B.L. Takaroo v. UOI and Anr.

VERSUS

UOI AND ANR....'.ResPonclenbs Through: Mr. Jatan Singh wibh Mr. Abhishek Aggarwal and Ms. MeghJBharara, AdvocaLes. AN]D ' (12) Writ Fetition (Civil) No. 568 L[2];AAT and CM No.. 1105 47 2AAT M.I( TIKOO.. Petilioner Through: Mr. R.K. Handoo with Mr. Yogind.er Handoo and Mr. Manish Shulda & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. rhroush: iur. n. v. sinha *ilhff:TldenLs Singh, Advocates. AND. (13) Writ Fetitflon (Aivil) No. 7Ob7nA07 and CM No. 13421J2OA[4] C.L. RAINA.. petitioner Through:. Mr. Thakur Surnmi[, Advoca[e

VERSUS

UOI AND ANR.,....ResponclenLs Through: Mr. R. V. Sinha wiLh Mr. A.S. tL,AND (14) Writ tretition (Civil) No. 2869/2008. and CM No. 5540/2008 s'N' KAUL rhroush: Mr. R.K. I{anu::t*fililt Yogincier Hancloo and Mr. Manish \ Shukla & Mr. AtuI Sharma, Advocates

VERSUS

' UOI AND ANR....ResPondent s Through: Mr. R. V. Sinha with Mr. A.S. AND " (15) Writ'tretition (Civil) No. 8599/2008 ancl CM No. 16497/2008 KANTIAYANI GANJOO... Petitioner Through: Mr. R.I( Handoo with Mr. Yoginder Handoo and Mr. Manish Shulda & Mr. Atul Sharma, Advoca[es VERSUS.

A.ND (16) Wnit tretition (Civil) No. BG0CI/200S amcl CIW No. n-6499/200S I-I.L. KOUL... petitioner Tluough: Mr. R.K. Handoo with Mr. Yoginder Handoo and Mr. Manish Shul<la & Mr. Atul Shanrra, Aclvocates

VERSUS

UOI AND ANR....ResponcLents Singh, Adyocates. AND (17) Writ tretition (Civil) No' 8601/20)08 & cM NO., L650L/2008 IT.. PeLitioner Through: Mr. R.I( Flandoo with Mr' Yoginder Hancloo and Mr. Manish Shuk]a & Mr. Atul Sharma, Advocates VIJAY MAM

VERSUS

UOI AND ANR.....Responclenl.s Through: ' Mr. R. V. Sinha with Mr. A.S. I AND (nS) Writ Fetition (Civil) No. 86411/2009 and CM No. 5796/2009 P'L' I(AUL rhrough: Mr. samrat I(. Nigam, Advocate

VERSUS

UOI AND ANR....ResPonclen[s Through:. Mr. R. V. Sinha wi[tr Mr:. A.S- Singh, Advoca[es...:AND (19) Wnit Fetition (Aivil) No. 9609/2009 & cM NO. 7654/20q[9] Y.S. JAMWAL.. Petitioner Through: Mr. Naresh'fhanai, AclvocaLe

VERSUS

UOI AND ANR......Responclen ts Through: Mr. R. V. Sinha *itt Mr. A.S.. Singh, Advocates. AND (20) Wnit Fetition (Civil) No. n_L377QAAE.!. & n 0986/2009 M.K. BAZAZ... petitioner, Through: Mr. R.K. Flandoo with Mr. Yoginder Handoo and M::. Manish.VERSUS;;T".ff'?l$?". Abhishek Aggarwal and Ms. Megha Bharara, Advocates' A.ND (21) Wnit Fetition (Aivil) No" n 1548/2009 & cM NO. 1n35n-/2009 B.L. TAKAROO UOI AND ANR.

MOTILAL KAUL ESTATE OFFICEF"

NIRMAN BFIAWAN B.L. RAINA ESTATE OFFICER (22) Writ Fetition (Civin) No" 'n-1488/2009 Through: Mr. Manoj V. George, Advocate VERSUS.Respondents AND & cM NO. L\24212AA[9]... Pe'bitioner Through: Mr. B. L. WaIi, Advocate

VERSUS

DIRECTORATE OF ESTATE S,....Responden[s. Through: Mr. JaLan Singh with Mr. & cvfi No. I,n244l2AAg... Pe[itioner Through: Mr. B. L. Wali, Advoca[e VERSUS...Responclents Al:hishel< Aggarwal and Ms. Megha AND (23) Writ Fetition (Civil) No. lL1L4S9/2009 (24) Writ treti,tion (C) No. 1n490/2009 A.K. GIGOO COHA.M: [TOT\[']EI,E MS. J{JS]ruAE GNTA MNTTAT, 1-. Whether reporters of local papers may be allowecl to see the Judgment?

2. To be refer::ed to the Reporter or not?.

3. Whether the judgment should be reporLed in the Digest? @ 1.. The instant case is a testimony to events which iead to an un[1]:recedented ethnic cleansing of a rninority comlnunity from the l(ashrnir valley on account'of the inability of tire Sta[e to 'protect them ancl their properby frorn violence, who, as a result, were renclerecl houreless. Such turrnoil was facecl by the ' ininority community in the state of Jamrnu si l(ashmir afl,er December, l-989, compelling its members Lo flee horne, rrearl,rr and State for bare survival. These writ petitions have been filed by some of snc;h ' displaced persons who were central Governrnenu ernployees seeking protection against forcible eviction of the cluarbers occupied by thern.on the ground that it is the only roof available to thern. 1," t? & C.Mo.No. 1- X-24612009... Pe[itioner Through: Mr. B. L. Wali, Advoca[e VERSUS....ResPonden[s 2.. Tlre peti[ioners qontend. thab tirose repr"esenl,ing l,he Central Government in bhe Kashmir valley, especially [hose who were replesenting the intelligence agencies, para rnilitary and clefe:rce forces aS well as the Governrner: t media becarne pr-irne targe[s of the militants to the extent that lists of such persolls who hacl Lo'be targetecl were published and circulated in the localities. Family. members and friends of such Government empJ.oyees were killed and their properties clesb:oyed for bhe message to perrneate. As a result, immediate steps for evacuation of such officials on emergency basis were talcen by the Government of India in order to at least protect Lheir lives.

3. Tlre.writ petitioners in W.P.(C) Nos. 5681/2007, 2869, t5246 862. rs24L, L[5].264 ts279 ts6g} L77 gl20}4 264Lt2006, ' 7 057 l2oo[7] B64L 9609, rL54B. L[1].4BB, '1L489.. 1-1-490 & 11491i2009 were shifted from Jarnrnu & I(ashmir l.o Delhi ancl posl,ed in the local offices of the central organizalion ancl deparLmei{[.where they were employecl.

4. The facts. disclose that all the petitioners (or the person on whom they were clependant as in the case of SmL. Phoola Raina widow of Late Sh. T.N. Raina wrlt. petitioner in W.P.(C) NO. 15698/2004) upon being brought to De1hi were alloLtecl Governmenl. accornmodation to reside'in, not only by virtue of [heir ernployrnent but a]So their exbreme neecl for shelter. These allotbees of bhe quarters, superannuatecl frorn ser-vice on clifferen[ clabes over the period of tirne.

5. w.P.(c) No.15698/2004 has been filecl.by srnt. phoortr.r al servilnL. Shri Raina was the allottee of Govern'rnent accommoclation bearing no. DG-g1-5, Sarojini Nagar, New Delhi-

23. While sLill in service Shri T.N. Raina unfortunately expired on the 4r.h of August, 2001. The petitioner contends that laLe Sh' T.N. Raina ancl famiiy which includ.ed herseif wel:e compellecl [o 'flee' from the valiey in circumstances identical [o those of the other petitiolers. This petitionel is sirrviving oll a lneagel: pension and she cannot afford any altelna[e accollmodation.

6. The petitioner in W.P.(C) No.56BL/2007 evacuated in the salne eillergent conclitions, is stated to be afflic[ed with the Peirkinson's tlisease since his retirement. FIis horne in Kasirrnir stanrls l:urnt. I-Iis relative, one Mrs. Chrini Lal had gone [o retrieve her l:elongings from I(ashmir, bu[ was shOt deact a[ point l:lanh range. The petitioner is sl.atecl to l:e barely surviving on his pension. He has no place to return in his liome state.

7. So far as the petitioner in W.P.(C) No.2B69l2008 ancl his farnily are concerned, they were shifted out by the Governmenb on account of the perception of a serious threaL to l,heir lives. IL 'is conLencled thab. the militants have burnt the p.e'l,itioner's ancestral home in order to demonstrate their intention of no[ sparing him. In ad.dition, they have shot deacl his,uncle ancl wife at point blank range. As a result, other than the cluarter under occupation, the petitioner is without qny alternate shell"er.

9. The petitioner and his family are permanen[ resiclents of the State of J&I( and did not leave their.horne st"ate voluntarily but were driven out of the Srinagar valley. Their household goods were looted ahd house was burnt by tire '[errorists. Ol.her [han [he one residence, w]rich also stancls cles[royed by [he rnilitants in Srinagar, Shri p.i<. tcorrl ownecl no obher proper[y. A grievance is rnade that tire responden[s have ta]ren no action for l.he reconsLrucbion of the. houses of the petil.ioners ancl obhers lil<e hirn which were destroyecl by Lhe rnilitants ancl Lo z[3] of atry securi[y forj the'm. consequen[Iy, they al.e. tina]rle to re[uln to their own holnes.

10. In this bachgroulcl, [[e pe[i[ioner su]:rniLtecl a rept:esentatiol datecl 24tr'March, 2003 seeking perrnissiol from the responcienL to retain his accommoclabion on payment of Lhe existing normal license fee'setting olt the above facts' Despite perrnitting retention of accommodation }:y other sirnilarly irlaced persons, this request of the petitioner was rejected by the letter' Uo*.d 20tr' f.Uroury, 2003. The respondent,ro. 2 ftrr[her referrecl the case for eviction of the petitioner, treating him as an trnauthorisecl occupant of public prernises uncler the Pul:lic Prernises (Evictiol of Ulauthorised Occupal[s) Act, L97I. 1,1,. In these proceeclings, the following eviction orcler cla[ecl 23'd September, 2003 was passed against the pe[itioner w]:ich was servecl on him on i8th November, 2003:- "OFFICE OF THE ESTATE OFFICER AND DEPUTY DIRECTOR OF ESTATE (LIT.)

DIRECTORATE OF ESTATES, NIRMAN BFIAWAN, NEW DLEHI. EC/93/AD lLrtl03lr-D All persons concerned and in particular Slui P.K. Koul, 123, North West Moti l3agh, N** Delhi Whereas I, the undersigned arn satisfied for the feasons recorded J:elow that Shri P.K. I(ouI is an unauthorized occupa[ion of the premises specified irr t]re Schedule below: REASONS You have been continuing to occupy the prem"ises specified in the schedule below even after iLs allotrnent stands cancelled in your name w.e.f. 1,.2.03 vide letber no. TD/zB3lM -23196 daLed 8.IL.02. ' You have failed to prove that you are not in unaul,horizecl occupa[ion of the instant premises. Now, therefore, in exercise of the powers conferred on me il (Eviction oi Unauthorized Occupants) Act, 1,97 L, I hereby orcler Shri P.K. I(oul,,ancl all the persons who may be in occupation of [he saicl premises or any part thereof to,racate the same within 1S days from the date of issue of this.order. In the event of refusal or failure Lo comply with this order within the period specified above, the said Shri P.K, Koul and. all other persons concelned are lial:le to be evicted. from the said premises, if need be, by the use of such force as may'be necessaqy. SCI{EDULE. !23, North West Moti Bagh, New Delhi. sd/- (8.K. (ulshreshtha) Date: 23.9.2003 Copy to A.D.-T-D." L[2]. The pebitioner filect an appeal regis[erecl as PPA NO. 333/2003 challenging the said eviction order. It is conLended thaL the learned Additionai Dis[rict Judge mechanically cLisrnissecl the petitioner's appeal by an orcler dated LOtr' SepLemller, 2004 ignoring the orders passed by the Supreme Court and other precedents of this cour[ in respect of lclentically placed. persons, necessitating the present petition., T'he subrnission is that the cancellation of the petiLioner's allotmen[ J:y the le[ter clated 27lzTth AugusL, 2}}2;.rejection of Lhe peLitioner's requesL by the letter da[ed 20th of February, 2003; the order of eviction dated 23'd Septernber, 2003, as well as the order of tire learned ADJ. dated l_0u' Septernber, 2004 are legaLly not sustainable. The. writ petition lays a challenge to these orclers as well as tire non-acti.on of the respondents.

13. The facts relating to the other petitioners in this bunch of petitions are similar ancl are not clisputecl by the responclents. -/- % the ailotrnen't of accomrnod.ations wliich were effecLed in favour of the petitioners/the predecessor in interesb; the cla[es of Lheir re'[irem.ent; the status of allotment and pa::ticulars of the orclers which have been pa.ssed- against all the petitioners ancl are impu.g:red in thdse writ petitions are tabulated below:- Quarter,4-IIotted Date of Iletirenten tof AIIottee Date of, impuEned order'of Cancellati on of,4IIotntent.l 3lu I -t--' 'Date of.i Date of impwwedl ' tke Euictiott I itwwuatteatr. WP (C) No.15239 WP (C) No.1-779l 31..7.2002 31..L0.2002 23.9.2003 I.7.2002 3L.1_0.2002 23.9.2003 7.5.2002 7.5.2002 25.9.2003 30.9.2002 7.5.2002 25.9.2003 30.4.2005 1..9.2004 28.3.2005 Order i order in A4atrteal 10.9.2004 rf-52, Sarojini Nagar, New Delhi GI-BOO, Sarojini Nagar, New Deihi r1-L62, Sarojini Nagar, New Delhi 1.23/rV, North West Moti Bagh, New Delhi 499 A, Sector 3, R.K. Puram, New Delhi z-20, Sarojini Nagar, New Delhi wP (c) l1ll[5], No.L5241- |Sector-L, 12004 lM.B. Road, New Delhi wP (c) 160/e, 28.2.2002 No.1- 5264 l Sector-l-, 12004 lPushp i lr rut^ ^.. I Vihar, 10.9.2004 '10.9.2004, ' o.1524(,P (C) o.86212 L[2].L[2].2005 L.3.2002 10.9.2004 20.'12.200s: 10.9.2004, 10.9.2004. -l 31.1.2006 i31.r.2006 i lN"#b"u.i I.6.2002 i30 I I l_ L[8].9.2002 L'L.7.2003 L[2].1"2.2005 31.10.2001 i rt-""-----' i Writ I Fetitiort.No. wP (c) No.1527 WP (C) No.1569 wP (c) No.2641 /2006 WP (C) No.56BL /2007 wP (c) No.2869 wP (c) No.B599 /2008,' wP (c) No.B600 -2 -= Quarter,4IIotted 31252, Andrews Ganj, New Delhi DG 915, Sarojini Nagar, New Delhi MS/].007, Sector VII, M.B. Road, New Deihi New Delhi New Delhi New Delhi Date of Iletirentett tof AIIottee intpugned order of itnpwCItted Euictiom 10.1L.2008 20.4.2009 3.8.2009 Date ot ilte itnp,wwrcan'. otder in Apltean L.2.2006 Cattcellati |, 0tder on of.A-IIotment 30.4.1998 1.9.1998 3.3.2004 (,q16tt* 22.t.2002 Died while in service o11 4.8.2001) 30.4.2004 1,.7..2004 25.4.2005 30.9.2006 23.7.2007 3r.s.2007 31..L[2].2007 I I L0.11.2008 | wP (c) No.B601wP (c) No.B64L cr-g0s,- | Sarojini Nagar, New Delhi BBO, Lakshmi Bai Nagar; New 31.1.2.2007 g r s 2ooC- 3L.7.2008 Allotted Quarter in Delhi New Deihi Writ Fetitiott No. WP (C) No.L148 B/2009 WP (C) No.l- 14B 9/2009 wp fcj No.1- L49 wP (c) No.1- 1-49 1"12009 wP (c) No.1- 154 B/2009 wP(c) No.7057 wP(c) No.9609 t2009 Quarter,Atrtratted SI/38, Sadiq Nagar, New Delhi S- Ll6slrr, M.B. Road, New Deliri AB-837, Sarojini Nagar, New Delhi r<-41r[2], Sector II, DIZ Area, Gole Market, New Delhi x-224, )ar:oJrnl Nagar, New Delhi Date of Itretitenten tof A-IIottee - Date af intpwaned Euiation 0rder Date'o,f ttrrc intpuqttedi ffitl* t,4,p1aean zs.e.zoog 25.8.2009 ! 'i 2s.8.2009 I.9.2007 Date of inpuEtted arder of Cancellati on of AIIotm.ent 30.6.2008 1.8.200B 9.3.2009 30.11.2007 2r.7.2008 1_9.1.2009 30.4.2008 t[8].8.2007 1_0.11.200 B 30.6.2006 1. L 1.2006 1.8.6.2007 47 t3N, 30.9.2005 1.2.2006 DIZ Area, Sector 2, Gole Marlcet, New Delhi 3L.08.2006 0L.01.2007 I 125.8.2009 I I 28.05.2007 30.04.2008 31".L[2].2008 r o.os.zoog Qr.No.2 B 1-, Type- IV, Sector-B; R.K.Pura tn, New Delhi. Feti tiomers' conten tions 14..In these writ petitions, the petitionels have all contended that they are permanent resicLents of Jarnmu & Kashnrir ancl have no d.esi::e.whatsoever to resid.e in Delhi' FloweveL, on account of the prevailing circumstances and the inabilily of fhe Governrnelt to secure their lives and. properties in their home state, they are unable to returr to the state. Their properties.and. only homes in the valley have either been desLroyed or. occupied. 1-5. 'Passage of time.also has brought no change in l.he conclitions prevalent in the state of Jamrnu & Kashrnir. The pe[itioners remain unab]e to return to their own homes.

16. Mr. R.K.Handoo, Mr. B.L. Wali ancl Mr. Sarnrat Nigam., learnecl counsels appearing for the petibioners, wi[h aII [he vehemence at their command, have urgecl that Lhe stal,us of Lhe: pe[itioners stands reduced to'that of 'reftrgees' in'their owt] coun.[ry wilh nowhere to go and no supporb at all from the s[a[e, the only clifference being that instead. of being clisplacecl to another corintry, the petitioners stand evicted wiLhin Lheir ornrn ' country L[7]. The petitioners lr.ave contended. that cliscre[ion ancl power is ves[ed in the respondents under SR 3L7-B-25 of the A1loLment of the ''Governrnent Residence (General Pool in Delhi) Rules Lo peruiL any person to occupy public p::ernises. Instances have been cited of the respondents perrnitting o[her persons including identicaliy clisplaced Kashmiris to occupy public prernises. it is cornplained that the responclenl,s have unfairly failerl Bl peti[ioners. are conce]:necl alcl have cliscriminatecl against' l'hern' The lyrit peti'[ioners thus assail the failure of t]re respondenl's [o exercise tlr.e cliscretion vestecl in them to permiL Lire petitiouers to con[inue to occupy the quarters, in accolclal]Ce with law otl the' gr:orincl of arbitrariness -

18. 'flre subrnission is that the'refusal of the respondents [o ' ferflriL Lhe petitioners to retain the ailotrnenl. on payrnenl' of ' norrnal license fee is illegat and results in violation of l'h"e consti[utional righ[s of t]re petitioner as well as [he.constitugional ancL public law obligations, r'esponsibilities ancl duties of the responclents.

19. It is subrnittecl that in the Uivln circurns[ances l,he, peLitioners cantlot be deemed to be in 'unauthorised occupal.ion' for the purposes of the application of the Pul:lic Premises (Eviction of Unauth.orised' Occupants) Act, I97I. The ' petitioners contend that the responden[s were constitutionally m.anclaLecl to protect l,heir right to life uncler ArLicle 2l- of the Constitution of India and having failecl to clo so, were bouncl to ensure bhe right to shelter of the petitioners, wliich iS all essenLial concomitant thereof. In, this backgrouncl, the petitioners challenge inaction qua the rights of the pelitioners; the legality and vaiidity of the cancellation of the aliotmenLs of the cluarl.ers; as well as the proceedings and all orders under the Pub1ic Prernises (Eviction of Unauthorisecl Occupants) Act, tg71". It is contendecl that'the respond-ents have ignorecl all lelevant naterial in initiating the proceeclings ag4iirst the petitloners, passing the irnpugned or.ders. I 3ct nesrto@ents conten

20. Mr. Jatan singh, learnecl standing counsel for: lhe union of India ancl Mr. 11.V. Sintra, learned. counsel fclr bhe respondents chailenge [he veIY maintainability of these writ petitions' It is contenclecl ttrat the public prernises were allotted [o ernployees of the Governrnent by vir[ue of their ernployrnenL' Sr"ich relationships having come to an end on Superannuation/demise of Lhe govel:ltnent ser-vant, learnecl counsels sbrongly urge [ha[ the petitioners tiave no rigirt.at all to continue Lo occripy l,he official accom.moclation after their reti.rement. It is further urged tirat the petitioners have no right or en[itlement to auy accom'Inoclatioir froin the respondents. The submission'is t,hat the clecisions against Lire petitioners are in accordan"ce wiLll Lhe provisions of [he Act of L97I ancl judicial precedents o.n ilre subjec[ and cannot be faulted on any legally tenable grouncls' Matefia| pleadinas 2L. I3efore examining these submissions, Iearnecl counsel for Lhe petitioners have clrawn atLention to the petil,ioner's pleaclings 'in grorincls A to H, K, L 6{ M of WP (C) Ner.L,5239/2O04 P.K. I(owI Vs. Estate hfficeui- ancl [he re.spondenl,s resp.olrse th.ereto whicli d.eserves to be useftdJy considered in extenso and reads as follows:lllleaclini Grounds "4. Because the Hon'ble SuxlrenTe rvo. zogg/l.e[2]:- - shriJ.!. J(out c Ors" Vs. State of T6rK & Ors. has e consiclered the question' regarding the possession of the accommodation anO 'acljourned thq matter sine die ancl till the Suprerne Court decides the rnatber finally, the Respondents cannot dispossess the Petitioner frorn the premises in question. the Hon'ble Supreme Court of India in the said case passed the following orders: "List this matter on a regular daY after six weel<s. I:r the meantirne, Mr. P.P. Rao will ascertain from the State GovL. 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 petitio.ner's counsel witt give to Mr. Rao the address of each petitioner where he woulcl expec[to be s]rifted." Again vide order dated 2B.l-.1998 taking inl"o consideration of the present situation the Flon'ble Suprerne CourL of India passed the following orders adjourning the rnatter sine.die and continued the s[,ay:- "Acljourned sine die. Stay to continue. The petition to be activated on mentioning by Counsel for the Sta[e of Jammu and l(ashrnir as and when the No.1533e/Aqo[4] State is in a position to assure the reburn of the petitioners to their resirective homes in the I(ashmir valley and ensure their safety and personal properly." Copies of the aforesaid orders of the l{on'ble Supreme Court dated 26.8.'L997 and 28.1.L99B are annexed herewith as annexure herewith as to FI) are rnatter of ralcqln:cfi. neecn no c@nmlents. Xxx St-

Ld. ADJ has Petitioner failed to being a wh Kashrnir was bdrrrt and destrolied by the militants, he has no lrlace to go. I{e is, l,herefore, corupelled to stay at his Govt. accomtrl'odation allotted to him bill the norrnalcy in Kashmir vallelr is res[ored and he could go back Lo his State one clay and iebuild and 'reoccully his destroyed house. I-Iowever, tb.e Responden[s in a most callous, unconcerned and mechanical tnannel turned down the request of the Petibioner.,

Fundamental Rigrht to live which is guaranLeed to him under the Article 2L of,the Constitution. of India and which Riqht includes the Right to Shelter also.

No.l- namely, the Ministrv of Urban Development who is the nodal agency to ensure Proper shelter to the citizens of India 'provide suitable accotnlnodation to the PeLitioner and otirer sirnilarly placed l(ashmiri migrants at affordable price and in easy instalhnents, no retired Kashruiris can acquire a house of [heir own and move to the salne. The Resi:onclents have of their own and move to [he same. The R.espomdlents laave not tancen any positive action in this directioxr so that 'tlhe X(ashruriri miErants are nehahinitated properly and wittr cIiEnit5r" F[. Because, in the face of the pecriliar circumstances and abnormal conditions prevailing in the State of Jamm.u and Kashrnir, employees of the S[ate of J & I( were granted relibf by the Hon'ble Supreme Court of India on hurnanitarian considerations. and on th.e basis of ecruali.tv. )o(x XXX'

K. IJecause the right to the

Petitioner [o ]rave 'a shelter does not cease to exist just because he has retired. from the Government service. I-Iis rigirt to continue to stay in the presenL accornnrodation or in an alternabe accommodation to J:e PTqYL be tahen awali till his safety in his own State is ensured and his own house in Srinagar is renovated' or rehas no o[her income whatsoever- 3>

16. That in response Lo t.hc contenbs of pana K of ground, it is subrnitted that [he pe[i[ionelr was allotLed accommoda[ion Governnrent subject allotment rules While he was iLr service. He was enti[lecl [o leLain. the Government Quarl,er oLrly during his service period ancl t.he alloirnenL has. been cancelJccl. consequenL upon his re[ilemenl, t.o the Directorate of n. Becatrse Estates are ailoLting general Pool [hey also deserve special treatment in the matter of Providing a'ccomrnodation as in the case of the aforesaid non-governrnental categories.

