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2019 DIGILAW 95 (GAU)

Hira Bharali v. State of Assam

2019-01-24

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. S. Kataki, learned counsel for the petitioner; Mr. D. Baruah, learned Standing Counsel, Election Commission of India for respondent Nos. 1 and 2; and Mr. R. Dhar, learned Government Advocate, Assam for respondent No. 3. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to respondent No. 2 i.e., Deputy Commissioner, Nagaon to determine and assess the compensation/repairing cost for material damages caused to the vehicle of the petitioner bearing registration No.AS-02/2791 during requisition and thereafter to pay the same to the petitioner. Further prayer made is for direction to the said respondent to determine and assess the requisition compensation of the aforesaid vehicle from the date of requisition till the date of payment of compensation for material damage of the vehicle. 3. Case of the petitioner is that he is the registered owner of a bus, bearing registration No. AS-02/2791. He was plying the said vehicle for carrying passengers after obtaining stage carriage permit from the competent authority. The aforesaid vehicle was requisitioned by respondent No. 2 on 1.4.2011 for performing election duty in connection with the Assembly Election, 2011. After requisitioning the vehicle, the same was sent to Karimganj on 1.4.2011 itself for transporting Assam Police personnel. While passing through Nongpoh in the State of Meghalaya on way to Karimganj, the vehicle met with an accident and sustained major damage. After the accident, the vehicle was lying in an abandoned condition at Nongpoh at the accident site till June, 2011 whereafter the said vehicle was brought to the Sonapur Police Station, Sonapur in the district of Kamrup (M) where the vehicle is parked. 4. According to the petitioner, he had requested the Deputy Commissioner, Nagaon to do the needful for repairing the vehicle and thereafter to derequisition the vehicle. But no such steps were taken by the Deputy Commissioner, Nagaon i.e., respondent No. 2. It is in such circumstances that the petitioner filed the present writ petition on 19.03.2012 seeking the reliefs as indicated above. 5. This Court by order dated 23.3.2012 had issued notice. By a subsequent order dated 4.1.2018 the writ petition was formally admitted for hearing. 6. It is in such circumstances that the petitioner filed the present writ petition on 19.03.2012 seeking the reliefs as indicated above. 5. This Court by order dated 23.3.2012 had issued notice. By a subsequent order dated 4.1.2018 the writ petition was formally admitted for hearing. 6. Respondent No. 2 in his affidavit has taken the stand that the vehicle (big bus) of the petitioner was taken on hire by the Superintendent of Police, Nagaon on 1.4.2011 for the purpose of force movement from Karimganj to Nagaon in connection with the Assembly Election, 2011. As per report, the vehicle met with an accident on the way at a place called Paham Piae under Nongpoh Police Station in the State of Meghalaya which has reference to Nongpoh Police Station GD Entry No. 10, dated 01.04.2011. Subsequently, the vehicle was brought back by the police authorities to Assam and kept at the Sonapur Police Station in the district of Kamrup (M). Police authorities had informed the petitioner to resolve the matter and to receive back the vehicle but the petitioner did not respond and did not receive back the vehicle in spite of several WT messages dated 20.06.2011, 03.09.2011 and 06.09.2011. It is contended that in spite of such intimation, petitioner did not come forward either to receive back the vehicle or to make any claim. It is further stated that there is nothing on record to indicate that such prayers for repairing of the vehicle was made time and again to the Deputy Commissioner, Nagaon. It is stated that the vehicle was taken on hire on the basis of Election Commission's direction dated 09.02.2011 and Government notification dated 13.04.2009; as per which onus of repairing of the vehicle would lie on the owner of the vehicle through proper insurance coverage. 7. Mr. S. Kataki, learned counsel for the petitioner submits that the electoral authority or the Deputy Commissioner cannot shirk their responsibilities from paying adequate compensation for the material damage caused to the requisitioned vehicle belonging to the petitioner. Petitioner cannot be left high and dry. Referring to the stand taken by respondent No. 2 in the affidavit that such damage will have to be recovered through insurance claim, Mr. Kataki submits that insurance cover of petitioner's vehicle was against third party rights and liabilities and compensation for material damage of the vehicle under requisition would not be covered by insurance claim. Referring to the stand taken by respondent No. 2 in the affidavit that such damage will have to be recovered through insurance claim, Mr. Kataki submits that insurance cover of petitioner's vehicle was against third party rights and liabilities and compensation for material damage of the vehicle under requisition would not be covered by insurance claim. In this connection, learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Deepa Devi, reported in (2008) 1 SCC 414 . He submits that necessary direction may be issued to the respondents either to repair the damaged vehicle of the petitioner or to pay compensation for such material damage and thereafter to pay requisition compensation. 8. On the other hand, Mr. Baruah, learned Standing Counsel, Election Commission of India submits that repeated WT messages were sent by the police authorities of Nagaon to the petitioner to contact them for resolving the matter relating to hiring of the vehicle but petitioner did not respond. Instead, petitioner chose to approach this Court. Referring to the provisions of the Representation of the People Act, 1951 (ROP Act), he submits that under Section 160(3), petitioner would be entitled to requisition compensation only for the period for which such requisition was required. He submits that there is no provision under the ROP Act under which the electoral authorities can be saddled with compensation to be paid to the owner of a requisitioned vehicle which suffers material damage during requisition. 