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2008 DIGILAW 609 (KAR)

B. Krishna Bhat v. Union of India

2008-10-20

P.D.DINAKARAN, V.G.SABHAHIT

body2008
Judgment :- (Writ petition filed under Articles 226 & 227 of the Constitution of India praying to direct R.1 to R.3 to attend the repairs of National Highway No.48 between Sakaleshapura and Uppinangadi Districts of Hassan and South Canara, in the State of Karnataka.) P.D. Dinakaran, C.J. 1) In Writ petition No.3846/2007, the petitioner has prayed for a writ of mandamus directing the respondents No.1 to 3 i.e., Union of India, Ministry of Road Transport & Highway, Government of Karnataka, P.W.D. and National Highway Authority of India to attend the repair work of National Highway No.48 (N.H.48) between Sakaleshapura and Uppinangadi. 2) In Writ petition No. 16805/2007 the petitioner has prayed for –i) a writ of mandamus directing the respondents No.1 to 4 to carry out the repair and maintenance work of N.H. 48 particularly between Sakaleshapura and B.C. Road within a fixed time period of 31.3.2008 by concreting the Ghat Section, ii) to constitute an Expert Committee consisting of specialists from Indian Institute of Science, Bangalore, qualified Civil Engineers and Legal Lumanaries so as to monitor the repairing work and to give suggestions to the NHAI to implement the above said work in a proper manner in a full swing, and iii) to issue direction to the State and Central Governments not to collect motor vehicle tax or any other fees from the above said road users till the repair work is fully completed. 3) The common grievance in these Public Interest Litigations is that the road connecting Sakaleshapur with Uppinangadi for about 40 kilometers passing through Shiradi Ghat sector of the Western Ghats has become unfit for travelling and therefore the State Transport Undertaking, realizing the damage to its vehicles by plying on this route, has switched over to a circuitous route passing through Mercara in Kodagu District. Similarly, the road connecting Surathkal with Kundapur was equally bad; but the same has now been made motorable. According to the petitioners, due to continuous flow of traffic, the condition of the road is worsening day by day; and as a result, the public at large is put to irreparable loss and hardship. It is emphasized that the respondents having collected road tax under the provisions of the Karnataka Motor Vehicles Taxation Act, is under a statutory obligation to maintain the roads in a motorable condition. It is emphasized that the respondents having collected road tax under the provisions of the Karnataka Motor Vehicles Taxation Act, is under a statutory obligation to maintain the roads in a motorable condition. 4.1) According to the respondents, they have sanctioned three works for the improvements and repair of the stretch of National Highway No.48 in Shiradi Ghat Section as follows:- TABLE 4.2) These works are entrusted to different agencies on tender basis and the contractors have been given certain period for completion of the stretch depending upon the quantum of work and location of the site. The terms of agreement provide that the tendered contractors should carry out the work as per the programme and complete the work within the time stipulated under the respective agreements. The respondents have also requested the contractors to expedite the contract work. 4.3) The admitted case of the respondents is that NH 48 in Shiradi Ghat Section is a two-lane highway and as per the National Highway Act, 1956 it is the responsibility of the Central Government to develop and maintain the National Highways. But, as the stretch in question has not been handed over to NHAI so far, the same is still vested with the National Highway Department of the State. However, since the Karnataka State does not have exclusive set up to take care of the National Highway, its development, maintenance and overseeing job of the National Highway has been assigned to a separate wing of the PWD known as National Highway Zone, Karnataka Circle. Thus, National Highway Zone, Karnataka Circle, consisting of the Engineers from the PWD of the State Governments, act as an agent of the first respondent to maintain the Highways in Karnataka. 4.4) The common case of the respondents is that the repair works of the concerned sketch of NH 48 has been taken up by the respondent-3- NHAI and had also been completed substantially as evident from the Notification issued by the Executive Engineer, National Highway Division, Mangalore, a Division of the Government of Karnataka, the second respondent herein, vide letter dated 12.6.2008, declaring opening of the road to traffic. 4.5.) According to the learned Standing counsel appearing for the first respondent – Central Government, based on the recommendations of the second respondent – State Government authorties, substantial contract amount has already been disbursed to the contractors. 4.5.) According to the learned Standing counsel appearing for the first respondent – Central Government, based on the recommendations of the second respondent – State Government authorties, substantial contract amount has already been disbursed to the contractors. Both the learned counsel appearing for the Central and the State Governments in clear terms fairly concede that the condition of the road in question is absolutely bad, which warranted the petitioners to move this court for the reliefs mentioned above. 4.6) It is also contended on behalf of the respondents that the maximum safe laden weight for single axle is 9.0 tonnes, for twin axle with rear axle dual tyres it is 16.20 tonnes and for multi axle vehicle, it is 26.40 tonnes. However, most of the multiple axle vehicles are loaded with iron ore exceeding 45 to 50 tonnes, which is almost double the prescribed maximum safe laden weight, which move on the impugened road. Citing the above as a reason, the respondents fairly concede that the impugned portion of NH-48 is again damaged and is in deteriorating condition. 5) We have given our careful consideration to the submission of all the parties. 6.1) It is settled law that the tax imposed towards road tax is compensatory in nature (Vide AIR 1962 SC 1406 – Automobile Transport (Rajasthan) Ltd Vs. State of Rajasthan). 