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2017 DIGILAW 453 (ALL)

ARVIND KUMAR v. STATE OF U. P.

2017-02-08

SANGEETA CHANDRA, V.K.SHUKLA

body2017
JUDGMENT Hon’ble V.K. Shukla, J.—Arvind Kumar s/o Baljeet Singh is before this Court assailing the validity of the order dated 23.1.2017 passed by the District Magistrate, Meerut, requisitioning the vehicle of petitioner being XUV 500 of Mahindra & Mahindra Ltd. having registration No. UP-15 BA 1972 for being used in Legislative Assembly elections. 2. On presentation of present writ petition, petitioner has been submitting before this Court that he is a practising advocate at District Court Meerut and he is owner of the vehicle being XUV 500 of Mahindra & Mahindra Ltd. having registration No. UP-15 BA 1972 and District Magistrate, Meerut, on 23.1.2017, has proceeded to pass an order requisitioning the aforementioned vehicle and in the said direction has asked the petitioner to surrender the possession and control of the said vehicle on 7.2.2017 at 10.00 AM at Kailsah Prakash Stadium, Meerut in purported exercise of authority conferred under Section 160 of the Representation of People Act, 1951 (hereinafter referred to as “1951 Act”). Petitioner submits that Section 160 of 1951 Act does not authorize the District Magistrate to requisition private vehicle in question and, in view of this, entire proceedings, that have been so undertaken, are totally without jurisdiction and complete transgression and overstepping of the authority conferred under Section 160 of 1951 Act and coupled with this in case such an action is permitted to stand, it proceeds to violate the provisions of Motor Vehicle Act, 1988. 3. On these arguments, so advanced, we proceeded to ask the learned Standing Counsel to obtain instructions in the matter on these aspect of matter and on the matter being taken up today requisite instructions in question has been obtained and forwarded to this Court wherein stand has been taken to the effect that Section 160 (1) (b) of 1951 Act empowers the District Magistrate to requisition vehicles for transporting police force for maintaining the law and order and officers engaged in conducting of polls during the General Elections of Legislative Assembly and Section 161 (2) of 1951 Act obligates for payment of compensation as determined by the Chief Election Officer, U.P. at Lucknow to all the requisitioned vehicles. Mention has also been made that elections in all districts of Meerut Commissionary have been fixed on 11.2.2017 and as far as Government resources are concerned, same is in dearth whereas the total requirement of light vehicle is 843 and total available Government vehicles are 110 and thus keeping in view the shortfall of 737 light vehicles requisition exercise has been undertaken. For executing the said exercise, details have been mentioned that at the first instance the Government vehicles have been requisitioned; at the second instance commercial vehicles; at the third instance private vehicles used for commercial purpose and at last private vehicles used for personal purpose are being requisitioned and as far as petitioner’s claim is concerned it is falling in last category, as enumerated. Mention has also been made that vehicles that are without driver are being relieved and on specific requests made by the vehicle owners for exemption, requests are being considered by the Additional District Magistrate (F&R) and, in this background, it has been sought to be contended that in case petitioner has any personal inconvenience he can ask/request the authority concern for release of his vehicle and his request would be considered in correct perspective. 4. Based on the instructions, that have been so received, we have proceeded to consider the matter for final disposal. 5. Sri Pavan Kishore, Advocate, appearing with Sri Piyush Srivastava, Advocate, has contended before us that Section 160 of 1951 Act does not authorize the District Magistrate to requisition the private vehicle, as such, entire proceedings are totally misuse of authority and totally transgressing and overstepping of jurisdiction and in case such an action is permitted to stand it will have an effect and impact of flouting the provisions of Motor Vehicle Act 1988. 6. 6. Learned Standing Counsel, on the other hand, has contended that action of the District Magistrate, in the present case, is fully backed by the provisions as are contained under Section 160 of 1951 Act and, in the present case, looking into the provisions of 1951 Act and looking into the fact that holding of elections are a sovereign function and Election Commission has been authorized under the Constitution of India as also 1951 Act to discharge the said function, in view of this, no interference be made by this Court, inasmuch as, any interference of this Court with all such administrative exercise would tantamount to interfering in holding of peaceful elections. Before we proceed to consider the arguments, so advanced, we have proceeded to take note of the judgment and order of this Court passed in Writ-C No. 41047 of 2016 (Shakuntalam Shiksha Sansthan v. Election Commission of India and another) wherein in reference of Section 160 of 1951 Act, this Court has proceeded to make a mention that holding of election is a sovereign