M.K. Bazaz v. UOI and Anr.

VERSUS

UOIANDANR., '....Respondents •- Through: Mr. R. V. Sinha with Mr, A.S. Singh, Advocates. AND (13) Writ Petition (Civil) No. 7057/2007 and CM No. 13421/2004 C.L. RAINA... Petitioner Through:.Mr. Thakur Summit, Advocate

V. VERSUS •.. UOIANDANR. -....Respondents Through: Mr. R. V. Sinha with Mr. A.S. AND (14) Writ Petition (Civil) No. 2869/2001[3] and CM No. 5540/2008 S.N. KAUL UOI AND ANR.... Petitioner Through: Mr. R.K! Handoo with Mr. Yoginder Handoo and Mr. Manish Shukla & Mr. Atul Sharma, Advocates VERSUS....Respondents Through: Mr. R. V. Sinha.with Mr. A.S. • AND (15) Writ Petition (Civil) No. 8599/2008 and CM No. 16497/2008 KANTIAYANI GANJOO...Petitioner Through;- Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul Sharma, Advocates

VERSUS

AND UOI AND ANR. (16) Writ Petition (Civil) No. 8600/2008 CM No. 16499/2008... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shukla & Mr. Atul Sharma, Advocates H.L. KOUL UOI AND ANR.

VERSUS •....Respondents Through:' Mr. R. V. Sinha with Mr. A.S.

VIJAY MAM AND Writ Petition (.Civil), No, 8601/200S & CM NO.. 16501/2008... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr; Manish Shukla,& Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr. A.S. AND (IS) Writ Petition (Civil) No. 8(541/2009 and CM No. 5796/2009 P.L. ICAUL... Petitioner Through: Mr. Samrat K. Nigam, Advocate

VERSUS

UOI AND ANR.....Respondents Through: Mr. R. V. Sinha with Mr. A.S. Y.S. JAMWAL UOI AND ANR. M.K. BAZAZ: AND Writ Petition (Civil) No. 9609/2009 & CM NO. 7654/2009... Petitioner Through: Mr. Naresh Thanai, Advocate

VERSUS

Respondents Through: Mr. R. V. Sinha with Mr. A.S. AND. Writ Petition (Civil) No. & 10986/2009... Petitioner Through: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish.

UOI AND ANR..VERSUS....Respondents Through: • Mr. Jatan Smgh with Mr. ' AND (21)'Writ Petition (Civil) No. 1154IB/2009 & CM NO. 11351/2009 ' B.L. TAICAROO UOI AND ANR.... Petitioner Through: Mr. Manoj V. George, Advocate VERSUS....Respondents Through: • Mr. jatan Singh with Mr. AND (22) Writ Petition (Civil) No. 114SJI/2009 & CM'NO, 11242/2009 MOTILAL KAUL... Petitioner Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER, DIRECTORATE OF ESTATES, NIRMAn BHAWAN....Respondents Through: Mr. Jatan Singh with Mr. AND B.L. RAINA Writ Petition (Civil) No. 114S9/2009 & CM NO.-11244/2009... Petitioner Through: Mr. B. L. Wali, Advocate ESTATE OFFICER VERSUS....Respondents Through: Mr. Jatan Singh with Mr. AbhishekAggarwal.and Ms. Megha 2010:DHC:12458 AND (24) Writ Petition'(C) No. 11490/2009 •. • & C.Mo.No.11246/2009 A.K. GIGOO... Petitioner Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER.....Respondents Through: Mr. Jatan Singh with Mr. ' Abhishek Aggarwal and Ms. Megha Bharara, Advocates. COKAM; HON'BLE MS.

JUSTICE GITA MITTAL-

1. Whether reporters of local papers may be allowed to see the judgment? •

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

3. Whether the judgment should be reported in the Digest? GITA MITTAL. T' • '

1. The instant case is a testimony to events which lead to an unprecedented ethnic cleansing of a minority community from the Kashmir valley on account of the inability of the State to protect them and their property from violence, who, as a result, were rendered homeless. Such turmoil was faced by the minority community in the state of Jammu & Kashmir after December, 1989, compelling its members to flee home, hearth and State for bare survival. • These writ petitions have been filed by some of such displaced persons who were.Central Government employees seeldng protection. against forcible eviction of the quarters occupied by them on the ground that it is the only roof available to them. 2010:DHC:12458 l/'

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

3. The,..writ petitioners in W.P.(C) Nos. 5681/2007. 2869.

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

4. The facts disclose that all the petitioners (or the-jDerson on whom they were dependant as in the case of Smt. Phoola Raina widow of Late Sh. T.N. Raina writ petitioner in W.P.(C) NO. 15698/2004) upon being brought to Delhi were aUotted Government accommodation to reside'in, not only by virtue of their employment but also their extreme need for shelter. These allottees of the quarters, superannuated from service on different dates over the period of time. 5- W.P.fC) No.15698/2004 has been filed.by Smt. Phoola Raina, widow of Late,Shri T.N. Raina who was a Government 2010:DHC:12458 i • servciiTt. Sliri Raina was the allottee of Government accommodation bearing no. DG-915, Sarojini Nagar, New Delhi-

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

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

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

8. Shri P.K. Koul, the petitioner in W.P.fG) No. 15239/2004-. was a resident of Razdan, Kochhaa, Bana Mohalla, Habba Kadal, Srinagar and his entire property in Srinagar has been destroyed by the communal riots and terrorist movements. He clearly 2010:DHC:12458 states that he has no other house anywhere m India. This petitioner was lastly posted as the Director General with the Border Security Force at R.K. Puram, New Delhi. While in service, this petitioner was allotted the premises no. Ii-52, Sarojini Nagar, New Delhi. On 31®' July, 2002, the petitioner superannuated from service. The allotment of this accommodation in his name was cancelled by a letter dated 27/28^'' August, 2002 with effect from December, 2002 directing the petitioner to vacate the accommodation immediately and he was informed that on failure to vacate, action to evict him under the Pubhc Premises (Eviction of •Unauthorised Occupants) Act, 1971 would be taken. The respondents also informed the petitioner that on failure to vacate, he would be liable to pay damage rent (g) Rupees 150 per sq. mtr. for the entire period of over stay. The petitioner was permitted to retain the accommodation from December, 2002 to 31®'' April, 2003 on payment of four times of the normal license fee for the next two months. 9..The petitioner and his family are permanent residents of the State of J&K and did not leave their home state voluntarily but were driven out of the Srinagar valley. Their household goods were looted and house was burnt by the terrorists. Other than the one residence, which also stands destroyed by the militants in Srinagar, Shri P.K. Koul owned no other property. A grievance is made that the respondents have taken no action for the reconstruction of the houses of the petitioners and others like him which were destroyed, by, the militants and to rehabilitate them resulting in a pitiable condition and absence 2010:DHC:12458 of any security for tliem. Consequently, they are unable to, return to their own homes.

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

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

DIRECTOR OF ESTATE (LIT.)

DIRECTORATE OF ESTATES, NIRMAN BFIAWAN, NEW DLEHI. EC/93/AD/Lit/03/T-D All persons concerned and in particular ShrrP;K. Koul,, 123, North West Moti Bagh, New-Delhi Whereas I, the undersigned am satisfied for the reasons recorded below that Shri P.K. Koul is an unauthorized occupation, of the premises specified in the Schedule below;, REASONS You have been continuing to occupy the premises specified in the schedule below even after its allotment stands cancelled in your name w.e.f. 1.2.03 vide letter no TD/283/M-23/96 dated 8.11.02. You have failed to prove that you are not in unauthorized occupation of the instant premises. Now, therefore, in exercise of the powers conferred on me under Sub-Section (I) of Section 5 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, I hereby order Shri P.K. Koul, and all the persons' who may be in occupation of the said premises or any part thereof to vacate the same within 15 days from the date of, issue of this order. In the event of refusal or failure to comply with this order within the period specified above, the said Shri P.K. Koul and all other persons concerned are liable to be evicted from the said premises, if need be, by the use of such force as may be necessary.

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

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

13. The facts relating to the other petitioners in this bunch of petitions are similar and are not disputed by the respondents. For the purposes of convenience and clarity, the details of 2010:DHC:12458 the allotment of accommodations which were effected in favour • of the petitioners/the predecessor in interest; the dates, of their retirement; the status of allotment and particulars of the orders which have been passed against all the petitioners and are impugned in these writ petitions are tabulated below:- Date order in Appeal 10.9.2004 •' 1 2. 3. •. 4., 5. Writ Petition' No, • Quarter Allotted Date of •Retireinen t of Allottee Date of impugned order of • Cancellati OM of Allotment 'Date of. immmned Eviction Order WP (C) No.1-5239 /2004 • H-52, Sarojini Nagar, New Delhi 31.7.2002 31.10.2002 23.9.2003 WP (C) No. 15240 /2004 GI-800, Sarojini Nagar, New Dellii 1.7.2002 31.10,2002 23.9.2003 WP (C) No.15245 /2004 H-162/ Sarojini Nagar, New Delhi 7.5.2002 7.5.2002 25.9.2003 25.9.2003 WP (C) No.15246 /2004 123/IV;, North West Moti Bagh, New Delhi 30.9.2002 7.5.2002 WP (C) No.862/2 499 A, Sector 3, R.K. Puram, New Delhi 30.4.2005 1.9.2004 28.3.2005 • WP (C)' No.1779/ Z-20, Sarojini Nagar, New Delhi 12.12.2005 12.12.2005 31.1.2006 18.9.2002 WP (C) No.15241 /2004 11/5, Sector-1, M.B. Road, New Delhi 31.10.2001 1:3.2002 WP (C) • No.15264 /2004 60/9, Sector-l, Pushp Vihar, New Delhi 28.2.2002 30.6.2002 11.7.20.03 !; i 20.12.2005! 31.1.2006 10.9.2004 2010:DHC:12458 r-i

1. Writ WP (C) No.1527 9/2004 ^ WP (C) No.1569 8/2004 WP (C) No.2641 /2006 WP(C) No.,5681 /2007 WP (C) No.2869 /2008 WP (C) No:8599 /2008 • WP (C) No.8600 /2008 WP (C) No.8601 /2008 WP (C) No.8641 /2009 WP (C) No.1137- 7/2009 3/252, ' Andrews Ganj, New '• Delhi DG 915, Sarojini Nagar, New Delhi MS/1007, Sector VII, M.B. Road, New. Delhi Allotted Quarter in Delhi' New Delhi New Delhi New Delhi New Delhi GI-809, Sarojini Nagar, New Delhi 880,. Lakshmi Bai Nagar, New Delhi • DMe of t of Allottee. 30.4.1998 (Allottee Died while in service on 4.8,2001). 30.4.2004 30.9.200.[6] 31.5.2007 31.12.2007 31.12.2007 31.12.2007 31.5.2008 31.7.2008 Cancellatl on of 1.9.1998 22.1.2002 1.7.2004 5' 3.3.2004 25.4.2005 23.7.2007 10.11.2008 10.11.2008 20,4.2009 3.8.2009 1.2.2006 2010:DHC:12458 I 1 2 3 • 4 5, •/§ Writ F&tltion • Quarter •Allotted Date of Retiremen Date of impuffned. Date of imEDUiiined Date 'of '• the No. t of order of Eviction imEmmied\ Allottee Cancellati on of Allotment Order order in i Appeal WP (C) No.1148 8/2009 SI/38; Sadiq Nagar, New Delhi 30.6.2008 1.8.2008 9.3.2009 25.8.2009 WP (C) No.1148 9/2009 1/65/11/ M.B. Road, New Delhi 30.11.2007 21.7.2008 19.1.2009 WP (C) No.1149 0/2009 AB-837,.. Sarojini Nagar, New, Delhi 30.4.2008 18.8.2007 10.11.200 25.8,2009 WP (C) No. 1149 1/2009 K-4/12-/ Sector II, DIZ Area, Gole Market, New Delhi 30.6.2006 1,11.2006 18.6.2007 25.8.2009 WP (C) No.1154 8/2009 47/3A/, DIZ Area, Sector 2, Gole Market, New Delhi •. 30.9.2005 1.2.2006 18.7.2006 25.8.2009' \ WP(C) No.7057 /2007 X-224, Sarojini Nagar, New Delhi 31:08.2006 01.01.2007 28.05.2007 • 1.9.2007 WP(C) No.9609 /2009 Qr.No.28 1, Typeiv; Sector-8, R.K.Pura m. New Delhi. 30.04.2008 31.12.2008 -C 16.03.2009 i I \

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

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

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

17. The petitioners have contended that discretion and power is vested in the respondents under SR 317-B-25 of the Allotment of the •'Government Residence (General Pool in Delhi) Rules to permit any person to occupy pubhc premises. Instances have been cited of the respondents permitting other persons including identically -displaced Kashmiris to occupy public premises. It is complained that the respondents have unfairly failed to consider the special circumstances so far as the 2010:DHC:12458 n/\ petitioners are concerned and have discriminated against them. The writ petitioners thus assail the failure of the respondents to exercise the discretion vested in them to permit the petitioners to continue to occupy the quarters, in accordance with law on the ground of arbitrariness.

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

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

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

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

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

1. ' j Court of. India. in- ' S.L.P. No.7(539/lS)77 - Shri TX. Koul &;& Ors. lias considered the questioii. regarding the possession of the accommodation of the similarly placed employees and. adjourned the matter sine die and till the Supreme Court decides the, matter finally, the Respondents cannot dispossess the Petitioner from the premises iii question. Vide order dated 26.8.1997 the Hon'ble. Supreme Court of India in the said case passed the following orders: "List this matter on a regular day. after six weeks. In the meantime, Mr. P.P.- Rao will ascertain from the State Govt. as to whether the petitioners can be put back to their respective houses owned by them in the Kashmir valley and can. ensure protection of the persons as also their property. To facilitate that venture, the petitioner's counsel will give to Mr. Rao the address of each petitioner where he would expect to be shifted-" Again vide order dated 28.1.1998 taking into consideration of the present situation the ' Hon'ble Supreme Court of India passed the following orders adjourning the matter sine die and continued the stay:- • "Adjourned sine die. Stay to continue. The petition,to be activated on mentioning by Counsel for the State of Jammu and Kashmir as and when the WP fC) State is in a position to assure the return. of the petitioners to their respective homes in the Kashmir valley and ensure their safety and personal property." Copies of the aforesaid orders of the Hon'ble. Supreme Court dated 26,8.1997 and 28.1.1998 are annexed herevvrith as annexure herewith as "That the contents of Gromids are need no comments. Xxx

Vs. UiiiLon of India. & Ors. has, qrone the issue and directed the Respondents to allow the Applicant therein to retain the Govt. accommodation pending decision in SLP (Civil) No.7369/97. A copy of the aforesaid order of the Ld. Tribunal dated 30.12.2002 is annexed herewith as Annexure P-7.

Kashmiri migrant whose house in Kashmir was burnt and destroyed bv the militants.' he has no place to go. He is, therefore, compelled to stav at his Govt. accommodation allotted to him till the normalcv in Kashmir vallev is restored and he Could go back to his State one day and rebuild..and reoccupy his destroyed house. However, the Respondents in a most callous. Unconcerned and mechanical manner turned down the request of the Petitioner. ^,D. Because the Petitioner has the Fundamental Right to live which is guaranteed to him under the Article 21 of the Constitution, of India and which Right includes the Right to Shelter also.

Pleadincirs in comiter affidavit That the contents of Grounds are matter of record. XXX 2010:DHC:12458 meacrer income received as pension cannot, take an alternate private accommodation in Delhi where he can hve with dignity alongwith his family members. His pensionary income.is not even sufficient to bnv food material for his familv members, has no other income whatsoever. He

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

XXX XXX XXX'

Petitioner to have a shelter does not cease to exist iust because he has retired from the Government service. His right to continue to stav in the present accoinmodation or in. an alternate accommodation to be provided, bv the Respondents cannot be taken awav till his safety in his own State is ensured and his own house in Srinagar is renovated or re- /'l 1

16. That in response to the contents of para K of ground, it is submitted that the petitioner was allo.tted Government accommodation subject to allotment rules while he was in. service. He was entitled to retain the Government Quarter only during his service period and the ahotment has. been cancelled consequent upon his retirement 2010:DHC:12458 m No.l52'39/20)04,L. Because tlie Directorate of Estates are allotting general pool accommodation not only to the serving Government employees but also to various other categories of employees who have nothing to do with government service. The employees working in the office of the political parties, iournalists, freedom fighters, artists, etc. are also allotted general pool accommodation. The Petitioner belongs to special category of displaced. Kashmiri Pandits and they also deserve special treatment in. the matter of providing accommodation as in the case of the aforesaid non-governmental categories.

Respondents has the power to relax the Allotment Rules in respect of any person and in respect of any accommodation. According to SR 317-B~25 of the Allotment of Government Residences (General Pool in Delh) Rules, 1963, the Government have the power to relaxthe Allotment Rules which is reproduced as under:- "SR,317-B-25; The Government may for reasons to be recorded in writing relax all or any of the provisions of the Rules in this Division in the case of any officer or residence or class of officers or type of residences." Vi concessional period of four months. Further retention thereafter for a maximum period of four months on medical grounds as per rules has.already been availed by him.

