Through: v. Through:

VERSUS

ESTATE OITFICEI[1] AND ANR....Responclents Through: Mr. JaLan Singh with Mr. Al:hisheh Aggarwal and Ms. Megha A,ND. \ (10) Wqit Petition_(-qivin) No. n 77sl2OO[4] ) and CM No. tr 557 /2AA[6].TEJ KISI-IAN.___r^ nr_- n__-_... pel.itioner Through: Mr. Samrat I(. Nigarn, Advoca.l.e

VERSUS

UOI & ANR....Responclents Throngh: Mr. Ravinder Agarwal, Aclvocate )L (3 AND (11) Wnib tretitflon (Civil) No. 2641/2006 & cM NO. 2379/2006.... Petitioner S'N'BHAT rhro.ugh: Mr. Manoj V. George, Aclvocate '

VERSUS

' UOI AND ANR.....Responcients Through: Mr. Jatan Singh with Mr. Abhishelc Aggarwal and Ms. Megha Bharara, Advocates. ANE (112) Wnit Fetition (Civil) No" 568T?AA[7] and CM No,. 1054712007 I M.K. TIKOO... petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo ancl Mr. Manish shulda & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. Resnorrc]er"r rrrroush: ur. n. v. sintra *ilhff::fo.tott, Singh, Advocates. AND (13) Wni[ Fetitrlon (Civi[) No. 7Ob7nAA[7] and CM No. 1342n lZOA[4] C.L. RAINA... pe[ibioner Through: Mr. Thakur Surnmit, Aclvocate

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha wiLh tUrl a.S. Singh, Advocates. lL[4] ANDII (14) Writ tretition (Civil) No. 2869/200S and CM No. 554O/2OO[8] S.N. KAUL... Pebitioner Through: Mr. R.I( I{andoo with Mr. Yogincler Hancloo and Mr. Manish ' Shukla & Mr. Atul Sharrrra, Advocates

VERSUS

UOI AND ANR....Respondenl,s Through: Mf. R. V. Sinha wiLh Mr. A.S AND ' (15) Writ'tretition (Civit) No. 8599/2008 ancl CDd No. 16497/2008 KANTIAYANi GANJOO... Pebitioner Throughr Mr. R.I( Flandoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Abul Sharm.a, Advocates

VERSUS

UOI AND ANR.....Respondent s 3ffin*:i""#ill v sinrra wiLh Mr A S A.ND (16) Wrir tPeririolr (aivix) No. 8600/2008 ancl CIVI 16499/20CI[8] FI.L. KOUL... pe[iiioner Througir: Mr. R.K. Hancloo with Mr-. Yoginder l{andoo and Mr. Manish Sliulda & Mr. Atul Sharma, Aclvocates VERSUS....Respondents uoi AND ANR' Through: Mr. R. v. sinrra with Mr. A.s. Singh, Adyocates. AND (xz[1] Writ tretition (Civil) No. 8601/20)08 1 J cM NO.. 16501-/2008 VIJAY MAM '.. Petibioner Through: Mr. R.K. Flandoo wi[h Mr. ' Yoginder l{andoo and Mr. Manish Shulda & Mr. ALuI Sharma, Advocal,es

VERSUS

UOI AND ANR.....ResPonden[s Through: Mr. R. V. Sinha with Mr' A.S. Singh,"Advocates.. AND (nB) Wnit tretition (Aivil) No. 86411/2009 ancX CM No. 5796/2009 D.L. KAUL;. r,'.L. KAUL... Petibiouer I Through: Mr. Samrat I( Nigam, Advocate VERSUS.

UOI AND ANR. _.....ResPouden[s fhrough: Mr. R. V. Sinha with Mr. A.S. AND (19) Writ Fetition (Aivil) No. 9609/2009 & cM NO. 7654/20q[9], Y.S. JAMWAL... Pe[itioner *\ Through: Mr. Naresh "fhanai, AdvocaLe

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr. A.S. AND (20) Writ tretition (Civit) No. I 1"g77lzAAE.! 61 10986/2009 M.K. BAZAZ... petitioner, Through: Mr:. R.K. Handoo wilh Mr". Yoginder Handoo and Mr. Manish Shulcla VERSUS )T,,"" r;;*"i,1"?l$?]t'. Abhishek Aggarwal and Ms. Megha Bh.arara, Advocates.

A.ND (211) Wn"it tretition (Civil) No. 111548/2009 & c$4 NO. 1-L351/2009 B.L. TAKAROO.. Petitioner Through: Mr. Manoj V. George, Advocate VERSUS, UOI AND ANR.....Responden[s Through: Mr. Jatan Singh with Mr. Bharara, Aclvocates. (22) Writ tretition (Civil) No. 1n-488/2009 & cM NO. 1L2421244l9^ MOTILAL I(AUL.. Petitioner Through: Mr. B. L. Wali, Aclvocate.

VERSUS ESTATE OFFICE& DIRECTORATE OF ESTATES,....Respondenbs NIRMAN BI-IAWAN. Through: Mr. Jatan singh with Mr. ' Al:hislielc Aggarwal ancl Ms. Megha AND (23) Wnit Fetition (Aivil) No. n_1489/2009 & cM NO. I=n 244/2009 ' B.L. RAINA... petitioner Through: Mr. B. L. Wali, Advoca.te

VERSUS

ESTATE OFFICER...Responclenbs Through: Mr. Jetan Singh wiuh Mr. A-bhishek Aggarwal and Ms. Megha 1'l AND (24) Writ tretition (C) No. 1lL49O/2009. & C.Mo.No.L1L246/2009 A.K. GIGOO... PeLitioner ESTATE OFITICER Through: Mr. B. L. Wali, Advoca[e. VERSUS:....Responden[s Through: Mr. Jatan Singh wiLh Mr. Abhishelc Aggarwal and Ms. Megha COFAM: Fltolt'IBLE Ms. JLTSTTaE GIT'A MrmA.[,.

1. Whether reporters of local papers may be allowecl ' to see Lhe Judgment? ?. To be refei::ed to the Repor[er or not?.

3. WhethOr the judgrnent should be repor[ed in the Digest? W 1,. The instant case is a testimony [o even[s w]rich lead l,o an unprecedenLed ethnic cleansing of a rninority comm.uniLy frorn Lhe Kashrnir vailey on account of the inability of the SLate to 'irrobect them and tireir properby from violence, who, as a result, were reirclerecl homeless. such lurmoil was faced. by, [he rninority cornmunity in the state of Jammu & I(ashmir aftel: December, 1989, cornpelling its members l,o flee home, hearbh and StaLe for bare survival. These writ petitions have been filed by sotne of sur;It clisplacecl persons who were. central Governrnent employees seelcing irrotection against forcible eviction of the quarters oicupied by thern on the grouncl that it is the only roof available bo'thern. t,

2. The peti[ioners con[end thab bhose representing the Central Governrnenb in the Kashmir valley, especially those who were represenLing [he intelligence agencies, para rniliLary ancl defence forces as well as l,he Governrnent.rnedia l:ecarne prirne Largets of bhe rnilitants to the extent that lists of such persolls who hacl [o J:e targeted were published. ancl circulabecl in the localities. Fanrilv mernbers and friends of such Goverurnent employees were killed and their pr:operties destroyed for [he message to perrneate. As a. result, immediate stei:s for evacuation of such officials on emergency basis were taken by the Governmen'L of India in order to at least pro[ecb bheir lives.

3. Ihe wri[ petitioners in W.P.(C) Nos. 5681/2007, 2869, L5246, 862. 1.524L, L5264. L5279, L5698. t77912004. 264u2006.. 7 057 007, 8641 9609. LT54B. LL4BB.LL4B} 11490 & 11491-/2009 wele sirifted from Jammu & Kashrnir to Delhi and posted in the local offices of the central organizalion and departm.enL.where they were employed.

4. The facts disclose that all the petitione::s (or the person on 'Whorn tirey were clepenclant as in the case of Srnb. Phoola Raina wiclow of Late Sir. T.N. Raina writ. petitioner in W.p.(C) NO. 15698/2004) upon being brought to Delhi were alloLLecl Governinent accommoda[ion to reside'in, not only by virtue of their ernployrnent bu[ also their exlrerne neecl for shelter. These allotLees of []re cluar[ers, superannuated frorn service otl clifferent clates over the periocl of time.

5. W.P.(C) No.15698/2004 has been filed by Srnt. phoola Raina, widow of Late shri r.N. Raina who l[1] 008, Lt377 t200 servttnb. Shri Raina was the allottee of Government accornmoclation bearing no. DG-91-5, Sarojini Nagar, New Delhi 2g. While sLiII in sewice Sirri T.N. Raina unforLunately expirecl on the 4'r'of August, 200L The peLitioner contends that laLe'Sh. T.N. Raina ancl family which includecl herself were cornpellecl to 'flee' from the vailey in circumstances identical to those of the other petitioners. This petitionep is sirrviving' on a meager pension and. she cannot afford any alternate accomrrlod,ation.

6. The peLitioner in W.P.(C) No.56B1-/2007 evacua[ecl in the same emergent conditions, is stated to be afflicLed wlth [he,: Peirhinson's disease since his retiremenL. His home in I(ashmir sLands burnt. I-Iis relative, one Mrs. Chuni Lal had gone to retrieve irer belongings from Kashmir, but was shoL dead 'a[ point l:Iank range. The petitioner is statecl to be balely suwiving on his pension. He has no place to return in his horne s[ate.

7. So far as the 1re[itioner in W.P.(C) No.2B69l2008 ancl his fami.ty afe conCerned, they were shifLed oub by the GovernmenL on account of the perception of a serious threat to l,heir lives. IL 'is. conbended that Lhe rnilitants have burnt the p.etitioner's ancestral horne in order to dernonstrate'their intention of not sparing hirn. In addition, Lhey have shot deacl his,uncle dncl wife aL poin[ blanic range. As a result, other than the cluarter uncler occupa[ion, l,he petitioner is without eny alternate shel[er.. B. Shri p.K. I(oul, the peritioner in w.p.(c) No: 15239/2004. was a resident of Razdan, Kochhaa, Bana Mohalia, I-Iabba Kaclal, Srinagar and his entile property in Sri.nagar has been clesbroyecl by the communal riots and 'terrorist movernents. FIe cleallv s[ates that he ]ras no other house anywhere in Inclia. This petitioner was lastly posted as the Director General. with [he Borcier Secunty Force at R.I(. Puram, New Delhi' While in service, this petition'er was allotted the prernises no' I-I-52, Sarojini Nagar, New Delhi. On 3l-'t July, 2002, the petitioller supera.nnuatecl from service. The 'allotrnenL. of tiris accolrlnlodation in his natne was cancelled by a le[ter dated 27l28th August, 2002 with effect from l-'t Decernber, 2002 clirecting Lhe petitioner to vacaLe tltq accolnmoclal,ion imrnediately and he was informed thal. on failure to vacate, action to evict hirn und.er: the Public Prernises (Evic[ion of Unan[horisecl Occupants) Act, 197L would be [ahen. The responden[s also informed the petitioner thaL ou fai]rire l.o vacate, he wouid be liable to pay damage ren[ @ Rupees L50 per sq. ur[r. for bhe en[ire periocl of over sLay. The petibioner was perrnitLed to retain the accommodation from l-9r Decetnber, 2OO[2] to 31't April, 2003 on payment of four times of the norrna] licen.se fee for the next two months.

9. Ttre petitioner and his farnily are permanenl. resiclents of the State of J&K and did not leave their home sl,aLe voluntarily but were driven out of the Srinagar valley. Their household goods were loo'Led ahd house.was burnt by [ire 'berrorists. Other" bhan the one residence, which also stands destroyed by. the rnilitants in Srinagar, Shri P.K. I(oul ownecl no other proper[y. A grievance is rnade that the respondents have tahen no actiou for the reconstruction of the. houses of the petitioners and ol.hers like hirn which were destroyed by Lhe miliLants ancl 'to rehal:ilitate them'r'esulting pitiable of any security forj thern. Consequently, they are. unable [o returrl to their own hornes.

10. In this background, lhe petitioler su]:mittecl a rellresentation clatecl 24tI' March, 2003 seeking perrnission' frorn the respondenl. Lo retain his accommodaLion on payment of l,he existing norrnal license fee-setting ogt the al:ove facts. Despite per:uiit[ing retenbion of accommodation by other sirnilarly placed persons, this request of the petitioner was rejectecl by the let;ter cla[ecl 20tL February, 2003. The responclent,ro. 2 fur[her ieferred [he case for eviction of the petitioner, Lreating him as an trnaubhorised occupant of pubiic premises under the lrriblic Prernises (Eviction of Unauthorised OccupanLs) Acb, L971,. 1,1,. In bhese proceedings, the following evicLion order cla[ecl 23'd Septernber, 2003 was passed against the petitioner which was served on him on l-Bh November, 2003:- "OFFICE OF THE ESTATE OFFICER AND DEPUTY DIRECTOR OF ESTATE (LIT.)

DIRECTORATE OF ESTATES, NIRMAN BHAWAN, NEW DLEFII. EC/93/AD ILITI03IT-D All persons concerned and in particular Sh:i P.K. Koul, l-23, NorLh West Moti Bagh, Nu* Delhi Wh.ereas I, the unclersigned am satisfiecl for the reasous recorded below that Shri P.K. I(oul is an unauthorized occupation of the prernises specified in the Schedule belor,v l REASONS You have been continuing to occupy the prenrises sirecifiecl in bhe scheclule b-elow even atter its allormenu stands cancelled in your name w.e.f. L.z.o[3] vicle letter: no. TD/2 B3/M -23196 dared 8.L[1]..02. You have failed to prove that you are no[ in unau[horizecl occupa[ion of the insLant premises. Now, therefore, in exercise of the powers conferrecl on me under sub-section (I) of secLion 5 of bhe public premises &t (Eviction of unau[horized. occupants) Act, 1971" I hereby order Shri P.K. I(oul, and all the persons who rnay be in occupa[ion of the saicl premises or any par[ thereof to vaca[e the' same within 1-5 days from the da[e of issue of this orcler. In the event of refusal or failure [o comply with this ord.er wiLhin the period specified above, the said Shri P.K. I(ouI and all other pqrsons concerned are lia}le Lo be evicl,ecl from the said premises, if need be, by the use of such force as may be necessary.

ESTATE OFFICER Date: 23.9.2003 Copy bo A.D.-T-D." L[2]. The pebitioner filed an appeal regisbered as PPA NO. 33312003 challenging the said eviction order. Il, is conLencled that the learned Aclditional Dis[ricL Juclge nr.echanically clisrnissed. the petitioner's appeal by an orcler dabed L0u' September, 2004 ignoring the orclers passed by the Suprenr.e Court and oLher precedents of l"his court in respect of iclentically placed. persons, necessitating bhe present petition., The subrnission is that the cancellation of the iretitioner's allotrnent by the leiLer clateci 27.28'h August, 2002; rejection of [he peLiLioner's request by the letter daLed 20tr' of Febluary, 2003; the order of eviction dated 23'd Septernber, 20Q[3], as well as the order of the learned ADJ dated LOtr' Septernber, 2004 are legal.ly no b sustaintrble. The writ petition lays a chalienge to Lhese orclers as well as [he non-action of the respondents. L[3]. The facts relating to the otherpetitioners in bhis bunch of petitions are similar ancl are not clisputecl by the reslronclen[s.. For- the jlurposes of convenience and clarity, the ailoLrnenl, of accomrnod.ations which were effec[ecl in favour of the pe[itioners/the preclecessor in in[er'est; the dabes.of [heir retirement; the status of allotment and particulars of Lhe orders which have been passed against all dhe petitioners aircl. are inpu.gned in [hese writ petitions are tabulatecl below:- /s a---n f- v,firrlr - Date of R.etirenten tof,4IIottee Cancellati I ott of ! sla-t--. 'Date of i Date of I 28.3.200s I 20.'I[2].2oas I, Fetition.No. wP (c) No.1-5239 l2ao[4] WP (C) _ No.B62l[2] wP (c) No.1779l WP (C) No.1-524L 1200+ Quarter,4IIotted H-52, Sarojini Nagar, New Delhi GI-BOO, Sarojini Nagar, New Delhi r-r-1.62, Sarojini Nagar, New Deiiri rz3lrv, NorLh Wesb Moti Bagh, New Delhi 499 A, Sector 3, R.K. Puram, New Delhi z-29, Sarojini Nagar, New Delhi LL15, SecLor-1, M.B. fioad, New Deliri Date of, impuEned order of,4,IIotmemt 3L.7.2002 3r.1"0.2002 L.7.2002 3t.L0.2002 23.9.2003 | tO.g.ZOOrt 7.5.2002 7.5.2002 I0.9.2004 30.9.2002 7.5.2002 25.9.2003 i 10.9.2004 30.4.2005 L.9.2004 12.1.2.2005 I 3'1.1.2006 i3L.L.2006 r a.9.zooz 10.9.2004 1"L.7.2003 10.9.2004 1.2.1.2.2005 3 L. L0.2001 L[3].2002 0.6.2002 impucrnedl ' tke Euictiott I intparcmeal. Otder i order itt i Appeal 'l _.[1] 23.9.2003 | 10.9.2004 I -l-- 2\ wit Fetition.No. Quarter,A-IIot!:ed Date of R.etiremett tof AIIottee Date of intpugned otder of Cartcellati 'onof A-Itrotruettt Da{;e of I Date ot 1..2.2006 funpwanedl tke Euictiom I intpuqtted'.. 0r"der ! otder in I Appe.atr I wP (c) No.1-527 9/2004 wP (c) No.1569 wP (c) No.2641 wP (c) No.568L /2007 WP (C) No.2B69 31252, ' ' Andrews Ganj, New Delhi DG 915, Sarojini Nagar, New Delhi MS/] 007, SecLor VII, M.B. Road, New Delhi Allotted Quarter in Delhi New Delhi 30.9.2006 3t.5.2007 31".L[2].2007 3L.L[2].2007 31..1.2.2007 I sr.z.zooa io.+. r sjga 1.9.199B (AlIottee Died while in service on 4.8.2001) 30.4.2004 3.3.2004

22. L.2002 L.7.2004 25.4.2005 wP (c) No.B599 /2008, wP (c) No.B600 New Delhi New Deliri WP (C) No.B60L /2408 New Delhi L0.1_ 1.200B 20.4.2009 3.8.2009 wP (c) No.B64L /2009 WP (C) No.11-37 7 /2009 BBO, Lal<shrni Bai Nagar, New Delhi Writ Fct{:itiort Nrt. wP (c) No.1L48 B/2009 wP (c) No.1148 WP (C). No.11-49 0/2009 WP (C) Nct.1.149 Lt2009 wP (c) No.1154 B/2009 Qwarter A-trIotted Date of IX.etitenten tof,AI.Iottee Date of innpugrned order of, Camceltrati on of AIIotment ' Date of intpuoned Euir:{:io.ta Qrder SI/38, Sadiq Nagar, New Delhi 30.6.2008 1.8.2008 9.3.2009 30.11.2007 21.7.2008 19.1.2009 30.4.2008 1,8.8.2007 10. L 1.200 B 30.6.2006 1_.1_ 1".2006 1.8.6.2007 30.9.200s L.2.2006 1"8.7.2006 3L.08.2006 0L.0L.2007 28.Os.2007 30.04.2008 31..L[2].2008 r o.og.zoog S- 1/6strL, M.B. Road, New Delhi a AB-837, Sarojini Nagar, New Delhi K-41L[2], Sector II, DIZ Area, Gole Market, New Delhi 47"13N, DIZ Area, Sector 2, Gole Marhet, New Delhi wP(c) No.7057 /2007 x-224, Sarojini Nagar, New Deihi wP(c) No.9609 /2009 Qr.No.2 B L, T11re- IV, Sector-8, R.K.Prira m, New Delhi. e-f Da[e'o,f ilte itttpwarunedt -,t net inn I,A.p,nacaX 25.8.2009 1,.9.2007 Fetiti{iners' aon tentions L[4]. In these writ pe[itions, the petitioners have all contencled LhaL they are perlnanen'l, resiclents of Jarnrnu & I(ashrnir aild have no d.esir:e.whatsoever to resiclq in. Dellii. Flowever, on account of the pr:evailing circurnsLances ancl the inability of [he Government to secure Lheir lives and properLies in their home sLa[.e, Lhey are unab]e bo return to the state. Their proper:[ies.and. only homes in the valiey have eiLher been desbroyed or occupied 1-5. ' Passage of time. also has brought no change in [he conclitions prevalenL.in the state of Jarnmu & I(ashmi::. The petitioners rernain unable to leturn to their own homes.

16. Mr. R.K.I-Iandoo, Mr. B.L. Wali and Mr. Sarnrat Nigam, learned counsdls appearing for the petitioners, with alt [he vehemence al, tlr.eir cornrnand, have urged that Lhe sta'Lns of the pel.itioners stancls reduced to'that of 'refugees' in'their own coun"[ry with nowhere to go ancl no suppor[ at all from [he sta[e, the only clifference being that instead of being clisplaceci to anotlrer counbry, the petitioners stancl evicted wi[hin [heir own corin.[ry. 1'7. 'fhe petil"ioners have contended that cliscretion. and power is vested in the resirondents under SR 3I7-B-25 of the Allo[men[ of the ''Governrnent Residence (General pool in Deihi) Rules t.o per[iil, alry person to occupy public pr:ernises. Instances have been cited of the responclents perrnitting oLher persons inclu.ding identically displaced. Kashmiris l,o occupy public Preufses. IL is complainecl that the responclents have ulfairly failed to consider the special circumstances peti[ioners. are conce]:necl ancl have discrirnina[ed againsL thcrn. The wri[ peti[ioners t]rus assail the failure of [he respondents [o exercise the discretion vestecl in them to perrnit the petiLioners ' to conbinue, to occupy the quarl.ers, in accoldance with law ou the grouncl of arbitra::iness.

18. 'Ihe subrnission is thab the'refusal of.ilr.e respond.enbs to perurit the petitioners l,o retain the allotrnenb on paynren[ of ' norrnal license fee is illegal and. resulbs in violabion of the consLitutional rights of the petitioner as well as the cons[ibubional ancL public law obliga[ions, responsibilities an.d clu[ies of bhe respondents.

19. IL is subrniLted that in the given circumsl"ances Lhe pe[i[ioners cannoL be deemed to be in 'unauthorisecl occupa[ion' for the purposes of the application of the Public Premises (Eviction of Unauthorised Occupants) Acb, 1,97L. fhe petitioners contend that the respondents were cons[i[utionaily mandal-ecl to proLecL their right to life uncler Ar[icle 2]- of Lhe Constitu'tion of India and having failed to do so, were l:ound [o ensure the right to shelter of the petitioners, which is atl essenbial concornitanL thereof. In this bachgrouncl, the pel.itioners chailenge inaction qua the rights of the petitioners; [he legality and validity of the cancellation of [he allotmenLs of l.he cluarLers; as well as bhe proceedings and all orders undel the l?ubiic Premises (Eviction of unauthorisecl occupants) Act, 1'g7L. IL is coirtend.ecl that the responclents have ignorecl all relevanl, rnaterial in initiabing the proceeclings against 'the petitioners, passing the impugned orcler:s. J[1]

20. Mr. Jatan Singh, learned Standing Counsel for [he Union of Inrlia and Mr. Il.V. Sinha, learnecl counsel for []re respondents challenge bhe very rnaintainability of these writ petitions. It is contenclecl that the public premises were allotted to employees of the Governrnent by virbue of tlieir employilenb. Such relationships having corne to an end on superanllua[ion/demise of the governrnent. servant, learnecl counsels sbrongly urge tl.Lal, bhe peLitioners tiave no right.ab aII to con[inue"to occupy the officj.al accommodation after their retirement. It is lurther urged Lhat the pe[itioners have no righL or entitlernent to auy racco.m.moda[ion froin the respondents. 'Ihe submission is thart bhe clecisions against the petitioners are in accordance wi[h [he provisions of the Act of L97L and judicial preceden[s on [he subjecb and cannot be faulLed on any legally tenaJ:Ie grounclS.,Matefial pleadin{rs ',21,. Before exarnining Lhese submissions, learnecl counsel lor the petil,ioners have drawn attention to the petitioner's pleadings 'in grouncls A to H, K, L & M of WP @) IVo.Jr.5239/2004 P.I{. f,{owl Vs. Estate Office.r* ancl thc le.sponclents response [herebo whic]r cleser-ves Lo be useful.ly consiclerecl in extenso and reacls as follows:- W Gronrrcls "A'. Because the Hon'ble Stlprenne 3Vllg77 - Shri T.I-. Ors. 'Vs. State o,f.T&K_&_OrS,. has considered the cluestion, regarding l.he possession of the accommodation and adjourned the rnatter sine die and till tire Supreme Court- d"ecides Lhe matber finally, the Respondents cannot dispossess the PeLitioner from the premises in cluestion. Vide order clated 26.8.1-997 the I-Ion'ble Suprerne Court of India in the said case passed the following orders: "List this rnatl,er on a regular daY after six weeks. In the meantime, Mr. P.P. Rao will ascer[ain from the SLate Govt. as to whe[her [he petitioners can be put bach to their respective h.ouses owned by them in the Kashrnir valley and can ensure protection of the persolls as also th:eir properLy. To facilitate that venture, the petitio.ner's counsel witt give to Mr. Rao the address of each petiLioner where he would expect [o be shifted." Again vicle order' clatecl 28. l-. l- 998 baking into consideration of the present situation the Hon'ble Sulrreme CourL of India passed the following orders adjourning the rnabter sine die and continued the stay:- "Acljourned sine clie. Stay to continue. The peLition to J:e activated on me:ntioning by Counsel for the S[ate of Jarnrnu and Kashrnir as and when [he Eleaglina{s inn the WP (A) W StaLe is in a position to assu::e tlr.e return of bhe petitioners to their respective h"omes in the l(ashmir valley and ensure their safety and personal properby." C)opies of bhe aforesaid orclers of Lhe l-Ion'ble Supreme Court dated 26.8.'.1"997 and 2B:1.1998 are annexed herewiLh as annexure herewith as Annexure P-5 '?That the con[enbs of Grouncts (A Eo H) are mratter of' necrorcll. neect uo couernents. Xxx 3z ts. llecause the Ld. ADJ has nob even consideled bhaL,the Hon'ble T'ribunal Fneadiuqs in counten af'fidlnqf,L !n _.lOA_lNo.Z37Sl2002 - Tei lfishan Vs.U into -tb--lssue, and directed the Responden'[s to allow the App]icant therein to retain the GovL. accomrnodation pendlng decision in SLP (Civil) No.7369197. A copy of the aforesaid order of the Ld. Tribunal dated. 30.L[2].2002 is annexecl lrerewi[h as Annexure P-7.

