Nitesh Kumar Tripathi Vs. Commissioner North DMC & Executive Engineer (PWD) | Case No. 10/1101/2017/10/9664-67 | Dated: 05/09/2018

Dr. Nitesh Tripathi | The Commissioner, North Delhi Municipal Corporation | Case No. 4/1519/2017-Wel/CD/6442-43 | Dated: 27.03.2018

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

Phone 011-23216002-04, Telefax:011-23216005, Email: comdis.delhi@nic.in

(Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016)

Case No. 4/1519/2017-Wel/CD/6442-43                   Dated: 27.03.2018

In the matter of:                                                         

Dr. Nitesh Tripathi

H.No. 241, Gali No. 11, B-Block,

Sant Nagar, Burari,

Delhi-110084.                                                     …………..Complainant

The Commissioner,

North Delhi Municipal Corporation,

4^th Floor, Dr. S.P.M. Civic Centre,

New Delhi-110002.                                            …………….Respondent

Date of hearing:  22.03.2018

Present:              None

ORDER

          The above named complainant, a person with 65% of locomotor disability  vide his email dated 02.02.2017 submitted that the public toilets at Vivekanand Marg near Dr. SPM Civic Centre, New Delhi are not disabled friendly and there are no hand rails as well as ramps. Elevation from the ground level is not as per the standards.  There is no separate toilet for women with disabilities.  He further alleged that due to non-availability of public toilets,  persons with disabilities have to face great difficulty even in one of the most prominent public places i.e. the HQ of North Delhi Municipal Corporation (North DMC). He, therefore, requested to take necessary action in order to protect the rights of persons with disabilities. He also attached the photographs of the toilets alongwith his email and requested to order an access audit of the site by deputing an officer of this Court.

2.      The complaint was taken up with the respondent vide communication dated 20.02.2017 followed by reminders dated 29.03.2017 and  22.05.2017.  As there was no response, a hearing was scheduled on 28.08.2017. However, none appeared on behalf of the respondent.  Therefore,   full details of the case and the relevant provisions of the Rights of Persons with Disabilities Act, 2016(the Act) were brought to the notice of the respondent vide Rop dated 05.09.2017. The relevant extract of the said RoP is reproduced below:-

          “................Despite the fact that the complaint was taken up vide communication dated 20.02.2017 followed by reminders dated 29.03.2017 and 22.05.2017, no response whatsoever was received from the respondent which compelled this Court to schedule a hearing vide summons dated 17.08.2017.  Unfortunately, even the summons have not evoked any response from the respondent.  It is indeed a matter of concern for this court and persons with disabilities in general and the complainant in particular who has travelled a long distance and waited for more than two hours without any relief.  The state of public toilets, as brought out by the complainant which is a basic need, in the national capital when Government of India has launched Accessible India Campaign and in the year of coming into force of the Rights of Persons with Disabilities Act, 2016, does not augur well for persons with disabilities as far as the enjoyment of their right is concerned.
2.      This Court has taken suo-motu notice of inaccessible public places in National Capital Territory of Delhi and taken up with all the Civic Authorities and Urban Development Department, Govt. of NCT of Delhi vide notice dated 19.07.17 directing the respondents to show cause as to why the existing built environment meant for public use in the National Capital Territory of Delhi should not be made fully accessible to persons with disabilities as mandated in the Rights of Persons with Disabilities Act, 2016 and to submit their versions on or before 11.08.2017.  However, while some of the respondents have submitted the status, North Delhi Municipal Corporation has not responded to that notice as well.
...........4.     In the facts and circumstances of this case, I would like to bring to the notice of the Commissioner of North Delhi Municipal Corporation that besides exhibiting insensitivity towards the cause of persons with disabilities, the concerned functionaries of the Corporation also appear to be violating the mandatory provisions of the Rights of the Persons with Disabilities Act, 2016, thereby attracting the provisions of its Section 89 and 93,..............................................................”

5.      I would therefore request the Commissioner, North Delhi Municipal Corporation to impress upon the concerned officers to respond to the complainants/notices and submit a status report on the next date of hearing on 18.09.2017 at 11:30 a.m.  failing which this Court will be constrained to take action for enforcing attendance and initiate action for invoking the provisions of the above mentioned sections of the Act for imposition of the penalties as provided in the Act........”

