disability pil std booths

7/27/2019 Disability PIL STD Booths

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IN THE HIGH COURT OF KARNATAKA

CIVIL ORIGINAL JURISDICTION

W.P. No. of 2008

BETWEEN:

Karnataka Helen Keller Handicapped Association

A Registered Association

Represented by Mr. Prahlad Desai

Aged 47 years

S/o Late Bande Rao

No 42, R.Parasuram Building AECS Layout,

R.M.V, Second stage Geddalahalli,

Bangalore 560094 Petitioner.

AND:

1. The Managing Director,

Bangalore Metropolitan Transport Corporation,

Bangalore.

2. The Chief Traffic Manager

Bangalore Metropolitan Transport Corporation

Bangalore.

3. Secretary

Social welfare Department

Vidhana Soudha

Bangalore.

4. Director for Physically Handicapped and

Senior Citizen Welfare Department,

Podium Block, V.V. Centre,

Dr.B.R. Ambedkar Road,

Bangalore-560 001. Respondents


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SYNOPSIS

The petition is filed for the enforcement of the fundamental rights of the people

with disability under Articles 14, 16, 19 and 21 of the Constitution of India.

The Economic and Social Commission for Asian and Pacific Region held a

meeting to launch the Asian and Pacific Decade of the Disabled Persons 1992-1993 at

Beijing from 1st to 15

th December, 1992 and adopted the Proclamation on the Full

Participation and Equality of the People with Disabilities in the Asian and Pacific Region.

India became signatory to the said proclamation and enacted the Persons with Disabilities

(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to provide

inter alias for the constitution of co-ordination committee and Executive Committees at

the Central and State Levels to carry out the various functions assigned to them. With in

the limits of their economic capacity and development the appropriate Government and

the local and authorities will have to undertake various measures for the prevention and

early detection of disabilities, creation of barrier free environment, provision for

rehabilitation services, etc. This Act also provides for education, employment, and

vocational training, reservation in identified posts, research and manpower development,

establishment of homes for persons with severe disabilities, etc. For effective

implementation of the provisions of the Act, appointment of the Chief Commissioner for

persons with disabilities at the Central level have been appointed along with their powers

to implement the Act.

Keeping in view the commitments to the international conventions and domestic

laws, and the Ministry of Telecommunications , the Office Of Director General, Posts

and Telegraphs issued letter to Sri M.N.Wagle, General Manager, Telephones, Delhi

Telephone District New Delhi-110050, dated 23rd

December 1980 proposing welfare

schemes for ensuring the self employment and livelihood for handicapped people by

providing public telephone booth at airports / railway stations /hospitals and bus stands

and other public places.

The BMTC Authorities keeping in view the objective and the spirit of the law

promulgated in Persons with Disabilities (Equal Opportunities, Protection of Rights and

Full Participation) Act, 1995, took the initiative to allot STD booths to the disabled, as a

self employment measure for the benefit of the said category of persons. The STD Booths

were first allotted in the year 2000 according to the letter sent by the Director of

Physically Handicapped Welfare Department to the Managing Director of BMTC dated

15th

November 1999 (Ref: BMTC/C.O.M.D/47/99-2000 dated 1-06-1999).

The allotment of STD booths to the persons who are disabled as per letter dated

15-11-1999 was for self employment to provide livelihood and as a basis of welfare

measure. The list of 14 members to whom the booths are allotted, are severely disabled

and has families dependent on them. These people were allotted booths on the basis of

recommendations by the Disability Commissioner.


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The booths were allotted with object of providing avenues of livelihood to the

physically disabled persons. This is in keeping with the spirit of Sec.39 of the act for

ensuring employment of persons with disability. The object of the scheme is to remove

discrimination against persons with disability through the sharing of development

benefits, vis - a - vis non disabled person. The Ministry of Telecommunications issued a

letter dated 23rd

December 1980 stating about the welfare schemes for ensuring the self

employment and livelihood for handicapped people by providing public telephone booth

at airports / railway stations and bus stands and other public places. While so, to remove

the existing protection and to deny them the opportunity provided by a special scheme

introduced as early as 1981 amounts to violation of the very object of the scheme and the

Act.

