YOGINDER SINGH JAMWAL v. UOI & ANR

another if as regards the subject mat[er of the

legislation their position is the same.. IL is se[tled law

that a judicial or quasi judicial"decision cannot offencl

ArLicle 14.

12.

72. Learned tiu

In tlre result, I allow the writ petition in teruns of the order passed bv the ,Apex Couu't in tlae case of [.X,. I{or.ttr Vs. State of tatnmw and Kas.ftmir dsuprar. petitioner to retain Quarter No.D-845, Mandir Marg. hTew Delhi, pendinq decision in SLP @ No.7369/2007. sub-iect to payment of norrnal licence fees or in the alternative the respondents maJr provide alternative acconrmodation to the petitioner and his family anlrwhere in Delhi till the pendency of the above said writ petition before the Hon'ble Suprerne Court. No cos'[s. "

(underlining supplied)

counsels tor the petitioners have also painstalcingly pointed out Lhe earlier sirni]ar directions rnade as back as on 3N' -Dpcemben 20oz by the central /x.dmimistratiure yrtnggnaltn a'4 No.2378/zoo2 entitled Tei r(isham vs. fuion ot [ltgta e o{s.on the same issue which have a]so been noticecl w.P.(C) No.75239/2004 Page 62 of 157

63

",12. By referring to the letter dated 2.7.2002 wriLLen to the DDrA, by the lvlinistrv of Urban Devenopment c Porffiaileya

decided as under:-

"......81rt the situation prevailinO in T&I( is such bhat does not permit the safe return of these retired/retiring Central Government' employees who . can settle after retirement at their native place. I(eeping bhis baclcground in view, a decision llas been

talcen to allot abouL 100 MIG and LIG Flats in Dwarha to such retired/retirincr J&K rnigrant Central Government employees so that the Central Pool

Accommodation coulcl be gob vacated from thern.

DDA is, therefore, requested to formulate a housing

scherne for retired/retiring J&K migran[ Central

Gbvernrneirt employees and send a drafb thereof to

this Ministry within a fortnight for approval."

(Underlining supplie d)

73. In the al:ove . judgment, the central Achninistral.ive Tribunal also ol:served on violation of Article j,4 by Lhe responclents holding that ;the state shall not Jry iLs act discrirnina[e as between two individua]s who are similarlv W.P.(C) No.75239/2004

\

Page 63 of 157

74. I have.had occasion to deal with a similar issue in a juclgnrent clatecl th,i X.L'h of ,April. 20OE renderecl rn W.F.(C) Wn-\OOS(ZOOZ tul.t<" lcout Ys. tlnion of, India & Ots. In this case alsci the petitioner was a retired Kashrniri employee of Lhe Central Governrnent who coulcl riot return to l(ashmir for the same reason as Lhe petitioners. Proceeclings for his eviction were also iniLiated by the respondents under the Pul:lic Premises (Eviction of unauthorised occupanLs) Act, 't97r. During the course of hearing orr 7th April, 2008, a quely was pr-rL to counsel for the respondenb in tiris case in respect of the position wiLh regard to the safety and securiLy of the Kashrnirj Panclits in the vaJley. The position was revealed [o be the same as lrefore. In para L4 of the saj.cl judgrnent, consequently ib was recofclecl that^" tl;e respond.ents at'e not itt a position to eilsure their safety and protection and as syclt, in case they are displaced fi'ont the accomntodation wltich .they are occttpying, tltey wiII not be itz a position to return to tlteir respective hontes in the Kashtnit'valley'' .

Consecluently, the following directions were issued:-

"L5.. Im tlfis bachqrrourtd, the respondents

13

tted to tlte r's

^,M*uo**t^or" to *nforce the euiction oider *trticnt Irps beeil vassed aqainst the petiffi &* e*nA""r* fr"t" tne ictrt thev are

occwpuims,uuuttMV-x[tq,

16. There is no doubt, that the petitioner was making paymenb of the normal licence fee while he was' in service. Interest of justice and equity merit Lhat the petitioner be requiiecl to rnake dalrrnent of is till such time as the

Page 64 of t szW.P.(C) No.75239/2004

65

The respondenLs are directed [o permi[ the

. petitioner to continue to occupy the Quarl.er No.N- 299, Sector-8, R.K. Puratn, New Delhi subject^to pa5rrnent of the same licence fee as was being paid by the petibioner on the date when he rebired.^This order shall continue to operate till such time as the respondents provid.e . sirnilar al[ernal,ive accommodation [o the pe[itioner, or the peti.bioner accluires any resiclential property in his name. This writ petition is allowecl in bhe above terms. . There shall be no order as to costs."

(Emphasis supplied)

. It is noteworthy that Lhese orders have nol, been assailecl and have attained finality.

75. IL is urged by learned counsel for the respondenl,s that failure of the Government of India to. challenge the orders passed in WP(C) No.LL742/2O05 emtitled F.n{.Idandoo v/. Esta$e hf,ficer & Anr.; WP (C) 1Vz.1.065/2OO7 enffiiled M.K.lkun v. uor & ors. and the other cases are irnmal,erial and would have no bearing on the instant case. Reliance is placed on the pronouncement of the Apex courL reporLecl a[ (2006) M SCC 7Og CoI. ts.t. Akkara n/s. Governntertt of .tmdia & Ors. in support of this submission.

76. It is noteworthy that CoI. BJ. .AkXrara's case (sultra) relatecl to efforts of the G.overnment to recover paymen[ of excess amount as pension. Certain orders sbood passbd in []le writ pebi[ion filed by oLher employees who hacl raisecl a similar challenge. These orders had nob l:een chalienged by [he Governrnent. In this bachgrouncl, tlr.e petitioner hacl.contenclecl that the Governmenb was estoppecl from recovering the arnounb W.P.(C) No.75239/2004 Page 65 of 1 5T

66

from. hinr in view of th.ose orders which had attaiued finali[y. The Apex Court rejected the contentlons and held [hat^the Union of Inclia woulcl not be barrecL from resisting Lhe subsequenL writ petitions involving similar issues or challenging subsecluent judgments of the High Court realising Lhe seriousness or rnagniLude of the issues or financial implications. The position woulcl l:e clifferent only if it is established thaL the Governmen[ had adopted a pick and. choose meLhod only to avoid relief to the petitioner on account of mala ficle or ulterior rnotives. It was helcl that principles of estoppel, res juclicata, iegitimate expecbation ,or fairness in action were not attractecl on the facts of the case.

lVo plea of violation of funclamental rights was involvecl in Akkeira's :as.e (supra). There can be no cornparison with. the 'facts of Akkara's case (supra)with those of the present cases.

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

cancellation of allottnents and action under tlte puJsfic prernisw AcL 1971

78. Mr. JaLan singh, learnecl counsel appearing for:

qespondent No.L has contencled that tire clecision to cancel W.P.(C) No.75239/2004

!

the

the

'.-*'lll--'

Page 66 of 157

allotrnents and to initiate the proceedings under the Public Premises Act, l-97i. as well as the orclers of the Estate Officcr and the judgmenLs of the Appellabe Court are in tertns^of ' staLutory provisions cannot l:e assaitecl by way of th.ese writ petibions

Reliance is placed on the pronouncements' of this cour[ reportecl at (.L995) ILA,D Delhi 293 Union of, -[ttdia Vs. S.A{. ,A,EErarwal & 3n othets; 2OOO (55) DRtr 57 Btrtinn SinEh^Vs. Uafion of trndia &,4,nr.; A,nR 1.977 Delhi 268 .E{ardwari nan Veruna Vs. The Estate Officer & Ors. in sujrport.

79. This olrjection of the respondents ignores well seL[lecl first principles of law. Mereiy because the impugned. action is taken and order passed in .purported exercise of staLuLory power woulcl noL rencler it imrnune from judicial scrutiny. Th.e ques[ion as to manner in which such .ac[ion and orders viz-a-viz thei.r effect. on fundarnental rights witl be examinecl, stancls answerecl Jly tlre Suprerne Courl. tn ,4,.[R ngTE SC 597; @gZS) n SCC Z4g IVfatte/ra Gandhi W tlniom of hidia

^^,a oflIters. In this case,

[he court had made the following observations with regarcl Lo the inr.pact of action taken uncler provisions of Lhe Passporl, Act:-

"NorM, if the effecl, of SLate action on er :flundamental right is direct and inevitab]e, trren a .fortiorari, it must be presumed tb have been inLendecl by [he arithority taking the action and hence, this cloctrine of direct and indvi[able effec[ has been describecl bv ' solne jurists as the doctrine of intended and real effeci. This is the test which must be appiied for the purpose cif

determining whether section 10 (3) (c ) of the impugnecl order made under it is violative of ArLicIe l-9 (1)(a) or(s)."

80. The supreme court further ruled that il, is not necessary to assaii the constitutional validity of the sl,atutorlr provisions W.P.(C) No.75239/2004 Page 67 of t57

"Bu[ that does not mean that an orcler macle uncler Section 10(3)(c) ) rnay not violate Article 19(1)(a) or^(g). While ,dis,cussing the, constitutional vaiidity of^the

. impunged order impounding the passpor[ of [he petitioner, we. shall have occasion to point oub that ever where a statutory provision emrrowerinq an authority^to bal(e ac[ion rs.constrtutronalLy va.trcl., actron taKen under 1[ rnalr offend a fundamental riqht and in that event, thougth the statu[ory provision is vaIid., the action may ]re void. It is l,rue, and we rnusb s[raightaway conceded [hab mereiy because a statutory provision ernpowering arl author"ity to take action in specified circurnsLances is consl,iLuLionally valid as not being in conflict wiLh any fundamental rights, 'it does not give a .carte Jslanche to the authority to make any.order it likes so long as i[ is within the parameters laid down by the provision. Eve,fi offer nr.acle under a statutory provision mus[ not onl]r l:e wi[hin the authority conferred ]ry the statutorfr l:rovision, but mu Parliarnent cannot be presumed to have inLended^to confer power on an authority to act in contravention of fundamental lights. It is a l:asic constibutional ich the

damental'ri em to b'e elernent

.81-. In [he a]:ove case, the Supreme'Courl, held tha[ even though the impugned order was within the [erms of [he relevan[ section, "it rnust neverLheless, not contravene dnv ftindarnen[aI right;s and if it does, it would be void".

so far as bhe irresent case is concerned, even i'1. were to be helcl that the action talcen by the responclen'ts was permissible uncler the sLatutory provisions, but if it viola[ecl or adversely irnpactecl ftrndarnental rights of the petitioners, it would have [o be'voided. This objectign to the maintainabilibr of W.P.(C) No.75239/2004

assriml:tion underlying every statutory grrant of power shoulcl act constitutionall-rr and not in violation of anv and no authority is necessary in support of it."

(Underlinin g supplie d)

))

Page 68 of I 57

69

'7q l,ite present writ petitions is therefore rnisconceived ancl^is r:ejcctecl.

82. An exarnination of' the order of cancellation of the allotnr.ent requires to be unclertaken. The only rules reliecl ullotl in srLpport of the power to permit occupancy of [he cluarters^are tlne .4,Xno,tntent of Govenunept R.esidences (Genetan FooI im Detrl'tt)--XluleE-1963. Cancellation of the allo[menL has^been effecLed under these very rules.

. 83. The respondents have perrnitted the pe[itioners to occupy the same in exercise of power conferred on thern. IL is no[ [he responclents' case that the petitioners carne into possession of the quar[ers illegally or without authority. The occupancy is bbing Lreated as unauthorised by the responclents for [he reason that they have cancelled the allotmenl,s.

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

L971.. ,

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

"unau[hqlizecl occupation" as clefinecl uncler secLion 2(g) of Lire Fuhnic Frentises (Euiction of [-htawttrtotised occr"qtants) ,A,ct, n97L has to be construed.

' sectio' 2(g) of the saicl statute reads as follows :-

" 2(g) "unauth.orised occupatior:", in relation to any lrublic prernises, lneans the occul:ation by any persorl of the public premises withouL auLhoriiy foi stich bccupation, ancl includes tire continuance in occupal,ion J:y any person of the public premises afterLhe authority (whether by way of grant or any o[her mode of [ransfer) under which he was ailowed to occupy the premises, has expirecl or has

been deLermined for any reason rnrhatso6rrer.,,

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

70

deserve Lo be

1,g7L are concerned, Sec[ions 4 and 5 thereo f 7\ also consiclerecl. The relevant extract reacls thus:-

" 4. .[sswe of notice to sltow cawse agraittst order " of euictiort, - (1) If the estate officer is of opiriion that any persons are in unauthorised occupation of

. any p,rniic premises and that they should^be evict6d, the: Estate Officer shail issue in^the manner hereinafter provided a nobice in writing calling upon all persons concerned to show cause why an ord-er of eviction should not be made.

(2) The notice shall-

(a) specify th.e grounds on which the older^of eviction is proposed to be made;^and

(b) recluire all persons concerned, thaL is to say, all persons who are, or may be in occupa[ion of,^or claim interest in, the public premises,-

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

(ii) to appear before the Estate Officer on the^date specified in the notice along with [he evidence which they intend to produce in supporl. of^[he cause shown, and also for personal hearing, if such hearing is desirecl.l^,

XXXX

5. ,Euictiom of wnawtluotised @ecupan ts. - (1) I'f, after considering the cause, if any, shown by^any person in pursuance of a nobice under sec[ion⁴ and [any evidence produced ]:y hirn in support^of the sarne and after personal hearing, if any, given under clause (b) of sub-section (2) of section 41, the estate officer is satisfied that the public prernises are in unarithorised occupation, the estate officer 1nay make an order of eviction, for reasons to be recorded therein, directing. that. the public premises shall be vacabed, on such date as rnay be specified in the order, by all persons who rnay be in occupa[ion thereof or any part thereof,^and cause a copy of the order to be affixed on the outer door or soine other conspicuous par[ of the public prernises.

W.P.(C) No.75239/2004 Page 70 of I 57

71

(Underlinin g supplie cl)

87.^The preserit cases raise a perl,i1el[ qnestion^{as Lo} whether the cancellation of the allotrnents to the petitioners was justifiecl anci valicl and whether the pe[i[ioners' occtlpallcy thereaf[er could be brought within the meaning of^[he expression "unauthorised" under Section 2(g) of the Public Pre,mises Act, I97t.

BB, The statutory clefinition of the expression "utlattbhorisecl occupal.ion" in Section 2(g) of tlr.e Public Premises Acl., 1,97I thus requires juclicial interpretation for the purposes 'of Lhe present cases. In this regard the oft quoted Words of Justice P.N. BlragwaLi in (XgE7) I SCC 228 Natiorta.{ Textile Worlrers' [-Inion us. F.R. Rartuaktishnan would be apposite when it was statecl as follows :-

"We cannot allow the deacl hancl of the past to stifle the grow[h of the living present. Law canno[ s[and sbill : i'[ must change with the changing social concepts and . values. If the bark that protects the tree fails [o grow and expand along with the tree, it will either chohe the

tree or if it is a living tree, it will shed that bark ancr

grow a new ilving bark for itself. Similarly, if the law

fails Lo respond to the needs of changing socie[y, bhen

either i[ wil] stifle tire growth of tlre society ancl chohe

its progress or if the society is vigorous enough, it will

cast away the law which stands in the way of its

growth. Law rnust therefore constantly be on l,he m.ove

aclapting itself to the fast changing society ancl not lag

J:ehind."

W.P.(C) No.75239/2004

$o

Page 7l of 157

72

Fralft^il D. Desai ; (1997) 5 SCC 482 CXT Vs. .Foddar Centetat PW. X.td.; (20OO) E SCC 74O Easavara.f R. fuaffiX us. State of Karmatalra]. These principles have been noticecl n (1996)2 SCC 428 State us. S.j. Cltoudha4rald reacl as follows :-

' " (2) I[ is presumed t]rat Parliament in[ends the court to apply to an ongoing Act a consLruc'Lion tha[ continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be ti-eated as always speaking. This nteans in i[s application on any clat"e, the language of the Act, though necessarily embedded in its owtl tirne, is neverdreless to l:e construed in accordance with the need to treat it as cu::rent law."