6.2) In the case of Malwa Bus Service Pvt. Vs. State of Punjab reported in AIR 1983 SC 634 , the Supreme Court held as follows:- “The tax is levied keeping in mind, the expenditure incurred by the State Government on formation of roads and bridges and the cost of maintenance of the roads, within the jurisdiction of the local Bodies, Municipalities, Corporations, and the Government. Therefore, a duty is cast on the Court to find out the truth and the substance as to whether the tax levied is really utilized for the purpose for which it is meant”. 7) The public at large and particularly the vehicle operators, have a legitimate right to seek appropriate directions to the concerned authorities to upkeep and maintain the public roads or the highways in a fit and motorable condition. But, unfortunately, in the instant case, both the Central as well as the State Governments themselves have conceded before this Court that the portion of N.H.48 still continues to be in a damaged condition and is in a deteriorating state. But, unfortunately, in the instant case, both the Central as well as the State Governments themselves have conceded before this Court that the portion of N.H.48 still continues to be in a damaged condition and is in a deteriorating state. In spite of it, it is shocking to note that the State Government officials have certified to the Central Government that Substantial work has been completed; and based on the said certification, substantial amount has already been released and disbursed by the Central Government to the contractors. 8) Of course, the respondents have put forth a plea that on account of heavy movement of overloaded trucks carrying iron-ore and due to heavy volumes of traffic passing through this stretch of the highway, the highway is damaged and deteriorated and the uncontrolled traffic on the road has also worsened the condition of the road. This argument, in our view, cannot be accepted for more than one reason as it is for the competent authority to regulate the movement of the traffic passing through the highway. Firstly, there is nothing on record to show that the competent authority have taken any steps to regulate the traffic passing through his stretch of NH 48 which is the subject matter of this writ. Secondly, the respondents themselves admit that on account of movement of heavy traffic, the highway in question was damaged which necessitated the highway authorities and the Government to sanction substantial amount for restoration of the highway. If that be so, it is incumbent upon the respondents to design the road in such a way that it could withstand the movement of heavy-laden vehicles. Nonetheless, the fact remains that despite releasing huge public funds, the impugned stretch of highway is still found severely damaged and deteriorated. 9) We are, therefore, constrained to decide that when huge public funds has been spent unjustly, is there not any need for an enquiry by an independent agency? Nonetheless, the fact remains that despite releasing huge public funds, the impugned stretch of highway is still found severely damaged and deteriorated. 9) We are, therefore, constrained to decide that when huge public funds has been spent unjustly, is there not any need for an enquiry by an independent agency? 10) The Apex Court in the case of State of Bihar and Another vs. Ranchi Zila Samta Party and Another (1996)3 SCC 682 in clear terms has upheld the power of the High Court under Article 226, even without the consent of the State, to order CBI investigation in a case where it is of the opinion that there exists a prima facie case of corruption in public administration, misconduct by the bureaucracy, fabrication of official documents/records and misappropriation of public funds by an independent agency that would command public confidence. In the above case, the Supreme Court held as follows: “7. The only question then is whether this is a fit case for our interference under Article 136 of the Constitution? The exercise of this power under Article 226 of the Constitution in a public interest litigation was not to give any advantage to a political party or group of people, as apprehended by the counsel for the appellants. It was also not to cast a slur on the State police. It was done to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds by an independent agency that would command public confidence. We are, therefore, of the opinion that the direction given by the High Court appears to be just and proper and calls for no real interference”. 10.2) In the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. And Others Vs. Sahngoo Ram Arya And Another – (2002)5 SCC 521 – the Apex Court while dealing with the question as to when can High Court direct inquiry by CBI, held: “5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is need for the High Court on consideration of such pleading to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI”. 11.1) In the instant case, we are convinced that there exists a prima facie case to direct inquiry by the C.B.I. on the following aspects and to take appropriate action against: i) the officers who have failed to supervise the execution of work; ii) the Officers who failed to regulate the traffic; iii) the Officers who have certified the completion of work; iv) the Officers who have sanctioned and disbursed the amount unjustly; v) the lapses committed by the Contractor/s in executing the contracts as per the agreement/s. and; vi) the violations of the guidelines issued by the Central Vigilance Commission in implementing the Government/public contracts. 11.2) Further, both the learned counsel for the Central Government as well as the State have also agreed to refer the matter for CBI investigation. 12.1) We therefore direct the CBI and the Central Vigilance Commission to inquire into the matters as directed above, with the assistance of the Technical Experts viz., the Indian Institute of Science, Bangalore; of course, after giving notice to the respective parties/contractors of hearing them and to proceed in accordance with law, within thirty days from the date of receipt of the order. 12.2) The Central Vigilance Commission shall take appropriate action against all the erring officers, both departmentally and criminally, strictly in accordance with law. 12.3) In the meanwhile, the State Government shall initiate action to award works to repair and maintain the impugned road, within 30 days from the date of receipt of the report and thereafter the Contractor/s should complete the work as expeditiously as possible in any event within three months from the date of award of contract, keeping in view, the heavy vehicles that ply on the impugned road. The above writ petitions are ordered accordingly.