Gujarat High Court
Mustak Hussain Mehndi Hussain Kadri vs State Of Gujarat on 11 May, 2018
Author: M.R. Shah
Bench: M.R. Shah, A.Y. Kogje
C/WPPIL/170/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 170 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/-
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MUSTAK HUSSAIN MEHNDI HUSSAIN KADRI
Versus
STATE OF GUJARAT
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Appearance:
MR AMIT M PANCHAL(528) for the PETITIONER
MRS MANISHA LAVKUMAR, GOVERNMENT PLEADER(1) WITH MR RONAK RAVAL,
ASSISTANT GOVERNMENT PLEADER for RESPONDENT(s) No. 1
MR KAMAL B TRIVEDI, SENIOR ADVOCATE WITH MR SATYAM Y CHHAYA(3242) for
RESPONDENTS No. 2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 11/05/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 69 C/WPPIL/170/2017 JUDGMENT
1. The present Public Interest Litigation under Article 226 of the Constitution of India has been filed pro bono publico by the petitioner to prevent further injury, further inconvenience, damage to the property and curbing loss of life and with a view to enforce the Rule of Law, redressing public injury and enforcing public duty.
2. The petitioner seeks directions against the respondents to forthwith take all necessary immediate steps within the jurisdictional limits of the Ahmedabad Municipal Corporation to carry out all necessary repairs for restoration of all public roads/ streets by leveling, metaling, paving, channeling, repairing, protecting, thereby making roadworthy and motorable, the public roads/ streets for all categories of vehicles, namely, two-wheelers, three-wheelers, four-wheelers and above, so as to ensure the safety and well being of the commuters/ residents/ citizens using public roads/ streets by deploying maximum workforce and complying the same with utmost expedition so as to make all public roads/ public streets in the city of Ahmedabad motorable and roadworthy and which are not having any potholes and other defects. The petitioner has prayed for the following reliefs:
Page 2 of 69C/WPPIL/170/2017 JUDGMENT "(A) Directing the respondent no. 2 herein to forthwith personally ensure and direct that all necessary and immediate steps are taken within the jurisdictional limits of the Ahmedabad Municipal Corporation to carry out all necessary repairs for restoration of all public roads/streets by leveling, metaling, paving, channeling, repairing, protecting, thereby making roadworthy and motorable the public roads/streets, for all categories of vehicles, namely, two wheelers, three wheelers, four wheelers and above, so as to ensure the safety and well being of the commuters/residents/citizens using the public roads/streets, by deploying maximum workforce and completing the same with utmost expedition so as to make all the public roads/public streets in the city of Ahmedabad motorable and roadworthy and which are not having any potholes and other defects, which are presently clearly visible from the reports annexed to this writ petition at Annexure A Collectively;
(B) Direct the respondents to submit a Report to this Honourable Court, of completion of the aforesaid road/street repair work within the jurisdictional limits of the Ahmedabad Municipal Corporation as mentioned in prayer 10(A) above; (C) Directing the respondents to pay compensation as may be found appropriate by this Honourable Court, to the residents/commuters/citizens for the loss of property and life caused to such persons, due to accidents caused to them in view of the Page 3 of 69 C/WPPIL/170/2017 JUDGMENT substandard, pathetic and harmful public roads/streets in such manner and within such time as may be found appropriate by this Honourable Court;
(D) Take action under Article 215 of the Constitution of India against the erring person/s, for not complying with the directions issued by this Honourable Court in the judgment referred to in paragraph 8.5 and whom this Honourable Court finds responsible in view of the report that may be submitted by the respondent no. 1.
12 (DD) Issue appropriate directions to the respondents as may be deemed necessary and found proper by this Honourable Court, with a view to ensure that in future such situation as is indicated in Annexure A Collectively, does not recur and to suggest appropriate measures to prevent and control such a situation with a view to safeguard public interest and to prevent public injury and be further pleased to direct the respondents to:
(i) Display the details of Contractors name, the length of road constructed and the number of times the same road stretch has been resurfaced and the amount or value of contracted work be put in public domain (both on website and at work site) the moment the roadwork is assigned to the construction company and the Measurement Book be directed to be put on Ahmedabad Municipal Corporation website for public scrutiny;
(ii) Fix the penalty amount charged on errant Page 4 of 69 C/WPPIL/170/2017 JUDGMENT Contractors at 10% of the overall contract value of the roadwork, if the Contractor is caught not adhering to the tender terms and conditions;
(iii) Increase the security deposit of Contractors made with the Ahmedabad Municipal Corporation to 20% instead of the rate of 5% prevalent today;
(iv) Raise the defect liability period (warranty/guarantee) for each road constructed by the Contractor from three years to five years;
(v) Monitor the road construction activity by the concerned Engineer of the Ahmedabad Municipal Corporation and to ensure procuring final bills of the work done by the Contractor immediately and thereafter putting them in public domain to ensure monitoring by the Engineers viz. detection of poor construction work by the Contractor;
(vi) Establish a Public Injury Board to ensure that proper compensation is doled out to victims who suffer because of poor construction of roads or any other public infrastructure with the Board having adequate powers to even penalize responsible officers and erring Contractors;
(vii) Constitute an independent Technical Advisory Committee of Experts for the Ahmedabad Municipal Corporation in the field of road engineering and construction in order to advise and monitor the Ahmedabad Municipal Corporation in matters relating road design, construction, quality aspects, specifications, maintenance management, etc., similar to the model directed by the Honourable Bombay High Court in the case of Kewal Semlani vs. Page 5 of 69 C/WPPIL/170/2017 JUDGMENT Commissioner of Bombay and others, reported in 2005 SCC OnLine Bom 528 : (2005) 4 Bom CR 25, where a State Technical Advisory Committee was constituted by Pune Municipal Corporation vide Municipal Commissioner Office Order No 67 dated 07.05.2007."
(E) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to:
(i) Direct the respondent no. 1 to forthwith provide and immediately make available to the respondent no. 2, all assistance, including financial assistance, officers, workforce, machinery, equipment and raw materials, to enable the respondent no. 2 to carry out repairs for restoration of all public roads/streets by leveling, metaling, paving, channeling, repairing, protecting, thereby making roadworthy and motorable the public roads/streets, for all categories of vehicles, namely, two wheelers, three wheelers, four wheelers and above, so as to ensure the safety and well being of the commuters/residents/citizens using the public roads/streets, by deploying maximum workforce and completing the same with utmost expedition so as to make all the public roads/public streets in the city of Ahmedabad are motorable and roadworthy and which are not having any potholes and other defects, which are presently clearly visible from the reports annexed to this writ petition at Annexure A Collectively;
(ii) Direct the respondent no. 2 to file an
Page 6 of 69
C/WPPIL/170/2017 JUDGMENT
undertaking to this Honourable Court declaring that the respondent no. 2 would forthwith take all required steps for carrying out repairs for restoration of all public roads/streets by leveling, metaling, paving, channeling, repairing, protecting and thereby making roadworthy and motorable all the public roads/streets, within the jurisdictional limits of the city of Ahmedabad, pliable for all categories of vehicles, namely, two wheelers, three wheelers, four wheelers and above, so as to ensure the safety and well being of the commuters/residents/citizens using the public roads/streets, by deploying maximum workforce and completing the public roads/streets repair with utmost expedition, after which the said public roads/streets do not have any potholes and other defects, which are presently clearly visible from the reports annexed to this writ petition at Annexure A Collectively, and submit a weekly report to this Honourable Court of the progress made with regard to the said road repair work;
(iii) Direct the respondent no. 1 to make an inquiry so as to find out the person/s responsible for the condition of the public roads/streets within the jurisdictional limits of the Ahmedabad Municipal Corporation in the city of Ahmedabad and to present the Report of the said inquiry to this Honourable Court, indicating the action proposed to be taken against the erring person/s responsible for the condition of the public roads/streets as indicated in Annexure A Collectively, within such Page 7 of 69 C/WPPIL/170/2017 JUDGMENT time as may be found appropriate by this Honourable Court;
12 (E) (iv) (a) Restrain the respondent no. 2 from making payment on and from August 08, 2017, of any amount to any Contractor, who has undertaken road contracts with the Ahmedabad Municipal Corporation for construction/repair/maintenance, etc., of roads within the jurisdictional limits of the Ahmedabad Municipal Corporation, from the amounts indicated against the name of the respective Contractors in Annexure C without the permission of this Honourable Court;
(b) Direct the respondent no. 2 to: -
(i) Place on record before this Honourable Court, the Measurement Book of Ahmedabad Municipal Corporation maintained by the Engineer concerned, in respect of all the roads under repair and maintenance and which would indicate the quality of raw materials used, the extent of road under defect of liability, the period of the same, the length and details of the roads in question that were washed away together with the amount spent by the Ahmedabad Municipal Corporation towards the same, and giving details of the amounts earmarked for the said purpose for being paid for the aforesaid repair and maintenance work to the Contractors for all roads in the city of Ahmedabad which are within the jurisdictional limits of the Ahmedabad Municipal Corporation;
(ii) Direct the respondent no. 2 to place before this Honourable Court the details for which the notices Page 8 of 69 C/WPPIL/170/2017 JUDGMENT have been issued to the Contractors by the Ahmedabad Municipal Corporation and the action proposed to be taken against the erring Contractors."
