In the Court of State Commissioner for Persons with
Disabilities
National
Capital Territory of Delhi
25-
D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]
Case No. 635/1083/2018/12/2742-2743
Dated:13.06.2019
In the matter of:
Ms.
Vandana Thakur,
Mother
of Km. Neha Vats,
Flat
No.402, Naval Technical Officers CGHS,
Plot
No.-3A, Sector-22, Dwarka,
New
Delhi-110077. ....……… Complainant
Versus
The
Deputy Director (Building) L&I,
Delhi
Development Authority,
Vikas
Sadan, INA,
New
Delhi-110023.
..............
Respondent No.1
The President,
Naval
Technical Officers CGHS,
Plot
No.-3A, Sector-22, Dwarka,
New
Delhi-110077. ..………Respondent
No.2
Date
of hearing: 07.06.2019
Present: Ms. Vandana Thakur, Mother of Km. Neha
Vats, complainant alongwith her husband, Sh. Someshwar Thakur.
Sh. Praveen K. Dhamija, Dy.
Director (Bulilding) alongwith Sh. Roshan Lal, Asstt. Engineer (Building) for
Respondent no. 1.
Sh. Akhilesh Dixit, Adv. for
Respondent no. 2
Sh. Jaswant Singh Sagoo,
Member of NTO CGHS Ltd.
order
The above named complainant,
mother of Ms. Neha Vats, a person with intellectual disability (IQ 50-55) vide
her complaint dated 30.11.2018 submitted that she is a resident of Flat no. 402,
Naval Technical Officers CGHS Ltd. Plot no. 3 A, Sector 22, Dwarka, New Delhi
for the last 7 years. The said flat
originally belongs to her brother Sh. Vivek Sharma. Her daughter, Ms. Neha Vats who is now 20
years of age has been advised to be kept on the ground floor as there is a
possibility of her jumping from the upper floors. She also needs to be kept in a separate room
under care to ensure that she should not get hyper and cause any physical
injury to herself or others. She requires
supervision of an adult person through out of her life and sometimes she is not
aware whether she is wearing clothes or not.
Therefore, extra care on 24x7 basis is required to keep her moods and emotions
under control. She needs high support in
terms of physical and psychological needs for daily activities. She cannot do her daily routine work
including responding to the nature’s calls or wearing clothes, bathe etc.
2. The
complainant has further stated that Flat no. 402 is located at the ground floor
near the back gate of the Society and there is general movement of people near
the room where Ms. Neha Vats has been placed due to the location of ventilation
of the room. There is always a threat of
interference with her privacy as the room has a window to the open area. In order to protect her privacy and from
people peeping into the room due to the noise and her cries, the room was
temporarily covered by providing temporary wall in the year 2011. The area is L shaped and it already has roof
of the first floor on the top. Her
brother, Sh. Vivek Sharma decided to renovate/repair the house keeping in view
the requirements of Ms. Neha and a private contractor was engaged in 2018. However, the respondent no. 2 arbitrarily got
the work stopped denying reasonable accommodation to Ms. Neha. Her brother approached and requested for
temporary coverage to Delhi Development Authority, Registrar Cooperative
Societies and the Managing Committee of Naval Technical Officers CGHS. She also met the concerned officers in the
office of Vice Chairman, DDA who advised her to approach this Court. The
complainant further submitted that the Managing Committee has decided to get
temporary coverage demolished.
3. The
complainant requested to direct the respondent to regularize and approve the
temporary coverage against the fee as per law which has been done to meet the
specific needs of Ms. Neha. She also
requested that respondent no. 2 should not interfere and demolish the temporary
coverage and should not restrict the entry of workers carrying out the
renovation work and not cause any hindrance in peaceful living of Ms. Neha.
4. The
complaint was taken up with the respondents vide show cause notice dated 21.12.2018
under the Rights of Persons with Disabilities Act, 2016, hereinafter referred
to as ‘Act’ followed by reminder dated 09.01.2019.
5. Respondent
no. 2 vide short reply dated 04.01.2019 inter-alia
submitted that the complainant has suppressed the material facts and tried
to use this forum to achieve her illegal hold of encroachment upon the common
area meant for all members of the society.
The society is under obligation to follow the rules, bye-laws applicable
in National Capital Territory as set out by respondent no. 1, DDA. No member/occupant of any flat has the power
to violate the norms by making changes in the original structure of the
building. The complainant is not a
member of the Society as such she has no right, title or interest has accrued
to her. Her status is that of merely a
relative or guest. Complainant has
herself admitted encroachment in the common area. Sh. Vivek Sharma has converted his 3 bed room
flat into a 4 bed room flat. Therefore,
his name has not been sent to Registrar Cooperative Societies for
regularization. It has further been
submitted that for regularizing illegal encroachment, the appropriate forum is
the Monitoring Committee constituted by Hon’ble Supreme Court and not this
forum. It has also been alleged that
action of the complainant amounts to breaking of the law. The complainant
approached Registrar Cooperative Societies, DDA and also the Police to legalize
her encroachment on the common area of the Society.
6. Assistant
Director (Group Housing Societies) vide letter dated 29.03.2019 forwarded the summons
of this Court dated 20.02.2019 to Deputy Director (Building) L&I for
necessary action as the matter pertains to that Department.
7. Upon
considering the replies of the respondent and the rejoinder of the complainant,
a hearing was scheduled on 03.04.2019.
8. During
the hearing on 03.04.2019, Sh. Praveen K. Dhamija, Deputy Director (Building)
L&C who appeared on behalf of Respondent No.1, submitted that addition/alteration
in the flat (Varandah) can be regularised against payment of compounding
payment provided the society applies for it and addition/alteration is within
the FAR and as per the UBBL, 2016 and MPD, 2021. Until then, they have no role in the matter.
