It is high time that all concerned clearly understand that a
right to have properly maintained roads is a part of fundamental right
guaranteed by Article 21 of the Constitution of India and in the event
any loss is caused due to its violation, the citizens have a right to seek
compensation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUO MOTU PUBLIC INTEREST LITIGATION NO.71 OF 2013
The High Court on its own Motion,
High Court of Judicature at Bombay
Versus
The State of Maharashtra and Others
CORAM : A.S. OKA & C.V
. BHADANG , JJ.
ORDER PRONOUNCED ON : 20th MAY, 2015
On the basis of the letter dated 24th July, 2013 addressed by
a learned Judge of this Court (Hon'ble Shri Justice G.S. Patel), this Suo
Motu Public Interest Litigation has been initiated under the order dated
29th July, 2013 passed by the First Court. Considering the importance of
the issues raised in this PIL, the same requires final hearing. Hence, we
issue Rule. The concerned Counsel who are representing various
Respondents today waive service of the Rule. We have heard Ms.Geeta
Shastri, the learned AGP for the State Government. We have heard Shri
A.Y. Sakhare, Senior Counsel along with Mr. R.S. Apte, Senior Counsel
on behalf of the Mumbai Municipal Corporation. Mr.Kamal Khatta, the
learned counsel representing the tenth and eleventh Respondents (who
are the members of the Bar) has made several suggestions in writing.
We have heard him in some detail. We have also heard Ms. Thakkar, a
party in person and Intervenor. We have heard Shri Prashant Chavan for
the thirteenth Respondent and Shri Sethna for the Union of India. We
have heard the learned counsel for the parties on the issue of passing
interim directions. The issue involved in this Petition has been already
dealt with to some extent by this Court in (PIL) Suo Motu Writ Petition
No.8 of 2005 and (PIL) WP No.259 of 2005. Notwithstanding the orders
dated 16th August, 2006, 31st August 2006 and 17th October, 2007
passed in the aforesaid Petitions, the issue still survives for
consideration.
2.
In the City of Mumbai as well as in all major Cities in the
State there exists an issue which is causing a lot of concern. The issue is
of poor condition of roads in the Cities. In the City of Mumbai as well as
the cities having Municipal Corporations in Thane Districts, there is an
additional problem. In these cities, heavy monsoon is always set out as
an excuse for poor condition of roads and the potholes on the roads. 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 foot
ways 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.
3.
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. We must note here that neither the
Mumbai Municipal Corporation nor any other Corporations which are
before the Court have attempted to come out with a case that the
conditions of the roads is very good. There are various causes of poor
condition of roads. One cause may be poor technique or inferior quality
of material used for construction of roads. May be that while repairing
the roads and while filling the potholes, proper scientific methods are
not used. Therefore, the repairs carried out to the roads survive only for
a short time. Apart from these vital causes, elements such as heavy rains
or heat also contribute to poor condition of roads. Moreover, large
number of agencies such as telephone companies, Internet service
providers, gas companies indulge in indiscriminate digging of roads.
The roads are rarely restored to its original condition immediately after
the work is over. The restoration work is very rarely done satisfactorily.
The City of Mumbai has further complications. In most of
4.
the other Cities in the State, the local authorities such as Municipal
Corporations or Municipal Councils are solely responsible for
maintenance of the roads. In the City of Mumbai, apart from the
Municipal Corporation of City of Mumbai, various other agencies are
involved in construction, maintenance and repairs of the roads in the
City. The Eastern Express Highway as well as Western Express Highway
pass through the City of Mumbai. Apart from these highways, there are
major roads which connect the Bombay Pune National Highway. There
are elevated roads and large number of road overbridges in the City of
Mumbai. Apart from the Mumbai Municipal Corporation, various other
agencies are involved in the maintenance of different stretches of roads.
