JUDGMENT By the Court.—Heard learned counsel for the petitioner, Shri V.B. Mishra for respondent No. 3, Shri Madan Mohan for respondent No. 2 and the learned Standing Counsel for respondent No. 1. 2. Counter and rejoinder affidavits have been exchanged and with the consent of the parties this writ petition is finally disposed of. 3. Brief facts giving rise to this writ petition are:Petitioner is a handicapped woman aged about 37 years with 100 % disability. The Ghaziabad Development Authority floated a scheme namely; Madhuban Bapudham Avasiya Evam Bhavan Yojana for allotment of residential plots. Copy of the said scheme is filed as Annexure-2 to the writ petition. Under the said scheme the property Code was 788-789. There were 50 plots for allotment. Petitioner made an application under the physically handicapped category and deposited a sum of Rs. 1,94,750/-. 4. Petitioner’s case in the writ petition is that the result of the allotment was declared in which none of the candidates of the physically handicapped category has been allotted a plot. 5. Petitioner’s case is that the State Government issued a Government Orders dated 27/4/2001 and 30/1/2008, providing 3% reservation in plots for physically handicapped persons, but the respondents have not followed the aforesaid Government Orders. 6. Learned counsel for the petitioner has also challenged the Clause 9.20 of the brochure which provided that out of reserved quota in each category 3% reservation shall be given to the physically handicapped applicants. 7. In this writ petition, petitioner has prayed for following reliefs: “(i) issue a writ order or direction in the nature of certiorari quashing the impugned order of allotment of residential plots and housing scheme as per list by way of draws dated 14/6/2010, Annexure-IV to this writ petition) (ia) issue a writ order or direction in the nature of certiorari to quash the Clause 9.20 of Brochure published regarding to the Scheme-Code:788-735 (Annexure No. 2) issued by the respondent No. 3. (ib) issue a writ order or direction in the nature of Mandamus commanding and directing the respondents to amend the Clause 9.10 of Brochure published regarding to the Scheme-Code 788-735 (Annexure-2) issued by the respondent No. 3 to the extent showing 3% reservation for the handicapped persons in the allotment of residential plots/flats and in commercial plots in pursuance of the Govt. Order dated 27.4.2001 (Annexure No. 6) (ii) issue a writ order or direction in the nature of Mandamus directing the respondents to avail/allot the facilities of reservation quota and concessions in allotment of residential plots and housing scheme to the handicapped petitioner in pursuance of direction given in the Government Order dated 27.4.2001 and 30.1.2008 (Annexures V and VI to this writ petition) (iii) issue any other writ order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (iv) award the cost of the petition to the petitioner.” 8. Counter-affidavit has been filed on behalf of the respondent No. 3 in which a stand has been taken that total number of plots being 50 and reservation for SC being 21%, ST 2%, OBC 27%, Govt. Employee 5%, MP/MLA/FF 5%, Employee 2% Ex. Servicemen 3%. Allotment of plots were made accordingly, but no plots fell in the physically handicapped category in the general category, hence the petitioner’s application was not considered. It is submitted by the learned counsel for the respondents that no plots fell in the physically handicapped category, hence out of 50 plots no allotment has been made to any person belonging to physically handicapped category. 9. In paragraph 6 of the counter-affidavit, such stand has been taken which is sought to be supported by calculation. Copy of which is filed as Annexure-CA-1. The counter-affidavit does not deny reservation for physically handicapped category. 10. Shri V.B. Mishra learned counsel appearing for respondent No. 3, further contended that although in brochure 9.20, there is a provision providing 3% reservation out of reserved quota in each category, but in fact the said reservation is provided in each category including general category. 11. We have considered the submissions of the learned counsel for the parties and have perused the record. 12. The petitioner has brought on record the Government Orders dated 27.4.2001 and 30.1.2008 (Annexures VI and V to this writ petition) which provided 3% reservation in plots/houses for physically handicapped persons in the scheme of U.P. Awas Evam Vikas Parishad and the Development Authority. The said Government Orders clearly binds the respondents to provide for 3% reservation to the physically handicapped category candidate. 13. The relevant clause of the brochure providing for reservation to the physically handicapped persons are 9.10 and 9.20 which are quoted below: “9.10. The said Government Orders clearly binds the respondents to provide for 3% reservation to the physically handicapped category candidate. 13. The relevant clause of the brochure providing for reservation to the physically handicapped persons are 9.10 and 9.20 which are quoted below: “9.10. Following categories of applicants listed below of will be given reservation facility as per the percentage mentioned below. S. No. Quota Description Quota Code Quota 1 Scheduled Caste 02 21.00% 2 Scheduled Tribe 03 2.00% 3 Other Backward Class 04 27.00% 4 Defence Persons, 05} 5% Persons in Govt. Service 06} who have Attained the age of 50 years. (a) Defence Persons (b) Persons in Govt. Service 5 (a) Freedom Fighters 08} 5% (b) MP/MLA/MLC 09} 6 (a) U.P. Development Authority Employees 10} 2% (b) U.P. Municipality/City 11} Board Employees (c) U.P. Nagar Nigam Employees 12} (d) U.P. Jal Santhan Employees 13} (e) U.P. Housing Board Employees 14} (f) U.P. City &Village plannings Employees 15} (Those employees of U.P. City & Village planning Department, who have finished minimum 10 years in regular service will be included.) (g) Awas Bandhu of U.P. Employees. 