Court On Its Own Motion vs Govt. Of Nct Of Delhi & Anr.
2011 Latest Caselaw 3825 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Order Reserved on: 20th July, 2011
%                                  Order Pronounced on: 9th August, 2011

+     WP(C) No. 29/2010

      COURT ON ITS OWN MOTION                 ..... Petitioner
                    Through: Ms.Reena George, Adv.

                            Versus

      GOVT. OF NCT DELHI & ANR.                   ..... Respondents

Through: Mr. N. Waziri, Standing Counsel with Ms. Neha Kapoor, Adv. for GNCTD.

Mr.A.S. Chandhiok, ASG with Ms. Meera Bhatia, Adv. for UOI.

Mr.O.P. Saxena, Adv. for DUSIB.

Mr.Arjun Pant, Adv. for NDMC.

                              Mr.Jagdeep      Bakshi       and    Mr.
                              Abhishek Mohan Sinha, Advs. for
                              applicant in CMP Nos.1396-97/2011
                              & 10301/2011.
                              Ms. Geetanjali Mohan and Mr. Ketan
                              Madan, Advs. for Railways.
                              Mr. Ajay Verma, Adv. for DDA.
                              Ms.Manmeet Singh, Superintendent
                              Delhi Legal Services Authority.
                              Ms. Shobhna Takiar, Adv.
                              Ms. Jyoti Singh, Sr. Adv.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE SANJIV KHANNA

1   Whether reporters of the local papers be allowed to see the judgment?     Yes
2   To be referred to the Reporter or not?                                    Yes
3   Whether the judgment should be reported in the Digest?                    No



WP(C) No.29/2010                                                        page 1 of 20
 DIPAK MISRA, CJ

CM Nos.1396/2011, 1397/2011, 5295 /2011, 6876/2011 and 8614/2011

CM No.1396/2011 has been filed on behalf of the Hanuman Road

Residents Association (for short, „the Association) for its impleadment and

for issuance of an appropriate order or direction for restraining the

respondents from changing the user of the „Hanuman Road Park‟ from it

being an ornamental park or in any way interfering in the quiet user and

enjoyment of any portion of the park in the hands of the members of the

petitioner and to restrain the respondents from setting up any permanent

structure in the said park and to forthwith remove the temporary night

shelter illegally set up therein.

CM No.1397 /2011 has been filed by the Association for shifting the

night shelter to an appropriate alternate site.

CM No.5295/2011 has been filed on behalf of the learned Amicus

Curiae for converting the temporary shelters for homeless people into full

fledged permanent shelters and to command the respondent to comply

with and act in terms of the order dated 22.1.2010 and to develop a long

term plan for the homeless people in Delhi. It is further prayed that

WP(C) No.29/2010 page 2 of 20 directions be issued to the respondents to submit a report in accordance

with Clause 4.3 of the Master Plan for Delhi, 2021 for homeless people and

to provide all the necessary facilities to the temporary shelters.

CM No.6876/2011 has been filed by the Delhi Urban Shelter

Improvement Board (for short, „the Board‟) for closing down the night

shelters whose occupancy is nil or less than 10 persons. It is asserted in

this petition that the Board has found that in many night shelters the

occupancy is nil or is low. A chart showing the occupancy during the

period 15.3.2011 to 10.4.2011 has been brought on record as Annexure „A‟

to the said petition.

CM No.8614/2011 has been filed by the Department of Revenue,

GNCTD, seeking modification of the order dated 25.5.2011 stating, inter

alia, that the said order requires to be modified to curb wasteful

government expenditure as the occupancy rate in the temporary night

shelters is abysmally low in the non-winter months. A prayer has been

made to permit the accommodation of the homeless in permanent night

shelters being run by the Board which have facilities of water, toilet and

WP(C) No.29/2010 page 3 of 20 electricity so that these permanent night shelters are optimally utilized and

public funds are prudently spent.

CM No.1396 /2011 This is an application for impleadment to protect the interest of the

association. In our considered opinion, the association should file an

independent writ petition as the controversy has a different contour.