The said agencies are the Mumbai Metropolitan Region Development
Authority (MMRDA) established under the Mumbai Metropolitan
Region Development Authority Act, 1974 (for short “the said Act of
1974”), the Public Works Department of the State Government, the
Mumbai Port Trust which is established under the Major Port Trusts Act,
1963 and the Maharashtra State Road Development Corporation
Limited (for short “MSRDC”) which is a Government Company
incorporated under the Companies Act, 1956. MSRDC mainly deals
with the properties and assets comprising movables and immovables
including land, road projects, flyover projects, toll collection rights and
works under construction which earlier vested with the State
Government and were under the control of its Public Works
MSRDC.
Before we deal with the obligations of various statutory
5.
Department. Certain works have been subsequently transferred to
authorities and the State Government, it is necessary to make a
reference to what is held by this Court under 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. A Division Bench of this Court presided over by
His Lordship Justice R.M. Lodha (as he then was) 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.
It will be necessary to note the principles laid down by this Court in
paragraph 9 of the said order which reads thus :
“9.
It is the obligation of the Civic Authorities and the other
agencies of the State to secure to the public the means of
communication in good and proper condition. There
cannot be any justification for the bad roads in the
financial capital of the country. The people of Mumbai
contribute hugely to the revenue of the Centre, the State
and the Civic Body. Are they not entitled to the good
civic amenities including roads in good condition? How
long the citizenry would continue to suffer bad roads? In
the context of the constitutional provisions, the
existence of roads in reasonable conditions is
embraced in the citizens' right to life. Every person is
entitled to 'life' as enjoined under Article 21 of the
Constitution of India. The directive principles have
been read into Article 21 to make life more meaningful
and not mere its existence. Good roads are the necessity
to the life. There has to be roads for communication
in reasonable condition in view of the constitutional
imperatives. This is well settled. It needs no
emphasis. It is thus imperative for the MCGM to make
available proper roads to the people in the city of
Mumbai through out the year. The Corporation has to
discharge its constitutional and legal obligations
unfailingly. What we have said above is applicable
equally to all the other authorities like Mumbai
Metropolitan Region Development Authority, Mumbai
Port Trust, Maharashtra State Road Development
Corporation, the Public Works Department and the
Thane Municipal Corporation. It is their duty,
responsibility and obligation to provide proper roads
within their jurisdiction to the commuters through
out the year. By serious consequences by infringing
the valuable rights of the people. Lest it must be
forgotten, bad road mean physical damage, huge
economic loss and more accidents.”
(emphasis added)
6.
We must note here that in the said two Petitions, this Court
was dealing with the roads in the Cities of Mumbai and Thane. While
disposing of the said Petitions, by order dated 17 th October, 2007 this
Court dealt with the stand taken by the Municipal Corporation of
Mumbai. In paragraph 4 of the said order, the Division Bench observed
Lack of basis civic amenities and bad road conditions
have become order of the day. This is never ending story
and common to all local statutory bodies and public
works department who are responsible and accountable
for construction, upkeep and maintenance of roads and
with the on set of monsoon every year, the problem gets
multiplied. There are incidences quoted before us where
the roads do not exist and toll is collected, which comes
under the jurisdiction of M.M.R.D.A., M.S.R.D.C. and
P
.W.D. We therefore, dispose of these petitions as this
Court is of the view that it will not be able to
continuously monitor constructions and maintenance of
the roads within or beyond the Municipal limits of
Greater Mumbai indefinitely. This Court is having atleast
half a dozen public interest litigations filed by the
citizens on the issue of bad road conditions in other
Municipal Corporations like Thane, Pune and so on and
those petitions are being pursued in accordance with
law.”
“4.
thus :
7.
Ultimately in paragraph 6, the Division Bench observed
thus :
“6.
8.
As we have already observed that this problem is never
ending, citizens are at liberty to approach this Court in
case deficiency is noticed of a particular road in question
and the concerned officials, incharge of the area and the
Municipal Commissioner can be issued a show cause
notice to explain as to why appropriate action should not
be taken against him for his failure to keep the roads in
good working conditions that would keep the authorities
in check.”
