfil the criteria for adeifuate Iiousiim according to international human rights law. These include: (a) securitv of tenure; Xxx

(c) affordable boiishm-,'

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

(d) No.affected persons, groups or communities shall suffer detriment as far as their human rights are concerned, nor shall their right to the, continuous improvement of living conditions be subject to infringement. This applies n eguallv to host communities at resettlement sites, and affected persons, groups and communities subiected to forced eviction: xxxx 57.- EeliaMIitatiom policies.must.include programmes designed for • women and marginalized and vulnerable groups to ensure their equal enjoyment of the human liousmcf, food, water, health, education, work, security of the nerson, security of the home, freedom from cruel, inhuman or degrading treatment, and.. freedom of movement. 5'8. Persoiis^ ff roups or communities affected'by an'eyiction should not suffer detriment to their human rights, including their right to the progressive realization of the right to adequate housing. This 'applies equally to host compaunities at relocation sites." (Emphasis' supplied) 3,2. The UN Committee" on Economic, Social Cultural Rights in May, 2008,. in its Observations on India, called upon the Indian crovernment particularly to address the issue of rising homelessness, including the need for disaggregated data on the homeless. In the observations relating to India as a state party, it specifically stated as foliows:- "30. The Committee is concerned about the lack of a national housincr nolicvr which particularly addresses the needs of the disadvantaged and marginalized, individuals and groups, including those living in slums who are reportedly growing in numbers, by,providing them with low-cost housing units. The Committee also regrets that sufficient information was not nrovlded by the State party on the extent and causes of homelessness in the State-party.. The Committee also requests the State party to provide,in its next periodic report, detailed information on homelessness in the State party and the extent of inadeguate housing, disaggreaated by, inter alia, sex, caste, ethnicity and religion.

70. The Committee urges the State party to address the acute shortage of affordable housing by adopting a,. national strategy and a plan of action on adequate 2010:DHC:12439 n • housing units, especiallyfor the disadvantaged and low U income groups, including those living in slums. In this ' n connection, the Committee b ofits oMma.Uoiis underArticle 11 ri 's liousiiiff ^policies. The Iiomelessiiess in the'State uartv mid the'extent sex, caste, etiiiiicitv mid relmioii.

71. The Ca enforce laws and i /;, in accordance n with the guidelines adopted by the Committee in its. General Comment No.7 on-forced evictions (1997). The Committee also recommends that, prior to implementing deyelopment and urban renewal projects, sporting events and other similar activities, the State nartv should undertake open, particinatory and meanincrful consultations with affected residents and communities. In this connection, the Committee draws the attention of the State party,to its General Comment No. 4 on the right to adequate housing (1991) and further requests the State party to provide ' information in its next periodic report on progress achieved in this regard, including disaggregated statistics relating to forced evictions." 33.. The above narration would show that the international covenants and instruments refer to basic human rights. All of them have recognized ricrht to shelter as a basic human ricfht, essential for survival. It needs no elaboration that the concept of human rights emanates from the ancient doctrine.of natural rights based on natural law. The experiences of the Post- Second World.War which brought forth the International Charters and Conventions leading to the emergence of the present day human rights. The first documented use of the exjDression 'human rights' is to be found in the Charter of the United Nations, adopted on 2S^M^ne,1945. This Charter was of course not binding but stated that it was only an ideal to be later developed. By adopting the. Universal Declaration of HmTiRTi Rights in December,n 1948 the UN General Assembly took the concrete step offormalising the,various human rights. This was followed by the International Bill of Rights. The deficiency in the binding nature ofthe declaration was removed by the U.N. General Assembly by adopting 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 Ricrhts which, was addressed to the states to implement them by legislation. These covenants came into force in December, 1976 after ratification by the requisite number of member states. India is a partv to both these covenants which were adopted on 16"'December, 1966 and bind this countrv..34. The above narration shows that homelessness may result from several causes including natural disasters; development projects, economic deprivation as well as human rights violations. International law terms persons who stand displaced from their countries as "refugees" and recognizes that they are entitled to protection from being returned to places where their lives or freedom could be.threatened.

35. n At the same time there are growing instances internationally of persons and even communities who are compelled to abandon homes on account of threat of imminent violence or stand forcibly evicted by use of violence and compelled to relocate to other places even within their own * country. Tliey cannot return to their homes within 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 desciibed bylearned counsels for the petitioners. In international parlance, peisons compelled to relocate within the boundaries of their own countries stand- categorised as- 'Interimlly Displaced Persons"(abbreviated as'IDPs hereafter).

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

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

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

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

40. So far as housing of IDPs is concerned, these guidelines contain the following important provisions

1. National authorities have the primary duty and responsibility to provide iprotection and humanitarian assistance to internallv displaced persons within their iufisdiction.

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

2. The authorities, undertaldnp such displacement shall ensure, to the greatest practicable extent, that proper accommodation is provided to the displaced persons, that such displacements are effected in Displacement shall not be carried out in a manner that violates the rights to life, dignity, liberty' and security of those affected. XXX 1-Every internally displaced person has the ricrlit to liberty of movement and freedom to choose his or her residence. 2".In particular, internally displaced persons have the right to move freely in and out of camps or other settlements. ' ' - XXX Internally displaced persons have: {^The..riuht to seek safety in another (b)The right to leave their country; n (c)The right to seek asylum in another country; and [5)The rmlit to be protected a.Qa.iiist fo XXX satisfactory conditions ofsafety nutrition, health and hygiene, and that members of the same family are not separated.

3. If displacement occurs in situations other than during the emergency stages of armed conflicts and disasters, the following guarantees shall be complied with: (a)A specific decision shall be taken by a State authority empowered bylaw to order such measures; (b)Adequate measures shall be taken to guarantee to'those to be displaced full information on the reasons and procedures for their displacement and, where applicable, on compensation and relocation; (c)The free and informed consent of those to be displaced shall be sought; (d)The authorities concerned shall endeavour to involve those affected, particularly women, in the planning and management of their relocation; (e)Law enforcement measures, where required, shall be carried out by competent legal authorities; and (f)The right to an effective remedy, including the review of such decisions by appropriate judicial authorities, shall be respected. 2010:DHC:12439 l.All internally disiplaced. uersons have the right to an aclecruate standard ofIMna:

2. At the minimum. recrardiess of the competent authorities? shall provide ! internallv displaced persons with and ensure safe access £0: (a)Essential food and potable water;. (h)Basic shelter and lioiismnj: (c)Appropriate clothing; and (d)Essential medical services and sanitation.

3. Special efforts should be made to ensure the full participation of women in the planning and distribution of these basic supplies.', XXX Principle 21 l.No one shall be arbitrarily deprived of property and possessions..The property and possessions of internally displaced persons shall in all circumstances be protected,in particular, against the following acts: (a)Pillage; (b)Direct or indiscriminate attacks or other acts of violence;.(c)Being used to shield military operations or objectives; (d)Being made the object of reprisal; and (e)Being destroyed or appropriated as a form of collective punishment. ^.Projpeitv and possessions left beliiiid by appropriatioiir occupation or use, XXX providiiup liiimtmitariaii ' assistance to.interiiallv displaceed perso. Eislies nitli national aiitliorlties. XXX Secti oil F, PrincipLes relating to return. resettlemieiit anid relntetgration MrFill€

1. Coi. npeteiit autliori 'ties have the primarv duty ai. id responslMlitv to establish condit ions. as wel I as provide tl 'le means, which iillow interna. llv displaced persons - to rtdiirn 5, 2010:DHC:12439 Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.. 2.Special efforts should be made to ensure the full Darticipation of internally displaced persons in the planning and management of their return or resettlement and reintecrration.

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

2. Competent authorities have the respoiisiMIity to assist returned and/or. iiiteriially displaced persons to recover, to the extent possible, their property they left behind or were dispossessed such property mid possessions is not these persons in obtaining compensation ' or another

41. The United Nations Charter thus establishes the 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 ofthe rights. It affirmatively lays down the common standards of achievement for all peoples and all nations. It consequently has an effect wliich is similar to a treaty. Further every nation who is a signatory to the aforenoticed International Covenant on Economic, Social and Cultural Rights ('ICESR') must refrain from acts which would.defeat the object and purpose ofthe covenant. The preamble to 2010:DHC:12439 the ICESCR establishes that "the ideal of free human beiiig^^^ enjoying freedom from fear and want can only be achieved if-^ conditions are created whereby everyone may enjoy his economic, social and cultural rights.as well as his civil and political rights".. '. n '. Article 11 of this covenant emphasises that the state parties recognises' the right of every person to an adequate standard of living which include adequate housing and continued improvement of living conditions. The right for people to be free from want is the very foundation of the ICESCR.

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

43. The aforenotic.ed international conventiorls which exist as well as the Guideline.Principles for IDPs therefore recognize that shelter and housing is a basic human right of every individual which is the bare minimum to be provided to intemally displaced persons. These Principles also emphasise all rights of displaced persons and caste a mandate on the.national authorities ■concerned of. their.primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction which includes their right to 2010:DHC:12439 safety as well as protection against, forcible return and resettlement in a place where their life, safety, libeily and or^' health Would be ensured. The.Guiding Principles have been evolved after an elaborate consultative process.

44. Before proceeding any further, it is necessary to examine the bindingness of,the above principles on the courts,in India. The extent, manner and applicability of International ' Conventions and treaties in interpretation and expansion of rights, have been authoritatively considered and are well settled by a catena of binding precedents ofthe Supreme Court. In the authoritative pronouncement reported at JT200H(7)S'C11, 200>S(9)SCALE69■ Entertainment Network (India) Ltd, Vs, Super Cassette Industries Ltd, the • Supreme Court traced the evolution, of the jurisprudence on the issue under cdnsideration in paras 48 to 54 which may usefully be extracted and read as follows "48. Beginning from the decision of this Court in Kesavananda ' Bharati v. State "of Kerala MANU/SC/.0445/1973 PAIR 1973 SC 1461, there is indeed no dearth of case laws where this Court has aiDplied the norms of international laws and in particular the international covenants to interpret doinestic legislation. In all these cases,. this Court has, categorically held that there would be no inconsistencv in the use of international norms to the domestic legislation, if bv reason thereof the tenor of domestic law.. is not breached and in case of anv such inconsistencv, the domestic legislation should nrevail. In lagdish Saran and Ors. v. Union of India MANU/SC/0Q67/1980: (1980) 2 SCR 831, it was observed:, • "It is also well-settled that interbfetation of the Constitution. of India or statutes would change from. time to time, Beiiia a livii. IS onctoina and with -the nassaete time, law must cliantje, _ -New riulits 2010:DHC:12439 constitutional scheme. n Horizons of constitutional laware expanding."

49. In the aforementioned judgment, this Court referred to a large number of decisions for the purpose of treaties and conventions. Yet again in Indian Handicrafts Emporium and Ors. v. Union,of India MANU/SC/0640/2Q03: AIR 2003 SC 3240. this Court considered the Convention. on International Trade in Endangered Species(CITIES) and applied the principles of purposive constructions as also not only the Directive Principles as contained in Part IV of the Constitution hut also Eundamental Duties as contained in Part IVA thereof. Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. MANU/SC/0293/1983: (1986) 1 SCR 594. Rattan Arva and Ors. v. State of Tamil Nadu and' Anr. MANU/SC/Q550/1986 n: (1986) 2 SCR 596.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: "There, cannot be any doubt whatsoever that a law which was at one • point of time was constitutional may be rendered. unconstitutional n because- of passage oftime. We may note that apart from the decisions cited by Mr. Sanghi, recently a similar view has been taken in Kapila Hingorani v. State of' Bihar (supra) and John Vallamattom and Anr.

V. Union ofIndia(supra)."

50. These judgments were referred to in the decision of Liverpool and London S.P. and I Asson. Ltd.

V. M.V.. Sea Success I and Anr. MANU/SC/0951/2003:

(2004)9 see 512, wherein this Court observed that < Z inteivretative clmnties, if aiiy, must,.thus scenario. Liverpool also referred for the proposition that the clmjioiim global scenario should be kent ill'mind Imviim regard to the fact that there does 'not_ exist any nrimary'act toucMnaj the subject and in absence ofany,domestic lemslatioii to the was however omned that the same could mean that it restricted the jurisdiction.of

51. Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed bv the Supreme Court in' a plethora of cases inter alia The State of West Bengal > MANU/SC/-0038/2004 ■: (2004) 2 66 ITR 721(SO. In Pratap Sinali v. State of Tliarkliand and Anr. MANU/SG/0075/2Q05: 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 Inc. v. Hindustan Copper Limited MANU/SC/8146/2006 •;.(2006) 11 SCC 245: State of • Punjab; State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. MANU/SC/0961/2003: (2004) 11' see 26 and Anuj Garg and Ors. v. Hotel Association of India and Ors. MANU/SC/8.173/2007: ■ - AIR 2008 SC 663'. -

52. However, applicabilitT of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptabilitv of the Conventions in question. If the country is a' sianatorv thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed. upon undertaking a great deal of exercise upon givina an opportunitv of hearing to both the parties and filtered at several levels as also upon taking into consideration.. the different societal conditions ill different countries bv laving down the minimum norm, as for example, the ILO Conventions, the couirt would freelv: avail the ', benefits thereof. Those Conventions to which India mav hot be a-signatory but have been followed bv wav of enactment of new Parliamentarv statute or amendment to the existing enactment, recourse to International Convention is permissible.

53. This kind of stance is reflected from the decisions in PUCL v. Union. of India MANU/SC/0274/1997: AIR. 1997 SC 1203, Tohn. Vallamattom v. Union of India MANU/SC/0480/2003: AIR 2003 SC 2902, Madhu Kishwar v. State of Bihar. MANU/SC/Q468/1996 ■: AIR 1996 SC 1864, Kubic Darusz 'v. Union of India MANU/SC/042-6/1990: 1990 CriLT 796, Chameli Singh v. State of Swaminathaswami Thirukoil MANU/SC/0441/1996: (1996) 1 SCR 1068, Apparel Export Promotion Council. V. A.K.. Chopra MANU/SC/0014/1999: (1999) 1. LLT.. 962 SC, Kapila' Hindorani. v. State of Bihar MANU/SC/0403/20Q[3]: (2003)

III LLT 31 SC, State of Punjab and Anr. v. Devans Modern Breweries and Anr. ■ MANU/SC/0961/2003:■ (2004) 11 SCC 26 and Liberpool &.London S.P. &: I Asson. Ltd. v. M.V. Sea SuccessIMANU/SC/0951/2003: (2004) 9 SCC 512."