The allotment was initially made for a period of six years. Thereafter, when the

Second and Third Respondents attempted to call tenders for re-allotment/renewal of the

said allotments, the same was withdrawn by an order of the state government,

understanding the difficulties the existing allottees would be put through if such tenders

were to be called. As per the said order of withdrawal of calling of tender, such tenders

are not to be called till further orders. However, contrary to the said order which is force

till date, the government has started calling for tenders and is thus causing panic among

the existing allottees.

The argument that the booths will be allotted to other disabled persons by removing

those who are already holding it is like say ing that we can provide food by turns. That is

who were having employment should now go starving and the government will find

others who are disabled but who can pay a better price by way of license fee, for the

booths under this scheme. Most of the allottees are the sole bread winners for their

family. These earnings have to last them for the rest of the month with which they have to

take care of the needs of all their family members. Some of these families consist on an

average, about five to six member. In most cases, the other family members are also

disabled. Thus, if the existing allottees are deprived of their monthly income as

elaborated above, not just them but their entire family will be thrown to the streets with

them being unable to afford even one square meal a day.

Some of the licensees filed writ petitions individually before this Honourable

Court. While some of the orders are in favour of the allottees, some others have justified

the government action of calling for tenders. This has created immense confusion in

which necessitates immediate intervention of this Honourable Court to declare the

accurate position regarding the said matter.

In similar cases in other states and also in an earlier order of this Honourable Court,

on the issue of such allotments made by the railway department, the Honourable High

Courts have ordered stay against calling for tenders, for running STD booths.

In the light of all the above facts and circumstances, the Petitioner approaches this

Honourable Court.


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W.P. No. of 2008

BETWEEN:

Karnataka Helen Keller Handicapped Association

A Registered Association

Represented by Mr. Prahlad Desai

Aged 47 years

S/o Late Bande Rao

No 42, R.Parasuram Building, AECS Layout,

R.M.V, Second Stage Geddalahalli,

Bangalore 560094 Petitioner.

AND:

1. The Managing Director,

Bangalore Metropolitan Transport Corporation,

Bangalore.

2. The Chief Traffic Manager

Bangalore Metropolitan Transport Corporation

Bangalore.

3. Secretary

Social welfare Department

Vidhana Soudha

Bangalore.

4. Director for Physically Handicapped and

Senior Citizen Welfare Department,

Podium Block, V.V. Centre,

Dr.B.R. Ambedkar Road,

Bangalore - 560 001. Respondents


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MEMORANDUM OF WRIT PETITION UNDER ATRICLES 226 & 227 OF

CONSTITUTION OF INDIA.

1. The present Petition is being filed in Public Interest, invoking the Writ

jurisdiction of this Honourable Court under Articles 226 & 227 of the Constitution of

India pertaining to the rights of the people with disabilities being adversely affected.

2. The Petitioner is a registered organisation for persons with disabilities. The said

organisation was established in the year 1992 with the objective of accessing Rights and

welfare of persons with disabilities. The Association has a membership of around 500

people all over Karnataka. The Petitioner as an association of Persons with disabilitiesalso represents all the disabled people and their families all over Karnataka, who are

affected by the action of the First, Second and Third Respondents, calling for tenders for

allotment of STD Booths.

3. The Petitioner has no personal interest in the matter and files this Writ Petition in

public interest on behalf of disabled persons all over Karnataka who are operating

telephone booths in BMTC platforms and are facing insecurity due to calling of tender

for re-allotment/renewal of license for running STD booths being manned by the existing

allottees.

4. The Petitioner states that the booths were allotted on the basis of letter sent from

Office Of Director General, Posts and Telegraphs to the General Manager, Telephones,

Delhi Telephone District, New Delhi-110050, dated 23rd

December 1980 stating about

the welfare schemes for ensuring the self employment and livelihood for handicapped

people by providing public telephone booths at airports / railway stations and bus stands

and other public places. That letter is produced as AnnexureA

5. The Union of India vide a Gazette Notification dated 7th

Feb.1996

promulgated under the Persons with Disabilities (Equal Opportunity, Protection of Rights

and Full Participation) Act, 1995 has enacted several provisions wherein both the union

government and state governments in all the departments are duty bound to provide equal

opportunity to physically handicapped persons. Copy of the gazette publication is

herewith produced and marked as AnnexureB

6. The Government of Karnataka in pursuance of the Notification at Annexure B

notified reservation for physically handicapped persons in all the departments as well as

in self employment schemes to render social justice to the physically handicapped

persons. A scheme was envisaged and implemented to allot telephone booths in BMTC

Bus Stations, Bangalore to provide employment for them so that they can earn their

livelihood. The First and Second Respondents issued a Notification enabling persons


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with physical disabilities to avail the facility in operating the telephone booths in bus

stations.

