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,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
Case No.
237/1101/2018/05 Dated:15.10.2019
238/1101/2018/05
239/1101/2018/05
240/1101/2018/05
241/1101/2018/05
242/1101/2018/05
243/1101/2018/05
244/1101/2018/05
245/1101/2018/05
246/1101/2018/05
247/1101/2018/05/6629-6644
In the matter of :
SUO-MOTU
Versus
The District
Magistrate (North East),
D.C. Office Complex,
Nand Nagri,
Opposite Gagan
Cinema,
Delhi-110093 .....Respondent
No.1
The District Magistrate
(South East)
Old Gargi College
Building,
Lajpat Nagar-IV, New
Delhi-110024 .......Respondent No.2
The District
Magistrate (New Delhi)
12/1, Jam Nagar
House, Sahajahan Road,
New Delhi-110011. .......Respondent
No.3
The District
Magistrate (North)
Alipur,
Delhi-110036 .......Respondent No.4
The District
Magistrate (North West)
Kanjhawala,
Delhi-110081. ......Respondent
No.5
The District
Magistrate (Shahdara)
Nand Nagri, Opposite
Gagan Cinema,
Delhi-93. .....Respondent No.6
The District
Magistrate (Central)
14, Darya Ganj,
New Delhi-110002 .....Respondent
No.7
The District
Magistrate (East)
L.M. Bund, Shashtri
Nagar,
Delhi-110031. ....Respondent No.8
The District
Magistrate (South West)
Old Terminal Tax
Building Kapashera,
New Delhi-110037 ……Respondent
No.9
The District
Magistrate (South),
M.B. Road, Saket, New
Delhi-110068. .....Respondent No.10
The District
Magistrate (West),
Old Middle School
Building
Lawrance Road,
Rampura,
Delhi- 110085. ....Respondent No.11
Secretary
revenue-cum-Divisional Commissioner
GNCT of Delhi, 5-Sham Nath Marg
Delhi-110054. ....Respondent
No. 12
(Impleaded on 16.07.2019)
Last date of Hearing: 24.09.2019
Present: Sh. Hemant Kumar,
Tehsildar for respondent no. 5.
Sh. Brijesh Kumar, Tehsildar
(Patel Nagar), Distt. West alongwith Sh. Kushal Raj (Legal Assistant) on behalf
of Respondent No. 11
ORDER
The Rights of
Persons with disabilities Act, 2016, hereinafter referred to the “Act”, enacted
by Parliament received the assent of President on 27.12.2016 which came into
effect from 19.04.2017. The Act has been
enacted to give effect to the United Nations Convention on the Rights of Persons
with Disabilities, which lays down certain principles for empowerment of
persons with disabilities. Respect for inherent
dignity, freedom to make one’s own choices, independence, non- discrimination,
full and effective participation and inclusion in every aspect in the Society,
acceptance of persons with disabilities as part of human diversity and accessibility
are prominent among the principles of the convention.
2. Section 45 (1) of the Act provides, “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”. Sub Section
(2) of the said Section also provides that “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.”
3. Section 46 of the Act
provides, “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.”
4. As per Section 2 (w) of the Act, “public building” means a Government or
private building, used or accessed by the public at large, including a building
used for educational or vocational purposes, workplace, commercial activities,
public utilities, religious,
cultural, leisure or recreational activities, medical or health services, law
enforcement agencies, reformatories or judicial foras, railway stations or
platforms, roadways bus stands or terminus, airports or waterways;”
5. As per Section 2(x) of the Act, “public facilities and services” includes all forms of delivery of
services to the public at large, including housing, educational and vocational
trainings, employment and career advancement, shopping or marketing, religious, cultural, leisure or recreational,
medical, health and rehabilitation, banking, finance and insurance,
communication, postal and information, access to justice, public utilities,
transportation.”
6. Rule 15 of the Rights of Persons with
Disabilities Rules, 2017 (The Rules) requires that the standards for public buildings as specified in the “Harmonised
Guidelines and Space Standards for Barrier Free Built Environment for Persons
with Disabilities and Elderly Persons” issued by the Government of India, Ministry of Urban Development
in 2016 shall be followed.
7. Section 44 of the Act also mandates that-
“(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.”
8. Section
89 of the Act provides for “punishment
for contravention of the provisions of the Act or Rules or regulations made
thereunder. The first contravention by
any person is punishable with fine which may extend to Rs. 10,000/- and for any
subsequent contravention, the fine shall not be less than Rs. 50,000/-, but
which may extend to Rs. 5,00,000/-.”