Responden[s has the power to relax Allotrnent Rules in respect of any person and in respect of any accommodaLion. According to SR. 3tr-7-18-25 of the Allotment of Governmenl. Residences (General Pool in Delh) Rules, 1963, the Gove::nrnent have the power to relax the Allotrnent Ru1es which is reproduced as under:- "Strt 3L7-ts-25: The Government may for reasons to be recorded in writing relax all or any of the provisions of [he Ru].es in this Division in the case of any officer or residence or class of officers or type of residences." various other ca emlrloJrees who have nothing wi[h government service' emnlovees wor:lcincr in the offi datio u[1] concessional perrocl o-L r()LLl' rnonths. Furthe:: re[etr ti.ott tirereafLer for a maxitlttm periocl of fonr mon[hs on medit;al grouncls as per, rules has alreacly been availeci bY him. l-7.That in response Lo tlre contents of pana lL of ground, it' js. subrnitted that. the allotmen L of Government cluarter is ilade as per the rules and policy laid dowu by the Government. L[8].That the conten[ of t]Ara ]4 ol: the Ground neecLs no comnmen[.s f'or want of XcnowllectgP. However, the pe[l[ioner is a \, tf 2'2. The ir}ove nan:ation woulcl sh.ow [ha[ the respolden"[s ad"mit the correcLness of the factual subrnissions, righbs claimecl a1d en.titlelnen[s of the petitioners in these grounds of the wri[ peLition. Nata-tl'e of, riqhts invqlved in these petitio'ms C ons tittt ti o n al qtt arante e s.23. Before proceed.ing to examine the chalienge laid by Lhe pebitioners, iL is essential to exailine the right of the petitioners which is involvecl. Ar:Licle 19(1)(e) of the Cons[itu[ion of Inctia states tha[ all citizens shall have the right to reside and set[le in any parL of the terri[ory of India. Article 21, on Lhe obher hancl sta[es l.hat no person sha]l be cleprivecl of his life oi per"sonal ' liberty excepl, according l,o procedure establish"ed by law.

24. 'I[e petitioners cluestion the jurisdiction and iegali[y of the responclen['s ac'Lions and threat to forci]:ly wict them from their only shelter in purportecl exercise of staLuLolT.powers uLilizing the process prescribed. uncler the Public Prernises (Evicbion of. Unauthorisecl Occupants) AcL, Lg7L (hereafber referrecl to as the 'Public Prernises Act, l-97L').

25. In.L995 (4 SLIT. 72, -P.G. Gupta Vs. State of Gujar"at & Ori., the Supreme Cour[ helct that food, shelter ancl c]o[hing ar:e the rninirnal human::iglhts. The cour[ reitera[ecl its earlier.expansion of the right to residence and se'[tlernent by again holding that, ib is a "fundamental right under Ar[icle 19(1)(e) and it is a facet of insepara'te mea'ingful right t'o life r"rnclel g Ar[icle 2!" ofthe Consbibution of India'

26. Fund.amental rightS-are guaranteed to unclef parb III of the constiLution of India. In (1996) 2 SCC 549 Chanteni singh & ot's. vs. state of u.F. & A'ttt'., t;he Suprerne Court held that the ritrht available l.o every citizen of Ind"ia' It was also read into the r:ight to life guaranLeed. uncler Article 2I of. [he Cons[itution [o mahe j.b more meaningful. 11 para B of the juclgrnent, the court succinct$ set out the nature of the right and the mandate or: Lhe state as follows:- '8. In any organised society, rightto live as a human being is not ensnred by meeting only the anirnal need.s of man. It is secured only wiren he is assurecl of all facilities to develop himself and is freed from restrictions which inhibit his growth. Ali hurnan rights are designed to achieve this object' Riqntt tullr. q"^r ntu.Ain any civilised society imptries ttrne rtqW to food, rMa'[er, decent environment, education, rnedical care and shelter. These are basic hurnan righLs hnown to anv civilised /society. AII civil. political, social and cultural rights enshrined in the Universal Declaration of Human Riqhts and irstitution o be exercised without these basic human rights. Shelter for a human beinq. therefore, is not a mere protection of his life and limb. It is &oaze rElrezie,/ae trtas bpportwnities to srow rsllstcallv. tnenLallv. intellectuallli and spiritualllr. Risntt to sntenter, tlrerefore, inclatdes adequate trivinq sp,aae amd tf,eceilt stt-uctures. clean and decent stuL'otutdinqs su[ficient ]iqht. pure air and water. electdcitJr. sanitation and other cirdc amenities like roads etc. so as to Ltave easJr access to ltis dailJr avocation. Tnte mqnt rc slrctter, ne riqltt to a roof aver one's h.eaa{ but !,!q_ht to ail the inft'astru.cture necesqarvr to ettahne iltemt to Iive and devetrap as a hunnan beinq, Rigrltt trut strteXter when used as an essential reqwisite f;o ttrte tioltt to live sltould be deenzecl to trtave heen gatqranteed as a fundamental z:iqlzt.,4s is enioi$ed,in the Directive Ffinciples. the State the citizens of lndia 't t- -1 I member of the organised ry retin& In a democrabic societY as a rcraniied civil communi[y one s]roulcl elterso as to phvsieallv, menta hvsi ancl inte[eCtually equip oneself.to' irnprove his excellence aS a useful citizen as enjoined in the Funclanrental Duties and to be a useful citizen and equal participan! in d.emocracy. The ulLirnate object of nr-atcing a man equipped wibh a riEtrtt to digrnity of, pers@il and eEwality of status is to enable him to develop lrimself into a culture being. [Mant of afeaent therefare tes the ve tof Nte Constitwtional animatiott of timht to equatritv, eaonontic iustice fundantental rioht trt of 'person and (Emphasis supplied) Ttre Apex Court unequivocally cleciared that all the civil, political, social and cultural rights enshrined in the Universal Declara[ion of l{uinan Rights and Convention, 1948 or uncleq the Constibution of India cannot be exercised without, inter alio [he basic hurnan right of shelLer.

27. The right to sh.elter as an essential concornitant of the fundarnenbal right to life was also pressed by bh"e pavenr"ent dwellers in Lhe pronouncernent reporLed af, (L997) '11 SCC run Altnteda.Ftad A[wtticipal Cor"ltoratiott I/s. Nawab. K]tatn G.ailant Khan & Ott's. The Municipal Corpora[ion of Ahrneclabad was com.plaining against encroachrnent. ancl occupa'Lion o.t pavelnerts in the.urban limits of Airmedabacl by the pavemel[ dwellers (respondents therein). The court was concer:ned with the plea of violatiorr of funclamental righLs of the pavernen[ dwellers under Ar[icle 19(1)(e) and 21 of the constitution of Inclia ancl their entitlement to shelter. The summation by bhe Court.placing reliance on the several prececlents on the subjecL throws ligtrt on the very question which has been raisecl herein >/ a. --: \ also. After reiterating the pr:inciples in earlier judgrnenbs, [he oirservatiols of the Supreme Courl read as follows:-

The surplus urban-vacant land was directed to be used to provide shelter to the poor. in Olga Teliis case (supra), the Constitution Bench had considered the riqht 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 2l-; their ejectment from the place nearer to their work would be delrrivabion of their right to livelihood." It would, therefoie, be clear thaL though 'no person has a right to encroach ancl erecI structures or otherwise.on footpath, pavement or public sbreets or any other place reservecl or earmarlced for a.public purpose, the SLate has h.t Right to livelihood is meaningful because no one can iive without means of this living, that is the rneans of livelihood. The deprivation of the right to life in that context would not only denude life of effective content and meaningfulness but it woulcl make life miserable and impossible to live. nt wotitrd. therefore- be the cluttv of ilte State ta provirle risltt to shelter to the ryoqr and iitdiseffi weaher sectiotts of the Societv in of the Consti[ution provides clown ancl resicle in any part of the Bharab ancl none have'riglrt to prevent their settlernen[. Any attempt in that behaif would be unconsbiLutional. The Preamble of the Constitution assures f the peqrle and clignity of the person to rnalce India an integrated and united Bharat in a socialist secular democratic republic. Th"e l:olicy or have the opportunit-v to rnigrate and settle down in anv parl,. of Bharat where opporLunity for ernployment or better living conditions are available and. therefore, it would be unconstitutional and impermissible [o prevent the persons from migrrating and settlinq at places where they find their livelihood and means of avocation. It is to remember thaL 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 i:erson in an integrated Bharat. The fundamental ricrhts and 'the direcbive principles and the preamble beincl trinitlr of the Constitution, the riqht to residence and to seLtle in any part of the country is assured to everli citizen..The right to life enshrined under Article 2l- has been in[erpreted by this Court to include rneaningfui righL to life and not merely animal existence as elaborated in several judgrnents of this Court including Hawhers' case, Olga Tellis case ancl the latest Chameli Singh's case and host of other decisions which need no reiteration. Suffice it to sbal,e Lhat right to life would include riqht to livb with hurnan dignity. As held earlier, ricrhb to residence is one of the minimal human riqh[s as fundamental risht. Due to want of facilities and fwlfilmet 'onstitu

25. Alticle L9(L)(e) w oppor[unities, settlernent is the right an illusion to residence rural and to the 3r and urban poor. ta

28. ' tl" peti'bioners are facing threatened forcible evicl,ion frorn the o4ly shelter they know whicir was allot[ed by the responclents, either to them or the person on whorn they were clepenclant. If compelled to vacate without provision of an 'aiternative, the inevitable consequence is, that the peti[ion"ers would. be renclerecl homet"rr.

29. It is obviouS thirt the present petitions raise an impoiLant aspect of right to shelter of these displaced persons under ArLicle 19(1)(e) and wirich has been cleclareci by the Supreme Court to be an integral ancl essential part also of their right to life, guaranteed.as a fundamentai right rinder ArLicle 2l- of the Constitution of India. In the several bincling juclicial prececler-rts noticed hereinabove, the Supreme Court has furilrer held thaL such violation lnay also adversely irnpact ancl viola[e the right to occupaLion ancl profession uncler Article 19(1Xg) of the Constitution of India which is the other basic hurnan riqht of [he petitioners inextricably involvecl in the instant case. International perspective - conventiotts: ttot'ttts: otticlinq -':'-ciples and their a'--' ^' '-'tJr to present casb

30. so'far as right to adequate housing and. i[s protection is concerned., there is no specific dornestic legislation on the isstie. (Emphasis suPPlied) In the "aforenoLicecl pl:onouncernen[s the Supreme Court has been of [he view'that such::igirt can a]so be sourced as a llasic human right und.er the international humal rights law' 31_. This court has hacl occasion to exarnine the source of [he right to housing, shelter and protectiol against forcil:le evictions by resid.ents of JhuggiJhopri clusters (hutments.) in the juclgments clated L4tr';uly, TOOG in W.P.(C) No. 500712002 reportecl at M,4NU/DE/9327/2O06 entitlecl laEdisk vs. DDA and. also Lhe pronouncement'of this court daLed l'l-u' February, AavewuneW of eelW with connec[ed writ petiLions. In this regarcl, in.these judgments as well, reference was made to the following international & regional covenanLs anci deilarations on the right to adequate housing which cleclare that provision of housing as well as the probecLion agains[ fcirced eviction is the unequivocal responsibility of [he state:- (i)The UnivenEal Declatation of l{uman Risltts- 1948 rnakes the following statement: "Ar[icle 25.]. Everyone has the right to a stanclard of livingl a.deciuate for the health and well-being of hirnself and his family including foqd, clothing, housing and medical care and necesFary social services, and the right to security in th.e event ' of uriemployment, sichness, disability, widowhood, old 'age or oLher lack.of livelihood in circurnstances beyond his control. " (.ii) Tlre nnternational Convention on tlae Elitttinatiott $ m nrms of naciat P the following: "Arl.icle 5 In cornpliance with the fundamenbal obligations laid dornm in article 2 of this Convention, States Parties undertahe Lo 201"0 in W.P.(C) N, \2-. in all its forrns and to guar:antee the r:ight of evetYone, without distinction as to' race, colour, or" national or ethnic origin, to equality l:efore thg law, notably in t'he.enloyment of the following rights: XXXX

(cl) Other civil rights, in particular

(iii) The right to housing."

(iii). ArLicle L[1], of tlre rntuntatispal covena4tt qn nconomlc. SaAat ana adopted by..thetions on the 16th of December, l-966 further codifies the right to b.ousing and states tht"ts: "A::tic1e l- l- "1. The State Parties to the present'Covenant. recognize the right of everyone to an adequate standard of living for himself and his farnily, including adecluate food, clothing, and housing, and to the continuous irnprovernent of living conditions..........." India has signed and ratified this covenant and is thus a s[ate parby to it.

(iv) Part II of theDeclara,tion of Social Froorreps and

LesWstatesthus: ' "social progress and clevelopment shall airn aL the continuous raising of the material and spiritual standards of living of all rnernbers of society, with respect for and in cornpliance, with human rights and fundamental freedoms through the attainment of the following main goals: XXXX tu'bicle LO(fl The provision for aII, parti.cularly.pet:solts low-incorne groups and large. families, adequate housing a1rd community sen/ices.

(v) Part III Section (B) of the Vancouver Declaratiom g mandates as foilows:

(vi) Alticle B.l- of tlre Dectraration on the Riwht to eeveloement lEg[6] also states that: "Ar[ic1e B..) l-. States'should undertake, at the na[ional level, all necessary measures for: the realization of the right to developmenb and shall ensure, inter-alia, equality of opportunity for all in their access to basic resources, education, health services, food., housinq, emplo5rment and the fair distribution of income...." (vii). The above olrjectiv'es were also reinforced the declaration made in the fntentatiottal Vear of ilte Homeless in 1982 bV the United Nations when ib siroke of this right of all individuals in the fqllowing terms: rrl "a real home...one which provides irroLecl'ion frorn thg' elernents; has access to safe water incl sanitation; provicles f.91 secure tenure and p.ttonal, safeq[4] and within easy rgagh of -centres for employment, education and healbh care; and is at b cost which people and society. can afford."

(viii) on the issue of forcible evictious, the Geryeratr

E@ clated 2oth Mav x927 on the right to tleciuate housing (Article lt.t of the Covenant: Foriecl Evictions) by the Contmissiott on Eaottotwia social and cultural Riahts is important and is extracted lrereafter: "(l-) In its General Comment No- 4, (L991-), [he Committee observed that a]l persons should possess a f<rrced..evicLion, harassment and other threats. It concluded that forced evictions are prima facie incomPatible with the requirement of the Covenant' (2) The international communiLy has 'lottg recogjnized tirat the issue of forcecl evicbious'is a serious one. In 1.976, the United Nations Conference on Human Settlements noted that' special attention should be paid to "undertaking mqjor clearance operations should [ake place only when conservaLion and rehabiiitation are no[ feasible and relocation measures are made' in l-988, in the Global Strategy for ShelLer to bhe Year 2000; adopted by the General 'Assembly in its resolution 4311.8I, Lhe "fundamental obligation (of Government) to protect and improve houses and neighborhoods, ral,her than damage or destroy them" was "recognizecl. Agenda 2l- stated thab "people should be protected by law against unfair eviction from their homes or lancl". In the I-Iabitat. Agenda Governments committed thernselves to "protecting all people from, and providing legal protection and redress for, forced evictions that are contrary to the law, tahing human rights into consideration; [and] when evictions are unavoidable, ensuring, as appropriate, that alternative suiLable solutions ar:e provided". The Commission on l{uman Rights has also indicated that "forced evictions are a qross violation of human rights........" \f

(x) Annexure;I of tlre R'eport q.f ttrtq Speaial.R.atapofiewr on 'Adequqtg, Elbusin-E iays down some ' s on develoPmen[ based evictidns uuO disptacement. It provides the guidelngg on relocation of the clisplacecl which read" as follows: feasihtre " mus! do so immediatelv wwom flie eWitlon. except in cases of force majeure' At a rnj,rir".,"r" regirdless of the circumsbances and without discrimination, competent authorities shall ens{rre that evicted persons or groups, who thernselves, hFve safe and secure access to: (a) essential foocl, potable water and sanitaLiou (b) hasic s-he.Iter and housinq; (c) appropriate clothing; (d) essential medical services; (e) livelihood sources; (0 fodder for livestock and access to coillmon property resoul:ces previously depended upon; and (g) education for children and childcare faciliLies. StaLes should also ensure th.at members of the sarne extended family or cornmunity are not seLarated as a result of evictions. XXX

55. Identified relocation sites must fuifil the criteria for adequate housirtg accord.ing Lo inbernational human rights law.' These include: (a) Xxx

(c) SCCUTIIY of tenure;

(d) hahitable- housing providing inhabitants with adequate space, protection from cold, darnp, heat, rain, wind or other Lhreats bo healtir, structural hazards and disease vectors, ancl ensuring the physical safety of occupants; XXX

(d) No affected persons, g"roups or communil,ies shall suffer detriment as far as their human rigrhts are concerned, nor shall their right to the continuous improvernent of living conditionF be subject to infringernen[. This applies equaily to hosL cornmunities at resettlement sites, and affected persons, groups and communities sulrjected to forced evicLion; XXXX odatiott,. @r resti

57. R.e.haltilitation ttolicies rnusL include programmes designed" for.wolnen and marginalized and vuinerable groups to ensure theii equal. enjoyment of the hwtnatt.tionttu ta.fzawsiia, foocl, water, health, educatiotl, work, degr:ading treatment, and rnovemen'L. ' inhuman freedorn 3,2.

58. Persons, groups or c@nwrnunxnities aff,eated hy am euictiott sltowld ttot suffer detriment to their huntan tigrltts, incnudingr tlreir right to the progressive realization of the tiEtrtt to adequate housittE. This applies ec1ually to host cornmunities at relocal"ion si[es. (ErnPhasis' suPPlied) The LIIV Committee on Ecottontia- fioaiatr and Qlilluratr Xtiqhts in lWav, 2, in its Concliuctrittw Oltgenyatioils oil India, called upon the Indian crovernmen[ particuiarly to address the issue of rising hourelessness, including the need for disaggregated data on the horneless. In the observations relating to India as a stal.e parLy, it specificaily statecl as follows:- "30. The Cornmittee is concerned about the lack of a nabional housinq policy. which particularly adclt:esses the needs of the disadvantaqed and marqinalizecl individuals and groups, including those living in slums who are reportedly growing in numbers, by providing them with low-cos[ housing units. The Comrnittee also regtrets that sufficient information was not provided bli the State party on the extent and causes of hornelessness in the State party. The Committee also requests the State party to provide, in its next periodic repott, detailed inforrnation on homelessness in the State party and the extent of ' inadecJuate housing, disaggreqated by. inber alia, sex, caste, e.thnicitlr and religion.

20. the Comrnittee urges the State party to address the acute shorbage or afrolclable housing by aclopting a national sl"rategry and a plan of ac'bion on adequate or of ttT housing units, especially for the clisadvantaged and low income groups, inclucling those living in slums- In this Conneclibn, ihe Cornmitte.e reminds tlte-Stqte partv Otr r. tion TI the and re its Gen No. 4 the ousina' (1991t - to guide. the t's housinq policies. Tke Committee the its

71. The e. aws an tions ryt.x. cliswtracetnent ancl forced euictions anatr ensure tkat,ns euic trands witlt offered alternative accommodatiott, in accordance with the guidelines adopted by the Commit[ee in i[s General Comment No. 7 onforced evictions (1997). The CommiLLee aiso recornmends that, prior to implemenLing clevelopmenL and urban renewal projects, sporting events and other similar'activities, bhe State party should undertake open. l:articipatorir and communities. In this connection, [he contmit[ee draws the attention of Lhe State party. to its General Comment No. 4 on tire right to adecluate housing (1991) and further requests the Sta[e party to provicle inforrnation in its next periodic report 0n pl:ogr:ess achieved in this regard, including disaggregatecl statisti.cs relating to forced evictions."

33. The above narration would show that the in[ernational covenan'Ls ancl instrurnents refer to basic hurnan rights. Ail "of thern have recognized right to shelter as a basic human ricjltb. essential for survival. It needs no elabora[ion thab the concepb of hurnan rights ernanates from the ancient doctrine.of natural righbs based on nal.ural law. The."peri.nce, of the Pos[- Second. Worlcl War which brought forth the InLernal.ional Charters and Conventions leading to the emergence of the presenl, clay human rights. The first docunr.entecl use of the expression 'hurnan rights' is to be founcl in the Charter of uhe Colnmittee recommends that the Stat-e e itnmediate ilneasutes to effectivenv Gove. Yy Unitecl Nations, aclopbed. on 25t1'June, 1945' cour:se not binding but sta[ed that it was This Char[er was of only an ideai to l:e I Iater clevelopecl. ' By adopting the Univ I{uman RighLs in December, 1-948 the UN General AssemJrly took the concrete step of formalising the.various hurnan righLs. This was followed by the International 8il[1] of Rights' The deficiency in the binding nature of the declaration was rernoved by the U.N. General Assembly by adopting on l-6'r' Decentber, l-966, firstly, the Covenant gn Civil ancl Poliiical Ricrhts which formulatecl legally enforceable rights of the inclividr,ral ancl, secondly, the which was ad-dressed to the states to irnplement thern by legislation. These covenants came into force in Decernber, l-976 after ratification by the requisite numl:er of rnember s|al.es.

34. The above narration shows that honelessness *.uy lesr-tlt frorn several causes including natural clisasters; cleveloprnenl, projects, econornic deprivation as well as human righ.Ls vioia[ions.' In[ernational law terms persons who s[and displacecl from [heir countiies as "refugees" and recognizes that they are eubitled l,o protection from being returned to places where thej.r Iives or freedom could be threatened..

35. At the same time there are growing instanbes inter-nationaliy of persors and even comlnuRities who are cornpelled to abandon homes on account of threa[ of irnminen[ violence or stand forcibly evicted by use of violence ancl tl'Decembe coun[ry. They cannot return to their ]romes wi[hin [he bound.aries of tireir own countries in the face of the continuing threat of i:ersecution and danger to their proper[ies'. sr'rch persons cannot.be terrned as "refugees" aS desCribed by learnecl coulsels.for the pebibioners. In international parlan'ce/ pel-solls compelled to relocate within the boundaries of their own countries stancl. categorised as ".[ntenta.Xny Dispnaced psx'gtend' (abbreviatecl as'fDF shereafter)'

36. The presenL petitioners along with several o[her families, Inclia ancl woulcl have.l:een compelled to relocate within therefore fall uncler the category of suih in[ernaily displaced persolls ('IDPs') who have. re.eirr".t either insufficient or no protection by the Sta[e, frgm or during their persecubion.: Except that IDPs are forcecl.to flee frorn their homes to anot.her location with their own country, refugees ancl IDPs appear to be sirnilarly situatecl. However, in[erna[ional covenants respect the principle of non-interference with the internal politics of one country, and consequently [ltere exis[ no international conventions relating to IDPs.

38. Ihe United Nations High Cornrnissio.ner for Refugees has recognised bhat the IDPs also. face Lhe same problems as international refugees and require to be treatecl wittr digniLy by their own governrnents with full respect given to their l:asic human riglrts.

39. In this regard, a guiding document has been framed by. Francis Denge, the representative of the Secretary Gbneral of the UniLed Nations on Internal Displaced Persons, in 1998 ' DispXacentent' which was preselted- to the UNCHR' ]"he commission in a unanilnously acloptecl resolution tooh nobe of these principles which ad.clress the specific needs of inbernally clisplaced persons. worldwid.e and id.entity rigfubs and guaranl'ees relevant to the protection of persons from forcect displacement ancl Lo their irrot-ection and assistance during displacemenb as well as cluring return or resettlement and reintegration. 'Ihe 'introcluction to these Guideiines d.efines "Internally Displaced Persons" ('IDP's) in C1ause 2 as follows:-,,2. For the purposes of these principles, interiraily 'cl.isplaced persons'are peISonS or groups of persons who have beeri forced. or obliged to flee or to leave theil hornes or places of habitual residence, in par:bicuiar as a resuit of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natuial or human macle clisasters, and whb have not crossed.an in[ernationally recognized State' ]lorder. "

40. So far as housing of IDPs is concerned, these guidelines contain the following important provisiotls:- " F.tittciptre 3 1-.National authorities have the primarli dutlr and ibilitv to vid iurisdiction. request and to receive protection ancl humanitarian assisbance from these authorities. They shall not be persecuted or puni.shed for making such a request. XXX Fr"incilile 7 Prior to any decision requiring the displacement of. persons, the authorities concerned shall ensure 'that all feasible alternatives are explor'ed in order [o avoid displacernent altogether. Where no alternative exist,,. all measures shall be taken to minimize clisplacernent and its adverse effects.