3.      The RoP was sent to Sh. P.K. Gupta, the then Commissioner, North DMC under a  D.O. letter dated 05.09.2017.  On the next date of hearing on 18.09.2017, Sh. Dodrai, Superintending Engineer (Planning),  Sh. D.D.Gulati, Executive Engineer, Sh. A.S. Khan, Asstt. Engineer & Sh. R.K. Aggarwal appeared on behalf of the respondent and they submitted that they had not yet received the copy of the complaint and  the concerned authority for construction / modification of the toilets at Vivekanand Marg near Dr. S.P.M. Civic Centre is the Executive Engineer (Maintenance-II) S.P.M. City Zone.  Sh. A.S. Khan, who is the concerned Asstt. Engineer (Maintenance). They further  submitted that for modifications in the existing toilets and to make them disabled friendly, they would need funds and approval of the competent authority.  This would  take atleast three months after getting the budget from the competent authority.

4.      The observation and directions of this Court vide RoP dated 18.09.2017 are reproduced below:

“.........2.   It seems that the notices sent from this Court since February, 2017 are not being marked to the concerned officers and consequently there has not been any action in the matter. It is only after I wrote a D.O. letter to the Commissioner, North DMC on 05.09.2017 that the officers from the Corporation have  come to attend the hearing.  But the only purpose this has served is that the concerned officers have been handed over the papers. Non-receipt of the notices and non-response has been observed in other cases as well and therefore the Commissioner, North DMC may  like to look into the matter to streamline the flow of receipts to the appropriate and concerned officers for timely action.  A copy of the Notice of Complaint to Show Cause dated 19.07.2017 and the copy of the complaint alongwith communication dated 20.02.2017 has been handed over to Sh. A.S. Khan, Asstt. Engineer (Maintenance) for taking appropriate action.
3.      The time frame that Sh. A.S. Khan, has indicated for modifying existing toilets appears to be too long and therefore,  the respondent is advised to complete the work in accordance with the above mentioned guidelines within a month of receipt of this record of proceedings and submit an Action Taken Report by 27.10.2017.  If needed,  this Court is willing to extend whatever assistance it can .............”

4.      This Court is also organising a Conference on “Challenges and Strategies for Making Delhi a Model Barrier Free City” and an Exhibition on “Barrier Free World for All” from 13-15^th October, 2017 at India Gandhi National Centre for the Arts, New Delhi.  Commissioner North DMC may like to depute all the concerned officers for that conference.”

5.      Unfortunately, none appeared on the next date of hearing on 02.11.2017 despite the facts that the concern of this Court was conveyed to the respondent a number of times. On the next date of hearing on 06.12.2017, the representatives of the respondent submitted that the estimates of Rs. 4.5 Lakh for making the two toilets in question at Vivekanand Marg near SPM Civic Centre was prepared and submitted by the Works Department for budget allocation to the Director-in-Chief, DEMS (Director of Environment Management Services) on 20.09.2017.  The matter is being pursued with the DEMS Department.  As per their information, the file was with Execution Engineer, DEMS–II on 12.10.2017 which was later moved to AE-II on 17.10.2017.  It would take at least three months after allocation of budget.

6.      Considering the disproportionate time taken by the concerned authorities of North DMC for a small, yet an essential facility being unavailable for use by persons with disabilities, the matter was again brought to the notice of the Commissioner, North DMC for his attention and a copy each of three RoPs and the  D.O. letter were enclosed.  Thereafter on none of the three dates of hearings i.e. 15.01.2018, 05.02.20178 & 22.03.2018 neither the concerned officers of the respondent appeared nor was any status report submitted. 