9. Section
93 of the Act provides for “punishment
for failure to furnish information/documents which is punishable with fine to
the extent of Rs. 25,000/- in respect of each offence and in case of continued
failure or refusal, with further fine of Rs. 1,000/- per day.”
10. In view
of the above mentioned mandatory provisions of the Act, this Court took suo
motu cognizance of inaccessible built environment and transport in NCT of Delhi
and took up with the concerned authorities vide show cause notice dated
19.07.2017 in case no. 4/1665/2017-Wel/CD.
In that case, 14 Departments of Govt. of NCT of Delhi, all the civic
authorities including DUSIB, DDA, Cantonment Board are the respondents. During
the course of a series of hearings, appropriate directions have been given and
a Monitoring Committee under the Chairmanship of Principal Secretary, Urban
Development has also been constituted to monitor implementation of the action
plans submitted by the concerned respondents which are available in the website
of this Court. None of the respondents
in the said suo motu case submitted the information, action plan in respect of
the places of worship, hotels and restaurants, places of entertainment, apparently
because most of these belong to private establishments/trusts.
11. With a
view to ensure that the issue of accessibility and the rights of persons with
disabilities are addressed in a wholistic manner and in real sense of the term as
intended in the Act, all the respondents (11 District Magistrates of Govt. of
NCT of Delhi) were requested to take appropriate action to make the places of
worship in their districts accessible for persons with disabilities vide letter
dated 09.05.2018 to ensure that they are also able to enjoy their right
to worship on equal basis with others. They
were also requested to obtain information from the concerned
authority/organization and an action plan with timelines to make each place of
worship accessible in the following form and to send a consolidated list to
this Court by 04.07.2018:
S.No.
|
Name
& address of place of worship
|
Controlling
authority / organisation of the place of worship
|
Whether Place of worship is
fully accessible for persons with disabilities (Y/N)
|
If not
accessible, target date for making the place of worship fully accessible to
persons with disabilities
|
Remarks
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
(6)
|
12. As there was no response from the concerned
District Magistrates except DM, South East and DM, North-East despite
two reminders dated 11.07.2018 and 28.09.2018, suo motu cases were
registered. Hence, a notice of hearing
dated 24.05.2019 was issued with the direction to the District Magistrates to
submit the information in the prescribed format by 12.06.2019 and to appear
on 19.06.2019. In view of certain deficiencies and the fact that all the
places of worship in South-East District and North-East District were not
accessible, they were also included in the array of respondents, though they
were exempted from appearing.
13. Four
hearings had to be held to obtain the information that was sought more than a
year ago on 09.05.2018. Even after lapse of nearly 1½ years and three
letters dated 09.05.2018, 11.07.2018, 28.09.2018, suo motu notices and four
personal hearings, the information that has been received from some of the District
Magistrates is still incomplete and in some cases are incorrect. In view of this and the fact that the
concerned authorities/ duty bearers have already overshot the time prescribed
in the Act to make the public facilities and services accessible for
persons with disabilities and are now liable to be tried for contravention of
the provisions of the Act/Rules by the Special Court, i.e. the Court of Additional
Sessions Judge-02 in each district designated by notification no.
FNo.1/19/2018-Judi/Suptlaw/1499-1507 dated 19.08.2019 of Department of Law,
Justice and Legislative Affairs, it is considered expedient to dispose of the
cases and make recommendations for implementation by the concerned
authorities.
14. Before
doing so, I would like to record my key observations during the journey of 1
year and four months which, if all the District Magistrates had taken timely
action, would have finished in 2-3 months and much of the work of creating
awareness amongst the concerned persons and making the places of worship
accessible, would have already been done by now. Be that as it may, it is desirable that the
positive and affirmation action is initiated sooner.