With the aforesaid observations, the application stands disposed of.

CM No.1397 /2011 As we have already opined that the association should file an

independent writ petition seeking redressal of the grievance, no order

need be passed on the present application.

The application is accordingly disposed of.

CM Nos.5295 /2011, 6876/2011 and 8614/2011

These three applications, being interlinked and interwoven, are dealt

with by a common order. As has been stated earlier, an application has

been filed by the GNCTD to modify the order dated 25.5.2011 and grant

permission to close certain shelter homes which have less occupancy.

WP(C) No.29/2010 page 4 of 20 The other application has been filed by the learned Amicus Curiae

for providing facilities to the temporary shelter homes and further to

establish permanent shelter homes and command the GNCTD to file its

response indicating what steps have been taken for providing shelter to

homeless people as mandated in the Master Plan for Delhi, 2021.

Before we proceed to deal with the said order, it is appropriate to

refer to the relevant part of the order dated 13.1.2010. It reads as follows:

"We also note that in paragraph 4.3 of the Master Plan the provision for night shelter has been specifically mentioned. In fact the requirement of night shelters has been indicated to be one shelter per one lac population. We would require the concerned authority to indicate as to what steps have been taken with respect to this objective indicated in the Master Plan. A complete status report be filed within three days. We are making these observations and directions because any civilized society, especially in modern times, is required to take care of all of its citizens. No citizen should have to die because he or she is poor and does not have roof over his or her head and because of cold or heat and other weather conditions. It is the prime responsibility of the State to provide shelter for the homeless and we are only issuing directions so as to remind the State of this responsibility.

The learned counsel appearing for the MCD as well as of Govt. for NCT of Delhi state that in these shelters blankets and bedding is provided and we hope that this is so in reality also. The Governmental agencies shall ensure that this is carried out in letter and

WP(C) No.29/2010 page 5 of 20 spirit. We have also been informed that certain persons have been evicted from other shelters in Delhi by the authorities. We are of the view that till further orders and in the absence of alternative arrangements no person should be evicted from a temporary or a permanent night shelter."

On 19.1.2010, this Court, in its order, took note of the submission of

Mr. N. Waziri, learned counsel for the GNCTD, that the Chief Secretary

will call a meeting of all concerned officials to evolve a short term action

plan for providing night shelters to the homeless and destitute.

Thereafter, on 22.1.2010, this Court had passed the following order:

"The ASG as well as the counsel for the Delhi Government inform that pursuant to the order dated 19th January, 2010 of this Court, a meeting was held in the office of the Chief Secretary. A copy of the minutes of the said meeting along with annexures thereto has been handed over in Court and is taken on record. As per the said minutes and annexures thereto, night shelters (permanent and temporary) with the capacity for 5665 persons already existed in the city of Delhi. It is informed that pursuant to the orders of this court, as a temporary urgent measure, new night shelters for accommodating further 5420 persons have been made functional/are being made functional w.e.f. 21st /22nd January, 2010. It is further assured that all the said night shelters are provided with beddings, blankets, amenities of water and electricity. Upon the same being controverted by the counsels appearing for the NGOs, Mr. Najmi Waziri assures us that upon

WP(C) No.29/2010 page 6 of 20 grievance/complaints being made, the deficiencies if any will be removed.

The aforesaid measures undertaken are but a drop in the ocean. As per the Master Plan for Delhi - 2021, night shelters for 1,00,000 to 1,50,000 homeless persons are required to be provided. The aforesaid measurers taken till now are essentially short term measures made necessary on account of the emergency situation arising because of the dip in the night temperature. The learned ASG and the counsel for different agencies have assured us that all the temporary night shelters as aforesaid would remain in place till 31st March, 2010 and in fact will be removed only after seeking permission of this court.