(F) Pass such other and further Order/s as may be deemed just and proper;"
3. It is the case on behalf of the petitioner that earlier, number of directions came to be issued by this Court in a reported decision in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. reported in 2006 (2) GLR 1765. It is the case on behalf of the petitioner that number of directions came to be issued by the Division Bench of this Court directing the respondent - local authorities, including the Ahmedabad Municipal Corporation to take steps to see that public roads are constructed and maintained in good condition so as to facilitate smooth flow of traffic. It is the case on behalf of the petitioner that in the said decision, the Division Bench observed that though there are ample of provisions in various Acts such as Bombay Provincial Municipal Corporations Act, 1949, as well as the Gujarat Panchayats Act, 1993, the authorities in charge of implementing the provisions have not properly discharged their duties nor any vigilance is shown for implementing such provisions with the result that the said Page 9 of 69 C/WPPIL/170/2017 JUDGMENT provisions remain in the statute book the same being implemented in proper spirit. In the said decision, it is further observed that a duty is cast upon the State Government as well as the local civic bodies to curb the menace of stray cattle and remove unauthorised encroachment on public roads and also to see that public roads are constructed and maintained in good condition so as to facilitate smooth flow of traffic. In the said decision, it is further observed that these authorities have also been equipped with powers and are provided with adequate machinery to fulfill these objects. In the said decision, it is further observed that when this be the position, it is not only moral but statutory obligation which is required to be discharged by these authorities faithfully and with all sincerity. It is further observed that any callous or indifferent attitude by these authorities has to be looked upon by the Court very seriously. In the said decision, it is further observed that law on "right to life" under Article 21 of the Constitution of India is very well defined, and it is, therefore, a fundamental right of the public to enjoy life free of stray cattle menace, traffic congestion, etc. It is the case on behalf of the petitioner that while issuing these directions, the Division Bench of this Court had taken note of digging of roads for laying of cables, pipelines, etc. and need of effective coordination between Page 10 of 69 C/WPPIL/170/2017 JUDGMENT various agencies. It is the case on behalf of the petitioner that in the aforesaid decision, as far as back in the year 2006, the Division Bench of this Court directed the local authorities such as the Municipal Corporations, Municipalities, Panchayats, Development Authorities to regularly inspect the condition of roads within their limits and conditions of roads should be inspected before the monsoon and maintained after monsoon. It is the case on behalf of the petitioner that in the said decision, the Division Bench also directed that the roads are required to be inspected periodically so that if any repairing work or any resurfacing work is required, the same can be accordingly done so that public at large may not face any difficulties. The Division Bench observed that the concerned authorities shall monitor this aspect regularly. It is the case on behalf of the petitioner that in the said decision, the Division Bench also further observed that it is the duty of the concerned authorities to ensure that the work is allotted to such contractors who are capable of doing such work without delay and at the same time, without compromising with the quality. It is the case on behalf of the petitioner that by observing so, the Division Bench further directed that the concerned authorities shall monitor the condition of the roads regularly and if it is found that roads are damaged due to Page 11 of 69 C/WPPIL/170/2017 JUDGMENT heavy rainfall or by any other reason whatsoever, the authorities shall see to it that without any undue delay, the same are repaired or resurfaced. It is the case on behalf of the petitioner that the Division Bench also issued directions as regards the problem of stray cattle/ animals on roads and this Court directed the concerned authorities to enforce appropriate laws in connection with the same. The Division Bench further directed that appropriate preventive as well as curative measures would be taken by the concerned authorities to prevent the problem more effectively during monsoon period. The Division Bench also further directed that the authority shall take appropriate action against the owners/ persons who are leaving their cattle to stray on the roads so that such persons are not tempted to repeat the same again.
4. It is the case on behalf of the petitioner that despite the specific directions issued by the Division Bench of this Court contained in the reported judgment in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v.
Ahmedabad Municipal Corporation And Ors. (supra), and despite there being ample provisions in the relevant Acts, more particularly, BPMC Act, things have not been improved. It is the case on behalf of the petitioner that it is very unfortunate that in spite of various orders passed by this Court Page 12 of 69 C/WPPIL/170/2017 JUDGMENT and repeated assurances given to this Court to comply with the directions and orders, either no effective steps are taken by the Ahmedabad Municipal Corporation to remove stray cattle and/or impound the stray cattle which are moving free on roads and/or there is no supervision by the officers. It is the case on behalf of the petitioner that despite the specific directions issued with respect to maintenance of roads and to maintain the same in good condition and despite huge amount of money being spent every year for repair/ resurface of roads, things have not improved and virtually every year, post monsoon, the conditions of the roads are such that the citizens are suffering.
5. Shri Amit M. Panchal, learned advocate appearing on behalf of the petitioner, has vehemently submitted that as such, there is no will on the part of the authorities to comply with the directions issued by this Court time and again and the ultimate sufferers are the citizens of the city who, in fact, pay taxes and in return, do not get proper facilities. It is submitted that there is no proper supervision and/or monitoring by the authorities/ officers of the Corporation. It is submitted that because of the poor quality of material used and thereby because of the poor quality of roads, frequently, the Corporation is required to spend huge amount for repairing/ Page 13 of 69 C/WPPIL/170/2017 JUDGMENT resurfacing, for which the ultimate burden would be upon the public exchequer. It is further submitted by Shri Amit Panchal, learned advocate appearing for the petitioner, that there is no coordination between the various agencies who dug the roads for the purpose of laying cable, pipelines, etc. namely, the electricity company, telephone and broadband companies and other agencies. It is submitted that there is no proper monitoring and/or supervision by the concerned officers after the permissions are granted to such agencies to dug the roads for public purpose and there is no proper and effective monitoring and supervision to see that roads are restored to their original position as they were prior to digging by the concerned agencies. It is submitted that even on the aforesaid, directions issued by this Court in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra), have not been complied with and / or implemented which tantamount to contempt. It is further submitted by Shri Panchal that apart from the fact that a statutory duty is cast upon the Corporation/ local body to maintain the roads/ public roads/ streets in a good and motorable condition, the Corporation is bound to comply with the directions issued by this Court from time to time, more particularly, those issued in the case of Sharda Sahkari Gruh Page 14 of 69 C/WPPIL/170/2017 JUDGMENT Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra).
5.1 Shri Panchal, learned advocate appearing on behalf of the petitioner has referred to the various orders, even passed in the present proceedings and the directions issued from time to time. It is submitted that no concrete steps are taken by the Corporation and its officers to comply with the orders / directions issued by this Court from time to time in the present proceedings and it appears that the officers are under an impression that the moment the matter is adjourned, they are not required to do anything till the matter is again notified on the next date. It is submitted that though the present proceedings are adjourned time and again and various directions/ orders are issued by this Court, till date, no effective steps are taken by the officers of the Ahmedabad Municipal Corporation. It is submitted that this is nothing but a clear disobedience of the orders passed by this Court. 5.2 Shri Panchal, learned advocate appearing on behalf of the petitioner has, after referring to the various orders passed by this Court and various directions issued in the present proceedings from time to time, more particularly, issued in the order dated 10.08.2017, submitted that the said Page 15 of 69 C/WPPIL/170/2017 JUDGMENT interim directions have not been complied with. Shri Panchal has pointed out the non-compliance of the following which the Corporation was otherwise required to comply with as per the interim directions issued in the order dated 10.08.2017 and the further directions issued thereafter:
"o Measurement Books - not produced.
o There has been no "inquiry" that has taken place
- only notices have been issued to concerned officers - no concrete action has been taken nor is any charge sheet issued and/or disciplinary action taken despite admitting noncompliance of the directions issued by this Honourable Court. o The bad state of roads is undisputed and slackness in work is admitted. Citizens continue to suffer even after payment of municipal property taxes levied under the Gujarat Provincial Municipal Corporations Act, 1949.
o No compensation provided to victims for injury and death due to bad roads, faulty construction of speed breakers including to traffic police officer on duty.
o Breach of Article 14 and 21 of the Constitution of India.
o The facts & figures given and statements made in the affidavits filed by the corporation are incorrect and the repairs carried out otherwise is defective, poor and also incomplete.
o No accountability of any officer from the post of Inspector to Deputy Municipal Commissioner in charge of zone and/or department and/or project, or of the Municipal Commissioner who heads the administration and for noncompliance of the Page 16 of 69 C/WPPIL/170/2017 JUDGMENT directions issued by this Honourable Court since the year 2004 - Refer judgment Sharda Sahakari Gruh Mandali Limited and Others vs. Ahmedabad Municipal Corporation and Others 2006 (2) GLR 1765.
o No liability.
o No report yet filed for the damaged roads repaired (if any) o No steps taken neither any compliance of the directions issued back in the year 2006.
o Some areas have been given step motherly treatment by the corporation.
o The corporation has candidly accepted in the IA filed by them, that no work has been done, nor any directions issued by the court are followed. o No action has been taken on the vigilance reports. o The FSL reports of the "90 roads randomly selected" have been procured - yet no action has been taken.
o No penalty for bad work.
o No monitoring of the work done.
o No quality control. No checks and balances. o No undertaking produced to complete the repair work or comply with the prescribed steps.
o No action/penalty/punishment intended or prescribed to be taken against the erring officers. o Contractors have been paid their money.
o No liability or accountability of the contractor for bad conditioned road.
o Complete disrespect and utter wastage of public money."