16} (Those employees of Awas Bandhu of U.P. who have finished minimum 2 years in regular service will be included.) 7 Ex-Servicemen and their dependents 17 3% 9.20. Out of reserved quota in each category 3% reservation shall be given to the handicapped applicants and 10% reservation shall be given to the senior citizen applicants in that category. Such applicants are advised to attach certificate of reserved category with the certificate of their handicapped/senior citizen and reservation category must be filled in the application form. Applicants of general category should fill quota code-01. Senior citizens must have completed 60 years of age at the beginning of registration date.” 14. A perusal of brochure 9.20, indicates reservation up to 3% out of the reserved quota. The Government Orders referred to above does not restrict reservation for physically handicapped applicants only to reserved categories, rather provided 3% reservation in plots/houses for physically handicapped persons in the scheme of U.P. Awas Evam Vikas Parishad and the Development Authority. 15. According to the aforesaid Government Orders physically handicapped persons have been provided horizontal reservation in each category of (E.W.S, L.I.G., M.I.G. and H.I.G.). 15. According to the aforesaid Government Orders physically handicapped persons have been provided horizontal reservation in each category of (E.W.S, L.I.G., M.I.G. and H.I.G.). Providing horizontal reservation clearly mean that physically handicapped persons belonging to each category shall be considered, and if they have been selected in the physically handicapped category they shall be adjusted in their respective category. Although according to the scheme of the Government Orders referred to above, the applicants belonging to all category of physically handicapped are entitled to the benefit of reservation and the persons belonging to the general category were to be adjusted in the said category. 16. The stand which has been taken in the counter-affidavit is that no plots fell in the physically handicapped category including the general category. The number of plots mentioned in the brochure is 50, and 3% of the aforesaid number of plots is 1.5., 1.5 rounded up shall be treated as 2. The Development Authority was obliged to consider the physically handicapped category against the aforesaid two plots. The Chart which has been filed as Annexure CA-1 indicates that under the each category according to the Quota different plots have been earmarked to the different category. It is useful to quote the chart as mentioned in CA-1 which is quoted below : Quota Quota Quota Total Total Total No. of Total No. of Balance Balance Code % App- Plots App- Nand- App- Plots in Total Available lica- lica- icap- lica- Sr. Applica- plots tion tion ped tion Citizen tion in Quota in Sr. Quota Han- Quota dica- pped Quota SC 02 21 336 11 4 0 9 1 323 10 ST 03 2 3 1 0 0 0 0 3 1 OBC 04 27 320 14 6 0 11 1 303 13 Govt. Emp. 05-06 5 36 3 0 0 3 0 33 3 Age>50 MP/MLA/FF 08-09 5 5 3 0 0 0 0 5 3 Employee 10-16 2 10 1 0 0 0 0 10 1 Ex. 17 3 22 2 0 0 3 0 19 2 Servicemen General 01 969 15 12 0 29 2 928 13 Total 1701 50 22 0 55 4 1624 46" 17. 17 3 22 2 0 0 3 0 19 2 Servicemen General 01 969 15 12 0 29 2 928 13 Total 1701 50 22 0 55 4 1624 46" 17. A perusal of the chart filed alongwith the counter-affidavit and the stand taken in the counter-affidavit clearly proves that the respondent Development Authority has misapplied the provisions of reservation for physically handicapped category to the extent of 3% as provided by the Government Orders referred to above. 18. According to the stand taken by the respondents in the counter-affidavit, no plots fell in any of the category for the physically handicapped person. The calculation and the stand of the respondents is wholly arbitrary and against the settled principle of law. The reservation was provided for the physically handicapped persons in each category including the general category and the respondents have not allotted any plot to the physically handicapped category and have violated the provisions of the Government Orders referred to above and the rights of the physically handicapped category. 19. Government Orders which have been issued to implement the provisions of Section 43 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,(hereinafter called the “Act, 1995”) have statutory basis. 20. Section 43 of the Act, 1995 provides as under: “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.” 21. The Parliament enacted the Act, 1995 to give effect to directive principles of State policy as contained in Article 38 of the Constitution of India and to give effect to various international commitments to promote welfare of the physically handicapped persons to which India was also party. As mandated by Section 43 of the Act, 1995, State Government has issued Government Orders providing 3% reservation horizontally for physically handicapped candidates. 22. As mandated by Section 43 of the Act, 1995, State Government has issued Government Orders providing 3% reservation horizontally for physically handicapped candidates. 