2. The authorities undertaldng such displacement shall ensure, to the greatest practicable extenb, that proper accommodation is provided to the displaced r) condibions safety nu[rition, health and sa[iSfaCtory cond.ibionS oI Satety nuff1lloll, lleaILII ttIILr hygiene, ancl that members of the same farnily are not separated -Jftrrpl."cement occurs in situations other 1han during tb.e emergency stages of armed conflicts and clisast-ers, the following guaraltees shall be cornplied witlr: (a)A specific clecision shall be taken by a State authority empowered by law to order such measures; (b)Adequate measures shall be tahen to guarantee to 'those to be d.isplaced fult information on, the r:easons and procedures for their displacernent and, whe::e applicable,' on compensation and relocation; (c)Ttre free and informed consent of those to be displaced shall be sought; (d)The authori.Lies concerned shall endeavour to involve those affected, particularly women, in the planning and management of their relocaLion; - (e)Law enforcernent measures, where required, shall be car:ried out by competent Iegal authoril.ies; and (flThe r:igirt to an effective remedy, including the review of such decisions by appropriate judicial au.thorities, shall be respected. of Frinciptre E Displa6emenL shali not be carriecl out in a that vi lnanner an security of those affected. XXX Ftincfuile L[4] 1-.Every internally displaced person has the righ[ to remenL and freedom residence

2. In particular, internally displaced persons.have the rightto move freely in and out of camps or other setblernents. XXX ' Frinciptre 1.[5] Internally displaied persons have: (a)The riahi to seek safetv in another part of @g_cowntry; (b)The right to leave their country; (c)The right to seeh asylum in ano[her coun"[ry; ond (d)The risltt to he protocted aqainst fot'oihne returu to or resemem fAelr nfe. safeW. nne tat, ris.k. 2/ displacecl persons with and ensure safe access to: (a)Essen[ial food and potable water;' (b)Basic shelter and trtousinq; (c)Appropriate clothing; and. (d)Essential medical services and sanital,ion.

3. Special efforts should be made to ensure the full participation of. women in the planning and distribution of these basic supplies. XXX P,r:inciple 2n

1. No one shali be arbitrarily deprived of properLy and possessions. ecl protected, in particular, against the following acts: (a)Pillage; (b)Direct or indiscrirninate attachs or othelacLs of violence;.(c)Being used to.shield military operal.ions ol: olrjectives; (d)Being made the object of,reprisal; and (e)Being destrbyed or approprial.ed as a form of collective irunishinent.

3. Ft'opertv and possessioms treft behimd.bvr intentally displaced persons sltould fue proteated aqainst destrwction and arhitrarv and infuqal:?ppr@Wiatioil, @ccupatio..XXX Frinciple 25 L,The otimaty dutv and responsihinitv fot",pr"ouiclittq humamitarian assistance to internaWv @isptraced persons lies with natiomal authorities. XXX Seatiotz \/. Frinciples relating res e tttrent em t and rein te gta ti on to return, Frinciple 2E t.Cotnpetent autltorities have the p,.t:inaarv. @utv and responsiltilitv to estahtris"lt cgncfitions.:gE wetrtr as prqvide'tlre rM internallv displaced persons to reta,r"m

2. At (;gr a;utrrfrt,drtbEa, cornuetextt aurttoiities shall prouide intentanXv

2. The property and possessions of inter:nall]i 5> ffii authorities shaii endeavour to ffi the reintegration of returned or resettled in[ernally displaced Persons'

2. Special efforts should be made'to ensure the full participation of internally displaced persotls in the iffianct management of their return or::e settlernent and reinte qration. Pfincipal 29 l-.Internally displaced persons IMho have returned to Lheir homes or places of habitual residence or wnto n'esettle volanta@ have 'ed im a C@MN 'itrla/l id Gcriminated asainst as -a -result of their ha"mg Feen displaced. They shall have the right to participate fully and equally in public affairs at all levels and have equal access to public sewices'

2. Cotnpetent autlzotities have ilte cnutv aryd, rysootisibiiitv to assist returned and/ot' resemn -ed rynler, to the,cornpetent authotities shall pt"ouide or assist.these peilsons in obtainins aowroptiate nsation fonn 41,. The United Nations Charter thus esbablishes the obtigation upolt rnernber nations to promoLe the key httrnan rights. The Universal Declaration of Hurnan Righl,s, 1-948 bhough not a trea[y,,but is a dec]aration publishecl by the Geineral Assembly of the Unitecl Nations and is the primary d.ocurnent which is concerned with the listing of the rights. Ib affirrnatively lays down the common standards of achievement for all peoples and all nations. It consequently has an effect which is similar Lo a treaty. Fur[her every nation who is a signatoty to [he aforenoticed Inbernational Covenant on Economic, Social ancl Cull,ural Rights ('ICESR') must refrain from acLs which wouicl sy the ICESCR es[ablishes that "the ideal of free human belngs enjoying freedorn from fear and want can only }e achieveci if conditions are created. whereby everyone may eqjoy - his economic, social ancl cultural rights as well as his civil ancl political rights" Article 1,L of this covenant emphasises l.hat the sta[e parties recognises the right of 'every person to an adeclual"e stand.arcl of living which inclucle aclecluabe housing ancl continued irnprovement of living conditions. The right fot: peoirle to be free from want is the veIY foundabion of the ICESCR.

42. The international human rights law thus estabiishes a iegai obligation for ensuring minimurn welfare guaranLees. The conven[ions, treaties and declarations 'as we]l as the guicling principles manifest the international consensus [hat evely nation has a cluty to ensure and. provide these guaran[ees including, inter alia shelter and basic general assistance Lo. everT llerson on i[s soi]s.

43. The aforenoticecl international corwentions which exisl, as well as tire Guicleline Principles for IDPs therefore recognize Lhat shelter and housing is a basic hriman righL of ever1y incLiviclual which is the bare minimurn Lo be providecl Lo interlally ctisplac ed persons. These Principles also emphasise ail righLs of displaccd person.s ancl caste a manclate on the naLional authori[ies concernecl of their primary cluty and lesponsibillty to lrrovicle protecbion ancl hurnanitarian assistance to internally. clisplaceit z--- 5f safety as weli as probecLion against forcible rel'urn ancl resetblement in a place where t]reir life, safe[y, iiberby ancl or heal[h woulcl ]re ensurecl. The Guiding Principles have Jjeen evolvecl af[er an elaborate consu]tative pl:ocess'

44. Before proceecling any further, it is necessary to exaniine the binclingness of.the above principles on Lhe cour:ts in India' The extent, manner ancl ' applicairility of In[erna[ional ConvenLions and" treaties in interpretation Td expansion of righbs, have been apthoritatively considered and are well setLlecl Jry a ca[ena of bincting precedents of the Suprerne Court' In the antlroritative pronouncement repor[ed at JIYZQOS(nSCnL, ZOOS(9)SC"4.LE6T Entertainrient Netwottrr ([ndia) X.td. Vs. Supei- Cassette nndwstries Ltd. the Suprerne Courl. tracecl the evolu[ion of the jurisprudence on the is.sue under consiclerati'on in paras 48 to 54 which may usefully be extracdecl and read as follows:-. "48. Beginning from the decision of this Court in arati MANU/SC/0445/1973: AIR 1973 'SC 1461, Lhere is indeed no dearth of case laws where this Cour[ has applied the norms of international laws and in parti-cular the international covenants to inberpret dornestic legislation. In all these cases, this Court h.as categoricallv held that there would be no inconsistency in the use of international norms to the domesl.ic legisiation, if by reason thereof the tenor of domestic law is not breached and in case of any such inconsistencv, the domestic leqislation should prevail. In Jagdish Saran and Ors. v. Union of Inclia MANU/SC/0067/1980: (19B0) 2 SCR 831-, iL was obserwed: 'It is also well-settled tha[ interr:retation of the Constitution. of I time to titne. tseiila a liuina oroan. it is onqoinq and wittrt tlte"passaqe of o 5a nnav havp to be found out -wititin the-^ ffiheme. Horizons of constitutional law are expandinq. " 49.' In the aforementi-oned judgrnen[, fd b this the lrurpose of treaties and conventions. Yet -agarn tnclian l{andicrafts Em Lndi this ffi the Convention on In'ternational Ltd. v. State Ald Ors. MANU/SC/0595/1-989: AIR [his Court held: 1990 SC 1927,- "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 rnay note l.hat apart from the decisions cited by Mr. Sanghi, r:ecen'Lly a similar view has been Laken in Kapila Hingorani v. State of Bihat. (supra) and John Vallamattom and Anr. v. Union of India (supra)."

50. These judgments were referred [o in the decision of Liverpool and London S.P. and I Asson. L[d. v. M.V.. Sea Success I and Anr. MANU/SC/0951-/2003: (2004) I SCC 512, wherein this Court obsewed that as' no statutoty. Xaw in India operated in ttrte fietrd. Wtereretatiye cnanq made hauinq resard to the ever cltanai-mar q.[oIrEnX sceilano,. Liverpool.also referred for the proposition that the chansiilq qIoIlaI scenatio shownd Xle kept in'mind hauinq reqard,to the fact tkat there daes not exist amtr primarv act touctrtins the swhiect and in altsemce of aizv domestic leaistratiotz to ilte contraty. Comcurrinq witlt tlte said deaisions. it W,as howrever ooine[4] tltat tlte.same cautrd no,t 4nean tliat it restticted tke iurisiCiction of, ilte Wndian l{iah Courts to intentret tlte domtestig tresislatiort strictlv accordins to the fwdqe made !w- 5L. Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed by the Supreme Court in a irleLh.ora of cases inLer alia The State of West Benqal Tracle in Enclalgered Species (CITIES) and appliecl the principles of prirposive constructiols as also not only ttre pirective Principles as contailed in Parb IV of the Constitution but also Fund.amental Duties as con[ained j.n Part IVA thereof. Referring to Motor General v. wherein this Cor11t.tf"cted to interpret the Jqvenile Justice Act in light of the ConsLitutional as weli as In'bernatiolal Law oierating i[1] t5e field. (See also Cen[ro[rade Minerals ancl Metai Inc. v. Hindustan Copper Linitect IVIANU/SClBL46l2006: (2006) 11 SCC 245: State of Punjab; State of Punjab ancl Anr. v. Devans Modern Brei,varies LtcL ald Anr. MANU/SClo96tl2003': (2004)t[1], SCC 26 and Anui Garg and Ors. v' Hotel Associatl0n of India and ors. MANU/SClgt73l2007: AIR 2OOB SC 663.

52. However. applicability of tlle In[erna[ional 'Conventions and Covenants. as also the resolubions. etc. for the purpose of interpretinq domestic staLu[e wili depend upon the acceptability of the conventions in crueition. If the country is a signatolY theie[o subjecl of course to the provisions of the dornestic law' the International Covenants can be utilized' Where International Conventions are frarnecl upon undertalcinq a qreat deal of exercise upon qiving at} obportuniW of hearinq'to both the parties ancl filtered at several levels as also upon talcinq in[o consideration the different societal conditions in different countries l:y laJring down the minimurn norm. as for example, the ions, the free e benefits thereof. Those Conventions to which lnclia may tiot be a siqnatory.but have been followed bv way of enacl,ment of new 'ParliarnentarJr s[a[ute or amendment to the existing enactment, recourse to Interna[iona[1] Convention is permissible.

53. This kind of stance is reflecLed frorn the decisions in PUCL v. Union of India.MANU/SC/O2741L997: AIR 1997 SC L203, Tohn Vallarneittoin v. Union of India MANU/SC/0480/2003: AIR 2003 SC 2902. Madhu ICshwar v. Sta[e of Bihar MANU/SC/0468/1996: AIR 1996 SC 1864, Kubic Darusz v. Union of India MANU/SC/0426/]-990: 1990 CriLT 796. Chameli Sirrgh v. 'State of Swaminathaswami Thirukoil MANU/SC/0441/1996: (L996) l- SCR 1068, Apparel Expor[ Promotion Council

V. A.I(. Chopra MANU/SC/0014/1999:'(L999) 1 LLJ

III LLJ 31 SC, State of Punjab and Anr. v. Devans Modern Breweries and Anr. MANU/SC/0961/2003: (2004) 11 SCC 26 and Liberpool & London S.P. & I.Asson. Ltd. v. M.V. Sea Success I MANU/SC/0951/2003: (2004) 9 SCC 51-2."

45. \Mith regarcl to bhe application of Interna[ional conventions and trea'Lies in India, the Suprerne Court laici the,,In interpretirrg tlre d.ornestic/murricipai laws, this court has extensively mad,e use of International law inter alia for the following put'poses:

(i) As a means of interPretation;

(iii) To futfill spirit of international obligation which Inclia has entered into, when they are not in conflict with the existing. domestic law; (iv)Toreflectinternationalchangesandreflecl, the wider civilization;

(v) To provide a relief contained in a covenan[, but not in a national law;. (vi) To fill gaPS in law."

46. In,A,nR. 1gg[7] sc g0L[1] vishaha and otlters vs. State of R.ajasttreatt attd Others, the court was collcerned with a wrilpeti[ion filecl fol preserwation and- enforcem.ent of the righ[ to geircl.er equality and fundamental rights of worlcing women under Articles LL 19 and 2L of the 'Constitution of Inclia, Section 2 of Protection of Human Righ[s Acl., ].993 ancl the entitlements of working woillen uncler the Convention on Elirnina[ion of Ail Forms of Discrimination Against Womeu. There was no specific clomestic iegislation on l-he subject. With regarcl to []re importance and applicability of in[ernal,ional conventions ancl'l.reaties, the court helcl as foilows - 'i[7]. In the absence of d.ornestic law occupying the field, to formulate effective measures to chech the evil of sexuai harassment of working women a[ all worh places, the contents of International Conven[ions and norms are significant for the purpose of interpretation of tlre guarantee of gender equality, righ[ to work wi[h lruman dignity in Articles L[4], 1-5, 19(1)(gr) and 21 of the Constittrtion and the safeguards.against sexual harassment implicit therein. Any' In[ernational Conventlon not inconsistent with the ftrndamenbal rights ancl in harmonlr with its spirit must be read into these l:rovisions to enlarge the meaning and conten[ thereof, to promote the object of the consbitutional guarantee. This is implicit from Article 51(c) and the endrling power of the Parliament to enact laws for. 'International noruls }y vir[ue of Ar[icle 253 read witir E1[ry L[4] of the Union List in Seventh Schedule of the Constitution' Article 73 also is relevant. It provides that [he. executivelower of the Ulion shall extend to the mabters with respect to which Parliamenl, has power Lo rnake laws: The executive power of the union is,. therefore, available tilI the Parliarnent enac[s: legislation to expressly pr.ovide measures needecl [o curb the evil."." 47.. In (1999) n SCC 759,A,pparel Expot"t Ft'otttotiott Cowrycil us. A..nd. Chopra, also the Supreme Court was clealing with the case of sexual harassment at the place of work which vitial,ed the. working environment and obsewed that l.he international instruments cast an obligation on the Indian S[a[e to gencler sensitise its laws and that the courLs are under an obligation to see that the message "of the international ins[rurnents is not a]lowed to be drowned. The Suprerne Cottr[ again ernphasised. that the courts rnust never forget the core principles embocliecl in International Conventions ancl Instr-urnents and. reiteraLed. the above principles.

48. In (2OO[3]) 6 SCC n n{apila I{inEarani Vs. State af Bihan the Apex court.stressed on the importance of respec[ing InLernational Treaties and Conventions while interpreting LJre Constibution and clomestic law so as to effectuate the recognisecl rights and ol:served as follows- " 47. It is also well-settlecl that a statute should be, interprel.ed in the light of the International Treabies ancl 'Conventions. In Chairman, Railway Board and Ors. v. Mrs. Chandrima Das ancl Ors. MANU/SC/0046/2000: 2000CrIIJL473 this Courl, s[ated the iaw t]rus:- "24. The International Covenants ancl Declarations as adopted by the United Nations have 'to be respected bv all siqnatoq/ States and the meaninq given to the above worcls in those Declarations'and Covenan[s have to be srich as would help in effective 6o amplicaxlilitv 0f tlxe.uhivrersal Dealan"ationn M giolrtu uod ttrtr.r,iu'oiuX*u ffi rc be^read. if neeatr he. intb the d.otnestic iurisprudence." '49. As noliced above, right to residence ancl to settle in any part of the country is assured to every citizen as a fundamental right uncler Article 19(1)(e) of the Constitution of Inclia. (Ref: L997 (111 SCC 12L '4.hmedabad Municipal Cotporatiotn vs' I'Vawab Khan Gulah f,{han & Ors.) Ttre right to shel[er springs from this right and has been considered to be an in[egral par[.. for a meaningful eqjoSrment of right to iife under Arlicle 21' of,hg Constitution of India. (Ref.: 1995 Suppl. 3 SCC 456:,AnR x.gg[6] sc n n.[4] u.F. Avas Evam Vikas Farishad &,Ailr. \/s.' Ffie.tnds Co-operative fdowsing Society I'td. & 'Ant".)

50. 11 the instant case also there is no specific domestic iegislation al. all for internaily displaced persons. As no[icecl hereinabove, there aie also no InternaLional Conventions governing rigtrts of such pelsons. It is now an accep[ed rule of juclicial construction that regard must be had to international conventiotts, norrr.Is and guicling principles constrtLing dornestic law when there is no inconsistencv between thern and there is a voicl in the clomestic law. 5i-. IL is noteworthy that there is no specific laW, rtlle, regulation or instrument providing for treatrnenL of IDPs or' setting oul any minimurn standarcls for. their pro[ec[ion, rehabilitation and relocation. The Guiding Principles on Internal Displacement reiterate the veqF right [o shelLer constil,utionally guaranteed and recognizecl as a basic humern 6t consoliclate and. f111 gaps in nalional ancl interna[ional ]aw relating to such. displaced persons. They also provid.e a valual:le benchmark for what must be ensured as part. of bhe basic human righ[s security of 'such persons and woulcl.guicle consi.clerutiott of the rights of the present peti[ioners. 52.. It has been observed by the supreme courl. rn (2O03) 6 scc n x{apitra HdiilEotani vs. state of, tsihar. thaL indisputably, the slate parties to the International Covenanb on Econornlc, Social & Cultural Rights were to take appropriaLe steps to ensur" 1'sslisation of this thoughL. So far as the presenb case is concerned, this covenant specifically- states the righL of ever;yone to an adequate standard of living including housing.

53. The rules laid. down and right recognisecl in the aforenoticed conventions as well as the Guiding Principles would bind the present adjudication al.so in Lhe light of the following principle laid down in Entertainntent Netwotk (supta):-, "54 Furthermore, as regards the question whe::e the protection of hurnan rights, environrnen[, ecology and other second generation or third-generation rights is involved, the courts should not be loathe bo refer [o bhe In[ernational Conventions."

54. The peLibioners are members of the larger group from their comrnuniLy which stancls forcibly evicted frorn onu purtr of the country rendering thern homeless and resourceless. They are wi[hout resources at the place of their reloca[ion ancl are faced with the threaL of forcible eviction from their acco:mmoclation. By way of these writ petitions, the petitioners seek prolection and enforcement of their fundamental right Lo 6u recognise shelter as a basic hunan right. The Guiding prilciples reiterate the satne rights and responsibilities of bhe state So far as IDPs are concerned. ConsideraLion of [he petiLioners' righ[s, therefore, wou]d necessarily involve ensuring the clbjectives and. d.eclarations mad.e in the above. international insLluments esireiially those endorsed by India reiterated by Lhe Guiding Principles for IDPs. The Protection of Hunan Rigltts Act L 993 55; The issue in the insLant case has another dirnension Lo it which is oi importance. In discharge of the obligation rincler the international covenants, India promulga[ed all ordinance appointing commissions and courts for tire protec[ion of humau righl;s. Tlris ordinance. was replaced by the Frotectiott o,f Idnwan Riqkts Act. 1993 was prornulgated on B.tr' January, L994 to provide for th.e constitution of the national and s[aLe human rights corirmissions and human rights courts for Jre[ter proLection and. for matters connected. therewith or inciclen[al tlrerebo. E"*+E@tr are clefinecl in clause (d) of sub-section (1) of Section 2 as the'figltts relating to \ife, Iibet'ty, eqttality and dignity of the individual guaranteed by the Constittttion or entltodied in the International Covenants and enforceable lsv cotti'ts in India'. Tlre expression 'international covena"zifd is.also defin.ecl to inclu.cle the [wo covenants acloptecl by the Genera] Assernbly on 16tr'Decernber, 1966 and such other covenanl.s ancl convenr.ions adopted Qy tne General Assembly of the united Nations as the Central Government may specifii J:y notification- The International Covenanl,s, therefore, stancls recognizect by lhis legislation in Inclia. The said Act was made by the Parliament having regarcl to the changing social reali[ies and growing conceTn in India about issues relating to h.urnan rights with a view of bringing about greater. accountability and [ransparency in enforcernen'l, of the laws of the nation.

56. It is essential to note that in fact no new righL is being createcl, recognized or 'reiterated by the inl.ernal"ional instruments or the said guiclelines. The right to shel[er of every persoll has been qecognized as an essential concorni[ant of righ[ to life uncler Ar[ic]e 21 of the Consl"itution of India. It woulcl clearly be covered under the definition of a 'hurnan right' under SecLion 2(1)(d) of the Protection of Human Rights Act,. l-993 which includes right relating to life, liberLy, ecluality and clignity. The righ[ [o shelter, an essential part of right [o life, wor"rld therefore also be a statutorily recognlzed right under Section 2(1)(d) of the Act of L993 and enforceable as such also. The present petitioners, as persons dispiaced from their homes and sLate, by way of these writ petitions are Lhtrs, seelcing enforcement of such right to shelter.

57. The above cliscussiotl would show bhat s[ate cour[s are bound to use interna[iona] human rights covenanLs, wirich also.stand incorporated into the Protection of Human Righ [s Act, l-993, as a pillar of support for the rights recognised Lhereby and to ensure the recluisite 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 Lhe challenge r ttrxe stat 6Y (Euictiott of Unauthotised Occupantst Affi- n97l whictrt riahts 0f tke petiti@ners, tltetry!

58. On behalf of tire respondents, it is urged that bhe allotment of the quarters to the pe'titioners (or Lheir pre.decessors) stands cancelled. They are therefore in unauthorisecl occupation of the Government accornmoclation ancl therefore liable to be evicted under the provisions of the Pril:lic Premises (Eviction of Unauthorised OccupanLs) Act, 1,97t. The subrnission is f;hat the proceedings taken by the responclen.bs and the ordels passed against the petitioners were justified ancl are in accordance with law.

59. On the oLher hand, the petitioner:s have.urgecl Lhat even in their wildest dreams, they had never envisaged a situa[ion when they would not be in a position to reside in their own homes after retirenrent. On u..orrnb of grave threabs to their.safe[y, the petitioners have been prevented from re[urning to their homes. The petitioners are not residing in Delhi on accoun[ oI a. clesire nob to return Lo the valley or to perpebuate resiclence in Delhi, bub for reasons totally beyond conLrol of Lhese petitioners. The writ petitioners have stated that their hornes in Kashmir have either been destroyed or rendered inaccessible to them primariiy on account of the inability of the respondents Lo protect the same. They do not lr.ave aclequate rneans to acclr-rire any ilroperty in Delhi. It is the petitioners contenLion that Lhe wnd have ttrte 6s- 'pension aclmissible to thern cloes not enable Lhem to afford ren[ecl accolnlnodation or acquire their own houses. The. petitioners have submittecl that the respOnclen[s have permit[ed simitarly situated persons to continue in. the allobtecl. f... r accornmoclation. Reliance is also placed on.orders of the Supreme Court, tiris Court and the Cen[ral Administral.ive Tribunal also prohibiting eviction of similarly placed persons.. frorn allotted accolltmodation. In this background,.the petitioners assail also the'failure to consicler their requests to the responclents to exercise ' cliscre'tion vested.'in them under the Allotment of Gover:nrnenb Residences (General Pool in Delhl) Rules, ]963 to perrni[ the petitioners to continue to occupy tire allotted prernises. IL is urged that this refusal was discriminabory, arbitrary ancl has faiied to consicler the relevanl circurnstances.

60. It is contencled. try the petitioners thab in Lhese facts, they are not in unauthorized. occupation of the quarters and tha[ [he. fespondents ioulcl not have taken recourse to proceedings under the Public Premises Act, L97t whicir would have the effect of ousting thern and th.eir families frorn [heir: only resiilence without taking steps of making lrrovision of reasonable alternatives. The contention is that the entire action tahen by 'the respondents, and irnplernentation of bhe threat of forcible eviction would result in violati.on of Lhe fundamen[al and basic human rights of the peti[ioners ancl, therefore, is unconstitutional, without juriscliction ancl 'completely illegal. 6A Bindin o i tt dicial Pre c e de nts 61.' So far as the conclitions which were in existence in [he state of Jarnmu & I(ashrnir, tire restoration of nolmalcy ancl l,he circumstances in which they are occupylng Lhese quarters are Concerned-, relianc'e has been placed. by the petitioners on the proceedings ancl orders passed in several sirnilar cases prior hitherLo which have been completeiy ignored by the lesponclents. Attention is drawn to the orders of the Swpre"rne cou.tt of nndia in sLtr (c) No.7639/1999 Shti !"L".Kotil &,A.ttt'. I/s. State ofjammu & Ihsitnfir & 9ns. ShriJ.L. I(oul & [he other petitioners in this case were l(ashmiri pandils who were emllloyees of the State Governrnenl, and |eing S[ate Govbrnment servants, hacl been' alloLtecl resicleir[ial accomtnod-ations in Jammu between 1989-90. Their houses in the valley were either clestroyecl or burnt clown by rnilitants. EVen though. they had retired frorn Service, th.ese petitiouers were permitted [o retain the governmenL accommodations in Jarnrnu for safety reasons. Such a step was considered' necessaqy and inevitabie by the State Governrnent as. [he atrnosphere was not congenial for the appellants to re.[urn to.the valley, more so when they had lost their respective houses.