15. The
summary analysis of the information received from the 11 District Magistrates is
given in the following table:
District
|
Total
number of places of worship
|
Number
of accessible places of worship (Percentage)
|
Number
of inaccessible places of worship
|
Whether
target date given
|
South
East
|
283
|
126
(44.5%)
|
157
|
Yes,
3-4 months
|
North
East
|
101
|
74
(73%)
|
27
|
Not
for all
|
North
|
110
|
72
(65.4%)
|
38
|
No
|
East
|
457
|
28
(6.1%)
|
429
|
Yes,
only for few
|
Shahdara
|
263
|
23
(8.74%)
|
240
|
No
|
New
Delhi
|
85
|
49
(57.6%)
|
36
|
Yes,
only for few
|
West
|
202
|
126
(62.37%)
|
76
|
31.03.2020
for all.
|
Central
|
22
|
1
(4.54%)
|
21
|
No
|
North-West
|
326
|
13
(3.98%)
|
313
|
No
|
South-West
|
430
|
12
(2.79%)
|
418
|
No
|
South
|
50
|
23
(46%)
|
27
|
No
|
17. Some
District Magistrates have submitted SHO-wise information, while others have
given sub-division-wise information and District Disaster Management Authority-wise. District Magistrate, West has identified and
verified the places of worship through the Tehsildars of the District.
18. This
Court had to implead Secretary, Revenue-cum-Divisional Commissioner in the array
of respondents as despite summons dated 24.05.2019 District Magistrate (West),
District Magistrate (Central), District Magistrate (North-West), District
Magistrate (South), District Magistrate (South-West) had neither submitted the
information nor they or their representatives appeared for hearing on
19.06.2019. District Magistrate (New
Delhi) was represented by one Tehsildar without any information or knowledge
about the case.
19. District
Magistrate (North-West) ignored the directions and did not even respond or
intimated his inability to attend the subsequent hearing also, which prima-facie amounted to contravention of
the mandatory provisions of the Act and continued failure to furnish
information that are punishable respectively under Section 89 and 93 of the
Act. The concern of this Court and the suggested action was conveyed to
Secretary, Revenue-cum-Divisional Commissioner vide record of proceedings dated
27.08.2019.
20. During
the course of four hearings and based on the physical verification by the
functionaries of this Court and the information submitted by the concerned
District Magistrates, the following was observed:
i) Some
districts had not indicated all the places of worship in their Districts;
ii) The
information about the accessibility or otherwise in respect of many places of
worship was either not correct or was not accurate. This indicated that the
information was supplied without verification and due care;
iii) In
some cases, the persons who collected the information perhaps were themselves not
aware about the details of accessibility that is required for persons with
disabilities although this Court had supplied an easy to understand check list
to ensure minimum accessibility;
iv) Tehsildar,
Vasant Vihar even showed the office of SDM as a place of worship.
v) The
information about whether a place of worship is accessible or not, has not been
provided in some cases as may be seen from the table in para 15.
vi) Most
of the District Magistrates did not indicate the action plan/target date for
making the inaccessible places of worship accessible.
21. After
the first hearing on 19.06.2019, the following comprehensive recommendations
were made vide record of proceedings dated 26.06.2011 to enable the District
Magistrates to take appropriate action:
i) Six
District Magistrates (West, Central, North-West, South, South-West and New
Delhi) were directed to submit a consolidated list of places of worship in
their respective Districts in the format by 12.07.2019;
ii) All
the management functionaries of the trusts/those managing the places of worship
and delivering ‘religious services’
to the public at large should be made aware by the concerned District
Magistrates about the time bound mandate of the Act to make “public buildings” and “public facilities and services” accessible
and be guided and helped in making the places of worship including the sanctum sanctorum, the points of distribution / selling of
prasad, material for worship like flowers, drinking water faucets, toilets, and
parking, if any etc, accessible.
iii) Places
of worship reported to be accessible, be checked with reference to the enclosed check-list to ensure minimum
accessibility and, wherever required, necessary improvement be carried out
by the concerned management / trust to ensure full inclusion of persons with
various disabilities.
iv) Action
plan to make the inaccessible places of worship accessible in a time bound
manner in accordance with the prescribed guidelines be made by 05.07.2019 and
implemented under intimation to the Monitoring
Committee constituted by Govt. of NCT of Delhi for monitoring implementation
of action plans.
v) All
the concerned managements of the religious places be issued appropriate
directions to provide for appropriate accessible facilities to persons with
disabilities within a given time frame not exceeding 2 to 3 months.
22. Based
on the examination of the information submitted by each sub division/district
which is a very time consuming task, the above recommendations were made for
implementation and guidance of District Magistrates. However, not much action seemed to have been
taken by most of the District Magistrates as was evident from the progress
reports in the subsequent hearings.
23. I also
consider it in the fitness of things to record that even the Monitoring
Committee constituted under the Chairmanship of Principal Secretary, Urban
Development to monitor implementation of the action plans for making built
environment accessible does not seem to have taken action to carry out the
physical check and verification of not only the places of worship in these
cases but also in the suo motu case referred to in para 10.
