Delhi High Court

P.K.Koul vs Estate Officer & Anr. on 30 November, 2010

Author:
Gita Mittal

Bench:
Gita Mittal

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) No.15239/2004 & CM No. 11011/2004

Date of decision: November 30, 2010

P.K. KOUL ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER AND ANR. ....Respondents

Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(2) Writ Petition (Civil) No. 15240/2004
and CM No. 11013/2004

T.K. OGRA ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER AND ANR.

....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(3) Writ Petition (Civil) No. 15245/04

and CM No. 11026/2004

A.K. MUKOO ... Petitioner
Through: Mr. B.L. Wali, Advocate

VERSUS

ESTATE OFFICER AND ORS. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

W.P.(C) No.15239/2004 Page 1 of 157

AND

(4) Writ Petition (Civil) No. 15246/2004

and CM No. 11029/2004

M.L.DULLU ... Petitioner
Through: Mr. B.L. Wali, Advocate

VERSUS

ESTATE OFFICER AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(5) Writ Petition (Civil) No. 862/2004

and CM No. 736/2006

A.K. TRISAL ... Petitioner
Through: Mr. Manoj V. George,
Advocate

VERSUS

ESTATE OFFICER AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(6) Writ Petition (Civil) No. 15241/2004

and CM No. 11016/2004

T.S. BALI ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(7) Writ Petition (Civil) No. 15264/2004

and CM No. 11044/2004

P.N. KACHROO ... Petitioner
Through: Mr. B. L. Wali, Advocate

W.P.(C) No.15239/2004 Page 2 of 157

VERSUS

ESTATE OFFICER AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(8) Writ Petition (Civil) No. 15279/2004

and CM No. 11050/2004

C.L.MISRI ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(9) Writ Petition (Civil) No. 15698/2004

and CM No. 11044/2004

PHOOLA RAINA ... Petitioner
(Wife of late Sh.T.N.Raina) Through: Mr. B. L. Wali,
Advocate

VERSUS

ESTATE OFFICER AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(10) Writ Petition (Civil) No. 1779/2004

and CM No. 1557/2006

TEJ KISHAN ... Petitioner
Through: Mr. Samrat K. Nigam, Advocate

VERSUS

UOI & ANR. ....Respondents
Through: Mr. Ravinder Agarwal, Advocate

W.P.(C) No.15239/2004 Page 3 of 157

AND

(11) Writ Petition (Civil) No. 2641/2006

& CM NO. 2379/2006

S.N.BHAT ... Petitioner
Through: Mr. Manoj V. George, Advocate

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr. Abhishek
Aggarwal and Ms. Megha Bharara, Advocates.

AND

(12) Writ Petition (Civil) No. 5681/2007

and CM No. 10547/2007

M.K. TIKOO ... Petitioner
Through: Mr. R.K. Handoo with Mr.
Yoginder Handoo and Mr. Manish Shukla &
Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

AND

(13) Writ Petition (Civil) No. 7057/2007

and CM No. 13421/2004

C.L. RAINA ... Petitioner
Through: Mr. Thakur Summit, Advocate

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

W.P.(C) No.15239/2004 Page 4 of 157

AND

(14) Writ Petition (Civil) No. 2869/2008

and CM No. 5540/2008

S.N. KAUL ... Petitioner
Through: Mr. R.K. Handoo with Mr.
Yoginder Handoo and Mr. Manish
Shukla & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

AND

(15) Writ Petition (Civil) No. 8599/2008

and CM No. 16497/2008

KANTIAYANI GANJOO ... Petitioner
Through: Mr. R.K. Handoo with Mr.
Yoginder Handoo and Mr. Manish
Shukla & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh,Advocates.

AND

(16) Writ Petition (Civil) No. 8600/2008

and CM No. 16499/2008

H.L. KOUL ... Petitioner
Through: Mr. R.K. Handoo with Mr.
Yoginder Handoo and Mr. Manish
Shukla & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

W.P.(C) No.15239/2004 Page 5 of 157

AND

(17) Writ Petition (Civil) No. 8601/2008

& CM NO. 16501/2008

VIJAY MAM ... Petitioner
Through: Mr. R.K. Handoo with Mr.
Yoginder Handoo and Mr. Manish
Shukla & Mr. Atul Sharma, Advocates

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

AND

(18) Writ Petition (Civil) No. 8641/2009

and CM No. 5796/2009

P.L. KAUL ... Petitioner
Through: Mr. Samrat K. Nigam,
Advocate

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

AND

(19) Writ Petition (Civil) No. 9609/2009

& CM NO. 7654/2009

Y.S. JAMWAL ... Petitioner
Through: Mr. Naresh Thanai, Advocate

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. R. V. Sinha with Mr. A.S.
Singh, Advocates.

AND

(20) Writ Petition (Civil) No. 11377/2009
& 10986/2009

M.K. BAZAZ ... Petitioner
Through: Mr. R.K. Handoo with Mr.
Yoginder Handoo and Mr. Manish
Shukla & Mr. Atul Sharma, Advocates

W.P.(C) No.15239/2004 Page 6 of 157

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(21) Writ Petition (Civil) No. 11548/2009

& CM NO. 11351/2009

B.L. TAKAROO ... Petitioner
Through: Mr. Manoj V. George,
Advocate

VERSUS

UOI AND ANR. ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(22) Writ Petition (Civil) No. 11488/2009

& CM NO. 11242/2009

MOTILAL KAUL ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER, DIRECTORATE OF ESTATES,
NIRMAN BHAWAN ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

AND

(23) Writ Petition (Civil) No. 11489/2009

& CM NO. 11244/2009

B.L. RAINA ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

W.P.(C) No.15239/2004 Page 7 of 157

AND

(24) Writ Petition (C) No. 11490/2009

& C.Mo.No.11246/2009

A.K. GIGOO ... Petitioner
Through: Mr. B. L. Wali, Advocate

VERSUS

ESTATE OFFICER ....Respondents
Through: Mr. Jatan Singh with Mr.
Abhishek Aggarwal and Ms. Megha
Bharara, Advocates.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed
to see the Judgment? Yes

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

3. Whether the judgment should be reported in the
Digest? Yes

GITA MITTAL, J

1. The instant case is a testimony to events which lead to an

unprecedented ethnic cleansing of a minority community from

the Kashmir valley on account of the inability of the State to

protect them and their property from violence, who, as a result,

were rendered homeless. Such turmoil was faced by the

minority community in the state of Jammu & Kashmir after

December, 1989, compelling its members to flee home, hearth

and State for bare survival.

These writ petitions have been filed by some of such

displaced persons who were Central Government employees

seeking protection against forcible eviction of the quarters

occupied by them on the ground that it is the only roof available

to them.

W.P.(C) No.15239/2004 Page 8 of 157

2. The petitioners contend that those representing the

Central Government in the Kashmir valley, especially those who

were representing the intelligence agencies, para military and

defence forces as well as the Government media became prime

targets of the militants to the extent that lists of such persons

who had to be targeted were published and circulated in the

localities. Family members and friends of such Government

employees were killed and their properties destroyed for the

message to permeate. As a result, immediate steps for

evacuation of such officials on emergency basis were taken by

the Government of India in order to at least protect their lives.

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

8599, 8600, 8601/2008, 11377/2009, 15239, 15240, 15245,

15246, 862, 15241, 15264, 15279, 15698, 1779/2004,

2641/2006, 7057/2007, 8641, 9609, 11548, 11488, 11489,

11490 & 11491/2009 were shifted from Jammu & Kashmir to

Delhi and posted in the local offices of the central organization

and department where they were employed.

4. The facts disclose that all the petitioners (or the person on

whom they were dependant as in the case of Smt. Phoola Raina

widow of Late Sh. T.N. Raina writ petitioner in W.P.(C) No.

15698/2004) upon being brought to Delhi were allotted

Government accommodation to reside in, not only by virtue of

their employment but also their extreme need for shelter. These

allottees of the quarters, superannuated from service on

different dates over the period of time.

5. W.P.(C) No.15698/2004 has been filed by Smt. Phoola

Raina, widow of Late Shri T.N. Raina who was a Government

W.P.(C) No.15239/2004 Page 9 of 157

servant. Shri Raina was the allottee of Government

accommodation bearing no. DG-915, Sarojini Nagar, New Delhi-

23. While still in service Shri T.N. Raina unfortunately expired

on the 4th of August, 2001. The petitioner contends that late Sh.

T.N. Raina and family which included herself were compelled to

flee from the valley in circumstances identical to those of the

other petitioners. This petitioner is surviving on a meager

pension and she cannot afford any alternate accommodation.

6. The petitioner in W.P.(C) No.5681/2007 evacuated in the

same emergent conditions, is stated to be afflicted with the

Parkinson's disease since his retirement. His home in Kashmir

stands burnt. His relative, one Mrs. Chuni Lal had gone to

retrieve her belongings from Kashmir, but was shot dead at

point blank range. The petitioner is stated to be barely

surviving on his pension. He has no place to return in his home

state.

7. So far as the petitioner in W.P.(C) No.2869/2008 and his

family are concerned, they were shifted out by the Government

on account of the perception of a serious threat to their lives. It

is contended that the militants have burnt the petitioner‟s

ancestral home in order to demonstrate their intention of not

sparing him. In addition, they have shot dead his uncle and wife

at point blank range. As a result, other than the quarter under

occupation, the petitioner is without any alternate shelter.

8. Shri P.K. Koul, the petitioner in W.P.(C) No. 15239/2004,

was a resident of Razdan, Kochhaa, Bana Mohalla, Habba Kadal,

Srinagar and his entire property in Srinagar has been destroyed

by the communal riots and terrorist movements. He clearly

W.P.(C) No.15239/2004 Page 10 of 157

states that he has no other house anywhere in India. This

petitioner was lastly posted as the Director General with the

Border Security Force at R.K. Puram, New Delhi. While in

service, this petitioner was allotted the premises no. H-52,

Sarojini Nagar, New Delhi. On 31st July, 2002, the petitioner

superannuated from service. The allotment of this

accommodation in his name was cancelled by a letter dated

27/28th August, 2002 with effect from 1st December, 2002

directing the petitioner to vacate the accommodation

immediately and he was informed that on failure to vacate,

action to evict him under the
Public Premises (Eviction of

Unauthorised Occupants) Act, 1971
would be taken. The

respondents also informed the petitioner that on failure to

vacate, he would be liable to pay damage rent @ Rupees 150

per sq. mtr. for the entire period of over stay. The petitioner

was permitted to retain the accommodation from 1st December,

2002 to 31st April, 2003 on payment of four times of the normal

license fee for the next two months.

9. The petitioner and his family are permanent residents of

the State of J&K and did not leave their home state voluntarily

but were driven out of the Srinagar valley. Their household

goods were looted and house was burnt by the terrorists. Other

than the one residence, which also stands destroyed by the

militants in Srinagar, Shri P.K. Koul owned no other property. A

grievance is made that the respondents have taken no action for

the reconstruction of the houses of the petitioners and others

like him which were destroyed by the militants and to

rehabilitate them resulting in a pitiable condition and absence

W.P.(C) No.15239/2004 Page 11 of 157

of any security for them. Consequently, they are unable to

return to their own homes.

10. In this background, the petitioner submitted a

representation dated 24th March, 2003 seeking permission from

the respondent to retain his accommodation on payment of the

existing normal license fee setting out the above facts. Despite

permitting retention of accommodation by other similarly placed

persons, this request of the petitioner was rejected by the letter

dated 20th February, 2003. The respondent no. 2 further

referred the case for eviction of the petitioner, treating him as

an unauthorised occupant of public premises under the
Public

Premises (Eviction of Unauthorised Occupants) Act, 1971
.

11. In these proceedings, the following eviction order dated

23rd September, 2003 was passed against the petitioner which

was served on him on 18th November, 2003:-

"OFFICE OF THE ESTATE OFFICER AND DEPUTY
DIRECTOR OF ESTATE (LIT.) DIRECTORATE OF
ESTATES, NIRMAN BHAWAN, NEW DLEHI.

EC/93/AD/Lit/03/T-D
All persons concerned and in particular

Shri P.K. Koul,
123, North West Moti Bagh,
New Delhi

Whereas I, the undersigned am satisfied for the reasons
recorded below that Shri P.K. Koul is an unauthorized
occupation of the premises specified in the Schedule
below :

REASONS
You have been continuing to occupy the premises
specified in the schedule below even after its allotment
stands cancelled in your name w.e.f. 1.2.03 vide letter no.
TD/283/M-23/96 dated 8.11.02.

You have failed to prove that you are not in unauthorized
occupation of the instant premises.
Now, therefore, in exercise of the powers conferred on me
under Sub-Section (I) of
Section 5
of the Public Premises

W.P.(C) No.15239/2004 Page 12 of 157

(Eviction of Unauthorized Occupants) Act, 1971, I hereby
order Shri P.K. Koul, and all the persons who may be in
occupation of the said premises or any part thereof to
vacate the same within 15 days from the date of issue of
this order. In the event of refusal or failure to comply
with this order within the period specified above, the said
Shri P.K. Koul and all other persons concerned are liable
to be evicted from the said premises, if need be, by the
use of such force as may be necessary.

SCHEDULE
123, North West Moti Bagh, New Delhi.

Sd/-

(B.K. Kulshreshtha)
ESTATE OFFICER
Date : 23.9.2003
Copy to A.D.-T-D."

12. The petitioner filed an appeal registered as PPA No.

333/2003 challenging the said eviction order.

It is contended that the learned Additional District Judge

mechanically dismissed the petitioner's appeal by an order

dated 10th September, 2004 ignoring the orders passed by the

Supreme Court and other precedents of this court in respect of

identically placed persons, necessitating the present petition.

The submission is that the cancellation of the petitioner's

allotment by the letter dated 27/28th August, 2002; rejection of

the petitioner‟s request by the letter dated 20th of February,

2003; the order of eviction dated 23rd September, 2003, as well

as the order of the learned ADJ dated 10th September, 2004 are

legally not sustainable.

The writ petition lays a challenge to these orders as well

as the non-action of the respondents.

13. The facts relating to the other petitioners in this bunch of

petitions are similar and are not disputed by the respondents.

For the purposes of convenience and clarity, the details of

W.P.(C) No.15239/2004 Page 13 of 157

the allotment of accommodations which were effected in favour

of the petitioners/the predecessor in interest; the dates of their

retirement; the status of allotment and particulars of the orders

which have been passed against all the petitioners and are

impugned in these writ petitions are tabulated below:-

1 2 3 4 5 6

Writ Quarter Date of Date of Date of Date of
Petition Allotted Retiremen impugned impugned the
No. t of order of Eviction impugned
Allottee Cancellati Order order in
on of Appeal
Allotment
WP (C) H-52, 31.7.2002 31.10.2002 23.9.2003 10.9.2004
No.15239 Sarojini
/2004 Nagar,
New Delhi
WP (C) GI-800, 1.7.2002 31.10.2002 23.9.2003 10.9.2004
No.15240 Sarojini
/2004 Nagar,
New Delhi
WP (C) H-162, 7.5.2002 7.5.2002 25.9.2003 10.9.2004
No.15245 Sarojini
/2004 Nagar,
New Delhi
WP (C) 123/IV, 30.9.2002 7.5.2002 25.9.2003 10.9.2004
No.15246 North
/2004 West Moti
Bagh, New
Delhi
WP (C) 499 A, 30.4.2005 1.9.2004 28.3.2005
No.862/2 Sector 3, 20.12.2005
006 R.K.
Puram ,
New Delhi
WP (C) Z-20, 12.12.2005 12.12.2005 31.1.2006 31.1.2006
No.1779/ Sarojini
2006 Nagar,
New Delhi
WP (C) 11/5, 31.10.2001 1.3.2002 18.9.2002 10.9.2004
No.15241 Sector-1,
/2004 M.B. Road,
New Delhi
WP (C) 60/9, 28.2.2002 30.6.2002 11.7.2003 10.9.2004
No.15264 Sector-1,
/2004 Pushp
Vihar,
New Delhi

W.P.(C) No.15239/2004 Page 14 of 157

1 2 3 4 5 6
Writ Quarter Date of Date of Date of Date of
Petition Allotted Retiremen impugned impugned the
No. t of order of Eviction impugned
Allottee Cancellati Order order in
on of Appeal
Allotment
WP (C) 3/252, 30.4.1998 1.9.1998 3.3.2004 -

No.1527 Andrews
9/2004 Ganj,
New
Delhi
WP (C) DG 915, (Allottee 22.1.2002 -

No.1569 Sarojini Died while
8/2004 Nagar, in service
New on
Delhi 4.8.2001)

WP (C) MS/1007, 30.4.2004 1.7.2004 25.4.2005 1.2.2006
No.2641 Sector
/2006 VII, M.B.
Road,
New
Delhi
WP (C) Allotted 30.9.2006 23.7.2007 -
No.5681 Quarter
/2007 in Delhi
WP (C) New 31.5.2007 - -
No.2869 Delhi
/2008
WP (C) New 31.12.2007 10.11.2008 -
No.8599 Delhi
/2008
WP (C) New 31.12.2007 - -
No.8600 Delhi
/2008
WP (C) New 31.12.2007 10.11.2008 -
No.8601 Delhi
/2008
WP (C) GI-809, 31.5.2008 20.4.2009 -
No.8641 Sarojini
/2009 Nagar,
New
Delhi
-
WP (C) 880, 31.7.2008 3.8.2009
No.1137 Lakshmi
7/2009 Bai
Nagar,
New
Delhi

W.P.(C) No.15239/2004 Page 15 of 157

1 2 3 4 5 6

Writ Quarter Date of Date of Date of Date of
Petition Allotted Retiremen impugned impugned the
No. t of order of Eviction impugned
Allottee Cancellati Order order in
on of Appeal
Allotment
WP (C) SI/38, 30.6.2008 1.8.2008 9.3.2009 25.8.2009
No.1148 Sadiq
8/2009 Nagar,
New
Delhi
WP (C) S- 30.11.2007 21.7.2008 19.1.2009 -
No.1148 1/65/11,
9/2009 M.B.
Road,
New
Delhi
WP (C) AB-837, 30.4.2008 18.8.2007 10.11.200 25.8.2009

No.1149 Sarojini 8

0/2009 Nagar,
New
Delhi
WP (C) K-4/12, 30.6.2006 1.11.2006 18.6.2007 25.8.2009
No.1149 Sector II,
1/2009 DIZ Area,
Gole
Market,
New
Delhi
WP (C) 47/3A/, 30.9.2005 1.2.2006 18.7.2006 25.8.2009
No.1154 DIZ Area,
8/2009 Sector 2,
Gole
Market,
New
Delhi
WP(C) X-224, 31.08.2006 01.01.2007 28.05.2007 1.9.2007
No.7057 Sarojini
/2007 Nagar,
New
Delhi
WP(C) Qr.No.28 30.04.2008 31.12.2008 16.03.2009 -
No.9609 1, Type-
/2009 IV,
Sector-8,
R.K.Pura
m, New
Delhi.

W.P.(C) No.15239/2004 Page 16 of 157

Petitioners' contentions

14. In these writ petitions, the petitioners have all contended

that they are permanent residents of Jammu & Kashmir and

have no desire whatsoever to reside in Delhi. However, on

account of the prevailing circumstances and the inability of the

Government to secure their lives and properties in their home

state, they are unable to return to the state. Their properties

and only homes in the valley have either been destroyed or

occupied.

15. Passage of time also has brought no change in the

conditions prevalent in the state of Jammu & Kashmir. The

petitioners remain unable to return to their own homes.

16. Mr. R.K.Handoo, Mr. B.L. Wali and Mr. Samrat Nigam,

learned counsels appearing for the petitioners, with all the

vehemence at their command, have urged that the status of the

petitioners stands reduced to that of `refugees' in their own

country with nowhere to go and no support at all from the state,

the only difference being that instead of being displaced to

another country, the petitioners stand evicted within their own

country.

17. The petitioners have contended that discretion and power

is vested in the respondents under SR 317-B-25 of the Allotment

of the Government Residence (General Pool in Delhi) Rules to

permit any person to occupy public premises. Instances have

been cited of the respondents permitting other persons

including identically displaced Kashmiris to occupy public

premises. It is complained that the respondents have unfairly

failed to consider the special circumstances so far as the

W.P.(C) No.15239/2004 Page 17 of 157

petitioners are concerned and have discriminated against them.

The writ petitioners thus assail the failure of the respondents to

exercise the discretion vested in them to permit the petitioners

to continue to occupy the quarters, in accordance with law on

the ground of arbitrariness.

18. The submission is that the refusal of the respondents to

permit the petitioners to retain the allotment on payment of

normal license fee is illegal and results in violation of the

constitutional rights of the petitioner as well as the

constitutional and public law obligations, responsibilities and

duties of the respondents.

19. It is submitted that in the given circumstances the

petitioners cannot be deemed to be in „unauthorised occupation‟

for the purposes of the application of the
Public Premises

(Eviction of Unauthorised Occupants) Act, 1971
. The

petitioners contend that the respondents were constitutionally

mandated to protect their right to life under
Article 21
of the

Constitution of India and having failed to do so, were bound to

ensure the right to shelter of the petitioners, which is an

essential concomitant thereof. In this background, the

petitioners challenge inaction qua the rights of the petitioners;

the legality and validity of the cancellation of the allotments of

the quarters; as well as the proceedings and all orders under

the
Public Premises (Eviction of Unauthorised Occupants) Act,
. It is contended that the respondents have ignored all

relevant material in initiating the proceedings against the

petitioners, passing the impugned orders.

W.P.(C) No.15239/2004 Page 18 of 157

Respondents contentions

20. Mr. Jatan Singh, learned Standing Counsel for the Union

of India and Mr. R.V. Sinha, learned counsel for the respondents

challenge the very maintainability of these writ petitions. It is

contended that the public premises were allotted to employees

of the Government by virtue of their employment. Such

relationships having come to an end on superannuation/demise

of the government servant, learned counsels strongly urge that

the petitioners have no right at all to continue to occupy the

official accommodation after their retirement. It is further

urged that the petitioners have no right or entitlement to any

accommodation from the respondents. The submission is that

the decisions against the petitioners are in accordance with the

provisions of the Act of 1971 and judicial precedents on the

subject and cannot be faulted on any legally tenable grounds.

Material pleadings

21. Before examining these submissions, learned counsel for

the petitioners have drawn attention to the petitioner's

pleadings in grounds
A to H, K, L & M of WP (C)

No.15239/2004 P.K. Koul Vs. Estate Officer
and the

respondents response thereto which deserves to be usefully

considered in extenso and reads as follows:-

Pleadings in the WP (C) Pleadings in counter affidavit

No.15239/2004

Grounds
"A. Because the Hon'ble Supreme

W.P.(C) No.15239/2004 Page 19 of 157

Court of India in S.L.P.
No.7639/1977 - Shri J.L. Koul & "That the contents of Grounds (
A
Ors. Vs. State of J&K & Ors.
has to H) are matter of record,
considered the question regarding need no comments.

the possession of the accommodation Xxx
of the similarly placed employees xx
and adjourned the matter sine die
and till the Supreme Court decides
the matter finally, the Respondents
cannot dispossess the Petitioner
from the premises in question.

Vide order dated 26.8.1997 the
Hon'ble Supreme Court of India in
the said case passed the following
orders:

"List this matter on a regular day
after six weeks.

In the meantime, Mr. P.P. Rao
will ascertain from the State Govt. as
to whether the petitioners can be put
back to their respective houses
owned by them in the Kashmir valley
and can ensure protection of the
persons as also their property. To
facilitate that venture, the petitioner's
counsel will give to Mr. Rao the
address of each petitioner where he
would expect to be shifted."

xx
Again vide order dated 28.1.1998
taking into consideration of the
present situation the Hon'ble
Supreme Court of India passed the
following orders adjourning the
matter sine die and continued the
stay:-

"Adjourned sine die. Stay to
continue. The petition to be activated
on mentioning by Counsel for the
State of Jammu and Kashmir as and
when the
Pleadings in the WP (C)

No.15239/2004

State is in a position to assure the
return of the petitioners to their
respective homes in the Kashmir
valley and ensure their safety and
personal property."

Copies of the aforesaid orders of
the Hon'ble Supreme Court dated
26.8.1997 and 28.1.1998 are annexed
herewith as annexure herewith as
Annexure P-5 & P-6 respectively.

W.P.(C) No.15239/2004 Page 20 of 157

B. Because the Ld. ADJ has not even
considered that the Hon'ble Tribunal Pleadings in counter affidavit
in OA No.2378/2002 - Tej Kishan
Vs. Union of India & Ors. has gone
into the issue and directed the
Respondents to allow the Applicant
therein to retain the Govt.

accommodation pending decision in
SLP (Civil) No.7369/97. A copy of the
aforesaid order of the Ld. Tribunal
dated 30.12.2002 is annexed
herewith as Annexure P-7.

C. Because the Ld. ADJ has failed to
appreciate that Petitioner being a
Kashmiri migrant whose house in
Kashmir was burnt and destroyed by "That the contents of Grounds (A
the militants, he has no place to go. to H) are matter of record,
He is, therefore, compelled to stay at need no comments.
his Govt. accommodation allotted to xxx xx
him till the normalcy in Kashmir
valley is restored and he could go
back to his State one day and rebuild
and reoccupy his destroyed house.

However, the Respondents in a most
callous, unconcerned and mechanical
manner turned down the request of
the Petitioner.

D. Because the Petitioner has the
Fundamental Right to live which is
guaranteed to him under the
Article
of the Constitution of India and
which Right includes the Right to
Shelter also.

E. Because the Petitioner cannot go
back to the Kashmir Valley, his place
of origin because his life is in danger
in the valley on account of the
ongoing militancy in the State of J &
K and also because his own house in
Srinagar was burnt/destroyed by the
militants and he has no other shelter
anywhere in India.

Pleadings in the WP (C)

No.15239/2004

F. Because the Petitioner with his

W.P.(C) No.15239/2004 Page 21 of 157

meager income received as pension
cannot take an alternate private
accommodation in Delhi where he can
live with dignity alongwith his family
members. His pensionary income is
not even sufficient to buy food
material for his family members. He
has no other income whatsoever.

G. Because unless the Respondent
No.1 namely, the Ministry of Urban
Development who is the nodal agency
to ensure proper shelter to the
citizens of India provide suitable
accommodation to the Petitioner and
other similarly placed Kashmiri
migrants at affordable price and in
easy installments, no retired
Kashmiris can acquire a house of
their own and move to the same. The
Respondents have of their own and
move to the same. The
Respondents have not taken any
positive action in this direction so
that the Kashmiri migrants are
rehabilitated properly and with
dignity.

H. Because in the face of the
peculiar circumstances and abnormal
conditions prevailing in the State of
Jammu and Kashmir, employees of
the State of J & K were granted relief
by the Hon'ble Supreme Court of
India on humanitarian considerations
and on the basis of equality.

xxx xxx
xxx

K. Because the right to the 16.That in response to the
Petitioner to have a shelter does not contents of para K of ground, it
cease to exist just because he has is submitted that the petitioner
retired from the Government service. was allotted Government
His right to continue to stay in the accommodation subject to
present accommodation or in an allotment rules while he was in
alternate accommodation to be service. He was entitled to retain
provided by the Respondents cannot the Government Quarter only
be taken away till his safety in his during his service period and the
own State is ensured and his own allotment has been cancelled
house in Srinagar is renovated or re- consequent upon his retirement
built. from service after giving him

W.P.(C) No.15239/2004 Page 22 of 157

concessional period of four
months. Further retention
thereafter for a maximum period
Pleadings in the WP (C) of four months on medical
No.15239/2004 grounds as per rules has already
been availed by him.