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

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

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

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

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

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

26. Fundamental rights are guaranteed to the citizens of India under part III of the Constitution of India. In (1996) 2 SCC •549 ClimiieU Shiffli & Ors. Vs, State of U,P. & Aiir., the Supreme Court held that the right to shelter is a fundamental right available to every citizen of India. It was also read into the right to life guaranteed under Article 21 of the Constitution tomake it more meaningful. In para 8 of the judgment, the court succinctly set out the nature of the right and the mandate on the state as foliows:- "8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only vvhen he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Jive mmraiiteed in any civilised society iiimlies the to food, water, decent environment, education, medical care and shelter. These are basic human rights Imown to anv civilised societv. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised- without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. Tt is borne Ims bmoituiiities to arow phvsicallv, mentally, intellectuallv and spirituallv. Rialit therefore, includes adequate liviim siiace and decent structures, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads, etc. so as to have easy access to his daily avocation. The riffht to shelter, therefore, does. not mean a mere rmht to a roof over one's head but right to ive and develop as a human to It as an essential remiisite as a tmidamental rialiL As I 2010:DHC:12458 economic budnetina. In a democratic society as a member of the organised civil community one should have uemmneiit shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and. equality of status is to enable him to develop himself into a culture being. Want ofdecent residence, therefore, -frustrates the ven^ object of the Constitutional animation ofright economic ' justice, fundamental right residence, dimiiUr of person and right to live •. itself(Emphasis supplied) The Apex Court unequivocally declared that all the civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention, 1948 or under the Constitution of India cannot be exercised without, inter alia; the basic human right of shelter.

27. The right to shelter as an essential concomitant, of the fundamental right to life was also pressed by the pavement dwellers in the pronouncement reported at (1997) 11 SCC 121 Ahniedabad Municipal Corporation Vs, Nawab..Klian Gulab •Khan & Ors. The Municipal Corporation of• Ahmedabad was complaining against encroachment and occupation of pavements in the urban limits of Ahmedabad by the pavement dwellers (respondents therein). The court was concerned with the plea of violation of fundamental rights of the pavement dwellers under Article 19(l)(e) and 21 of the Constitution of India and their entitlement to•shelter. The summation by the Court,placing rehance on the several precedents on the subject throws light on the veiy question which has been raised herein

I. 2010:DHC:12458 also. Mter reiterating tlie principles in earlier judgments, the observations of the Supreme Court read.as follows;- "13. Socio-economic justice, equality of status aiid of opportunity and- dignity of person to foster the fraternity among, all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its preainble. Articles 39 and 38 enjoins the State to provide facilities, and opportunities. Articles M and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income aiid endeavour to eliminate inequalities in status. In that case^ it was held that to bring the Dalits and the Tribes into the mainstream of national life, the State was to provide facilities and opportunities as it is the duty of the State to fulfil the basic human and constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders, v. Naravan IC-iimalal Totame AIR 1990 SC 630, another Bench of three Judges had held that basic needs of man have traditionallv been accepted to be three-food, clothina and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the ricrht to food, the right to clothing, the right to decent environment and a reasonable. accommodation to live in; The difference between the need of an. animal and a human being for shelter has to be kept in view. For an animal, it is the bare protection of the body; for a human being, it has to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual. The surplus urban-vacant land was directed to be used to provide shelter to the poor. In Olga Tellis case (supra), the Constitution Bench had considered the right to dwell on pavements, or in slums by the indigent and the same was accepted as a part of right to life enshrined under Article 21: their ejectment from the place nearer to their, work would be deprivation of their right to livelihood."

XXX XXX XXX It would, therefore, be clear that though no person has a right to encroach and erect structures of otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a,public purpose, the State has the Constitutional duty to provide adequate 2010:DHC:12458 wealth and resources for settlement of life and erection of shelter over their heads to make the ricrht to life meaningful, effective and fruitful. Right to livelihood is meaningful because no one can live without means of this living, that is the means of livelihood. The deprivation of the right to life in that context would not only denude life of effective content and meaningfulness but it would make life miserable and impossible to live. indmeiit weaker sections of the society in XXX XXX XXX

25. Article 19fl)(e) of the Constitution provides to all citizens fundamental ricrhts to travel, settle down and reside in anv part of the Bharat and none have right to prevent their settlement. Any attempt in that behalf would be unconstitutional. The Preamble of the Constitution assures integritT of the nation, fraternitv amoncr the people and dignity of the person to make India an integrated and united Bharat iii a socialist secular democratic republic. The policv or principle should be such that evervone should have the Opportunity to migrate and settle down in anv part- of Bharat where opportunity for employment or better living conditions are available and. therefore. it would be unconstitutional and impermissible to prevent the persons from migrating and settling at places where they find their livelihood and means of avocation. It is to remember that the Preamble is the arch of the Constitution which accords to every citizen of India socio-economic and political justice; liberties, equality of opportunity and of status, fraternity, dignity of person in an integrated Bharat. The fundamental rights and the directive principles and the premrible being trinity of the Constitution, the right to residence and to settle in anv part of the country is assured to every citizen. • The right to life enshrined under Article 21 has been interpreted by this Court to. include meaningful right to life and not merely animal existence as elaborated in several judgments of this Court including Hawkers' case, Olga Tellis case and the latest Chameli Singh's case and host of other decisions which need no reiteration. Suffice'it to state that right to life' would include •right to live witlT human dignity. As held earher. ricrht to re.slripnrp is one of the minimal human rights as fundamental right. Due to want of facilities and 2010:DHC:12458 opportunities, tlie rigllt to residence and /O settlement is an illusion to the rural and urban poor. Articles 38. 39 and 46 mandate the state,.as its economic policy, to provide socio-economic, justice to minimise inequalities in income and in opportunities and status. It positively charges the State to distribute its largess to the vyeaker sections of the society envisaged in Article 46 to make socio-economic justice a.reality, meaningful and fruitful so as to make the life yyorth living with dignity of person and egualitT of status and to constantly improve excellence." (Emphasis supplied)

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

29. It is obvious that the present petitions raise an important aspect of right to shelter Of these displaced persons under Article 19(l)(e) and which has been declared by the Supreme Court to be an integral and essential part also of their right to life, guaranteed as a fundamental right under Article 21 of the Constitution of India. In the several binding judicial precedents noticed hereinabove, the Supreme Court has further held that suchviolation may also adversely impact and violate the right to occupation and profession under Article 19(l)(g) of the. Constitution df India which is the other basic human right of the petitioners inextricably involved in the instant case. Internationnl—perspective r- convGntinn'^- norms: mn'dinrr Eimcwles and their avDlicahility to vresmu. c.r^r

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

31. This court has had occasion to examine the source of the right to housing, shelter and protection against forcible evictions by residents of Jhuggi Jhopri clusters (hutments) in the judgments dated 14- July,. 2006 in W.P.(C) No. 5007/2002 •reported at MANV/DE/9327/2006 entitled Jaffdisb ws. DDA and also the pronouncement of this court dated 11'^'" February, 2010 in W,P,(C) No. 8904/2009 Sudaiim Siimli &.Ors. rg Government of Delhi & Aiir. with connected writ petitions. In this regard, in these judgments as well, reference was made to the following international & regional covenants and ' ' • •. declarations on the right to adequate housing which declare that provision.. of housing as well as the protection against forced eviction is the unequivocal responsibility of the state (i)The Universal Declaration of Human RiaMs, 1948 makes the following statement: "Article 25.[1] ' Everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, v\ridowhood, old age or other lack.of livelihood in circumstances beyond his control."

(ii) The International Convention on the Elimination ofAll forms of Racial Discrimination, 1965 contains the following: "Article 5 In compliance with, the fundamental obhgations laid down in article 2 of this Convention, States Parties undertake to 2010:DHC:12458 in all its forms arid to guarantee tlie right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyirient of the following rights: " xxxx

(d) Other civil, rights, in particular

N. XXXX

(iii) The right to housing-."

(iii). Article VI of the Internatioiml Covenaiiit mi Ecoimiiiic, Socml mid Cultural Rmlits adopted by the General Assembly of the United Nations on the 16''" of December, 1961[6] further codifies the right to. housing and states thus; "Aiticle 11 "1. The State Parties to the present Covenant, recognize, the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing-, and to the continuous improvement of living conditions India has signed and ratified this covenant and is thus a state party to it. '.

(iv) Part II of the Declaration ofSocia.[1] Progress mid

Develomnent. 1969 states thus:. "Social progress and development shall aim at the continuous raising of the material and spiritual-standards of living of all members of society, with respect for and in comphance with human rights and fundamental freedoms through the attainment of the following main goals: xxxx Article lOff) The -provision for all, particularly persons in, low-income groups and large famihes, of adequate housing and community services.

(v) Pait III Section (8) of the Vancouver Declaration ofHuman Settlemp^nts, 1^7(gmandates as foUows: 1,. "Ill Guidelines for Action xxxx

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

(vi) Article 8.[1] of the Declaration on the Mailt to

Develomnent. 1986 also states -that: "Article. 8 1- States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter-aha, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income...."

(vii) The above objectives were also reinforced the declaration made in the International Year of the Homeless in 1987 by the United Nations when it spoke of this right of all individuals in the following terms: "a real home...one which provides protection \A \ from the elements; has access, to safe water ^ and sanitation; provides for secure tenure and, personal safety; and within easy reach of centres for employment, education and health care; and is at a cost which people and society can afford."

(viii) On the issue of forcible evictions, the GeaeraJ •Comment 7 dated 20th May 1997 on the right to adequate housing (Article 11.[1] of the Covenant: Forced Evictions) by the 'Commission on Ecoiioiiiic, Social and. Cultural Ritrhts is important and is extracted hereafter:.. "(1) In its General Comment No. 4, (1991), the Committee observed that all persons should possess a degree of securitv of tenure which guarantees legal protection against forced eviction, harassment and other threats. It concluded that forced evictions are prima facie incompatible with the requirement of the Covenant (2) The international comniunity has long recognized that the issue of forced evictions is a serious one. In 1976, the United Nations Conference on Human Settlements noted that. special attention should be paid to "undertaking major clearance operations should take place only when conservation- and. rehabilitation are not feasible and relocation measures are made. In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the General Assembly in its resolution 43/181, the "fundamental obhgation (of Government) to protect and improve houses and neighborhoods, rather than damage or destroy them" was recognized. Agenda 21 stated that "people should be protected by law against unfair eviction from their homes or land". In the Habitat Agenda Governments committed themselves to "protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, taldng human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suitable solutions are provided". The Commission on Human Rights has also indicated that "forced evictions are a gross violation of human rights "

(x) Annexurerl of the

Rapporteur on Adecfuate Hbusiim lays down some basic principles and guidelines on development based evictions and displacement. It provides the guidelines on relocation of the displaced which read as follows: "52. The Government and miv other parties compensation and' sufficient alternative accommodation,. or restitution when so immediately upon ^except in cases of force majeure. At a minimum, regardless of tile circumstances and without discrimination, competent authorities shall ensure that evicted persons or. groups, especiallv those who are unable to provide for themselves, have safe and secure access to: (a) essential food, potable water and sanitation; (b) basic shelter and housing--, (c) appropriate clothing; (d) essential medical services; (e) livelihood sources; (f) fodder for livestock and access to common property resources previously depended upon; and (g) education for children and childcare facilities. States should also ensure that members of the same extended familv or • communitv are riot separated as a result of evictions. XKX.

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

(c) affordable

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

(d) No affected persons, groups or communities shall suffer detriment as far as their human' ridhts are concerned, nor shall their right to the continuous improvement of living conditions be subject to infringement. This applies eguallv to host communities at resettlement sites, and affected persons, groups and communities subjected to forced eviction: xxxx

57. RehaMlitation policies' must include programmes designed for women and marginalized and vulnerable groups to ensure their equal enjoyment of the humatii rialits to Iiousinu, food, water, health, education, work,. security of the person, security of the borne, freedom from cruel, inhuman or degrading treatment, and freedom of movement.

58. Persons^ groups or communities. affected'by an eviction should not suffer. detriment to their human riffhts, including their right to the progressive realization of the right to adequate liousing. This applies ecfually to host communities at relocation sites." (Emphasis' supplied) 3,2. The UN Committee on Economic, Social Cultural Rights in -May,,200S,. in its Concluding I Obseivations on India, called upon the Indian government particularly to address the issue of rising homelessness, including the need for disaggregated data on the homeless. In the observations relating to India as a state party, it specifically stated as follows:- "30. The Committee is concerned about the lack of a natioiial housing policv. which particularlv addresses the needs of the disadvantaged and marrrinalizerl individuals and groups, including those living in slums who are reportedly growing in numbers, by providing them with low-cost housing units. The Committee also regrets that sufficient information was not provided bv the State partv on the extent and causes of homelessness in the State party.. The Committee also requests the State party to provide, in its next periodic report, detailed information on homelessness in the State party and the extent of inadequate housing, disaggregated bv. inter aha, sex. caste, ethnicitv and religion.

70. The Committee urges the State party to address the acute shortage of affordable housing by adopting a national strategy and a plan of action on adequate 2010:DHC:12458 housing units, especially for the disadvantaged and low income groups, including those living in slums. In this connection, the Committee reminds the State mrty ofits oMiajatioiis under Article 11 of the Cowenaiit and refers to its General Comment No. 4 on the 's bousing lyolicies. The also requests the State, uarty to Brovide. in its next periodic report,, detailed ' information on liomelessness hi tlw State paitv and the' extent of sex,_ caste, etbmcitv and relimon.

71. The Committee recommends that the State party take immediate measures to effectively displacement and forced evictions, and ensure that persons.evicted from their homes.and lands / offered alternative accommodation, in accordance with the guidelines adopted by the Committee in its General Comment No. 7 on forced evictions (1997). The Committee also recommends that, prior to implementing development and urban renewal projects, sporting events and other similar activities, the State partv should undertake open, participatory and meaningful consultations with affected residents and communities. In this connection, the Committee draws the attention of the State party, to its General Comment No. 4 on the right to adequate housing (1991) and further requests the State party to provide information in its next periodic report on progress • achieved in this regard, including disaggregated statistics relating to forced evictions." 33.. The above narration would show that the international covenants and instruments refer to basic human rights. All of them have recognized right to shelter as a basic human rightessential for survival. It needs no elaboration that the concept of human rights emanates from the ancient doctrine. of natural rights- based on natural law. The experiences of the Post- Second World War which brought forth the International Charters and Conventions leading to the emergence of the present day human rights. The first documented use of the expression 'human rights' is to be found in the Charter of the Vy^ United Nations, adopted on 25"^^ June, 1945. This Charter was of course not binding but stated that it was only an ideal to be later developed. By adopting the Universal Declaration of Human Rights in December, 1948 the UN General Assembly took the concrete step of formalising the.various human rights. This was followed by the International Bill of Rights. The deficiency in the binding nature of the declaration was removed by the U.N. General Assembly by adopting on 16"' December, 1966, firstly, the Covenant on Civil and Political Rights which formulated legally enforceable rights of the individual and, secondly,- the Covenant on Economic. Social and Cultural Rights which was addressed to the states to implement them by legislation: These covenants came into force in December, 1976 after ratification by the requisite number of member states. India is a partv to both these covenants which were adopted on 16'^'' December. 1966 and bind this countrv.,34. The above narration shows that homelessness may result from several causes including natural disasters; development projects, economic deprivation as well as human rights violations. International law terms persons who stand displaced from their countries as "refugees" and recognizes that they are entitled to protection from being returned to places where their lives or freedom could be. threatened.

35. At the same time there are growing instances internationally of persons and even communities who are compelled to,abandon homes on account of threat of imminent violence or stand forcibly evicted by use of violence and compelled to relocate to other places even within their own 2010:DHC:12458 country. They cannot return to their homes within the • boundaries of their own countries in the face of the continuing threat of persecution and danger to their properties. Such persons caiiiiot.be termed as "refugees" as described by learned counsels for the petitioners. In international parlance, persons compelled to relocate within the boundaries of their own countries stand- categorised as- "Iiiterimlly Displaced Person^' (abbreviated as 'IDFs hereafter).

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

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

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

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

40. So far as housing of IDPs is concerned, these guidelines contain the following important provisions "Principle 3 1-National authorities have the priTnarv dutv and responsibilitv to provide protection and humanitarian assistance to internally displaced persons within thpir iurisdiction.

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

2. The authorities, undertaldncr such displacement shall ensure, to the greatest practicable extent, that proper accommodation i.s provided to the displaced persons, that such displacements are effected in 2010:DHC:12458 satisfactory conditions of safety nutrition, health and hygiene, and that members of the same family are not separated.

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

2. In particular, internally displaced persons have the right, to move freely in aiid out of camps or other settlements. ' ' XXX Internally displaced persons have: (a) The right to seek safety in another, ijait of (b)The right to leave their country; (c)The right to seek asylum in another country; and {d)The riabt to be protected against forcible return to or resettlement in any place where their life, safety., liberty and/or health would be XXX Principle 18 •. I.AII internally displaced, persons have the rialit to an adequate standard of livincr:

2. At tlie minimum. regardless of the circumstances, - and witlioist • discrimination, competent authorities shall urovide internally displaced persons with and ensure safe access (a)Essential food and potable water;. {h)Basic shelter and housing-- (c)Appropriate clothing; and (d)Essential medical services and sanitation.