' At page (618-L9), of bhe report, it is further noted thal.:-

"In construing an ongoing Act, the interpreLer is to presume that Parlianr.ent intended the Act bo be appliecl ab any future time in such a way as to give'effect to the . true original intention. Accordingly, the in[erpreter is to rnake allowances for any relevant changes that irave

occurled, since the Act's passing, in law, social

conditions,. "l.echnology, the meaning of worcls, ancl

. other mabLers. Jus'b as the US Constitution is regarclecl ' a.s 'a living Constitution', so an ongoing Brltish Act is regarded as 'a living Act'. That today's construction

involves Lhe supposition that parriarnent was cabering

long ago for a sLate of affairs that clicl not then exist ii

no argulnen[ against tirat consl"rucLioD. Parliarnent, in

the wording of an enactrnent, is expected to anticipabe

temporal developments. Trre drafter will try to foresce

l,he future, and allow for it in the worcling.,,

I'L was, therefore, ollserved that an ongoing Act is taken

to be always speaking stating that :-

W. P : (C)'N o.7 5 23 9 /20 0 4

"tr-- Page 72 of I 57

73

iUs lalguage as wiil now give effec[ l,o Lhe original

legislaLive inl,ention. The reality and effect of dynamic

processing provides the gradual adjustment- It^is

condtibuted by judicial interpretation, yeal: iD and yeal:

oub.. It also comprises processing by executive

bfficials."

_

. Thus, tlte courts have over the period of tirne eipplied this principle to interpret various terms ancl phrases inclucling

"stage carriage" has been interpreted to include "electric trarncar"; "steam. tricycle" to inclucle "locomoUive"; "telegrapJt"

to include "telephone"; "banker's book" to include "miclofilttt";

"to take no[e" to inc]ude "use of Lape recorcler"; "doclrments" l,o include "dal,a bases"; "ltandwriting" was construed. to include

"typewril,ing" $lef: 1996(2) SCC 428 State Vs. S"f"Ctrdaudneary]. 'Notice in writing" in SecLion :l-38 of the !

Negotiable Instrurnents Act, were construed l.o inclucle a

"nol-ice by fax". {Ref : (1.999) 4 SCC 567 Snn tunport USA Vs. Exitn A,ides Silnr Exporterc|. This princiirle of legal inLerpretation w0uld squarely apply to the construction to be placecl on the provisions of Public Prernises Act, L97 L.

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

91. The state authorities assessed the threat percep[ion ancl clanger to the lives to sorne of the petltioners who *uru boctily evacuatecl frorn their homes in the valley. The transfer of [he W.P.(C) No.75239/2004 Page 7j of I 57

"f

I

74

!

:

t 'l petitioners, (or thab of the persons on whon they^were clepenclent), to De1hi, which preceded [he allobment of quarl,ers, was thus compellecl by ,lu inability of the respondents^to proLect and ensure the righL to life of the petitioners. The^same was certainly involuntary. The aliotments were a result of [he extrerne necessity recoguisecl and acfiuclged by tlie ]:espolldell[s themselves. It is also .noteworthy that'those fleeing Lo safely had no opportunity to Secure or salvage their properties.

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

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

94. Tle petitioners have .been at the receiving end of bhe threats no[ only for the reason 'that they were from anoLher W.P.(C) No.75239/2004

ilt^'

Page 74 of I 57

75

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

96. It G also noteworthy that the affidavit filpct before^the Suprerne Conrt refers to a total paclcage of the Centr"al Government involvincr an outlalr of Rripees l-61-8.40 cr:ores.

97. . The affidavit of the Chief Secretary does nol, even refer to the u[ilisation of this huge amount of public money and the fate oI Lhe proposecl facilities. . There is nothing even before Lhis court which coulcl suggest that the facilities promisecl before the Supreine Court, have even corre into exis[ence.

98. The alLernativeis propounclecl. ancl the schemes per[aining to Kashmiri rnigrants noticed in the judgments of the supreme Courb and of bhis court remain in the realm of proposals ancl uninrplernenled schernes alone wilhout any element of reality or W.P.(C) No.75239/2004 Page 75 oi tSz

76

99. The pe[itioners ]rave been prevented. frorn resicling in [heir hornes in Jammu & I(ashmir for th.e reason bhat Lhe Sta[e^has bee:n unable to secure their lives or protect Lheir homes. In fac'L, the respondents .also admit their inabili[y to en.sn]:e plo[ecbi.on to the life and limb of the pe[itioners in case [hey were to return to the horne sta[e, leL a]one any measure of secr.rril,y for their continued residence in the place of their l:irl,h, in case they returned

1-00. On behalf of the respondents, it has been argued at length even in tlr.ese proceedings thaL []re Union of Inclia has forurulated a package for re[urn and rehabilitation of L]re displaced llersons. This by itself shows that the situation is nol, such that the pe[itioners are in a position to re[urn to [heir homes. The respondents are clearly unable to ensure protecLion to the lives of the petitioners and their'famiiies or security in their homes.

101-. Mr. Jatan singh, learned standing counsel for [he uol has placed reliance on the pronouncement of this court reportecl a[ w.P.(C) No.7523!//004 Page 76 of I 57

77

I02. IL neecls no elaboration that a judgrnenl" has Lo be exarninecl in the conl,ext of the factual mal,rix which it cleciiles.^- TIr.e juclgment reportecl at (L995) ILMD Denhi 2g3 Wtion aff htdia Vs, S.M, ,A,EEarwaI e 3X Others,.also reiiecl upon by Lhe respondents, was a case of evicl,ion of shopkeepers who were licencees in shops which were public prernises anct had failed [o show cause in answer to the notice issued by tlie Es[ate Officer. This case cannot be cornpared with the factual matrix noliced hereinabove.

103. The respond.ents have also placecl reliance on the pronouncernent of this,court reported at ,A,rR n g77 Delhi 26g Enatdwafi n"al veruma vs. The Estate off,icer & ors. wherein the court held that arl allottee of a Government queirter ls Page 77 of I 57W.P,(C) No.75239/2004

78

79

106. Despite this . hard reality, lhe represenbations, undertakings and promises of the Central Government,^upon retirenrenb, the allotrnents to the petitioners stand cancelled and they are being ashed tb vacate Governrneut accornrnoclation; obh.erwise they face the threa[ of erninenL forcible eviction therefrom pursuant to proceedings balcelr against thern uncler the Public Prernises (Evictioit of Unauthorised Occupants) Act, Lg7L

1,07.' The petitioners 1nay thereby be compelled bo reLurn [o l,he violen[ situation. where from they were evicbed/evacua[ed/or foi:ced to flee. Forcing bhe petitioners wlr.o are IDPs to re[urn to bhe area where they were persecuted violates th.e principle of non-refoulement which is the principle in inbernational law forbidding the expulsion of a refuge into an al:ea where such person mights be again subjected Lo persecul.ion. Tir.e responclents cannot be permitted, to on a hyper-technicai construction of statutory provision br arbitrary exercise of power to cr6ate a situation where the homeless petitioners are compellecl to return to l-he areas where they rnly face'violence ancl threaL Lo their life ancl libertv.

108.

The respondents haVe bhemselves recognised tlie enLitlernent of the .petitioners to appropriate resid.ence, when they rnade the alloLnlenl.s. The only reason aclvanced by the responclents for their clecision to cancel the allo[inenb ancl [o evict the fetitioners is that they have .retirecl. The relevanL factor as to flre developrnents in the state of Jarnmu & Kashmil W.P,(C) No.75239/2004 Page 79 of 157

80

and. the effect of such eviction has nob even been remo[ely considerecl. No exarninaLion of the issue of whe[her [he spir-i[ or i1[ei:.clment of the iivowecl policy of re]ral:iliLa[ion J:eeu achieved, or not, has been undertahen.

1-09. The situation which was to be addressed in these cases was [ruly exceptionai. This aspect has also not even remo[ely enbered the respondents consideration. In fact the decisions of the responden[s amply illustrates that the respondents are no[ rational, reasonable or bonsistent in their decision rnahing.^The construction" placed by the respondents in the cases of [hese IDPs on the permissibility of the occupancy of the cluarters under the Allotment Rules as relateable solely to their service resnlts in violation of constitutional guaranl.ees and was clearly and cornpletely unwarranted. It needs no fu::ther elabora[ion that the rights which the petitioners are cornplaining l:reach of, are the rights guaranteed to thern uncler ArLicle 19(1)(e) ancl 'Article 2L o'f the Constitution of India. For these reasons, the' interpretation of the expression "unauthorised occupation" by the respondents as well as in the irnpugnect orders is blinlcerecl,' restricted and irnpermissible in the given facts. Thc expression

"authoriLy for such occupation" appearing in section 2(g) mus[. talce witirin its arnbit l"he constitutional violaLions which resuit from Lhe restricbed worlcing of the statutory provisions by [he ' responclents. It was incurnbent upon all .concernecl with the decision malcing to take into consideration the rnoSt material developmerrts in the home state of the petitioners and the facL [hat Lhe State was unabie to guarantee protection of life arrcl liberty to Lhe petitioners in case they return; the insufficielcy Page B0 of I 57

No legaI interpretation could be acceptable which cloes.nob talce into its consideration these relevanL facLs ancl circumstances. The petitioners are bccupyrng the accomrnodabion because of the failure .of the respond.ents to clischarge the constitu[iona] manclate ancl their public law obligations of protec[ing l,he righ[ to life and liber:ty of the petitioners. As nol.iced above,^the authority to occupy the quar[ers so far as the pel,itioners were concernecl was derivecl frgrn the constitutional guaran[ees. Subh occupancy cannob be deemed or helct [o be

"unauLhorised" by any measure. 1"L0. The significant difference between the cases of the peti[ioners ancl that of an unauthorisecl occupan[ of public prernises is that the writ petitioners have continuecl to occul-ly the public premi'ses only on account of the inability of the sLal.e to prol,ecb the funclamental qnd basic hriman rights of the ire[it-ioners.

LL1,. .The resl:onclents woulci have the recorcls of Lhe cilcurnstances in which the petitioners and their successors in inte:resb were transferred ancl evacuated to Deliri and also [he extreme necesslty of malcing the allotmenLs of the quarLers to these persons who were not only.Governmenl, servauts but also IDPs. The Directorate of Estates which has effecbecl the impugned decisions cancelling the allotments wouicl be aware of the pronouncemeuts in respect of identically placed persons of [lre Supreme courb tn .tr.K. KowI vs. Estate off,icer, [his W.P.(C) No.75239/2004 Page 8l of 157

82

LLz. No legal interpretation woulcl be accepLable which cloes not bake. into 1tt cbnsideration the relevan[' facts^and circumsbances. There can also be. no statuto.ry interpretation which results in violation and constitutional guarantees ancl protection.

The present peti[ioners certainly can"nol, be'cornparecl wibh ortreated in the same. manner in which the responclents woulcl cleal with any other occupant who has not sufferecl the gross violations and deprivations as the petitioners, ancl is unauthoriseclly occupying the public premises

113. It, therefore, has to be held that the occupabion J:y petitiorler, a.rrr,.ot be construecl as "unauthorizecl occupa[ion" of the quarLers within the meaning of the expression in Secr;ion 2(g) , of the . Public Premises (Eviction of Unauthorized Occupants) Act, 1"97 1".

L14. An examination of the irnpugnecl orders now necessita[ecl. The cancel]ation of the allotrnents ancl the action ini[ia[ed under the Public Premises Act, j,g7L'were resistecl by the petiLioners o1r the several grouncls on which these writ petil,ions are prernised. Flowever, the sanle resulLed in [he impugnecl orders of eviction.

115. The sole reason given by the EsLate officer for passing [he iilpugned orders of eviction is that the arlotmen[s in favour of the petitioners stand cancelled and tirat they had failed to prove W.P.(C) No.15239/2004

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LI7. The petitioners had placed. the several clecisions relaLing to sirnilarly.situated persons before the respondents, the Esl,a[e Officer as well as the learnecl Ad.ditional District Juclges. A^plea was tahen tha[ because of failure of the responclenLs to ensu]:e tlre protec[ion of tire rights of the petiLioners und.er Article 2t of Lhe Constitution of India they continued. to occupy the quarl.ers. The petitioners had also urged that they stood deprived of home ancl hearth. because of the failure of the responclenl,s to ensure tire constibutional guarantees ancl d.ischarge the mancia[e thereunder.

118. The appellabe orders notice the petitioners' contention that the petitionels have made several representations l,o various authoriLies lbr allowing thern to retain th.e accomrnodation on the ground that they belong to Kashrnir ancl i'b was no['feasi]:le to return in view of the commllna1 riots ancl terrorists lnovelTlents. These reques'[s have not ]:een acceclecl to. The impugned appellate orders record that the petitioners have challenged the eviction orders on the ground thab the Esta.te officer had failed to consider the faci that they wer-e

:

I(ashmiri migrants and cannot return to Srinagar LiIl normalcy is res[ored. It was also. a ground of appeal that the Estate officer had not considered the orders in sl-p No. L 36glj.9g7 by bhe Suprerne Court and that the petitioners' cases were on" bhe W.P,(C) No,15239/2004 Page B3 of 157

il- -'

84

9)

sarne foobings. The challbnge had aiso been laid to bhe orclers^' of the estate officer. on grounds of arbitrariness ancl violalion of principles of natural justice.

L19. The appellate court in the irnpugnecl orclers has^also proceedecl on the soie gro,und that there was no lease or license deecl issuecl in favour of the petitioners by the Governmen[ of India. The orders of the Apex Court were not considered on^[he sole grouncl.that copy of the Special Leave Pe[ition ]rad noI been placed before the court and that the peLibioners wele noL^a party to the pro'ceedings. The learned appellaLe corut was also of bhe view lhat the petitioners were provided accolnmoda[iou in Delhi because they were in service in Delhi ancl no[.because of terroris[s threats.and further tirat accornrnoclation was given onty by virtue of employrnent. It was also concluclecL [hat no relief had been granted to the petitioners by the Supreme Corirl, and therefore, the orders did not assist the Supreme Cou::[. The eviction orclers had been sustainecl in view of bhese conclusions.

1"20. As a result, such'working of the Public Prernises Act by the respondents, the petitioners are being threatened wi[h evicbion frorn the only shelters that they know, without any alternative being available to them.

IzL. The respondents are bound to act in a manner which is cornpatible with the constitutional rights of the peti[ioner while this court has to tahe into account ancl require the legisiabion to ' l:e reacl cornpatibly with such rights. The object is to ensirre thab the actions ancl orders must be such as to aveiL or ::ectiiy .any violation of such l:asic rights,

lli----

W.P.(C) No.75239/2004 Page 84 of I 57

85

. the ground-s on which the eviction is proposecl to be macle^ancl require the persotls concerned to show Cause agains[^l,he proposed order before the specified date when they are^to produce evidence in support of the show caUse. Under Sec[ion 5 of Lhe Ac[, ilre Estate Officer is recluired to consider the^show cause by the noti0ee uncler Secl.ion 4 as well as the eviclence produced l:y him and after personal hear:ing, if any, given. Thereafter, the EstaLe Officer is required to record reasons^fo::

his satisfaction for making an order.of eviction. The orders of the es[ate officer discloses no reasolls at all to support satisfaction to order eviction. The impugned orders 'do nol, reflect the consideration of the contentions on the eviclence placed Jry the petitioners.

. 1-23. The due process clause in the Constj.tution rnandates ensuring thab [he state provides a hurnane stanclarcl of living uo its ci[izens.

1,2+. The letter from Ministry of Urban Developrnent to Delhi Development Authority placed on recor d. tn Tej Kishan us. U0[ (supta) before the Central Administrative Tribunal (also reiied upon tn n 32 (2006) DLT 672 P.I( Itrandoo vs. Eslate Officer indica[es ellgagemenl" of the authoriLies with this issue ancl [he decision of the. Central Government directing tha[ schemes be 'framed by tlie Delhi Development Authority as well for mahing t.

preferential allotrnents of accommoclation [o Kashrniri migrants. In addition, th.e Government affidavit dated otr' october, 2009 iri W.P.(C) No.75239/2004 Page 85 of I 57

86

expresses the Same Concern as has been exllressecl in [he a]rove Guicling Principles. on Internal Displacement.