L. Because the Directorate of 17.That in response to the
Estates are allotting general pool contents of para L of ground, it is
accommodation not only to the submitted that the allotment of
serving Government employees but Government quarter is made as
also to various other categories of per the rules and policy laid down
employees who have nothing to do by the Government.
with government service. The
employees working in the office of the
political parties, journalists, freedom
fighters, artists, etc. are also allotted
general pool accommodation. The
Petitioner belongs to special category
of displaced Kashmiri Pandits and
they also deserve special treatment in
the matter of providing
accommodation as in the case of the
aforesaid non-governmental
categories.

M. Because the Ld. ADJ has failed to 18.That the content of para M of
consider the facts that the the Ground needs no comments
Respondents has the power to relax for want of knowledge.
the Allotment Rules in respect of any However, the petitioner is a
person and in respect of any retiree and getting post retrial
accommodation. According to SR pension."

317-B-25 of the Allotment of
Government Residences (General
Pool in Delh) Rules, 1963, the
Government have the power to relax
the Allotment Rules which is
reproduced as under:-

"SR 317-B-25: The Government may
for reasons to be recorded in writing
relax all or any of the provisions of
the Rules in this Division in the case
of any officer or residence or class of
officers or type of residences."

W.P.(C) No.15239/2004 Page 23 of 157

22. The above narration would show that the respondents

admit the correctness of the factual submissions, rights claimed

and entitlements of the petitioners in these grounds of the writ

petition.

Nature of rights involved in these petitions

Constitutional guarantees

23. Before proceeding to examine the challenge laid by the

petitioners, it is essential to examine the right of the petitioners

which is involved.
Article 19(1)(e)
of the Constitution of India

states that all citizens shall have the right to reside and settle in

any part of the territory of India.
Article 21
on the other hand

states that no person shall be deprived of his life or personal

liberty except according to procedure established by law.

24. The petitioners question the jurisdiction and legality of the

respondent‟s actions and threat to forcibly evict them from their

only shelter in purported exercise of statutory powers utilizing

the process prescribed under the
Public Premises (Eviction of

Unauthorised Occupants) Act, 1971
(hereafter referred to as the

„Public Premises Act, 1971‟).

25. In 1995 (2) SLR 72, P.G. Gupta Vs. State of Gujarat &

Ors., the Supreme Court held that food, shelter and clothing are

the minimal human rights. The court reiterated its earlier

expansion of the right to residence and settlement by again

holding that, it is a "fundamental right under
Article 19(1)(e)

W.P.(C) No.15239/2004 Page 24 of 157

and it is a facet of inseparable meaningful right to life under

Article 21"
of the Constitution of India.

26. Fundamental rights are guaranteed to the citizens of India

under part III of the Constitution of India. In (1996) 2 SCC

549 Chameli Singh & Ors. Vs. State of U.P. & Anr., the

Supreme Court held that the right to shelter is a fundamental

right available to every citizen of India. It was also read into the

right to life guaranteed under
Article 21
of the Constitution to

make it more meaningful. In para 8 of the judgment, the court

succinctly set out the nature of the right and the mandate on the

state as follows:-

"8. In any organised society, right to live as a
human being is not ensured by meeting only the
animal needs of man. It is secured only when he is
assured of all facilities to develop himself and is freed
from restrictions which inhibit his growth. All human
rights are designed to achieve this object. Right to
live guaranteed in any civilised society implies the
right to food, water, decent environment, education,
medical care and shelter. These are basic human
rights known to any civilised society. All civil,
political, social and cultural rights enshrined in the
Universal Declaration of Human Rights and
Convention or under the Constitution of India cannot
be exercised without these basic human rights.
Shelter for a human being, therefore, is not a mere
protection of his life and limb. It is home where he
has opportunities to grow physically, mentally,
intellectually and spiritually. Right to shelter,
therefore, includes adequate living space and
decent structures, clean and decent surroundings,
sufficient light, pure air and water, electricity,
sanitation and other civic amenities like roads etc. so
as to have easy access to his daily avocation. The
right to shelter, therefore, does not mean a mere
right to a roof over one's head but right to all
the infrastructure necessary to enable them to
live and develop as a human being. Right to
shelter when used as an essential requisite to
the right to live should be deemed to have been
guaranteed as a fundamental right. As is
enjoined in the Directive Principles, the State
should be deemed to be under an obligation to
secure it for its citizens of course subject to its

W.P.(C) No.15239/2004 Page 25 of 157

economic budgeting. In a democratic society as a
member of the organised civil community one should
have permanent shelter so as to physically, mentally
and intellectually equip oneself to improve his
excellence as a useful citizen as enjoined in the
Fundamental Duties and to be a useful citizen and
equal participant in democracy. The ultimate object of
making a man equipped with a right to dignity of
person and equality of status is to enable him to
develop himself into a culture being. Want of decent
residence, therefore, frustrates the very object of
the Constitutional animation of right to equality,
economic justice, fundamental right to
residence, dignity of person and right to live
itself......." (Emphasis supplied)

The Apex Court unequivocally declared that all the civil,

political, social and cultural rights enshrined in the Universal

Declaration of Human Rights and Convention, 1948 or under the

Constitution of India cannot be exercised without, inter alia, the

basic human right of shelter.

27. The right to shelter as an essential concomitant of the

fundamental right to life was also pressed by the pavement

dwellers in the pronouncement reported at (1997) 11 SCC 121

Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab

Khan & Ors. The Municipal Corporation of Ahmedabad was

complaining against encroachment and occupation of

pavements in the urban limits of Ahmedabad by the pavement

dwellers (respondents therein). The court was concerned with

the plea of violation of fundamental rights of the pavement

dwellers under
Article 19(1)(e)
and
of the Constitution of

India and their entitlement to shelter. The summation by the

Court placing reliance on the several precedents on the subject

throws light on the very question which has been raised herein

W.P.(C) No.15239/2004 Page 26 of 157

also. After reiterating the principles in earlier judgments, the

observations of the Supreme Court read as follows:-

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

xxx xxx xxx

It would, therefore, be clear that though no
person has a right to encroach and erect
structures or otherwise on footpath, pavement or
public streets or any other place reserved or
earmarked for a public purpose, the State has
the Constitutional duty to provide adequate
facilities and opportunities by distributing its

W.P.(C) No.15239/2004 Page 27 of 157

wealth and resources for settlement of life and
erection of shelter over their heads to make
the right to life meaningful, effective and fruitful.
Right to livelihood is meaningful because no one
can live without means of this living, that is the
means of livelihood. The deprivation of the right
to life in that context would not only denude life
of effective content and meaningfulness but it
would make life miserable and impossible to live.
It would, therefore, be the duty of the State
to provide right to shelter to the poor and
indigent weaker sections of the society in
fulfilment of the constitutional objectives.

xxx xxx xxx

25.
Article 19(1)(e)
of the Constitution provides
to all citizens fundamental rights to travel, settle
down and reside in any part of the Bharat and
none have right to prevent their settlement. Any
attempt in that behalf would be unconstitutional.
The Preamble of the Constitution assures
integrity of the nation, fraternity among the
people and dignity of the person to make India
an integrated and united Bharat in a socialist
secular democratic republic. The policy or
principle should be such that everyone should
have the opportunity to migrate and settle down
in any part of Bharat where opportunity for
employment or better living conditions are
available and, therefore, it would be
unconstitutional and impermissible to prevent
the persons from migrating and settling at places
where they find their livelihood and means of
avocation. It is to remember that the Preamble is
the arch of the Constitution which accords to
every citizen of India socio-economic and
political justice, liberties, equality of opportunity
and of status, fraternity, dignity of person in an
integrated Bharat. The fundamental rights and
the directive principles and the preamble being
trinity of the Constitution, the right to residence
and to settle in any part of the country is assured
to every citizen. ..........The right to life
enshrined under
Article 21
has been interpreted
by this Court to include meaningful right to life
and not merely animal existence as elaborated in
several judgments of this Court including
Hawkers' case, Olga Tellis case and the latest
Chameli Singh's case and host of other decisions
which need no reiteration. Suffice it to state that
right to life would include right to live with
human dignity. As held earlier, right to residence
is one of the minimal human rights as
fundamental right. Due to want of facilities and

W.P.(C) No.15239/2004 Page 28 of 157

opportunities, the right to residence and
settlement is an illusion to the rural and urban
poor.
Articles 38
, 39
and
mandate the state,
as its economic policy, to provide socio-economic
justice to minimise inequalities in income and in
opportunities and status. It positively charges
the State to distribute its largess to the weaker
sections of the society envisaged in
Article 46
to
make socio-economic justice a reality,
meaningful and fruitful so as to make the life
worth living with dignity of person and equality
of status and to constantly improve excellence."

(Emphasis supplied)

28. The petitioners are facing threatened forcible eviction

from the only shelter they know which was allotted by the

respondents, either to them or the person on whom they were

dependant. If compelled to vacate without provision of an

alternative, the inevitable consequence is, that the petitioners

would be rendered homeless.

29. It is obvious that the present petitions raise an important

aspect of right to shelter of these displaced persons under

Article 19(1)(e)
and which has been declared by the Supreme

Court to be an integral and essential part also of their right to

life, guaranteed as a fundamental right under
Article 21
of the

Constitution of India. In the several binding judicial precedents

noticed hereinabove, the Supreme Court has further held that

such violation may also adversely impact and violate the right to

occupation and profession under
Article 19(1)(g)
of the

Constitution of India which is the other basic human right of the

petitioners inextricably involved in the instant case.

International perspective - conventions; norms; guiding
principles and their applicability to present case

30. So far as right to adequate housing and its protection is

concerned, there is no specific domestic legislation on the issue.

W.P.(C) No.15239/2004 Page 29 of 157

In the aforenoticed pronouncements the Supreme Court has

been of the view that such right can also be sourced as a basic

human right under the international human rights law.

31. This court has had occasion to examine the source of the

right to housing, shelter and protection against forcible

evictions by residents of Jhuggi Jhopri clusters (hutments) in the

judgments dated 14th July, 2006 in W.P.(C) No. 5007/2002

reported at MANU/DE/9327/2006 entitled
Jagdish vs. DDA

and also the pronouncement of this court dated 11th February,

2010 in W.P.(C) No. 8904/2009
Sudama Singh & Ors. vs

Government of Delhi & Anr.
with connected writ petitions.

In this regard, in these judgments as well, reference was made

to the following international & regional covenants and

declarations on the right to adequate housing which declare

that provision of housing as well as the protection against

forced eviction is the unequivocal responsibility of the state :-

(i)The Universal Declaration of Human Rights, 1948
makes the following statement:

"
Article 25.1

Everyone has the right to a standard of living
adequate for the health and well-being of himself and his
family including food, clothing, housing and medical care
and necessary social services, and the right to security in
the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in
circumstances beyond his control."

(ii) The International Convention on the Elimination
of All forms of Racial Discrimination, 1965 contains
the following :

"
Article 5

In compliance with the fundamental
obligations
laid down in

article 2
of this
Convention, States Parties undertake to
prohibit and to eliminate racial discrimination

W.P.(C) No.15239/2004 Page 30 of 157

in all its forms and to guarantee the right of
everyone, without distinction as to race,
colour, or national or ethnic origin, to
equality before the law, notably in the
enjoyment of the following rights :

xxxx

(d) Other civil rights, in particular

xxxx

(iii) The right to housing."

(iii).
Article 11
of the International Covenant on
Economic, Social and Cultural Rights adopted by the
General Assembly of the United Nations on the 16th of
December, 1966 further codifies the right to housing and
states thus :

"
Article 11

"1.
The State Parties to the present Covenant
recognize the right of everyone to an adequate
standard of living for himself and his family,
including adequate food, clothing, and
housing, and to the continuous improvement of
living conditions..........."

India has signed and ratified this covenant and is thus a
state party to it.

(iv) Part II of the Declaration of Social Progress and
Development, 1969 states thus :

"Social progress and development shall aim
at the continuous raising of the material and
spiritual standards of living of all members of
society, with respect for and in compliance
with human rights and fundamental freedoms
through the attainment of the following main
goals:

xxxx

Article 10(f)

The provision for all, particularly persons in
low-income groups and large families, of
adequate housing and community services.

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

W.P.(C) No.15239/2004 Page 31 of 157

"III Guidelines for Action

xxxx

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

The Recommendations for National Action in the
Vancouver Declaration contains inter alia also
the following :-

"A. Settlement Policies & Strategies

Preamble, Point 3

The ideologies of States are reflected in their
human settlement policies. These being powerful
instruments for change, they must not be used to
dispossess people from their homes and their land,
or to entrench privilege and exploitation. The
human settlement policies must be in conformity
with the declaration of principles and Universal
Declaration of Human Rights."

(vi)
Article 8.1
of the Declaration on the Right to
Development, 1986 also states that:

"
Article 8

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

(vii) The above objectives were also reinforced the
declaration made in the International Year of the
Homeless in 1987 by the United Nations when it
spoke of this right of all individuals in the following
terms:

W.P.(C) No.15239/2004 Page 32 of 157

"a real home...one which provides protection
from the elements; has access to safe water
and sanitation; provides for secure tenure and
personal safety; and within easy reach of
centres for employment, education and health
care; and is at a cost which people and society
can afford."

(viii) On the issue of forcible evictions, the General
Comment 7 dated 20th May 1997 on the right to
adequate housing (
Article 11.1
of the Covenant :

Forced Evictions) by the Commission on Economic,
Social and Cultural Rights is important and is
extracted hereafter :

"(1) In its General Comment No. 4, (1991),
the Committee observed that all persons
should possess a degree of security of tenure
which guarantees legal protection against
forced eviction, harassment and other
threats. It concluded that forced evictions are
prima facie incompatible with the
requirement of the Covenant...............

(2) The international community has long
recognized that the issue of forced evictions is a
serious one. In 1976, the United Nations
Conference on Human Settlements noted that
special attention should be paid to "undertaking
major clearance operations should take place
only when conservation and rehabilitation are
not feasible and relocation measures are made.

In 1988, in the Global Strategy for Shelter to
the Year 2000, adopted by the General
Assembly in its resolution 43/181, the
"fundamental obligation (of Government) to
protect and improve houses and neighborhoods,
rather than damage or destroy them" was
recognized. Agenda 21 stated that "people
should be protected by law against unfair
eviction from their homes or land". In the
Habitat Agenda Governments committed
themselves to "protecting all people from, and
providing legal protection and redress for,
forced evictions that are contrary to the law,
taking human rights into consideration; [and]
when evictions are unavoidable, ensuring, as
appropriate, that alternative suitable solutions
are provided". The Commission on Human
Rights has also indicated that "forced evictions
are a gross violation of human rights........"

W.P.(C) No.15239/2004 Page 33 of 157

(x) Annexure-I of the Report of the Special
Rapporteur on Adequate Housing lays down some
basic principles and guidelines on development based
evictions and displacement. It provides the guidelines
on relocation of the displaced which read as follows :

"52. The Government and any other parties
responsible for providing just
compensation and sufficient alternative
accommodation, or restitution when
feasible, must do so immediately upon the
eviction, except in cases of force majeure. At a
minimum, regardless of the circumstances and
without discrimination, competent authorities
shall ensure that evicted persons or groups,
especially those who are unable to provide for
themselves, have safe and secure access to: (a)
essential food, potable water and sanitation; (b)
basic shelter and housing; (c) appropriate
clothing; (d) essential medical services; (e)
livelihood sources; (f) fodder for livestock and
access to common property resources
previously depended upon; and (g) education
for children and childcare facilities. States
should also ensure that members of the same
extended family or community are not
separated as a result of evictions.

xxx

55. Identified relocation sites must fulfil the
criteria for adequate housing according to
international human rights law. These include:

(a) security of tenure;
Xxx
(c) affordable housing;

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

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

xxxx

W.P.(C) No.15239/2004 Page 34 of 157

57. Rehabilitation policies must include
programmes designed for women and
marginalized and vulnerable groups to ensure
their equal enjoyment of the human rights to
housing, food, water, health, education, work,
security of the person, security of the
home, freedom from cruel, inhuman or
degrading treatment, and freedom of
movement.

58. Persons, groups or communities
affected by an eviction should not suffer
detriment to their human rights, including
their right to the progressive realization of the
right to adequate housing. This applies
equally to host communities at relocation
sites."

(Emphasis` supplied)

32. The UN Committee on Economic, Social and

Cultural Rights in May, 2008, in its Concluding

Observations on India, called upon the Indian government

particularly to address the issue of rising homelessness,

including the need for disaggregated data on the homeless. In

the observations relating to India as a state party, it specifically

stated as follows:-

"30. The Committee is concerned about the lack of
a national housing policy, which particularly addresses
the needs of the disadvantaged and marginalized
individuals and groups, including those living in slums
who are reportedly growing in numbers, by providing
them with low-cost housing units. The Committee also
regrets that sufficient information was not provided by
the State party on the extent and causes of
homelessness in the State party.

The Committee also requests the State party to
provide, in its next periodic report, detailed information
on homelessness in the State party and the extent of
inadequate housing, disaggregated by, inter alia, sex,
caste, ethnicity and religion.

70. The Committee urges the State party to address
the acute shortage of affordable housing by adopting a
national strategy and a plan of action on adequate
housing and building or providing low-cost rental

W.P.(C) No.15239/2004 Page 35 of 157

housing units, especially for the disadvantaged and low
income groups, including those living in slums. In this
connection, the Committee reminds the State party
of its obligations under
Article 11
of the Covenant
and refers to its General Comment No. 4 on the
right to adequate housing (1991) to guide the
Government's housing policies. The Committee
also requests the State party to provide, in its next
periodic report, detailed information on
homelessness in the State party and the extent of
inadequate housing, disaggregated by, inter alia,
sex, caste, ethnicity and religion.

71. The Committee recommends that the State
party take immediate measures to effectively
enforce laws and regulations prohibiting
displacement and forced evictions, and ensure
that persons evicted from their homes and lands
be provided with adequate compensation and / or
offered alternative accommodation, in accordance
with the guidelines adopted by the Committee in its
General Comment No. 7 on forced evictions (1997). The
Committee also recommends that, prior to
implementing development and urban renewal
projects, sporting events and other similar activities,
the State party should undertake open, participatory
and meaningful consultations with affected residents
and communities. In this connection, the Committee
draws the attention of the State party to its General
Comment No. 4 on the right to adequate housing
(1991) and further requests the State party to provide
information in its next periodic report on progress
achieved in this regard, including disaggregated
statistics relating to forced evictions."

33. The above narration would show that the international

covenants and instruments refer to basic human rights. All of

them have recognized right to shelter as a basic human right,

essential for survival. It needs no elaboration that the concept

of human rights emanates from the ancient doctrine of natural

rights based on natural law. The experiences of the Post-

Second World War which brought forth the International

Charters and Conventions leading to the emergence of the

present day human rights. The first documented use of the

expression „human rights‟ is to be found in the Charter of the

W.P.(C) No.15239/2004 Page 36 of 157

United Nations, adopted on 25th June, 1945. This Charter was of

course not binding but stated that it was only an ideal to be

later developed. By adopting the Universal Declaration of

Human Rights in December, 1948 the UN General Assembly

took the concrete step of formalising the various human rights.

This was followed by the International Bill of Rights. The

deficiency in the binding nature of the declaration was removed

by the U.N. General Assembly by adopting on 16th December,

1966, firstly, the Covenant on Civil and Political Rights which

formulated legally enforceable rights of the individual and,

secondly, the Covenant on Economic, Social and Cultural Rights

which was addressed to the states to implement them by

legislation. These covenants came into force in December, 1976

after ratification by the requisite number of member states.

India is a party to both these covenants which were

adopted on 16th December, 1966 and bind this country.

34. The above narration shows that homelessness may result

from several causes including natural disasters; development

projects, economic deprivation as well as human rights

violations. International law terms persons who stand displaced

from their countries as "refugees" and recognizes that they are

entitled to protection from being returned to places where their

lives or freedom could be threatened.

35. At the same time there are growing instances

internationally of persons and even communities who are

compelled to abandon homes on account of threat of imminent

violence or stand forcibly evicted by use of violence and

compelled to relocate to other places even within their own

W.P.(C) No.15239/2004 Page 37 of 157

country. They cannot return to their homes within the

boundaries of their own countries in the face of the continuing

threat of persecution and danger to their properties. Such

persons cannot be termed as "refugees" as described by learned

counsels for the petitioners. In international parlance, persons

compelled to relocate within the boundaries of their own

countries stand categorised as "Internally Displaced

Persons" (abbreviated as „IDP‟s hereafter).

36. The present petitioners along with several other families,

have been compelled to relocate within India and would

therefore fall under the category of such internally displaced

persons ('IDPs') who have received either insufficient or no

protection by the State, from or during their persecution.

37. Except that IDPs are forced to flee from their homes to

another location with their own country, refugees and IDPs

appear to be similarly situated. However, international

covenants respect the principle of non-interference with the

internal politics of one country, and consequently there exist no

international conventions relating to IDPs.

38. The United Nations High Commissioner for Refugees has

recognised that the IDPs also face the same problems as

international refugees and require to be treated with dignity by

their own governments with full respect given to their basic

human rights.

39. In this regard, a guiding document has been framed by

Francis Denge, the representative of the Secretary General of

the United Nations on Internal Displaced Persons, in 1998

which is titled as "Guiding Principles on Internal

W.P.(C) No.15239/2004 Page 38 of 157

Displacement" which was presented to the UNCHR. The

Commission in a unanimously adopted resolution took note of

these principles which address the specific needs of internally

displaced persons worldwide and identify rights and guarantees

relevant to the protection of persons from forced displacement

and to their protection and assistance during displacement as

well as during return or resettlement and reintegration. The

introduction to these Guidelines defines "Internally Displaced

Persons" („IDP‟s) in Clause 2 as follows :-

"2. For the purposes of these principles, internally
displaced persons are persons or groups of persons who
have been forced or obliged to flee or to leave their
homes or places of habitual residence, in particular as a
result of or in order to avoid the effects of armed conflict,
situations of generalized violence, violations of human
rights or natural or human made disasters, and who have
not crossed an internationally recognized State border."

40. So far as housing of IDPs is concerned, these guidelines

contain the following important provisions :-

"Principle 3

1.National authorities have the primary duty and
responsibility to provide protection and humanitarian
assistance to internally displaced persons within their
jurisdiction.

2.Internally displaced persons have the right to
request and to receive protection and humanitarian
assistance from these authorities. They shall not be
persecuted or punished for making such a request.

xxx

Principle 7
Prior to any decision requiring the displacement of
persons, the authorities concerned shall ensure that
all feasible alternatives are explored in order to avoid
displacement altogether. Where no alternative exist,
all measures shall be taken to minimize displacement
and its adverse effects.

2.The authorities undertaking such displacement
shall ensure, to the greatest practicable extent, that
proper accommodation is provided to the displaced
persons, that such displacements are effected in

W.P.(C) No.15239/2004 Page 39 of 157

satisfactory conditions of safety nutrition, health and
hygiene, and that members of the same family are
not separated.

3.If displacement occurs in situations other than
during the emergency stages of armed conflicts and
disasters, the following guarantees shall be complied
with :

(a)A specific decision shall be taken by a State
authority empowered by law to order such measures;

(b)Adequate measures shall be taken to guarantee
to those to be displaced full information on the
reasons and procedures for their displacement and,
where applicable, on compensation and relocation;

(c)The free and informed consent of those to be
displaced shall be sought;

(d)The authorities concerned shall endeavour to
involve those affected, particularly women, in the
planning and management of their relocation;

(e)Law enforcement measures, where required,
shall be carried out by competent legal authorities;
and

(f)The right to an effective remedy, including the
review of such decisions by appropriate judicial
authorities, shall be respected.

Principle 8
Displacement shall not be carried out in a manner
that violates the rights to life, dignity, liberty and
security of those affected.

xxx

Principle 14

1.Every internally displaced person has the right to
liberty of movement and freedom to choose his or her
residence.

2.In particular, internally displaced persons have
the right to move freely in and out of camps or other
settlements.

xxx

Principle 15
Internally displaced persons have:

(a)The right to seek safety in another part of
the country;

(b)The right to leave their country;

(c)The right to seek asylum in another country; and

(d)The right to be protected against forcible
return to or resettlement in any place where
their life, safety, liberty and/or health would be
at risk.

xxx

W.P.(C) No.15239/2004 Page 40 of 157

Principle 18

1.All internally displaced persons have the right to
an adequate standard of living;

2.At the minimum, regardless of the
circumstances, and without discrimination,
competent authorities shall provide internally
displaced persons with and ensure safe access
to:

(a)Essential food and potable water;

(b)Basic shelter and housing;

(c)Appropriate clothing; and

(d)Essential medical services and sanitation.

3.Special efforts should be made to ensure the full
participation of women in the planning and
distribution of these basic supplies.

xxx

Principle 21

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

2.The property and possessions of internally
displaced persons shall in all circumstances be
protected, in particular, against the following acts:

(a)Pillage;

(b)Direct or indiscriminate attacks or other acts of
violence;

(c)Being used to shield military operations or
objectives;

(d)Being made the object of reprisal; and

(e)Being destroyed or appropriated as a form of
collective punishment.

3.Property and possessions left behind by
internally displaced persons should be protected
against destruction and arbitrary and illegal
appropriation, occupation or use.

xxx

Principle 25

1.The primary duty and responsibility for
providing humanitarian assistance to internally
displaced persons lies with national authorities.

xxx

Section V. Principles relating to return,
resettlement and reintegration
Principle 28

1.Competent authorities have the primary
duty and responsibility to establish conditions,
as well as provide the means, which allow
internally displaced persons to return
voluntarily, in safety, and with dignity, to their

W.P.(C) No.15239/2004 Page 41 of 157

homes or places of habitual residence, or to
resettle voluntarily in another part of the
country. Such authorities shall endeavour to
facilitate the reintegration of returned or resettled
internally displaced persons.

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

Principal 29

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

2.Competent authorities have the duty and
responsibility to assist returned and/or resettled
internally displaced persons to recover, to the
extent possible, their property and possessions
which they left behind or were dispossessed of
upon their displacement. When recovery of
such property and possessions is not possible,
competent authorities shall provide or assist
these persons in obtaining appropriate
compensation or another form of just
reparation."

41. The United Nations Charter thus establishes the

obligation upon member nations to promote the key human

rights. The Universal Declaration of Human Rights, 1948 though

not a treaty, but is a declaration published by the General

Assembly of the United Nations and is the primary document

which is concerned with the listing of the rights. It affirmatively

lays down the common standards of achievement for all peoples

and all nations. It consequently has an effect which is similar to

a treaty. Further every nation who is a signatory to the

aforenoticed International Covenant on Economic, Social and

Cultural Rights ('ICESR') must refrain from acts which would

defeat the object and purpose of the covenant. The preamble to

W.P.(C) No.15239/2004 Page 42 of 157

the ICESCR establishes that "the ideal of free human beings

enjoying freedom from fear and want can only be achieved if

conditions are created whereby everyone may enjoy his

economic, social and cultural rights as well as his civil and

political rights".