Kashmiri rnigranb whose house in I(ashrnir was brirrrt and destroyed by the nrilil.ants,'he has no l:lace to so. I-Ie is, therefore, compellecl to stali a[ his Govb. accommoda'[ion al]otted to him till the nor:rnalcli in Kashmir valley is restored and he could go back l,o his StaLe one day and rebuild and teoccupy his destroyed house. Flowever, the Respondents in a rnost callous, u[concerned and mechanical,rrranrer turned down Lhe request of Lhe PetiLioner. I

Fuirdamental Right [o live which is guaran l,eed to hirn under the Articie 21- of the Constitution.of India and which Right includes the Right to Shelt;er also.

"Thal. the con [ents of Gnounclis (z\ to lH[) are mlatten q)f' rec0rcll. neecn no comlmlents. XXX meager income receivecl as pensi.on cannot talce an alternate Private acconmoclation in Delhi where'he can live wiLh dignity alongwitir his family rnembers. I{is pensionary income.is not even sufficient to buy food material for his family members. He has no other incclme whatsoever.

No.l- narnely, the Ministry of Urban Development who is the nodal agency l,o ensure proper shel[er to th.e cibizens of India provide suitable acconrlrfodation Lo the PeLitioner and otirer sirnilar-ly placed Kashmiri rnigrants at'affordable price and in easy installments, no retired Kashrniris can acquire a house of ilreir own and move to the same. The ResponclenLs have of their own ancl rrlove to bhe same: lthe ltesponcnents treave not tanre.n any posi.tirre action in this direction so that tlhe Kashmrini miErants are retrralbi.titatecl propertry and wittrr clig.trrnit5r.

XXX. K. Because the right to the

Pe[i[ioner to have a shelter does not FIis presenL accomrnodation or in an alterna1e accornmodation to be prqvl house in Srinagar "is renovatecl' or rerigrht to conbinue to stali in the

3) L[6].That in response Lo t.ho contents of pan'a lt( of grouncl, iL is submit[ed that [he peLit"ior:cr was allotLed acconnlodaLion GovernnrerrI sriJrjec[ t,o allotrnent rules while he was iLr service. I-Ie was entillecl [o r-eLain the Government Quarl,er. otrly during his service periocl ancl t.hc allotrnent has. been cancejjccl. consecluenL upon his rebil-enrenL gnead nqo.n.zA39/2 004

L. IJecairse

Estates are the. Directorate of allotting qeneral pool accornnrodation not onlJr.to the sewinq Governrnent employees but also [o various othe:: categories of employees'who have nothing to do with governmenb ser"vice. The ernplovees worlcing in the office of the political parbies. _iournalists. freedom fiqhters, arLists. etc. are also allotted qeneral pool accomrnodation. Tlr.e Petitioner belongs to special category of displaced Kashrniri Pandits and they also deserve special treatment in a'ccornmodabion as in the case of the aforesaid categories. norl-governmental

Respondents has the power to relax the Allotment Rules in respect of any per:son and in resppct of any accolnrnodabion. According to SR. 317-lB-25 of the AllotmenL of Government Residences (General PooI in Delh) Rules, L963, the Gove::nment have'the power to relax the Allotrnent Rules which is reproduced as under:- "EXt:lL7-V,-25: The Governmenb may for reasons to be recorded in writing relax all or airy of the provisions of l.he Rul.es in [his Division in the case of any officer or residence or class of officers or type of residences." 3A ffi-of lorrr rnonLhs. Ljurther reLett Liott thereaf[er for a maxitnum lleriocl of lour months on ntcciit;itl grounds as per rules has alreacly been availecl by him. l-7.That in l:espollse to Llre contents of naara n- of ground, jt is sul:mitted thaL the allotmelL ot: Governrnent cluarter is macle its per the rules and policy laicl clowtr bv the Govelurnen'b. l-B.That the con'[enb clf para M of the Ground aleredls no commellts f'or, want of nmowlqld$pc\ Flowever, bhe petibioner is ir r_etiree and Ejettincr post reLrial pension." 3s "r

22. The al:ove nabration woulcl show tllat the responclcl[s adrnit,the correctness of the factual subrnissions, righ[s c]aimecl ancL en.titlemenbs of th"e petitionels in these grounds of the writ pe[iblon. Na&lgct of rzqkts involved itM C on s titu ti on al gttarante e s

23. Before proceeding to examine the challenge laid by the petil,ioners, it is essential to exainine the righ[ of the petitioners which is involved. Article 19(1)(e) of l,he Consti[ution of Inclia states thaL all cil,izens sirall have the righb to resicle ancl setl,le in any pa.rt of the territory of India. ArLicle 2I on the other hand s[aLes thaL no l]erson shall be cleprivecl of his life or pelsonal.liberty excepL according to procedure established iry law.

24. 'Ihe pebitioners question the juriscliction ancl legatiby of Lhe responclenL's ac[ions and threat to forcibly evic[ thern from their on15r 5hs1l.er in lrurportecl exercise of statubory powers u[ilizirrg the process prescril:ecl utrcler the Pubiic Premises (ljvicbion of Unauthorisecl Occupants) Ac[, Lg7'I (hereafber rel'errecl to as [.he 'Pr-rb1ic Premises Acl,, L 97L').

25. hn.1.995 (D SnR 72, P.G. Gupta W. StAte of Gugatzed'& On1s., bhe Suprerne Cour[ helct thaL foocl, shel[er and ciothing are the rninimal human riqhts. The courl, reiteral.ecl its earrlier expansion 9f the righl, to resiclence ancl se[tlemen[ by again hoiding that, it is a "fundamental righL uncler Ar[icle i 9(1)(e) 9\ ancl iL is a facet of inseparable meaningful righL to life un.cler Article 2!" ofthe Consbi[ution of Inclia'

26. Funclarnental rights are guaranteed to the citizens of Inclia uncler; part III of the Constitution of India. In @996) 2 SCC 549 Chameli Singh & Otts. Vs. State of U.tr. & 'Attt'., the Supleme Court held that the right to shelter is a fundarnen[al riqht available to every citizen of India. It was also read into the r:ight to life guaranteed uncler Article 2L of l,he Constitu[ion [o rnake j.t more rneaningful. In para B of tire juclgrnenL, the coult succincbly set oub th"e nature of the right ancl the rnanclate on the state as foiiowS:- "8. In any organisecl society, right [o live as a hurnan being is not ensured by rneeLing only the animal need[5] of rnan. It is secured only wiren he is assured of all facilities to develop hirnself and is freed frorn restrictions which inhibit his growth. All hurnan riglrts are designed to achieve this objec[. R.i_qht to llve qlxamnteed in any civilised socieby intpnies ilte U@t to foocl, rua[,er, decenb environnienb, education, rnedical care and sI elter. These are l:asic human riqhts hnowir to any civilised society. All civil. political, social and cultural rights enshrined in the Universal Declaration of Human Righls and Convention or under the Constitution of Inclia cannot dwi sic h Shell.er for a human l:eing. therefore, is not a mere protection of his life and lirnb. It is /zorrre dlere,/ze.[tas bppot'twttities to qrow rthysrcaLlv, tnentally, intellec[ually and spiritua]llr. Riwht to shelter, blrerefore, inctrudes adequate liuino spaae ana[ ts and d, is dail tri. Ttrte t"lqkt to a roof over one' the inf,rastructure necessarv to emabne thent to llve ana aevelae as a n beins. Riqltt ta, to 'Xter w. wsed essenn uisite -tke nqltt rc nive should @ AeemeA to ltave neen to have heen,4s is gnio;nea in me eirec re it for its sanitation and otlter ciwc anenities like roads etc. so prulnonmic llwdqetirlq. In a dernocrabic socieLy as a member of the organised civil communi[y one siroulci have pennalremf s/re./ferso as to physicallJr, mentallv and intellectually equip oneself to improve his excellence as a useful ciLizen as enjoined in the Fundarnental Duties and to be a useful citizen and ec1ual parbicipanb in dernocracy. The uhirnate.objecb of rnalring a man eclriipped with a riEtrtt to, diEnity af persan and eEr.tatrity af statws is to enable him to cievelop hirnseif into a cuiture being. Want of decent residence. therefore. frustrates the ver ohiect of ilte Constitutional animatiott of tiqht to equanitv., 9).) (Empirasis supplied) "Jlhe Apex Court unequivocally declarecl that all the civil, political, social and cultural righls enshrined in l,ire Universal Declar-aLion of Human Rights ancl Convention, L94B or uncler thc Consti[ution of Inclia cannot J:e exercised wiUhou[, in[el alia, [he basic hunr.an right of shelter.

27. The r:ight to shelter as an essenLial concorni'Lant of [hc fundamental right to life was also pressed by l,he pavemeirt. clwellers in the pronouncernent reported at (11997) n n SCC Un,4,trwrcda.ftad lWu.tniciltaX Corpotatiott Vs, Nawab, Khan G uXah ' tr{ham & ors. The Municipal corporation of Ahrnedabacl was cornplaining against encroachment ancl occupation o[' llavernents in l,he urban limits of Ahmectal:acl by tire paverrrent dwellers (res[1]:ondenl,s l.herein). The corirt was concernecl with the plea of violation of fundamenLal righLs of the pavernen[ dwellers under Article 19(1)(e) and 2L of the constitut-io:r of Inclia ancl their entitlement to shelter. The surnmation by Lire Court.placing reliance on the several plececlents on the sqbjec[ throws lighL on the very quesl,ion which has been raisecl fterci[1] 5A also. Af[er rei[elabj.ng the principles in eariier juclgnrents, the ollservations of the Srqtreme Court read as foilows:- "Lg. Socio-economic justice, equality of status and of opportunity and dignity of person to fosber. the fraternity among all the sec[iotLs of the sociely in an in[egrdted Bharat is Lhe arc]r of the ConstiLution seL down in its prearnble' Arbicles 39 and 38 eqjoins the State to provide faciliLies ancl opportunities. Articles 38 and 46 of the ConstiLution enjoin the State to promote welfare. of the people by securing social and econornic justice to the weaker sections of the socie[y to ' rninimise inequalities in income and encleavour to elirninate inequalities in status. In that case, j.'[ was held that to bring the Dalits ancl bhe Tril:es ' into the rnainstream of nationai life, the SLate was Lo provide facilities and opporLunities as it is the dul;y of the State to fulfil the basic hurnan ' ancl constitutional rights to residents so as to 'rnake the right to life meaningful. In Shantisbar Briilders v. Narayan lCrimala[1] Totame AIR l-990 SC 630, another Bencir of three Judges hacl held that basic needs of man have tradi[ionallv ]:een The riqht to life id guaranteed in any civilised society. That would take withln its sweep the ricrht bo food, the right to clothing, the righb to decent environrnent and a reasonable accornmoilation to live in. The clifference between the need of an anirnal and a hurnan being for shelter has to be kept in view. For an anirnal, it is the bare proLection of the body; for a huilan being, it has to be a suitable accornrnodation which would allow hirn bo g'row in every aspec[-physical, nr.ental and intellectual. The surplus url:an-vacant land was directed.bo be usecl [o provide shelter to the poor. In Olqa Tellis case (supra), the Constitution Bench hacl considered the right to dwell on pavernents or in slums Jry the indigent ancl the same was It would, therefoie, be clear Lhat thoucrh" 'no person has a rigtrt to encroaclr. ancl erecL sl,ruc'bures or otherwise.on fooLpath, pavernenl. or public streets or any obher place reservecl or earrnarked for a public purpose, the Sba[e has [he Cons[i[utional dutv to provicle adeouate their right to livelihood." e[1] '' wealth and resources for settlemen[ of life ancl enection of shelter over their heads to make the riqh[ bo ]ife meaninqful, effective and fruitful. Right to iivelihood is meaningful because no one can live wi[hout means of t]ris living, that is the rneans of livelihood. The deprivabion of the right to life in that context would not only denude life ' of effective content and meaningfulness but lt would make life miserable and impossil:le to live. Itt woritrd. therefore. be tke dwiv of ilte State to prouide tiqht to slxelter to tlte pa,or and indioent wea,{rer sections of tke $ocietv in fi.ilfihnent of, tlt e c'ons titu ti onal otrt fective s.

25. Article 19(1-)(e) of the Consbi[ution plovides to all citizens fundamental riqhts to travel, seLLle down and reside iR anlr part of the 'Bharat ancl none have riqht to prevent their settlem.eub. Any a[temlrt in that ]rehalf would be unconstitu[iona]. The Prearnble of the Constitution assures' intecrr t:eople and digniLlr of the person Lo rnahe India an integrated and united Bharat in a socj.alisL secular dernocratic republic. The policy or principle should he such'that ever-yone shorlld have the olrl:ortunity to migrate ancl set[le down in anlr part of Bharat where opportunity for employment or better livinq conditions are availal:le ancl. therefore. iL would be unconstitutional and impermissil:le to prevent. the persons from miqrating and settlinq aL places where [he]r find tlr.eir livelihood and means of avocation. It is to rernember that the prearnbie is thg arclr. of the Consbitution which accorcls to every citizen of India socio-econonr.ic ancl political justice, liberbies, equality of opportunity '-. and of status, fraternity, dignity of peison in an integrated Bharat. The fundamental rigrhts and r1-, -]i inciples and the preambie bei trini and to seLLle in any part of the countrlr is assured to every citizen..The right to life enshrined under Article 2L has been-interpre[ecl by this Court to inclucle meaningful righLio.life and not rnerely anima] existence as elaborabecl in several judgrnents of this CourL includiirg Hawkers' case, Olga Teilis case and the latest charneli singh's case and irost of other decisions which need no reiteration. suffice it to s[aLe that lnclu sicl fundamental rish.t. Due to want or racitities ano the right to. residence an iliusion to the rural and 3X opportrinities, settlernenb is and url:an iloor. te (Emphasis supplied)

28. tl]" petiLioners are facing threatened forcible evicl.ion fi-om [he only shelter they ]cnow which was allo[ted by [he responden[s, either to, bhem or the l]erson on whom l,hey were dependan[. If cornpelled to vacate wibhout provision of an 'alternative, the inevitable consequence is, that the peti[ioners wor,rlcl J:e renclerecl horneless.

29. It is obvious that the present petibions raise an impor'[ant aspect of right to shelter. of these displaced persons under Article 19(1)(e) and which has been declared by Lhe Supreme Courb to be an in[egral and essential par[ also. of their rigir[ Lo Iife, guaranteed as a fundarnental right uncldr Article 2l- of [he Con"s;bitu[ion of India. In the several binciing judiciai prececlenl.s noticecl ]rereinabove, the Supreme Court has fur:Lher heid LhaL such violation may also aclversely irnpacL ancl violate th.e righL Lo occupation and profession uncler Article 1g(1)(g) of llic ConstituLion of hidia which is [he other basic hurnan right of [he pe[itioners.iuextricabiy involvecl in the insLant case.

30. so far as righL1o adequate housing ancl its protectioir is concerned, there is no specific dornestic legislation on.1,he issue. e State mahe socio-ecbnomic -iustice a. reaii[y, wor[h livino wi of status and to constantly improve excellence." Intgr\alional p-ersltective - conventions. nonns. quicfiner s[1] In the aforenoLiced prolouncernen'[s the Supreme Coult has been of the view [hat such right can also be sourced as a basic hurnan right uncler the international hutnan rights law.

31. 'llhis cour[ has had occasion to exarnine Lhe source of the right to.housing, shelter and prol.ection against forcible evictions by residenbs of JhuggiJhopri clusl,ers (hutrnenbs) in Lhe judgments daLed 1-4th JuIy, 2006 in w.P.(c) No. 500712002 reportecl aE lv[,4]VU/DE/g327/2006 entitlecl laEdisk vs. DDA, and also the pronouncernent of this court dated l-Lu' Februaly, }OLO i.n W.F.(CI IVo. 89O4/2009 Swdama Sinorh &.Or"s. us Gourernrnemt of pellti &,Ant'. with connect.ed wriL petil,ions. In this regard, in these judgments as well, reference was rnade to the following in'[ernational & regional covenants ancl: declaral"ions on the right to adecluate housing which declare that provision of housing as well as the protection ag'ains[ forced eviction is the unequivocal responsibiliLy of [he state:- (:i)Tlre {hzivetsa.[ Declaration of Mwmam Rishts n 948 rna.kes the following statement: "Article 25.[1] Everyone has ttre right to a sl,anclarcl of h.vincr adeciuate for the health and well-being of hirnself and his farnily including food, clothing, housingr and rnedical care and nec'essary social services. and the iight to secririty in [he even[ of uriemployrnent, sickness, clisabiiity, wiclowhood, old age or other lack.of livelihooct in circumstances beyond his control. "

(ii) TIre lntetvtational Conven the Elimina."Arl,icle 5

In cornpliance' with |,he funclamenl,al oJ:ligaLions laid down in article 2 of [his Convenbion, States Par[ies undertake to prohibit and to eliminate lo in all its forms and to guarantee the righ[ of everyone, witirout distinction as to' race, ' colour, or- national or ethnic origin, to eclualiLy before thg law, notably in [he eqjoyrnent of the following rights: XXXX

(d) Other civil rights, in particular

(iii) The right to horising."

(iii). ArLicle U of tlre Xnternatiotzal Covenant on nsenomlc. Soc:ial gna adopted by the General Assernbly of the United Nations on the 1-6u' of Decem.ber, l-966 further codifies the right to housing and stal.es'[hus: "Article 1- l- "l-. The State Parbies to the presenl, Covenanl,. recognize the right of everyone to an adeclua[e standard of living for himself and his family, including adecluate food, clothing, and housinq, and to the continuous improvement of living condi[ions..........." India has signed ancl ratified tl:is covenanl, and is thus a state party to it.

(iv) Part II of ttre Declaration of Social.Froqtess and

WureloPment- IEOZ. states thus: ' "Social progress and development shall airn. at the continuous raising of the material and spiribual'standarcls of living of all rnembers of society, with respect for and in cornpliance with human rights and fundarnental freedorns [hrough the attainrnent of the followinq main goals: XXXX ArLicle L0(fl Tlr.e provision for aii, parLicularly persons in. low-incorne groups and large families, of adequate housing and comrnunity services.

(v) Part III section (B) of the vancowver Dec.{aration gf Wuman Sememe 'ranclates as folto\ rs, "III Guidelines for Action \t XXXX

(vi) Article 8.[1] of the Dectraration on ttrte Riailtt to eevelofament I ggO also states.thab: "ArLicle B l-. Sbates shorild unclertake, at the neitional level, all necessary measures for the realization of the right to developmenb and shall ensure, inter-alia, equality of opportuniby for all in their acceis to basic resoltrces, education, health services, food, housinq. employment anil the fair clistribution of incorne.... "

(vii) The above objectiv€s were also reinforced the declaration made in tlre Interttatiottal Vear of ilte Woqnneness in W87 by the Unitecl Nations when it spolce of Lhis right of all individuals in the following ternrs: "a real home...one which provides prol,ectiou from the' elements; has access to safe wa'Lel ancl sanitation; provides for secure tenule and personal safety; and" within easy reach of ientres for ernployment, education and health care; and is at a cost which people and sociely can affbrd."

(viii) On the issue of forcible evictions, EIte Gepetatr

AWWent-Z dated 20tlt flfav L997 on the right to adequate housing (Article I[1],.1' of the Covenant: Forcecl Evictions) by the Conunissiott ott Econo'nticis irnPor[anb and is extrac[ed hereafter: "(1) In its Generai Comment No. 4, (1991-), the Cornmittee observed that all person.s should possess a degree of security of tenure.wlr.ich guarantees legal protection against Iorced evicLion, harassment. and ol,h.er threats. It concluded that forced evictions are prima facie ' incompatible wiLh Lhe requirernent of the Covenant. (2) The international community has lottg recognized Lhat bhe issue of forced evicLions is a serious one. In I976, the United Nal,ions Conference on Human SetLlernents noLed thal; special attention should be paid to "undertaking major clearance operations should Lake place oniy when conservation and rehal:iliLaLion are nob feasible and relocation ilreasures are made. In l-988, in the Global Strategy for Shelter to tlre Year 2000, adopted by the General Assembly in its resolution 4311"8L, l.he ' "fundarnental obligation (of Government) to protecL and improve houses and neighborhoods, ratherthan darnage or des'[rov them" was 'recognizbcl. Agencli 21 s[atecl that "people should be protected by law agains[ unfair eviction frorn their" homes or land". In the I-Iabitat. Agenda Governments coilrnitted thernselves to "protecting all people frorn, and providing legal protection and redress for, ' forced evictions tha[ are contrary to the law, taking hurnan rights into considerabion; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided". The Commission on Human Ricrh[s h.as also indicated'tlrat "forcecl ewictions are a gross violation of iruman rights Ll L

(x) Annexure;I of tlre Report of ttrtq Special ! laYs down some ba.sic pr:inciples and guidelines On development based qvictions. and. displacement. It provides the cruidelines on relocation of the displacecl which read as follows: "52. The Gove_ntntent and anyr other partiqs responsible fo{ -^-ouidinq iwst contpen'sation attd swfficiemt a.ltemtative accotntnodation-. or restittttiott wltem feasihne..must do so immediateXv upron ilte euiction. except in cases of forQe majeure. At a rninirnum, regardless of the circumstances and without discrimination, competent authorities shall ensurg thab evicted persons or croul:s, especially those who are unable to l:rovide for thernselves. hgve safe anci secure access to: (a) essen[ial food, potable water and. saniLabion; (b).b,asic s"lte.lter attd ltousina; (c) appropriqte ciothing; (d) essential rnedical serwices; (e) livelihood soulces; (0 fodder for livestoclc and access to common property resources. previously depended upon; and (g) education for children and childcare faciliLies. Stabes should also ensure that mernbers of bhe sarne separated as a result of evictions. XXX

55. fdentified reXocation sites musb fulfil the criteria for adeqwate ltousin according [o tr r inbernaLional human rights law. (a) securitJr of )Cxx '

(c) af,fordab.tre housing;

(d) kahitable housing providing inhabiLants with adequabe space, protection frorn cold, damp, h.eat, rain, wind or other threats to healbh, sLructural hazards and disease vec[ors, and ensuring the physical safety of occupanLs; \z\r\a

(d) No affected persons, groups or conmunil,ies shall suffer detrtnent as far as their hurnan riclhts are concerned, nor shall their right to the continuous irnprovernen[ of living conditions l:e subject to infringemenL. This to hosl" communities aL resettlernenl, sites, and affected llersons, groups and communi[ies subjecl,ed to forc'ed eviction; XXXX These include: terture; Y\ 57..R.etrzatrtiJltation policies rnusL include programm.es designed for.wolr.en and marginalized and irulnerable guoups to ensure tlreir equal enjoyment of the hwtnan tiahts ta hawsims, food, water, health, education, work, secatitv of the person. securitv of tXrc home, freedorn from cruel, inhuman ou degrading treatrnent, and freedom of ntovernen[.

58. -Peilsotts, Eu"oups or aonwnwnities affected.by att euiction strtould not suffer detrinte.ztt ta their ltunnan rigltts, irtctrudingr their right to the progressive realiza[ion o'f the rigrnat to adequate -trtousingr. This api:lies eclually to host communities aL reloca[ion siLes. " ' (Ernphasis' supplied)

3.2. TIre [-l]V. Cotmntittee ott Econotnic. 9ociatr and 91il!, in its Concliur[inar O.bseatratiorts cttt India, called upon the Indian"grovernmenl, par[icular1y [o acldress the issue of rising hornelessness, including [he need for disaggregatecl cia[a on the homeless. In l,he observations relating to India as a sta[e par[y, iL specificaily sLatecl as follows:- "30. The Cornmittee is concerned about the lach of ional housinq policv, which individuals and groups, including those living in sluns who are reportedly growing in nurnbers, by providing them with low-cost housing units. The Comrnittee also regrets that suffici.ent information was not provided bv the State par[y on the extent ancl causes of homelessness in the State parfy. The Committee also requests the SLaLe party. to provide, in its next periodic report, detailed information on hornelessness in the State party ancl the ex[ent of tecl

70. The Comrnittee urges the State 1:arLy to aclclress bhe acute shor[age of affordable housing by acloirting a naLional straLeq;-y and a plan of action on adequate housing ancl nnilOing oi providing ' h.ousing units, especially for the clisadvantaged and low income groups, including those living iu slums. in this Connection, the Committee retninds ffiie State partv of its obtriarations under Article tI of tlte Covenant amd refers to its General Conntnemt IVo- 4 otz t.he riwht to a4esuate housinq (199L\ to suiafe tlte Covemmem's nouslnq qXso reqwests the State partv to provlde- itt its next pe.z:iodia report. detailed inf,ownatiott otz -lzontelessitess itt the Statb pattv attd ilte extent of madeqwate housin sex. aaste.etknici. ' 7 L. TIre Conzntittee rec'otntnends that tlte State partv take inwnediate rneasures to eff,ectivenvt enfoz'ce traws and resulatiotx.s pr@hih,itiilq disptracement and forced euictions. and ensure t.fuat persons euicted from their hom.es and.tra.na{s he prouided with adequate cotnpensation and / ot' of,fered a.Iternative accommodatio.m, in accordance with the guidelines aclopted by the Cornmi[tee in i[s Generai CornmenL No. 7 on forced evictions (1997). The Cornrnittee also recommends that, prior to irnplernenLing developrnenb and urban renewal projects, sporting events and other similar'acLivities, the Stabe par[y should undertahe open, ]rar[icipatorT ancl meaninqful consultations with affected residents and cornrnunities. In this connection, the Cornmibtee draws [he attention of the State party to its Genelai] Comrnent No. 4 on the right to adequate housing ' (1991-) and further requests the State parLy bo provide inforrnation in its next periodic reporL. on pt:oguess achieved in this regard, inctucling disaggregateci. statistics relating to forced evictions."

33. The al:ove narration would show that [he international covenants and instrurnents refer to J:asic h"urnan rights. A11 of thern have recognizecl right to shelter as a basic hrirnan rigjhL, essential for survival. IL needs no elabora[ion thaL the concepl of hurnan rights ernairates from the ancienl. cloctrine. of natural righLs based on natural law. The e"p"riences of the Pos[- Seconcl Worlcl War which brought forth the Interna[ional Charters and Convenbions leacling to the ernergence of the presen[ clay human pigh:[s. The first clocumentecl use of [lie expression 'human rights' is to be founcl in Lhe charl.er of Lhe 1J \c Uni[ecl Nations, adopbed on 25u'June, 1-945. This Charberwas of course noL binding but s[al"ed that it was only an ideal bo be later cleveiopecl. By adopting the Universal Declaration of Human Ricrh[s in Decernber, 1948 the UN General Assembiy toolc bhe concrete step of forrnalislng the.various human rights. This was followed by the Inbernational Bill of Rights. The deficiency in the bi.nding nature of the declarabion was rem.oved by the U.N. General Assernbly by adopting on 1-6tr' Decentber, L966,.firstiy, the Covenant on Civil ancl Poli[ical Ricr]rts which formulatecl legalty enforceable rights of,the in.diviclual ancl, secondly, the Covenant on Economic. Social ancl Cultural lligrhts which was addressed to the states to imirlernenb thern l:y Iegisla[ion. f']rese covenants came into force in December, 1976 after ratification by the requisite number of member sl.ates. aclop[ecl on ]-6tr' Deceml:er. l-966 ancl bincl bhis counlry.