62. It appears' that other state government employees awai[ing al]otrnent of official accommodation, could nob geL tJle salne for l.he reason that these re[ired l]ersons continuecl to occully. the official accommodation. They filed a writ peti[ion before tle High Court of Jamrnu and l(ashrnir cornplainiu.g againsL the failure of the State Governrnent to provide [hem 6T CourL of Jarnrnu'& Kashmir had ailowect the wrii petition ancl passecl a juclgment on 24tr'JanualY, 1997 clirectilg eviction of ail those persons who hacl ceased to be governlnent sewants lor 'any reason but were still occupying the state accomlnoda[ion' The learled Single Juclge had also directed tha[ the persons who were no[. in. governrnent service but recluired Governrnetr[ accornmocla'Lion because of security reasons, shoulcl be tlie-cl to be accornrnoclated. within o.ne complex so that their securi.by is ensured-, reducing the burden on the. state which woulcl hhve to incur lesser arnount for their security.

63. ' For the lreason that the state government was abtempting to evict these occtipants without providing thern with altelnabive acco:mmodations, a cirallenge was laid Lo the judgment of [he Single Judge da[ed the 24th of January, 1997 by a letters pateriI appeal. This appeal was clisrnissed by the Division Bench by a juclgmenL clatecl. L4th March, !997, however, giving elrl o[1]:portunity to the appellants to approach the approprjate ' authority for relief. In.this backgrouncl, these persons lecl. J:y Strri J.L. Koul, filed the above special leave petition before tlie Suprerne CourL. On a consideration of the mal,l,er, an inte::jnr orcler orcler clated L Lth April, tggT was passecl by the cour[ clirecting the sl,ate goveinrnent to rnaintain status qno regarcling the possession of the property

64. Mr. R.K. I{ancloo, learnecl counsel for the petitionel:s has referrecl to certain orders passed. by the Supreme Cour[ of ]ncl.ia in the said petition. On 26tt'Auqust. 1997, l,he Supreme Court had recluirecl counsel representing the S[ate of Jammu & 6Y the p.el;itioners can be put back in to the houses owled by tftem in the Kashmir Valley and to ensure plotec[ion of [hei' pt'iott' as also their- properbies.

65. The case was thereafter taken up by the Supreme Court on 28tr' Tanuarv, l-998 when the Suprerne Corirt tooh notice of the rnassacre of l(asirmiri Pandits in the Kashrnir Valley which hacl bahen place a few clays prior to the hearing and recor-decl the following order:- 'This orcler is Jreing rnacle in the backcirop of a lnassacre of I(ashrniri Pandits which [ook place a couple of clays ago in the Kashmir valley' iLio /\ct]oulned srne CI.1e.'btay to connnue. rI]e peururu[ uu be activated- on mentioning by counsel for the SLabe of (Underlining supplied)

66. IL is noLeworthy that the Supreme CourL had also passed an orcler on 3'd December. 2008 (in Shfi ["L" X(own & Oilters vs. Wte of, [6rK aforenoticed) directing the respondent-s[ale to frarne a rehabilitation scheme within a periocl of six monl,hs ancl Lo place the same before the court. For the reason thal. no' rnaterial or scheme was placed before it by the respondents, on l-7tr' Sep[ernber. 2009, the Supreme Court cU.recLecl [he Cliief Secretary of the S[a[e to file a personal affidavit as to wha[ sbeps had been tahen pursuant to the orclers of Lhe courl..

67. An affidavit dated 6'h Ocbober, 2009 was thereafter filect by the Chief Secretary in the case. The appeal was disposecl of by a final judgment on 27u' October, 2009 which sl.ancls repor[ecl at z'dtTE 6) A,D SC 253 JI.L. X(gtil & Otlrcrs \/s. Statct 0,f [heir safety and personal property." migranls is concernecl, the.been considerecl in Para terms:afficlavit claLed 6'r'October, 2009 has 7 of the judgment in the followirig "7. In pursuance of the said orde[1], the Chief SecreLary has fileil the affidavit clated 6.10.2009. In the saicl afficlavit i[ has been d,isclosed that out of 54 appellants 23 hacl already handed o.ver" the Governmeut accomrloclation to thri State Department and'tire same hacl been allotted to the Government employees. Only 31- migrants/retirees are presently in occupation of the Governmenl. accommodation. It has. further been clarifiecl that there are 37,280 families who have been reciisterecl for the relief including the accomlnoda[ion and oub of them olly 5,000 families cor"rld be proviclecl the accomrnoclation in the carnps. However, it had been unclbrtahen that the Goveqnment would provide such facilities to all Kashmiri miqrants tiii they are residing at the present places. The releYant part of the affidavit reads as under:- "5. That it is further subrnit[ecl that Govt. fgnnula[ecl a pachage for returl a1d rehabili[ation of Kashmiri Miqrants which involves an outlav of Rs.1618.40 crores. This is for the firs[ time since'

1990. that Govt. of India has cotne up with a. notricv for Return and R.ekakitritatiott of [dasltmifi Miqrants. The policy has ]reen framed on the recoillmendations of a wottrrinar aw'ount constituted ltv Govt.. of trndia to suggest variolts confidence building measures in tlie J&K Sta[e. While framinq the policy various needs of Ehe rnigrants have been taken into coirsidera[ion, such. as hbusing, education, revival of Agriculture ancl Horticulture land, employment etc. The details of the package announced on str' June 2008 are reproduced as under:i) Return and Rehabili[ation Paclcagte of Kashmiri Migrants: The total package involves au outlay of Rs.L6L[8].40 crore. The.tnain ' cotnponents of the package are as under' (a) EXousinq i) Assistance @ Rs.7.[5] lac for fully or partially damaged house left behind by migrant.-

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

(iii) Rs.7.5. Iac for purchase/cons[rucbion of a hbuse in Group I{ousing Societies for those who have sold their properties during the period after 19Bg ancl before the enacl.ment of "The J&K Migrant hnmovable Property (Preserwation, Pro[ection ancl Restr:aint of Distress Sale) Ac[, 1997" on 30.5.1'997. (b) Transit Accomrnoda[ion: Consl.ruction of transit accommoclation at three sil"es @ Rs'20'00 crore each for total Rs.60'00 crore. Allernatively, Rs.1.0O lac pel family towards ren[al anql,incid.ental expenses to those farnilies who rnay not be accommodated in transit accomrnoda[ion.

(c) Continuation of Cash Relief to Migran[s:

Migrants families at' Jammu and Delhi who are reclpients of cash relief and free ration would continrie to receive the sam.e @ Rs.5000 per farnily per month (including rations) for a period of two yeals after theirreturn to the vailey.

7. That it lnay be ftrrbher subrnib[ecl [hat unemployed youth were asked to convey their willingness for sewing in l(ashmir Valley. In r:esponse to the same, 14074 unernployecl youtll have expressed their willingness in wribing for serving in l(ashmir valley.

"EXPRESSION OF INTEREST" was circrilated arnong the migrantq in order to ascer[ain their wiilingness to return to valley and so far 1676 farnilies have expressed their willingness to reburu l.o valIey and avail the concession available under the package.

9. That it is further subrnitted that land at the foltowing tirree sites have already been identified for constructiott of transit accolnmodation, the deLails whereof are as'under: a- Land at Vessu, District Kulgam L00 Kanals. b- Land at Qazigund, District Alantnag 25 Kanals. c- Land at Kh"anpura, District Baramulla 50 Kana1s

10. That it may be furtirer subrniLted thaL 200 flats arg nearing cornpietion at. Sheikhpora Budgarn. In addition to this, l-B flats are available at Mat[an A:ran'[nag. These flats are to be used as transit accol]'r.modation by the l(ashmiri migranl,s wlto wish to return to valley. The rnigran[s shall stay in the transit accommoclation till they recons'bruct or renovate their houses. 11-. That it rnav be further subrniLbed bhat Sba[e Governrnent had. ilro.orr.rtitutecl ar[1] Apex Aclvisory Committee to oversee the irnplernen[abion of Return and Rehabilitation pachage for Kashrniri Mieirants in the rnonth of September 2009 and immediately after the constitution of []re Apex Level B Cornmittee, various suggesLions.were put forth in a meeting held on 23.9.2009. 1-2. That it may be further subrnitted Lha[ the StaLe Cabinet vide its decision No.l-301IL12009 dated L.10.2009 h.as approved [he package for Re[urn ancl Rehabilitation of I(ashrniri Micriants to r/ implernentation of emplo5rrnent scherne a Committee has also been ordered to be cons[ituted to go into the legal and other irnplicabious for -atLng recruitmenls of the migrant yo*th^agains[ varioui posts before the saicl scherne is forrnally notified. The comrnibtee has to submi[ its reporl: within a period of two weehs-

13. that the State Government is keen [o valley and shail provide every type of assistance for their leturn and, rehabilitation. The process for lune 2008 after Govt. of India annownnced ilte naaahage for tlneit' n-eturn." The Supreme C.ourt observed thad this case had r:emainecl pencling l:efore it for twelve years and thaL th.e court hacl beetl insisbing ullon the state to frame the scherne of rehabilitabiou of the ' appeliants ancl particuiarly for irroviding [hen accomlnocla[ion. Placing reliance on the a]rove afficlavits/unclerLakings given by the responclents, bhe Cour[ further obser-ved. that the authorlties have framecl l,he rehabilita[ion scheme ancl for: implernentation of the salrle, i[ has goL sufficien'b resources also. In this bachground, the Sr"rpreme Court issued the following directions:- "9. In view of the. above affidavit/undertalcing given by the State and after hearing Mrs. Pulnima Bhat l(ak, Ld. Counsel for the appellants ancl Mr. Anis Suhrawardy, Ld. Counsel for the State, we clispose of the auueal with a nious hone that State shall Lake all 'endeavows Io rehabilitate the persons who have been victimr of'terrorisrn and f/// ffte Sf,afe,fs a.b/e to reltabilitate and prouide the appiwpriate ac c onwno dation to 3 L ap petrIafits -tetire e s/ous te eq. thev shall continue to possess ttrte @cconttnodatiohs wltich are in ilteir respeativr: t,

68. It is nol,eworLhy that the only difference bgtween "l,he petitioners J:efore the Suprerne Court and those who are Jrefore ) relatecl to persons who were r"el.ired employees of bhe StaLe Governrnent while the present petitioners al:e all ernployees of the Central Governrnent ancl its departments. I-Iowever, the petitioners. before the Supreme Court and the presenb writ petitioners are iclenticaily placed victims of the militancy and [he rights asser[ecl by ]roth sets of the petitioners and issues r:aised by them are iclentic'ai.

69. While the above petition iemained pencling in bhe Suprerne Court, sorne oLher similarly placed employees were facing the sarne threat of eviction as the present set of petitioners. Some such persons approached this court whiie oLhers filecl a peLition before the Cen[ral Achninistrative Tribunal. The orders passed in these matters would also have a bearing on the present consideration.

70. Reference requires to be also rnade to a judgrnent irassecl on 2"d Ausust, 2006 tn WF (C) IVo,n L742/2005 entittred P"n{. Idattdoo Vs. Estate Officer &.,Aaw. by Lhis courb which is reported aE 132 (2006) DLT 672. Shri P.K. Flancloo *u, uiro u Kashmiri Pandit and part of the minority comtnunity in Lhe Kashmir valley. 'An employee with bhe Intelligence Burgari of the Government of India, he had retirecl from the service on 31" July, 2004 whereaf[er effor:ts to cancel his allotmenL and evjcl" him by way of proceeclings under the Public Premises Act, 1971 iracl been uncler[ahen. Sh. P.K.Handoo filed the writ pe[i[ion assailing.this action.and the eviction order dated 30'r'June, 2005 passed against him in the proceedings by the estate officer ancl also sough[ j.sstiance of a wriL of rnanclarnus against the r+> wiricir hacl been. allottecl to him Lill such [irne thaL Lhe Goverlrneng made it possible for him to return to Sr:inagar: or [ill sui[able alternative accommoclation is provided to hirn in Delhi' 71,. TIr.e observations macle by this courb in the judgrnent d.atecl 2nd August, 2006 Ln P.IC Handoo (swntra) while clealing with the very olrjections urged in these proceed.ings, cleser-ve to be considered in extenso and read as follows:- "I!. The argument subrnitted by the learnecl counsel for the respondents is typically gauche' lt lacl<s sensitivity. I(ashmir has never'ceased to be a hub of terrorist activity which is mainly directed against the Flindu Pandits. The violence in tfte State is ab its peah. Due to the obstinacy of terrorists anctr helplessness of the gbvernment to counter terror, the situation coulcl not improve. Indian Constitution applies to all the. citizens of India. Equal protection means Lhe righL to ec1ual treatment in similar circumsLances. There should be no discrimination between one person and another if as regards the subjecb matter of the legislation their position is the satne.' It is se[tled law that a judicial or cluasi judicial decision cannol. offencl Article l-4. In the result, I allow the writ petition im 1"2. terums of the orcler passed trtv the,tL.pex Cowt"t in tlte case of [.I-. I{owtr Vs. State of {ammw and Kaslnmir {swprat. Respondents are directed to allow the petitioner to retain Quarter No.D-845, Mandir Marg, NIew Delhi, pendinq decision in SLP @ No,7369/2007, subjecb to payment of normal licence fees or in the alternative the respondents may provide altei:native accommodation to the petitioner and his famil]i anlrwhere in Delhi till the pendency of the above said writ petition before the Hon'ble Supreme Court. No CoStS.,, (underlining supplie d)

72. Learnecl counsels for the petitioners have also painstaliingly lrointed out Lhe earlier sirnilar cLirections macle as l:ack as on SffL December. 2OO[2] by the Centr.al&,dntittisttative of n@ia a ors.on the same issue which have aiso been noticecl ancl reiuerabecl in the P.I(. E{andoo (supra) judgmenb. IL is noteworthy that Shri Tej l(shan, a l(ashmiri displaced pelson hacl macle' a request for retention of Governrnent accommoclation beyoncl superannuation which was turned ciown by [he Governrnent by an ord.er dated 1-3th AugusL,.2002. Thil refusal was assailecl by way of puoceedings before Lhe cen[ral Aclministrative Ty'ibunal. In these proceedings, the Tribunal hacl placed reliance on a letter d.ated 2"d July, 2002 writ.ben to bl.re Delhi Development Authority ('DDA') by the Ministry of Urban Develolrrnent & PovertyAlleviation on the subjecL of preferential allotment of DDA flats to J&K migrant Cen[ral Governrneut empioyees who hacl retired or were retiring. The Lribunal noLecl.bhe letter in the following terms:- ' ",L[2]. By referring to the letter dated 2.7.20A[2] wri[[en to tlre DDA, by tlre Ministrv of Urhan Developrnent ' & Fovertv,A,-ilevation. it is stated that this has been decided as under:- "......But the.situation prevailinq in T&I( is such thab does not permit the safe return of these retired/retirinq Central Governmenl.' employees who can settle after retirement at their native place. I(eeping this bachground in view, a decision has been taken to allot about 100 MIG and LIG Fiats in Dwarka to such retired/retirincr J&K migran[ Central Governrnent emplolrees so that the CenLral Pool Accornmodation could be go[ vacated frorn them. DDA is, bherefore, requested to formulaLe a lr.ousing scheme for retired/retiring J&K migranL Central Gbvernment employees and send a drafL thereof to this Ministry within a fortnight for approval." (Underlinin g srqrplie d)

73. In the above. judgment, the Central Achninistra[ive Tril:unai also observed on violation of Ar[ic]e 1.[4] bv bhe respond.ents holding that j'tlr" sbate shall not by iLs act discrirninabb as between two individuals who are similarlv Y circumstancecl." These finclings are also noLiced in para 10 of tire juclgment in P.I(. Handoo's case (supra).

74. I have.had. occasion to deal with a similar issue.in a juclgment dated t:nd LX.th of,April. ZOOE rendered in W.F.(CI Union of, Xttdia & 0rs' In this case also the petitioner was a retire$. Kashmiri employee of Lhe Cen[ral Governmen'L who coulcl not return to l(ashrnir for the salne reasoll as the petitioners. Proceeciings for his evic[ion wet:e also initiated by the respondenbs under.the Public Premises (Eviction of Unauthorised Occupants) Ac[, 1"97t. During the course of hearing on 7tr'April, 2008, a que{y was pttb to counsel for the respondent in this case in resirect of [he posiLion with regarcl to the safety and security of the Kashmiii PancliLs in the va]iey. The position was revealecl to be [he sarne as lrefore. In para t[4] of the saj.d judgment, consecluently i[ was recordecl that " the respondents are not in a position to ensufe their safety and protection and as sych, in casb they are displaced fz'ont the accommodation which they are occLtpyiiig, they wiII not be in a position L'o return to their respective homes in tlte Kashntii valley''.. Consequenbiy, the following directions were issued:- "L[5].. Im tltis.backqnound. the {esvrornde ae{taimlv cannat he pennitted to ntaitttain the _arder of aancellatiap of the ptetitiomer's allotment or to enforce the euiction otder wkicnt euict the netitiomers f,rotn the --emises wlticnt. thev are

16. There is no douht, 'that the petitioner was making payment of Lhe normal licence fee while he was j.n service. Interest of jusLice and ecluity merit that the petitioner be required to rnahe payrnent of fee on ime as the e basis till or te e acqu[es any otner resloenuar prolJer L-v ur lJcrru" ' il.- In view of the above discussion, this writ pebition is.ailowed. The respondents are directed Lo permit the. petitioner to continue to occupy the Quar[er No.N- 299, Sector-8, R.K. Puram, New Delhi subject to payment of the same licence fee as was being paid by the petitioner on the date when he retired. This orcler shall continue to operate till such time as th-e.respondents provide sirnilar alLernative accoptl'Lodation to tfte petitioner, or [he petibioner acquires any resiclential property in his name' This writ petition is allowed in the above terms'. There shall be no order as to costs." (Ernphasis supplied) It is noLeworthy that these orclers have not been assailecl and have attained finality.

75. It is urged by learned counsel for the respondents th.aL failure of the Government of India to challenge lhu orders passed in WP(C) No.LL742/2O05 emtitled F.K.fdamdoo v. Estate Of,ficer & A,nr.; WP (C) No.1065/2007 enffitned. M.X{.I{aun v. AOI & Ors. and the other cases are imrnaterial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex Courb repor[ecl at (2006) W SCC 7Og CoL ts.J A,Idrara \/s. Goventrnettt of trt dia & Ons. in support of this subrnission.

76. It is no[eworthy that CoI. tsJ.,A,XrXrara's case (swltra) related to effbrts of the G.overnment to recover paymenl, of excess antount as pension. Certain orclers sbood. passecl in []r'e writ. petition filed by other employees who had raised a similar challenge. 'rhese ord"ers had not ireen challenged. by bhe Government. In this Jrackground, the petitioner had conbended that the Goverument was estopped. from recovering Lhe amount +z-' frorn. him in view of those orders which had atbained finaliLy. l'he Apex Court rejected the contentions and held that the Union of India would not be barred frorn resisbing the subseclrient writ petitions involving simiiar issues or challenging subsequent judgments of the l{igh Court reaiising Lhe seriousness or magnitude of the'issues or financial implications. The posiLion would be different only if il, is.establishect that []re GovernmenL had aclopted a pick and choose me[hod. only r.o avoid relief to. the petitioner on account of rnala fide or ull,erior inotives. It was helc[1] that principles of estoppel, res juclica[a, iegitimate expectation or fairness in action were not a[tracted on the facts of the case. No plea of violation of fundamental rights was involvecl in Ahkara'.s case (supra). There can be no comparison wi[h [he facts of Akxrara's case (supra)with those of the present cases.

77. The aforenoticed juclgments Td orclers were clearly reievant ancl binding upon the responclents for construing alcl talcing a view on'the contentions ancl claims of the pe[itioners. The respondents were. also bound by Lhe cleposiLion ancl the policy placed before [he Suprerne Court which resultecl in iLs judgment dated 6th of october, 2009. rhe available recorcls clo not sh.ow any consideration of the aforenoticed juclgments ancl orders so far.as'the rights ancl plight of the pebitioners are concerned. AcL 1971.

78. Mr. Jatan Si'gh, learned co''sel appearing for reslrondent No.L has coirtended that the T{ allotrnenLs ancl to initiate the proceedilgs under the Pul:Iic Premises Act, 1971- as well as tire orders of the Esta[e Officer ancl the juclgrnents of the Appetlate Court are in terms of statuLory provisions cannot be assailed by way. of these wrlL pebiLions Reliance is placed on the pronoullcen1en[s of this courlreporLecl at \n

995) Itr AD Delhi 293 Uniott of India Vs. S"IW, Agrgrarvval & 3n othens; 2.OOO (55) DRtr 57 Bnfim SinErh Vs. [Jpiop af trndia 6r Anr.; AnR. L977 Detrtrni 268 n][ardwafi n an Venna Vs. Ttrte Estate Officer & Ors. in support.

79. This objection of the respond.ents ignores well settled first principles of law. tvie::eiy because the impugned action is talcen ancl ord.er passed in purportecl exercise of stabutory power woulcl not rencler it irnmune from juclicial scrutiny. The ques[ion as to ulanner in which such'action ancl orclers viz-a-viz [hei.r effecL on funclamental rights will be examined, stands answerecl lry tlre Suprerne Courl, in,AIR L97E SC 597; (1.978) n SCC.248 I[anelra Gamdhi Vs d-fnion of InQia and otheils. In this case, the court had. mad.e the foilowing ol:servations with regarcl to the impact of action taken under provisions of [he p^assport Act:- "Now, if the effect of SLate action on a:fundamental right is direct and inevitable, then a fortiorari, it musl. be presumed [o have been intendecl by [he authority taking the action and hence, this cloctrine of direct and inevitable effect has been described by ' some jurists as the doctrine of inbended and real effect. This is the test wh.ich must be applied for the prlrpose of determining whether secLion L0 (3) (c ) of trre-impugnecl. order made under it is violative of Article 19 (1)(a) or (s)."

80. 'fhe suprerne court furLher ruled that i[ is uot necessary l,o assai.l the constil,utional valiclity of the stattitory provisions undelr which the irnpugned ord.er is made and that the court woulcl still be able to examine as to whether the order rnade in; €xelCise of s'batutory power was invalid for l,he reason thal' it colLravenecl a fund.arnental right holding as follows:- "Bu[ that d,oes not mean that an order rnade under Section 10(3)(c) )'inay not violate Arlicle f 9(t)(a) or: (g). while diqcussing the, constitutional validity, of the irnpung'ed orcler impounding the passport of the petitioner, we. shall have occasion to point ou[ that even rl It is [rue, and we must straigirtaway conceded [haL mereiy because a statutory provision empowering all authority to tahe action in specified circumsbances is constil,utionally valid as not Jreing in conflicL with any fundamental rights,'it iloes not give a.carte blanche to the authority to make any.order iL likes so long as it is within the parameters laid clown by the provision. Every offer made under a statutory provision must not only be within the authoritv conferred by the sLaLuLory provision, bul, must also stand the test of funclarnental ricthts. 'Pa::liament cannot be presumed l,o have intended to confer power on an authority to acL in contravention of fundamental rights. It is a basic constitutional assumption underiying everlr statutory grant of power [ha[ 'the authority on which the power is conferrecl should act constitutionalllr and not in violabion of any (Underlining supplie d) B1-. In the al:ove case, the drrpru*" CoruL hetct that even though the impugned orcler was within [he [errns of the relevanl section, "i'b rnust nevertheless, not contravene any ftindamental 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 tahen by the respondents was permissil:le under the statutory provisions, l:ut if it violatecl or adver.sely imiracted fundarnental rights of the petitioners, it and no aubhoritJr is necessary in support of it." ao the present rejectecl. petitions is Lherefore misconcer_ved and is '82. ' An exarnination of' the order of canceliation of Lhe allobnrenL requires to be undertaken. The only rules relied upoll in support of the power to perrnit occupancy of l"he quarters are tile ee!&tl nules, WAS. Calcellation of the allotment has been effected under these very rules.

83. The resj:ondents have permitted the pebitioners to occupy the same in exercise of powel conferred on l.hem. It is nob l,he respondents' case that the petitionels carne in[o possession of the quarbers illegally or without authority. f'he occuliancy is bbing [reated as unauthorised by t]re::espondents for the reason that they have cancelled the alloLmenl,s.

84. Jn view of. tiris stancl of the responclenl,s, it irecomes necessary to examine the provisions of the Public Premises Act, T97L.