Article 11
of this covenant emphasises that the state

parties recognises the right of every person to an adequate

standard of living which include adequate housing and

continued improvement of living conditions. The right for

people to be free from want is the very foundation of the

ICESCR.

42. The international human rights law thus establishes a

legal obligation for ensuring minimum welfare guarantees. The

conventions, treaties and declarations as well as the guiding

principles manifest the international consensus that every

nation has a duty to ensure and provide these guarantees

including, inter alia shelter and basic general assistance to

every person on its soils.

43. The aforenoticed international conventions which exist

as well as the Guideline Principles for IDPs therefore

recognize that shelter and housing is a basic human right of

every individual which is the bare minimum to be provided to

internally displaced persons.

These Principles also emphasise all rights of displaced

persons and caste a mandate on the national authorities

concerned of their primary duty and responsibility to provide

protection and humanitarian assistance to internally displaced

persons within their jurisdiction which includes their right to

W.P.(C) No.15239/2004 Page 43 of 157

safety as well as protection against forcible return and

resettlement in a place where their life, safety, liberty and or

health would be ensured. The Guiding Principles have been

evolved after an elaborate consultative process.

44. Before proceeding any further, it is necessary to examine

the bindingness of the above principles on the courts in India.

The extent, manner and applicability of International

Conventions and treaties in interpretation and expansion of

rights, have been authoritatively considered and are well settled

by a catena of binding precedents of the Supreme Court.
In the

authoritative pronouncement reported at
JT2008(7)SC11,

2008(9)SCALE69 Entertainment Network (India) Ltd. Vs.

Super Cassette Industries Ltd.
the Supreme Court traced

the evolution of the jurisprudence on the issue under

consideration in paras 48 to 54 which may usefully be extracted

and read as follows:-

"48. Beginning from the decision of this Court in
Kesavananda Bharati v. State of Kerala
MANU/SC/0445/1973 : AIR 1973 SC 1461, there is
indeed no dearth of case laws where this Court has
applied the norms of international laws and in particular
the international covenants to interpret domestic
legislation. In all these cases, this Court has
categorically held that there would be no inconsistency
in the use of international norms to the domestic
legislation, if by reason thereof the tenor of domestic law
is not breached and in case of any such inconsistency,
the domestic legislation should prevail.

In Jagdish Saran and Ors. v. Union of India
MANU/SC/0067/1980 : (1980) 2 SCR 831, it was
observed:

"It is also well-settled that
interpretation of the Constitution of
India or statutes would change from
time to time. Being a living organ, it
is ongoing and with the passage of
time, law must change. New rights

W.P.(C) No.15239/2004 Page 44 of 157

may have to be found out within the
constitutional scheme. Horizons of
constitutional law are expanding."

49. In the aforementioned judgment, this
Court referred to a large number of decisions for the
purpose of treaties and conventions. Yet again in
Indian Handicrafts Emporium and Ors. v. Union of
India MANU/SC/0640/2003 : AIR 2003 SC 3240, this
Court considered the Convention on International
Trade in Endangered Species (CITIES) and applied the
principles of purposive constructions as also not only
the Directive Principles as contained in Part IV of the
Constitution but also Fundamental Duties as contained
in Part IVA thereof. Referring to Motor General
Traders and Anr. v. State of Andhra Pradesh and Ors.
MANU/SC/0293/1983 : (1986) 1 SCR 594, Rattan Arya
and Ors. v. State of Tamil Nadu and Anr.

MANU/SC/0550/1986 : (1986) 2 SCR 596 and
Synthetics and Chemicals Ltd. and Ors. v. State of U.P.
And Ors. MANU/SC/0595/1989 : AIR 1990 SC 1927,
this Court held:

"There cannot be any doubt
whatsoever that a law which was at one
point of time was constitutional may be
rendered unconstitutional because of
passage of time. We may note that apart
from the decisions cited by Mr. Sanghi,
recently a similar view has been taken in

Kapila Hingorani v. State of Bihar

(supra) and John Vallamattom and Anr.

v. Union of India (supra)."

50. These judgments were referred to in the
decision of Liverpool and London S.P. and I Asson.
Ltd.
v. M.V. Sea Success I and Anr. MANU/SC/0951/2003
:

(2004) 9 SCC 512, wherein this Court observed that as
no statutory law in India operated in the field,
interpretative changes, if any, must, thus be
made having regard to the ever changing global
scenario. Liverpool also referred for the proposition
that the changing global scenario should be kept
in mind having regard to the fact that there does
not exist any primary act touching the subject
and in absence of any domestic legislation to the
contrary. Concurring with the said decisions, it
was however opined that the same could not
mean that it restricted the jurisdiction of the
Indian High Courts to interpret the domestic
legislation strictly according to the judge made
law.

51. Liverpool and London S.P. and I Asson.
Ltd.

(supra) has been followed by the Supreme Court in a
plethora of cases inter alia
The State of West Bengal
v. Kesoram Industries Ltd. & Ors
.

W.P.(C) No.15239/2004 Page 45 of 157

MANU/SC/0038/2004 : (2004) 2 66 ITR 721(SC).
In

Pratap Singh v. State of Jharkhand and Anr
.

MANU/SC/0075/2005 : 2005 CriLJ 3091 wherein this
Court directed to interpret the
Juvenile Justice Act
in
light of the Constitutional as well as International Law
operating in the field. (See also
Centrotrade Minerals
and Metal Inc. v. Hindustan Copper Limited
MANU/SC/8146/2006
: (2006) 11 SCC 245 : State of
Punjab;
State of Punjab and Anr. v. Devans Modern
Brewaries Ltd. and Anr. MANU/SC/0961/2003
: (2004)
11 SCC 26 and Anuj Garg and Ors. v. Hotel
Association of India and Ors. MANU/SC/8173/2007 :

AIR 2008 SC 663.

52. However, applicability of the International
Conventions and Covenants, as also the resolutions,
etc. for the purpose of interpreting domestic statute
will depend upon the acceptability of the Conventions
in question. If the country is a signatory thereto
subject of course to the provisions of the domestic law,
the International Covenants can be utilized. Where
International Conventions are framed upon
undertaking a great deal of exercise upon giving an
opportunity of hearing to both the parties and filtered
at several levels as also upon taking into consideration
the different societal conditions in different countries
by laying down the minimum norm, as for example, the
ILO Conventions, the couirt would freely avail the
benefits thereof. Those Conventions to which India
may not be a signatory but have been followed by way
of enactment of new Parliamentary statute or
amendment to the existing enactment, recourse to
International Convention is permissible.

53. This kind of stance is reflected from the
decisions in PUCL v. Union of India
MANU/SC/0274/1997 : AIR 1997 SC 1203, John
Vallamattom v. Union of India MANU/SC/0480/2003 :

AIR 2003 SC 2902, Madhu Kishwar v. State of Bihar
MANU/SC/0468/1996 : AIR 1996 SC 1864, Kubic
Darusz v. Union of India MANU/SC/0426/1990 : 1990
CriLJ 796, Chameli Singh v. State of
Swaminathaswami Thirukoil MANU/SC/0441/1996 :
(
1996) 1 SCR 1068, Apparel Export Promotion Council
V. A.K. Chopra MANU/SC/0014/1999
: (1999) 1 LLJ
962 SC, Kapila Hingorani v. State of Bihar
MANU/SC/0403/2003 : (2003) 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 512."

45. With regard to the application of International

conventions and treaties in India, the Supreme Court laid the

following principles in para 47 of the judgment :-

W.P.(C) No.15239/2004 Page 46 of 157

"In interpreting the domestic/municipal laws,
this court has extensively made use of International
law inter alia for the following purposes :

(i) As a means of interpretation;

(ii) Justification or fortification of a stance
taken;

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

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

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

(vi) To fill gaps in law."

46. In AIR 1997 SC 3011 Vishaka and others Vs. State of

Rajasthan and Others, the court was concerned with a writ

petition filed for preservation and enforcement of the right to

gender equality and fundamental rights of working women

under
Articles 14
, 19
and
of the Constitution of India,

Section 2
of Protection of Human Rights Act, 1993 and the

entitlements of working women under the Convention on

Elimination of All Forms of Discrimination Against Women.

There was no specific domestic legislation on the subject. With

regard to the importance and applicability of international

conventions and treaties, the court held as follows -

"7. In the absence of domestic law occupying the
field, to formulate effective measures to check the evil
of sexual harassment of working women at all work
places, the contents of International Conventions and
norms are significant for the purpose of interpretation
of the guarantee of gender equality, right to work with
human dignity in
Articles 14
, 15
, 19(1)(g)
and
of the
Constitution and the safeguards against sexual
harassment implicit therein. Any International
Convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into
these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional
guarantee. This is implicit from
Article 51(c)
and the
enabling power of the Parliament to enact laws for
implementing the International Conventions and

W.P.(C) No.15239/2004 Page 47 of 157

norms by virtue of
Article 253
read with Entry 14 of
the Union List in Seventh Schedule of the Constitution.

Article 73
also is relevant. It provides that the
executive power of the Union shall extend to the
matters with respect to which Parliament has power to
make laws. The executive power of the Union is,
therefore, available till the Parliament enacts
legislation to expressly provide measures needed to
curb the evil."

47.
In (
1999) 1 SCC 759 Apparel Export Promotion

Council vs. A.K. Chopra
, also the Supreme Court was dealing

with the case of sexual harassment at the place of work which

vitiated the working environment and observed that the

international instruments cast an obligation on the Indian State

to gender sensitise its laws and that the courts are under an

obligation to see that the message of the international

instruments is not allowed to be drowned. The Supreme Court

again emphasised that the courts must never forget the core

principles embodied in International Conventions and

Instruments and reiterated the above principles.

48.
In (
2003) 6 SCC 1 Kapila Hingorani Vs. State of

Bihar
, the Apex court stressed on the importance of respecting

International Treaties and Conventions while interpreting the

Constitution and domestic law so as to effectuate the recognised

rights and observed as follows-

"47. It is also well-settled that a statute should be
interpreted in the light of the International Treaties and
Conventions.
In
Chairman, Railway Board and
Ors. v. Mrs. Chandrima Das and
Ors. MANU/SC/0046/2000
: 2000CriLJ1473 this Court
stated the law thus:-

"24. The International Covenants and
Declarations as adopted by the United Nations
have to be respected by all signatory States
and the meaning given to the above words in
those Declarations and Covenants have to be
such as would help in effective
implementation of those rights. The

W.P.(C) No.15239/2004 Page 48 of 157

applicability of the Universal Declaration
of Human Rights and the principles
thereof may have to be read, if need be,
into the domestic jurisprudence."

49. As noticed above, right to residence and to settle in any

part of the country is assured to every citizen as a fundamental

right under
Article 19(1)(e)
of the Constitution of India. (Ref :

1997 (
11) SCC 121 Ahmedabad Municipal Corporation vs.

Nawab Khan Gulab Khan & Ors.
) The right to shelter springs

from this right and has been considered to be an integral part

for a meaningful enjoyment of right to life under
Article 21
of

the Constitution of India. (Ref.: 1995 Suppl.
3 SCC 456 : AIR

1996 SC 114 U.P. Avas Evam Vikas Parishad & Anr. Vs.

Friends Co-operative Housing Society Ltd. & Anr.)

50. In the instant case also there is no specific domestic

legislation at all for internally displaced persons. As noticed

hereinabove, there are also no International Conventions

governing rights of such persons. It is now an accepted rule of

judicial construction that regard must be had to international

conventions, norms and guiding principles for construing

domestic law when there is no inconsistency between them and

there is a void in the domestic law.

51. It is noteworthy that there is no specific law, rule,

regulation or instrument providing for treatment of IDPs or

setting out any minimum standards for their protection,

rehabilitation and relocation. The Guiding Principles on

Internal Displacement reiterate the very right to shelter

constitutionally guaranteed and recognized as a basic human

right in the international instruments. These Guidelines thus

W.P.(C) No.15239/2004 Page 49 of 157

consolidate and fill gaps in national and international law

relating to such displaced persons. They also provide a

valuable benchmark for what must be ensured as part of the

basic human rights security of such persons and would guide

consideration of the rights of the present petitioners.

52. It has been observed by the Supreme Court in (
2003) 6

SCC 1 Kapila Hingorani Vs. State of Bihar
that

indisputably, the state parties to the International Covenant on

Economic, Social & Cultural Rights were to take appropriate

steps to ensure realisation of this thought. So far as the present

case is concerned, this covenant specifically states the right of

everyone to an adequate standard of living including housing.

53. The rules laid down and right recognised in the

aforenoticed conventions as well as the Guiding Principles

would bind the present adjudication also in the light of the

following principle
laid down in

Entertainment Network

(supra) :-

"54 Furthermore, as regards the question where
the protection of human rights, environment, ecology
and other second generation or third-generation
rights is involved, the courts should not be loathe to
refer to the International Conventions."

54. The petitioners are members of the larger group from

their community which stands forcibly evicted from one part of

the country rendering them homeless and resourceless. They

are without resources at the place of their relocation and are

faced with the threat of forcible eviction from their

accommodation. By way of these writ petitions, the petitioners

seek protection and enforcement of their fundamental right to

life which includes shelter. The international conventions

W.P.(C) No.15239/2004 Page 50 of 157

recognise shelter as a basic human right. The Guiding

Principles reiterate the same rights and responsibilities of the

state so far as IDPs are concerned. Consideration of the

petitioners‟ rights, therefore, would necessarily involve ensuring

the objectives and declarations made in the above international

instruments especially those endorsed by India reiterated by the

Guiding Principles for IDPs.

The Protection of Human Rights Act
, 1993

55. The issue in the instant case has another dimension to it

which is of importance. In discharge of the obligation under

the international covenants, India promulgated an ordinance

appointing commissions and courts for the protection of human

rights. This ordinance was replaced by the
Protection of

Human Rights Act, 1993
was promulgated on 8th January,

1994 to provide for the constitution of the national and state

human rights commissions and human rights courts for better

protection and for matters connected therewith or incidental

thereto. „Human rights‟ are defined in clause (d) of sub-section

(1) of
Section 2
as the „rights relating to life, liberty, equality

and dignity of the individual guaranteed by the Constitution or

embodied in the International Covenants and enforceable by

courts in India‟.

The expression „international covenants‟ is also defined to

include the two covenants adopted by the General Assembly on

16th December, 1966 and such other covenants and conventions

adopted by the General Assembly of the United Nations as the

Central Government may specify by notification. The

enforceability of the several rights recognised under the

W.P.(C) No.15239/2004 Page 51 of 157

International Covenants, therefore, stands recognized by this

legislation in India. The said Act was made by the Parliament

having regard to the changing social realities and growing

concern in India about issues relating to human rights with a

view of bringing about greater accountability and transparency

in enforcement of the laws of the nation.

56. It is essential to note that in fact no new right is being

created, recognized or reiterated by the international

instruments or the said guidelines. The right to shelter of every

person has been recognized as an essential concomitant of right

to life under
Article 21
of the Constitution of India. It would

clearly be covered under the definition of a „human right‟ under

Section 2(1)(d)
of the Protection of Human Rights Act, 1993

which includes right relating to life, liberty, equality and dignity.

The right to shelter, an essential part of right to life, would

therefore also be a statutorily recognized right under
Section

2(1)(d)
of the Act of 1993 and enforceable as such also.

The present petitioners, as persons displaced from their

homes and state, by way of these writ petitions are thus,

seeking enforcement of such right to shelter.

57. The above discussion would show that state courts are

bound to use international human rights covenants, which also

stand incorporated into the
Protection of Human Rights Act,
, as a pillar of support for the rights recognised thereby

and to ensure the requisite assistance as well as access to

shelter as a positive right so that the bare minimum for those in

need is enabled. The petitioners assert such rights in the

challenge laid in these writ petitions.

W.P.(C) No.15239/2004 Page 52 of 157

Q Whether the statutory provisions of
Public Premises

(Eviction of Unauthorised Occupants) Act, 1971
which

would have the effect of defeating the constitutional

rights of the petitioners, could be validly invoked against

them?

58. On behalf of the respondents, it is urged that the

allotment of the quarters to the petitioners (or their

predecessors) stands cancelled. They are therefore in

unauthorised occupation of the Government accommodation and

therefore liable to be evicted under the provisions of the
Public

Premises (Eviction of Unauthorised Occupants) Act, 1971
. The

submission is that the proceedings taken by the respondents

and the orders passed against the petitioners were justified and

are in accordance with law.

59. On the other hand, the petitioners have urged that even in

their wildest dreams, they had never envisaged a situation when

they would not be in a position to reside in their own homes

after retirement. On account of grave threats to their safety,

the petitioners have been prevented from returning to their

homes. The petitioners are not residing in Delhi on account of a

desire not to return to the valley or to perpetuate residence in

Delhi, but for reasons totally beyond control of these petitioners.

The writ petitioners have stated that their homes in Kashmir

have either been destroyed or rendered inaccessible to them

primarily on account of the inability of the respondents to

protect the same. They do not have adequate means to acquire

any property in Delhi. It is the petitioners contention that the

W.P.(C) No.15239/2004 Page 53 of 157

pension admissible to them does not enable them to afford

rented accommodation or acquire their own houses. The

petitioners have submitted that the respondents have permitted

similarly situated persons to continue in the allotted

accommodation. Reliance is also placed on orders of the

Supreme Court, this Court and the Central Administrative

Tribunal also prohibiting eviction of similarly placed persons

from allotted accommodation.

In this background, the petitioners assail also the failure

to consider their requests to the respondents to exercise

discretion vested in them under the Allotment of Government

Residences (General Pool in Delhi) Rules, 1963 to permit the

petitioners to continue to occupy the allotted premises. It is

urged that this refusal was discriminatory, arbitrary and has

failed to consider the relevant circumstances.

60. It is contended by the petitioners that in these facts, they

are not in unauthorized occupation of the quarters and that the

respondents could not have taken recourse to proceedings

under the Public Premises Act, 1971 which would have the

effect of ousting them and their families from their only

residence without taking steps of making provision of

reasonable alternatives. The contention is that the entire

action taken by the respondents and implementation of the

threat of forcible eviction would result in violation of the

fundamental and basic human rights of the petitioners and,

therefore, is unconstitutional, without jurisdiction and

completely illegal.

W.P.(C) No.15239/2004 Page 54 of 157

Binding judicial precedents

61. So far as the conditions which were in existence in the

state of Jammu & Kashmir, the restoration of normalcy and the

circumstances in which they are occupying these quarters are

concerned, reliance has been placed by the petitioners on the

proceedings and orders passed in several similar cases prior

hitherto which have been completely ignored by the

respondents. Attention is drawn to the orders of the Supreme

Court of India in SLP (C) No.7639/1999 Shri J.L. Koul &

Anr. Vs. State of Jammu & Kashmir & Ors. Shri J.L. Koul &

the other petitioners in this case were Kashmiri pandits who

were employees of the State Government and being State

Government servants, had been allotted residential

accommodations in Jammu between 1989-90. Their houses in

the valley were either destroyed or burnt down by militants.

Even though they had retired from service, these petitioners

were permitted to retain the government accommodations in

Jammu for safety reasons. Such a step was considered

necessary and inevitable by the State Government as the

atmosphere was not congenial for the appellants to return to the

valley, more so when they had lost their respective houses.

62. It appears that other state government employees

awaiting allotment of official accommodation, could not get the

same for the reason that these retired persons continued to

occupy the official accommodation. They filed a writ petition

before the High Court of Jammu and Kashmir complaining

against the failure of the State Government to provide them

with official accommodation. A learned Single Judge of the High

W.P.(C) No.15239/2004 Page 55 of 157

Court of Jammu & Kashmir had allowed the writ petition and

passed a judgment on 24th January, 1997 directing eviction of all

those persons who had ceased to be government servants for

any reason but were still occupying the state accommodation.

The learned Single Judge had also directed that the persons who

were not in government service but required Government

accommodation because of security reasons, should be tried to

be accommodated within one complex so that their security is

ensured, reducing the burden on the state which would have to

incur lesser amount for their security.

63. For the reason that the state government was attempting

to evict these occupants without providing them with alternative

accommodations, a challenge was laid to the judgment of the

Single Judge dated the 24th of January, 1997 by a letters patent

appeal. This appeal was dismissed by the Division Bench by a

judgment dated 14th March, 1997, however, giving an

opportunity to the appellants to approach the appropriate

authority for relief. In this background, these persons led by

Shri J.L. Koul, filed the above special leave petition before the

Supreme Court. On a consideration of the matter, an interim

order order dated 11th April, 1997 was passed by the court

directing the state government to maintain status quo regarding

the possession of the property.

64. Mr. R.K. Handoo, learned counsel for the petitioners has

referred to certain orders passed by the Supreme Court of India

in the said petition. On 26th August, 1997, the Supreme Court

had required counsel representing the State of Jammu &

Kashmir to ascertain from the State Government as to whether

W.P.(C) No.15239/2004 Page 56 of 157

the petitioners can be put back in to the houses owned by them

in the Kashmir Valley and to ensure protection of their persons

as also their properties.

65. The case was thereafter taken up by the Supreme Court

on 28th January, 1998 when the Supreme Court took notice of

the massacre of Kashmiri Pandits in the Kashmir Valley which

had taken place a few days prior to the hearing and recorded

the following order :-

"This order is being made in the backdrop of a
massacre of Kashmiri Pandits which took place a
couple of days ago in the Kashmir valley.
Adjourned sine die. Stay to continue. The petition to
be activated on mentioning by counsel for the State of
Jammu and Kashmir as and when the State is in a
position to assure return of the petitioners to their
respective homes in the Kashmir valley and ensure
their safety and personal property."

(Underlining supplied)

66. It is noteworthy that the Supreme Court had also passed

an order on 3rd December, 2008 (in Shri J.L. Koul & Others

vs. State of J&K aforenoticed) directing the respondent-state

to frame a rehabilitation scheme within a period of six months

and to place the same before the court. For the reason that no

material or scheme was placed before it by the respondents, on

17th September, 2009, the Supreme Court directed the Chief

Secretary of the State to file a personal affidavit as to what

steps had been taken pursuant to the orders of the court.

67. An affidavit dated 6th October, 2009 was thereafter filed

by the Chief Secretary in the case. The appeal was disposed of

by a final judgment on 27th October, 2009 which stands reported

at 2009 (
1) AD SC 253 J.L. Koul & Others Vs. State of

Jammu & Kashmir
. So far as rehabilitation of the Kashmiri

W.P.(C) No.15239/2004 Page 57 of 157

migrants is concerned, the affidavit dated 6th October, 2009 has

been considered in para 7 of the judgment in the following

terms:-

"7. In pursuance of the said order, the Chief Secretary
has filed the affidavit dated 6.10.2009. In the said
affidavit it has been disclosed that out of 54 appellants
23 had already handed over the Government
accommodation to the State Department and the same
had been allotted to the Government employees. Only
31 migrants/retirees are presently in occupation of the
Government accommodation. It has further been
clarified that there are 37,280 families who have been
registered for the relief including the accommodation
and out of them only 5,000 families could be provided
the accommodation in the camps. However, it had been
undertaken that the Government would provide such
facilities to all Kashmiri migrants till they are residing at
the present places. The relevant part of the affidavit
reads as under:-

"5. That it is further submitted that Govt.
formulated a package for return and rehabilitation
of Kashmiri Migrants which involves an outlay of
Rs.1618.40 crores. This is for the first time since
1990, that Govt. of India has come up with a
policy for Return and Rehabilitation of
Kashmiri Migrants. The policy has been framed
on the recommendations of a working group
constituted by Govt. of India to suggest various
confidence building measures in the J&K State.
While framing the policy various needs of the
migrants have been taken into consideration, such
as housing, education, revival of Agriculture and
Horticulture land, employment etc. The details of
the package announced on 5th June 2008 are
reproduced as under:-

i) Return and Rehabilitation Package of
Kashmiri Migrants: The total package involves an
outlay of Rs.1618.40 crore. The main
components of the package are as under: (a)
Housing

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. lac for purchase/construction of a
house in Group Housing Societies for those who
have sold their properties during the period after
1989 and before the enactment of "The J&K
Migrant Immovable Property (Preservation,

W.P.(C) No.15239/2004 Page 58 of 157

Protection and Restraint of Distress Sale) Act,
1997" on 30.5.1997.

(b) Transit Accommodation : Construction of
transit accommodation at three sites @ Rs.20.00
crore each for total Rs.60.00 crore. Alternatively,
Rs.1.00 lac per family towards rental and
incidental expenses to those families who may not
be accommodated in transit accommodation.

(c) Continuation of Cash Relief to Migrants:

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

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

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

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

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

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

12. That it may be further submitted that the
State Cabinet vide its decision No.130/11/2009
dated 1.10.2009 has approved the package for
Return and Rehabilitation of Kashmiri Migrants to
Kashmir Valley. However, with regard to

W.P.(C) No.15239/2004 Page 59 of 157

implementation of employment scheme a
Committee has also been ordered to be constituted
to go into the legal and other implications for
making recruitments of the migrant youth against
various posts before the said scheme is formally
notified. The Committee has to submit its report
within a period of two weeks.

13. That the State Government is keen to
rehabilitate the Kashmiri Migrants in the Kashmir
valley and shall provide every type of assistance
for their return and rehabilitation. The process for
the rehabilitation in valley has been initiated in
June 2008 after Govt. of India announced the
package for their return."

(Emphasis supplied)

The Supreme Court observed that this case had remained

pending before it for twelve years and that the court had been

insisting upon the state to frame the scheme of rehabilitation of

the appellants and particularly for providing them

accommodation. Placing reliance on the above

affidavits/undertakings given by the respondents, the Court

further observed that the authorities have framed the

rehabilitation scheme and for implementation of the same, it has

got sufficient resources also. In this background, the Supreme

Court issued the following directions:-

"9. In view of the above affidavit/undertaking given
by the State and after hearing Mrs. Purnima Bhat Kak,
Ld. Counsel for the appellants and Mr. Anis
Suhrawardy, Ld. Counsel for the State, we dispose of
the appeal with a pious hope that State shall take all
endeavours to rehabilitate the persons who have
been victim of terrorism and till the State is able
to rehabilitate and provide the appropriate
accommodation to 31 appellants-retirees/oustees,
they shall continue to possess the
accommodations which are in their respective
possession on this date."

(Emphasis supplied)

68. It is noteworthy that the only difference between the

petitioners before the Supreme Court and those who are before

this court is, that the petition before the Supreme Court

W.P.(C) No.15239/2004 Page 60 of 157

related to persons who were retired employees of the State

Government while the present petitioners are all employees of

the Central Government and its departments. However, the

petitioners before the Supreme Court and the present writ

petitioners are identically placed victims of the militancy and

the rights asserted by both sets of the petitioners and issues

raised by them are identical.

69. While the above petition remained pending in the

Supreme Court, some other similarly placed employees were

facing the same threat of eviction as the present set of

petitioners. Some such persons approached this court while

others filed a petition before the Central Administrative

Tribunal. The orders passed in these matters would also have a

bearing on the present consideration.