3. Special efforts should be made to ensure'the full participation of women in the. planning' and distribution of these basic supplies. XXX Principle 2.[1]

1. No one shall be arbitrarily deprived of property and possessions.

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

3. Propertv and possessions left- behind bv internally displacedpersons slmiild be protected against destruction and arbitrary and, illegal appropriation, occupation or use, XXX Principle 25 l,Tlie primary.duty and responsibility for providing- humanitarian assistance to.internally displaced persons lies with national authorities, XXX •. Section V, Principles relating to return, resettlement and reinteffration Principle 28

1. Competent authorities have the primary duty and responsibility 'to establish conditions, as well as provide the means, which allow Mternally displaced persons. - to return 2010:DHC:12458 resettle voluntarily- in ' another part of coMiitiw. • Sucli authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.

2. Special efforts should be made to ensure the full particiipation of internally displaced persons in the planning and management of their return or resettlement and reintecrration.

1. Internally displaced persons who have returned to their homes or places of habitual residence or shall not be -discriminated anainst as a result of their having been displaced. They shall have the right to participate fully and equally in pubhc affairs at all levels and have equal access to public services.

2. Competent autliorities internally disMaced jjersons to recover, to the or were dispossessed of such prouertv and possessions- is not siossiMe, persons in omainum appropriate ' or another form of just

41. The United Nations Charter thus establishes the' obligation upon member nations to promote the key liuman rights. The Universal Declaration of Human Rights, 1948 though not a treaty,,but is a declaration published by the General Assembly of the United Nations and is the primary document which is concerned with the listing of the rights. It affirmatively lays down the common standards of achievement for aU peoples and all natioiis. It consequently has an effecfwhich is similar to a treaty. Further every nation who is a signatory to the aforenoticed International Covenant on iEconomic, Social and Cultural Rights ('ICESR') must refrain from acts which would 2010:DHC:12458 the ICESCR estabhshes that "the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights as well as his civil and political rights"., • Article 11 of this covenant emphasises that the stateparties recognises the right of every person to an adequate standard of living which include adequate housing and continued improvement of living conditions. The right for people to be free from want is the very foundation of the ICESCR.

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

43. The aforenoticed international conventions which exist as well as the Guideline Principles for IDPs therefore recognize that shelter and housing is a basic human right of every individual which is the bare minimum to be provided to internally displaced persons. These Principles also emphasise all rights of displaced persons and caste a mandate on the national authorities concerned of their primary duty and responsibility to provide protection and humanitarian assistance to internally displaced 2010:DHC:12458 safety as well as protection against forcible return and resettlement in a place where their life, safety, liberty and or health would be ensured. The Guiding Principles have been evolved after an elaborate consultative process.

44. Before proceeding any further, it is necessary to examine the bindingness of the above principles on the courts, in India. The extent, manner and applicability of International Conventions and treaties in interpretation and expansion of rights, have been authoritatively considered and are well settled by a catena of binding precedents of the Supreme Court. In the authoritative pronouncement reported at JT2008(7)SC11, 2008(9)SCALE69 Eiitertainmeiit Network (India) Ltd. Vs, Super Cassette Industries Ltd. the Supreme Court traced the evolution'• of the jurisprudence on the issue under consideration in paras 48 to 54 which may usefully be extracted and read as foliows:- "48. Beginning from the decision of this Court in Kesavananda Bharati v. State of Kerala MANU/SC/0445/1973: AIR 1973 SC 1461. there is indeed no dearth of case laws where this Court has applied the norms of international laws and in particular the international covenants to interpret domestic legislation. In all these cases, this Court has categorically held that there would-be no inconsistency in the use of international norms to the domestic legislation, if by reason thereof the tenor of domestic law •is not breached and in case of any such inconsistencv. the domestic legislation should prevail. In Taqdish Saran and Qrs. v. Union of India MANU/SC/0067/1980: (1980) 2 SCR 831. it was observed: "It is also well-settled that interpretation of the Constitution. of India or statutes would change from time to time. Beiiia a living is onQoing and with the passage time, law must change. New rights 2010:DHC:12458.r no statutory law in iimv have to be found out within the constitutional scheme. ^ Horizons of constitutional law are expanding."

49. In the aforementioned judginent, this Court referred to a large number of decisions for the purpose of treaties and conventions. Yet again in Indian Handicrafts Emporium and Ors. v. Union.of India MANU/SC/0640/20Q[3]: AIR 2003 SC 3240. this Court considered the Convention on International Trade in Endangered Species (CITIES) and apphed the principles of purposive constructions as also not only the Directive Principles as contained in Part. IV of the Constitution But also Fundamental Duties as contained in Part IVA thereof. Referring to Motor General Traders and Anr. v. State of Audhra Pradesh and Ors. MANU/SC/0293/1983: fl986) 1 SCR 594, Rattan Arva and Ors. v. State of Tamil Nadu and' Anr. MANU/SC/0550/1986 •: (1986) 2 SCR 596:and Synthetics and Chemicals Ltd. and Ors. v. State of U.P. And Ors. MANU/SC/0595/1989.: AIR 1990 SC 1927, this Court held: "There cannot be, any doubt whatsoever that a law which was at one • point of time was constitutional may be rendered unconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi,.recently a similar view has been taken in Kapila Hingorani v. State of Bihar (supra) and John Vallamattom and Anr.

V. Union of India (supra)."

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

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

(2004) 9 see 512, wherein this Court observed that interpretative changes, if any, must,.thus be scenario. Liverpool also referred, for the proposition that the chanainej global scenario should be liejp>t in 'mind having- regard 'to the fact that there does not exist any mimarv' act touching the subject M^as however opined that the same could not mean that it restricted the mrisdiction of

51. Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed bv the Supreme Court in' a plethora of cases inter aha The State of West Bengal MANU/SC/0038/2004: (2004).[2] 66 ITR 721(SC). In Pratap Sinali v.- State of Tliarkliand and Anr. MANU/SG/0075/2005: 2005 CriLl 3091 wherein this; Court directed to' interpret the Juvenile Justice Act in light of the Constitutional as well as International Law operating in the field. (See also Centrotrade Minerals and Metal Inc. v. Hindustan Copper Liinited,MANU/SC/8146/2006:.(2006) 11 SCC 245: State of Punjab; State of Punjab and Anr. v. Devans. Modern Brewaries Ltd. and Anr. MANU/SC/0961/2003: (2004). 11 SCC 26 and Anuj Garg and Ors. v. Hotel Association of India and Ors. MANU/SC/8173/2007: AIR 2008 SC 663;

52. However,: applicability Of the International. "Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptabilitv of the Conventions in question. If the country is a- sianatorv thereto subject of course to the provisions of the domestic law, the International Covenants can be utiliy.Rd WhRrp International Conventions are frRTPRrl upon undertaking a great deal of exercise upon givinq an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries. by laving down the minimum norm,.as for eyample, the ILO Conventions, the couirt would freely avail the benefits thereof. Those Conventions to which India • may hot be a signatory, but have been followed bv way of enactment of new Parliamentary statute, or amendment to the existing enactment, recourse to International Convention is permissible.

53. This kind of stance is.reflected from the decisions in PUCL v-. Union of India MANU/.SC/0274/1997: AIR 1997 SC 1203, John Vallamattom v. Union of India MANU/SC/0480/2003:. AIR 2003 SC. 2902, Madhu ECishwar v. State of Bihar MANU/SC/0468/1996: AIR 1'996 SC 1864, Kubic Darusz v. Union of India MANU/SC/0426/1990: 1990 CriLI 796, Chameli Singh v. State of Swaminathaswami Thirukoil MANU/SC/0441/1996 (1996) 1 SCR 1068, Apparel Export Promotion Council

V. A.K. Chopra MANU/SC/0014/1999: (1999) 1. LLT. M[2] SC. Kapila Hingorani v. State of Bihar MANU/SC/Q4Q3/2003: f20Q[3]) III LLT 31 SC. State of Pumab and Anr. v. Devans Modern Breweries and Anr. MANU/SC/0961/2Q03: (2004). 11 SCC 26 and Liberpool &. London S.P. & I Asson. Ltd. v. M.V. Sea ^Success I MANU/SC/0951/2003: (2004) 9 SCC 512."

45. With regard to the apphcation of International conventions and treaties in India, the Supreme Court laid the following principles in para 47 of the judgment "111 interpreting the domestic/municipal laws, this court has extensively made, use of International law inter alia for the following purposes: (i) ' As a means of interpretation;

(ii) Justification or fortification of a stance taken;

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

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

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

(vi) To fill gaps in law."

46. In AIR 1997 SC 301T Vislmka. and others Vs. State of Rajasthaii and Others, the court was concerned with a.writ petition filed for preservation and enforcement of the right to gender equality and fundamental rights of working women under Articles ^9 and 21 of the Constitution of India, Section 2 of Protection of Human Rights Act, 1993 and the entitlements of worldng wonlen under the Convention on Elimination of All Forms of Discrimination Against.Women. There was no specific domestic legislation on the subject. With regard to. the importance and applicabihty of international conventions and treaties, the court held as follows - ' "7. In the absence. of domestic law occupying the field, to formulate effective measures to check the evil of sexual, harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with., human dignity in Articles 14,15, 19(l)fcr) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Anv International Convention not inconsistenf with the fundamental rierhts and in harmonv with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is imphcit from Article 51(c) and. the enabling power of the Parliament to enact laws for 2010:DHC:12458 norms by virtue of Article 253 read with Entry 14 of tlie Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the ' executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the Parliament enacts legislation to expressly provide measures needed to curb the evil.".

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

48. In (2003) 6 SCC 1 Kapila Hinfforani Vs. State of Bihar, the Apex court stressed on the importance of respecting International Treaties and Conventions while interpreting the Constitution and domestic law so as tO effectuate the recognised rights and observed as follows- "47. It is also well-settled that a statute should be interpreted in the light of the International Treaties and Conventions. In Chairman, Railway Board and Ors. V. Mrs. • Chandrima Das and ' Ors. MANU/SC/0046/2OOP: 2000CriLJ1473 this Court stated the law thus:- "24. The International Covenants' and Declarations as adopted bv the United Nations have'to be respected bv all signatory States and the meaning given to the above words in those Declarations' and Covenants have to be such. as would help in effective 2010:DHC:12458 affpMcaMlity of the -.Universal Declaratioii

49. As noticed above, right to residence and to settle in any part of the country is assured to every citizen as a fundamental right under Article 19(l)(e) of the Constitution of India. (Ref:

19.97 (11) see 121 Alimedabad Municipal Corporation vs. 'Nawab Khan Gulab Khan & Ors.) The right to shelter springs from this right and has been considered to be an integral part for a meaningful enjoyment of right,to life under Article 21 of the Constitution of India. (Ref.: 1995 SuppL 3 8CC 456: AIR 1996 SC 114 U.P. Avas Evam Vikas P'arislmd & Anr. Vs. Friends Co-operative Housing Society Ltd. & Aiir.)

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

51. It is noteworthy that there is no specific law, rule, regulation or instrument providing for treatment of IDPs or setting out any minimum standards for their protection, rehabilitation and relocation. The Guiding Principles on Internal Displacement reiterate the veiy right to shelter constitutionally guaranteed and recognized as a basic human 2010:DHC:12458 consolidate and fill gaps in national and internatioiial law relating to siicli, displaced persons. They also provide a valuable benchmark for what must be ensured as part of the basic human rights security of such persons and would guide consideration of the rights of the present petitioners. 52., It has been observed by the. Supreme Court in (2003) 6 see 1 • KapiJa Mliifforajii Vs. State of Bihar _ that indisputably, the state parties to the International Covenant on. Economic, Social & Cultural Rights were to take appropriate steps to ensure realisation of this thought. So far as the present case is concerned, this covenant specifically states the right of ' everyone to an adequate standard of living including housing.

53. The rules laid down and right recognised in the aforenoticed conventions as well as the Guiding Principles would bind the present adjudication also in the light of the following principle' laid down in. Eiitertaimmeiit Network "54 Furthermore, as regards the, question where the protection of human rights, environment, ecology " and other second generation or third-generation rights is involved, the courts should not be loathe to, refer to the International Conventions.",54. The petitioners are members of the larger group from their community which stands forcibly evicted from one part of the country rendering them homeless and resourceless. They are without resources at the place of their relocation and are faced with the threat of forcible eviction from their accommodation..By way of these writ petitions,, the petitioners seek protection and enforcement of their fundamental right to life, which includes, shelter. The international conventions 2010:DHC:12458 recognise shelter. as a basic human right. The Guiding Principles reiterate the same rights and responsibilities of the state so far as IDPs are concerned. Consideration of the petitioners' rights, therefore, would necessarily involve ensuring the objectives and declarations made in the above international instruments especially those endorsed by India reiterated by the. Guiding Principles for IDPs. The Protection ofHuman Rights Act. 1993

55. The issue in the instant case has another dimension to it which is of importance..In discharge of the obhgation under the international covenants, India promulgated an ordinance appointing commissions and courts for the protection of human rights. This ordinance was replaced by the Huiimii RmMs Act, 1993 was, promulgated on 8.'^'' January, 1994 to provide for the constitution of the national and state human rights commissions and human rights courts for better protection and for matters connected therewith or incidental thereto. 'Human riahtsf are defined in clause (d) of sub-section (1) of Section 2 as the 'rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India'. The expression 'international covenants is also defined to include the two covenants adopted by the General Assembly on.16"' December, 1966 and such other covenants and conventions adopted by the General Assembly of the United Nations as the Central Government may specify by notification. The enforc.eability of the several rights recognised under the International Covenants, therefore, stands recognized by thi legislation in India. The said Act was made by the Parhament having regard- to the changing social realities and growing Concern in India about issues relating to human rights with a view of bringing about greater accountability, and transparency in enforcement of the laws of the nation.

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

57. The above discussion would show that state courts are bound to use international human rights covenants, which also stand incorporated into the Protection of Human Rights Act, 1993, as a pillar of support for the rights recognised thereby and to ensure the requisite assistance as well as access to shelter as a positive right so that the bare minimum for those in need is enabled. The petitioners assert such rights in the (Eviciioii of Uimutlmrised •Occupants) Act,' 1971 wMcli would have. the effect of defeating the constitutional

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

59. On the other hand, the petitioners have, urged that even in their wildest dreams, they had never envisaged a situation when they would not be in a position to reside in their own homes after retirement. On accoiint of grave threats to their, safety, f ") the petitioners have been prevented from returning to their •homes. The petitioriers are not residing in Delhi on account of a desire not to return to the valley or to perpetuate residence in Delhi, but for reasons totallybeyond control ofthese petitioners. Ihe writ petitioners have stated that their homes in Kashmir. have either been destroyed or rendered inaccessible to them piimarily on account of the inability of the respondents to piotect the same. They do not have adequate.means to acquire any property in Delhi. It is the petitioners contention that the - • pension admissible to tliem does not enable them to afford rented accommodation,or acquire their own houses. The, petitioners have submitted that the respondents have permitted similarly situated persons to continue in the allotted accommodation. Reliance is also placed on orders of the Supreme.Court, this Court and the. Central Admihistratiye Tribunal also •prohibiting eviction of similarly' placed persons from allotted accommodation. In this background, the petitioners assail also the failure to consider their requests to the respondents to.exercise discretion vested in them under the Allotment of Government Residences_ (General Pool in Delhi) Rules, 1963 to permit the petitioners to continue to occupy the allotted premises. It is urged that this refusal was discriminatory, arbitrary and has failed to consider the relevant circumstances.

60. It is contended by the petitioners that in these facts, they are not in unauthorized occupation of the quarters and that the respondents could not have taken recourse to proceedings under the Public Premises Act, 1971 which would have the effect of ousting them and their families from their only residence without taking steps of making provision of reasonable alternatives. The contention is that the entire action taken by the respondents and implementation of the threat of forcible eviction would result in violation- of the fundamental and basic human rights of the petitioners and, therefore, is unconstitutional, without jurisdiction and completely illegal. Bindin a judicial ureceden ts

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

62. It appears that.other state government employees awaiting allotment of official accommodation, could not get the same for the reason that these retired persons continued to occupy the official accommodation. They filed a writ petition before the High Coiirt of Jammu and Kashmir complaining agaiiist the failure of the' State Government to jDrovide them with official,accommodation. Alearned Single Judge of the High Court of jammu & Kashmir had ahowed the writ petition and passed a judgment on 24"'January, 1997 directing eviction of all those persons who had ceased to be government servants for any reason but were still occupying the state accommodation. The learned Single Judge had also directed that the persons who were not in. government service but required Government accommodation because of security reasons, should be tried to be accommodated within one complex so that their security is ensured, reducing the burden on the, state which would have to incur lesser amount for their security.

