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TMI Blog2012 (6) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... UDGMENT A.K. Sikri, Acting Chief Justice 1. All these appeals, 24 in number, arise out of a common judgment and order dated 30th November, 2010 passed by the learned Single Judge disposing of as many petitions. The said judgment is rendered in the writ petitions which were filed by the respondents herein. All these respondents are Kashmiri Pandits with their permanent residence in the State of Jammu and Kashmir. They were employees of the Central Government and most of them were posted in Kashmir. However, due to the turbulence in that State resulting in putting their lives in danger, they were transferred to Delhi. In fact, most of these respondents were representing the intelligence agencies, paramilitary and defence forces as well as the Government media and had become the prime target of militants. So much so, list of such persons who had to be targeted was published and circulated in the localities. Many family members and friends of such Government employees were killed and their properties destroyed for the message to permeate. It was in these conditions when the safety and security of these respondents and their families was in great jeopardy in Kashmir, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... column no. 2 of para 13 above) subject to payment of normal license fees. (iv) Each of the petitioners shall be entitled to costs of ₹ 25,000/- which shall be paid within a period of six weeks from the date of passing the order. These writ petitions are allowed in the above terms. 3. The Union of India, feeling aggrieved by the aforesaid orders, has filed these intra-court appeals under clause 10 of Letters Patent questioning the wisdom, legality and justifiability of the said judgment culminating into the aforesaid reliefs which are granted in favour of the respondents. 4. Though we have recapitulated the issue in brief, in order to have an in-depth analysis of the issue, controversy involved and our determination, we are taking note of facts of one case in brief, i.e. LPA No. 342/2011 entitled Union of India v. P.K. Koul. (i) The respondent was a resident of Srinagar in J K. Due to his services with Central Government, respondent was transferred to Delhi. (ii) The respondent was employed under Union of India as DG, BSF, Delhi. He retired from services on 31st July, 2002. (iii) The respondent was allotted Government accommodation No. H-52, Sarojini Nagar, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent had filed an appeal before the Ld. ADJ which was dismissed vide its order dated 10th September, 2004. (xii) Writ petition filed challenging the order passed by the Estates Officer and ADJ and also seeking a direction to allow the respondent to retain the quarter till the Government makes it possible for him to return to Srinagar or till a suitable accommodation is provided to him. (xiii) Vide the impugned order dated 30th November, 2010, the writ petition was allowed. As pointed out above, the learned Single Judge has directed the appellants to allow the respondents to continue to retain and occupy till such time the appellants take adequate, effective, reasonable steps to rehabilitate and resettle the respondents by making provisions for appropriate accommodation for the respondents. 5. Mr. A.S. Chandhiok, learned Additional Solicitor General of India argued on behalf of the appellants. His submission was that all these cases pertain to proceedings under the PP Act. His argument was that the respondents were allotted Government quarters while in service and the service conditions categorically provided that they were entitled to retain those quarters only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere fact that the petitioner wanted to purchase a house and in the absence of release of gratuity, could not purchase the same and Therefore could not vacate the accommodation is hardly a tenable ground. Despite the fervent appeals for grant of further time, in my view this is not a case which should call for sympathy and indulgence from the Court. The tendency to retain unauthorizedly Government accommodation for extended periods of time like in the present case from 1st July, 1997, till date, deserves to be curbed. The judgment passed by learned Additional District Judge is a reasoned one dealing with the aspects and grounds raised. No ground is made out for interference in the exercise of writ jurisdiction. 7. On that basis, it was argued that there is no enforceable right in favour of the respondents on the basis of which they were claiming to retain the Government accommodation. Mr.Chandhiok also sought to buttress his argument by relying upon the following passage from the judgment of Maheshchandra Trikamji Gujjar v. State of Maharashtra (2000) 3 SCC 295, wherein the Supreme Court has held as under: The deletion of the words 'allowed by the State Government to rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the Prime Minister of India. Reference was made to the measures and steps undertaken under the Rehabilitation Scheme of Prime Minister's Package which are filed in tabulated form as under: 1. Number of such migrant employed as per the appointment order 2169 2. Number of such migrant who joined 1441 3. Transit accommodation allotted to such migrants 495 units construction was started. 335 completed and have been allotted to the above migrants (1441). 4. 200 Flats are completed in Badgaon and are in occupation of the above said employees (1441). 18 Flats are completed in Matan and occupied by the above said employees (1441). 5. Total number of migrants all over the country. 