70. Reference requires to be also made to a judgment passed

on 2nd August, 2006 in WP (C) No.11742/2005 entitled
P.K.

Handoo Vs. Estate Officer & Anr.
by this court which is

reported at 132 (2006) DLT 672. Shri P.K. Handoo was also a

Kashmiri Pandit and part of the minority community in the

Kashmir valley. An employee with the Intelligence Bureau of

the Government of India, he had retired from the service on 31st

July, 2004 whereafter efforts to cancel his allotment and evict

him by way of proceedings under the Public Premises Act, 1971

had been undertaken. Sh. P.K.Handoo filed the writ petition

assailing this action and the eviction order dated 30th June, 2005

passed against him in the proceedings by the estate officer and

also sought issuance of a writ of mandamus against the

respondents to allow him to retain the official accommodation

W.P.(C) No.15239/2004 Page 61 of 157

which had been allotted to him till such time that the

Government made it possible for him to return to Srinagar or till

suitable alternative accommodation is provided to him in Delhi.

71. The observations made by this court in the judgment

dated 2nd August, 2006 in
P.K. Handoo
(supra) while dealing

with the very objections urged in these proceedings, deserve to

be considered in extenso and read as follows :-

"11. The argument submitted by the learned
counsel for the respondents is typically gauche. It
lacks sensitivity. Kashmir has never ceased to be a hub
of terrorist activity which is mainly directed against the
Hindu Pandits. The violence in the State is at its peak.
Due to the obstinacy of terrorists and helplessness of
the government to counter terror, the situation could
not improve. Indian Constitution applies to all the
citizens of India. Equal protection means the right to
equal treatment in similar circumstances. There
should be no discrimination between one person and
another if as regards the subject matter of the
legislation their position is the same. It is settled law
that a judicial or quasi judicial decision cannot offend

Article 14.

12.
In the result, I allow the writ petition in
terms of the order passed by the Apex Court in the
case of
J.L. Koul Vs. State of Jammu and Kashmir

(supra). Respondents are directed to allow the
petitioner to retain Quarter No.D-845, Mandir Marg,
New Delhi, pending decision in SLP © No.7369/2007,
subject to payment of normal licence fees or in the
alternative the respondents may provide alternative
accommodation to the petitioner and his family
anywhere in Delhi till the pendency of the above said
writ petition before the Hon'ble Supreme Court. No
costs."

(underlining supplied)

72. Learned counsels for the petitioners have also painstakingly

pointed out the earlier similar directions made as back as on

30th December, 2002 by the Central Administrative

Tribunal in OA No.2378/2002 entitled Tej Kishan Vs. Union

of India & Ors. on the same issue which have also been noticed

W.P.(C) No.15239/2004 Page 62 of 157

and reiterated in the
P.K. Handoo
(supra) judgment. It is

noteworthy that Shri Tej Kishan, a Kashmiri displaced person

had made a request for retention of Government

accommodation beyond superannuation which was turned down

by the Government by an order dated 13th August, 2002. This

refusal was assailed by way of proceedings before the Central

Administrative Tribunal. In these proceedings, the Tribunal had

placed reliance on a letter dated 2nd July, 2002 written to the

Delhi Development Authority („DDA‟) by the Ministry of Urban

Development & Poverty Alleviation on the subject of preferential

allotment of DDA flats to J&K migrant Central Government

employees who had retired or were retiring. The tribunal noted

the letter in the following terms:-

"12. By referring to the letter dated 2.7.2002 written
to the DDA by the Ministry of Urban Development
& Poverty Allevation, it is stated that this has been
decided as under:-

"......But the situation prevailing in J&K is such that
does not permit the safe return of these
retired/retiring Central Government employees who
can settle after retirement at their native place.
Keeping this background in view, a decision has been
taken to allot about 100 MIG and LIG Flats in Dwarka
to such retired/retiring J&K migrant Central
Government employees so that the Central Pool
Accommodation could be got vacated from them.
DDA is, therefore, requested to formulate a housing
scheme for retired/retiring J&K migrant Central
Government employees and send a draft thereof to
this Ministry within a fortnight for approval."

(Underlining supplied)

73. In the above judgment, the Central Administrative

Tribunal also observed on violation of
Article 14
by the

respondents holding that "the state shall not by its act

discriminate as between two individuals who are similarly

W.P.(C) No.15239/2004 Page 63 of 157

circumstanced." These findings are also noticed in para 10 of

the judgment in P.K. Handoo‟s case (supra).

74. I have had occasion to deal with a similar issue in a

judgment dated the 11th of April, 2008 rendered in W.P.(C)

No.1065/2007 M.K. Koul Vs. Union of India & Ors. In this

case also the petitioner was a retired Kashmiri employee of the

Central Government who could not return to Kashmir for the

same reason as the petitioners. Proceedings for his eviction

were also initiated by the respondents under the
Public

Premises (Eviction of Unauthorised Occupants) Act, 1971
.

During the course of hearing on 7th April, 2008, a query was put

to counsel for the respondent in this case in respect of the

position with regard to the safety and security of the Kashmiri

Pandits in the valley. The position was revealed to be the same

as before. In para 14 of the said judgment, consequently it was

recorded that "the respondents are not in a position to ensure

their safety and protection and as such, in case they are

displaced from the accommodation which they are occupying,

they will not be in a position to return to their respective homes

in the Kashmir valley".

Consequently, the following directions were issued:-

"15. In this background, the respondents
certainly cannot be permitted to maintain the
order of cancellation of the petitioner's
allotment or to enforce the eviction order which
has been passed against the petitioner or to evict
the petitioners from the premises which they are
occupying.

16. There is no doubt, that the petitioner was
making payment of the normal licence fee while he
was in service. Interest of justice and equity merit
that the petitioner be required to make payment of
the licence fee on the same basis till such time as the
respondents are able to ensure safety of personal

W.P.(C) No.15239/2004 Page 64 of 157

property of the petitioner in their home State or are in
a position to provide similar alternative
accommodation to the petitioner or the petitioner
acquires any other residential property in Delhi.

17. In view of the above discussion, this writ
petition is allowed.

The respondents are directed to permit the
petitioner to continue to occupy the Quarter No.N-
299, Sector-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
order shall continue to operate till such time as the
respondents provide similar alternative
accommodation to the petitioner, or the petitioner
acquires any residential property in his name.

This writ petition is allowed in the above terms.
There shall be no order as to costs."

(Emphasis supplied)

It is noteworthy that these orders have not been assailed

and have attained finality.

75. It is urged by learned counsel for the respondents that

failure of the Government of India to challenge the orders

passed in WP(C) No.11742/2005 entitled
P.K.Handoo v.

Estate Officer & Anr.
; WP (C) No.1065/2007 entitled

M.K.Kaul v. UOI & Ors.
and the other cases are immaterial

and would have no bearing on the instant case. Reliance is

placed on the pronouncement of the Apex Court reported at

(2006) II SCC 709 Col.

B.J. Akkara Vs. Government of

India & Ors.
in support of this submission.

76. It is noteworthy that Col.
B.J. Akkara
's case (supra)

related to efforts of the Government to recover payment of

excess amount as pension. Certain orders stood passed in the

writ petition filed by other employees who had raised a similar

challenge. These orders had not been challenged by the

Government. In this background, the petitioner had contended

that the Government was estopped from recovering the amount

W.P.(C) No.15239/2004 Page 65 of 157

from him in view of those orders which had attained finality.

The Apex Court rejected the contentions and held that the

Union of India would not be barred from resisting the

subsequent writ petitions involving similar issues or challenging

subsequent judgments of the High Court realising the

seriousness or magnitude of the issues or financial implications.

The position would be different only if it is established that the

Government had adopted a pick and choose method only to

avoid relief to the petitioner on account of mala fide or ulterior

motives. It was held that principles of estoppel, res judicata,

legitimate expectation or fairness in action were not attracted

on the facts of the case.

No plea of violation of fundamental rights was involved in

Akkara‟s case (supra). There can be no comparison with the

facts of
Akkara
's case (supra) with those of the present cases.

77. The aforenoticed judgments and orders were clearly

relevant and binding upon the respondents for construing and

taking a view on the contentions and claims of the petitioners.

The respondents were also bound by the deposition and the

policy placed before the Supreme Court which resulted in its

judgment dated 6th of October, 2009. The available records do

not show any consideration of the aforenoticed judgments and

orders so far as the rights and plight of the petitioners are

concerned.

Cancellation of allotments and action under the Public Premises

Act, 1971

78. Mr. Jatan Singh, learned counsel appearing for the

respondent No.1 has contended that the decision to cancel the

W.P.(C) No.15239/2004 Page 66 of 157

allotments and to initiate the proceedings under the Public

Premises Act, 1971 as well as the orders of the Estate Officer

and the judgments of the Appellate Court are in terms of

statutory provisions cannot be assailed by way of these writ

petitions.

Reliance is placed on the pronouncements of this court

reported at (1995) II AD Delhi 293 Union of India Vs. S.M.

Aggarwal & 31 others; 2000 (55) DRJ 57 Bhim Singh Vs.

Union of India & Anr.;
AIR 1977 Delhi 268 Hardwari Lal

Verma Vs. The Estate Officer & Ors.
in support.

79. This objection of the respondents ignores well settled first

principles of law. Merely because the impugned action is taken

and order passed in purported exercise of statutory power

would not render it immune from judicial scrutiny. The question

as to manner in which such action and orders viz-a-viz their

effect on fundamental rights will be examined, stands answered

by the Supreme Court in AIR 1978 SC 597; (
1978) 1 SCC 248

Maneka Gandhi Vs Union of India and others
. In this case,

the court had made the following observations with regard to

the impact of action taken under provisions of the
Passport Act
:-

"Now, if the effect of State action on a
fundamental right is direct and inevitable, then a
fortiorari, it must be presumed to have been intended by
the authority taking the action and hence, this doctrine
of direct and inevitable effect has been described by
some jurists as the doctrine of intended and real effect.
This is the test which must be applied for the purpose of
determining whether Section 10 (3) (c ) of the impugned
order made under it is violative of Article 19 (1)(a) or

(g)."

80. The Supreme Court further ruled that it is not necessary to

assail the constitutional validity of the statutory provisions

W.P.(C) No.15239/2004 Page 67 of 157

under which the impugned order is made and that the court

would still be able to examine as to whether the order made in

exercise of statutory power was invalid for the reason that it

contravened a fundamental right holding as follows :-

"But that does not mean that an order made under

Section 10(3)(c)
) may not violate
Article 19(1)(a)
or (g).
While discussing the constitutional validity of the
impunged order impounding the passport of the
petitioner, we shall have occasion to point out that even
where a statutory provision empowering an authority to
take action is constitutionally valid, action taken under it
may offend a fundamental right and in that event, though
the statutory provision is valid, the action may be void.

It is true, and we must straightaway conceded that
merely because a statutory provision empowering an
authority to take action in specified circumstances is
constitutionally valid as not being in conflict with any
fundamental rights, it does not give a carte blanche to
the authority to make any order it likes so long as it is
within the parameters
laid down by
the provision. Every
offer made under a statutory provision must not only be
within the authority conferred by the statutory provision,
but must also stand the test of fundamental rights.
Parliament cannot be presumed to have intended to
confer power on an authority to act in contravention of
fundamental rights. It is a basic constitutional
assumption underlying every statutory grant of power
that the authority on which the power is conferred,
should act constitutionally and not in violation of any
fundamental right. This would seem to be elementary
and no authority is necessary in support of it."

(Underlining supplied)

81. In
the above case
, the Supreme Court held that even

though the impugned order was within the terms of the relevant

section, "it must nevertheless, not contravene any fundamental

rights and if it does, it would be void".

So far as the present case is concerned, even it were to

be held that the action taken by the respondents was

permissible under the statutory provisions, but if it violated or

adversely impacted fundamental rights of the petitioners, it

would have to be voided. This objection to the maintainability of

W.P.(C) No.15239/2004 Page 68 of 157

the present writ petitions is therefore misconceived and is

rejected.

82. An examination of the order of cancellation of the

allotment requires to be undertaken. The only rules relied upon

in support of the power to permit occupancy of the quarters are

the Allotment of Government Residences (General Pool in

Delhi) Rules, 1963. Cancellation of the allotment has been

effected under these very rules.

83. The respondents have permitted the petitioners to occupy

the same in exercise of power conferred on them. It is not the

respondents' case that the petitioners came into possession of

the quarters illegally or without authority. The occupancy is

being treated as unauthorised by the respondents for the

reason that they have cancelled the allotments.

84. In view of this stand of the respondents, it becomes

necessary to examine the provisions of the Public Premises Act,

1971.

85. For the purposes of the instant case, the expression

"unauthorized occupation" as defined under
section 2(g)
of the

Public Premises (Eviction of Unauthorised Occupants)

Act, 1971 has to be construed.

Section 2(g)
of the said statute reads as follows :-

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

W.P.(C) No.15239/2004 Page 69 of 157

86. So far as the proceedings for eviction under the Public

Premises Act, 1971 are concerned,
Sections 4
and
thereof

deserve to be also considered. The relevant extract reads thus:-

"4. Issue of notice to show cause against order
of eviction. - (1) If the estate officer is of opinion
that any persons are in unauthorised occupation of
any public premises and that they should be
evicted, the Estate Officer shall issue in the
manner hereinafter provided a notice in writing
calling upon all persons concerned to show cause
why an order of eviction should not be made.

(2) The notice shall-

(a) specify the grounds on which the order of
eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all
persons who are, or may be in occupation of, or
claim interest in, the public premises,-

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

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

xxxx

5. Eviction of unauthorised occupants. - (1) If,
after considering the cause, if any, shown by any
person in pursuance of a notice under
section 4

and [any evidence produced by him in support of
the same and after personal hearing, if any, given
under clause (b) of sub-section (2) of
section 4
], the
estate officer is satisfied that the public premises
are in unauthorised occupation, the estate officer
may make an order of eviction, for reasons to be
recorded therein, directing that the public
premises shall be vacated, on such date as may be
specified in the order, by all persons who may be
in occupation thereof or any part thereof, and
cause a copy of the order to be affixed on the outer
door or some other conspicuous part of the public
premises.

W.P.(C) No.15239/2004 Page 70 of 157

(2) If any person refuses or fails to comply with the
order of eviction [ on or before the date specified
in the said order or within fifteen days of the date
of its publication under sub-section (1), whichever
is later.] the estate officer or any other officer duly
authorised by the estate officer in his behalf [ may,
after the date so specified or after the expiry of the
period aforesaid, whichever is later, evict that
person] from, and take possession of, the public."

(Underlining supplied)

87. The present cases raise a pertinent question as to

whether the cancellation of the allotments to the petitioners

was justified and valid and whether the petitioners‟ occupancy

thereafter could be brought within the meaning of the

expression "unauthorised" under Section 2(g) of the Public

Premises Act, 1971.

88. The statutory definition of the expression "unauthorised

occupation" in Section 2(g) of the Public Premises Act, 1971

thus requires judicial interpretation for the purposes of the

present cases.
In this regard the oft quoted words of Justice

P.N. Bhagwati in (
1983) 1 SCC 228 National Textile

Workers' Union vs. P.R. Ramakrishnan
would be apposite

when it was stated as follows :-

"We cannot allow the dead hand of the past to stifle
the growth of the living present. Law cannot stand still
: it must change with the changing social concepts and
values. If the bark that protects the tree fails to grow
and expand along with the tree, it will either choke the
tree or if it is a living tree, it will shed that bark and
grow a new living bark for itself. Similarly, if the law
fails to respond to the needs of changing society, then
either it will stifle the growth of the society and choke
its progress or if the society is vigorous enough, it will
cast away the law which stands in the way of its
growth. Law must therefore constantly be on the move
adapting itself to the fast changing society and not lag
behind."

W.P.(C) No.15239/2004 Page 71 of 157

89. While interpreting statutory provisions, the Supreme Court

has also approved and applied in a number of cases, the

principle of "updating construction" while interpreting statutes

as set out by the leading jurist Francis Bennion in his

commentaries titled 'Statutory Interpretation', 2nd Edn., pg 617.

{Ref : (2003) 4 SCC 601 State of Maharashtra vs. Dr.

Praful D. Desai ; (
1997) 5 SCC 482 CIT Vs. Poddar Cement

Pvt. Ltd.
; (
2000) 8 SCC 740 Basavaraj R. Patil vs. State of

Karnataka
}.
These principles have been noticed in (1996) 2

SCC 428 State vs. S.J. Choudhary and read as follows :-

"(2) It is presumed that Parliament intends the court to
apply to an ongoing Act a construction that
continuously updates its wording to allow for changes
since the Act was initially framed (an updating
construction). While it remains law, it is to be treated
as always speaking. This means in its application on
any date, the language of the Act, though necessarily
embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as
current law."

At page (618-19), of the report, it is further noted that:-

"In construing an ongoing Act, the interpreter is to
presume that Parliament intended the Act to be applied
at any future time in such a way as to give effect to the
true original intention. Accordingly, the interpreter is
to make allowances for any relevant changes that have
occurred, since the Act's passing, in law, social
conditions, technology, the meaning of words, and
other matters. Just as the US Constitution is regarded
as 'a living Constitution', so an ongoing
British Act
is
regarded as 'a living Act'. That today's construction
involves the supposition that Parliament was catering
long ago for a state of affairs that did not then exist is
no argument against that construction. Parliament, in
the wording of an enactment, is expected to anticipate
temporal developments. The drafter will try to foresee
the future, and allow for it in the wording."

It was, therefore, observed that an ongoing Act is taken

to be always speaking stating that :-

W.P.(C) No.15239/2004 Page 72 of 157

"An enactment of former days is thus to be read today,
in the light of dynamic processing received over the
years, with such modification of the current meaning of
its language as will now give effect to the original
legislative intention. The reality and effect of dynamic
processing provides the gradual adjustment. It is
constituted by judicial interpretation, year in and year
out. It also comprises processing by executive
officials."

Thus, the courts have over the period of time applied this

principle to interpret various terms and phrases including

"stage carriage" has been interpreted to include "electric

tramcar"; "steam tricycle" to include "locomotive"; "telegraph"

to include "telephone"; "banker‟s book" to include "microfilm";

"to take note" to include "use of tape recorder"; "documents" to

include "data bases"; "handwriting" was construed to include

"typewriting" {Ref: 1996(2) SCC 428 State Vs.

S.J.Chaudhary}. "Notice in writing" in
Section 138
of the

Negotiable Instruments Act, were construed to include a

"notice by fax".
{Ref : (
1999) 4 SCC 567 SIL Import USA

Vs. Exim Aides Silk Exporters
}. This principle of legal

interpretation would squarely apply to the construction to be

placed on the provisions of Public Premises Act, 1971.

90. Because of the peculiar circumstances prevalent in the

Kashmir valley, members of the minority community were

targetted and singled out for hostility as a class in their home

state. Admittedly, the state was unable to protect their rights

or properties.

91. The state authorities assessed the threat perception and

danger to the lives to some of the petitioners who were bodily

evacuated from their homes in the valley. The transfer of the

W.P.(C) No.15239/2004 Page 73 of 157

petitioners, (or that of the persons on whom they were

dependent), to Delhi, which preceded the allotment of quarters,

was thus compelled by the inability of the respondents to

protect and ensure the right to life of the petitioners. The same

was certainly involuntary. The allotments were a result of the

extreme necessity recognised and adjudged by the respondents

themselves. It is also noteworthy that those fleeing to safety

had no opportunity to secure or salvage their properties.

92. It is an admitted fact that over this period, the properties

of the petitioners in Jammu & Kashmir have either been

destroyed or, in other cases, occupied by militants or the

majority groups in the state. On account of the inability of the

Government to protect the lives and properties of the

petitioners, despite the Constitutional mandate, the

petitioners have been deprived of their properties, are

unable to return to their homes and face danger to their

lives, if they do so.

93. The accommodation allotted to the petitioners is the only

accommodation which they have ever known in this city. The

petitioners state that they do not own any other property. It is

the same sheer necessity which compels the petitioners to

continue to occupy the premises which was allotted to them. It

is clearly evident that having identified and supplied such need

of the petitioners, absent any alternative with them, the

respondents would be required to maintain the same.

94. The petitioners have been at the receiving end of the

threats not only for the reason that they were from another

W.P.(C) No.15239/2004 Page 74 of 157

community but also largely because they represented the face of

the Central Government in the valley as its employees.

95. It is important to note that the scheme noticed in the

aforenoticed affidavit dated 6th October, 2009 (filed by the Chief

Secretary before the Supreme Court in
J.K. Koul vs. Union of

India
(supra); talks of 'Return and Rehabilitation'. It does not

even advert to resettlement. No reference is made to the safety

or security of the migrants who agreed or attempted to return.

Interestingly, there is reference to 37280 Kashmiri families who

had registered for the relief including accommodation out of

which out of which only 5000 families have been provided

accommodation. An undertaking stood given to the Supreme

Court that the government would provide such facilities to all

the Kashmiri migrants till they are residing at the present

places. Persons as the petitioners are not even covered under

those who are dealt with in this affidavit.

96. It is also noteworthy that the affidavit filed before the

Supreme Court refers to a total package of the Central

Government involving an outlay of Rupees 1618.40 crores.

97. The affidavit of the Chief Secretary does not even refer to

the utilisation of this huge amount of public money and the fate

of the proposed facilities. There is nothing even before this

court which could suggest that the facilities promised before the

Supreme Court, have even come into existence.

98. The alternatives propounded and the schemes pertaining

to Kashmiri migrants noticed in the judgments of the Supreme

Court and of this court remain in the realm of proposals and

unimplemented schemes alone without any element of reality or

W.P.(C) No.15239/2004 Page 75 of 157

fairness. No alternative at all has been made available to or

offered to the petitioners even during the hearings before this

court. In the light of the well settled principles laid in the

above precedents, the inevitable conclusion is that the

respondents have not taken the relevant factors into

consideration and have acted arbitrarily and unreasonably.

The above discussion clearly manifests that the respondents

have not acted fairly in discharge of their positive obligation

and have not sufficiently engaged with the problems and

difficulties of the petitioners.

99. The petitioners have been prevented from residing in their

homes in Jammu & Kashmir for the reason that the State has

been unable to secure their lives or protect their homes. In

fact, the respondents also admit their inability to ensure

protection to the life and limb of the petitioners in case they

were to return to the home state, let alone any measure of

security for their continued residence in the place of their birth,

in case they returned.

100. On behalf of the respondents, it has been argued at length

even in these proceedings that the Union of India has

formulated a package for return and rehabilitation of the

displaced persons. This by itself shows that the situation is not

such that the petitioners are in a position to return to their

homes. The respondents are clearly unable to ensure protection

to the lives of the petitioners and their families or security in

their homes.

101. Mr. Jatan Singh, learned standing counsel for the UOI has

placed reliance on the pronouncement of this court reported at

W.P.(C) No.15239/2004 Page 76 of 157

2000 (55) DRJ 57 Bhim Singh Vs. Union of India & Anr . In

this case, the petitioner had sought upgradation of the

accommodation allotted to him on grounds of the security cover

which had been granted to him as a president of a political

party. A challenge was also laid to the eviction proceedings. It

was held that the accommodation allotted to him was not liable

to be upgraded. It is noteworthy that the petitioner in that case

did not hail from the Kashmir valley. No plea that the petitioner

could not return to his own accommodation on account of

inability of the state to protect either his life or the property was

putforth or considered. In the present case, the petitioners seek

no upgradation of accommodation but only protection of their

basic human right and the fundamental right to life. There is no

parity at all between Bhim Singh's case (supra) and the

present cases.

102. It needs no elaboration that a judgment has to be

examined in the context of the factual matrix which it decides.

The judgment reported at (1995) II AD Delhi 293 Union of

India Vs. S.M. Aggarwal & 31 Others, also relied upon by the

respondents, was a case of eviction of shopkeepers who were

licencees in shops which were public premises and had failed to

show cause in answer to the notice issued by the Estate Officer.

This case cannot be compared with the factual matrix noticed

hereinabove.

103. The respondents have also placed reliance on the

pronouncement of this court reported at
AIR 1977 Delhi 268

Hardwari Lal Verma Vs. The Estate Officer & Ors.
wherein

the court held that an allottee of a Government quarter is

W.P.(C) No.15239/2004 Page 77 of 157

merely a licencee. There can be no dispute at all with this

proposition. However, Hardwari Lal Verma had also not raised

any question of violation of basic human and constitutional

rights as the petitioners have in the present case. No fact

situation as in the present case was involved.

104. The petitioners are not continuing to occupy the subject

premises because they want to do so. They are also not claiming

a right to indefinitely occupy the public premises or asserting a

title or a right thereto in respect of the subject property. The

petitioners have merely sought protection of their right to

shelter till such time, as the respondents are able to ensure

their right to life in their home state or make available a

reasonable alternative shelter to the petitioners. The

respondents have themselves considered such requests and

permitted identically placed persons to continue to occupy the

allotted accommodation. Such a claim has also been

entertained and granted by not only the Supreme Court, but

also by this court as well in several precedents noticed

hereinabove. The respondents have admitted in their counter

affidavit that the petitioners have nowhere else to go.

105. Within the larger group of the IDPs from Kashmir, the

petitioners form a special class and are retired government

personnel. When the petitioners were forced to relocate, they

received government accommodation not only as an incidence

of their service, but also on account of their compulsive eviction

from their homes. They have also not been able to get any

benefit of any of the schemes framed by the government which

W.P.(C) No.15239/2004 Page 78 of 157

clearly admit the special needs and entitlement of these

displaced persons.

106. Despite this hard reality, the representations,

undertakings and promises of the Central Government, upon

retirement, the allotments to the petitioners stand cancelled

and they are being asked to vacate Government

accommodation; otherwise they face the threat of eminent

forcible eviction therefrom pursuant to proceedings taken

against them under the
Public Premises (Eviction of

Unauthorised Occupants) Act, 1971
.

107. The petitioners may thereby be compelled to return to the

violent situation where from they were evicted/evacuated/or

forced to flee. Forcing the petitioners who are IDPs to return

to the area where they were persecuted violates the principle of

non-refoulement which is the principle in international law

forbidding the expulsion of a refuge into an area where such

person mights be again subjected to persecution. The

respondents cannot be permitted, to on a hyper-technical

construction of statutory provision or arbitrary exercise of

power to create a situation where the homeless petitioners are

compelled to return to the areas where they may face violence

and threat to their life and liberty.

108. The respondents have themselves recognised the

entitlement of the petitioners to appropriate residence, when

they made the allotments. The only reason advanced by the

respondents for their decision to cancel the allotment and to

evict the petitioners is that they have retired. The relevant

factor as to the developments in the state of Jammu & Kashmir

W.P.(C) No.15239/2004 Page 79 of 157

and the effect of such eviction has not even been remotely

considered. No examination of the issue of whether the spirit or

intendment of the avowed policy of rehabilitation been

achieved, or not, has been undertaken.