function and the Election Commission having regard to the provisions contained in Constitution of India as also the 1951 Act is required to conduct elections for the purposes of upholding democracy and democracy being a basic feature of the Constitution of India, it is obligatory on the part of Election Commission to ensure that citizens, who are entitled to vote are not deprived of their right and those, who are not entitled thereto, are not permitted to do so. Full mechanism is provided for conducting free and fair election in the 1951 Act and so far as the requisition of premises and vehicles is concerned, same is provided in Section 160 of the 1951 Act. Section 160 of the 1951 Act provides for as follows : “160. Full mechanism is provided for conducting free and fair election in the 1951 Act and so far as the requisition of premises and vehicles is concerned, same is provided in Section 160 of the 1951 Act. Section 160 of the 1951 Act provides for as follows : “160. Requisitioning of premises, vehicles, etc., for election purposes.—(1) If it appears to the State Government that in connection with an election held within the State- (a) any premises are needed or are likely to be needed for the purpose of being used as a polling station or for the storage of ballot boxes after a poll has been taken, or (b) any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election, that Government may by order in writing requisition such premises, or such vehicle, vessel or animal, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning: Provided that no vehicle, vessel or animal which is being lawfully used by a candidate or his agent for any purpose connected with the election of such candidate shall be requisitioned under this sub-section until the completion of the poll at such election. (2) The requisition shall be effected by an order in writing addressed to the person deemed by the State Government to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed. (3) Whenever any property is requisitioned under sub-section (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-section. (4) In this section- (a) “premises” means any land, building or part of a building and includes a hut, shed or other structure or any part thereof; (b) “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise.” 7. (4) In this section- (a) “premises” means any land, building or part of a building and includes a hut, shed or other structure or any part thereof; (b) “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise.” 7. A bare perusal of the provisions, that have been quoted above, would go to show that the State Government has been authorized to exercise authority of requisition of premises and vehicles for election purposes and in case such vehicles or premises are required to be requisitioned, then such an order has to be passed in writing mentioning therein that such vehicles or premises is/are required. 8. Sheet anchor of the petitioner’s argument is that vehicle in question is a private vehicle and same cannot be requisitioned and for this purpose much reliance has been placed on Clause (b) of Sub-section 4 of Section 160 of 1951 Act wherein ‘vehicle’ has been defined as any vehicle used or capable of being used for the purpose of road transport. 9. Under Clause (b) of sub-section 4 of Section 160 of 1951 Act the vehicle in question has been defined as any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise. Road transport means transportation of goods and personnel from one place to another on roads. Definition of vehicle is very very wide as it embraces in itself any vehicle that is used and even capable of being used for the purpose of road transport in the context of being requisitioned. Private vehicles are not at all excluded in the definition of vehicle as even private vehicles are used and is capable of being used for the purpose of road transport. Vehicles used on personal basis is, accordingly, included under the aforementioned provision and same cannot be excluded, as has been sought to be suggested by the petitioner. Moreover, exemption of private vehicle is fully reflected under the proviso that is there under Section 160 of 1951 Act that clearly proceeds to grant exemption to only those category of vehicles that are being used by a candidate or his agent for any purpose connected with the election. Moreover, exemption of private vehicle is fully reflected under the proviso that is there under Section 160 of 1951 Act that clearly proceeds to grant exemption to only those category of vehicles that are being used by a candidate or his agent for any purpose connected with the election. Thus only those private vehicle are exempted from being requisitioned where same is being used by a candidate or his agent for any purpose connected with the election and in other contingencies any other private vehicles that are required to be requisitioned, in the wisdom of the State Government can be requisitioned by the competent authority, in view of this, the argument advanced on behalf of petitioner that the State Government has no authority to requisition private vehicle cannot be subscribed by us for the simple reason that the said private vehicles are requisitioned so that in the process of election the officers associated therein are transported properly, as such, there is no dearth of the authority under Section 160 of 1951 Act to requisition private vehicle. 