In the minutes of the aforesaid meeting, it is recorded that it is the function of the local bodies to provide night shelters; the Revenue Department of the Govt. of NCT of Delhi provides night shelters during the winter months only to supplement the work of the MCD. It is further noted that there is a duality of approach in as much as MCD does not come directly under the Delhi Administration and coordination is normally done at the level of the Chief Secretary from time to time. The minutes record that from the administrative perspective, it is desirable that such duality is removed. However all the agencies have today expressed agreement and assured us that they will work in unison in the aforesaid direction and that the Chief Secretary shall monitor and ensure the implementation of the Master Plan qua the night shelters.

A long term plan has to be evolved for the aforesaid purpose. Only stop-gap arrangements have been made till now. We direct all the agencies as well as the Govt. of NCT of Delhi to, in consultation with each other, evolve a strategy for the long term, also

WP(C) No.29/2010 page 7 of 20 defining the role of each agency. It is also informed that several NGOs, primarily Aashray Adhikar Abhiyan, Shahri Adhikar Manch (Begharon Ke Liye) Indo Global Social Service Society and St. Stephen‟s Hospital (Beghar Foundation) provide assistance to the homeless. Since the said NGOs directly interact with the homeless, it is necessary that inputs from the said NGOs be also taken. The counsel appearing for the various agencies are agreeable to the same. The said NGOs appearing through their counsels are directed to give their inputs directly to the Chief Secretary within one week from today. We direct that a meeting of the Chief Secretary with all the agencies involved be held on 4th February, 2010 at 5.00 p.m. The said date and time has been fixed in consultation with the counsel for the parties. If it is felt that participation of the NGOs in the said meeting would be fruitful, the Chief Secretary may allow them to participate in the same. The said meeting shall also consider conducting a survey, if not already done as to the locations of congregation of the homeless and the capacity required of the night shelters at such locations. Regard be had to the fact that the persons for whom the night shelters are intended are not likely to travel long distances to avail the same. Since provision for night shelters necessarily requires land and building, the land owning agencies be also involved in the said meeting and though they are not represented before us but we expect them to fully cooperate in the exercise.

We had, on 13th January, 2010, directed that the night shelter at the Pusa Road traffic island be maintained for some time. This was to be a temporary measure as we were informed by all counsel that it is a traffic hazard. We are informed that two floors of the building at Motia Khan, with respect to which directions had been issued by us on 19th January, 2010, are now functional as night shelters. The NGOs

WP(C) No.29/2010 page 8 of 20 operating in that area should ensure that persons using the said temporary night shelter at Pusa Road traffic island are relocated in the said night shelter at Motia Khan. The counsel for the MCD assures us that if there is a need for more capacity, the other two floors of the said building would also be made habitable for the said purposes. If any of the NGOs make a complaint/representation with respect to facilities/amenities at the said night shelter, the Addl. Commissioner (Slum and JJ) shall take immediate remedial measures.

The homeless persons who were evicted from Pul Mithai Sadar Bazar by the Railway Authorities are required to be rehabilitated immediately. It is informed that a community centre temporarily converted into night shelter is available nearby. The authorities as well as the NGOs shall take steps in that direction also.

The counsel for the Delhi Government has informed that NDMC‟s night shelter at Gwalior Pottery, I-Block, Sarojini Nagar remains unused. The counsel for the NGOs have complained that there is a need for a family night shelter. All the counsel agree that the Sarojini Nagar night shelter could be converted/treated as a family night shelter. The Chairperson, NDMC is directed to take requisite steps in that direction.

We have also handed over, to the counsel appearing for the various agencies, copies of the letter received by this court from Mr. Miloon Kothari, a reference to whose suggestions was made in the order dated 19th January, 2010. Mr. Najmi Waziri states that a report submitted by Mr. Kothari is already under consideration of the Government."

WP(C) No.29/2010 page 9 of 20 On a scrutiny of the aforesaid order, it is noticeable that as per the

Master Plan for Delhi, 2021, night shelters for 1,00,000 to 1,50,000 homeless

persons are required to be provided and the measures taken till date were

essentially short term measures. The Bench had observed that only stop-

gap arrangements had been made.

