P.Shanmuga Sundaram Vs. Spl.Commissioner for Handicapped - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169421
CourtChennai High Court
Decided OnJan-06-2014
JudgeM.VENUGOPAL
AppellantP.Shanmuga Sundaram
RespondentSpl.Commissioner for Handicapped
Excerpt:
in the high court of judicature at madras dated: 06.01.2014 coram: the honourable mr.justice m.venugopal w.p.no.28826 of 2012 p.shanmuga sundaram .petitioner versus 1.the special commissioner for handicapped, office of the state commissioner of disabled, no.15/1, model school road, thousands lights, chennai-600 006. 2.the commissioner, corporation of chennai, rippon building, chennai-600 003. 3.the commissioner of police, egmore, chennai-600 008.respondents prayer: writ petition filed under article 226 of the constitution of india praying for the issuance of a writ of mandamus, directing the second respondent to dispose of the petitioner's representation dated 24.08.2012 issuance of license for running bunk shop on the line of club house road, by the side of no.10, l&t main gate opp., taj club house, chennai-600 002. for petitioner : no appearance for respondent : mr.s.navaneetham nos.1 & 3 additional government pleader for respondent-3 : mr.r.arunmozhi ------- order the petitioner has filed the instant writ of mandamus, praying for passing of an order by this court in directing the second respondent to dispose of his representation dated 24.08.2012 praying for issuance of license for running bunk shop on the line of club house road, by the side of no.10, l&t main gate opp., taj club house, chennai-600 002. 2.according to the petitioner, he is physically handicapped to an extent of 100% disability with deaf and dumb. he is running a bunk shop on the line of club house road, by the side of no.10, l&t main gate opp., taj club house, chennai. he is selling coffee and eatable items in an hygienic manner. he is earning a meager amount, out of which he is taking care of his family members and aged parents. 3.the grievance of the petitioner is that while he is running the said shop, the officials of the third respondent/commissioner of police, egmore, chennai without providing any opportunity or prior notice are trying to evict his bunk shop. in this regard, he sent several representations requesting them not to evict his bunk shop. however, the second respondent/ commissioner, corporation of chennai cause disturbance to his business. therefore, on 24.08.2012 he submitted his representation to the firs.respondent inter-alia praying for keeping the bunk shop for conducting tea business and grant him necessary license in this regard. 4.the stand of the petitioner is that his bunk shop is no way disturbing the general public or free flow of traffic. the government is also supporting the claim of physically challenged person like him. furthermore, as per section 43 of the persons with disabilities (equal opportunities, protection or rights and full participations) act 1995, he has statutory right to do business. therefore, it is the duty of the respondents to pave way for the physically challenged persons like him to provide life without depending upon the government for any benefits. 5.as a matter of fact that section 43 of persons with disabilities (equal opportunities, protection or rights and full participations) act 1995 deals with 'schemes for preferential allotment of land for certain purposes' and the same is as follows: ".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)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.". 6.the third respondent has given an undertaking that they will not disturb the bunk run by a physically handicapped person in his letter dated 02.01.2003 j.c.(w) c.no.32/2003, inspite of the same, they are disturbing his peaceful running of the business. 7.according to the learned counsel for the second respondent/commissioner, corporation of chennai, the junior engineer mr.v.murthy of the second respondent/corporation of chennai has inspected the tea stall on 30.10.2012 at 7.30 a.m., (run by the petitioner) by encroaching the road in an unhygenic manner and after enquiry, it was stated that the said bunk shop was in a locked condition for the past six months (as early as on 28.10.2012 the date of filing of the counter) and if the bunk shop is allowed to run, it will cause nuisance to the public health since the petitioner is using high flame burner for preparing tea without any fire precautions and letting the waste water on the road side. 8.the stand of the second respondent is that the petitioner is encroaching the public road. moreover, if he stalls the bunk on the road margin, customers coming to the shops park their vehicles in front of the bunk and disturb the free flow of traffic. also that the bunk stall are stationed in road, thereby public places are encroached. 9.the learned counsel for the second respondent brings it to the notice of this court that the executive engineer, zone-9, chennai of the second respondent/corporation of chennai on 28.10.2012 has filed the report inter-alia stating that junior engineer mr.v.murthy has inspected the spot on 30.10.2012 at 7.30 a.m.and on enquiry, the bunk was found always locked for the past six months and etc.10.the learned counsel for the second respondent in aid of the division bench order of this court dated 07.03.2013 in w.p.no.1482 of 2013 [k.r.ramaswamy @ traffic ramaswamy versus state rep., by the chief secretary, government of tamil nadu, chennai and 5 others].whereby and whereunder in paragraphs 3 and 4 it is held as follows:- ".3.today, the fifth respondent has filed a counter affidavit, wherein in paragraph no.8, it has been stated as follows:- ".8.i state that the corporation has already started to implement the court orders.the disabled persons have also been instructed to remove their bunks by their own arrangements, failing which the corporation will take action to remove the same. moreover, this operation will take a minimum of four months time to complete the work and hence, the fifth respondent corporation is in need of the said directions and 4 months time to implement the said orders.". 4.in view of the said statement contained in paragraph no.8 of the counter affidavit filed by the fifth respondent chennai corporation to comply with the statement made in paragraph no.8 of their counter affidavit, in accordance with law, within a period of four months from the date of receipt of a copy of this order. no costs.". 11.on going through the aforesaid division bench order of this court dated 07.03.2013 in w.p.no.1482 of 2013 [k.r.ramaswamy @ traffic ramaswamy versus state rep., by the chief secretary, government of tamil nadu, chennai and 5 others]., it is quite evident that the commissioner, corporation of chennai (who figured as fifth respondent) was directed to comply with the statement made in para 8 of the counter affidavit in accordance with law within a period of 4 months from the date of receipt of a copy of the said order. 12.in view of the fact that the bunk shop of the petitioner was not running in the locality at the time of inspection of junior engineer, zone-9, chennai mr.v.murthy of the second respondent (who made spot inspection on 30.10.2012 at 7.30 a.m.) and also, this court taking note of the orders of the division bench order of this court dated 07.03.2013 in w.p.no.1482 of 2013 has mentioned supra comes to an inevitable and irresistible conclusion that the relief prayed for by the petitioner to dispose his representation dated 24.08.2012 cannot be acceded by this court in the eye of law. viewed in that perspective, the writ petition is devoids of merits and consequently, the writ petition fails. 13.in the result, the writ petition is dismissed leaving the parties to bear their own costs. 06.01.2014 index :yes internet:yes dp to 1.the special commissioner for handicapped, office of the state commissioner of disabled, no.15/1, model school road, thousands lights, chennai-600 006. 2.the commissioner, corporation of chennai, rippon building, chennai-600 003. 3.the commissioner of police, egmore, chennai-600 008. m.venugopal.j.dp w.p.no.28826 of 2012 06.01.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2014 Coram: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.28826 of 2012 P.Shanmuga Sundaram .Petitioner versus 1.The Special Commissioner for Handicapped, Office of the State Commissioner of Disabled, No.15/1, Model School Road, Thousands Lights, Chennai-600 006.