58697 Migrants in Jammu 138119. Out of these 17248 are getting monthly rehabilitation allowance of ₹ 5000/- p.m. Migrants in -19338. Out of these, 3353 are getting monthly rehabilitation allowance of ₹ 5000/- p.m. Total number of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o normalcy in the State they belong and as such, after retirement they would also be permitted to retain the Government accommodation which was allotted to them by virtue of them being the Government servants. 13. Learned ASG, at the end, made the following submissions with an attempt to find fault with the approach of the learned Single Judge in the impugned judgment: (a) Reliance placed by the learned Single Judge on the judgment of Supreme Court in the case of J.L. Koul (supra) was not correct as the said judgment was rendered in case where the retired employees were of the State Government and not of the Central Government. Further in that case, petitioners had to flee from Srinagar to Jammu in view of terrorist activities and threats to their lives whereas in the instant cases, respondents were in the service of the Central Government and were provided accommodation in Delhi because of that reason. (b) Learned Single Judge failed to appreciate that the courts while exercising the powers of judicial review under Article 226 of the Constitution do not sit in appeal over the decision of the executive or administrative bodies and can interfere only in the matters where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o highlighted the circumstances under which all these respondents were transferred to Delhi while in Central Government service. It was argued that they have no intention to continue to reside in Delhi and would have loved to go back to their State, considered as paradise on the earth. However when the Government has miserably failed to create conditions favourable for their safe return back to the valley which is the obligation of the State, it becomes the solemn duty of the Government to provide shelter to these persons viz., ex employees of the Government. It was argued that the respondents wanted to enforce their right to shelter only till the time conditions are conducive for their safe return to their homes. Since appellants were failing to discharge this duty of theirs, the respondents have right to continue in the Government accommodation till the time alternative accommodation is provided and that is the only direction given by the learned Single Judge which is flawless and without blemish. Learned counsels also referred to various decisions of the Supreme Court where the Supreme Court had held that it was the duty of the appellant to provide shelters as welfare State. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these respondents from the Government accommodation they are occupying without providing alternate shelter would amount to gross violation of their fundamental rights under Article 14 and 21 of the Constitution. The entire matter, therefore, has to be dealt with by adopting an approach which is justice oriented. 18. Imparting justice has to be the prime consideration. With the growing complexity of social relations, new types of problems would come in the courts. There may not be perfect precedent to follow. If following an old principle yields wrong results or leads injustice, occasion would be ripe to formulate new principle. New situation demand new solutions. By treading the beaten path, one may not reach the goal. The goal is to do justice. In such situations social engineering has to be the guiding factor. It would be opportune to quote from the book The Nature of the Judicial Process which is a compilation of the Storrs lectures delivered by Benjamin N. Cardozo at Yale University. Quoting various eminent Jurists, Cardozo makes the following remarks: It is true, I think, today in every department of the law that the social value of a rule has become a test of growing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of time. The tendency today is in the direction of a growing liberalism. Cardozo in the aforesaid lectures, taking note of this tendency has also stated: The new spirit has made its way gradually; and its progress, unnoticed step by step, is visible in retrospect as we look back upon the distance traversed. The old forms remain, but they are filled with a new content. We are getting away from what Enrich calls die spielerische und die mathematics Entischeidunig (Refer:Enrich, Die juristinsche Logik, p.295; cf.pp.294, 296). The conception of a lawsuit either as a mathematical problem or as a sportsman's game. Our own Wigmore has done much to make that conception out of date. (Refer: Treaties on Evidence). We are thinking of the end which the law servers, and fitting its rules to the task of service. 20. We must adopt an active posture and view in a larger perspective the functionalism of legal humanism. If the situation demands adoption of a broad principle to meet the ends of justice, the court should not feel shy in adopting the same. 'The history of law is the history of the effort to mould legal institutions and doctrines to meet the felt necessities of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the whole issue. We have taken note of the facts in the case of Mr. P.K. Koul (LPA No. 342/2011) (position is same in other cases, rather worse in some of these cases). The facts cry out eloquently and vociferously that the respondents and their families, who are permanent residents of the State of J K, did not leave their home State voluntarily. They were driven out of Srinagar valley. Their household goods were looted and the house was burnt by the terrorists. Apart from one residence in Srinagar destroyed by militants, this respondent - P.K. Koul does not own any other property anywhere in the country. His house lies in a desolate state which needs total reconstruction. State has not taken any action to construct. The atmosphere and the condition are not peaceful and conducive enough for him to go back and construct