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

64. Mr. R.k. Handoo, learned counsel for the petitioners has referred to certain orders.passed by the Supreme Court of India in the said petition. On 26"' Aucrust. 1997. the Supreme Court had required counsel representing the State of Jammu & Kashmir to ascertain from the State Government as to whether 2010:DHC:12458 the petitioners can be put back in to the houses owned by then in the Kashmir Valley and to ensure protection of their persons as also their properties.. 65... The case was thereafter taken up by the Supreme Court on 28"' Tanuarv, 1998 when the Supreme Court took notice of the massacre of Kashmiri Pandits in the Kashmir Valley which had taken place a few days prior to the hearing and recorded the following order. •This order is being made in the backdrop of a massacre, of Kashmiri Pandits which took place a couple of days ago in the Kashmir valley. Adjourned sine die. •Stay to continue. The petition to be activated on mentioning bv counsel for the State of Tammu and Kashmir as and when the State is in a. position to assure return of the petitioners to their respective, homes in the Kashmir vall.ev and ensure their safety and personal property." (Underlining supplied)

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

67. An affidavit dated 6"' October, 2009 was thereafter filed by the Chief Secretary in the case. The appeal was disposed of by a final judgment.on 27"' October, 2009 which stands reported at 2009 (1) AD SC 253 J.L. Koul & Others State of Jammu & Kaslmiir. So far as rehabilitation of the Kashmiri 2010:DHC:12458 migrants is concerned, the affidavit dated 6"^ October, 2009 lias been considered in para 7 of the judgment in the following terms;-. "7. In pursuance of the said order, the Chief Secretary has filed the affidavit dated 6.10.2009. In the said affidavit it has been disclosed that out of 54 appellants 23 had already handed over the ' Government accommodation to the State Department and'the same had been allotted to the Government employees. Only 31 migrants/retirees are presently in occupation of the Government accommodation. It has further been clarified that there are 37,280 families who have been registered for the relief including the accommodation and out of them only 5,000 families could be. provided the accommodation in the camps. However, it had been undertaken that the Government would provide such facilities to all Kashmiri migrants till thev are residing at the present places. The relevant part of the affidavit reads as under "5. That it is further submitted that Govt. formulated a-'package for return and rehabilitation of Kashmiri Migrants which involves an outlay of Rs. 1618.40 crores. This is for the first time since 1990, that Govt. of India has come wa with a jpoMcv for Return and ReJmMlitatioii of Kashmiri Migrants. The policy has been framed on-the recommendations of a constituted bv Govt. ofIndia to suggest various confidence building measures in the J&K State. While framing the policy various needs of the migrants have been taken into c^bnsideration, such as housing, education, revivar of Agriculture, and Horticulture land, employment etc. The details of the package announced on 5'^ June, 2008 are reproduced as,under:i) Return and Rehabilitation Package of Kashmiri Migrants: The total package involves an outlay of Rs.1618.40 crore. The components of the package are as under: (a) i) Assistance (a) Rs.7.[5] lac for fully or partially damaged house left behind by migrant.'"

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

(iii) Rs.7.5. lac for purchase/construction of a house in Group Housing Societies for those who have sold their properties during the period after 1989 and before the enactment of "The J&K Migrant Immovable Property (Presei-vation, Protection and Restraint of Distress Sale) Act, 1997" on 30.5.1997. (b) Transit Accommodation: Construction of transit accommodation at three sites (a) Rs.20.00 crore each for total Rs.60.00 crore. Alternatively, • Rs.1.00 lac per family towards rental and.incidental expenses to those families who may not be accommodated in transit accommodation.

(c) Continuation of Cash Rehef to Migrants:

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

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

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

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

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

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

12. That it may be further submitted that the State Cabinet vide its decision No. 130/11/2009 dated 1.10.2009 has approved the package for Return and Rehabilitation of Kashmiri Migrants to Kashmir Vallev. However, with regard to 2010:DHC:12458 implementation of employment scheme a Committee has also been ordered to be constituted to go into the legal and other implications for maldng recruitments of the migrant youth against various posts before, the said scheme is formally notified. The Committee has to submit its report within a period of two weeks.,

13. That the State Government is keen to rehabilitate the Kashmiri Migrants in the Kashmir valley and shall provide every type of assistance for their return and rehabilitation. The iprocess for the rehabilitation in valley has been initiated in Tune 2008 after Govt. of Mdia aiinoniiced (Emphasis supplied) The Supreme Court observed that this case had remained pending before it for twelve years and that the court had been insisting upon the state to frame the scheme of rehabilitation of the appellants and particularly for providing them accommodation. Placing reliance. on the above affidavits/undertakings given by the respondents, the Court. further observed that the authorities have framed the rehabilitation scheme and for implementation of the same, it has got sufficient resources also. In this background, the Supreme Court issued the following directions:-

• been victim of terrorism arir] tili the State is able accommodation to 31 amellaiits-retirees/oustees. are in tJielr possession on this date"

68. It is noteworthy that the only difference bptween the petitioners before the Supreme Court and those who are before this court is, that the petition before, the Supreme Court 2010:DHC:12458 related to persons who. were retired employees of the State Government while the present petitioners are all employees of the Central Government and its departments. However, the j petitioners before the Supreme Com''t. and the present writ petitioners are' identically placed victims of the militancy and the rights asserted by both sets of the petitioners and issues raised by them are identical.

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

70. Reference requires to be also made to a judgment passed on 2"'^ August. 2006 in. FTP fCJ No,11742/2005 entitled P.K. Hmidoo 1^, Estate Officer & Aiir. by this c.ourt which is reported at 132 (2006) DLT 672. Shri P.K. Handoo was also a Kashmiri Pandit and part of the minority community in the Kashmir valley. -An employee •with the InteUigence Bureau of the Government of.India, he had retired from the service on 31®' July, 2004 whereafter efforts to cancel his allotment and evict him by way of proceedings under the Pubhc Premises Act, 1971 had been undertaken. Sh. P.K.Handoo filed the writ petition assailing this action.and the eviction order dated 30''^ June, 2005 passed against him in the proceedings by the estate officer and also sought issuance of •a writ of mandamus against the 2010:DHC:12458 which had been, allotted to him till such time that th Government made it possible for him to return to Srinagar or till suitable alternative accommodation is provided to him in Delhi.

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

12. In the result, I allow the writ Enetition in case of Koul Vs. State of Tmiimu and Kashmir Respondents are directed to allow the petitioner to retain Quarter No.D-845. Mandii: Mara. New Delhi, pending decision in SLP © No.7369/2007, subiect to payment, of normal licence fees or in the alternative the respondents mav provide alternative accommodation to the petitioner and his family anywhere in Delhi till the pendency of the above said writ petition before the Hon'ble Supreme Court. No costs." '.. (underlining supj)lied)

72. Learned counsels for the petitioners have also painstaldngly pointed out the earlier similar directions made as back as on 3(f'' Deceniberj 2002 by the Central Administrative Tribunal in OA No,2378/2002 entitled Tei Kislian Vs, Union ofIndia '& Ors. on the same issue which have also been noticed and reiterated in the PJC Haiidoo (supra) judgment. It is noteworthy that Shri Tej Kishan, a Kashmiri displaced person had made- a request for retention of Government accommodation beyond superannuation which was turned down by the Government by an order dated 13"' August,.2002. This refusal was assailed by way of proceedings before the Central Administrative Tribunal. In these proceedings, the Tribunal had placed rehance on a letter dated 2""^ July, 2002 written to the Delhi. Development Authority ('DDA') by the Ministry of Urban Development & Poverty Alleviation on the subject of preferential allotment of DDA flats to J&K.migrant Central Government employees who had retired or were retiring. The tribunal noted the letter in the following terms "12. By referring to the letter dated 2.7.20)02 written to the PDA by the Ministry of Urban Develoismeiit & Paverty Allevation. it is stated that this has been decided as under:-. " But the.situation prevailing in T&K is such that does not permit the safe return of these retired/retiring Central Governnlent' employees who. can settle after retirement at their native place. Keeping this background in view, a decision has been taken to allot about 100 MIG and LIG Flats in Dwarka to such retired/retiring T&K migrant Central Government eniplovees so that the Central Pool Accommodation could be got vacated from them. DDA is, therefore, requested to formulate a housing scheme for retired/retiring J&K migrant Central Government employees and send a draft thereof to this Ministiy within a fortnight for approval."

73. In the above. judgment, the Central Administrative Tribunal also obsei^ed on violation of Aiticle 14 by the respondents holding. that "the state shall not by its act discriminate as between two individuals who are similarly 2010:DHC:12458 circumstanced." These findings are also noticed in para 10 of the judgment in P.K. Handoo's case (supra).

74. I have-had occasion to deal with a similar issue in a judgment dated the 11"^ of ABril. 2008 rendered in W.P,(C} No,1065/2007 MJC Koul Vs, Union ofIndia & Ors. In this case also the petitioner was a retired Kashmiri employee of the Central Government who could not return to Kashmir for the same reason as the petitioners. Proceedings for his eviction were also initiated by the respondents under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. During the course of hearing on 7"" April, 2008, a query was put to counsel for the respondent in this. case in respect of the position with regard to the safety and security of the Kashmiri Pandits dn the valley. The position was revealed to be the same ' ! as before. In para 14 of the said judgment, consequently it was recorded that "the respondents are not in a position to ensure their safety and protection and as such, in case they are displaced from the accommodation which they are occupying-, they^wili not be in a position to return to their respective homes in the ICashmir valley.. ^ Consequently, the following directions were issued:- 15,. In this backuround, the "respondents certainly cannot be permitted to maintain the order of cancellation of' the petitioner's allotment or to enforce the eviction order which ' been passed against the petitioner or to evict the petitioners from the premises which thev are

16. There is no doubt, that the petitioner was making payment of the normal hcence fee while he was in service. Interest of justice and equity merit. that the petitioner be required, to make payment of the licence fee on the same basis till such time as the 2010:DHC:12458 property of the petitioner in their home State or are in a position to provide similar alternative, accommodation to the petitioner or the petitioner. acquires anv other residential property in Delhi.

17. In view of the above discussion, this writ petition is.allowed. The respondents are directed to permit the, petitioner to continue to occupy the Quarter No.N- 299,. Sector-8, R.K. Puram, New Delhi subject to payihent of the same licence fee as was being paid by the petitioner on the date when he retired. This order shall continue to operate, till such time as the respondents provide similar alternative accommodation to the petitioner, or the petitioner acquires any residential property in his name. This writ petition is allowed in the above terms.. There shall be no order as to costs." It is noteworthy that these orders have not been assailed and have attained finality.

75. It is urged by learned counsel for the respondents that failure of the Government of India to challenge the orders.passed in fVPfCJ No.11742/2005 entitled.

P.ICHaiidoo v. Estate Officer & Anr.; WP (C), No.1065/2007 entitled M.K.Kaul V. UOI & Ors. and the other cases are immaterial and would have no bearing on the instant case. Rehance is placed on the pronouncement of the Apex Court reported at (200&) 11 see 709 eol. B.J. AMmra Vs. Government of India & Ors. in support of this submission. 76.. It is noteworthy that eoL B.J. Aklmra's case (supra) 1elated to efforts of the Government to recover payment of excess amount as pension. Certain orders stood passed in the writ petition filed by other employees who had raised a similar challenge. These orders had not been challenged by the Government. In this background, the petitioner had.contended that the Government was estopped from recovering the amount 2010:DHC:12458 from liim in view of those orders which had attained finahty. The Apex Court rejected the contentions and held that the Union of India would not be barred from resisting the subsequent writ petitions involving similar issues or challenging subsequent. judgments of the High Court realising the seriousness or magnitude of the issues or financial implications. The position would be different only if it is established that the Government had adopted a pick and choose method,only to avoid relief to the petitioner on account of mala fide or ulterior \ motives. It was held that principles of estoppel, res judicata, legitimate expectation or fairness in action were not attracted on the facts of the case. - No,plea of violation of fundamental rights was involved in Aklmra's case (supra). There can be no comparison, with the facts of AMmra's case (supra) with.those of the present cases.

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

78. Mr. Jatan Singh, learned couiisel appearing for the respondent No.l has contended that the decision to cancel the J 2010:DHC:12458 allotments and to initiate the proceedings under the Publi Premises Act, 1971 as well as the orders of'the Estate Officer and the judgments of the Appellate Court are in terms of statutory provisions cannot be assailed by way of these writ petitions. Reliance is placed on the pronouncements of this court reported at {1995)

II AD Delhi 293 Union of India Vs. S.M. '• • AffffRrwBl & 31 others- 2000 (55) DRJ 57 BMm Singh Vs, Union of India. & Anr.-, AIR 1977 Delhi 268 Hardwari Lai Verma Vs. The Estate Offi(per& Ors. in support.

79. This objection of the respondents ignores well settled first principles qf la.w. Merely because the impugned action is taken and order passed in purported exercise of statutoiy power would not render it immune fromjudicial scrutiny. The question as to manner in which such action and orders viz-a-viz their, effect on fundamental rights will be examined, stands answered,,. by the Supreme Court in AIR 1978 SC 597; (1978) 1 SCC 248 Maaeka. Gandhi Vs Union ofIndia and others. In this-,case, ^ the court had made the following observations with regard to the impact of action taken,under provisions of the Passport Act:- "Now, if the effect of State action on a fundamental right is direct. and inevitable, then a fortiorari, it must be presumed to have been intended by the authority taking the action and hence., this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether Section 10 (3) (c ) ofthe impugned order made under it is violative of Article 19 (l)(a) or (g)."

80. The Supreme Court further ruled that it is not necessary to assail the constitutional validity of the statutory provisions -7^ under which tlie impugned order is made and tliat tlie court ^ would still be able to examine as to whether the order made in • exercise of statutory power was invalid for the reason tliat it contravened a fundamental right holding as follows "But that does not mean that an order made under Section 10(3)(c) ) may not violate Article 19(1)(a) or (g). While discussing the constitutional validity of the.impunged order impounding the passport of the petitioner, we, shall have occasion to point out that even where a statutory provision empowering an authoritv to take action is constitutionallv valid, action taken under it may offend a fundamental ricrht.and in that event, thoucrh " the statutory provision is valid, the action may be void. It is true, and we must straightaway conceded that merely because a statutory provision empowering an authority to take action in specified circumstances is constitutionally valid as not being in conflict with any fundamental rights/it does not give a carte blanche to the, authority to make any order it likes so long as it is within the parameters laid down by the provision. Every offer made under a statutory provision must not only be within the authority conferred by the statutory provision, but must also stand the test of funriamRiital rights. Parliament cannot be presumed to have intended to confer power on an authority to act in contravention of fundamental rights, It is a basic constitutional assumption underlying every statutory grant of power that the authoritv on which the power is conferred, should act constitutionallv and not in violation of any ' fundamental 'right. This would seem to be elementary and no authority is necessary in support of it."

81. In the above case, the Supreme Court held that even though the impugned order was within the terms of the relevant section, "it must nevertheless, not contravene any fundamental rights and if it does, it would be void". So far as the present case is concerned, even it were to be held that the action taken by the respondents was permissible under the statutory provisions, but if it violated or adversely impacted fundamental rights of the petitioners, it would have to be voided. Thi$ objection to the maintainability of 2010:DHC:12458 the present writ petitions is therefore misconceived and is rejected.

82. An examination of- the order of cancellation of the allotment requires to be undertaken. The only rules relied upon in support of the power to permit occupancy of the quarters are the Allotment of Goveriiment Residences- (General Pool in Delhi) Rules, 1963. Cancellation of the allotment has been effected under these very rules.

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

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

1971.

85. For the purposes of the instant case, the expression "unauthorized occupation" as defined under section 2(g) of the Act, 1971 has to be construed. • Section 2(g) of the said statute reads as follows "2(g) "unauthorised occupation". in relation to any pubhc premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the pubhc premises after the authority, (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever." o

86. So far as the proceedings for. eviction under the Piibhc Pi-emises Act 1971 are concerned. Sections 4 and 5 thereof deserve to be also considered. The relevant extract reads thus:- • "4. Issue of notice to show cause affaiust order of eviction. - (1) If the estate officer is of opinion that any persons are in uhautliorised occupation of any public premises and that they should be evicted, the Estate Officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made. (2) The notice shall- (a) specify the grounds on which the order of eviction is proposed to be made; and (b) require all persons concerned, that is to say, all persons who are, or may be in occupation of, or claim interest in, the public premises,-

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

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

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

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

88. The statutory definition of the expression "unauthorised occupation" in Section 2(g) of the Public Premises Act, 1971 thus requires judicial interpretation for the purposes of the present cases. In this regard the oft quoted words of Justice P.N. Bhagwati in (1983) 1 SCC 228 ' National Textile Workers^ Union vs. P.R. Ramala-isiiimn would be apposite when it was stated as follows "We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still: it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand^along with the tree, it wiU either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind." 2010:DHC:12458 fv?'

89. While interpreting statutory provisions, the Supreme Court has also approved and apphed in a number of cases, the principle of "updating construction" while interpreting statutes as set out by the leading jurist Francis Bennion in his commentaries titled 'Statutory Interpretation', 2""^ Edn,, pg 617. {Ref: (2003) 4 'SCC 601 State of Maharashtra vs. Dr. Praful D. Desai / (1997) 5 SCC 482 CIT Vs. Poddar Cement Pvt. Ltd.; (2000) 8 SCC 740 Basavaraj R. Patil ws. State of Karnataka}, These principles have been noticed in (1996) 2 SCC 428 State vs. S.J. Cboudhary read as follows "(2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that 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 treated as always speaking. This means in its application on. any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law." At page (618-19), of the report, it is further noted that:- "In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be apphed at any future time in such a way as to give-effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters. Just as the US Constitution is regarded as 'a living Constitution', so an ongoing British Act is regarded as 'a living Act'. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future, and allow for it in the wording." It was, therefore, observed that an ongoing,Act is taken to be always speaking stating that 2010:DHC:12458 f" "t-'.. "All enactment of former days is thus to be read today, in the hght of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials." Thus, the courts have over the period of time applied this principle to interpret various terms and phrases including "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive"; "telegraph" to include "telephone"; "banker's book" to include "microfilm"; "to take note" to include "use of tape recorder"; "documents" to include "data bases"; "handwriting" was construed to include "tyiDewriting" {Ref: 1996(2) SCC 428 State Vs, SJ,Clmudlmiy}. Tlotice in writing" in Section 138 of the I Negotiable Instruments Act, were construed to include a "notice by fax". {Ref: (1999) 4 SCC 567. SIL Import USA 1^. Exim Aides Silk Exporters}. This principle of legal interpretation would squarely apply to the construction to be placed on the provisions of Pubhc Premises Act, 1971.