34. The above narra[ion shows that honrelessness -.uy resul[ frorn several causes including natural disasters; developrnen[ projects, econornic deprivation as well as human righ.Ls violations.' In'[ernational ]aw terms persons who sband dispJ.acect from [heir counti'ies as "refugees" and recognizes that they ar-e eirLitled to protection from being returned to places where their lives or freedonr could be threatened.

35. At the same time there are growing instances intemal,ionally of persons and even cornmunibies wiro are cornpeilecl to al:anclon homes on accounl. of threat of irnminent violence or stancl forcibly evic[ecl by use of violence ancl cornpelled |"o relocate t,o other places even within their own Y') coun[ry. They cannot return to L]reir homes within Lhe bounclaries of [heir own countries in the face of the conbinuing thr:eeLt of persecution and. d.anger to Lheir properties.. Sucir persons CannoL.be termed aS "refugees" aS described by learired counsels for the petitioners. In international parlance, persolls' compelled to relocate within the boundaries of their own countries stancl' categorised as' "f,mternaXny Diqalaced,Ferstomd' (abbreviated as' nDP s hereafter).

36. The present petitioners along with several other farnilies, h.ave been compellecl to relocate within Inclia ancl woulcl th.erefore fall uncler the category of such inlernally clisplacecl persons ('IDPs') who have received either insufficient ot: lto 1:rotec[ion by t]re Sta[e, from or d"uring t]reir persecution. 37: Except that IDPs are forced.to flee from their homes to another.locabion with their own country, refugees ancl IDPs 'appear to be similarly situated.. I-Iowevel, international covenanl,s respect the principle of non-interference wiLh Lhe internal poliLics of one country, ancl consecluently there exisl, no internabional conventions reiabing to IDPs.

38. The UniLed. Nations Fligh Cornrnissio[er for Refugees has recognised Lha[ the IDPs also face Lhe salne proJ:lems as internationa.l refugees ancl reciuire to be treaLecl wiLh cligniLy by their own governmenbs with full respect given to [heir basic human rights.

39. In this regarcl, a guiding documenL has been framecl by Francis Denge, the representative of the Secretary Gbneral of the UniLecl Nations on Internal Displaced Persons, in 1.gg[8] wlriclr is Litlect as " Guiding ' Frincip.les olt.httemtan u[8] Qis-,Xacement' which was presented Lo the UNCHR. 'fhe Cornmission in a unanimously acloptecl resoitt[ion book nobe of Lhese principles wirich address the specific needs of inter'-ually displaced persons. worldwide and identify rights and guaranl.ees relevant to tlie protection of persons from forcecl clisplacernen[ ancl Lo their p::otection ancl assistance cluring clisplacernent as well as cluring return or resettlernent ancl reintegration. The 'inLrocluc[ioi:. |,o these Guiclelines defines "Inbernall]r Dislrlacccl Persons" ('lDP's) in Clause 2"as follows:- ' '."2. For the purposes of these principles, inl,ernally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave lheir" h.omes or places of habitual residence, in par:ticular as a result of or in orcler to avoid the effects of armed conflicl., sibuations of generalized violence, violations of hurnan rights or natural or human made disasters, and who have n.ot crossed an internationally recognized State border."

40. So far as housing of IDPs is concerned, birese guidelines conLain the following inportant provisions:- " Ftirtciptre 3 1-.Nati res'ponsibility to provide protection ancl humani[arian assistance to internalllr displaced persons with.in bheir

2. Inter nih ' recruesL and to receive protection and humanitariair assistance from Lhese authorities. They shall not be persecuted or punished for malcing such a reclues[. Ft:ittciptre 7 Prior to any decision requiring the displacen:ent of persons, the authorities concerned shail ensure [ha[ all feasil:le alternatives are explored in order to avoicl displacement altogel,her. Where no alternative exist,. ail measures shall be taken to minimize clisplacement and its adverse effects.

2. shall ensure, to l.he greatest practicabte eiteirtLtrat proper accommodation is provided to thb displacecl persons, that such displacemenl"s are effec.[ecl in lacemen \1 saLibfactory condibions of safety nu[ribion, healbh and hygiene, and that members of the same familJr are not sel:arated

3. If displacernent occurs in sil,uations other [han du.ring the emergency stages of armed conflicts and disasLers, the following guarantees shall J:e cornplied wiLh: (a)A specific clecision shall be taken by a S[ate au[hority e]npowered by law to order such measlrt:es; (b)Adequate rneaslrres shall be taken [o guaranbee 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 bo be displaced shall be sought; (d)Ttre au[horibies concerned shall encleavour to involve those affected, particularly women, in the planning and managernent of their relocal,ion; (e)Law enforcernent measures, where recluired, shall l:e carried out by competent legal authorities; an.d (flThe right to an effective rernedy, including Lhe review of such decisions by appropriate judicial au.thori[ies, shall J:e respected. Frirtcipte E Displacemen[ shal] not be carried out in a rnanner thaL violaLes the rights to life, dignity, Iiberby'and securitlr of those affectecl. Ffinciptre X.[4] 1-.Every internally displaced person has the ricrht to liherty 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 carnps or other settlernents. XXX (a) Ttrne riqltt to seek safetyr in attothe.r- part of.t!ne_9@untry;. (b)The right to leave their country; (c)Tlre right to seeh asylum in another connl,ry; ancl (d)TIt to he protected aqainst foraihle t4elr lrce. sateW. lln,at risnr. XXX {o Fritaciple LE 1-.A11 interndllv displaced persons have the rigrht to an adequabe standard of livinq;

2. At the rninimum, regardless of the aircanmstances. amd witltowt. disar"itttination- -tc qnnnretent a utlxortfi ldigp.traced persons witlt and ensure safe aacess tgt (a)Essential food and potable water;. (b)tsasic shetrter and housino: (c)Appropriate clothing; and (d)Essenbial rnedical services and. sanitation.

3. Special efforts should be made to ensure [he full particiiration of. women in the planning and distribution of these basic supplies. XXX Ft:irtciptre 2n i-.No one shali be arbiLrarily deprived of properLy and possessions.

2. The properLJr and possessions of internailJr clisplaced pe::soirs shall in all circumstances be protectecl, in particulaL, against the following acts: (a)Pillage; (b)Direct or indiscriminate attacirs or ol.her ac[s of violence; (c)Beiirg used Lo.shielcl military opera[ions or objectives; (cl)Being rnacle the object of reprisal; ancl (e)Being destroyed or applop::ial.ecl as a forrn of collective irunishruent. 3..trt'opetW and possessiotts,left ltelfind.bvr itttemtaXly disptraced trtersoits sltotrld be proteated: !. XXX Ft"inciple 25 n.Tlte primaty dutv amd respansiltilitv fot pt'ouic{inq ltutnanitatian assistance to interutailv disptraced persons lies vritlt national autltotities. XXX Seatiott \/. Fnitzciples telating res e tt Ietn en t an d reitt te gu'ati on to n'etwrn, Frinaip.{e 28 _

2. Special efforts should be made'to ensure l,he full participation of inter:naIly dispiaced persons in the 1:lanning and managem-ent of their return ol: res et[lement and reinteqration. Frincipaal 29 ' l-.Internaily displaced persons who have rel.urned to Lheir homes or places of habitual residence or wnto,tz7we resettled jm another part of the aonffi shall not Xte discrimimated awainst as a result of their having been displacecl. They shall have the::ight to participate fully and equally in public affairs a.L all levels and have equal access to public services.

2. Cormfaetent awtltotities ltave ttrte a[utv atda[.ryWonsiEtilitv to assist retunted and/or" resetttred,tgternanXvr displaaed pelspllg to recover, l,o the:extent pp6s:Me. tlteir property, and possessia,ns -Mtlclt mev rcn nem Won tlteir disptracetnent. WXten recovety of p_gak eroeenv and posse:q_gxnpetent autkofi.these persons iil ohtainins approp,tiate p_gmeensation ' or an,tl@.M&r@ffiqil,." 41". The United Nabions Charter thus esbablishes [he obligaLion upon rnernber nations to prornote the lcey hunlan righLs. The universal Declaration of l{urlan Rights, Lg4B though not a treaby,,bub is a deciaration published Jry the General Asseilbly of the United Nations and is the lrrirnary docurlent wirich is concernecl with the listing of the rights. Ib affirrnatively lays down the common standards of achievemenL lbr all peopJes and all nations. It consequently has an effecb which is simj.]ar [o a treaty. Fur[her everr nation wrro is a signatory to the aforenoticed Inbernational Covenant on Economic, Social ancl cull-ural Rights ('ICESR') rnnst refrain from acbs which woulcl s A the ICESCR. es[ablishes that "Lhe ideal of free human bejngs erlloyrng freedom from fear and want can ouly l:e achieved if conditions are created whereby evetYone may enjoy his econornic, social and cultural rights as well as his civil ancl polibi.cal righbs". ' Article Lt of this covenant emphasises thaL the state parties lecognises the righL of every person bo an'ad,ecluate sl,anclarcl. of living which include adeclual.e housing ancl conl,inr-recl irnprovement of living conditions. The right for people to be free from want is the very founcla[ion of the ICESCR.

42. The international human rights law bhus esLablishes a legal obligation for ensuring minimurn welfare gualanbees. The conventions, treaties and cleciarations as well as the guicling principles manifest the international consensus Lhat evely nation has a duty to ensure and provide these guaran[ees inclucling, inter alia shelter and'basic general orrirtan.u Lo ever1r person on i[s soils.

43. The aforenoticecl interna[ionai conventions which exis[ as well as the Guicleline. Principles for IDPs therefore recognize bhat shelter ancl housing is a basic huilan righ[ of every iricliviclual which is the bare rninimum bo be provicleci to' inl.ertally clisplaced persons. These Principies aiso emphasise all righbs of displacecl person.s ancl casLe a manclate on the national au[horities concerned of their primary duty ancl responsibiliLy to provicle irro[ecbion ancl humanitarian assistance to internally clispiacecl pelrson.s wiLhin [heir jurlscliction s[3] safety as well as proLection against forcible re.Lrilit a"nc[ rese[tlemen[ in a place where their iife, safe[y, liberty ancl or healtir woulcl be ensurecl. The Guiding Principles have been evolvecl after an elaborate consultative process.

44. Befoie proceecLing any further, it is necessary to examine the binclingness of.the above principles on the courts in Inclia. The extent, manner and applicairility of International Conven'l.ions ancl treaties in inLerpretation ancl expansion of rights, have been alrthoritatively considered and are well settlecl J:y a catena of binding precedents of the Suprerne Court. In [h.e anthoritative pronouncement reported aL 1T2008(nSCn n, 2008(g)SC,4n E6g Entertainntent Netwotk ([ndia) X,td. Vs. Super Cassette htdwstties Ltd. the Supreme CourL tracecl [he evoltilion of the jurisprudence on the issue uncler considerati'on in paras 48 to 54 which rnay usefully be extrac[ecl aud read as follows:-. " 48. Beginning from the decision of this Court in I(esavananda Bharati v. State of Kerala MANU/SC/0445/1973: AIR 1973 SC 1461-, [here is lndeecl no dear[h of case ]aws where this Court has apirlied the norms of international laws and in par[icular the international covenants Lo interpret doilestic legislation. In all these cases, this Courb has categoricaliy held that there would be no inconsistency internati the domesti such inconsi tire clornestic leqislation should prevail. ol:served: "It is also well-setLled [hat MANU/SC/0067/1980: (1980) 'ew riwhts (r mav ImtLe to be found oat wittrtitt ttrze constitutional scheme. Florizons of con$titutional law are expanding."

49. In the aforementioned judgment, this Cour[ referred to a larqe number of decisions for the purpose of treaties and conventions. Yet again in Lndian Flandicrafts Emporium and Ors. v. Union of Lndia MANU/SC/0640/2003: AIR 2003 SC 3240, this Court considered the Convention on International Tracle in Endangered Species (CITIES) ancl applied the principles of purposive constructions as also not ouly the Directive Principles as contained in Par:t IV of the ConsLitution but also Fundamental Duties as contained j.n Part IVA thereof. Referring to Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. MANU/SC/0293/1983: (1986) L SCR 594. Rattan Arya and Ors. v. State of Tamil Nachi anci'Anr. IVIANU/SC/O550/1-986: (1986) 2 SCR 596.ancl Synthetics and Chemicals Ltd. and Ors. v. SLate of U.P. And Ors. MANU/SC/0595/19B[9]: AIR 1990 SC 1927, this Court held: "Thele cannot be any doubt whatsoever [hat a law which was at one.poinb of tirne was constitutional rnay be rendered unconsti[utional because of ' passage of time. We may no[e [hab apart from the decisions cited by Mr. Sanghi, recenLly a sirnilar view has been [ahen in I(api1a Hingorani v. State of Bihar (suirra) and John Vallamattom and Anr. 'v. Union of India (supra)."

50. These judgments were ref'erred 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-i2003: (2004) 9 SCC 51-2, wherein this Court observed that eg no statutorv.{aw im nndia operated in Mte field. Uxterpretative ckanq tnade h.auins reqard to the ever'ctrnanoinm alonrEilX seetf@lxo,. Liverpool also referred for the proposibion that tlre chattqiilq qIaIraI scenario shownd Xze.frept iil'tmind "Itauinq regard.to tlte fact that iltere does not exist anv ptimarvr'act touctrtins the sathfect AnA in ansence af anv contratT Concurrino witlt tlte said deaisions- it v!,as ltowever opined tlzat tlte satne aowld ns,t meart tldat it z'estticted tke iurisdictia,n of, ilte trpqistration striatlv aacordins to the imdae nwiaAe !aw 5L. Liverpool and London S.P. and I Asson. Ltd.. (supra) has been followed blr the Supreme Cour[ in'a rrlethora of cases inter alia The State of WesL Benqal MANU/SC/0038/2004: (2004) 2 66 ITR 72L(SC)- In Pratal: Singh v. State of Tharkhand anci Anr. MANU/SC/0075/2005: 2005 CriLT 3091 wherein this Court directed to interpret the Juvenile Jus[ice Act in light of the Consbitutional as weII as InLerna[ional Law operabing in the.field. (See also CentroLrade Minerals anO Metal ' Inc. v. Hindustan Copper Limited ivIANU/SClBt46l2006: (2006) t[1] SCC 245: S[ate of Puqjab; State of Punjal: and Anr. v. Devans Modern Brewaries Ltd. and Anr. MANUiSCl096Ll2003: (2004) ' L[1]. SCC 26 and Anuj Garg and Ors. v. Hotel Association of India and Ors. MANU/SC181.7312007: AIR 2OOB SC 663.

52. However. applicabilitv of the Inberna[ional 'Conventions and Covenants. as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptabiliW of the Conventions in question. If the country is a siglnator-y Lhereto. subject of course to the provisions of the domestic iaw, the International Covenants can be utilizecl. Where International Conventions are frarnecl upon. undertakjng a great deal of exercise upon giving an o:pportuniW of head a'[ several levels as also upon tahing in'bo consideration the different societal conditions in differenb countries ' bv layinq down the minimum norm, as for exarnple, the ILO Conventions. the couirt would freely avail the benefits thereof. Those Conventions to which lnd.ia may riot l:e a siqnatory.buL have been followed by way of enactment of new Parliamentary s[a[ute or amendment to the existing enactment, recourse to International Convention is permissible.

53. This kind of stance is reflected frorn the decisions in PUCL v. Union of India MANU/SC/0274/1997: AIR 1997 SC 1-203. John Vallarueittorn v. Union of India MANU/SC/0480/2003: AIR 2003 SC 2902, Madhu Kishwar v. State of Bihar MANU/SC/0468/L996.: AIR 1996 SC 1864, Kubic Darusz v. Union of India MANU/SC/O4z611990: 1990 CriLT 796. Chameli Singh v. 'Sta[e of Swaminathaswami Thirukoil MANU/SC/044l_/l-996: - (1996) l- SCR 1068, Apparel ExporL Promotion Council

V. A.K. Chopra MANU/SC/0014i1999: (1999t 1 LLI

III LLJ 31 SC. State of Pnnjab ancl Anr. v. Devans Modern Breweries ancl Anr. MANU/SC/0961/2003: (2004) 11 SCC 26 ancl Liberpool & London S.P. & I Asson. Ltct. v. MJ/. Sea Success I MANU/SC/0951/2003: (2004) 9 SCC 5i.2."

45. \Mith regarcl to the application of InLernalional converitions and treaties in India, the Suirreme Court laict the following principies in para 47 of the juclgrnent:- )r ' {6 "In interpreting the dornestic/municipal laws, this cour[ has exLensively made use of International law inter alia for the following purposes:, (i) As a means of in[erpretation;. (ii) Justification or fortification of a stance taken; (iii)li,:Tt'#,u:,ltt'","1it:?:t"l',i-Tt#f:H1H; 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 covenanl., but not in a national law;

(vi) To fill gaps in law."

46. In AnR. nggT SC 301X. Vishaha and others Vs. State af Xlajasfltan and Otlters, the courb was concerned with a writ petiLion filed for preservation and enforcem.ent of the righL [o gend.er equality and fundamental rights of working wourer under Articles LL Lg and 2t of the Constitul"ion'of India, Secl.ion 2 of Protection of I{uman BjghLs Act, 1993 ancl the entitlements of working women under bhe Convention orl Elirnination of All Forrns of Discrimination Agains[ Wornen. Thele was no specific domestic legislaLion on tire sulrject.. Wi[h regard. to [he importance and applicability of inbernational conventions ancl Lreaties, the court helcl as foilows - "7. In the absence of domestic law occupying Lhe field, to formulate effective measures to checlc the evil of sexual harassment of working women at all worh places, the contents of Internabional Conventions and norms are significant for the purpose of interpretation o11lre guarantee of gender equality, right to work wi[h lruman dignify in Articles L[4], L[5], L9(L)(cr) and 2L of the Constittrtion an{ the safeguards against sexual harassrnent impliclt therein. Anv' InLerna[iona] Convention not inconsistent with the fundamental rights and in harmonli with its spirit rnust be read into [hese provisions to en]arge the rneaning and conten[ thereof, to promote the object of the constitutional suarantee. This is implicit frorn Ar[icle 51-(c) and t]re enabling power of the Parliarnent to enact laws for implernenting the 'International {1.. norms by virtue of Arbicle 253 read with Entry L[4] of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the maLters wibh respect to which Parliament has power bo make laws. "The exdcutive power of the Union is,. therefore, available tilI 'the Parliamen[ enac[s iegislation to expressly provide measures needecl to curb the evil." 47.. In (1999) L SCC 759 Aloltarel.Expol"t.Ft'ontotion Coumcil us.,A,.Xd. Chapra, also the Suprerne Court was clealing with the case of sexual harassment at tire place of work which viLial;ed the working environnent ancl observecl that the internaLional instrurnents cast an obligation on the Indian Sl,aLe to gender sensitise its laws and thaL the courbs are under an obligation [o see thab [he tnessage.of the interna[ional instnirnenl,s is not allowecl to l:e drownecl. The Supreme Co'LL::t again ernphasised that the courts must never forgel. the core principles embodied in Internationai corwentions aL:cl Instrurnents and reiterated the above principles.

48. In QOAil 6 SCC n X{apila I{ingrorami Vs. State of Bi.har, the Apex court.stressed on the importance of respecl,ing International Treaties and Conventions while interpreting LJre ConstiLution ald. domestic Iaw so as to effectuate the recognisecl rights and observed as follows- "47. rt is also weil-settled that a sbatu[e should be i in[erpreted in the light of t]re International Treaties ancl 'Conventions. In Chairrnan, Railway ' Board aitcl Ors. v. Mrs. Chandrima Das ancl Ors. MANU/SC/0046/2000: 2000CrtLJ1"473 this Cour:r stabed the iaw thus:- "24. e such as would help in effecLive applicahilitvr-of, the Universal Dectraratiott -<f ST ffitereof, mav have to he'read i! neeaf hece." '49. As no[iced above, right to residence and to settie in any part of the coun[ry is assurecl to every citizen as a ftrnclamental right under Article tg(tXe) of the Constitubion of India. (Ref: L997 ftU SCC 12L "Altntedabad Municipai CotVtor"atio.u us- IVaw-ab.KLzan Gulab.KInn & Qrs.) The right to shelter spr:ings frorn this right and has been considered to l:e an. inLegrai part.-for a meaningful enjoyrnent of right to life uncler Arbicle 2I of [he Constitu[ion of India. (Ref.: L995 Sw1t1ttr. 3 SCC 456: A,nR n 996 SC n L[4] U.F.,Avas Evam Vikas Farishad & A,mr. \/s. Ftie.ruds Co-opet'ative Efousing Society Ltd. &,A,nt".)

50. In [he instant case also t]rere is no specific domestic legisla[ion at all for internally displaced persons. As no'biced hereinabove, there aie also no International Conventions 'governing rights of sucir per:sons. It is now an acceptecl r:ule of jucliciai construotion thaL regard must be had to international.conventions, norrns and guiding principles for consLn-ring clornesbic law when Lhere is no inconsistency beLween them ancl ther:e is a void in the dornestic law.

51. IL is noteworthy that there is no specific laW, rule, regr-rlation or instrurnenL providing for treabrnen[ of IDIrs or setting oul any rninirnum stanclarcls for. [heir 1xo[ec[ion, rehabilitation and reiocatioir. The Guiding Principles on Internal Displacement reiterate the verr right to shelter consLitnLionally guaranteed and recognized as a basic h.uman consolid.ate ancl fill gaps in nalional ancl inl,ernational ltrw )3 I relating [o such. clisplaced persons. They also provicl.e a valual:ie benchrnaric for what must be ensured as part of the l:asic human rights security of such persons and woulcl guicle consiclerutiorr' of the rights of the present petitioners. 52.. It lras been observed by the Supreme Court in QA0il 6 SCC' n f,(api.{a E{ingrorani Vs. State of, Bihar. [haL indisputably, the state parties to the International Covenanl. on Econornic, Social & Cultural Rights were to tahe appropriate sbeps to ensure realisation of this thought. So far as the presen[ case is concerned, this covenant specifically. sbates the righL of ever1yone to an adequate standard of living including housing.

53. The rules laid down and right recognised in the aforenoLiced convenLions as weli as the Guiding Principles would bind the present adjudication also in the light of [he following principle laid down in Entertainntent Netwotk (suntra):-, "54 Furthermore, as regards the cluestion where [he protection of human rights, environment, ecology and other second generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions."

54. The petitioners are members of the larger group frorn their colnmuniLy which stancls forcibly evic[ecl from one par[ of the country rendering thern homeless ancl resourceless. They \ are without resources at the place of their relocaLion ancl are' faced with the threaL of forcible evicr.ion frorn their acco:mrnoclation. By way of these writ petitions, the petitioners seeir proLecLion and enforcernent of their funclamental righ[ to life which includes. shelter. The internabional conventions,60 recognise shelter as a basic human right. The Guiding Principles reiterate the same rights and responsibilibies of [he state so far as IDPs are concerned. Considera[ion of the pe titioners' rights, th.erefore, would necessarily involve ensuring the objectives and declarations rnade in the above. international instrurnenLs especialiy those endorsed by India r:eiteratecl by the Guiding Principles for IDPs. |he Protection of ttuman Ng\tts Act. L993

55. The issue in the instant case has anoLher dimension to i[.which is of impor[ance. In discharge of the obligabion unclel the internal,ional.covenants, India promulgated an ordinance appointing comrnissions and courts for the probecbion of huuran riglrl;s. Tlris ordinance, was replaced by the Protectian of was promulgabed on B.rr' January, L994 [o provicle for the constitution of the. national ancl sLate human rights cornmissions and human righ[s courts for bet[er proLection and for matters connected therewith or inciclentai thereto. are. defined in clause (d) of sub-section. (1) of section 2 as the'tigltts relating to'life, Iibet'ty, eguality. and digntity of the indiuidual guaranteed by the Constitution or entbodied in the Intetnational Covenants and enforceable l:y cout'ts in India'. TIre expression 'international covenant! is also defingcl to. include Lhe [wo covenants adopted by the General Assernbly on i-6tr'.December, 1966 and such other covenan'Ls ancl conven[ions adopted by the General Assembly of the unitecl Nations as the central Government may specify by notifical,ion.' f'he enfo::ceabiliry of the several rights recognisecl uncler Internal,ional CovenanLs, therefore, stands recognized by Lhis Iegisla[ion in Inclia. The said Act was made by the Pariiamen[ having regarcl to the changing social realibies and growing 'concern in India about issues relating to human rig\ts with a.view of bringing about greater accountability ancL [ranspar:ency in enforcemenl of the laws of the nation.

56. It is essential'to nobe that in fact no new righL is Jreing createcl, recognized. or.reiteratecl by the internal.ional ins[rumen[s or t]re saicl guidelines. The rigirb to shel[er of every person has been recognized as an essenbial concornitant of righl. to life uncler Article 2L of the Constitution of Inclia. It woulcl clearly be coverecl uncler the clefinition of a 'hurnan right' uncle:: SecLion "2(1)(d) of the Protection of Hurnan Rights Act, l-.993 which includes right relating to life, liberby, ecluality and dignity. The right to shelter, an essential part of right to life, would therefore also be a statutorily recognized righ[ under Section 2(1)(cI) of the Act of 1993 and enforceable as such also. ' The present petilioners, as persons displacecl frop l,heir h.omes and sl,ate, by way of these writ petitions are thus, seeking enforcemeirt of such right to shelter.