7. The Managing Director, Bangalore Metropolitan Transport Corporation has stated in

his letter No.BMTCO/M.D/47/99-2000 dated 1-6-1999 issued to Director of Physically

Handicapped, Welfare Department that in different Bus Stops in Bangalore, totally 25

booths are intended to allot to physically handicapped persons for their self employment

purposes. The copy of the said letter is not available and the details narrated in the letter

dated 17/10/2008 and is produced herewith as Annexure C.

8. As per a letter dated 15/10/1999, the STD Booths were first allotted in the year 2000

for a period of six years and the monthly rent license fee was fixed at Rs.50-00/- per sq ft

with 10% p.a. enhancement of rent. The said letter is produced herein as Annexure D.

9. The said Telephone booths have been allotted to the members of the Petitioner for the

period of six years from 1/3/2000 to 28/2/2006. The disabled persons were given licences

for a particular period to run the booths and the same have been extended periodically.

All the persons who have been allotted STD Booths in the bus Stations are running the

booths accordingly, and are paying the rents/license fee regularly. They have incurred

expenditures in the range of Rs. 45,000/- to Rs. 50,000/- to set up the booths including

the cost of monitor, Battery, electrical equipments, Phone receivers etc. Since they did

not have any money they were forced to borrow money from various sources, to set up

the booths. The monthly maintenance cost incurred by them is in the range of Rs.1800 to

Rs. 2000. They earn about Rs.4500 per month per booth. After deduction of costs, fee,

etc., they take home Rs.2500 to Rs. 3000 as their actual earnings. Most of the allottees

are the sole bread winners for their family. These earnings have to last them for the rest

of the month with which they have to take care of the needs of all their family members.

Some of these families consist on average, about five to six members. In most cases, the

other family members are also disabled. Thus, if the existing allottees are deprived of

their monthly income as elaborated above, not just them but their entire family will be

thrown to the streets with them being unable to afford even one square meal a day.

10. The existing allottees were allotted such booths at different Platforms in and around

Bangalore Metropolitan Transport Corporation (BMTC) bus Stations. The said allottees

have been manning the said STD Booths from the day of allotment till date as specimen

exhibits, the allotment letters issued to Mr. Hanumanthappa and others are produced here

with as Annexure E.

11. All the persons who are allotted the said STD Booths have to compulsorily enter in to

an individual agreement in stamp paper with the BMTC Authorities, committing to pay

annual land license fee and security deposit of Rs.3, 600 (rupees three thousand six

hundred only). The copy of the agreement with M.Srinivasa is produced herewith as

Annexure F.


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12. The Respondents on 31-1-2006 Vide Notification bearing number 3060/2005-2006

called for applications for re-allotment of the booths manned by the existing allottees.

Copy of the said advertisement dated 31/01/2006 is annexed herewith as AnnexureG.

13. The Petitioner gave a representation to the Honble Chief Minister of Karnataka to

cancel the said call for tenders as it is arbitrary to give 40% reservation to the BMTC

employees in a category specifically earmarked for persons with disabilities. The office

of the Chief Minister issued a communication to the BMTC to cancel the tender call

dated 31/1/2006 and also directed to continue / renew the license granted earlier to the

existing allottees. The advertisement on newspaper dated 16/02/2006 about the

cancellation of the tender notice published on 31/01/2006 is annexed as Annexure H. A

copy of the communication issued on 6/3/2006 directing continuance/ renewal of existing

licences and cancellation of the tender dated 16/02/2006 is herewith produced and

marked as Annexure J. The said order is to continue till further orders are issued. The

said order is continuing till date.

