Ruju R. Thakker vs State Of Maharashta And 11 Ors. ...
2022 Latest Caselaw 12713 Bom

                                                                             CP-6-2019.doc


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                            ORDINARY ORIGINAL CIVIL JURISDICTION

                              CONTEMPT PETITION NO. 6 OF 2019
                                               IN
                           PUBLIC INTEREST LITIGATION NO.71 OF 2013

                     RUJU R. THAKKER                       )...PETITIONER

                           V/s.

                     STATE OF MAHARASHTRA & ORS. )...RESPONDENTS

                     Mr. Jamshed Mistry, Amicus Curiae a/w Mr. Dipesh U. Siroya
                     present.
                     Ms. Ruju R. Thakker, Contempt Petitioner-in- person present.
                     Mr. P.P.Kakade, GP a/w Mrs. R. A. Salunkhe AGP for
                     Respondent no. 1 -State of Maharashtra.
                     Mr. A A Garge for Resp No.3 in CONPP/6/2019
                     Mr. A. Y. Sakhare, Senior Advocate along with Ms. Rupali
                     Adhate for Respondent no.2 in CONPP/6/2019 and for
                     Respondent no. 3
                     in PIL/71/2013 - (MCGM).
                     Mr. Ankush Jagdale, Executive Engineer (Roads), Eastern
                     Suburbs present.
                     Mr. Sushant Patil, Road Engineer, present.
                     Ms. Aparna D. Vhatkar for Respondent no.6/(MMRDA)
                     Ms. Pooja V. Bendkule i/by. Mr. I.M. Khairdi for Respondent no.
                     25 in PIL/71/2013.
                     Mr. Rohit Sakhdeo for Respondent no. 20 (Nashik Municipal
                     Corporation)
                     in PIL/71/2013.
                     Mr.Aditya Mahadik i/b Abhijit Kulkarni for Resp. Pune
                     Municipal Corporation.
                     Ms. Swati Sagvekar, for Respondent no.5 - Vasai Virar City
                     Municipal Corporation in CONPP/6/2019.
        Digitally
        signed by
        ARTI
ARTI    VILAS
VILAS   KHATATE
KHATATE Date:
        2022.12.08
        21:07:36
        +0530




                     AVK                                              1
                                                           CP-6-2019.doc


Mr. N. R. Bubna for Respondent no.11 Mira Bhayander
Municipal Corporation in CONPP/6/2019.

Mr. R. V. Dighe i/b. Mr. A. S. Rao for Respondent no. 4 - Kalyan
Dombivali Municipal Corporation in CONPP/6/2019.


Mr. Prashant Chavan i/b. Ms Reshmarani Nathani for Resp No
9 in CONPP/6/2019
Mr. Ajai Fernandes i/b. Motiwala & Co. for Resp No. 7 in
CONPP/6/2019.
Mr. Gaurav Yadav i/b B J Law Ofces for Resp No 29 in
PIL/71/2013.
Mr.Tejesh Dande a/w Mr. Bharat Gadhavi, Mr. Pratik Sabrad &
Ms. Trushna Shah for Respondent no 85.
Mr. Abhijit Adagule for Respondent no 26 - Kolhapur Municipal
Corporation
Mr. Vikas Somawanshi i/b Vaibhav Ugle for Respondent no 260
Mr. Pranjal M.Khatavkar i/b S.S.Kulkarni for Respondent nos 54
to 59, 357 and 358 in PIL
Mr.Shailesh Chavan i/b Milind Deshmukh for Respondent nos
291, 341, 353 & 355
Mr.Mandar Limaye for Thane Municipal Corporation


                      CORAM: DIPANKAR DATTA, CJ &
                             ABHAY AHUJA, J.

