Director General ( Road Development) National Highways Authority of India Vs. Aam Aadmi Lokmanch

Case Analysis

Director General ( Road Development) National Highways Authority of India Vs. Aam Aadmi Lokmanch

September 25, 2021

By:-Khan Ahmad Darvesh

In the Supreme Court of India

NAME OF THE CASE	Director General ( Road Development) National Highways Authority of India Vs. Aam Aadmi Lokmanch
CITATION	C.A. No.-006932-006932 / 2015
DATE OF THE CASE	14^th July, 2020
APPELLANT	Aam Admi Lokmanch
RESPONDENT	Director General(Road Development) National Highways Authority of India
BENCH/JUDGE	HON’BLE MR. JUSTICE ROHINTON FALI NARIMAN, HON’BLE MR. JUSTICE S. RAVINDRA BHAT, HON’BLE MR. JUSTICE V. RAMASUBRAMANIAN
STATUTES/CONSTITUTION INVOLVED	National Green Tribunal Act 2010, National Highways Act
IMPORTANT SECTIONS/ARTICLES	Sec 4, 5, 16 of the National Highways Act Sec 14(1), 16, 18 of the National Green Tribunal Act

ABSTRACT

Motor accidents are an extremely common occurrence in India. They often happen on account of undulations or problems with road work and unsatisfactory construction. The question which comes up over and over, is “who is to be held responsible for these accidents?”. If there was no second party involved, and the cause of the accident was potholes on the road or the road having been washed away in the monsoon; what can the injured or aggrieved party do, except do blame his own stars?

But in fact, there is someone to blame!

The Supreme Court in the case of The Director General (Road Development) National Highways Authority of India Vs. Aam Aadmi Lokmanch addressed the case of an accident caused on account of poor construction of highway roads.

The Apex Court, after great deliberation held that the National Highway Authority of India (NHAI), who is responsible for making highways in India, and is also responsible for maintaining them, owes a duty to the people travelling over them. The Court held the NHAI accountable for their failure in their duty, and thus ordered them to pay a certain sum as compensation to the aggrieved.

INTRODUCTION

Ms. Vishakha Wadekar, was driving her car with her young daughter, Sanskruti Wadekar she had no inkling that danger lurked round the corner of the highway; over-mining near the hill that resulted in the destruction of a small hill by the side of the national highway. The resultant debris and a part of the hill collapsed and slid down to the road, claiming the lives of Ms. Vishakha and her daughter.

This was as the result of illegal mining and activites along the national highway. After this incident, on an application by Aam Aadmi Lok Manch the Pune bench of National Green Tribunal issued several directions in this regard. The Lokmanch president approached the court seeking mandatory injunction to restore natural contours at the foot base of the hill that had been destroyed.

General relief sought to issue directions to other Respondent Authorities to take necessary action for protection of hills from destruction and maintain foot based design of the hills in the natural survey, and surveying the powers of the National Green Tribunal.

Taking note of provisions of the National Green Tribunal, The bench comprising of Justice RF Nariman, S.Ravindra Bhatt, and V.Ramasubramaniam observed that the NGT’s jurisdiction is not restitutionary but a remedial one. It said its powers can also be preventive. NGT is an expert regulatory body and its personnel include technically qualified and experienced members. The bench observed that the earlier judgement passed by NGT that developments and constructions should not be carried out within 100 feet of the lowest slope of any hill within its territorial limits as well as hill-tops was without any rationale and scientific evidence.

BACKGROUND OF THE CASE

Heavy rain fell in the early hours of the morning of June 6 2013, in Mauje Shindewadi Tehsil, Bhor, and the adjacent areas owing to the monsoon. Water flowing from the hills at Mauje Shindewadi rushed near the Pune Municipal Corporation’s octroi post on NH-4 in Mauje Shindewadi Tehsil, Bhor, district Pune. This resulted in a big sheet of water forming an impediment. When Ms. Vishakha Wadekar, was driving her car with her young daughter, Sanskruti Wadekar she had no inkling that danger lurked round the corner of the highway; over-mining at the height of 75 x 30 ft, in Gut No. 112, resulted in the destruction of a small hill by the side of the national highway.

