Rakesh Tyagi vs State
2011 Latest Caselaw 3903 Del

26

% 11.08.2011

Present:   Mr. Rajeev Saxena, Amicus Curiae.
           Ms. Maninder Acharya for the respondent.MCD along with Mr.
           Ravi Das, Engineer-in-Chief, MCD.


+Bail App. No. 2068/2008
*

MCD has filed reply to the suggestions given by the learned Amicus

Curiae. Ms. Maninder Acharya, counsel appearing for the respondent/MCD on

instructions from Mr. Ravi Das, Engineer-in-Chief, MCD, who is present in

Court, states that most of the issues raised by the learned Amicus Curiae in

their report either have been implemented or at the implementation stage,

while in response to some other suggestions, difficulties have been

expressed. Counsel further submits that the respondent/MCD has also taken

into consideration suggestions given by the Central Road Research Institute

(CRRI). Mr. Ravi Das, Engineer-in-Chief, MCD has submitted that all possible

steps are being taken by the MCD to see that at least the main roads of Delhi

under the MCD jurisdiction are re-laid in terms of the suggestions given by

the Central Road Research Institute (CRRI) and the main roads of the width

of 45 meters and above will now be of concrete and there will be a gradual

phasing out of the bitumen roads. He further submits that the work of

relaying the concrete roads is in progress in the areas of Paharganj, Okhla

Industrial Area, Wazirpur Industrial Area, Narayana Industrial Area, Zakhira

and some of the rural areas. He also submits that the MCD is fully adhering

to the CPWD specifications for the construction of the concrete roads and even the mandatory test, re-inspection etc. from the various laboratories to

maintain quality control of these roads are strictly being followed in the

execution of these projects.

During the course of hearing. Mr. V.K. Khurana, Advocate

present in Court in his capacity as a common citizen informs the court that

for the last 28 years he has not seen the main road connecting Azad Market

crossing upto Pratap Nagar in a motorable condition which is full of potholes

at many places. The counsel further submits that the said road is one of the

busiest roads of Delhi. Many other lawyers present in the court including

Mr. Rajiv Saxena, learned Amicus Curiae also points out that same is the

condition of many roads in Delhi and New Delhi. Mr. Rajiv Saxena has also

given a suggestion that this Court may appoint some committee to be

headed by a former Judge to streamline, oversee and monitor the planning,

progress and implementation of various steps being taken or to be taken by

the municipal and other authorities for the construction, relaying and

maintenance of the roads. The learned Amicus Curiae further suggests for

taking the assistance of some technical expert. Ms. Maninder Acharya,

learned counsel representing the MCD, on instructions from the Engineer-in-

Chief, MCD, has also come in support of this suggestion in the larger interest

of citizens of Delhi.

Time and again this Court has expressed deep concern on the

deplorable quality of roads wreaking havoc in the lives of citizens of Delhi,

who day in and day out have nightmarish experience while travelling on the bumpy roads of Delhi, especially, within the jurisdiction of the MCD. But

despite several directions given by this court the condition of many

arterial/main roads especially within the jurisdiction of the MCD have not

shown much progress. The poor condition of roads is primarily due to the

sub-standard material used by the contractors in building such roads and

also because of the nexus between the contractors and the engineering staff

and there being no proper mechanism in place to fix responsibility of guilty

staff and contractors. Frequent digging of the roads by various Government

and non-Government agencies mainly Delhi Jal Board further compounds the

situation from bad to worse. Some of the roads do not even sustain one

heavy down pour and the bitumen can be seen washed away from many

places creating potholes and large patches. The growth of any city can be

measured by the condition of its roads. Undoubtedly, the city has undergone

a monolithic makeover in the last decade, particularly with the construction

of flyovers which has indeed eased the congestion on the main roads, giving

smooth driving experience to commuters, but shockingly the condition of

some of the main roads in Delhi/New Delhi has not improved for the reasons

well known to the concerned authorities. Poor maintenance of the roads with

potholes not only leads to causing accidents but the same leads to many

other troublesome consequences such as long traffic jams, excess

consumption of fuel, increase of pollution, reduction of life of the vehicles.

Certainly, there is now greater mobility system in the city and massive augmentation of the public transport system, but there is still a large scope

for a lot to be done for giving solace to the harried commuter.