14. On 9/3/2006 the Respondents have extended the said allotment until further order

and fixed the license fees of Rs. 1064 p.m. with 10% escalation every year till the license

is terminated or revoked. Thus, the allotment period has not expired. The said extension

order dated 9/3/2006 is produced herewith as Annexure- K. The petitioner is annexing

only the copy of the letter issued to one Mrs. Lakshmidevamma as a specimen exhibit.

15. The Petitioner submits that the Respondents published tender notice dated 31/1/2006

about the telephone booth which tender itself was cancelled on 16/2/2006. Inspite of this

without considering the tender cancelled on 16/2/2006, respondents have issued another

tender notice dated 3/10/2006, which is illegal. The said tender notice dated 3/10/2006 is

produced herewith as Annexure L.

16. Running the STD Booths at the BMTC Bus Stations is a self employment scheme and

whatever the amount earned by the booth holders is only a meagre amount. The

Respondents cannot ask the present booth holders to vacate and give the booths to others

who can pay a better price as it violates the very object of the scheme and the Act which

is to ensure welfare of the disabled. The welfare measure is now sought to be converted

into a profit making measure, by the Respondents and is hence arbitrary and violative of

Article of the Constitution .The proposed action of the Respondent is also against the

Directive Principles of the State Policy. The levy of commission charges, higher rental

charges defeats the very purpose of the scheme. Running the STD booths at BMTC Bus

stations is the only livelihood of the petitioners and now all the disabled license holders

are under the threat of eviction by calling for the fresh Tender. Left with no other

alternative remedy the Petitioner is constrained to approach this Honble court.


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17. As the date of expiry of the license came near and also as the Government started

calling for fresh tenders for allotting STD/ISD Booths in various Bus Stations, the

persons with disabilities felt panicky and absolutely insecure about their employment and

source of livelihood. In similar scenario in other states Various High Courts were

approached for granting interim stay against allotting the booths or issuing license to any

other persons other than those who are already license holders. The said courts such as in

the case of the High Courts of Tamilnadu and Kerala, after examining the issue, have

ordered stay against calling for tenders. A copy of the order dated 20-4-2007 passed by

the Honble High Court of Judicature at Madras in W.P. No.14480/2007 is produced

herewith as AnnexureM.

18. The existing allottees have made representations to the Chief Minister to renew their

licenses for a further period. Copy of the said representation dated 18/7/2008 is produced

herewith Annexure - N. They have also made representation to Hon. Minister for

Women and Child development, Karnataka dated 18/07/2008, to the Disability

Commissioner and to the Director for physically handicapped. Copies of the said

representations are produced herewith Annexure P.

19. The existing allottees are aggrieved by the recent publication of tender notice in the

news Paper Vijaya Karnataka dated 16th

November 2007 by the BMTC authorities. A

copy is annexed herewith as Annexure -Q. Being a disabled, they cannot do any work

other than running STD booths. This is the only source of income and occupation to keep

themselves and their families from starving as elaborated in paragraph-9 above.

All the disabled telephone booth operators are facing the same threat and will be out of

employment. The Respondents are unaware of the plight of the disabled telephone booth

operators and in total violation of the provisions of the Persons with Disability Act 1995

are going ahead with eviction of the disabled persons from their employment

opportunities.

20. The Petitioner states that most of the existing allottees are running the booths for

more than six to seven years. They have also incurred huge loans for setting up the

booths, which they are still repaying. Some of the members of the families of some of

these persons with disability are also disabled. Suddenly they cannot be asked to stop

their running of the booths. Some of the members are women and also some of the

members have multiple disabilities. In this regard the Secretary to Women and Child

Development Department issued a letter to the Principal Secretary, Transport Department

to cancel the Tender dated 16/01/2007. The said letter dated 5/02/2008 is produced

herewith as Annexure R.

21. The Petitioner states that the persons affected by this act of the Respondents are

all economically disadvantaged and therefore they also carry social discrimination and

disadvantages. The existing allottees have approached Respondents No.1, 2 and 4 to


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address their grievance regarding the extension of license of their STD booths, which

have been sanctioned to them by the BMTC Authority. Respondent 1, 2 and 4 are

primarily responsible to safe guard the rights of the disabled. However, they showed no

sensitivity and refused to interfere and asked them to approach this Honble Court.