. These actions unequivocally rnanifesf the respondenl,s' awarepess about the positive obligation imposecl upon thern to ensure th.ab th.e persons'clisplaced from l(ashrnir are required^to 'be resel,tled and/or rehabilibated. Tliere is admission of r:esponsibility and culpaliiliUy. The wor:king of the measttres, however, reflects thaL the steps which have been Laken^are inadequa[e and hopelessly insufficient. EVen in the prolouged hearing before this court, the responclen[s coulcl place no alternative so far as the petitioners were concernecl. 1,25. In,A.[nX 201.0 SC 1.476 State of, West tsengratr us. Tnte Cormntunity fot' Froteiction of Detnocratic Rigltts,^West BenEran & Ors., the Supreme Court has also helcl that the cour[ was recluirecl to weigh bhe impact of a particular goveLnnen[ scherne, statute. or action on the fundamental righLs of those effectecl by the goveilnnent scheme, statu[e or action. In case any statute or action abrogates or abridges such rights, it would be violative of the basic sLructure/doctrine of the Con"sLitution. For Lhis reason as well, any applicatior: or enforcement of 'stabntory provisions, rules, . regulations that irnpacts or impinges fundarnental rights has to be struck clown. 'L26. ht [2OO4] EWCA Civ,54O SecretatT @f, State for ilte Erotne .Departmtent us. wayoka Limbuexa, tsiyraun Tefeta Tesenta & Vusif ,A.darn, the House of l..ords has prescribed a test to determine whether a statutory scheme or a governrnen[ policy caused a vioiation of fundamental rights. It was observe cl W.P.(C) No.75239/2004 Page 36 of 157

87

127;^In the light of the directions by the Suprem.e Court^and this court in th.e aforenoticed cases rela[ing to identically situated displaced persons Who are victirns of violence,^the conl.est by the respondents to the present wriL petitions on technical, specious ancl Iegally unilnafte grouncls is unfair to say the least. Sirnilar issues have arisen before and orders stand passed in favour of the sirnilarly placed persons therein. 1,28. The peti[ioners 'have suffered on account of^the respondenbs faihire to protect their life and liberty when [hey were cornpelled to flee from their homes in Kashmir. In interna[ional ]aw, refugees are protected from being cornpellecl to return to places or situations where their lives or freeclom coulcl be threatenecl. It is pointecl out that the responclents have irnplemented this principle in the cases of Chahrnas, Til:etans, and else where IDPs, who are citizens of the sarne country, certainly cannot be treated differently and compellcd to ::eturn to violent situations.

r29. The proceedings.as well as the impugnecl clecisions ancl orders have cornple[ely faiied to take inl,o considerabion t"[e rnalerial issue of [he irnpact oi the proceeclings ancl.[he orclers which would result in forcible eviction of the peLitioners frorn '*' l', '

W.P.(C) No.75239/2004 Page 87 of I 57

88

. Pt-oLsot'tionalitv test J.31. The proportionaliff of the irnpact on the funclarnenl,al righL involvecl'by working of the statutory provision as against the objective of Lhe concerned'statute is another irnporLant LesL for adjuclicating upon the legaiity of the inLerference wiLh the rigtt which would have a bearing on the present case. In a prolroutlcernent of the I{ouse of Lords. reporLed at @007) ur{[d[. 11.:(2oo7) 4,Ail Ert ns E[wanE w. sectetary of st;ate for ttrze r{onze Deltartntent, the clecision rnaking role ancl funcLion of the appellate innmigration authorities in Lhe collexl, of the Hurnan Rights Act, l-9g8 and the hnrnigration and Asyhim Act, 1999 was in issue. The House exalninecr the scopc of reviews by the prescribed authorities. The priva[e parlies complained of violation of their rights uucler Ar[ic]e B of Lhe W|P.(C) No,15239/2004

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89

"1-. Everyone has the right to respec'L for his private and family life, iris home and his correspondeuce.^2. There shall be no interference by a public 'authority with the exercise of this right excepL such as isⁱⁿ accordance with' the law and' is necessaqy in q democraLic spciety in the interests of national securil.y, pr-rirlic safety or'the economic well-l:eing of the country, for the prevention" of disorder or crirne, for^the probection of health or tnorals, or for the protecbion of the rights and freeclorns'of otlters."

The consideration by the l{ouse of Lords on the principle of proporLionality of the irnpac[ of the interference on the righb vis-a- vis, the legitirnate end in view is importan'[ and reads as follows :-

XXXX

In most cases where the applicants complain of a violation of their art B rights, in a case wh.ere the im

lec

ect and respect) is of sufficient seriousness to.engracre the olreration or art B. the crucial question is likehr to be comnlained of is ot"ooot-tionate to thb lemititnate, end souqtrtt to I)e achieved. Pro:r,ortionalttv rs a subject of such irnportance as. to require separate treatmenb.

PROPORTIONALITY

In de Freitas Vs. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Flousing t19991 1 AC 69 at 80, [].9981 3 WLR 675 at 684, the Privy Council, drawing on South African, Canadian and Zirnbabwean authority, defined the cluesl,ions generaliy to be asked in deciding whether a measure

is. prolrortionate :

d

onall

a1r

ol:jec[ive."

r!01th r - -'tl"-.I tl

W.P.(C) No.15239/2004

CS

Page 89 of I 57

90

This formulation has been widely cited^and appliecl.^But counsel for bhe applicanbs (wiLh the s.rppott of Liberty, in a valuable writben intewention) suggested that the formulabion was deficientⁱⁿ ornifting reference to an overriding recluirement which feattrred in the judgment of Dickson CJ in R v Oahes t1986l 1- SCR 103, from which this approach^to propor[ionality derives. This feature is (at 139)^the nee-O to balance the interests of society with those of individuals and groups. This is indeed an. aspect which should never be overloohed or discounl,ecl.^The Flouse recognised as much in R (Razgar) v Secretary of State for the Home Dept 120041 UKHL 27 at l17l- 1201, 1261, 1271, 1601,177J, 12004J 2 A11 ER 82t at [17]- 1201, 1261, 1271, [60], 1771, [2004] 2 AC 368 when, having suggested a seiies of ques[ions which an adjudicator would have to ask and answer in deciding a convenLion question, 'it said (at t20l) that^the judgment on proportionality

'must always involve the striking of a fair l:alance between the rights of the individual and'the interests of the community which is inherent in Lhe whole of the convention. The seyerity^and consequences of Lhe interference will call for careftrl assessment at tiris stage.'

If, as counsel suggest, insufficieut attention has

. been paid to this requirement, the failure should l:e rnade good.

XXXX,,

(Emphasis supplied) 1'32. I-Iaving regard to the drasLic violation which results from the irnpugned action and orders, ib has to be heicl that Lhe decision of the authorities to cancel the allotmenLs ancl ploceecl for eviction as well as the impugnecl orders against. tirc petitioners are not in accorclance'wibh law even on reasonable assesslnent of prciporbionaiity vrz-a-vlz the olrject of eviction of unautlrorised occupants of the Public Premises Act, Lg7L. 1t

;

)

----"ti--- "' ' W.P.(C) No.7523e/2004 Page 90 of I 57

91

133. The petitioners have also cornpiained [hat b]re responden[s hacl cliscretion to perinit bhe petitioners to conbinue to occuPy tlre prernises uncler SR 3L7-B-25 of the 'AMotment rtf X96A.^It is.contendecl that the responden[s were bound^to coirsider bhe matter on the relevant consideration of the ::igh[^to shelter of the petitioners which was involvecl ancl cannol, premise their acLion on extraneous and impermissible l:easolLs or consiclerations.

Mr. B.L. WaIi, learned counsel for peLitioners has ur:gecl that^the failure to exercise discretion in favour o.f the iretil,ioners is in fact not only in violation of the constitutional'obligaLiorrs of the responclents, but is arbitrary ancl unreasonable.

1.34. Shri P.K. I(aul, (writ petitioner in W.P.(C) No.1-5239/2004) llad earlier filed WP (C) No.6551i2003, submitting that 11L"

responden[s ]rad arl:itrarily failed to consicler his request for regulari2ation despite having knowledge of the speci.al circrLmstances of the case. Mr.B.L.Wali, iearned counsel for []ris petitioner has placed the order which was passed on Lstr' octol:er, 2003 in the earlier writ petition, which clirectecl the respondents to consicler the question of regulariza[ion of allotrnent in favour of' the petitioner in view of the special crrcumstances. It was directed that the pet"ition including iLs enclosures shoulcl also be considerecl while disposing of the pe bibioner's representation

1-35. Despite these orclers, the wriL petitioner tias conLenclecl that there has been no consiclera:[ion in terms of ihis orcler ti]l W.P.(C) No.75239/2004 Page 9l of 157

92

136. Tire other wri[ iretitioners have also macle sirni]ar recluests to the respondents for exercisd of discretion which^were reiteratecl by them in the reply to the notices issued by^Lhe Estate officer under Section 4 of the Public Prernises Act as well aS in bhe appeals which were filect. T[e sarne grorincl of challenge to the lesponclents' action has been urged.. in [hese writ" pctitions.

1,37. Mr.B.L.Wali, learned counsel appearing for some of the petitioners has poin[ed out that the respondenl"s have exercised discretion favourably and permitLed some identically situaLed clisplacecl I(ashmiris to continue in alloLLecl premises afLer retiremen'[ whereas this has been arbitrarily denied to [he petitioners. Learned counsels contend that the re.sironclenus' action so far as the present pptitioners are. concerned, is discriminatorv and not sustainable.

1-38. fn" t"rtrondents on th.e other hancl place reliance on [he

. prorlouncernenL oi ttru court tn 6.997) n SCC 444 futrtiv Sagrat- Tiwari vs. Lhtion of India and dispube that [h.ey have any discretion in the rnatter.

139. Allo[ment of government accornmoclations are effecLecl nnder blre provisions of Allotntent of Govemtmettt ni.esianenaes Reference is inacie to

SR 3L7-B-25 thereof which empowers the Gover-nrnent bo relax

:

*-* i'---l---"'"-' - "'n"

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" 5R. 3n.7-ts-25: The Govet'tunent nay for reasons to ' be recorded in wtiting relax aII ot'any of the prouisiotts of the Rules in tltis Diuision in^the case of any of'ficer or

residence or class of bffic'et's or type of residences."

t4O. It is und.isputecl before us thaL despite the propouncled

rehabilitaLion schemes stated before the Suprerne Courb^ancl

establishrnent of preferential guotas in allotrnents placed befor:e

the.Central Administrative Tribunal, the respondents have not

been able to rehabilitate or resettle any of the petitioners.

L41". The respondents have also not denied the availability of

tlre ctiscre[ion unclel SR 317 B 25 of the A]lobrnen[ Rules,'¹⁹⁶³

ancl its favourable exercise in favour of some l(ashmiri IDPs.

Yet, the respondents have failed to,exercise the samo discretion

in favour of the present petitioners. No explanation for^bhe

sarne is even atternptecl.

1,42. Oir the issue of exercise of discretion, in the judgrnen[

reportecl aE AXR L980 SC L622, Nlwnicipal Cowttcil Railant

\/s. Vardicntan & Oi's., the court was concerned with the public

power of the Magisl,rate uncler Section 133 of the Cocle of

criminal Procedure. The court observed that the 'public power"

of the magistrate under the Code' is 'a public dul.y l.o [he

mernbers of the public who are victims of nuisance and so he

shall exercise it when the jurisdictional facts ar:e present as

here'. So far a.s exeircise of discre[ion is. concerned, it was

observecl as follows :-

"9. So the guns of Section 133 go inLo action wherever there is irublic nuisance. The public power of the Magistrate under the code is a pur:ric crrifv to bhe W.P.(C) No.75239/2004 Page 93 of I 57

94

_Disaretion becomes a dutv when ffite xaeneficiqrvr

. iirinqs hotfii^the circumstances far its heniant exercise

XXXX,,

1,43. Given the established violation of the funclamental righ[s of the petitiouers resulting in their displacernent;^the clestruction of tireir property coupled with [he prevalent conclitions in their home state; and lach of any al[ernabe^tcl thern, the exercise of discretion under the SR-31,7 B-25. of^bhe allotment of Allotment of Government Residences (General Pool in Delhi) Rules, L963 in favour of the petitioners would thus^be bhe bbunden duty of the respondents. The mandate of the Suprenre Court tn Mwnicipal Council R.atXam us. V.arctria,trtan (swpra) would bind even the court.

b

L44. The pronounceillent of the Supreme Court reportecl^a[ Q997)^1. SCC 444 entttled Sltiv SaEar Tiwari^Vs. tuiom^atf fndia & Ors., has been placecl before [his court ]ry the respondents. In this case, the court'was concerned with gross misuse , of discretionary power relating to allotment of accommodation to government employees. As 'against the perrnissible discretionary quota of 10 per cent,.such allotments irad sh.ot up to 70 per cent. On top of these, 8,768 houses were allotted on "special compassionate Gronnds" in exercise of cliscretion under the authority of a letter ciqted L8tr'July, 1996 'frorn tlr.e Cabinet Secretary. The.Government of Inclia hacl submitted that it had exercisecl cliscretion vestecl in iL uncler the W.P.(C) No.75239/2004 Page 94 of I 57

95

"56. The decision of the present central.Governnr.ent^on [iris aspect as finding place in the letter of Lhe Cabinet Secretary clated LB-7-l-996 bearing DO No.1/4411"196- CAV is 'that "where it is considered al:solutely ,necessary" ' small number of out-of-turn allotmenLs wouicl be made for which.^. purpose also^the MinistliesiDepartments would formulate clear rules^and guiclelines. During the course of hearing, on being clesirecl to know as to wiry out-of-turn allo[rnent is at aII recluired, the submission advanced on behalf of^[he Union of India was that there are a few officers,^{who Jry} vir[ue of the duties discharged, have to^]re accornmodated in. government quar[ers to facilita[e srnoo'Lh functioning of the Government.xxx"

L45.^'In view of the gross abuse of the discretion vestecl'in the responden[s, in para 57 at page 463 of the.repor[, it,was heid that a case to permit miniinal out of turn. aiiotrnents was macle out which has to be regulated and 'Lransparency has [o be rnaintained in such allotments. The cburt considered private citizens who could be allotted out of the cliscre[ionary quo[a which inciuded accredited journalists and news cameraman, political parties, arl,istes, social worher etc and other organizations as well.

In Sntiv Sagrar Tiwari us. UOf (swpra), it w6rs helcl that [he discretion conferred has to be exercised to advance the purFose to snbsewe which. the power exists and t"hat .even Lhe Minister, if he/she l:e the repository of cliscretionary ilower, cannoL claim that either there is no discretion in the matter or unfeLtered discretion. .The Supreme Courb held that exercise of W.P.(C) No.75239/2004 Page 95 of 157

96

In bhis bachground., the conten[ion of^[he respondenl,s that exercise of cliscreLion was prohibited by Lhe Supleme Cour'[ in this case is totally misconceived.

146. On the other hancl, in^the insbant cases, the petitionels have assailecl the arJ:itrariness in exercise of the discrel,ion aclmibted.ly conferred. on.the responden[s ancl the failure^to permit continuation of occupation of the allotted aCComtnodation in the exceptionable circurns'[ances^ancl conclitions in which they were placed. The pronouncemen[ of the Supreme Court, in fact, assists the petitioners as the court recognized existence of and pennissible exercise of. discretion while

.d.eprecating

its abuse.

1"47. The standards on which an authority would exe::cise cliscletion wer:e settled by the Supreme Cor,rr[ in the jr,iclgilent ::eportecl at (1979) T'SCC 489 etttitled -R.atmana Daya.n'ant Shetty^us. nnternational\,irport 'Autltot"ity of, futdia & Ors. as follows :-

"L0. xxx........It is indeed unthinl

. clernocracy governed by the rule of law the execr"rtive GovernmenL or any of its officers should possess arbitrary power over the inl-e::ests of the individual. Every action of the executive Government must be iriformed with reason and should be free frorn arbitrariness. That is the very . essence of the rule of law and its bare rnininrai requirement. And to the application of Lhis principle iL

makes.not difference whether the exercise of the'power

involves affection of some riqht or denial of som.e

privilege."

W.P.(C) No.75239/2004

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L2. ......It ntust, therefore, be tahen to be the^law thaL where the Government is deaiing with the public, whether by way of giving jobs or entering into contracts or issuing-quotas or iicences or granting other forms^of largess, the Goriernment cannot act arbi[rarily at^its sweet will a1d., lifte a private ildividual, deal wibh any llerson^iL pleases, bu'b its action must be in'conforrni[y with stand.ard or norrns which is not arbitrary, irrational1.or irrelevant. The power or discretion of the Governmenl, in the matter of grant of larq-ess including award of jobs.

etc.. mrlst^{De co}

tire Gove

such standard or norm in'any par[icular case or cases,

the action of the Governrnent'would be lial:le to be struck

clown, unless it can be shown by the Government that the

cleparLure was not arbitralY, but was based on solne valicl^'

principle which in itself was not irrational, unreasonable

or discriminatory." (emphasis supplied)

L4B. In para 85 of the pronouncement repor[ed at AnR n974

SC 555 en[iLiecl E.P. Royappa us. State of Tamilnadu & ,A,nr'.

the Suprerne Cottrt.laid down the following binding prlnciples :-

'85. .....In fact equality and arbitrariness are sworn

enernies; one belongs to the rule of law in a republic

while the other, to the whim and caprice of an absolu[e

. monarch. Where an act is arbitrary it is implicit in it that ' it is uneclual both according Lo political logic ancl Consbitutional law and is therefore violative of Ar[ic]ie 14,

and if it affects any matter relabing to public

employment, it is also violative of Article 16. Articles l-4

ancl 1-6 strike at arbitrariness in State aclion and ensrire

fairness and equality of treatment. They recluire^Lhat

State action mus'[ be based on equivalent relevant

.principtes appl

must not be cluided by any extraneous or irrelevan[

considerations because that would be clenial of eqlrali[v.