his house or to stay in his house. In fact the appellant cannot even dare dispute this harsh reality that it is not safe for the respondent to go back Srinagar valley and stay there whether in his own house or even by taking accommodation on rent. 24. Mr. Koul, at the relevant time, was working as Director General, BSF. Being in Central Government service and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Single Judge has referred to Universal Declaration of Human Rights, 1948; International Convention on the Elimination of all forms of Racial Discrimination, 1965; International Covenant on Economic, Social and Cultural Rights; Declaration of Social Progress and Development, 1969; Vancouver Declaration of Human Settlements, 1976; Vancouver Declaration; Declaration on the Right to Development, 1986; International Year of the Homeless in 1987; Commission on Economic, Social and Cultural Rights; and Report of the Special Rapporteur on Adequate Housing. c. UN Committee on Economic, Social and Cultural Rights; Report of May, 2008 wherein in its concluding observations on India, it called upon the Indian Government, particularly to address the issue of rising homelessness. Extensively quoting therefrom, it is observed that right to shelter as a basic human right, essential for survival is recognized. It is apt to quote the following concluding remarks from the impugned judgment: 34. The above narration shows that homelessness may result from several causes including natural disasters; development projects, economic deprivation as well as human rights violations. Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized State border. 40. So far as housing of IDPs is concerned, these guidelines contain the following important provisions:- Principle 3 1. National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction. 2. Internally displaced persons have the right to request and to receive protection and humanitarian assistance from these authorities. They shall not be persecuted or punished for making such a request. Xxx Principle 7 Prior to any decision requiring the displacement of persons, the authorities concerned shall ensure that all feasible alternatives are explored in order to avoid displacement altogether. Where no alternative exist, all measures shall be taken to minimize displacement and its adverse effects. 2. The authorities undertaking such displacement shall ensure, to the greatest practicable ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anitation. 3. Special efforts should be made to ensure the full participation of women in the planning and distribution of these basic supplies. Xxx Principle 21 1. No one shall be arbitrarily deprived of property and possessions. 2. The property and possessions of internally displaced persons shall in all circumstances be protected, in particular, against the following acts: (a) Pillage; (b) Direct or indiscriminate attacks or other acts of violence; (c) Being used to shield military operations or objectives; (d) Being made the object of reprisal; and (e) Being destroyed or appropriated as a form of collective punishment. 3. Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use. Xxx Principle 25 1. The primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities. Xxx Section V. Principles relating to return, resettlement and reintegration. Principle 28 1. Competent authorities have the primary duty and responsibility to establish conditions, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation. By way of these writ petitions, the petitioners seek protection and enforcement of their fundamental right to life which includes shelter. The international conventions recognise shelter as a basic human right. The Guiding Principles reiterate the same rights and responsibilities of the state so far as IDPs are concerned. Consideration of the petitioners rights, therefore, would necessarily involve ensuring the objectives and declarations made in the above international instruments especially those endorsed by India reiterated by the Guiding Principles for IDPs. e. The Protection of Human Rights Act, 1993, Section 2(1)(d) whereof defines Human Rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. f. Binding Judicial Precedents are noted, particularly the judgment of Supreme Court in SLP(C) No. 7639/1999 titled Shri J.L. Koul Anr. v. State of Jammu Kashmir Ors. In that case, Shri J.L. Koul the other petitioners were Kashmiri pandits who were employees of the State Government and being State Government servants, had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to frame a rehabilitation scheme within a period of six months and to place the same before the Court. Finally, the appeal was disposed of on 27th October, 2009 giving various directions as to how these Kashmiris are to be given protection by the State and are to be provided shelter and expressing hope that the State shall take all endeavours to rehabilitate the persons who have been victim of terrorism and till the State is able to rehabilitate and provide the appropriate accommodation to 31 appellants-reitrees oustees , they shall continue to possess the accommodations which are in their respective possession on this date . 27. We are in agreement with the learned Single Judge that the principle of law laid down in that case coupled with spirit behind that order applies to the present case as well with only difference that in that case, direction was given to the State Government (because of the reason that those persons were the ex employees of the State Government) whereas in the present case, it is to the Central Government as these respondents have retired from the services of the Central Government. Number of other judgments including P.K. Handoo v. Estate Officer, 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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