                      DATE :      DECEMBER 7, 2022


P.C.:

1.      Heard.

2. Afdavit-in-reply dated 25th November, 2022 of the

Superintending Engineer of respondent no.6 - Mumbai

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Metropolitan Regional Development Authority, Compliance

Afdavit dated 28th November 2022 of the Executive Engineer

(Roads) of respondent no.7 - Board of Mumbai Port Authority

and Afdavit-in-reply dated 5th December 2022 of the

Executive Engineer of the respondent no.9 - Maharashtra

State Road Development Corporation Ltd. are taken on record.

3. This contempt petition has been circulated on the

urgency that there are several manholes which have been left

ungaurded and open across Mumbai - Thane and Virar - Vasai

risking not only the life of human beings but also domestic

animals.

4. Ms. Thakker, the petitioner-in-person, draws the

attention of this Court to a recent news report of a pregnant

cow having fallen in an unguarded manhole who had to be

rescued after a seven hours rescue operation using

excavators and hydra cranes. She tenders across the Times

City issue of The Times of India, dated 2 nd December 2022,

depicting pictures of an open drain with the cow and eforts at

rescuing her by the ofcials of the Disaster Management Cell,

the fre brigade and animal welfare activists. The said news

paper report is taken on record and marked "X" for the

purposes of identifcation. It is reported that the said open

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drain is in Thane where drain lids were apparently open for

the purposes of ventilation but the same were kept

unguarded/ungrilled leading to the falling of the pregnant cow

into the said drain, moans whereof were heard by passers-by

after which the authorities were alerted leading to the rescue

and care of the traumatised cow.

5. Mr. Jamshed Mistry, learned amicus curiae would submit

that earlier by an oral judgment dated 24 th February and 12th

April 2018 of this Court in PIL No.71 of 2013, cognizance

whereof was taken suo motu, by this Court and after

considering the various provisions of the Mumbai Municipal

Corporation Act and the Maharashtra Municipal Councils,

Nagar Panchayats and Industrial Townships Act, 1965, with

respect to the mandatory duties and obligations to ensure

safety, this Court had observed that the said obligations were

very relevant as the material brought on record showed that

the potholes or bad condition of roads or open manholes

resulted in casualties after sunset due to poor lighting

arrangements on streets.

6. We observe from the said judgment that after capturing

the entire gamut of provisions with respect to the mandatory

duties and obligations of the Municipal Corporation / Municipal

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Council / public bodies to maintain the lights of streets

including drains, manholes etc., this Court had issued inter

alia the following directions in paragraph 46 which are set out

as under :

"...........

(A) (A) All the Municipal Corporations, MMRDA, MSRDC, CIDCO and MbPT as well as the State Government shall maintain all the streets/roads including footways/ footpaths within its respective jurisdictions in good and proper condition. It shall be their responsibility to keep the streets and footways properly levelled and surfaced. It shall be their responsibility to ensure that potholes and ditches thereon are properly flled in. The work of flling in the potholes shall be carried out scientifcally as an ongoing project;

(B) 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, address and contact details of the agency which is doing the digging work and (b) the extent of the digging work permitted and (c) the period within which the work shall be completed. The display boards shall also record the outer limit within which the streets shall be restored to its original condition. Similar Boards shall be displayed at the sites where major repair/reconstruction work of streets is undertaken;

.............

(iii) In view of the provisions of the Right of the Persons with Disabilities Act, 2016, necessary steps/ precautions shall be taken by the all the concerned Authorities for protecting the rights of

CP-6-2019.doc

visually impaired persons as observed in the body of this Judgment;

(iv) In addition to the above directions, we direct that as far as open manholes are concerned, the Municipal Corporations and other authorities bound by the directions shall take all possible steps to ensure that no open manholes are left unprotected without erecting barricades, without putting on warning lights and without providing efective warning to the citizens including those who are visually impaired. All necessary precautionary steps shall be taken to ensure that the incident of citizens falling inside the open manhole are not repeated;

(v) ............The State Government shall also take appropriate policy decision of laying down technical specifcations of the streets and footways, the specifcations of the material which should be used and specifcations of the methods which should be repair of streets. used for construction or The State shall issue necessary directions to the authorities which do not have beneft of expertise of the Committee.