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

91. The state authorities, assessed the threat perception and danger to the lives to some of the petitioners who were bodily evacuated from their homes in the valley. The transfer of the 2010:DHC:12458 petitioners, (or that of the persons on whom they were dependent), to Delhi, which preceded the allotment of quarters, was thus compelled by the inability of the respondents to protect and ensure the right to life of the petitioners. The same was certainly involuntary. The allotments were a result of the extreme necessity recognised and,adjudged by the respondents themselves. It is also noteworthy that'those fleeing to safety had no opportunity to secure or salvage their properties.

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

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

94. The petitioners have been at the receiving end of the threats not only for the reason that they were from another "K community but also largely because they represented the face k? the Central Government in the valley as its employees. 95., It is important to note that the scheme noticed in the aforenoticed affidavit dated 6'^ October, 2009 (filed by the Chief Secretary before the Supreme Court in J.IC Koiil vs. Union of India (supm)-, talks of 'Return and Rehabilitation'. It does not even advert to resettlement. No reference is made to the safety or security of the migrants who agreed or attempted to return. Interestingly, there is reference to 37280 Kashmiri families who had registered for the relief including accommodation out of which oiit of which only 5000 families have been provided accommodation. An undertaking stood given to the Supreme Court that the government'would provide such facilities to all the Kashmiri migrants till they are residing at the present places. Persons as the petitioners are not even covered under those, who are dealt with in this affidavit.

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

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

98. The alternatives propounded and the schemes pertaining to Kashmiri migrants noticed in the judgments of the Supreme Court and of this court remain in the realm of proposals and O 2010:DHC:12458 fairness. No alternative at all has been made, available to or offered to the petitioners-even during the hearings before this court, in the hglit of the well settled principles laid in the above precedents, the inevitable conclusion is that the respondents have not taken the relevant factors into consideration and have acted arbitrarily and unreasonably. The above discussion clearly manifests that the respondents have not acted fairly in discharge of their positive obligation and have not sufficiently engaged with the problems and difficulties of the petitioners.

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

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

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

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

103. The respondents have also' placed reliance on the pronouncement of this court reported at AIR 1977 Delhi 26H Hardwari Lai Verma Vs. The Estate- Officer & Ors. wherein 2010:DHC:12458 mel-ely a licencee. There can be no dispute at all with this proposition. However, Hardwari LaiVerma had also not raised any question of violation of basic hunian and constitutional rights as the petitioners have in the present case. No fact situation as in the present case was involved.

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

105. Within the larger group of the IDPs from Kashmir, the petitioners form a special class and are retired government personnel. When the petitioners were forced to relocate, they received government accommodation not only as an incidence oftheir service, but also on account oftheir compulsive eviction from their homes. They have also not been able to get any benefit of any ofthe schemes framed by the government which ✓ clearly admit the special needs and entitlement of these displaced ipersons.

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

108. •The respondents have themselves recognised the entitlement of the.petitioners to appropriate residence, when they made the allotments. The only reason advanced by the respondents for their decision to cancel the' allotment and to evict the.petitioners is that they have retired. The relevant I " 1 and the effect of such eviction has not even been remotely considered. No examination of the issue of whether the spirit or intendment of the avowed pohcy of rehabilitation been achieved, or not, has been undertaken.,109. The situation which was to be addressed in these cases was truly exceptional. This aspect has also not even remotely entered the, respondents consideration. In fact the decisions of the respondents amply illustrates that the respondents are not rational, reasonable or consistent in their decision making. The construction placed by the respondents in the cases of these IDPs on the permissibility of the occupancy of the quarters under the Allotment Rules as relateable solely to their service results in violation of constitutional guarantees and was clearly and completely unwarranted; It needs no further elaboration that the rights which the petitioners are complaining breach of, are the rights guaranteed to thein under Article 19(l)(e) and •Article 2l of the Constitution of India. For these reasons, the interpretation of the expression "unauthorised occupation" by the respondents as well as in the impugned orders is bhnkered, restricted and impermissible in the given facts. The expression "authority for such occupation" appearing in Section 2(g) must take within its ambit the constitutional violations which result from the restricted working of the statutory provisions by the respondents.. It was incumbent upon all-concerned with the decision making to take into consideration the most material developments in the home state of the petitioners and the fact that the State was unable to guarantee protection of life and and inability of tlie resettlement/rehabilitation effort and the absence.of any alternative to the petitioners for the purposes of construction of the expression "authority for such occupation. No legal interpretation couldbe acceptable which does not take into its consideration these relevant facts and circumstances. The petitioners are occupying the accommodation because of the failure,of the respondents to discharge the constitutional mandate and their public law obligations of protecting the right to life and liberty of the petitioners. As noticed above, the authority to occupy the quarters so far as the petitioners were concerned was derived from the constitutional guarantees. Such occupancy cannot be deemed or held to be "unauthorised" by any measure.

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

I. i' "' • • •

court in JdC Koul vs. Union ofIndia, the order of the Central' Administrative Tribunal in Tej Kishmi Vs, Uiiioii of India & Ors. and implemented the same. The respondents are aware of the prevalent situation.

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

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

115. The sole reason given by the Estate Officer for passing the impugned ord,ers of eviction is that the allotments in favour of 2010:DHC:12458 that tliey were not in unauthorized occupation of the instant I premises. None of the other contentions of the.petitioner have been even mentioned let alone considered.

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

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

118. The appellate orders notice the petitioners' contention that the petitioners have made several representations to various authorities for allowing them. to retain the accommodation on the ground that they belong to Kashmir and it was not' feasible to return in view of the communal riots and terrorists movements. These requests have not been acceded to. The impugned appellate orders record that the petitioners have challenged the eviction orders on the ground that the Estate Officer had failed to consider the fact that they were Kashmiri migrants and cannot return to Srinagar till normalcy is restored. It was also a ground of appeal that the Estate Officer had not considered the orders in SLP No. 1369/1997 by 2010:DHC:12458 same footings. The challenge had also been laid to the oider ofthe estate officer on grounds of arbitrariness and violation of principles of natural justice..

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

120. As a result/ such working of the Public Premises Act by the respondents, the petitioners are being threatened with eviction from the only shelters that they Imow, without any alternative being available to them.

121. The respondents are bound to act in a manner which is compatible with the constitutional rights of the petitioner while this court has to take into account and require the legislation to be read compatibly with such rights. The object is to ensure that the actions and orders must be such as to avert or rectify any violation of such basic rights-.

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

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

124. The letter from Ministry of Urban Development to Delhi Development Authority placed on record in Tej Kislimi vs. UOI (suprat) before the Central Administrative Tribunal Calso relied upon in 132 (2006) DLT 672 P.K. Haiidoo vs. Estate Officer indicates engagement of the authorities with this issue and the.decision of the Central Government directing that schemes be framed by the Delhi Development Authority as well for maldng preferential allotments of accommodation to Kashmiri migrants. J.L. Koul (supra) filed in tlie Supreme Court of India, also expresses the same concern as has been expressed in the above Guiding Principles on Internal Displacement. These actions unequivocally manifest the respondents' awareness about the positive obligation imposed upon them to ensure that the persons displaced from Kashmir are required to be resettled and/or rehabilitated. There is admission of responsibility and culpability. The working of the measures, however, reflects that the steps which have been taken are inadequate and hopelessly insufficient. Even in the prolonged. hearing before this court, the respondents could place no alternative so far as the petitioners were concerned.

125. In AIR 20W SC 1476 State of West Bengal vs. Community for Protection.of Democratic Rights, 'Bengal& Ors., the Supreme Court has also held that the court was required to weigh the impact of a particular government scheme, statute, or action on the fundamental rights of those effected by the government scheme, statute- or action. In case any statute or action abrogates or abridges such rights, it would be violative of the basic structure/doctrine of the Constitution. For this reason as well, any application or enforcement of statutory provisions, rules,, regulations that impacts or impinges fundamental rights has to be struck down.

126. In [2004] EWCA Civ 540 Secretary of State for the Home Department vs, Wayoka Limbuela, Binyam Tefera Tesema & YusifAdam, the House of Lords has prescribed a test to determine whether a statutory scheme or a government 2010:DHC:12458 that when a reasonable evaluation of all relevant facts an^ circumstances shows that a government policy would subject •petitioners to an immediate and serious deprivation of the basic necessities of life, then the court may properly grant rehef. It was also held that the state would be liable for both action and inaction as long as the action or inaction results in a serious deprivation of rights or human dignity.

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

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

129. The proceedings as well as the impugned decisions and oiders have completely failed to take into consideration the material issue of the impact of the proceedings and the orders • m the only shelters Imown to them without any alternative. The impugned cancellation of allotments, the orders of eviction passed by the Estate Officer and the aforenoticed orders dismissing the appeals of the petitioners are in the teeth ofthe constitutional guarantees to the petitioners under Articles 19(l)(e)(g) and 21 and therefore not sustainable.

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

131. The proportionality of the impact on the fundamental right involved by working of the statutory provision as "against the objective of the concerned-statute is another important test for adjudicating upon the legality, of the interference with the right which would have a bearing on the present case. In a pronouncement of the House of Lords reported at (2007) UKIIL 11:(2007) 4 All ER 15 Huaiiff Vs, Secretairy ofState for the Home Department, the decision maldng role and function of the appellate immigration authorities in the context of the Human Rights Act, 1998 and the Immigration and Asylum Act, 1999 was in issue. The House examined the scope of reviews by the prescribed authorities. The private parties complained of violation of their rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 which provides as mider:- "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is. in accordance with the law and is iiecessary in a demqcratic society in the interests of national security, public safety or'the economic well-being of the country, for the prevention of' disorder or crime, for the protection of health or morals, or for the protection of • the rights and freedoms of Others." The consideration by the House of Lords oh the principle of proportionality of the impact of the interference oil the right vis-a vis, the legitimate end in view is important and reads as follows XXX xxxx In most cases where the applicants complain of a violation of their art 8 rights, in a case where the impugned decision is authorised by law for a legitimate' object and the interference (or lack of respect) is of sufficient seriousness to engage the operation or art 8. the crucial guestion is likely to be end' soimbt to be achieved. Proportionality is a subject of such importance as to reguire separate treatment.. PROPORTIONALITY In de Freitas Vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:... •'Whether: (i) the legislative objective is sufficiently important to justify limiting a fuudrimpntFil right; [ii) the measures designed to meet the legislative objective are rationally cormected to it: and

(iii) the means used to impair the'right or freedom are

SO more than is necessary to. accomplish the objective." This formulation has been widely cited and. apphed. But counsel for the apphcants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986[1] 1 SCR 103,. from which this approach to proportionality derives. This feature is (at 139) the, need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home i)ept [2004] UKH^L 27 at [17]- [20], [26], [27], [60],[77],.,[2004] 2 All ER 821 at.[17]- • [20], [26], [27], [60], [77], [2004] 2 AC 368 when, having.suggested a series of questions which an adjudicator would have to ask and answer in deciding a convention question, it said (at [20]) that the judgment on proportionality - 'must always involve the striMng of a -fair balance between, the rights of the individual and the interests of the community which is inherent in the whole of the convention. The severity and consequences of the interference will call for careful • assessment at this stage.' If, as counsel suggest, insufficient attention has ]Deen paid to this requirement, the failure should be made good. xxxx"

132. Having regard to the drastic violation which results from the impugned action and orders, it has to be. held that,the decision of the authorities to cancel the allotments and proceed for eviction as well as the impugned orders against the petitioners are not in accordance with law even on reasonable assessment of proportionality viz-a-viz the object of eviction of unauthorised occupants of the Public Premises Act, 1971. ViolatioMi ofArticle 14 of the Constitution

133. The petitioners have also complained that the respondents had discretion to perinit the petitioners to continue to occupy the premises.under' SR 317-B-25 of the It is •contended that the respondents were bound to consider the matter on the relevant consideration of the right to shelter of the petitioners which was involved and cannot premise their action on extraneous and impermissible reasons or considerations. Mr. B.L. Wali, learned counsel for petitioners has urged that the failure to exercise discretion in favour of the petitioners is in fact not only in violation of the constitutional obligations of the respondents, but is arbitrary and unreasonable.

134. Shri P.K. Kaul, (writ petitioner in W.P.(C) No.l5239/2Q04) had earlier filed WP (C) No.6551/2003, submitting that the respondents had arbitrarily failed to consider his request for regularization despite having Imowledge of the special circumstances of the case. Mr.B.L.Wali, learned counsel for this petitioner has placed the order which was passed on 15"^ October, 2003 in the earlier writ petition, which directed the respondents to consider the question of regularization of allotment in favour of the petitioner in view of the special circumstances. It was directed that the petition including its enclosures should also be considered while disposing of the petitioner's representation.

135. Despite these orders, the writ petitioner has contended 2010:DHC:12458 date. He has, therefore, filed the writ petition being WP (C) No.15239/2004 challenging the notice issued by the Estate Officer under section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1972 to him.

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

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

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

139. Allotment of government accommodations are effected under the provisions of Allotment ofGovernment Residences (General Pool in Delhi) Rules, 1963. Reference is made to SR 317-B-25 thereof which empowers the Government to relax 2010:DHC:12458. the provisions of these rules and deserves to be considered in \ extenso. The same reads as follows-- "SH. 317-B~25: The Government may for reasons to be recorded in writing relax all or any of the provisions of the Rules in this Division in the case ofany officer or residence or class ofofficers or type ofresidences."

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

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

142. On the issue of exercise of discretion, in the judgment reported at AIR 1980 SC 1622^ iWunicipa.! Council Ratlam Vardiclmn & Ors,, the court was concerned with the public power of the Magistrate under Section 133 of the Code of, Criminal Procedure. The court observed that the 'public power of the magistrate under the Code' is 'a public duty to the members of the public who are victims of nuisance and so he shall exercise it when the jurisdictional facts are present as here'. So far. as exercise of discretion is Concerned, it was observed as follows

9. So the guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public dutv to the 2010:DHC:12458 members of the pubhc who are victims of tlie miisance, and so he shall exercise it when the jurisdictional facts • are present as here. "AUpower is a trust-tlmt we are accountable for its exercise-Xh^X., from the people, and for the people, all springs, and all must exist." Discretiou becomes a duty when the beneficiary brings home the circumstances for its benimi exercise.. '. xxxx"

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

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

145. In view of the gross abuse of the discretion vested in the respondents, in para 57 at page' 463 of the report, it was held that a case to permit minimal out of turn allotments was made out which has to be regulated and transparency has to be maintained in such allotments. The court considered private citizens who could be allotted out of the discretionary quota which included accredited journalists and news cameraman, politicL^. parties, artistes, social worker etc and other organizations as well. In SMv Sagrar Tiwari vs. UOI (supra),, it was held that the discretion conferred has to be exercised to advance the purpose to subserve which the power exists and that even the' Minister, if he/she be the repository of discretionaiy power, cannot claim that either there is no discretion in the matter or unfettered discretion. The Supreme Court held that exercise of 2010:DHC:12458 suoh discretion was an exception and deprecated the above action of the Govermnent making the same into a norm. Noteworthy, is the Government's stand in this case that vesting of some discretion in the matter of allotment of quarters was essential. In this background, the contention of the respondents that exercise of discretion was prohibited by the Supreme Court in this case is totally misconceived. 146.. On the other hand, in the instant cases, the petitioners have assailed the arbitrariness in exercise of the discretion admittedly conferred on the respondents and the failure to permit continuation of occupation of the allotted accommodation in the exceptionable circumstances and conditions in which they were placed. The pronouncement of the Supreme Court, in fact, assists the petitioners as the court recognized existence of and permissible exercise of. discretion while deprecating its abuse..

147. The standards on which an authority would exercise discretion were settled by the Supreme Court in the judgment reported at (1979) 3 'SCC 489 entitled Raiimim Dayaraiii Slietty vs. Internatioiml Airport-Authority of India & as follows • "10. XXX It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitraiy power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence. of the rule of law and its bare minimal requirement. And to the application of this principle it makes not difference whether the exercise of the power involves affection of some right or denial of some XXX

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

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

149. A similar argument of the respondent that the allottees were prohibited from permitting retention of accommodation beyond the permissible period after retirement was rejected by the Central Administrative Tribunal in the aforenoticed decision rendered on 30"' December^ 2002 in O.A, No,2378/2002 Sliri TeJ Klsliaii Vs, Union ofIndia & Ors. The Tribunal had examined the petitioner's challenge to the respondent's action on the plea of discrimination premised on the conduct of the respondents in exercising discretion in favour of some similarly situated migrants and not in favour of the petitioners and' observed as follows:- "31. Respondents have not disuuted tlmt Kashmir migrants who were identically and emmllv situated,. on their request have been allowed to •retain the accommodation till the normalcy comes back in State of, T&K and till they are returned, ensured further the, safety of their 'persons and property and, reconstruction of their houses. For these three Kashmir migrants, who are placed in 2010:DHC:12458 merits in their case,. mvmi a aeiiersil amJication. Applicant who is also a TCR^hTnir- ininrant havina no place to live in Delhi a large • fRiTiilv to support, is on a similar footing with those who were allowed to retain the accommodation. In order to satisfy the regnireniehts of law, the respondents have to establish that there has been an inteUigible differentia Rnrl which has a reasonable nexus With the obiect sought to be achieved. No grounds whatsoever have forthcome which can be treated as reasonable or relevant for to mete out the aforesaid reguirements of law and to pass dual test which will render the decision in consonance with the Article 14 of the Constitution of India. In absence of anv reasons and the fact that the applicant is egual in air respects should not have been meted out a differential treatment.- This in my considered view, is unsustainable being violative of Article 14 of the Constitution of India."