24. Having
recorded the above status, it is equally important for me to mention about the
action taken by District Magistrate (West), Ms. Neha Bansal as observed from
the report/ATR received from that district, who has submitted
that physical verification of 202 places of worship which include the temples,
Gurudwaras, Masjids and Churches has been carried out. The report indicates
31.03.2020 as the target date for making rest of the places of worship
accessible. The list also includes the
telephone numbers of the contact persons of most of the places of worship. This
indicates the involvement of most of the concerned functionaries assigned the
job and speaks of the seriousness with which it has been carried out by them
including the District Magistrate. She has herself certified that the places
of worship had been identified and verified by the concerned Tehsildar of the
District West with regard to their accessibility for persons with disabilities.
It deserves appreciation.
25. District
Magistrate, West is advised to share the entire report in a MS word file
alongwith the letter dated 13.09.2019 with rest of the District Magistrates
with a copy to this Court. Other
District Magistrates may consider adopting the method to get the work done in
their respective districts. She is
also advised to put in place an effective mechanism for monitoring the
implementation of the action plans by the target dates and ensure that every
place of worship in her district is made accessible by 31.03.2020 and inform this Court when the task is completed.
26. District
Magistrate, West and any other District Magistrate may also consider picking up
a few places of worship for making them as model accessible places of worship
in their respective districts to be replicated not only by other District Magistrates
in Delhi but also across the country. If
it is decided to do so, they may intimate by 10.11.2019, the action plan to this Court, which this Court would circulate
to all the State Commissioners for Persons with Disabilities for replication in
the 731 Districts in the country.
27. It is also pertinent to mention that the
representatives of District Magistrate (West) indicated that some
Committees/Trusts do not have enough funds to create accessible facilities like
ramps etc. It is clarified that there is no scheme of Govt.
of India or the State Govt. at present to provide funds for this purpose. Making the existing “public buildings” which
means “a Government or private building, used
or accessed by the public at large, including a building used for religious
purpose like Mandir/ Gurudwaras/ Masjids/ Churches etc. or any other place of
worship, is the sole responsibility of the concerned
trusts/committees/establishments/ organizations. All of them should be made aware about the
provision of the Rights of Persons with Disabilities Act, 2016 in this regard and
that violation of the provision is punishable under Section 89 of the Act.
28. If
any person or a trust or a society or committee or organization wants to carry
out any religious activity at any place open to public, accessibility for persons
with disabilities to the facility/the service/ the building must be mandatory. The
concerned licensing/regulatory/ approving authority must make it clear to them
in no uncertain terms.
29. Before
writing this order, I personally visited some of the major places of worship
such as Jama Masjid, Sis Ganj Gurdwara, Gauri Shankar Mandir and Shree Digamber
Jain Mandir at Chandni Chowk, Dargah Alia Hazrat, Birla Mandir, Sacred Heart
Cathedral at 1 Ashok Place, Hanuman Mandir, Gurdwara Bangla Sahib and Sai
Mandir at Lodhi Road on 29.09.2019.
30. I
have observed that while some access facilities for persons with disabilities
like ramp have been provided at the Gurudwaras and the Churches, none of the
temple authorities that I visited, has taken care to provide such facilities
though the persons available at inaccessible places of worship stated that they
ensure that if ever any person on wheelchair or with other disabilities wishes
to visit the temple, he is helped and assisted to worship.
31. It
was a pleasant sight to see that a chair lift has been installed at Gurudwara Sis
Ganj at Chandni Chowk, even though it is one of the most crowded and congested
areas. Similarly, the Bangla Sahib
Gurudwara has also made laudable efforts to ensure that the persons with
disabilities are able to worship. At the
places of worship like Jama Masjid and some other Masjids, Shree Digamber Jain
Mandir, Birla Mandir and the Sai Baba Mandir, the right of persons with disabilities
to worship like any other person does not seem to have engaged the attention of
the concerned management/trusts. It is a
common sight outside the gates of the temples, masjids, gurudwaras the persons
with disabilities standing, lined up, many of them on their tricycles waiting
for alms, begging and “Prasad”. It is a
serious matter that despite having a mandatory provision in the Act, the
religious places should be completely inaccessible. These need to be made accessible like any
other place such as schools, public utility buildings, commercial activities,
cultural, leisure, recreational activities, medical or health services, police
stations, courts, railway stations, roadways, bus stands, airports and
waterways. It is also mandatory to
ensure it within a period of 5 years from the date of notification of Rules,
i.e. by 15.06.2022. Every authority/owner is also mandated to
make an action plan to do it, as it would not happen suddenly on
15.06.2022.