85. For the purposes of the instanb case, the expression "ttnaubltorizecl occupation" as clefinecl uncler secbion 2(g) of the Fwb.nia.Ft'ermises (Euiction of unawt.ftotised @caupattts) Act, tr 97n has to be construed. ' SecLion 2(g) of the said statute reacls as follows:- " 2(g) "nnauthorj ", in relation lo any public prernises, means the occupation by any person of the public premises without authority for such occupation, and includes Lhe continuance in occupa[ion Qy any person of the irublic premises afber the authority (whether by way of grant or any other mode of bransfer) under which he was allowed to occupy the prernises, has exlrirecl or has been de[ermined for any reason wha[soever." writ 8l 86.. So far as ilre proceed.ings for. eviction.uDcler the Public Prernises Act, 'Lg7I are concerned., Sections 4 and 5 thereof d.eserve to be also considered.. The relevant extract read-s bhus:- " 4..fssue of, notice to strtow cause against ordet 0f euiction. - (1) If the estate officer is of opiriion that any persons are in unauthoriqe_d occupatlon_of atty pnt ii. premises and tlrat they should be evicUed, the Estate Officer shail issue in the nLanner hereinafter provided a notice in writing. cailing ullon all persons concerned to show cause why an order of eviction should not be made' (2) Ttre notice shall- (a) speci$i the grounds on which the older of eviction is proposed to l:e rnade; and (b) recluire ail pelrsons concernecl, tltat is to say, all persons who are, or may be in occupation of, or clairn interesL in, Lhe public premises,-

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

(ii) to appear before the Estate Officer on the date specifiecl in the notice along wiLh [he eviiten.ce which they intend to produce in supporL of [he. cause shown, and also for personal hear:ing, if such hearing is desired.l X)TXX

5. Euiction of unawtllotised accwpaxlts. - (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under section 4 and [an]r evidence produced by him in support of the same ancl after personal hearing, if any, given under clause (b) of sub-section (2) of secl,ion 41, the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer. lnay make an order of eviction, for reasons to be recorded therein, directing. that. the puJrlic premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation bhereof or any par[ thereof, and cause a copy of the order to be affixed on the outer' door or soine other conspicuous irarb of the public prernises. 8L (2) If any person r:efuses or fails to comply with l-hq ' orcler or-"ni.tion I on or before. the dabe specifLed in the saicl order or within fifteen days of the date. of its publication under sub-section (1"), whichever is later.l the estate officer or any other officer duiy auuhorisecl by the estate officer in his behalf I rnay, af[er the datb so specifiec] or after the expiry of the ireriod aforesaid, whichever is later, evict that: personl from, and take possession-of,,the public'" (Und erlining suPPlied)

87. Ttre present cases raise a pertinent. queslion as Lo whether the cancellation of the allotrnenl.s to t]re petitioners was justified and valid and whether the pel,itionel:s' occupancy [hereafter cbulcl be brought within the meaning of the expression "unauthorised." uncler Section 2(g) of the Public Prernises Act, I97L. BB. The statutory clefinition of the expression "unauthorisecl occupa[ion" in Section 2(g) of the Public Prejmises Act, I97I thus requires judicial interpretation for the pnrposes of.the. present cases. In this regar:d the oft quoted words of Jus[ice P.N. Bhagwati in (1953) l SCC 228 A[atiottal Textitre Worlrens' [-Imion us. F.R. R.amakrisltnan woulcl be apposi[e wh.en iL was statecl as follows:- "We cannot allow the dead hand of bhe pas'[ to stille the growth of the living present. Law cannot stand sLill: it must change with the changing sociai concepts aucl values. If the barh that protects the tree fails l"o grow ancl expand along with the tree, it will either chohe l-he tree or if it is a living tree, it will shed that bark ancl grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, bhen either it will stifle the growth of the society ancl chohe its progress or if the society is vigorous enough, il will cast away the law which stands in the way of its growth. Law must therefore consbantiy be on the ilrove aclapting itself to the fast changing,society and not lag behind. " 8>

89. Wtrile interpreLiDg sta[utory provisiotts, [he suprerne coull' ed 'in a nurnber of cases, the has also approvecl ancl applied in a nurnb principle of "lpclating construction" while in[erpreting stabul'es as seL out by the lead,ing jurist Francis Bennion in his comlne.ntaries titled. ''statutory llterpretation" znd Edn., pg 617' {Ref: (2003) 4 SCC 60L State of lvlaharasnttra \/s. Dt'. trraf,utr D. Desai; Q997) 5 ilCC 482 CIT Vs. Foddat: cement pw. Ltd.; (20OO) E SCC 74O Basavarai Xr. Patil us. State of Karpatalra]. These principies have been Loticed tn (L996) 2 scc 428 State vs. s.i. choudharyandread as follows:- ' " (2) It is presumed thab Parliament inbends the corirt l.o apply to an ongoing Act a consl,rucl,ion [ha[ continuously updates its wording to allow for changes since the Act was initially framed (an updating cons[ruction). While it remains 1aw, it is to be treated as always speakin"g. This m'eans in i[s application on any clate, the language of the Act, th"ough necessarily embeddecl in its own tirne, is never[heless to ]:e construed in accordance with the need [o l"reat it as curren[ ]aw." At page (618-tg), of the report, it is ftrrbher: notecl tha[:- "Iil. construihg an ongoing Act, the interpreter is to presu'me that Parliament intended the Act [o be appliecl at any future time in such a way as to give'effect to the. true original intention. Accordingly, the in[er:preter is to rnal<e allowances for any relevant changes that have occurred, since the Act's passing, in law, social condiLions,. "Lech.nology, the meaning of worcls, an"cl other matters. Just as the US ConstibuLion is regardecl ' as 'a'living Constitution', so an ongoing BriLish Act is regarded as 'a living Act'. That today's construction involves the supposition that Parliament was ca[ering Iong ago for a stabe of affairs that did noL then exist is no argurnent against that construction. Parliament,.in the wording of an enactment, is expecLed to anticipate ternporal developments. The drafter will brlr to foresee the fu[ure, and a]low for it in the wording. IL was, therefore, observed that an ongoing Act is tahen to be always speaking stating that:- "An enac[ment of former d.ays is thus to be reacl boclay, in the liglit of dy'amic processing received over the V.uii, *ith such moclification of the current meaning oi iur language as will now give effect to [he origilal legislative -intention. The realrty and effecl, of dylamic pr-ocessing provides the gradual adjustment. It is 'constituteO 6y jud,icial interpretation, year in and year out.. IL atio comprises processing by exec'tive officials.'. Thus, the courLs have over the period of Lime eippliecl this principle to inLerpreL valious terms ancl phrases. including,,sbage carriage" has been interpreted to include "elec[ric tramcar"; "steam tricycle" to inclucle "locomotive"; "telegraplt" to include "telephone"; "banker's boolt" to include "miclofilttt"; "'l,o [ake note" to include "use of tape recorder"; "documents" [o include "data bases"; "handwriting" was corlstrued to inclucle "typewriting" {R.ef: X 996(2) SCC 428 State Vs" S.j.'Ctrtawdhary], 'ltrotice in writing" in Section t3B of the ( Negotialrie Instruments Act, were construed to inclucle a "nobice by fax". {Ref: (1.999) 4 SCC 567 Snn nmport USA Vs. Exitn Aides Silnr Exporters|. This principle of legal interpre[ation would squarely apply to the cons[ruction to ]:e placed on tire provisions of Public Prernises Act, 1.97I. 90.' Because of the peculiar circumstances prevalent in the Kashnrir valley, rnernbers of the minority cornrnuni[y weie targe[ted and singled out for hostility as a class in their horne state. Achnj.tteclly, the state was unable to protecL'l,ireir righ[s or pfoperttes.

91. The s[ate aubhorities. assessed the threat perception ancl clanger [o the ]ives to some oi the petitioners wh.o were boctily evacnated from their homes in the valley. The transfer the sspeti[ione]:s, (9t tlab 3f.the persons on whom tirey were clepenclent), to Delhi, which prececled tfue allotmeub of quar[ers' was [hus compellecl by t]re ina]rility of the responclents [o pro[ect ancl ensqre the righf to'life of the petitioners. 'fhe sarne was certainly involuntary. The allotmenLs were a resulL of [he extlerne necessitll recognisecl and. acljuclgeci by the responclenl,s l.hetnselves. It is also notewortliy that'those fleeing to safely hacl no opporLunity to secure or salvage their properbies.

92. It is an aclmittecl fact that over this period, [he properl"ies of tire pebitioners in Jammu & I(ashmir have eiLher' beeu cies[royecl oI, in'clther cases, occupiecl by militants or l,he rnajority groups in the state. On account of the inabiliLy of [he Governrnent'to.protect the lives and properties of [he petitioners, despite the Constitutionai mandate, [he petitioners have been deprived of their properties, are unable to retunr to tireir homes angl face danger to Lheir lives, if they do so.

93. The accommodation allotted to the petitioners is the ouly accommoclation wtrich they have ever lcnown in f;his city. Tire petitioners s[a[e tir.at they do no[ own any oLher property. Ib j.s [he sarne sheer necessiLy w]rich compels the pebi[ionels [o conLinue l.o occupy the prernises which was allottecl to thern. It is clearly eviclent that having idenLified ancl supplied such neecl of the lretibioners, absent atly alternative with thenr, [he respondenls would be require.d to maintain [he same.

94. The petitioners have.been at the receiving encl of bhe threal"s no[ only for the reason tirat they were from anoLher' colnmuni[y bu[ also largely becarise they represen[ecl the face of the Cen[ral Govern]nent in the vaiiey as its ernployees'

95. It is impo::tan'b to note that the scheme noticed in t'he aforenoticed afficlavib clated 6th October, 2009 (filed by the Chief Secretarlr before the Suprerne CourL in I.X{. I{outr us' Uttion of nttdia (swpra); talks of. 'Retuin and Reltaltilitatiott'. IL cloes no[ even aclverb [o resettlement. No reference is macle to the safe[y or security of the migrants who agreed or at[emp[ed to re[urn' Ilterestingly, bhere is reference to 37280 l(ashmiri families who hacl. registerecl for Ehe relief including accomrnodaLion ou[ of which out of which only 5000 farnilies have been pr:ovided. accommod.ation. An undertaking stood given to the Suprenle- Court thaL Lhe government would provide such facilities bo aII tire l(ashrniri migrants till they are resicling at the present places. Persons as the pebitioners are not even covered utrder those wh.o are clealt with in this afficlavib.

96. It is also noteworthy thaL Lhe affidavib filgd before Lhe Sup.rerne Court refers to a [otal ]raclcage of the Cen[ral GovernnenL involvingr qn outlav of Rupees L6l-8.40 crores.

97. The affidavit of the Chief Secretary does not even refer to the'uLilisation of this huge arnount of public money ancl the faf;e of the proposecl facilities. There is nothing even before this court which coulcl suggest that the facilities promisecl before [he Supreme Courl,, have even corne into exisl.ence.

98. The alLernatives propoiindecl. and [he schemes pertaining to l(ashmiri rnigranbs noticed in the judgrnents of the Suprerne Courl. and of bhis court remain in the realm of proposals ancl W fairness. No alternative at all has been made availalrle [o or offered [o the petitioners even cluring [he hearings before [his court. 11 the light of the weil sebtled principies laicl in Lhe above prececlents, the inevitable conclusion is bha[ [he responclents have not tahen the relevanI factors iu[o consid.eration ancl have acted arbitrarily and unreasollably' The above discussion clearly rnanifes[s that the respondents have not actecl fairly in discharge of their posibive obliga[ion ancl have nol, sufficiently engaged with bhe problems and diflictilties of Lhe pebitioners.

99. The petibioners have l:een prevented frorn residing in Lheir homes in Jammu & I(ashmir for the reason that the State lias been unable to secure Lheir lives or plotect Lheir homes. In facl,, Lhe respondents 'a1so admi[ their inabiliLy to en.sllre prot;ecl.ion to the'life and lirnb of the feLitioner:s in case they were to return to the horne state, lel, alone any measure of security for their continued residence in the place of their birl,lt., in case they returnecl.

100. On behalf of the respondents, it has been arguecl at leng[h even in these proceed.ings that the Union of India has formulated' a, irachage for re[urn and rehabilita[ibn of t]re clisplacecl llersons. This by itself shows that the siLriation is not such that the peti[ioners are in a position to return to their homes. The responclents are clearly unable [,o ensrire protecLion to the lives of the petitioners and their families or: security in their: hornes. ' '

101. Mr. Jatan singh, learned standing counsel for the uol has )t 2OOO (55) DItf 57 Bkim Singh Vs. hiot of lncfia & 'A'ttt" In this case, the petitioner had sought upgraclation of Lhe accotnlnoclation aliotbecl to hirn on grounds of the security cover which hacl been granted. to him as a president of a poli[icaI par[y. A challenge was aiso laid to the evictiou proceecliirgs' It was helcl that the accommoclation allotted to hirn was not liable to be upgr:aclecl. It is noteworthy that the petil"ion"er in Lhat case clicl nob hail frorn the Kashmir valley. No plea Lhat the pel.il.ioner coulcl Lot re[1ln to his owlf accommoclation o11 account of inabiiity of the state to protect either his iife or the property was putforth or consiilerecl. In the presenL case, the pe[itioners seek no upgraclation of accomrnodation but oniy pro[ection of [heir l:asic human right and the fundarnental right to life. There is no par:iLy at all between tskim Singh's case (srytra) ancl the presenb cases. L02. IL needs no elaboration that a judgment has to be exarnined in the context of the factual matrix which it cleci.cles. The juctgment reported at (L995) IX,4D Denki 293 Union of nnrfia Vs, S.M.,AEgarwal e 3X Others, also reiiecl upon by the reslrondents, was a case of eviction of sholrkeepers who were licencees in shops which were public premises and had failecl to show cause in answer to the notice issued by the Es[ate officer. This case cannot be cornpared wiLh the fac[ual mail:ix no[iced hereinabove.

103. f'he responclen[s.have also placed reliance on Lhe pronouncernen[ of this.court reported at,LXR ng77 Denhi 268 E{ardwafi r,al vettma vs, The Estate officer & ofis" wherein <7 rnerely a licencee. There can be no clispufe at all wi[h Lhis plroposibion. FIowever, Flarclwari Lal Verm-a hacl also not r.aisecl any question of.violation of basic human and constitu[iona] rigirtq as 'the petitioners have in the presenl. case. No facl: situation as in the present case was involved' 1"04. The petitioners are not continuing to occiqly the subjec[ prernises because they want to do so. They are also noL ciaiming a right to indefinitely occupy the public premises ol: assbr[ing a title or a right thereto in respect of the subject properby. The pebitioners h.ave merely souglrt protection of bheir right l.o sh'elter till suclr tirne, as the respond.ents are al:le to ensul:e their right to life in their home state or rnake available a reasonable aI[ernative shelter to the peLibioners. The respondents have thernselves consid.erecl such reques'Ls anci perrnibted idenLically placed persons to con[inue to occupy the allottecl accommoclation. Such a clairn has also been en'bertainecl ancl granted. by not only the Suprerne Court, bu[ also by this court as well in several' prececlents noticecl hereinal:ove..The responclents have achniLLecl in l,heir conul.er affidavi'[ that Lhe petitioners have nowhere eise to go.

105. WiLhin the larger group of the IDPs from Kashmi.r, the petil-ioners fornr.a special.class and are reLired governmenl, ' personnel. When the petitioners were forcecl to relocate, they receivecl governtnent accornrnodation not only as an inciden.ce of their service, but also on accoun[ of their cornpulsive eviction fronr their homes. They have also not been able [o ge[ any benefi[ of any of the schemes framed by the gove]:nment which Jo clearly achni[ the sp'ecial neecls and en[i[lement of these displaced persons. L06. Despite this ltard reality, the represenLa[ions, under[aicings and promises of the Central Governrnenb, upon retirement, the allotments to the petibioners stand cancelled and they are being asked to vacate Government accolnlnodation; otherwise they fac.e bhe threab of em.inent forcible eviction therefrom pursu'ant to pr:oceedings [ahen against them uncler the Public Premises (Eviction of Unauthorised Occupants) Act, 1"97 L 1,07.' The petitioners.rnay thereby be compellecl Lo return Lo bhe violent situation where from they were evictecl/evacua[ecl/or forcecl to flee. Forcing Lhe petitioners who are IDPs to Lctr-Lrn to the ar:ea where they were persecuLed violates Lhe princiirle of non-refoulement which is the principle in internaLional law forl:iclding Lhe expuision of a refuge into an area where such person mights be again subjectecl to persecution. The respondents cannot be permitted, to on a hyper-technical consLruction of statutory provision or arbitrary exercise of power to crea'Le a situation where the horneless petitioners are compeilecl to return [o the areas where they may face violence and threat l.o their life and liberW. 10B. The responclents have thenrselves recognisecl the entitlement of the.petitioners to appropriate residence, when they made the allotrnents. The only reason aclvancecl by the respondents for their decision to cancet Lhe allobment ancl to evicL the petitioners is that they have rebirecl. The relevanL

1) ancl the effect of sucfu evicbion has not even ]reen rerno[ely consid.erecl. No examination of the issue of whebher the spiril" or inLenchnent of the avowecl policy of rehabiii[a[ion been achievecl, or not, has been und-ertaken'

109. Tire situation which was to be aclclressed in these cases was truly excepl,ional. This aspect has also nol. even rernol'eiy enLerecl l.he responclents consicLeration. In fact the d.ecisions of the responclents amply iliusLrates that the respondents arc noL rational, reasonable or bonsistent in their decision rnaking. The construction placecl by the respondents in the cases of these IDPs on the per.rnissibility of the occtillancy of the quarl.ers uncler the Allobment Rules as relateable solely to their ser-vice resull,s in violation of constituLional guaranbees and was cleal:ly and cornpletely unwarranted. It needs no furbher elaboration LhaL the rights which the petitioriers are'complaining breach of, are the righbs guaranteed to thern under Arbicle 19(L)(e) and 'Article 2t of. the Constitution of India. For these reasotls, the interpretation of the expression "unauthorised' occupal.ion" by the respondenl,s as well as in the impugned orders is blinkerecl, restricted and imperrnissible in the given facts. 'Ihe expr-ession" "ari[hority for such occupation" appearing in Section 2(g) musI talce within its aml:iL the constitul.ional violaLions which resul[ from the resLricted working of the stqtutory provisions Jry [he resl:ondents. It was inqumbent upon all concerned with ilre decisiott nraking to tahe into consideration the moSt mater:ial develol:menl,s in l,he home state of.the peLiLioners and the fac[ l,hat the State was unable to guarantee protection of life ancl 1L ancl inability of.the resettlement/rehabilitation efforl" and Lhe al:sence of any alterna[ive to the petitioners for the pulposes of construction of bhe expression "au'Lhority for sqch occupa[iott"' No legal in[elpretation coulcl be acceptable which does no[ tahe inbo its consicleration these relevant facts and circunr.sbauces. The peti[ioners a::e bccupylng the accomrnoda[ion becar'rse of the failure.of th.e respondents to clischarge bhe constil,utional rnanclate alcL tireir public law obligations of pro[ecting [he righb to life ancl liberty of the petitioners. As noticed above, Lhe authoriLy to occupy the quarters so far as th.e pe[itione]:s were coucernecl was d.erivect frorn the constitutional guaranLees' Sgcfu occupancy. cannot |e deened or helcl to }e "unauthorised" by any measure.

110. The significanL difference between the cases of [he peti'[ioners ancl t]rat of an unautho::isecl occupant of public prernises is that the writ petitioners have continueci to occupy the pubiic premises only on account of the inal:ility of the state to protect the funclamen'bal and basic hurnan rights of the petiLioners. 111-. The respondents would have l,he records of the circum.sl,ances in which the petitioners ancl their succes.sors in inl.e:rest were transferred and evacuated bo Delhi and also [he exbreme necessiLy of rnaking the allotrnenbs of [he qua::bels [o these persons who were not only Governtnent servan[s bu[ also iDPs. The Directorate of Estates which has effecbecl the impugned decisipns cancelling the eillotrnenl,s woulcl be aware of the pronouncements in respect of identically placed per:sons coulb n -tr.Id. X{ou.tr us. [Jnion of trndia, [he orcler of the Central Acirninis[rabive Tribunal rn Tei Xdis$an Vs" [Jttirttt of ltndia [ir Ot's.ancl implemen'Lecl the same. The responclents are awal'e of the pr:evalent situation. II[2]. No legal interprebation would. be accepLable which cloes not [a]<e, in[o its cbnsicleration the relevant' facts and circurnstances..There can also be. no sta[utory interpre[a[ion which results in violation and constitutional guaranbees and protec[ion. Th.e present petitioners certainly cannot be 'cornparecl with or treated in the same manner in which the responclenl.s would- cleal with any other occupant who has not srifferecl the gross violations and deprivations as. the petitioners, ancl is unauthoriseclty occupying the public premises

113. I'b, bherefore, h.as. to l:e held that the occupation by peti[ioners cannot Qe construed as "unauthorized occupation" of lhe quarbers within the meaning of the expression.in Section 2(9il of [he Pu]rlic Prernises (Eviction of Unau[h.orized 'OccupanLs) Act, L97L. t1"4. An examination of the irnpugned orders is now necessitatecl. The cancellation of the allo[ments and the action ini[iated under the Public Premises Act, 1,97 L were resistecl ljy Lhe petiLioners on the several grouncls on which these writ petitions are premised. I{owever, Lhe sarne resull.ed in the irnpugnecl orders of evicl.ion.

115. The sole'reason given by the Estate officer for passing the impugnecl orclers of eviction is that the allotmen[s in favour of t-" qY thab ttley were nob in unau[horized occupa[ion of the ins[attt premises. None of the other con[entions of the pe[itioner fiave been even rnentionecl let alone consiclerecl' 11-6. The petitioners' appeals assailing these eviction orclers stand rejected. Lt[7]. The petitioners had. placed. the several clecisions relating to similarly situated. irersons before the respondents, the Estabe Officer as well as the learned Additional Dis[rict Judges' A plea was taken [[a[ because of failure of the respondents to ensu]:e blre protecbion of the rights of the petitioners under Arl"ic1e 2'I of' the Consbitu[ion of Inctia they continued to occupy the quarters' The peLitioners had also urged that they stood depr:ived of home a1d hearth because of the failure of the respondents to ensure the consti[uLional guarantees ancl clischarge the manclaLe theleunder. 1-1-8. Th.e airpellaLe orders notice the petitioners' contention that the petitioners have made several representations l,o various au[hori[ies for ailowing thern to retain the accornrnodation on t-he ground that they belong to Kashmir and it was no['feasible to return in view of the communa] rioLs ancl terrorists movelnents. These requests liaye not been acceclecl to. The impugned appellate orders record that the peLition.ers have challenged [he eviction orders on tire ground that the Esta.te Officer had. failed to consider the faci that they wele Kashmiri rnigrants and cannot return to Srinagar [ill normalcy is resbored. IL was also a ground of appeal that the Esta[e officer had not considered the orders in sLIr No. L g}gli.ggT by qr sal]1e foo'l,ings. The chall'e1ge had also been laid to the orders of [he esLate officer. on grouncls of arbitrariness and vio]a[ion of i:::inciples of naturai justice. 1-19. The appellate court in the irnplgned olders has also proceed.ecl on Lhe sole grqund that there was no lease or license deecl issuecl i[1] favour of the petitioners by the Governmen[ of ' Inclia. The ord.ers of [he Apex Court were not considered on t]re sole grouncl.tha[ cgpy of the Speciai Leave Pel,ition had not been placecl before the court and that the petitioners were noL a par:ty to Lhe probeeclings.. The learned appella[e cor"rrt was also of bhe view that the petitioners were provided accommoclation in Delhi because they were in service in Delhi ancl no[.l]ecause of terrorists threats and further that accomrnocla[ion was given only by virLue of employment. It was also conciud.ecl thab no (_ relief had been granted to the petitioners by the Supreme Court anci therefore, the orclers did not assist bhe Suprene CoriL:t. The eviction orders had been sustained in view of Lhese conclusions. 1,20. As a result, such'worhing of the Public Premises AcL J:y the respondents, the petitioners are being thre€rbened wj [h,evic'[io:r frorn the only shelters that they lcnow, withoub any alte::native being available to them. 1"21". The respondenbs are.bound to act in a rnanner which is cornpatible with Lhe constitutional righLs of the pebitioner while this court has l,o take into account and require the legisiation to be reacl cornpatibly with such rights. The object is to ensure that the actions ancl orders must be such as to aver[ or recuify % I22. The scherne of the Pql:lic Prernises (Evictiol of Unanthorisecl Occupan[s) Act, I97I shows thab the no[ice which is issr.iecl uncler Section 4 to show cause is required to specify the grouncLs on which the eviction is proposecl to be macle ancl reclu.ire the persons conce::1ed to show Cause agains[. llie proposed order. before the specified clate when they al:e [o produce evidence in suppor:t of the show cagse. Under Sec[ion 5 of the Act, t1r.e Estate Officer is required to consicler the'shclw cause by the noticee uncler Section 4 as well as [he eviclence producecl by him and after personal hearing, if any, given. Thereafter, the Estate Officer is required to record reasons for his satisfac[ion for making an order of evicLion. The orders of the estate offic.er discloses no reasons at all to suppor[ satisfaction to orcler eviction. The irnpugned order's clo no[ reflect the consicleration of the contentions on tlle eviclence placed by the petitioners. L23. The clue process clause in the ConstituLion manclates ensuring [hat the state provides a hurnane standard of living t,cr its citizens. 1,24. The letber frorn Ministry of Urban Developrnent r,o Delj:i Developrnen[ Au[horitry placecl on recor d. in Tej -Kis.han us. UOn (sw$.tra) before the Central Adrninistrative Tribunal (also r:eliecl,t upon tn n32 (2006) DLT 672 P.x{. E{andoo us. Estate ofticer indicates engagement of the authorities with this issue ancl [he clecision of the. Central Government ctirecting that schemes be 'frarned by the Delhi Development Authority as well for rnaking preferenLial allotmen[s of accorninocla[ion to l(ashmiri migral[s. In'.KowI.(swpra}fileclinthesuprerneCourboflndiaeilso expresses tfue same Concern as has beel expressed in the al:ove Guiciing Principles on Internal Displacement' These actions unequivocally manifes[ Lhe resi:ondenl's' awareness about the positive obligaLion imposed upon Lhem to ensure that the persons displaced. from Kashmir are required to be reseLtled and/or rehabilitatecl. There is admissioil of responsibility ancl culpability. The worhing of the rneasul:es, however, reflects that the steps wtrich have been taken are inaclequate ancl hopelessly insufficient. Even in the prolongecl hearing before this court, Ih" responden[s could piace ro alter:native so far as Lhe petiLioners were concel:necl. I25. In,AnR. 20L0 sc L476 State of West Bengratr us" Tnte Cotnntunity fot' Ft'oteictiott of Detnoatatia.[liEtrtts, West.Eengal & Ors., the Supreme Court has also helcl [irat the courL.was requirecl to weigh bhe irnpact of a par[icular governnent schente, sl.aLute. or action on the ftrndamental::ights of Lhose effectecl by the government scherne, sta[ute or action. In case any statute or acl,ion abrogates or abridges such rights, ib would be violative of the basic s'bructure/doctrine of the Constitution. For this reason as well, any appiicabion or enforcemen[ of sLatuLoiy i:rovisions, rules,. regulations that impac[s or inrpinges funclamental rights has to be struck clown.

