YUSUFBHAI HATIMBHAI KACHWALA Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) Present petition has been filed under Articles 14, 16, 21 and 226 of the Constitution of India for the prayer that appropriate writ, order or direction may be issued directing the respondent to allot small plot of land in the vicinity of his residence and has prayed a consequential relief.

(2.) The facts of the case briefly summarized are that the petitioner has claimed that he has been meted out by an arbitrary and discriminatory treatment and has been deprived of for allotment of the space for running telephone booth, which has resulted into violation of the fundamental rights as guaranteed under Articles 14, 16 and 21 of the Constitution of India. It is contended that the petitioner has passed S.S.C. Examination and met with an accident in the year 1993 and received serious injuries on his right leg. After treatment, which lasted for more than 2 years he has recovered but has suffered disablement to the extent of 54%. The certificate of disability is also produced. It is the case of the petitioner that even after the disability, he is doing his work of plying rickshaw, but he had got pain in the spinal cord and as per the medical advise he had to leave the vocation of driving rickshaw to earn his livelihood. Therefore, he has been advised to start STD/PCO booth, which may also help in earning livelihood. Therefore, he has requested and the Respondent No. 3 recommended for him the allotment of STD/PCO booth. Thereafter, also he gave legal notice and had also approached Social Security Department (Social Defence Department). It is specifically contended that the persons with lesser percentage of disability have been allotted such booths, which is stated in para 6 of the petition. Therefore, he has claimed that appropriate direction may be issued as he has been discriminated in the allotment of such booths on the ground of discrimination and equal opportunity. Further, though reference is not made in the petition, learned Advocate Ms. Roopal Patel for the petitioner has referred to the provisions of Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('The Disability Act' for short).

(3.) The affidavitinreply has been filed by the respondent No. 4, the Deputy Director of Social Defence Department and it has been contended that Municipal Commissioner has allotted 100 places for rehabilitation of educated unemployed handicapped/blind persons for running STD/PCO booths. It is stated that applications were invited by the Social Defence Department through advertisement in the newspaper and 424 applications were received. The committee was constituted for allotment of such STD/PCO booth to rehabilitate the unemployed educated handicapped/blind persons. It is specifically stated that the Committee has framed the policy as stated in the reply that the persons having 80% disability would be entitled for allotment of STD/PCO booth. It is also stated that 158 applications had been taken into considerations and 99 applicants having 80% and above disability, have been selected for such allotment. The recommendation has been made by the Social Defence Officer to the Municipal Commissioner vide communication at Annexure C. It is also stated that the application of the petitioner has not been received by the Social Defence Department within the stipulated time and the present petition has been filed in absence of making any application. It is specifically contended that a person who is having 54% disability is not entitled for allotment of any such booth, as it would be against the norms and the regulations. There is further affidavitinreply filed by Respondent No. 4 dated 12.11.2009 clarifying the order of the Hon'ble Court dated 10.02.2009. It is also contended that : -