9. The
complainant reiterated her written submissions and stated that her case is
unique where safety, dignity and provision of reasonable accommodation of a
girl child with intellectual disability is involved. Therefore, DDA should
consider her request for regularisation of addition/alteration without the
requirement of going through the society particularly in view of the fact that
society may not be willing to apply. She
stated that her name has been endorsed by the Society on the reverse of the
Share Certificate No.629 which indicates that in the course of time, she will
become the owner/co-owner of the flat.
10. None
appeared on behalf of Respondent No.2 despite summons. The President of the Management Committee
of Naval Technical Officers CGHS was directed to submit whether the society
would apply for regularisation of the additions/alterations involved in the
interest of the girl child with intellectual disability on or before the next
date of hearing and ensure his/her
presence on 30.04.2019.
11. On
30.04.219, Sh. Rajender Arya, advocate appeared on behalf of respondent no. 2
and submitted the objections to the maintainability of the complaint. According to respondent no. 2, the relief
sought by the complainant is beyond the scope of Section 5 of the Act which
pertains to community living and prohibits award of any special relaxation by
way of unauthorised construction at the cost of indiscipline, encroachment,
unauthorized construction to be done in a community living and therefore the
State Commissioner has no power to allow any person with disability to violate
the Building Bye-laws. Sh. Arya
submitted that he would argue the matter on merit.
12. The
complainant stated that two of the three bedrooms in the flat open to the
drawing room and are close to the main entrance of the flat. The third room in which her disabled daughter
has been placed is the only suitable room as it is at the back side of the flat
and is away from the main gate with attached bathroom. A wall has been erected
below the balcony of the first floor flat creating space for a window on the
side wall which ensures cross ventilation and also blocks the direct view into
the room which is absolutely essential for protecting her privacy. This was done as the window of that room
directly opens towards the pathway and the passersby become curious and peep
into the room as her daughter has frequent mood swings and cries. Since this is
the safest arrangement for her stay in the flat, she is prepared to pay
compoundable amount for which there is a provision.
13. On
29.05.2019, the complainant submitted a copy of the ‘WILL’ registered on
28.05.2019 executed by Sh. Vivek Sharma, owner of Flat No. 402, Naval Technical
Officers CGHS, Plot No. 3A, Sector-22, Dwarka, New Delhi -110077 in favour of
his sister Ms. Vandana Thakur, the complainant herein that after his death, the
said property shall be owned by her. The complainant therefore stated that any
facility that is being created in the flat is primarily for the benefit / security/
privacy of Ms. Neha Vats.
14. Sh.
K.K. Ahuja, Clerk of Sh. Rajender Arya, advocate who had appeared on behalf of
respondent no. 2 on the last date of hearing submitted that new Managing
Committee of the Naval Technical Officers CGHS has been elected and Sh. Arya is
awaiting instructions from the new Managing Committee. He therefore requested for adjournment. As this complaint has been pending since
November, 2018, the matter was adjourned to 07.06.2019 and the parties were directed to make their submissions
on that day failing which the complaint would be disposed off based on
available record.
15. During
the hearing on 07.06.2019, Dr. Rakesh, Secretary of Naval Technical Officer
CGHS Ltd on behalf of respondent no. 2 filed written submissions. The relevant exptract of the same is
reproduced below:
“That
as per the direction of this Hon’ble Court vide its order dated 03.04.2019 in
case no. 635/1083/2018/12, we also submit that we will apply to Delhi
Development Authority for construction/addition of one Room in each 198 Nos. Of
Three Bed-Room flat, including Flat No 402, Membership No. 629, to take
advantage of increased Floor Area Ratio (F.A.R.) which has been enhanced in
Delhi as per “unified Building Bye Laws for Delhi 2016” (UBBL), and MPD, 2021. Necessary
direction may also please be issued to Delhi Development Authority in this
regard.”
16. The
complainant stated that while this would meet her requirement, various actions
that need to be taken at different stages should be executed within the minimum
time frame as the Society can apply after the agenda is approved in the General
Body Meeting of the Society.
17. Sh.
Jaswant Singh Sagoo, who appeared on behalf of respondent no. 2, stated that a Special
General Body Meeting will be called within three months and the decision will
be conveyed to the complainant and the Society will apply to DDA as per the requirement
within one month thereafter.
18. Sh.
Parveen Dhamija, Deputy Director (Building) stated that Society needs to apply
online for addition/alteration and the approval of the Competent Authority will
be communicated within one month after all the deficiencies, if any, are
removed.
19. In
light of the submissions of the respondents and the fact that addition/
alteration within the FAR and as per UBBL, 2016 and MPD 2021, is permissible as
submitted by the representative of the DDA, the following recommendations are
made:
(i) Respondent no. 2 shall issue notice for convening a Special
General Body Meeting of the society within 10 days and hold the meeting within 45 days from the date of receipt
of this order. Respondent no. 2 will
then apply online to DDA along with all the necessary documents within 20 days month from the date of holding the
Special General Body Meeting.
(ii) DDA shall convey its decision /approval to the Society within 20 days from the date of receipt
of online application with the
required documents.
20. An
action taken report shall be submitted to this Court by all concerned within 3
months from the date of receipt of this order as required under Section 81 of
the Act.
21. The
complainant during the hearing expressed her apprehension about any adverse
action being taken by the respondents.
In light of the written and oral submissions of the parties, respondent
no. 1 and 2 are advised not to take any adverse action.
22. The
complaint is disposed of.
23. Given
under my hand and the seal of the Court this 13th day of June, 2019.
(T.D. Dhariyal)
State
Commissioner for Persons with Disabilities
No comments:
Post a Comment