126. In [2OO4I EWCA Civ 54O Secretaty of State for ilte EIorne Departtnent us. Wayoka n-itnltwe.Xa, tsiyyam Tefera Tesenta & Yusif,A,datry the House of Lords has prescribed a test to determine wheLher a s[atutory scheil]e or a governmenl. qY g I that when a reasonable evaluation of all relevant fact's. and circumstallces shows that a government policy woulcl sulrjecl' petitioners to an immediate and- serious depriva[ion of ttre ]rasic necessilies of life, then the cou::t may properly grant relief. It was also helcl that the state would. be liable for bo[h action and inaction as long as the action or inaction results in a selious depriva[ion of rights o:: hurnan digntty' 1,27. In bhe light of the clirections by the Supreme. Cour[ an'cl this courb in the afor:enol.iced cases relating to iclentically sibua[ecl clisplacecl persons who ar.e victirns of violence, Lhe contest by the respondents to Lhe presen't wri[ petitions on technical, specious and legatly un[enable grounds is unfaj.r to say the least. Similar issues have a::isen before and orclers stancl passed in favour of the similarly placed pelsons therein. I2B. The petitioners 'lrave suffered on account of Lhe ' respondents failure to protect tireir life and liberty when lh.ey were cornpelled to flee from their hornes. in I(ashmir. In inbernational law, refugees are protectecl from being competlect to retrirn to places or situations where their lives or freedom coulcl be threatenecl. lt is pointed out thal, the responclents have irnplemented this principle in the cases of Chahmas, Tibetans, and else where IDPs, who are ciLizens of the sanle counbry, cerLainly cannot be [reated diffefently and compelled. [o return to vio]ent situations. r29. The proceedings,as well as the irnpugned decisions ancl orders have comple[ely failed to talce into consid.eration [he mal.erial issue of the irnpacb oi thu proceeclings ancl.the orclels Y [he only shelLe::s hnown to bhern without' any all'eruative' 'I'he.implgneci cancellation of allotments, [he olders of evic[iotr passeci by Lhe Es[ate Officer alcl Lhe aforeno[iced orcler"s clismissing the appeals of the petitioners ale in bhe teeth of the constitutional guarantees to the peti[ioners uncler Ar[icies 19(1)(e)(g) and 2l- ancl therefore not susLainable'

130. Such cancellation of alloLment ancl forcible evicLion aL tire hancls of the State utilizing the shielcl of. a statu[ory righL to do so uncler the Public Premises Act, L97I resulbs in violatio[ of the constitutional rights of bhe petitioners. Ib is rnanifest tlr.erefore such LiraL'such application of law as would. have an impacb of violaLing the funclamental rights of the petitioners is iinpermissil:Ie under the ccinstitutional scheme. Pt'op ot'ti on alitJt t e s t 131-. Tlr.e proporLionaliff of the impact on Lhe funclamental fighL involved by worlcing of the statutory provision as"against [he objecbive of the concerned'statute is another irnpor:tant test for adjuclicating upon the iegality of the interference witll the right which would have a J:earing on the presen[ case. In a. pronouncemenL of the House of Lords reported at QAMT) AndIdn. 1.L:(2007) 4,Ail EII n[5] I{wanE Vs. Sect'etary of State falr the I{onte Departntemt, the decision rnaliing role ancl function of Lhe appellaLe immigral.ion authorities in Lhe conLext of the Hurnan Rights Act, L99B anct the Imrnigrabion and" Asylurn Act, '1999 was in issue..The House exarninecl th.e scope of reviews by the pr.r.ribud authorities. The privale parties conrplained of violaLion of their righLs und.er Article B clf the lcn European Conven'Lion for the Protection of Fluman Rrghl's ancl Funclamental Freedoms, 1950 wirich provicles as under:-,'1-. Everyone has the right to respecL for his private and family life, his home and. his col:resllondence. 2. There stratt be no interference by a public authority ' with the exercise of this right except such as is in accorclance with the law and is necessaq/ in a clernocratic society i[1] the interests of lationai securily, public safety or'the economic well-being of [he counl.ry, for the prevention of. disorder or critne, for the protection of health or morals, or for Lhe protecbion of the rights and freedoms'of others." The consicleraLion by the House of Lords on [lr.e principle of proportionality of the impact of the interference on bhe riglrt vis-avis, the legitimate encl itt view is important and reads as follows:of In inost cases a violation of their XXXX where the applicants complain art B rights, in a case where'the nis w for olreration or art B, the crucial question is lihely to be whetlter tlte interf,erence (or Xack of, respect), a_omptrained of is proportionate to ttrte learitimate exnd souq,[xt to be aclxieved. yrollJ-orllonanw rs a sulrject of such inrportance as to reguire separa'[e treatrnent.

PROPORTIONALITY In de trreitas Vs. PerrnanenL Secretary of Ministry of Agriculture, Fisheries, Lancls ancl Hoirsing 11999[1] 1 AC 69 at 80, [1998] 3 WLR 675 at 684, the Privy Council, drawing on South African, Canadian and Zirnbabwean au.thority, definecl the cluestions generally to be askdd in deciding whether a measure is, proportionate: obiective u no more than is necessary to accomrrlish the, objective." i This forrnuiation has been wiciely. ci[ed ancl appliecl. But counsel for.the applican[s (with the snppori of Liberty, in a valuable written intewention) suggested that the formulation was deficient in orriilftittg reference to an overriding requirement which featured in the judgment.of Dickson cJ in R v Oahes t1986l 1 SCR l-03, from which this approach to. proportionality d.erives. This feature is (at 139) the nuua to balance the interes[s of society with those of inclividuals and groups. This is indeed an aspec[ which shouid never be overloohed or discounbed. Tire House recognised as much in R (Razgar) v Secretary of Sta[e for the Home Dept 12004] UKFiL 27 at l17JlzOJ, 1261, 1271, i601,[77], 12004) 2 A-11 ER 821 at [L7]l2ol, 1261, 1271, [60], 1771, 12004[1] 2 Ac 368 when, having, suggested a seiies of questions which an acljudicabor would have to ask and answer in deciding a convention question, 'it said (at t20l) [hat the j udgrnenL on proportionality 'rnusb always involve the strihing of a fail balance between the rights of the individual and Lhe interests of the community which is inherent in Lhe whole of the convention. The severity ancl consecluences of the interference will cali for careful. assessrnent at this stage.' if, as counsel suggest, insufficient attention has, been paid to this requirernent, the failure should be rnade good. tol XXXX,, (Ernphasis supplied) I32. Having regard to the drastic violation which resulLs from the irnpugired action. and orders, it has l,o Jre held that the decision of bhe authorities to cancel the allotrnents and proceect impugned orclers against thc for eviction as well as the impugned ord petiLioners are not in accordance with law even on reasonable assessmenL of prdporLionality vrz-a-vlz the object of evicbion of unauthorised occupants of the Public premises Act, Lg7!. tou Viona of

133. TIie peti[ioners irave also complainecl l.hat $re respondenLs hacl cliscretion to perini[ the petitioners [o con[inue to occr'rpy blre prernises uncler SR 3I7-B-25 of the AnnotUnent of 't W6A. IL is conbendecl that the responclen[s were bouncl [o consicler l,he rnatter on the reievant consideraLion of the right [o shelLer of the petibioners which was invoived and cannot prernise their ac[ion on extraneous and irnpermissible ]:easons or considera.[ions. ' Mr. B.L. Wali, learned counsel for petitioners has urged that the failure to exercise'discretion in favour o.f the petitioners is in fact not only in violation of the constitutional obligations of the respondents, but is arbitrary and unreasonable

1.34. Shri P.K. I(aul, (writ petitioner in W.P.(C) No.15239/2004) lrad, earlier filed WP (C) No.6551-/2003, submitting that [he respondenLs had arbi[rarily failed to consider' his reques[ for regulariZation despite 'having knowleclge of the special circumstances of the case. Mr.B.L.Wali, learned counsel for [his petitioner has placed the order which was passed on 'lst'r' October, 2003 in the earlier writ petition, which directed [he r:espondents Lo consider the question of regularization. of allotrnent in favour of bhe petitioner in view of the special circr'Lrns'bances. It was directed that the peLition inclucling its enclosures should also be considered while. disposing of the petitioner's representation. L35. Despite these orclers, the writ petiLioner has conbenclccl t0> clabe. I-Ie h.as, bherefore, filecl the writ pe[i[ion }ei1g WP (-C) No.1-5239/2004 challenging the no[ice issued by lhe Esta[e Ofticer uncler'sectiotl 4 of the Public Prenises (Eviction of Unauthorised- Occupanbs) Ac[, t972 to him'

136. The other wriL pe[itioners have a]so macle sirnilar requests to the respond.ents for exelcise of discre.tion which wel:e reitera[ecl by [hem in the reply to the notices issued by l'he Estate officeruncler Section 4 of the Public Premises Ac[ as weil as in the appeals which wel:e filecl. The san"Le grouncl of challenge to the respond.ents' action has been urged. in [hese wriL petitions. I37. Mr.B.L.WaIi, learned counsel appearing for solne of Lhe petiLioners has pointed out that the respondents havg exercised discretion favourabiy and. permitted some identically situatecl disirlacecl Kashmiris to continue in allotbed prernises after retiremenL whereas this hiis been arbitrarily clenied to [he petitioners. Learnecl counsels contencl that the re.sponcl.enls' ac'[ion So far aS tlle present petitioners are concerned, is discriminaLory and nol, sustainabie.

138. The responclen[s on the ot]rer hancl place reliance on [h"e pronouncement of the court rn (L997) I SCC 444 Sltiv Sagar Tiwari us. [-lniom of trmdia and clisl:uLe [hat they have any discretion in the matter. L39. AlloLrnent of governrnent accommodations are eifecLed uncler the provisions of.Allotntent of Govemtment lResidences. (Gen.eral FooI in Detrtrtit Rules 1.96J. Reference is macle to SR 31,7-B-25 [hereof which empowers the Governmenb to relax,Oq I Lhe provisions of these rules ancl d.eserves [o be considerecl in exbenso. 'fhe same reads as follows:-, lt 5R. 31.7-B-25: The Goverlllnellt nlay for reasons to, be recorded in wtiting relax all ot' any of the prouisions of tlte Rules in tltis Diuision in the case of any officer or rebidence or class of officet's o1' type of residences-" L40. It is unclisputed before us that clespite the propouncled rehabilitaLion schemes stated before the Supreme Cour[ ancl I esLablishrnent of preferential quotas in allotments placed befole the Central Administrative Tribunal, the respondents have not been able !o rehabilitate or resettle any of the petiLioners. 141". The resi:ondents have also lot denied bhe availability of tlre cliscrel,ion uncler SR 3L[7] B 25 of the AlloLrnenI Rules, 1963 aud its favourable exercise in favour of some Kashmiri IDPs. Yet, the l:esponclents have failed to exercise the same discretion in favour of the. present petitioners. No explana'tion for the same is even attempted. I42. On tlre issue of exercise of discretion, in the juclgnient reportecl aE,A,XR L98{t SC L622, Iutunicisoa.l Coutzcitr RaL[arn 1/s. \/ardicXtan & Oi-s., the court was concerned with the puJrlic power of the Magistrate under Section 1-33 of the Cocle of Criminal ProcecLure. 'fhe court obserwed [ha[ the 'public power of the rnagisLrate uncler the Code' is 'a public duty to [he rnernbers of the public who are victims of nuisance and so h.e shail exercise it when the jurisdictional fac[s are present as ltere'. So far as exeircise of discretion is concerned, il. was obsewed as follows:- "g. So the guns of Section 133 go into action. wherever there ii public nuisance. rhu rlublic power of under the Code is a public dulti to the bf members of the public who are victims clf the nuisance, ancl so he shall exercise it when the jurisdictional facts hie present as here. "AtrI power is a tmtstuiltat we an"e 'acabwntabtre for its eiercisethat, from the people, ancl for the people, all springs, and aII mus[ exist." Eiscretion decowes a dutv when tXle h-Pnefrci&tY ffiit'cumstances fa,r ifu nteniatt exercise XXXX,,

143. Given the established violaLion of Lhe funclarnental rights of [he peLitioners resulting in their clisplacemen[; t!9 cles[rucbion of their property coupled with the prevalenb conclitions in their home state; ancl iach of any alterna[e bo thern, the exercise of discreLion irnder the SR-3I[7] B-25 of the allotment of Allotment of GovernrnenL Residences (Gener:al Pooi in De1hi) Rules, 1963 in favour of the petitioner:s would thus be the bounclen duty of the respondenLs. The mandate of the Suprerne Courl, tn, IVnwnicipal Couttcil.{X.atha.nil vs. Vardia.han (swpra) wouid bind even the court. L44. The pronouncement of th.e Supreme Cour[ reported a[ (L997) L SCC 444 entllled Sltiv SaEar Tiwafi Vs. ffition of fndia & Ors., has been placecl before this court by the responclents. In l;his case, the court'was concerned" with g"ross misuse. of discretionary power relating to allotmen[ of accolrrllodation to government empioyees. As 'againsL Lhe permissible discretionary quota of L0 per cent,.such ailol.ments hacl.sh.ot up !o 70 per cent. On top of these, 8,768 housels were allotted on "Spebial Cornpassionate Grounds" in exercise of cliscretion uncler the author;ity of a letter cla[ecl 1-Bu'July, 1996 'from the cabinet Secretary. The. Governmenb of.Inclia hacl lD,[6] i^t aforenol,icecl SR. The court had. concludect that '[he conduct of [he responclents clicl not disclose applica[ion of mind and cliscretion was 1ot exercise.d. fairly. In para 56 of the judgntenL, ib was ol:servecl as fo]lows:-

smooth functioning of the Government.xxx" 1,45. In view of the gross abuse of the cliscretion vested in the responclents, in para 57 at page 463 of the reporL, it was helcl that a case to permit rniniinal out of turn allotrnents was macle out which. has to be regulated and transparency. has to be maintainecl in such aiiotments. The courl, consiclerecl priva[e citizens who coulcl be allotted out of the cliscretionary cluo[a which included accredited journalists and news calneraman, political parl"ies, arListes, social worker etc ancl o[her organiza[ions as weli. In Shiv Sagat'Tiwafi us. {-IOI (sugtta),i[ was helcl that the cliscretion conferrecl has to be exercisecl to aclvance [he purpose [o su]rserve wlrich the powe:: exists and. [hat.even the Minister, if he/she be the repository of discretionary power, cannot clairn Lhat either there is no discretion in the matter or unfeLtered discretion. The Supreme Court held that exercise of l0T NoteworLhY, is the of some cliscretion in the matter of allotmenb of quaftels was essential. In this background, the contention of Lhe respondents that exercise of cliscretion was prohibited by Lhe Supreme CorLr[ in this case is totally rnisconceived.

146. On the other hancL, in the insbant cases, the pe[itioners have assailed the arbitrariness in exercise of the discreLion ad.mil,tedly conferred. on the respondents and the failure to perrnit continuation of occupation of the allobbecl accornmoclation in ttie exceptionable circurnstances and conclitions in which they were placed. 'fhe pronouncem-ent of the Supreme Court, in fact, assists the peti[ioners as the court recognizecl exisbence of and permissible exercise of. discreLiou while cleprecating its abuse.

147. Thq standards on which an would exercise authority cliscretion were set[led by the Supreme Court in [he jr"rdgirrcn[ reporl,ed a| (L979) 3 SCC 489 etttitlecn.fiantana Dayarant Shetty trs. ntttet'mationalMirpott,A.wfftoriW of nndia & Ors. as follows:- "'J.0. xxx........It is indeed unthinkable Lhab in a clenrocracy governed by the rule of law the execubive Government or any of its officers should possess arbitrary llower over the interests of the individual. Every action of the executive Government rnust be iriformed with reasorl and should be free from arbitrariness. Tirat is the veqy essence of the rule of law and its bare minirnal requirement. And to the application of Lhis principle iL mal<es not difference whether the exercise of tire power involves affection of some risht or denial of sorne loY xxx 12.......I[1] must, therefore, be taken' to be the law that where the Government is dealing with the public' wheLher by way of giving jobs or entering inLo contrac[s or issuing-qrrotat oi licences or granting,gther f,orms of tutglrr, tf"I" Government cannot act arbitrarily at its sw5et will ancl, Iihe a private inclividual, deal witir any lr"rron it pleases, but its action mus[ be in conformiLy *iitt stanclard. or norms which is not arbibrary, irrational 1.or irrelevant. ion of ent n tt ent"would be liable Lo be stluck.to*tl, "nl"ss it can lje shown by the Governm.en[ that Lhe cleparLure was not arbitrary, but was basecl on Some valicl principie which in iLseif was not irrabional, Llnreasonable or discriminatorY." (ernphasis supPlied) 1"48. In para 85 of the prolouncement reported at AIR n 974 SC 555 enbitiecl E"P. Royappa us. State of Tamitrnadu & Attt". the Suprerne Court'Iaid clown the following bincling principles '- "85......In fact equatity ancl ar'bibrariness al:e swol:Il enernies; one belongs to the rule qf law in a repubiic while the other, to the whim aird caprice of an absolu[e. tllonarch. Where an act is arbitrary it is implicit in it tha[ it is unequal botir according to political logic and Cons[ibubiona] law and is therefore violative of Article 14, and if it affecbs any matter rela[ing bo pr"rblic ernployrnent, it is also violative of ArLicle l-6. Articles l-4 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatrnent. They require Lhat State action rnust be based on equivalenL relevan[ principles applicabie alike to all silnilarllr si[uate aircl i[ rnust not be guided bJr any extraneous or irrelevan[ considerations because that would Jre clenial of eqr"ralitlr. Where the operative reason for State action, as distlnguished from motive inducirig from the antechamber of Lhe rnind, is not legitimate and relevanl. but is extraneoris and outside the area of permissil:le qonsiderations. it would amount to mala ficle exercise of. exercise of power ancl arbitrariness are different le[hal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibitecl l:v Articles L[4] and 16.": (emphasis sr.ipplied) + L tol { Therefore, even if i[ were to ]re helct as urgecl by [he responclentb that this court could be helcl to be irowerless [o direc[ exercise of discretion in a par[icular rnanner, in view of l,he clear principles laict d.own in these juclicial precedenbs, ther'e is no prohiJrition upon this court frorn examining as to wheLher t1r.e responclents ilave failed. to exercise discretion on relevant criterion. There is also no prohibition on this courb, to exami:re whether the respond.ents have acted. ar:biLrariiy or discriminatecl agaiusb the pe[itionels. The irnpugned. action of the respondents agailsl, lhe petitioners ancl the orclers assailed herein have to be testecl on the above principies. t4g. A sirnilar argument of the respondent, that the allotLees were prohibited from permitting retention of accommodaLion beyoncl Lhe permissible period. after retirement was rejectecl by the Cenbral Administrative Tribunal in the aforenoticed. clecision renclerecl on 30'; Decennberi 2002 itt 0.'4'. 1Vu.2378/2OAD Strtti Tej Kiskan Vs. [Jnion of trndia & Ors. The Tribunai hacl exami.ned Lhe petitioner's challengb to [he respondent's acl.ion on th.e plea of discrimination premised on Lhe conduc[ of the respondents in exercising discretion in favour of some sirnilarly situated migran[s and not in favour of the peti[ioners aud observed" as follows:- "3I.. Respondents have nqt dispwted - ttrmt {dashmir miqiants wI o were identicallv atad earu.ranlv sitwated. on th.eir request have been altrowed to retain the accommodation tiII the nonmancv cotnes bach in State of I&K and tiII thev are r"etumteaL emswred fltt'ttrter the safetv of tlteir persons anan propertv and reaonstructiott of tlteir howses, For, Fkese three I{ashmir mi ilo and 'e mot tion. Applicant who is also a o ho ti Indi + L ho ha ll This in my violative of CA n In an.t Apex Court was weil aware about the decision rendered in Shiv Sagar Tiwari.'s case as well as the Rules wel:e also in existence at that'time as well which prohibits reteirtion of accorb.modation beyond the perrnissible period. Conscious of this, the Apex CourL in the light of the fact and conditions as well as circumstances 'of I(ashrnir rnigrants, who have their own h.ouses destroyed in l(ashmir and those retired inclined to go back directed the Government to ensure their protection and as well as of their properfy so that they may be put back to their: respective houses owned by them in Kashrnir on 28.t.1998 i.e. much after the decision of 5".9. Tiwati's case supra as well as the instructions through OM in L[7].L[1],.I997, the matter has been pending sine die and [o be activabed only after 'ilre State of Jammu and Kashrnir ensures return of the petitioners to their respective Flomes with safety of their persons and property. The aforesaid petition is still pending before the Apex Courb.

33. I also find that the Government by the.letber datecl 2.7.2002 in order to hold the retirees or retiral of le meted out a differential treatment.' consiclered view, is unsustainable being Article t[4] of. the Constitution of India."

150. The tribunal rejected the arguments of the responclen"bs prernisecl on the pronouncemeirt tn Shiv SaEar Tiwari (sttlora) as well as scarciW of resources holding as foliows:-

32. Moreover, the.contention that the directions issued. tn Shiv sagar Tiwari's case supxa and the fact that the Government accommodations are few and tire persons claiming the same are more a1d the rules do not permit retention beyond the specified period, is no souqht to be a0hieved. 1n nob get bach to J&K due to prevailing sibuation, a. requested to formulate ilre ffi which a drift has.been sent to the Minisr;r{r for approvai. The aforesaid decisiol also incorporated, Uiat these houses. are lieing allotLeit to I(asfumir rnigranl,s retiring or retired so that the geleral poof u.ro*nioclation got vacatecl from them. This on a.r^ ^+ r'1^ ^ 'lZ^ -]".tir m irrrnn l-q

34. In rny considered view, ttie review undertahen l:y the respoirdents in cOmpliance of bhe earlier ffirt has not talcen note of letter datecl 2.7.2002 as well as the direCtions in l(Oul's case supra. If a post-facto approval can be accorded by CCA ancl approval by the Ministry for Urban Development denying Per irarious Pronounceil]ents of the Alrex Court, cannot he countenanced and would- lle an antithesis to rule of laws doctrine of equaliLy.

35. In the result and for the forgoing reasons,.QA is partly allowed. Impugned order dated 1-3.8.2002 is cluashecL and. set aside. Respondents are directecl [o allow the applicant to retain the Governrnen[ accommodation pending decision in SLP (Civil) No.7369/97. No costs." (underlining supplied) This clecision of the Central Administrative Trihunal has aLLained finality and also stands implemented.

151. Before this court the respondents have no[ everl attempted to Show how the present pe[itioners can be distingtrishecl frorn either Shri Tej X{iskan (supra) or from the instances noticed in para 31 of the judgmen[ 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 [haL these contentions of the petil,ioner are a "maLl.er of recorcl". wn cks e rh ec lt> I52. 'fhere is no dispube also to the fact [ha[ [ire orclers iu I.n..I(amtr, F.n{.Wandoo, M.K.n{owI, Tei Kiskaw (smpra) have a[tainecl finaliLy alcl these persons continue to occul]y [he allotte ct ac c ommo d.ation d.e spite sup elannua tion.

153. The redponclents are unable to poilt a single distinction, let alone a relevant one, between the presenb potitioners and those in the clecided cases. The petitioners are identically situa.tecl, yet have been d.enied equal treatment. Not a whi[ of eiiplanation for not treating these petitioners as those in bhe cited prececlents is suggested by the responclel'Lts. Even the impugned orclers unfortunately clo not atbenr.pt to cleal with Lhis aspect of bhe matter. L54. As noticed. above, the respondents conbencled before the Snplerne.Court tn' SItiv SaErar Tiwari (supra) that they have the cLiscre[ion to d.raw exceptions in the rnatter of allotrlents of public premises ancl have relied on instances and 'categories. when this ctiscretion was exercised in favour of persons who were even not in pril:lic service and were never even ernployecl by the Government.

155. In ground L of WP(9 ) no.L532912004, Shri P.K.Koul, l,he petil,ioner has stated that the respondenLs have allo[ted the Govejrnment accommodation not only serving Government 'employees, but to various other categories of emirloyees who " have nothing to do with Government ser-vice. It has J:ecn sbated tha[ "employees working in the office of the poli.Lical parbies, journalists, freedom fighters, artisl"s e[c." are a]so allottecl general 'pool accommodation.. This averment is no[ IB allotment of the quarter is made as per the r:ules and policy laicl cLown by the Government"

156. It is trite that residuary rules are interpretecl and worhecl to empower authorities perrnitting exceptions from applicability of tlre rule to remove hardships (Ref: 1.993 Swpp.S SCC 5n[5] (para 33) Syed X{halid Rizvi us. UOI & Ot:s; Ggg[6]) 8'5CC 762 SBn & Ors. vs. I{asltinath x(Itet' & Ot's.; Qgss) 4 SCC n 79 Askok X(r. [Jpp.al and Ors. us. State of]&K)' L57. Tlre orders in Tei nfishan (supra) make a cle[ailecl refe:rence to the voluntary exercise. of d.iscretion in' favour of. Lhree rnigrants by the responclents which was the entire basis of the fincling of arbiLrariness b.y the Tribunai in [he action taken against Tej I(ishan and co-petitiollers.. These veIY finclings squarely appiy tb the cases of the present petitioners.