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C/WPPIL/170/2017 JUDGMENT 5.3 It is further submitted by Shri Amit M. Panchal,
learned advocate appearing on behalf of the petitioner that if the laws are not enforced and the orders of the Courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is submitted that therefore, it is also necessary to identify and take appropriate action against the officers responsible for this state of affairs. It is submitted that such blatant misuse of public money by not constructing quality roads cannot take place without the connivance of the officers concerned. It is also a source of corruption and therefore, action is necessary to check corruption, nepotism and total apathy towards the rights of citizens. That similar would also be the accountability of errant officers as well, since prima-facie, such large scale misuse and violation of laws cannot take place without the active connivance of the officers. It is submitted that it would be for the officers to show what steps they have taken to stop such misuse. 5.4 It is pointed out by Shri Amit M. Panchal, learned advocate appearing on behalf of the petitioner that in the Corporation, Municipal Commissioner is the Head of all the Departments and even the Corporation. It is submitted that there are Deputy Commissioner, City Engineers, Deputy City Engineers, Assistant Engineers, upon whom duty is cast to Page 18 of 69 C/WPPIL/170/2017 JUDGMENT have the roads in good and motorable condition. It is submitted that under Manual-II, Regulation and Delegation of Powers of the Corporation, the respective officers, namely, City Engineers, Deputy City Engineers, Assistant Engineers, are delegated the powers and duties to be performed, which all of them have failed to perform and therefore, the resultant effect is the money spent for repair/ resurface / construction of roads is wasted and virtually every post monsoon, the conditions of roads are such that it is very difficult for the citizens to drive vehicles and ultimately there is danger to their lives. 5.5 Shri Amit M. Panchal, learned advocate appearing on behalf of the petitioner, has vehemently submitted that one another serious problem faced by the citizens is stray cattle on roads. It is submitted that the public roads and streets are meant for citizens/ public at large and not for the stray cattle. It is submitted that for whatever reason, the Corporation has failed to take effective steps to curb the menace of stray cattle on public roads, due to which the citizens are facing serious difficulties and many a times, there is a danger to their lives also because there are all possibilities of accident being caused due to such menace. It is submitted that the steps which are being taken to tackle the problem of stray cattle on public roads are not effective. It is submitted that whatever is Page 19 of 69 C/WPPIL/170/2017 JUDGMENT suggested on affidavits and whatever is submitted on behalf of the authorities is not being actually implemented. It is submitted that the same is either on paper and/or orally submitted without any effective action.
5.6 It is further submitted by Shri Amit M. Panchal, learned advocate appearing on behalf of the petitioner that because of non-finalization of the Town Planning Schemes, more particularly, for the areas which are subsequently included in the local limits of the Ahmedabad Municipal Corporation, the roads are not constructed at all and even the basic amenities such as drainage, electricity, public roads, etc. are not provided though tax is collected.
5.7 One another grievance which is voiced is that of parking on public roads. It is submitted that no effective steps are taken at all to tackle with the problem of parking on public roads / service roads. It is submitted by Mr.Panchal that virtually, all cross-roads and service roads and many a times, even the main public roads are converted into and/or used as regular parking place due to which there is hindrance to the traffic resulting in wastage of time. It is submitted that in the city, the service roads/ roads nearby or around the shopping centers, restaurants, clubs, hospitals, educational institutions, Page 20 of 69 C/WPPIL/170/2017 JUDGMENT commercial/office complexes, malls, religious places, parks, theaters, Party-Plots etc. are converted into parking place/ plots for all those visiting such places and no effective steps are taken at all to curb the same. It is submitted that public roads/ streets/ service roads are meant for smooth traffic and cannot be permitted to be used by such shopping centers, restaurants, clubs, hospitals, educational institutions, commercial/office complexes, malls, religious places, parks, theaters, Party-Plots etc. for the parking purpose. It is submitted that as such, there is a total lack of will and/or there is no proper study and there is no implementation of the traffic rules. It is submitted that even the traffic Police does not take any action when the vehicles are parked just below the "No Parking" signboard. It is submitted that virtually all cross-roads of the city are converted into "pick-up stands" which ultimately affects the smooth flow of traffic and results in wastage of valuable time of citizens. It is submitted that there is a need for constituting a proper agency for the aforesaid, if the existent authorities fail to perform their statutory duties. 5.8 Making above submissions and relying upon various decisions of the Hon'ble Supreme Court as well as this Court and other High Courts, it is requested to issue directions/ further directions with an observation that if such directions Page 21 of 69 C/WPPIL/170/2017 JUDGMENT are not implemented and/or complied with in its true spirit, the Commissioner and all officers of the Corporation and the State Government shall be held responsible and/or liable for the strict action for non-compliance/ disobedience under the provisions of the Contempt of Courts Act, 1971.
6. Shri Kamal B. Trivedi, learned Senior Advocate, has appeared with Shri Satyam Y. Chhaya, learned advocate for the respondent - Ahmedabad Municipal Corporation and Mrs. Manisha Lavkumar, learned Government Pleader, has appeared on behalf of the respondent - State and the Home Department as well as the Traffic Department.
7. Number of affidavits-in-reply and further affidavits- in-reply have been filed on behalf of the Corporation pointing out the steps taken and/ or to be taken for the purpose of maintenance of roads, stray cattle, etc. 7.1 At the outset, it is required to be noted that various interim directions came to be issued by this Court vide order dated 10.08.2017 and in response to the same, the first affidavit-in-reply has been filed on behalf of the Ahmedabad Municipal Corporation dated 11.09.2017, affirmed by Shri M.N.Gadhvi, Deputy Municipal Commissioner, Ahmedabad Page 22 of 69 C/WPPIL/170/2017 JUDGMENT Municipal Corporation. In the said affidavit-in-reply, it is stated that in view of the volume of work and fact situation as well as the peculiar facts and circumstances, the actual execution of the work is under process, however, as a statutory authority, the Corporation would not leave any stone unturned to take all necessary steps so as to reach to the ultimate goal of resurfacing the roads which are affected in view of the heavy rains during the monsoon 2017 and further steps of undertaking proper vigilance inquiry which are in process with due deliberation. In the said reply, it is pointed out that the total area of the Ahmedabad Municipal Corporation is around 466 square km. out of which the New West Zone is having area of 178.76 square km. which is even more than the total area of Vadodara Municipal Corporation. It is stated that therefore, the area and quantum is very large and hence time is being consumed to execute the work of resurfacing the roads, more particularly in view of monsoon. It was pointed out that the Corporation has identified certain roads in priority for which initial resurfacing was started considering the importance in terms of its connectivity to the important spots of the city. It was pointed out that the work of resurfacing, micro-resurfacing, jet patching, reinstatement of Bhaat (manual reinstatement), reinstatement by cold-mix, is going Page 23 of 69 C/WPPIL/170/2017 JUDGMENT on. Along with the said affidavit, the Corporation has placed on record, the information with respect to the budgetary provision made for the last two years for the purpose of construction and maintenance of the public roads; the actual amounts spent/ made to the contractors and/or others for construction and maintenance of the public roads for the last two years, along with the terms and conditions on which the contracts were awarded; the actual payment made to the respective contractors and the amount still due and payable to the concerned contractors; the measurement books maintained by the concerned authorities to demonstrate and show the payments made.
In the said affidavit-in-reply, it was further pointed out that the vigilance inquiry is going on with respect to the poor condition of roads, more particularly, construction of poor quality of roads. In the said affidavit-in-reply, it is further stated that even prior to the order dated 10.08.2017, on 27.07.2017, the Municipal Commissioner, Ahmedabad Municipal Corporation had issued a confidential communication to the Deputy Municipal Commissioner (Vigilance) whereby the Vigilance Department was directed to initiate detailed inquiry to find out poor quality of work-ship, defaulters, factual reasons which led to the poor quality of Page 24 of 69 C/WPPIL/170/2017 JUDGMENT roads etc. In the said affidavit-in-reply, it is stated that the Vigilance Committee has identified the affected roads randomly and initiated inquiry with respect to 90 affected roads. It is stated that Vigilance Commission shall look into the affected roads and would submit its final report to the Commissioner.
7.2 A further affidavit-in-reply is filed on behalf of the Corporation dated 25.09.2017 pointing out further steps taken to repair/ resurface the roads and to improve the quality of roads. In the said affidavit-in-reply, it is stated that in new tender, certain stringent conditions by modifying the existing conditions are introduced. It is pointed out that the said new conditions now incorporated in the tender documents would certainly ensure the quality of the work and the work performance of the contractors.
7.3 A further affidavit-in-reply is field on behalf of the respondent-Corporation dated 04.10.2017, in which it is stated that as the result of the samples of the roads taken is awaited from FSL and the Gujarat Engineering Research Institute, as soon as the reports are received, steps shall be taken by the Vigilance Department.