57. The above cliscussion woulcl show that state courts are I:our:.d [o use internationa] human rights covenants, which also

┌────────────────────────────────────────────────────────────────────────┐
│  sl.and incorporabed into the Protection of Human Righl,s Act,         │
│  1993, as a pillar of support for the rights recognisecl ther-eJry     │
│  and bo ensure the requisite assistance as well as ac.cess to          │
│  shelter as a positive r:ight so that the bare rninimum for those in   │
└────────────────────────────────────────────────────────────────────────┘

59. On the oLher hand, the petitioners have.urged []rat even in their wildesL drearns, bhey had never envisaged a situa[ion when they woulcl riot be in a posibion to reside in Lheir own homes after rel.irernent. on accounL of grave threats to their safety, the petitioners have been prevented frorn re'[urning to their hornes. The petitioners are not residing in Delhi on account. of a desire noL tcl return to the valley or to perpetual,e resiclence in Delhi, buL for reasotls totally beyond control of [hcse petitioners. The writ petitioners irave stated. that their hornes in Kashrnj.r have either been destroyecl or renderecl inaccessible to them primariiy on account of the inability of the responclents l,o frotect the same. Tirey clo not have aclequate mealls to accluire any properLy in Delhi. It is the petitioners contenLion Lhat Lhe | --,\ pensiou aclmissible Lo thern cloes not enable thern to a.ffclrd rentecl accomlnoclation or acquire their own houses. The petitioners have submitted that the respondents have perrnitbed sirnilarly. situated persons to continue in the allot[ec].. l:...,[1] accornrnodation. Reliance is also placed on orders of Lhe Suprerne Court, this Court and the CenLrai Admiiistrative Tribunal also prohibiting eviction of similarly'placed person"s frorn allotte d ac c orr.mo dation. In this bachgrouncl, the petitioners assail also the fajlr.rle to consider their requests to the responclents Lo exercj.se discretion vested in them under the Allotment of Governrnen[ Resiclences (General Pooi in Delhi) Rules, L963 to permit the peLiLioners to continue to occupy.the allotted premises. It is urgecl thal, this refusal was cliscriminatory, arbitrary ancl has failed, to consicler the relevant circumstances.

60. It is contended by the petitioners that in [hese facts, they are uot in unaul.horizecl occupation of the quar[ers ancl that thc. l:esllonclgnts could not have taken recourse to proceeclings,under the Public Premises Act, 1,97L which would have bhe effec[ of ousting them and their farnilies frorn Lheir only resiclence withouL baldng steps of making provision of reasonable alternatives. The contenl.ion is tha[ bhe en[ire action tal<en by thd respondents, ancl irnplernentation of [he threat of forcible eviction would result in violation of [he fundamental and basic human rightl of the petitioners ancl, therefore, is unconstitutional, withouI juriscliction ancl cornple[ely illegal. /t 4'l Bin din q j tt cLi ci aI pre c e den ts

61. So far as the conditions which were in existence in [he state of Jarnmu & I(ashrnir, the restoration of norrnalcy ancl Lhe 'circumstances in which they are occupying Lhese cluartels are concernecl, reliance has been placed by the petitioners on Lhe proceeclings ancl orders passed. in several siruilar cases prior; hitherto which have been completely ignorecl by the responclents.. A[terilion is drawn to t]re orclers of the Swntrente Cou.r't of.fndia in SLF (C) No.763g/Lgg9'Sltt:i j.n..n{oun &,Anr. Vs. State of jammw & X{asitnir & Ors. Shri J.L. KouI & the oLher petitioners in this case were Kashmiri pandits who were employees of the State Government and being S[aLe Governrnent servants, had been allobtecl resicien[ial accommodabions in Jammu between L989-90. Their houses in the va.Iley were either clestroyecl or burnt clown by militanrs. EVen though they had retirecl frorn service, these petitioners were pernri[ted to retain the government accornrnodations in Jarnrnu for safefy reasonsj such a step was considerecl' necessary ancl inevitable by the State Governrnent as the atmosphere was not congenial for the appellants bo return [o the valley, more so when they had lost their respective houses.

62. It appears that other state governrnent employees awai[ing a]lo[rnent of official accommodation, coulcl not, get r.he sam.e for the reason that these rel,ireci llersons con[inuecl to occtlpy. the official accoinrnodation. Tliey filect a writ petiLiol before the High court of Jammu and l(ashrnir cornplaining againsL the failure of the' state Governrnent to provicle them with official accommoclation. A learned 6i Cou::L of Jamrnu & Kashmir had allowed the wriL peLiLion ancl passecl a judgrnent on 24tr'January, 1997 clirecbing eviction of all those persons who had ceased. to be giovernrnent servan[s lor any reason but were still occupying the state accornrnoclabion. The iearnecl Single Juclge had also directed tirat the persons who were not. in. governmenb service but required Governrnent accorrrnoclation because of security'reasons, shonlcl be triecl Lo be accornrnoclated. within o.ne complex so that Lheir securiLy is ensured, reducing the burden on the. state which would have to incur lesser arnount for their securitv.

63. ' For the reason that the state government was a[tempting to evict l.h.ese occupants without providing thern with alternabive acco:mrnodations, a challenge was laid to the judgrnent of the slngle Judge dated the 24th of January, l.ggr by a le[ters pater:I appeal. This appeal was disrnissed by the Division Bench by a' jndgmenL daLed L4th March, Lgg[7], however, giving atl oppor[unity to the appellants to approach. the appropr:iate authbriLy for reiief. In.this background, these persons lecl. Jry shri J.L. I(oul, filed the above special leave peLition before the supreme court. on a consideraLion of the rnaLl.er, an inl.erjm. order order dabed L1d' April, LggT was llassecl by the cour-l. directing the s[ate'government to rnaintain status qllo regarclilg the possession of the property. 64;.Mr. n.K. I-tancloo, learnecl counsel for r;he pe[itioners has referrecl [o certain orders passed by the supreme conr[ of Inclia in the said lretition. on 26tr'August. l_997, the supreme court had requirecl counsel representing the staLe of Jammu & Kashmir to ascertain from the state Government the pel;itioners can be put back in to the houses ownecl by them in the I(ashmir Va11ey ancl to ensure protec[ion of thei]: persons as also their properties.

65. The case was. thereafter taken up by the Supreme Court on 2BtL Tanuar-v, l-998 when ttru Srrprerne Cour[ tooh notice of the massacre of Kashrniri Pandits in the Kashrnir Valley which had. [ahen place a few clays prior to the hear:ing ancl recorclect the following order:lThis order is Jreing rnade in the backcirop of a rnassacre of Kashmiri Pandits which toolc place a couple of days ago in the Kashmir valiey. Adjourned sine die. 'Stalr to continue. The lreti[ion bo be activated on mentioninq by counsel for Lhe Sta[e of Tarnrnu and Kashrnir as and when the Stat"e is in a position to assure return of the peti[ioners lo their respec'[i.ve hornes in the I(ashmir valley ancl ensure t.lreir safetJr and personal property." ' (Underlining supplied)

66. Ib is noLeworLhy that the Suprerne Court hacl also 1:assed an order on 3'd Deceml:er, 2008 (tn Shri [,L. Kown & Awhers directing bhe respondenb-stale bo frarne a rehabilitabion scheme within a period of six mon[hs and l.o place [.he same before the courL. For the reason'bha.t. no' rnaLerial or scherne was placed before it by the respondents, on LTtr' Serltember 2009, the Supreme Cour[ c]irec[ecl the Chief Secr:etary clf the State to file a personal affidavit as to whaL steirs had been talcen prirsuant to the orders of the court.

67. An affidavit dated 6tr' October, 2009 was Lhereafter filed by the chief secre[ary in the case. The appeal was disposecl of by a final juclgrnent on 27tr'october, 2009 which stancls reporbecr at 2'8Og (U A,D SC 253 J.L. X{guI & Otlaers \/s. State of jamntw & Kashmir. (( n migrants is concernecl, the afficlavib dated 6u' October, 2009 has been consiclered. in para 7 of the judgmqnt in the following terrns:- "7.In pursuance of the said order, the Chief Secretary has fited the affidavit dated 6.10.2009. In the said affidavit it has been disclosed that out of 54 appellanLs 23 'had alreadv handed over the Governmen[ ' accommoclation to ttie State Department and' the sanre irad been allo[ted to the Government ernployees. Oniy 31 migrants/retirees are presently in occupation of the Government accornmodation. It has fur:ther been clarified Lha[ there are 37,280 families wh.o have been recrisLered for the relief including. bhe accotnm.odaLion and out of them only 5,000 families could l:e providecl the accommodation in the camps. I-Iowever, it had been unclbrtahen thgt the Government would provide such faeilities to all l(ashmiri migrants till they are residin-cj at the present places. The relevant part of the affidavit reads as under:- "5. That iL is further sul:rnitted tha[ GovL. forrnulated a package for return and rehal:ilital,ion of I(ashmiri Miqrants which involves an ouLla)i of Rs.1618.40 crores. This is for the first [ime since 1.990. t]nat Govt. af fndia has cotne vp with a toolicv for R.eturn and Reltabilitatiott of, Kaskmiri Miqrants. The policy has been frarned on' Lhe recommendations of a workins crrowp cottstitwted trtv Govt. of trmdia to suggest varioris confidence building measures in the J&K State. While framing the policlr various needs of the nigrants have been taken into consideration, such as hbusinq, education, revival of Agricrilbure. ancl I{orticulture land, employment etc. The details of the pacicage announced on 5u' June 2008 al:e reproduced as under:i) Reburn and Rehabilitation Pachacre of I(ashmiri Migrants: The total package involves an outlay of Rs, L6L[8].4O crore. The tnain contponemts of the package are as under: (a) Enousinq i) Assistance @ Rs.7.[5] lac for fully or paltially darnaged house lefb behind by migrant.-

(ii) Rs.2.00 lac for dilapidated/unnsed horises.

(iii) Rs.7.5. lac for purchase/construction of a house in Group l{ousing Societies for those who have sold their properties during the peliocl afber 1-989 and l:efore the enacl.ment of "'fhe J&K Migrant Inrrnovable Property (Preservation, ProLection and Restraint of DisLress Sale) Acb, 1997 " on 30.5.Lgg[7]. (b) Transit Accommodation: Construcl,ion of transit accolnmodation ab three sites @ Rs.20.00 crore each for total Rs.60.00 crore. AJ[ernatively, Rs.1-.00 lac per family towards ren[al and,incidental expenses to those famiiies who rnay no[.J:e accommodaLed in transit accommodal,ion.

(c) Continuation of Cash Relief to Migrants:

Migrants families at' Jammu and Delhi who are recipients of cash relief and free::ation would continue to receive the same @ Rs.5000 per family per month (inciuding rations) for a per:iod of [wo years after their return to the valley.

7. Thab it may be further subrnit[ed b]ra[ uneilployed,youth were ashed to convey their willingness for serving in Kashmir Vailey, ht r:esironse to the same, t4074 unemployecl youth have expressed their willingness in wri[ing for serving in Kashmir va1ley.

"EXPR-ESSION OF INTEREST" was circulated among the migrants in order to ascerl,ain their' willingness bo return to valley and so far L676 faruilies have expressed their willingness to return to valley and avail the concession available under the package.

9. That it is further submitted [ha[ land at [he following three sites have already been identified for construc'Lion of transit accorl'r.rrrodation, the detaiis whereof are as.under: a- Land at Vessu, DisLrict Kulgam 100 Kanals. b- Land at Qazigund, District Anantnag 25 l(anals. c- Land at l(hanpura, District. Baramulla 50 Kanals 1-0. That it may be further subrnibted that 200 flats are nearing completion a[ Sheikhpora Budgam. In addition to this, l_B flats are available at Mattan Anantnag. These flats are [o be used as transit accolnrnodation by the Kashrniri rnigranbs who wish to return to valley. The rnigrants shall stay in bhe transit accommodation Lill they re- L L. fhat it may be further submibted Lhat StaLe Governrnent had also constituted an. Apex Advisory Cornrnittee to oversee bhe irnplernentatiorl of ' Return and Rehabilitation packaqe for Kashmiri Migrants in the month of September 2009 ancl immediatbly after the constitution of [he Alrex Level B Committee, various suggesbions were puL forLh in a meeting held on 23.9.2009. l-2. That it may be further subrnitted Lhat the Sta[e Cabine[ vide its decision No.i-30/1i"lZOOg dated 1.10.2009 has approvecl the paclcage for ReLurn ancl Rehabiiitatidn of Kashrnirl Miqiints ro l(ashmir Valley. However, with regarcl to implementation of employrnent scheme a Cornrni[tee has also ]reen ordered to be cons[itutcd to go into [he legal and other irnplica[ion.s for rnaldng recrui[rnents of the rnigrant you[h agaitLst various posls before the said scherne is forrnally no[ified. The Comrnitbee has to subm"it i[s report within a period of two weehs.

13. That the Sbate Governrnent is keen to. rehabiliLate the Kashrniri Miqrants in the l(ashmir vallev and shall provide every type of assistance for their return and rehabilitation. The rrrocess for the rehabiii[ation in valley has been initia[ecl in Tune 2008 after Govt. of India annnownced tnte packaEe for tlteir x'eturn." ' (Emphasis suppiied) The Supreme Court observed that this c.ase had remainecl pencling before it for twelve years and that the court had l:eeu insisting upon the state to frame the scheme of rehabilitation of the appellants and particularly for providing [.h.enr accotunoclation. Placiug reliance on the al:ove affidavits/underbakings given by the. responclen[s, the Courl. furbtrer obserwed that th.e authorities have framecl the rehabiliLation sch.eme ancl for iinplementation of Lhe same, it has got sufficienb resources also. In this baclcground, Lhe Supreme Courb issuecl the following directions:- "9. In view of the. above affidavit/unclerLakjng given by the State and after hearing Mrs. Purninta'Bhat I(ak, Lcl. Counsel for' the appellants and Mr. Anis Suhrawardy, Ld. Counsel for the Sta[e, we clispose of eal wi ious ho 'endeavours to retrmbilitate the petsotts who have l:een victim of'terronisrn and tiil ilte State is ah,tre tion to 3l appellants- OMS ffiev shail continwe to possess ffite accotmrmodations wlticlz are itt their respectiure Ilossession.gp Wis "

68. It is noteworthy that the only clifference bBtween Lhe peLitioners before the Suprerne Cour[ and [hose who are before this court is, that petition --1 1o relatecl to persons who were retired employees of the Stale Governrnen! while the present petitioners are all employees of the Central Governrnent and its departments. Flowever, the peLitioners before the Supreme Court ancl Lhe present writ petitioners are' iclen'[icaily placecl victims of the militancy ancl the rights asser[ed by both'sets of the petitioners aird issues raisecl by them are identical.

69. While tire above petition iemainecl pencling in the Suprerne Cour[., soilre ot]rer similarly.placed employees were facing the sane bhreat of eviction as [he present set of petitioners. Some such persons approachecl this court while oLhers filed a petition before the Cenbral AdministraLive Tribunal. The orders passed in these rnat[ers would a]so have a bearing on the present consideration. 7 0. Reference requires to be also made to a judgrnenb lrassecl on 2"o Aususb, 2006 tn WP (C) IVo,Ln742/2005 entittred P"X{..Wattdoo Vs. Estate Officer &,Attn by Lhis courl, which is repor[ed aE tr32 (2006) DLT 672. Shri P.K. Flancloo was also a I(ashrniri Pandit and part of the minority communi[y in the Kashrnir valley.,A:r employee with the Inteliigence Bureau of the Governrnent of Inclia, he had retired frorn the service on 31,, JuIy, 2004 whereafter effor:ts to cancel his allotrnent ancl cvj.ct him.by way of proceedings under the pubiic premises Act, 1g7L hacl been undertahen. Sh. P.K.Hancloo filed the writ petition assailing this action.and the eviction order clatecl 30tr'June, 2005 passed against him in the proceeclings by the estaLe officer alcl also soughL issuance of a writ of manclarnus againsL the |espoirclenl.s l,o aliow hirn to retain ) 1l which had been. allotted to him such time that the Governrnen[ made it possibl[9],for him to return to Sr.inagar or [i1] suitable aIterirabive accommodation is provided to him in Delhi' 7I. The observations made by this courb in the juclgrnenl. daLecl 2nd August, 2006 in P.I{..E{andoo (srytz"a) while dealing with the veqy objections urged in these proceedings, deserve to be considered in extenso and read as follows:-

"LL. The argument. submitted by the learned counsel for the respondents is typically gauche. It lacl<s sensiLivity. I(ashmir has never.ceased to be a hub of terrorisL activity which is mainly directed against the Hindu Pandits. The. violence in the State is al" il"s pealc. Due to the obstinacy of terrorists and helplessness of ' th.e government to counber tOrror, the situation coulcl ' not irnprove. Indian Constitution 'applies Lo all the. citizens of India. Equal protection means the right to equal treatrnent in similar circumstances. There should be no cliscrirnination between one pel:son ancl another if as regards the subject mat[er of the legislation their position is the same.. IL is se[tled law that a judicial or quasi judicial"decision cannot offencl ArLicle 14.

12.

72. Learned tiu In tlre result, I allow the writ petition in teruns of the order passed bv the,Apex Couu't in tlae case of [.X,. I{or.ttr Vs. State of tatnmw and Kas.ftmir dsuprar. petitioner to retain Quarter No.D-845, Mandir Marg. hTew Delhi, pendinq decision in SLP @ No.7369/2007. sub-iect to payment of norrnal licence fees or in the alternative the respondents maJr provide alternative acconrmodation to the petitioner and his family anlrwhere in Delhi till the pendency of the above said writ petition before the Hon'ble Suprerne Court. No cos'[s. " (underlining supplied) counsels tor the petitioners have also painstalcingly pointed out Lhe earlier sirni]ar directions rnade as back as on 3N' -Dpcemben 20oz by the central /x.dmimistratiure yrtnggnaltn a'4 No.2378/zoo[2] entitled Tei r(isham vs. fuion ot [ltgta e o{s.on the same issue which have a]so been noticecl 1?and reitera[ed in the P.X{..Handoo (supra) judgrnent. It is notewor[hy that Shri Tej Kis]ran, a l(ashmiri ciispiaced pelson had rnade' a requesl, for retention of Governrnetrl.' accommodation beyond superannuation which was turned down by tlre Government by an order dated 1-3th Augttst,.2002. 'tJti[1] refusal was assailed by way of proceedings before the CenLral Administrative Tribunai. In these proceedings, the Tribunal had placecl reliance on a letter clated 2"d July, 2OO[2] wri[[en Lo the Delhi Development Authority ('DDA') by the Minis[ry of Urban Developrnent & Poverty Alleviation on the subjec[ of preferenbial allotrnent of DDA flats to J&K rnigrant Central Governrnent employees who had retired or were retiring. The Lribunal nol,ed Ihe letLer in the following.terms:- ",12. By referring to the letter dated 2.7.2002 wriLLen to the DDrA, by the lvlinistrv of Urban Devenopment c Porffiaileya decided as under:- "......81rt the situation prevailinO in T&I( is such bhat does not permit the safe return of these retired/retiring Central Government' employees who. can settle after retirement at their native place. I(eeping bhis baclcground in view, a decision llas been talcen to allot abouL 100 MIG and LIG Flats in Dwarha to such retired/retirincr J&K rnigrant Central Government employees so that the Central Pool Accommodation coulcl be gob vacated from thern. DDA is, therefore, requested to formulate a housing scherne for retired/retiring J&K migran[ Central Gbvernrneirt employees and send a drafb thereof to this Ministry within a fortnight for approval." (Underlining supplie d)

73. In the al:ove. judgment, the central Achninistral.ive Tribunal also ol:served on violation of Article j,[4] by Lhe responclents holding that;the state shall not Jry iLs act discrirnina[e as between two individua]s who are similarlv circumstanced." These findings are also no[iced in para 1-0 of the juclgment in P.K. Hancloo's case (supra).

74. I have.had occasion to deal with a similar issue in a juclgnrent clatecl th,i X.L'h of,April. 20OE renderecl rn W.F.(C) Wn-\OOS(ZOOZ tul.t<" lcout Ys. tlnion of, India & Ots. In this case alsci the petitioner was a retired Kashrniri employee of Lhe Central Governrnent who coulcl riot return to l(ashmir for the same reason as Lhe petitioners. Proceeclings for his eviction were also iniLiated by the respondents under the Pul:lic Premises (Eviction of unauthorised occupanLs) Act, 't97r. During the course of hearing orr 7th April, 2008, a quely was pr-rL to counsel for the respondenb in tiris case in respect of the position wiLh regard to the safety and securiLy of the Kashrnirj Panclits in the vaJley. The position was revealed [o be the same as lrefore. In para L[4] of the saj.cl judgrnent, consequently ib was recofclecl that " tl;e respond.ents at'e not itt a position to eilsure their safety and protection and as syclt, in case they are displaced fi'ont the accomntodation wltich.they are occttpying, tltey wiII not be itz a position to return to tlteir respective hontes in the Kashtnit'valley''. Consecluently, the following directions were issued:- "L[5].. Im tlfis bachqrrourtd, the respondents tted to tlte r's ^,M*uo**t or" to *nforce the euiction oider *trticnt Irps beeil vassed aqainst the petiffi &* e*nA""r* fr"t" tne ictrt thev are occwpuims, uuuttMV-x[tq,

16. There is no doubt, that the petitioner was making paymenb of the normal licence fee while he was' in service. Interest of justice and equity merit Lhat the petitioner be requiiecl to rnake dalrrnent of is till such time as the 1\ ' accruires qny other residential properLy in Delhi. L[7]. In view of the above discussion, Lhis writ, petition is.allowed. The respondenLs are directed [o permi[ the. petitioner to continue to occupy the Quarl.er No.N- 299, Sector-8, R.K. Puratn, New Delhi subject to pa5rrnent of the same licence fee as was being paid by the petibioner on the date when he rebired. This order shall continue to operate till such time as the respondents provid.e. sirnilar al[ernal,ive accommodation [o the pe[itioner, or the peti.bioner accluires any resiclential property in his name. This writ petition is allowecl in bhe above terms.. There shall be no order as to costs.". It is noteworthy that Lhese orders have nol, been assailecl and have attained finality.

75. IL is urged by learned counsel for the respondenl,s that failure of the Government of India to. challenge the orders passed in WP(C) No.LL742/2O05 emtitled F.n{.Idandoo v/. Esta$e hf,ficer & Anr.; WP (C) 1Vz.1.065/2OO[7] enffiiled M.K.lkun v. uor & ors. and the other cases are irnmal,erial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex courL reporLecl a[ (2006) M SCC 7Og CoI. ts.t. Akkara n/s. Governntertt of.tmdia & Ors. in support of this submission.

76. It is noteworthy that CoI. BJ..AkXrara's case (sultra) relatecl to efforts of the G.overnment to recover paymen[ of excess amount as pension. Certain orders sbood passbd in []le writ pebi[ion filed by oLher employees who hacl raisecl a similar challenge. These orders had nob l:een chalienged by [he Governrnent. In this bachgrouncl, tlr.e petitioner hacl.contenclecl that the Governmenb was estoppecl from recovering the arnounb from. hinr in view of th.ose orders which had attaiued finali[y. The Apex Court rejected the contentlons and held [hat the Union of Inclia woulcl not be barrecL from resisting Lhe subsequenL writ petitions involving similar issues or challenging subsecluent judgments of the High Court realising Lhe seriousness or rnagniLude of the issues or financial implications. The position woulcl l:e clifferent only if it is established thaL the Governmen[ had adopted a pick and. choose meLhod only to avoid relief to the petitioner on account of mala ficle or ulterior rnotives. It was helcl that principles of estoppel, res juclicata, iegitimate expecbation,or fairness in action were not attractecl on the facts of the case. lVo plea of violation of funclamental rights was involvecl in Akkeira's:as.e (supra). There can be no cornparison with. the 'facts of Akkara's case (supra)with those of the present cases.

77. The aforenoticed juclgments ancl orclers were clearly relevant and binding upon the respondents for consbruing anct taking a view on'the contentions and cjaims of the petitioners. The r:eiponclents were also bound by tlie cleposiLion ancl Lhe policy placed before the Suprerne CourL which resul'[ecl in i[s judgmeir[ da[ed 6'h of ocbober, 2009. The available recorcls clo not show any consideration of the aforenol.icecl juclgments ancl orclers so far.as'the rights anct pright of [he petitioners are concernecl. cancellation of allottnents and action under tlte puJsfic prernisw AcL 1971

78. Mr. JaLan singh, learnecl counsel appearing for: qespondent No.L has contencled that the allotrnents and to initiate the proceedings under the Public Premises Act, l-97i. as well as the orclers of the Estate Officcr and the judgmenLs of the Appellabe Court are in tertns of ' staLutory provisions cannot l:e assaitecl by way of th.ese writ petibions Reliance is placed on the pronouncements' of this cour[ reportecl at (.L995) ILA,D Delhi 293 Union of, -[ttdia Vs. S.A{.,A,EErarwal & 3n othets; 2OOO (55) DRtr 57 Btrtinn SinEh Vs. Uafion of trndia &,4,nr.; A,nR 1.977 Delhi 268.E{ardwari nan Veruna Vs. The Estate Officer & Ors. in sujrport.

79. This olrjection of the respondents ignores well seL[lecl first principles of law. Mereiy because the impugned. action is taken and order passed in.purported exercise of staLuLory power woulcl noL rencler it imrnune from judicial scrutiny. Th.e ques[ion as to manner in which such.ac[ion and orders viz-a-viz thei.r effect. on fundarnental rights witl be examinecl, stancls answerecl Jly tlre Suprerne Courl. tn,4,.[R ngTE SC 597; @gZS) n SCC Z4g IVfatte/ra Gandhi W tlniom of hidia ^^,a oflIters. In this case, [he court had made the following observations with regarcl Lo the inr.pact of action taken uncler provisions of Lhe Passporl, Act:- "NorM, if the effecl, of SLate action on er:flundamental right is direct and inevitab]e, trren a.fortiorari, it must be presumed tb have been inLendecl by [he arithority taking the action and hence, this cloctrine of direct and indvi[able effec[ has been describecl bv ' solne jurists as the doctrine of intended and real effeci. This is the test which must be appiied for the purpose cif determining whether section 10 (3) (c ) of the impugnecl order made under it is violative of ArLicIe l-9 (1)(a) or (s)."