2.The Commissioner, Corporation of Chennai, Rippon Building, Chennai-600 003.

3.The Commissioner of Police, Egmore, Chennai-600 008.Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the Second Respondent to dispose of the Petitioner's Representation dated 24.08.2012 issuance of License for running Bunk Shop on the line of Club House Road, by the side of No.10, L&T Main Gate Opp., Taj Club House, Chennai-600 002.

For Petitioner : No Appearance For Respondent : Mr.s.Navaneetham Nos.1 & 3 Additional Government Pleader For Respondent-3 : Mr.R.Arunmozhi ------- ORDER

The Petitioner has filed the instant Writ of Mandamus, praying for passing of an order by this Court in directing the Second Respondent to dispose of his Representation dated 24.08.2012 praying for issuance of License for running Bunk Shop on the line of Club House Road, by the side of No.10, L&T Main Gate Opp., Taj Club House, Chennai-600 002.

2.According to the Petitioner, he is physically handicapped to an extent of 100% disability with deaf and dumb.

He is running a Bunk Shop on the line of Club House Road, by the side of No.10, L&T Main Gate Opp., Taj Club House, Chennai.

He is selling coffee and eatable items in an hygienic manner.

He is earning a meager amount, out of which he is taking care of his family members and aged parents.

3.The grievance of the Petitioner is that while he is running the said shop, the officials of the Third Respondent/Commissioner of Police, Egmore, Chennai without providing any opportunity or prior notice are trying to evict his bunk shop.

In this regard, he sent several representations requesting them not to evict his bunk shop.

However, the Second Respondent/ Commissioner, Corporation of Chennai cause disturbance to his business.

Therefore, on 24.08.2012 he submitted his Representation to the FiRs.Respondent inter-alia praying for keeping the bunk shop for conducting tea business and grant him necessary license in this regard.

4.The stand of the Petitioner is that his bunk shop is no way disturbing the general public or free flow of traffic.

The Government is also supporting the claim of physically challenged person like him.

Furthermore, as per Section 43 of the Persons with disabilities (equal opportunities, protection or rights and full participations) Act 1995, he has statutory right to do business.