Where the operative reason for State' action, os

distinguished from rnotive inducirig from the

antech.arnber of the mind, is not legitimate and relevan[

qonsiderations. it would amount to mala fide exercise of

power and that is hit by Articles l-4 and l-6. Maia fide

exercise of power and arbitrariness are clifferent letiral

radiations emanatino frorn the sanre vice : ilrFact llre

Articles L4 and l-6."

(emphasis supplied)

W.P.(C) No.75239/2004 Page 97 of 1 57

("{

98

against the lretitioners.

The impugned action of the respondents against^the petitionets ancl the orclers assailed. herein have to be testecl^on the above principles.

14g.'A sirnilar argument of the responden[ thab the allottees were prohibited frorn perrnitting retention of accornmodation beyond t1r.e permfssible period after retirement was rejected by the Central Aclministrati.ve Tribunal iri the aforeno[icecl clecision renclerecl on 3(l'; Decetnber, 2002 iti 0.,4,. No.237E/2002 Strtti Tej n{istrtan Vs. {Jnion of India & Ors. The Tribunal h"acl examinecl the petitioner's challenge to the respondent's ac[ion on the plea of discrirnination prernised on Lhe conduct of Lhe respondents in exercising discretion in favour of sorne similariy sibuatecl rnigrants and not in favour of the petitioners ancl observed as follows:-

"3I. Respondents have mot dispwte.d that trd?shrnir misbants wl

tlteir

t ltave been retain accotmntod,

tiII tlte .wortnan, hack in State of [&f,{ and tiII thev ar.e retunteaf. enswred futtlter the safeW of their versons anal W.P.(C) No.75239/2004

---"ll-' " --- -r l--"'--""------1-----.----" " --.. Page 9B of I s7

99

ffi aaotlcation Applicaqt \ghg is elso a1- -- !- 1i--^ :-^ T\^11-.: ^ 'l^rrr^ satisfir tlte requirements of law, the respolrdents have^to re1

\AT

in co^on

.In

; the cant considered view, is unsustainallle being Article 1"4 of [he Constibution of India."

Tiris in^my

violative^of

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

32. Moreover, the contention that the direcbions issued tn Sltiv Sagar Tiwari's case supra and the fact that the Governrnent accommodations are few^{and the} persons claiming the same are rirore and the lules do not it retention nd the

nstification f

.L. Koul's case, even in an.in

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

33. I also find that the Government by the.letter dated 2.

order to hold officials of I(ashrnir micrrants workincr in De1hi, who could l'I

souqh.t to be aChieved.

lr-^-

W.P.(C) No.75239/2004 Page 99 of 157

100

aird for which DDA has been requested to forrnulate^[he Housing Scheme for which a draft has been sent to^the Ministry for approval. The aforesaid decision^also incorirorated that these houses. are lieing allottecl^to I(ashrnir migrants retiring or retired so that the general pqol accornmodation got vacated from thern. This on a literal consideration connotes that the Kashnir migrrants who are in retention of general pool accornmodation^on retirement, are to be evicted onllr after the^DDA formulate a Housing Scheme to allot MIG/LIG flats^to them.

34. In my considered view, the rejview undbrtalcen by the respondents in compliance of bhe earlier d.irections of this Court has not taken note of lettei" dated ' 2.7.2002 as well as the directions in Koul's case supl:a. If a pos[-facLo approval can be accorded by CCA^ancl

approval by the Ministry for Urban Developrnen[ clenying

the same to the applicant who is similarllr situa[ed anci is

ec{ual in all respects. smacks of arbitrariness an.cl hostile

discrimination which, as per various pronouncements of

the Apex Cour[, cannot be countenanced and would ]:e

an antithesis to rule of laws doctrine of equali[y.

35. In the result and for the forgoing reasons,.OA is parLly allowed. hnpugned order datecl 1-3.8.2002 is cluashed and set aside. Rgspondents are directecl to allow the applicant to retain the Governmenl, accomrnodation pending decision in SLP (Civil) No.7369/97. No costs."

(underlining supplie d)

This decision of the CenLral Administrative Tribunal has a'l,tained finality and also stands impiemented. L51. Before this cour[ t]re respondents have not even at[empted to Show how the present petitioners can be disLinguishecl frorn either SIwi Tej x{ishan (supra) or frour l.he instances noticed in para 3L of the judgrnenl. of Lhe Tribunal. on the contrary, as set out above, in answer to grounds (A) ancl

(B) of Lhe writ petition noticed in para 22 above, the respondents have stated that these contentions of the petiLioner at:e a "ma[,ter of record".

--"'1t""'

W.P.(C) No.75239/2004 Page 100 of 157

101

153. The reiponclents are unable to poinL a single clistincbion, let alone a relevant one, between the presenL petitioners. ancl those in the decided cases. The petitioners al:e identically situa.tecl, yet have been clenied equal treatment. Not a whit of e4planation for not treating these petitionelrs as those in Lhe cited prececlents is suggested by the responclenl,s. Even^[ire impugned- orclers unfortunately clo not attempt to cleal with Lhis as1:ect of Lhe rnatter.

L54. As nobiced al:ove, the respondents contendecl before the Supreme CourL tn' Strtiv SaEar Tiwafi (sulora) that they have the discretion to draw exceptions in the rnatter of allotments of public prernises and have relied on instances ancl categories when Lhis discretion was exercised in favour of persons who were even not in public service and were never even ernployed by Lhe Governrnent.

1-55. In ground L of WP(9 ) no.1.5329/2004, Shri P.I(Koul, rhe petiLioner has sLated that the responclenbs have allottecl' the Goveirnment accommodation not only serving Governmenl, 'employees, but to various other categories of ernployees who have nothing to do with Government service. It has been stated that "employees working in the orrir. of the poliLical parbies, journalists, freedorn fighters, ar[isbs etc.,, are also allotted general pool accorrrlrrodation. This averment is noL contested by the respondents who have only submirted thaL [he W.P.(C) No.15239/2004

l(o

Page I0t of tst

102

156. It is trite that residuary rules are interpretecl and worhecl to empower authorities perrnitting exceptions from applical:iliLy of tlre rule to remove hardships (Ref : L993 Sutrop.S SCC 5n5 (1rara 33) Syed tr{halid Rizvi us. tlOI & Ot:s; (tgg6) S flCC

762 SBn & Ors. us; .Kasltinath I{her & Ors.; (1988) 4 SCC n 79 Astrtah Xdr'. Uppal and Ors. us. State of trelQ"

1,57. Tlre orders in Tej n(ishan (swpra) mahe a deLailecl refe.rence to the voluntary exercise of cliscretion in favo.ur of three migrants by the respondents which was the entire basis of the finding of arbitrariness by the Tril:una1 in the ac[ion

. taken against Tej l(ishan and co-petitioner:s.. These vel:y finclings squareiy apply to the cases of the present pe[itioners. t5B. No explanation is rendered or reason given-...by the responclenl.s for the rejection of id.entical requesbs of some of the petitioners or for not favourably consiclering the sai.cl. requests of the petitioners. The failure to even consider these recluests. despite the specific clirections in P.I(. I(oulrs previons writ pe[ition reflect highhandedness, unr'easona]rleness and arbitrariness .on'the parL of the respondents. The responclenLs have gran[ed approval to similarly situa[ed persons. Denjal thereof to the equally placed petitioners cerLainly tantarnounts to hos[iIe cliscriinination against t]rem which is imperrnissible and as observed abo:re 'an antithesis to the eclualiby clarise'. The action of the responclents in not favourably consiclering bhe petitioners' represen'l,ations; in cancelling the allotrnents of Lhe W.P.(C) No.75239/2004 Page 102 of 157

103

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

160. In a recent juclgrnent of the supreme court reportecl aL ' MAIVa/sc/o476/2010 sindhu Education society & ,Aetr. \/s. [Ine Claief Secretaty, Govt. of NCT of Dbltrti & Ors., Lhe supreme court observed that framing a policy is the domain of the Governrnent. The framework of the policy ancl the working of such GovernmenL Policy has essentially [o be clone wiLhin [he frarneworh of the constiLution & the laws. As ancl whe' Governmen[ changes iLs policy clecision, iL is expected to give W.P.(C) No.75239/2004 Page 103 of 1s7

"tf'

104

:

It is a settled canon of adm-inistrative ' jurispruclence that state action, musl, be supported by some .valid reasons and should be upon^drie

applicaLion of mind. In the affidavits filed on l:ehalf of

thO state, nothing iri this regard could be pointed ou[ ' and in fact, none was pointed out during the course of . arguments. Absence of reasoning and apparent non-

. application of mind would give colour of arbitrariness to the state action."

The position in the cases in hancl is no differen[. The s[ate cloes not again even suggest a. reasonable explanaLion or valicl lreason for the change from the rehabilitative policy to [he clecision to evicb the petitioners and thereby threatening them with irnminent hbmelessness

161. Tire respondents would have the right Lo change lts policy upon change in circurnstances. (Ref: (1998) n SCR 1.1.2A State af Punjal) & Ors. us. -Rarm Lwbhaya .JEeEgra

&

Ors.). No such cirange is pointed out in the presen[ cases. The decision Lo treat the petitioners as unauthorized occupanLs without their resettlement is clearly not prernised a change of policy upon application of mind and therefore not sus[ainab]e. Responsibilifrr of tlte Central Goventntent.

162. It. has been suggested by Mr. Jatan Singh, learned standing counsel for the Union of .India that the Ceritral Government has no responsibility vis-a-viz the petitioire::s in []re given facts and that only the state of Jarnrnu and Kashmir is liable for the infraction of the rights of the petitioners. W.P.(C) No.75239/2004

-'lt--'--'-_*l-

//)

Page 104 of 157

imperilled or violated by any of the respondents' L64. It is urgeci that the respondents have hearLily engagecl with ancl manifested. extreme concern for refugees from other counl,ries, but have lianclled inadequately, ancl even failecl^to acldress the clifficulties of internally displaced persons.

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

166. The question which begs an answer is having failed to ensure the life and safety of the petitioners or [o protect Lheir property, or to guarantee either of them, what woulcl be the W.P.(C) No.75239/2004 Page 105 of 157

106

petitioners.

L67. IL is an aclmitbecl fact that the petitioners were^aII employed by the Central Government or its agencies. In orcler to avoicL colnpromising the security issues of these persons, a ')

more ctetailed analysis of the factual rnal.rix is not Jreing .l

undertahen. However, the present cases set oul. instances of extrerne trauma faced. by the petitioners ancl their farnily rnernbe.rs as well as the continued threaL to their life^ancl re of the cases, the petitioner is a clesbitute lacly properly. In o:

wh.o was working in the Ministry of Information & Broadcasting of the Government of India used to give live performances ancl conducted programs on behalf of the Cen1.ral Governmen[ in remote villages in the valley as well as on the electronic media making hen face lcnown to the militants. Her troupe was atLacked in 1,987 while performing at l(hamabal in DisLricL Anantnag and they had to flee for their life. In this backgrouncl, she was transferred to Delhi, and was allotted. [he premises by .the

respondents. The petitioner points out thal" in mid-l-990, l"he Songs and Drarna Division Office i.n'srinagar, Kashmir was blown up and the entire staff transferred to Deltri. Not only the, house of her in-laws but her ancestral/parental rental house aiso stands burn[ down and she has no place to rer,urn to in Kashmir.' Even after she was .evacuated from

.the

valley, her J:roLher

received threats to her life by way of comrnunications aclvising the peLitioner to'desist from participating or perforrning in prograrns in support of the Government. This communical.ion has been placed on record. The petitioner was deser[ed by her W.P.(C) No.75239/2004 Page 106 of 157

107

168. Another petitioner who was the author and the voice of a llrogramme on the A11 India Radio in Srinagar division which became popular across the line of control was so targetted by the miiitants. A price for his head was even announced.. In one of th"e cases., despite the security cove.r, an atternpt was rnade on the life of the petitioner whose properly ancl belongings stancl lootecl and gutted. in Srinagar ancl he has no properl,y at all anywhere in the country. There are other peti[ioirers who were worlcing in the intelligence,.agencies in the state who wele evacuated on emergency basis after their colleagues were shot clead. Several of tire petitioners have lost close friends ancl relatives on account of the attachs by militants. The petitioners were targetted because they were []re face of the central Government in the Kashmir vallev and are unable to return for the same reason.

!! i't.

169. so far as ensuring the right to shelter is concernecl, the' Supreme Cour.t has held that the state is cleemecl to be uncler an obligation to secure the samb to i.ts citizens [Ref : (tgg6) Z SCC 549 ctrtameli sinElt & ors. us. state of u.F.(supra), that it is imperative for the state to provide permanent housing accommodation to the deprived

L70. Tn L995 (2) snR z2 p.G. Grypta us. state of Gwjatar[he Suprerne Court had further declared that it was the cluty of L[e state to construct houses at reasonabie costs ancl mahe [hem W.P.(C) No,75239/2004'

/6

Page 107 of 157

In thiq context, in para 1L of the pronouncelnent, the cour[ expressly laid down the imperative duby of the s[ate to provide permanent housing accommodation to the poor in the housing schemes undertaken by it, or its instrumen[ality ancl obsewecl

(11

as follows:-

:

"Lr. As itated. earlier, the right to residence^ancl tal riqht

9(1)(e

I

and it is a facet of inseparable meanincrful right to life under Article 21. Food, shelter and clothingr ale minimal human riqhts. The State has undertahen^{as iLs} economic policy of planned development of the country and ltas undertaken massive housing schemes.' As i[s

. part, allotment of houses was adopted, as is e.njoined by Arbs. 38, 39 and 46, Preamble and l-9(1-)(e), facilities and opportunities to the weaker sections of the society of the

. right to residence, malce the life meaningful and liveable in equal status with dignity of person. It is. therefore, intpetative of tlze State to pt'ouide perunanent housins accommodation to tlte poor rn t]ne ho:ustl;-.cr . schemes undertaken by it or its instrumentalil,ies withira ttrein econouric mreans so that thev could malce^the

payrnent of the price in easJr instalments and have

penmlanent'settlernent and residence assured nnder

Article 1-9(1-)(e) and 2l- of the Constitution. xxxxx"

(Underlining suppliecl)

L7t. The Supreme Court has repeatedly reiterabed bhe well

settled position that the state has the constitutional duLy to

provicle adequate facilities and opportunities to ali including Lhe

disadvantaged and the displaced, by distributing its wealth ancl

resources'for the settlement of life and erection of 'shelfer over

their heads. The court has emphasized.the constitubional rigfL

of every citizen to rnigrate and settle.in any part of Inclia for

W.P.(C) No.75239/2004 Page 108 of 157

109

I72. The forcible removal of pavement and slum dwellers lly tire agencies of^the state without their resettlernen[^or rehabili[ation has ]reen iepeatedly deprecaled by the . courts in the plethora of jud.gments on the sulrject. In case they have to be evictecl frclrn the place they are occupying, state au[horities are bouncl to formulate schernes and policies. The responclen[s have gone on record with regard to such projects as are in vogue for.their relocation, resettlement and rehabiliLation. (Ref:

(tg&T) 3 SCC 545 OIga TeIIis v.' tsambay Mwniaipal CotTtnratiom & 'Ors.; (1997) L1. SCC n 2L ,A.hmqedabad Mutticipal Corporation Vs. Nawah -K.ltan Gunah. n{Itan^lF ons.; It[A]\ru/DE/g327/20O6 lagdish us. DD,4; clecision of ilris court dated l-l-t\ February, 20L0 WP.@) No. .5904/2009 Swdanna Singh & Ot"s.) Placing reliance on the obligations under the international instruments, the courbs have repeatedly 'stated thab.adequate and reasonable facilities for resettlernenL ancl effective steps taken for rehabiiitation 'have to be macle available before forcible eviction.

