In an important judgment, a Division Bench of the Bombay High Court, comprising of Justice Abhay Oka and Justice C.V. Bhadang, has in an interim order passed on 20 May 2015, held that having pothole free roads in reasonable condition is a fundamental right of citizens, which is included in Article 21 of the Constitution. This order was passed in a suo motu Public Interest Litigation (PIL) initiated in 2013 by an order of the Chief Justice Mohit Shah of Bombay High Court. This PIL was initiated on the basis of a letter dated 24th July, 2013 addressed by Justice G.S. Patel to the Chief Justice of the High Court.
In its above detailed interim order dated 20 May 2015, consisting of 33 pages, the Bombay High Court observed as under:
“A judicial notice will have to be taken of the fact that the general condition of roads in all major cities in the State is far from being satisfactory. There are potholes on the roads. The roads are not properly levelled and surfaced. In some of the cities, proper zebra crossings are not provided for the benefit of the pedestrians. The footpaths or footways do not exist on the side of many roads. If the same exist, they are either in poor condition or the same are encroached upon by illegal structures or hawkers. In those cities where there is a heavy rainfall, the condition of roads worsens in the monsoon. The reason may be the failure to use proper techniques in making or repairing the roads. The problem is compounded by ever increasing vehicles coming on the roads.”
The court further observed as under:
“A judicial notice will have to be taken of the fact that the poor condition of roads, the existence of potholes on the roads, the poor surfacing of the roads, the failure to level the roads properly and the lack of proper amenities to the pedestrians are the major factors which cause a large number of road accidents which result into either loss of lives or serious injuries to the members of the public. Moreover, the poor condition of roads adversely affects free movement of the traffic thereby causing delays. In the bigger cities, apart from those who can afford to have their own four wheelers, common people travel by public sector or other transport buses and also use relatively cheaper means of public conveyance like autorickshaws. Large number of common people have their own two wheelers. Poor condition of roads causes considerable damage to the vehicles. The poor condition of roads considerably slows down the movement of traffic. Poor condition of roads apart from causing danger to the members of public, results into huge waste of fuel and valuable man hours. Travelling by public transport vehicles like buses and auto rickshaws on poorly maintained roads is a nightmare for all citizens especially for senior citizens, women, pregnant women, children etc. Due to poor condition of roads, the common man is the real victim.”
The aforesaid Division Bench relied upon the Judgment and Order dated 31st August, 2006 in PIL Suo Moto Writ Petition No.8 of 2005 and PIL WP No.3 of 2005, in which another Division Bench of Bombay High Court headed by Justice R.M. Lodha (who subsequently became Chief Justice of India) had laid down that the existence of roads in a reasonable condition is included in the right to life conferred on a citizen under Article 21 of the Constitution of India. Noting that the right of citizens to have pothole free roads in reasonable condition on the highest has thus been placed on the high pedestal of fundamental rights under Article 21 of the Constitution of India, the High Court noted that existence of such fundamental right creates corresponding obligation in all the authorities which are “State” within the meaning of Article 12 of the Constitution of India. For the infringement of the fundamental right guaranteed under Article 21 of the Constitution of India, a citizen can demand compensation apart from seeking the enforcement of the right. Moreover, a citizen has a right to make grievances regarding the violation of such right and get the grievances redressed.
Initially dealing with the Municipal Corporation of Greater Mumbai and the four Municipal Corporations in Thane District constituted under the Maharashtra Municipal Corporations Act, 1949, the High Court held that they are under an obligation not only to maintain the streets but to ensure that streets are properly levelled, properly surfaced and free of potholes. It is in the context of the legal obligations of all the authorities concerned that the High Court issued the further interim directions as under :
“(i) The earlier directions issued by this Court in the present Petition from time to time which are not inconsistent or contrary to the directions issued under this order shall continue to operate;
(ii) All the Municipal Corporations which are parties to the PIL shall maintain all the streets/roads including footways/ footpaths within its jurisdiction in good and proper condition. It shall be the responsibility of the Municipal Corporations to keep the roads and footpaths properly levelled and surfaced. It shall be their responsibility to ensure that potholes and ditches thereon are properly filled in. The work of filling in the potholes shall be carried out scientifically as an ongoing project;
(iii) While granting permissions to various authorities to do digging work on the streets, a condition shall be incorporated by all the Municipal Corporations/other Authorities of prominently displaying at the site of the work the following details :
(a) the name of the agency which is doing the digging work and
(b) the extent of the digging work permitted and the period within which the work shall be completed. The display boards shall also contain the outer limit within which the road shall be restored to its original condition;
(iv) Similar Boards shall be displayed at the sites where major repair work of streets is undertaken. The name of the agency undertaking the work and the outer limit for the completion of the work shall be also prominently displayed;
(v) The State Government, MMRDA, MSRDC and Mumbai Port Trust shall be also bound by all the aforesaid directions contained in Clauses (ii) to (iv) above;
(vi) All the Municipal Corporations as well as MMRDA, MSRDC and Mumbai Port Trust shall provide a mechanism to enable the citizens to file complaints about the poor conditions of streets. The complaints shall be received by following four methods:
(a) Complaints in writing received at designated centers;
(b) Complaints received through dedicated toll free number/s;
(c) Complaints received through dedicated website; and
(d) Complaints received by text message via cell phones.
