Bombay High Court
Ruju R. Thakker vs State Of Maharashta And 11 Ors. ... on 14 June, 2023
Bench: Sandeep V. Marne
18-CONPP-6-2019
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CONTEMPT PETITION NO. 6 OF 2019
IN
PUBLIC INTERET LITIGATION NO. 71 OF 2013
Ruju R. Thakker .. Petitioner
Versus
State of Maharashtra & Ors. .. Respondents
Ms. Ruju Thakkar, Petitioner-in-person present.
Mr. Jamshed Mistry with Mr. Dipesh Siroya, Amicus Curiae.
Mr. P. P. Kakade, Govt. Pleader a/w Mr. Abhay Patki, Addl. Govt.
Pleader a/w Ms. R. A. Salunkhe, AGP for State.
Mr. A. A. Garge for Respondent No.3.
Mr. Ajay Fernandes i/by Motiwala & Co. for Respondent No.7.
Mr. Prashant Chavan with Ms. Reshmarani Nathani for Respondent
No.9.
Mr. Sachin P. Patil i/by I. M. Khairadi for Respondent No.25.
Mr. Abhijeet Kulkarni with Ms. Sweta Shah for Respondent/PMC.
Mr. Gaurav Ugale i/by Sriram Kulkarni for Respondent Nos.54 to
59.
Mr. Rohit Sakhadeo for Respondent No.20 in PIL/71/2013.
Mr. Mandar Limaye for Respondent/TMC.
Mr. A. Y. Sakhare, Senior Advocate with Ms. Oorja Dhond i/by Mr.
S. K. Sonawane for Respondent/BMC.
Ms. Bhavika Shinde with Mr. Umesh Mankapure for Respondent
Nos.181 and 324 in PIL/71/2013.
Mr. Abhijeet Adgule for Respondent No. 26 in PIL/71/2013.
Mr. Ravindra S. Pachundkar for Respondent Nos.335, 337, 334,
338, 332, 327 in PIL/71/2013.
Mr. R. V. Dighe i/by A. S. Rao for Respondent/KDMC.
Ms. Swati Sagvekar for Respondent/VVMC.
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18-CONPP-6-2019
CORAM: NITIN JAMDAR, ACTING CJ. &
SANDEEP V. MARNE, J.
DATE: 14 JUNE 2023
P.C.:
In the last hearing, the Petitioner-in-person and the learned
Amicus raised serious issues concerning the open manholes in the
city, which remain uncovered for various reasons, and the
likelihood of resulting casualties.
2. The learned Senior Advocate for the Municipal
Corporation requested time to file an affidavit. We also queried
whether it is feasible for the Corporation to establish a dedicated
task force. In the affidavit-in-reply, there is a reference to a
Disaster Management Committee, which, according to the
learned counsel, would function as a dedicated task force.
3. The Petitioner-in-person drew our attention to the
judgment and order passed by this Court on February 24 and
April 12, 2018, in PIL No. 71 of 2013, which is alleged to be in
contempt. The Division Bench, in regard to open manholes,
made the following observations:
36. During the pendency of the petition, there was an
unfortunate incident in the City of Mumbai. A medical
practitioner of some repute unfortunately fell into an open
manhole and he lost his life. Such incident should never have
happened in this city. It is pointed out across the bar that the
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Municipal Corporation is in the process of taking remedial
steps by adopting various methods including fixing grills so
that even if the cover of a manhole remains open, there would
be no such incident.
37. The intervenor appearing in person has pointed out that
there were accidents of the persons riding two wheelers as a
result of manholes being left open on the streets without
sufficient warning or without any warning to the drivers of
the vehicles. It is pointed out that as a result of the reckless
act of keeping the manholes open without displaying any
warning, there has been loss of lives due to accidents
involving vehicles and, in particular two wheelers. If a citizen
suffers from an injury of any nature as a result of the neglect
on the part of the local authorities or the State, as the case may
be, to maintain the streets in a reasonable condition, apart
from the regular remedy under the law, even a public law
remedy will be available to such citizens for infringement of
fundamental rights and by taking recourse to a public law
remedy, such a person who is a victim of the accident or in
case of fatal accidents, his legal representatives can maintain a
public law action for seeking compensation against the
authorities which are negligent. This aspect will have to be
borne in mind by all the local authorities which are entrusted
with the duty of maintaining of streets in proper condition."
4. While issuing directions as regard the open manholes, the
Division Bench directed as under:
"46 (iv) In addition to the above directions, we direct that as far
as open manholes are concerned, the Municipal Corporation
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 effective 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;"
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5. The Division Bench, noting an unfortunate incident in
which a person fell into an open manhole and lost his life,
expressed the view that such an incident should never have
occurred in the city. At that time, the Municipal Corporation had
stated its commitment to taking remedial measures, including the
installation of grills, to prevent such incidents even if the manhole
cover remains open. Taking this concern and expectation into
account, the Division Bench directed the Municipal Corporation
to take all necessary precautions to ensure that citizens do not fall
into open manholes in the future.
6. In the additional affidavit filed today on behalf of the
Municipal Corporation, indicates that the precautionary measure
to be taken regarding open manholes is the installation of
protective grills. However, the affidavit reveals that out of the
total 74,682 manholes, only 1,908 manholes currently have
protective grills. In our opinion, this does not align with the
concerns expressed by this Court in its judgment and order dated
February 24 and April 12, 2018, where directions were given to
ensure the safety of all residents regarding open manholes.
7. These directions were issued back in 2018, and it has been
five years since then, yet less than 10% of the manholes are fitted
with protective grills. The reason given is that the protective grills
are only fixed in areas known to be prone to flooding.
Considering that areas which are typically not prone to flooding
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can still experience flooding due to various reasons, such as
unforeseen heavy rainfall, for example, prima facie, we do not see
any reason why the same protective measures should not be
applied to all manholes.
8. On the aspect of providing protective grills for the remaining
manholes, the learned Senior Advocate for the Corporation states that
this issue will be placed before the Higher officers, and the stand of
the Municipal Corporation will be conveyed to the Court.
9. Place the Petitions on board on Monday, 19 June 2023 at 2.30
p.m.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