The learned Judge of this Court along with his letter dated
24th July, 2013 addressed to the Hon'ble the Chief Justice has submitted
a detailed note in which he has observed that the issues which were
before this Court in the earlier two PILs have not been satisfactorily
addressed as is shown by several subsequent events. To his note, he has
annexed several press cuttings and media reports. The media reports
are regarding riders of two wheelers suffering casualties such as death
or spinal injuries which can be attributed to potholes on the roads. Even
the copies of the aforesaid orders passed in aforesaid PILs were
As pointed out earlier, by the judgment and order dated
9.
submitted along with the said Note.
31st August, 2006 this Court has already held that the right to have
roads in reasonable condition is a part of the fundamental right
guaranteed under Article 21 of the Constitution of India. Thus, the
Division Bench has placed the right of citizens to have pothole free
roads in reasonable condition on the highest pedestal of fundamental
rights under Article 21 of the Constitution of India. 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.
10.
There are statutory obligations vesting in various
authorities mentioned in paragraph 4 above. All the authorities are the
“State” within the meaning of Article 12 of the Constitution. Initially we
are dealing with the Municipal Corporation of Greater Mumbai
established under the Mumbai Municipal Corporation Act, 1888 (for
short “the said Act of 1888”) and the Municipal Corporations
constituted under the Maharashtra Municipal Corporations Act, 1949
(for short “the said Act of 1949”). The four Municipal Corporations
constituted under the said Act of 1949 in Thane District are also parties
to the Petition. As far as the Municipal Corporation of Greater Mumbai
is concerned, Chapter III of the said Act of 1888 provides for the
obligatory and discretionary duties of the Corporation. Clause (m) of
Section 61 of the said Act 1888 which forms a part of Chapter III reads
thus :
“61. Matters to be provided for by the Corporation.
It shall be incumbent on the corporation to make
adequate provision, by any means or measures which it
is lawfully competent to them to use or to take, for each
of the following matters, namely:—
(a) .................................................................
(m) the construction, maintenance, alteration and improvement
of public streets, bridges, culverts, causeways and the like
[and also other measures for ensuring the safe and orderly
passage of vehicular and pedestrians traffic on streets].”
11.
The said clause (m) incorporates a mandatory duty of the
Mumbai Municipal Corporation of maintaining and improving public
streets, bridges, canal, cause ways, etc. More importantly, there is a
mandatory duty to take measures for ensuring safe and orderly passage
of vehicular and pedestrian traffic on streets. Unless the streets are
properly levelled and maintained in good condition, orderly passage of
vehicular and pedestrian traffic on streets cannot be ensured. A “street”
is defined in Clause (w) of Section 3 of the said Act of 1888 which reads
thus :
“street” includes any highway and any causeway, bridge,
viaduct, arch, road, lane, footway, square, court, alley or
passage, whether a thoroughfare or not, over which the
public have a right of passage or access or have passed
and had access uninterruptedly for a period of twenty
years; and when there is a footway as well as
carriageway in any street, the said term includes, both.”
“(w)
12.
Thus, the definition of “street” is very wide which also
includes a footway or a footpath which is used by the pedestrians.
Thus, the obligation under Clause (m) of Section 61 which relates to
the streets will include the obligations in relation to footways which
are meant for the use of pedestrians.
13.
As far as the other four Municipal Corporations are
concerned, the same have been constituted under the said Act of 1949.
Chapter VI contains the obligatory and discretionary duties of the
Municipal Corporation. Clauses 18 and 19 of Section 63 of the said Act
of 1949 read thus :
14.
“63. Matters to be provided for by the Corporation
1[(1)] It shall be incumbent on the Corporation to make
reasonable and adequate provision, by any means or
measures which it is lawfully competent to it to use
or to take, for each of the following matters,
namely:
“(18) the construction, maintenance, alteration and improvement
of public streets, bridges, subways, culverts, causeways
and the like;
(19) the removal of obstructions and projections in or upon
streets, bridges, and other public places.”