7.      It is pertinent to mention that a Work Shop on Legislative / Statutory Provisions on Accessibility and Fundamentals of Barrier Free Environment and Access Auditing of all municipal buildings falling in North DMC was organised for the civil engineers, architects and other senior officers of North DMC, which was presided over by the Commissioner North DMC himself on 01.03.2018.  Provisions of Rights of Persons with Disabilities Act, 2016, `Harmonised Guidelines and Space Standards for Barrier-Free Built Environment for Persons with Disabilities and Elderly Persons’ issued by the Ministry of Urban Development, Govt. of India   and the National Building Code and the concept of universal design, Access audit, etc. were explained.  During the interaction with the participants, I specifically mentioned   about the large number of complaints on inaccessible physical environment particularly the toilets in the NCT of Delhi including this complaint.  Despite that, nothing seems to have happened for the reasons best known to the concerned officers of North DMC as the toilets in question remain in accessible till date. 

8.      The provisions that mandate making physical environment accessible and the offences and penalties for violation of the provisions  in the Act  which have been repeatedly quoted in various orders / RoPs by this Court are reiterated :

“40. The Central Government shall, in consultation with the Chief Commissioner, formulate rules for persons with disabilities laying down the standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas.

41. (1) The appropriate Government shall take suitable measures to provide—

(a) facilities for persons with disabilities at bus stops, railway stations and airports conforming to the accessibility standards relating to parking spaces, toilets, ticketing counters and ticketing machines;

(b) access to all modes of transport that conform the design standards, including retrofitting old modes of transport, wherever technically feasible and safe for persons with disabilities, economically viable and without entailing major structural changes in design;

(c) accessible roads to address mobility necessary for persons with disabilities.

(2) The appropriate Government shall develop schemes programmes to promote the personal mobility of persons with disabilities at affordable cost to provide for,—

(a) incentives and concessions;

(b) retrofitting of vehicles; and

(c) personal mobility assistance.

44. (1) No establishment shall be granted permission to build any structure if the building plan does not adhere to the rules formulated by the Central Government under section 40.

(2) No establishment shall be issued a certificate of completion or allowed to take occupation of a building unless it has adhered to the rules formulated by the Central Government.

45. (1) All existing public buildings shall be made accessible in accordance with the rules formulated by the Central Government within a period not exceeding five years from the date of notification of such rules:

Provided that the Central Government may grant extension of time to the States on a case to case basis for adherence to this provision depending on their state of preparedness and other related parameters.

(2) The appropriate Government and the local authorities shall formulate and publish an action plan based on prioritisation, for providing accessibility in all their buildings and spaces providing essential services such as all primary health centres, civil hospitals, schools, railway stations and bus stops.

46. The service providers whether Government or private shall provide services in accordance with the rules on accessibility formulated by the Central Government under section 40 within a period of two years from the date of notification of such rules:

Provided that the Central Government in consultation with the Chief Commissioner may grant extension of time for providing certain category of services in accordance with the said rules.”

89. Any person who contravenes any of the provisions of this Act, or of any rule made thereunder shall for first contravention be punishable with fine which may extend to ten thounsand rupees and for any subsequent contravention with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees. 

93. Whoever, fails to produce any book, account or other documents or to furnish any statement, information or particulars which, under this Act or any order, or direction made or given thereunder, is duty bound to produce or furnish or to answer any question put in pursuance of the provisions of this Act or of any order, or direction made or given thereunder, shall be punishable with fine which may extend to twenty-five thousand rupees in respect of each offence, and in case of continued failure or refusal, with further fine which may extend to one thousand rupees for each day, of continued failure or refusal after the date of original order imposing punishment of fine.

9.      Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) vide Rule 15 of the Rights of Persons with Disabilities Rules, 2017 have already notified that every establishment shall comply with the standards for public building as specified in the Harmonised Guidelines and Space Standards for Barrier-Free Built Environment for Persons with Disabilities and Elderly Persons issued by the Ministry of Urban Development, Govt. of India in March 2016.

