{"id":271541,"date":"2022-08-11T17:00:30","date_gmt":"2022-08-11T11:30:30","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=271541"},"modified":"2022-08-11T16:46:19","modified_gmt":"2022-08-11T11:16:19","slug":"cant-let-the-roads-of-kerala-be-a-killing-field-kerala-hc-issues-directions-to-nhai-and-district-collectors-to-ensure-the-roads-are-craters-potholes-free","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/08\/11\/cant-let-the-roads-of-kerala-be-a-killing-field-kerala-hc-issues-directions-to-nhai-and-district-collectors-to-ensure-the-roads-are-craters-potholes-free\/","title":{"rendered":"Can’t let the roads of Kerala be a killing field; Kerala HC issues directions to NHAI and District Collectors to ensure the roads are craters & potholes free"},"content":{"rendered":"
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Kerala High Court<\/span>: 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,<\/p>\n

“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.”<\/b><\/p>\n

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.<\/p>\n

“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.”<\/b><\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Considering the aforementioned submissions, the Court expressed,<\/p>\n

“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.”<\/b><\/p>\n

Statutory Reliefs<\/p>\n

Referring to compensation provisions, the Court observed that Section 198-A(2)<\/a> of the Motor Vehicles Act, 1988<\/a> provides for fines and payment of compensation; further there are such provisions in the Concessionaire agreements also. Similarly, Section 8-B<\/a> of the National Highways Act, 1956<\/a> provides for compensation and damages in the case when anyone causes distress or damage to a National Highway. However, the Court noted,<\/p>\n

“Needless to say, we have provisions and provisions, but it is seldom put to effective implementation.”<\/span><\/p>\n

The Court noted that the Disaster Management Act, 2005<\/a>, 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,<\/p>\n

“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.”<\/b><\/p>\n

Duties of District Collectors<\/p>\n

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.<\/p>\n

“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.”<\/b><\/p>\n

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.<\/span><\/p>\n

Conclusion & Directions<\/p>\n

In the light of the above, the Court while suo motu impleading the Regional Officer, NHAI, as an additional respondent issued following directions:<\/p>\n