45. With regard to the application of International conventions and treaties in India, the Supreme Court laid the following principles in para 47 of the judgment "111 interpreting the domestic/municipal laws, this court has extensively made use of International • law inter aha for the following purposes;

(i) As a means ofinterpretation;

(ii) Justification or fortification of a stance taken;

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

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

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

(vi) To fill gaps in law."

46. In AIR 1997SC 3011 Vislmka and others Vs. State of Rajastlmii and Others, the court was concerned with a writ petition filed,for preservation and enforcement of the right to gender equality and fundamental rights of working women under Articles 14^ 19 and 21 of the Constitution of India, Section 2 of Protection of Human Rights Act, 1993 and the entitlements of worldng women under the Convention on Elimination of All Forms of Discrimination Against Women. There was no specific domestic legislation on the subject. With regard, to. the importance and applicability of international conventions and treaties, the court held as follows - "7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(l)fu) and 21 of the Constitution and.the safeguards against sexual harassment implicit therein. Anv' International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meanincr and content thereof, to promote the object of the constitutional cruarantee. This is implicit from Article 51(cl and the enabling power of the Parliament to enact laws for 2010:DHC:12439 norms by virtue of Article 253 read with Entiy 14 o the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the. Parliament enacts legislation to expressly provide measures needed to curb the evil.".

47. ' In (1999) 1 see - 759 Apparel Expoi eoimcil vs. A.K. eiiopra, also the Supreme Court was dealing with the case of sexual harassment at the place of work which vitiated the- working environment and observed that the international instruments cast an obligation on the Indian State to gencler sensitise its laws and that the courts are under an obligation. to see that the message;of the international instruments is not allowed to be drowned. The Supreme Court again emphasised that the courts must never forget the core principles embodied in International Conventions and Instruments and reiterated the above principles. 48.- In (2003) 6 SCe 1 Kapila Hingorani Vs. State oi Bihar,,the Apex court stressed on the importance of respecting International Treaties and Conventions while,interpreting the Constitution and domestic law so as to effectuate the recognised rights and observed as follows- "47. It is also well-settled that a statute should be interpreted in the light of the International Treaties and "Conventions. In Chairman, Railway' Board, and Ors. V. Mrs. ' Chandrima Das and Ors. MANU/SC/0046/2OOP: 2000CriLJ1473 this Court.stated the law thus:- "24. The International Covenants' and Declarations as adopted bv the United Nations have"to be res"Dected bv all signatorv States and the meaning given to the above words in those Declarations'and Covenants have to be • such. as would help in effective 2010:DHC:12439 applicaMlitv of the.Universal Declaraitimi Hiimaji Rights and the Imve to he"read,,ii the domestic mrisgrudeiice." '49. As noticed above, right to residence and to settle in any part of the country is assured to every citizen as a fundamental right under Article 19(l)(e) of the Constitution of India. (Ref: 1997(11)see 121 Aliiiiedabad Muiilcipnl Corporation vs, Nawab Kliaii Gulab Khaji'& Orsi) 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 3SCC 456:AIR 1996 SC 114 U.P, Avas Evaiii Vikas Parisbad & Ann Vs,' Friends Co-operative Housing SocietyLtd,&Aiir.)

50. In the instant case also there is no specific domestic legislation at all for internally displaced persons. As noticed hereinabove, there are also no International Conventions governing rights of such persons. It is now an accepted rule of judicial construction that regard must be had to international conventions, norms and guiding principles for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. 5'1. It is noteworthy that there is no specific law, rule, c regulation or instrument providing for treatment of IDPs or setting out any minimum standards for their protection, rehabilitation and relocation. The Guiding Principles on internal Displacement reiterate the veiy right to shelter constitutionally guaranteed and recognized as a basic human 2010:DHC:12439 consolidate and fill gaps in national and international law relating to sucli. displaced persons. Tliey also provide a valuable benchmark for what must be ensured as part of the basic human rights security of such persons and would guide consideration of the rights ofthe present petitioners. 52.. It has been observed by the. Supreme Court in (2003)6 see 1 Kapila Hiiifforaiii Vs, State of Bihar that indisputably, the state parties to the International Covenant on Economic, Social & Cultural Rights were to take appropriate steps to ensure realisation of this thought. So far as the present case is concerned, this covenant specifically states the right of everyone to an adequate standard ofliving including housing.

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

54. The petitioners are members of the larger group from their community which stands forcibly evicted from one part of the country rendering them homeless and resourceless. They are without resources at the place of their relocation and are faced with the threat of forcible eviction from their accommodation..By way of these writ petitions, the petitioners n seek protection and enforcement of their fundamental right to life which includes shelter. The international conventions Id recognise shelter as a basic human right. The Guiding Principles reiterate the same rights and responsibilities of the state so far as IDPs are concerned. Consideration of the petitioners' rights, therefore, would necessarily involve ensuring the objectives and declarations made in the above international instruments especially those endorsed by India reiterated by the Guiding Principles for IDPs. The Protection ofHuman EightsAct, 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 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 'riffhts relating to life, liberty, equality and dignity ofthe individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courtsin India'. The expression 'international covenantd 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 2010:DHC:12439 International Covenants, therefore, stands recognized by thi; legislation in India. The said Act was made by the Parliament having regard to the changing social realities and growing Concern in India about issues relating to human rights with a view of bringing about greater accountability and transparency in enforcement of the laws of the nation.

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

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

58. On behalf of the respondents, it is urged that the aiiotinent of the quarters to the petitioners (or their predecessors) stands canceiied. They are therefore in unauthorised occupation ofthe Government acconimodation 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, butfor reasons totally beyond control ofthese petitioners. The writ petitioners have stated that their homes in Kashmir have either been destroyed of rendered inaccessible to them primarily on account of the inability of the respondents to protect the same. They do not have adequate.means to acquire any property in Delhi. It is the petitioners contention that the 2010:DHC:12439 pension admissible to tliem does not enable tliem to afford rented accommodation or acquire their own houses. The petitioners have submitted that the'respondents have permitted similarly situated persons to continue in the allotted ?! accommodation. Reliance is also placed on orders of the Supreme Court, this Court and the Central Administrative Tribunal also prohibiting eviction of similarly placed persons from allotted accommodation. In this background, the petitioners assail also the failure - to consider their requests to the respondents to exercise discretion vested in them under the Allotment of Government Residences (General Pool in Delhi) Rules, 1963 to permit the, petitioners to continue to occupy the allotted premises. It is urged that this refusal was discriminatory, arbitrary and has failed to consider the relevant circumstances.

60. It is contended by the petitioners that in these facts, they are not in unauthorized occupation of the quarters and that the respondents could not have taken recourse to j)roceedings under the Public Premises Act, 1971 which would have the effect of ousting them and their families from their only residence without taking steps of maldng provision of reasonable alternatives. The contention is that the entire action taken by the respondents and implementation of the threat of forcible eviction would result in violation- of the •fundamental and basic human rights of the petitioners and, therefore, is unconstitutional, -without jurisdiction and Completely illegal. Bindincr judicial precedents 61.. So far as the conditions which were in existence in the state ofJammu & Kashmir, the restoration of normalcy and the circumstances in which they are occupying these cjuarters are concerned, reliance has been placed by the petitioners on the proceedings and orders passed in several similar cases prior hitherto which have been, completely ignored by the respondents. Attention is drawn to the orders of the Court ofIndia.in SLP(C) No.7639/1999 SliriJ.L Anr.'Vs. State of Jammu &Kashmir& Ors. ShriJ.L. Ko'ul & the other petitioners in this case were Kashmiri pandits who were employees of the State Government and being State Government seryants, had been allotted residential accommodations in Jammu between 1989-90. Their houses in the valley were either destroyed or burnt down by'militants. Even though they had retired from service, these petitioners were permitted to retain the government accommodations in Jammu for safety reasons. Such a step was considered necessary 'and inevitable by the State Government as the atmosphere was not congenial for the appellants to return to the valley, more so when they had lost their respective houses.

62. It appears that other state government employees awaiting allotment of official accommodation, could not get the same for the reason that these retired persons continued to occupy the official accommodation. They filed a writ petition before the High Court of Jammu and Kashmir complaining against the failure of the' State Government to provide them Court of Jamniu & Kaslimir liad allowed the writ petition and passed ajudgment on 24'^''January, 1997 directing eviction of all those persons who had ceased to be government servants for any reason but were still occupying the state accommodation. The learned Single Judge had also directed that the persons who were not in government service but required Government accommodation because of security reasons, should be tried to be accommodated within one complex so that their security is ensured, reducing the burden on the,state which would have to incur lesser amountfor 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"' ofJanuary, 1997 by a letters patent appeal. This appeal was dismissed by the Division Bench by a judgment dated 14"' March, 1997, however, giving an opportunity to the appellants to approach the appropriate authority for relief. In this background, these persons led by Shri J.L. Koul, filed the above special leave petition before the Supreme Court. On a consideration of the matter, an interim order order dated 11"' April, 1997 was jDassed 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 recfuired counsel representing the State of Jainmu & Kashmir to ascertain from the State Government as to whether 2010:DHC:12439 tlie petitioners can be put back in to the houses owned by them ill the Kashmir Valley and to ensure protection of their persons as also their properties.

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

66. It is noteworthy that the Supreme Court had also passed an order on 3'''^ December; 2008 (in 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, on 17"' September, 2009, the Supreme Court directed the Chief Secretary, of the State to file a personal affidavit as to what steps had been taken pursuant to the orders of the court.

67. An affidavit dated 6"' October, 2009 was thereafter filed by the Chief Secretary in the case. The appeal was disposed of by a final judgment on 27"' October, 2009 which stands reported at 2009 (1) AD SC 253 J.L. Koul & Others State of 2010:DHC:12439 migrants is concerned,the affidavit dated 6"' October, 2009 ha been considered in para 7 of the judgment in the following terms "7. In pursuance of tlie said order,the'Chief Secretary has filed the affidavit dated 6.10.2009. In the said affidavit it has been disclosed that out of 54 appellants 23 had already handed over the Government accommodation to the State Department and'the same had been allotted to the Government employees. Only 31 migrants/retirees are presently in occupation of the Government accommodation. It has further been clarified that there are 37,280 families who have been recristered for the relief including the accommodation and out of them only 5,000 families could be provided the accommodation in the camps. However, it had been undertaken that the Government would provide such facilities to all Kashmiri migrants till thev are residing at the present places. The relevant part of the affidavit reads as under:- "5. That it is further submitted that Govt. formulated a package for return and rehabilitation of Kashmiri Migrants which involves an outlav of R[5].1618.4-0 crores. This is for the first time since 1990, that Govt. of India has come mj The policy has been framed on the recommendations of a by Govt. ofIndia to suggest various confidence building measures in the J&K State. 'While framing the policy various needs of the migrants have been taken into consideration, such as housing, education, revival of Agriculture and Horticulture land, employment etc. The details of the package announced on 5"^^ June, 2008 are reproduced as under:i) Return and Rehabilitation Package of Kashmiri Migrants: The total package involves an outlay of Rs.1618.40 crore. The of the package are as under: (a) i) Assistance @ Rs.7.[5] lac for fully or partially damaged house left behind by migrant."

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

(hi) Rs.7.5. lac for purchase/construction of a house in Group Housing Societies for those who have sold their properties during the period after 1989 and before the enactment of "The J&K Migrant Immovable Property (Preservation, Protection and Restraint of Distress Sale) Act, 1997" on 30.5.1997. (b) Transit Accommodation: Construction of transit accommodation at three sites (a) Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, Rs.1.0.0 lac per family towards rental and incidental expenses to those families who may not be accommodated in transit accommodation.

(c) Continuation of Cash Relief to Migrants:

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

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

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

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

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

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

12. That it may be further submitted that the State Cabinet vide its decision No.130/11/2009 dated 1.10.2009 has approved the package for Return and Rehabilitation of Kashmiri Micrrants to Kashmir Vallev. n liowever, with regard to 2010:DHC:12439 implementation of employment scheme a Committee has also been ordered to be constituted to go into the legal and other implications for making recruitments of the migrant youth against various posts before,the said scheme is formally notified. The Committee has to submit its report within a period oftwo weeks.

13. That the State Government is keen to rehabilitate the Kashmiri Migrants in the Kashmir valley and shall provide every type of assistance for their return and rehabilitation. The process for the rehabilitation in valley has been initiated in lune 2008 after Govt. of The Supreme Court observed that this case had remained pending before it for twelve years and that the court had been insisting upon the state to frame the scheme of rehabilitation of the appellants and particularly for providing them accommodation. Placing reliance on the above affidavits/undertakings given by the respondents, the' Court / further observed that the authorities have framed the rehabilitation scheme and forpmplementation ofthe same,it has got sufficient resources also. In this background, the Supreme Courtissued the following directions ' "9. In view of the.above affidavit/undertaldng given by the State and after hearing Mrs. Purnima Bhat Kak, Ld. Counsel for the appellants and Mr. Anis Suhrawardy, Ld. Counsel for the State, we dispose of, the appeal with a pious hope that State shall take all endeavours to relmMJitate the persons who have been victim off terrorism and till the State is to 31 auuellaiits-retirees/oustees. possession on this date,"

68. It is noteworthy that- the only difference between the petitioners before the Supreme Court and those who are before 2010:DHC:12439 related to persons who.were retired employees of the Stat'^ Government while the present petitioners are ail employees of the Central Government and its departments. However, the petitioners before the Supreme Court and the present writ petitioners are'identically placed victims of the militancy and the rights asserted by both sets of the petitioners and issues raised by them are identical.

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

70. Reference requires to be also made to a judgment passed on 2°^ August, 2006 in WP(C)No,11742/2005 entitled PIC Haiidoo Vs. Estate Officer & Aiir. by this n court which is reported at 132(2006)DLT672. Shri P.K. Handoo was also a Kashmiri Pandit and part of the minority community in the Kashmir valley..An employee with the Intelligence Bureau of the Government of India, he had retired from the service on 31^'- July, 2004 whereafter efforts to cancel his allotment and evict him by way of proceedings under the Public Premises Act, 1971 had been undertaken. Sh. P.K.Handoo filed the writ petition assailing this action.and the eviction order dated 30"'June, 2005 passed against him in the proceedings by the estate officer and also sought issuance of n a writ of mandamus against the 2010:DHC:12439 which had been, allotted to him till such time, that Government made it possible for him to return to Srinagar or till suitable alternative accommodation is provided to him in Delhi.