1,73. An issue involving chakmas who were tribals from erstwhile East Pakistan (now Bangladesh) wenL to the Suprerne court in tlre case reported at (L9g6) L SCC 742 National -Edwmtan xliErkts conttnission vs. state of "Ar'unacha.l Practrestrt 'Anr.In this case, a public interest litigation was filecl by the National Hurnan Rights commission seeking

W.P.(C) No.7523s/2004 Page 109 of 157

110

enforcement of' rights under Article 2L of the Indian Consbi[ution, of about 65,000 Chakma/Hajong tri]lals. It^was allegecl that these Chakmas had settled primarily in the State of Arunachal Praclesh and were. being persecuted by Sections of the ci[izens of the state i.e. the A]1 Arunachal Praclesh Students Union referrecl to as 'AAPSU" hereafter. It was additionally complained that the applications of thq Chalcmas under^Lhe Citiienship Act ancl Rules thereuncler were no[ being forwarclecl by the State Government for consideration to the Central Government in accordance with law.

In cleciding'the rnatter, the Supreme Court placed. cibizens .as well as non-citizens on a common platforrn so far as the rights under Arbicle 1,4 and^21" of the Consbitution^are concerned.

So far as the constitutional and the stabutory obliga[ions' of the sbates to prbtect the rights of those who resicle within []re terribory of that state are concerned, the cour[ observecl as follows :-

"20. We are a country governed by the Rule of Law. Our Constitution confers certain rights on ever1i 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 bhe State is bound to protect the life and liberty of every hurnan-

being, be he a citizen or otherwise, and it cannol. permit

any body or group of persons, e.g., bhe AAPSU, l,o

threal,en the Chakmas to leave the state, failing which

they would be forced to do so. No state Governmen[

of person'to another gro,rp of purcotrr, it iu. .l.rty lr*r.*l

to proLect the (Sic) group from such assaults ancl if i[

ons[ituti

W.P.(C) No.75239/2004

-as Etatutorlr obliqations. Those giving sucrr (sic) woulcl

be.'liable to be dealt with in. accordance with law. TIie

'l t*-.---'--'-" t-

Page l l0 of 157

111

rights,.Qonstitutional and statutory, to be corisidered for

being registered as citizens of India."

The court considered the factuai rnatrix^a1d prevalent

circuinstances in detail and thereafter issuecl, inber alia,^{a wriL}

of mandamus directing the State of .Arunachal Pradesh,^[o

ensure that the life and personal liberty of each and evelY

Chal

atternpL to forcibly evict or drive them out of the Sta[e^]ry

organised groups, such as the AAPSU, shall be repeilecl, if

necessaqy by requisitioning the service of para-miii[ary or police

force. The Union, of India was directed to provide snch

additional force as is necessary to pt:otect the iives and liberty of

[he Chahmas on. the request of t]re first respondent. Ife

Suprerne CourL further directed that the Chakmas sliall no[ be

evicted from their. homes except in accordance with law and

sirall not be denied clomestic life and comfort therein; the S[ate

Governrnent was directed to deal with the quit notices and

ultirnaturns issued'by ttre AAPSU ancl any o[her group which

tantainountecl to threats to the iife ancl liJ:erty of each ancl every

ch.akrna in accorclance with law. The Suprerne Cour[ ]ras thus

recognizecl the responsibility.of the central Government to

provide forces to protect the right to life of the threatened

persorls.

L74. Unlilce the Chakmas, the petitioners are IDPs who

complain of violation of the same rights and seeh reclressal

thereof. However, the extreme situation of hardship ancl

W.P.(C) No.75239/2004

t/

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PageIiloftst

112

In G982) 3 SCC 235 Feoptre's Unia,n for Democratic R.igrtnts & Ot's. Vs. Union of India & Ors., the cour[ o]:ser-ved Lhat denial of statutory rights of the labour force, which was a vulnerable section of the coulmunity, tantamountecl to breach of their constitutional rights Td was therefore enforceable ' .against the government. It was held that it was the dutv of the union of India, the Delhi Administration and bhe DDA to ensure

that the constitutional obligation towards labour are dischargecl

by the contractors to whom they had entrustecl construc[ion

worh. It was held that the Union of India, Delhi Aclministration

ancl DDA cannot folct their hands in clespair ancl become silent

specl.ators of the breach of constitutional prohibitions beiirg

)21

i,

r

Page l12 of 157

113

"2I. Before leaving this subject, we may point'oul, with all the emphasis at our command that whenever any fundamental riqht, whiclr. is enforceable aqainst private individuals such as, for example a fundamental right enacted in Article L7 or 23 or 24 is being violated, ' it is the constitutional obliqation of the State [o take bhe necessaiy steps for the purpose of interdictinq^such violation and ensurinq observance of the funclamental ricrht by the private individual who is transcrressinq the same. Of course, the person- whose fundarnental right is violated can always approach the courl. for the purpose of enforcement of his fundamental right, but l.hat cannol. absolve the State from its constitutional obiiqation^[o See that there is no violation of the fundamentai right of such person, particularllr when he belonqs to the weaher Section humanily and is unable to waqe a lecral l:attle against a strong and powerful opponent who is

. exploitiricr him. The Union of India, the' Delhi Administration and the .Delhi Development Authority must 'therefore be held to be under an obligation to ensure observance of these various labour laws by Lhe contractors and if the provisions of any of these lalrour laws are violated by the contractors, the petitiondrs indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Adrninistration and the Delhi DeveioppenI Authority by filing the present wriL petition.^.The preliminary objections urged on behalf of the respondents must accordingly be rejected."

The failure of the state to ensure statul.ory rights was helcl to lrrovide the essential basis for maintaining the writ petition under Article 32 for enforcing fundarnental rights against [he State and its agencies.

1"76. Ib is noLeworthy thab a writ petition was filed in this court in connection with compensation payable 'to resiclents of Kashmir whose property had been destroyed in the disturbapces in I(ashmir. The judgment of this court reporLecl at ,LrR. zhos DeIIti L10 Et.r,. wali & ots. vs. {-Imio.n of,.fttdia & orts. ]nas W.P.(C) No.75239/2004 Page ll3 of 157

114

"20. Respondent Ne.l-, Union of India, has also filed an affldavit under the signatures of Mr. K.M' Kuti, Under Secretary in the said Ministry clealing with^the Deparbment of Jarnmu & Kashmir affairs. Responden[ No.1/UOI by way of the said affidavit effectively washes its hands off the matter. It is stated that relief^and rehabilitation are Stabe subjects. Para 2 of the parawise r:eply may be reproduced to show the stand of the Union of India:

"2. That the averments made in para 2 of^the peti[ion t]rat 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 rnisconceived, incorrect and is denied.^The answerinq respondent respectfully submits that ' Law and Orde,r as well as Relief ancl Rehabilitation are State Subjects. Ministry^of

Horne Affairs has the responsibiiity of providing

Relief and Rehabilitation to refugees from^WesE

Pakistan (now Pakistan), East Palcistan^(now" Banqladesh). Sri Lanka, Tibet and [o the repatriated Indian Nationals. Therefore, the

present writ petition qua the answering

respondetrt is not maintainable."

' 2.L The Government of India. thus. consiclerecl its

responsibility for providincr relief and rehabilitation Lo

refugees, who are not citizens of this counbry, but not

to ciLizens of the country who are refuqees in their^owu

countrfi. The apathy is Trrit large on its face.

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

'' 23. Article 2L of.the Constitutj.on of India provides fbr

the Fundamental Right of Protection of Life and

Personal Liberty. Life cannot I:e bare' existence.

Persons who are displaced ancl suffered injury to iife

It-- -------"-

Page I 14 of I 57

115

petitioners are victims of environment, which is not their own creabion. The State owes a responsibilitlr^to create an environment for safe and dignified existenge sflb_e_siliz.e.nq."

(Ernphasis supplied)

Tiris court rejected the stand of the Government of Inclia that the responsibility [oward.s the payment of the compensation rests wiLh the State Government alone holding as follows:-

'i3L.The Government of India cannot also absolve itself of the responsibililry and is liable to ensure^thab the State Government remits the amount. A large aurount of funds flow to the State of Jarnmu^& I(ashmir from the Central Governrnent heeping in[o consideration the disturbed conditions and, thus, the Central Government cannot saJr that it has no role [o p1alr. The State of Jammu & Kashmir is an integral irart^' of our countiy and the writ of 'the Central Governrnent runs. In the cases of'victims of Charari Sharief incident, funds have been disbursed ou[ of the Prime Minister Relief Fund to rnahe a paclcage of Rs.2 lakhs of ex-gratia compensation apart frorn other benefits."

.

L77. In this judgment, the court held that whaL holds true for loss of life and lirnb, would hold true for loss of property occasioned by failure of the State to protOc[ the same." It is nol.eworl"hy that in the present writ petitions, tl.re peti[ioirers have not l:een deprivecl of their properLy aucl hornes in accorclance with law as, for instance, in the case of accluisiLion .proceedings. The deprivation is. a direct result of the failure to control Lhe violence against the petitioners. The principles laicl dgwn in the above judgment would apply Lo, Lhe Kasirmiri migrants on every score. More important is the clear finctipg by the court of the responsibility of the central Government for the rehabilitation and relief to the IDps from.I(ashmir. W,P.(C) No.75239/2004

il'

Page I t5 of 157

116

T7g. IL is noteworthy that the displacernent of l.he pe[i[ioners is also uot intra-state. The petitioners have been compellecl^l,o leave the boundar:ies of their state and are residing in Delhi.

180. The' Central Government has . achlowledged^its responsibility in the matter inasmuch it has intervened in^Lhe matter. Several of the lresent petitioners stand evacual,ed by it and [he allotments of the quarte]:s in the ins[ant case s[ancl rnade it. Central resources are being utilizecl for developnren[ projects ancl security purposes in the state ancl achnitteclly [Jre Central Government has accepted and assumed responsilliiiLy toward.s rehabilitation and resettlement of the persons clispiaced. as well in the grants and reservation made by it.

181.

.

It was .observed rn.(L97E) L SCR. L $tate af R.a.t'ast"ltan & Ors. us. Uhfby Chief Justice Beg that :-

"In our country national planning involves clisbursements of vast arnounts of money collected as taxes frorn citizens residing in ail the States and placed at the clisposal of the Central Governrnent for the benefibs of the States without even the "conditional grants" mentioned above.

. I-Ience, the mannerⁱⁿ which State GovernrnenL funcl,ion and cleal with sums placed at their disposal by the Union Government. or . how they carry on l,he general adnr.inistration may also be rnatters of considelable concern to the Union Government."

IB2. The expansion and interpretation l* the cour[s has affirinatively established a positive right to housing ancl shclLer for every person'as parl, of the fundamenLal right. I{uman W.P.(C) No.75239/2004

Pagell6ofl57

117

,l

righ[s alcl funclarnen[al rights are inalibna]:le; their viola[ions are inclefeasible. The sLate is under a consti[utional obligaLion ancl cluty'[o protect these rights. When viola[ecl, a citizen^is entitled to their enforcement. The constitutional mandate upoll it, is coupled with the statutory ctuty and public law obiigaLions to ensure the protection of the fundamental and l:asic hum.a[ righbs to all, in adclition io its obligation under the several inLernational instruments noticed above. This essenLially remains in the exclusive domain of state funcl"iotts. Failure^Lo protect the ci[izens from eminent loss of life and proper[y as well as maintenance of public order, irnplicates the state for culpable inaction.

183. Mr. Jatan Singh, learned standing counsel for Lhe Union of India has urged that these petitioners are not publiQ ser"vants and can claim no right to continue in the alioLted puJ:lic premises. It has l:een vehemently urged tha[ on account of

.

their sullerannuation, they ceased to be Governrnent servanl.s and are clisentitled to retain Government accommodation. Learned Standing Counsel has urged at sorne length tha[ [he Governrnent of India has formulated a rehabilitation paclcage which necessitates that all these petitioners must return [o bheir homes in Kashrnir. It'is contencled that by their failure Lo vacate, the rights of the several Governrnent employees who ale waiting to be allotted Governrnent accomrnodation are adverseiy effected. 'Unfortunately the responclents are unable to submit tirat the iletitioners would be safe uporl return or how tire respondents propose to ensure protection of life ancl ]iberty of W.P.(C) No.75239/2004 Page 1 )7 of I 57

118

IB+. Before the Suprerne Court of India, tlie respond.ents have acceptecl responsibility and obligation to the IDPs frorn Kashmir ancl clairnecl to have advanced huge grants to the Stabe of Jarnrnu Kashrnir and. also.set out a detailecl .scheme in^the affidavit filecl before the Supreme Court. ' In the instant case given the nature and extent of the violaLions,'the Urrion of India cannot abclicate responsibility in the rna[ter, or avoid its consti'butional obligation of at leas[ ensuring reasonable shelter or a roof to these petitioners. Financiatr strimEemcv of the' G overnrnbnt

185. Placing reliance on the judgment reported at QA0il⁶ SCC nSE MasterlV[arime Senrices Fvt. trtd. vs. ]vfetcalfe and E{odgnrinson Fvt.. n M, & ,A,mr.,' it has been further argued J:y Mr. Jatan'singh that this court is bouncl to exercise judicial restraint and cannot I:e unmindful of the aclministrative J:urclen and increase in unbudgeted expenditure on accoun[ of cluashing clecisions. It is urged that in this ]rackgrouncl, while exercising power of juclicial review of an administrative decision, the cour[ .cannot subs[i[ute' its own decision without the necessat1y expertise and corirpel the respondents to exelcise cliscretion to permit the petitioner to continue to occupy the aforenol,icecl accotnmocLaLion.

,186. This submission fails to consider th.e nature of'the rights wlriclr are involved in the case in hand. r&etcalfe Hodgrlrinson Pw. n M. (supra) relatecl to a challenge to awarcl of a [encler W.P.(C) No.75239/2004 Page I I8 of .157

''*il--'

119

. rights Td constitutional guarantees as are involved in^[he instant'case. The consideration in Metcatrfe Xnodgkinsott Fvt. Ltd. (swpra) has no appiication to the present case' L87. In (2OO3) 6 SCC L l{apitra EfinEro.nani vs. state of

. tsihal" & Ors. the State Government had, however, irleadcd financial sl.ringency to shift its liability to the Union of Inclia ol to []re S[a[e^of Jtrarkhancl. In.para^67of the juclgrnent clatecl 9tr' of May, 2003 Supreme CourL had held that the liabliity of the sbate of Bihar cannot be shifted. to the Union of Inclia only because ib is the repository of funds raised by it throug'h excise ancl other cenbral levies ancl impost, ancl consecluently it woulcl not be inclirectly or vicariously liable for the I'aitings on th'e par[, of the State Public Sector Undertakings. It was held that either prececlentialty or jurisprud.entially, the Union of Inclia cannoI be heliL liable and no such direction as was being'sought by [he stal,e oovernnent could be issued.

tn" Supreme Court,. however, clearly cleclarecl the position Lhat financial stringency may not be a grouncl for no[ issuing requisite directions when a quesbion' of violation of fuudaqental right arises. In this regard, the cour[ no[icecl the emphasis given by it on this aspect including the judgmenLs

. reported at ft987115CR641 _Rwran LiffiEati'on amd Entittrement Kendta and Ors..v. State of Uttat' Frarlesnt arld Ors. ; X.9BOCrLL,{LO7S Municipal Cowncitr, RatIanM vs.

. vardia"han & ons.; frggo]sscR.Bo B.n. wadhera v. (Jtnia,n ' of lndia ; (1995)4SCC5O7 State of l[.F" v. W.p. State W.P.(C) No.75239/2004 Page I 19 of 157

120

. .ftmam Orgramisatiott us. t]O{ the Suprerne CourL held thab:-

"6....Much was argued on behalf of the Union^and the Wakf Boards that their financial position was^not such that they can meet the oblisations of pavinq the ..Imams as they are beincr paid in the State of Punjab. It was also urged that the number of mosques is so large that it would entail'heaw expenditure which the Boarcls of ctifferent States would not be able to bear. We. do no[ fincl any correlation between the two. ,ffina,ncfa./ difficr.ilties of, the ittstitution cannot trte a.faove fwmctratnental riqht of a citizen. If Lhe Boards ltave been entrusted with the responsibility of supewisinq .and administering the Wakf then it is their duty to harness'resources to paJr those persons who perforrn the most important duty namely of leading cornmunihr pralrer in a mosgue the very purpose for which is created."

