Kerala High Court: While adjudicating a case relating to life-threatening potholes on National Highways in Kerala, Devan Ramachandran, J. held that access to good roads is the right of citizens. Lamenting the sorry state of highways in the State, the Court expressed,
“Even though this Court has been issuing orders after orders, the roads turn into disrepair after initial and temporary restoration; and it is in such context that directions had been earlier issued to even initiate vigilance cases and other proceedings against Engineers and contractors.”
Noticeably, a person had died by falling into a pothole on the National Highway at Athani. The Amicus Curiae, Vinod Bhat brought it to the Court's notice that some stretches of the NH, particularly at Chalakkudy, Kodungalloor, Orumanayoor etc. have huge craters and potholes.
“The death of a person certainly shocks this Court; and in fact, couple of years ago it was this that spurred the various directions earlier issued.”
National Highway Authority of India (NHAI), conceded that there were some problems with the stretch in question and that since the stretch in question is part of the Highway covered under a “Build-Operate-Transfer” agreement with the Concessionaire; they are responsible for its upkeep, maintenance as also its restoration.
NHAI submitted that steps had already been taken to repair every stretch of the National Highway across the State to ensure that such instances do not recur. The work is entrusted to new contractors, at the risk and cost of the earlier ones. Shifting the liability on the earlier contractor, NHAI submitted that the agreements in question specifically enumerate the responsibilities of such Concessionaires, including to pay damages and compensation in the event of accidents, injuries, and death.
The State government submitted that steps had already been taken to cause an enquiry into the accident and that a necessary criminal investigation is underway.
The Amicus Curiae informed the Court that he had met the family of the victim — who survived his wife and two young children, one of whom is studying in college, while the other is still in school. The victim was returning home after a full day of work, when he hit the pothole which was filled up with water, thus being virtually invisible, leading to the fatal accident.
Considering the aforementioned submissions, the Court expressed,
“The gravity of the situation in Kerala is now for all to see. We do not react until we are the victim or someone, we know faces such a situation. It is always as if accidents only happen to others and not to ourselves. But this is a myth, as anybody with reasonable sense would reckon.”
Referring to compensation provisions, the Court observed that Section 198-A(2) of the Motor Vehicles Act, 1988 provides for fines and payment of compensation; further there are such provisions in the Concessionaire agreements also. Similarly, Section 8-B of the National Highways Act, 1956 provides for compensation and damages in the case when anyone causes distress or damage to a National Highway. However, the Court noted,
“Needless to say, we have provisions and provisions, but it is seldom put to effective implementation.”
The Court noted that the Disaster Management Act, 2005, is a classic piece of legislation, which empowers the District Collectors — who are the heads of the District Disaster Management Authority – to take action to avoid every disaster. Observing that the word ‘disaster' is defined in the said Act to include a mishap of calamity through man-made causes, the Court said,
“A road being potholed and craters being allowed to be formed, are certainly man made causes, particularly because it can only be seen to be on account of the total negligence or indifference of the concerned Authorities, including Engineers as also the Concessionaires and contractors who are entrusted with the work.”
Duties of District Collectors
The District Collectors cannot be mere spectators and react solely when an accident happens; but they are certainly enjoined to act to avoid it. This is the true spirit of the Disaster Management Act. However, this Court is yet to see any notification or order issued by a District Disaster Management Unit until an accident happens; and it is no different today, the District Collector, Ernakulam has now issued such an order.
“I fail to understand the purpose of an order issued under the Disaster Management Act after an accident has happened. It is surely for the Disaster Management Authority of every District to act proactively to ensure that such do not happen, whether that be in the National Highway, PWD Roads, or any other road under the control of the various Local Self Government Institutions.”
The Court noted that the District Collectors, in their capacity as the Heads of the District Disaster Management Authorities, have a definitive role to play and the Authorities under them have to be alive to any issues on the roads, particularly relating to potholes and craters. Even solitary ones will have to be taken note of and acted upon, fixing full responsibilities upon the Engineers, contractors, and other persons entrusted with the road. Since the Court cannot keep on passing orders every time there is a disaster and it is for the District Collectors to act.
Conclusion & Directions
In the light of the above, the Court while suo motu impleading the Regional Officer, NHAI, as an additional respondent issued following directions:
NHAI will make available the copy of the Concessionaire agreement by the next posting date.
The competent Authority of NHAI will cause an enquiry into the accident in question as also on the other stretchers which has gone into disrepair and file a report fixing responsibility on Engineers/Concessionaires as the case may be.
NHAI will take immediate steps to rectify every road under their control, either through the present Concessionaires or through new contractors; but which shall be done without any further delay, but within one week.
The District Collectors will issue orders with respect to any road in which potholes are found and take necessary action against the jurisdictional Engineer, contractors or any other person who may be responsible. All corollary consequences thereto will also follow, to the fullest warrant of law.
The earlier directions of this Court to initiate Vigilance cases and other investigation, will continue to hold effect and it will be supplementary to the afore directions.
Additionally, noticing that Section 7 of the National Highway Act provides the manner in which fees and tolls can be collected by the NHAI or by the Concessionaire, the Court stated that the collection of tolls normally would pre-suppose the responsibility on the Concessionaire or the competent Authority to maintain the roads in the best manner.
The matter is listed on 19-08-2022 for further hearing.
[C.P. Ajithkumar v. State of Kerala, WP(C) No. 32680 of 2008, decided on 08-08-2022]
Advocates who appeared in this case :
Advocate Tom K. Thomas, Advocate, for the Petitioner;
Vinod Bhat, Advocate, for the Amicus Curiae;
Standing Counsel Bidan Chandran, Advocate, for the NHAI;
Senior Government Pleader K.V.Manoj Kumar, Advocate, for the State.
*Kamini Sharma, Editorial Assistant has put this report together.