The resultant debris and a part of the hill collapsed and slid down to the road, claiming the lives of Ms. Vishakha and her daughter. The directions made by the Pune bench of the National Green Tribunal, on an application by a registered organization, (the respondent in the appeal, the Aam Aadmi Lokmanch, hereafter “Lokmanch”) are the subject matter of the appeals (CA 6932/2015 by NHAI; CA 5971/2019; CA 11803/2018 and CA 6862/2018) before this court. The other appeals by special leave question the judgments and orders of the Bombay High Court, which upheld the regulations framed pursuant to the order of the NGT. The High Court negatived the challenge to those regulations in the writ petitions presented before it.

FACTS OF THE CASE

The facts that led up to this decision were that on 6^th June, 2013, Vishakha and Sanskruti, were travelling on National Highway-04, when as a result of over-mining, a small hill by the side of the highway was destroyed. The resulting debris and a part of the hill collapsed and slid down to the road, which took the lives of both Mother and Daughter.

After this incident the Pune Bench of the National Green Tribunal, on an application by Aam Aadmi Lokmanch found that the accident was the result of illegal mining and hill destruction near the highway by a certain contractor by the name Rathod. The NGT held the NHAI and Rathod are jointly liable to pay a compensation of 15 lakhs to the next of kin of the deceased. NHAI appealed to the Supreme Court, claiming that it did not have any responsibility for the event, but their plea was rejected by the Apex Court, which upheld the NGT’s order. In doing this the Supreme Court referred to a series of case laws holding that a statutory/public corporation can be held liable for a tortious liability. (Municipal Corporation of Delhi v. Sushila Devi)[1]

National Highways Authority of India (hereafter “NHAI”) had entered into an agreement with M/s P.S. Toll Road (Pvt.) Ltd., a unit/undertaking of Reliance Infrastructure Ltd. (which is arrayed as the ninth respondent; PS Toll Road (Pvt.) Ltd. hereafter referred to as “the concessionaire”) on 10.03.2010 for the maintenance and operation of the Pune- Satara section of National Highway No. 4, to an extent of 140 kms.

The scope of the agreement included construction of the project (i.e. the highway stretch) as well as its operation and maintenance for a period of 24 years. The agreement included stipulations mandating safety to the highway users (clause 18.1.1). The NHAI was duty bound to appoint experienced safety consultants for carrying out safety audits of Project Highways (clause 18.1.2), the expenditure for which was to be borne by the concessionaire (clause 18.1.3).

An elaborate highway monitoring mechanism was also contemplated by the agreement (clause 19.1) through which by the seventh of each month, an independent engineer was to furnish a report after due inspection (of the operation and maintenance arrangements), containing defects or deficiencies (clauses 19.2). Additionally, the independent engineer was to require the concessionaire to carry out specified tests for confirming that the highway was operated in accordance with applicable standards (clause 19.3).

Other stipulations included, inter alia, requirements that the concessionaire had to carry out remedial measures (Clause 19.4.1) within a period of 15 days after receipt of the report of the independent engineer. The concessionaire was put to terms in that if relevant repairs or remedial measures were not undertaken, the NHAI could recover damages in terms of Clause 17.8. Another obligation cast on the concessionaire was to send a periodic report of various occurrences, including “unusual occurrences on the Project Highway” such as death or injury to any person (clause 19.6), any obstruction, or “flooding of Project Highway”.

ISSUES RAISED BEFORE THE COURT

Four issues arise for consideration:

the jurisdiction of the NGT to award compensation

the merits and soundness of the NGT’s decision to award compensation and the legal principles applicable

the NGT’s wide directions with respect to the ban on construction in and around foothills

the vires of the directions/notifications issued under Section 154, MRTP Act.

ARGUMENTS FROM THE APPELLANT SIDE

Learned Counsel for the petitioner, Mr. Narsimha submitted that the appeals had no evidence that NHAI was that it was likely that it was responsible for environmental deterioration, but NGT does not take into account that there was no evidence that he was responsible for deteriorating the environment. I think it was a mistake that was shaking.

The learned counsel for the petitioner was opposed to the fact that the findings of NGT were established, and they also brought a serious error of justice. He emphasized that NHAI had no document to establish that NHAI was sensual or not to avoid predictable disasters.

The learned counsel for the petitioner encouraged that this is described in detail, illegal mining activities were not performed within the rank of law or road. What happened was the act of God, that is, the result of a very intense rain. He brought the floods to the road that was generated for garbage garbage, he acted to prevent the flow of soft water.
The learned counsel for the petitioner further argued that in any case, NHAI cannot be held responsible for the incident that caused the tragedy. Mr. Narasimha also argued that NGT did not return any findings that the construction of this road violated the environmental authorization or permit guaranteed by NHAI in any way. Therefore, the arbitral tribunal’s findings regarding NHAI’s negligence or suspected negligence are against the law. He urged that these conclusions are illogical and unreasonable and should be set aside.

