Delhi High Court
Court On Its Own Motion vs Govt. Of Nct Of Delhi & Anr. on 9 August, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* 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