The MCD is responsible for maintenance of 94% of the roads in

Delhi i.e. around 41,000 Kms. The faulty drainage system leads to clogging

of water on various main roads during the rainy season. The roads are also

under the jurisdiction of NDMC and the CPWD. In the recent affidavit filed by

the MCD in response to the suggestions given by the learned Amicus Curiae,

they have taken a stand that MCD will be relaying concrete roads and

gradually the bitumen roads would be phased out. The Engineer-in-Chief has

given a time schedule of 5 to 10 years for completing the process of relaying

all the main roads of Delhi to convert them into concrete roads. This Court

cannot however appreciate such a long plan of relaying concrete roads as

put forth by the Engineer-in-Chief of MCD. The MCD has also put blame on

various other authorities such as MTNL, BSNL, Delhi Jal Board and many

other private telecom companies and discoms for frequent digging of the

roads. For resolving all these issues within a time bound schedule and at

least to prepare a blue print for relaying the main/arterial roads of Delhi with

concrete or of some other technology, the learned Amicus Curiae has given

a suggestion for appointment of a retired Judge not only to monitor and

streamline the steps being taken by the various authorities in achieving their

target but to bring a cohesive and unified plan to achieve the target of

ensuring better quality roads for the people of Delhi, be it in the area under

jurisdiction of NDMC or MCD. The suggestion given by the learned Amicus Curiae for appointment of a retired Judge found support from the MCD

represented through their Engineer-in-Chief Mr. Ravi Das and learned

counsel Ms. Maninder Acharya.

In Delhi/New Delhi, MCD, NDMC and PWD are mainly responsible for

the construction, relaying and the maintenance of the roads. Since the

major part of Delhi falls under the jurisdiction of MCD, therefore, various

directions were given by this court to the MCD alone to undertake various

steps for the proper maintenance of the roads and for relaying roads of high

standards. The MCD, which is divided into various zones, in response has

placed on record the progress of relaying the roads in its various zones. The

MCD has also stated to have purchased jet patcher machine to fill potholes

and a tarmac heater to relay the damaged roads in a very effective and

quick manner. The progress of various main roads/arterial roads as shown to

have placed on record through various authorities of MCD does not seem to

match the ground reality. This court also directed notice on the Central Road

Research Institute (CRRI) for their effective and meaningful assistance for

the construction of quality roads in Delhi. This court had also appointed the

learned Amicus Curiae to give suggestions to aid in achieving the objective

of providing high quality roads to the citizens of Delhi. This court also

directed notice to the Government of NCT of Delhi, NDMC and the PWD,

these authorities being responsible for the construction of the roads falling in

their jurisdiction. Notice was also directed on Delhi Jal Board as the DJB is

responsible to maintain the storm water drains and for relaying the sewerage line and water pipes and hence all these authorities were made a party in

the present case to chalk out a plan to attain the desired results. It is the

statutory duty of these authorities to provide high quality roads to its

citizens. Citizens are not expected to suffer on account of bad planning, lack

of coordination of the multiple authorities in Delhi. The officers from junior to

high level of these authorities are either not taking their job seriously or

some of these officers are hand in glove with the contractors in laying or

relaying of substandard roads. An effective and proper mechanism needs to

be in place. This court does not intend to say that these authorities are not

taking any steps for the construction of better and durable roads but

nevertheless in any case the progress is not only very slow, but in some

areas it cannot be even visibly seen making the patience of the common

man reach the boiling point. Some of the roads of New Delhi and Delhi have

not been part of any development plan and are as lamentable as they were

many years ago. With a view to put a coordinated and unified effort, this

court feels it appropriate on considering the suggestions given by the Amicus

Curiae and endorsed by the MCD, to appoint Ms. Justice Rekha

Sharma(Retired) as one man committee to undertake the task of bringing all

these authorities together to plan out a time bound programme for the

construction of high quality roads of international standards having longer

life along with proper maintenance and instant repair of the roads.

The task, no doubt, is gigantic not only because lots of issues

involved; right from the stage of awarding the contracts for the relaying and maintenance of the roads, strict observance of the laid down norms under

the CPWD manuals, certification by various accredited laboratories about the

quality of the material used, life span of the re-laid roads, prompt repair of

the re-laid roads by the same contractors, imposition of penalties and legal

actions against the defaulting contractors, fixation of responsibility of the

engineering and another staff of the authorities, design of the roads,

technique of digging of roads, coverage of drainage and cleaning of

drainage, special measures to be adopted before the onset of rains and so

on and so forth. Also, responsible for the present chaos and complete mess

is multiplicity of various authorities responsible not only in the task of

relaying and maintaining the roads but the various authorities who do not

adhere to the laid down norms and keep digging and re-digging the roads.

There is no mechanism as yet in place in terms of Section 53 of the CPWD

manual which provides a complete mechanism for quality control system.

Henceforth, to achieve the desired objective, the MCD, NDMC and PWD

are directed to get all the roads which fall under their jurisdiction surveyed

so as to place the existing condition of the roads before the said committee.