Therefore, it is the duty of the Respondents to pave way for the physically challenged persons like him to provide life without depending upon the Government for any benefits.

5.As a matter of fact that Section 43 of Persons with disabilities (equal opportunities, protection or rights and full participations) Act 1995 deals with 'Schemes for preferential allotment of land for certain purposes' and the same is as follows: ".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)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.".

6.The Third Respondent has given an undertaking that they will not disturb the bunk run by a physically handicapped person in his letter dated 02.01.2003 J.C.(W) C.No.32/2003, inspite of the same, they are disturbing his peaceful running of the business.

7.According to the Learned counsel for the Second Respondent/Commissioner, Corporation of Chennai, the Junior Engineer Mr.V.Murthy of the Second Respondent/Corporation of Chennai has inspected the tea stall on 30.10.2012 at 7.30 a.m., (run by the Petitioner) by encroaching the road in an unhygenic manner and after enquiry, it was stated that the said bunk shop was in a locked condition for the past six months (as early as on 28.10.2012 the date of filing of the counter) and if the bunk shop is allowed to run, it will cause nuisance to the public health since the Petitioner is using high flame burner for preparing tea without any fire precautions and letting the waste water on the road side.

8.The stand of the Second Respondent is that the Petitioner is encroaching the public road.

Moreover, if he stalls the bunk on the road margin, customers coming to the shops park their vehicles in front of the bunk and disturb the free flow of traffic.

Also that the bunk stall are stationed in road, thereby public places are encroached.

9.The Learned counsel for the Second Respondent brings it to the notice of this Court that the Executive Engineer, Zone-9, Chennai of the Second Respondent/Corporation of Chennai on 28.10.2012 has filed the report inter-alia stating that Junior Engineer Mr.V.Murthy has inspected the spot on 30.10.2012 at 7.30 a.m.and on enquiry, the bunk was found always locked for the past six months and etc.10.The Learned counsel for the Second Respondent in aid of the Division Bench order of this Court dated 07.03.2013 in W.P.No.1482 of 2013 [K.R.Ramaswamy @ Traffic Ramaswamy versus State rep., by the Chief Secretary, Government of Tamil Nadu, Chennai and 5 others].whereby and whereunder in paragraphs 3 and 4 it is held as follows:- ".3.Today, the fifth respondent has filed a counter affidavit, wherein in paragraph No.8, it has been stated as follows:- ".8.I state that the corporation has already started to implement the Court ordeRs.The disabled persons have also been instructed to remove their bunks by their own arrangements, failing which the Corporation will take action to remove the same.

Moreover, this operation will take a minimum of four months time to complete the work and hence, the fifth respondent Corporation is in need of the said directions and 4 months time to implement the said orders.".

4.In view of the said statement contained in paragraph No.8 of the counter affidavit filed by the fifth respondent Chennai Corporation to comply with the statement made in paragraph No.8 of their counter affidavit, in accordance with law, within a period of four months from the date of receipt of a copy of this order.

No costs.".

11.On going through the aforesaid Division Bench order of this Court dated 07.03.2013 in W.P.No.1482 of 2013 [K.R.Ramaswamy @ Traffic Ramaswamy versus State rep., by the Chief Secretary, Government of Tamil Nadu, Chennai and 5 others]., it is quite evident that the Commissioner, Corporation of Chennai (who figured as Fifth Respondent) was directed to comply with the statement made in para 8 of the counter affidavit in accordance with law within a period of 4 months from the date of receipt of a copy of the said order.

12.In view of the fact that the bunk shop of the Petitioner was not running in the locality at the time of inspection of Junior Engineer, Zone-9, Chennai Mr.V.Murthy of the Second Respondent (who made spot inspection on 30.10.2012 at 7.30 a.m.) and also, this Court taking note of the orders of the Division Bench order of this Court dated 07.03.2013 in W.P.No.1482 of 2013 has mentioned supra comes to an inevitable and irresistible conclusion that the relief prayed for by the Petitioner to dispose his Representation dated 24.08.2012 cannot be acceded by this Court in the eye of law.

Viewed in that perspective, the Writ Petition is devoids of merits and consequently, the Writ Petition fails.

13.In the result, the Writ Petition is dismissed leaving the parties to bear their own costs.

06.01.2014 Index :Yes Internet:Yes DP To 1.The Special Commissioner for Handicapped, Office of the State Commissioner of Disabled, No.15/1, Model School Road, Thousands Lights, Chennai-600 006.

2.The Commissioner, Corporation of Chennai, Rippon Building, Chennai-600 003.

3.The Commissioner of Police, Egmore, Chennai-600 008.

M.VENUGOPAL.J.DP W.P.No.28826 of 2012 06.01.2014