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. 4/1693//2017-Wel./CD/3899-3902
Dated: 17.01.2018
In the
matter of:
Dr.
Sudhansu Singh, Secretary
K. S.
Memorial Trust
M-124,
Rama Krishna Vihar
Plot
no. 29, I.P. Extension
Delhi
-110092
.......................Petitioner
Versus
The Chief Executive Officer
Delhi Urban Shelter Improvement Board
Govt. of NCT of Delhi
Punarwas Bhawan, I.P. Estate
New Delhi -110002 .........................Respondent No. 1
The Pr. Secretary
Land and Building Department
B-Block, Vikas Bhawan,
I.P. Estate, New Delhi -110002 .........................Respondent
No. 2
Date
of Hearing: 09.01.2018
Present:
Dr. Sudhansu Singh, Secretary, K.S. Memorial Trust,
Sh. Kanhayia Priyadarshi, Advocate, Sh. Inderjeet Singh, Trustee, Sh. Rajendra
Kumar, DD (DUSIB), Sh. Kanhayia Lal, Asstt., DUSIB
ORDER
The above named complainant vide his
complaint dated 21.07.2017 submitted that K.S. Memorial Trust is registered
under the Trust Registration Act and persons with disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (PwD Act)
and is working in the field of education
and rehabilitation services for persons
with disabilities,. It also conducts D.
Ed Special Education from time to time.
The Trust had applied for allotment of a plot of land of 3000 sq. Mts.
for development of human resource, education and diagnostics for children with
disabilities under the provisions of section 43 of the PWD Act. Office
of Commissioner for Persons with Disabilities vide letter dated 20.5.2002 had
asked Land and Building Department, Delhi Government to allot land on
preferential basis at concessional rate.
Social Welfare Department vide their letter dated 6.12.1999 to DDA, MCD,
NDMC also asked them to allot land as per provision of section 43 of PwD
Act. Supreme Court in WP (C) No.
576/2004 also directed in this regard.
The complainant further submitted that as per the tentative list of
institutional allotment of the open land allotted to various government
agencies/departments, NGOs etc., Delhi Urban Shelter Improvement Board (DUSIB) allotted
land to public schools, trusts, government schools, temples, Masjids,
Gurudwaras, hospitals, etc, but did not allot any land to organisations working
in disability sector. Thus, the
disability sector is being discriminated against. The complainant also submitted that following
an order dated 03.08.2009 of the Chief Commissioner for persons with
disabilities, Hon’ble High Court of Delhi directed Delhi Development Authority
to allot a plot of land to ChandraBhushan Singh Memorial, Mahila, Bal Evam
Shravan Viklang Shiksha Evam Punaravas Sansthan, Delhi. He therefore requested that DUSIB may be
directed to allot a plot of land to the K.S. Memorial Trust.
2. The
complaint was taken up with the respondents vide notice dated 24.08.217. The Respondent No. 2 vide letter dated
18.09.2017 informed that Land and Building Department, Govt. of NCT of Delhi
does not deal with cases of allotment of land/plots to any government
agency/government department/NGO/Private Individuals. The case pertains to DUSIB and DDA who have
the mandate to allot plot /land.
Therefore the show cause notice issued to Pr. Secretary, Land &
Building Department should be withdrawn.
3. DUSIB vide
letter dated 26.09.2017 submitted list of the allotments made to the government
departments as well as religious institutions/NGOs prior to the formation of
the Board in the year 2010. After
formation of the Board under DUSIB Act, 2010, no such allotment of land has
been done. They suggested that the
complainant may approach DDA as DUSIB is mandated for rehabilitation of slum dwellers
and has no policy for allotment of land to trusts/NGOs/individuals etc. Thus the department has not made any discrimination. The Respondent No. 1 also submitted a status
report which is reproduced below:
“STATUS/REPORT
IN RESPECT OF COMPLAINT AGAINST RESPONDENT NO. 01 (DUSIB)THAT DUSIB IS
DISCRIMINATING AGAINST PERSONS WITH DISABILITIES IN THE MATTER OF PREFERENTIAL
ALLOTMENT OF LAND AT CONCESSIONAL RATES FOR PERSON WITH DISABILITIES IN THE
MATTER OF ALLOTMENT OF LAND MEASURING 3000 SQ. MTRS. FOR RUNNING SOCIAL
ACTIVITIES TO THE PERIOS WITH DISABILITY /PHYSICALLY HANDICAPPED APPLIED BY
K.S. MEMORIAL TRUST.”