This task shall be completed by these authorities within a period of three

months from the date of this order. These authorities shall themselves place

their unified plan before the said committee as to what steps they would be

undertaking to provide high quality roads to the citizens of Delhi which do

not tear or damage before a guaranteed period. The committee will be

broad based to give each and every direction to all the concerned authorities to achieve the desired goal of providing high quality roads to the citizens of

Delhi with no potholes and unevenness. The Committee shall also suggest

the complete mechanism of putting responsibility on the higher officials for

necessary certification of the roads which are re-laid and then fix the

responsibility of such officers in case any deficiency is found either in the use

of substandard material or such officer indulging into any corrupt practices.

The Committee shall also suggest mechanism for proper action against the

corrupt contractors and for not awarding future contracts in their favour.

The Committee shall also suggest proper certification of the quality of roads

by the reputed laboratories duly accredited with the National Board of

Laboratories. The Committee may also suggest constitution of special teams

who will undertake the task of periodical inspection and supervision of these

roads and then submit their inspection reports with the higher ups of their

respective departments. The said Committee shall start functioning from

1.11.2011. The two learned Amicus Curiae appointed by this court, Mr.

Ashok Sethi and Mr.Rajiv Saxena shall continue to give their valuable

assistance to the said Committee and also seek directions, as and when

required, from this court, if any of the authorities are found lacking or not

complying with the directions of the said Committee. The MCD whose

jurisdiction of the roads is large in comparison to the other authorities will

act as a nodal agency and the Commissioner MCD will take the responsibility

to supervise and monitor the progress and the implementation of the

various directions given by the said Committee. The heads of the other authorities will also duly coordinate and cooperate in the process of

achieving the aforesaid objectives and for ensuring implementation of the

directions given by the Committee from time to time. The MCD is also

directed to arrange space for the sitting of the said Committee with

sufficient support and secretarial staff along with transport facility confining

to the dates of the sittings and as and when the Committee so desires.

Mr.Dinesh Dayal, (Retired Additional & Sessions Judge) will act as a Registrar

of the said Committee for the appropriate discharge of its functioning. The

said Committee shall also take the help of any technical expert or experts to

achieve the said desired goal. The honorarium of Ms. Justice Rekha Sharma

(retired) is fixed at Rs.50,000/- per sitting and of Mr.Dinesh Dayal (retired

Additional & Sessions Judge) at Rs.25,000/- per sitting which shall be borne

by the MCD. It is also directed that a minimum of two sittings shall take place

in one month and any further sittings are left to the discretion of the said

committee. It is also directed that the officer not less than the rank of Chief

Engineer or of the equivalent rank of the concerned authorities shall be

present at every meeting along with the support staff for expeditious

implementation of directions. The term of the said Committee for the time

being shall be for a period of six months from the date of its first assuming

the charge and any further extension will depend upon the evaluation of the

progress in the matter. The MCD is hereby directed to revert within 6 weeks

from the date of this order to apprise the court about the exact sitting place of the committee and the provision of the secretarial staff and other facilities

to be made available for the smooth functioning of the said committee.

In the past, as stated herein above, this court incessantly gave

directions emphasizing the importance of good quality roads in hope that the

authorities would have mercy on the citizens of this city and prepare the

roads for the monsoon but with the ongoing monsoons where the sheaths of

the surface of the roads are peeled off, it has laid bare the fakeness of the

claims of the high technology being used, making evident that the promises

in affidavits have gone down the potholes. This court cannot help but restate

that though we have achieved economic, social and educational progress but

the roads of the megacity that is the nerve centre of the country, reflects

another story. It seems that the nature and magnitude of the inconvenience,

misery and woes of the common man traveling on the roads every day has

been grossly underestimated by the civic agencies, which has thus

necessitated appointing the said committee. The roads, especially in the

rainy season lead to long, grueling and unending traffic jams where vehicles

crawl inch by inch, making it nothing less than a satanic curse for the

commuters. At the end of the day, these bodies are answerable to the

hassled, miserable and pitied commuter who pays hefty sums as road tax in

the anticipation and hope that the roads do not stalk them but bestow pain

free travel. The callous authorities cannot dodge the responsibility by

indulging in the blame game, when the commuter silently suffers. To jog

down the memory lane, the roads have always been riddled with potholes and craters but now this court hopes in the right earnest that with the setting

up of the said committee, all these authorities will not only act with

promptness but also in unison to achieve the common objective of providing

better quality roads to the citizens of Delhi.

Renotify on 25.9.2011.

AUGUST 11, 2011                                  KAILASH GAMBHIR, J
rkr/mg