...............

(xi) We direct the State Government to call for the information from all Municipal Corporations and Municipal Councils as well as other Authorities regarding compliance with various directions issued under this judgment and order. The reports shall be called on quarterly basis. The said Authorities shall accordingly submit compliance reports to the State Government;

(xii) Detailed compliance reports compiled by the State Government shall be regularly placed before this Court;"

7. It has been submitted by the petitioner-in-person as well

as the learned amicus curiae that despite the aforesaid

directions, there are several open manholes on the road

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dividing the Eastern Express Highway and the Service road

which now comes under the Mumbai Municipal Corporation

near bus stops making it risky for people boarding buses. It is

submitted that there are approximately 577 manholes on the

Eastern Express Highway and there are pavements, bus stops

where children, elderly and disabled people also pass by,

whose lives would be in danger with so many unattended and

unmonitored manholes all over the place.

8. It is submitted that this abysmal state of afairs is,

despite the directions contained in the judgment of this Court

dated 24th February and 12th April 2018 as well as several

orders being passed thereafter, directing the respondents to

ensure that the citizens get good quality of roads. The quality

of roads in the State of Maharashtra is going from bad to

worse adding to the woes of the citizens and residents of the

State.

9. Ms. Thakker submits that the orders have not been

complied with by the respondents and there has been a

deliberate and wilful defance of the same. Petitioner submits

that, therefore, urgent directions ought to be issued by this

Court, so that such untoward incidents can be averted.

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10. Mr. Sakhare, learned senior counsel representing the

Mumbai Municipal Corporation, submits that the sewers and

drains in Mumbai are usually opened just before the rainy

season for cleaning purposes. However, they are also opened

either for underground repairs or for ventilation; that after the

work is done, the drains are closed. He submits that, as far as

the recent incident of the pregnant cow is concerned, as soon

as the authorities were intimated, the rescue team arrived

and undertook the successful rescue operation of saving the

pregnant cow.

11. Having heard the petitioner-in-person and the learned

counsel for the parties, this Court deems it appropriate to pass

the following directions :

(a) Let detailed afdavits be fled by the Municipal

Commissioners of Mumbai Municipal Corporation, Thane

Municipal Corporation, Navi Mumbai Municipal

Corporation, Mira-Bhayander Municipal Corporation,

Kalyan-Dombivli Municipal Corporation, Vasai-Virar

Municipal Corporation, Metropolitan Commissioner,

MMRDA, the Chief Engineer (Roads) of the Board of

Mumbai Port Authority, the Chief Engineer of the Public

Works Department of the State of Maharashtra, in

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relation to the aforesaid grievances within a period of

two weeks, in particular setting out (i) the steps taken to

comply with the directions contained in paragraph 46 (as

set out above) of the judgment dated 24 th February and

12th April, 2018, (ii) the preventive safety measures they

would undertake, including use of modern technology for

monitoring of manholes/open drains/sewers/ventilation

shafts and their coverings, as well as setting out (iii) the

road map of actions under Chapter IX (Drains and

Drainage Works) including Section 153 (Drains to be

constructed and kept in repair by the Commissioner) and

Section 329 (Commissioner to take proceedings for

repairing or enclosing dangerous places) of the Mumbai

Municipal Corporation Act, 1888 and Chapter XII (Drains

and Drainage) of the Maharashtra Municipal Corporation

Act, 1949 and other relevant laws so as to avoid

recurrence of such incidents in future.

(b) It is made clear that if any untoward incident of the

nature described above or as apprehended by the

petitioner results in loss of life or limb, the respective

Municipal Commissioner(s), Metropolitan Commissioner,

Chief Engineer shall be held personally responsible.

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12. List on 22nd December 2022.

  (ABHAY AHUJA, J.)                 ( CHIEF JUSTICE)