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C/WPPIL/170/2017 JUDGMENT 7.4 A further affidavit-in-reply is filed on behalf of the
respondent-Corporation dated 29.11.2017, in which it is stated that the Corporation has already floated a tender inquiry dated 15.10.2017 inviting Expression of Interest for providing consultancy service for inventory and survey of the entire road network of 2600 kms. of the city of Ahmedabad, for attending the remainder damaged roads, if any, so as to carry out the resurfacing work. In the said affidavit-in-reply, it is further stated that the vigilance inquiries are under process and the preliminary inquiry reports thereof would be placed before this Court in a sealed cover. In the said reply, it is further stated that as per the directions issued by this Court in the order dated 09.11.2017, Centralized Redressal Cell with respect to roads in the city of Ahmedabad has been constituted. 7.5 A further affidavit-in-reply is filed on behalf of the respondent-Corporation dated 29.01.2018, stating that a detailed survey has been conducted zone-wise and the comparative chart is prepared dividing roads into three categories, i.e. (i) Category A - not so far damaged roads, (ii) Category B - damaged roads and (iii) Category C - badly damaged roads. In the said affidavit, it is stated that the Corporation is taking all practicable, possible and feasible steps so as to ensure that all damaged roads in the city are Page 26 of 69 C/WPPIL/170/2017 JUDGMENT resurfaced as soon as possible.
7.6 Now, so far as non-finalization of the Town Planning Schemes with respect to those areas which are subsequently included in the local territorial jurisdiction of the Ahmedabad Municipal Corporation is concerned, it is pointed out in the further affidavit-in-reply filed on behalf of the respondent- Corporation dated 07.03.2018 that most of the area falling within the boundary of New West Zone is included within the territorial jurisdiction of the Ahmedabad Municipal Corporation after 2006. It is stated that out of total 80 T.P. Schemes covering total area of New West Zone, 21 T.P. Schemes are final T.P.Schemes whereas 11 T.P.Schemes are sanctioned Preliminary T.P. Schemes and the process of finalization of Final T.P.Scheme is in progress. It is submitted that rest of the 48 T.P. Schemes out of total 80 T.P.Schemes are at the stage of preparation of Preliminary T.P.Schemes by the Town Planning Officer and these 48 Draft Town Planning Schemes are sanctioned by the State Government under Section 48(2) of the Gujarat Town Planning and Urban Development Act, 1976. It is further stated that the Corporation has initiated process of laying down the roads as well as other infrastructure with respect to 113.37 square kms. area covered within the net of the above referred 80 T.P.Schemes. Page 27 of 69
C/WPPIL/170/2017 JUDGMENT 7.7 A further affidavit-in-reply is filed on behalf of the
respondent-Corporation in I.A. No.2/2018 in Writ Petition (PIL) No.170/2017 dated 12.04.2018 pointing out that the Corporation has adopted proper norms and there are adequate parameters so as to monitor the quality of the material which would ultimately result in better quality of roads. It is pointed out that over and above the tender inquiry inviting Expression of Interest for providing consultancy services for the inventory and inquiry on resurfacing of entire road network of 2600 kms. of city of Ahmedabad, so that the damaged roads can immediately be identified, the Corporation has also invited Expression of Interest for providing Project Management consultancy services for supervision, monitoring and quality checking of road works in the city of Ahmedabad so that the roads can be repaired with good quality and the said agency would also monitor construction of new roads also. It is further stated that the same is placed before the Standing Committee for final sanction. It is further stated in the said affidavit-in- reply that to tackle with the traffic problems, the Corporation has planned to carry out detailed scientific survey of 50 critical signalized traffic junctions and the said work has been allotted to Delhi Integrated Multi-Modal Transit System Ltd. It is stated that the junctions will be identified in consultation with traffic Page 28 of 69 C/WPPIL/170/2017 JUDGMENT police department. It is stated that the said exercise will help in redesigning of signals, fixing time-cycles and phasing of signals according to present vehicular traffic volumes and it will be helpful for the efficient use of signals, and easy and effective traffic movement at junctions. It is pointed out that the Corporation has already issued notices to the private buildings for opening parking space and the Corporation has also nominated many municipal plots as parking space to facilitate the general public for parking.
8. Relying upon the affidavits-in-reply filed on behalf of the respondent-Corporation, Shri Kamal B. Trivedi, learned Senior Advocate appearing on behalf of the Corporation has submitted that the respondent-Corporation is very much serious with respect to the maintenance of roads in a motorable and good condition. It is submitted that the Corporation is also anxious to see that the roads constructed are of a good quality and that there shall be proper monitoring and/or supervision with respect to the quality of roads, by the concerned officers. It is submitted that the Municipal Commissioner, Ahmedabad Municipal Corporation, shall personally see to it that the roads in the city of Ahmedabad are in a good and motorable condition. Shri Trivedi has also stated at the Bar that now the reports from the FSL and other Page 29 of 69 C/WPPIL/170/2017 JUDGMENT authority with respect to the roads already constructed in the last two years are received and show cause notices have been issued against the erring officers who have failed to perform their duties properly and more particularly, with respect to the poor quality of roads constructed by the concerned contractors. He has also stated at the Bar with respect to those roads which are under the defect liability period that the same shall be repaired / resurfaced by the concerned Contractors at their cost. He has also stated at the Bar that henceforth, as soon as the roads are constructed and/or resurfaced / repaired, the same shall be supervised and monitored by the concerned Assistant Engineers/ Additional Engineers and Deputy Engineers and the same shall be certified by the concerned officers of the Corporation that the roads are constructed/ resurfaced as per the required quality so that if ultimately, in future it is found that the roads are not constructed as per the quality standard, the concerned officer can be held responsible and liable for any further action. He has stated at the Bar that the payments shall be made to the concerned contractors only after the certificate by the concerned officer and after the measurement-book is signed by the concerned officer.
8.1 Shri Kamal B. Trivedi, learned Senior Advocate
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appearing on behalf of the respondent-Corporation has also stated at the Bar that all steps are being taken and shall be taken by the concerned Departments of the Corporation to remove stray cattle from the public roads. He has also pointed out that a proposal has been made by the Municipal Commissioner, Ahmedabad Municipal Corporation to the State Government to enact a special law in line with the Maharashtra Law to tackle with the problem of stray cattle on roads. He has also pointed out that even the fine amount has been increased so that it may have a deterrent effect. 8.2 Shri Kamal B. Trivedi, learned Senior Advocate appearing on behalf of the respondent-Corporation has submitted that the Corporation is not considering the present petition as an adversarial litigation and any suggestion and/or directions from the Court are welcome and that the same shall be implemented in its true spirit.
9. An additional affidavit is filed on behalf of the State of Gujarat dated 29.01.2018, affirmed by the Assistant Commissioner of Police, Traffic, Ahmedabad, pointing out the steps taken for controlling traffic in the city. It is pointed out that in the year 2017-18 itself, Ahmedabad City Police had collected penalty of Rs.2,79,14,601/- qua 4,01,431 cases cases Page 31 of 69 C/WPPIL/170/2017 JUDGMENT registered for breach of traffic rules pertaining to parking of the vehicles.
9.1 A further additional affidavit-in-reply is filed on behalf of respondent No.1 - State of Gujarat, affirmed by the Assistant Commissioner of Police (Traffic) Ahmedabad, dated 21.02.2018, in which it is stated that the Ahmedabad City Police has issued a communication to the Ahmedabad Municipal Corporation regarding "No Parking Zone" and the Ahmedabad Municipal Corporation has responded by installing sign-boards for "No Parking Zone", "One-Way" and other instructions at visible distance/ convenient places. It is stated in the said affidavit-in-reply that the Police Commissioner, Ahmedabad City, has promulgated vide Notification dated 17.02.2018, ban on parking of vehicles upto 50 meters of area from cross-roads / junctions. It is further submitted that it has also been communicated to the Ahmedabad Municipal Corporation to install sign-boards of "No Parking Zone" in accordance with No Parking Zone Notification issued by the Ahmedabad Police Commissioner.
9.2 A further additional affidavit is filed on behalf of respondent No.1 - State dated 06.03.2018 stating that to meet with the traffic congestion primarily on S.G.Highway, two Page 32 of 69 C/WPPIL/170/2017 JUDGMENT Traffic Police Stations have been sanctioned vide Notification dated 28.02.2018, which shall be constituted at two ends of S.G.Highway. It is stated that in each of the Police Stations, there shall be 1 Police Inspector, 4 Police Sub Inspectors, approximately 90 Assistant Sub Inspectors/ Head Constables, 16 Police Constables/ L.R.Ds, and 4 Women Assistant Sub Inspectors and/or Women Head Constables. It is submitted that thus, a total of 238 police officers have been deployed in these two Police Stations of S.G.Highway to ensure that flow of traffic system is smooth without hindrance.