109. The situation which was to be addressed in these cases

was truly exceptional. This aspect has also not even remotely

entered the respondents consideration. In fact the decisions of

the respondents amply illustrates that the respondents are not

rational, reasonable or consistent in their decision making. The

construction placed by the respondents in the cases of these

IDPs on the permissibility of the occupancy of the quarters

under the Allotment Rules as relateable solely to their service

results in violation of constitutional guarantees and was clearly

and completely unwarranted. It needs no further elaboration

that the rights which the petitioners are complaining breach of,

are the rights guaranteed to them under
Article 19(1)(e)
and

Article 21
of the Constitution of India. For these reasons, the

interpretation of the expression "unauthorised occupation" by

the respondents as well as in the impugned orders is blinkered,

restricted and impermissible in the given facts. The expression

"authority for such occupation" appearing in
Section 2(g)
must

take within its ambit the constitutional violations which result

from the restricted working of the statutory provisions by the

respondents. It was incumbent upon all concerned with the

decision making to take into consideration the most material

developments in the home state of the petitioners and the fact

that the State was unable to guarantee protection of life and

liberty to the petitioners in case they return; the insufficiency

W.P.(C) No.15239/2004 Page 80 of 157

and inability of the resettlement/rehabilitation effort and the

absence of any alternative to the petitioners for the purposes of

construction of the expression "authority for such occupation".

No legal interpretation could be acceptable which does not take

into its consideration these relevant facts and circumstances.

The petitioners are occupying the accommodation because of

the failure of the respondents to discharge the constitutional

mandate and their public law obligations of protecting the right

to life and liberty of the petitioners. As noticed above, the

authority to occupy the quarters so far as the petitioners were

concerned was derived from the constitutional guarantees.

Such occupancy cannot be deemed or held to be

"unauthorised" by any measure.

110. The significant difference between the cases of the

petitioners and that of an unauthorised occupant of public

premises is that the writ petitioners have continued to occupy

the public premises only on account of the inability of the state

to protect the fundamental and basic human rights of the

petitioners.

111. The respondents would have the records of the

circumstances in which the petitioners and their successors in

interest were transferred and evacuated to Delhi and also the

extreme necessity of making the allotments of the quarters to

these persons who were not only Government servants but also

IDPs. The Directorate of Estates which has effected the

impugned decisions cancelling the allotments would be aware

of the pronouncements in respect of identically placed persons

of the Supreme Court in
P.K. Koul Vs. Estate Officer
, this

W.P.(C) No.15239/2004 Page 81 of 157

court in
J.K. Koul vs. Union of India
, the order of the Central

Administrative Tribunal in Tej Kishan Vs. Union of India &

Ors. and implemented the same. The respondents are aware of

the prevalent situation.

112. No legal interpretation would be acceptable which does

not take into its consideration the relevant facts and

circumstances. There can also be no statutory interpretation

which results in violation and constitutional guarantees and

protection.

The present petitioners certainly cannot be compared

with or treated in the same manner in which the respondents

would deal with any other occupant who has not suffered the

gross violations and deprivations as the petitioners, and is

unauthorisedly occupying the public premises.

113. It, therefore, has to be held that the occupation by

petitioners cannot be construed as "unauthorized occupation" of

the quarters within the meaning of the expression in
Section

2(g)
of the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971.

114. An examination of the impugned orders is now

necessitated. The cancellation of the allotments and the action

initiated under the Public Premises Act, 1971 were resisted by

the petitioners on the several grounds on which these writ

petitions are premised. However, the same resulted in the

impugned orders of eviction.

115. The sole reason given by the Estate Officer for passing the

impugned orders of eviction is that the allotments in favour of

the petitioners stand cancelled and that they had failed to prove

W.P.(C) No.15239/2004 Page 82 of 157

that they were not in unauthorized occupation of the instant

premises. None of the other contentions of the petitioner have

been even mentioned let alone considered.

116. The petitioners' appeals assailing these eviction orders

stand rejected.

117. The petitioners had placed the several decisions relating

to similarly situated persons before the respondents, the Estate

Officer as well as the learned Additional District Judges. A plea

was taken that because of failure of the respondents to ensure

the protection of the rights of the petitioners under
Article 21
of

the Constitution of India they continued to occupy the quarters.

The petitioners had also urged that they stood deprived of home

and hearth because of the failure of the respondents to ensure

the constitutional guarantees and discharge the mandate

thereunder.

118. The appellate orders notice the petitioners' contention

that the petitioners have made several representations to

various authorities for allowing them to retain the

accommodation on the ground that they belong to Kashmir and

it was not feasible to return in view of the communal riots and

terrorists movements. These requests have not been acceded

to. The impugned appellate orders record that the petitioners

have challenged the eviction orders on the ground that the

Estate Officer had failed to consider the fact that they were

Kashmiri migrants and cannot return to Srinagar till normalcy

is restored. It was also a ground of appeal that the Estate

Officer had not considered the orders in SLP No. 1369/1997 by

the Supreme Court and that the petitioners' cases were on the

W.P.(C) No.15239/2004 Page 83 of 157

same footings. The challenge had also been laid to the orders

of the estate officer on grounds of arbitrariness and violation of

principles of natural justice.

119. The appellate court in the impugned orders has also

proceeded on the sole ground that there was no lease or license

deed issued in favour of the petitioners by the Government of

India. The orders of the Apex Court were not considered on the

sole ground that copy of the Special Leave Petition had not been

placed before the court and that the petitioners were not a

party to the proceedings. The learned appellate court was also

of the view that the petitioners were provided accommodation

in Delhi because they were in service in Delhi and not because

of terrorists threats and further that accommodation was given

only by virtue of employment. It was also concluded that no

relief had been granted to the petitioners by the Supreme Court

and therefore, the orders did not assist the Supreme Court.

The eviction orders had been sustained in view of these

conclusions.

120. As a result, such working of the Public Premises Act by

the respondents, the petitioners are being threatened with

eviction from the only shelters that they know, without any

alternative being available to them.

121. The respondents are bound to act in a manner which is

compatible with the constitutional rights of the petitioner while

this court has to take into account and require the legislation to

be read compatibly with such rights. The object is to ensure

that the actions and orders must be such as to avert or rectify

any violation of such basic rights.

W.P.(C) No.15239/2004 Page 84 of 157

122. The scheme of the
Public Premises (Eviction of

Unauthorised Occupants) Act, 1971
shows that the notice which

is issued under
Section 4
to show cause is required to specify

the grounds on which the eviction is proposed to be made and

require the persons concerned to show cause against the

proposed order before the specified date when they are to

produce evidence in support of the show cause. Under
Section
of the Act, the Estate Officer is required to consider the show

cause by the noticee under
Section 4
as well as the evidence

produced by him and after personal hearing, if any, given.

Thereafter, the Estate Officer is required to record reasons for

his satisfaction for making an order of eviction. The orders of

the estate officer discloses no reasons at all to support

satisfaction to order eviction. The impugned orders do not

reflect the consideration of the contentions on the evidence

placed by the petitioners.

123. The due process clause in the Constitution mandates

ensuring that the state provides a humane standard of living to

its citizens.

124. The letter from Ministry of Urban Development to Delhi

Development Authority placed on record in Tej Kishan vs. UOI

(supra) before the Central Administrative Tribunal (also relied

upon in 132 (
2006) DLT 672 P.K. Handoo vs. Estate Officer

indicates engagement of the authorities with this issue and the

decision of the Central Government directing that schemes be

framed by the Delhi Development Authority as well for making

preferential allotments of accommodation to Kashmiri migrants.

In addition, the Government affidavit dated 6th October, 2009 in

W.P.(C) No.15239/2004 Page 85 of 157

J.L. Koul (supra) filed in the Supreme Court of India also

expresses the same concern as has been expressed in the above

Guiding Principles on Internal Displacement.

These actions unequivocally manifest the respondents'

awareness about the positive obligation imposed upon them to

ensure that the persons displaced from Kashmir are required to

be resettled and/or rehabilitated. There is admission of

responsibility and culpability. The working of the measures,

however, reflects that the steps which have been taken are

inadequate and hopelessly insufficient. Even in the prolonged

hearing before this court, the respondents could place no

alternative so far as the petitioners were concerned.

125. In AIR 2010 SC 1476 State of West Bengal vs. The

Community for Protection of Democratic Rights, West

Bengal & Ors., the Supreme Court has also held that the court

was required to weigh the impact of a particular government

scheme, statute or action on the fundamental rights of those

effected by the government scheme, statute or action. In case

any statute or action abrogates or abridges such rights, it would

be violative of the basic structure/doctrine of the Constitution.

For this reason as well, any application or enforcement

of statutory provisions, rules, regulations that impacts or

impinges fundamental rights has to be struck down.

126. In [2004] EWCA Civ 540 Secretary of State for the

Home Department vs. Wayoka Limbuela, Binyam Tefera

Tesema & Yusif Adam, the House of Lords has prescribed a

test to determine whether a statutory scheme or a government

policy caused a violation of fundamental rights. It was observed

W.P.(C) No.15239/2004 Page 86 of 157

that when a reasonable evaluation of all relevant facts and

circumstances shows that a government policy would subject

petitioners to an immediate and serious deprivation of the basic

necessities of life, then the court may properly grant relief. It

was also held that the state would be liable for both action and

inaction as long as the action or inaction results in a serious

deprivation of rights or human dignity.

127. In the light of the directions by the Supreme Court and

this court in the aforenoticed cases relating to identically

situated displaced persons who are victims of violence, the

contest by the respondents to the present writ petitions on

technical, specious and legally untenable grounds is unfair to

say the least. Similar issues have arisen before and orders

stand passed in favour of the similarly placed persons therein.

128. The petitioners have suffered on account of the

respondents failure to protect their life and liberty when they

were compelled to flee from their homes in Kashmir. In

international law, refugees are protected from being compelled

to return to places or situations where their lives or freedom

could be threatened. It is pointed out that the respondents

have implemented this principle in the cases of Chakmas,

Tibetans, and else where IDPs, who are citizens of the same

country, certainly cannot be treated differently and compelled

to return to violent situations.

129. The proceedings as well as the impugned decisions and

orders have completely failed to take into consideration the

material issue of the impact of the proceedings and the orders

which would result in forcible eviction of the petitioners from

W.P.(C) No.15239/2004 Page 87 of 157

the only shelters known to them without any alternative. The

impugned cancellation of allotments, the orders of eviction

passed by the Estate Officer and the aforenoticed orders

dismissing the appeals of the petitioners are in the teeth of the

constitutional guarantees to the petitioners under
Articles

19(1)(e)(g)
and
and therefore not sustainable.

130. Such cancellation of allotment and forcible eviction at the

hands of the State utilizing the shield of a statutory right to do

so under the Public Premises Act, 1971 results in violation of the

constitutional rights of the petitioners. It is manifest therefore

such that such application of law as would have an impact of

violating the fundamental rights of the petitioners is

impermissible under the constitutional scheme.

Proportionality test

131. The proportionality of the impact on the fundamental right

involved by working of the statutory provision as against the

objective of the concerned statute is another important test for

adjudicating upon the legality of the interference with the right

which would have a bearing on the present case. In a

pronouncement of the House of Lords reported at (2007)

UKHL 11:(2007) 4 All ER 15 Huang Vs. Secretary of State

for the Home Department, the decision making role and

function of the appellate immigration authorities in the context

of the
Human Rights Act, 1998
and the Immigration and Asylum

Act, 1999 was in issue. The House examined the scope of

reviews by the prescribed authorities. The private parties

complained of violation of their rights under
Article 8
of the

W.P.(C) No.15239/2004 Page 88 of 157

European Convention for the Protection of Human Rights and

Fundamental Freedoms, 1950 which provides as under:-

"1. Everyone has the right to respect for his private
and family life, his home and his correspondence. 2.
There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of
the rights and freedoms of others."

The consideration by the House of Lords on the principle of

proportionality of the impact of the interference on the right vis-a-

vis, the legitimate end in view is important and reads as follows :-

" xxx xxxx

In most cases where the applicants complain
of a violation of their art 8 rights, in a case where the
impugned decision is authorised by law for a
legitimate object and the interference (or lack of
respect) is of sufficient seriousness to engage the
operation or art 8, the crucial question is likely to be
whether the interference (or lack of respect)
complained of is proportionate to the legitimate
end sought to be achieved. Proportionality is a
subject of such importance as to require separate
treatment.

PROPORTIONALITY

In de Freitas Vs. Permanent Secretary of
Ministry of Agriculture, Fisheries, Lands and Housing
[1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684, the
Privy Council, drawing on South African, Canadian
and Zimbabwean authority, defined the questions
generally to be asked in deciding whether a measure
is proportionate :

`....Whether : (i) the legislative objective is
sufficiently important to justify limiting a fundamental
right; (ii) the measures designed to meet the
legislative objective are rationally connected to it; and

(iii) the means used to impair the right or freedom are
no more than is necessary to accomplish the
objective."

W.P.(C) No.15239/2004 Page 89 of 157

This formulation has been widely cited and
applied. But counsel for the applicants (with the
support of Liberty, in a valuable written intervention)
suggested that the formulation was deficient in
omitting reference to an overriding requirement which
featured in the judgment of Dickson CJ in R v Oakes
[1986] 1 SCR 103, from which this approach to
proportionality derives. This feature is (at 139) the
need to balance the interests of society with those of
individuals and groups. This is indeed an aspect
which should never be overlooked or discounted. The
House recognised as much in R (Razgar) v Secretary
of State for the Home Dept [2004] UKHL 27 at [17]-
[20], [26], [27], [60],[77], [2004] 2 All ER 821 at [17]-
[20], [26], [27], [60], [77], [2004] 2 AC 368 when,
having suggested a series of questions which an
adjudicator would have to ask and answer in deciding
a convention question, it said (at [20]) that the
judgment on proportionality -

`must always involve the striking of a fair
balance between the rights of the individual and the
interests of the community which is inherent in the
whole of the convention. The severity and
consequences of the interference will call for careful
assessment at this stage.'

If, as counsel suggest, insufficient attention has
been paid to this requirement, the failure should be
made good.

xxxx"

(Emphasis supplied)

132. Having regard to the drastic violation which results from

the impugned action and orders, it has to be held that the

decision of the authorities to cancel the allotments and proceed

for eviction as well as the impugned orders against the

petitioners are not in accordance with law even on reasonable

assessment of proportionality viz-a-viz the object of eviction of

unauthorised occupants of the Public Premises Act, 1971.

W.P.(C) No.15239/2004 Page 90 of 157

Violation of
Article 14
of the Constitution

133. The petitioners have also complained that the respondents

had discretion to permit the petitioners to continue to occupy

the premises under SR 317-B-25 of the Allotment of

Government Residences (General Pool in Delhi) Rules,

1963. It is contended that the respondents were bound to

consider the matter on the relevant consideration of the right to

shelter of the petitioners which was involved and cannot

premise their action on extraneous and impermissible reasons

or considerations.

Mr. B.L. Wali, learned counsel for petitioners has urged

that the failure to exercise discretion in favour of the petitioners

is in fact not only in violation of the constitutional obligations of

the respondents, but is arbitrary and unreasonable.

134. Shri P.K. Kaul, (writ petitioner in W.P.(C) No.15239/2004)

had earlier filed WP (C) No.6551/2003, submitting that the

respondents had arbitrarily failed to consider his request for

regularization despite having knowledge of the special

circumstances of the case. Mr.B.L.Wali, learned counsel for this

petitioner has placed the order which was passed on 15th

October, 2003 in the earlier writ petition, which directed the

respondents to consider the question of regularization of

allotment in favour of the petitioner in view of the special

circumstances. It was directed that the petition including its

enclosures should also be considered while disposing of the

petitioner's representation.

135. Despite these orders, the writ petitioner has contended

that there has been no consideration in terms of this order till

W.P.(C) No.15239/2004 Page 91 of 157

date. He has, therefore, filed the writ petition being WP (C)

No.15239/2004 challenging the notice issued by the Estate

Officer under
section 4
of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1972 to him.

136. The other writ petitioners have also made similar requests

to the respondents for exercise of discretion which were

reiterated by them in the reply to the notices issued by the

Estate officer under Section 4 of the Public Premises Act as well

as in the appeals which were filed. The same ground of

challenge to the respondents‟ action has been urged in these

writ petitions.

137. Mr.B.L.Wali, learned counsel appearing for some of the

petitioners has pointed out that the respondents have exercised

discretion favourably and permitted some identically situated

displaced Kashmiris to continue in allotted premises after

retirement whereas this has been arbitrarily denied to the

petitioners. Learned counsels contend that the respondents‟

action so far as the present petitioners are concerned, is

discriminatory and not sustainable.

138. The respondents on the other hand place reliance on the

pronouncement of the court in (
1997) 1 SCC 444 Shiv Sagar

Tiwari vs. Union of India
and dispute that they have any

discretion in the matter.

139. Allotment of government accommodations are effected

under the provisions of Allotment of Government Residences

(General Pool in Delhi) Rules, 1963. Reference is made to

SR 317-B-25 thereof which empowers the Government to relax

W.P.(C) No.15239/2004 Page 92 of 157

the provisions of these rules and deserves to be considered in

extenso. The same reads as follows:-

"SR 317-B-25: The Government may for reasons to
be recorded in writing relax all or any of the provisions
of the Rules in this Division in the case of any officer or
residence or class of officers or type of residences."

140. It is undisputed before us that despite the propounded

rehabilitation schemes stated before the Supreme Court and

establishment of preferential quotas in allotments placed before

the Central Administrative Tribunal, the respondents have not

been able to rehabilitate or resettle any of the petitioners.

141. The respondents have also not denied the availability of

the discretion under SR 317 B 25 of the Allotment Rules, 1963

and its favourable exercise in favour of some Kashmiri IDPs.

Yet, the respondents have failed to exercise the same discretion

in favour of the present petitioners. No explanation for the

same is even attempted.

142. On the issue of exercise of discretion, in the judgment

reported at AIR 1980 SC 1622, Municipal Council Ratlam

Vs. Vardichan & Ors., the court was concerned with the public

power of the Magistrate under
Section 133
of the Code of

Criminal Procedure. The court observed that the „public power

of the magistrate under the Code‟ is 'a public duty to the

members of the public who are victims of nuisance and so he

shall exercise it when the jurisdictional facts are present as

here'. So far as exercise of discretion is concerned, it was

observed as follows :-

"9. So the guns of Section 133 go into action
wherever there is public nuisance. The public power of
the Magistrate under the Code is a public duty to the

W.P.(C) No.15239/2004 Page 93 of 157

members of the public who are victims of the nuisance,
and so he shall exercise it when the jurisdictional facts
are present as here. "All power is a trust-that we are
accountable for its exercise-that, from the people,
and for the people, all springs, and all must exist."

Discretion becomes a duty when the beneficiary
brings home the circumstances for its benign
exercise.

xxxx"

143. Given the established violation of the fundamental rights

of the petitioners resulting in their displacement; the

destruction of their property coupled with the prevalent

conditions in their home state; and lack of any alternate to

them, the exercise of discretion under the SR-317 B-25 of the

allotment of Allotment of Government Residences (General Pool

in Delhi) Rules, 1963 in favour of the petitioners would thus be

the bounden duty of the respondents. The mandate of the

Supreme Court in Municipal Council Ratlam vs. Vardichan

(supra) would bind even the court.

144. The pronouncement of the Supreme Court reported at

(1997) 1 SCC 444 entitled
Shiv Sagar Tiwari Vs. Union of

India & Ors.
, has been placed before this court by the

respondents. In this case, the court was concerned with gross

misuse of discretionary power relating to allotment of

accommodation to government employees. As against the

permissible discretionary quota of 10 per cent, such allotments

had shot up to 70 per cent. On top of these, 8,768 houses were

allotted on "Special Compassionate Grounds" in exercise of

discretion under the authority of a letter dated 18th July, 1996

from the Cabinet Secretary. The Government of India had

submitted that it had exercised discretion vested in it under the

W.P.(C) No.15239/2004 Page 94 of 157

aforenoticed SR. The court had concluded that the conduct of

the respondents did not disclose application of mind and

discretion was not exercised fairly. In para 56 of the judgment,

it was observed as follows:-

"56. The decision of the present Central Government on
this aspect as finding place in the letter of the Cabinet
Secretary dated 18-7-1996 bearing DO No.1/44/1/96-
CAV is that "where it is considered absolutely
necessary" small number of out-of-turn allotments
would be made for which purpose also the
Ministries/Departments would formulate clear rules and
guidelines. During the course of hearing, on being
desired to know as to why out-of-turn allotment is at all
required, the submission advanced on behalf of the
Union of India was that there are a few officers, who by
virtue of the duties discharged, have to be
accommodated in government quarters to facilitate
smooth functioning of the Government.xxx"

145. In view of the gross abuse of the discretion vested in the

respondents, in para 57 at page 463 of the report, it was held

that a case to permit minimal out of turn allotments was made

out which has to be regulated and transparency has to be

maintained in such allotments. The court considered private

citizens who could be allotted out of the discretionary quota

which included accredited journalists and news cameraman,

political parties, artistes, social worker etc and other

organizations as well.

In
Shiv Sagar Tiwari vs. UOI
(supra), it was held that

the discretion conferred has to be exercised to advance the

purpose to subserve which the power exists and that even the

Minister, if he/she be the repository of discretionary power,

cannot claim that either there is no discretion in the matter or

unfettered discretion. The Supreme Court held that exercise of

W.P.(C) No.15239/2004 Page 95 of 157

such discretion was an exception and deprecated the above

action of the Government making the same into a norm.

Noteworthy, is the Government's stand in this case that vesting

of some discretion in the matter of allotment of quarters was

essential.

In this background, the contention of the respondents

that exercise of discretion was prohibited by the Supreme Court

in this case is totally misconceived.

146. On the other hand, in the instant cases, the petitioners

have assailed the arbitrariness in exercise of the discretion

admittedly conferred on the respondents and the failure to

permit continuation of occupation of the allotted

accommodation in the exceptionable circumstances and

conditions in which they were placed. The pronouncement of

the Supreme Court, in fact, assists the petitioners as the court

recognized existence of and permissible exercise of discretion

while deprecating its abuse.

147. The standards on which an authority would exercise

discretion were settled by the Supreme Court in the judgment

reported at (1979) 3 SCC 489 entitled
Ramana Dayaram

Shetty vs. International Airport Authority of India & Ors.

as follows :-

"10. xxx........It is indeed unthinkable that in a
democracy governed by the rule of law the executive
Government or any of its officers should possess arbitrary
power over the interests of the individual. Every action of
the executive Government must be informed with reason
and should be free from arbitrariness. That is the very
essence of the rule of law and its bare minimal
requirement. And to the application of this principle it
makes not difference whether the exercise of the power
involves affection of some right or denial of some
privilege."

W.P.(C) No.15239/2004 Page 96 of 157

xxx

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

148.
In para 85 of the pronouncement reported at AIR 1974

SC 555 entitled
E.P. Royappa vs. State of Tamilnadu & Anr.

the Supreme Court laid down the following binding principles :-

"85. .....In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic
while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary it is implicit in it that
it is unequal both according to political logic and
Constitutional law and is therefore violative of
Article 14
,
and if it affects any matter relating to public
employment, it is also violative of
Article 16.

Articles 14

and
strike at arbitrariness in State action and ensure
fairness and equality of treatment. They require that
State action must be based on equivalent relevant
principles applicable alike to all similarly situate and it
must not be guided by any extraneous or irrelevant
considerations because that would be denial of equality.
Where the operative reason for State action, as
distinguished from motive inducing from the
antechamber of the mind, is not legitimate and relevant
but is extraneous and outside the area of permissible
considerations, it would amount to mala fide exercise of
power and that is hit by
Articles 14
and
16.
Mala fide
exercise of power and arbitrariness are different lethal
radiations emanating from the same vice : in fact the
latter comprehends the former. Both are inhibited by

Articles 14
and
16."

(emphasis supplied)

W.P.(C) No.15239/2004 Page 97 of 157

Therefore, even if it were to be held as urged by the

respondents that this court could be held to be powerless to

direct exercise of discretion in a particular manner, in view of

the clear principles
laid down in
these judicial precedents, there

is no prohibition upon this court from examining as to whether

the respondents have failed to exercise discretion on relevant

criterion. There is also no prohibition on this court to examine

whether the respondents have acted arbitrarily or discriminated

against the petitioners.

The impugned action of the respondents against the

petitioners and the orders assailed herein have to be tested on

the above principles.

149. A similar argument of the respondent that the allottees

were prohibited from permitting retention of accommodation

beyond the permissible period after retirement was rejected by

the Central Administrative Tribunal in the aforenoticed decision

rendered on 30th December, 2002 in O.A. No.2378/2002

Shri Tej Kishan Vs. Union of India & Ors. The Tribunal had

examined the petitioner‟s challenge to the respondent‟s action

on the plea of discrimination premised on the conduct of the

respondents in exercising discretion in favour of some similarly

situated migrants and not in favour of the petitioners and

observed as follows:-

"31. Respondents have not disputed that
Kashmir migrants who were identically and equally
situated, on their request have been allowed to
retain the accommodation till the normalcy comes
back in State of J&K and till they are returned,
ensured further the safety of their persons and
property and reconstruction of their houses. For
these three Kashmir migrants, who are placed in
similar situation and with same conditions, a

W.P.(C) No.15239/2004 Page 98 of 157

different criteria was adopted on the ground of
merits in their case, and the principle not to be
given a general application. Applicant who is also a
Kashmir migrant having no place to live in Delhi a large
family to support, is on a similar footing with those who
were allowed to retain the accommodation. In order to
satisfy the requirements of law, the respondents have to
establish that there has been an intelligible differentia
and which has a reasonable nexus with the object
sought to be achieved. No grounds whatsoever have
forthcome which can be treated as reasonable or
relevant for to mete out the aforesaid requirements of
law and to pass dual test which will render the decision
in consonance with the
Article 14
of the Constitution of
India. In absence of any reasons and the fact that the
applicant is equal in all respects should not have been
meted out a differential treatment. This in my
considered view, is unsustainable being violative of

Article 14
of the Constitution of India."

150. The tribunal rejected the arguments of the respondents

premised on the pronouncement in
Shiv Sagar Tiwari
(supra)

as well as scarcity of resources holding as follows :-

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

33. I also find that the Government by the letter
dated 2.7.2002 in order to hold the retirees or retiral
officials of Kashmir migrants working in Delhi, who could

W.P.(C) No.15239/2004 Page 99 of 157

not get back to J&K due to prevailing situation, a
decision has been taken to allot about 100 MIG/LIG Flats
and for which DDA has been requested to formulate the
Housing Scheme for which a draft has been sent to the
Ministry for approval. The aforesaid decision also
incorporated that these houses are being allotted to
Kashmir migrants retiring or retired so that the general
pool accommodation got vacated from them. This on a
literal consideration connotes that the Kashmir migrants
who are in retention of general pool accommodation on
retirement, are to be evicted only after the DDA
formulate a Housing Scheme to allot MIG/LIG flats to
them.

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

35. In the result and for the forgoing reasons, OA
is partly allowed. Impugned order dated 13.8.2002 is
quashed and set aside. Respondents are directed to
allow the applicant to retain the Government
accommodation pending decision in SLP (Civil)
No.7369/97. No costs."

(underlining supplied)

This decision of the Central Administrative Tribunal has

attained finality and also stands implemented.