A public street is defined under Clause 52 of Section 2 of
the said Act of 1949 and a street is defined under Clause 63 of Section
2. Clauses 52 and 63 of Section 2 of the said Act of 1949 read thus :
“2(52) 'public street' means any street,
(a) heretofore levelled, paved, metalled, channelled,
sewered or repaired out of municipal or other public
fund, or
(b) which under the provisions of section 224 is declared to
be, or under any other provision of this Act becomes, a
public street.”
“(63) “Street” includes any highway, and any causeway, bridge,
viaduct, arch, road, lane, footway, subway, court, alley or
riding path or passage, whether a thoroughfare or not, over
which the public have a right of passage or access or have
passed and had access uninterrupted for a period of twenty
years and, then there is a footway as well as a carriage way
in any street, the said term includes both.”
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15.
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Hence, as in the case of the said Act of 1888, the definition
of a street or a public street under the said Act of 1949 is very wide
which not only includes roads, causeways, bridges, lane, etc. but also
footways. Thus, in case of the Municipal Corporations which are
parties to the Petition, it is the mandatory duty of the Municipal
Corporations to maintain and improve the public streets, etc. and to
remove obstructions upon such public streets. Thus, it is the legal
ig
obligation of the Municipal Corporation under the said Act of 1888 and
the Municipal Corporations under the said Act of 1949 to maintain
public streets in a good condition. It necessarily follows that the
obligation is to maintain public streets free of potholes, properly
levelled and properly surfaced. Both the enactments contemplate that
footways which are popularly known as footpaths are part of the
streets and therefore, the same are also required to be maintained and
improved by the Municipal Corporations. Thus, the obligation of the
Municipal Corporations is to maintain roads and footpaths which are
public streets in a proper condition. Therefore, even the footways or
footpaths should be properly levelled and should not have any
potholes/ditches. The same should be free from obstructions. Moreover,
it is the obligation of the Municipal Corporations to provide facilities
such as zebra crossings, speed breakers, traffic signals, etc. for the
benefit of the pedestrians. This is an essential part of the “maintenance
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and improvement of public streets” which is a legal and constitutional
obligation of the Municipal Corporations. The public streets are
essentially provided for people to walk and ply vehicles. They are
provided to facilitate transport. The footpaths or footways are meant
for people to walk. The members of the public have a right to use
footpaths or footways free of any obstruction. Therefore, both the
aforesaid enactments provide that it is the mandatory duty of the
ig
Municipal Corporations to construct, maintain and improve public
16.
streets.
As far as MSRDC is concerned, on its official website, it is
mentioned that “Roads are arteries of a nation. Roads and bridges
obliterate distance and connect people while they spur economic
progress”. On the website, it is stated that the main object of MSRDC is
to promote and operate, to plan, construct and manage the projects of
roads. The Hon'ble Minister of Public Works Department (Public
Undertakings) is the exofficio Chairman of MSRDC. Citizen's Charter of
MSRDC is available on the website. Clause 3(3) thereof states that the
duty of MSRDC is to maintain roads and bridges and to repair the same
effectively. There is an assurance incorporated therein that the
grievances submitted by the citizens shall be redressed within 15 days.
The MSRDC is also a “State” within the meaning of Article 12 being a
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Government Company established to do the work of a public nature.
Thus, it is the obligation of MSRDC also to maintain the roads properly,
to carry out repairs thereto and to ensure that there are no potholes on
the same. The legal obligation of MSRDC is to maintain the roads and
bridges in proper condition and to repair the same effectively. It is its
obligation to address to the grievances of the citizens and to ensure that
the same are redressed if not within 15 days, but at least within a
ig
reasonable time. As far as the Mumbai Port Trust is concerned, it is a
Major Port Trust established under the said Act of 1963 which is also a
“State” within the meaning of Article 12 of the Constitution of India.
The obligation of the State to maintain and repair streets meant for
public use needs no elaboration. From the written submissions of the
Mumbai Port Trust it is very clear that it is not denying the existence of
such an obligation.
17.