10. Relying upon various affidavits-in-reply filed on behalf of respondent No.1, affirmed by the Assistant Police Commissioner, Traffic, Ahmedabad City, Mrs.Manisha Lavkumar, learned Government Pleader, has stated at the Bar that all steps shall be taken by the State Government and the Traffic Department in consultation with the Ahmedabad Municipal Corporation to remove encroachments and hindrances from the service roads that causes traffic congestion. She has stated at the Bar that all steps shall be taken by the Traffic Department to ensure that there is no parking on service roads and that there shall be smooth running of the traffic.
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11. Now so far as non-finalization of T.P.Schemes with respect to the areas which are included in territorial jurisdiction of the Ahmedabad Municipal Corporation is concerned, an affidavit-in-reply dated 22.02.2018 is filed on behalf of the State Government, affirmed by one Shri P.L.Sharma, Chief Town Planner, Gujarat State, Gandhinagar. It is pointed out in the said affidavit-in-reply that in the new areas admeasuring 242.28 square kms. as such, the Ahmedabad Municipal Corporation is required to make 185 Town Planning Schemes. However, the Corporation has till date prepared 171 Schemes in 232.21 square kms. and in the remaining 10.07 square kms., the Corporation is yet to make 14 Schemes. It is pointed out that from 171 Draft Schemes submitted by the Corporation, 158 Draft Schemes are sanctioned by the state Government and only 13 Draft Schemes are under scrutiny and consideration.
12. Mrs.Manisha Lavkumar, learned Government Pleader, has stated at the Bar that all sincere efforts shall be made by the Town Planning Department of the State Government to sanction the Town Planning Schemes submitted by the Corporation with respect to the areas which are subsequently included in the territorial jurisdiction of the Ahmedabad Municipal Corporation so that on finalization of the Page 34 of 69 C/WPPIL/170/2017 JUDGMENT Schemes, the development work in the said areas, including that of construction of roads, can take place.
13. Heard learned counsel appearing on behalf of the respective parties at length. This Court heard the present proceedings/ petition time and again. This Court issued various directions in the matter/ matters from time to time right from 10.08.2017 in Writ Petition (PIL) No.170/2017 as well as Special Civil Application (For Direction) No.2286/2017. Considering the status reports placed on record, it appears that there is progress in repairing/ resurfacing the public roads/ streets and to make public roads motorable. However, much is required to be done. Still, there are many public roads/ streets which are not motorable and/or in a proper and /or good condition and ultimate sufferers are the citizens who pay tax to the Corporation. This Court has issued directions not only for the first time in its order dated 10.08.2017 and onwards but a very detailed elaborate directions were issued by the Division Bench as far as back in the year 2006 in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra). However, due to non-compliance of such directions and due to multiple reasons which have contributed in not maintaining the proper public roads in good and motorable conditions Page 35 of 69 C/WPPIL/170/2017 JUDGMENT which shall be discussed hereinbelow, the citizens are facing serious difficulties, more particularly, post-monsoon and/or even during the monsoon, every year. Many a times, bad condition of roads not only causes serious difficulties to the citizens in plying the vehicles but leads to accidents and the same is dangerous to their lives.
14. Having heard learned counsel for the respective parties, it appears that there is no proper implementation of the laws and there is a lack of proper supervision and monitoring when the roads are constructed and/or are resurfaced and many a times, money which is spent in resurfacing the roads is washed away. There has to be a will to do it. We have noted in number of orders made during the last many years, but it seems that there is no effect on the authorities or the same may have a very little effect on them. Things cannot be permitted to go on in this manner for ever. On one hand, various laws are enacted and on the other, illegal activities go on unabated openly under the gaze of everyone, without having any respect and regard for law and citizens. For last number of years, even this Court has been expressing anguish in the orders made in a large number of cases. We regret to notice that despite warnings and caution given by this Court in orders from time to time, all such Page 36 of 69 C/WPPIL/170/2017 JUDGMENT warnings have fallen on deaf ears without any effect. It is, therefore, necessary to once again send a message, loudly, clearly and firmly.
15. We have noticed and we firmly believe that despite passing of the laws and repeated orders by this Court, the enforcement of the laws and implementation of the orders is utterly lacking. If the laws are not enforced and the orders of the Court to enforce and implement the laws are ignored, the result would only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against the officers responsible for this state of affairs. Such blatant misuse of the laws and in the present case, poor conditions of public roads and streets and the poor quality of roads, cannot take place without connivance of the officers concerned. It may also be a source of corruption. Therefore, exercise is necessary to check corruption, nepotism and total apathy towards the rights of the citizens. Similar would also be regarding accountability of the erring officers as well as since, prima-facie, such large scale misuse in violation of laws cannot take place without the active connivance of the officers. It is for the officers to show that all effective steps were taken to stop the misuse. Tolerating filth, while not taking action against the lethargic and inefficient workforce for fear of Page 37 of 69 C/WPPIL/170/2017 JUDGMENT annoying them, is un-understandable and impermissible. Non- accountability has possibly led to lack of efforts on the part of the employees concerned. They are perhaps sanguine in their behalf that non-performance is not frowned upon by the Government or by the heads of the organizations and no harm will befall them.
16. Rule of law is the essence of democracy. It has to be preserved. Laws have to be enforced. In the case on hand, implementation and enforcement of laws and blatant misuse cannot be delayed further. Under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949, it is the duty cast upon the Municipal Corporation to maintain public roads. Even the citizens also pay tax and in turn, they have a right to expect good return in the form of better infrastructure facilities for which tax is collected. Crores of rupees are spent for construction of roads/ resurfacing the public roads and despite the same, it appears that because of either poor material used and/or poor resurfacing of the roads by the contractors who are paid crores or rupees, there are potholes in such a way that it affects common man. The local authorities are constituted for providing services to the citizens and not merely to provide employment to a few of its inhabitants. Page 38 of 69
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17. Right to life under Article 21 of the Constitution of India is very well defined and it is therefore a fundamental right of the public to enjoy life well. Article 21 of the Constitution of India guarantees the citizen to have meaningful, complete and worth-living life. The local authority is bound to see that the life of the persons residing in the city is made meaningful, complete and worth-living. The Court will be well within its bounds to issue appropriate directions to the concerned authorities if the public is deprived this right. The local authorities must perform the duties cast under the statute. In the case of M/s. Shiv Shanker Dal Mills etc. v. State of Haryana and Ors. reported in AIR 1980 SC 1037, the Hon'ble Supreme Court has observed and held that Article 226 grants extra-ordinary remedy which is essential discretion although founded on legal injury. It is perfectly open for the Court exercising the flexible power to pass such order as public interest dictates and equity project.
18. It was suggested by learned counsel appearing on behalf of the Corporation and the State that we should issue directions to the authorities and all suggestions are welcome. We believe, it is not for the Court to direct as to how the municipal authorities should carry out their functions and resolve difficulties with regard to maintenance of public roads, Page 39 of 69 C/WPPIL/170/2017 JUDGMENT streets, etc. and also to curb the menace of stray cattle on the roads. The Court, in fact, is ill-equipped to do so. Without doubt, the local authorities have all the powers of the State to take action and ensure implementation of laws. They have only to wake up and act. Rectifying the rights is an obligation on the part of the local authorities and the same has to be done as a duty. If the said duty is not discharged, this Court has to interfere and compel the authorities to discharge their responsibility/ duty. Therefore, we propose to issue appropriate directions again, despite the specific directions having been issued b this Court earlier time and again, more particularly, in the reported decision in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra). We propose to do so now by issuing appropriate directions.
19. Having heard learned counsel appearing on behalf of the respective parties on the problem of poor conditions of public roads and streets; potholes on public roads and streets; menace of stray cattle on public roads; traffic problems faced by virtually every citizen, etc., we are of the opinion that number of reasons have contributed in not maintaining the proper conditions of public roads/ streets, stray cattle on the roads and traffic problems, which shall be discussed Page 40 of 69 C/WPPIL/170/2017 JUDGMENT hereinbelow.
20. It is true that so far as the traffic problem is concerned, the same can be controlled by due cooperation from all citizens, including the media and the press. When a citizen has a right guaranteed under Article 21 of the Constitution of India, there is a corresponding duty cast upon him also. The administration alone cannot be blamed. At the same time, the local authorities cannot be permitted to go scot-free. They have to perform their statutory duties.
21. Following seems to be the main reasons contributing the problem of poor conditions of public roads and streets; potholes on the roads and the traffic problems:-
a) There is no proper survey with respect to the damaged roads. There is lack of inspection and supervision by the concerned officers of the respective Zones.
b) No monitoring of the work done.
c) No quality control, no checks and balances.
d) No action/ penalty/ punishment taken against
the erring officers for not performing their duties as provided in the Manual.
e) No liability or accountability of the contractor/
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contractors for bad condition of roads.
f) Contractors are paid their money.
g) No inspection and/or monitoring with respect
to the quality control and to check whether the roads are constructed / resurfaced as per the quality required, or not.
h) There is no checking whether the required material is used or not.
i) Non-finalization of the Town Planning Schemes more particularly with respect to the areas which are subsequently included in the territorial jurisdiction of the Ahmedabad Municipal Corporation.
j) No inspection or supervision and/or monitoring of the roads after the permissions are granted for digging of the roads for the purpose of laying cable, pipelines, etc. by electricity company, telephone companies and other companies providing water, gas, sewerage facilities etc. and there is a lack of supervision and monitoring whether after digging permissions are granted and the roads are dug thereafter the roads are restored to their original good condition or not.
k) Poor maintenance of service roads and the service roads are virtually converted into parking spaces by shopping centers, restaurants, clubs, Page 42 of 69 C/WPPIL/170/2017 JUDGMENT hospitals, educational institutions, commercial complexes, malls, religious places, parks, theaters, Government and Corporate buildings/ offices etc. and no effective steps are taken to remove the encroachment from the public roads.
l) There is no proper or detailed survey by expert bodies on monitoring and/or supervision of the public roads, traffic problems, etc.
m) Lack of will and/or commitment in performing duties by the concerned employees/ officers of the local bodies.