151. Before this court the respondents have not even

attempted to show how the present petitioners can be

distinguished from either Shri Tej Kishan (supra) or from the

instances noticed in para 31 of the judgment of the Tribunal.

On the contrary, as set out above, in answer to grounds (A) and

(B) of the writ petition noticed in para 22 above, the

respondents have stated that these contentions of the petitioner

are a "matter of record".

W.P.(C) No.15239/2004 Page 100 of 157

152. There is no dispute also to the fact that the orders in

J.L.Koul, P.K.Handoo, M.K.Koul, Tej Kishan
(supra) have

attained finality and these persons continue to occupy the

allotted accommodation despite superannuation.

153. The respondents are unable to point a single distinction,

let alone a relevant one, between the present petitioners and

those in the decided cases. The petitioners are identically

situated, yet have been denied equal treatment. Not a whit of

explanation for not treating these petitioners as those in the

cited precedents is suggested by the respondents. Even the

impugned orders unfortunately do not attempt to deal with this

aspect of the matter.

154. As noticed above, the respondents contended before the

Supreme Court in
Shiv Sagar Tiwari
(supra) that they have

the discretion to draw exceptions in the matter of allotments of

public premises and have relied on instances and categories

when this discretion was exercised in favour of persons who

were even not in public service and were never even employed

by the Government.

155. In ground L of WP(C ) no.15329/2004, Shri P.K.Koul, the

petitioner has stated that the respondents have allotted the

Government accommodation not only serving Government

employees, but to various other categories of employees who

have nothing to do with Government service. It has been

stated that "employees working in the office of the political

parties, journalists, freedom fighters, artists etc." are also

allotted general pool accommodation. This averment is not

contested by the respondents who have only submitted that the

W.P.(C) No.15239/2004 Page 101 of 157

allotment of the quarter is made as per the rules and policy
laid

down by
the Government.

156. It is trite that residuary rules are interpreted and worked

to empower authorities permitting exceptions from applicability

of the rule to remove hardships (Ref : 1993 Supp.3 SCC 515

(para 33) Syed Khalid Rizvi vs. UOI & Ors; (1996) 8 SCC

762 SBI & Ors. vs. Kashinath Kher & Ors.; (1988) 4 SCC

179 Ashok Kr. Uppal and Ors. vs. State of J&K).

157. The orders in Tej Kishan (supra) make a detailed

reference to the voluntary exercise of discretion in favour of

three migrants by the respondents which was the entire basis

of the finding of arbitrariness by the Tribunal in the action

taken against Tej Kishan and co-petitioners. These very

findings squarely apply to the cases of the present petitioners.

158. No explanation is rendered or reason given by the

respondents for the rejection of identical requests of some of

the petitioners or for not favourably considering the said

requests of the petitioners. The failure to even consider these

requests despite the specific directions in P.K. Koul's previous

writ petition reflect highhandedness, unreasonableness and

arbitrariness on the part of the respondents. The respondents

have granted approval to similarly situated persons. Denial

thereof to the equally placed petitioners certainly tantamounts

to hostile discrimination against them which is impermissible

and as observed above 'an antithesis to the equality clause'.

The action of the respondents in not favourably considering the

petitioners' representations; in cancelling the allotments of the

W.P.(C) No.15239/2004 Page 102 of 157

petitioners and proceeding against them under the Public

Premises Act, 1971 as well as the impugned orders are,

therefore, not sustainable also being in violation of
Articles 14

and
of the Constitution.

Change in Policy

159. There is yet another important side to the claim asserted

by the petitioners which requires consideration. The declared

policy of the state with regard to the IDPs from Kashmir is

concerned with their rehabilitation. Forcible eviction from their

current residences without an alternative is not even remotely

suggested in these policies. The same is evident from the

affidavit placed before the Supreme Court in
J.L.Koul vs. State

of Jammu & Kashmir
(supra) and the letter dated 2nd July,

2002 placed before the Central Administrative Tribunal in
Tej

Kishen Vs. Union of India
(supra). The decision taken to

cancel the petitioners' allotments and to initiate proceedings

under the
Public Premises (Eviction of Unauthorised Occupants)

Act, 1971
without making available of alternative shelter clearly

suggests a drastic change in the government policy so far as

these IDPs are concerned.

160.
In a recent judgment of the Supreme Court reported at

MANU/SC/0476/2010 Sindhu Education Society & Anr. Vs.

The Chief Secretary, Govt. of NCT of Delhi & Ors.
, the

Supreme Court observed that framing a policy is the domain of

the Government. The framework of the policy and the working

of such Government Policy has essentially to be done within the

framework of the Constitution & the laws. As and when

Government changes its policy decision, it is expected to give

W.P.(C) No.15239/2004 Page 103 of 157

valid reasons thereof and act in larger interest of the entire

community rather than a section. In para 66 of the judgment,

the Supreme Court held that :

"........... It is a settled canon of administrative
jurisprudence that state action, must be supported by
some valid reasons and should be upon due
application of mind. In the affidavits filed on behalf of
the state, nothing in this regard could be pointed out
and in fact, none was pointed out during the course of
arguments. Absence of reasoning and apparent non-
application of mind would give colour of arbitrariness
to the state action."

The position in the cases in hand is no different. The state

does not again even suggest a reasonable explanation or valid

reason for the change from the rehabilitative policy to the

decision to evict the petitioners and thereby threatening them

with imminent homelessness

161. The respondents would have the right to change its

policy upon change in circumstances. (Ref: (1998) 1 SCR

1120 State of Punjab & Ors. vs. Ram Lubhaya Begga &

Ors.). No such change is pointed out in the present cases. The

decision to treat the petitioners as unauthorized occupants

without their resettlement is clearly not premised a change of

policy upon application of mind and therefore not sustainable.

Responsibility of the Central Government

162. It has been suggested by Mr. Jatan Singh, learned

standing counsel for the Union of India that the Central

Government has no responsibility vis-a-viz the petitioners in the

given facts and that only the State of Jammu and Kashmir is

liable for the infraction of the rights of the petitioners.

W.P.(C) No.15239/2004 Page 104 of 157

163. The submission on behalf of the petitioners on the other

hand is that the duty and responsibility of the state authorities

vis-a-vis these groups of persons which stands recognized and

admitted by the both the state and Central Government itself.

As such, the rights of the petitioners cannot be ignored,

imperilled or violated by any of the respondents.

164. It is urged that the respondents have heartily engaged

with and manifested extreme concern for refugees from other

countries, but have handled inadequately, and even failed to

address the difficulties of internally displaced persons.

165. Reference is also made to the policies of regularization of

unauthorized constructions and encroachments on public lands

are pointed out. Several schemes and policies of the

respondents with regard to the disadvantaged masses so far as

rehabilitation and resettlement is concerned. The attention of

this court is drawn also to the several judgments concerned with

the right of shelter of pavement and jhuggi-jhompri dwellers

including
Olga Tellis v. Bombay Municipal Corporation &

Ors.
;
Ahmedabad Municipal Corporation vs. Nawab Khan

Gulab Khan & Ors.
;
Jagdish vs. DDA
; Sudama Singh &

Ors.vs. Government of Delhi & Anr. which have been

referred above
. The petitioners have urged at some length that

the respondents have shown utter insensitivity not only in

protecting their rights but even in the pursuit of the matter

before this court.

166. The question which begs an answer is having failed to

ensure the life and safety of the petitioners or to protect their

property, or to guarantee either of them, what would be the

W.P.(C) No.15239/2004 Page 105 of 157

obligation, duty and responsibility of the respondents qua the

petitioners.

167. It is an admitted fact that the petitioners were all

employed by the Central Government or its agencies. In order

to avoid compromising the security issues of these persons, a

more detailed analysis of the factual matrix is not being

undertaken. However, the present cases set out instances of

extreme trauma faced by the petitioners and their family

members as well as the continued threat to their life and

property. In one of the cases, the petitioner is a destitute lady

who was working in the Ministry of Information & Broadcasting

of the Government of India used to give live performances and

conducted programs on behalf of the Central Government in

remote villages in the valley as well as on the electronic media

making her face known to the militants. Her troupe was

attacked in 1987 while performing at Khamabal in District

Anantnag and they had to flee for their life. In this background,

she was transferred to Delhi, and was allotted the premises by

the respondents. The petitioner points out that in mid-1990, the

Songs and Drama Division Office in Srinagar, Kashmir was

blown up and the entire staff transferred to Delhi. Not only the

house of her in-laws but her ancestral/parental rental house also

stands burnt down and she has no place to return to in Kashmir.

Even after she was evacuated from the valley, her brother

received threats to her life by way of communications advising

the petitioner to desist from participating or performing in

programs in support of the Government. This communication

has been placed on record. The petitioner was deserted by her

W.P.(C) No.15239/2004 Page 106 of 157

husband decades ago and she stands abandoned by the State

with none to assist to her. The writ petition states that she is

getting a meager amount of 4500/- as pension, insufficient

even to sustain her, let alone acquiring rights in any property.

168. Another petitioner who was the author and the voice of a

programme on the All India Radio in Srinagar division which

became popular across the line of control was so targetted by

the militants. A price for his head was even announced. In one

of the cases, despite the security cover, an attempt was made

on the life of the petitioner whose property and belongings

stand looted and gutted in Srinagar and he has no property at

all anywhere in the country. There are other petitioners who

were working in the intelligence agencies in the state who were

evacuated on emergency basis after their colleagues were shot

dead. Several of the petitioners have lost close friends and

relatives on account of the attacks by militants.

The petitioners were targetted because they were the

face of the Central Government in the Kashmir valley and are

unable to return for the same reason.

169. So far as ensuring the right to shelter is concerned, the

Supreme Court has held that the state is deemed to be under an

obligation to secure the same to its citizens [Ref : (1996) 2 SCC

549 Chameli Singh & Ors. vs. State of U.P.(supra), that it is

imperative for the state to provide permanent housing

accommodation to the deprived.

170. In 1995 (2) SLR 72 P.G. Gupta vs. State of Gujarat the

Supreme Court had further declared that it was the duty of the

state to construct houses at reasonable costs and make them

W.P.(C) No.15239/2004 Page 107 of 157

easily accessible to the poor, and that such principles have been

expressly embodied in our Constitution to ensure socio-

economic democracy so that everyone has a right to life, liberty

and security of the person.

In this context, in para 11 of the pronouncement, the court

expressly laid down the imperative duty of the state to provide

permanent housing accommodation to the poor in the housing

schemes undertaken by it, or its instrumentality and observed

as follows:-

"11. As stated earlier, the right to residence and
settlement is a fundamental right under
Article 19(1)(e)

and it is a facet of inseparable meaningful right to life
under
Article 21.
Food, shelter and clothing are
minimal human rights. The State has undertaken as its
economic policy of planned development of the country
and has undertaken massive housing schemes. As its
part, allotment of houses was adopted, as is enjoined by
Arts. 38, 39 and 46, Preamble and 19(1)(e), facilities and
opportunities to the weaker sections of the society of the
right to residence, make the life meaningful and liveable
in equal status with dignity of person. It is, therefore,
imperative of the State to provide permanent
housing accommodation to the poor in the housing
schemes undertaken by it or its instrumentalities within
their economic means so that they could make the
payment of the price in easy instalments and have
permanent settlement and residence assured under

Article 19(1)(e)
and
of the Constitution. xxxxx"

(Underlining supplied)

171. The Supreme Court has repeatedly reiterated the well

settled position that the state has the constitutional duty to

provide adequate facilities and opportunities to all including the

disadvantaged and the displaced, by distributing its wealth and

resources for the settlement of life and erection of shelter over

their heads. The court has emphasized the constitutional right

of every citizen to migrate and settle in any part of India for

W.P.(C) No.15239/2004 Page 108 of 157

better employment opportunity and it would be the duty of the

state to provide right to shelter to the disadvantaged in society.

(Ref :
Ahmedabad Municipal Corporation Vs. Nawab Khan

Gulab Khan & Ors.
(supra).

172. The forcible removal of pavement and slum dwellers by

the agencies of the state without their resettlement or

rehabilitation has been repeatedly deprecated by the courts in

the plethora of judgments on the subject. In case they have to

be evicted from the place they are occupying, state authorities

are bound to formulate schemes and policies. The respondents

have gone on record with regard to such projects as are in

vogue for their relocation, resettlement and rehabilitation. (Ref:

(
1985) 3 SCC 545 Olga Tellis v. Bombay Municipal

Corporation & Ors.
; (
1997) 11 SCC 121 Ahmedabad

Municipal Corporation Vs. Nawab Khan Gulab Khan &

Ors.
; MANU/DE/9327/2006 Jagdish vs. DDA; decision of this

court dated 11th February, 2010 W.P.(C) No. 8904/2009

Sudama Singh & Ors.) Placing reliance on the obligations

under the international instruments, the courts have repeatedly

stated that adequate and reasonable facilities for resettlement

and effective steps taken for rehabilitation have to be made

available before forcible eviction.

173. An issue involving chakmas who were tribals from

erstwhile East Pakistan (now Bangladesh) went to the Supreme

Court in the case reported at (
1996) 1 SCC 742 National

Human Rights Commission vs. State of Arunachal

Pradesh Anr. In
this case, a public interest litigation was filed

by the National Human Rights Commission seeking

W.P.(C) No.15239/2004 Page 109 of 157

enforcement of rights under
Article 21
of the Indian

Constitution, of about 65,000 Chakma/Hajong tribals. It was

alleged that these Chakmas had settled primarily in the State of

Arunachal Pradesh and were being persecuted by sections of

the citizens of the state i.e. the All Arunachal Pradesh Students

Union referred to as "AAPSU" hereafter. It was additionally

complained that the applications of the Chakmas under the

Citizenship Act
and Rules thereunder were not being forwarded

by the State Government for consideration to the Central

Government in accordance with law.

In deciding the matter, the Supreme Court placed citizens

as well as non-citizens on a common platform so far as the

rights under
Article 14
and
of the Constitution are

concerned.

So far as the constitutional and the statutory obligations

of the states to protect the rights of those who reside within the

territory of that state are concerned, the court observed as

follows :-

"20. We are a country governed by the Rule of Law. Our
Constitution confers certain rights on every human-
being and certain other rights on citizens. Every person
is entitled to equality before the law and equal
protection of the laws. So also, no person can be
deprived of his life or personal liberty except according
to procedure established by law. Thus the State is
bound to protect the life and liberty of every human-
being, be he a citizen or otherwise, and it cannot permit
any body or group of persons, e.g., the AAPSU, to
threaten the Chakmas to leave the state, failing which
they would be forced to do so. No State Government
worth the name can tolerate such threats by one group
of person to another group of persons; it is duty bound
to protect the (Sic) group from such assaults and if it
fails to do so, it will fail to form its Constitutional as well
as statutory obligations. Those giving such (Sic) would
be liable to be dealt with in accordance with law. The
State Government must act impartially and carry out its

W.P.(C) No.15239/2004 Page 110 of 157

legal obligations to safeguard the life, health and well-
being of Chakmas residing in the State without being
inhibited by local politics. Besides, by refusing to
forward their applications, the Chakmas are denied
rights, Constitutional and statutory, to be considered for
being registered as citizens of India."

The court considered the factual matrix and prevalent

circumstances in detail and thereafter issued, inter alia, a writ

of mandamus directing the State of Arunachal Pradesh, to

ensure that the life and personal liberty of each and every

Chakma residing within the State shall be protected and any

attempt to forcibly evict or drive them out of the State by

organised groups, such as the AAPSU, shall be repelled, if

necessary by requisitioning the service of para-military or police

force. The Union of India was directed to provide such

additional force as is necessary to protect the lives and liberty of

the Chakmas on the request of the first respondent. The

Supreme Court further directed that the Chakmas shall not be

evicted from their homes except in accordance with law and

shall not be denied domestic life and comfort therein; the State

Government was directed to deal with the quit notices and

ultimatums issued by the AAPSU and any other group which

tantamounted to threats to the life and liberty of each and every

Chakma in accordance with law. The Supreme Court has thus

recognized the responsibility of the Central Government to

provide forces to protect the right to life of the threatened

persons.

174. Unlike the Chakmas, the petitioners are IDPs who

complain of violation of the same rights and seek redressal

thereof. However, the extreme situation of hardship and

W.P.(C) No.15239/2004 Page 111 of 157

difficulties being faced by the petitioners and other persons

similarly placed is no different. The State Government has

been unable to protect or secure the life and property of the

petitioners. The Central Government has not been able to

adequately address the several issues which have been raised.

Many of the petitioners had been physically evacuated by the

Central Government in extreme situations. All the petitioners

were employees of the Government in Delhi and have

superannuated in Delhi. The attempt being made at present is

also by the Central Government at Delhi is to forcibly evict the

petitioners by taking recourse to statutory provisions.

175. It is the constitutional duty of the state to protect human

rights and the fundamental rights of all persons. The distinction

between such rights and legal rights which may require

adjudication in appropriate proceedings has also been

emphasised on several occasions.

In (1982) 3 SCC 235 People's Union for
Democratic

Rights & Ors. Vs. Union of India & Ors.
, the court observed

that denial of statutory rights of the labour force, which was a

vulnerable section of the community, tantamounted to breach of

their constitutional rights and was therefore enforceable

against the government. It was held that it was the duty of the

Union of India, the Delhi Administration and the DDA to ensure

that the constitutional obligation towards labour are discharged

by the contractors to whom they had entrusted construction

work. It was held that the Union of India, Delhi Administration

and DDA cannot fold their hands in despair and become silent

spectators of the breach of constitutional prohibitions being

W.P.(C) No.15239/2004 Page 112 of 157

committed by their own contractors. In this context, the court

held as follows :-

"21. Before leaving this subject, we may point out
with all the emphasis at our command that whenever
any fundamental right, which is enforceable against
private individuals such as, for example a fundamental
right enacted in
Article 17
or 23 or 24 is being violated,
it is the constitutional obligation of the State to take the
necessary steps for the purpose of interdicting such
violation and ensuring observance of the fundamental
right by the private individual who is transgressing the
same. Of course, the person whose fundamental right is
violated can always approach the court for the purpose
of enforcement of his fundamental right, but that cannot
absolve the State from its constitutional obligation to
see that there is no violation of the fundamental right of
such person, particularly when he belongs to the
weaker Section humanity and is unable to wage a legal
battle against a strong and powerful opponent who is
exploiting him. The Union of India, the Delhi
Administration and the Delhi Development Authority
must therefore be held to be under an obligation to
ensure observance of these various labour laws by the
contractors and if the provisions of any of these labour
laws are violated by the contractors, the petitioners
indicating the cause of the workmen are entitled to
enforce this obligation against the Union of India, the
Delhi Administration and the Delhi Development
Authority by filing the present writ petition. The
preliminary objections urged on behalf of the
respondents must accordingly be rejected."

The failure of the state to ensure statutory rights was held

to provide the essential basis for maintaining the writ petition

under
Article 32
for enforcing fundamental rights against the

State and its agencies.

176. It is noteworthy that a writ petition was filed in this court

in connection with compensation payable to residents of

Kashmir whose property had been destroyed in the disturbances

in Kashmir. The judgment of this court reported at
AIR 2005

Delhi 110 B.L. Wali & Ors. Vs. Union of India & Ors.
has

W.P.(C) No.15239/2004 Page 113 of 157

made observations on this very unacceptable stand of the

Government of India in its affidavit which is under

consideration. These observations before the Court read as

under:-

"20. Respondent No.1, Union of India, has also filed
an affidavit under the signatures of Mr. K.M. Kuti, Under
Secretary in the said Ministry dealing with the
Department of Jammu & Kashmir affairs. Respondent
No.1/UOI by way of the said affidavit effectively washes
its hands off the matter. It is stated that relief and
rehabilitation are State subjects. Para 2 of the parawise
reply may be reproduced to show the stand of the Union
of India:

"2. That the averments made in para 2 of the
petition that UOI is invested with the
responsibility to rehabilitate and provide relief to
the citizens who suffer as a result of failure of
state to protect their life and property is
misconceived, incorrect and is denied. The
answering respondent respectfully submits that
Law and Order as well as Relief and
Rehabilitation are State Subjects. Ministry of
Home Affairs has the responsibility of providing
Relief and Rehabilitation to refugees from West
Pakistan (now Pakistan), East Pakistan (now
Bangladesh), Sri Lanka, Tibet and to the
repatriated Indian Nationals. Therefore, the
present writ petition qua the answering
respondent is not maintainable."

21. The Government of India, thus, considered its
responsibility for providing relief and rehabilitation to
refugees, who are not citizens of this country, but not
to citizens of the country who are refugees in their own
country. The apathy is writ large on its face.

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

23.
Article 21
of the Constitution of India provides for
the Fundamental Right of Protection of Life and
Personal Liberty. Life cannot be bare existence.
Persons who are displaced and suffered injury to life

W.P.(C) No.15239/2004 Page 114 of 157

and property as a result of terrorism cannot be left
without remedy. It is the duty and responsibility of the
State to protect its citizens. Citizens like the
petitioners are victims of environment, which is not
their own creation. The State owes a responsibility to
create an environment for safe and dignified existence
of the citizens."

(Emphasis supplied)

This court rejected the stand of the Government of India

that the responsibility towards the payment of the compensation

rests with the State Government alone holding as follows:-

"31.The Government of India cannot also absolve
itself of the responsibility and is liable to ensure that
the State Government remits the amount. A large
amount of funds flow to the State of Jammu &
Kashmir from the Central Government keeping into
consideration the disturbed conditions and, thus, the
Central Government cannot say that it has no role to
play. The State of Jammu & Kashmir is an integral
part of our country and the writ of the Central
Government runs. In the cases of victims of Charari
Sharief incident, funds have been disbursed out of
the Prime Minister Relief Fund to make a package of
Rs.2 lakhs of ex-gratia compensation apart from
other benefits."

177. In this judgment, the court held that what holds true for

loss of life and limb, would hold true for loss of property

occasioned by failure of the State to protect the same. It is

noteworthy that in the present writ petitions, the petitioners

have not been deprived of their property and homes in

accordance with law as, for instance, in the case of acquisition

proceedings. The deprivation is a direct result of the failure to

control the violence against the petitioners. The principles
laid

down in
the above judgment would apply to the Kashmiri

migrants on every score. More important is the clear finding

by the court of the responsibility of the Central Government for

the rehabilitation and relief to the IDPs from Kashmir.

W.P.(C) No.15239/2004 Page 115 of 157

178. It is unfortunate that despite this adjudication, the stand

which was rejected has again been taken in these proceedings.

This position on behalf of the Central Government in fact

ignores the commitments made in legal proceedings noticed

above.

179. It is noteworthy that the displacement of the petitioners

is also not intra-state. The petitioners have been compelled to

leave the boundaries of their state and are residing in Delhi.

180. The Central Government has acknowledged its

responsibility in the matter inasmuch it has intervened in the

matter. Several of the present petitioners stand evacuated by it

and the allotments of the quarters in the instant case stand

made it. Central resources are being utilized for development

projects and security purposes in the state and admittedly the

Central Government has accepted and assumed responsibility

towards rehabilitation and resettlement of the persons displaced

as well in the grants and reservation made by it.

181. It was observed in (1978) 1 SCR 1 State of Rajasthan

& Ors. vs. UOI by Chief Justice Beg that :-

"In our country national planning involves disbursements
of vast amounts of money collected as taxes from citizens
residing in all the States and placed at the disposal of
the Central Government for the benefits of the States
without even the "conditional grants" mentioned above.
Hence, the manner in which State Government function
and deal with sums placed at their disposal by the Union
Government or how they carry on the general
administration may also be matters of considerable
concern to the Union Government."

182. The expansion and interpretation by the courts has

affirmatively established a positive right to housing and shelter

for every person as part of the fundamental right. Human

W.P.(C) No.15239/2004 Page 116 of 157

rights and fundamental rights are inalienable; their violations

are indefeasible. The state is under a constitutional obligation

and duty to protect these rights. When violated, a citizen is

entitled to their enforcement. The constitutional mandate upon

it, is coupled with the statutory duty and public law obligations

to ensure the protection of the fundamental and basic human

rights to all, in addition to its obligation under the several

international instruments noticed above. This essentially

remains in the exclusive domain of state functions. Failure to

protect the citizens from eminent loss of life and property as

well as maintenance of public order, implicates the state for

culpable inaction.

183. Mr. Jatan Singh, learned standing counsel for the Union

of India has urged that these petitioners are not public servants

and can claim no right to continue in the allotted public

premises. It has been vehemently urged that on account of

their superannuation, they ceased to be Government servants

and are disentitled to retain Government accommodation.

Learned Standing Counsel has urged at some length that the

Government of India has formulated a rehabilitation package

which necessitates that all these petitioners must return to their

homes in Kashmir. It is contended that by their failure to

vacate, the rights of the several Government employees who are

waiting to be allotted Government accommodation are adversely

effected. Unfortunately the respondents are unable to submit

that the petitioners would be safe upon return or how the

respondents propose to ensure protection of life and liberty of

W.P.(C) No.15239/2004 Page 117 of 157

the petitioners or ensure restoration of their property in the

Kashmir valley.

184. Before the Supreme Court of India, the respondents have

accepted responsibility and obligation to the IDPs from Kashmir

and claimed to have advanced huge grants to the State of

Jammu Kashmir and also set out a detailed scheme in the

affidavit filed before the Supreme Court.

In the instant case given the nature and extent of the

violations, the Union of India cannot abdicate responsibility in

the matter, or avoid its constitutional obligation of at least

ensuring reasonable shelter or a roof to these petitioners.

Financial stringency of the Government

185. Placing reliance on the judgment reported at (
2005) 6

SCC 138 Master Marine Services Pvt. Ltd. vs. Metcalfe and

Hodgkinson Pvt. Ltd. & Anr.
, it has been further argued by

Mr. Jatan Singh that this court is bound to exercise judicial

restraint and cannot be unmindful of the administrative burden

and increase in unbudgeted expenditure on account of quashing

decisions. It is urged that in this background, while exercising

power of judicial review of an administrative decision, the court

cannot substitute its own decision without the necessary

expertise and compel the respondents to exercise discretion to

permit the petitioner to continue to occupy the aforenoticed

accommodation.

186. This submission fails to consider the nature of the rights

which are involved in the case in hand.
Metcalfe Hodgkinson

Pvt. Ltd.
(supra) related to a challenge to award of a tender

W.P.(C) No.15239/2004 Page 118 of 157

and contract of work of professional services to the appellant

and was not concerned with a plea of violation of basic human

rights and constitutional guarantees as are involved in the

instant case.

The consideration in
Metcalfe Hodgkinson Pvt.

Ltd.
(supra) has no application to the present case.

187. In (2003) 6 SCC 1 Kapila Hingorani vs. State of

Bihar & Ors. the State Government had, however, pleaded

financial stringency to shift its liability to the Union of India or

to the State of Jharkhand. In para 67 of the judgment dated 9 th

of May, 2003 Supreme Court had held that the liability of the

state of Bihar cannot be shifted to the Union of India only

because it is the repository of funds raised by it through excise

and other central levies and impost, and consequently it would

not be indirectly or vicariously liable for the failings on the part

of the State Public Sector Undertakings. It was held that either

precedentially or jurisprudentially, the Union of India cannot be

held liable and no such direction as was being sought by the

state government could be issued.