189. On the same issue in (1995) 4 SCC 5A7 Stute of I{.F. vs. M.P. State RecoEmised & ,Aided Schoans ManaginE Contntittees, the Supreme Court observed tha1":-

"l-6. The aottstitartiottal mandate to Ehe State, as upheld by this Court in Unni Kiishnan case - [o provide free education to the children up to tire age of fourteen - caxnnnot he penmitted to be circwtnvented on the grrowmd.of lactrr of econontic capacity oz. finanaia.l

. incatroacity."

190. TIre ohservations of the Supreme court at (zoAs) z scc

262 Kapila f{imgorami us. .State of Bihat- & Othens, while disrnissing the review petition filed by the Bihar Governmcnl,, seeking a review of the earlier order clatecl gtr' May, 2003 are W.P.(C) No.15239/2Q04 P.age 120 of 157

121

These submissions were rejected by court obserwing that in the order dated 9tr'May, 2003., the courb had considered the rnatter from the hurnan rights Espect as weil as the fundarnen.[al rights of the employees in the public sector underl,ahing operating in the state of Bihar. The court noticecl that after Lhe pgssing of the order dated 9th May, 2003, several employees clied due l.o non-payrnenL of their salaries. The court piacecl reliance, intir alia on para 24 of. the directions ciatecl 9tr' May, 2oo3 ancl while rejecting the review petition filed by [he lespondents ol:served as follows :-

"24. This Court further observed that [he StaLe hab a constitutional obliqation and acts in a ficluciary capacity vis-d-vis performance of its constitutional drities and functions by the^. public sector undertakinqs as it has constitutional obligations in relation thereto."

(Underlining supplied)

So far as protection of such hurnan rights ancl fundamental rights, and. remedy for violation thereof, is W.P.(C) No.15239/2004 Page l2l of 157

122

"22, The Government companies/public sector undertalcings being 'states' would be constitutionally iiable to respect life and liberty of all persons in terms of Arbicle 21 of the Constitution of India. They, therefore, must do so in cases of thgir own etnployees. The Government of the State of Bihar for all intent ancl

. purport is the. sole shareholder. Althorigh in law, its liability towards the debtors of the Cornpany rnay^I:e confined to the shares held by it buL having regard to the deep and pervasive control it exercises over the Goverirment companies; in the'matter of enforcemeul. of huinan rigirts andior rights of the citizen of life and lil:erty, the State has also an additional duty l,o see that the rights of employees of such corporations are not infrincred

The right to exercise deep and lrervasive conLrol would in its turn make the Government of Bihar liable to see that [h.e life and libertv clause in respect of the emplbyees is fully safeguarded. The Government of the State of Bihar, thus. had a constitutional obligation Lo protect life and liberty of' the ernpiolrees of []re Governrnent owned companies/corporations who are the ci[izens of India. It had an additional liabiiit]r havincr regard to its right of extensive superwision over the affairs of the companJr."

XXX

37. We malce it clear that we have nob issriecl aforementioned directions to the States of Bihar and Tharkhand on the premise that thelr are bound to^pav the salaries of tlle ernploJrees of the pul:iic sector have a human riqht as also a fundamewtal tiqht wnder ,Artictre 2t whiclt the States are hownd'to protect. The directions, whi.ch have been issried by this Court on gth May, 2003 as also which are being issuecl herein, are in furtherance of [he ]ruman ancl fundarnental rights of the emplo--rees concernecl and nol, blr walr of'an enforcement of their legal riqht to arrears of salaries. The amount of .salary payable to the concerned employees or workmen would undoubtecllv

!e adjudicated upon in the proper proceeclings. *I{owever, these directions arb issued which are necessat1r for their survival. Undoubtedly, any amount paid by J'stice uday sinha committee pursuant [o Lhese directions shall be duly credited for.,,

(Emphasis sgppiied)

W.P.(C) No.75239/2004

)tt

Page 122 of t57

123

L92. Other than the bald reference to the judgment iir lvfetuanfe (supra), ]earned. standing counsel has piaced 11o factual asserbions in" support thereof.' Such submission is clearly untepable in view of the acimitted Governrnent position in^the afficLavit clatecl 6h Ocb.ober, 2009 filed tn i.K. n{oul (supra) bdfore the Supreme CourL of its responsibility as well as lialrility clua the displaced Kashmiris. The same stands adrnittecl in the discretion exercised in favour of the three persons cited tn Tei 'Kfshan (swpra) ancl the letter clated 2"d JuIy, 2OO2 placecl before the Central Administrative Tribunal as also in the policy of reservation/preferential allotrnent of the .flats.^'fhe respondents have clearly adrnitLed their responsibility and are bound by their comml'Lments.

193. Before 'this'cour[, the respondents have not stated Lhat there is any assessment or calibration in terms of prioriLies of the various of .[he several projects w]rich the responclen[s neecl underbahb or Lhe various areas which Governrnent business add.ressed'. The respondents explain neithbr the financial W.P.(C) No.75239/2004

\sL

Page 123 of 157

1.g4. Experience ancl exarnples abound in this city arlcl^[he aforenoticed judicial precedents of foicible evictions relating^Lo slums ancl jhuggi clwellers. Defenceless ancl clisadvantagecl citizens are forcibly evicted frorn their shelters which are^then destroyed. And then, the long arrn of the sLate, gives a hyper' technical inLerpretation to legal clefinitions, [alces [he shie]ci of statu[ory provisions ancl implernents what is tou[ecl as l,he "qL]le of Iaw" in removal of "encroachments" by the disadvantagecl. Others illegai constructions and deviants are "regul.arised" 01'

"componnded". This very ethos is illustratecl in [he present writ petiLions.

L95. Instance after instance of schernes in Dellii for regularising nob only rank illega1 ancl uiratithorjsecl consl,ructions bub also large scale encroachrnents on priblic lancl are in existence and being implernentecl. So much so that the Cenlira1 Government has promulgatecl ordinances ancl s[aLr,ites prohibicLing dernolitions of huge iliegal buildings ancl evpn inLerclicbing court orders., Interestingly such legislations benelil, Page 124 of 157W.P.(C) No,75239/2004

125

L96. The judgment reported at ZOhO $M) '4D (Denkil 5tr3 Wait:ian f,(alyan Satniti ReEd. & Ot:s. vs. Govetwtttent^atf YICT of, Detrtray' mahes a reference to Governm.enl. policy Lo reguJ.arise 1400 unauLhorised colonies. The huge tross [o^the public exchequer of incliscriminately regularising iIIegal encroachments on lancl acquired after payment of large surns^as compensation from public funds by the gov€rl1ilent; encroachnr.enLs those on public land as also violations of builcling regulations is not even computed, leb alone addressecl. (Ref: (2006) 3 SCC ggg M.C. Me.hta us. UOn & O.r's.; ,Milt 2005 SC t .Ftiends Colony Devetropwzertt Conwnittee^us. State of Orissa & Ors.)

L97. Yet the respondents urge "financial stringency" so far as [he present petitioners are concerned. The essence of [he poiicy of rehal:ilitation and resettlernent, so far' as [he petitioners is concernecl has not only been given a comple[e go by but :Lhe ,espondents are completely Aerryrng all tiabiliby for the sarne.

W.P.(C) No.75239/2004 Page 125 of 157

126

Aovropriate remedv. role of tlte cowrt amd nature of relief

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

200. In,AII| 1983 SC X.086 R.udul Sah us. State of,.Bihar, tire courL was concerned with violation of rights resulting fr;orn illegal detention. The observations of the court on the duLy of w.P.(c) No.is239/2004

le

Page 126 of 157

.........Artic]e 2l-, which guarantees^the

life aqd liberty will^be denuded of^its

rel

d.etention. One of the telling ways in which^the violation of that right can reasonably be prevented and due compliance with the mandate of Article^2l- secirred-, is to muict its violators in the payment of monetary compensation. Administrative sele(sic)sis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. T4" right^to

compensation is some palliative for the unlawful taliti ^the

.if

' civilisation is not to perish in this corintry, as it lt"as ' periihecl in some others too well-known to suffer mention, it is necessary to educate ourselves into

accepting that, respect for the rights of individuals

is the true bastion of democracy. Therefore,^the

State must repair the dambge done by its officers to

the petitioner's rights.''

20L. So far as the remedy which would be available in cases

involving infringement of funclamental rights ancl the power of

courts, Dr. A.S. Anand, J las his Lordship then was] in^his

concurring judgment in ,A,IR lgg| SC ng60 entittred NiXabati

Be.hara @ Lalita tsehura Vs. State of Arissa had obser-ved^as

follows^:-

. "33. The public law proceedings serve a differenl:

purpose l,han the private law proceedings. The relief of monetary compensation, as exemplatY darnages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right quaranLeed under Article 21 of the Constitution is a remedlr available in public' law and is based'on the strict liabilitv for contravention of the guaranteed basic and indefeasible riqhts of the citizen. The purlrose of public law is not only to civilize public power but also to assure the citizen that they ]ive under a lega1 systern which aims to protect their in[erests and preserve their riqhts. Therefore, when the court moulds the relief by qrantinq "compensation" in

"l-0. right^to re ;w ille

W.P.(C) No.75239/2004 Page 127 of 157

128

"f^the citiren-^The compensation is in^the nature^of

'exemplary damages' awarded against the wrongdoer proceeolngs

C

failed in its Public rights of the citizen. for^the breach^- of its public law duty^{and is} independent of claim compensation undgr the private Iaw in an action based- on tor[, through a^suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal iaw. xxx^xxxx

2 and²²⁶

done

the citizen to the reme$Y

by way of a civil suil or criminal proceedings'^The State, of course has the right to be indemnified^by and take such action as may be available to it against the wrongdoer in accordange with law - through appropriate proceedings. Of course, relief in exercise of-tfte'power under Article 32 or 49 would^be graLteclbnly once it is establisSed.that there has been in infringement of the fundamental rights of^the' citizen and no other form of appropriate redressai by the court in the facts and circums'bances of the case,'

(Emphasis supplied)

4 SCC Sheela Barse vs. UOI & Ot's.,^t]ne courb was concerned. with gross violations of "[he constitutional and statutory rights'of a large number of children in the country who were suffering custodial restraints. While coulmenting^on is possible."

202. ,In (1988) which^has

37. Ttrtii Court and tke E{ish--Aeutb. bei. tors ciuil^Lof the

.CI ve no

but

o.bli,

IT

damental w.P.(C) No.75239/2004 Page l2B of 157

129

"6. ........More imPortantlY the Court is not

203. Where infringement of fundamentat rights is established, the duty of the court does not stop at giving a mere declaration. In L997 G) flCA 4L6 D.I{. Basw us. state of, west tsengral, It was laid. clown that in such a. CaSe, the court must proceed further ancl give compensatory relief, not by way of damages^as a civil action but by way of compensation und.er the public law jurisdiction for the wrong done, due to breac.h of the public duty by the State of not protecting the fundamental right to life of the cibizens.' To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience.

204. Uniike the several cases noted h6reinabove including cases of. R.udutr Shah, D.I{, Easu, Leetrawati Eeliuta, S.heela Barse (swpra) etc. in the instant case, the state or its instrumentalities itself have not. harmed or punished tl1e petitioners. I{owever, the state has t'otally failed to protect the fundamental right to life of the petitioners ancl to protect them from violence, harassment and pogroms. This is in clear abdication of the constitutional responsibility of the Stale. Responsibility for the violence in the Sta[e is not the quesbion W.P.(C) No.75239/2004 Page I29 oi tst

t9{

role with the responsibility for the organisation

130

205. So far as the approach of a court qn such issues. is concerned, in para L3 of the pronouncement reported at (2OO3)

4 SCC 6On. Stute of Maharashtra us. Dr'. D. Ft"afwl E. Desai, tjre Supreme Court stated. that^one neecls to set out the approach which a court must adopt in decicling such questions and reiterated that the first duty of the courb is to d.o justice'

206. In para 15 of AIR L980 SC L622 lvlutticipal Cowttcitr, Xlatlam us. Vardicltan & Ors,; the court obsqrved that:-

"L5 .. The nature of the judicial process is

" noL purellr adudicatory nor is it functionallli that of an umpire only. Affirmative action to make the remqdy effective is of the essence of the ricrht which otherwise becomes sterile."

207, In para l-1- of (tgg7) 6 SCC 241 Visha.ktrta & Ors.^vs. Stdte of .Rajasth.am & Ors., the Supreme Court held that the' obligation of the .Supreme Court und.er Article 32 of the Constitution for the enforcement of funclamental rights in the absence of .legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as tl'rose representing []re minirnum standards necessary to be observed in order l"o maintain the independence and effectjve functioning .of the judiciary. The objectives of the judiciary urentioned in the Beijing Statement are:

"Objectives of the Judiciary:

' W.P.(C) No.75239/2004 page r30 of t 57

131

(a) to ensure that all Persons are able to live securelJi under the Rule . of Law;

(b) to Promote, within the ProPer timits of the judicial function,^the' observance and the attainment of hulnan rishts;^and

{c) to administer the law impartially

' among persons and between

persons and the State."

t?'

In Clause 1_0(a) of the objectives of^the chapter^on 'Objectives of the Judiciary','it has been clearly stipulated that the objectives and functions of the judiciary inqlude ensurinq' that^all persons are able to live securely under [he rule of ]aw. 208'. So far as the manner in which relief is recluired to^be

. moulded so as to ensure protection of the consLiLutional rights of the petitioners in this bunch of writ petitions are concerned, learnecl counsel for petitioner has placed reliance on^[he pronouncement of this court dated LOth Septem):er, 2004 in WP(C) IVo. L72/X.997 entitled Smt. .Kanila .Deui us. Govt- of NCY of Eelhi & Ors. In this jud.grnent, learned brother^B.D. Ahmed, J was dealing with a case relating to a prayer for bompensation for the death of one Uday Singh, an electrician who was killed in an explosion on account of terrorist activiby in Delhi.