22. Some of them filed Writ Petitions before this Honble Court and theyhave received

contradicting orders and same are annexed as Annexure-S

23. Under these circumstances, left with no other alternative efficacious remedy, the

Petitioner is constrained to approach this Honble Court under Article 226 of the

Constitution of India for the following among other things. The Petitioner submits that it

has not filed any other Petition or proceeding pertaining to the present matter before any

other court or forum.

INTERIM PRAYER

24. In the light of the facts and circumstances stated herein above it is mostrespectfully prayed that this Honble Court may be pleased to pass an interim injunction,

Restraining the Respondents from opening the tenders as called for Vide Notification

bearing number 3060/2005-2006 as mentioned in the advertisement dated 31-01-2006

ANNEXURE-G.

Restraining the Respondents from displacing/vacating existing allottees from theirpresent place of occupation, pending disposal of the writ petition and thus render

justice.

GROUNDS FOR INTERIM PRAYER

25. The Respondent No.1 & 2 are making all arrangements to allot the STD Booths

through the tender called vide the advertisement dated 16/11/2007. Accordingly, if the

STD Booths are allotted to new individuals, the existing allottees will be put to great

injustice and hardship. They do not have any other means of livelihood. Therefore, the

very purpose of filing this Petition will be defeated. Hence, it is just and necessary to

cancel the tender Notification and restrain the Respondents No.1 & 2 from calling for

fresh tenders.

26. The Petitioners have made out a prima faciecase. If the interim order of injunction,

restraining the Respondents No.1 & 2 from vacating the Persons with Disability holding

licence to run STD/ISD/PCO booths after their expiry dates in the BMTC Bus Stations is

not granted, all the persons with disability holding licence will be put to irreparable loss

and hardship and injury. The Balance of convenience lies in favour of granting the

interim order. The Respondent will not be prejudiced by the same.


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PRAYER

27. It is therefore prayed that this Honble Court may be pleased to pass an Order or

Direction or a Writ particularly in the nature of Writ of Mandamus,

To quash the Tender Notification dated 16/11/2007 produced herein asAnnexure- Q.

Directing the First and Second Respondents not to displace the personswith disability who are presently running the STD/ISD/PCO booths from

their present location of self employment..

Directing the Respondents No.1 to 3 to extend the licences granted to theexisting allottees to run STD/ISD/PCO booths in the BMTC stations.

Directing the Respondents to not pass any order, direction, Notification,etc., or undertake any action, resulting in the existing allottees loosing

their present employment and occupation of STD/ISD/PCO booths in the

BMTC stations.

In the alternative, to a rehabilitation Scheme under Sections 38 and 43 ofthe Persons with Disabilities (Equal Opportunities, Protection of Rights

And Full Participation) Act, 1995 for the existing allottees and to not

displace them from their present occupation till such rehabilitation schemeis implemented. Pass such further or other orders as this Honble Court

may deem fit and proper in the circumstances of the Case and thus render

justice.

GROUNDS

28. The failure of the Respondents No.1 to 3 to extend the licence for running the

STD/ISD/PCO booths beyond the expiry date is arbitrary, unreasonable and violative of

Article 14, 16, 19 and 21 of the Constitution

29. The licence granted to the persons with disability to run the STD Booth at the

premises of Respondents was with the object of providing avenues of livelihood to

physically disabled people. The said scheme was initiated in the year 1981 being the

International Year of Disabled. Now the Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995, hereinafter referred to as Act, has

been passed with the object to protect the Rights of persons with disability and to

provide for medical care, education, training, employment, business opportunities and

rehabilitation of persons with disabilities, to remove any discrimination against persons

with disabilities in the sharing of development benefits, vis--vis non-disabled person, to

lay down a strategy for comprehensive development of programmes and services to

provide equal opportunities for persons with disabilities and to make special provision of

the integration of such persons into the social mainstream. While so, to remove the


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existing protection and to deny them the opportunity provided by a special scheme

introduced as early as 1981 amounts to violation of the very object of the Act and goes

against the commitment of the State to its international obligations under the relevant

treaties and conventions.