“In
reference to the Notice to Show Cause under Section 82 of the RPwd Act, 2016,
it is informed that K.S. Memorial Trust vide his request dt. 21.1.2017
requested for allotment of land measuring 3000 sq. Mtr. For running Social
activities to the persons with Disabilities/Physically handicapped. In pursuance of the letter No. F.
7/KSMT/DLY/Land/2017123 dated 27.1.2017 addressed to CEO, DUSIB forwarded by
Shri Raju Dhingan, Hon’ble MLA (Trilokpuri Constituency), Govt. of NCT of Delhi
vide letter No. RD/MLA/AC_55/2017-18/6816 dated 24.1.2017, the reply has been
sent to the petitioner Dr. Sudhansu Singh, Secretary, K.S. Memorial Trust
(Regd., 124, RamaKrishna Vihar, Plot No. 29, I.P. Estension, Delhi -92 vide
this office letter no. F-14/Misc./DD/IAL/RB/DUSIB/2017/D-26 dated 27.2.2017 on
the subject matter (copy enclosed for ready reference).
Subsequently,
in compliance of the directions issued by OSD to Hon’ble Chief Minister, govt.
of NCT of Delhi vide letter No. DCMR/2017/210 dated 09.02.2017 on the request
of petitioner. The proposal has also
been re-examined by the department and accordingly, an intimation has also been
issued to the petitioner along with the endorsement to OSD to Dy. Chief
Minister, Govt. of NCT of Delhi vide this office letter No.
F.14/Misc./DD/IAL/RB/DUSIB/2017/D-29 dt. 01.03.2017. (Copy enclosed for kind
perusal).
Moreover,
in view of above, it is submitted that as per the record of Institutional
Allotment Land Branch, no allotment is being made by this department after
formation of DUSIB as there is no prescribed policy for allotment of
institutional land to Religious Institutions/NGO’s/Trust’s Individual etc. in
force in Delhi Urban Shelter Improvement Board (DUSIB) since the Slum & JJ
Department MCD has reformed as DUSIB vide Notification No.
F-14(8)/LA/2007/Law/217 dated 31.5.2010 and in Board’s meeting held on
04.7.2012, the Board had resolved to retrieve the land of DUSIB. As per the decision taken in Board’s meeting,
the requests for allotment-cum-regularisation of land cannot be considered in
view of the above facts. (Copy
enclosed).
Further,
it is also informed that at present DUSIB is considering the cases for
allotment of land to Government Department only on their request. As such, the allotment of land in favour of
the Non-Government Organisation (s) cannot be considered in view of the above
facts. At present, there is no prescribed policy for allotment of land to the
Religious Institutions/NGO’s/Trust’s /Individual etc. for such type of case for
allotment of land to K.S. Memorial Trust was not acceded to. Accordingly, find enclosed herewith a list of
407 nos of allotment which have already been made upto 2006 to the Government
Departments as well as Religious Institutions/NGO’s etc. for the very purpose
prior to formation of DUSIB for kind information and perusal please.
Keeping
in view of the facts postulated above, it is stated that there is no
discrimination against the Persons with Disabilities in the matter of
preferential allotment of land.”
4. Vide
rejoinder dated 26.07.2017, the complainant reiterated his contention in the
complaint and stated that DUSIB did not allot any plot of land in any rehabilitation
colony for education and skill development training of children with disability
whereas the plots of land were allotted to public schools, clinics etc. despite
the fact that DUSIB Act, 2010 and PwD Act, 1995 have provision for such
allotments.
5. Upon
consideration the written submissions of the parties, a hearing was scheduled
on 09.01.2018.