The order dated 25.5.2011, which is sought to be modified, reads as

under:

"2. During the course of hearing of this petition, certain aspects have emerged which require immediate delineation. Mr. Rakesh Tiku, learned senior counsel appearing for intervener submitted that at Hanuman Road Park a temporary shelter home has been put, whereas it should not have been put at the said location. To the aforesaid submission canvassed by Mr. Tiku, it is urged by Mr. O.P. Saxena that a decision dated 8th April, 2011 has been taken by the Urban Shelter Improvement Board (for short „the Board‟) that this shelter home shall be shifted to an appropriate alternative site. Mr. Arjun Pant, learned counsel appearing for the NDMC fairly stated that the NDMC shall make a place available where the shelter home presently situated at Hanuman Road Park can be shifted. The same shall be done in consultation with the Board within a period of three weeks from today. Till the new shelter home is ready, the shelter home at Hanuman Road Park shall continue.

3. At this juncture, we have been apprised by Gautam Talukdar, learned counsel and Mr. Indu Prakash Singh, who has been assisting this Court,

WP(C) No.29/2010 page 10 of 20 that there are no fans in shelter homes and drinking water is not provided as a consequence of which the occupancy rate has declined drastically. It will be an anathema to Article 21 of the Constitution of India if the people in need and in abject poverty, who are required to survive and live in shelter homes, are not provided with drinking water and fans. Regard being had to the said submission, it is directed that the Board shall provide drinking water and make available fans in the shelter home forthwith. If any assistance of the Delhi Jal Board is required, they will respond to the request of the Board immediately. The authorities cannot ignore their responsibilities and they must meet basic requirements. It is expected that all authorities shall work in harmony. As far as fans are concerned, Mr. Saxena fairly stated that at least two fans shall be provided. Mr. Waziri, learned standing counsel for GNCTD stated that if the Board seeks assistance of GNCTD, the same shall be rendered immediately as the GNCTD feels that people should live with dignity and in acceptable comfort. Needless to say, there has to be a provision for light as the people who take shelter in these homes cannot remain in darkness.

4. We have also been apprised by Mr. Indu Prakash Singh that there are no toilets in the shelter homes. Mr. Saxena has submitted that the occupants are entitled to use „Sulabh Sochalaya‟ in the proximity. Be that as it may, it will be appropriate that the shelter homes have at least two toilets so that the people are not compelled to go to a „Sulabh Sochalaya‟ and stand in the queue to defecate. This is the most essential requirement that the Board should have earlier conceived of and we hope that the Board shall rise to the occasion and make the aforesaid provision available within a period of ten days hence. The persons who are in the helm of affairs in the Board shall see to it that toilets are kept and maintained in a hygienic and clean condition."

WP(C) No.29/2010 page 11 of 20 In the application for modification filed by the GNCTD, it is put

forth that in December, 2010, 84 temporary night shelters were set up and

the same were in addition to 64 permanent night shelters already available

which are maintained by the Board. It is set forth that all the permanent

shelter homes have the requisite facilities. The relevant paragraphs of the

said application are as follows:

"4. That the setting up of the temporary night shelters each year is a coordinated exercise. This exercise is coordinated by DUSIB, Department of Revenue, Mission Convergence, Mother NGO and other NGOs associated with managing temporary night shelters. Sites are identified and tents are erected in consultation with these concerned agencies. A number of such shelters are often set up under flyovers, in and around public parks on the basis of detailed mapping of concentration sites of the shelterless and review of existing shelters by the Mother NGO, which recommends where the temporary shelters are to be provided.

5. The occupancy rate of the temporary night shelters is abysmally low in non-winter months. In many cases, since March this year, the shelters have remained unoccupied for weeks on end, while in some others the occupancy percentage is as low as 2%. The immense installed capacity of over 90-95% is wasted every day. Evidently the temporary night shelters are not required at all. The Average Occupancy Chart attached herewith as Annexure - 1 would bear out these facts. It has been noticed that temporary night shelters and sometimes even permanent shelters are not

WP(C) No.29/2010 page 12 of 20 preferred by the shelter-less during the non-winter months.

