NHAI Officials Not Protected By 'Good Faith' Clause U/S 28 If Accident Result Of Failure To Maintain Roads/ Close Ditches: MP High Court

In criminal proceedings initiated by an accident victim who fell into a ditch on NH-7 at Seoni, the Madhya Pradesh High Court observed that the National Highway Authority of India (NHAI) or its officials haven't prima facie acted in 'good faith' to maintain the highway.The single-judge bench of Justice Gurpal Singh Ahluwalia added that maintaining the highway means NHAI taking adequate steps to keep the highway in a motorable condition. The court explained that NHAI is responsible for taking remedial measures if it finds a certain highway as not motorable or unsafe. Before the High Court, NHAI (applicant) took the stance that they were protected from criminal prosecution by Section 28 of the National Highways Authority of India Act, 1988 since all of their actions were done in 'good faith'.“…If the Highway was damaged and was not motorable and still if the applicants did not take any step to maintain the same or did not take any step to close the Highway or such part thereof or did not take any step to regulate the traffic by restricting the number and speed of vehicles, then this Court is of considered opinion that prima facie it cannot be said that applicants had acted in a good faith”, the court inferred.In such cases where there might be perils to the vehicular traffic or pedestrians due to damage, NHAI could close the Highway in entirety or part, regulate traffic movement and class of vehicles, or regulate the number and speed of vehicles along the Highway, the court clarified by referring to Sections 31, 33 and 34 of the Control of National Highways (Land and Traffic) Act, 2002 which accords the authority with such powers. The court highlighted that the applicant authority and its officials haven't taken the stand that ditches on the road were closed or the road traffic was regulated as per Section 31 of the 2002 Act. Whether the officials acted in 'good faith' or not remains a question of fact, the court concluded.While directing the trial court to dispose of the case within one year, the court also gave the following caveat regarding its own order:“…the aforesaid finding shall remain confined to these proceedings only because whether a person had acted in a good faith or not will necessarily be a question of fact also, which can be decided by the trial Court after recording evidence…”The applicants are required to appear before the trial court on 31.07.2024. BackgroundThe applicants, including NHAI, its project director, and the technical manager, sought the quashing of FIR registered against them for offences under Sections 431, 283, 290, 336, and 427 of the IPC.The complainant, Ashok Kumar Tiwari, was a resident of Dhooma village in Seoni District. On the day of the incident in 2013, he was returning home from work when his motorcycle allegedly fell into a ditch on NH-7. He sustained injuries on his limbs and accused the NHAI officials of not properly maintaining NH-7. The complainant contends that he would have lost his life if he were not riding his motorcycle carefully at the time of the accident. According to Tiwari, the national highway had been in a dilapidated condition for years without any levelling being done on the road surface. Police had already completed the investigation and filed the chargesheet in the matter. In 2014, the High Court gave an interim order in the current application to stay the criminal proceedings before JMFC, Lakhnadon. The criminal case has remained as stayed before the trial court ever since for nearly 11 years. Further ObservationsSection 28(2) states that no legal proceedings can be initiated against NHAI, its officers or its employees for any damage caused by anything that is done in good faith. The applicants also relied on Iqbal Mohammed Siddhiqui and Others v. State of Madhya Pradesh & Ors. [M.Cr.C. No.4197/2014] which supported their contentions.However, the court went on to differentiate the decision rendered by a coordinate bench of the High Court and relied upon by the applicants. The single bench observed that Siddhiqui (2014) accepted the defence of 'action taken in good faith'. Be that as it may, the court noted as below:“…However, the facts of the case were not considered in detail and there is no finding as to whether the action of the officers was done in good faith or not? Therefore, this Court is of considered opinion that applicants would not get any benefit of the order passed …in Iqbal Mohammed Siddiqui”.To take the defence under Section 28, the applicants should prove that they had taken 'due care and attention' before performing a particular act, the court noted since the factum of the accident on NH-7 was not disputed.Section 5 of NHAI Ac talks about the responsibility of the central government to develop and maintain national highways unless delegated to the state government. Similarly, Section 16 lays down the functions of NHAI, including the maintenance and management of highways entrusted to it by the central government. “…it is the...

NHAI Officials Not Protected By 'Good Faith' Clause U/S 28 If Accident Result Of Failure To Maintain Roads/ Close Ditches: MP High Court

Sebin James

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