80. The supreme court further ruled that il, is not necessary to assaii the constitutional validity of the sl,atutorlr provisions -7 1 uniler which the irnpugned orcler is mad.e anci [hat th.e cor"rr:[ woul.cl still be able to examine as to whether the order made iu exercise of statutory power was invalid for [he reason Lha[ i[ coniravened. a funclarnental right holding as follows:- "Bu[ that does not mean that an orcler macle uncler Section 10(3)(c) ) rnay not violate Article 19(1)(a) or (g). While,dis,cussing the, constitutional vaiidity of the. impunged order impounding the passpor[ of [he petitioner, we. shall have occasion to point oub that ever where a statutory provision emrrowerinq an authority to bal(e ac[ion rs.constrtutronalLy va.trcl., actron taKen under 1[ rnalr offend a fundamental riqht and in that event, thougth the statu[ory provision is vaIid., the action may ]re void. It is l,rue, and we rnusb s[raightaway conceded [hab mereiy because a statutory provision ernpowering arl author"ity to take action in specified circurnsLances is consl,iLuLionally valid as not being in conflict wiLh any fundamental rights, 'it does not give a.carte Jslanche to the authority to make any.order it likes so long as i[ is within the parameters laid down by the provision. Eve,fi offer nr.acle under a statutory provision mus[ not onl]r l:e wi[hin the authority conferred ]ry the statutorfr l:rovision, but mu Parliarnent cannot be presumed to have inLended to confer power on an authority to act in contravention of fundamental lights. It is a l:asic constibutional ich the damental'ri em to b'e elernent.81-. In [he a]:ove case, the Supreme'Courl, held tha[ even though the impugned order was within the [erms of [he relevan[ section, "it rnust neverLheless, not contravene dnv ftindarnen[aI right;s and if it does, it would be void". so far as bhe irresent case is concerned, even i'1. were to be helcl that the action talcen by the responclen'ts was permissible uncler the sLatutory provisions, but if it viola[ecl or adversely irnpactecl ftrndarnental rights of the petitioners, it assriml:tion underlying every statutory grrant of power shoulcl act constitutionall-rr and not in violation of anv and no authority is necessary in support of it." (Underlinin g supplie d) J '7q l,ite present writ petitions is therefore rnisconceived ancl is r:ejcctecl.

82. An exarnination of' the order of cancellation of the allotnr.ent requires to be unclertaken. The only rules reliecl ullotl in srLpport of the power to permit occupancy of [he cluarters are tlne.4,Xno,tntent of Govenunept R.esidences (Genetan FooI im Detrl'tt)--XluleE-1963. Cancellation of the allo[menL has been effecLed under these very rules.. 83. The respondents have perrnitted the pe[itioners to occupy the same in exercise of power conferred on thern. IL is no[ [he responclents' case that the petitioners carne into possession of the quar[ers illegally or without authority. The occupancy is bbing Lreated as unauthorised by the responclents for [he reason that they have cancelled the allotmenl,s.

84. In view of this stancl of the responclents, it irecoines necessaly to exarnine the provisions of the Public Premises Acl,, L971..,

85. For the purposes of the instanb case, the expression "unau[hqlizecl occupation" as clefinecl uncler secLion 2(g) of Lire Fuhnic Frentises (Euiction of [-htawttrtotised occr"qtants),A,ct, n97L has to be construed. ' sectio' 2(g) of the saicl statute reads as follows:- " 2(g) "unauth.orised occupatior:", in relation to any lrublic prernises, lneans the occul:ation by any persorl of the public premises withouL auLhoriiy foi stich bccupation, ancl includes tire continuance in occupal,ion J:y any person of the public premises afterLhe authority (whether by way of grant or any o[her mode of [ransfer) under which he was ailowed to occupy the premises, has expirecl or has been deLermined for any reason rnrhatso6rrer.,,

86. So far as the proceedings for. evicbiol 1nc1er the Public Premises Act, deserve Lo be 1,g7L are concerned, Sec[ions 4 and 5 thereo f 7\ also consiclerecl. The relevant extract reacls thus:- " 4..[sswe of notice to sltow cawse agraittst order " of euictiort, - (1) If the estate officer is of opiriion that any persons are in unauthorised occupation of. any p,rniic premises and that they should be evict6d, the: Estate Officer shail issue in the manner hereinafter provided a nobice in writing calling upon all persons concerned to show cause why an ord-er of eviction should not be made. (2) The notice shall- (a) specify th.e grounds on which the older of eviction is proposed to be made; and (b) recluire all persons concerned, thaL is to say, all persons who are, or may be in occupa[ion of, or claim interest in, the public premises,-

(i) to show cause,. if any, against the proposed orcler on before such dale as is specified in the notice, being a date not earlier than' seven days fgrrn ilre date of issue 'Lhereof, and

(ii) to appear before the Estate Officer on the date specified in the notice along with [he evidence which they intend to produce in supporl. of [he cause shown, and also for personal hearing, if such hearing is desirecl.l, XXXX 5.,Euictiom of wnawtluotised @ecupan ts. - (1) I'f, after considering the cause, if any, shown by any person in pursuance of a nobice under sec[ion 4 and [any evidence produced ]:y hirn in support of the sarne and after personal hearing, if any, given under clause (b) of sub-section (2) of section 41, the estate officer is satisfied that the public prernises are in unarithorised occupation, the estate officer 1nay make an order of eviction, for reasons to be recorded therein, directing. that. the public premises shall be vacabed, on such date as rnay be specified in the order, by all persons who rnay be in occupa[ion thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or soine other conspicuous par[ of the public prernises. (2) If anlr person l:efuses or faili to cornply wiLh the orcler o.f eviction I on gr before t]re date specified in the said ord"er or within fifteen days of the date of its publication under sub-section (L), whichever is later.l the estate officer or any other officer: duly authorisecl by the estate officer in his behalf I rnay, af[er the clate so specified or after the'expiry of ilre period aforesaid, whichever is later, evicb thaL personl from, and take possession of, the public." (Underlinin g supplie cl)

87. The preserit cases raise a perl,i1el[ qnestion as Lo whether the cancellation of the allotrnents to the petitioners was justifiecl anci valicl and whether the pe[i[ioners' occtlpallcy thereaf[er could be brought within the meaning of [he expression "unauthorised" under Section 2(g) of the Public Pre,mises Act, I97t. BB, The statutory clefinition of the expression "utlattbhorisecl occupal.ion" in Section 2(g) of tlr.e Public Premises Acl., 1,97I thus requires juclicial interpretation for the purposes 'of Lhe present cases. In this regard the oft quoted Words of Justice P.N. BlragwaLi in (XgE[7]) I SCC 228 Natiorta.{ Textile Worlrers' [-Inion us. F.R. Rartuaktishnan would be apposite when it was statecl as follows:- "We cannot allow the deacl hancl of the past to stifle the grow[h of the living present. Law canno[ s[and sbill: i'[ must change with the changing social concepts and. values. If the bark that protects the tree fails [o grow and expand along with the tree, it will either chohe the tree or if it is a living tree, it will shed that bark ancr grow a new ilving bark for itself. Similarly, if the law fails Lo respond to the needs of changing socie[y, bhen either i[ wil] stifle tire growth of tlre society ancl chohe its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law rnust therefore constantly be on l,he m.ove aclapting itself to the fast changing society ancl not lag J:ehind." $o

89. While interpreting sta[utory provisiotts, the Suprerne CottrL Y f has also approved and applied in a nurnJrer of cases, Lhe principle of "upclaLing construction" while in[erpreting sl.al,tLLes as sel, out by the lcading jurist Francis Bennion in his commentaries titldd ''statutory In[erpretation', 2nd Edn., pg 6L[7]. {Ref: (2003) 4'SCC 601. State of lvfaharashtra r/5. Dt". Fralft^il D. Desai; (1997) 5 SCC 482 CXT Vs..Foddar Centetat PW. X.td.; (20OO) E SCC 74O Easavara.f R. fuaffiX us. State of Karmatalra]. These principles have been noticecl n (1996) 2 SCC 428 State us. S.j. Cltoudha4rald reacl as follows:- ' " (2) I[ is presumed t]rat Parliament in[ends the court to apply to an ongoing Act a consLruc'Lion tha[ continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be ti-eated as always speaking. This nteans in i[s application on any clat"e, the language of the Act, though necessarily embedded in its owtl tirne, is neverdreless to l:e construed in accordance with the need to treat it as cu::rent law." ' At page (618-L[9]), of bhe report, it is further noted thal.:- "In construing an ongoing Act, the interpreLer is to presume that Parlianr.ent intended the Act bo be appliecl ab any future time in such a way as to give'effect to the. true original intention. Accordingly, the in[erpreter is to rnake allowances for any relevant changes that irave occurled, since the Act's passing, in law, social conditions,. "l.echnology, the meaning of worcls, ancl. other mabLers. Jus'b as the US Constitution is regarclecl ' a.s 'a living Constitution', so an ongoing Brltish Act is regarded as 'a living Act'. That today's construction involves Lhe supposition that parriarnent was cabering long ago for a sLate of affairs that clicl not then exist ii no argulnen[ against tirat consl"rucLioD. Parliarnent, in the wording of an enactrnent, is expected to anticipabe temporal developments. Trre drafter will try to foresce l,he future, and allow for it in the worcling.,, I'L was, therefore, ollserved that an ongoing Act is taken to be always speaking stating that:- Ql- U '.. "An enac'[inenb of forrner days is thus [o be reacl tociay, in the light of clyflamic processing received over [,he years, wilh such modification of the current meaning o! iUs lalguage as wiil now give effec[ l,o Lhe original legislaLive inl,ention. The reality and effect of dynamic processing provides the gradual adjustment- It is condtibuted by judicial interpretation, yeal: iD and yeal: oub.. It also comprises processing by executive bfficials." _. Thus, tlte courts have over the period of tirne eipplied this principle to interpret various terms ancl phrases inclucling "stage carriage" has been interpreted to include "electric trarncar"; "steam. tricycle" to inclucle "locomoUive"; "telegrapJt" to include "telephone"; "banker's book" to include "miclofilttt"; "to take no[e" to inc]ude "use of Lape recorcler"; "doclrments" l,o include "dal,a bases"; "ltandwriting" was construed. to include "typewril,ing" $lef: 1996(2) SCC 428 State Vs. S"f"Ctrdaudneary]. 'Notice in writing" in SecLion:l-38 of the ! Negotiable Instrurnents Act, were construed l.o inclucle a "nol-ice by fax". {Ref: (1.999) 4 SCC 567 Snn tunport USA Vs. Exitn A,ides Silnr Exporterc|. This princiirle of legal inLerpretation w0uld squarely apply to the construction to be placecl on the provisions of Public Prernises Act, L97 L.

90. Because of the peculiar circumstances prevalent in the Kashmir: valIey,. rnernbers of the rninority cornrnuni'Ly wer-e targettecl and singlecl out for hostility as a class in their horne staLe. Admittedly, tire state was unal:le to protecL Lheir ricrhLs or propbrties.

91. The state authorities assessed the threat percep[ion ancl clanger to the lives to sorne of the petltioners who *uru boctily evacuatecl frorn their homes in the valley. The transfer of [he Y[3] petitioners, (or thab of the persons on whon they were clepenclent), to De1hi, which preceded [he allobment of quarl,ers, was thus compellecl by,lu inability of the respondents to proLect and ensure the righL to life of the petitioners. The same was certainly involuntary. The aliotments were a result of [he extrerne necessity recoguisecl and acfiuclged by tlie ]:espolldell[s themselves. It is also.noteworthy that'those fleeing Lo safely had no opportunity to Secure or salvage their properties.

92. It is an achnittecl fact that over.this periocl, [he properl,ies of bhe petitioners in Jarnmu & I(ashrnir' have ei[her been clestroyecl or, in' other cases, occupiecl by rnili[ants or [he rnajority groups in the state. On account of the inabiiity of lhe Governrnen[ to protect the lives ancl 1:roperties of t]re pebitioners, despite the Constitutionai manclate, Lhe petitioners have been deprivecl of their properties, are unable to oreturn to [heir hones ancl face clanqer Lo [heir lives, if they do so.

93. The accommodation allotted to the petitionels" is the only accornrnoclation which tirey have ever irnown in this city. the petitioners s'[ate thab they do not own any other property. I[ is (' the sarne sheer necessity which cornpels the peLitioners bo continue to occupy the premises which was allottecl Lo them. It is clearly eviclent tl:at having id.entifiecL ur.l,.,plrlied such neecl. of the petitioners, absent any alternative with tirern, the respondenLs would be required to rnaintain tire sarne.

94. Tle petitioners have.been at the receiving end of bhe threats no[ only for the reason 'that they were from anoLher 6\ community but also largely because [hey representecl [he face of the Central GovernrnenL in the valley as its employees'

95. It is itnportan[ to note'that the scheme noticed in [he aforenoticecl afficlavib clated- 6tr' October, 2009 (filect by the Chief Secretary before the Supreme Court in i.I{. I{oun vs. Uttirttt ttf lndia (supza); talks of 'Retuin and Reihalti]itation'. It cloes noL even aclverL to resetblement. No reference is macle to the safe[y or security of the rnigrants who agreed or atbernpted to re.[urn. Inte:restingly, there is reference to 37280 Kashrniri families who hacl. registered for the relief inclucling accommdcla[ion ou[ of which ou[ of which only 5000 farnilies have been provided accc)lunodabion. An und-er[aking stoocl given to the Su.preure Cou:rb tha[ the governrnent would provide such facilities to all the l(ashrniri migran'ts till they are residing at the prese.nL places. Persons as the petitioners are nob even coverecl uncler those who are clealt with in this affidavit.

96. It G also noteworthy that the affidavit filpct before the Suprerne Conrt refers to a total paclcage of the Centr"al Government involvincr an outlalr of Rripees l-61-8.40 cr:ores. 97.. The affidavit of the Chief Secretary does nol, even refer to the u[ilisation of this huge amount of public money and the fate oI Lhe proposecl facilities.. There is nothing even before Lhis court which coulcl suggest that the facilities promisecl before the Supreine Court, have even corre into exis[ence.

98. The alLernativeis propounclecl. ancl the schemes per[aining to Kashmiri rnigrants noticed in the judgments of the supreme Courb and of bhis court remain in the realm of proposals ancl $i fairness. No al[ernal,ive at all has ]reen rneide available to or offerecl to tire petitioners even cluring the irearings before [his cour[. In the light of t]re well se[ilecl principles laicl in Lhe above prececlents, the inevitable conclusion is thaI Llie. responclen'[s h.ave not taheu the relevant factors inLo colsicleration ancl have actecl arbitrarily ancl utlreasonalrly. The above cliscussion clearly rnanifests that the respondenLs have irot acted fairly in discharge of their posil.ive obliga[ion ancl have not sufficiently engagecl with [he problerns and difficulti'es of Lhe p'etitioners.

99. The pe[itioners ]rave been prevented. frorn resicling in [heir hornes in Jammu & I(ashmir for th.e reason bhat Lhe Sta[e has bee:n unable to secure their lives or protect Lheir homes. In fac'L, the respondents.also admit their inabili[y to en.sn]:e plo[ecbi.on to the life and limb of the pe[itioners in case [hey were to return to the horne sta[e, leL a]one any measure of secr.rril,y for their continued residence in the place of their l:irl,h, in case they returned 1-00. On behalf of the respondents, it has been argued at length even in tlr.ese proceedings thaL []re Union of Inclia has forurulated a package for re[urn and rehabilitation of L]re displaced llersons. This by itself shows that the situation is nol, such that the pe[itioners are in a position to re[urn to [heir homes. The respondents are clearly unable to ensure protecLion to the lives of the petitioners and their'famiiies or security in their homes. 101-. Mr. Jatan singh, learned standing counsel for [he uol has placed reliance on the pronouncement of this court reportecl d[6] 2000 (55) DIII 57 tshim singh vs. [Jnioil of tutdia & A,nr. In this case, [he petitioner had soughb upgraclation of i;he accotunoclaLion a]lobted to him on grounds of"the security cover which hacl been granl,ecl to him as a presidenb of. a pqlitical lrarty. A challengie was also laid to the eviction ploceedings' It was helcl that the accommodation allotted to him was not liable to be upgracled.. It is noteworthy that the petitioner in tha[ case clicl not hail from the l(ashnlir -ralley. No plea that Lhe petitioner could. not return to his own accornmod.aLion oD account of inalrility of the state to protect either his life or the prdperty was putforbh or considered. In the present case, [he pebitioners see]< no upgradation of accominodation but only protection of their l:asic human righl ancl ihe funclamental right Lo life. There is uo parily at all between tsIaim Singh's case (sultr.a) ancl Lhe present chses. I02. IL neecls no elaboration that a judgrnenl" has Lo be exarninecl in the conl,ext of the factual mal,rix which it cleciiles. - TIr.e juclgment reportecl at (L995) ILMD Denhi 2g[3] Wtion aff htdia Vs, S.M,,A,EEarwaI e 3X Others,.also reiiecl upon by Lhe respondents, was a case of evicl,ion of shopkeepers who were licencees in shops which were public prernises anct had failed [o show cause in answer to the notice issued by tlie Es[ate Officer. This case cannot be cornpared with the factual matrix noliced hereinabove.

103. The respond.ents have also placecl reliance on the pronouncernent of this,court reported at,A,rR n g77 Delhi 26g Enatdwafi n"al veruma vs. The Estate off,icer & ors. wherein d[1] merely a licbncee. There can be no dispu[e a[ aI] with t,his prollosition. However, Flardwari LaI Verma hacl also not laised any question of violation of basic human and constitu[ional rights as 'the petitioners have in the present case. No facL situation as in the present case was involved. L04. The petitioners are not continuing to occupy the sulrjec[ prernises because they want Lo do so. They are also nob claiming a right to inciefini[ely occul]y the public prernises or assbrting a ti[Ie or a right [hereto in respect of the subjec[ property. The. pe[itioners have merely sought prol.ection of their righL to shel[er tili such tirne, as the respond.enLs are a]:Ie to eusul:e their right to life in their h.ome state or make availal:le a reasonal:le alternative shelter to the peti[ioners. The responclents have themselves considered srich recluests,ancl permibted identically placed persons to conLinne to occupy the allottecl accornlnoclabion. Such a clairn hag also becn enbertained and granbed by not only the Suprerne Court, l:u[ also by this court as well in several' precedents noticed hereinabove..The responclents have aclnrittecl in their counter' affidavit that bhe petitioners have nowhere else Lo go. L05. Within the larger'group of the IDPs from l(ashrnir, the petitioners forrn a special.class ancl are re[irecl governrnent ' personnel. when the petitioners were forced l,o relocate, they receivecl governlnent accommodation not only as an inciclence of their service, but also on accounb of their cornpulsive eviction fron l,heir hornes. They have also not been a]:le to geb any benefit of any of the schemes framed by the governtnent which clearly achnib the special neecls ancl entitlernent of these displaced persons.

106. Despite this. hard reality, lhe represenbations, undertakings and promises of the Central Government, upon retirenrenb, the allotrnents to the petitioners stand cancelled and they are being ashed tb vacate Governrneut accornrnoclation; obh.erwise they face the threa[ of erninenL forcible eviction therefrom pursuant to proceedings balcelr against thern uncler the Public Prernises (Evictioit of Unauthorised Occupants) Act, Lg7L 1,07.' The petitioners 1nay thereby be compelled bo reLurn [o l,he violen[ situation. where from they were evicbed/evacua[ed/or foi:ced to flee. Forcing bhe petitioners wlr.o are IDPs to re[urn to bhe area where they were persecuted violates th.e principle of non-refoulement which is the principle in inbernational law forbidding the expulsion of a refuge into an al:ea where such person mights be again subjected Lo persecul.ion. Tir.e responclents cannot be permitted, to on a hyper-technicai construction of statutory provision br arbitrary exercise of power to cr6ate a situation where the homeless petitioners are compellecl to return to l-he areas where they rnly face'violence ancl threaL Lo their life ancl libertv.

108. The respondents haVe bhemselves recognised tlie enLitlernent of the.petitioners to appropriate resid.ence, when they rnade the alloLnlenl.s. The only reason aclvanced by the responclents for their clecision to cancel the allo[inenb ancl [o evict the fetitioners is that they have.retirecl. The relevanL factor as to flre developrnents in the state and. the effect of such eviction has nob even been remo[ely considerecl. No exarninaLion of the issue of whe[her [he spir-i[ or i1[ei:.clment of the iivowecl policy of re]ral:iliLa[ion J:eeu achieved, or not, has been undertahen. 1-09. The situation which was to be addressed in these cases was [ruly exceptionai. This aspect has also not even remo[ely enbered the respondents consideration. In fact the decisions of the responden[s amply illustrates that the respondents are no[ rational, reasonable or bonsistent in their decision rnahing. The construction" placed by the respondents in the cases of [hese IDPs on the permissibility of the occupancy of the cluarters under the Allotment Rules as relateable solely to their service resnlts in violation of constitutional guaranl.ees and was clearly and cornpletely unwarranted. It needs no fu::ther elabora[ion that the rights which the petitioners are cornplaining l:reach of, are the rights guaranteed to thern uncler ArLicle 19(1)(e) ancl 'Article 2L o'f the Constitution of India. For these reasons, the' interpretation of the expression "unauthorised occupation" by the respondents as well as in the irnpugnect orders is blinlcerecl,' restricted and irnpermissible in the given facts. Thc expression "authoriLy for such occupation" appearing in section 2(g) mus[. talce witirin its arnbit l"he constitutional violaLions which resuit from Lhe restricbed worlcing of the statutory provisions by [he ' responclents. It was incurnbent upon all.concernecl with the decision malcing to take into consideration the rnoSt material developmerrts in the home state of the petitioners and the facL [hat Lhe State was unabie to guarantee protection of life arrcl liberty to Lhe petitioners in case 9o ancl inability of 'the resettlement/reirabilitation effor[ and the 'l aJ:sence of any aiternative to the petitioners for the purposes of construction of [he expression "authority for such occupal,ion". No legaI interpretation could be acceptable which cloes.nob talce into its consideration these relevanL facLs ancl circumstances. The petitioners are bccupyrng the accomrnodabion because of the failure.of the respond.ents to clischarge the constitu[iona] manclate ancl their public law obligations of protec[ing l,he righ[ to life and liber:ty of the petitioners. As nol.iced above, the authority to occupy the quar[ers so far as the pel,itioners were concernecl was derivecl frgrn the constitutional guaran[ees. Subh occupancy cannob be deemed or helct [o be "unauLhorised" by any measure. 1"L0. The significant difference between the cases of the peti[ioners ancl that of an unauthorisecl occupan[ of public prernises is that the writ petitioners have continuecl to occul-ly the public premi'ses only on account of the inability of the sLal.e to prol,ecb the funclamental qnd basic hriman rights of the ire[it-ioners. LL[1],..The resl:onclents woulci have the recorcls of Lhe cilcurnstances in which the petitioners and their successors in inte:resb were transferred ancl evacuated to Deliri and also [he extreme necesslty of malcing the allotmenLs of the quarLers to these persons who were not only.Governmenl, servauts but also IDPs. The Directorate of Estates which has effecbecl the impugned decisions cancelling the allotments wouicl be aware of the pronouncemeuts in respect of identically placed persons.tl court tn !.n{. I{owI us. Utziott of India, the order of the Ceutral Aclrninis[ra[ive Tribunal tn Tei Kishan Vs. Union of fndia & bun"ancl irnplemen'[ecL the same. The respOnclents are aware of the prevalent siLuation LLz. No legal interpretation woulcl be accepLable which cloes not bake. into 1tt cbnsideration the relevan[' facts and circumsbances. There can also be. no statuto.ry interpretation which results in violation and constitutional guarantees ancl protection. The present peti[ioners certainly can"nol, be'cornparecl wibh ortreated in the same. manner in which the responclents woulcl cleal with any other occupant who has not sufferecl the gross violations and deprivations as the petitioners, ancl is unauthoriseclly occupying the public premises

113. It, therefore, has to be held that the occupabion J:y petitiorler, a.rrr,.ot be construecl as "unauthorizecl occupa[ion" of the quarLers within the meaning of the expression in Secr;ion 2(g), of the. Public Premises (Eviction of Unauthorized Occupants) Act, 1"97 1". L14. An examination of the irnpugnecl orders now necessita[ecl. The cancel]ation of the allotrnents ancl the action ini[ia[ed under the Public Premises Act, j,g7L'were resistecl by the petiLioners o1r the several grouncls on which these writ petil,ions are prernised. Flowever, the sanle resulLed in [he impugnecl orders of eviction.

115. The sole reason given by the EsLate officer for passing [he iilpugned orders of eviction is that the arlotmen[s in favour of petitioners q2- [hab they were not in unauthorized occupa[ion of the insLatrt prernises. None of the other contentions of the pel.itioner have l:een even menl,ionecl let alone consiclerecl' 1'16. The iretitioners' appeals assailing these eviction orders stand rejected. LI[7]. The petitioners had placed. the several clecisions relaLing to sirnilarly.situated persons before the respondents, the Esl,a[e Officer as well as the learnecl Ad.ditional District Juclges. A plea was tahen tha[ because of failure of the responclenLs to ensu]:e tlre protec[ion of tire rights of the petiLioners und.er Article 2t of Lhe Constitution of India they continued. to occupy the quarl.ers. The petitioners had also urged that they stood deprived of home ancl hearth. because of the failure of the responclenl,s to ensure tire constibutional guarantees ancl d.ischarge the mancia[e thereunder.