X X X

7. Many shelters are not being visited by homeless or destitute persons for the past the past 12 to 14 weeks. Yet the government is constrained to continue with the provision of temporary night shelters in view of the Hon‟ble Court‟s earlier orders which has prohibited the closure of any of these shelters without prior permission of this Hon‟ble Court. In so far as some of the night shelters are not at all required, it would be administratively prudent to curtail such expense and to put such monies to better use."

Be it noted, on 25.5.2011, this Court had appointed a Committee

consisting of three learned members of the Bar to inspect and verify the

condition of the shelter homes and the facilities available therein. The

Committee has submitted report dated 19.7.2011 before this Court and has

reported the facilities and deficiencies of various temporary and

permanent night shelters. The recurring deficiencies highlighted by the

Committee with respect to temporary night shelters mostly pertains to

maintenance and basic amenities such as water, toilets and hygiene. The

permanent shelters were, however, reported to be installed with all basic

amenities. Further, the Committee gave a list of recommendations for

WP(C) No.29/2010 page 13 of 20 improving the conditions of such night shelters and facilities thereof which

are as follows:

"1. The number of users in shelter is dipping in summers. Therefore, the government to consider actively the viability of tent shelters in summers.

2. The prospective users need to be motivated/ directed more and more to use pucca shelters where the amenities can be created /improved.

3. The Government and NGOs should make efforts to publicise the availability of pucca shelters.

4. The tents are at risk of fire, accidents/injury related to heavy rain and thunderstorm. Therefore, a high level committee may be constituted to examine this facility.

5. According to the DUSIB officials, tents are very expensive and causing enormous losses as the govt. is paying a hefty rental for daily usage to a private tent company. The tens cannot be the permanent solutions. The same funds can be used for creating / upgrading facilities of pucca shelters.

6. The NGOs have hired homeless persons as caretakers of the tent accommodations. The government (DUSIB) has no control over such caretakers. Most caretakers need skill formation, professional safety/ emergency training and empowerment for a professional delivery of services.

7. The Delhi Fire Services may conduct fire safety trainings at each premise on regular basis and provide installations, not just guidelines.

WP(C) No.29/2010 page 14 of 20

8. The DUSIB to map the "homeless prevalence" area wise and identify the possibility of declaring some pucca shelters in the vicinity as their referral shelters.

9. If there is a need of more pucca shelter space, the DUSIB to come out with a plan for new construction and also may simultaneously take over "un-used" buildings in the "MPCC" category lying vacant / un- occupied under various departments, such a PWED, Flood Control, Labour Department, MCD etc. The DUSIB may take over all such un-used portions of Community Halls, lying vacant at various locations of the city. If there is still a deficit, DUSIB may propose construction of more night shelters under the Jawahar Lal Nehru Urban Renewal Mission, funded by the Government of India, for the urban poor under the Ministry of Urban Development and Poverty Alleviation, located at Nirman Bhawan.

10. The permanent night shelters being maintained by DUSIB have provision of basic facilities. However, some of the centres would require a fresh coat of paint and some more attention towards hygiene and regular water supply. However, the facility could be used optimally if the provision of night shelters are sufficiently advertised through electronic and print media, but more particularly through the network of NGOs and police. Proper visible signage need to be provided for all the shelters, so that the needy could reach or to be reached to them. A joint and concerted effort would need to be made by all stakeholders and experts to achieve the objective of filling the available capacity for the benefit of the targeted needy persons. Evidently a system will have to be devised so as to ensure that these night shelters do not become permanent dwelling units for families but are used solely for the purpose of interim night shelters by the destitute and homeless.

WP(C) No.29/2010 page 15 of 20

11. Apki Rasoi Program should be run by Delhi Govt. in each and every night shelter."

On a perusal of the suggestions given by the Committee, it is

luminescent that the temporary shelter homes lack certain facilities and

there is a risk factor; that the Board has no control over the caretakers; that

there is need for making people aware and create motivation to use pucca

shelter homes where the amenities can be created/improved; that the

Board should come with a plan for new construction and simultaneously

take over "un-used" buildings in the "MPCC" category lying vacant /

unoccupied under various departments; that a joint and concerted effort is

required to be undertaken by all the stakeholders and that certain more

facilities have to be made available to the people for whom the night

shelters have been made.