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

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

33. I also find that the Government bv the.letter dated 2•7.2002 in order to hold the retirees or retiral 2010:DHC:12458 not get back to J&K due to prevailing situation, a. • decision lias been taken to allot about 100 MIG/LIG Flats and for which PDA lias been requested to formulate the - Housing Scheme for which a draft has been sent to the Ministry for approval. The aforesaid decision also incorporated that these, houses are being allotted to Kashmir migrants retiring or retired so that the general pool accommodation got vacated from them. This on a literal consideration connotes that the Kashmir migrants who are in retention of general pool accommodation on retirement, are to be evicted onlv after the PDA formulate a Housing Scheiiie to allot MIG/LIG flats to them.

34. In mv considered view, the review undertaken,bv the respondents in compliance of the earlier directions of this Court has not taken note of letter dated 2.7.2002 as well as the directions in Koul's case supra. If a post-facto approval can be accorded by CCA and approval by the Ministry for Urban Pevelop.ment denving the same to the applicant who is similarly situated and is egual in all respects, smacks of arbitrariness and hostile discrimination which, as per various pronouncements of the Apex Court, cannot be countenanced and would be an antithesis to rule of laws doctrine of equality. 35.". In the result and for the forgoing reasons, OA is partly allowed. Impugned order dated 13.8.2002 is quashed and set aside. Respondents are directed to allow the applicant to retain the Government accommodation pending decision in SLP (Civil) • No.7369/97. No costs." (underlining supplied) This decision of the Central Administrative Tribunal has attained finality and also stands implemented.

151. Before this court the respondents have not even attempted to show how the present petitioners can be distinguished from either Sliri Tej Kisliaii (supra) or from the instances noticed in para 31 of the judgment of the Tribunal. On the contrary, as set out above, in answer to grounds. (A) and (B) of the writ, petition noticed in para 22 above, the respondents have stated that these contentions of the petitioner are a "matter of record".

152. There is no dispute also to the fact that the orders in J.LJComI P.K.Haadoo, MJCKoul TeJ Kislmii (supra) have attained finality and these persons continue to occupy the allotted accommodation despite superannuation.

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

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

155. In ground L of WP(C ) no.15329/2004, Shri P.K.Koul, the petitioner has stated that the respondents have allotted the Government accommodation, not only serving Government employees, but to various other categories of employees who have nothing to do with Government service. It has been stated that "employees working in the office of the political parties, journahsts, freedom fighters, artists etc." are also allotted general pool accommodation. This averment is not 2010:DHC:12458 allotment of the quarter is made as per the- rules and policy laid down by the Government.

156. It is trite that residuary rules are interpreted and worked to empower authorities permitting exceptions from applicability of the rule to remove hardships (Ref; 1993 Supp.[3] SCC 515 (para 33) Syed KlmlM Rizvi vs. UOI.& Ors; (1996) 8 SCC 762 ^BI & Ors. vs. KasMimtii Klier & Ors.; (198U) 4 SCC 179 Asbok Kr. Uppal and Ors. vs. State ofJ&K).

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

158. No explanation is rendered or reason given by the respondents for the rejection of identical requests of some of the petitioners or for not favourably considering the said requests of the petitioners. The failure to even consider these requests despite the specific directions in P.K. Koul's previous writ petition reflect highhandedness, unreasonableness and arbitrariness on the part of the respondents. The respondents have, granted approval to similarly situated persons. Denial thereof to,the equally jDlaced petitioners certainly tantamounts to hostile discrimination against them which is impermissible and as observed above 'an antithesis to the equality clause'. The action of the respondents in not favourably considering the petitioners' representations; in cancelling the allotments of the 2010:DHC:12458 petitioners and proceeding against them under the Pubhc Premises Act, 1971 as well as the impugned orders are; therefore, not sustainable also being in violation of Articles 14 and 16 of the Constitution. Clmimre in Policy

159. There, is yet another important side to the claim asserted by the petitioners which requires consideration. The declared policy of the state with regard to the IDPs from Kashmir is concerned with their rehabilitation. ^Forcible eviction from their current residences without an alternative is not even remotely suggested in these policies. The same is evident from the affidavit placed, before the Supreme Court in J.L.Koul vs. State ofJmmnu & Kashmir (supra) and the letter dated. 2°'' July, 2002 placed before the Central Administrative Tribunal m' Tej Kislieii 1^, Union of India- (supra). The decision taken to cancel the petitioners' allotments and to initiate proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 without making available of alternative shelter clearly suggests a drastic change in the government policy so far as these IDPs are concerned.

160. In a recent judgment of the Supreme Court reported at MANU/SC/047.6/2010 Sindliu Education Society & Anr Vs, The Chief Secretaiy, Govt. of NCT of Delhi & Ors., the Supreme Court observed that framing a policy is the domain of the Government. The framework of the pohcy and the working of such Government Pohcy has essentially to be done.within the framework of the Constitution & the laws. As and when Government changes its pohcy decision, it is expected to give 2010:DHC:12458 valid reasons thereof and act in larger interest of the entire community rather^than a section. In para 66 of the judgment, the Supreme Court held that: It,is a settled canon of administrative jurisprudence that state action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the state, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent nonapplication of mind would give colour of arbitrariness to the state action." The position in the cases in hand is no different. The state does not again even suggest a reasonable explanation or valid reason for the change from the rehabilitative policy to the decision to evict the petitioners and thereby threatening them with imminent homelessness,161. The respondents would have the right to change its policy upon change in circumstances. (Ref: (1998) 1 SCR 1120 State of Punjab & Ors. vs. Mam LmMmya Begga •& Ors.). No such change is pointed out in the present cases. The decision to treat the petitioners as unauthorized occupants without their resettlement is clearly not premised a change of policy upon application of mind and therefore not sustainable. Responsibility of the. Central Government

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

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

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

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

166. The question which begs an answer is having failed to ensure the life and safety of the petitioners or to protect their 2010:DHC:12458 obligation, duty and responsibility of the respondents qua the petitioners.,

167. It is an admitted fact that the petitioners were all employed by the Central Government of its agencies. In order to avoid compromising the security issues of these persons, a more detailed analysis of the factual matrix is. not being undertaken. However, the present cases set out instances of extreme trauma faced by the petitioners and their family members as well as the continued threat to their life and property. In one of the cases, the petitioner is a destitute lady who was working in the Ministry of Information & Broadcasting of the Government of India used to give live performances and conducted programs on behalf of the Central Government in remote villages in the valley as well as on the electronic media maldng her face known to the militants. Her troupe was attacked in 1987 while performing at Khamabal in District Anantiiag and they had to flee for their life. In this background, she was transferred to Delhi, and was allotted the premises by the respondents. The petitioner points out that in mid-1990, the Songs and Drama Division Office in.Srinagar, Kashmir was blown up and the entire staff transferred to Delhi. Not only the house of her in-laws but her ancestral/parental rental house also stands burnt down and she has no place to return to in Kashmir. Even after she was evacuated from the valley, her brother received threats to her life by way of communications advising the petitioner to desist from participa.ting or performing in programs in support of the Government. This communication 2010:DHC:12458 husband decades ago and she stands abandoned by the State with none to assist to her. The writ petition states that she is getting a meager amount of ^4500/- as pension, insufficient even to sustain her, let alone acquiring rights in any property.

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

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

170. In 1995 (2) SLR 72 P.G. Gupta vs. State ofGujarat XhQ Supreme Court had further declared that it was the duty of the 2010:DHC:12458 easily accessible to the poor, and that such principles have been expressly embodied in our Constitution to ensure socio economic -democracy so that everyone has a right to life, liberty and security of the person. In this context, in para 11 of the pronouncement, the court expressly laid down the imperative duty of the state to provide permanent housing, accommodation to the poor in the housing schemes undertaken by it, or its instrumentality and observed as follows:- "11. As stated earlier, the right to residence and settlement is a fundamental right under Article l,9(l)(e) and it is a facet of inseparable meaningful right to life under ' Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policv of planned develoTPment of the country and has undertaken massive housing schemes. As its part, allotment of houses was adopted, as is enjoined by Arts. 38, 39 and 46, Preamble and 19(l)(e), facilities and opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is. therefore, liimerative of the State to provide ImusinQ accommodation to the uoorm the housing schemes undertaken bv it or its instrumentalities within their economic means so that they could make the payment of. the price in easv instalments, and have permanent settlement and residence assured under Article 19(l)(e) and 21 of the Constitution, xxxxx"

171. The Supreme Court has repeatedly reiterated the well settled position that the state has the constitutional duty to provide adequate facilities, and opportunities, to all including the disadvantaged and the displaced, by distributing its wealth and resources for the settlement of life and erection of shelter over their heads. The court has emphasized the constitutional right of every citizen to migrate and settle in any part of India for 2010:DHC:12458 better employment opportunity and it would be the duty of the state to provide right to shelter to the disadvantaged in society. (Ref: Alimedabaid Municipal Corporation. Vs. Nawab Klian Gulab Khan & Ors, (supra).

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

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

174. Unlike the Chakmas, the petitioners are IDPs who complain of violation of the same rights and seek redressal thereof. However, the extreme situation of hardship and 2010:DHC:12458 difficulties being, faced by the petitioners and other persons similarly placed is no. different. The State Government has been unable to protect or secure the life and property of the petitioners. The Central Government has not been able to adequately address the several issues which have been raised. Many of the petitioners had been physically evacuated by the Central Government in extreme situations. All the petitioners were employees of the Government in Delhi and have superannuated in Delhi. The attempt being made at present is also by the Central Government at Delhi is to forcibly, evict the petitioners by taking recourse to statutory provisions. 175.' It is the constitutional duty of the state to protect human rights and the fundamental rights of all persons. The distinction between such rights and legal rights which may require adjudication in appropriate proceedings has also been emphasised on several occasions. In (1982) 3 see 235 People's Union for Democratic RJffMs.& Ors, Vs. Union ofIndia & Om, the court observed that denial of statutory, rights of the labour force, which was a vulnerable section of the community, tantamounted to breach of their constitutional rights and was therefore enforceable against the government. It was held that it was the duty of the Union of India, the Delhi Administration and the DDA to ensure that the constitutional obligation towards labour are discharged by the Contractors to whom they had entrusted construction woik. It was held that the Union of India, Delhi Administration and DDA cannot fold their hands in despair and become silent 2010:DHC:12458 urt committed by their own contractors. In tliis context, the cou; held as foUows "21.. Before leaving this subject, we may point 'out with all the emphasis at our command that whenever anv fundamental, right, which is enforceable against private individuals such as, for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessarv steps. for the purpose of interdicting such violation aud ensuring observance of the fundamental right bv the private individual who is transgressing the same..Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularlv. when he belongs to the weaker Section humanitv and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Union of India, the Delhi Administration and the Delhi Development Authority must therefore be held to be under an obligation to ensure observance of these various labour laws by the contractors and if the provisions of any of these labour laws are violated by the contractors, the petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Administration and the Delhi Development Authority by filing the present writ petition. The preliminary objections urged on behalf of the respondents must accordingly be rejected." The failure of the state to ensure statutory rights was held to provide the essential basis for maintaining the writ petition under Article 32 for enforcing fundamental rights against the State and its agencies.

176. It is noteworthy that a writ petition was filed in this court in connection with compensation payable to residents of Kashinir whose property had been destroyed in the disturbances ni Kashmir. The judgment of this court reported at AIR 2005 110 B.L. Wall & Ors. Vs. Union of India & Ors, has 2010:DHC:12458 made observations on this very unacceptable stand of Wie Government of India in its affidavit wliich is under consideration. Tliese observations before the Court read as under:- "20..Respondent No.l, Union of India, has also filed an affidavit under the signatures of Mr. K.Iyl. Kuti, Under Secretary in the said Ministry dealing with the Department of Jammu & Kashmir affairs. Respondent No.l/UOI by way of the said affidavit effectively washes its hands off the matter. It is stated that relief and rehabilitation are State subjects. Para 2 of the parawise reply may be reproduced to show the stand of the Union of India: "2. That the averments made in para 2 of the petition that UOI is invested with the responsibility to rehabilitate and provide relief to the citizens who suffer as a result of failure of state to protect. their life and property is misconceived, incorrect and is. denied. The answering respondent respectfullv submits that Law and Order as well as Relief and Rehabilitation are State Subjects. Ministrv of Home Affairs has the responsibilitv of providing Relief and Rehabilitation to refugees from West Pakistan (now. Pakistan). East Pakistan (now. Bangladesh), Sri Lanka, Tibet and to the repatriated Indian Nationals. Therefore,. the present writ petition qua the answering respondent is not maintainable." 2-1. The Government of India, thus, considered its responsibility for providing relief and rehabilitation to refugees, who are not citizens of this country, but not to citizens of the country who are,refugees in their own country. The apathy is writ large on its face.

22. There is a vast para para phernelia of mihtarv and para military personnel in the State, of Tammu & Kashmir of the Central Government. The boundaries of the country are to be protected. The condition in the State was so serious that it has been taken as a priority issue. The dislocation of persons from the Valley is a well-known undisputed fact. How can the GovRnnnRiTi: of India wash its hands of the whole matter and absolve itself of the responsibility for providing a safe living to the citizens of the couutrv?

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

177. In this judgment, the court held.that what holds true for loss of life and limb, would hold true for loss of property occasioned by failure of the State to protect the same.- It is noteworthy that in the present writ petitions, the petitioners have not been deprived of their property.and homes in accordance with law as, for instance, in the case of acquisition proceedings. The deprivation is a direct result of the failure to control the violence against the petitioners. The principles laid down in the, above judgment would apply to, the Kashmiri migrants on every score. More important is the clear finding by the court of the responsibility of the Central Government for the rehabilitation andrehefto the IDPs from'Kashmir. '/

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

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

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

182. The expansion and interpretation by the courts has affirmatively estabhshed a positive right to housing and shelter for eveiy person as part of the fundamental right. Human 2010:DHC:12458 rights and fundamental rights are inahenable; their violations are indefeasible. The state is under a constitutional obligation and duty to protect these rights. When violated, a citizen is entitled to their enforcement. The constitutional mandate upon it, is coupled with the statutory duty and pubhc law obhgations to ensure the protection of the fundamental and basic human rights to all, in addition;to its obligation under the several international instruments noticed above. This essentially remains in the exclusive domain of state functions. Failure to protect the citizens from eminent loss of life and property as well as maintenance of public order, implicates the state for culpable inaction. 183..Mr. Jatan Singh, learned standing counsel for the Union of India has urged that these petitioners are not public servants and can claim no right to continue in the allotted public premises. It has been vehemently urged that on account of their superannuation, they ceased to be Government servants and are disentitled to retain Government accommodation. Learned Standing Counsel has urged at some length that the Government of India has formulated a rehabilitation package which necessitates that all these petitioners must return to their homes in Kashmir. It is contended that by their failure to vacate, the rights of the several Government employees who are waiting to be aUotted Government accommodation are adversely effected. Unfortunately the respondents are unable to submit that the petitioners would be safe upon return or how the lespondents propose to ensure protection of life and liberty of ^)A \ the petitioners or ensure restoration of their property in the Kashmir valley.

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

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

186. This submission fails to consider the nature of the rights which are involved in the case in hand. MiatcaJfe Hodffldnson and contract of work of professional services to the appellant and was not concerned with a plea of violation of basic human rights and constitutional guarantees as are involved in the instant case. Th[6] consideration in Metcalfe Hodgldnsoii Pvt. Ltd. (supra) has no application to the present case.

187. In '(2003) '6 SCC 1 Kapila Hiiifforaiii vs. State of Bihar & Ors. the State Government had, however, pleaded financial stringency to shift its liability to the Union of India or I to the State of Jharldiand.' In para 67.of the judgment dated 9"' of May, 2003 Supreme Court had held that the hability of the state of Bihar, cannot be shifted to the Union of India only because it is the repository of funds raised by it through excise and other central levies and impost, and consequently it would not be indirectly or vicariously liable for the failings on the part of the State Public Sector Undertakings. It was held that either precedentially or jurisprudentially, the Union of India cannot be held liable and no such direction as was being sought by the state government could be issued. The Supreme Court, however,; clearly declared the position that financial stringency may not be a ground for not., issuing requisite directions when a question of violation of fundamental right arises. In.this regard, the court noticed the emphasis given by it on this aspect including the judgments reported at [1987]1SCR641 Rural Litigation and Entitlement ICendra and Ors. f. State of Uttar Pradesh and Ors.; 1980CriLJ1075 Municipal Council Ratlani Vardiclmn '& Ors.; [1996J3SCR80 B.L.. Wadbera v. Union 2010:DHC:12458 Recognised & Aided Schools Managing Committees Ors.; AM 1996 SC 2426 PascMm Banga' Kliet Mazdoor Saimiti & Ors. fs. State of West Bengal & AnrJ In para 65 of (2003) 6 SCC 1 entitled Kapila Hingorani Vs. State of Bihar & ors, the Court rejected the contention of the State of Bihar also to this effect.