158. No explanation is renclered or. reason given lly the responclents for the rejection of identical requests of some of the petitioners or for not favourably consiclering the saicl. recluests of the petitioners. The failure to even consider these reques[s. clespi[e the specific directions in P.IC I(oults previotis writ petition reflect highhandedness, unreasonableness and arbitrarines.s.on the part of the respondents. The responclents have gran[ed approval to sirnilarly situated persons. Denjal thereof to the equally placed petitioners certainly tantarnonnts to hostile discrimination against them which is irnpermissible ancl as observecl above 'an antithesis to the equaiily clause'. The actj.on of the respondents in noE favourably considering the petitioners' representations; in cancelling the allotments of the T / f L,{ petitioners and proceecling against thern uncler the Public Premises Act, LgTt as well as lh* irnpugned orders are' therefore, not sustainable also being in violation of Articles 1"4 and l-6 of the Constitution' Cnaqge in eotlcV

159. Thdre is yet another importqnt sicle to the claim asserted by the petitioners which requires consid,eration. The declarecl policy of the s[atg with regard. to Lhe IDPs frorn Kashrnj.r is concernecl with their rehabilitation. Forcible eviction from their currerrl,.resiclences without an alternative is not even rernol,ely suggestecl in these policies. The same is evident'f:on the afficlavit placecl before the Supreme Courl. in tr.L.Kor.il,". St^t* of, jam.tmw & X(ashmir (supra) and the let.Ler clatecl 2"d Jr"lly, 2OOZ placed before the Central Administrative Tribunal in Tei I{is"hen Vs. Llttion of India (supra). The decision tahen. to. cancel the. pebitioners' allotments and to initia[e proceedings uncler the Pub1ic Premises (Eviction of Unautirorised Occupanl,s). Act, 1971- without making available of alternative shelte:: clearly suggests a clrastic change in the goverirment policy so far as these IDPs are concerned..

160. In a recenL judgment of the Supreme Courb repor[ecl at MAIVA/SC/0476/2OL0 Sindltu Education Society & A,nr. Vs. The Chief Secretaty, Govt. of IVCT of Detrki & Ot:s., [he Supreme Court obserwed that frarning a lrolicy is the.domain of the Governrnent. The framework of the policy ancl the workrng of sucir Governrnent Policy has essentially to be d.one wibhin Lhe frameworh of the Consti[ution & the laws. As ancl when valid reasons thereof and act in cornmunily rather,than a section. the Supreme Cour:t ireld- that:...'. It is a settled- canon of aclnrinistrative jurispruclence that state action, must )re supported_Jry some valid reasons and should be upot -{""^ application of mind.. In the affidavits filed on behalf of tfie state, nothing in this r'egard could be pointed out and in fact, none was pointed out during th.e course of. arguments. Absence of reasoning and apparent nonapplication of mind would give colour of arbitrariness to the sl.ate actiott." The position in the cases in hancl is no different. The sl,a'[e does not again 6ven suggest a.reasonable explanabion or valicl reason for the change from the rehabilitative policy to [he decision to evict the petitioners and thereby thr:eatening tirem' with immineut hbmelessness

161. The respondents would have the right Lo change lts policy upon change in circumstances..(Ref: (n998) I SCR. Ln20 State of Fwnjab & Ors. us. Ilarn I'whhaya tseEEa & Ot-s.). No such cirange is pointed out in the presen'L cases. The decision to treat the petitioners as unauthorized 'occupants without their resettlement is clearly not premisecl a change of policy upon application of mind and therefore not sustainable. Responsiltilitv of tlte Central Goventment.L62. It has' been suggestecl by Mr. Jaban Singh, learnecl sLanding, connsel for the Union of.India thaL the Central Governrnent has no responsibility vis-ir-viz the petitioners in []re given facts and that only the State.of Jamrnu and Kashmir is lial:Ie for the infraction of the rights of the pe[itioners. tt> larger interesL of the enl'ire In para 66 of the juclgtnent, lt[8]

163. The subrnission o[1] behalf of the petitioners dn the o[h'er hancl is that the duty and responsibility of the sta[e authori[ies vis-a-vis these groups of persons which stand-s recognizeci ancl,a hn{"lr l'lra ctnte ancl Central GoverrarTl"t]., itself' aclmittecl by Lhe both the state and Centrai ( As such, bhe rights of the petitioners canno[ be igno::ed, imperillecl or violated by any gf th.e. respondents' 1,64. It is urged that the respondents have heartily engaged wi[h and manifested. extreme Concern for refugees from ol'her countries, but have fi.andled inadequately, and- even failed Lo aclch:ess the clifficulties of internally displaceci persons' L65. Reference is also mad.e to the.policies of regularization of unan.thorized constructions and encroachments on public lands at:e poinbecl out. Several schemes ancl policies of the resl:ond.ents wi[h regarcl to t]re disadvantaged lnaSSeS so far as rehabilitation and resettlement is concerned. The atben[ion of this court is clrlrwn also to the several judgmenbs concernecl wiLh the right of shelter of pavement and jhuggi-jhornpri dweller:s inclucling Otrga Teltris v. tsomltay Mutticipal Cotporation & ons,; A,hmeda.trtad Municipal corporation us. Na,wah x{han Gulab l{han & Ors.; jagrdish us. DD,A; Sudatna SinEk & Ors.vs. Goventntent 'of Delhi & Anr. wirich h.ave been referred above. The petitioners have urged at some lengLh that the responclenl,s have shown utter insensiLiviLy not only ln protecting their rights but even in the, pursui[ of the mat[er before this courL.

166. The question which begs an answe[ is havitlg failed to ' ensure the life and. safety of the petitioners or to protect their !E/ ur obligation, d.uty and responsibility of the respondents qua tire' petitioners. t67. It is an admit[ed. fact that the petitioners' we]:e all ernployed. by the central Government or its agencies. In order to avoid compromising the security issues of these persons, a more cletailecl analysis of the factual matrix is not being unclertahen. However, the present cases set oub inStances of.: ex[reme traurna faced. by the petitioners and their famiiy membe?s as well as the continued threaL to their life and property. In one of the cases, the petitioner is a destitute lacly who was worliing in the Ministry of Inforrna[ion & Broadcastilrg of the Government of India used to give live performances ancl cond.uctecl programs on behalf of the Centrai Governmen[ in rernote villages in the valley as well as on the electl:onic meclia making her face hnown to the militants. Her troupe was atLackecl in I}BT while performing at lQramabal in DisbricL Anantnag and tirey had to flee for their.life. In this background, she was transferred to Delhi, and was allotted.the premises by the respondenl.s. The petitioner points out thaL in inid-1990; the Songs and Drama Division Office in '$rinagar,.Kash.mir was biown up and the entire staff transferred to Delhi. Not only l,he, house of her in-laws but her ancestral/parental rental house also stand.s burnt cLown ancl she has no place to return to in Kashmir. Even after she was.evacuated from'the valley, her'brobher received threats to'her life by way of cotnmunications advising the petitioner to desist 'from participating or performing i:r programs in supporL of the Government. f'his communication rl LT h.usl:ancl clecacles ago a1d- she stancls.aband-onecl by the Sta[e with none to assist to her.. The writ petibion s[ates that she is getting a mgager. ail]ount of {4500i- as pension, insufficien[ even to sustain lter, let alone acquiring rights in any proper[y'

168. AnoLher pebitioler who was the au'l.hor and Lhe voice of a prograrnme on the Ail India Raclio in Srinagar division which becarne popular across the line of con[rol was so targe[tecl by the militanLs. A price for his head. was even announcecl. In one of the CaSeS., clespite tire security cover, an attempt was made on the life of the petitioner whose property and belongings stand looted and gutted in Srinagar and he has no proper:[y a[ al[1] anywhere in the country. There are other pel,itioilers who wel:e wor:ldng in the intelligence-agencies in the state who were evacuatecl bn emergency basis after their colleagues were shob d.eacl. Several of the petitioners have lost close friends'ancl relatives on account of the attacks by militants. The peLibioners were targetted because they were the face of the Central Governiltent in the Kashrnir valley and are unable to return for the same reason.

169. So far as ensuring the right to shelter is concerned, the Suprerne Court has held that the state is cleemect to be under- an obligation to secure the samb to its citizens [Ref: Qgg[6]) 2 SCC 549 Chameli Singlt & Ors. us. State of U.F.(supra), that it is imirerative for the state to provide permanent h.ousing accornmodation to the deprived t70. In L995 (4 SnR 72 P.G. Gupta us. State of Gwjataf the Suprerne Court hacl further declared that it was the duty of Lhe lt? easily accessible to the poor, and. that such principles have been -: expressiy emboclied. in.our constitution to ensLrre socioeconomic clemocracy so that everyone has a right to life, IilrerLy and security of the Person. In this context, in para. L l- of the pronounceillent, the court expressly laid. d.own the imperative duby of the sta[e to provicle permandnt housing accommodation to the poor in the housing schemes undertaken by it, or its instrurnentality and obseived as follows:- " LL, As statecl earlier, the right to residence and settlement is a fundamental riqht under futicle 19(1)(e) it is a facet of inseparabl ht to minirnal human riqhts. The state.has undeltaken as its economic policlt of planned development of the corinl,ry aucl has undertaken massive housing SChemeS. As its part, ailotment of houses was adopted, as is-e.njoined by Arts. 38, 39 ancl 46, Preamble and L9(1-)(e), faciiities and opportunities to the weaker sections of tire soc.iety of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, intperative of the State lo pt'ouide pemnanent housinq accomrnodation to the voor in Lhe lnousinq perrnanent'settlernent Pnd residerrce assured under Article 19(l-)(el and 2l- of the Constitution. xxxxx" (Underlining supplie d) 1,7L. The Supreme Court has repeateclly reiterabed Lhe well settled position that the state has the constibuLional cluby to provicle qclequate facilities and opportunities to all including Lhe disadvanbaged and the displaced, by disLributing its wealth and resources for the settlement of life and. erection of shelter over their heads. The court has emphasized the constibutional right of every citizen to rnigrate and settle in any part of India for be[Ler employment opportunity and it would be the duty of'the s[ate to lrrovide righf to shelter to the disadvantaged in soci.e[y' (Ref: Ahmedahad Municipal corporation vs. I{awab Khan Gwlab f,{han & Ors. (supra). t72. The forcibie rernoval of pavement and slum dwellers by the agencies of' the state without th3ir rese[tlement oI rehabilital,iol has been fepeatedly deprecaLed by the courbs in the plethora of jud.gments on thd subject. In case they have l'o be evictecl from the place they al:e occupying, state authori[ies are bouncl to formulate "schernes and policies. The responclents have gone on reqord with regard to such projects as are in vogue for.thbir relocation, resettlement ancl rehabilitation. (Itef: (L9S[5]) 3 SCC 545 OIga TeIIis Y/- Bomhay.Municipan corpo.ration & ors.; (1997) 1L SCC L2n,Ahmedahaa{ Mwniaipal CotVtoration Vs. Nawab n{hatt Gutrah n{trtan &. Ors.; IWA,NA/DE/9327/2OOG tagdish vs. DDA; decision of this court clated l-Lt\ February, 20L0 W.P.@) No..8904/2009 Swdarna Singh & Ors.) Placing reliance on bhe obliga[ions under the international instrurnents, the courts have repeatedly 'stated that adequate and reasonable facilities for reseLLlenrenb ancl effective steps tal<en for rehabilitation have to be rnacle available before forcible eviction. 'L73. An issue involving chahmas who were [ribais from erstwhile East Pakistan (now Bangladesh) went Lo the Supreme Co'urt in the case reported at (L996). L SCC 742 National "E{umtan RiErXtts Catnmission v/s. Stat;e of At'wnachan Ft'ae{es,trt A,nr.In this case, a public iirterest litigation was filecl lzo ir enforcemenl. of righ[s under Article zt of the Inclian lLl Consbi[ution, of about 65,000 Chakrna/Hajong tri]rals' I[ wars allegecl tha[ these c]rakmas had settlecl prirnarily in the state of Arunachal Praclesh and were being persecuted by sections of the ciLizens of the state i.e. the All Arunachal Pradesh Students "Union referred. to as 'AAPSU" hereafter. Ib was additionally cornplained that the applications of the Chakmas under [he Citizenship Ac[ ancl Ru]es thereund.er were not being forwarcled by the State Government'for consideration to the Central Governnr"ent in accordance with law. In clecicling the matter, tlae Supreme Cour[ placecl cibizens.as well as non-citizens on a common platform So far as tlLe righ[s under Artic]e t[4] aqd 2L of the Cons'Eitution are concerned. So far as the consiitutional and the s[a[utory obligaLions of the states to protect the rights of those who reside within tl:e terriLory 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 hurnan"being and certain other rights on citizens. Every persorl is entitled to equality before the iaw and 'equal protection of the laws. So also, no person can be deprived of his life or personal liberty excepb according to procedure established by law. Thus the State is bound to protect the life and liberby of every humanbeing, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.9., the AAPSU, to threaten the Chahmas to leave the state, failing which they would be forced to do so. No State Governmenl, tolerate su ne Ctrou of person'to anoth.er qroup of persons; it is cluty bouncl to protect the (Sic) group from such assaults ancl if it fails to do so. it will fail to form its Constitutional as weil as statutory obiiqations. Those giving such (Sic) woulcl be liable to be dealt with in accordance with law. The legal obiicrations to safequard the iife health and-wellffi residing in the State without being inhibited bv local politics. Besides, by refusing. to @IiCations, the Chal<mas al:e clenied rights,.Constitutibhal and statutory, to be considered for being registered as citizens of India." The Court consid.ered the factual matrix and prevalenb cir:curnsl,ances in.d.etail and. thereafter issuecl, inl.er alia, a wril' of mand-atnus directing the State of Arunachal Prad.esh, [o ensure that the life and personal liberfy of each and evelY Chaknr.a residing within the State shall be proLecLed ancl any attempt to forcibly evict or drive them out of the State by organised groups, such as the AAPSU, sfuali be repeliecl, if necessary by requisitioning the sewice of para-military or police force. The Union of India was directed to provide such ad.ditional force as is necessary to protect the lives ancl lil:erty of the Chakrnas on.the request of the first respondent. fhe Suprerne Courl, further clirected that the Chakrnas shall no[ be evicted fronr. their homes except in accordance with law ancl sha1l not J:e denied clomestic life and. comfort therein; the S[ate GovernrnenL was. directed to deal with the quit no[ices and ultirnatums issued'by the AAPSU and any other group whj.ch tanLamounted to threats to the life and liberty of each and eve:ry Chahrna in accordance wiLh law. The Supreme Cour[ has thus recognizecl the responsibilily.of the Central Governmen[ l,o provide forces to protect the right to life of the threatenecl persons. 1"74. Unlilce the Chakmas, the petitioners are IDPs who complain of violation of the same rights ancl seelc redressal thereof. However, the extrerne situation of hardship lL1/ lL> clifficulties being faced by the petitioners and o[her persons similarly ptacAd is no different. The Sta[e Governmen[ has beel unable bo pro[ect or secure the life and property of [he. petibioners. The Cen[ral Government has not been ab]e [o adequately address the several issues which have been raisecl' Many of the petitioners had been physicaily evacuated by the central Government in extreme situations. A11 the petiLioners were empioyees of the Government in Delhi and have superannuated in Delhi. The attempt being made at presenb is also by the Central Governillent at Deihi is to forcibly evicb the petitioners by taking recourse to statutory provisions. L75. It is the constitutional duty of the state to protect h.urnan righbs ancl the fundamental rights of all persons. The distincLion between such rights and legal rights which lnay recluire acljuclication in appropriate proceeclings has also been ernphasised on several occasions. In (X.952) 3 SCC 235 People's Uttiott fot Democratic Rights & Ors. Vs. Umion of fndia & Ors., [he courb observed thal, clenial of sLatutory rights of the labour force, which was a vulnerable section of the cgmmunity, tanLarnounted 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 DDAto ensure bhat the cons[i[utional obligation towards labour are discharged by the conLractors to whom they had entrusted construcbion ' worh. It was heid that the Union of Inclia, Delhi Aclminis[rabion and DDA cannob fotd their hands in despair and become silenL committed by their own contractors' hetd as follows:- "2!. Before leaving this subject, we with all the emphasis at our comrnand In [lris cottuext, the cour t l?-'l may point 'ouL thab whenever fundaucnlal-:tqh!, which is enforceqble- aqainst private individ.uals [ai"ld"als s"cn as, for example a fundamental @dc]e l-7 or 23 or 24 is beincT violated, @the person whose fundamental riglrt is,riotateA can always approach the courL for the purilose of enforcement of his fundamental right, buL Lhat cannot' absolve the State from its re is no violation e"ploititicr lxm. The Union of ' India, the' Delhi Administration and the Delhi Development Authoril"y must 'therefore be held to be under an obligation [o ensure observance of these various labour laws by, Lhe contractors and if the provisions of any of these labour: laws are violated by the contractors, [he petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Administration and the Delhi DevelopmenI Authority by filing the present wri[ petition. 'The preliminary olrjections urged on behalf. of the respondents must accordingly be rejected." The failure of the state to ensure sta'butory rights was held to provide the essential basis for maintaining the writ petition under Article 32 for enforcing fundamental rights'against the State and ibs agencies 1,76. It is noteworLhy that a writ petitiOn was filed in this cor"rrt in connection with compensation payable to residents of I(ashrnir whose properLy had been desbroyed in the distr"rrbances in" I(ashrnir. The judgment of this cour[ reporbed at. AIR 2005 Delhi tr L0 ts.L. WaIi & Ons. Vs. dJnion of, trndia & @rs. has \{ mad"e obFewations on this velY unaccepbable s[and of the Governrnent of Inclia in its affidavit which is under consiclerabion. These obsewations'before the court reacl as under:- "20. Respond.ent N[8].1, Union of India, has also filecl an afficlavit under the signaLures of Mr. K.M' I(uti, Under secretary in the saicl Ministry.clealing_ with the Departrn"elt of Jammu & Kashmir affairs. Respondent No.UUOI Joy way of the said affidavit effectively washes its hand.s off the rnatter. It is stated that relief and relrab'ilitation are State subiects. Para 2 of the parawise reply r"ay 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 iesponsibility to rehabilitate and provide.relief to the citizens who suffer as a result of failure of state to protect their' life and properby is rnisconceived, incorrect and is denied. Tire Relief and Rehabilitation to refugees from Wes[ Pakistan (now Pakistan), East Pakistan (now Banqladesh). Sri Lanka. Tibet and to the repatriated Indian Nationals. Therefore, thc present writ petition qua the answering respondent is not maintainable.

2. I. The Government of India, thus, considerecl i[s responsibility for providing relief and rehabilitation bo refucrees. who are not citizens of this country, brit nol. to citizens of the country who are refttqees in their own country. The apathy is Writ large on its face.

22. There is a vast para para phernelia of mili[ary and para military personnel in the StaLe. of Jamrnu & I(ashmir of the Central Government. The l:oundaries 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 Vallev is a well-hnown undisputecl fact. How can the Governrnent of India wash its hands of th'e whole matter ancl absolve itself of the responsibilitv for providinq a safe livincr to the citizens of the country?

23. Ar[ic1e 2L of the Constitution of India provides for the Fundamental Right of Protection of Life and Personal Liberty. Life cannot be bare' existence. Rehabilitation are State Subjects. Ministry of I 114" and,.p::operty as withoub rernedy. a result of [errorisrn cannot be left It is the ctut-v ancl responsibilitlr of the (EmPhasis suPPlied) This cour[ rejectecl the stand. of the Governrnent of India that bhe responsibiliff towards the payment of the compensa[ion rests wiLh the State Government alone holding as follows:t of Indi itself of the responsibilit-v and is liable to ensure that [he State Government remits the amount. A large amount of funds flow to the State of Jarnmu & I(ashrnir frorn the Central Governmen[ lceeping into consideration the disturbed conditions and, [hus, tlr.e Central Government cannot say that it has no role to plalr. The State of Jammu & Kashmir is an integral parL' of our countiy and the writ of the Central Governrnent runs. In the cases of'victims of Charari Sharief incident, funds have been disbursed out of the Prime MinisLer Relief Fund to mahe a package of Rs.[2] lakhs of ex-gratia compensation apart from oLher benefits. "

1.77. In this judgmenfl the court helcl that whaL holcts l.rue for loss of life,and lirnb, would hold true for loss of property occasioned by failure of the State to protbct the same., I[,is notewor[hy that in the present writ petitions, the peti[ioners have not been deprivecl of their properLy ancl hornes in accorclance with law as, for instance, in the case of accluisibion.proceedings. The deprivation is a direct result of the failure [o control the vioience against the petitioners. The principles laid clown in the above juclgment would apply to, the l(ashmiri rnigrants on every score. More irnportant is the clear fincliug by the court of the responsibility of the cen[ral Government for the rehabilitation ancl relief to the IDps frorn'Kashrnir of th.e citizens." tw 1,78. It is unfortunate that d.espite this acljuclication, the sband wirich was reiected has again been taken in tfuese proceedings' This position on behalf. of the central Government in fact ignores the cornmitments mad.e in legal proceedings noticed above. 1,7g. It is nobeworthy that the d.isplacernent of Lhe pe[itioners is also not intl:a-state. The petitioners have been compelled [o leave the bounclaries of their state.and are residing in Delhi'

180. The' Central Governmenb has acknowledged its r-esponsibilily in t'he ma[ter inasrnuch iL has intervened in Lhe -mal,ter. Several of the irresent petitioners stand evacuated by iL ancl [he allol.ments of the quarters in the ins[an[ case s[ancl rnacle it. Cenbral resources are being ubilized for development projects ancl security purposes in the sLa[e ancl aclmitteclly the Central Governmenl, has accepted and assumed responsiJ:ility towards rehabilitation and resett]ement of the lrersons clispiacecl. as well in the grants ancl reservation macle by it. 1B1-.. It was observecl ttt.(L97E) L SCR. n fuMtu of Raiasthan & O.t's. us. WOnby Chief Justice Beg that:- "In our country national planning involves clisbursemenl,s of vast amounts of money collected as taxes from citizeus residing in all the States and placed at the ctisposal of the Central Government for the benefiLs of the Stal"es without even the "conditional grants" mentioned above.. Hence, the manner in r,vhich State Government function and deai with sums placed at their disposal by the Union Government. or how they carry on the general adrninistration may also be rnatters of considerable concern to the Union Government." LBz. The expansion and interpretation by the cour[s has affirina[ively esLab]ished a positive right'Lo housing ancl shcller for every llerson as irarl, of the fundamenLal right. Flr"unan t{ righls alcl funclamental rigirts are ilalienal:le; their violations '' ur. indefeasibie. The state is under a constitutional obligation ancl clu[y 1,o ploLecb these rights. when violatecl, a. ci[izen is entibled. [o their enfo]:cement. The constituLional manda[e upon it, is coupied with the statutory clufy ancl pu}Iic law bbligaLions. to ensure the protection of the funclamental and basic hurnan rights to all, in ad.dition to its obligation under the' sevel:4l international instruments noticed. above. This essentially remains in the exclusive domain of state functions. Failure to protect the citizens frorn erninent loss of life and properLy as well as maintenance of public order, implicates the sba'te for culpable inirction. t83. Mr. JaLan Singh, learned standing counsel for the Union of India has urged that these petitioners are not publib servan"[s and can claim no right to continue in the allotted pubiic premises. It has been vehemently urged that on account of their Superannuation, they ceased to be Governrnent servattts and. are ctisentitled to retain Government accomilroclation. Learnecl Stancling Coirnsel has urged, at solne length tliat the Governmen'L of India has formulated a rehabilitation package which necessitates that all these petitioners ruust Leturn to their hornes in Kashmir. lt is ccjnLended that by Lheir faiiure Lo vacal.e, Lhe rights of the several Government employees who are wai[ing to be allotted Governrnent accomrnodation are adversely effectecl. Unfortunately the responclents are unable to sul:mi[ that bhe petitioners would be safe upon return or how [he respondents propose to ensure protection of life and liberty of the pe[itioners or Kashrnir valiey. ensurg restoration of their property in 1"84. Before the Suprerne Court of Inclia, the reslrondents have accep[ecl responsiiliiity ancl obligation to the IDPs from Kashmir: and claimecl to have advanced huge grants to the Sta[e of Jarnmu Kashrnir ancL also.set out a detailed.scheme in [he affidavit filecl before the Suprerne Court. ' In bhe instant case given the na[ure and extent of the violaLions, the Urrion of India cannot abdica[e responsibiliLy iti the matter, or avoid. its constitutional obligation of at leas[ ensuring reasonable shelteu or a roof to these petitioners. Financial sttinqencv of tke' G overnrnbn t t8s. Placing reliance on the judgment reported at (2005) 6 SCC' n SE Master Marine Senrices hrt. Ltd. us. Metcalfe attd I{odgXrinson Fvt. nffi. &.A.nr., it has been further argued by Mr. Jatan'singh that this court is bound to exercise judicial restraint'and canr:ot be unmindful of the administrative burden and increase in unbudgeted expenditure on account of cluashing decisions. It is urged that in this background, while exercising power of judicial review of an administrative decision, the cour[.cannot substitute' its own decision wiLhout the necessarv exper[ise and compel the respondents to exercise discretion to permit the petitioner to continue to occupy the aforeno[icecl accon'Lmodation.,1-86. This submission fails to consider the nature of the righLs wlrich are involved in tlr.e case in hand. Metcalfe HodErkinson Lhe t2J t\o L/ ancl con[ract of work of professional sewices [o [he appellant ancl was.1ot concerned. wi[h a plea of vio]ation of basic'human trrtinnnl rnrarnl 'fvOlvecl in thg riglrtsandconstitutionalguaranteesaSareil ' instant case. 'fhe consid-eration tn Metaatrfe t{odErkinsott'Fvt. ['td.(supra)lrasnoapplicationtothepresen[case. IB[7]. In (2003) 6 SCC L f{apitra Etringroratti us. State af t & Ot"s. t]ne State Government had, however, pleaded financial stringency to shift its liability to the Union of India or to the StaLe of Jharkhancl." In para 67 pfthe juclgment clabecl 9tr',. of May, 2003 Supreme Court had helcl that the liability of [he state of Bihar canno[ be shifted to the Union of India only l because it is the reposiLory of funcls raisecl by it Lhrough excise ancl other central levies and. impost, ancl consequentiy it woulcl ' l1ot be ind.irectly or vicariously liable for the failings on the par[ / of the StaLe Public Sector Undertaldngs. It was held that eiLher precedentially or jurisprudentially, the Union of India cannoI l:e held. liable and no such direction as was }:eing sought by the state oovernment coulcl be issuecl, The Supreme Court,. however, clearly declarecl' the ^ position bhat financial stringency may not be a grouncl for no[. issuing requisite clirections when a quesLion of viola[ion of. fundarnenLal right arises. In this regard, the court noticecl Lhe ernphasis given by i[ on this aspect including the judgmen[s repor[ed al, ft987]15CR.64X. Ruran LitiEratiott and Entittrentent ndendra amd Ors. v. State of, Wttar Fradestrt and Ors.; X.98OCriLiL075 Municipal Counaln, Railanx vs. Vardichan & Ot-s.; [I\h6]SSCR.B0 E.n. Wadhera v. (Jnion DI R.ec,ogutised & Aided Scltools ManaEinEr cornntittees and Otri.; '4,[R n 996 SC 2426 Pascltittt tsamEa K'het Mazdoor Saineiti & Ors. us. State of West -Bengal & A'ttt"J Inpara65of(2003)6SCC[1].enffiiledI{apina E{ingrorani Vs. State of tsihar & ors, the Cour[ rejecLed Lhe contention of the State of Bihar also to this effecb' 1BB. In para 6 at page 589 of (L993) 3 SCC 584 Ail nmdia 'Intatn Otgramisatiom us. \IOI, the Suprerne Court held-.[haL:'- Uni ev can meet tlle o hnams as thelr are beinq paid in the state of Puniab. It was also urged that the nurnber of mosques is so larele thai it would entail'heav-r,' expenditure which the.Eparcls dn.do anv corr. Fin 'an dif,f,icutrties of, the institution canilal &e--@trtove. Boarrls have been entrusted with tire responsibiliby of supervising.anql administering the Wakf then it is their dritv to harness'resources to pav those persons who p9rform the most important duty namely of leading communily prayer in a mosque the very purpose for which. is created." 1B[9]. On the same issue tn (L995) 4 SCC 507 State of M.P vs. M.P. State RecaEnised & Aided Schoans ManaErinE Connnaittees, the Supreme Cour[ observed that:- "1-6. The constitwtional mandate to the State, as upheld by tliis Court in Unni Kiishnan case - l,o.provide free education to the children up to the age of fourbeen - caxnnot.be perrmitted to be circwtnvented om the groumd.of lach of econornic cagtacity ar finamcia,l. incapacity."