ARGUMENTS FROM THE RESPONDENT SIDE

The learned counsel for the respondent (Lokmanch) defended the NGT order and accused NHAI, franchisees, Rathod and the state government for failing to take appropriate and timely action in the public interest. Allegedly, insufficient channels have been established or maintained along the road to avoid water blockage on the main road.

The learned counsel for the respondent said that some people argued that the existing waterways were very narrow and could not handle large amounts of water. Even these waterways were blocked by construction waste falling on both sides. It should be noted that, according to Article 4 of the National Road Law of 1956 (hereinafter referred to as the “Road Law”), “roads” include its affiliated land, all bridges, culverts, tunnels, traffic lanes and other construction or The above structure. Roads and all fences. , Trees, telephone poles, etc. The responsibility to keep them in good condition is obviously the responsibility of NHAI and the distributors.

Regarding Rathod’s role, lawyer Ms. Shilpa Chohan stated that, in accordance with Article 14 and Article 16 and Article 18 of the NGT Law, when considering and processing claims, NGT acts within its jurisdiction and within its jurisdiction. Lokmanch applied for a mandatory court order to restore the natural contours at the foot of the mountain, especially the mountain destroyed by the private defendant.

The learned counsel for the respondent said that in addition to the investigation report of the magistrate/district official, NGT also commissioned the local tehsildar to report; this report dated September 15, 2014 shows that during the period from 2011 to 2013, the mining of a small amount of minerals Unauthorized destruction of hills under the pretext is very common. This report shows that as many as 62 incidents of hill destruction have been exposed (mostly permitted by the developer). Many of these occurred without any permission or authorization, which is clearly illegal. Ms.
Rathod’s lawyer Chauhan stated in Mantri Technoze Pvt. Ltd. v. Forward Foundation 2019 (18) SCC 494 that NGT can legally issue instructions that are binding on all other statutory bodies. It also relies on Article 33 of the NGT Act, emphasizing that this Act takes precedence over all other Acts. In Hanuman Laxman Aroskar v. Union of India[2].

Maharashtra supported the argument made by Representative Lokmanch. It is worth noting that the jurisdiction for issuing general instructions to protect and protect the environment through restitution orders is found in Article 15 (1) (c) of the NGT Law.

The learned counsel for the petitioner also believed that in the event of a fatal accident, the power and jurisdiction to order compensation are independent and can be invoked in the event of a fatal accident, as shown in Annex II.

The state government further argued that the Mumbai High Court decision is no exception because it correctly understands and supports the exercise of supervisory powers under Section 154 of the MRTP Act. The lawyer urged that the clause was modified in 2015, and without objecting to it, it cannot support the exercise of power after due consideration of the relevant factors.

PROVISIONS RELATED TO THIS CASE

The National Green Tribunal Act, 2010[3] is an Act of the Parliament of India which enables the creation of a special tribunal to handle the expeditious disposal of the cases pertaining to environmental issues. It draws inspiration from India’s constitutional provision of (Constitution of India/Part III) Article 21[4] Protection of life and personal liberty, which assures the citizens of India the right to a healthy environment. Delhi Pollution Control Committee (DPCC) is a department to control pollution in Delhi.

Sections 4[5] and 5[6] of the National Highways Act, 1956 read with Section 16[7] of The National Highways Authority of India Act, 1988, establish the responsibility of the NHAI to maintain the national highways. The Environment (Protection) Act, 1986[8] was also involved vis-a-vis the issue pertaining to the mining area being in excess of 5 hectares, which required an environment clearance, which was not duly obtained.

Had the contractor responsible, obtained the requisite Environmental Clearance, he would have realised the shortcomings in the excavation activity and this would also have had the effect of alerting the authorities.

Section 14(1) read with Section 16 and Section 18 of the National Green Tribunal Act, 2010.

Section 14(1)[9] says that The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.

Section 16[10] describes Tribunal to have appellate jurisdiction.

Any person aggrieved by,-

(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);

(d) an order or decision made, on or after the commencement of the National

Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);

(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);

(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);

(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);

(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);

(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.

Section 18[11] describes application or appeal to Tribunal. –

(1) Each application under sections 14 and 15 or an appeal under section 16 shall, be made to the Tribunal in such form, contain such particulars, and, be accompanied by such documents and such fees as may be prescribed.