118. The appellabe orders notice the petitioners' contention that the petitionels have made several representations l,o various authoriLies lbr allowing thern to retain th.e accomrnodation on the ground that they belong to Kashrnir ancl i'b was no['feasi]:le to return in view of the commllna[1] riots ancl terrorists lnovelTlents. These reques'[s have not ]:een acceclecl to. The impugned appellate orders record that the petitioners have challenged the eviction orders on the ground thab the Esta.te officer had failed to consider the faci that they wer-e: I(ashmiri migrants and cannot return to Srinagar LiIl normalcy is res[ored. It was also. a ground of appeal that the Estate officer had not considered the orders in sl-p No. L 36glj.9g[7] by bhe Suprerne Court and that the petitioners' cases were on" bhe a,

9) sarne foobings. The challbnge had aiso been laid to bhe orclers ' of the estate officer. on grounds of arbitrariness ancl violalion of principles of natural justice. L19. The appellate court in the irnpugnecl orclers has also proceedecl on the soie gro,und that there was no lease or license deecl issuecl in favour of the petitioners by the Governmen[ of India. The orders of the Apex Court were not considered on [he sole grouncl.that copy of the Special Leave Pe[ition ]rad noI been placed before the court and that the peLibioners wele noL a party to the pro'ceedings. The learned appellaLe corut was also of bhe view lhat the petitioners were provided accolnmoda[iou in Delhi because they were in service in Delhi ancl no[.because of terroris[s threats.and further tirat accornrnoclation was given onty by virtue of employrnent. It was also concluclecL [hat no relief had been granted to the petitioners by the Supreme Corirl, and therefore, the orders did not assist the Supreme Cou::[. The eviction orclers had been sustainecl in view of bhese conclusions. 1"20. As a result, such'working of the Public Prernises Act by the respondents, the petitioners are being threatened wi[h evicbion frorn the only shelters that they know, without any alternative being available to them. IzL. The respondents are bound to act in a manner which is cornpatible with the constitutional rights of the peti[ioner while this court has to tahe into account ancl require the legisiabion to ' l:e reacl cornpatibly with such rights. The object is to ensirre thab the actions ancl orders must be such as to aveiL or::ectiiy.any violation of such l:asic rights, A'q tt t22. T[e sc[erne of tfte Public Premises (Evic[ion o.[ Unau[horisecl Occupants) Act, I971, shows tha[ [he no[ice which 'is issued. und.er Sec[ion 4 to show cause is required to specify. the ground-s on which the eviction is proposecl to be macle ancl require the persotls concerned to show Cause agains[ l,he proposed order before the specified date when they are to produce evidence in support of the show caUse. Under Sec[ion 5 of Lhe Ac[, ilre Estate Officer is recluired to consider the show cause by the noti0ee uncler Secl.ion 4 as well as the eviclence produced l:y him and after personal hear:ing, if any, given. Thereafter, the EstaLe Officer is required to record reasons fo:: his satisfaction for making an order.of eviction. The orders of the es[ate officer discloses no reasolls at all to support satisfaction to order eviction. The impugned orders 'do nol, reflect the consideration of the contentions on the eviclence placed Jry the petitioners.. 1-23. The due process clause in the Constj.tution rnandates ensuring thab [he state provides a hurnane stanclarcl of living uo its ci[izens. 1,2+. The letter from Ministry of Urban Developrnent to Delhi Development Authority placed on recor d. tn Tej Kishan us. U0[ (supta) before the Central Administrative Tribunal (also reiied upon tn n 32 (2006) DLT 672 P.I( Itrandoo vs. Eslate Officer indica[es ellgagemenl" of the authoriLies with this issue ancl [he decision of the. Central Government directing tha[ schemes be 'framed by tlie Delhi Development Authority as well for mahing t. preferential allotrnents of accommoclation [o Kashrniri migrants. tr.x". r{,or.r.tr, (swgtra) filed in the supreme cqur[ of India also 1s expresses the Same Concern as has been exllressecl in [he a]rove Guicling Principles. on Internal Displacement.. These actions unequivocally rnanifesf the respondenl,s' awarepess about the positive obligation imposecl upon thern to ensure th.ab th.e persons'clisplaced from l(ashrnir are required to 'be resel,tled and/or rehabilibated. Tliere is admission of r:esponsibility and culpaliiliUy. The wor:king of the measttres, however, reflects thaL the steps which have been Laken are inadequa[e and hopelessly insufficient. EVen in the prolouged hearing before this court, the responclen[s coulcl place no alternative so far as the petitioners were concernecl. 1,25. In,A.[nX 201.0 SC 1.476 State of, West tsengratr us. Tnte Cormntunity fot' Froteiction of Detnocratic Rigltts, West BenEran & Ors., the Supreme Court has also helcl that the cour[ was recluirecl to weigh bhe impact of a particular goveLnnen[ scherne, statute. or action on the fundamental righLs of those effectecl by the goveilnnent scheme, statu[e or action. In case any statute or action abrogates or abridges such rights, it would be violative of the basic sLructure/doctrine of the Con"sLitution. For Lhis reason as well, any applicatior: or enforcement of 'stabntory provisions, rules,. regulations that irnpacts or impinges fundarnental rights has to be struck clown. 'L26. ht [2OO4] EWCA Civ,54O SecretatT @f, State for ilte Erotne.Departmtent us. wayoka Limbuexa, tsiyraun Tefeta Tesenta & Vusif,A.darn, the House of l..ords has prescribed a test to determine whether a statutory scheme or a governrnen[ policy ?A that when a reasonable evaluation of all relevant facts a.[cl circums.tances shows that a government policy woulcl sulrject pebitioners to an irnmeclia'te ancl serious cleprivaLion of the Jrasic necessities of life, then the court may properly grant relief. It was also heicl that the state would l:e liable for l:oth action and inaction as long as the action or inacLion results itl a serious cleprivation of rights or human dignity. 127; In the light of the directions by the Suprem.e Court and this court in th.e aforenoticed cases rela[ing to identically situated displaced persons Who are victirns of violence, the conl.est by the respondents to the present wriL petitions on technical, specious ancl Iegally unilnafte grouncls is unfair to say the least. Sirnilar issues have arisen before and orders stand passed in favour of the sirnilarly placed persons therein. 1,28. The peti[ioners 'have suffered on account of the respondenbs faihire to protect their life and liberty when [hey were cornpelled to flee from their homes in Kashmir. In interna[ional ]aw, refugees are protected from being cornpellecl to return to places or situations where their lives or freeclom coulcl be threatenecl. It is pointecl out that the responclents have irnplemented this principle in the cases of Chahrnas, Til:etans, and else where IDPs, who are citizens of the sarne country, certainly cannot be treated differently and compellcd to::eturn to violent situations. r29. The proceedings.as well as the impugnecl clecisions ancl orders have cornple[ely faiied to take inl,o considerabion t"[e rnalerial issue of [he irnpact oi the proceeclings ancl.[he orclers which would q[4] ll tlre o.nly shel[ers lanown to them without ariy alternal,ive. 'I'he ' '.impugneci cancellation of allotments, [he orders of evictiotr passecl by th.e Estabe Officer ancl the afolenoticed orclers dismissing the'appeals of the petitioners are in the ueeth of the constitutional guarantees to the petitioners under Ar[icles 19(1)(e)(g) and 2l- ancl therefore not sustainable. L30. Such cancellation of ailotment ancl forcible evicLion a[ the hancls of t;he Stabe utilizing the shield of a statu[ory righ[ to clo so under the Public Preilises Act, 1"97 L results in violabion of [he consl;ituLional rights of [he petitioners. II is manifest therefore such thab'suCh application of law as woulcl have an impacb of viola[ing the fundarnen[al righbs of t]re petitioners is inlrermissible uncler the constitutional scheme.. Pt-oLsot'tionalitv test J.31. The proportionaliff of the irnpact on the funclarnenl,al righL involvecl'by working of the statutory provision as against the objective of Lhe concerned'statute is another irnporLant LesL for adjuclicating upon the legaiity of the inLerference wiLh the rigtt which would have a bearing on the present case. In a prolroutlcernent of the I{ouse of Lords. reporLed at @007) ur{[d[. 11.:(2oo[7]) 4,Ail Ert ns E[wanE w. sectetary of st;ate for ttrze r{onze Deltartntent, the clecision rnaking role ancl funcLion of the appellate innmigration authorities in Lhe collexl, of the Hurnan Rights Act, l-9g[8] and the hnrnigration and Asyhim Act, 1999 was in issue. The House exalninecr the scopc of reviews by the prescribed authorities. The priva[e parlies complained of violation of their rights uucler Ar[ic]e B of Lhe a,w Enropean Conven[ion for the Protection of l-Iuman Rights aricl I d Fundailentai Freed-oms, 1950 -hi.}t provicles as uncler:- "1-. Everyone has the right to respec'L for his private and family life, iris home and his correspondeuce. 2. There shall be no interference by a public 'authority with the exercise of this right excepL such as is in accordance with' the law and' is necessaqy in q democraLic spciety in the interests of national securil.y, pr-rirlic safety or'the economic well-l:eing of the country, for the prevention" of disorder or crirne, for the probection of health or tnorals, or for the protecbion of the rights and freeclorns'of otlters." The consideration by the l{ouse of Lords on the principle of proporLionality of the irnpac[ of the interference on the righb vis-avis, the legitirnate end in view is importan'[ and reads as follows:- XXXX In most cases where the applicants complain of a violation of their art B rights, in a case wh.ere the im lec ect and respect) is of sufficient seriousness to.engracre the olreration or art B. the crucial question is likehr to be comnlained of is ot"ooot-tionate to thb lemititnate, end souqtrtt to I)e achieved. Pro:r,ortionalttv rs a subject of such irnportance as. to require separate treatmenb.

PROPORTIONALITY In de Freitas Vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Flousing t1999[1] 1 AC 69 at 80, [].9981 3 WLR 675 at 684, the Privy Council, drawing on South African, Canadian and Zirnbabwean authority, defined the cluesl,ions generaliy to be asked in deciding whether a measure is. prolrortionate: d onall a1r ol:jec[ive." r!01 th CS: This formulation has been widely cited and appliecl. But counsel for bhe applicanbs (wiLh the s.rppott of Liberty, in a valuable writben intewention) suggested that the formulabion was deficient in ornifting reference to an overriding recluirement which feattrred in the judgment of Dickson CJ in R v Oahes t1986l 1- SCR 103, from which this approach to propor[ionality derives. This feature is (at 139) the nee-O to balance the interests of society with those of individuals and groups. This is indeed an. aspect which should never be overloohed or discounl,ecl. The Flouse recognised as much in R (Razgar) v Secretary of State for the Home Dept 12004[1] UKHL 27 at l17l- 1201, 1261, 1271, 1601,177J, 12004J 2 A11 ER 82t at [17]- 1201, 1261, 1271, [60], 1771, [2004] 2 AC 368 when, having suggested a seiies of ques[ions which an adjudicator would have to ask and answer in deciding a convenLion question, 'it said (at t20l) that the judgment on proportionality 'must always involve the striking of a fair l:alance between the rights of the individual and'the interests of the community which is inherent in Lhe whole of the convention. The seyerity and consequences of Lhe interference will call for careftrl assessment at tiris stage.' If, as counsel suggest, insufficieut attention has. been paid to this requirement, the failure should l:e rnade good. XXXX,, 1'32. I-Iaving regard to the drasLic violation which results from the irnpugned action and orders, ib has to be heicl that Lhe decision of the authorities to cancel the allotmenLs ancl ploceecl for eviction as well as the impugnecl orders against. tirc petitioners are not in accorclance'wibh law even on reasonable assesslnent of prciporbionaiity vrz-a-vlz the olrject of eviction of unautlrorised occupants of the Public Premises Act, Lg7L. 1t; ) luo Viona{iott of, 'At"ticle L[4] of the Constitutiott

133. The petitioners have also cornpiained [hat b]re responden[s hacl cliscretion to perinit bhe petitioners to conbinue to occuPy tlre prernises uncler SR 3L7-B-25 of the 'AMotment rtf X96A. It is.contendecl that the responden[s were bound to coirsider bhe matter on the relevant consideration of the::igh[ to shelter of the petitioners which was involvecl ancl cannol, premise their acLion on extraneous and impermissible l:easolLs or consiclerations. Mr. B.L. WaIi, learned counsel for peLitioners has ur:gecl that the failure to exercise discretion in favour o.f the iretil,ioners is in fact not only in violation of the constitutional'obligaLiorrs of the responclents, but is arbitrary ancl unreasonable.

1.34. Shri P.K. I(aul, (writ petitioner in W.P.(C) No.1-5239/2004) llad earlier filed WP (C) No.6551i2003, submitting that 11L" responden[s ]rad arl:itrarily failed to consicler his request for regulari2ation despite having knowledge of the speci.al circrLmstances of the case. Mr.B.L.Wali, iearned counsel for []ris petitioner has placed the order which was passed on Lstr' octol:er, 2003 in the earlier writ petition, which clirectecl the respondents to consicler the question of regulariza[ion of allotrnent in favour of' the petitioner in view of the special crrcumstances. It was directed that the pet"ition including iLs enclosures shoulcl also be considerecl while disposing of the pe bibioner's representation 1-35. Despite these orclers, the wriL petitioner tias conLenclecl that there has tol date. FIe has, bherefore, filecl the writ pebition being WP (C) \ No.15239/2004 challenging the notice issued by the Es[a[e Officer uncler section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, L972 to him.

136. Tire other wri[ iretitioners have also macle sirni]ar recluests to the respondents for exercisd of discretion which were reiteratecl by them in the reply to the notices issued by Lhe Estate officer under Section 4 of the Public Prernises Act as well aS in bhe appeals which were filect. T[e sarne grorincl of challenge to the lesponclents' action has been urged.. in [hese writ" pctitions. 1,37. Mr.B.L.Wali, learned counsel appearing for some of the petitioners has poin[ed out that the respondenl"s have exercised discretion favourably and permitLed some identically situaLed clisplacecl I(ashmiris to continue in alloLLecl premises afLer retiremen'[ whereas this has been arbitrarily denied to [he petitioners. Learned counsels contend that the re.sironclenus' action so far as the present pptitioners are. concerned, is discriminatorv and not sustainable. 1-38. fn" t"rtrondents on th.e other hancl place reliance on [he. prorlouncernenL oi ttru court tn 6.997) n SCC 444 futrtiv Sagrat- Tiwari vs. Lhtion of India and dispube that [h.ey have any discretion in the rnatter.

139. Allo[ment of government accornmoclations are effecLecl nnder blre provisions of Allotntent of Govemtmettt ni.esianenaes Reference is inacie to SR 3L7-B-25 thereof which empowers the Gover-nrnent bo relax: laD l,he provisions of these rules and. d.eserves [o be consiclerecl in I extenso. The same reads as follows:- " 5R. 3n.7-ts-25: The Govet'tunent nay for reasons to ' be recorded in wtiting relax aII ot'any of the prouisiotts of the Rules in tltis Diuision in the case of any of'ficer or residence or class of bffic'et's or type of residences." t4O. It is und.isputecl before us thaL despite the propouncled rehabilitaLion schemes stated before the Suprerne Courb ancl establishrnent of preferential guotas in allotrnents placed befor:e the.Central Administrative Tribunal, the respondents have not been able to rehabilitate or resettle any of the petitioners. L41". The respondents have also not denied the availability of tlre ctiscre[ion unclel SR 317 B 25 of the A]lobrnen[ Rules,' 1963 ancl its favourable exercise in favour of some l(ashmiri IDPs. Yet, the respondents have failed to,exercise the samo discretion in favour of the present petitioners. No explanation for bhe sarne is even atternptecl. 1,42. Oir the issue of exercise of discretion, in the judgrnen[ reportecl aE AXR L980 SC L622, Nlwnicipal Cowttcil Railant \/s. Vardicntan & Oi's., the court was concerned with the public power of the Magisl,rate uncler Section 133 of the Cocle of criminal Procedure. The court observed that the 'public power" of the magistrate under the Code' is 'a public dul.y l.o [he mernbers of the public who are victims of nuisance and so he shall exercise it when the jurisdictional facts ar:e present as here'. So far a.s exeircise of discre[ion is. concerned, it was observecl as follows:- "9. So the guns of Section 133 go inLo action wherever there is irublic nuisance. The public power of the Magistrate under the code is a pur:ric crrifv to bhe lq[3] rnernJrers of the public who are victims of the nuisance, and so he shall ercercise it when the jurisdictional fac[s are present as here. "AxI power is a trwst-ttrnat we an"e ac.cawntabtre for its exercisetlr.at, from the people, ancl for bhe people, all springs, ancl all mus't exisL." _Disaretion becomes a dutv when ffite xaeneficiqrvr. iirinqs hotfii the circumstances far its heniant exercise XXXX,, 1,43. Given the established violation of the funclamental righ[s of the petitiouers resulting in their displacernent; the clestruction of tireir property coupled with [he prevalent conclitions in their home state; and lach of any al[ernabe tcl thern, the exercise of discretion under the SR-31,[7] B-25. of bhe allotment of Allotment of Government Residences (General Pool in Delhi) Rules, L963 in favour of the petitioners would thus be bhe bbunden duty of the respondents. The mandate of the Suprenre Court tn Mwnicipal Council R.atXam us. V.arctria,trtan (swpra) would bind even the court. b L44. The pronounceillent of the Supreme Court reportecl a[ Q997) 1. SCC 444 entttled Sltiv SaEar Tiwari Vs. tuiom atf fndia & Ors., has been placecl before [his court ]ry 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 perrnissible discretionary quota of 10 per cent,.such allotments irad sh.ot up to 70 per cent. On top of these, 8,768 houses were allotted on "special compassionate Gronnds" in exercise of cliscretion under the authority of a letter ciqted L8tr'July, 1996 'frorn tlr.e Cabinet Secretary. The.Government of Inclia hacl submitted that it had exercisecl cliscretion vestecl in iL uncler lo\ aforenoticecl SR. The court had concluclect thaL bhe concluct of ' the respondents clicl not disclose application of mind aud cliscretion was not exercised fairiy. In para 56 of the judgment, it was observed as follows:- "56. The decision of the present central.Governnr.ent on [iris aspect as finding place in the letter of Lhe Cabinet Secretary clated LB-7-l-996 bearing DO No.1/4411"196- CAV is 'that "where it is considered al:solutely,necessary" ' small number of out-of-turn allotmenLs wouicl be made for which.. purpose also the MinistliesiDepartments would formulate clear rules and guiclelines. During the course of hearing, on being clesirecl to know as to wiry out-of-turn allo[rnent is at aII recluired, the submission advanced on behalf of [he Union of India was that there are a few officers, who Jry vir[ue of the duties discharged, have to ]re accornmodated in. government quar[ers to facilita[e srnoo'Lh functioning of the Government.xxx" L45. 'In view of the gross abuse of the discretion vestecl'in the responden[s, in para 57 at page 463 of the.repor[, it,was heid that a case to permit miniinal out of turn. aiiotrnents was macle out which has to be regulated and 'Lransparency has [o be rnaintained in such allotments. The cburt considered private citizens who could be allotted out of the cliscre[ionary quo[a which inciuded accredited journalists and news cameraman, political parties, arl,istes, social worher etc and other organizations as well. In Sntiv Sagrar Tiwari us. UOf (swpra), it w6rs helcl that [he discretion conferred has to be exercised to advance the purFose to snbsewe which. the power exists and t"hat.even Lhe Minister, if he/she l:e the repository of cliscretionary ilower, cannoL claim that either there is no discretion in the matter or unfeLtered discretion..The Supreme Courb held that exercise of ("f Noteworth.y, is the Government's stand in this case that ves[illcl essential In bhis bachground., the conten[ion of [he respondenl,s that exercise of cliscreLion was prohibited by Lhe Supleme Cour'[ in this case is totally misconceived.

146. On the other hancl, in the insbant cases, the petitionels have assailecl the arJ:itrariness in exercise of the discrel,ion aclmibted.ly conferred. on.the responden[s ancl the failure to permit continuation of occupation of the allotted aCComtnodation in the exceptionable circurns'[ances ancl conclitions in which they were placed. The pronouncemen[ of the Supreme Court, in fact, assists the petitioners as the court recognized existence of and pennissible exercise of. discretion while.d.eprecating its abuse. 1"47. The standards on which an authority would exe::cise cliscletion wer:e settled by the Supreme Cor,rr[ in the jr,iclgilent::eportecl at (1979) T'SCC 489 etttitled -R.atmana Daya.n'ant Shetty us. nnternational\,irport 'Autltot"ity of, futdia & Ors. as follows:- "L0. xxx........It is indeed unthinl<able Lhat in a. clernocracy governed by the rule of law the execr"rtive GovernmenL or any of its officers should possess arbitrary power over the inl-e::ests of the individual. Every action of the executive Government must be iriformed with reason and should be free frorn arbitrariness. That is the very. essence of the rule of law and its bare rnininrai requirement. And to the application of Lhis principle iL makes.not difference whether the exercise of the'power involves affection of some riqht or denial of som.e privilege." XXX L[2].......It ntust, therefore, be tahen to be the law thaL where the Government is deaiing with the public, whether by way of giving jobs or entering into contracts or issuing-quotas or iicences or granting other forms of largess, the Goriernment cannot act arbi[rarily at its sweet will a1d., lifte a private ildividual, deal wibh any llerson iL pleases, bu'b its action must be in'conforrni[y with stand.ard or norrns which is not arbitrary, irrational 1.or irrelevant. The power or discretion of the Governmenl, in the matter of grant of larq-ess including award of jobs. etc.. mrlst De co tire Gove such standard or norm in'any par[icular case or cases, the action of the Governrnent'would be lial:le to be struck clown, unless it can be shown by the Government that the cleparLure was not arbitralY, but was based on solne valicl ' principle which in itself was not irrational, unreasonable or discriminatory." (emphasis supplied) L4B. In para 85 of the pronouncement repor[ed at AnR n974 SC 555 en[iLiecl E.P. Royappa us. State of Tamilnadu &,A,nr'. the Suprerne Cottrt.laid down the following binding prlnciples:- '85......In fact equality and arbitrariness are sworn enernies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolu[e. monarch. Where an act is arbitrary it is implicit in it that ' it is uneclual both according Lo political logic ancl Consbitutional law and is therefore violative of Ar[ic]ie 14, and if it affects any matter relabing to public employment, it is also violative of Article 16. Articles l-4 ancl 1-6 strike at arbitrariness in State aclion and ensrire fairness and equality of treatment. They recluire Lhat State action mus'[ be based on equivalent relevant.principtes appl must not be cluided by any extraneous or irrelevan[ considerations because that would be clenial of eqlrali[v. Where the operative reason for State' action, os distinguished from rnotive inducirig from the antech.arnber of the mind, is not legitimate and relevan[ qonsiderations. it would amount to mala fide exercise of power and that is hit by Articles l-4 and l-6. Maia fide exercise of power and arbitrariness are clifferent letiral radiations emanatino frorn the sanre vice: ilrFact llre Articles L[4] and l-6." (emphasis supplied) ("{ 1"1 Therefore,. even if it were to be heid as urged by the respondentb that tiris court could l:e held to be powerless to direct exercise of cliscretion in a parbicular manneL, in view of the clear principles laicl d.own in tlrese judicial precedents, the::e is no prohibition upon this court from examining as to wheLher the responclents have failed. to exercise discretion on relevant criteri.on. Tirere is also no prohibition on this court, to examitle, whether the responilen'l,s have acLed arbitrarily or cliscriminatect 't against the lretitioners. The impugned action of the respondents against the petitionets ancl the orclers assailed. herein have to be testecl on the above principles. 14g.'A sirnilar argument of the responden[ thab the allottees were prohibited frorn perrnitting retention of accornmodation beyond t1r.e permfssible period after retirement was rejected by the Central Aclministrati.ve Tribunal iri the aforeno[icecl clecision renclerecl on 3(l'; Decetnber, 2002 iti 0.,4,. No.237E/2002 Strtti Tej n{istrtan Vs. {Jnion of India & Ors. The Tribunal h"acl examinecl the petitioner's challenge to the respondent's ac[ion on the plea of discrirnination prernised on Lhe conduct of Lhe respondents in exercising discretion in favour of sorne similariy sibuatecl rnigrants and not in favour of the petitioners ancl observed as follows:- "3I. Respondents have mot dispwte.d that trd?shrnir misbants wl tlteir t ltave been retain accotmntod, tiII tlte.wortnan, hack in State of [&f,{ and tiII thev ar.e retunteaf. enswred futtlter the safeW of their versons anal diftfbrent criteria was adoFeed @p tlne-_ @ronxnxd gf: ffi aaotlcation Applicaqt \ghg is elso a 1- -- !- 1i--^:-^ T\^11-.: ^ 'l^rrr^ satisfir tlte requirements of law, the respolrdents have to re[1] \AT in co on.In; the cant considered view, is unsustainallle being Article 1"4 of [he Constibution of India." Tiris in my violative of

150. The tribunal rejected the arguments of the responden[s premised on the pronouncemeirt tn Shiv Sagar Tiwari (stttrtra) as well as scarciLy of resources holding as follows:-

32. Moreover, the contention that the direcbions issued tn Sltiv Sagar Tiwari's case supra and the fact that the Governrnent accommodations are few and the persons claiming the same are rirore and the lules do not it retention nd the nstification f.L. Koul's case, even in an.in Apex Court was well aware about the decision renderecl in Shiv Sagar Tiwari's case as well as the Rules wel:e also in existence at that time as well which prohibits reteirtion of accommodation beyond the permissible period. Conscious of this, the Apex Courl. in the iight of the fact and conditions as well as circurnsl.ances of Kashrnir rnigrants, who have thOir own houses destroyed in Kashmir and those retired inclined. to go baclc direcl,ed bhe GovernmenL to ensure their protecl.ion ancl as well as of their property so that they may be prit bacl< to their respective houses owned by them. in Kashmir on 28.t.1"998 i.e. much after the decision of 5"5. Tiwati's case supra as well as the instructions through OM in 17.1"I.t997, the matter has been pending sine die ancl Lo be ac[ivated only after the State of Jamrnu'an"d Kashmir ensures return of the petitioners to their rebpec[ive Homes with safety of their persons and property. The aforesaid petition is stili pending before Lhe Apex Courl..

33. I also find that the Government by the.letter dated 2. order to hold l'I souqh.t to be aChieved. ("1 no[ get bach to J&K due Lo prevailing siLuatj.on, a o allot aboul. L00 MIG/LIG Elats aird for which DDA has been requested to forrnulate [he Housing Scheme for which a draft has been sent to the Ministry for approval. The aforesaid decision also incorirorated that these houses. are lieing allottecl to I(ashrnir migrants retiring or retired so that the general pqol accornmodation got vacated from thern. This on a literal consideration connotes that the Kashnir migrrants who are in retention of general pool accornmodation on retirement, are to be evicted onllr after the DDA formulate a Housing Scheme to allot MIG/LIG flats to them.

34. In my considered view, the rejview undbrtalcen by the respondents in compliance of bhe earlier d.irections of this Court has not taken note of lettei" dated ' 2.7.2002 as well as the directions in Koul's case supl:a. If a pos[-facLo approval can be accorded by CCA ancl approval by the Ministry for Urban Developrnen[ clenying the same to the applicant who is similarllr situa[ed anci is ec{ual in all respects. smacks of arbitrariness an.cl hostile discrimination which, as per various pronouncements of the Apex Cour[, cannot be countenanced and would ]:e an antithesis to rule of laws doctrine of equali[y.

35. In the result and for the forgoing reasons,.OA is parLly allowed. hnpugned order datecl 1-3.8.2002 is cluashed and set aside. Rgspondents are directecl to allow the applicant to retain the Governmenl, accomrnodation pending decision in SLP (Civil) No.7369/97. No costs." (underlining supplie d) This decision of the CenLral Administrative Tribunal has a'l,tained finality and also stands impiemented. L51. Before this cour[ t]re respondents have not even at[empted to Show how the present petitioners can be disLinguishecl frorn either SIwi Tej x{ishan (supra) or frour l.he instances noticed in para 3L of the judgrnenl. of Lhe Tribunal. on the contrary, as set out above, in answer to grounds (A) ancl (B) of Lhe writ petition noticed in para 22 above, the respondents have stated that these contentions of the petiLioner at:e a "ma[,ter of record". L52. There is no dispube also to the fact that. [he orclels in tr.L.X{owtr, F.n{.8[andoo, NLK.K9nI, Tei f{isltan (supt"a/ fuave attainecl finality and these persons continue to occupy the allotted accommodation despite superannua[ion.