         

10.    In view of the above, there has been a clear violation of Section 41 of the Act and Rule 15(1) (a) of the RPwD Rules, 2017 in this case.  Considering inordinate delay in implementing the advice / recommendations so far made, no purpose may be served by scheduling hearings endlessly.  Therefore, it will be expedient to dispose off the complaint and make final recommendations.  Accordingly, the following recommendations are made for implementation by the respondent:

(i)            Public toilets at  Vivekanand Marg near Dr. S.P.M. Civic Centre be made accessible for persons with disabilities strictly according to the Harmonised Guidelines and Space Standards for Barrier-Free Built Environment for Persons with Disabilities and Elderly Persons issued by the Ministry of Urban Development, Govt. of India within two months from the date of receipt of this order; and

(ii)         Functionaries responsible for delaying implementation of the advice / recommendations made in the RoP dated 18.09.2017 be identified and their names be intimated to this Court within two months from the date of receipt of this order alongwith the reasons as to why the recommendations were not implemented by them and why action should not be taken against them under relevant sections of Chapter XVI of the Act.

11.  The respondent is directed to inform this Court of the action taken on the above recommendations within three months from the date of receipt of this order.

12.    The matter is disposed off.

13.    Given under my hand and the seal of the Court this 27^th  day of March,2018.     

( T.D. Dhariyal )

State Commissioner for Persons with Disabilities

Dr. Satendra Singh Vs. Delhi & District Cricket Association | Case No. 4/967/2015-Wel./CD/6183-86A | Dated: 16.03.2018

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.

Phone-011-23216002-04, Telefax: 011-23216005, Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 4/967/2015-Wel./CD/6183-86A               Dated: 16.03.2018

In the matter of:

Dr. Satendra Singh,

Coordinator Enabling Unit,

University of Delhi,

Guru Teg Bahadur Hospital,

New Delhi-110095.                                              .……… Complainant     

                                                   Versus

The Hon.General Secretary/ President,

Delhi & District Cricket Association,

Ferozshah Kotla Ground,

New Delhi-110002.                                                  …...…Respondent

ORDER

                  The above named complainant, a person with 70% locomotor disability vide his complaint dated 29.04.2015  submitted that the Feroz Shah Kotla Cricket Stadium is not accessible for persons with disabilities.  They cannot enjoy equal access to entertainment, recreation and leisure.  The complainant also submitted that he could not watch IPL T20 and  other cricket matches to be held at that venue.  He specifically pointed out that the stadium has huge steps without side railings, there is no separate queue for spectators with disabilities and there are no reserved parking, seats and accessible toilets.  He made the following suggestions :

(i)           Reserve seats for people with disabilities in the stadium.  These seats should be wheelchair accessible as well.  The companion seat should be given so that people with disabilities are not isolated from other spectators or their friends or family. 

(ii)         There should be reserved accessible parking for people with disabilities close to the entrance gate or a special gate should be earmarked.

(iii)        The path to the stadium and seat should be accessible so that even a wheelchair user can move independently.  Access routes should be either levelled or have the shallowest possible gradient.  Any route or part of a route steeper than 1:20 should conform to the recommendations for ramped access.

(iv)        The toilets should be made accessible.

(v)         There should be lift to reach all vertical levels and ramped access for horizontal access.

(vi)        A dedicated officer should be assigned to look into any problem  a spectator with disability may have during the duration of the match and his contact number should be given on all reserved tickets allotted for spectators with disabilities.

(vii)      Exit should be separate for spectators with disabilities

2.           The complaint was taken up with the Chief Administrator, Delhi and District Cricket Association (DDCA)  vide communication dated 01.05.2015 with the directions to submit comments. 

3.           The respondent  vide reply dated 20.05.2015 and 08.02.2015 submitted that the DDCA is a  Company  registered  under the Companies Act 1956.  Hence the complaint was not maintainable.  It was neither Govt./State nor Local Authority as held by the Hon’ble Supreme court in the matter of Dalco Engineering Private Ltd. Vs Shree Satish Prabhakar Padhye and Others (2010).  The respondent further submitted that despite being a Private Company it has made suitable arrangements for convenience of persons with disabilities. However, at any given point of time in a match atleast 35000 spectators occupy the ground / stands. Consequently,  it becomes difficult to manage the affairs.  Sufficient temporary arrangements for disabled friendly toilets are also made during the matches.  However, the entire premises cannot be made disabled friendly due to financial and other constraints.