10. Learned counsel for the petitioner has placed reliance on a Single Bench judgment of the Calcutta High Court in the case of Anirban Ghosh v. District Election Officer, 2006 (2) WbLR 519 , wherein view has been taken to the effect that under Section 160 of 1951 Act there is no authority to requisition private vehicle. 11. With all due respect to the learned Single Judge of Calcutta High Court, we do not subscribe to the said view for the simple reason that the specific definition of vehicle that has been provided under Clause (b) of Sub-section 4 of Section 160 of 1951 Act read alongwith proviso provided in Sub-section (1) of 1960 Act has not at all been dealt with in its correct perspective whereas under the scheme of things provided for, in the direction of facilitating the holding of elections, even private vehicle can be requisitioned and the only exception is that vehicle of candidate and his agent contesting the election stands exempted from being requisitioned. 12. Now we would proceed to consider the arguments advanced that such an exercise of requisition of private vehicle has the effect/impact of offending the provisions of Motor Vehicle Act, 1988. Under the Motor Vehicles Act there is provision for a private service vehicle defined under Section 2(33) of the Motor Vehicles Act, 1988. 12. Now we would proceed to consider the arguments advanced that such an exercise of requisition of private vehicle has the effect/impact of offending the provisions of Motor Vehicle Act, 1988. Under the Motor Vehicles Act there is provision for a private service vehicle defined under Section 2(33) of the Motor Vehicles Act, 1988. There is provision for public service vehicle defined under Section 2(35) of the aforesaid Act and there is provision for transport vehicle defined under Section 2(47) of the aforesaid Act. It would be convenient to set out Sections 2(33), 2(35) and 2(47) which are as follows: “2(33). “Private service vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes; 2(35) “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a taxicab, a motorcab, contract carriage, and stage carriage; 2(47) “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;.” 13. Section 66 of the aforesaid Act imposes complete ban upon use of a vehicle as a transport vehicle in public place except in accordance with the conditions of a permit granted for that purpose. This section insofar as the same is material for our purpose reads as follows: “Necessity of permits.—(1) No owner of a motor vehicle shall use or permit the use of the vehicles as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used.” 14. There is however an exemption for a transport vehicle under Section 66 (3) (f) and (n) of the aforesaid Act for public purposes or such other purpose as the Central or State Government may, by order, specify. But the exemption will apply only to a transport vehicle. 15. There is however an exemption for a transport vehicle under Section 66 (3) (f) and (n) of the aforesaid Act for public purposes or such other purpose as the Central or State Government may, by order, specify. But the exemption will apply only to a transport vehicle. 15. Based on interpretation of aforementioned statutory provisions, that have been extracted from the judgment in the case of Anirban Ghosh (supra), mention has been made that a motorcar or an omnibus meant for personal use of the owner, cannot be legally be used for hire award. Such opinion formed is running counter to the opinion expressed by the Apex Court in the case of National Insurance Company Ltd. v. Deepa Devi and others, 2008 (1) SCC 414 , wherein the Apex Court has proceeded to take note of the effect of requisition of private vehicle when the same has met with an accident by observing as follows; “10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration a situation of this nature. No doubt, Respondent Nos. 3 and 4 continued to be the registered owner of the vehicle despite the fact that the same was requisitioned by the District Magistrate in exercise of its power conferred upon it under the Representation of People Act. A vehicle is requisitioned by a statutory authority, pursuant to the provisions contained in a statute. The owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise any control thereover. The driver may still be the employee of the owner of the vehicle but he has to drive it as per the direction of the officer of the State, who is put in-charge thereof. Save and except for legal ownership, for all intent and purport, the registered owner of the vehicle loses entire control thereover. He has no say as to whether the vehicle should be driven at a given point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. He cannot ask the driver not to drive a vehicle on a bad road. He or the driver could not possibly say that the vehicle would not be driven in the night. The purpose of requisition is to use the vehicle. For the period the vehicle remains under the control of the State and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court must proceed on the presumption that the Parliament while enacting the 1988 Act did not envisage such a situation. If in a given situation, the statutory definitions contained in the 1988 Act cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view. 11. ......... 