The Supreme Court, however, clearly declared the

position that financial stringency may not be a ground for not

issuing requisite directions when a question of violation of

fundamental right arises.
In this regard, the court noticed the

emphasis given by it on this aspect including the judgments

reported at [1987]
1SCR641 Rural Litigation and

Entitlement Kendra and Ors. v. State of Uttar Pradesh

and Ors.
; 1980CriLJ1075 Municipal Council, Ratlam vs.

Vardichan & Ors.; [1996]
3SCR80 B.L. Wadhera v. Union

of India
; (
1995)4SCC507 State of H.P. v. H.P. State

W.P.(C) No.15239/2004 Page 119 of 157

Recognised & Aided Schools Managing Committees and

Ors.
; AIR 1996 SC 2426 Paschim Banga Khet Mazdoor

Saimiti & Ors. vs. State of West Bengal & Anr.]

In para 65 of (2003) 6 SCC 1 entitled
Kapila

Hingorani Vs. State of Bihar & ors
, the Court rejected the

contention of the State of Bihar also to this effect.

188.
In para 6 at page 589 of (
1993) 3 SCC 584 All India

Imam Organisation vs. UOI
, the Supreme Court held that:-

"6....Much was argued on behalf of the Union and
the Wakf Boards that their financial position was not
such that they can meet the obligations of paying the
Imams as they are being paid in the State of Punjab. It
was also urged that the number of mosques is so large
that it would entail heavy expenditure which the Boards
of different States would not be able to bear. We do not
find any correlation between the two. Financial
difficulties of the institution cannot be above
fundamental right of a citizen. If the Boards have
been entrusted with the responsibility of supervising
and administering the Wakf then it is their duty to
harness resources to pay those persons who perform
the most important duty namely of leading community
prayer in a mosque the very purpose for which is
created."

189. On the same issue in (
1995) 4 SCC 507 State of H.P.

vs. H.P. State Recognised & Aided Schools Managing

Committees
, the Supreme Court observed that:-

"16. The constitutional mandate to the State, as
upheld by this Court in
Unni Krishnan
case - to provide
free education to the children up to the age of fourteen

- cannot be permitted to be circumvented on the
ground of lack of economic capacity or financial
incapacity."

190. The observations of the Supreme Court at (2005) 2 SCC

262 Kapila Hingorani vs. State of Bihar & Others, while

dismissing the review petition filed by the Bihar Government,

seeking a review of the earlier order dated 9th May, 2003 are

W.P.(C) No.15239/2004 Page 120 of 157

also topical on this objection of the respondents and need to be

considered. The State of Bihar had submitted that the state had

no liability to pay the salaries of the employees of the statutory

corporations/companies incorporated under the
Indian

Companies Act
and that they were not completely under the

control of the State. Before the Supreme Court, counsel for the

State of Bihar had urged that the remedy of the employee was

to file appropriate applications before the Company Judge who

was seized of the winding up proceedings in relation to such

company.

These submissions were rejected by court observing that

in the order dated 9th May, 2003., the court had considered the

matter from the human rights aspect as well as the fundamental

rights of the employees in the public sector undertaking

operating in the state of Bihar. The court noticed that after the

passing of the order dated 9th May, 2003, several employees

died due to non-payment of their salaries. The court placed

reliance, inter alia on para 24 of the directions dated 9th May,

2003 and while rejecting the review petition filed by the

respondents observed as follows :-

"24. This Court further observed that the State
has a constitutional obligation and acts in a fiduciary
capacity vis-à-vis performance of its constitutional
duties and functions by the public sector
undertakings as it has constitutional obligations in
relation thereto."

(Underlining supplied)

So far as protection of such human rights and

fundamental rights, and remedy for violation thereof, is

W.P.(C) No.15239/2004 Page 121 of 157

concerned, the court issued directions to the state government

to pay the salaries of employees in the public sector

undertakings in the following terms :-

"22. ......

The Government companies/public sector
undertakings being 'States' would be constitutionally
liable to respect life and liberty of all persons in terms
of
Article 21
of the Constitution of India. They,
therefore, must do so in cases of their own employees.
The Government of the State of Bihar for all intent and
purport is the sole shareholder. Although in law, its
liability towards the debtors of the Company may be
confined to the shares held by it but having regard to
the deep and pervasive control it exercises over the
Government companies; in the matter of enforcement
of human rights and/or rights of the citizen of life and
liberty, the State has also an additional duty to see that
the rights of employees of such corporations are not
infringed.

The right to exercise deep and pervasive control
would in its turn make the Government of Bihar liable
to see that the life and liberty clause in respect of the
employees is fully safeguarded. The Government of the
State of Bihar, thus, had a constitutional obligation to
protect life and liberty of the employees of the
Government owned companies/corporations who are
the citizens of India. It had an additional liability having
regard to its right of extensive supervision over the
affairs of the company."

xxx

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

(Emphasis supplied)

W.P.(C) No.15239/2004 Page 122 of 157

191. The principle reiterated by the Supreme Court was that

financial difficulties of the institution or the state cannot be

above the fundamental rights of the citizen. It has also been

observed that in a situation of the nature which was before the

court, it was obliged to issue necessary directions to mitigate

the extreme hardship of the employees involving of human

rights of the citizens of the country at the hands of the state

government and companies and corporations owned and

controlled by it.

192. Other than the bald reference to the judgment in

Metcalfe
(supra), learned standing counsel has placed no

factual assertions in support thereof.

Such submission is clearly

untenable in view of the admitted Government position in the

affidavit dated 6th October, 2009 filed in
J.K. Koul
(supra)

before the Supreme Court of its responsibility as well as liability

qua the displaced Kashmiris.
The same stands admitted in the

discretion exercised in favour of the three persons cited in Tej

Kishan (supra) and the letter dated 2nd July, 2002 placed

before the Central Administrative Tribunal as also in the policy

of reservation/preferential allotment of the flats. The

respondents have clearly admitted their responsibility and are

bound by their commitments.

193. Before this court, the respondents have not stated that

there is any assessment or calibration in terms of priorities of

the various of the several projects which the respondents need

undertake or the various areas which Government business

addresses. The respondents explain neither the financial

W.P.(C) No.15239/2004 Page 123 of 157

burden of ensuring shelter to these IDPs nor the extent of the

available resource. Mere announcement of schemes and

allocation of large volume of funds by the Government as a

reaction to court directions upon occurrence of events in the

country by themselves are insufficient and may prove to be

meaningless. Displacement as that of the present petitioners

clearly reflects the imperative to take a holistic view and for the

decision makers to take a 'minimum-needs' based approach

where ensuring basic human rights and social welfare are

concerned.

194. Experience and examples abound in this city and the

aforenoticed judicial precedents of forcible evictions relating to

slums and jhuggi dwellers. Defenceless and disadvantaged

citizens are forcibly evicted from their shelters which are then

destroyed. And then, the long arm of the state, gives a hyper

technical interpretation to legal definitions, takes the shield of

statutory provisions and implements what is touted as the "rule

of law" in removal of "encroachments" by the disadvantaged.

Others illegal constructions and deviants are "regularised" or

"compounded". This very ethos is illustrated in the present writ

petitions.

195. Instance after instance of schemes in Delhi for

regularising not only rank illegal and unauthorised

constructions but also large scale encroachments on public land

are in existence and being implemented. So much so that the

Central Government has promulgated ordinances and statutes

prohibitting demolitions of huge illegal buildings and even

interdicting court orders. Interestingly such legislations benefit

W.P.(C) No.15239/2004 Page 124 of 157

such law breakers who do not even need rehabilitation or state

support, who are certainly not disadvantaged or displaced.
The

Delhi Laws (Special Provisions) Act, 2006
was enacted by the

Parliament concerned that action for violation of the provisions

of the Master Plan 2001 and building bye laws was causing

hardship and irreparable loss to a large number of people. No

reference to public safety, public interest, environment

concerns, enforcement of legal provisions or the financial

impact and loss is displayed.

196. The judgment reported at 2010 (
III) AD (Delhi) 513

Harijan Kalyan Samiti Regd. & Ors. vs. Government of

NCT of Delhi
makes a reference to Government policy to

regularise 1400 unauthorised colonies. The huge loss to the

public exchequer of indiscriminately regularising illegal

encroachments on land acquired after payment of large sums as

compensation from public funds by the government;

encroachments those on public land as also violations of

building regulations is not even computed, let alone addressed.

(Ref: (2006) 3 SCC 399 M.C. Mehta vs. UOI & Ors.;
AIR

2005 SC 1 Friends Colony Development Committee vs.

State of Orissa & Ors
.)

197. Yet the respondents urge "financial stringency" so far as

the present petitioners are concerned. The essence of the

policy of rehabilitation and resettlement, so far as the

petitioners is concerned has not only been given a complete go

by but the respondents are completely denying all liability for

the same.

W.P.(C) No.15239/2004 Page 125 of 157

198. Apart from a vague suggestion of insufficiency of funds,

the respondents do not substantiate such plea with any

material. The respondents have not shown any consideration of

the petitioners' needs, let alone any steps take to address their

plight. There is nothing which could enable this court to arrive

at a conclusion that the respondents had difficulty in working

the rights of the petitioners on account of financial incapacity.

To say the least, similar submissions were termed as "typically

gauche" and "lacking insensitivity" by this court in
P.K.

Handoo vs. Estate Officer
(supra) and already stand rejected

in
B.L. Wali & Ors. vs. UOI
(supra). The impugned action

and the submissions manifests the huge barriers which a

displaced citizen of the country faces in accessing even basic

and guaranteed constitutional rights despite the admitted

responsibility of the state for the breaches and violations of the

constitutional protections suffered by them.

Appropriate remedy, role of the court and nature of relief

199. It is now necessary to consider the nature of remedy and

relief which would be available to a citizen for violation of the

fundamental right to life as well as threat thereto. The

Supreme Court has repeatedly judicially awarded compensation

in cases of established breach of public duty to protect the

fundamental rights and violations thereof, especially the

guarantees of personal liberty and life.

200. In AIR 1983 SC 1086 Rudul Sah vs. State of Bihar ,

the court was concerned with violation of rights resulting from

illegal detention. The observations of the court on the duty of

W.P.(C) No.15239/2004 Page 126 of 157

the court deserve to be considered in extenso and read as

follows :-

"10. .........
Article 21
, which guarantees the
right to life and liberty will be denuded of its
significant content if the power of this Court were
limited to passing orders of release from illegal
detention. One of the telling ways in which the
violation of that right can reasonably be prevented
and due compliance with the mandate of
Article 21

secured, is to mulct its violators in the payment of
monetary compensation. Administrative sele(sic)sis
leading to flagrant infringements of fundamental
rights cannot be corrected by any other method
open to the judiciary to adopt. The right to
compensation is some palliative for the unlawful
acts of instrumentalities which act in the name of
public interest and which present for their
protection the powers of the State as a shield. If
civilisation is not to perish in this country, as it has
perished in some others too well-known to suffer
mention, it is necessary to educate ourselves into
accepting that, respect for the rights of individuals
is the true bastion of democracy. Therefore, the
State must repair the damage done by its officers to
the petitioner's rights."

201. So far as the remedy which would be available in cases

involving infringement of fundamental rights and the power of

courts, Dr. A.S. Anand, J [as his Lordship then was] in his

concurring judgment in AIR 1993 SC 1960 entitled
Nilabati

Behara @ Lalita Behura Vs. State of Orissa
had observed as

follows :-

"33. The public law proceedings serve a different
purpose than the private law proceedings. The relief
of monetary compensation, as exemplary damages, in
proceedings under
Article 32
by this Court or under

Article 226
by the High Courts, for established
infringement of the indefeasible right guaranteed
under
Article 21
of the Constitution is a remedy
available in public law and is based on the strict
liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of
public law is not only to civilize public power but also
to assure the citizen that they live under a legal
system which aims to protect their interests and
preserve their rights. Therefore, when the court
moulds the relief by granting "compensation" in

W.P.(C) No.15239/2004 Page 127 of 157

proceedings under
Article 32
or 226 of the
Constitution seeking enforcement or protection of
fundamental rights, it does so under the public law by
way of penalising the wrongdoer and fixing the
liability for the public wrong on the State which has
failed in its public duty to protect the fundamental
rights of the citizen. The payment of compensation in
such cases is not to be understood, as it is generally
understood in a civil action for damages under the
private law but in the broader sense of providing
relief by an order of making `monetary amends' under
the public law for the wrong done due to breach of
public duty of not protecting the fundamental rights
of the citizen. The compensation is in the nature of
`exemplary damages' awarded against the wrongdoer
for the breach of its public law duty and is
independent of claim compensation under the private
law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/and
prosecute the offender under the penal law.

xxx xxx xxxx

37. This Court and the High Courts,
being the protectors of the civil liberties of the
citizen, have not only the power and jurisdiction
but also an obligation to grant relief in exercise
of its jurisdiction under
Articles 32
and
of
the Constitution to the victim or the heir of the
victim whose fundamental rights under
Article
of the Constitution of India are established to
have been flagrantly infringed by calling upon
the State to repair the damage done by its
officers to the fundamental rights of the citizen,
notwithstanding the right of the citizen to the remedy
by way of a civil suit or criminal proceedings. The
State, of course has the right to be indemnified by
and take such action as may be available to it against
the wrongdoer in accordance with law - through
appropriate proceedings. Of course, 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 the facts and circumstances of the case,
is possible."

(Emphasis supplied)

202.
In (
1988) 4 SCC Sheela Barse vs. UOI & Ors.
, the

court was concerned with gross violations of the constitutional

and statutory rights of a large number of children in the country

who were suffering custodial restraints. While commenting on

W.P.(C) No.15239/2004 Page 128 of 157

the nature of proceedings in public interest litigation and the

issue of protection and enforcement of their rights, the court

made the following observations with regard to the duty of the

court :-

"6. ........More importantly the Court is not
merely a passive, disinterested umpire or
onlooker, but has a more dynamic and positive
role with the responsibility for the organisation
of the proceedings, moulding of the relief and--
this is important -- also supervising the
implementation thereof."

203. Where infringement of fundamental rights is established,

the duty of the court does not stop at giving a mere declaration.

In 1997 (
1) SCC 416 D.K. Basu vs. State of West Bengal
, it

was laid down that in such a case, the court must proceed

further and give compensatory relief, not by way of damages as

a civil action but by way of compensation under the public law

jurisdiction for the wrong done, due to breach of the public duty

by the State of not protecting the fundamental right to life of

the citizens. To repair the wrong done and give judicial redress

for legal injury is a compulsion of judicial conscience.

204. Unlike the several cases noted hereinabove including

cases of
Rudul Shah, D.K. Basu, Leelawati Behura, Sheela

Barse
(supra) etc. in the instant case, the state or its

instrumentalities itself have not harmed or punished the

petitioners. However, the state has totally failed to protect the

fundamental right to life of the petitioners and to protect them

from violence, harassment and pogroms. This is in clear

abdication of the constitutional responsibility of the State.

Responsibility for the violence in the State is not the question

W.P.(C) No.15239/2004 Page 129 of 157

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 601 State of Maharashtra vs. Dr. D. Praful B. Desai
,

the Supreme Court stated that one needs to set out the

approach which a court must adopt in deciding such questions

and reiterated that the first duty of the court is to do justice.

206. In para 15 of AIR 1980 SC 1622 Municipal Council,

Ratlam vs. Vardichan & Ors., the court observed that:-

"15. ......... The nature of the judicial process is
not purely adjudicatory nor is it functionally that of an
umpire only. Affirmative action to make the remedy
effective is of the essence of the right which otherwise
becomes sterile."

207. In para 11 of (1997) 6 SCC 241 Vishakha & Ors. vs.

State of Rajasthan & Ors., the Supreme Court held that the

obligation of the Supreme Court under
Article 32
of the

Constitution for the enforcement of fundamental rights in the

absence of legislation must be viewed along with the role of

judiciary envisaged in the Beijing Statement of Principles of the

Independence of the Judiciary in the LAWASIA region. These

principles were accepted by the Chief Justices of the Asia and

the Pacific at Beijing in 1995 as those representing the

minimum standards necessary to be observed in order to

maintain the independence and effective functioning of the

judiciary. The objectives of the judiciary mentioned in the

Beijing Statement are:

"Objectives of the Judiciary:

W.P.(C) No.15239/2004 Page 130 of 157

10. The objectives and functions of the
judiciary include the following:

(a) to ensure that all persons are
able to live securely under the Rule
of Law;

(b) to promote, within the proper
limits of the judicial function, the
observance and the attainment of
human rights; and

(c) to administer the law impartially
among persons and between
persons and the State."

In Clause 10(a) of the objectives of the Chapter on

'Objectives of the Judiciary', it has been clearly stipulated that

the objectives and functions of the judiciary include ensuring

that all persons are able to live securely under the rule of law.

208. So far as the manner in which relief is required to be

moulded so as to ensure protection of the constitutional rights

of the petitioners in this bunch of writ petitions are concerned,

learned counsel for petitioner has placed reliance on the

pronouncement of this court dated 10th September, 2004 in

WP(C) No. 172/1997 entitled
Smt. Kamla Devi vs. Govt. of

NCT of Delhi & Ors. In
this judgment, learned brother B.D.

Ahmed, J was dealing with a case relating to a prayer for

compensation for the death of one Uday Singh, an electrician

who was killed in an explosion on account of terrorist activity in

Delhi.

The court held that lower courts would lose their efficacy

if they cannot possibly respond to the needs of the society -

technicalities there might be many but the justice-oriented

approach ought to not be thwarted on the basis of such

W.P.(C) No.15239/2004 Page 131 of 157

technicality since technicality cannot and ought not to outweigh

the course of justice.

209. While referring to several pronouncements of the Apex

Court with regard to compensation for custodial death; death of

school children on a picnic; death of a passenger in a train in

action on the part of the railway employees, it was further

observed in
Kamla Devi
's case (supra) as follows :-

"7. xxx
The fact of the matter is that Uday Singh lost his
life on account of an act of terrorism. The State failed
to prevent it. The Primary duty of the State is to
maintain peace and harmony amongst its citizens. If
for some reason, it is unable to put the lid on
simmering discontent, then it is its duty to protect
innocent citizens from harm. If it fails in this duty,
then it must compensate the citizens who have been
wronged."

Reliance was placed on the pronouncement in
AIR 1993

SC 1960 Nilabati Behara @ Lalita Behura Vs. State of

Orissa
wherein it had been also observed that while directing

monetary compensation for established infringement of the

fundamental rights, the courts take into account not only the

interest of the applicant and the respondent but also the

interests of the public as a whole with a view to ensure that

public bodies or officials do not act unlawfully and do perform

their public duties properly particularly where the fundamental

right of a citizen under
Article 21
is concerned. Law is in the

process of development and the process necessitates developing

separate public law procedures as also public law principles.

210. In AIR 1989 Mad. 205
R. Gandhi & Ors. vs. UOI &

Anr.
, the Madras High court was concerned with the inability of

the State to enforce public order putting in jeopardy the life and

W.P.(C) No.15239/2004 Page 132 of 157

liberty, home and hearth of the victims involved. The petition

sought redressal for the trials and tribulations undergone by the

minority Sikh community of Coimbatore in Tamil Nadu and a

few others in the wake of the assassination of late Prime

Minister Smt. Indira Gandhi on 31st October, 1984.

Observing

on the violation of the fundamental rights and the duty of the

state, the Madras High Court placed reliance on the

observations of the Supreme Court in the
Olga Tellis
(supra)

case, and held as follows:-

"21. The maintenance of law and order is the
primary duty of the State and under our Constitution
it is a State subject and tops the State List. No
Government worth the name can abdicate this
function and put the life and liberty, the hearth and
home of the citizens in jeopardy.
Article 38
of the
Constitution enjoins on the State to strive to promote
the welfare of the people by securing and protecting,
as effectively as it may, a social order in which justice,
social, economic and political, shall inform all the
institutions of the national life. Under
Article 19(a)

and (g) of the Constitution, any citizen of this country
is entitled to reside and settle in any part of the
Territory of India and to practice any profession or to
carry on any occupation, trade or business.
Article 21

lays down that no person-shall be deprived of his right
or personal liberty except according to the procedure
established by law. As pointed out by the Supreme
Court in
Bombay Pavement Dweller
's case,
MANU/SC/0039/1985 : AIR1986SC180 , no person
can live without the means of living, that is, the
means of livelihood and the easiest way of depriving a
person of his right to life would be to deprive him of
his means of livelihood to the point of abrogation.
Under
Article 300(A)
of the Constitution, no person
shall be deprived of his property save by authority of
law and to allow his properties to be reduced to ashes
by the force of darkness and evil is a clear deprivation
of the right to property guaranteed by the
Constitution. The members of the Sikh Community
form an integral part of the Indian society; they have
every right to settle down in Coimbatore and carry on
their profession. They have the Constitutional right to
live and they cannot be deprived of their means of
livelihood. Their right to property is inviolable. All
these Constitutional rights of the Sikhs and a few
members of the other communities have been

W.P.(C) No.15239/2004 Page 133 of 157

flagrantly infringed by the inaction of the law
enforcing authorities. Fundamental rights are not
mere brutum fulmen. They are the throbbing
aspirations and realities of civilised human life, they
cannot be rendered desuetude or dead-letter or as
observed by Bhagwati, J. as he then was, 'a paper
parchment, a teasing illusion and a promise of
unreality', by the failure of the State to protect those
rights. These unfortunate victims of arson and
violence are, therefore, entitled to seek reasonable
compensation from the State of Tamil Nadu, which
has failed in its duty to protect their Constitutional
and legal rights.

22. ......It is a matter of regret that the State of
Tamil Nadu, which has failed to carry out its
elementary function of enforcing public order should
treat the victims of its own lapses as beggars with
bowls for alms. It is not charity that is expected of the
Government, but legal recompense for wrongs done
to them, for injuries inflicted on them on account of
the break-down of the Governmental machinery. The
second respondent-- State of Tamil Nadu cannot,
therefore, shirk its responsibility for these
unfortunate happenings or try to escape from its
obligation as a social welfare State to make
suitable amends."

(underlining supplied)

211. Examining the claim for compensation on account of death

of a spouse in similar riots targeting members of the same

community in Delhi in 1984, Anil Dev Singh, J in the judgment

reported at 1996 (3) AD (Delhi) 333 : 1996 (38) DRJ 203

Bhajan Kaur vs. Delhi Admn. has observed as follows:-

"(10)
Article 21
is the Nation's commitment to
bring every individual or group of persons within its
protective fold. This Nation belongs to members of all
the communities. They arc equal members of the Indian
society. Equality before law and equal protection of
laws is ensured to them by
Article 14
of the
Constitution to them. None is to be favoured or
discredited. The conduct of any person or group of
persons has to be controlled by the State for the lofty
purpose enshrined in
Article 21
of the Constitution. It is
the duty of the State to create a climate where the
cleavage between members of the society belonging to
different faiths, caste and creed are eradicated. The
State must act in time so that the precious lives of the
people are not destroyed or threatened. Otherwise,

Article 21
will remain a paper guarantee. Time is long
overdue for adopting measures that have more than a

W.P.(C) No.15239/2004 Page 134 of 157

hortatory effect in enforcing
Article 21
of the
Constitution. The State cannot adopt a "do nothing
altitude". Like disease prevention, the State must take
every precaution, measure and initiative to prevent
terrorem populi of the magnitude represented by 1984
riots and in the event of an outbreak of riots it must act
swiftly to curb the same and not allow precious time to
slip by, as any inaction or passivity on its part can
result in loss of precious life and liberty of individuals
amounting to violation and negation of
Article 21
of the
Constitution. The State has to enforce minimum
standards of civilized behavior of its citizens so that the
life, liberty, dignity and worth of an individual is
protected and preserved and is not jeopardised or
endangered. If it is not able to do all that then it cannot
escape the liability to pay adequate compensation to
the family of the person killed during riots as his or her
life has been extinguished in clear violation of
Article
of the Constitution which mandates that life cannot
be taken away except according to the procedure
established by law. "

It is noteworthy that in para 25, the learned Judge in

Bhajan Kaur‟s case, was of the view that the judicial trend is to

award substantial compensation for illegal extinction or

deprivation of life and liberty.

212. I had also occasion to consider a claim for compensation

for injuries and loss suffered by the petitioner in the 1984 riots

in Delhi in the aftermath of the assassination of late Smt. Indira

Gandhi in which members of one community were targetted.
In

the judgment reported at 120 (
2005) DLT 156 Manjit Singh

Sawhney vs. UOI & Ors.
, placing reliance on the principles

laid down in
the aforenoticed pronouncements, it had been

observed as follows :-

"20. The award of monetary relief to the victim for
deprivation of fundamental right is to be guided by the
aforestated principle requiring the state to make
monetary amends under public law for the wrong done
due to breach of the public duty of not protecting the
fundamental rights of the citizens. This computation is
not guided by any strict arithmetical formula and it has

W.P.(C) No.15239/2004 Page 135 of 157

to be borne in mind that money cannot remove the
trauma and the battering suffered by a victim."

213. The observations of the Supreme Court in
AIR 1981 SC

487 Ajay Hasia vs. Khalid Mujib Sehravardi & Ors.
are also

classical and topical on this aspect and shed light on the issue

under consideration as follows :-

"Where constitutional fundamentals vital to the
maintenance of human rights are at stake, functional
realism and not facial cosmetics must be the diagnostic
tool, for constitutional law must seek the substance and
not the form..... It must be remembered that the
fundamental rights are constitutional guarantees given'
to the people of India, and : are not merely paper hopes
or fleeting promises and so long as they find a place in
the Constitution, they should not be allowed to be
emasculated in their application by a narrow and
constricted judicial interpretation. The Courts should
be anxious to enlarge the scope and width of the
Fundamental Rights by bringing within their sweep
every authority which is an instrumentality or agency
of the Government or through the corporate personality
of which the Government is acting, so as to subject the
Government in all its myriad activities, whether
through natural persons or through corporate entities,
to the basic obligations of the Fundamental Rights."

214. It is a well settled principle of interpretation of the

constitution as well as statutes that the same have to be read

keeping the societal changes and growth. Law must change to

keep pace with the on going developments and new rights may

have to be found out within the constitutional scheme. (Ref :

(
2003) 6 SCC 1 Kapila Hingorani vs. State of Bihar
(para

60 at page 30). The imperative necessity to take recourse to

take such interpretative changes by the courts has resulted in

the expansion to the right to life ensured under
Article 21
of the

Constitution of India.

The court relied on earlier judgments and reiterated

that the first duty of the court is to do justice. In para 62, the

W.P.(C) No.15239/2004 Page 136 of 157

Supreme Court also declared that the right to development in

the developing country is itself a human right.

215. The duty to ensure constitutional rights rests not only

on the Supreme Court or the High Court in exercise of

jurisdiction under
Article 32
and
but would be the mandate

of every court and its essential judicial function. The claims

in the present cases have to be adjudicated on these principles.