32. It
is likely that it may not be possible to make every place of worship accessible
as per the prescribed standards, the concerned trust/society/organization must
make the best efforts to facilitate that the persons with disabilities
particularly those whose mobility is restricted, are able to participate in all
the religious activities as per their choice including at the sanctum
sanctorum. The issues of funds,
expertise etc. should be taken care of by the concerned trust/committee/authorities.
33. It is also important to bring to the notice
of the respondents that for implementation of the provisions the Act, the legislature
has specifically mandated in Section 39 (1) of the Act that “the appropriate Government, in consultation
with the Chief Commissioner or the State Commissioner, as the case may be,
shall conduct, encourage, support or promote awareness campaigns and
sensitisation programmes to ensure that the rights of the persons with
disabilities provided under this Act are protected.” Therefore, there is an urgent need to create
mass awareness, intensive as well as extensive training of the duty bearers,
i.e. Govt. functionaries at all levels and also the functionaries of the trusts/ committees/ organizations
controlling/ managing the places of worship. The concerned
trust/ committee/ authority/ Govt. Department cannot escape implementation of the
mandatory provisions made in the Act. Else,
such progressive provision will remain a right on paper and it will only amount
to paying lip service to the provisions for protecting the rights of persons
with disabilities, who may feel cheated.
34. In
the above view of the matter, the following recommendations are made:
i) As has been
pointed out during the record of proceedings and mentioned in the preceding
paragraphs, every District Magistrate should have the consolidated information
in respect of all the places of worship in his/her district compiled in the
prescribed format preferably in the way done in District (West).
(ii) If
necessary, an accessibility audit of the large and important places of worship
should be conducted and these should be made accessible as far as possible in
accordance with the “Guidelines for Making
the Religious Places Accessible” published by the Office of Chief
Commissioner for Persons with Disabilities with the help of Svayam, a voluntary
organization.
(iii) A copy of
the above Guidelines is enclosed and e-copy has also been uploaded in the
website of this Court- http://discomm.delhi.gov.in
for guidance of the respondents. An easy
to understand check list used by this Court to check the accessibility of the
places of worship is also enclosed with this order which was shared with
respondents earlier. All concerned are advised to disseminate the guidelines and
the checklist to the concerned functionaries of the places of worship in NCT of
Delhi for implementation.
(iv) The
Monitoring Committee headed by Principal Secretary, Urban Development, Govt. of
NCT of Delhi for monitoring implementation of action plans for making built
environment and transport accessible in NCT of Delhi, should organize sample
physical check of some places of worship across NCT of Delhi along with other
public buildings/built environment and provide guidance for execution, where
required.
35. This Court be informed of the action taken
on the above mentioned recommendations within 3 months from the date of receipt
of this order as required under Section 81 of the Act, which is reproduced
below:
“Whenever the
State Commissioner makes a recommendation to an authority in pursuance of
clause (b) of section 80, that
authority shall take necessary action on it, and inform the State Commissioner
of the action taken within three months from the date of receipt of the
recommendation:
Provided that
where an authority does not accept a recommendation, it shall convey reasons
for non-acceptance to the State Commissioner for Persons with Disabilities
within the period of three months, and shall also inform the aggrieved person.”
36. All the above mentioned
cases are disposed of.
37. Given
under my hand and the seal of the Court this 15th day of October,
2019.
(T.D.
Dhariyal)
State Commissioner for
Persons with Disabilities
Encl.:
As above.
Copy
to:
1.
|
Chief Secretary, Govt. of NCT of Delhi, Delhi
Secretariat, I.P. Estate, New Delhi-110002.
|
For
information
|
|
|
|
2.
|
Principal Secretary, Urban Development, Gnctd, 9th & 10th Level, Delhi
Secretariat, I.P. Estate, New Delhi - 110002.
|
For
action on para 34 (iv)
|
|
|
|
3.
|
The Secretary, Department of Social
Welfare, GLNS Complex, Delhi Gate, New Delhi-110002.
|
For
information
|
4.
|
Chief Commissioner for Persons with
Disabilities, Sarojini House, 6, Bhagwan Dass Road, New Delhi-110001.
|
See below the Digitally Signed Order:
