Himachal Pradesh High Court
Court On Its Own Motion vs State Of H.P. And Others on 5 June, 2015
Bench: Rajiv Sharma, Tarlok Singh Chauhan
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CW PIL No. 03 of 2014
.
Reserved on : 11.05.2015
Date of decision: 05.06.2015
Court on its own motion
......Petitioner.
Vs.
State of H.P. and others
.....Respondents.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Dilip Sharma, Senior Advocate as
Amicus Curiae with Ms. Nishi Goel,
Advocate.
For the respondents: Mr. Anup Rattan & Mr. Romesh Verma,
Additional Advocate Generals and Mr.
J.K. Verma, Deputy Advocate General.
Rajiv Sharma, J.:
The respondents were directed to file the status reports vide orders, dated 23.04.2014, 12.05.2014 and 03.06.2014. In sequel to the directions issued by this Court, the respondents No. 1 to 4 have filed a detailed reply dealing with all the institutions for Mentally Challenged and Differently Abled Children/Adults established throughout the State of Himachal Pradesh. In District Bilaspur, the institution by the name of Chetna Sanstha, Bilaspur is run by the NGO. According to the Whether the reporters of the local papers may be allowed to see the Judgment? Yes. ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 2 averments made in this affidavit, the NGO. has removed all the deficiencies pointed out by the learned District and Sessions, Judge, Bilaspur during his visit to the Centre on 10.02.2014. The NGO Chetna .
runs three Day Care centres at Bilaspur, Ghumarwin and Jhandutta, respectively for mentally challenged children. Eighty mentally challenged children enrolled in these centres. This NGO has engaged twenty staff members including two Drivers. These institutions were also inspected by the District Welfare Officer, Bilaspur on 11.06.2014. The mentally challenged children with disability of 40% and above are admitted in these centres as per PWDs. Act, 1995 and the NGO has prepared guideline for admission in these day care centres. The regular medical checkups have been started in these centres and the last medical checkups of the special children were conducted at Day Care Centres Bilaspur, Ghumarwin and Jhanduta on 13.05.2014, 03.06.2014 and 06.06.2014, respectively. Accordingly, the Chetna Sanstha, Bilaspur, through the District Welfare Officer, Bilaspur is directed to conduct the medical checkups of special children every month and maintain the record of the same.
2. Asha Kiran Viklang Shiksha Sansthan, Kothi, Tehsil Ghumarwin, District Bilasspur is being run by the NGO. According to the averments made in the affidavit, the NGO has removed all the deficiencies pointed out by the learned District & Sessions Judge during his last visit to the NGO centre on 10.02.2014. The rented building cannot be made barrier free, therefore, the NGO has already ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 3 started the work of its own building at Kothi near Palsoti and the construction of which will be completed within six months and the same will be made barrier free. The NGO has enrolled 20 differently .
abled children (including 13 mentally challenged and 7 hearing impaired) alongwith 7 staff members. The NGO has provided adequate and proper bedding to the inmates. The personal files of all 20 children with educational profiles and health charts have been maintained. Regular medical checkup of all the children are being done and the latest check up was conducted on 16.05.2014 by the Block Medical Officer, Ghumarwin. Free medicines like calcium, iron and other nutrition supplements etc. are being distributed to the children regularly. The NGO has maintained the Diet Chart. Accordingly, the Asha Kiran Viklang Shiksha Sansthan, Kothi, Tehsil Ghumarwin, District Bilaspur through District Welfare Officer, Bilaspur is directed to ensure that the new building is got constructed, if not already constructed, within a period of six months from today. It must conform all the norms laid down as per The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
3. In District Kullu, the Chander Abha Mahila Kalyan Sarwari, Kullu is being run by the NGO. The District and Sessions Judge, Kullu conducted the inspection on 03.02.2014 and 04.02.2014. The inspection of the institution was conducted by the District Welfare Officer, Kullu on 17.06.2014. This voluntary organization is providing formal education and residential facility up to senior secondary level for ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 4 Visually Impaired Children. During the inspection of the institution, the building, kitchen, bed rooms and class rooms found neat and clean. This NGO is registered under The Persons with Disabilities (Equal .
Opportunities, Protection of Rights and Full Participation) Act, 1995. The NGO also avails grant-in-aid from the GOI under "Deen Dayal Rehabilitation Scheme". The NGO is running the institution properly. The District Welfare Officer, Kullu is directed to visit the Centre every month.
4. Nav Chetna Parents Association for the mentally challenged, Kullu is also run by the NGO. The inspection of the institution was conducted by the District Welfare Officer, Kullu on 17.06.2014. It is a day care institution. The NGO is registered under the Indian Societies Registration Act, 1860. During the inspection of the institution, the building/rooms found neat and clean. The District Welfare Officer, Kullu is directed to visit the institution every month.
5. Now, we will advert to District Shimla. In District Shimla, there is a Home for visually and hearing impaired (boys), Dhalli. It is run by the H.P. Council for Child Welfare, Shimla. The Additional Deputy Commissioner, Shimla has carried out the inspection on 11.06.2014. The Himachal Pradesh Council for Child Welfare has initiated the departmental action as per the procedure against the defaulting staff and have issued warning to all the absentee employees. However, the floors and walls of kitchen and Home need immediate repair. The District Administration has directed the Block Development ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 5 Officer, Mashobra to prepare the estimates for undertaking immediate repair work. There is scarcity of space for the hostel of both the institutions. The matter was accordingly taken up with the Indian Red .
Cross Society to hand over the adjoining two buildings to Himachal Pradesh Council for Child Welfare to ease out the space problem. The Indian Red Cross Society agreed and handed over the building to HPCCW on 23.06.2014 on nominal monthly rent of `15, 000/-. All the inmates earlier kept in School/home in Dhalli, as mentioned in the report of learned Chief Judicial Magistrate have been shifted to the new Home at Nahan. Regarding establishing separate Home for Mentally retarded females, the Government of Himachal Pradesh has already granted the approval for starting the same through the Prem Ashram Una. It is run by Sister of Charity. Accordingly, we direct the Deputy Commissioner, Shimla to ensure that the floors and walls of kitchen are repaired within a period of three months from today. We also direct the Red Cross Society to hand over the adjoining two buildings to Himachal Pradesh Council for Child Welfare, if not already handed over, within a period of three months from today to be utilized by the Aashram.
6. Learned District & Sessions Judge, Chamba has carried out the inspection of Bal Ashram-cum-Children Home Mehla, Gujjar Ashram Kalsuin on 26.05.2014, 27.05.2014 and 19.06.2014. Bal Ashram-cum-children Home Mehla is run by the HP Council for Child Welfare. There are no Benches and Tables for the inmates to take their meals. The Deputy Commissioner, Chamba is directed to ensure that ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 6 the Benches and Tables are provided to the inmates of Bal Ashram-cum Children Home Mehla to take their meals.
7. Balika Ashram-cum-Children Home Chilli is also run by .
the HP Council for Child Welfare. But, the proposed building was to be financed by the NHPC. The Council was required to take up the matter with the Government for the purpose of construction of building by NHPC. Accordingly, the H.P. Council for Child Welfare is directed to take up the matter with the State Government. The Deputy Commissioner, Chamba is directed to process the matter for making the land available to the HP Council for Child Welfare. Thereafter, the NHPC shall construct the building as per the norms within a period of one year from today.
8. The Balika Ashram-cum-Children Home Chamba is being run by the Mahila Kalyan Mandal Chamba. Stock register is maintained regularly in the Ashram. All facilities are being provided to the inmates regularly as per the norms. In Gujjar Ashram Kalsuin, Chamba, rooms, kitchen and bath rooms are regularly cleaned by the Ashram staff. The Ashram is running in Govt. building. But, there is some leakage of roof during rainy season. Benches and tables were not available in the Home. The Deputy Commissioner, Chamba is directed to ensure that the leakage is plugged at Gujjar Ashram Kalsuin, Chamba. Similarly, the Benches and tables be provided to the inmates of the Gujjar Ashram Kalasuin, Chamba. Gujjar Ashram Sahoo, Chamba, is being run in the departmental building. There are some minor leakages from ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 7 the roof and floor of the Ashram which requires some repairs. Solar system for heating water also needs some repairs. The estimates be prepared and submitted to the Deputy Commissioner, Chamba for .
taking necessary steps for undertaking the repair work. The Deputy Commissioner, Chamba is directed to ensure the plugging of the leakage. He is also directed to ensure that the proper repairs are undertaken within a period of four weeks from today.
9. Bal Balika Ashram-cum-Children Home Killar, Pangi is being run by the Women & Child Development in Government building, which requires some repairs No Benches and Tables are available in the Ashram. Estimates have been prepared. Accordingly, the Deputy Commissioner is directed to do the needful within a period of three weeks from today.
10. Learned District & Sessions Judge, Hamirpur has visited the Children Home Sujanpur. There is immediate need for minor repair, replacement of the doors of the bath room etc., white wash and painting etc. Accordingly, the Deputy Commissioner, Hamirpur, H.P. is directed to ensure that minor repairs are undertaken, the doors of the bath room are replaced, white washing and painting is undertaken within a period of three months. The Chief Medical Officer, Hamirpur is directed to depute a Medical Officer in the Home for medical examination of the inmates fortnightly.
11. The Balika Ashram, Garli was inspected by the learned District and Sessions Judge, Kangra on 06.02.2014. 14 girls are ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 8 residing in the Home, out of which, 13 are studying in different classes in Government High School (Girls), Garli and Government Primary School (Girls), Garli. According to the affidavit, dated 20.06.2014, filed .
by the Deputy Commissioner, Kangra, the construction of the new building for the Balika Ashram has been undertaken and the funds to the tune of `3,14,56,000/- have been provided for this purpose. Accordingly, we direct that the construction of the building will be carried out within a period of one year from today.
12. In District Kinnaur, there is one Children Home, namely, Balika Ashram-cum-Children Home Kalpa. The accommodation was found to be sufficient as per the report of the District and Sessions Judge, Kinnaur, dated 17.06.2014. Sh. Mathura Dass was appointed as Warden. The District Welfare Officer, Kinnaur is directed to ensure that some female Warden is appointed in Balika Ashram-cum-Children Home Kalpa. The Deputy Commissioner, Kinnaur is directed that the repairs of the kitchen and dining hall be undertaken within a period of three weeks. Minor repairs like installing of grills in the upper rooms and plastering work on one of walls be carried out through the Deputy Commissioner, Kinnaur within a period of six weeks from today.
13. In District Kullu, there is a Bal Ashram Kalehali. It was inspected by the learned District and Sessions Judge, Kullu on 29.05.2014 and 16.06.2014. According to the affidavit filed by the Deputy Commissioner, Kullu, dated 22.06.2014. The department has located a suitable piece of Government land to construct a new ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 9 building. The process to transfer land in the name of the department has been initiated. The Deputy Commissioner, Kullu is directed to ensure the transfer of the land for the purpose of construction of new .
building in order to shift the inmates to the new building. The construction of the building be completed within a period of one year.
14. In District Mandi, the learned District & Sessions Judge, Mandi has visited the Divya Manv Jyoti Anathalya Dehar and the Child Care Institution, Sundernagar. The post of Superintendent was lying vacant. The Deputy Commissioner, Mandi is directed to ensure that the Superintendent is appointed within a period of four weeks from today.
15. No shortcomings were found in Bal Ashram-cum-Children Home Tutikandi. The Deputy Commissioner, Shimla has also filed the latest status report on 28.06.2014. He has visited the Bal Ashram-cum- Children Home Tutikandi. According to him, four mentally challenged boys residing in Bal Ashram-cum-Children Home Tutikandi have been shifted to Astha Welfare Society. According to his report, Balika Ashram-cum-Children Home Mashobra, was run by the Department of Social Justice & Empowerment. The existing building was in dilapidated condition. A proposal for construction of new building for this Home is under active consideration of the Government. Consequently, the new building as per the initiative already taken, be completed within a period of one year from today and the Deputy Commissioner, Shimla would be the nodal officer to supervise the construction and its early completion.