As far as MMRDA is concerned, under Section 17 of the
said Act of 1974, a power has been conferred on the MMRDA to provide
amenities within Greater Mumbai. Under the said Section, MMRDA is
empowered to prepare a project or scheme with a view to provide an
infrastructure within the territorial limits of the Mumbai Municipal
Corporation and execute the same. Explanation to Section 17 clarifies
that the term “infrastructure” shall also mean and include the streets,
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Section 17 of the said Act of 1974 read thus :
roads, bridges and other means of transport. Subsections (1) and (2) of
“17(1) Notwithstanding anything contained in this Act or the
Mumbai Municipal Corporation Act or any other law for
the time being in force, the Authority may, in
consultation with the Municipal Commissioner of the
Brihan Mumbai Municipal Corporation, prepare any
project or scheme with a view to provide an
infrastructure within the territorial limits of the Brihan
Mumbai Municipal Corporation and execute the same.
ig
Explanation : For the purposes of this section, the term
“infrastructure” shall also mean and include streets,
roads, bridges and any other means of transport and
communication, and activities related or incidental for
the execution of such infrastructure project or scheme
and shall not include other items specified in sections
61 and 63 of the Mumbai Municipal Corporation Act,
1888 (Bom.III of 1888).
(2) For the purposes of preparation and execution of a
project or scheme under subsection (1), the
Metropolitan Commissioner and the Authority shall be
deemed to be the Municipal Commissioner and the
Corporation, respectively, under the Mumbai Municipal
Corporation Act, 1888 (III of 1888) and the
Maharashtra Regional and Town Planning Act, 1966,
and shall, respectively, exercise the powers of the
Municipal Commissioner and the Corporation under the
said Acts.”
18.
Hence, when MMRDA is implementing any scheme of
providing an infrastructure which includes streets, roads, bridges etc in
the city of Mumbai, by virtue of the applicability of Chapter III of the
said Act of 1888, it becomes a legal obligation of the MMRDA to repair
and properly maintain streets, roads and bridges forming part of the
infrastructure project undertaken by it.
19.
Thus, all the aforesaid Respondents 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
suggestions made across the Bar for passing effective interim directions
Before we deal with the said suggestions, it will be
ig
20.
will have to be considered.
necessary to make a reference to orders passed by this Court from time
to time in the present PIL. Apart from the first order dated 29 th July,
2013 to which we have already made a reference, under the order
dated 13th August, 2013, various directions were issued by this Court.
The order dated 13th August, 2013 records a statement of the learned
Advocate General that a Government Resolution dated 28 th September,
2012 has been issued appointing a Committee for maintenance of roads
within the limits of the Municipal Corporation. There are orders passed
by the First Court on 5th September, 2013 and 4th October, 2013. In
paragraph 2 of the order dated 4 th October, 2013, the First Court has
observed thus :
“2. Learned Advocate General states that a Committee has
been set up under Chairmanship of the Commissioner,
Municipal Corporation by Government Resolution dated
28th September 2012, to oversee and coordinate the work
of construction, repairs and maintenance of public roads.
However, he would take instructions from the State
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Government about the constitution of an Unified Transport
Metropolitan Authority with statutory powers which could
supervise the functioning of all the authorities responsible
for the construction and upkeep of roads in the
Metropolitan Region including Mumbai (Suburban and
Greater Mumbai area), Navi Mumbai and Thane for
coordinating, development of transport system. This would
result in providing uniform standards and procedures for
construction and upkeep of roads besides having an
extensive data of the contractors resulting in an unified
system of checks.”
As far as the public streets, footways or footpaths and
21.
ig
bridges within the limits of the Municipal Corporations which are
parties to the Petition are concerned, the same will have to be
maintained in proper condition. Roads and footpaths are required to be
properly levelled, surfaced and maintained free of potholes or ditches. A
street should be maintained in such a manner that it facilitates orderly
and safe flow of traffic. The footways should be maintained in such a
way that the same can be conveniently and safely used by the
pedestrians.
22.