30. Section 38 of the Act provides for Schemes for ensuring employment of persons

with disabilities and is extracted as below

Schemes for ensuring employment of persons with disabilities: - (1) The appropriate

Governments and local authorities shall by notification formulate schemes for ensuring

employment of persons with disabilities, and such schemes may provide for

(a) The training and welfare of persons with disabilities;

(b) The relaxation of upper age limit;

(c) Regulating the employment;

(d) Health and safety measures and creation of a non-handicapping

Environment in places where persons with disabilities are employed;

(e) The manner in which and the persons by whom the cost of operating the

Schemes is to be defrayed; and

(f) Constituting the authority responsible for the administration of the

Scheme.

While the Act envisages for framing of special schemes, to dismantle the existing scheme

is in violation of the provisions of Section 38 of the Act.

31. Section 43 of the Act states Schemes for preferential allotment of land for certain

purposes as extracted below:

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 for:

a. Houseb. Setting up of businessc. Setting by of special recreational centresd. Establishment of special schoolse. Establishment of research centresf. Establishment of factories by entrepreneurs with disabilities.The Respondents have not taken any pains to adhere to the above said provisions,

however with the sole motive of mercenary intentions and commercial gain for

themselves without any value system and against the law of the land have issued

notices and tenders calling for applications for allotting booths to any one who bids

the highest.

Sec. 48 of the Act provides for Research and Manpower Development provides:

Research: - The appropriate Governments and local authorities shall promote and

sponsor research, inter alia, in the following areas:-

(a) Prevention of disability;


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(b) Rehabilitation including community based rehabilitation.

(c) Development of assistive devices including their psycho-social aspects;

(d) Job identification:

(e) On site modification in offices and factories.

When a scheme has been framed and has been in vogue for the past 25 years

successfully, it is not known as to why the same should not be continued in favour of the

existing allottees. Based on research pertaining to the utilisation of the manpower of

persons with disabilities and out of a commitment to their upliftment, the present scheme

was framed. To misuse the same after all these years without any rhyme or reason is

opposed to the spirit of the Act.

32. In the Act, Under Chapter XIII on Social Security, Section 66 casts a duty upon

appropriate governments and local authorities to undertake Rehabilitation. It states- (1)

the appropriate Governments and local authorities shall within the limits of their

economic capacity and development undertake or cause to be undertaken rehabilitation of

all persons with disabilities. While so, the Respondents No.1 to 6, without stating the

reasons for not extending an employment opportunity provided after due forethought, has

not spelt out any rehabilitation for those who are going to be out of employment due to

their impugned action.. Hence, the action of the Respondents is in violation of Sec. 66

of the Act.

33. The Petitioner submits that the representations from the various organisations of

disabled persons to extend the licence period to run the STD Booths is still under the

consideration of the 3rd

Respondent. While so, the existing allottees should be permitted

to continue with their occupation without any disturbance from the First and Second

Respondents.

BANGALORE. ADVOCATE FOR PETITIONER

DATE:

ADDRESS FOR SERVICE:


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W.P. No. of 2008

BETWEEN :

Karnataka Helen Keler Handicapped Association,

Bangalore. ..PETITIONER

AND :

The Managing Director

Bangalore Metropolitan Transport

Corporation

And others. ..RESPONDENTS

AFFIDAVIT

I, Pralhad, S/o Late Bande Rao, aged about 42 years, Resident of No 42,

R.Parasuram Building AECS Layout , R.M.V, Second stage Geddalahalli, Bangalore

560094, do hereby solemnly affirm and state on oath as follows:

1. I am the President of Hellen Keler Handicapped Association having itsregistered office at No.1409, Vijaya Nagar, Bangalore-560 040. I am conversant

with the facts and circumstances of the case and therefore swearing to this

affidavit. I am authorised signatory.

2. I state that Paragraphs 1 to of the writ Petition are true and correct to the best ofmy knowledge, information and belief..

3. I state that Annexure A to are copy of their originals.

Verification

I state that what is stated above is true to the best of my knowledge information and

belief


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Identified by me Deponent

Advocate

Bangalore

Date

disability pil std booths

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