(2) Without prejudice to the provisions contained in section 16, an application for grant of relief or compensation or settlement of dispute may be made to the

Tribunal by-

(a) the person, who has sustained the injury; or

(b) the owner of the property to which the damage has been caused; or

the legal representatives of the deceased; or

(d) any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or

(e) any person aggreived, including any representative body or organisation; or

(f) the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 (29 of 1986) or any other law for the time being in force:

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application: Provided further that the person, the owner, the legal representative, agent, representative body or organisation shall not be entitled to make an application for grant of relief or compensation or settlement of dispute if such person, the owner, the legal representative, agent, representative body or organisation have preferred an appeal under section 16.

(3) The application, or as the case may be, the appeal filed before the Tribunal under this Act shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application, or, as the case may be, the appeal, finally within six months from the date of filing of the application, or as the case may be, the appeal, after providing the parties concerned an opportunity to be heard.

JUDGEMENT

The Hon’ble Supreme Court issued a judgment on the correct exercise of jurisdiction by the National Green Court (NGT) based on the nature of the facts of the case and the accident. The court held that the NHAI should compensate the accidents and deaths caused by the failure to prevent illegal mining along the national highway, and ordered the NHAI to pay 1.5 million rupees to the legal representative of the mother and daughter of the deceased as compensation.

The Hon’ble court directed by that NHAI should also pay Rs. 5 million as a joint fine for environmental damage in the vicinity of Katraj due to mountain driving. The amount must be credited to the collector (Pune) within six (6) weeks, otherwise the collector can recover this amount as income from the land owed. Collectors must deposit this money in a special escrow account and it will be used for environmental protection and protection activities, including the protection and protection of the mountains in the area.

The Hon’ble court further stated that the three above defendants will immediately deposit this sum with the Pune Collector’s Office within four (4) weeks to pay the legal representative of the deceased in the incident. The director may print a notice for the legal representative of the aforementioned deceased and, upon confirmation of the identity of the legal representative, pay compensation in the appropriate proportion in accordance with the relevant provisions of the “Succession Law”. NHAI should also deposit a certain amount of rupees. 1 million trees planted with the collector’s office to restore damage to the environment, although this may not be an adequate remedy.

In the event of an emergency or for public purposes, the Hon’ble court said that the relevant collector / commissioner’s office may carry out mountain felling by reasonable order or in accordance with the Environmental (Protection) Act 1986 and its legal requirements. “Rathod, NHAI and three other appellants (Patel India Pvt Ltd, Fern Constructions (India) Ltd and DB Realty Ltd.) tend to appeal against the appealed order of NGT; their dissatisfaction stems from the question of the defendant’s order General Instructions , involving buildings near hills.

The Hon’ble court added that NGT has the right to issue general instructions for future guidance to prevent damage to the environment.

CONCLUSION

This decision of the Supreme Court was long standing and is very welcome in the current scenario where approximately 1.35 million people die in road accidents each year. In accidents with involvement of another party, the next of kin of deceased or the aggrieved themselves, have someone to blame, and claim compensation from. However, even this much solace is often not available in road accidents occurring on account of deficient construction. These incidents are often attributable to parties who are not physically present at the scene of the event, but who could have prevented its occurrence, in one way or another, by acts or omissions. In this case, the Supreme Court has taken the protection to victims of road accidents up a notch, by recognising the culpability of the NHAI and the Contractor.

The NHAI has been long evading its responsibility qua road accident victims. However, the Apex Court has put an end to this saga, by pointing out in express terms, the statutory duty of care, that the NHAI owes, to anyone who travels using the National Highways. In the present case, the NHAI allowed the said mining activity, and was aware of all its facts and figures, but did nothing to prevent it’s ill-effects. As a result of which, it owes a level of responsibility to the next of kin of Vishakha and Sanskruti. Since the Contractor was responsible for conducting the mining activity which resulted in the accident, without getting proper permission, he was in contravention of the law and thus, he also owed a level of responsibility.

The Supreme Court also held the NGT was well within its jurisdiction in passing such a direction, thereby once again highlighting the importance of the NGT and its role in such activities.

The Apex Court has truly given justice to the next of kin of the deceased persons in this case and has once again shown, by this pathbreaking judgement, that corporate bodies are not outside the ambit of tortious claims. This case holds a candle to our justice system, truly reflecting what justice looks like, and that even in these uncertain times the Courts still look after its citizens.