Broadly, there are three aspects on which interim directions
are necessary. The first is of the legal obligation of all the authorities to
maintain streets in proper and potholes free condition. The second
aspect is the right of citizens to complain about the poor condition of
streets and especially the existence of potholes and their right to ensure
that the complaints are acted upon and their grievances are effectively
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redressed. The third aspect is of the use of proper technology for the
construction of the roads, for maintenance thereof and for filling in the
23.
potholes.
As far as the roads falling in the limits of the Mumbai
Municipal Corporation are concerned, the situation is complicated as
several agencies are involved in the maintenance of different stretches
ig
of roads. The Mumbai Port Trust maintains approximately 66.9
kilometers of roads in the City. In the City of Mumbai, there are three
Express Highways. Different portions of the Express Highways are
managed by different agencies. It is necessary to make a reference to
the affidavit of Mr. Dilip Akaramji Salunke, Superintending Engineer,
Public Works Department, Mumbai Construction Circle, Chembur,
Mumbai. Paragraphs 2 to 4 of the said affidavit read thus :
“2.
I say that there are 3 Express Highways which comes
under the control of this Circle as stated below.
(i) Western Express Highway (Express way no.6) starting
from Dahisar at chainage Km. 502/350 to Mahim Jn. At
chainage Km.527/680 having length of 25.33 Kilometer.
(ii) Eastern Express Highway (Express way no.5) starting
from Golden Dyes Junction, Thane at chainage Km.
561/200 to Sion Junction at chainage Km.584/750
having length of 23.55 Kilometer.
(iii) Sion – Panvel Highway (Express way no.1) starting from
Kalamboli Junction at chainage Km.114/800 to B.A.R.C.
Junction at chainage Km.140/690 having length of 24.89
Kilometer.
3.
I say that the road of Western Express Highway starts
from Dahisar at chainage Km.502/350 and ends at
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Mahim Junction at chainage Km.527/680 having a total
length of 25.33 Kilometer with 5+5 lane main
carriageway and 2+2 lane service road in most of the
length. The major length is mostly Black Topped, except
certain stretches which are either concretized or with
paver block surface.
On this road there are about 11 flyovers and Elevated
Sahara Road. The details are as under :
Name of Flyover Chainage Maintained
By
1 Kalanagar (Bandra) 520/900 P
.W.D.
2 Vakola (Santakruz) 3 Airport (Vile Parle) 4 Andheri 5 JVLR (Jogeshwari) 516/690 to 515/450 MSRDC
6 Aarey (Goregaon) 513/980 to 513/200 MSRDC
Sr.
No.
524/800 to 523/400 MSRDC
ig
521/250 to 522/050 MMRDA
520/190 to 518/700 PWD
7(a) Film City (Dindoshi) East 512/680 to 515/340 MSRDC
Side
7(b) Film City (Dindoshi) West 512/680 to 515/340 MMRDA
Side
8(a) Times of India (Malad) East 510/900 to 510/400 MSRDC
Side
8(b) Time of India (Malad) West 510/900 to 510/400 MMRDA
Side
9 Thakur Complex (Kandivali) 509/100 to 508/500 MMRDA
10 Dattapada (Borivali)
507/400 to 506/600 MSRDC
11 National Park (Borivali)
506/200 to 505/400 MSRDC
12 Sahara Elevated Highway
520/500 to 520/900 MMRDA
4.
I say that the road, Eastern Express Highway (Express
Highway no.5) starts from Golden Dyes Jn., Thane at
chainage Km. 561/200 and ends at Sion Jn. at chainage
Km.584/750 having length of 23.55 Kilometer with 5+5
lanes main carriageway and 2+2 lane service road in most
with of the length. The total road is black topped except
certain stretches which are either concretized or with paver
block surface.