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

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

190. The observations of the Supreme Court at (2005) 2 SCC 262 Kapila Hingorani ra. State of Bihar & Others, while dismissing the review petition filed by the Bihar Government, seeking a review of the earlier order dated 9"' May, 2003 are / _, \ also topical on this objection of the respondents and need to b considered. The State of Bihar had submitted that the state had, no liability to pay the salaries of the employees of the statutory corporations/companies incorporated under the Indian ' Companies Act and that they were not completely under,the control of the State. Before the Supreme Court, counsel for the State of Bihar had urged that the remedy of the employee was to file appropriate applications before the Company Judge who was seized of the winding up proceedings in relation to such •company. These submissions were rejected by court observing that in the order dated 9"' May, 2003.''the court had considered the matter from the human rights ^.spect as well as the fundamental rights- of the employees in the public sector undertaking operating in the state of Bihar^ The court noticed that after the passing of the order dated 9* May, 2003, several employees died due to. non-payment of their salaries. The court placed reliance, inter alia on para 24 of the directions dated 9"^ May, 2003 and while rejecting the review petition filed by' the respondents observed as follows "24. This Court further observed that the State has a constitutional obhaation and acts in a fiduciary capacity vis-a-vis performance of its constitutional duties and functions bv the pubhc sector undertakings as it has constitutional obligations in relation thereto.", • (Underlining supphed) So far as protection of such human rights and fundamental rights, and remedy for violation thereof, is 2010:DHC:12458 concerned, tlie court issued directions to tlie state government to pay the salaries of employees in the public sector undertaldngs in the following terms "22 The Government companies/public sector undertakings.being 'States' would be constitutionally liable to respect life and libertv of all persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the. sole shareholder. Although in law, its liability towards the debtors of the Company may be confined to the shares held by it but having regard, to the deep, and pervasive control it exercises over the Government companies; in the matter of enforcement of human rights and/or rights of the citizen of life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed. The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and liberty clause in respect of the employees is fully safeguarded. The Government of the • State of Bihar, thus, had a constitutional obligation to protect life and libertv of the employees of the Government owned companies/corporations who are the citizens of India. It had an additional habilitv having regard to its right of extensive supervision over the affairs of the company."

37. We make it clear that we have not issued aforementioned directions to the States of Bihar and Tharkhand on the premise that they are bound to pay the salaries of the employees of the public sector undertakings but on the ground that the employees have a liummi rmht as also a fundamental right under Article 21- which the States are protect. The directions, which have been issued by this Court on 9^^^ May, 2003 as also which are being issued herein, are in furtherance of the human and fundamental rights of the employees concerned and not by way of an enforcement of their legal right to arrears of salaries. The amount of.salary payable to theconcerned employees or workmen would undoubtedly be adjudicated upon in the proper proceedings. However, these directions are issued which are necessary for their survLval.' Undoubtedly, any amount paid by Justice Uday Sinha Committee pursuant to these directions shall be duly credited for!"

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

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

193. Before this' court, the respondents have not stated that there is any assessment or calibration in terms of priorities of the various of the several projects which the respondents need undertake or the various areas which Government business addresses'. The respondents explain neither the financial 2010:DHC:12458 burden of ensuring shelter to these IDPs nor the extent of the available.resource. Mere announcement of schemes and allocatioii of large volume of funds by the Government as a reaction to court directions upon occurrence of events in the country by themselves are insufficient and may prove to be ineaningless. Displacement as that of the present petitioners clearly reflects the imperative to take a holistic view and for the decision makers to take a 'minimum-needs' based approach where ensuring basic human rights and social welfare are concerned.

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

195. Instance after instance of schemes in Delhi for regularising not only rank illegal and unauthorised constructions but also large scale encroachments on public land are in existence and being implemented..So much so that the Central Government has promulgated ordinances and statutes prohibitting demolitions of huge illegal buildings and even \ such law breakers- who do not even need rehabilitation or state support, who are certainly not disadvantaged or displaced. The Delhi Laws (Special. Provisions) Act 2006 was enacted by the Parhament concerned that action for violation of the provisions of the Master Plan 2001 and building, bye laws was causing hardship and irreparable loss to a large number of people. No reference to pubhc safety, pubhc interest, environment concerns, enforcement of legal provisions or the financial impact and loss is displayed.

196. The judgment reported at 2010- (III)-AD (DeiM) 513 • Harijan Kalymi Samlti Regd. & Ors. vs,.Goverimieiit of NCT of Delhi makes a reference to Government policy to regularise 1400 unauthorised colonies. The huge loss to the public exchequer of indiscriminately regularising illegal encroachments on land acc|uired after payment of large sums as compensation from public funds by the government; encroachments those on public land as also violations of building regulations is not even computed, let alone addressed. (Ref: (2006) 3 see 399 M.C. Melita vs. UOI & Ors.; AIR; 2005 SC 1-.Friends Colony- Development Committee vs. State of Orissa & Ors.)

197. Yet the respondents urge "financial stringency" so far as the present petitioners are concerned. The essence of the policy of rehabihtation and resettlement, so far as the petitioners is concerned has not only been given a complete go by but the respondents are completely denying all hability for the same. 2010:DHC:12458 i[9].8. Apart from a vague suggestion of insufficiency of funds, the respondents do not substantiate such plea with any material. The respondents have not shown any consideration of the petitioners' needs, let alone any steps take to address their plight. There is nothing which could enable this court to arrive at a conclusion that the respondents had difficulty in working the rights of the petitioners on account of financial incapacity. To say the least similar submissions were termed as "typically gauche" and "lacking insensitivity" by this court in P,K. Haiidoo vs. Estate Officer (supra) and already stand rejected in B,L, Wall & Ors, rs?. UOI (supra). The impugned action and the submissions manifests the huge barriers which a displaced citizen of the country faces in accessing, even basic and guaranteed constitutional rights despite the- admitted responsibility of the state for the breaches and violations of the constitutional protections suffered by them. Amroiiriate remedy, role of the court and nature ofrelief

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

200. In AIR 1983 SC 1086 Rudul Sab vs. State of Bihar, the court was concerned with violation of rights resulting from illegal detention. The observations of the court on the duty of 2010:DHC:12458 the court deserve to be considered in extenso and read as follows "10. Article 21, which guarantees the right to life' and' liberty will be denuded of its.simiificant content if the power of this Court were limited to Dassina orders of release from iLleaal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due comphance with the mandate of Article 21 seciired, is to mulct its violators in the payment of monetary compensation. Administra:tive sele(sic)sis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their, protection the powers of the State as a shield. If civilisation is not to perish in this country, as it has perished in some others too well-known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights."

201. So far as the remedy which would be available in cases involving infringement of fundamental rights and the power of courts. Dr. A.S. Anand, J [as his Lordship then was] in his concurring judgment in AIR-1993 SC 1960 entitled Nila.ba.ti Beliara @ Lalita Bebura Vs. State of Orissa had observed as follows "33. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 bv the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in Public law and is based-on the strict liabilitv for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief bv granting "compensation" in • I • /' proceedings under Article 32 or 226 of—the Constitution seeking enforneTnent nr protection of fn-ndRinentnl rirrlits. it does so under the public law by way of -oenahsincT the ^wrongdoer and fixing the liability for the pubhc wrong on the State which has failed in its pubhc duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a ciyil action for da.mages under the priyate law but in the broader sense.of proyiding relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. The compensation' is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and • prosecute the offender under the penal law.

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

202. In (1988)' 4 SCC Sheela Barse vs, UOI & Ors., the court was concerned with gross violations of the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints. While commenting on 2010:DHC:12458 the nature of proceedings in public interest litigation and the issue of protection and enforcement.of their, rights, the court made the following, observations with regard to the duty of the court

. role with the responsibility for the orcranisation of the proceedings, ihouldinq of the relief and-this is important - also supervising the implementation thereof."

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

204. Unlike the several cases noted hereinabove including cases of Rudul Shali^ D.K.' Basu^ Leelawati Beliura, Sheela 'Bars© (supra) etc. in the instant case, the state or its instrumentalities itself have not. harmed or punished the petitioners. However,, the state has totally failed to protect the fundamental right to life of the petitioners and to protect them from violence, harassment and pogroms. This is in clear abdication of the constitutional responsibility of the State. Responsibility for the violence in the State is not the question 2010:DHC:12458 before this court. The issue before this court is restricted to the question of tlie riglits of the petitioner.

205. So far as the approach of a court on such issues, is concerned, in para 13 of the pronouncement reported at (2003) '4 see 601 State ofMaharashtra, vs. Dr D, Praful B. Desai, the Supreme Court stated that one needs to set out the approacli whicli a court must adopt in deciding such questions and reiterated that the first duty of the court is to do justice.

206. In para 15 of AIR 1980 SC 1622 Municipal Council Ratlam vs. Vardichan & Ors., the court observed that:- ' "15. The nature of the judicial process is not purely adiudicatorv nor is it functionallv that of an uTnnire onlv. AfFirrnative action to make the remedv effective is of the essence of the ricrlit which otherwise becomes sterile." 207: In para 11 of (1997) 6 SCC 241 VisbaMm & Ors. vs. • State of Rajasthan & Ors.^ the Supreme Court held that the obligation, of the Supreme Court under Article 32 of the. Constitution for the enforcement of fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum, standards necessary to be observed in order to maintain the independence and effective functioning.of the judiciary. The objectives of the, judiciary mentioned in the Beijing Statement are: "Objectives of the Judiciary:

10. The objectives and functions of the judiciary include the following: (a) to ensure that all persons are able to live securelv under the Rule of Law: (h) to promote, within the proper ' limits of the judicial function, the observance and the attainment of human ricrhts: and

(c) to administer the law impartially among persons and between persons and the State." / In Clause 10(a) of the objectives of the Chapter on 'Objectives of the Judiciary', it has been clearly stipulated that the objectives and functions of the iudiciarv include ensuring that all persons are able to live securelv under the rule of law. 208- So far as the manner in which relief is required to be moulded so as to ensure protection of the constitutional rights of the petitioners in this bunch of writ petitions are concerned, learned counsel for petitioner has placed reliance on the pronouncement of this court dated 10'^ September, 2004 in fVP{C) Mo. 172/1997 entitled Smt. Kamla Devi vs. Govt. of NCT of Delhi & Ors. In this judgment, learned brother B.D. Ahmed, J was dealing with a case relating to a prayer for compensation for the death of one Uday Singh, an electrician who was killed in an explosion on account of terrorist activity in Delhi. The court held that lower courts would-lose their efficacy •if they cannot possibly respond to the needs of the society technicalities there might be many but the justice-oriented approach ought to not be thwarted on the basis of such 1^' \k> technicality since technicality cannot and ought not to outweigh the course of justice.

209. While referring to several pronouncements of the Apex Court with regard to compensation for custodial death; death of school children on a picnic; death of a passenger in a train in action on the part of the railway employees, it was further observed in KamJa Devi's case (supra)follows "7.. XXX The fact of the matter is that Uday Singh lost his, life on account of an act of terrorism. The State failed to prevent it. The Primary duty of the State is to mRintain peace and harmony amongst its citizens. If for some reason, it is unable to put the lid on simmering discontent, then it is its duty to protect innocent citizens from harni.. If it fails in this duty, then it must compensate the citizens who have been wronged.", Reliance was placed on the pronouncement in AIR 1993, SC 1960 Nilabati Behara @ Lalita.Behura Vs. State of Orissa wherein it had been also observed that while directing monetary compensation for estabhshed infringement of the •fundamental rights, the' courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. 210.. In AIR 19H[9] Mad. '20'5 R. Gandhi & Ors. UOI & Anr., the Madras High court was concerned with the inability of the State to enforce public order putting in jeopardy the life and 2010:DHC:12458 liberty, home and hearth of the victims, involved. The petition sought redressal for the trials and tribulations undergone by the minority Sikh community of Coimbatore in Tamil Nadu and a few others in the wake of the assassination of late Prime Minister Smt. Indira Gandhi on 31st October, 1984. Observing on the violation of the fundamental rights and the duty of the state, the Madras High Court placed rehance on the observations of the Supreme Court in the Olffa. Tellis (supra) case, and held as follows:- "21. The maintenance of law and order is the primary duty of the State and under our Constitution it is a State subject and tops the State List. No Government worth the name can abdicate this function and put the life and liberty, the hearth and home of the citizens in jeopardy. Article 38 of the Constitution enjoins on the State to strive to promote the welfare of the people by securing and protecting,' as effectively as it may, a social order in which justice,. social,, economic and political, shall inform all the institutions of the national life. Under Article 19(a) and (g) of the Constitution, any citizen of this country is entitled to reside and settle in any part of the Territory of India and to practice any profession or to carry on any occupation, trade or business. Article 21 lays down that no person-shall be deprived of his right or personal liberty except according to the procedure established by law. As pointed out by the Supreme Court in Bombay Pavement Dweller's ' case, MANU/SC/0039/1985: AIR1986SC180, no person can live without the means of living, that is, the means of livelihood and.the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Under Article 300(A) of the Constitution, no person shall be deprived of his property save by authority of law and to allow his properties to be reduced to ashes by the force of darkness and evil is a clear deprivation of the right to property guaranteed by the Constitution. The members of the Sikh Community form an integral part of the Indian society; they have every right to.settle down in Coimbatore and carry on their profession. They have the Constitutional right to live and they cannot be deprived of their means of ^ livelihood. Their right to property is inviolable. All these Constitutional rights of the Sikhs and a few members of the other communities have been 2010:DHC:12458 flagrantly infringed by the inaction of the law enforcing authorities. -Fundamental rights are not mere brutum fulmen. They are the, throbbing aspirations and realities of civilised human life, they nannnt be rendered desuetude or dead-letter or as observed by Bhagwati, J. as he then was, 'a paper parchment, a teasing illusion and a promise of unreality', bv the failure of the State to protect those ricrhts. These unfortunate victims of arson and • violence are, therefore, entitled to seek reasonable com-Qeusation. from the State of Tamil Nadu, which has failed in its duty to protect their Constitutional and legal rights..

22 It is a matter of regret that the State of T;^Tni[1] Nadu, which has failed to carry out its elementary function of enforcing public order should treat the victims of its own lapses as beggars with bowls for alms. It is not charity that is expected of the nhvemm'ent. but legal recompense for wrongs done to them, for injuries inflicted on them on account of the break-down of the Governmental machinery. The second respondent— State of Tamil Nadu cannot, therefore, shirk its responsiMlitv ' for these unfortunate: hameninas or try to escape from its obligation, as a social welfare State to make suitable amends" (underlining supplied)

211. Examining the claim for compensation on account of death of a spouse in similar riots targeting members of the same community in Delhi in 1984, Anil Dev Singh, J in the judgment reported at 1996 (3) AD (Delhi) 333: 1996 (38) DRJ 203 Bliajan Kaur vs. Delhi Admn.. has observed as follows:- "(10) Article 21 is the Nation's commitment to bring every individual or group of persons within its protective fold. This Nation belongs to members of all the communities. They arc equal members of the Indian society. Equality before law and equal protection of laws is ensured to them by Article 14 of the Constitution to them. None is to be favoured or discredited. The conduct of any person or group of persons has to be controlled by the State for the lofty purpose enshrined in Article 21 of the Constitution. It is the duty of the State to create. a climate where the cleavage between members of the society belonging, to different faiths, caste and creed are eradicated. The State must act in time so that the precious lives of the. people are. not destroyed or threatened. Otherwise, Article 21 will remain, a paper guarantee. Time is long 2010:DHC:12458 hortatory effect in enforcing Article 21 of Constitution. The. State cannot adopt a "do nothing altitude". Like disease prevention, the State must take every precaution, measure and initiative to •prevent terrorem popuh of the magnitude represented by 1984. riots and in the event of an outbreak of riots it must act swiftly to curb the same and not allow precious time to slip by, as any inaction or passivity on its part can result in loss of precious life and liberty of individuals amounting to violation and negation of Article 21 of the Constitution. The State has to enforce minimum standards of civili/.ed behavior of its citizens so that the life, libertv, dianitv and worth of an individual is •protected and preserved and is not jeopardised or enriRnaered. If it is not able to do all that then it cannot escape the habilitv to uav adequate compensation to the fRTTiilv of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution which mandates that life cannot be taken away except, according to the procedure established by law. " It is noteworthy that in para 25, the learned Judge in Bhajan Kaur's case, was of the view that the judicial trend is to award substantial compensation for illegal extinction or deprivation of life and liberty.

