Research › Search › Judgment

Delhi High Court · body

2011 DIGILAW 757 (DEL)

Court on its Own Motion v. Govt. of Nct Delhi

2011-08-09

DIPAK MISRA, SANJIV KHANNA

body2011
JUDGMENT Dipak Misra, C.J. CM Nos. 1396/2011, 1397/2011, 5295 /2011, 6876/2011 and 8614/2011 CM No. 1. 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. 2. CM No. 1397 /2011 has been filed by the Association for shifting the night shelter to an appropriate alternate site. 3. 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 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. 4. 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. 5. 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. 5. 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 electricity so that these permanent night shelters are optimally utilized and public funds are prudently spent. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 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 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. 11. 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. 12. 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. 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 NG Os, Mr. Najmi Waziri assures us that upon 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. 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 defining the role of each agency. It is also informed that several NG Os, 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 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 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. 13. 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. 13. 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, 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. 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. 2 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. 14. 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. 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 preferred by the shelter-less during the non-winter months. XXX 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. 15. 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. 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 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. 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. 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. 11. Apki Rasoi Program should be run by Delhi Govt. in each and every night shelter. 16. 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. 17. 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. 17. 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 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. 18. 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 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. 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. 19. 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. 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. (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. (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.