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On this road there are about 13 Flyovers which are
maintained by various authorities as stated below
Name of Flyover Chainage
1 Sion Jn. flyover 584/310 to 584/750 MSRDC
2 Everard Nagar 583/250
3 C.S.T.N Jn. (Kurla) 581/790 to 582/420 MSRDC
4 Amarmahal Jn. (Chembur) 580/180 to 580/680 MSRDC
5 Chhedanagar (Chembur) 579/210 to 579/810 MSRDC
6 A.G.L.R. Jn. (Ghatkopar) 577/080 to 577/750 MSRDC
7 Vikhroli Jn. (Vikhroli) 8 J.V 572/280 to 572/980 MSRDC
.L.R. (Vikhroli)
9 G.M.L.R. (Mulund) 569/080 to 568/320 MSRDC
10 Navghar Jn. (Mulund) 566/900 to 567/550 PWD
11 Teen Hath Naka (Thane) 564/550
12 Nitin Casting Cadbury Jn. 562/090 to 563/420 MSRDC
(Thane)
24.
MSRDC
574/080 to 574/750 MSRDC
ig
13
Maintained
By
Sr.
No.
Golden Dyes Jn. (Thane)
PWD
561/200 to 561/700 MSRDC
Thus, different portions of the three Express Highways are
looked after and maintained by different agencies. Hence, it can be
said that the stretches of roads which are not required to be maintained
by Mumbai Port Trust, MSRDC, Public Works Department of the State
Government and MMRDA are required to be maintained by the Mumbai
Municipal Corporation.
25.
As per the order of the First Court, a Committee has been
constituted under the Government Resolution dated 28th September,
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2012 to coordinate the activity of construction of roads, maintenance
and repairs thereof in the City of Mumbai. The Committee has been
constituted to suggest uniform criteria for construction of roads,
maintenance and repairs in the City of Mumbai. The object of the
Committee is to collect the data, to take a policy decision on the
aforesaid aspects and to place it before the Government. The Committee
was supposed to submit a report within a period of three months.
ig
However, we find that the report of the Committee is not on record.
Appropriate directions will have to be issued as regards the technical
aspects of construction and/or repairs of the streets only after the
recommendations of the Committee are submitted to the State
Government and the State Government takes appropriate decision
thereon.
26.
Suffice it to say that it is the obligation of all the agencies
involved in construction, maintenance and repairs of the roads in
Mumbai to ensure that roads are kept potholes free. It is not only
important to keep the roads potholes free but it is necessary to ensure
that all the roads are properly levelled and surfaced. The work of filling
in the potholes cannot be carried out in ad hoc and haphazard manner.
The same has to be carried out in such a manner that a proper level of
the entire stretch of road is maintained. If the work of filling in the
potholes is done in such a manner that road level is not maintained,
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There is an absence of a well organised mechanism to
27.
there is every possibility of causing accidents especially of two wheelers.
enable the citizens to file complaints about the poor conditions of
streets. The Mumbai Municipal Corporation has placed on record that
there is a facility on the website of the Mumbai Municipal Corporation
which is operational only for a period of four months from 7 th June to
ig
7th October every year on which citizens can upload photographs of the
potholes and after attending to the problem, the photographs of the
repaired roads are uploaded on the same website by the Corporation.
The Municipal Corporation has proceeded on an erroneous assumption
that the condition of the roads is bad only in monsoon. It is stated that
there is a telephone No.1916 available for receiving public grievances.
As far as the State Government is concerned, there is an affidavit filed
by Shri Dilip Salunke in which he has stated that a telephone number of
the control room is available on which complaints are received. In the
City of Mumbai, a citizen is not aware as to which agency is responsible
for maintenance of which portion of the streets. Though it is contended
by the Mumbai Municipal Corporation that complaints received by it in
respect of streets maintained by different agencies are routinely
forwarded to the concerned agencies, it is necessary for the State to
create a centralized facility of receiving complaints on its dedicated
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website, on a toll free number and also by way of message sent through
a cell phone. Arrangements will have to be made by the State
Government to ensure that complaints are immediately transferred to
the concerned agency which is looking after the relevant stretch of
road. Action taken report should be uploaded on the dedicated website
provided by the State Government within a specific time along with
photographs of the portion of the road about which a complaint is
ig
received. A tracking facility of the complaints received by all the modes
needs to be provided on the website. Moreover, all the agencies i.e. the
Mumbai Municipal Corporation, MMRDA, MSRDC, and Mumbai Port
Trust will have to separately provide the said facilities throughout the
year.