The court held that iower courts would'Iose their efficacy if they canncit possibly respond to the needs of the society - technicalities there might be many but [he justice-oriented approach ought to not be thwarted on th.e basis of such W.P.(C) No.75239/2004 Page l3l of 157

132

"7 . xxx The fact of the matter is that Uday Singh lost^his life on account of an act of terrorism. Th.e State failect to prevent it. The Primary duw of the state is to rnaintain peace and harmonlr amongst its citizens. If for some. reason, it is unable to pu[ the iid^on simmering discontent, then it is its duty Lo protect innocent citizens from harm. If it fails in this duty, then it muqt compensate the citizens w.ho have^been wrongied.^"

Reliance was placed on the pronouncement in A,IR. 1.993 . SC 1960 Nilahati Eehara @ Lalita Eehuta Vs. State of Orissa wherein it had been also observed. that while clirecting monetalT compensation for established infringement. of^the funclamental rights, the'courts' take into accclunt not only^the interest of the applicant and the respondent but aiso^the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully^and db perform their public cluties properly particularly where the fundamental riglrl of a citizen under Article 2L is concerned. Law is in the proCeSS of deveiopment and the process necessil.ates developing separate public iaw procedureg as also public law principles. 2I0. .In ,AIR n 989 Mad. '205 R. Gandhi & Ors. \/s. UOn & ,A,nr'., the Madras High court was concerned with the inability of the StaLe to enforce public order putting in jeopardy the life and W.P.(C) No.75239/2004

1\l

Page t32 of t57

133

soughb redressal for lhe trials and tribulations undergone by the minority Sikh community of Coimbatore in Tamil Nadu and^a few others in the wal the assassination of late Prirne Minister Sqlt. Indira Gandhi on 3Lsb October, 1984. Observing on the rlrolation of the fundamental rights and the duty of ^the state, the Madras I{igh Court placed .reliance on ^bhe observations of the Supreme Court in the Olgra Tel"tris (swpra) case, and heicl as follows:-

"2!. primary dutlr of the Sffi Constitttiot ftrnction and put the life and liberty. the hearLh^and home of the citizens in jeopardli. Article 38 of the Constilution enjoins on the State to strive to promo[e the welfare of the people by securing and pro[ecting, as effectively as it may, a social order in which iustice, social, economic and political, shall inform all^the institutions of the national life. Under Article 19(a) and'(g) of tlie Constitution, any citizen of Lhis country is entitled to reside and settle in any.part of.the Territory bf india and to practice any profession^{or to} carry on any occupation, trade or busin"ess. Ar[ic]e^2L lays down that no person-shall be deprived of his right or personal liberty except according to the procedure established by law. As pointed out .by the .Supreme Court in Bornbay Pavpment DwelLer's 'case, MANU/SC/0039i1985 : AIRI-9B6SC1-80, ro person can live without the means of living, that is,'the means of livelihood and the easiest way of depriving^a person of his right to life would be to deprive hirn of his means of iivelihood to the poin[ of abrogation. Under Article 300(,4) of the Constitubion, no person shall be deprived of his property save by authority of law and to.allow his properties'to be reduced to ashes .by the force of darkness and evil is a clear depriyation of the right^' to property guaranteed by^the Constitution. The members of the Silch Communitv .[orm an integral part of the Indian societ5r; they havb every right to settle down in Coimbatore and carry on Lheir profession. They have the Constitutional right to live and they cannot be deprived of their rneans of .live]ihood. Their right to property is inviolable. Ali these Constitutional'rights of the Sikhs and a few members of the other comnunities have been Page.li3 of 157W.P,(C) No.75239/2004

134

aspirqtions and realities

They are the, throbbing

of civilised human life,^theY

1\s

be ^desdeor^as

observed by Bhagwali, J. as he the4 was, 'a paper parclr.rnent, a teasing illusion and a promise of unreality', bJr the failure of the State bo protect th'ose rigirts. -Theie unfortunate victims of arson^and violence are, therefore,

rh

brealc-down tal machi

theref its ^se

u its-otriliqation as- a social welfare iFtate to mahe swllahtre atmemds""^'

(underlining suPPlied)

.2LL. tixamining the claim for compensation on account of cleath of a spouse. in similar riots targeling members of the salne community in Delhi in 1984, Anil Dev Singh, J in the juclgment reported aE 1.996 (3) AD (Delhi) 333 : 1996 (35) PRtr 203 'tsha.fan X{awr us. DeIIai '\dnnn. has observed as follows:-

-(10) Article 2L is the Nation's .cornrnitment to bring every individual or group^of persons within its protective fold. This Nation belorigs to members'of^all the communities. They arc equal members of the Indian society. Equality before law and equal protecLion of laws is ensured to them by Article 14 of^the Constitution to them. None is to be favoured^or discredited. The conduct of any person or group of persons has to be controlled by the State.for the lofty purpose enshrined in Article 2L of the Constitution. I[^is' ilre duty of the S.tate to create a climaLe wh.ere l,he cleavage'between members^of .[he society belonging. to 'different faiths, caste and. creed are' eradicaLed. The SLate must acL in tirne so that the precior-rs lives of the

people are not destroyed or threatened. Otherwise,

Article 21 will rernain a paper guarantee. Tirne is^long

overclue for adopting measltres that have rnore l.han a

W.P.(C) No.75239/2004

and legal rights.

second respondent-- Sfdf,e of Tamil Nadu ca.n-nof.

Page | 34 of I 57

135

established by law.^"

It is noteworLhy that in para 25, the.learnecl Juclge in

Bhajan Kaur's case, was of []re view that the judicial trend is to

award substantial compensation for illegal extinction^or

deprivation of life and liberty.

2L2. I had also occasion to consider. a claim'for cornpensation

for injuries and loss sufferecl.by the petitionei'in the LgB4 riots

in Delhi in the aftermath of the assassination of late Smt. Indira

Gandhi in which rnembers of one communi[y were targetbecl. In

tlre juclgment reported at L20 .(2005) Dn'T X56 lWaniit SinEIt

Sawhney us. UOn & Ors., placing reliance. on the principles

laicl down in the aforenoticed pronouncemen'bs, it hacl^been

ol:served. as fo,llows :-

"20. The award of monetaly relief to the victirn for deprivation of fundamental right is to be guided by the ' aforestated principle r:equiri.ng tire stal.e to make monetary amends under public law for the wrong^done

due to breach of the public duW of not pro[ecting the

fundarnental rights of the citizens. This computabion^is

not guided by any strict arithmetical formula'and it^has

W.P.(C) No.75239/2004

endan

Page 135 of 157

21"3. Tlre obser-vations of the Supreme Courb tn A.IR L98L SC

487 AJ.uy E{asia us. Khalid Muiib. Seniravart{i & Ors.^{are also} classical ancl topical on this aspect ancl shecl light on the issue under consideration as follows^::

"Where constitutional fundamentals vital to^Lhe the dia

tool. for consbitutional law must seeh the substance^and not the form...,. It must be remembered that^the fundarnental 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^l:e emasculated in .their application by a narrow^and constricted judicial interpretation. The Courts should be anxious to enlargre' the scope and width of^the Fundamental Rights bv bringinq withln their sweep everv authorily which is an instrumentality or agenclr of tire Government or throuqh th'e corporate personality of which'the Government is acting,^so as to subject^the Government in all its Inwiad activities. whether throuqh natural persons or through corporate en[ities, 21"4. It is a well se[tled principle of in[erpretation of^the constilution aQ well as statutes that the same have t,o be reacl keeping. th.e societal Ciranges and growth. Law rnus[ changd^bo

,

heep pace.with the on going developments and new rights may have to be founcl out wiLhin the constitutional scherne. (Re{: :

(ZOLVS) 6 SCC L Kapila nXingrorani us. State of -Bihat- (para

...

60 a.t page 30). The imperative necessiby to take recourse to t'alce such interpretative changes by the courts has resultecl in the expansion to the right to life ensured und'er Article 21 of the ConstituLion of India.

'.rttu

court reliecl on earlier judgmen[s ancl reitera[ecl bhat the firs[ duty of the court is.to clo justice. In para 62, [he )1i

W.P.(C) No.75239/2004 Page 136 of 157

137

Courl"^alsodeclared that the h

'/ tvb

rr@ll

2t5.^The ciuty to ensure constitutionaL righbs resbs not^only :"^the Supreme Court or^the High Court

in exercise^of

jurisdiction under Article 32 and 226 butwould^{be [he} manclate of errery court and its essentiai judicial function.^The claims in the present cases hale io^be ac[udicatecl on these principles. 2l-6. .I1 P.[<. X{owI (swpra), a specific order^was passdd^on ].Sth

October, 2003 in W.P.(C) No. 6.551/2003 by'this court'to decicle the peLiLioner's represenLation dated. 1-6thJanuary, 2003 seelcing perrnission to continue to retain the quarl.er. Without me.aninsful]V complying with this'orcLer, the responden[s^have l,aken recourse to the proceedings under the Pul:lic Prernises !

(Eviction of Unauthorised. Occ;rpants) Act, t97L. Such^a clecision of Lhe respondent patently violates the petitioner's basic human rights and. constitutional guarantees notecl hereinabove. Other petitioners have also 'rnad.e simiiar lrepresentations on which orders have not been passed by the respondents.

2L7. Smt. Phoola Raina who is the petitioner in W.P.(C)^No. L569812004 is the wife of late Sh. T.N. Raina who' expired in .lrarness on 4tr'August, 2001". She and family were clepenclenr^or. Iate 'Shri T.N.Raina and residing with hirn in the alloltecl quarter. The respondents have been unable to rehabilitate this legal heir who is also a I(ashmiri clisplaced person hnd if forcibly ' evicLed frorn the premises in.her possession, she has nowh.ere [o go. It is contended by Phoola Raina that the meager irension shb is receiving is her only sou.rce of inconre 'which is W.P.(C) No.75239/2004 Page 137 of 157

138

insufficient to even l:ear the expense of food for her farnilv 'ttt sl

. memJlers. The writ petitioner^has also placecl reliance on SR '/1 )

3L7 B-25' of the allotment of Allotment of Government Resid.ences (General Pool in Delhi) Rules, L963. In view of the above cliscussion, it is clearly evident that so far as her clairn^is concernecl, the Sarne fundamental and. human rights as those of the o[her.writ.petitioners are involved ancl she is entit]ecl to'the^' same relief and. consideration as the others.

218. The petitioners in^the presenb'cases hlve complained of violation of their righL to lifg in their horne state. This situation has come to be despite the 1-984 .rio[s, which mark'an unfortunate watershed in. Indian. history, when exarnined frorn any aspect. The threatenpd blgqpt 9i pTmaTIy oI their iqhl t:, shelter, a basic human right

.

and an inte'gral part of^the guarantee under Article 21, of. the Constitution of India, even at their displaced location at the hands of the respondents^has cornpelied invocation of this court's extra-ord.inary jririscliction under Article 226 ofthe Constitution.^:

21,9. The pleadings in the case would show that there is^no clispute to bhe facts pleaded by present petitioners. There 'cann.ot be and there is not even a suggestion that the right to sheiter of [he. petitioners in their horne state has been a'briclged by any proceclure established by law. Such.infraction of [heir rights is purely on account of the inability of the respon(len[s to discharge their constitutional obligation; clu ty' ancL responsibiliLy of pro[ecting the life ald property of the petil,ioners. The respond.ents have a positive duty to provicle basic necessities to its citizens. It certainlv defies commonsense and W.P.(C) No.75239/2004 Page I j8 of I 57

139

The courts have a constitutional duty and interllatiollal legal obligations to ensure the right of every person to be^free from. want of basic essentials. .^'

220. The above cliscussion would show that there cannot be^any dispute about the nature of and prote.ction of the right of^the petitioners. However, the manner in which it is to be enforced against the respondents deserves consid.eration. 22I. The instant cases.relate to a unique.situation. It has been repeatedly stated by the Supreme Court that in case.of viola[ion of the right to life and personal liberfy, the courb is not helpless [o grant relief and should be prepared to forge new tools^and devise new remedies for the purpose of vincticating the rnost precious of the precious fundarnental right to. life ancl personal liberty. (R.ef,: (flgSt) t SCC 627: AIR LgEX. SC 928 Xiltatfi & 0t's.^Vs. State of Bihar & Ors.).

222. In (lggl) 4. SCC 584 : AtrR lgg7 SC. 248 [.Imion Carlbide. Corporation Vs.. Union of,.[mdia, it was statecl by the Chief Justice Ranganath Misra that "we have to clqvelop our owrl law ancl if we fincl that it is necessarv to construct a rrew 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

l?T

These principles have been reiterate d".tn 'AIR tgg7 sc L960 fur,nt, IVitrabati Behera alias Latrita .Behera Vs. State of Oris,sa & Ors.

223. The jurisdiction of the court to moulcl the relief so as to'do' justice. to a party complainipg of infringement of Chapter III righl;s is wicle ancl requires Lo fit the coltours of the right wlrich . is violated. It is essential, Lherefore, that while adjudicating^on the questions raisecl, the relief to be gran[ecl^has [o be rnoulcled lceeping in rnincl the unique challenges laid and the clairns'made in these petitions

224. In (1957)^'1. SCC 3g5 M.C. Ifetrata us. UOn & Ors.,^the court expancled. on the jurisdiction ancl ob.tigation of the court^to mouicl a new relief in the following terms^:-.

"3........It may now be taken as well settled^that Article 32 $oe5 not merely'confer power on this Court to . issue a direction, order or writ for enforcernent of Lhe fund.amental 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 strateqies designed to enforce the ftrndamenLal -riqhts. It is in realisation' of this constitutional obligation that this Court has in the past innovated' new. methods^and

strategies for [he purpose of securJ.ng enforcemen[ of

the fundamental rights, particularly in the case of the

poor and the disadvantaged who are denied their basic

hurnan rights and to whom. freedom and liberty have^no

meaning.^"

W.P.(C) No.75239/2004 Page 140 of 157

141

226. It.is also well settled Lhat it iS not only the righ[ of^the litiganLs, but also, the d.uty of the court to nob only enfolce funclarnental rights but also award com'pensatiol. against^the state for'violation of those rights. In other worcls, 'the power of the courb is not only iqjunctive in arnbit, that is preventing^the infringement of a fundamentai right but it is also r"emedial in scope and provicles Jhe ,uii.t against the breach of^the funclamen[al right already committe d,.' (AnR LgSg Mad. 205^R. Gand,lti is. UOn &,4-nt".(suPra)

227. On tire aspect of appropriate compensation for establishecl breaches of fundam'ental rights, reference can also usefully^be macle to the observations of the DMsion Bench of this court in \

tlre judgment reported at 20OL (1) fCC [te.ltrti 57 Goventntent of A\CT of Delhi^us. Shri Nasiruddim (Father of, deceased lvfohd. Vasin) to the following effect^:-

"2L'. It is true that perfect cotmpensation^ts' hardly possible and mbney cannot rendw a physique frarne that has been battered and sh.atl,ered, as stated

by Lord Morris in West v. Shephard (1964) AC 326.

fwstice requires that it'sltould X]e equatr in valu@-

althawoh not alike in lcind. Object of providing

corirpensation is to place claimanb as far as possible in'

the same position financially, as .he was before

accident ... Compensation . awardbd sltot4ld not he inadeqwate ' and' strtowld neitlter Ete -__umreasonable. excessive. nor def,ic.ient' Tlzere can

W.P.(C) No.75239/2004

li^

o

Page l4l of tst

142

,228. Irr. the present CaSeS, the petitioners have cornplainecl of grievous violence to their lives and properties and the adrnitted tjl

fuelplessnQss qf the respond,ents to protect the same. We are Concerned with forced. ouster, though nob by the State., but which is a direct result of the inability of Lhe state to protect the life and property of a Qlass of its citizens resulting in tlr-eir forcecl clisplacements. The petitioners are now threatened with

.,

cornlrulsive'evicbion from their occupied quarters without^any alternative clespite the threats tb their lives in their home state- The UN Commission on Human Rights has unequivocally stated that forcecl evictions are a gross violation of human rigtits.^The International Community has long reco,gnised. forced evic[ion^as a serious.matter and it has been reported. repeateclly that clea::ance operations should take place only When conselrva[ion arrangem.ents anil'rehabilitation are not feasible, reloca[ion measures stand made.

22g. In (1990) I .SCC 328 'S.M.D. X{iran Fas-lta^\/s- Governmtettt of ,4,..F., t:ne Supieme Courb hacllobserved tlrat^a writ petiLion would be maintainable uncler Article 226 of Lne Constitution of India .also when a right under Article 2L^is threatenecl as contradistinguished from the right when it^is infringecl. In para 2l- at page 342 ofthe report, the court helcl ;2L. In the language of Ke1sen the right of an ' individual is either a mere reflex right-the reflex of Iegal obligation e>risting towards this individual; or^a

private right in the technical sense -the legal power

bestowed upon an individual to bring about by iegal

action the enforcement of the fulfillment of an

Page t42 of 157 W.P.(C) No.75239/2004

143

obh

n

rhese principles have:JH::::T',,nn oo"" courr tn (2O03) 6 SCC n fdapila Efingorani. us. State of tsihat

230. These judicial concepts have evolved frgm conserva[ive and .traditional judicial systems ancl. concepts. LegaI iirterpretation as weII as judicial pronouncements lean towards provid.ing for the social needs of society ?nd societal cleveloprnent,s.

In this background, the objection of the respondenfs [hat the petition'ers are disentitled to relief is devoid of legal merib. 231,. In view of the harm inflicbed by a third parly against which the s[aLe coulcl offer no prOtection^j.n the present cases,^a posi[ive obligation i.s also imposecl upon the staie to cornpensal,e the pebitioners in reparation of the effects of the harm cause.d by the third parUy.. Ib rernains a fact that the Sta[e's inability^to secure the life and property of the peti'tioners cornpelled bhern to flee,their homes. The same inability prevents the petitioners' return to their homes.

232. So far 1t compensation is concerned, it is again^well settled that the same would not be monetary alone. 'Principle 1-B crf tlre Guiding Ffinciples for [DFs as set ouL by the UN mandates 'that competent authorities sh.all provide internally W.P.(C) No.75239/2004 Page 143 of 157

I s'L

144

ciothing, 'essential medical services and. sanita[ion.^etc. Reset[lement ancl reintegration are an essential part of^Lhe rehabilitation of IDPs. They have the right to participate fully and" equa,lly in public affairs at all level.s and are entitled to equal access to public sei{rices in the part of the counbry where they are resettled. Principle 29 mandates when recovellF of the property ancl possessions which the iDPs left behincl or^were disirossessecl of upon their diSplacement is not possible, they are entitled to be

forrn of iust renaration'.^'

233. Reference can usefullv be macle to the observations of the Constitutional Court of South Africa in (20On) 3 LR.C 209 Gavemtfitent of R.eputrttric of Sowtlt Afr"ica & Ors"^vs. j

Gootboom & Ors. wherein the court observed as follows^:-

. "93... this case shows the desperation^of hundreds of thousands of people livingⁱⁿ deplorable conditions throughout the country.^The Constitution obliqes the state to act positivelv to ameliorate these conditions. The obliqation is^to provide access to housing. health care, sufficient food and water, and social securitlr to those unable to support themselves and their clependants, T'lre state rnust also foster conditions to enable citizens h

. to gain access to land on an equitabie basis.