As urged by Mr. Waziri, learned standing counsel for the GNCTD,

the maintenance of temporary night shelters has become extremely costly

and such a burden on the state exchequer is totally unwarranted. A

submission was canvassed that there are 84 shelters and such a high

number is not required as one shelter home is required for a population of

5 lacs. Mr. Bhushan, leaned Amicus Curiae, per-contra, would contend

WP(C) No.29/2010 page 16 of 20 that it is contrary to the tenor of the order passed on 13.1.2010 as it has

been clearly laid down therein after placing reliance on the stipulations in

the Master Plan that for one lac population, one shelter home is the

requisite. As we perceive, the Division Bench had scrutinized the Master

Plan 2021 and had expressed the said view and ergo, the submission put

forth by Mr. Waziri on this score has no substance.

The heart of the matter is whether temporary night shelters are to be

closed solely because there is expenditure despite a stipulation in the

Master Plan 2021. That apart, this Court had passed many orders wherein

it has been held to be the need and necessity. It has been canvassed with

immense conviction, if we allow ourselves to say so, that the people do not

come to shelter homes and, therefore, the establishment of shelter homes is

an exercise in futility. The State Government is under obligation to have

permanent shelter homes. True it is, we have been apprised that there

have been some permanent shelter homes and some are running in

temporary tents. A shelter home is expected to give adequate shelter and

has to be made habitable where of the conditions must be acceptable to a

person to live with dignity. Fixing a tent is a very marginal percentage of

infrastructure, however, making provisions for stay in an acceptable

WP(C) No.29/2010 page 17 of 20 dignified manner in a shelter home is the warrant. There has to be a

galvanized effort to see that the people who rot on the streets know about

the shelter homes, the facilities available therein and are motivated to stay

therein. As rightly suggested by the Committee, a concerted effort has to

be made. The Board has a sacrosanct duty to perform. When there is an

obligation to do certain things, it has to be done and there cannot be any

kind of shirking or escape on the ground that certain amount is expended

unnecessarily.

We will be failing in our duty if we do not take note of the

submission of Mr. Waziri, learned standing counsel for the GNCTD, that

the mother advising NGO has already intimated the State Government

that there is need to close shelter homes. In our considered opinion, the

mother NGO cannot have the final say over a matter of this nature and the

State Government should not immediately concede to it. It is the duty of

the State Government and the Board to see that shelter homes are

established, run and maintained and the NGOs can only assist, they cannot

dictate.

WP(C) No.29/2010 page 18 of 20 In view of the aforesaid analysis, while disposing of these interim

applications, we record our conclusions and directions in seriatim as

follows:

(i) The prayer for closure of the temporary night shelters is

unacceptable and, accordingly, the same stands rejected.

(ii) The Board has to constitute a Committee which can look after the

shelter homes in proper perspective so that the facilities for human

beings to live are available and no one should harbour a feeling that

he is treated as an unperson and asked to stay like an animal in a

temporary shelter home.

(iii) There has to be awareness camps which have to be organized by the

Board by involving responsible non-government organizations so

that the people come to the shelter homes and the same to be home

for all seasons, be it summer, rainy or winter.

(iv) If any particular NGO has not acted with responsibility and

accountability, it is open to the State Government and to the Board

to take appropriate action against it or discontinue to engage it but

that would not be a ground for closing the shelter homes.

WP(C) No.29/2010 page 19 of 20

(v) While improving the conditions in the temporary shelter homes due

attention is required to be given to the permanent shelter homes so

that the requisite permanent homes are constructed to serve the

people in need of night shelters.

Let the matter be listed for further hearing on 5th October, 2011.

                                             CHIEF JUSTICE




AUGUST 9, 2011                               SANJIV KHANNA, J.
dk




WP(C) No.29/2010                                                page 20 of 20