28.
There is one more major cause of the poor condition of the
roads and footways. Various agencies like Telephone companies,
Internet service providers, gas companies etc are granted permissions to
do digging work on the streets. But there is no control on completion of
their work. There is no time limit to restore the streets to its original
condition. The citizens do not know as to which agency is doing the
digging work and whether the concerned Competent Authority has
permitted the work. Even in case of major road repair work undertaken
by the Municipal Corporations and the other Authorities, the citizens
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29.
issue appropriate directions on these aspects.
have right to know when the work will be completed. We propose to
As far as the Municipal Corporations of Thane, Navi
Mumbai, Mira Bhayander and Vasai Virar are concerned, it is not clear
whether only the said Corporations are responsible for the maintenance
of the roads in their respective jurisdictions or whether some other
agencies such as State Government, MMRDA, MSRDC are involved. For
ig
the time being, we propose to direct the Municipal Corporations to
provide a similar mechanism to enable the citizens to file complaints.
The Municipal Corporations will have to file reply setting out the names
of the other agencies, if any, which are responsible for maintenance of
the roads within their respective jurisdictions. After the affidavits are
filed on record, further directions can be issued.
30.
We must make it clear that streets also include footways/
footpaths and therefore, it is the obligation of all concerned authorities
to maintain the footpaths properly levelled and in such condition that it
can be conveniently used by pedestrians. This aspect cannot be taken
lightly by any Authority. If proper footways/ footpaths are not made
available, the pedestrians are forced to walk on roads which results in
large number of accidents.
31.
Unless there is an effective mechanism provided to the
citizens to file complaints, they will not be in a position to enforce their
32.
constitutional as well as legal right to have well maintained streets.
Very heavy rains during monsoon is one of the excuses
given by the authorities in Mumbai and Thane Districts. Such excuse is
not available as there is a heavy downpour every year and all the
authorities are under an obligation to deal with the situation created by
heavy downpour in these two Districts. The Committee constituted
under the Government Resolution dated 28th September, 2012 is
required to submit recommendations regarding uniform criteria to be
applied for construction of roads, its maintenance and repairs. Ninth
Respondent before the Court is the Central Road Research Institute
(CRRI). Till a common criteria is finalised, the Municipal Corporations
and other agencies may consider of taking assistance of CRRI for
adopting proper techniques to fill in the potholes and to maintain the
streets. Certain directions have been already issued by this Court
regarding the manner in which contracts should be entered into with
the contractors. At this stage, we are not issuing any further directions
on this aspect as the report of the Committee is not placed on record.
33.
It is high time that all concerned clearly understand that a
right to have properly maintained roads is a part of fundamental right
guaranteed by Article 21 of the Constitution of India and in the event
any loss is caused due to its violation, the citizens have a right to seek
34.
compensation.
Hence, we issue further interim directions which are as
under :
The earlier directions issued by this Court in the present
(i)
Petition from time to time which are not inconsistent or
contrary to the directions issued under this order shall
(ii)
continue to operate;
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
Similar Boards shall be displayed at the sites where major
(iv)
restored to its original condition;
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)
(b)
(c)
Complaints in writing received at designated centers;
Complaints received through dedicated toll free
number/s;
Complaints received through dedicated website; and
(d)
Complaints received by text message via cell phones.
The facility of receiving complaints by the aforesaid
(vii)
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
(viii)
such photographs through cell phones;
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
(ix)
mechanism, if any, shall continue to function;
mechanism as directed above is provided, the existing
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
We direct the Municipal Corporations and other agencies
(xii)
said recommendations on or before 30th June, 2015;
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
(xiii)
into contracts shall continue till further orders;
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
We direct the Municipal Corporations and the other
(xiv)
before 6th July, 2015;
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 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 foot
ways/footpaths as well;
All concerned to act upon an authenticated copy of this
(xix)
( C.V
. BHADANG, J )
( A.S. OKA, J )
order.
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