22. In National Federation of Blinds, U.P. Branch and another v. State of U.P. and others, AIR 2000 All 258 , following was laid down in paragraph 28: “28.Thus proclamations, declarations and various resolutions, and covenants, to which India is a party and a signatory, can be enforced by this Court to the extent that those declarations, proclamations, resolutions and covenants have been incorporated in the Act, 1995. Section 43 of the Act provides that 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 houses, setting up business, setting up of special recreation centres, establishment of special schools, establishment of research centres and establishment of factories by entrepreneurs with disabilities. It is, thus, evident that if any reservation or concession to the handicapped persons, is provided by the State or its instrumentality, that will be in consonance with the International proclamations, declarations, resolutions and covenants made by the United Nations Organisations and Sec.43 of the Act, 1995.” 23. Again the Apex Court in Prajwala v. Union of India and others, (2009) 4 SCC 798, issued following directions in paragraph 5 which is quoted below: “5. Under the above circumstances, we direct that whenever the State Governments or local authorities allot land for various purposes indicated in Section 43 of the Act and various items indicated in Section 43, preferential treatment be given to the disabled persons and the land shall be given at concessional rate. The percentage of reservation may be left to the discretion of the State Governments/local authorities. However, total percentage of disabled persons shall be taken into account while deciding the percentage.” 24. The provisions of the brochure 9.20 which contemplate 3% reservation for the reserved category candidate alone is also not in accordance with the Government Orders referred above. The Clause 9.20 of the brochure insofar as, it does not provide for 3% reservation for all physically handicapped category is hereby set-aside. 25. Shri V.B. Mishra, learned counsel for the respondent No. 3, sought to contend that the allotment has been completed. The stand of the respondents is unsustainable. The Clause 9.20 of the brochure insofar as, it does not provide for 3% reservation for all physically handicapped category is hereby set-aside. 25. Shri V.B. Mishra, learned counsel for the respondent No. 3, sought to contend that the allotment has been completed. The stand of the respondents is unsustainable. The authority who has violated the provision of law, cannot be heard in saying that they have completed the process. The provision providing for physically handicapped category is a statutory provision and no authority can escape from the responsibilities and duties to give effect to statutory provisions by mere saying that it has completed the process. This Court shall command the authority to follow the provisions of law and this lame excuse made by the counsel for the respondents is stated to be rejected. 26. From the materials brought on record, it is fully proved that the Ghaziabad Development Authority, was bound to provide reservation in plots under the scheme in question for physically handicapped category to the extent of 3%. 27. In the counter-affidavit, a detailed chart has been filed as Annexure CA-1 indicating that under the each category according to the Quota different plots have been earmarked to the different category. Under the handicapped quota, in all 4 SC candidates, 6 O.B.C. candidates and 12 General Category Candidates have made application, but none were considered by the Ghaziabad Development Authority by misconstruing and misapplying the percentage of reservation for physically handicapped category. The persons belonging to the physically handicapped category were entitled for sympathetic consideration looking to their disability, but from the materials brought on the record, we are of the view that the Ghaziabad Development Authority, has somehow tried to found ways to deny the rightful claim to the petitioner and present is a glaring example of the Ghaziabad Development Authority denying petitioner’s right which is statutorily protected and constitutionally recognised. 28. In view of the foregoing discussion, the petitioner has made out a case for grant of relief. 29. The writ petition is allowed with the following directions: (i) A writ of mandamus is issued to the respondents to consider the petitioner’s application under the physically handicapped quota to the extent of 3% of the number of plots in the scheme. In view of the foregoing discussion, the petitioner has made out a case for grant of relief. 29. The writ petition is allowed with the following directions: (i) A writ of mandamus is issued to the respondents to consider the petitioner’s application under the physically handicapped quota to the extent of 3% of the number of plots in the scheme. The respondent No. 3 having denied the rightful claim of the petitioner and other physically handicapped category candidates, it is for the respondent No. 3 to find out the modalities and the manner for giving effect to the rights of the physically handicapped persons in the scheme in question. All necessary action in this regard shall be taken by the respondent No. 3. (ii) Clause 9.20 of the Brochure of the Scheme i.e. Madhuban Bapudham Avasiya Evam Bhavan Yojana, Code-788-789, insofar as it provides 3% reservation for physically handicapped candidates of only reserved categories is struck down. (iii) A writ of mandamus is issued to the respondents to provide 3% horizontal reservation to all the applicants belonging to the physically handicapped category. (iv) The Principal Secretary Housing, State of U.P. is directed to take appropriate action and steps to ensure that the Ghaziabad Development Authority and the U.P. Awas Vikas Parishad, Lucknow shall implement 3% horizontal reservation to all the physically handicapped category in their different scheme for allotment of houses/plots. 30. Parties shall bear their own costs. —————