Delhi High Court
Amit Kumar Mit vs Ministry Of Urban Development & ... on 31 October, 2017
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 31.10.2017
+ W.P. (C) 3929/2013, CM APPL.7330 & 16805/2013
AMIT KUMAR MIT ..... Petitioner
Through: Mr. Anupam Anand, Advocate.
Versus
MINISTRY OF URBAN DEVELOPMENT & ORS.
..... Respondents
Through: Mr. Ruchir Mishra with Mr. Abhishek
Rana, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
S.RAVINDRA BHAT, J. (ORAL)
1. The petitioner seeks directions for proper implementation of Section
43 of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation), Act, 1995 (pre-existing Act). Section 43
reads as follows: -
"43. Schemes for preferential allotment of land for certain
purposes. -
The appropriate Governments and local authorities shall by
notification frame schemes in favour of persons with
disabilities, for the preferential allotment of land at
concessional rates of -
(a) house;
(b) setting up business;
(c) setting up of special recreation centres;
(d) establishment of special schools;
(e) establishment of research centres;
(f) establishment of factories by entrepreneurs with
disabilities."
2. It is contended that the respondents, i.e., Union Ministry of Urban
Development, Directorate of Estates flouted the mandate of Section 43 and
not provided for effective means to ensure that 3% quota set apart for
persons with disabilities is filled in matters of allotment of public
spaces/shops etc within their control. The petitioner also refers to the Delhi
Development Authority's letter dated 09.10.2006 which provides for 5%
reservation for persons with disability with respect to allotment of shops.
3. On 15.12.2015, the Court after considering the materials existing
passed the following order: -
"The learned counsel for the respondents states that no shop
has been allotted after NIT of 07.05.2013 and there is no
proposal for allotment of shops in 2016. However, we feel
that in future there might be an occasion where the
respondents may allot a shop. Since the 3% disability quota,
because of rounding off and the low number of shops that are
put up for allotment, does not result, normally, in an
allotment to disabled persons, the respondents may consider
adopting another principle, such as that adopted in service
law by having a roster point system so that when the
allotment of shops are considered cumulatively, at fixed
points, disabled persons are entitled to allotment of shops.
The respondents may take a decision on this and file an
affidavit within six weeks."
Renotify on 10.03.2016."
4. Pursuant to the order, the respondents, i.e., the Union Ministry of
Urban Development filed an affidavit. The relevant part of the Ministry's
affidavit is extracted below: -
"2. In compliance of Honourable High Court Order dated
15/12/2015 in which it was suggested that the respondents
may consider adopting another principle, such as that
adopted in service law by having a roster point system so that
when the allotment of shops are considered cumulatively, at
fixed points, disabled persons are entitled to allotment of
shops, this Directorate has taken a decision to adopt 200
point roster system (ANNEXURE-1) and to include shops of
New Moti Bagh in the roster system (ANNEXURE-2).
3. As per the policy of Directorate of Estates
(ANNEXURE-3):
i. 22.5% of the shops would be reserved for Scheduled
Castes/Scheduled Tribes. In case there is no Schedule Tribe
Candidate, it would be given to a Scheduled Caste candidate.
In the event of no Scheduled Caste candidate coming
forward, the shops would be made available to the general
category.
ii. 3% reservation of the shops/stalls would be for
"Physically Handicapped" category. The definition of
"Physically Handicapped" would be such as is adopted by
the Govt. under any rules/laws framed by the Ministry of
Welfare or as may be specified by the Ministry of Urban
Development for this specific purpose from time to time. In
the event of a shop being reserved for the physically
handicapped category and no such candidate being available,
the shop/stalls would be disposed of to the general category.
3. Keeping in view the policy of Directorate of Estates,
200 point roster system has been adopted in which 30 points
are reserved for SC category, 15 points are reserved for ST
category and 6 points are reserved for PH category. Further,
PH category has been given Horizontal reservation in the
roster register. Hence, it fulfills the reservation policy."
5. In support of the submission, the learned counsel relied upon the
extracts of the roster register maintained and submitted that at present there
is no scope for allotment of any shop or similar space to the petitioner and
that he would have to wait for his turn.
6. Learned counsel for the petitioner points out that the roster system
indicated, pursuant to the Court's order, provides little relief as the
allotment to Physically Handicapped category would take place in the
remote future. It was submitted besides that by virtue of the coming into
force of The Rights of Persons with Disabilities Act, 2016 (the new Act),
the quota has to be altered since the law mandates 5% quota instead of the
existing 3%. It is also pointed out that in the past, allegations were made
contrary to the guidelines inasmuch as blood relatives, i.e., father and son
were allotted.
7. It is apparent from the above that what the petitioner seeks is the
enforcement of Section 43 which directs a system of preferences unlike
Section 33 of the pre-existing Act. Section 43 enjoins appropriate
authorities and public establishments to give preferential treatment in
allotment. Though, per se there is no quota system, however, for the
practical achievement of Section 43, the Ministry of Urban Development as
indeed other authorities seems to recognize that preference system is
workable through quota.
8. DDA already had a 5% quota in place. Although late, this Court's
order dated 15.10.2015 has alerted the respondents to the possibility of
arbitrary and haphazard manner of allotment; this has resulted in issuance of
instructions that have mandated a roster system for working out 3% quota.
Having regard to the number of posts in a cadre in any given service, the
vacancies in the shops will have to be appropriately filled in terms of the
roster. Thus, the 22.5% roster for SC/ST will have to be filled and set apart
for that category according to the roster at the appropriate slots. Likewise,
in the case of persons with disabilities, the vacancies will have to be worked
out at the 30th, 60th, 90th, 150th and 180th vacancy slots. This roster, in the
opinion of the Court, also requires alteration given the fact that new
enactment mandates 5% quota. A direction is, therefore, issued to the
respondents to bring the roster points in line with the Section 37 of the new
Act and workout the 5% quota.
9. So far as the petitioner's grievance with respect to violation of the
guidelines of allotment of shops to those not eligible or not deserving is
concerned, the respondents will look into the allegations, in case a
representation is made in this regard within two weeks. The respondents
shall also ensure that the fresh roster in accordance with the new Act is
prepared and placed in the public domain appropriately within six weeks
from today. The respondents shall also publish the allotments made to
persons with disabilities, if any, and in any case, indicate the end of the
tenure of all existing allotments, in the same publication.
10. The writ petition is disposed of along with all the pending
applications.
S. RAVINDRA BHAT
(JUDGE)
SANJEEV SACHDEVA
(JUDGE)
OCTOBER 31, 2017
/vikas/