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

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

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

73. In the above. judgment, the Central Administrative Tribunal also observed on violation of Article 14 by the respondents holding that "the state shall not by its act discriminate as between two individuals who are similarly 2010:DHC:12439 circumstanced." Thesefindings are also noticed in para 10><5^ thejudgmentin P.K. Handoo's case (supra).

74. I have - had occasion to deal with a similar issue in a judgment dated the 11'-'' ofAjpril, 2008 rendered in No.1065/2007 M,K, Koul Vs. Union ofIndia & Ors. In this case also the petitioner was a retired Kashmiri employee of the CentraT Government who could hot return to Kashmir for the same reason as the petitioners. Proceedings for his eviction were also initiated by the respondents under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. During the course of hearing on 7"'April, 2008, a queiy was put to counsel for the respondent in this,case in respect of the position with regard to the safety and security of the Kashmiri Pandits in the valley. The.position was revealed to be the same as before. In para 14 of the said judgment, consequently it was recorded that "the respondents are notin a position to ensure their safety and protection and as such, in case they are displaced from the accommodation which they are occupying, they willnotbe in a position to return to theirrespective homes' in the Kashmir valley". Consequently,the following directions were issued;- "15.. In this baclmromid. the n certainly cannot be permitted to nmmtam order of cancellation of the petitioner's allotment or to enforce the ©viction order which hasbeen passed against the netitioner or to the netitionersfrom the nreiiilses which

16. There is no doubt, that the petitioner was maldng payment of the normal licence fee while he was in service. Interest of justice and equity merit that the petitioner be required to make ijavment of the licence fee on the same basis till such time as the 2010:DHC:12439 ijropertv of the petitioner in their home State or are in a position to provide similar alternative accoinmodation to the petitioner or the petitioner nn acquires any other residential property in Delhi.

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

75. It is urged by learned counsel for the respondents that failure of the Government of India to challenge the orders.passed in WjFfCJ No, 11742/2005 entitled- P,K,IImidoo w. Estaite Officer & Anr.; \¥P (C) No.1065/2007 entitled M.K.KauI V, UOI & Ors, and the other cases are immaterial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex Court reported at II see 709 Col. B.J, Akkerft Vs, Ors. in support ofthis submission. 76.. It is noteworthy that Ool. B.J. AM^ara's case 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 Goveinment. In this background, the petitioner had.contended that the Government was estopped from recovering the amount 2010:DHC:12439 from him in view ofthose orders which had attained finalit}f^j[^ The Apex Court rejected the contentions and held that the Union of India would not be barred from resisting the subsequent writ petitions involving similar issues or challenging subsequent judgments of the High Court realising the seriousness or magnitude of the issues or financial implications. The position would be different only,if it is established that the Government had adopted a pick and choose method.only to avoid relief to the petitioner on account of mala fide or ulterior motives. It was held that principles of estoppeh res judicata, legitimate expectation or fairness in action were not attracted on the facts of the case. No,piea of violation offundamental rights was involved in Akkcira's case (supra). There can be no comparison with the facts ofAMi:arB's case(supra)with those ofthe present cases.

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

78. Mr. Jatan Singh, learned counsel appearing for the respondent No.l has contended that the decision to cancel the 2010:DHC:12439 allotments and to initiate the proceedings under the Public Premises Act, 1971 as well as the orders of the Estate Officer and the judgments of the Appellate Court are in terms of statutory provisions cannot be assailed by way of these writ petitions. ' Reliance is placed on the pronouncements of this court reported at {1995)IIAD Delhi293 Union ofIndia Fs, S.M. Aggarwal & 31 others-, 2900(55)DRJ57BMin Singh Vs. Union ofIndia & Aiir.-, AIR 1977. Delhi 268 Hardwari Lai Verma Vs. The Estate Offieer& Ors.in support.

79. This objection of the respondents ignores well settled first principles'oflaw. Merely because the impugned action is taken and order passed in purported exercise of statutory power would not render it immune from judicial scrutiny. The question as to manner in which such action and orders viz-a-viz their effect on fundamental rights will be examined, stands answered by the Supreme Courtin AIR 1978SC597;(1978)1 SCC248 Maiieka Gandhi Vs Union ofIndia and others. In this case, the court had made the following observations with regard to the impact of action taken under provisions ofthe Passport Act:- "Now, if the effect of State action on a fundamental right is direct and inevitable, then a fortiorari, it must be presumed to have been intended by the authority taldng the action and hence, this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether Section 10(3)(c)of the impugned order, made under it is violative of Article 19 (l)(a) or (g).",

80. The Supreme Courtfurther ruled that it is not necessary to assail the constitutional validity of the statutory provisions 2010:DHC:12439 under which the impugned order is made and that the coui would still be able to examine as to whether the order made in exercise of statutory power was invalid for the reason that it contravened a fundamental right holding as follows "But that does not mean that an order made under Section 10(3)(c))may not violate Article 19(l)(a) or (g). While. discussing the constitutional validity of the impunged order impounding the passport of the petitioner, we,shall have occasion to point out that even where a statutory provision emnowering an authoritv to take action is constitutionally valid, action taken under it may offend a fundamental right,and in that event, thoucrh the statutory provision is valid, the action may be void. It is true, and we must straightaway conceded that merely because a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights, it does not give a.carte blanche to the authority to make any order it likes so long as it is within the parameters laid down by the provision. Every offer made under a statutory provision must not only be within the authoritv conferred by the statutory provision, but must also stand the test of fundamental - rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental.rights, It is a basic constitutional. assumption underlying every statutory grant of power that the authoritv on which the power is conferred, should act constitutionally and not in violation of any fundamental'right. This would seem to be elementary and no authority is necessary in support of it."

81. In the above case, the Supreme Court held that even though the impugned order was within the terms ofthe relevant section, "it must nevertheless, not contravene any fundamental rights and ifit 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 objection to the maintainability of •7^ the present writ petitions is therefore misconceived and is rejected. n

82. An examination of' the order of cancellation of the allotment requires to be undertaken! The only rules relied upoii' in support of the power to permit occupancy of the quarters are the k Cancellation of the allotment has been effected under these very rules.

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

1971.

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) ofthe said statute reads as follows "unauthorised occupation", in relation to public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority(whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever."

86. So far as the proceedings for.eviction under the Public Premises Act 1971 are concerned, Sections 4 and 5 thereof deserve to be also considered. The relevant extract reads thus;ofeviction. - (1) If the estate officer is of opinion that.'any persons are in unauthorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue 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., "(2) The notice shall- (a) specify the grounds on which the order of eviction is proposed to be made; and (b) reciuire all persons concerned, that is to say, all persons who are, or may be in occupation of, or claim interest in,the public premises,-

(i) to show cause, if any, against the proposed order on before such date as is specified in the notice, being a date not earlier than seven days form the date ofissue thereof, and

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

5. Eviction of unauthorised occupants. - (1) If, n after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section(2)of section 4], the estate officer is satisfied that the public preihises. are in unauthorised occupation, the estate officer may make,an order of eviction, for reasons to be recorded therein, directing, that' the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation, thereof or any part thereof, and cause a copy ofthe order to be affixed on the outer door or some other conspicuous part of the public premises. (2),If any person refuses or fails to comply 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 ofthe period aforesaid, whichever is later, evict that person]from,and take possession of,the public."

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

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

89. While interpreting statutory provisions, the Supreme Court has also approved and apphed in a number of cases, the principle of "updating construction" while interpreting statutes as 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 Maharashtra vs, Dr PrafulBe Desai; (1997)5SCC482 CIT Vs,PoddarCement Pvte Ltde;(2000)8SCC 740BasavarajRe Patil vs. State of Kariiataka}. These principles have been noticed in (1996)2 SCC428State vs. SJ. Cboudlmryosidi read as follows "(2)It is presumed that Parliament intends the court to apply to n an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an uiDdating construction). While it remains law, it is to be treated as always speaking. This means in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law." At page (618-19), ofthe report,it is further noted that:- "In construing an ongoing Act, the interpreter is to presume that Farliament intended the Act to be applied aTahy future time in such a way as to give-effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions,- technology, the meaning of words, and other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is regarded as 'a living Act'. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future, and allow for it in the wording." It was,therefore, observed that an ongoing Act is taken to be always speaking stating that "All enactment offormer days is thus to be read today, in the light of dynamic processing received over the years, with such modification ofthe-current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials." n Thus, the courts have over the period of time applied this principle to interpret various terms and phrases including "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive"; "telegraph" to include "telephone"; "banker's book" to include "microfilm"; "to take note" to include "use oftape recorder"; "documents" toinclude "data bases"; "handwriting" was construed to include "typewriting" {Reh 1996(2) SCC 428 State Vs. S.J.CliaudlmryJ. IMotice in writing" in Section 138 of the Negotiable Instruments Act, were construed to include a "notice by fax"; {Ref: (1999)4 SCC 567 SIL Import USA Vs. Exim Aides Silk Exporters}. This principle of legal interpretation would sguarely apply to the construction to be placed on the provisions of Public Premises Act, 1971.

90. Because of the peculiar circumstances prevalent in the Kashmir valley, members of the minority community were targetted and singled out for hostility as a class in their home state. Admittedly, the state was unable to protect their rights or properties. '91. The state authorities,assessed the threat perception and danger to the lives to some of the petitioners who were bodily evacuated from their homes in the valley. The transfer of the 2010:DHC:12439 petitioners, (or that of the persons on whom they were dependent),to Delhi, which preceded the allotment of quarters, was thus compelled by the inability of the respondents to protect and ensure the right to life ofthe 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 properties of the petitioners in Jammu & Kashmir have either, been destroyed or, in' other cases, occupied by militants' or the majority groups in the state. On account of the inability of the Government to protect the lives and properties of the petitioners, despite the Constitutional mandate, the petitioners have been deprived' of their properties, are 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 supplied such need of the jDetitioners, absent any alternative with them, the 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 2010:DHC:12439 community but also largely because they represented the face of the Central Governmentin the valley as its employees. ' 95., It is important to note that the scheme noticed in the aforenoticed affidavit dated 6'^^ October, 2009 (filed by the Chief Secretary before the Supreme Court in J.K. Koul vs. Union of India (supra)-, talks of 'Return and RehaMlitatioii. 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 put of which only 5000 families have been provided accommodation. An undertaldng stood given to the Supreme Court that the government would provide such facilities to all the Kashmiri migrants till they are residing at the present places. Persons as the petitioners are not even covered under those,who are dealt with in this affidavit.

96. It is also noteworthy that the affidavit filed before the Supreme Court refers to a total package of the Central Government involvinCT 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 public money and the fate of the proposed facilities.n 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 2010:DHC:12439 fairness. No alternative at all has beeil made available to or offered to the petitioners even during the/hearings before this court. In the light of the well settled principles laid in the above precedents, the inevitable conclusion is n that the respondents. have not taken the relevant factors into consideration and have acted arbitrarily and unreasonably. The above discussion clearly manifests that the respondents have not acted fairly in discharge of their positive obligation and have not sufficiently engaged with the problems and difficulties ofthe 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, the respondents also admit their inability to ensure protection to the life and limb of the petitioners in case they were to return to the home state, let alone any measure of security for their continued residence in the place oftheir birth, in case they returned.

100. On behalf ofthe respondents,it has been argued atlength even in these proceedings that the Union of India has formulated • a package for return and rehabilitation' of the displaced persons. This by itself shows that the situation is not such that the petitioners are in a position to return to their homes. The respondents are clearly unable to ensure protection to the lives of the petitioners and their families or security in their homes. lOh. Mr.Jatan Singh,learned standing counsel for the UOI has 2010:DHC:12439 (55)DRJ57Bliim Singh Vs. Union ofIndia,&Anr. In this case, the petitioner had sought upgraclation of the accommodation allotted to him on grounds ofthe security covei which had been granted to him as a president of.a political party. A challenge was also laid to the eviction proceedings. It was held that the accommodation allotted to him was not liable to be upgraded. It is noteworthy that the petitioner in that case did not hail from the Kashmir valley. No plea that the petitioner could not return to his own accommodation on account of inability of the state to protect either his life or the property was putforth or considered. In the present case,the petitioners seek no upgradation of accommodation but only protection of their basic human right and the fundamental right to life. There is no parity at all between Bliini Singh's case (supra) and the present cases.

102. • It needs no elaboration that a judgment has to be examined in the context of the factual matrix which it decides. The judgment reported at {1995)'II AD Delhi 293 Union oi 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 have also placed reliance on the pronouncement of this court reported at AIR 1977Delhi 258 Hardwarilal Vernia Vs. The Estate Officer& Ors. wherein 2010:DHC:12439 merely a licencee. There can be no dispute at all with this proposition. However,Hardwari Lai Verma had also not raised any question of violation of basic human and constitutional rights as the petitioners have in the present case. No fact situation as in the present case was involved.

104. The petitioners are not continuing to occupy the subject premises because they wantto do so. They are also not claiming a right to indefinitely occupy the public premises or asserting a title or a right thereto in respect of the subject property. The petitioners have merely sought protection of their right to shelter till such time, as the respondents are able to ensure their right to life in their home state or make available a reasonable alternative shelter to the petitioners. The respondents have themselves considered such requests and permitted identically placed persons to continue to occupy the allotted accommodation. • Such a claim has also been entertained' and granted by not only the Supreme Court, but also by this court as well in several' precedents noticed 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, the petitioners form a special class and are retired government personnel. When the petitioners were forced to relocate, they received governnient accommodation not only as an incidence oftheir service, but also on account oftheir compulsive eviction from their homes. They have also not been able to get any n benefit of any of the schemes framed by the government which 2010:DHC:12439 clearly admit the special needs and entitlement of these displaced persons.

106. Despite this hard reality, the representations, undertakings and promises of the Central Government, upon retirement, the allotments to the petitioners stand cancelled and they are being asked to vacate Government accommodation; otherwise they face the threat of eminent forcible evictiori therefrom pursuant to proceedings taken against them under the Public Premises (Eviction of Unauthorised Occupants)Act, 1971. 107.' The petitioners may thereby be compelled to return to the violent situation where from they were evicted/evacuated/or forced to flee. Forcing the petitioners who are IDPs to return to the area where they were persecuted violates the principle of non-refoulement which is the principle in international law forbidding the expulsion of a refuge into an area where such person mights be again subjected to persecution. The resiDondents cannot be permitted, to on a hyper-technical construction of statutory provision or arbitrary exercise of power to create a situation where the homeless petitioners are compelled to return to the areas where they may face violence / and threat to their life and liberty.

108. The respondents have themselves recognised the entitlement of the petitioners to appropriate residence, when they made the allotments. The only reason advanced by the resi3ondents for their decision to cancel the allotment and to evict the petitioners is that they have retired. The relevant and the effect of such eviction has not even been remotely considered. No exainination of the issue of whether the spirit or intendinent of the avowed policy of rehabilitation been achieved, or not, has been undertaken.

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

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 the petitioners.

111. -The respondents would have the records of the circumstances in which the petitioners and their successors in interest were transferred and evacuated to Delhi and also the extreme necessity of making the allotments of the quarters to these persons who were not only.Govermnent servants but also IDPs. The Directorate of Estates which has effected the impugned decisions cancelling the allotments would be aware of the pronouncements in respect of identically placed persons of the Supreme Court m F.K. Koul Vs. Estate Officer, this 2010:DHC:12439 txy courtinJ.K. Koiil vs. Union ofIndis, tliG ordor of tlio Contial Administrative Tribunal in Tej Kislmii Vs. Ors. and implemented tlie same. The respondents are aware of the prevalent situation.

112. No legal interpretation would be acceptable which does not takO' into its consideration the relevant facts and circumstances. There can also be.no statutory interpretation which results in violation and constitutional guarantees and protection. The present petitioners certainly cannot be n compared i... _ 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) of the Public Premises (Eviction of Unauthorized Occupants)Act, 1971.

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

115. The sole reason given by the Estate Officer for passing the impugned orders of eviction is that the allotments in favour of 2010:DHC:12439 tliat they were not in unautliorized 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 DistrictJudges. A plea was taken that because of failure of the respondents to ensure the protection ofthe rights ofthe petitioners under Article 21 of the Constitution of India-they continued to occupy the quarters. The petitioners had also urged that they stood deprived of home and hearth because of the failure,of the respondents to ensure the constitutional guarantees and discharge the mandate thereunder. "

118. The appellate orders notice the petitioners'- contention that the petitioners have made several representations to various authorities for allowing them to retain the accommodation on the ground that they belong to Kashmir and it was not feasible to return in view of the communal riots and terrorists movements. These requests have not been acceded to. The impugned appellate orders record that the petitioners have challenged the eviction orders,on the ground that the Estate Officer had failed to consider the fact that they were Kashmiri migrants and cannot return to Srinagar till normalcy is restored. It was also a ground of appeal that the Estate Officer had not considered the orders in SLP No. 1369/1997 by 2010:DHC:12439 saiTLG footings. Tlio cliallongG had. also bGGii laid, to tliG oidors ofthe estate officer on grounds of arbitrariness and violation of principles of naturaljustice.,

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

120. As a result, such working of the Public Premises Act by the respondents, the petitioners are being threatened with eviction from the only shelters that they Imow, without anyalternative 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 rectily n any violation ofsuch basic rights-.

122. The scheme of the Public Premises (Eviction o Unauthorised.Occupants)Act, 1971 shows thatthe notice which is issued under Section 4 to show cause is required to specify the grounds on which the eviction is proposed to be made and require the persons concerned to show cause against the proposed order, before the specified date when they are to produce evidence in support of the show cause. Under Section 5 of the Act, the Estate Officer is required to consider the show cause by the noticee under Section 4 as well as the evidence produced by him and after personal hearing, if any, given. Thereafter, the Estate Officer is required fo record reasons for his satisfaction for maldng an order of eviction. The orders of the estate officer discloses no reasons at all 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 Ministry of Urban Development to Delhi Development Authority placed on record in TejKislmii vs. UOl (supra)before the Central Administrative Tribunal (also relied upon in 132(2006)D.LT672P.K. Haiidoo vs. Estate Officei indicates engagement of the authorities with this issue and the / deci,sion of the Central Government directing that schemes be framed by the Delhi Development Authority as well for maldng preferential allotments of accommodation to Kashmiri migrants. 2010:DHC:12439 filed in the Supreme Court of India als^ expresses the same concern as has been expressed in the above Guiding Principles on Internal Displacement. These actions unequivocally manifest the respondents' awareness about the positive obligation imposed upon them to ensure that the persons displaced from Kashmir are required to be resettled and/or rehabilitated. There is admission of responsibility and culpability. The worldng of the measures, however, reflects that the steps which have been taken are inadequate and hopelessly insufficient. Even in the prolonged hearing before this court, the respondents could place no alternative so far as the petitioners were concerned.

125. In AIR 2010 SC 1476 State of West Bengal vs. for Protection of Democratic Rights^ 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 ofthe Constitution. For this reason as well, any application or enforcement of statutory provisions, rules,, regulations that impacts or impinges fundamental rights has to be struck down. n

126. In [2004]EWCA Civ 540 Secretary ofState vs. Wayoka Limbuela, Biiiyam the House of Lords has prescribed a test to determine whether a statutory scheme or a government 2010:DHC:12439 that when a reasonable evaluation of all relevant facts 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 ofrights or human dignity.

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

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

129. The proceedings as well as the impugned decisions and orders have completely failed to.take into consideration the material issue of the impact of the proceedings and the orders 2010:DHC:12439 the only shelters Imown 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 allotment and forcible eviction at the hands of the State utilizing the shield of a statutory right to do so under the Public Premises Act, 1971results 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 the fundamental rights of the petitioners is impermissible under the constitutional scheme. Proijortionalitv test

131. The proportionality of the impact on the fundamental right involved by worldng of the statutory prowsion as against the objective of the concerned statute is another important test for adjudicating upon the legality of the interference with the right which would have a bearing on the present case. In a pronouncement of the House of Lords reported at,'(2007) 4 AllER 15 Huang Vs, Secretary lome Depaitiiieiit, the decision making 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 B' of the European Convention for the Protection of Human Rights anc^^ Fundamental Freedoms,1950 which provides as under;- "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and n is necessary in a democratic society in the interests of national security, public safety or'the economic well-being of the country, for the prevention pf' disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms'of others." n The consideration by the House of Lords oh the principle of proportionality ofthe impact ofthe interference on the right vis-a vis, the legitimate end in view is important and reads as follows:- XXX, xxxx In most cases where the applicants complain of a violation of their art.[8] rights, in a case where the impugned decision is authorised bv law for a legitimate object and the interference (or lack of respecF) is of sufficient seriousness to engage the operation or art 8, the crucial guestion is likelv to-be comj}Ia.ined-ofis vroBoitioimte to the end souabt to be achieved. ProportioneHtv is a siibiect of such importance as. to reguire separate treatment.. PROPORTIONALITY In de Freitas Vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Flousing > [1999] 1 AC 69 at 80,[1998] 3 WLR 675 at 684, the Privy Council, drawing oh South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is, proportionate: ' n n•.Whether: (i) the legislative objective is sufficientlv important to justify limiting a fuuriamental right; (ii) the measures designed to meet the ■legislative objective are rationallv connected to it: arir] (iii).the means used to impair the right or freedom are ■so more than is necessary to accomplish the objective." This formulation has been widely cited and., applied; But counsel for the applicants (with the [ support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (at 139) the, n need to balance the interests of society with those of individuals and groups.. This, is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Dept[2004] UKHL 27 at [17]- [20],[26],[27],[60],[77],[2004] 2 All ER 821 at [17]- [20], [26], [27], [60], [77], [2004] 2 AC 368 when, n having suggested a series of questions which an adjudicator would have to ask and answer in deciding a convention question, it said (at [20]) that the judgment on proportionality - ' must always involve the.strildng of a fair, balance between,the rights of the individual and the interests of the community which is inherent in the whole of the convention. The severity and consequences of. the interference will call for carefnl assessment at this stage.' If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good.. xxxx"

132. Having regard to the drastic violation which results from the impugned action and orders, it has to be held that the decision of the authorities to cancel the.allotments and proceed for eviction as well as the impugned orders against the petitioners are not in accordance with law even on reasonable assessment of proportionality vLz-a-viz the object of eviction of unauthorised occupants ofthe Public Premises Act, 1971.

133. The petitioners have also complained that the respondents had discretion to pex-mit the petitioners to continue to occupy the premises under' SR 317-B-25 of the It is contended that the respondents were bound to consider the matter on the relevant consideration of the right to shelter of the petitioners which was involved and cannot premise their action on extraneous and impermissible reasons or considerations. Mr. B.L. Wali, learned counsel for petitioners has urged that the failure to exercise discretion in favour of the petitioners, is in fact not only in violation of the constitutional pbligations of the respondents, but is arbitrary and unreasonable. 134., Shri P.K. Kaul,(writ petitioner in W.P.(C) No.15239/2004) had earlier filed WP (C) No.6551/2003, submitting that the respondents had arbitrarily failed to consider his request for regularization despite ha-ving knowledge of the special circumstances ofthe case. Mr.B.L.Wali,learned counsel for this petitioner has placed the order which was passed on 15"' October, 2003 in the earlier, writ petition, which directed the respondents to consider the question of regularization of allotment in favour of the petitioner in view of the special circumstances. It was directed that the.petition including its enclosures should also be considered while disposing of the petitioner's representation.

135. Despite these orders, the writ petitioner has contended 2010:DHC:12439 date. He lias,, therefore, filed the writ petition being WP (C) No.15239/2004 chhllenging.the notice issued by the Estate Officer under section 4 of the Public Premises (Eviction of Unauthorised Occupants)Act, 1972 to him.

136. The other writ petitioners have also made similar requests to the respondents for exercise of discretion which were reiterated by them in the reply to the notices issued by the Estate officer under Section 4 of the 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 petitioners has pointed out that the respondents have exercised discretion favourably and permitted some identically situated displaced Kashmiris to continue in allotted premises after retirement whereas this has been arbitrarily denied to the petitioners. Learned counsels contend that the respondents' action so far as the present petitioners are concerned, is discriminatory and not sustainable.

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

139. Allotment of government accommodations are effected under the provisions of Allotment ofGoverniiientResMeiaces (General Pool in D,elM) Rules, 1963. Reference is made to SR 317-B-25 thereof which empowers the.Government to relax 2010:DHC:12439 tliG provisions of tlioso rulos and dosorvGS to bo considGiod in extenso. TIig same reads as follows:- "SH,317-B-25: The Governmentmayforreasons to be recordedin writingrelax all orany ofthe provisions ofthe Rulesin this Division in the case ofany officer or residence or class ofofficers or type ofresidences."

140. It is undisputGd beforG us that despitG the propoundGd 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 of the discretion under SR 317,B 25 of the Allotment Rules, 1-963 and its favourable exercise in favour of some Kashmiri IDPs. Yet, the respondents have failed to exercise the same discretion in favour of the present petitioners. No explanation for the same is even attempted.

142. On'the issue of exercise of discretion, in the judgment reported at AIR 1980 SC 1622, Municipal Council Ratlam Vs, Vardicban & Ors,,the court was concerned with the public power of the Magistrate under Section 133 of the Code of Criminal Procedure. The court observed that the 'public power of the magistrate under the Code' is 'a public duty to the members of the public who are victims of nuisance and so he shall exercise it when the jurisdictional facts are present as here'. So far as exercise of discretion is Concerned, it was observed as follows "9. So the guns of Section 133 go into action wherever there is public nuisance. The nublie power of the Magistrate under the Code is a public duty to the \ ^ members ofthe public who are victims ofthe nuisance, ^ and so he shall exercise it when the jurisdictional facts are present as here."AMpowGris a. trust-that w© are accountable for its exercise-fhRt, from the people, and for the people/all springs, and all must exist." iims home the circumstances for its. xxxx

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

144. The pronouncement of the Supreme Court reported at 1 see 4^:4 entitled SMv Saffar Tiwari Vs, Union of r Ors., has been placed before this court by the respondents. In this case, the court was concerned with gross misuse,of discretionary power relating to allotment of accommodation to government employees. As against the permissible discretionary quota of 10 per cent, such allotments had shot up to 70 per cent. On top of these, 8,768 houses were allotted on "Special Compassionate Grounds" in exercise of discretion under the authority of a letter dated 18^'' July, 1996 from the Cabinet Secretary. The Government of India had 2010:DHC:12439 r aforGiioticBcI SR. TI16 court had concludod that tho conduct of the respondents• did not disclose application of mind and discretion was not exercised fairly. In para 56 of the judpnient, it was observed as follows "56. The decision of.the present Central Governnient on this aspect as finding place in the letter of the Cabinet Secretary dated 18-7-1996 bearing DO No.1/44/1/96- CAV is that "where it is considered absolutely necessary" small number of out-of-turn allotments would be made for which purpose also the Ministries/Departments would formulate clear rules and guidelines. During the course of hearing, on being desired to know as to why out-of-turn allotment is at all required, the submission advanced on behalf of the Union of India was that there are a few officers, who by virtue of the duties discharged, have to be n accommodated in government quarters to facilitate smooth functioning ofthe Government.xxx"

145. In view ofthe gross abuse ofthe 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 quota which included accredited journalists and news cameraman, political parties, artistes, social worker etc and other organizations as well. In SMw Sagar Tiwari vs. UOI(supra)^ it was held that the discretion conferred has to be exercised to advance the purpose to subserve which the power exists and that even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no discretion in the matter or unfettered discretion. The Supreme Court held that exercise of 2010:DHC:12439 siicli discretion was an exception and deprecated the above action of the Governinent making the same into a norm. Noteworthy,is the Government's stand in this case that vesting of some discretion in the matter of allotment of quarters was essential. In this background, the contention of the respondents that exercise of discretion was prohibited by the Supreme Court in this case is totally misconceived.

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 to permit continuation of occupation of the allotted accommodation in the exceptionable circumstances and. conditions in which they were placed. The pronouncement of the Supreme Court, in fact, assists the petitioners as the court recognized existence of and permissible exercise of discretion while deprecating its abuse.

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 Slietty IKS'. International Airport Authority as follows n n n "10. XXX It is indeed unthinkable that in a democracy governed by the rule of law the executive Covernment or any ofits officers should possess arbitrary power over the interests of the individual. Every action of the executive Covernment must be informed with reason and should be free from arbitrariness. That is the very essence, of the rule of law and its bare minimal requirement. And to the application of this principle it makes not difference whether the exercise of the power involves affection of some right or denial of some XXX

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

148. In para 85.of the pronouncement reported at SC555entitled E,P, Royappa. vs. State ofTamiliia the Supreme Courtlaid down the following binding principles "85 In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that. State action must be based on equivalent relevant nrinciiDles aniplicable alike to all similarly situate and it must not be guided bv anv extraneous or irrelevant considerations because that would be denial of eouality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not lecritimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit bv Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanatiiip from the same vice: in fact the latter comprehends the former. Both are inhibited bv Articles 14 and 16." (emphasis supplied) Therefore, even if it were to be held as urged by the respondents that this court could be held to be powerless to direct exercise of discretion in a particular inannei, in view of the clear principles laid down in thesejudicial precedents,there is no prohibition upon this court from examining as to whether, the respondents have failed to exercise discretion on relevant criterion. There is also no prohibition on this court,to examine whether the respondents have acted arbitrarily or discriminated against the petitioners. The impugned action of the respondents against the petitioners and the orders assailed herein have to be tested on the above principles.

149. A similar argument of the respondent that the allottees were prohibited from permitting retention of accommodation beyond the permissible period after retirement was rejected by the Central Administrative Tribunal in the aforenoticed decision rendered on December, 2002 in 0,A. No,2378/2002 Sliri TejKislimi Vs, Union ofIndia & Ors. The Tribunal had examined the petitioner's challenge to the respondent's actionon the plea of discrimination premised on the conduct of the respondents in exercising discretion in favour of some similarly situated migrants and not in favour of the petitioners and observed as foliows:- "31. Respondents have retain the accommodation till the propei'tv and.reconstruction of their liduses. 2010:DHC:12439 criteria, was adopted their case, and the.... Applicant who is also a V fl '" —— — * Kashmir iniarant liavinq no place to live in Delhi a large family to su-pnort, is on a similar footincr with those who were allowed to retain the accommodation. In order to satisfy the requirements oflaw,the respondents have to establish that there has been an intelligible differentia and which has a reasonable nexus with the object sought to be achieved. No grounds whatsoever have forthcome which can be treated as reasonable or relevant for to mete out the aforesaid reguirements of law and to pass dual test which will render the decision in consonance with the Article 14 of the Constitution of India. In absence of anv reasons and the fact that the applicant is equal in all respects should not have been meted out a differential treatment.n This in my considered view, is unsustainable being violative of Article 14 of the Constitution ofIndia."

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

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

33. 1 also find that the Government by the.letter dated 2.7.2002 in order to hold the retirees or retiral 2010:DHC:12439 not get.back to J&K due to prevailing situation, a. decision has been taken to allot about 100 MIG/LIG Flats. and for which PDA has been requested to formulate the Housing Scheme for which a draft has been sent to the Ministry for approval. The aforesaid decision also incorporated that these houses are being allotted to Kashmir migrants retiring or retired so that the general ■pool accommodation got vacated from them. This on a literal consideration connotes that the Kashmir migrants who are in retention of general pool accommodation on retirement, are to be evicted onlv after the PDA formulate a Housing Scheme to allot MIG/LIG flats to theni.

34. In my considered view, the review undertaken bv the respondents in compliance of the earlier directions of this Court has not taken note of letter dated 2.7.2002 as well-as the directions in Koul's case supra. If a post-facto approval can be- accorded by CCA and approval by the Ministry for Urban Development denving the same to the annlicant who is similarlv situated and is equal in all respects, smacks of arbitrariness and hostile discrimination which, as per various pronouncements of the Apex Court, cannot be countenanced and would be an antithesis to rule of laws doctrine of equality.

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

151. Before this court the respondents have not even attempted to show how the present petitioners can be distinguished from either Sbri TejKislimi (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, the respondents have stated that these contentions of the petitioner are a "matter of record".

152. There is no dispute also to the fact that the orders in JX.Koul PJCHandoo, M.KKonl Tej Kislmir(supm)have attained finality and these persons continue to occupy the allotted accommodation despite superannuation.

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

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

155. IiTground L of WP(C)no.15329/2004, Shri P.K.Koul, the petitioner has stated that the respondents have allotted the. Government accommodation, not only serving Government employees, but to various other categories of employees who have nothing to do with Government service. It has been stated that "employees working in the office of the political parties, journalists, freedom fighters, artists etc." are also allotted general pool accommodation. This averment is not w 2010:DHC:12439 allotment ofthe 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 33) Syed Klmlid Rizvi vs. UOI& Ors;(1996)8 SCC 762 SBI& Ors. vs. KasMuatli Klier & Ors.;(1988)4 SCC 179Asliok Kr. Uppaland Ors. vs. State

157. The orders in TeJ KisJian (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 ofthe present petitioners.

158. No- explanation is rendered or reason given by the respondents for the rejection of identical requests of some of the petitioners or for not favourably considering the said requests of the petitioners. The failure to even consider these requests despite the specific directions in P.K. Koul's previous writ petition reflect highhandedness, unreasonableness and arbitrariness on the part of the respondents. The respondents have granted approval to similarly.situated persons. Denial thereof to,the equally placed petitioners certainly tantamounts to hostile discrimination against them which is impermissible and as observed above 'an antithesis to the equality clause'. The action of the respondents in not favourably considering the petitioners' representations; in cancelling the allotments of the 2010:DHC:12439 petitioners and proceeding against tliem under the Public Premises Act 1971 as well as the impugned orders are; therefore, not sustainable also being in violation of Articles 14 and 16 of the Gonstitution. Clmime in Policy

159. There is yet another important side to the claim asserted n by the petitioners which requires consideration. The declared policy of the state with regard to the IDPS from Kashmir is concerned with their rehabilitation. Forcible eviction from their, current residences without an alternative is not even remotely suggested in these policies. The same is evident from the affidavit placed before the Supreme Court in JX.KouI vs. State ofJaimnu & Kashmir (supra) and the letter dated'2""^ July, 2002 placed before the Central Administrative Tribunal in Tej Kislieii Vs. Union ofIndia (supra). The decision taken to cancel the, petitioners' allotments and to initiate proceedings under the Public Premises(Eviction of Unauthorised Occupants) Act, 1971 without making available of alternative shelter clearly suggests a drastic change in the government policy so far as these IDPs are concerned..160. In a recent judgment of the Supreme Court reported at MANU/SC/047.6/2010 Sindliu Education Society&Aim\'Vs. The Chief Secretaiy Govt. of NCT of Delhi & Ors., the Supreme Court observed that framing a policy is the domain of the Government. The framework of the policy and the working of such Government Policy has essentially to be done.within the framework of the Constitution & the laws. As and when Government changes its policy decision, it is expected to give 2010:DHC:12439 valid reasons thereof and act in larger interest of the entire community rather,than a section. In para 66 of the judgment, the Supreme Court held that: " It is a settled canon of administrative jurisprudence that state action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the state, nothing in this regard could be pointed out n and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent nonapplication of mind would give colour of arbitrariness to the state action." The.position in the cases in hand is no different. The state does not again even-suggest a reaspnable 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. n (Ref: (1998) I SCR State.ofPunjab & Ors. vs. Ram LuMiaya. Begga & ?.). 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 ohmind and therefore notsustainable. Responsibility ofthe Central Government n n

162. It. has' been suggested by Mr. Jatan Singh, learned standing counsel for the Union of -India that the Central Government has no responsibility vis-a-'viz the petitioners in the given facts and that only the State of Jammu and 'Kashmir is liable for the infraction ofthe rights ofthe petitioners.

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

165. Reference is also made to the policies of regularization of unauthorized constructions and encroachments on public lands are pointed out. Several schemes and policies of the 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.severaljudgments concerned with the right of shelter of pavement and jhuggi-jhompri dwellers including Olga. Tellis v. Bombay Municipal Corporation & Ors,; Alimedabad Municipal Corporation ws, Nawab Klian Gulab Khan & Ors-.; Jagdish vs. DDA; 'Sudama 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 2010:DHC:12439 obligation, duty and responsibility of the respondents qua the. petitioners.

167. It is an admitted fact that the petitioners were all employed by the Central Government or its agencies. In order to avoid compromising the security issues of these persons, a more detailed analysis of the factual matrix is. not being undertaken. However, the present cases set out instances of extreme trauma faced by the'petitioners and their family members as well as the continued threat to their life and property. In one of the cases, the petitioner is a destitute lady who was working in the Ministry of Information & Broadcasting of the Government of India used to give live,performances and conducted programs on behalf of the Central Government in remote villages in the valley as well as on the electronic media making her face knohm to the militants. Her troupe was attacked in 1987 while performing at Khamabal in District Anantnag and they had to flee for their life. In this background, she was transferred to Delhi, and was allotted the premises by the respondents. The petitioner points out that in mid-1990,the Songs and Drama Division Office in Srinagar, Kashmir was blown up and the entire staff transferred to Delhi. Not only the house of her in-laws but her ancestral/parental rental house also stands burnt down and she has no place to return to in Kashmir.' Even after she was evacuated from the valley, her brother received threats to her life by way of communications advising the petitioner to desist from participating or performing in programs in support of the Government. This communication 2010:DHC:12439 husband, decades.ago and she stands abandoned by the State with none to assist to her. The writ petition states that she is getting a meager amount of ^4500/- as pension, insufficient even to sustain her,let alone acquiring rights in any property.

1.68. 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 and relatives on account ofthe 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, the Supreme Court has held that the state is deemed to be under an obligation to secure the same to its citizens[Kef:(1996)2SCC '^549 Cbameli Sinffli & Ors. vs. State ofU.P. (supra),that it is imperative for the state to provide permanent housing accommodation to the deprived.

170. In 1995(2)SIR 72F.G. Gupta vs. State ofGujaratthe Supreme Court had further declared that it was the duty of the \ easily accessible to the poor,and that such priilciples have been expressly embodied in our Constitution to ensure socio economic democracy so that everyone has a right to life, liberty and security ofthe person. In this context,in para 11 ofthe 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:-

. Arts. 38, 39 and 46, Preamble and 19(l)(e), facilities and opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, to urovide bousiim accommodation to the poorin the housing schemes undertaken bv it or its instrumentalities within so that thev could make the pavment of. the price in easv instalments, and permanent'settlement and residence assured under Article 1911he)and 21 ofthe Constitution, xxxxx"

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 all including the disadvantaged and the displaced, by distributing its wealth and resources for the settlement of life and erection of shelter over their heads. The court has emphasized the.constitutional right of every citizen to migrate and settle in any part of India for 2010:DHC:12439 better employnient opportunity and it would be the duty of-the state to provide right to shelter to the disadvantaged in society. (Ref: Aliniedabad Municipal Corporation Vs, Nawab Kliaii Gulab Klian &' Ors.(supra).

172. The forcible removal of pavement and slum dwellers by the agencies of the state without their resettlement or rehabilitation has been repeatedly deprecated by the courts in the plethora ofjudgments on the subject. In case they have to be evicted from the place they,are occupying, state authorities are bound to formulate schemes and policies. The respondents have gone on record with regard to such projects as are in vogue for their relocation, resettlement and rehabilitation.(Ref: (1985) 3 see 545 Olga Tellis v.. Bombay Municipal Corporation & Ors.; (1997) 11 SCC 121 Alimedabad Municipal Corporation Vs. Nawab Khan Gulab Khan & Ors.; MANU/DE/9327/2006Jagdish vs. DBA;decision of this court dated February, 2010 W.P.(C) No. 8904/2m[9] Sudama Singh & Ors.) Placing reliance on the obligations under the international instruments, the courts have repeatedly ^stated that adequate and reasonable facilities for resettlement and effective steps taken for rehabilitation have to be made available before forcible eviction.

173. An issue involving chakmas who were tribals from erstwhile East Pakistan,(now Bangladesh) went to the Supreme Co'urt in the case reported at {1996). 1 SCC 742 National Human Rights Commission vs. State of Arunaclial Pradesh Anr.In this case, a public interest litigation was filed 2010:DHC:12439 enforcement of rights under Article 21 of the Indian Constitution, of about 65,000 Chakma/Hajong tribals.- It was alleged that these Chakmas had settled primarily in the State of Arunachal Pradesh and were being persecuted by sections of the citizens of the state i.e. the All Arunachal Pradesh Students Union referred to as "AAPSU" hereafter. It was additionally complained,that the applications of the Chakmas under the Citizenship Act and Rules thereunder were not being forwarded by the State Government for consideration to the Central Government hi 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 of the Constitution are concerned. n, So far as the constitutional and the statutory obligations of the states to protect the rights of those who reside within the territory of that state are concerned, the court observed as follows "20..We are a country governed by the Rule of Law. Our Constitution confers certain rights on every humanbeing 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 to procedure established by law. Thus the State is bound to protect the life and liberty of every humanbeing, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the state, failing which they would be forced to do so. No State Government worth the name can tolerate such threats bv one crroup of person'to another group of nersons: it is dutv bound to protect the (Sic) aroun from such assaults and if it fails to do so,it will fail to form its Constitutional as well as statutory obligations. Those giving such.(Sic) would n be liable to be dealt with in accordance with law. The. 2010:DHC:12439 oA lecral obligations to safeguard the life, health and wellbeing of Chakmas residing in the State without being ii-ihibit.R(i by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights. Constitutional and statutory,tp be considered for being registered as citizens ofIndia." The court considered the factual matrix and prevalent circumstances in detail and thereafter issued, inter aha, a writ of mandamus directing the State of Arunachal Pradesh, to ensure that the life and personal liberty of each and every Chakma residing within the State shall be protected and any attempt to forcibly evict or drive them,out of the State by organised - groups, such as the AAPSU, shall be repelled, if necessary by requisitioning the service of para-militaiy or police force. The Union of India was directed to provide such additional force as is necessary to protect the lives and liberty of the Chakmas on the request of the first respondent. The Supreme Court further directed that the Chakmas shall not be evicted from their homes except in accordance with law and shall not be denied domestic life and comfort therein; the State Government was directed to deal with the quit notices and ultimatums issued by the AAPSU and any other group which tantamounted to threats to the life and liberty of each and every Chakma in accordance with law. The Supreme Court has thus recognized the responsibility of the Central Government to provide forces to protect the right to life of the threatened persons.

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 2010:DHC:12439 difficulties being, faced by the petitioners and other persons similarly placed is no.different. The State Government has been unable to protect or secure the life and property of the petitioners. The Central Government has not been able to adequately address the several issues which have been raised. Many of the petitioners had been physically evacuated by the Central Government in extreme situations. All the petitioners were employees of the Government in Delhi and have superannuated in Delhi. The attempt being made at present is also by the Central Government at Delhi is to forcibly evict the petitioners by 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 in appropriate proceedings has also been emphasised on several occasions. In (1982)3see 235 People's Union for Democratic Rights & Ors, Vs. Union ofIndia & Ors., Xhe court observed that denial of statutory,rights of the labour force, which was a vulnerable section ofthe community,tantamounted to breach of their constitutional rights and was therefore enforceable.dgainst the government. It was held that it was the duty of the Union of India, the Delhi Administration and the DDA to ensure that the constitutional obligation towards labour are discharged by the Contractors to whom they had entrusted construction work. It was held that the Union of India, Delhi Administration and DDA cannot fold their hands in despair and become silent 2010:DHC:12439 committed by their own contractors. In this context, the court held as follows "21.. Before leaving this subject, we may point'out with all the emphasis at our command that whenever any fundamental, right, which is enforceable against private individuals such as, for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessary steps,for the purpose of interdictincr such violation and ensuriner observance of the fundamental right by the private individual who is transaressincr the same. Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamentalright, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly. when he belongs to the weaker Section humanity and is unable to wage a legal battle n against a strong and powerful opponent who is exploiting him. The Union of India, the Delhi Administration and the Delhi Development Authority must therefore be held to be under an obligation to ensure observance of these various labour laws by the contractors and if the provisions of any of these labour laws are violated by the contractors, the petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi, Administration and the Delhi Development Authority by filing the present writ petition. The preliminary objections urged oh behalf.of the respondents must accordingly be rejected." The failure ofthe state to ensure ptatutory rights was held to provide the essential basis for maintaining the writ petition under Article 32 for enforcing fundamental rights against the n State and its agencies.

176. It is noteworthy that a writ petition was filed in.this court in connection with compensation payable to residents of Kashmir whose property had been destroyed in the disturbances in Kashmir. The judgment of this court reported at AIR 2005 & Ors. I>^, Union ofIndia & Ors. has 2010:DHC:12439 made obsei^atioiis on this very unacceptable stand of the Government of India in its affidavit which is under consideration. These observations before the Court read as under:-.. "20. Respondent No.l, Union of India, has also filed, an affidavit under the signatures of Mr. K.M. Kuti, Under Secretary in the said Ministry dealing with the Department of Jammu & Kashmir affairs. Respondent No.l/UOI by way of the said affidavit effectively washes its hands off the matter. It is stated that relief and rehabilitation are State subjects. Para 2 of the parawise reply may be reproduced to show the stand of the Union of India:

2-1. The Government of India, thus, considered its responsibilitv for providing relief and rehabilitation to reftigees, who are not citizens of this countrv, but not to citizens of the country who are refugees in their own countrv. The apathv is writ large on its face.

22. There is a vast para para phernelia of military 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 pp serious that it has been taken as a priority issue. The dislocation of persons from the Valley is a well-known undisputed fact. How can the Government of India wash its hands of the whole matter and absolve itself of the responsibilitv for providing a safe living to the citizens of the countrv?

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

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.controlthe violence against the petitioners. The principles laid down in the above judgment Would apply to. the Kashmiri migrants on every score. More important is the clear finding by the court of the responsibility of the Central Government for the rehabilitation and reliefto the IDPs from'Kashmir. \

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

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

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

181. It was observed in -(1978)1 SCR 1 State ofRaj asthan & Ors. vs. UOfby ChiefJustice Beg that "In our country national planning involves disbursements of vast amounts of money collected as taxes from citizens. residing in all the States and placed at the disposal of the Central Government for the benefits of the States without even the "conditional grants" mentioned above. Hence, the manner in which State Government function and deal with sums placed at their disposal by the Union Government, or how they carry on the general administration may also be matters of considerable concern to the Union Government." n 182. The expansion and interpretation by the courts has affirmatively established a positive right to housing and shelter for every person as part of the fundamental right. Human 2010:DHC:12439 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 under the' several international instruments noticed above. This essentially remains in the exclusive domain of state functions. Failure to protect the citizens from eminent loss of life and property as well as maintenance of public order, implicates the state for culpable inaction.

183. Mr.Jatan Singh, learned standing counsel for the Union of India has urged that these petitioners are not public seiwants and can claim no right to continue in the allotted public premises. It has been vehemently urged that on account of their superannuation, they ceased to be Government servants and are disentitled to retain Government accommodation. Learned-Standing Gounsel has urged at some length that the Government of India has formulated a rehabilitation package which necessitates that all these petitioners must return to their homes in Kashmir. It is contended that by their failure to vacate,the rights ofthe several Government employees who are waiting to be allotted Government accommodation are adversely effected. Unfortunately the respondents are unable to submit that the petitioners would be safe upon return or how the respondents propose to ensure protection of life and liberty of 2010:DHC:12439 the petitioners or ensure restoration of.their property in the Kashmir valleyt

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

185. Placing reliance on the judgment reported at ('2005) 6 see 138 Master Marine Services Pvt. Ltd. vs. Metcalfe and Hodgkinson Pvt. Ltd. & Aiir., it has been further argued by Mr. Jatan'Singh that, this court is bound to exercise judicial restraint and cannot be unmindful of the administrative burden and increase in unbudgeted expenditure on account of quashing decisions. It is urged that in this background, while exercising power ofjudicial 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 submission fails to consider the nature of the rights which are involved in the case in hand. Metcalfe Hodgkinson 2010:DHC:12439 or th and contract of work of professional services to the appellant and was not concerned with a plea of violation of basic human rights and constitutional guarantees as are involved in the instant case. The consideration in Metcalfe HodgMiisoii Pvt. Ltd.(supra)has no application to the present case.,

187. In (2003) 6 SCC 1 Kapila Huigorani vs. State ot Bihar & Ors. the State Government had, however, pleaded financial stringency to shift its liability to the Union of India c to the State ofJharkhand.'In para 67 of the judgment dated 9 of May, 2DOS 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 Undertakings. It was held that either precedentially orjurisprudentially, the Union ofIndia cannot be held liable and no such direction as was being sought by the state government could be issued. The SiqDreme Court, however, clearly declared the 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 at [im7]lSCR641 Rural LitigatioMi Entitlement Kendra and Ors. v. State of Uttar and Ors.;1980CriLJ1075 Municipal Council Ratlani vs. Vardichaii & Ors.; [1996]3SCR80 B.L. Wadliera v. Recognised & Aided Schools M[3].iiB.^iiiff Committees Ors,; AIR 1996 SC 2426 Paschim Baiiga Kbei Saiiniti& Ors, State ofWestBengal&Ann] In para 65 of (2003) 6 SCC 1 entitled Hingorani Vs. State ofBihar & ors, the Court rejected the contention ofthe State of Bihar also to this effect..

188. In para 6 at page 589 of (1993)3SCC 504 Imam Organisation vs. UOI,the Supreme Court held that:- "6....Much was aruued on behalf of the Union and the Walcf Boards that their financial position was not such that thev can meet the obligations of •pavincr the Imams as they are beincr paid in the State of Punjab. It was also urged that the number of mosques is so large n that it would entail-heavy expenditure which the Boards of different States would not be able to bear. We.do not n find any correlation between the two. Financial difficulties, of the institution cannot be- above fundamental right of a citizen. If the Boards have been entrusted with the resnonsibilitv of supervisincr.and administering the Wakf then it is their duty to harness resources to nay those persons who perform the most important duty namely of leadincr community •prayer in a mosque the very purpose for which is created."

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

190. The observations of the Supreme Court at(2005)2SCC 262 Kapila Hingorani vs. State ofBihar & Others, while dismissing the review petition filed by the Bihar Goyernment, seeldng a review of the earlier order dated 9"' May, 2003 are 2010:DHC:12439 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 pay the salaries of the employees of the statutory corporations/companies incorporated under the 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 I n'company. n ' n These submissions' were rejected by court observing that in the order dated 9'^' May, 2003.,' the court had considered the matter from the human rights gspect as well as the fundamental rights of the employees in the public sector undertaking operating in the state of Bihar; The court noticed that after the passing of the order dated 9"" May, 2003, several employees died due-to non-payment of their salaries. The court placed reliance, inter alia on para 24 of the directions dated 9"' May, 2003 and while rejecting the review petition filed by' the respondents observed as follows "24. This Court further observed that the State has a constitutional oblicration and acts in a fiduciary caipacitv vis-a-vis performance of its constitutional duties and functions bv the isublic sector undertakings as it has constitutional obligations in relation thereto." So far as protection of such. human rights and fundamental rights, and remedy for violation thereof, is 2010:DHC:12439 concGrnGd.^ tliG court issuod. dirGctions to tliG stutG g'ovGinin.Gnt to pay tliG salariGS of omployGGS in the public sector undortaldngs in the following forms '22. Tiro GovGrnmGiit compaiiiGs/public soctor undortaldngs boing 'States' would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of -the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the. sole shareholder. Although in law, its liability towards the debtors of the Company may be confined to the shares held by it but haying regard to the deep and peryasiye control it exercises oyer the Goyerhment companies; in the matter of enforcement of human rights and/or ricrhts of the citizen of life and liberty, the State has also an additional duty to see that the rights of emnloyees of such corporations are not infringed. The right to exercise deep and peryasive control would in its turn make the Goyefnment of Bihar liable to see that the life and liberty clause in resiject of the employees.is fully safeguarded. The Goyernment of the State of Bihar, thus, had a constitutional obligation to protect life' and liberty of the employees of the Goyernment owned companies/corporations who are the citizens of India. It had an additional liability haying regard to its right of extensive supervision oyer the affairs of the company." XXX

37. We make it.clear that we have not issued aforementioned directions to the States of Bihar and Tharkhand on the premise that they are bound to pay the salaries of the employees of the public sector undertakings but on'the ground that the employees have a human riaht as protect:The directions, which have been issued by this Court'on 9^^^ May,2003 as also which are being issued herein, are in furtherance of the human and fundamental rights ofthe employees concerned and not by way of an enforcement of their legal right to arrears of salaries. The amount of.salary payable to theconcerned employees or workmen would undoubtedly be adjudicated upon in the proper proceedings. However, these directions are issued which are necessary for their survival. Undoubtedly, any amount paid by Justice Uday Sinha Committee pursuant to these directions shall be duly credited for:"

191. The principle reiterated by the Supreme Court was that financial difficulties of the institution or the state cannot be above the fundainentarrights of the citizen. It has also been observed that in a situation ofthe 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 hands of the state government and companies and corporations owned and controlled by it. n '

192. Other than the bald reference to the judgment in Meteaife (supra), learned standing counsel has placed no factual assertions in support thereof.' Such submission.is clearly untenable in view of the admitted Government position in the affidavit,dated 6"' October, 2009 filed in J.K. Koul (supra) before the Supreme Court ofits 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 Kisliau (supra)- and the letter dated 2'''^ July, 2002 placed before the Central Administrative Tribunal as also in the policy of reservation/preferential allotment of the flats. The respondents have clearly admitted their responsibility,and are bound by their commitments. n

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 2010:DHC:12439 burden of ensuring shelter to these IDPs nor the extent of the available.resource. Mere announcement of schemes and allocation of large volume of funds by the Government as a reaction to court,directions upon occurrence of events in the country by theinselvias are insufficient and may prove to be meaningless. Displacement as that of the present petitioners clearly reflects the imperative to take a holistic view and for the decision makers to take a 'minimum-needs' based approach where ensuring basic human rights and social welfare are concerned.

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 liyper technical interpretation to legal definitions, takes the shield of statutory provisions and implements what is touted as the "rule of law" in removal of "encroachments" by the disadvantaged. Others illegal constructions and deviants are "regularised"- or "compounded". This very,ethos is illustrated in the present writ petitions.

195. Instance after instance of schemes in Delhi for regularising not only rank illegal and unauthorised constructions but also large scale encroachments on public land are in existence and being implemented-. So much so that the Central Government has promulgated ordinances and statutes prohibitting demolitions of huge illegal buildings and even 2010:DHC:12439 such law breakers who do not even need rehabilitation or state support, who are certainly not disadvantaged or displaced. The Delhi Laws (Special.Provisions) Act, 20D[6] was enacted by the Parliament concerned that action for violation of the provisions of the Master Plan 2001 and building bye laws was causing hardship and irreparable loss to a large number of people. No reference to public safety, public interest, environment concerns, enforcement of legal provisions or the financial impact and loss is displayed.

196. The judgment reported at 2010 (III) AD (Delhi) 513 '"V. Hmljan KaJyaii Samit! Regd. & Ors, vs..Govermnejiit of. NCT of Delhi makes a reference to Government policy to regularise 1400 unauthorised colonies. The huge loss to the public exchequer of indiscriminately regularising illegal encroachments on land acquired after payment of large sums as compensation from public funds by the government; encroachments those on public land as also violations of building regulations is not even computed, let alone addressed. (Ref: (2006)3 SCC 399 M.C. Melita vs. UOI & Ors.; AIR 2005 SC 1 Friends Colony Development Committee vs. State ofOrissa & Ors.)

197. Yet the respondents urge "financial stringency" so far as the present petitioners are concerned. The essence of the policy of rehabilitation and resettlement, so far as the petitioners is concerned has not only been given a complete go by but the respondents are completely denying all liability for the sanie.

19.8. Apartfrom a vague suggestion of insufficiency offundsy the respondents do not substantiate such plea with any material. The respondents have not shown any consideration of the petitioners' needs, let alone any steps take to address their plight. There is nothing which could enable this court to arrive at a conclusion that the respondents had difficulty in working the rights of the petitioners on account of financial incapacity. To say the least, similar submissions were termed as "typically gauche" and "lacking, insensitivity" by this court in P.K, HBndoo vs.. Estate Officer(supra)and already stand rejected in B.L.. 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 the admitted responsibility of the state for the breaches and violations of the constitutional protections suffered by them. remedy,role ofthe courtand,nature ofrelief

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 right to life as well as threat thereto. The.Supreme Court has repeatedlyjudicially awarded compensation in cases of established breach of public duty to protect the fundamental rights and violations thereof, especially the guarantees of personal liberty and life.

200. In AIR 1983 SC 1086 Rudul Sab vs. State of Bihar, the court was concerned with violation of rights resulting from illegal detention. The observations of the court on the duty of 2010:DHC:12439 the court deserve to be considered in extenso and read as follows "10 Article 21, which guarantees the right to life and liberty will be denuded of its sirrnificnnt content if the power of this Court were liruiteri to nassina orders of release from illegal 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 secured, is to mulct its violators in the payment of monetary compensation. Administra:tive sele(sic)sis leading to flagrant infringements of fundamental rights cannot be corrected by any other method.open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their, protection the powers of the State as a shield. If civilisation is not to perish in this country, as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage,done by its officers to the petitioner's rights."

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 concurringjudgment in AIR-1993SC1960 entitled Nilabati Behara.:.@ Lalita Beliura Vs. State ofOrissaly^d observed as follows "33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 bv the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based • on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief bv granting "compensation" in 2010:DHC:12439 proceedings under Article 32 or 226—of—the Constitution seeking enforcement or protection of fundamental ricrlits. it does so under the public law by way of nenalisinu the n wrongdoer and fixing the liability for the public wroncr on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not, to be understood, as it is generally understood in a ciyil action for damages under the nriyate law but in the n broader sense of nroyiding relief by an order of making ^monetary amends'under the public law for the wrong done due to breach of public duty of not nrotectinq the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of claim compensation under the priyate law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penallaw.

37. being' the protectors of the civil liberties of the I citizen, Imve not only the nower and i but also an obligation to grant reliefin exercise of its jurisdiction under Articles 32 mid 226 the Constitution to the victim or the 21 ofthe Constitution ofIndia a.re estuMislied the Stnte to renair the damage -done by notwithstanding the right of the citizen to the remedy by way of a ciyil suit or criminal proceedings. The n State, of course has the right to be indemnified by and take such action as may be ayailable to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article ^ or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case; is possible." •(Emphasis supplied)

202. In (1988)'4 SCC Sbeela Barse vs. UOI &.OrSc, the court was concerned with gross yiolations of the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints. While commenting on 2010:DHC:12439 the nature of proceedings in public interest litigation and the issue of protection and enforcement.of their rights, the court made the following,observations with regard to the duty of the court' "6 More importantly the Court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief andthis is important -- also supervisinq the implementation thereof."

203. 'Where infringement of fundamental rights is established, the duty of the court does not stop at giving a mere declaration. In 1997(1)see416D.K.Basu rs. State ofWestBengal,it was laid down that in such a case, the court must proceed further and give compensatory relief, not by way of damages as a civil action but by way.of compensation under the public law jurisdiction for the wrong done, due to breach ofthe public duty by the State of not protecting the fundamental right to'life of the citizens. To repair the wrong done and give judicial redress for legalinjury is a compulsion ofjudicial conscience.

204. Unlike the several cases noted hereinabove including cases of Rudul Shah, D.K. Basu, Leelawati Beliura, Sbeela Barse (supra) etc. in the instant case, the state or its instrumentalities itself have not. harmed or punished' the petitioners. However, the state has totally failed to protect the fundamental right to life of the petitioners and to protect them from violence, harassment and pogroms. This is in clear abdication of.the constitutional responsibility of, the State. Responsibility for the violence in the State is not the question 2010:DHC:12439 before this court. The issue before this court is restricted to the question ofthe rights ofthe petitioner.

205. So far as the approach of a court on such issues, is concerned,in para 13 ofthe pronouncement reported at(2003) '4 see 601 State ofMaharashtra vs. Dr. D.PrafulB. Desal, the Supreme Court stated that one needs to set out the approach which a court must adopt in deciding such questions and reiterated that'the first duty ofthe court is to dojustice. 206, In para 15 of AIR 1980 SS'1622 Mmiicipal eounclf Ratlam vs. Vardiclmn & Ors., the court observed that:- "15.' The nature of the judicial process is not purely adiudicatorv nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile." 207; In para 11 of (1997)6 See 241 Vislialdm & Ors. State ofRaj asthan & Ors., the Supreme'Court held that the' obligation, of the Supreme Court under.Article 32 of the Constitution,for the enforcement of fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LA'WASIA region. These principles were accepted by the Chief Justices of the Asia and the.Pacific at Beijing in 1995 as' those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning.of the judiciary. The objectives of the.judiciary mentioned in the, Beijing Statement are: "Objectives ofthe Judiciary:

10. The objectives and functions ofthe 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 ofthejudicial function, the observance and the attainment of human rights: and '. (c)to administer the law impartially 'among persons and between ' ' persons and the State." In Clause 10(a) of the objectives of the Chapter on 'Objectives of the Judiciary', it has been clearly stipulated that the objectives and functions of the ludiciarv include ensurincr that all persons are able to live securely under the rule oflaw. 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 WF'fCJ Mo. 172/1997 entitled Smt. Kmnla Devi fs. Govt. of MC2^ ofDelhi & Ors. In this judgment, learned brother B.D. Ahmed, J was dealing with a case relating to a prayer for compensation for the death of one Uday Singh, an electrician who was killed in an explosion on account of terrorist activity in Delhi. The court held thatlower courts would-lose their efficacy if they cannot possibly respond to the needs of the society technicalities there might be many but the justice-oriented approach ought to not be thwarted on the basis of such 2010:DHC:12439 technicality since technicality cannot and ought notto outweigh the course ofjustice.

209. While referring to severah 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 KamM Devils case (supra)-3.[3] follows "7, XXX The fact of the matter is that Uday Singh lost his life on account of an act of terrorism. The State failed to nreveiit it. The Primary duty of the State is to uiRiutaiu peace and harmony amongst its citizens. If for some reason, it is unable to put the lid on simmering discontent, then it is its duty to protect innocent citizens from harm., If it fails in this duty, then it must compensate the citizens who have been wronged." Reliance was placed on the pronouncement in SC 1960 Nilabati Behara @ Lalita:.Beliura Vs. State Orissa wherein it had been also observed that while directing monetary compensation for established infringement of the fundamental rights, the courts take into'account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not,act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. 210., In AIR 1989 Mad.'20'5 R. Gandhi & Ors. UOI & Aiir., the Madras High court was concerned with the inability of the State to enforce public order putting injeopardy the life and ■liberty, home and hearth of the victims involved. The petition sought redressal for the trials and tribulations undergone by the minority Sikli community of Coimbatore in Tamil Nadu and a few others in the wake of the assassination of late Piline Minister Suit. Indira Gandhi on 31st October, 1984. Observing on the violation of the fundamental rights and the duty of the state, the Madras High Court placed reliance on the obsei-vations of the Supreme Court in the Olffa Tellis case, and held as follows "21. The ■ maintenance of law and order is the priiTiRrv dutv of the State and under our Constitution it is a State subject and tons the State List. No Government worth ' the name. can abdicate this function and ■put the life and libertv, the hearth and home of the citizens in ieopardv. Article M of the Constitution enjoins on the State to strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Under Article 19(a) 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 carry on any occupation, trade or business. Article 2T lays down that no person-shall be deprived of his right or personal liberty except according to the procedure established by law. As pointed out by the Supreme Court in Bombay Pavement Dweller's ' case, MANU/SC/0039/1985; AIR1986SC180, no person can live without the means of living, that is, the. means of livelihood and the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Under Article 300(A) of the Constitution, no person shall be deprived of his property save by authority of law and to allow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation of the right to property guaranteed by the Constitution. The members of the Sikh Community form an integral part of the Indian societ^;^; they have every right to,settle down in Coimbatore and carry on ■their profession. They have the Constitutional right to live and they cannot be deprived of their means of livelihood. Their right to property is inviolable. All these Constitutional rights of the Sikhs and a few members of the other communities have been 2010:DHC:12439.flagrantly infringGd. by thg inaction of tliG law enforcing authorities. --Fundamental rights are not mere brutum fulmen. They are the, throbbing aspirations and realities of civilised human life, they cannot be rendered desuetude or dead-letter or as observed by Bhagwati, J. as he then was, 'a paper parchment, a teasing illusion and a promise of unreality', bv the failure of the State to protect those rights. These unfortunate victims of arson and n violence are, therefore, entitled to seek reasmmble r.ampfinsB.tioii from the State of Tamil Nadu, which has failed in its dutv to nrotect their Constitutional n and legal rights. •

22 It is a matter of recrret that the State of Tacnil Nadu, which has failed to carrv out its elementarv function of enforcing nublic order should treat the victims of its own lapses as beouars with hnwl.q for alms. It is not charitv that is expected of the nmrarmTient. but legal recompense for wrongs done to them, for iniuries inflicted on them on account of the break-down of the Governmental machinerv. The second resnondent— State of Tamil Nadu canuaot, therefore, shirk its restJOiisiMlitv 'for these unfir^n'tiiniate ImKupenmcrs or try to escape from its oblidatioM b.s a. -social welfa.re Stsite to nislw siiitaMe amends."

211. Examining the claim for compensation on account of death of a spouse in similar riots targeting members of the same n community in Delhi in 1984, Anil Dev Singh, J in the judgment reported at 1996(3)AD (Delhi) 333:1996(38)DRJ 203 'Bliajan Kaur vs, DelhiAdmn.has observed as follows:- "(10) Article 21 is the Nation's commitment to bring every individual or group of persons within its protective fold. This Nation belongs to members of all the communities.They arc equal members ofthe Indian, society. Equality before law and equal protection of laws is ensured to them by Article 14 of the Constitution to them. None is to be favoured or discredited. The conduct of any person or group of persons has to be controlled by the State for the lofty purpose enshrined in Article 21 ofthe Constitution. It is the duty of the State to create a climate where the cleavage between members of the society belonging,to different faiths, caste and creed are eradicated. The State must act in time so that the precious lives of the people are not destroyed or threatened. Otherwise, Article 21 will remain a paper guarantee. Time is long 2010:DHC:12439 hortatory effect in enforcing Article 21 of the Constitution. The.State cannot adopt a "do nothing altitude". Like disease prevention, the State must take every precaution, measure and initiative to n prevent terrorem populi of the magnitude represented by 1984 riots and in the event of an outbreak of riots it must act. n swiftly to curb the same and not allow precious time to slip by, as any. inaction or passivity on its part can result,in loss of precious life and liberty of individuals amounting to violation and negation of Article 21 ofthe Constitution' The State has to enforce—minimum ■standards of civilized behavior of its citizens so that the life, libertv. dignity and worth of an individual is protected and preserved and is not jeopardised or endangered: If it is not able to do all that then it cannot escane the liabilitv to nav adequate compensation to tl-iR familv 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. " It is noteworthy that in para 25, the learned Judge in Bhajan Kaur's case, was of the view that the judicial trend is to award substantial compensation for illegal extinction or deprivation of life and liberty.

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) DLT150 Manjit Singh Sawliiiey vs. UOI & Ors.^ placing reliance on the principles laid down in the aforenoticed pronouncements, it.had been observed as follows "20. The award of monetary relief to the victim for deprivation of fundamental.right is to be guided by the aforestated principle requiring the state to make monetary amends under nublic law for the wrong done due to breach of the public duty of not protecting the. fundamental rights of the citizens. This computation is not guided by any strict arithmetical formula and it has 2010:DHC:12439 to be borne in mind that money cannot remove the trauma and the battering suffered by a victim.

213. The obsei-vations of the Supreme Court in AIR 1981 SC 487AJayHBsia KlialM Mujib.Sebravardi& Ors.are also classical and topical on this aspect and shed light on the issue under consideration as follows. "Where constitutional fundamentals vital to the -mRintRTiance of human rights are at stake, functional realism and not facial cosmetics must be the diacrnostic tool/for constitutional law must seek the substance and not the form..... It must be remembered that the fundamental rights are constitutional guarantees given' to the people ofIndia, and: are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The Courts should be anxious to enlaroe the scone and width of the Fundamental Ricrhts bv brincriiiQ- within their sweepeverv authoritv which is an instrumentalitv or agencv ofthe Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its mvriad activities, whether throucrh natural persons or throucrh corporate entities, to the basic obligations of the Fundamental Rights."

214. It is a well settled principle of interpretation of the constitution as well as statutes that the same have to be read keeping the societal changes and growth. Law must change to keep pace with the on going developments and new rights may have to be found out within the constitutional scheme. (Ref; (2003)6see 1 Kapila Hingorani vs. State ofBihar(para 60 at page 30). The imperative necessity to take recourse to take such interpretative changes by the courts has resulted in the expansion to the right to life ensured under Article 21 of the Constitution of India.. The court relied on earlier judgments and reiterated that the first duty of the court is to do justice. In para 62, the Supreme Court also declared that the right to development in 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 exeicise of jurisdiction under Article 32 and 226 but would be the mandate of every court and its essentialjudicial function. The claims \ in the present cases have to be adjudicated on these principles. n 216. In P.K.Koul(supra),a specific order was passed on 15"' October, 2.003 in W.P.(C) No.6.551/2003 by this courtto decide the petitioner's representation dated 16"'January, 2003 seeking permission to continue to retain the quarter. Without meaningfully complying with this order, the respondents have taken recourse to the proceedings under the Public Premises r (Eviction of Unauthorised Ocqupants) Act, 1971. Such a decision of the respondent patently violates the petitioner's basic human rights and constitutional guarantees noted hereinabove. Other petitioners have also made similar representations on which orders have not been passed by the respondents.

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 August, 2001. She and family were dependent on late Shri T.N.Raina and residing with him in the allotted quarter. The respondents have been unable to rehabilitate this legal heir who is also a Kashmiri,displaced person and ifforcibly evicted from the premises in her possession, she has nowhere to go. It is contended by Phoola Raina that the meager pension she is receiving is her only source of income which is 2010:DHC:12439 insufficient to even bear the expense of food for her family members. The writ petitioner has also placed reliance on SR- 317 B-25 of the allotment of Allotment of Government Residences(General Pool in Delhi) Rules, 1963. In view of the above discussion, it is clearly evident that so far as her claim is concerned,the same fundamental and human riphts 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 oftheir right to life in their home state. This situation has come to be despite the 1984.riots, which mark an Unfortunate watershed in Indian,history, when examined from any aspect. The threatened breach of primarily oftheir right to shelter, a basic human right and an integral part of the guarantee under Article 21 of the Constitution of India, even at.their displaced location at the hands of the respondents has compelled invocation of this court's extra-ordinary jurisdiction under Article 226 of the Constitution.

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 to shelter of the petitioners in their home state has been abridged by any procedure established by law. Such infraction of their rights is purely on account of the inability of the respondents to discharge their constitutional obligation; duty and responsibility of protecting the life and property ofthe petitioners. The respondents have a positive duty to provide basic necessities to its citizens. It certainly defies commonsense and 2010:DHC:12439 all notions of human dignity to permit the respondents to exclude such facilities as bare shelter which is essential and necessary to encourage the self respect and dignity, of these displaced persons in a human manner consistent with 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 Courtthatin case ofviolation 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 right to life and personal liberty. {Ref.;(19.81)1 SCC627;AIR 1981 SC928KImtri& Ors. Vs. State ofBihar& Ors.).

222. In (1991}.4. SCC 584: AIR 1992 SC 248 Union Carbide Corporation Vs. Union ofIndia, it was stated by the ChiefJustice Ranganath Misra that"we have to develop our own law and if we find that it is necessary to construct a n new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future there is no reason why we should hesitate to evolve such principle of 2010:DHC:12439 liability. The observations of Venkataclialialy 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 1969Smt. NilabatlBehera alias Lalita Bebera Vs. State of Orissa & Ors.

223. Thejurisdiction ofthe court to mould the reliefso as to do justice to a party complaining of infringement of Chapter III rights is wide and requires to fit the contours ofthe right which is violated. It is essentiah 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 UOI& Ors., the court expanded on thejurisdiction and obligation ofthe court to mould a new reliefin the following terms "3 It may now be taken as well settled that Article^does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillarv powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new. methods'and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning."

225. The Supreme Court has categorically held in see.300 J,Pc Ravidsis & Ors, vs, Navyuvak Utthapan Multi UnitIndustrial eoop. 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 the state for violation of those rights. In other words,'the power of the court is not only injunctive in ambit, that is preventing the infringement,of a fundamental right but it is also remedial in scope and provides the relief against the breach of the fundamental right already committed.'{AIR 1989 Mad.205R.

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 thejudgment reported at 2001(1) jeeDelhi57 Goveriiment of NeT of 'Delhi vs. Sliri Nasiruddin (Father of deceased 'to the following effect "21., It is true that nerfect comnensatimi is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Morris in West v. Shephard (1964) AC 326. Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially, as he was before accident eomnensatioii 2010:DHC:12439 no exact uniform rule measurmff damage."

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

229. In (199.0) 1 SCC 328 S.M.D. Kiran Pasha fs. Government ofA.P., the Supreme Court had observed that a writ petition would be maintainable under Article 226 of the Constitution of India also when a right under Article 21 is threatened as contradistinguished from the right when it is infringed. In para 21 at page 342 of the report, the court held as follows "21. In the language of Kelsen the right of an individual is either a mere reflex right-the reflex of legal obligation ejdsting towards this individual; or a private right in the technical sense -the legal power bestowed upon an individual to bring about by legal action the enforcement of the fulfillment of an ■obligation existing towardliiin, that is, the legal power. From the above analysis it is clear that in the instant case the annellant's fundamental ricrht to libeity is the reflex of a-leaal obligation of the rest of the society, inrlndinn the State, and it is the appellant's legal power bestowed nnoh him to brincj abont by a legal action the enforcement of the fulfillinent of that—obligation Ryistinrr towards him. Denial of the legal action would, therefor<^, Rmount to denial of his right of enforcement of his riabt to liberty. A petition for a writ of habeas corpus wonld rot be a substitute for this enforcement." These principles have been reiterated by the Apex Court in (2003.) 6 SCC1Kapila.Hingorani vs. State ofBllian

230. These judicial concepts have evolved from conservative and traditional judicial systems and 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, it is again well settled that the same would not be monetary alone. Principle 18 of the Guiding Principles for IDPs as set out by the UN mandates that competent authorities shall provide internally 2010:DHC:12439 displacedpersonswithandensuresafeaccesstoessentialfoo^^^V/^ and potable water, basic shelter and housinp, appropriate clothing, essential medical services and sanitation, etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate fully and egually in public affairs at all levels and are entitled to equal access to public services in the part ofthe country where they are resettled. Princinle 29 mandates when recovery of the property and possessions which the IDPs left behind or were dispossessed ofupon their displacementis not possible,they are entitled to be provided appropriate compensation or another form of'iust reparation'.

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

23.4. There can be no dispute at all that whether it be a jhuggi or mud built thatched house or a mansion considered in Sbantistar(supra), without security oflimb 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 2010:DHC:12439 elements, but from the larger threats and dangers which have been created by mankind. Even if the respondents were in a position to provide shelter in the home state of the petitioneis as'envisaged in the affidavitfiled mJ.L.Koul(supra),in order for such right to be meaningfully enjoyed, it has to be ensured that there is peace within the community and the state, that its law enforcement agencies are able to ensure that the 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 protect and guarantee their safety and security. The, respondents do not even remotely suggest that they could get restitution to the petitioners of their properties which had been left behind in the Kashmir valley.

236. The Supreme Court has also prescribed different reliefs in cases involving breaches of constitutional rights.. In'Municipal Council Ratlam Vs, Vardichan & Ors. (supra), the Supreme. Court was ofthe 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. Riffhts Commission vs. State of Arunaclial 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 Arunaclial Pradesh, the state was protected and any attempt to forcibly 2010:DHC:12439 evict or drive tliem out was repelled in view of the violations and threat to their lives. • ' ' As noticed above,in para 13 of Milabati,Beliaira @Lalita Bebura Vs. State of Orissa(supra), the court had moulded relief by granting monetary compensation in view of the failure to protect fundamental rights of the persons. In fact the court held that the refusal to pass orders for compensation would be doing lip service and that the court was under an obligation to grant relief(para 37). In 1997 (1) see 416 D.K. Basis vs. State of West Bengal the Supreme Court emphasized a justice oriented approach which was responsive to the needs ofthe society. The court had.also granted monetary compensation for violations in this case. Denial of wages was the consideration and relief moulded appropriately in Kapila Hingorani Vs. State

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 have not even entered the respondents' consideration. The same has however not been possible so far. This court cannot shut its eyes or judicial conscience or remain oblivious to the stark realities.

239. Theissuesraisedinthe presentcasehave arisen befoip^^^ ill the context of persons facing displacement on account of development and infrastructure projects especially major river valley projects. In (2000)10SCC 664:AIR 2000SC 37j[1] Narmada.Bacbao Andolan vs. Union ofIndia the Supreme, Court was concerned with the displacement oftribals as a result of construction of the Sardar Sarovar Dam. In para 62 at page 702 of the SCC report the court held that if, the displaced persons were in a better position to lead a decent life enjoying better amenities and facilities and earn their livelihood in the rehabilitated location, their fundamental rights guaranteed under Article 21 ofthe Constitution would per se not be violated by the construction of the dam.and the resultant displacement. This position was reiterated in (2005) 4 SCC 32 Narmada Bacliao Andolan vs. UOI& Ors.

240. In para 60(pg 394)of(2004)9SCC362N.D.Jayal & • A nr. UOI & Ors., Rajendra Babu, J held that rehabilitation of oustees of a dam is a logical corollary of Article 21 of the Constitution and that the oustees should be in the better position to lead a decent life and earn livelihood in the new locations. No reason at all as to why forcibly displaced persons as the petitioners should not be similarly treated given the violations of their constitutionalrights. 241.. Before this-court, the petitioners are aggrieved by the deprivation of their homes and property and the threat by the respondents to evict them from the only shelter possessed by 2010:DHC:12439 their constitutional obligation of protecting the life and liberty of the petitioners and ensuring shelter to these victims of criminal acts who stand displaced from their home for no fault of theirs, primarily on account of failure of the respondents to protect their Constitutional rights. In case rehabilitation is not possible then the respondents have no option but to ensure meaningful and reasonable resettlementin the above terms. To mitigate effects of the displacement from home, health and property, the respondents are thus legally obliged to provide at least reasonable shelter as part of the proportional compensation,to the petitioners for violation of their basic and fundamental rights. Such 'just reparation' would constitute part of"reasonable compensation" and would be a step towards suitable rehabilitation ofthe petitioners. Reliefin these petitions has to be so moulded.

242. It is, now necessary to examine the contours and parameters ofthe state responsibility.

243. Mr.Jatan Singh,and Mr. R.V. Sinha, learned counsel for the Union of India have urged at length that the petitioners were fully aware about the fact that eventually they were to n retire from the Government service. The submission is that they were required to have made their life plans and alternate arrangements with this unavoidable event in mind.

244. The further contention is that, the government ensures adequate financial security to retiring employees, who have the benefit of pension as well as other retiral benefits which run 2010:DHC:12439 into several lakhs of rupees iiicludiiig gratuity, provident fund etc. and nothingfurther can be expected ofthe respondents.

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

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

247. We are here concerned with the entitlement of shelter to IDPs. So far as the nature of the development which would meet the guarantee of shelter and ensure a life of dignity to.the person concerned, in para 9.of the pronouncement reported at see 520 Sliantistar Builders Naraymi Totmne & Cte., the Supreme Court had observed as follows "9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to -live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human beincr it has to be a suitable accommodation which would allow him to grow in every aspect - -physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible onlyif the child is in 2010:DHC:12439 a propar home. It is necessary that every citizen must he ensured of liviiicr in a well- built coiiifortable hnnse but a reasonable home uarticularly for people I'n India cau even be mud-built thatched house or a mudbuilt fire-Tproof accommodation." Undoubtedly, so far as the reasonableness and adequacy of the measures which the respondents are required,to take, must meet the principles laid down in the aforenoticed pronouncements of the courts, the international conventions, the standards in the guiding principles for'IDPs and ensure the rights ofthe petitioners.

248. The above International instruments and Guidelines for IDPs provide not only for the right to adequate shelter and housing services but also refer to access to land on equitable basis to all. They recognise and cast a positive obligation on the state i.e. the respondents, to take other reasonable measures possible to ensure complete realisation of the right to adequate housing of the petitioners. It is evident that the.respondents cannot avoid their responsibility and duty to ensure that the.aforenoticed basics to the petitioners. These are the principles which had to guide the consideration of the issues which were before the respondents and have been raised in this bunch of writ petitions.

249. The claim for shelter in these writ petitions is thus pressed as part of the compensation for the violation of the petitioners rights. The petitioners seek directions to the respondents to permit them to occupy the premises in their occupation till such time the respondents are able to discharge their constitutional duty of protecting the lives and property of 2010:DHC:12439 its citizens and providing them permanent residences. In similar cases, the Supreme Court and this court has permitted the displaced persons to continue to occupy the occupied quarter. Order to this effect stand-passed by the Central Administrative Tribunal as well. The respondents have permitted some ofIDPs to continue with their occupation ofthe allotted quarters after retirement. There is clearly no justification at all for not permitting the petitioners to do so in the given facts and circumstances. Riulits ofdependants ofdeceased allottees.

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

251. So far as the claimed rights or the violations urged by Smt. Phoola Raina are concerned, other than a bald plea that she was not the allottee, the respondents are unable to point out any distinction from the other petitioners. The respondents do not state that she' can safely return to any residence in the Kashmir valley. It is also not averred that this petitioner owns any property into which she could shift. It is not even suggested fe \ 2010:DHC:12439 that there is any difference in the constitutional rights 0 scheme between her and the other petitioners. Not a single circumstance which coiild disentitle this petitionei to grant of relief against the threatened eviction and violation of hei Gonstitutional rights has been placed or made out in the case. Till such time that the respondents are able to meaningfully and reasonably rehabilitate this petitioner, her. forcible eviction under the shield of statutory process is also without any doubt constitutionally impermissible.

252. As noted above the respondents have admittedly made discretionary allotments in favour of persons who are not Government servants. It. is not explained as to why such discretion could not be exercised in favour of this petitioner. Certainly permitting such a dependant of the deceased allottee to continue to occupy the accommodation under occupation till alternate shelter was made available would not violate any rule as well. The same would clearly be in consonance with the. constitutional mandate and the principles which emerge from the several judgments noticed above. It is clearly evident that such a dependant would be permitted to continue to occupy the allotted accommodation till such time that the respondents ' meaningfully resettle and rehabilitate the IDPs or they acquire their own alternatives or if the respondents are able to show that they have the means to make alternate meaningful and reasonable arrangements.

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

254. It is evident that the learned appellate courts in the appeals also adopted a hyper technical approach ignoring the serious violation of constitutional.rights which has resulted to the petitioners and the drastic consequences of rendering them homeless which results on implementation of the eviction order. The constitutional rights of the litigants are not only well established but are without any limitations. The orders do.not indicate that the several important questions raised by the petitioners were deemed to deserve an adjudication including the manner in which superior courts had dealt with similarly 2010:DHC:12439 situated displaced persons. The learned courts paid n attention to the declared policy of resettlement and rehabilitation of Government or the constitutional rights and guarantees which all courts are bound to enforce.

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

256. The special leave petition m J.L Koul(supra.)was filed in 1997 and the rehabilitation scheme was placed before the court for the first time in 2006 which proceedings culminated in the judgment dated December, 2008 after twelve years. Adjudication was still necessitated in P.K. Handoo vs. Estate (supra) decided on 2"^^ August, 2006; M.K. Koul decided onllth April, 2008. I find that the Central Administrative Tribunal had passed a detailed judgment on 30"' December, 2002 in OA No. 2378/2002 entitled TeJ Klslmn UOL in all these cases by final adjudications, the,petitioners have,been permitted to continue with occupation of the quarter 2010:DHC:12439 concerned. Despite the proceedings and judgments in the abovenoticed matters, the respondents have still proceeded againstthe petitionerin the manner noticed above.

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

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

259. It is essential to make it clear that it is only in the peculiar fact situation of the present cases and the extreme hardship of the petitioners involving violation of the fundamental rights and human rights of the citizens of India that such continued occupation of the public premises by the petitioners has to be permitted. No inference can be laid that any person,not having a property of its own or not having i suffered the violations aforenoticed can or has been permitted to continue to indefinitely occupy the public premises. Therefore, the principles laid down in thisjudgment would bind only a fact situation as in the present case or similar 2010:DHC:12439 circumstances when the State has been unable to protect the fundamental and basic human rights of its citizens compelling them to be displaced from the place of their residence and is not in a position to ensure their safety or security in case they return to the place oftheir residence. In view ofthe above discussion,it is directed as follows

(i) The impugned orders cancelling"the allotment of the petitioners; the orders of eviction passed in the proceedings held against the petitioners under the Public Premises(Eviction of Unauthorised Occupants)Act and the appellate orders which are detailed in para 13 are hereby set aside and quashed.

(ii) A direction is issued,to the respondents to make all endeavours to adequately, effectively and reasonably rehabilitate and resettle the petitioners, making provisions for appropriate accommodations for them. (hi) Till such'time, the respondents are able to provide alternative accommodation to the petitioner and his/or her family anywhere in Delhi, the petitioners shall be allowed to retain and occupy the allotted accommodation (also detailed in column no. 2 of para 13 above) subject to payment of normal license fees.

(iv) Each of the petitioners shall be entitled to costs of

Rs.25,000/- which shall be paid within a period of six weeks from the date of passing the order. These writ petitions are allowed in the above terms. 11029A2004. 731 5/2006, n 11016/2004, 1104 L-4/2004, 11050A2004, 11' 144/2004, 1557/2006, 237 '9/2006, 10547/2007. 13421/2007. 15540/2',008, 16497/200S \i •In view of the orders passed, in the respective writ petitions, these applications do not require further adjudication and are disposed of accordingly. MITTAlC) 5mber5f aa/kr