22. For whatever reason, and despite the directions issued by this Court in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra), as far back as in the year 2006 and despite number of directions issued as regards menace of stray cattle, there is no proper implementation of the directions and the menace of stray cattle on public roads has continued which not only causes hindrance to the traffic but the same is dangerous to the lives of citizens. No effective permanent solution is suggested as regards menace of stray cattle on public roads and authorities seem to be satisfied by impounding of some cattle and recovery of fine. Therefore, concrete formation of permanent steps is required to be taken Page 43 of 69 C/WPPIL/170/2017 JUDGMENT to solve the problem of stray cattle. It is the duty of the local authorities as well as the State Government to see that the roads are free of stray cattle as they are meant for traffic and not for stray cattle. The Court has noticed that whenever the matters come up on Board, some temporary measures/ steps are stated to be taken. However, thereafter, things remain as it is.
23. There is no proper implementation of the directions issued by the Division Bench of this Court in its reported decision in the case of Sharda Sahkari Gruh Mandali Ltd.
And Ors. v. Ahmedabad Municipal Corporation And Ors.
(supra), in its true letter and spirit and therefore, every year, more particularly, during the monsoon and post-monsoon, the citizens are suffering. Non compliance of the directions issued by this Court could tantamount to contempt and disobedience is required to be construed very seriously.
24. At the outset, it is required to be noted that the grievances which are voiced in the present petition / proceedings are with respect to bad condition of public roads and streets; menace of stray cattle on public roads; traffic congestion problem; non-compliance of the directions issued in Special Civil Application No.6963/1997; non-compliance of Page 44 of 69 C/WPPIL/170/2017 JUDGMENT various directions issued by the Division Bench of this Court in its judgment in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra), and because of the non-compliance of the various directions issued by this Court, difficulties faced by the citizens due to poor conditions of roads, potholes on roads, menace of stray cattle on public roads, etc. have been continued. No scientific studies have been undertaken and no concrete effective steps are taken to do way with the traffic problems.
25. It cannot be disputed and even as held by the Hon'ble Supreme Court as well as by this Court in catena of decisions, non-compliance of the directions issued by the Court / Courts would tantamount to wilful disobedience and would tantamount to contempt.
26. At this stage, it is required to be noted that while issuing various directions, the Division Bench of this Court in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v.
Ahmedabad Municipal Corporation And Ors. (supra), was at pains to note that in spite of various orders passed by this Court and repeated assurances given to this Court to comply with the directions and orders, either no effective steps are Page 45 of 69 C/WPPIL/170/2017 JUDGMENT taken by the Ahmedabad Municipal Corporation either to remove stray cattle and/or to impound the stray cattle which are moving freely on roads and the same are kept on roads and /or roadside for permanent stay and/or there is no supervision by the officers. The Division Bench also specifically observed that it appears that the officers are under an impression that moment the matter is adjourned, they are not required to do anything till the matter is again notified on the adjourned date. That thereafter, the Division Bench in Sharda Sahkari Gruh Mandali Ltd. And Ors. v. Ahmedabad Municipal Corporation And Ors. (supra), issued various directions in detail, which are as under:
"35. We also direct the local authorities, such as Municipal corporations, Municipalities, Panchayats, Development Authorities to regularly inspect the condition of the roads within their limit and condition of the roads should be inspected before the monsoon and maintained after the monsoon. For the purpose of digging of roads for the purpose of laying cable, pipeline etc. by Electricity Company, Telephone Companies and other agencies providing water, gas and sewerage facilities etc. shall inform each other in advance before digging out and also shall work in close co- ordination with the local authority which is required to maintain the condition of the road. The local Page 46 of 69 C/WPPIL/170/2017 JUDGMENT authorities are also directed that as and when they propose to construct new road or resurface the existing road in any area, they should intimate well in advance the aforesaid agencies and call upon them that if they so desired, they should carry out their projects before the commencement of construction of road by local authority in that area. We also direct that the aforesaid agencies as well as other similar agencies that whenever they find necessary to dig the road, they should first obtain permission of the concerned local authority and only upon receiving the permission should commence the work, and the local authority shall grant permission only upon receiving an undertaking from the concerned agency that upon completion of the work, the road shall be resurfaced to its original position. In the event of any non- compliance of these directions or breach of such undertaking, the local authority shall prosecute the relevant officers of the concerned agency for causing damage to public property since concerned officers will be personally accountable for the lapses.
36. So far as the question of maintaining roads are concerned, roads are required to be inspected periodically so that if any repairing work or resurfacing work is is required, the same can be accordingly done so that public at large may not face any difficulties. The concerned authorities shall monitor this aspect regularly. It is the duty of the Page 47 of 69 C/WPPIL/170/2017 JUDGMENT concerned authorities to ensure that the work is allotted to such contractors who are capable of doing such work without delay and at the same time, without compromising with the quality. The concerned authorities shall monitor the condition of the roads regularly and if it is found that roads are damaged due to heavy rainfall or by any other reason whatsoever, the authority shall see to it that without any undue delay, the same is repaired or re-surfaced.
37. As regards the encroachments at Rabari Vasahat areas are concerned, as pointed out by us earlier, the Municipal Corporation is directed to take appropriate action in accordance with law against the erring allottees/occupiers, who according to the Corporation, has violated the terms of allotment. If it is found by the authority that any allottee/occupant has encroached upon the area, the appropriate authority is directed to take appropriate action in accordance with law and may pass appropriate order after haring such erring allottee/occupant so that the said area can be available for the purpose of keeping cattle. The authorities, at the time of taking action may also consider whether there is any breach of condition of allotment. However, it is made clear that before taking action, the affected persons must be given an opportunity of hearing and principles of natural justice must be followed.Page 48 of 69
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38. Similarly, so far as party plots are concerned, it is argued by Mr. Harin Rawal that in view of inadequate parking facilities, people using the party plots are parking their vehicles on the street, which creates traffic congestion and disturbs smooth flow of vehicles on the road. In this connection, the concerned authorities are directed to take appropriate action in accordance with law, and if it is found that any party plot owner has not provided adequate parking facilities and commits breach of any rules or regulation, appropriate action shall be taken against such persons in accordance with law after hearing the concerned persons in this behalf.
39. As regards the problem of stray cattle/animals on the roads are concerned, the concerned authorities shall enforce appropriate laws in connection with the same. Appropriate preventive as well as curative measures will be taken by the concerned authorities to prevent this problem more effectively during monsoon period. It is also directed that appropriate authorities shall take appropriate action against the owners/persons who are leaving their cattle to stray on the roads so that such persons are not tempted to repeat the same again. The State is directed to give adequate and proper police protection to the concerned authority/person who is in charge of catching and impounding stray cattle and animals on the public roads so that the said works can be effectively done by the said authority.Page 49 of 69
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40. So far as gauchar land is concerned, if it is found that there is any encroachment on such lands, the concerned authorities shall take appropriate action to see that such gauchar land is made available for grazing cattle. Adequate gauchar land is required to be maintained even as per the provisions of the Panchayat Act and other laws.
41. Due care is required to be taken by Telephone Companies, Electricity Company, and other agencies who dig up the roads for laying cables, pipeline etc. Such authorities shall dig up the roads or lay trenches only after taking due permission from the Municipal Corporation, Development authorities and/or Panchayats. Maximum care shall be taken not to damage the asphalted portion or the road. Permission to dig up or lay trenches on the roads must be granted only on an undertaking that as soon as the work is over, either the party who dug the road shall by themselves fill up the ditches/trenches and resurface the road, or shall, even prior to the commencement of the digging work, work in consultation and in close co- ordination with other departments who are required to repair and/or resurface the roads so that as soon as the work is over, the roads can be repaired/resurfaced. If the roads are not resurfaced and/or repaired immediately after the work and if any accident/damage is caused due to non-
repairing/non-resurfacing, the party who was
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granted permission to dig the road and/or lay trenches shall be responsible for the same and in appropriate cases, even personal liability can be fastened if the concerned person is found negligent in this aspect."