153. The reiponclents are unable to poinL a single clistincbion, let alone a relevant one, between the presenL petitioners. ancl those in the decided cases. The petitioners al:e identically situa.tecl, yet have been clenied equal treatment. Not a whit of e4planation for not treating these petitionelrs as those in Lhe cited prececlents is suggested by the responclenl,s. Even [ire impugned- orclers unfortunately clo not attempt to cleal with Lhis as[1]:ect of Lhe rnatter. L54. As nobiced al:ove, the respondents contendecl before the Supreme CourL tn' Strtiv SaEar Tiwafi (sulora) that they have the discretion to draw exceptions in the rnatter of allotments of public prernises and have relied on instances ancl categories when Lhis discretion was exercised in favour of persons who were even not in public service and were never even ernployed by Lhe Governrnent. 1-55. In ground L of WP(9 ) no.1.5329/2004, Shri P.I(Koul, rhe petiLioner has sLated that the responclenbs have allottecl' the Goveirnment accommodation not only serving Governmenl, 'employees, but to various other categories of ernployees who have nothing to do with Government service. It has been stated that "employees working in the orrir. of the poliLical parbies, journalists, freedorn fighters, ar[isbs etc.,, are also allotted general pool accorrrlrrodation. This averment is noL l(o allol.rnenL of the quarter is macle as pelthe ruies ancl policy laict ( f I clown by the Government.'

156. It is trite that residuary rules are interpretecl and worhecl to empower authorities perrnitting exceptions from applical:iliLy of tlre rule to remove hardships (Ref: L993 Sutrop.S SCC 5n[5] (1rara 33) Syed tr{halid Rizvi us. tlOI & Ot:s; (tgg[6]) S flCC 762 SBn & Ors. us;.Kasltinath I{her & Ors.; (1988) 4 SCC n 79 Astrtah Xdr'. Uppal and Ors. us. State oftrelQ" 1,57. Tlre orders in Tej n(ishan (swpra) mahe a deLailecl refe.rence to the voluntary exercise of cliscretion in favo.ur of three migrants by the respondents which was the entire basis of the finding of arbitrariness by the Tril:una[1] in the ac[ion. taken against Tej l(ishan and co-petitioner:s.. These vel:y finclings squareiy apply to the cases of the present pe[itioners. t5B. No explanation is rendered or reason given-...by the responclenl.s for the rejection of id.entical requesbs of some of the petitioners or for not favourably consiclering the sai.cl. requests of the petitioners. The failure to even consider these recluests. despite the specific clirections in P.I(. I(oulrs previons writ pe[ition reflect highhandedness, unr'easona]rleness and arbitrariness.on'the parL of the respondents. The responclenLs have gran[ed approval to similarly situa[ed persons. Denjal thereof to the equally placed petitioners cerLainly tantarnounts to hos[iIe cliscriinination against t]rem which is imperrnissible and as observed abo:re 'an antithesis to the eclualiby clarise'. The action of the responclents in not favourably consiclering bhe petitioners' represen'l,ations; in cancelling the allotrnents of Lhe petitioners'ancl irroceecling against them under Lhe Pulilic l/ L Premises Ac[, Ig71, lrs weII aS the impugnecl ord.ers are, tlr,erefore, not sustainable also being in violation of Arbicles L[4] and l-6 of the Constitution.

159. There is yet anoLher important side to the claim asser[ecl by the peLiLioners which requires consideration. The declared policy of the sLate.with regard to the IDPs from Kash.rnjr is corcernecl with their rehabilitaLion. Forcible evic[ion from their currenl,.residences wit]rout irn alternative is not even rernotely suggestecl in these policies. The same.is eviclent from the affidavit piaced before the Supreme Court in !.n.n{owlu. St^tu of, jarntnw & X{ashmir (supra) and the lettel clated 2"d July, 20OZ placed.before the Central Aclministrative Tribun aI rn Tej X{islnen Vs. {-Inion of, trndia (supra). The clecision talcen" to. cancel'the, petitioners' allotments and. to iniLiate proceectings uncler the Public Premises (Eviction of Unauthorised. Occupants) Act, 1971 wiLhout malcing available of alternative shelter clearly suggests a clrastic change in the government policy so far trs these IDPs are concerned..

160. In a recent juclgrnent of the supreme court reportecl aL ' MAIVa/sc/o476/2010 sindhu Education society &,Aetr. \/s. [Ine Claief Secretaty, Govt. of NCT of Dbltrti & Ors., Lhe supreme court observed that framing a policy is the domain of the Governrnent. The framework of the policy ancl the working of such GovernmenL Policy has essentially [o be clone wiLhin [he frarneworh of the constiLution & the laws. As ancl whe' Governmen[ changes iLs policy clecision, iL is give valicl reasons thereof and. act in larger inberesb of the entire community rather,than a section. In para 66 of bhe juclgrnent, Lire Supreme Court helcl that:: It is a settled canon of adm-inistrative ' jurispruclence that state action, musl, be supported by some.valid reasons and should be upon drie applicaLion of mind. In the affidavits filed on l:ehalf of thO state, nothing iri this regard could be pointed ou[ ' and in fact, none was pointed out during the course of. arguments. Absence of reasoning and apparent non-. application of mind would give colour of arbitrariness to the state action." The position in the cases in hancl is no differen[. The s[ate cloes not again even suggest a. reasonable explanaLion or valicl lreason for the change from the rehabilitative policy to [he clecision to evicb the petitioners and thereby threatening them with irnminent hbmelessness

161. Tire respondents would have the right Lo change lts policy upon change in circurnstances. (Ref: (1998) n SCR 1.1.2A State af Punjal) & Ors. us. -Rarm Lwbhaya.JEeEgra & Ors.). No such cirange is pointed out in the presen[ cases. The decision Lo treat the petitioners as unauthorized occupanLs without their resettlement is clearly not prernised a change of policy upon application of mind and therefore not sus[ainab]e. Responsibilifrr of tlte Central Goventntent.

162. It. has been suggested by Mr. Jatan Singh, learned standing counsel for the Union of.India that the Ceritral Government has no responsibility vis-a-viz the petitioire::s in []re given facts and that only the state of Jarnrnu and Kashmir is liable for the infraction of the rights of the petitioners. //)

163. The subnission on behalf of the.petitioners on the other ll hand is Lhat the cluty and responsibility of the state authorities vis-a-vis these gl:otllls of persons which stands recognizecl and aclmitted bv the both the state and Central Government i[self. As suclt, the rights of the petitioners cannot be ignoled, / imperilled or violated by any of the respondents' L64. It is urgeci that the respondents have hearLily engagecl with ancl manifested. extreme concern for refugees from other counl,ries, but have lianclled inadequately, ancl even failecl to acldress the clifficulties of internally displaced persons.

165. Reference is also made to the policies of regularization of unauthorizecl constructions and. encroachrnents on public lancls are pointecl out. Several schernes ancl policies of the respondents with regard to the disadvan[aged rrrasses sd far as rehabilitation and resettlement is concernecl. The attention of [his courb is clrawn a]so to the several judgments concernecl wi[h the right of shelter of pavement and jhuggijhompri dweller:s including futrga TeIIis rt tsomltay lVlunicipal Cotporatiom & Ot's.; Ahmeda.trtad Mwmicipal Corporation us. Ivawah I{.han Gw.lah I{han'&.Ors.; lagdish vs. DD,A; Sudanta SinEh & Ot:E.us, Governtnent 'of Delhi.&,A.nr. which have been referred above. The petitioners have urged at sorne length [hat the respondenLs have shown utter insensitivity not only in lrrotecting their rights but everi in the pursuil. of the maLter before this court.

166. The question which begs an answer is having failed to ensure the life and safety of the petitioners or [o protect Lheir obligation, duty ancl responsibility of the respondents qua the.. ll )^ petitioners. L67. IL is an aclmitbecl fact that the petitioners were aII employed by the Central Government or its agencies. In orcler to avoicL colnpromising the security issues of these persons, a ') more ctetailed analysis of the factual rnal.rix is not Jreing.l undertahen. However, the present cases set oul. instances of extrerne trauma faced. by the petitioners ancl their farnily rnernbe.rs as well as the continued threaL to their life ancl re of the cases, the petitioner is a clesbitute lacly properly. In o: wh.o was working in the Ministry of Information & Broadcasting of the Government of India used to give live performances ancl conducted programs on behalf of the Cen[1].ral Governmen[ in remote villages in the valley as well as on the electronic media making hen face lcnown to the militants. Her troupe was atLacked in 1,987 while performing at l(hamabal in DisLricL Anantnag and they had to flee for their life. In this backgrouncl, she was transferred to Delhi, and was allotted. [he premises by.the respondents. The petitioner points out thal" in mid-l-990, l"he Songs and Drarna Division Office i.n'srinagar, Kashmir was blown up and the entire staff transferred to Deltri. Not only the, house of her in-laws but her ancestral/parental rental house aiso stands burn[ down and she has no place to rer,urn to in Kashmir.' Even after she was.evacuated from.the valley, her J:roLher received threats to her life by way of comrnunications aclvising the peLitioner to'desist from participating or perforrning in prograrns in support of the Government. This communical.ion has been placed on record. petitioner husl:ancl clecades hgo and she stands abandoned by the SLate wi[h none to assist to her. The writ petition states that she is gebting a meager amount of {4500/- as pension, insr,rfficien[ even to sustain her, let alone acquiring righLs in any 1:roperby.

168. Another petitioner who was the author and the voice of a llrogramme on the A11 India Radio in Srinagar division which became popular across the line of control was so targetted by the miiitants. A price for his head was even announced.. In one of th"e cases., despite the security cove.r, an atternpt was rnade on the life of the petitioner whose properly ancl belongings stancl lootecl and gutted. in Srinagar ancl he has no properl,y at all anywhere in the country. There are other peti[ioirers who were worlcing in the intelligence,.agencies in the state who wele evacuated on emergency basis after their colleagues were shot clead. Several of tire petitioners have lost close friends ancl relatives on account of the attachs by militants. The petitioners were targetted because they were []re face of the central Government in the Kashmir vallev and are unable to return for the same reason. !! i't.

169. so far as ensuring the right to shelter is concernecl, the' Supreme Cour.t has held that the state is cleemecl to be uncler an obligation to secure the samb to i.ts citizens [Ref: (tgg[6]) Z SCC 549 ctrtameli sinElt & ors. us. state of u.F.(supra), that it is imperative for the state to provide permanent housing accommodation to the deprived L70. Tn L995 (2) snR z[2] p.G. Grypta us. state of Gwjatar[he Suprerne Court had further declared that it was the cluty of L[e state to construct houses /6 easily accessible to bhe poor, and. that such principles have been oclied 'in our constitution to ensulre socioexprdssly embodied in our economic clemocracy so that everyone has a right to life, Iiber:ty and security of the Person. In thiq context, in para 1L of the pronouncelnent, the cour[ expressly laid down the imperative duby of the s[ate to provide permanent housing accommodation to the poor in the housing schemes undertaken by it, or its instrumen[ality ancl obsewecl (11 as follows:-: "Lr. As itated. earlier, the right to residence ancl tal riqht 9(1)(e I and it is a facet of inseparable meanincrful right to life under Article 21. Food, shelter and clothingr ale minimal human riqhts. The State has undertahen as iLs economic policy of planned development of the country and ltas undertaken massive housing schemes.' As i[s. part, allotment of houses was adopted, as is e.njoined by Arbs. 38, 39 and 46, Preamble and l-9(1-)(e), facilities and opportunities to the weaker sections of the society of the. right to residence, malce the life meaningful and liveable in equal status with dignity of person. It is. therefore, intpetative of tlze State to pt'ouide perunanent housins accommodation to tlte poor rn t]ne ho:ustl;-.cr. schemes undertaken by it or its instrumentalil,ies withira ttrein econouric mreans so that thev could malce the payrnent of the price in easJr instalments and have penmlanent'settlernent and residence assured nnder Article 1-9(1-)(e) and 2l- of the Constitution. xxxxx" (Underlining suppliecl) L7t. The Supreme Court has repeatedly reiterabed bhe well settled position that the state has the constitutional duLy to provicle adequate facilities and opportunities to ali including Lhe disadvantaged and the displaced, by distributing its wealth ancl resources'for the settlement of life and erection of 'shelfer over their heads. The court has emphasized.the constitubional rigfL of every citizen to rnigrate and settle.in any part of Inclia for lretter employment opportunity and it woulcl be the duty of the | (V state to provicle right to shelter to the disaclvan[agecl in society. (Ref: Ahntedahad Municipal CotVtoration Vs. Nawab n{han Gwtrab X(han & Ors. (suPra). I72. The forcible removal of pavement and slum dwellers lly tire agencies of the state without their resettlernen[ or rehabili[ation has ]reen iepeatedly deprecaled by the. courts in the plethora of jud.gments on the sulrject. In case they have to be evictecl frclrn the place they are occupying, state au[horities are bouncl to formulate schernes and policies. The responclen[s have gone on record with regard to such projects as are in vogue for.their relocation, resettlement and rehabiliLation. (Ref: (tg&T) 3 SCC 545 OIga TeIIis v.' tsambay Mwniaipal CotTtnratiom & 'Ors.; (1997) L[1]. SCC n 2L,A.hmqedabad Mutticipal Corporation Vs. Nawah -K.ltan Gunah. n{Itan lF ons.; It[A]\ru/DE/g327/20O[6] lagdish us. DD,4; clecision of ilris court dated l-l-t\ February, 20L0 WP.@) No..5904/2009 Swdanna Singh & Ot"s.) Placing reliance on the obligations under the international instruments, the courbs have repeatedly 'stated thab.adequate and reasonable facilities for resettlernenL ancl effective steps taken for rehabiiitation 'have to be macle available before forcible eviction. 1,73. An issue involving chakmas who were tribals from erstwhile East Pakistan (now Bangladesh) wenL to the Suprerne court in tlre case reported at (L9g[6]) L SCC 742 National -Edwmtan xliErkts conttnission vs. state of "Ar'unacha.l Practrestrt 'Anr.In this case, a public interest litigation was filecl by (t[1] i' enforcement of' rights under Article 2L of the Indian Consbi[ution, of about 65,000 Chakma/Hajong tri]lals. It was allegecl that these Chakmas had settled primarily in the State of Arunachal Praclesh and were. being persecuted by Sections of the ci[izens of the state i.e. the A]1 Arunachal Praclesh Students Union referrecl to as 'AAPSU" hereafter. It was additionally complained that the applications of thq Chalcmas under Lhe Citiienship Act ancl Rules thereuncler were no[ being forwarclecl by the State Government for consideration to the Central Government in accordance with law. In cleciding'the rnatter, the Supreme Court placed. cibizens.as well as non-citizens on a common platforrn so far as the rights under Arbicle 1,[4] and 21" of the Consbitution are concerned. So far as the constitutional and the stabutory obliga[ions' of the sbates to prbtect the rights of those who resicle within []re terribory of that state are concerned, the cour[ observecl as follows:- "20. We are a country governed by the Rule of Law. Our Constitution confers certain rights on ever1i 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 bhe State is bound to protect the life and liberty of every hurnanbeing, be he a citizen or otherwise, and it cannol. permit any body or group of persons, e.g., bhe AAPSU, l,o threal,en the Chakmas to leave the state, failing which they would be forced to do so. No state Governmen[ of person'to another gro,rp of purcotrr, it iu..l.rty lr*r.*l to proLect the (Sic) group from such assaults ancl if i[ ons[ituti -as Etatutorlr obliqations. Those giving sucrr (sic) woulcl be.'liable to be dealt with in. accordance with law. TIie leErat obliqations to safequard the life. health and wellbeiirgr of Chakmas residing in the StaLe without being, inhibited blr local politics. Besides, ):y r:efusing to forward their applications, the Chakmas are deniecl rights,.Qonstitutional and statutory, to be corisidered for being registered as citizens of India." The court considered the factuai rnatrix a1d prevalent circuinstances in detail and thereafter issuecl, inber alia, a wriL of mandamus directing the State of.Arunachal Pradesh, [o ensure that the life and personal liberty of each and evelY Chal<rna residing within the State shall be protected and any atternpL to forcibly evict or drive them out of the Sta[e ]ry organised groups, such as the AAPSU, shall be repeilecl, if necessaqy by requisitioning the service of para-miii[ary or police force. The Union, of India was directed to provide snch additional force as is necessary to pt:otect the iives and liberty of [he Chahmas on. the request of t]re first respondent. Ife Suprerne CourL further directed that the Chakmas sliall no[ be evicted from their. homes except in accordance with law and sirall not be denied clomestic life and comfort therein; the S[ate Governrnent was directed to deal with the quit notices and ultirnaturns issued'by ttre AAPSU ancl any o[her group which tantainountecl to threats to the iife ancl liJ:erty of each ancl every ch.akrna in accorclance with law. The Suprerne Cour[ ]ras thus recognizecl the responsibility.of the central Government to provide forces to protect the right to life of the threatened persorls. L74. Unlilce the Chakmas, the petitioners are IDPs who complain of violation of the same rights and seeh reclressal thereof. However, the extreme situation t/ difficulties being faced by the petitioners and o[her pel'sons similarly placecl is no different. The State Government has been unable to protect or secure the life and properly of [he. petitioners. The Central Government has not been able l.o adequateiy address the several issues which have been raised. Many of the 'petitioners hacl been'physically evacuatecl by tlie Central Governrnent in extreme situations. Atl the peLitioners were ernployees of.the Government in Delhi and have superannuated in Delhi. The attempt being made at presenl. is also by the Central Government at Delhi is to forcitrly evic[ t]re petitioners by taking recourse to statutory provisions. t75. It is the constitutional duty of the'state to protect hurnan righl,s and the fundamental rights of aII persons. The distinction be[ween such. rights and legal rights which tnay require adjuclicatlon in appropriate proceeclings has also been ' emphasisecl on several occasions. In G982) 3 SCC 235 Feoptre's Unia,n for Democratic R.igrtnts & Ot's. Vs. Union of India & Ors., the cour[ o]:ser-ved Lhat denial of statutory rights of the labour force, which was a vulnerable section of the coulmunity, tantamountecl to breach of their constitutional rights Td was therefore enforceable '.against the government. It was held that it was the dutv of the union of India, the Delhi Administration and bhe DDA to ensure that the constitutional obligation towards labour are dischargecl by the contractors to whom they had entrustecl construc[ion worh. It was held that the Union of India, Delhi Aclministration ancl DDA cannot folct their hands in clespair ancl become silent specl.ators )21 t[1] committecl by their own contractors.. In this conLexl., the court J 2?-.l held as follows:- "2I. Before leaving this subject, we may point'oul, with all the emphasis at our command that whenever any fundamental riqht, whiclr. is enforceable aqainst private individuals such as, for example a fundamental right enacted in Article L[7] or 23 or 24 is being violated, ' it is the constitutional obliqation of the State [o take bhe necessaiy steps for the purpose of interdictinq such violation and ensurinq observance of the funclamental ricrht by the private individual who is transcrressinq the same. Of course, the person- whose fundarnental right is violated can always approach the courl. for the purpose of enforcement of his fundamental right, but l.hat cannol. absolve the State from its constitutional obiiqation [o See that there is no violation of the fundamentai right of such person, particularllr when he belonqs to the weaher Section humanily and is unable to waqe a lecral l:attle against a strong and powerful opponent who is. exploitiricr 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 Lhe contractors and if the provisions of any of these lalrour laws are violated by the contractors, the petitiondrs indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Adrninistration and the Delhi DeveioppenI Authority by filing the present wriL petition..The preliminary objections urged on behalf of the respondents must accordingly be rejected." The failure of the state to ensure statul.ory rights was helcl to lrrovide the essential basis for maintaining the writ petition under Article 32 for enforcing fundarnental rights against [he State and its agencies. 1"76. Ib is noLeworthy thab a writ petition was filed in this court in connection with compensation payable 'to resiclents of Kashmir whose property had been destroyed in the disturbapces in I(ashmir. The judgment of this court reporLecl at,LrR. zhos DeIIti L10 Et.r,. wali & ots. vs. {-Imio.n of,.fttdia & orts. ]nas f ?'3 rnacle observabions on this veqy unaccepfable s[and of Lhe Governrnent of Inclia in its affidaviL which is uncler consicleration. These obsewations'befbre the Court reacl as under:-

' Law and Orde,r as well as Relief ancl Rehabilitation are State Subjects. Ministry of Horne Affairs has the responsibiiity of providing Relief and Rehabilitation to refugees from WesE Pakistan (now Pakistan), East Palcistan (now " Banqladesh). Sri Lanka, Tibet and [o the repatriated Indian Nationals. Therefore, the present writ petition qua the answering respondetrt is not maintainable." ' 2.L The Government of India. thus. consiclerecl its responsibility for providincr relief and rehabilitation Lo refugees, who are not citizens of this counbry, but not to ciLizens of the country who are refuqees in their owu countrfi. The apathy is Trrit large on its face.

22. There is a vast para para pherneiia of rnilitarlr and para military personnel in the State. of Tammu & Kashmir of tire Central Governrnent. Thq boundaries of the country are to be protected. The condition in the Sta[e was so serious that it has been tahen as a priority issue. The dislocation of persons from the Vallev is a well-known undisputed fact. I{ow can t1r.e Governrnenl, of India wash its hands of th'e wh.ole rnatter ancl absolve itself. of the responsibility for provicling a safe ' living to the citizens of the country? ''

23. Article 2L of.the Constitutj.on of India provides fbr the Fundamental Right of Protection of Life and Personal Liberty. Life cannot I:e bare' existence. Persons who are displaced )/\.ancl llroperty as a result of terrorism cannoL be left without remedy. It is the dutv and responsibilihr of [he ro[ect i petitioners are victims of environment, which is not their own creabion. The State owes a responsibilitlr to create an environment for safe and dignified existenge sflb_e_siliz.e.nq." (Ernphasis supplied) Tiris court rejected the stand of the Government of Inclia that the responsibility [oward.s the payment of the compensation rests wiLh the State Government alone holding as follows:- 'i3L.The Government of India cannot also absolve itself of the responsibililry and is liable to ensure thab the State Government remits the amount. A large aurount of funds flow to the State of Jarnmu & I(ashmir from the Central Governrnent heeping in[o consideration the disturbed conditions and, thus, the Central Government cannot saJr that it has no role [o p1alr. The State of Jammu & Kashmir is an integral irart ' of our countiy and the writ of 'the Central Governrnent runs. In the cases of'victims of Charari Sharief incident, funds have been disbursed ou[ of the Prime Minister Relief Fund to rnahe a paclcage of Rs.[2] lakhs of ex-gratia compensation apart frorn other benefits.". L77. In this judgment, the court held that whaL holds true for loss of life and lirnb, would hold true for loss of property occasioned by failure of the State to protOc[ the same." It is nol.eworl"hy that in the present writ petitions, tl.re peti[ioirers have not l:een deprivecl of their properLy aucl hornes in accorclance with law as, for instance, in the case of accluisiLion.proceedings. The deprivation is. a direct result of the failure to control Lhe violence against the petitioners. The principles laicl dgwn in the above judgment would apply Lo, Lhe Kasirmiri migrants on every score. More important is the clear finctipg by the court of the responsibility of the central Government for the rehabilitation and relief to the IDps from.I(ashmir. u J,78. It is ulfortunate that clespite this ac[uclication, th.e stancl which was reiectecl has again been tahen in these proceedings' This position on behalf of the Centrai Governrnent in facL ' ignores l,he cornmi[m.ents mad.e in legal pr:oceeclings noticecl above. T7g. IL is noteworthy that the displacernent of l.he pe[i[ioners is also uot intra-state. The petitioners have been compellecl l,o leave the boundar:ies of their state and are residing in Delhi.

180. The' Central Government has. achlowledged its responsibility in the matter inasmuch it has intervened in Lhe matter. Several of the lresent petitioners stand evacual,ed by it and [he allotments of the quarte]:s in the ins[ant case s[ancl rnade it. Central resources are being utilizecl for developnren[ projects ancl security purposes in the state ancl achnitteclly [Jre Central Government has accepted and assumed responsilliiiLy toward.s rehabilitation and resettlement of the persons clispiaced. as well in the grants and reservation made by it. 181.. It was.observed rn.(L97E) L SCR. L $tate af R.a.t'ast"ltan & Ors. us. Uhfby Chief Justice Beg that:- "In our country national planning involves clisbursements of vast arnounts of money collected as taxes frorn citizens residing in ail the States and placed at the clisposal of the Central Governrnent for the benefibs of the States without even the "conditional grants" mentioned above.. I-Ience, the manner in which State GovernrnenL funcl,ion and cleal with sums placed at their disposal by the Union Government. or. how they carry on l,he general adnr.inistration may also be rnatters of considelable concern to the Union Government." IB[2]. The expansion and interpretation l* the cour[s has affirinatively established a positive right to housing ancl shclLer for every person'as parl, of the fundamenLal right. I{uman )24,l righ[s alcl funclarnen[al rights are inalibna]:le; their viola[ions are inclefeasible. The sLate is under a consti[utional obligaLion ancl cluty'[o protect these rights. When viola[ecl, a citizen is entitled to their enforcement. The constitutional mandate upoll it, is coupled with the statutory ctuty and public law obiigaLions to ensure the protection of the fundamental and l:asic hum.a[ righbs to all, in adclition io its obligation under the several inLernational instruments noticed above. This essenLially remains in the exclusive domain of state funcl"iotts. Failure Lo protect the ci[izens from eminent loss of life and proper[y as well as maintenance of public order, irnplicates the state for culpable inaction.