4.           The then Chief Administrator Sh. Pradeep Kr. Banerjee vide his letter dated 12.10.2015  also submitted that he is a mere employee of the DDCA and only the Director of the Company or the President / General Secretary of DDCA would  be in a position to represent the  DDCA.  Therefore, a number of communications were also addressed to the Director, DDCA and subsequently to Joint Secretary/President, DDCA.

5.           The then Commissioner for Persons with Disabilities also heard the parties on 24.06.2015, 10.08.2015, 05.10.2015, and 09.11.2015. As there were no updates, the summons to appear U/S 82 of the Rights of Persons with Disabilities Act (the Act) which came into force w.e.f. 19^th April, 20017 was  issued on 23.10.2017.     In the said summons, the attention of the respondent was drawn to Section 46 of the Act  which provides that the service provider whether Government or private shall provide services in accordance with the rules on accessibility formulated by the Central Govt. under Section 40 within a period of two years from the date of notification of such rules.  It was also brought to the notice of the respondent that the Rule 15 of the Rights of Persons with Disabilities Rules,  2017 notified by Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) vide notification dated 15.06.2017,  provides that the standard for public buildings as specified in the ‘Harmonised Guidelines and Space Standards for Barrier Free Built Environment for Persons with Disabilities and Elderly persons’ as issued by the Govt. of India, Ministry of Urban Development in  2016 shall be complied by every establishment. The matter was scheduled for hearing on 14.11.2017.

6.           Although the main Counsel  Sh. Saurabh Chadda was not available during the hearing, in view of the fact that the case was pending since May 2015, the respondent was advised that an access audit of the stadium by persons who are trained in Access Audit should be conducted to begin with.  All  provisions that are necessary to enable persons with disabilities to access the stadium and other facilities in accordance with the guidelines notified by the Department of Empowerment of Persons with Disabilities should be made accessible to persons with disabilities.  

7.           On the next date of hearing on 11.01.2018,   the main Counsel of the respondent was again not available.  Vide RoP dated 12.01.2018 in view of mandatory provisions of the Act on the subject, the respondent was directed to take immediate action to conduct an accessibility audit of the stadium and submit a report by 25.01.2018 and the matter was scheduled for hearing on 08.02.2018.

8.      On 08.02.2018, Sh. Rohit Bhagat Proxy Counsel of the respondent submitted that an  affidavit of compliance of the directions vide Record of Proceedings dated 11.01.2018 had been prepared but the same was awaiting signature of the authorised officer in DDCA.  The affidavit would  be filed in a few days.   

9.      The complainant who was heard on telephone suggested that a joint visit of the stadium by him, Civil Engineer and a representative of this Court should be organised to ensure that provisions of appropriate facilities for persons with disabilities are as per the prescribed standards.

10.         The respondent was  directed to arrange a visit of the stadium by a Team comprising the complainant, who has experiential knowledge of Access Audit besides bring a person with disability, the concerned Civil Engineer of DDCA and other officials as deemed fit and an officer from this court on any mutually convenient date between 15.02.2018 and 28.02.2018.  The team would submit its recommendations for provision of appropriate facilities. It was also suggested that DDCA could consider making Feroz Shah Kotla Stadium as a Model Accessible Stadium for persons with disabilities in Delhi.  Inputs from the ‘Guide Book on Creating Sporting & Recreational Activities for Persons with Disabilities’ published by the Office of Chief Commissioner for Persons with Disabilities in 2007 would also be taken. It was however, made clear that this suggestion should not delay the process of implementing the current proposals of the respondent to make the stadium accessible.

11.             The respondent vide affidavit of compliance dated 21.02.2018 inter-alia submitted as under:

“(i)             That in compliance of the above said order dated 11.01.2017 immediate directions were given to Sh Ajay Kumar Chaurassia, Civil Engineer of DDCA by the Hon’ble Justice (Retd.) Vikramjit Sen, who is presently the Court appointed Administrator of the respondent DDCA, to conduct an audit of the Feroz Shah Kotla Ground.  Furthermore, Chief Engineer was instructed to give his proposals regarding the subject herein and submit a report immediately.  The same is produced in the following paras.