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16. The inspection of Bal Ashram-cum-Children Home Masli was undertaken by the Committee on 11.06.2014. The inspection of the Bal Ashram-cum-Children Home Saharan was undertaken on .
10.06.2014. The inspection of Balika Ashram-cum-Children Home Sunni was undertaken on 11.06.2014. The inspection of Balika Ashram-cum-Children Home Durgapur was undertaken on 11.06.2014 and the inspection of Bal Ashram-cum-Children Home Rockwood was undertaken on 11.06.2014. According to the reports, all the facilities were available. However, the Deputy Commissioner, Shimla and District Welfare Officer, Shimla are directed to visit the Ashrams after every three months to ensure that all the basic amenities are provided to the inmates.
17. In District Una, a Special School-cum-Observation Home, Una has been housed in the newly constructed building at Samoorkalan, Una since 09.02.2006. No discrepancy was found during the inspections carried out by the learned District & Sessions Judge, Una on 06.05.2014 and by the Deputy Commissioner, Una.
18. The Deputy Commissioner, Kangra, H.P. has filed a separate status report in respect of Balika Ashram and Homes run for physically challenged persons/mentally retarded persons at Dari, Saliana and Garli. Home for physically disabled persons at Dari is run by the Department of Social Justice and Empowerment through H.P. State Council for Child Welfare, Shimla. The Home is functioning in Government building. It is manned by a regular Principal alongwith five ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 11 other supporting staff. The School for mentally challenged children, Saliana is being run by the Palampur Rotary Eye Foundation. An Incharge has been appointed by the Palampur Rotary Eye Foundation .
to look after the School alongwith nine supporting staff. Balika Ashram, Garli is run by the Directorate of Women and Child Development under the department of Social Justice and Empowerment. This Ashram is manned by an Assistant Superintendent alongwith five other supporting staff. The problem of leakage at Dari Home has been rectified.
19. The status report has also been filed on behalf of the Deputy Commissioner, Shimla under his affidavit, dated 8th July, 2014. He has underlined the initiatives taken for the improvement in the basic amenities. The measures undertaken be completed within a period of three months from today, if not already completed.
20. All the Deputy Commissioners and the District Welfare Officers are directed to ensure the due compliance of the directions issued hereinabove qua Bal Ashrams/Homes situated in the State of Himachal as per the deficiencies pointed out by the learned District & Sessions Judges in their reports and in the reports filed by the Deputy Commissioners from time to time.
21. The State Government has not provided any separate Home for mentally retarded children. In a welfare State, it is duty of the State to provide institutions for mentally retarded children in cluster of three Districts each. This is a very important duty and cannot be left to be ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 12 managed by the private bodies. Accordingly, the State of Himachal Pradesh is directed to establish at least one institution for the mentally retarded children in a cluster of three Districts as per the geographical .
and topographical conditions within a period of one year from today and also by providing teaching and non-teaching staff. The State Government is also directed to ensure opening of a new Aashram/Home for physically challenged children throughout the State of Himachal again in the cluster of three Districts within a period of one year. The necessary funds shall be made available by the State Government for construction of all the institutions for mentally retarded and physically challenged children.
22. The Court while dealing with the matter, has come across various instances, whereby the construction of even public utility buildings is held up for want of "No Objection Certificate" to remove the trees. The public utility buildings are to be treated separately vis-à-vis private buildings. We can take judicial notice of the fact that even the construction/execution of the hospital building has been held up due to No Objection Certificate, not being issued promptly by the statutory authorities. The matters concerning public utility buildings are to be addressed with promptitude to reduce the cost of construction. If the permissions are not accorded for months and years together, the costs escalate and it affects the entire society at large. The needy are also deprived of the basic facilities which are proposed to be provided in the new public utility buildings. We have to maintain the balance between ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 13 the environment and development. Accordingly, we direct the Municipal Corporation, Municipal Council, Nagar Panchayats and the State of H.P. to accord "No Objection Certificate" to cut/remove the trees for the .
purpose of executing the construction of public utility buildings within a period of three weeks from today, if necessary by visiting the spot. Stringent conditions can also be imposed while granting "No Objection Certificate" for felling/removing the trees. It is made clear, in larger public interest that if the necessary permission is not accorded within a period of three weeks, the Executing Agency shall be permitted to construct the buildings.