27. Despite the above elaborate directions are issued, the same are not complied with in its true spirit and/or its letter and spirit and all the suggestions and directions issued by this Court are not taken seriously. As observed by the Division Bench of this Court, as far back as in the year 1982, in State of Gujarat v. Secretary, LSW And TD Dept. -
1982(1) GLR 61, such an inaction on the part of the Government local authorities and/or its officers would tantamount to even criminal contempt over and above civil contempt. However, considering the request made by learned counsel for the respective respondents, more particularly, the Ahmedabad Municipal Corporation and the State Government, we propose to issue the directions again with a view to give one additional opportunity to the Corporation, its officers and the State Government to take effective steps to have the motorable public roads and the State Government to take effective steps to have the motorable public roads and streets in good condition and to remove the menace of stray cattle and to take effective steps for smooth vehicular traffic with a Page 51 of 69 C/WPPIL/170/2017 JUDGMENT caution that if in future, it is observed and found that the directions of this Court are not implemented in its true spirit and/or letter and spirit, the same shall be viewed very seriously and both, the heads of the administrative wing and the elected wing of the Corporation, its officers and the officers of the State Government and officers of the concerned Department(s) of the State Government shall be held personally responsible for the same even for the criminal contempt and/or civil contempt.
28. Having noticed and observed as above, we propose to issue further directions which shall be over and above the directions already issued by this Court in a catena of decisions, including the decision of the Division Bench of this Court in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors. v.
Ahmedabad Municipal Corporation And Ors. (supra), with a clear observation and caution that non-implementation and/or non-compliance of any of the directions by the respondent - Ahmedabad Municipal Corporation and/or the State and /or its officers, agents, etc. shall be viewed very seriously and the same shall tantamount to deliberate non-
compliance on the part of the concerned authorities which may render them liable for action under the Contempt of Courts Act, 1971.
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29. We issue the further directions as under:-
Re.: Problem of Public Roads/ Service Roads:
(1) The Ahmedabad Municipal Corporation, its officer, agents, as well as the State Government and its concerned authorities shall strictly and scrupulously follow and comply with the directions issued by the Division Bench of this Court in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors.
v. Ahmedabad Municipal Corporation And Ors. (supra), more particularly, in Paragraphs 35 to 41 of the said decision.
(2) There shall be proper and effective
supervision and monitoring of the
construction/ resurfacing/ restoration of
roads by the concerned officers of the
concerned Departments of the Corporation as per the relevant Rules and Regulations, Circulars, Notifications, etc. issued from time to time with respect to entrustment and delegation of powers, more particularly, for maintenance of roads as per Manual-II, Regulation and Delegation of Powers of the Corporation, namely:-
(i) It will be the duty of the Engineering Department of the Corporation to see that roads are reconstructed/ resurfaced / restored Page 53 of 69 C/WPPIL/170/2017 JUDGMENT as per the specifications and quality and that the Assistant City Engineer of the concerned area shall certify, after construction/ resurfacing/ restoration of the road that the road is constructed / resurfaced/ restored as per the specifications and as per the quality, which shall be counter-signed by his superior and then and then only and after the same is certified by the Accounts Department, and audit, payment to the concerned Contractor shall be made.
(ii) If any Certificate is found to be incorrect and/or inaccurate and/or false, the concerned Officer of the Engineering Department shall be held personally responsible for which over and above disciplinary action, he/ she may be made liable for the related offences punishable under the Indian Penal Code also.
(iii) The Municipal Corporation to see to it that in each contract/ tender notice, there shall be specification of the quality of the road and if there is any deviation found, the Contractor concerned shall reconstruct the same within the Defect Liability Period which shall not be less than two to three years.
(iv) That the Security Deposit and Performance Security Deposit/ Bank Guarantee shall be higher so that ultimately, if the Contractor does not restore the road and/or reconstruct the road as per the specifications, then in that case, same can be restored/ Page 54 of 69 C/WPPIL/170/2017 JUDGMENT reconstructed at the cost of the Contractor which can be recovered from the Security Deposit and/or Performance Security Deposit and/or Bank Guarantee. In such an eventuality, the Contractor shall also be saddled with heavy penalty.
(v) Payments to the Contractors shall be made only after the Assistant City Engineer of the concerned area certifies, after construction/ resurfacing/ restoration of the road, that the road is constructed / resurfaced/ restored as per the specifications and as per the prescribed quality, and only after the proper verification of the claim which shall be on the basis of the measurement noted in the Measurement Book and after the same is counter-signed by his superior and certified by the Accounts Department and thereafter by the Audit Department.
(3) There shall be overall constant supervision
and monitoring by the Commissioner,
Deputy Commissioner and the City Engineer of the Corporation as ultimately, being the Heads of the Corporation/ Departments, they shall be responsible.
(4) So far as non-finalization of the Town Planning Schemes with respect to the areas included in the Ahmedabad Municipal Corporation, more particularly, those included after the year 2006, is concerned, Page 55 of 69 C/WPPIL/170/2017 JUDGMENT the State Government - Urban Development and Urban Housing Department, the Chief Town Planner, the Town Planning Department of the Ahmedabad Municipal Corporation and the Commissioner, Ahmedabad Municipal Corporation, are hereby directed to see that the Schemes are finalised at the earliest so that the residents of those areas may get the required infrastructural facilities such as roads, electricity, drainage, etc. In a given case, the Appropriate Authority/ Competent Authority to exercise powers under Section 48A of the Gujarat Town Planning and Urban Development Act, 1976, pending finalisation of the Town Planning Schemes. However, all endeavour shall be made to finalise the Town Planning Schemes at the earliest, but not later than one year from today, as it is reported that because of non-finalisation of the Town Planning Schemes, roads are not constructed and infrastructural facilities are not provided to such areas.
(5) That there shall be proper survey, analysis and design so that there shall be a detailed technical analysis and design of existing road surveys, etc. Therefore, it is suggested to have / appoint Project Management Consultant for road work to improve the qualitative and quantitative progress of Page 56 of 69 C/WPPIL/170/2017 JUDGMENT road work as empanelment of Project Management Consultancy Services may help the Road Project Division as well as zonal works for the purpose of carrying out day-
to-day monitoring, quality testing, quantity checking, record keeping and allied works in road construction. The AMC engineers shall ensure that the execution of works by the Contractors and Project Management Consultancy are carried out as per the tender specifications, terms and conditions and as observed hereinabove, the bills shall be processed after verification of the quality parameters, measurements and on satisfying the tender requirements and the roles and responsibilities of the Engineers shall be as per the Engineering Manual.
(6) The Corporation may also consider exploring the possibility of making use of plastic waste in certain proportion compulsory in case of construction of roads of a particular length to have more durability. However, for the same, the Corporation may consider the Circulars/ Notifications of the Ministry of Road Transport and Highways regarding the same.
(7) The Standing Committee and the concerned Committee shall consider the aforesaid proposal at the earliest as it is the duty of Page 57 of 69 C/WPPIL/170/2017 JUDGMENT the elected body also to resolve the problems of citizens as ultimately, they also will be responsible. Members of the various Committees, including the Standing Committee to perform Proactive Role in the larger Public Interest.
(8) That the Road Opening Permits henceforth shall have stringent terms and conditions regarding proper safety barricading, immediate reinstatement and timely maintenance till the end of the Defect Liability Period. That no Road Opening Permit / Road Digging Permit shall be granted firstly in the monsoon season unless the same is required for emergent situation for which the head of the concerned Department of the Corporation shall certify such emergent need. Further, no Road Opening Permits/ Road Digging Permits be granted unless the same are backed by a time-bound programme, namely the date on which the digging work will start, the number of days for which the same will continue, the specific date on which the work, for which the Road Opening Permit is granted, will be over, and that immediately but not later than three days, the road shall be restored/ resurfaced by such permit holders who have been granted Road Opening Permits for their own Page 58 of 69 C/WPPIL/170/2017 JUDGMENT Projects/ Work. The roads must be restored/ resurfaced in a proper condition by such permit holders only and if the roads are not restored/ resurfaced by the concerned Road Opening Permit holders within the time stipulated in the application, in that case only, the Corporation may reinstate/ resurface/ restore the road at the cost of such Road Opening Permit holders which shall be recovered by the Corporation from the Security Deposit which shall always be higher than the proposed cost for resurfacing / restoration. Therefore, the Security Deposit/ Deposit shall vary from work to work and looking to the measurement/ area. In the Road Opening Permit itself, it shall be specifically mentioned that if the road is not reinstated and/or restored and is not made motorable within the stipulated period of time, then in that case, in future, the concerned permit holder shall not be granted any permission to open the road and/or to dig the road. As regards whether the road for which the permission to dig is granted is restored and/or reinstated, or not, the same shall be monitored and supervised by the Head of the Department who grants such Road Opening Permit and that it shall be so certified by the Assistant City Engineer. It shall be the duty of the concerned Officers Page 59 of 69 C/WPPIL/170/2017 JUDGMENT of the Department of the Corporation to see that after digging, roads are reinstated and/or resurfaced and/or restored appropriately so that in future, there shall not be possibilities of potholes and/or holes.
(9) There shall be constant monitoring and/or supervision by the higher authorities, more particularly, the Municipal Commissioner on the work of the concerned officers of the Engineering Department. After the present petition was filed, the samples of the roads were sent to the FSL and the laboratory, namely, the Gujarat Engineering Research Institute, and it is reported that on the basis of the preliminary inquiry reports, departmental inquiries have been initiated.