183. Mr. Jatan Singh, learned standing counsel for Lhe Union of India has urged that these petitioners are not publiQ ser"vants and can claim no right to continue in the alioLted puJ:lic premises. It has l:een vehemently urged tha[ on account of. their sullerannuation, they ceased to be Governrnent servanl.s and are clisentitled to retain Government accommodation. Learned Standing Counsel has urged at sorne length tha[ [he Governrnent of India has formulated a rehabilitation paclcage which necessitates that all these petitioners must return [o bheir homes in Kashrnir. It'is contencled that by their failure Lo vacate, the rights of the several Governrnent employees who ale waiting to be allotted Governrnent accomrnodation are adverseiy effected. 'Unfortunately the responclents are unable to submit tirat the iletitioners would be safe uporl return or how tire respondents propose to ensure protection of life ancl ]iberty of tlre petitioners or ensurg restoration of their property in [lre I n I(asirrnir valley. IB+. Before the Suprerne Court of India, tlie respond.ents have acceptecl responsibility and obligation to the IDPs frorn Kashmir ancl clairnecl to have advanced huge grants to the Stabe of Jarnrnu Kashrnir and. also.set out a detailecl.scheme in the affidavit filecl before the Supreme Court. ' In the instant case given the nature and extent of the violaLions,'the Urrion of India cannot abclicate responsibility in the rna[ter, or avoid its consti'butional obligation of at leas[ ensuring reasonable shelter or a roof to these petitioners. Financiatr strimEemcv of the' G overnrnbnt

185. Placing reliance on the judgment reported at QA0il 6 SCC nSE MasterlV[arime Senrices Fvt. trtd. vs. ]vfetcalfe and E{odgnrinson Fvt.. n M, &,A,mr.,' it has been further argued J:y Mr. Jatan'singh that this court is bouncl to exercise judicial restraint and cannot I:e unmindful of the aclministrative J:urclen and increase in unbudgeted expenditure on accoun[ of cluashing clecisions. It is urged that in this ]rackgrouncl, while exercising power of juclicial review of an administrative decision, the cour[.cannot subs[i[ute' its own decision without the necessat1y expertise and corirpel the respondents to exelcise cliscretion to permit the petitioner to continue to occupy the aforenol,icecl accotnmocLaLion.,186. This submission fails to consider th.e nature of'the rights wlriclr are involved in the case in hand. r&etcalfe Hodgrlrinson Pw. n M. (supra) t2n ancl contract of work of professional services [o the appellant ancl was not concernecl with a plea of violation of basic hurnan. rights Td constitutional guarantees as are involved in [he instant'case. The consideration in Metcatrfe Xnodgkinsott Fvt. Ltd. (swpra) has no appiication to the present case' L87. In (2OO[3]) 6 SCC L l{apitra EfinEro.nani vs. state of. tsihal" & Ors. the State Government had, however, irleadcd financial sl.ringency to shift its liability to the Union of Inclia ol to []re S[a[e of Jtrarkhancl. In.para 67 of the juclgrnent clatecl 9tr' of May, 2003 Supreme CourL had held that the liabliity of the sbate of Bihar cannot be shifted. to the Union of Inclia only because ib is the repository of funds raised by it throug'h excise ancl other cenbral levies ancl impost, ancl consecluently it woulcl not be inclirectly or vicariously liable for the I'aitings on th'e par[, of the State Public Sector Undertakings. It was held that either prececlentialty or jurisprud.entially, the Union of Inclia cannoI be heliL liable and no such direction as was being'sought by [he stal,e oovernnent could be issued. tn" Supreme Court,. however, clearly cleclarecl the position Lhat financial stringency may not be a grouncl for no[ issuing requisite directions when a quesbion' of violation of fuudaqental right arises. In this regard, the cour[ no[icecl the emphasis given by it on this aspect including the judgmenLs. reported at ft987115CR641 _Rwran LiffiEati'on amd Entittrement Kendta and Ors..v. State of Uttat' Frarlesnt arld Ors.; X.9BOCrLL,{LO7S Municipal Cowncitr, RatIanM vs.. vardia"han & ons.; frggo]sscR.Bo B.n. wadhera v. (Jtnia,n ' t[4] Xl.ec,ogtttised &,A,ided Sc.ltools ManaEingr Cottttttittees anetr' ot"s.;,MnR. tgg[6] sc 2426 Faschim tsangta Khet Mazdoot' Saintiti & Ors. us. State of West -Bengral & 'Atnr'l In para 65 of (2003) 6 SCC L enffiiled Katrtitra Efingrorani Vs. State of.Bihar & ors, the Corirt rejectecl the contention of the State of Bihar also [o this effect' 1BB. In para 6 at page 589 of (L993) 3 SCC 584 '4M nndia..ftmam Orgramisatiott us. t]O{ the Suprerne CourL held thab:- "6....Much was argued on behalf of the Union and the Wakf Boards that their financial position was not such that they can meet the oblisations of pavinq the..Imams as they are beincr paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail'heaw expenditure which the Boarcls of ctifferent States would not be able to bear. We. do no[ fincl any correlation between the two.,ffina,ncfa./ difficr.ilties of, the ittstitution cannot trte a.faove fwmctratnental riqht of a citizen. If Lhe Boards ltave been entrusted with the responsibility of supewisinq.and administering the Wakf then it is their duty to harness'resources to paJr those persons who perforrn the most important duty namely of leading cornmunihr pralrer in a mosgue the very purpose for which is created."

189. On the same issue in (1995) 4 SCC 5A[7] Stute of I{.F. vs. M.P. State RecoEmised &,Aided Schoans ManaginE Contntittees, the Supreme Court observed tha1":- "l-6. The aottstitartiottal mandate to Ehe State, as upheld by this Court in Unni Kiishnan case - [o provide free education to the children up to tire age of fourteen - caxnnnot he penmitted to be circwtnvented on the grrowmd.of lactrr of econontic capacity oz. finanaia.l. incatroacity."

190. TIre ohservations of the Supreme court at (zoAs) z scc 262 Kapila f{imgorami us..State of Bihat- & Othens, while disrnissing the review petition filed by the Bihar Governmcnl,, seeking a review of the earlier order clatecl gtr' May, 2003 are also [opical on this objection of the responclents ancl neecl [o be l3O considerecl. The State of Bihar had submitted that the state hacl no liability to pay the salaries of the employees of the statutory corporations/companies incorporated under the Inclian Companies Act and. that they were not cornpletely uncler the 'control of the State. Before the Supreme Court, couttsel for l.he State of Bihar had urged that the remedy of the ernployee was to file appropriate applications befbre the Comparly Judge who was seized of the winding up proceedings in relation to snch 'colnparly These submissions were rejected by court obserwing that in the order dated 9tr'May, 2003., the courb had considered the rnatter from the hurnan rights Espect as weil as the fundarnen.[al rights of the employees in the public sector underl,ahing operating in the state of Bihar. The court noticecl that after Lhe pgssing of the order dated 9th May, 2003, several employees clied due l.o non-payrnenL of their salaries. The court piacecl reliance, intir alia on para 24 of. the directions ciatecl 9tr' May, 2oo[3] ancl while rejecting the review petition filed by [he lespondents ol:served as follows:- "24. This Court further observed that [he StaLe hab a constitutional obliqation and acts in a ficluciary capacity vis-d-vis performance of its constitutional drities and functions by the. public sector undertakinqs as it has constitutional obligations in relation thereto." (Underlining supplied) So far as protection of such hurnan rights ancl fundamental rights, and. remedy for violation thereof, is cotrcernecl, the courb issued rLirecbions to the sl,ate governmetrL to pay the salaries of employees in the public sector unclertakjngs in the following terms:- "22, The Government companies/public sector undertalcings being 'states' would be constitutionally iiable to respect life and liberty of all persons in terms of Arbicle 21 of the Constitution of India. They, therefore, must do so in cases of thgir own etnployees. The Government of the State of Bihar for all intent ancl. purport is the. sole shareholder. Althorigh in law, its liability towards the debtors of the Cornpany rnay I:e confined to the shares held by it buL having regard to the deep and pervasive control it exercises over the Goverirment companies; in the'matter of enforcemeul. of huinan rigirts andior rights of the citizen of life and lil:erty, the State has also an additional duty l,o see that the rights of employees of such corporations are not infrincred The right to exercise deep and lrervasive conLrol would in its turn make the Government of Bihar liable to see that [h.e life and libertv clause in respect of the emplbyees is fully safeguarded. The Government of the State of Bihar, thus. had a constitutional obligation Lo protect life and liberty of' the ernpiolrees of []re Governrnent owned companies/corporations who are the ci[izens of India. It had an additional liabiiit]r havincr regard to its right of extensive superwision over the affairs of the companJr." XXX

37. We malce it clear that we have nob issriecl aforementioned directions to the States of Bihar and Tharkhand on the premise that thelr are bound to pav the salaries of tlle ernploJrees of the pul:iic sector have a human riqht as also a fundamewtal tiqht wnder,Artictre 2t whiclt the States are hownd'to protect. The directions, whi.ch have been issried by this Court on gth May, 2003 as also which are being issuecl herein, are in furtherance of [he ]ruman ancl fundarnental rights of the emplo--rees concernecl and nol, blr walr of'an enforcement of their legal riqht to arrears of salaries. The amount of.salary payable to the concerned employees or workmen would undoubtecllv !e adjudicated upon in the proper proceeclings. *I{owever, these directions arb issued which are necessat1r for their survival. Undoubtedly, any amount paid by J'stice uday sinha committee pursuant [o Lhese directions shall be duly credited for.,, )tt 1-91. The principle reiteratecl by the suprerne court was [ha[ financial clifficirlties of the institution or the sta[e cannob ]:e above the fundamental'rights of the citizen. IL has also l:een observecl that in a.situation of the nature which was before the couLt, it was obliged to issue necessaqF directions [o rni[igaLe the extrerne har:dship of the employees involvingr b[ huntan rights of the citizens of the country at the hairds of the sl'al'e governrnen'l, and companies and corporations owned and controllecl by it. L92. Other than the bald reference to the judgment iir lvfetuanfe (supra), ]earned. standing counsel has piaced 11o factual asserbions in" support thereof.' Such submission is clearly untepable in view of the acimitted Governrnent position in the afficLavit clatecl 6h Ocb.ober, 2009 filed tn i.K. n{oul (supra) bdfore the Supreme CourL of its responsibility as well as lialrility clua the displaced Kashmiris. The same stands adrnittecl in the discretion exercised in favour of the three persons cited tn Tei 'Kfshan (swpra) ancl the letter clated 2"d JuIy, 2OO[2] placecl before the Central Administrative Tribunal as also in the policy of reservation/preferential allotrnent of the.flats. 'fhe respondents have clearly adrnitLed their responsibility and are bound by their comml'Lments.

193. Before 'this'cour[, the respondents have not stated Lhat there is any assessment or calibration in terms of prioriLies of the various of.[he several projects w]rich the responclen[s neecl underbahb or Lhe various areas which Governrnent business add.ressed'. The respondents explain neithbr the financial \sL )s[3] Jrqrclel of ensuring shelter to these IDPs no1bhe extel[ of bhe available. resolrrce. Mere announcement of Schelnes and allocatioir of large volume of fuUds by the Governmen[ as al reaction'[o court clirections upon occurrence of events in l,he Counhy by themselves are insufficient and may prove to be ineaningless. Displacement as that of the present pe[itioners clearly reflects the imperative to tahe a holistic view and for the clecision mirlcers '[o take a 'rninimum-needs' based approach where ensuring basic human rights and sociai Welfare are concerrled. 1.g[4]. Experience ancl exarnples abound in this city arlcl [he aforenoticed judicial precedents of foicible evictions relating Lo slums ancl jhuggi clwellers. Defenceless ancl clisadvantagecl citizens are forcibly evicted frorn their shelters which are then destroyed. And then, the long arrn of the sLate, gives a hyper' technical inLerpretation to legal clefinitions, [alces [he shie]ci of statu[ory provisions ancl implernents what is tou[ecl as l,he "qL]le of Iaw" in removal of "encroachments" by the disadvantagecl. Others illegai constructions and deviants are "regul.arised" 01' "componnded". This very ethos is illustratecl in [he present writ petiLions. L95. Instance after instance of schernes in Dellii for regularising nob only rank illega[1] ancl uiratithorjsecl consl,ructions bub also large scale encroachrnents on priblic lancl are in existence and being implernentecl. So much so that the Cenlira[1] Government has promulgatecl ordinances ancl s[aLr,ites prohibicLing dernolitions of huge iliegal buildings ancl evpn | /?,v such law brealcers who do not even need.rehabilitation or sl,ate | 2 | supilort, who are celtainly not disadvantagecl or clisplacecl' The Delhi Laws (Special. Provisions) Act, 2006 was enacted by the parliament concerned that action for violation of Lhe provisions of Lhe Master Plan 200L and building bye laws was causillg harclship and. irreparable loss to a large nurnber of people. No reference to public. safeff, public interest, envil:onmert Concerns, enforcement of tegat. plovisions or [he financial irnpact and loss is clisplayed. L96. The judgment reported at ZOhO $M) '4D (Denkil 5tr[3] Wait:ian f,(alyan Satniti ReEd. & Ot:s. vs. Govetwtttent atf YICT of, Detrtray' mahes a reference to Governm.enl. policy Lo reguJ.arise 1400 unauLhorised colonies. The huge tross [o the public exchequer of incliscriminately regularising iIIegal encroachments on lancl acquired after payment of large surns as compensation from public funds by the gov€rl1ilent; encroachnr.enLs those on public land as also violations of builcling regulations is not even computed, leb alone addressecl. (Ref: (2006) 3 SCC ggg M.C. Me.hta us. UOn & O.r's.;,Milt 2005 SC t.Ftiends Colony Devetropwzertt Conwnittee us. State of Orissa & Ors.) L97. Yet the respondents urge "financial stringency" so far as [he present petitioners are concerned. The essence of [he poiicy of rehal:ilitation and resettlernent, so far' as [he petitioners is concernecl has not only been given a comple[e go by but:Lhe,espondents are completely Aerryrng all tiabiliby for the sarne.

19. B.. Apart from a vague suggestion of insufficiency of.funcls, the.respondents do not substantiate such plea with any nlaterial. The responclents have not shown any consideration of the petitioners' needs, let alone any steps talie [o acld.ress [heir ptight. There is nothing which couid 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, sirnilar submissions were termed as "typically gauche" and "lacking insensilivity" by this court in P.I{. E{amdoo us. Estate Officer (supra) and already stand rejectecl tn B.[.. WaIi'& Ors. vs. UOI (supra). The impugnecl action and the submissions manifests the huge barriers which a clisplacecl citizen of the country faces in accessing even basic and guaranteed constitutional rights' clespite the admittecl responsibllttt of the state for the breaches and violations of the constitutional protections suffered by thern. Aovropriate remedv. role of tlte cowrt amd nature of relief

199. It is now necessary to consider the nature of remed.y"and relief which would be available to a citizen for violation of the fundarnental right to life as 'welI as threat thereto. The.Supreme Court has repeatedly judicially awarded coillpensation in cases of established breach of public duty to protect the fundamental rights and violations thereof, especially [he guarante.es of personal liberty and life.

200. In,AII| 1983 SC X.086 R.udul Sah us. State of,.Bihar, tire courL was concerned with violation of rights resulting fr;orn illegal detention. The observations of the court on the duLy of le the court d.eserve to be considered in extenso ancl reacl / '" rY.........Artic]e 2l-, which guarantees the life aqd liberty will be denuded of its rel d.etention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 2lsecirred-, is to muict its violators in the payment of monetary compensation. Administrative sele(sic)sis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. T4" right to compensation is some palliative for the unlawful taliti the.if ' civilisation is not to perish in this corintry, as it lt"as ' periihecl 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 dambge done by its officers to the petitioner's rights.'' 20L. So far as the remedy which would be available in cases involving infringement of funclamental rights ancl the power of courts, Dr. A.S. Anand, J las his Lordship then was] in his concurring judgment in,A,IR lgg| SC ng60 entittred NiXabati Be.hara @ Lalita tsehura Vs. State of Arissa had obser-ved as. "33. The public law proceedings serve a differenl: purpose l,han the private law proceedings. The relief of monetary compensation, as exemplatY darnages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right quaranLeed under Article 21 of the Constitution is a remedlr available in public' law and is based'on the strict liabilitv for contravention of the guaranteed basic and indefeasible riqhts of the citizen. The purlrose of public law is not only to civilize public power but also to assure the citizen that they ]ive under a lega[1] systern which aims to protect their in[erests and preserve their riqhts. Therefore, when the court moulds the relief by qrantinq "compensation" in "l-0. right to re;w ille tion "f the citiren- The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer proceeolngs C failed in its Public rights of the citizen. for the breach of its public law duty and is independent of claim compensation undgr the private Iaw in an action based- on tor[, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal iaw. xxx xxxx 2 and 226 done the citizen to the reme$Y by way of a civil suil or criminal proceedings' The State, of course has the right to be indemnified by and take such action as may be available to it agains the wrongdoer in accordange with law - through appropriate proceedings. Of course, relief in exercise of-tfte'power under Article 32 or 49 would be graLteclbnly once it is establisSed.that there has been in infringement of the fundamental rights of the ' citizen and no other form of appropriate redressai by the court in the facts and circums'bances of the case, 4 SCC Sheela Barse vs. UOI & Ot's courb was concerned. with gross violations of "[he constitut and statutory rights'of a large number of children in the co custodial restraints. While coulmentin is possible." 202.,In (1988) which has

37. Ttrtii Court and tke E{ish--Aeutb. bei. tors ciuil L of the.CI ve no but o.bli, IT damental the nature of proceedings in public interest'li[igation and t]re issue of protection and. enforcement. of their rights, the cour:t mad.e the following. observations with regard to the duby of the cour[':- "6.........More imPortantlY the Court is not

203. Where infringement of fundamentat rights is established, the duty of the court does not stop at giving a mere declaration. In L997 G) flCA 4L[6] D.I{. Basw us. state of, west tsengral, It was laid. clown that in such a. CaSe, the court must proceed further ancl give compensatory relief, not by way of damages as a civil action but by way of compensation und.er the public law jurisdiction for the wrong done, due to breac.h of the public duty by the State of not protecting the fundamental right to life of the cibizens.' To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

204. Uniike the several cases noted h6reinabove including cases of. R.udutr Shah, D.I{, Easu, Leetrawati Eeliuta, S.heela Barse (swpra) etc. in the instant case, the state or its instrumentalities itself have not. harmed or punished tl1e petitioners. I{owever, the state has t'otally failed to protect the fundamental right to life of the petitioners ancl to protect them from violence, harassment and pogroms. This is in clear abdication of the constitutional responsibility of the Stale. Responsibility for the violence in the Sta[e is not the quesbion t9{ role with the responsibility for the organisation,l ',Qn before this court. The issue befoqe tbis court is restricted to the | ' I question of the rights of the petitioner.

205. So far as the approach of a court qn such issues. is concerned, in para L[3] of the pronouncement reported at (2OO[3]) 4 SCC 6On. Stute of Maharashtra us. Dr'. D. Ft"afwl E. Desai, tjre Supreme Court stated. that one neecls to set out the approach which a court must adopt in decicling such questions and reiterated that the first duty of the courb is to d.o justice'

206. In para 15 of AIR L980 SC L622 lvlutticipal Cowttcitr, Xlatlam us. Vardicltan & Ors,; the court obsqrved that:- "L[5].. The nature of the judicial process is " noL purellr adudicatory nor is it functionallli that of an umpire only. Affirmative action to make the remqdy effective is of the essence of the ricrht which otherwise becomes sterile." 207, In para l-1- of (tgg[7]) 6 SCC 241 Visha.ktrta & Ors. vs. Stdte of.Rajasth.am & Ors., the Supreme Court held that the' obligation of the.Supreme Court und.er Article 32 of the Constitution for the enforcement of funclamental rights in the absence of.legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as tl'rose representing []re minirnum standards necessary to be observed in order l"o maintain the independence and effectjve functioning.of the judiciary. The objectives of the judiciary urentioned in the Beijing Statement are: "Objectives of the Judiciary: l-0. The objectives and functions of the judiciary include the following: (a) to ensure that all Persons are able to live securelJi under the Rule. of Law; (b) to Promote, within the ProPer timits of the judicial function, the ' observance and the attainment of hulnan rishts; and {c) to administer the law impartially ' among persons and between persons and the State." t?' In Clause 1_0(a) of the objectives of the chapter on 'Objectives of the Judiciary','it has been clearly stipulated that the objectives and functions of the judiciary inqlude ensurinq' that all persons are able to live securely under [he rule of ]aw. 208'. So far as the manner in which relief is recluired to be. moulded so as to ensure protection of the consLiLutional rights of the petitioners in this bunch of writ petitions are concerned, learnecl counsel for petitioner has placed reliance on [he pronouncement of this court dated LOth Septem):er, 2004 in WP(C) IVo. L72/X.997 entitled Smt..Kanila.Deui us. Govt- of NCY of Eelhi & Ors. In this jud.grnent, learned brother B.D. Ahmed, J was dealing with a case relating to a prayer for bompensation for the death of one Uday Singh, an electrician who was killed in an explosion on account of terrorist activiby in Delhi. The court held that iower courts would'Iose their efficacy if they canncit possibly respond to the needs of the society technicalities there might be many but [he justice-oriented approach ought to not be thwarted on th.e basis of such technicality since technicality the course of justice. cannot ancl ought not to ouLweigh 2Og. While referring to several pronouncements of the Apex Courb with regard to compensation for custodj.ai death; death of school chilclren on a picnic; death of a passenger in a train in action on the part of the railway employees, it was furLher observecl tn.Katntra Deui's case (supba),as foilows '- "7. xxx The fact of the matter is that Uday Singh lost his life on account of an act of terrorism. Th.e State failect to prevent it. The Primary duw of the state is to rnaintain peace and harmonlr amongst its citizens. If for some. reason, it is unable to pu[ the iid on simmering discontent, then it is its duty Lo protect innocent citizens from harm. If it fails in this duty, then it muqt compensate the citizens w.ho have been wrongied. " Reliance was placed on the pronouncement in A,IR. 1.993. SC 1960 Nilahati Eehara @ Lalita Eehuta Vs. State of Orissa wherein it had been also observed. that while clirecting monetalT compensation for established infringement. of the funclamental rights, the'courts' take into accclunt not only the interest of the applicant and the respondent but aiso the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and db perform their public cluties properly particularly where the fundamental riglrl of a citizen under Article 2L is concerned. Law is in the proCeSS of deveiopment and the process necessil.ates developing separate public iaw procedureg as also public law principles. 2I0..In,AIR n 989 Mad. '205 R. Gandhi & Ors. \/s. UOn &,A,nr'., the Madras High court was concerned with the inability of public putting in jeopardy the life and 1\l liberby, home ancl hearilr 9f the victirns involvecl. The petition,UL It soughb redressal for lhe trials and tribulations undergone by the minority Sikh community of Coimbatore in Tamil Nadu and a few others in the wal<e of the assassination of late Prirne Minister Sqlt. Indira Gandhi on 3Lsb October, 1984. Observing on the rlrolation of the fundamental rights and the duty of the state, the Madras I{igh Court placed.reliance on bhe observations of the Supreme Court in the Olgra Tel"tris (swpra) case, and heicl as follows:- "2!. primary dutlr of the Sffi Constitttiot ftrnction and put the life and liberty. the hearLh and home of the citizens in jeopardli. Article 38 of the Constilution enjoins on the State to strive to promo[e the welfare of the people by securing and pro[ecting, as effectively as it may, a social order in which iustice, social, economic and political, shall inform all the institutions of the national life. Under Article 19(a) and'(g) of tlie Constitution, any citizen of Lhis country is entitled to reside and settle in any.part of.the Territory bf india and to practice any profession or to carry on any occupation, trade or busin"ess. Ar[ic]e 2L 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 Bornbay Pavpment DwelLer's 'case, MANU/SC/0039i1985: AIRI-9B6SC1-80, ro 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 hirn of his means of iivelihood to the poin[ of abrogation. Under Article 300(,4) of the Constitubion, 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 depriyation of the right ' to property guaranteed by the Constitution. The members of the Silch Communitv.[orm an integral part of the Indian societ5r; they havb every right to settle down in Coimbatore and carry on Lheir profession. They have the Constitutional right to live and they cannot be deprived of their rneans of.live]ihood. Their right to property is inviolable. Ali these Constitutional'rights of the Sikhs and a few members of the other comnunities have been flagran[ly infringed by the inaction of the law enforcing authori[ies..Eundamental riqhts _ are not mere brutum fulmen. aspirqtions and realities They are the, throbbing of civilised human life, theY 1\s be des de or as observed by Bhagwali, J. as he the[4] was, 'a paper parclr.rnent, a teasing illusion and a promise of unreality', bJr the failure of the State bo protect th'ose rigirts. -Theie unfortunate victims of arson and violence are, therefore, rh brealc-down tal machi theref its se u its -otriliqation as- a social welfare iFtate to mahe swllahtre atmemds"" ' (underlining suPPlied).2LL. tixamining the claim for compensation on account of cleath of a spouse. in similar riots targeling members of the salne community in Delhi in 1984, Anil Dev Singh, J in the juclgment reported aE 1.996 (3) AD (Delhi) 333: 1996 (35) PRtr 203 'tsha.fan X{awr us. DeIIai '\dnnn. has observed as follows:- -(10) Article 2L is the Nation's.cornrnitment to bring every individual or group of persons within its protective fold. This Nation belorigs to members'of all the communities. They arc equal members of the Indian society. Equality before law and equal protecLion 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 2L of the Constitution. I[ is ' ilre duty of the S.tate to create a climaLe wh.ere l,he cleavage'between members of.[he society belonging. to 'different faiths, caste and. creed are' eradicaLed. The SLate must acL in tirne so that the precior-rs lives of the people are not destroyed or threatened. Otherwise, Article 21 will rernain a paper guarantee. Tirne is long and legal rights. second respondent-- Sfdf,e of Tamil Nadu ca.n-nof. ^t lror[atory effect in enforcing ArLicle 2L of - the [V\ Constitution. The State calnot adopt.a "do no[hing altitucle". Like clisease prevention, the State rnust take everlr precaution, measure and initiative Lo'prevent ter.rorern populi of the magnitude represented by 1984 riots and in the event of an outbreah of riots it must ac[ swiftly Lo curb the same and not allow precious time Lo

┌────────────────────────────────────────────────────────────────────┐
│      slip by, as any inaction or passivity sn i.ts par[ can        │
│      reiult-in loss of piecious life and liberty of indivicluals   │
│      amounting to vioiation and- legation of Article 21- of the    │
│      Constitution. The State has to enforce minimum                │
│       endan                                                        │
│        tfe nas been extinguished in clear violatiol of Article'    │
│      ' 2I of. the constitution which mandates that life cannot     │
│        be taken away except, accofding to the procedure            │
│       established by law. "                                        │
│       It is noteworLhy that in para 25, the.learnecl Juclge in     │
└────────────────────────────────────────────────────────────────────┘

Rs.25,000/- which shall be paid within a period of six weehs frorn the date of passing the order. These writ petitions are allowed in the above terms. n3/2004, 11026/2004 1X029/2004, 736/2006. LL0L6/2004. 1n044/2004. M.A50/2OA[4]. Ln444i2AO[4]. T.557 237epAA[6], tLS[4], noa?, t342tl[2] o09. 1,L[2] 1L2f,6/20q[9]. In view of the orders irassed in the respective writ peuitions, these applications d-o not require furLher adjudicatiol and- are disposed of accordinglY. /, Ulns-:#- - //1-/''rt --,-. /wrTA n4+rryAn ) U JUDGE ( t[[ t.l( I{ovemabe(0, 20llo. aa/kr';.4. i-l I.