23. We have also taken judicial notice of the reckless manner in which the debris is being disposed of while constructing public parking lot near lift, Shimla. Uncontrolled dumping of debris, that too, without any scientific method is destroying the flora and fauna of the area. The debris rolls down towards rivulet affecting the quality of water. The Engineer-in-Chief, Public Works Department, Government of Himachal Pradesh cannot be oblivious to the glaring illegality repeatedly perpetuated by the contractors throughout the State of Himachal Pradesh in the manner in which the debris is being dumped either in rivulets or simply rolled down to the hills. Accordingly, we direct the Engineer-in-Chief to personally visit the site of public parking lot near lift within 24 hours and to ensure that the debris is not rolled down towards the rivulet. This shall be done by him by issuing order in writing and in case there is any defiance of the orders issued by the ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 14 Engineer-in-Chief, the construction work shall be stopped forthwith. We also direct the Secretary, Public Works Department to ensure that the debris is not rolled down into the rivulets/ravine/rivers and hill .
side causing irreparable damage to the fragile environment and ecology of the area throughout the State of Himachal Pradesh. We authorize the Secretary, Public Works Department to stop the construction forthwith if debris is disposed of without identifying the proper dumping site.
24. Their Lordships of the Hon'ble Supreme Court in Air India Statutory Corporation and others Vs. United Labour Union and others (1997) 9 Supreme Court Cases 377 have held that the Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life to be meaningful and liveable with human dignity. Their Lordships have further held that social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress and to make their life liveable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results. Their Lordships have held as under:
"42. The Preamble and Article 38 of the Constitution envision social justice as the arch to ensure life to be meaningful and liveable with human ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 15 dignity. Jurisprudence is the eye of law giving an insight into the environment of which it is the expression. It relates the law to the spirit of the time .
and makes it richer. Law is the ultimate aim of every civilized society, as a key system in a given era, to meet the needs and demands of its time. Justice, according to law, comprehends social urge and commitment. The Constitution commands justice, liberty, equality and fraternity as supreme values to usher in the egalitarian social, economic and political democracy. Social justice, equality and dignity of person are cornerstones of social democracy. The concept of "social justice" which the Constitution of India r engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. "Social justice" is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species.
Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward off distress and to make their life liveable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and constitutional goal. Social security, just and humane conditions of work and leisure to workman are part of his meaningful right to ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 16 life and to achieve self-expression of his personality and to enjoy the life with dignity. The State should provide facility and opportunities to enable them to .
reach at least minimum standard of health, economic security and civilized living while sharing according to their capacity, social and cultural heritage.
43. In a developing society like ours, steeped with unbridgeable and ever-widening gaps of inequality in status and of opportunity, law is a catalyst, rubicon to the poor etc. to reach the ladder of social justice. What is due cannot be ascertained by an absolute standard which keeps changing, depending upon the time, place and circumstances. The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor, the workmen, etc. are languishing and to secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets sof human activity. The concept of social justice embeds equality to flavor and enliven the practical content of life. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results. It was accordingly held that right to social justice and right to health are Fundamental Rights. The management was directed to provide health insurance during service and at least 15 years after retirement and periodical tests for protecting the health of workmen."::: Downloaded on - 15/04/2017 18:21:01 :::HCHP 17
25. In the light of the aforesaid observations/directions, the petition stands disposed of.
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(Rajiv Sharma) Judge (Tarlok Singh Chauhan) Judge June 05, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:21:01 :::HCHP