234. There can be no dispute at all that whether it be a jhuggi or mud built thatched ,house 'or a mansion consideredⁱⁿ S.haptistar (supra), without security of iimb and life as well as the properLy, no eqjoyment thereof is possible. In order to be meaningful, the shelter which. is envisaged. has^to environrnent. which is' safe and secure, not only be in^an

fr9m. tltg

W.P.(C) No.75239/2004 Page 144 of 157

j

145

constituiional guarantees and protections of the citizens^are fullv secured.

n;.^The respontlents are not in^a position to facilitate the retu::n to tSeir homes for the petitioners. Even if the pe'bitioners were to so return, the respondents are not in a position to stabe they coulcl protect and. guarantee their safety and security'^The respondents clo not even remotely suggest that they could^get restitution to the petitioners of their properties whic[ ]rad been left l:ehind in the Kashmir valley'

236. The Suprerne Court has also pres.cribecl differen[ reliefs in cases involving breaches of constitutional rights. .In Municipatr Cowmcil Rattram Vs. I/ardichan & Ors.(swpra), the Suprerne

I

CourL was of the view that punitive action in the given facbs was the remeclv which was effective to ensu:re the essence of^the righ.t involvecl.

237 . In 'Natiomal X{wntan lLigrhts Cotntnissian us. 'State of .4,rwnac-Itai .trradesh' A,nr.(supra), tire courb hacl directecl^[he state to ensure that the life and personai liberty .of each^ancl

:

every Chakena residing within the Government 'of Arunachal Prad.esh, the'state was protectecl and any atbempt to forcibly W.P.(C) No.75239/2004

Page 145 of 157

evict or clrivq [hem out was repelled in view of the violation" ^ .r,n ry anclth.reat l.o ttreir lives..

As noticed. irbove, in para 13 of Nilabati Beltara @ X"atrita Be.hwra vs. state of orissa(supra),.the court had moulded relief by granting rnonetary compensation in view of the failure to pro[ect funclamental rights of the persons. In fact the court h.elcl that the refusal to pass orders for compensation would' be doing lip sewice and that the court was under an obligation^to granb relief (para 37).

In L997 (l) scc 4L6 D.I{. Basw vs. state of^west

Bengral, the Supreme' Court emphasized a justice'oriented approach which was responsive to the needs of 'the society.^The cour[ had..also gfanted rnonetary compensaLion for violations in Denial of wages was the consideration and relief moulded^' appropriately in fdapila E{ingorami lVs. State aff Eihar (supra).

238. Compensation to these peLitioners which couicl^be considered appropriate and perfect thus would have to inchide comprehensive ::esettlement such as economic rehabitiLation ancl affordable housing schemes which have been clearly envisaged by the respondents. Several other measures towarcls meaningful rehabilitation essential in terms of the Guiding Principles have not even entered tlre respondents' consideration. The same has however noL been possible so far. This court cannot shut itb eyes or judiclal conscience or remain oblivious to the stark realiLies.

this case.

W.P.(C) No.752i9/2004

Page 146 of 157

.

240. .In para 60 (pg 394) of (2OO4) I SrTC 362 N.D. layatr & ,A,nr. . tr/s. UOI & Ot's., R.ajendra Ba.bu, J held tllat 'rehabilitation of oustees of a dam is a logical corollary of Ar:ticle l 2I of the Constitution and that the oustees .shorild be in the better position to lead a decent life and. earn livelihoocl in the new locations.

No reason at all as to why forcibly displacecl persons as the iretitioners shoulcl not be similarly treatecl givgn the violations of their consbitutional rights.

24L. Before. this. court, the petitioners are aggrieved by the deprivation of their homes and property and the threat by^Lhe respondents to evict them from the only sheiter. possessecl by

.

them. Looked at from any angle, the respondents canriot avoid W.P.(C) No.75239/2Q04

s,6

Page 147 of 1.57

148

Srich just reparation' would constitr-rte part of "reasonable 'r¹compensation" and would be a step towards suitable rehgbilitation of the petitioners. Relief in these pebitions has to be so moulded.

242. It is^now neceSSaIY to examine the .contours^and. pararneters of the. state responsibility-

243. Mr. Jatan Singh and Mr. R.V. Sinha, Iearnecl counsel for .ilre Union of .

indid have urged at length Llr.at the petitioners were fuliy 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 al[erna[e arrangements with this unavoidable.event in mincl.

244. The further contenLion is that, the government ensures adeqr.rate financial securlty to retiring ernployees, who have the benefit of pension as well as other retiral benefits which run W.P.Q No.15239/2004

Page I4B of .l 57

UI

149

ilto several lahhs of rupees inclucling gratuity, proviclent funcl ll^V etc. ancl nobhing further can be expectecl.of the reslrondenLb'

245. Pension,. glatuiby and other retiral benefits are^not unique to the petitioners, but are'available to every pel:son wno retires from the service of the country. what distinguishes these pe[itioners is the fact that they have been placed in'a ' unique position and are unable to return to their homes^{aS a} consecluence of the inability of the State to discharge its constitutional obligations.

246. The question still remains u, ,o wh.ether the pension and lt al:e cornnensatiott" the monetary retiral benefits could be "adequ t ll t for" the infringement of the petitioners indefeasible rights to life ancl clue clischar:ge of [he constitutional obligatio]t of the Slate. The answer clearly has Lo be in the negative.

247 . .We are, here concerned, with the entitlement of shelter to IDPs. So far as the naLure of the development which would

. rneet the guarantee of shelter and ensure a life of dignity |,cl the

. person concerned, in para 9 of the pronouncement repor[ed at Q990) I SCC ' 520 Shantistar Bwilders Vs. .Narayan .fdlfitna,fa.l Totamte & Ors., the Supreme Court had o]:ser-ved^as follows:- -

'

"9. Basic neecls of man have traditionally been accepbed to be three-food, clothing and shelter. Th9 . right to life is guaranteed in any civilized society. ThaL would tahe within its sweep the right to food, the right to cloLhing, the right to decent environrnent and a reasonable accornmodation to"live in. The difference between the need of an animal and a human being for shelter has to be hept in view. For the animal it is the bare protection of the body; for a liuman beincr it has to be a suil.able accommoclation which would allow him to

. grow.in every aspect - phlrsical, mental and intellectual.' The Constitution aims at ensuring fuller development of every child. T.hat would be possible only'if the child, is in W.P.(C) No.75239/2004 Page 149 of¹⁵⁷

150

tioi*^{itt u} ,t"1.1--boitt toiitfott-ul,l" ' home Particularly for People i-n India canGven b,e mud-built thatched house or^a rnud- (Emphasis suPPlied)

. Uncloubted.iy, so far as the reasonableness and adequacy of the measures which the respond.ents are .required to take, musl; rneeI the principlei tuia d.own in the aforenoticed pronouncements of the courts, the inter:national conventions, the standarcls in the guiding principies for IDPs and ensure^[tie right;s of the petitioners.

.

248.^The above International instrume:rts and Guidelines for IDPs provide not only for the right to aclequate shelter^ancl housing Services'but also refer to access to lancl on equitable basis to all. They recognise and cast a positive obligation ou^l,he s[a[e i.e. the respondents, to tahe other reasonable measures possible l.o elsure.complete realisation of the right [o ad-equa[e housing of the petitioners. It is eviclent thqt the, responden.[s cann.ot avoid thei'r responsibility ancl du[y [o ensure thab the aforenoticed basics to the petitioners. These are the principles which hacl to guide the consideration of the i'ssues which^were befo.re'the respondents and have been.raised in this bunch of writ petitions.

Z4g. The clairn for. shelter in these wrii petitions is^Lhus

. pressed .as part of the compensation for the violaLion of the petitioners rights. The petitionors seeh clirections to tire responclents to permit them to occupy the premisbs in their occupation. till such tlmq the respondents are able to clischarge es and properLy of

i1

W.P.(C) No.75239/2004

:

Page I 50 of t St

151

'"

similar cases, the Supreme Court and- thj.s co.urt has permitted the clis;ilaced persons Lo continue . tQ occupy the occupiecl quarter. Order to this effect stand passed by the Central Aclminisbrative Tribunal as well. .Thg

'responclents 'have

pernrittecl sorne of IDPs to continue with their occupaLion of^the allottecl quarters after retirement. 'Ihere is clearly^no justificabion at all for not permitting the petitioners to do so in the given facts and circumstances

nlqltrc^of aeeen@ants o^.

250. There is^yeb another aSpect of the mabter. The petitioners before this courL include Smt. Phooia Raina, a widow of'the ailo[bee. The respondents' clo not dispute that she was^a depenclanL of the alloLtee 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 differen[ from those of tlre others from her home State. There is no material to bhow^' that this petitioner hqs any alternative shelter under^Lhe sclr.ernes ancl policy of the respondents or has been adequateiy compensated.

25L. 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, th'e responclents are unable to point out any distinction from. the other petitioriers. The respondents^do 'not state Lhat she' can safely return to any residence in the Kashrnir valley. It is also not averred that this pe[itioner owns ,.1 any properby into whicir she could shift. It is not even suggested W.P.(q No.75239/2004

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r).6/ that. there is any clifference in the constitution"al rights or /^| scheme between her and the other petitioners. Not a single circurnstance which coulcl disentitle this petitioner bo grant of relief against tlr.e threatened eviction ancl violation of^her constitutional rights has been placed or macle out in the^case Till such time that the respondents are able to meaningfully'and reasonably rehabilitate this petitioner, her. forcilile. eviction uncler the shielcl of statutory procesd is.also without any douJrt c ons titu l.ionally imp ermis sible".

252. As notecl above the respondents have adrnitteclly rnade discretionqlT allotments in .favoul of persolls who are^not Government servants. It. is not explained as to why such discretion could not be exercised in favour of this petitioner.

,

Certainly pennitting such a dependant of the deceased allottee to con[inue to occupy the accoinmodation under occupation ti]l albernate shelter was made available would not violate any rule as weil.. The satne would clearly le in consonance with the consLitutional mandate and the principles which emerge from the several judgrnents noticed above. It is clearly evidenL that such a dependant would be permitted to con[inue bo occupy the allotbed accomtnodation till such bime that the responclents ' meaningfully resettie and rehabilitate the.IDPs or they acquire their own alternatives or if the respond.ents are able to show Lhat they have the means to make alternate meaningftrl'ancl reasonable arrangements.

Conctrusions

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coldtitutional rights of the .petitioner and the- threats which subsis.L in case they were compelled to return to their sLabe; given the arbitrary and wrongful fail.ure to exercise^the discretion uncler the .SR-317 B-25 of the Ailotrnent^of

Government Residences (General Pool in Delhi)'Rules, 1-963 in favorir of ttie petitioners; the drast;ic violaLion of the . funclarnental and- basic human rights of the petitioner which^' results upon such implemehtation of the statutory provisions; keeping view the sbhemes of rehabilitation and resettlemen[. of Kashmiri migrants of the respondents, and. also the several judicial precedents and administrative orders in respect^of simiJ.arly placed. persons, the action of the responden[s .in treal;ing the petitioners as unauthorisecl occupants^ancl proceeding against .them under the.Public Prernises (Eviction of Unauthorisecl Occupants) Act, L971. was completely misdirected ancl 'Lrnwarrantecl.

254. It is evident that the learned appellate courts in^the appeals a'lso aclopted. a hlper technical approach ignoring^the serious violation of constitutional rights which has resul[.ed^Lo the peti[ioners and the drastic consequences of rendering t'hem homeless which results on implementation of the eviction.order. The constiLutional rights of the litigants are not only^well esbablished but are without any limitations. The orders do not indicate that the several important questions raised l:y the peLi'[ioners were deerned to. deserve an acfiuclication incluclirig the rnanner in which superior courts had deatt with similarly W.P.(C) No.752i9/2004

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255. The action of the .respondents iir denying favouiable consicleration of the request to continue t'o occupy the quarl'ers suffers fiorri. the vice'of discrimination and arbitrai:iness.^The clecision to .Lreat the petitioners as unauthorized occupants and proceecl against them under the Public Prernises (Eviction of Unaubhorized Occupants) Act, 1-971" as well as the impugnecl .orders are in viola[ion of the Constitutional gualantees^and basic

'human rights of the petitioners, and do not show application of *irra to relevant material or consiclerqtion [hereof.^The impugned. decision to cancei tt." al]otrnents,^the action und.er tire Public Prernises Act;; and the irnpugned.orclers ' of the EsLaLe Officer and the appeliate orders are , constitutionally and legally not sustainable. '256. The special leave petition in!.L .KowI (saipra) was filecl in 1-997 and bhe reh'abiiitation scheme was placed before^the court for the lirst time in 2006 which proceeclings culminatecl in the ,judgmenL dated 3'd December, 2008 afteq twelve years. Ad,judication was stj.Il necessitated tn F.Id. tr{andoo vs. Estate Offic€n' (supra) clecided on znd August, 2006; M.X{. Koutr (suprk) decided onLlth April, 2008. I find that ths Qsrltral AdrninisLraLive Tribunal had passed a detailed judgmen[ on 30tr' December, 20A2 in OA No. 237812002 entitietl Tej Kiskail^vrs. UOI. In all these cases by final adjudications, the pebitioners have been permittecl to continue with occupation of the quarter W.P.(C) No.75239/2004

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conc8rnecl. Despite the proceedings and judgmen[s in^Lhe abovenoticecl matters, the respond.ents have sLi[ proceed'ed against the petitioner in the manner noticed above. 257 . Instead. of facilitating the resettleuLent and rehabilitation of the petitioners who are internally displaced persons^{as pel:}

the cleclared policy, they have arbitrarily been exposed l"o the adclitional trauma of the threat of forcible evictionq ancl^Lhe uncertainty "ancl. insecurity of seeking the a{udication^by

.

pursuing litigabion. In these circurnstances, the petitioners^are entitled to exemplary cost's from th"e respondents. inasrnuch^aS the't;hreat of forcibie eviction by the process resolted to by^the responclents impacts the fundamental righ.ts of the petibioners. 258, In this backgrorind, while allowing the'writ pebitions and having regard to the nurnber of the petitions which have^been unnecessarily generated and the lack bf material with regarcl to the persons responsi5le for the-unfortunate decision malcilg, 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 'Lhe extl:elne. harclship of the petitioners invoiving violation of^the fundarnental rights and human righls o.t the citizens of India that such continued- occupation of the public premises by^the petitionei5 has to be pefmitted.. No inference can be laict that any person .not having a properfy of its owll or no[ having sufferecl the violations aforenoti.ced can or tras been perrnit[ecl

.(

to con[inus [o indefinitely occupy the public premises. Ther:efore,.tlle principles laid. clown in this juclgrnent wouicl bincl

,

only a fact 'situation as in the present case or similar W.P.(C) No.75239/2004

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Resw!!

. In ylew of the above discussion, it is directed as foliows

(i) The irnpugled orders cancelling the allobine'1t of^the petitioners; the orders of eviction passed in the' proceedings ' fuelcl against the petitioners und.er the Public Prernises (Eviction

. of Unauthorised Occupants) Act and'the appellate orders which are de[ailed in para i3 are hereby set asicle and quashed'

(ii) A clirecLion' is issued, t:^the responclents to make^all endeavours to adequately, effectively and reasonabJ.y rehabilitate^and res'ettle the petitioners, making provisions for appropria'be accommodations for them.

(iii) Til] such -time,. the respondents are a|]e to provide alterna'[ive acco]nmoclafidn to the petitioner and iris/or^her t

family anywhere in Delhi, the petil,ioners shall be allowecl^to retain ancl occupy the allotted accommoclation (also cletailecl in colurnn no. 2 of para 1-3 above) subject to payilent.of nol:mal licerise fees.

(iv) Each of the petitioners shall be entitled bo costs^of Rs.25,000/- which shall be paid within a period of six weehs frorn the date of passing the order.

157

1L2f,6/20q9.

In view of^the orders irassed in^the respective writ peuitions, these applications d-o not require furLher adjudicatiol and- are disposed of accordinglY.

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U JUDGE (

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