6. During the
hearing on 9.1.2018, Ld. Counsel for the complainant reiterated the submissions
that Section 43 of the Persons with Disabilities Act, 1995 mandated DUSIB to frame
schemes in favour of persons with disabilities for preferential allotment of
land at concessional rate for establishment of special schools among other
things. Since the respondent no. 1 did
not frame such a scheme, persons with disabilities got deprived of their rights
under the said Act. The respondent did
not frame the scheme even after the directions of Hon’ ble Supreme Court vide order
dated 04.03.2009 in Writ Petition No. 56 and 576 of 2004 and 580/2003. The provisions of section 43 of the PwD Act
have been carried forward to the rights of Persons with Disabilities Act, 2016
in section 37. Clause (c) of the
said section requires the respondent to make schemes providing for 5%
reservation in allotment of land on concessional rates. He further submitted that K.S. Memorial Trust
is also engaged in welfare of persons with disabilities in the field of
education and rehabilitation and therefore is entitled to avail the benefit of
reservation under the scheme to be framed by the respondent. He also referred to the requirement of making
provision for schools and training centres for mentally/physically challenged
with differential development norms under clause 20(o) of the Master Plan for
Delhi -2021 published by Delhi Development Authority on 07.02.2017. Section 12(3) of DUSIB Act, 2010 also
provides that the redevelopment scheme referred to in sub-section (1) may
provide for construction and disposal by sale or lease of land for commercial,
residential, institutional and light industrial use or any one or more of them
as per the provisions of the Delhi Development Act, 1957 (61 of 1957) and those
of the Master Plan for Delhi and Zonal Development Plans, etc. prepared there under.
The Learned Counsel for the complainant emphasised that the respondent must
make provision for reservation for persons with disabilities in the schemes for
rehabilitation or relocation or resettlement for slum dwellers strictly in
accordance with section 37 of the Rights of Persons with Disabilities Act,
2016.
7. The
representatives of respondent No. 1 reiterated the written submissions and
emphasised that Delhi Urban Shelter Improvement Board in its 6th
meeting held on 23.02.2012 resolved that allotment of institutional land may be
restricted to Government Departments (Health and Education) and Government
utilities. Therefore, there is no policy
for allotment of such land to any NGO, religious institutions, organisations,
trusts etc.
8. Section 43 of the Persons with
disabilities (Equal Opportunity Protection of Rights and Full Participation)
Act, 1995 which stands repealed with coming into force of the Rights of persons
with Disabilities Act, 2016 w.e.f. 19.04.2017, provided as under: -
“43. Appropriate Governments and Local
Authorities shall by notification framed schemes in favour of person with
disabilities for preferential allotments of land at concessional rates for: -
a) House;
b) Setting
up of business;
c) Setting
up of special recreational centres;
d) Establishment
of special schools;
e) Establishment
of research schools;
f) Establishment
of factories by entrepreneurs with disabilities;”
9. Section 15 of
Delhi Urban Shelter Improvement Board Act, 2010 provides,
“the Board shall, as
far as may be make use of the land under this chapter belonging to the
government, the Central Government, a local authority, government undertaking
or autonomous body in preference to others.”
10. It is
observed that DUSIB did not frame any scheme under section 43 of the PwD Act,
1995. From the tentative list of the
instititutional allotment to 407 government departments/NGOs/Institutions to
which DUSIB allotted land during the period 1981 and July 2015, it is observed
that land was allotted to NGOs also upto the year 2003. However, after constitution of DUSIB, land
was allotted only to government departments/organizations namely Mother Dairy,
DMRC, DJB, IGL and DHS. Before 2010, 391
organisations were allotted the land. Had
a scheme been framed under section 43 of the PwD Act, 1995, some applicants
might have been allotted land on preferential basis at concessional rates in
favour of persons with disabilities.
Since such a scheme was not framed and the complainant applied after
2010 and now that the said Act has been repealed, DUSIB cannot be directed to
allot the land to the complainant at this stage under the said Act.
11. Section 37
(c) of the Rights of the Persons with Disabilities Act 2016 provides that
appropriate Government and local authorities shall, by notification, make
schemes in favour of persons with benchmark disabilities, to provide for 5 %
reservation in allotment of land on concessional rates where such land is to be
used for the purpose of promoting housing, shelter, setting up of occupation,
business, enterprise, recreation centres and production centres. There is no mention of provision for
allotment of land for development of human resource, education or diagnostic
services and Government of NCT of Delhi has not framed any scheme for such
purposes.
12. In light of
the above discussion, no recommendations can be made for allotment of land on
preferential basis at concessional rates as prayed by the complainant. However, respondent No. 1 is advised to make
schemes in favour of persons with benchmarked disabilities to provide 5%
reservation in allotment of land at concessional rates for the proposes
outlined in section 37(c) of the Rights for Persons with Disabilities Act, 2016
and inform this court within 3 months of receipt of this order as required
under Section 81 of the said Act.
13. The matter is disposed off.
14. Given under my hand and the seal of the
Court this 16th day of January, 2018.
(T.D. DHARIYAL)
Commissioner for
Persons with Disabilities
N.O.O
Copy
to: - Secretary, Department of Social Welfare, GLNS Complex, Delhi Gate, Delhi
-1100001