216.
In
P.K. Koul
(supra), a specific order was passed on 15th

October, 2003 in W.P.(C) No. 6551/2003 by this court to decide

the petitioner‟s representation dated 16th January, 2003 seeking

permission to continue to retain the quarter. Without

meaningfully complying with this order, the respondents have

taken recourse to the proceedings under the
Public Premises

(Eviction of Unauthorised Occupants) Act, 1971
. Such a

decision of the respondent patently violates the petitioner‟s

basic human rights and constitutional guarantees noted

hereinabove. Other petitioners have also made similar

representations on which orders have not been passed by the

respondents.

217. Smt. Phoola Raina who is the petitioner in W.P.(C) No.

15698/2004 is the wife of late Sh. T.N. Raina who expired in

harness on 4th August, 2001. She and family were dependent on

late Shri T.N.Raina and residing with him in the allotted

quarter. The respondents have been unable to rehabilitate this

legal heir who is also a Kashmiri displaced person and if forcibly

evicted from the premises in her possession, she has nowhere to

go. It is contended by Phoola Raina that the meager pension

she is receiving is her only source of income which is

W.P.(C) No.15239/2004 Page 137 of 157

insufficient to even bear the expense of food for her family

members. The writ petitioner has also placed reliance on SR-

317 B-25 of the allotment of Allotment of Government

Residences (General Pool in Delhi) Rules, 1963. In view of the

above discussion, it is clearly evident that so far as her claim is

concerned, the same fundamental and human rights as those of

the other writ petitioners are involved and she is entitled to the

same relief and consideration as the others.

218. The petitioners in the present cases have complained of

violation of their right to life in their home state. This situation

has come to be despite the 1984 riots, which mark an

unfortunate watershed in Indian history, when examined from

any aspect. The threatened breach of primarily of their right to

shelter, a basic human right and an integral part of the

guarantee under
Article 21
of the Constitution of India, even at

their displaced location at the hands of the respondents has

compelled invocation of this court‟s extra-ordinary jurisdiction

under
Article 226
of the Constitution.

219. The pleadings in the case would show that there is no

dispute to the facts pleaded by present petitioners. There

cannot be and there is not even a suggestion that the right to

shelter of the petitioners in their home state has been abridged

by any procedure established by law. Such infraction of their

rights is purely on account of the inability of the respondents to

discharge their constitutional obligation; duty and responsibility

of protecting the life and property of the petitioners.

The respondents have a positive duty to provide basic

necessities to its citizens. It certainly defies commonsense and

W.P.(C) No.15239/2004 Page 138 of 157

all notions of human dignity to permit the respondents to

exclude such facilities as bare shelter which is essential and

necessary to encourage the self respect and dignity of these

displaced persons in a human manner consistent with well

recognized modern standards thereof.

The courts have a constitutional duty and international

legal obligations to ensure the right of every person to be free

from want of basic essentials.

220. The above discussion would show that there cannot be any

dispute about the nature of and protection of the right of the

petitioners. However, the manner in which it is to be enforced

against the respondents deserves consideration.

221. The instant cases relate to a unique situation. It has been

repeatedly stated by the Supreme Court that in case of violation

of the right to life and personal liberty, the court is not helpless

to grant relief and should be prepared to forge new tools and

devise new remedies for the purpose of vindicating the most

precious of the precious fundamental right to life and personal

liberty. (Ref.: (1981) 1 SCC 627: AIR 1981 SC 928 Khatri &

Ors. Vs. State of Bihar & Ors.).

222.
In (1991) 4 SCC 584 :
AIR 1992 SC 248 Union

Carbide Corporation Vs. Union of India
, it was stated by the

Chief Justice Ranganath Misra that "we have to develop our own

law and if we find that it is necessary to construct a new

principle of liability to deal with an unusual situation which has

arisen and which is likely to arise in future.......... there is no

reason why we should hesitate to evolve such principle of

W.P.(C) No.15239/2004 Page 139 of 157

liability..........".
The observations of Venkatachaliah, J (as his

Lordship then was) in this case who had rendered the leading

judgment in the Bhopal Gas case with regard to the courts'

power to grant relief are the same.

These principles have been reiterated in AIR 1993 SC

1960 Smt. Nilabati Behera alias
Lalita Behera Vs. State of

Orissa & Ors
.

223. The jurisdiction of the court to mould the relief so as to do

justice to a party complaining of infringement of Chapter III

rights is wide and requires to fit the contours of the right which

is violated. It is essential, therefore, that while adjudicating on

the questions raised, the relief to be granted has to be moulded

keeping in mind the unique challenges laid and the claims made

in these petitions.

224. In (1987) 1 SCC 395 M.C. Mehta vs. UOI & Ors., the

court expanded on the jurisdiction and obligation of the court to

mould a new relief in the following terms :-

"3. .......It may now be taken as well settled that

Article 32
does not merely confer power on this Court to
issue a direction, order or writ for enforcement of the
fundamental rights but it also lays a constitutional
obligation on this Court to protect the fundamental
rights of the people and for that purpose this Court has
all incidental and ancillary powers including the power
to forge new remedies and fashion new strategies
designed to enforce the fundamental rights. It is in
realisation of this constitutional obligation that this
Court has in the past innovated new methods and
strategies for the purpose of securing enforcement of
the fundamental rights, particularly in the case of the
poor and the disadvantaged who are denied their basic
human rights and to whom freedom and liberty have no
meaning."

W.P.(C) No.15239/2004 Page 140 of 157

225. The Supreme Court has categorically held in (
1996 ) 9

SCC 300 J.P. Ravidas & Ors. vs. Navyuvak Harijan

Utthapan Multi Unit Industrial Coop. Society Ltd. & Ors.

that any contract or action which is opposed to constitutional

animation is void. The court as custodian and protector of

fundamental and basic human rights has a sacred duty to deter

breaches thereof.

226. It is also well settled that it is not only the right of the

litigants, but also the duty of the court to not only enforce

fundamental rights but also award compensation against the

state for violation of those rights. In other words, 'the power of

the court is not only injunctive in ambit, that is preventing the

infringement of a fundamental right but it is also remedial in

scope and provides the relief against the breach of the

fundamental right already committed.' (AIR 1989 Mad. 205
R.

Gandhi vs. UOI & Anr.
(supra)

227. On the aspect of appropriate compensation for established

breaches of fundamental rights, reference can also usefully be

made to the observations of the Division Bench of this court in

the judgment reported at 2001 (
1) JCC Delhi 57 Government

of NCT of Delhi vs. Shri Nasiruddin (Father
of deceased

Mohd. Yasin) to the following effect :-

"21. It is true that perfect compensation is
hardly possible and money cannot renew a physique
frame that has been battered and shattered, as stated
by Lord Morris in West v. Shephard (1964) AC 326.
Justice requires that it should be equal in value,
although not alike in kind. Object of providing
compensation is to place claimant as far as possible in
the same position financially, as he was before
accident. ....... Compensation awarded should not
be inadequate and should neither be
unreasonable, excessive, nor deficient. There can

W.P.(C) No.15239/2004 Page 141 of 157

be no exact uniform rule for measuring the
damage."

228. In the present cases, the petitioners have complained of

grievous violence to their lives and properties and the admitted

helplessness of the respondents to protect the same. We are

concerned with forced ouster, though not by the State, but

which is a direct result of the inability of the state to protect the

life and property of a class of its citizens resulting in their

forced displacements. The petitioners are now threatened with

compulsive eviction from their occupied quarters without any

alternative despite the threats to their lives in their home state.

The UN Commission on Human Rights has unequivocally stated

that forced evictions are a gross violation of human rights. The

International Community has long recognised forced eviction as

a serious matter and it has been reported repeatedly that

clearance operations should take place only when conservation

arrangements and rehabilitation are not feasible, relocation

measures stand made.

229.
In (
1990) 1 SCC 328 S.M.D. Kiran Pasha vs.

Government of A.P.
, the Supreme Court had observed that a

writ petition would be maintainable under
Article 226
of the

Constitution of India also when a right under
Article 21
is

threatened as contradistinguished from the right when it is

infringed. In para 21 at page 342 of the report, the court held

as follows :-

"21. In the language of Kelsen the right of an
individual is either a mere reflex right-the reflex of
legal obligation existing towards this individual; or a
private right in the technical sense -the legal power
bestowed upon an individual to bring about by legal
action the enforcement of the fulfillment of an

W.P.(C) No.15239/2004 Page 142 of 157

obligation existing toward him, that is, the legal power.
From the above analysis it is clear that in the instant
case the appellant's fundamental right to liberty is the
reflex of a-legal obligation of the rest of the society,
including the State, and it is the appellant's legal power
bestowed upon him to bring about by a legal action the
enforcement of the fulfillment of that obligation
existing towards him. Denial of the legal action would,
therefore, amount to denial of his right of enforcement
of his right to liberty. A petition for a writ of habeas
corpus would not be a substitute for this enforcement."

(Emphasis supplied)

These principles have been reiterated by the Apex Court

in (
2003) 6 SCC 1 Kapila Hingorani vs. State of Bihar
.

230. These judicial concepts have evolved from conservative

and traditional judicial systems and concepts. Legal

interpretation as well as judicial pronouncements lean towards

providing for the social needs of society and societal

developments.

In this background, the objection of the respondents that

the petitioners are disentitled to relief is devoid of legal merit.

231. In view of the harm inflicted by a third party against

which the state could offer no protection in the present cases, a

positive obligation is also imposed upon the state to compensate

the petitioners in reparation of the effects of the harm caused

by the third party. It remains a fact that the State's inability to

secure the life and property of the petitioners compelled them

to flee their homes. The same inability prevents the petitioners‟

return to their homes.

232. So far as compensation is concerned, it is again well

settled that the same would not be monetary alone. Principle 18

of the Guiding Principles for IDPs as set out by the UN

mandates that competent authorities shall provide internally

W.P.(C) No.15239/2004 Page 143 of 157

displaced persons with and ensure safe access to essential food

and potable water, basic shelter and housing, appropriate

clothing, essential medical services and sanitation etc.

Resettlement and reintegration are an essential part of the

rehabilitation of IDPs. They have the right to participate fully

and equally in public affairs at all levels and are entitled to

equal access to public services in the part of the country where

they are resettled. Principle 29 mandates when recovery of the

property and possessions which the IDPs left behind or were

dispossessed of upon their displacement is not possible, they are

entitled to be provided appropriate compensation or another

form of 'just reparation'.

233. Reference can usefully be made to the observations of the

Constitutional Court of South Africa in (2001) 3 LRC 209

Government of Republic of South Africa & Ors. vs.

Gootboom & Ors. wherein the court observed as follows :-

"93... this case shows the desperation of
hundreds of thousands of people living in
deplorable conditions throughout the country. The
Constitution obliges the state to act positively to
ameliorate these conditions. The obligation is to
provide access to housing, health care, sufficient
food and water, and social security to those unable
to support themselves and their dependants. The
state must also foster conditions to enable citizens
to gain access to land on an equitable basis."

234. There can be no dispute at all that whether it be a jhuggi

or mud built thatched house or a mansion considered in

Shantistar
(supra), without security of limb and life as well as

the property, no enjoyment thereof is possible. In order to be

meaningful, the shelter which is envisaged has to be in an

environment which is safe and secure, not only from the

W.P.(C) No.15239/2004 Page 144 of 157

elements, but from the larger threats and dangers which have

been created by mankind.
Even if the respondents were in a

position to provide shelter in the home state of the petitioners

as envisaged in the affidavit filed in J.L. Koul (supra), in order

for such right to be meaningfully enjoyed, it has to be ensured

that there is peace within the community and the state; that its

law enforcement agencies are able to ensure that the

constitutional guarantees and protections of the citizens are

fully secured.

235. The respondents are not in a position to facilitate the

return to their homes for the petitioners. Even if the petitioners

were to so return, the respondents are not in a position to state

they could protect and guarantee their safety and security. The

respondents do not even remotely suggest that they could get

restitution to the petitioners of their properties which had been

left behind in the Kashmir valley.

236. The Supreme Court has also prescribed different reliefs in

cases involving breaches of constitutional rights. In Municipal

Council Ratlam Vs. Vardichan & Ors.(supra), the Supreme

Court was of the view that punitive action in the given facts was

the remedy which was effective to ensure the essence of the

right involved.

237.
In
National Human Rights Commission vs. State of

Arunachal Pradesh Anr.
(supra), the court had directed the

state to ensure that the life and personal liberty of each and

every Chakma residing within the Government of Arunachal

Pradesh, the state was protected and any attempt to forcibly

W.P.(C) No.15239/2004 Page 145 of 157

evict or drive them out was repelled in view of the violations

and threat to their lives.

As noticed above, in para 13 of
Nilabati Behara @ Lalita

Behura Vs. State of Orissa
(supra), the court had moulded

relief by granting monetary compensation in view of the failure

to protect fundamental rights of the persons. In fact the court

held that the refusal to pass orders for compensation would be

doing lip service and that the court was under an obligation to

grant relief (para 37).

In 1997 (
1) SCC 416 D.K. Basu vs. State of West

Bengal
, the Supreme Court emphasized a justice oriented

approach which was responsive to the needs of the society. The

court had also granted monetary compensation for violations in

this case.

Denial of wages was the consideration and relief moulded

appropriately in
Kapila Hingorani Vs. State of Bihar

(supra).

238. Compensation to these petitioners which could be

considered appropriate and perfect thus would have to include

comprehensive resettlement such as economic rehabilitation

and affordable housing schemes which have been clearly

envisaged by the respondents. Several other measures towards

meaningful rehabilitation essential in terms of the Guiding

Principles have not even entered the respondents‟

consideration. The same has however not been possible so far.

This court cannot shut its eyes or judicial conscience or remain

oblivious to the stark realities.

W.P.(C) No.15239/2004 Page 146 of 157

239. The issues raised in the present case have arisen before

in the context of persons facing displacement on account of

development and infrastructure projects especially major river

valley projects.
In (2000) 10 SCC 664 :
AIR 2000 SC 3751

Narmada Bachao Andolan vs. Union of India
the Supreme

Court was concerned with the displacement of tribals as a result

of construction of the Sardar Sarovar Dam. In para 62 at page

702 of the SCC report the court held that if the displaced

persons were in a better position to lead a decent life enjoying

better amenities and facilities and earn their livelihood in the

rehabilitated location, their fundamental rights guaranteed

under
Article 21
of the Constitution would per se not be violated

by the construction of the dam and the resultant displacement.

This position was reiterated in (
2005) 4 SCC 32 Narmada

Bachao Andolan vs. UOI & Ors
.

240. In para 60 (pg 394) of (2004) 9 SCC 362 N.D. Jayal &

Anr. Vs. UOI & Ors., Rajendra Babu, J held that

rehabilitation of oustees of a dam is a logical corollary of
Article
of the Constitution and that the oustees should be in the

better position to lead a decent life and earn livelihood in the

new locations.

No reason at all as to why forcibly displaced persons as

the petitioners should not be similarly treated given the

violations of their constitutional rights.

241. Before this court, the petitioners are aggrieved by the

deprivation of their homes and property and the threat by the

respondents to evict them from the only shelter possessed by

them. Looked at from any angle, the respondents cannot avoid

W.P.(C) No.15239/2004 Page 147 of 157

their constitutional obligation of protecting the life and liberty

of the petitioners and ensuring shelter to these victims of

criminal acts who stand displaced from their home for no fault

of theirs, primarily on account of failure of the respondents to

protect their Constitutional rights. In case rehabilitation is not

possible then the respondents have no option but to ensure

meaningful and reasonable resettlement in the above terms. To

mitigate effects of the displacement from home, hearth and

property, the respondents are thus legally obliged to provide at

least reasonable shelter as part of the proportional

compensation to the petitioners for violation of their basic and

fundamental rights.

Such 'just reparation' would constitute part of "reasonable

compensation" and would be a step towards suitable

rehabilitation of the petitioners. Relief in these petitions has to

be so moulded.

242. It is now necessary to examine the contours and

parameters of the state responsibility.

243. Mr. Jatan Singh and Mr. R.V. Sinha, learned counsel for

the Union of India have urged at length that the petitioners

were fully aware about the fact that eventually they were to

retire from the Government service. The submission is that they

were required to have made their life plans and alternate

arrangements with this unavoidable event in mind.

244. The further contention is that, the government ensures

adequate financial security to retiring employees, who have the

benefit of pension as well as other retiral benefits which run

W.P.(C) No.15239/2004 Page 148 of 157

into several lakhs of rupees including gratuity, provident fund

etc. and nothing further can be expected of the respondents.

245. Pension, gratuity and other retiral benefits are not

unique to the petitioners, but are available to every person who

retires from the service of the country. What distinguishes

these petitioners is the fact that they have been placed in a

unique position and are unable to return to their homes as a

consequence of the inability of the State to discharge its

constitutional obligations.

246. The question still remains as to whether the pension and

the monetary retiral benefits could be "adequate compensation"

for the infringement of the petitioners indefeasible rights to life

and due discharge of the constitutional obligation of the State.

The answer clearly has to be in the negative.

247. We are here concerned with the entitlement of shelter to

IDPs. So far as the nature of the development which would

meet the guarantee of shelter and ensure a life of dignity to the

person concerned, in para 9 of the pronouncement reported at

(
1990) 1 SCC 520 Shantistar Builders Vs. Narayan

Khimalal Totame & Ors.
, the Supreme Court had observed as

follows:-

"9. Basic needs of man have traditionally been
accepted to be three-food, clothing and shelter. The
right to life is guaranteed in any civilized society. That
would take within its sweep the right to food, the right
to clothing, the right to decent environment and a
reasonable accommodation to live in. The difference
between the need of an animal and a human being for
shelter has to be kept in view. For the animal it is the
bare protection of the body; for a human being it has to
be a suitable accommodation which would allow him to
grow in every aspect - physical, mental and intellectual.
The Constitution aims at ensuring fuller development of
every child. That would be possible only if the child is in

W.P.(C) No.15239/2004 Page 149 of 157

a proper home. It is not necessary that every citizen
must be ensured of living in a well- built comfortable
house but a reasonable home particularly for people in
India can even be mud-built thatched house or a mud-
built fire-proof accommodation."

(Emphasis supplied)

Undoubtedly, so far as the reasonableness and adequacy

of the measures which the respondents are required to take,

must meet the principles
laid down in
the aforenoticed

pronouncements of the courts, the international conventions,

the standards in the guiding principles for IDPs and ensure the

rights of the petitioners.

248. The above International instruments and Guidelines for

IDPs provide not only for the right to adequate shelter and

housing services but also refer to access to land on equitable

basis to all. They recognise and cast a positive obligation on the

state i.e. the respondents, to take other reasonable measures

possible to ensure complete realisation of the right to adequate

housing of the petitioners. It is evident that the respondents

cannot avoid their responsibility and duty to ensure that the

aforenoticed basics to the petitioners. These are the principles

which had to guide the consideration of the issues which were

before the respondents and have been raised in this bunch of

writ petitions.

249. The claim for shelter in these writ petitions is thus

pressed as part of the compensation for the violation of the

petitioners rights. The petitioners seek directions to the

respondents to permit them to occupy the premises in their

occupation till such time the respondents are able to discharge

their constitutional duty of protecting the lives and property of

W.P.(C) No.15239/2004 Page 150 of 157

its citizens and providing them permanent residences. In

similar cases, the Supreme Court and this court has permitted

the displaced persons to continue to occupy the occupied

quarter. Order to this effect stand passed by the Central

Administrative Tribunal as well. The respondents have

permitted some of IDPs to continue with their occupation of the

allotted quarters after retirement. There is clearly no

justification at all for not permitting the petitioners to do so in

the given facts and circumstances.

Rights of dependants of deceased allottees.

250. There is yet another aspect of the matter. The petitioners

before this court include Smt. Phoola Raina, a widow of the

allottee. The respondents do not dispute that she was a

dependant of the allottee and that she is also an IDP. It is also

not the respondent‟s case that she is a person of means who is

living in Delhi in circumstances which are different from those

of the others from her home State. There is no material to show

that this petitioner has any alternative shelter under the

schemes and policy of the respondents or has been adequately

compensated.

251. So far as the claimed rights or the violations urged by

Smt. Phoola Raina are concerned, other than a bald plea that

she was not the allottee, the respondents are unable to point out

any distinction from the other petitioners. The respondents do

not state that she can safely return to any residence in the

Kashmir valley. It is also not averred that this petitioner owns

any property into which she could shift. It is not even suggested

W.P.(C) No.15239/2004 Page 151 of 157

that there is any difference in the constitutional rights or

scheme between her and the other petitioners. Not a single

circumstance which could disentitle this petitioner to grant of

relief against the threatened eviction and violation of her

constitutional rights has been placed or made out in the case.

Till such time that the respondents are able to meaningfully and

reasonably rehabilitate this petitioner, her forcible eviction

under the shield of statutory process is also without any doubt

constitutionally impermissible.

252. As noted above the respondents have admittedly made

discretionary allotments in favour of persons who are not

Government servants. It is not explained as to why such

discretion could not be exercised in favour of this petitioner.

Certainly permitting such a dependant of the deceased allottee

to continue to occupy the accommodation under occupation till

alternate shelter was made available would not violate any rule

as well. The same would clearly be in consonance with the

constitutional mandate and the principles which emerge from

the several judgments noticed above. It is clearly evident that

such a dependant would be permitted to continue to occupy the

allotted accommodation till such time that the respondents

meaningfully resettle and rehabilitate the IDPs or they acquire

their own alternatives or if the respondents are able to show

that they have the means to make alternate meaningful and

reasonable arrangements.

Conclusions

W.P.(C) No.15239/2004 Page 152 of 157

253. In view of the above discussion, absent any alternative;

the admitted failure of the respondents to protect the

constitutional rights of the petitioner and the threats which

subsist in case they were compelled to return to their State;

given the arbitrary and wrongful failure to exercise the

discretion under the SR-317 B-25 of the Allotment of

Government Residences (General Pool in Delhi) Rules, 1963 in

favour of the petitioners; the drastic violation of the

fundamental and basic human rights of the petitioner which

results upon such implementation of the statutory provisions;

keeping view the schemes of rehabilitation and resettlement of

Kashmiri migrants of the respondents, and also the several

judicial precedents and administrative orders in respect of

similarly placed persons, the action of the respondents in

treating the petitioners as unauthorised occupants and

proceeding against them under the
Public Premises (Eviction of

Unauthorised Occupants) Act, 1971
was completely misdirected

and unwarranted.

254. It is evident that the learned appellate courts in the

appeals also adopted a hyper technical approach ignoring the

serious violation of constitutional rights which has resulted to

the petitioners and the drastic consequences of rendering them

homeless which results on implementation of the eviction order.

The constitutional rights of the litigants are not only well

established but are without any limitations. The orders do not

indicate that the several important questions raised by the

petitioners were deemed to deserve an adjudication including

the manner in which superior courts had dealt with similarly

W.P.(C) No.15239/2004 Page 153 of 157

situated displaced persons. The learned courts paid no

attention to the declared policy of resettlement and

rehabilitation of Government or the constitutional rights and

guarantees which all courts are bound to enforce.

255. The action of the respondents in denying favourable

consideration of the request to continue to occupy the quarters

suffers from the vice of discrimination and arbitrariness. The

decision to treat the petitioners as unauthorized occupants and

proceed against them under the
Public Premises (Eviction of

Unauthorized Occupants) Act, 1971
as well as the impugned

orders are in violation of the constitutional guarantees and

basic human rights of the petitioners, and do not show

application of mind to relevant material or consideration

thereof. The impugned decision to cancel the allotments, the

action under the Public Premises Act;; and the impugned orders

of the Estate Officer and the appellate orders are

constitutionally and legally not sustainable.

256. The special leave petition in J.L Koul (supra) was filed

in 1997 and the rehabilitation scheme was placed before the

court for the first time in 2006 which proceedings culminated in

the judgment dated 3rd December, 2008 after twelve years.

Adjudication was still necessitated in
P.K. Handoo vs. Estate

Officer
(supra) decided on 2nd August, 2006;
M.K. Koul

(supra) decided on11th April, 2008.
I find that the Central

Administrative Tribunal had passed a detailed judgment on 30th

December, 2002 in OA No. 2378/2002 entitled Tej Kishan vs.

UOI. In all these cases by final adjudications, the petitioners

have been permitted to continue with occupation of the quarter

W.P.(C) No.15239/2004 Page 154 of 157

concerned. Despite the proceedings and judgments in the

abovenoticed matters, the respondents have still proceeded

against the petitioner in the manner noticed above.

257. Instead of facilitating the resettlement and rehabilitation

of the petitioners who are internally displaced persons as per

the declared policy, they have arbitrarily been exposed to the

additional trauma of the threat of forcible evictions and the

uncertainty and insecurity of seeking the adjudication by

pursuing litigation. In these circumstances, the petitioners are

entitled to exemplary costs from the respondents inasmuch as

the threat of forcible eviction by the process resorted to by the

respondents impacts the fundamental rights of the petitioners.

258. In this background, while allowing the writ petitions and

having regard to the number of the petitions which have been

unnecessarily generated and the lack of material with regard to

the persons responsible for the unfortunate decision making,

only the litigation costs of the present cases are being awarded.

259. It is essential to make it clear that it is only in the

peculiar fact situation of the present cases and the extreme

hardship of the petitioners involving violation of the

fundamental rights and human rights of the citizens of India

that such continued occupation of the public premises by the

petitioners has to be permitted. No inference can be laid that

any person not having a property of its own or not having

suffered the violations aforenoticed can or has been permitted

to continue to indefinitely occupy the public premises.

Therefore, the principles laid down in this judgment would bind

only a fact situation as in the present case or similar

W.P.(C) No.15239/2004 Page 155 of 157

circumstances when the State has been unable to protect the

fundamental and basic human rights of its citizens compelling

them to be displaced from the place of their residence and is

not in a position to ensure their safety or security in case they

return to the place of their residence.

Result

In view of the above discussion, it is directed as follows

(i) The impugned orders cancelling the allotment of the

petitioners; the orders of eviction passed in the proceedings

held against the petitioners under the
Public Premises (Eviction

of Unauthorised Occupants) Act
and the appellate orders which

are detailed in para 13 are hereby set aside and quashed.

(ii) A direction is issued to the respondents to make all

endeavours to adequately, effectively and reasonably

rehabilitate and resettle the petitioners, making provisions for

appropriate accommodations for them.

(iii) Till such time, the respondents are able to provide

alternative accommodation to the petitioner and his/or her

family anywhere in Delhi, the petitioners shall be allowed to

retain and occupy the allotted accommodation (also detailed in

column no. 2 of para 13 above) subject to payment of normal

license fees.

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

Rs.25,000/- which shall be paid within a period of six weeks

from the date of passing the order.

These writ petitions are allowed in the above terms.

CM Nos. 11011/2004, 11013/2004, 11026/2004,
11029/2004, 736/2006, 11016/2004, 11044/2004,
11050/2004, 11444/2004, 1557/2006, 2379/2006,

W.P.(C) No.15239/2004 Page 156 of 157

10547/2007, 13421/2007, 15540/2008, 16497/2008,
16449/2008, 16501/2008, 5796/2009, 7654/2009,
10986/2009, 11351/2009, 11242/2009, 11244/2009 &
11246/2009

In view of the orders passed in the respective writ

petitions, these applications do not require further adjudication

and are disposed of accordingly.

(GITA MITTAL)
JUDGE

November 30, 2010.

aa/kr

W.P.(C) No.15239/2004 Page 157 of 157