However, thereafter, nothing further is
reported to have been done. Under the
circumstances, the Commissioner,
Ahmedabad Municipal Corporation, is
hereby directed to initiate and complete the departmental inquiries against such erring officers and to see that appropriate action is taken against such concerned erring officers based on the merits of each case, as but for their negligence and/or connivance, the conditions of roads would not have been in such a poor /damaged state. The aforesaid exercise shall be completed within a period of three months and report on the same Page 60 of 69 C/WPPIL/170/2017 JUDGMENT shall be placed before this Court in the present proceedings. The elected wing of the Corporation also to see to it that the aforesaid directions are complied with.
Re.: Traffic Problem:
(10) Now so far as traffic problem faced by the citizens/ residents of the city is concerned, it is directed that there shall be a proper study conducted by the State Government and the Corporation. There shall be an in-
depth study of the traffic problem, more particularly, congestion of traffic and the bottlenecks in smooth movement of traffic is required to be studied and found out so that further corrective measures can be taken. In many cases, important junctions are required to be redesigned using in- house expertise or with the help of external experts to bring out the solution relating to the problem of traffic. The Traffic Engineering Department of the Corporation therefore shall extend complete cooperation to the Traffic Police Department to ensure smooth movement of traffic at all important junctions in the city. If required, important junctions shall be redesigned using in-house expertise or with the help of external experts to bring out the solutions of the problems related to traffic and for which Page 61 of 69 C/WPPIL/170/2017 JUDGMENT there shall be an expert opinion of the Committee consisting of experts.
(11) That the teams of the Estate Department shall ensure removal of all types of encroachment on roads which are obstructing free movement of vehicles as well as pedestrian movement. Footpaths and service roads are meant for smooth movement of traffic and pedestrians. Therefore, the Estate Department of the Corporation and the Traffic Police Department are hereby directed to ensure removal of all types of encroachments on roads/ service roads which are obstructing free movement of vehicular traffic. The concerned Departments of the State Government as well as the Corporation, more particularly, the Traffic Police Department and the Estate Department and the Commissioner of Police, Ahmedabad City, are directed to see that the vehicles are not parked on roads/ service roads surrounding the shopping centers, restaurants, clubs, hospitals, educational institutions, commercial/office complexes, malls, religious places, parks, theaters, Party-Plots etc. and they shall see to it that the vehicles of people visiting such places are parked in the Parking place in such buildings itself and that the roads/ service Page 62 of 69 C/WPPIL/170/2017 JUDGMENT roads situated in front of or abutting such shopping centers, restaurants, clubs, hospitals, educational institutions, commercial/office complexes, malls, religious places, parks, theaters, Party-Plots etc. are not converted into their permanent parking place. Therefore, the concerned Departments shall first serve notice/ notices upon the management / owners / proprietors / trust etc. of the concerned shopping centers, restaurants, clubs, hospitals, educational institutions, commercial/office complexes, malls, religious places, parks, theaters, Party-Plots etc. which are having their buildings abutting the roads/ service roads with a specific mention that if any of the visitors to such places park their vehicles on road, it will be the responsibility of the concerned management/ owners/ proprietors / trust etc. to see to it that vehicles are not parked on public roads/ service roads.
(12) The teams of the Estate Department of the Corporation shall also ensure that adequate parking spaces are provided at the time of issuing Building Use Permissions as per the GDCR. Correspondingly, it shall be ensured by timely inspections that the allocated parking spaces in the structures are not encroached after the issuance of Building Page 63 of 69 C/WPPIL/170/2017 JUDGMENT Use Permissions.
(13) Strict action shall be taken against those who park their vehicles on public roads, more particularly, in "No Parking Zone". No parking shall be allowed, at least on cross- roads/ junctions. If ultimately, the parking is found on cross-roads and No Parking Zones, the concerned Police Officer on duty at the particular point shall be held personally responsible for allowing such parking for which such officer shall be liable for disciplinary proceedings for dereliction in duty, etc. (14) The speed breakers/ bumps on the roads shall be constructed as per the design and size as per the rules and regulations of the Indian Road Congress as far as possible however, subject to the requirements and need.
(15) The Commissioner of Police (Traffic) and the Commissioner, Ahmedabad Municipal Corporation are directed to see that the aforesaid directions are complied with in its true spirit.
(16) Comprehensive Mobility Plan for Gujarat metros shall have to be prepared by the Government of Gujarat as per Ministry of Urban Development Guidelines.
Page 64 of 69C/WPPIL/170/2017 JUDGMENT (17) To ensure safe and smooth mobility in the city, the Mantra of "E-E-E", that is:
* Engineering, * Education of People and * Enforcement of laws, has to be followed.
(18) There shall be coordination between different Departments of the Government and there shall be periodical high level joint committee meetings once in a month to ensure appropriate solutions to the problems.
Re.: Cattle Menace:
(19) Now, so far as the stray cattle menace and the problem of cattle on public roads is concerned, the directions issued by the Division Bench of this Court in the case of Sharda Sahkari Gruh Mandali Ltd. And Ors.
v. Ahmedabad Municipal Corporation And Ors. (supra) and the earlier directions referred to in the said decision shall be fully and truly implemented. All efforts shall be made by the Corporation and the State Government to remove cattle from public roads because stray cattle on the roads are not only hindering the smooth and safe movement of traffic but are also very dangerous and sometimes fatal and are likely to create hygienic problems also.
Page 65 of 69C/WPPIL/170/2017 JUDGMENT (20) The Ahmedabad Municipal Corporation as well as the Commissioner of Police are hereby directed to see that no person sells fodder/ grass on public road and they shall see to it that there shall be constant daily monitoring and supervision by the concerned Police Officers of the concerned area and if at all it is found that any person is selling grass/ fodder on public road, the in-charge of the concerned Police Station shall be held personally responsible.
(21) Municipal Corporation shall relocate stray cattle from the roads to Gaushalas or institutions made for providing shelter to stray cattle.
(22) For removal of stray cattle from roads and for the relocation to the Gaushalas etc., the Municipal Corporation shall press into service, sufficient number of persons and vehicles for impounding and relocating animals.
(23) The vehicles which are used for carrying impounded cattle and animals shall be fitted with ramps in order to avoid the chances of injury to them.
(24) The transit and handling of the stray cattle and animals will be in conformity with the laws providing for their safety and Page 66 of 69 C/WPPIL/170/2017 JUDGMENT prevention of injuries to them including Prevention of Cruelty to Animals Act, 1960.
(25) The cattle located in the city shall have a tag number tied around their necks and the tag number should be indicative of the name and address of the person to whom the animal belongs so that there will be no difficulty in tracing their owners. This direction shall be carried out by the person(s) owning the cattle. The enforcement of this condition shall be made by the civic authorities.
(26) Prosecution should be launched under the various penal provisions against the owners of such cattle which are found on streets and roads unattended.
(27) The Municipal Corporation shall employ sufficient number of persons to catch stray cattle and animals found on roads and streets. Once they are caught, they shall be impounded and may be released to owners on payment of fine and subject to other directions mentioned herein.
(28) The State Government shall assist the
Municipal Corporation, Ahmedabad, in
securing the implementation of the
aforesaid directions. This may include
financial assistance which would be required Page 67 of 69 C/WPPIL/170/2017 JUDGMENT by the Municipal Corporation of Ahmedabad to carry out the directions contained in this order effectively.
(29) The Commissioner of Ahmedabad Municipal Corporation shall nominate two officers, over and above the Head of the Cattle Nuisance Control Department who shall be responsible for carrying out the directions issued by this Court.
(30) As observed in the earlier order, the State Government to find out a permanent solution of cattle menace, may be by enacting appropriate law on the lines of State of Maharashtra. Therefore, the State Government may consider the same.
30. The above directions are over and above the directions which are already issued in earlier orders, including the direction to set up a permanent Grievance Redressal Cell and registration of on-line complaints and toll-free numbers for which periodical publicity be made so that the citizens are aware of such facilities and can make their grievances which shall be attended by the concerned Department at the earliest.
31. Before parting with the present order, this Court would like to observe that correspondingly, it is the duty of Page 68 of 69 C/WPPIL/170/2017 JUDGMENT citizens and residents of the city also to make their City, a Smart City and/or Metro City. It is their duty also to follow the law and traffic regulations etc. The Government authorities alone would not be / may not be in a position to tackle such big issues/ problems. Cooperation of citizens is must.
Therefore, the citizens/ residents are also required to educate themselves and enforce laws and/or regulations. In order to educate people, media, both electronic and print, would be the most effective medium, as it is observed that many a times, media had played important role. The print and electronic media would play an important role in educating people.
Therefore, all must collectively make efforts to solve the aforesaid issues and make the City of Ahmedabad, which is their own city, a Smart City in its true sense.
32. The concerned respondents and/or Departments shall submit periodical compliance Reports on the aforesaid directions bi-monthly on the record of the present case, to be placed before the Court.
Stand Over to 06.07.2018.
sd/-
(M.R. SHAH, J) sd/-
(A.Y. KOGJE, J) sunil Page 69 of 69