190. The observations of the Suprerne Cour[ at (2005) 2 SCC 262 &dapina Elingoraini us. State of tsihat' & 0ffitetq while clismissing the review petition filect by the Bihar GovernrnenL, l3L-'also topical on this objection of the respondenl.s and need bo be considerecl. The State of Bihar hacl submitted that the state hacl no liability to pay the salaries of the employees of l.he sbal.utor:y corporations/companies incorporal.ed under the Indian Companies Act and tha[ they were not completely under the 'control of the State. Before the Supreme Court, counsel for Lhe State of Bihar had urged that the rernedy of the employee was to fil.e appropriate api:lications before the Cornpany Judge who was seized of the winding up proceedings in relation to such 'co]]]pany Th.ese submissions wel:e rejected by cour[ observing bha[ in the order dated 9'h May, 2003.; the courL had considerecl the matter from the hurnan rights Espect as well as the fundamenLal rights of the employees in the public sector under[alcing operating in the state of Bihar, The cour[ noticecl t]rat afLer f;he passing of the order dated gtr' May, 2003, several enployees cliecl clue to non-paJnnent of their salaries. The court placed.reliance, inter alia on para 24.of the clirections clatecl g'r'May, 2003 and.while rejecting the review peti[ion filect hy tho responclents observed as follows:- "24. This Court further observed lhat bhe State c_al:acity ris-d-tis petfotmanc" of its corrstitrtio*i duties and functions by the public sector undertakings as it has constitutional obligations iri relation thereto." (Underlining supplied) so far as protection of such h'man rights ancl fundamental rights, and remedy for violation thereof, is I3> concernecl, the court issuecl direcbions to the sla[e govelnmetlL to pay bhe salaries of employees in the public sector undertalcings in the foliowing terms:- "22. The Government companies/public sector, unclertalcings being 'States' would be consl.itutionally of Article 2l- of the Constitution of India. 'fhey, therefore, must do so in cases of their own elnployees. The Government of the. State of Bihar for all iltent a1d purport is the sole shareholder. Although in law, its iiafinty towards the debtors of the Compairy may be confinecl to the shares held by it but having regard [o the deep and pewasive control it exercises over the Goverfiment companies; in the matter of enforcernenl. iqhts and/or ri itizen of h lib the State h dutv bo [he rights of employees of such corporations are not infringed. The right to exercise cleep ancl pervasive control worild in its turn mahe the Government of Bihar lial:Ie to see that the life and liberty clause in respect of the ernplblrees is fully safecruarded. The Governrnent of l.he State of Bihar. thus, had a constitutional obligation [o protect life. and libertlr of the ernplolrees of Lhe Governrnent owned companies/corporations who ale the citizens of India. It had an additional liabilitli havincr, regard to its ricrht of extensive supervision over the affai.rs of the companJr."

XXX. 37. We mahe it clear that we have nob issuecl aforernentioned directions to the States of Bihar and Tharlchand on the premise that thelr are bound to pay the salaries of the emplolrees of the public sector trndertakings but on the qround that the ernployees have a ltuman riaht as also a fumdamentatr riaht under,Altictre 2L wlticlt the States are howttd'to p,rotect. The directions, which have been issued by this Courb orl gtir May, 2003 as also whlch are being issuecl herein, are in furtherance of the human and of the em cerned and n ent of icrht to arre of salaries. The amount of. salary payable to the concerned employees or workmen would undoubteclly be aQjudica[ed upon in the proper proceedings. However, these directions arb issued which are necessal1y for their survival. Undoubbedly, any amount paid by Justice Uday Sinha Committee puisuan[.to these directions shall be duly creclited for.,, 19i". The plincilrle reiter:atecl by the suprene coqrt was that llJ financial clifficulties of the institution or the sta[e cannot ]le a}ove the fundamental rights of the citizen' It ftas also been observed. that in a si[uation of the nature which was before the cout'[, il, was obliged to issue necessarY clirec[ions to mi[igaLe bhe extrerne hardship of the employees involving of hurnan rights of the citizens of the country at the hairds of the sl'a['e governrnen[ and. com.panies ancl Corporations ownecl and controllect by it. tgz. OLher than the balcl reference to the juclgrnenb in Metuanfe (supra), lear1ed. stancling counsel has placecl no factual assertions iq support thereof.' Such subrnission j.s clearly untenable i[1] view of the admitted Government position in the afficLavit clateci 6th October, 2009 filed rn i.K. X{own @ttp'ra) before tire Supreme CourL of its responsibiliLy as well as liabiliuy qua the displaced l(ashrniris. The same stands admittecl in [he discrebion exercised in favour of the three persons cited rn Tei 'trdislmn (swpra) and the letter dated 2nd July, 2002 placecl befor"e the Central Aclministrative Tribunal as also in the policy of reservation/preferential allotment of the flats. ' The respondents have clearly admitted their responsibility and are l:ou:ncl by their commitments. l-93. Before 'this'court, the respondents have not sba[ecl [hal there is any assessment or calibration in t6rms of priori[ies of the various of the several projects which th,e respondentb neecl unclerLahe or. the various areas which Government business aclclressed'. The responclen'bs' explain neil,hbr the financial b( bnrclen of ensuring sheiter to these IDPs nor Lhe ex[en[ of [he available. resource. Mere announcement of schemes and allocation of large volqme.of funds by Lhe Government as a reac[ion to court'clirections upon occurrence of events in Lhe coqntry by tlienselves are insufficient and rnay prove to be ineaningless. Displacement as that of the presen[ petitioners clearly reflecl,s the imperative to tahe a holistic view and for: bhe clecision mhkers to take a 'rninimum-neecls'.based approach where ensuring basic human rights. and sociai welfare are concernecl. Lg[4]. Experience, ancl examples abouncl in this city ancl Lhe a.forenoticecl juclicial precedents of foicible evictions. relating lo. slurns ancl jhuggi clwellers. Defenceless and disadvantarged cil.izens are forcibly evictecl from their shelters which are Lb.en clestroyecl. And then, the long arm of the state, gives a hy[1]:er technical inLerpretation to legal definitions, [akes the shielcl of staLutory provisions and implements what is bouled as the ".qu.Ie. of law" in removal of "encroachments" by the disadvantaged. Others illegai constructions and deviants are "regularised" ol: "corf1porlr"r.ded", This very. ethos is iilustrated in [he present wri[ petitions L95. Ins[ance after instance of schernes in Delhi for regularlsing not only ranli illegal ancl unauthorisecl consl,rucl,ions but also large scale encroachrnenl,s on public land are in existence ancl being implementecl. So much so that the Central. Government has prornulgated ordinances and s[atubes prohibitting demolitions of huge illegal buildings ancl even lle, such law breakers who do not even need rehabilitation or sLate sullpor[, who are certainiy no[ disaclvantaged or displaced' The Delhi Laws (Special. Provisions) Act, 2006 was enactecl by the parliament concernecl that action for violation of l,he provisious of Lhe Mas[er Plan 2OOI and building bye laws was causjng harclship a1d irreparable loss to a large number of peopie' No reference to pubiic. Safety, public interest, environ'men[ Concerns, enforcernent of lega[1]. provisions or the financial irnpacb aricl loss is d.isPiaYed-

196. The judgment reported at 2OLO $M) '4D (DeWeil 5n[3] Wai:i.\an f{alyatt Satniti ReEd. & 01"s. vs. Governtnent of NCT of DeIItf makes a reference to Government policy to reguJ.arise 1-400 unauthorised colonies. The huge tross to the public exchecluer of indiscriminately regularising illegal eicroachrnen[s on lancl accluired after paymenb of large sul]ls as cornpensa'tion frorn public funds by [he governrnenb; encroachrnents those on public iancl as also violations of builcting regulations is not even computeci, let alone adclressecl. (Ref: (2006) 3 $CC 3gg IW.C. IV[e.hta us. AOn & Ors.; AIR 2005 SC 1 Friettds Colony Development Cotmmittee \/s" State qf Orissa & Ors.)

197. Yet the respondents urge "financial stringerfcy" so far as the present petitioners are concerned. The essence of [he policy of rehabilitation and resettlemen[, so far. as the petitioners is concerned has not only been given a compie[e go by but the respond.ents are completely denying aII liabiliLy for the same. tlT

19.8. Apart from a vague suggestion of insufficiency of funds, the respondents do not substantiate such plea with any nlaterial. The respondelts have not shown any consideration of tfue 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 worlcing the rights of the petitioners on account of financiai incapaci[y' To say the'Ieast, similar submissions were termed as;'typically gauche" ancl "lacking insensitivity" by this court i[1] P-I{. Edamdoo us. Estate Officer (supra) ancl already stand rejected tn B.L. WaIi & Ors. \/s. UOI (supra). The impugned action and the sul:missions manifbsts the huge barriers which a clisplacecl citizen of the country faces in accessing even basic and guaranteed. constitutional rights clespiLe the. achnitfecl responsibilily of the state for the breaches and violations of the c onstitu'l,j.ona[1] prote ctions suffere d by tlr.em. Af- - ^ t^te remedv role of the cowrt and \atwre of {etrief f gg. tt is now necessary to consider the nature of remedy.ancl relief which would be available to a citizen for violation. of thg fundamental right to life as well as threat thereto. The.supreme Court has repeatedly judicially awarded colnpensation id cases of established breach of public duty to protect the fundamental rights and violations thereof, especially the guarante.es of p'ersonai iiberty and life.

200. In AIR. 1.983 SC 1086 R.udutr Sah us. State of Bilnar, the courb was concerned with violation of rights resulting frorn iiiegal detention. The observations of the court on the du[y of the court desewe to be considered in ex[enso and read as "l-0..Article 2l-, which guaranrees the righL to life and-liberty will be d.enueied of its ffie telling *aYl i[1] which Pq -"l.tio" of that right can reasonably be- prevented ofutt to the judiciary to adoptr T4" riqht to -compensation is some un.l dn. compliance -itrr the mandate of $rticle 21secured, is" to mulct its violators'in the paiment of monetary compensation. Administrative selq(sic)sis ieading io flagrant infringements of fundamental rights "cannot -be corrected by any other method civitisation is not to perish in this country, as it ltas pe,'sne. ln some ofhers too well-known to suffer inention, it is necessary to educate ourselves into accepting that, respect for the righLs of individuals is tlie tfue bastion of d-emocracy' Therefore, the state rnust repair the damage done by its officers to the petitioner's rights. " zOL. 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 las his Lordship then was] in his concurring jud.gment in A,IR 1.gg[3] SC L960 entitled Nitrabati tsehata @ tr alita Behura Vs. State of Otissa had observed as "33. The public law proceedings serve a different purpose thap the private law proceedings- The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the I{igh Courts, for established e indefeasi ${ td. rf hr under Article 21 of the Constitution is a remedli available in public law and is based'on the stricl. liabilitlr for contravention of the quaranteed basic and indefeasible riqhts 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 lega[1] systern which aims to protect their intdrests and preserve their riqhts. Therefore, when the court granting "compensation" in proceedings under Article 32 or 226 of the tion seeki IN which has failed in its public rights of the citizen. duW to protect fundamental of the citire{L The compensati.on is in the nature of ' exemptary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of claim compensation undgr the private law in an action based. on tort, through a suiL instituted. in a court of competent jurisdictiol or/and prosecute the offender under the penal law. XXX XX)(X

37. Tltis Court and the Xdiqlt Courts' beins the irotectors of the ci\ril lillerties of tlne have not but alsa tion to t relief, of iis iurisdiction wnder 'ArticXes 32 and 226 of, the Consti ttrze uicti. heir of the State to repair the darnaoe done bv its officers'to the f,uttdamental riqltts of, tlte citizEn notwithstanding the right of the citizen to the rernedy by way of a civil suit or criminal proieedings. The State, of course has the right to be indemnified by ancl take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 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 tire facts and circums'bances of the case,' is possible."

202. In (L98E) 4 SCC Sheetra Earse us. UOn & Ors., t};e courL was concerned with gross violations of 'Lhe constitutional and sLatutory rights of a large number of children in the country who were suffering custodial restraints. Whiie comrnenting on,rl thp col cIe tto the nature of proceedings in public interest'liLigation ancl the U" issue of protection and. enforcement. of their rights, the court macle the following. observations with regard- to the duty of the court:- "6.........More importantly the Court is not

203. Where infringement of fundamental rights is' established, the d.uty of the court d.oes not stop at giving a mere d-eclaration' In tggT (u sac 4L[6] D.I{. Basw us. state of,west Bengral, tE was laicl clown tirat in such a. case, the court must proceed ftir[her ancl give compensatory relief, not by way of damages as a civil acbion but by way of compensation und.er the public law jurisctiction for the wrong done, due to breac.h of the public ciuty 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 iqiury is a compulsion of judicial conscience.

204. Unlike the severai cases noted hereinabove inclucling ca'ses of Rudwtr SkaIL D.I{. Easu, -f-eelawati Beltut'a, Sltee"la Barse (swpra) etc. in the instant case, bhe state or il,s instrumentalities itself have not. harmed or punished the petitioners. Flowever, the state has t'otally failed to protect the fund.amental right to iife of the petitioners and to probect them from violence, harassment and. pogroms. This is in clear abdication of the constitutional responsibility of the Stabe. Responsibiltty for the violence in the State is not the question \ )\iL before this.court. The issue before this court is restricted to the question of the rights of the petitioner.

205. So far as the approach of a court on such issues. is concerned, in para 13 of the pronouncement reported at (2003) 4 SCC 6OL State of fl[aharashtra us. Dr. D. Fraful E. Desai, the Suprerne Court stated that one neecls to set out the approach which a court rnust adopt in deciding such questions ancl reiterated that the first duty of the court is to do justice.

206. In para L[5] of "LIR Lg80 SC 1622 Mutiicipal Counci.l, Ratlatn us. Vardicham & Ors.; the court observed that:- "L[5];.. The nature of the judicial process is nob purellr adjudicatory nor is it functionally that of an umpire only. Affinnative action to malce the remedlr effective is of the essence of the riclht which otherwise becomes sterile."

207. In para l-1 of GggT) 6 SCC 241 Vishalrtrza & Ors. us. State of R.ajasth.att & Ors., the Supreme Courf helcl that the' obligation of the Supreme Court under Arbicle 32 of the Cons[itution for the enforcement of fundamenta] riohts in th.e absence of legislation rnust be viewecl along with it u,ot" of judiciary envisagecl 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 ancl the Pacific at Beijing in 1995 as those:represeirting 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 bhe neging Staternent are:. "Objectives of the Judiciary: l-0. The objectives ancl functions of the judiciary include the following: (a) to ensure that all Persons are able to live securellr under the Rule of Law; (b) to Promote, within the ProPer limits of the judicial function, the human riqhts; and.

(c) to ad.minister the 1aw impartially. ' among Persons and between persons and the State." In Clause 10(a) of the objectives of the chap[er on 'Objectives of the Judiciary', it has been clearly stipulatecl that. 2OB. So far as the manner in which relief is required to be moulcled so as to ensure protection of the constitutional rights of the petitioners in this bunch of writ petitions are concerned, learnecl counsel for petitioner has placed reliance on the pronounqement of this court dated l-Oth Septernber, 2004 in WP(C) Nq. 172/1997 entitled Srnt. tr{aayla Deui us- GoW. of l\rCY of Delhi & Oz's. In this judgment, lear"ned 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 ac[ivity in Delhi. The court held that lower courts would'lose their efficacy if they canncjt possibly. respond. to the needs of the society technicalities tirere might be many bpt the justice-orien'ted approach ought to not be thwarted on th.e basis of such )\U technicaliby since technicality cannot ancl ought not to ou[weigh the course of justice. 2Og. While r:eferring to several pronouncemenbs of the Apex courb with regarcl to compensation for custodial death; death of school 'chilclren on a picnic; death of a passenger in'a train in action on the part of the railway empl.oyees, it was further observed rn X(atmtra Deui's case (supra) 'as follows:- "7. xxx The fact of the matter is that uday singh lost his Iife on account of an act of terrorism. Th.e state failed to preveirt it. The Primary duty of the State is bq '. rnainJain peace and. harmonlr amongst its citizens. If fot some reason,' it is unable 'to puL the lid on simmering discontent, then it is its duty to protect innocent citizens from lr.arm- If it fails in this duty, then it muqt compensate the citizens who have been wronged. "; Reliance was place.d.on the.pronouncemenl" in AIR X.993 SC 1960 Nilahati Eehara @ tr atrita tsehurei Vs. State of Orissawherein it had been also observed. that,while directing monetary, compensation for established infringement of the funclamental. rights, the courts tahe into account not only the interes[ of the app]icant and the respondent but also the interes'bs of the public as a whole with a view to ensure that public boclies or officials do not act unlai,vfully and db perforrn their public duties properly particularly where the fundamental riglrt of a citizen under Articie 2L ts concerned. Law is in Lhe process of development and the process necess;iLates developing separate public 1aw procedures as also public law principles. 21.0..In,AIR LgSg IWad. 205 R.. Gandhi & Ot"s. \/s. UOI &,A.nr., the Madras High court was concerned. with the inabiliLy of v Iiberby, home and hearth of the victirns involvecl' The petition sought red.ressal for lhe trials and tribulations undergone by the minority Sikh community of Coimbatore"in T'arnil Nadu and a few others in the wake of the assassination of labe lrrirne Minister Smt. Inclira Gandhi on 3Lst October, 1-984. Observing on the violation of the fundamental rights and the duty of.the state, the Madras High Court placecl,reliance on the TetrIis (supra) "21. T name libe hearth hqme of the citizens in jeopardlr. 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 Lhe institutions of the national life. Under Article'19(a) and'(g) of the Constitution, any citizen of this country is entitlecl to reside and settle in any.part of the Territory of India and to practice any profession or to carrlF on any occupation, trade or business. Article 2I lays down that no person-shall be deprived of his right or personal liberty except according to [he procedure established'by law. As pointed out.by the Supreme Court in Bombay Pavement DwelLer's 'iase, MANU/SC/0039/1985: AIRI-9BOSC1B0, ro person can live without the means of living, that is, the means of livelihood and the easiest way of depriving a person of his right to life would be to deprive him of his means'of livelihbod to the poinb 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 Siirh Community:[orm an integral part of the Indian society; they have every right to settle down in Coimbatore arld carry on []reir profession. They have the Constitutional right to live and they cannot be deprived of their rneans of livelihood. Tireir right to property is inviolable. AII these Constitutional rights of the Sikhs a4d a' few have been fYY I obsewations of the Supreme Court in the OIEa case, and held. as'follows:l\( flagrantly infringed by the inaction of the law enforcing authoriLies. "Fundarnental riqhts _ are not mere biutum fulmen They are the, throbbing aspirltions and realities of civilised human life, they cairnot be rendered desuetude or dead-letter or as callllof, Jfg rgIILIeIeLr ueuue,tuuv ur \r('o.Lr-rv"r'v observed by Bhagwa[i, J. as he then was, 'a paper parchment, a teasing illusion and a promise of Lnreality', by the fajlure of the State to protect those righbs. -These unfor[unate victims of.arson and,riolence are, therefore, enttlLed to seek reasonaltne Go te of Ta ibitri or obligation as a social welfare State to make @". (underliningsupPlied) 21,L. Examining the claim for compensation on account of death of a spouse in simiiar riotS targeting. rnembers of the same community in Delhi in 1-984, Anil Dev Singh, J in the judgmenL rbported at L996 (3) AD (Delhi) 333: n 996 (35) DRtr 203 Bhajam Kaur us. DeXtrti,Mdmn. has observed as follows:- '(10) Arbicle 21- is the Nation's commitmen[ to Jrring every individual or group of persons within its protective foid. This Nation belorigs to members of all the communities. They arc equal members of the Indian sociefy. Equality before law and equal protection of laws is ensured to them by Article L[4] 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 2t of. the Constitution. It is tire duty of the State to create a clirnate where the cleavage'between members of the society belonging to different faiths, caste and creed are eradicated. The State must act in tirne so that the precious lives of the people are not destroyed or threatened. Otherwise, Article 2l- wilI remain a paper guarantee. Time is long and leqai rights. lv[6] lrortatory effect in. enfcjrcing Article 2L of the Constitulion. The State cannot aclopt a "do nothing altitucle,'. Like disease prbvention, the State must take everlr precau[ion, measure.and initiative to 'prev_ent iurtoro1r populi of the mag*itud.e represenbed by 1984 riots and in lhe event of an outbreak of riots it must ac[ swiftly to'curb the same and not allow precious time bo

┌───────────────────────────────────────────────────────────────────┐
│      slip by, as any inaction or passivity on ryl part- can       │
│      reiult"in loss of precious life and liberty of individuals   │
│      amounting to vioiation and- negatioil of Article 2L of the   │
│      constitution. The state has to enforce minimum               │
│                              behavi                               │
│      Itfe haf bee" extinguished in clear violabion of Article     │
│      21, of the constitution whlch manda'Les that life cannot     │
│      be tahen away except, 'according to the procedure            │
│      established by toy:                                          │
│       It is noteworthy that in para 25, the learnecl Juclge in    │
└───────────────────────────────────────────────────────────────────┘

Rs.25,000/- which shall be paid within a from the date of passing the order. entitled to costs of period of six weeks These writ petitions are allowed in the above terms..Ctvll Nos. tr 10n 1/2004. tr 1013/2004' LL026/2004' 1n02e/2004. 736/2006. x1016/2004. 1nq4+/?q94. '2379/2006. t{ wsm trita?. t34rtl[2] r-o++glzoou. CI0g., -= 79,5=+/?=oog' T0,9. n124t4l2oos & -.1j$2-r09.. In view 'of the orders ilassed in the respective writ petitions, these applications do not require further aQjudication ancl are d.isposed of accordingly'.. /K. Novemrb*rJ0, 2010. aa/kr