212. I had also occasion to consider a claim for compensation for injuries and loss suffered by the petitioner in.the 1984 riots in Delhi in the aftermath of the assassination of late'Smt. Indira Gandhi in which members of one community were targetted. In the judgment reported at 120.(2005) DLT 156 Manjlt SiuffJi Sawlmey vs. UOI & -Ors.j, placing reliance on the principles laid down in the aforenoticed pronouncements, it had been observed as follows "20. The award of monetary relief to the victim for deprivation of fundamental.right is to be guided by the aforestated principle requiring the state to make monetarv amends under public law for the wrong done due to breach of the public duty of not protecting the fundamental rights of the citizens. This computation is not guided by any strict arithmetical formula and it has ^ 2010:DHC:12458 to be borne in mind that money cannot remove the trauma and the battering suffered by a victim."

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

214. It is a well settled principle of interpretation of the constitution as well as statutes that the same have to be read keeping the societal changes and growth. Law must change to keep pace.with the on going developments and new rights may have to be found out within the constitutional scheme. (Ref: (2003) 6 see 1 Kapila. Hingorani vs. State of Bihar {-para. 60 at page.30). The imperative necessity to take recourse to take such interpretative changes by the courts has resulted in the expansion to the right to life ensured under Article 2.[1] of the Constitution of India.. The court relied on earlier judgments and reiterated that the first duty of the court is to do justice. In para 62, the Supreme Court also declared that the right to development in the developing country is itself a human ricrht.

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

216. In P.K. Koul (supra), a specific order was passed on 15"' October, 2003 in W.P.(C) No. 6.551/2003 by this court to decide the petitioner's representation dated 16''" January, 2003 seeking permission to continue to retain the quarter. Without meaningfully complying with this order, the respondents have taken recourse to the proceedings under the Public Premises (E^ction of Unauthorised Occ^upants) Act, 1971. Such a decision of the respondent patently violates the petitioner's - basic human rights and constitutional guarantees noted hereinabove. Other petitioners have also made similar representations on which orders have not been passed by the respondents.

217. Smt. Phoola Raina who is the petitioner in W.P.(C) NO. 15698/2004 is the wife of late Sh. T.N. Raina whO' expired in harness on 4"" August, 2001. She and family were dependent on late Shri T.N.Raina and residing with him in the allotted quarter. The respondents have been, unable to rehabilitate this legal heir who is also a Kashmiri displaced person and if forcibly evicted from the premises in her possession, she has nowhere to go. It is contended by Phoola Raina that the meager pension she is receiving is her only source of income which is 2010:DHC:12458 insufficient to even bear the expense of food for her family members. The writ petitioner has also placed reliance on SR- 317 B-25 of the allotment of Allotment of Government -Residences (General Pool in Delhi) Rules, 1963. In view of the above discussion, it is clearly evident that so far as her claim is concerned, the same, fundamental and human rights as those of the other writ, petitioners are involved and she is entitled to the same relief and consideration as the others.

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

219. The pleadings in the case would show that there is no dispute to the facts pleaded by present petitioners. There cannot be and there is not even a suggestion that the right to shelter of the petitioners in their home state has been abridged by any procedure established by law. Such infraction of their rights is purely on account of the inability of the respondents to discharge their constitutional obligation; duty and responsibility of protecting the life and property of the petitioners. The respondents have a positive duty to provide basic necessities to its citizens. It certainly defies commonsense and 2010:DHC:12458 m all notions of human dignity to permit the respondents to exclude such facilities as bare shelter which is essential and necessary to encourage the self respect and dignity of these displaced persons in a human manner consistent 'with weU recognized modern standards thereof. The courts have a constitutional duty and international legal obhgations to ensure the right of every person to be free from, want of basic essentials..

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

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

222. In (1991) 4 SCC 584: AIR 1992 SC 248 Union Carbide Corporation Vs. Union ofIndia, it was stated by the ChiefJustice Ranganath Misra that "we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future there is no reason why we should hesitate to evolve such principle of 2010:DHC:12458 liability.; "• The observations of Venkatachaliah, J (as his Lordship then was) in this case who had rendered the leading judgment in the BhoparCas case with regard to the courts' power to grant relief are the same. These principles have been reiterated in AIM 1993 SC 1960 Smt. NiMbati Beliera alias Lalita BeSiera Vs,, State of Orissa & Ors.

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

224. In (1987) 1 SCC 395 M.C. Mehta UOI & Ors., the court expanded on the jurisdiction and obligation of the court to mould a new relief in the following terms "3 It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for 'enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect. the fundamental rights of the people and for that purpose this Court has. all incidental and ancillarv powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has in the past innovated new. methods and strategies for the purpose of securing enforcement of the •fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom, freedom and liberty, have no meaning."

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

226. It,is also well settled that it is not only the right of the litigants, but also the duty of the court to not only enforce fundamental rights but also award compensation against the state for violation of those rights. In other words, 'the power of the court is not only injunctive in ambit, that is preventing the infringement of a fundamental right but it is also remedial in scope and provides the relief against the breach of the fundamental right already committed.' {AIR 19H[9] Mad. 205 R. Gandbi vs. UOI & Aiir. (supra)

227. On the aspect of appropriate compensation for established breaches of fundamental rights, reference can also usefully be made to the observations of the Division Bench of this cQurt in the judgment reported at 2001 (1) JCC DelM 57 Governiimnt of NCT of Delhi vs. Sliri Nasiruddin (Father of deceased

1. Yasin) to the following effect.- "21.. It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Morris in West v. Shephard (1964) AC 326. Justice requires that it should be enjual in value, although not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially, as he was before accident Comuensation be inadequate and' should neither 2010:DHC:12458 be no exact uniform rule for meaisurmff

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

229. In (199.0) -l SCC 328 S.M.D. Kiran Pasba. Government of'A.P., the Supreme Court had'observed that a writ petition, would be maintainable under Article 226 of the Constitution of India also when a right under Article 21 is threatened as contradistinguished from the right when it is infringed. In para 21 at page 342 of the report, the court held as follows. "21. In the language of Kelsen the right of an individual is either a mere reflex right-the reflex of legal obligation existing towards this individual; or a private right in the technical sense -the legal power bestowed upon an individual to bring about by legal 2010:DHC:12458 i J obligation existing toward him, that is, the legal power. From the above analysis it is clear that in the instant case the appellant's fundamental right to liberty is the reflex of a-leaal obhaation of the rest of the society, inr.lnrii-nrr the State, and it is.the appellant's legal power bestowed npnn' him to bring about bv a legal action the. Rnfornement of the fulfillment of that obligation existing towards him. Denial of the legal action would, thereforp, amount to denial of his right of enforcement of his right to liberty. A petition for a writ of habeas corpus would not be a substitute for this enforcement." These principles have been reiterated by the Apex Court in (2003) 6 SCC 1 Kapila Hingorani vs. State ofBihar.

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

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

232. So far as compensation is concerned, it is again well settled that the same would not be monetary alone. Principle 18 of the GuMinff Principles for IDPs as set out by the UN mandates that competent authorities shall provide. internally 2010:DHC:12458 displaced persons with and ensure safe access to essential food and potable water^ basic shelter and housincf, appropriate clothing, essential medical services and sanitation etc. Resettlement and reintegration are an essential part of the rehabilitation of IDPs. They have the right to participate-fully and equally in pubhc affairs at all levels and are entitled to equal access to public sei^^ces in the part ofthe country where they are resettled. Principle 29 mandates when recovery ofthe property and possessions which the IDPs left behind or were dispossessed of upon their displacement is not possible, they are entitled to be provided appropriate compensation or another form of 'just reparation'.

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

234. There can be no dispute at all that whether it be a jhuggi or mud built thatched house or a mansion considered in Sbantista'r (supra), without security of limb and life as well as the property, no enjoyment thereof is possible. In order to be meaningful, the shelter which is envisaged has to be in an 2010:DHC:12458 r'v f o elements, but from the larger threats and dangers which have been created by mankind. Even if the respondents were in a position to provide shelter in the home state of the petitioners as envisaged in the affidavit filed inJ.L. Koul (supra), in order •for such right to be meaningfully enjoyed, it has to be ensured that there is peace within the community and the state; that its law enforcement agencies are able to ensure that the constitutional guarantees and protections of the citizens are fully secured. •.

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

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

237. In National Human Rights Commission vs. State of Arunacbal Pradesh Anr. (supra), the court had directed the state to ensure that the life and personal liberty of each and every' Chakma residing within the Government of Arunachal Pradesh, the state was protected and any attempt to forcibly 2010:DHC:12458 evict or drive them out was repelled in view of the violations and threat to their lives. As noticed above, in para 13 of Nilabati Belmra @ Lalita Behura Vs. State of Orissa(supra), the court had moulded relief by granting monetary compensation in view of the failure to protect fundamental rights of the persons. In fact the court held that the refusal to pass orders for compensation would be doing lip service and that the court was under an obhgatidn to grant relief (para 37). In 1997 (1) see 416 D.K. Basu State of West Benffal the Supreme Court emphasized a justice oriented approach which was'responsive to the needs of the society. The court had.also granted monetary compensation for violations in this case. Denial of wages was the consideration and relief moulded appropriately in Kapila Hingorani Vs. State of Bihar (supra).

238. Compensation to these petitioners which could be considered appropriate' and perfect thus would have to include comprehensive resettlement such as economic rehabilitation and affordable housing schemes which have been clearly envisaged by the respondents. Several other measures towards meaningful rehabilitation essential in terms of the Guiding Principles have not even entered the respondents' consideration. The same has however not been possible so far. This court cannot shut its eyes or judicial conscience or remain oblivious to the stark realities.

239. The issues raised in the present case have arisen before in the context of persons facing displacement on account of development and infrastructure projects especially major river valley projects. In (2000) 10 SCC 664: AIR-2000 SC 3751 hfarmfuda,3a.chao Andola.li vs. Union of India the Supreme. Court was concerned with the displacement of tribals as a result of construction of the Sardar Sarovar Dam. In para 62 at page 702 of the SCC report the court held that if the displaced persons were in a better position to lead a decent life enjoying better amenities and facilities and earn their livelihood in the rehabilitated location, their fundamental rights guaranteed under Article 21 of the Constitution would per se not be violated by the construction of the dam. and the resultant displacement. This position was reiterated in (2005) 4 SCC 32 Nairnmda Bachao Andolan vs, UOI & Ors.

240. In para 60 (pg 394) of (2004) 9 SCC 362 N.D. Jayal & Anr. Vs. UOI & Ors.^ Rajendra Babu, J held that rehabilitation of oustees of a dam is a logical corollary of Article 21 of the Constitution and that the oustees should be in the better position to lead a decent life and earn livelihood in the new locations. No reason at all as to why forcibly displaced persons as the petitioners should not be similarly treated given the violations of their constitutional rights. 241.. Before this court, the petitioners are aggrieved by the deprivation of their homes and property and the threat by the respondents to evict them from the only shelter possessed by 2010:DHC:12458 their coiistitutionar obhgation of protecting the hfe and hberty of tlie.petitioners and ensuring shelter to these victims of criminal acts who stand displaced from their home for no fault of theirs, primarily on account of failure of the respondents to protect their Constitutional rights. In case rehabihtation is not possible then the. respondents have no option but to ensure "meaningful and reasonable resettlement in the above terms. To mitigate effects of the displacement from home, hearth and property, the respondents are thus legally obliged to provide at least reasonable shelter as part of the proportional compensation to the petitioners for violation of their basic and fundamental rights. Such 'just reparation' would constitute part of "reasonable compensation" and would be a step towards suitable rehabilitation of the petitioners. Relief in these petitions has to be so moulded. •

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

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

244. The further contention is that, the government ensures adequate financial security to retiring employees, who have the benefit of pension as.well as other retiral benefits which run 2010:DHC:12458 into several lakhs of rupees including gratuity, provident fund etc. and nothing further can be expected of the respondents.

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

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

247. We are here concerned with the entitlement of shelter to IDPs. So far as the nature of the development which would meet the guarantee of shelter and ensure a life of dignity to.the person concerned, in para 9 of the pronouncement reported at {1990) 1 see 520 Sliantistar. Builders -Vs, Naraymi 'Kbimalal Totame & Qrs'., the Supreme Court had observed as follows:- "9; Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in everv aspect - Dhvsical. mental and intellectual. The Constitution aims at ensuring, fuller development of every child. That would be possible only if the. child is in \p a proper home. It is not necessary that every citizen must be ensured of livina in a well- built cornfortable house but a reasonable home particularly for people in TnrliR ran even be mud-built thatched house or a mudbuilt fire-proof accommodation." Undoubtedly, so far as the reasonableness and adequacy of the measures which the respondents are required to take, must meet the principles laid down in the aforenoticed pronouncements of the courts, the international conventions, the standards in the guiding principles for IDPs and ensure the rights of the petitioners.

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

249. The claim for shelter in these writ petitions is thus pressed as part of the compensation for the violation of the petitioners rights. The petitioners seek directions to the respondents to permit them to occupy the premises in their occupation, till such time the respondents are able to discharge their constitutional duty of protecting the lives and property of 2010:DHC:12458 its citizens and providing tliem permanent residences, in similar cases, the Supreme Court and this court has permitted the displaced persons to continue to occupy the occupied quarter. Order to this effect stand passed by the Central Administrative Tribunal as well. The respondents have permitted some of IDPs to continue with their occupation of the allotted quarters after retirement. There is clearly no justification at all for not permitting the petitioners, to do so in the given facts and circumstances.

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

251. So far as the claimed rights or the violations urged by Smt. Phoola Raina are concerned, other than a bald plea that she was not the allottee> the respondents are unable to point out any distinction from the other petitioners. The respondents do not state that she can safely return to any residence in the Kashmir valley. It is also not averred that this petitioner owns any property into which she could shift. It is not even suggested 2010:DHC:12458 that there is any difference in the constitutional rights MDr scheme between her and the other petitioners.. Not a single circumstance which could disentitle this petitioner to grant of relief against the threatened eviction and violation of her constitutional rights has been placed or made out in the case. Till such time that the respondents are able to meaningfully and reasonably rehabilitate this petitioner, her. forcible eviction under the shield of statutory process is also without any doubt constitutionally impermissible. '

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

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

254. It is evident that the learned appellate courts in the appeals also adopted a hyper technical approach ignoring the serious violation of. constitutional rights, which has resulted to the petitioners and the drastic consequences of rendering them homeless which results on implementation of the eviction order. The constitutional rights of the litigants are not only well established but are without any limitations. The orders dp not indicate that the several important.questions raised by the petitioners were deemed to deserve' an adjudication including 2010:DHC:12458 f situated, displaced persons. The learned courts paid no attention to the declared pohcy of resettlement and rehabilitation of Government or the constitutional rights and guarantees which all courts are bound to enforce..

255. The action of the respondents in denying favourable consideration of the request to continue to occupy the quarters suffers from the vice of discrimination and arbitrariness. The decision to treat the petitioners as unauthorized occupants and proceed against them under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 as well as the impugned orders are in violation of the constitutional guarantees and basic human rights of the petitioners, and do not show application of mind to relevant material or consideration thereof. The nnpugned decision to cancel the allotments, the action under the Public Premises Act;; and the impugned orders of the Estate Officer and the appellate orders are constitutionally and legally not sustainable. 256.. The special leave petition m J,L Koul (supra) was filed in 1997 and the rehabilitation scheme was placed before the court for the first time in 2006 which proceedings culminated in the judgment dated 3'''^ December, 2008 after twelve years. Adjudication was still necessitated in P.K. Handoo vs. Estate Officer (supra) decided on 2'''^ August, 2006; M.K. Koul (supra) decided onllth April, 2008. I find that the Central Administrative Tribunal had passed a detailed judgment on 3.0'^' December, 2002 in OA No. 2378/2002 entitled Tej Kislmii UOl, In all these cases by final adjudications, the petitioners \U';hfe concerned. Despite the proceedings and judgments in th abovenoticed matters, the respondents have still proceeded against the petitioner in the manner noticed above.

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

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

259. It is essential to make it clear that it is only in the peculiar fact situation of the present cases and the extreme hardship of the petitioners involving violation of the fundamental rights and human rights of the citizens of India that such continued occupation of the public premises by the petitioners has to be permitted. No inference can be laid that any person,not having a property of its own or not having suffered the violations aforenoticed can or has been permitted to continue to indefinitely occupy the public premises. Therefore, the principles laid down in this judgment would bind only a,fact situation as in the present case or similar 2010:DHC:12458 circumstances when the State has been unable to protect tl fundamental and basic human rights of its citizens compelling them to be displaced from the place of their residence and is not in a position to ensure their safety or security in case they return to the place, of their residence. In view, of the above discussion, it is directed as foUows

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

(ii) A direction is issued to the respondents to make aU endeavours to adequately, effectively and reasonably rehabilitate and resettle the petitioners, making provisions for appropriate accommodations for them.

(iii) Till such -time, the respondents are able to provide alternative accommodation to the petitioner and his/or her family anywhere in Delhi, the petitioners shall be allowed to retain and occupy the allotted accommodation (also detailed in column no. 2 of para 13 above) subject to payment of normal license fees.,, \

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

Rs.25,000/- which shall be paid within a period of six weeks from the date of passing the order. These writ petitions are allowed in the above terms. CM Nos. 11011/2004. 11013/20'04'/ 2010:DHC:12458 ir 10547/2007. 13421/2007. l5540/2'.008, 16497/2008, 1fi449/200S. 16501/2008. 5796/2009. 7654/2009, 10!q)!ffi6/2009. 11351/2009. 11242/2009/• 11244/2009 & In view of the orders passed, in the respective writ petitions, these apphcations do not require further adjudication and are disposed of accordingly. November^O, 2010. aa/kr