12. ......... 13. It is not a case where the car was handed over to a person with consent of the owner thereof. When a vehicle is requisitioned, the owner of the vehicle has no other alternative but to handover the possession to statutory authority.” Under the scheme of 1951 Act, when a vehicle is requisitioned, the owner of the vehicle has no other option but to handover the possession to the statutory authority. Even under the provisions of Motor Vehicle Act, there appears to be no such prohibition to the requisition of private vehicle. Section 2 (33) that defines ‘Private Service Vehicle’, as noted above, proceeds by providing that motor vehicle adapted to carry more than six persons excluding the driver and ordinarily used on or on behalf of the owner of such vehicle for the purpose of carrying persons, for on in connection with his trade or business otherwise than for hire or reward. Private vehicles thus ordinarily being used for the purpose of carrying persons or in connection with his trade or business without hire or reward are ‘Private Service Vehicles’ under Motor Vehicle Act. The expression ordinarily means normally and it is used when there can be exception. It means in the large majority of cases but not invariably. “Ordinarily” excludes “extra-ordinary” or “special circumstances”. When in common parlance the word “ordinarily” is used, there may be option as it is never used in reference to case where there is no exception. It never means primarily. It means in the large majority of cases but not invariably. “Ordinarily” excludes “extra-ordinary” or “special circumstances”. When in common parlance the word “ordinarily” is used, there may be option as it is never used in reference to case where there is no exception. It never means primarily. Such an opinion stands expressed by the Apex Court in reference of use of word “ordinarily” in the case of Kailash Chandra v. Union of India, 1961 AIR 1346; Eicher Tractors Ltd. Haryana v. Commissioner of Customs, Mumbai, AIR 2001 SC 196 , as well as in the case of State of A.P. v. Sarma Rao, AIR 2001 SC 137 . Giving natural and contextual colour to the word “ordinarily” under Motor Vehicle Act use of the vehicle most of the time; generally or usually by the owner otherwise than for hire or award has to be accepted as private service vehicle. Transport vehicle defined under Section 2 (47) of Motor Vehicle Act includes within its fold private service vehicle. A private vehicle requisitioned by the State Government under Section 160 of 1951 Act will not at all loose its character of being “Private Service Vehicle” as exercise of requisition is merely a temporary deprivation of right of owner of vehicle to use the vehicle and in lieu of the same compensation is awarded to him. Requisition is an exception being occasional on account of special circumstances. Transport vehicles under certain contingencies are exempted from the rigors of Section 66 of Motor Vehicle Act as under Section 66 (3) (f) and (n) of Motor Vehicle Act for public purpose or such other purpose as the Central Government or State Government may specify exemption is there. Holding of election undoubtedly is a public purpose and in the said direction as requisition of private vehicle is for a special circumstances, accordingly, private vehicles are exempted from obtaining permit and to even remotely suggest that while requisitioning private vehicle any of the provisions of Mother Vehicle Act has been breached cannot be accepted by us. 16. Holding of election undoubtedly is a public purpose and in the said direction as requisition of private vehicle is for a special circumstances, accordingly, private vehicles are exempted from obtaining permit and to even remotely suggest that while requisitioning private vehicle any of the provisions of Mother Vehicle Act has been breached cannot be accepted by us. 16. In view of this, looking into the nature and object of the Motor Vehicle Act and looking into the nature of 1951 Act there is no conflict or repugnancy inter-se both the statutory provisions and both are holding the field in their respective domains, as such, in our considered opinion there is no dearth of authority in requisitioning of the private vehicle and the challenge made on the said score is, accordingly, turned down. At last petitioner’s counsel has tried to contend before this Court that on account of the order impugned large scale personal inconvenience would be caused to him. 17. As per the instructions, that have been so received, it has been clearly mentioned therein that in case any incumbent intends to get exemption and in case there are vehicles with no driver, exemption request would be considered by the Additional District Magistrate (F&R), accordingly, we proceed to give liberty to the petitioner to represent his claim before the District Magistrate/or any competent authority authorized by the District Magistrate, alongwith certified copy of this order and we hope and trust that on the said application appropriate orders be passed within 24 hours from the date of receipt of the same, in accordance with law. With these observations, writ petition is disposed of.