(ii)          That it is submitted in this regard that construction of the toilets for the Disabled persons and installations of railing for the ramp exits has been completed and is well maintained in the Hill A area, whereas in relation to Hill B area construction work of toilet for the handicapped, grab bar in toilet and installations of railing for the ramp is under process.

(iii)         That construction of seating area at the ground floor of East as well as of West stand for the Disabled persons has been proposed having fully furnished facilities which includes proper barricading along with ramp and overall capacity of 50 persons each stand.

(iv)         That appointment of the volunteers to assist the physically handicapped persons/spectators during the time of a match/event and to escort them to these stands is proposed.

(v)          That in addition to the above it is also proposed to allocate some points inside as well as outside the premises of the Feroz Shah Kotla Stadium from where handicapped persons can be picked up by a vehicle from the respective stands and dropped at the stadium gate”.

12.         The respondent organised an access audit of the stadium on 27.02.2018, by an Access Audit Team comprising of the complainant, a Civil Engineer & an Architect of DDCA and two functionaries of this Court.  The Access Audit Committee has submitted its report with its recommendations.

13.         It will be in the fitness of things for this Court to also incorporate in this order, the specific provisions in the Act to ensure effective participation in sporting activities of the persons with disabilities for which accessibility of stadia and all other sports facilities is pre-requisite.  The relevant sections are Section 30 and Section 47(1)(e) which are reproduced below:

Section 30:

“(1)The appropriate Government shall take measures to ensure effective participation in sporting activities of the persons with disabilities.

(2) The sports authorities shall accord due recognition to the right of persons with disabilities to participate in sports and shall make due provisions for the inclusion of persons with disabilities in their schemes and programmes for the promotion and development of sporting talents.

(3) Without prejudice to the provisions contained in sub-sections (1) and (2), the appropriate Government and the sports authorities shall take measures to,—

(a) restructure courses and programmes to ensure access, inclusion and participation of persons with disabilities in all sporting activities;

(b) redesign and support infrastructure facilities of all sporting activities for persons with disabilities; (c) develop technology to enhance potential, talent, capacity and ability in sporting activities of all persons with disabilities;

(d) provide multi-sensory essentials and features in all sporting activities to ensure effective participation of all persons with disabilities;

(e) allocate funds for development of state of art sport facilities for training of persons with disabilities;

(f ) promote and organise disability specific sporting events for persons with disabilities and also facilitate awards to the winners and other participants of such sporting events”.

Section 47 (1) (e):

             “...................the appropriate Government shall endeavour to develop human resource for the purposes of this Act and to that end shall—

....................(e) conduct training programmes for sports teachers with focus on sports, games, adventure activities”

14.         With a positive approach of DDCA now, it is expected that the stadium will be made truly accessible to persons with disabilities to make their rights to participate in sports activities real and on equal basis with others.  It is reiterated that any support that is possible for this Court, will be extended to make the Feroz Shah Kotla Stadium a model accessible stadium for persons with disabilities in Delhi which can be replicated elsewhere in the country. 

15.         An ATR  be submitted to this Court within three months from the date of receipt of this Order as required under Section 81 of the Act.

16.         Considering that accessibility of stadia and sports facilities throughout the country is critical for effective participation in sporting activities of persons with disabilities on equal basis with others, a copy of this order is being sent to the concerned Ministries / Departments and other authorities in the Government of India among others for necessary action as deemed fit and if necessary to support and guide DDCA in making Feroz Shah Kotla Cricket Stadium a model accessible stadium.

17.         The matter is disposed off accordingly.

18.         Given under my hand and the seal of the Court this 16^th  day of March, 2018.     

           (T.D. Dhariyal )

                     State Commissioner for Persons with Disabilities

Copy to :

1.    Secretary, Department of Sports, Ministry of Youth Affairs and Sports, Govt. of India, R.No. 3, C-Wing, Shastri Bhawan, New Delhi.

2.    Secretary, Department of Empowerment of Persons with Disabilities, Ministry of Social Justice & Empowerment, 5th Floor Paryavaran Bhawan, CGO Complex,  Lodhi Road, New Delhi-110003.

3.    Secretary, Social Welfare Department, GNCT of Delhi, Delhi Gate, New Delhi.