(vii) The facility of receiving complaints by the aforesaid methods shall be made available throughout the year. The dedicated websites shall be designed or improvised in such a way that citizens are able to upload the photographs of the potholes on the streets or poor condition of streets on the website. Arrangement shall also be made to receive such photographs through cell phones;
(viii) System of tracking shall be made available to track the action taken on the basis of the complaints received by all four methods. Tracking facility shall be made available on the dedicated websites. Final action taken report on the basis of the complaints shall be uploaded on the websites within a period of two weeks from the date of receipt of the respective complaints. Wherever the citizens have forwarded the photographs of the sites either through cell phones or by uploading the same on the dedicated websites, along with the final report, photographs showing compliance made by carrying out repairs shall be also uploaded on the dedicated websites. All the Municipal Corporations and Authorities shall ensure that the mechanism in terms of the above directions is provided latest by 30th June, 2015. We make it clear that till the mechanism as directed above is provided, the existing mechanism, if any, shall continue to function;
(ix) In addition, for the City of Mumbai, the State Government shall create a similar mechanism common for all the agencies providing for four methods of receiving complaints in relation to all the streets in the City. It shall be the obligation of the State to forthwith forward the complaints received to the concerned authorities which are responsible for the maintenance and repairs of the concerned stretches of streets. Even such mechanism shall be made available on or before 30th June, 2015;
(x) A very wide publicity shall be repeatedly given by all concerned authorities to the mechanism provided as aforesaid in all leading newspapers as well as on the electronic media on or before 30th June 2015;
(xi) If the Committee appointed under the Government Resolution dated 28th September, 2012 has not submitted its recommendations, the same shall be submitted to the State Government on or before 30th June, 2015. If the Committee has already submitted its recommendations before the date of passing this order, the State Government shall take appropriate policy decision on the basis of the said recommendations on or before 30th June, 2015;
(xii) We direct the Municipal Corporations and other agencies involved in the maintenance of roads to ensure that modern scientific techniques are used for construction of the streets, for maintenance thereof and for carrying out repairs thereto. The authorities shall consider of taking assistance of the ninth Respondent on this aspect. The directions issued by this Court in the matter of entering into contracts shall continue till further orders;
(xiii) While filing compliance affidavits recording the compliance with the aforesaid directions, all the Municipal Corporations which are parties to this Petition, Public Works Department of the State Government, MMRDA, MSRDC and Mumbai Port Trust shall set out the details and particulars of the methods/techniques used by them for construction, maintenance and repairs of the streets. The affidavits to state the measures taken by the Authorities to maintain a strict quality control of the said works. The measures taken by the Authorities to ensure that the contractors maintain requisite standards shall be also set out in the affidavits. Compliance affidavits recording the compliance of the aforesaid directions shall be filed on or before 6th July, 2015;
(xiv) We direct the Municipal Corporations and the other agencies involved to issue circulars to its officers and members of the staff dealing with the work of maintenance of streets for putting them to notice that the failure to maintain the public roads, footpaths and bridges in proper condition may lead to loss of human lives, loss of valuable working hours and waste of valuable fuel apart from the inconvenience caused to the citizens. They shall be made aware that the right to have properly maintained streets is a fundamental right of citizens. The circulars shall state that a disciplinary action will be initiated against the erring officials;
(xv) The State Government shall consider of issuing directions to all the other Municipal Corporations which are not the parties to the Petition to implement these directions of this Court;
(xvi) For considering the compliance affidavits and for issuing further interim directions, the Petition shall be listed on 10th July, 2015 under the caption of “Directions”;
(xvii) In the meanwhile, we expect the tenth and eleventh Respondents and the Intervenor to bring to the notice of all concerned authorities the deficiencies and defects in the streets. If they find that their complaints are not acted upon by the concerned authorities, we grant liberty to them to move this Court for seeking further interim directions;
(xviii) We make it clear that these directions will apply to the public streets as defined under the said Act of 1888 as well as the said Act of 1949. Thus, the same shall apply to footways/footpaths as well;”
Thus, the Bombay High Court has given certain important directions to the municipal corporations in Mumbai and Thane district to give effect to the right of the citizens to pothole-free roads which should be in a reasonable condition.