9. Mr. Dhar, learned Government Advocate, Assam supports the submissions made by Mr. Baruah. 10. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 11. From the narration of facts as above, requisition of the vehicle of the petitioner by the respondents is admitted. It was requisitioned on 1.4.2011 and while it was under requisition, it met with an accident at Nongpoh in which the vehicle got damaged. Thereafter, the vehicle has been parked at Sonapur Police Station in the district of Kamrup (M). 12. A perusal of the requisition order dated 1.4.2011 would go to show that it was issued by the Addl. Deputy Commissioner in the office of the Deputy Commissioner & District Election Officer, who was in-charge of Election Transport Cell, Nagaon for Assembly Election, 2011. 12. A perusal of the requisition order dated 1.4.2011 would go to show that it was issued by the Addl. Deputy Commissioner in the office of the Deputy Commissioner & District Election Officer, who was in-charge of Election Transport Cell, Nagaon for Assembly Election, 2011. The vehicle was requisitioned on the ground of public service for the purpose of conducting Assembly Election, 2011 in respect of Nagaon district. The vehicle was requisitioned in exercise of powers conferred under Sections 160 to 165 of the ROP Act. As per condition No. 5, as contained in the order dated 01.04.2011, all risks including damage to the vehicle and other persons/property shall remain the liability of the owner of the vehicle and that the requisitioning authority shall not be liable for any statutory, legal and/or financial liability except payment of hire charges. 13. It is seen that Government of Assam in the Election Department had issued instructions dated 9.2.2011 to all Deputy Commissioners and Sub-Divisional Officers (Civil) that State Government had reviewed and approved the hire charge rates for the Assembly Election, 2011. The above intimation was on the basis of notification issued by the Government of Assam in the Transport Department dated 13.04.2009 modifying the previous notification dated 07.04.2009 and in pursuance of Section 4 of the Assam Requisition and Control of Vehicles Act, 1968 (1968 Act) mentioning therein the rates per diem for hiring vehicles. As per condition No. 3, in case a hired vehicle is damaged, the repairing charges has to be borne by the owner; therefore, before hiring a vehicle, the hiring authority should ensure that the vehicle is properly insured so that the owner can claim damages from the insurance company in case of accident. 14. Under Section 160 of the ROP Act, State Government has been empowered to requisition premises, vehicles etc. for election purposes held within the State. As per sub-section (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. for election purposes held within the State. As per sub-section (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. Sub-section (3) says that 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 Section 160. 15. Section 161 deals with payment of compensation. Sub-section (2) thereof deals with payment of compensation for requisition of vehicles. It says that whenever in pursuance of Section 160 the State Government requisitions any vehicle, vessel or animal, there shall be paid to the owner thereof compensation the amount of which shall be determined by the State Government on the basis of the fares or rates prevailing in the locality for the hire of such vehicle, vessel or animal. 16. Thus from a careful reading and analysis of Sections 160 and 161 of the ROP Act, it is seen that State Government is empowered to requisition a vehicle for election purpose within that State following the proper procedure. If a vehicle is requisitioned, the period of requisition shall not extend beyond the period for which the vehicle is required. During the period of requisition of the vehicle, owner thereof shall be paid compensation on the basis of rates determined by the State Government. 17. ROP Act as such is silent as to what would be the consequence in the event the requisitioned vehicle suffers material damage on account of accident during the period of requisition. ROP Act is silent as to whether in such a situation the registered owner of the requisitioned vehicle will be compensated by the requisitioning authority i.e., the State or whether it is he who will have to make good the damage. 18. In the Government of Assam notification dated 13.04.2009, which was issued in pursuance of Section 4 of the 1968 Act, the State Government has taken a stand that in the event requisitioned vehicle meets with an accident and gets damaged, the repairing charge has to be borne by the owner who can claim the damage from the insurance company. 19. In the Government of Assam notification dated 13.04.2009, which was issued in pursuance of Section 4 of the 1968 Act, the State Government has taken a stand that in the event requisitioned vehicle meets with an accident and gets damaged, the repairing charge has to be borne by the owner who can claim the damage from the insurance company. 19. Since the aforesaid notification was issued in exercise of powers conferred under Section 4 of the 1968 Act, it would be apposite to advert to the provisions of the said Act as well. The aforesaid Act is an act to provide for requisition and control of vehicles. While Section 3 thereof deals with power to requisition vehicles, Section 4 deals with payment of compensation. Section 5 deals with release from requisition. As per sub-section (1) of Section 5, the authority requisitioning a vehicle may at any time release the vehicle from requisition. Under sub-section (2), with effect from such date of release, no further liability for compensation or payment of any other kind shall lie with the authority requisitioning the vehicle. However, as per the proviso to sub-section (2), the requisitioning authority may make such further payment on account of compensation for any material damage done to the vehicle during the period of requisition as assessed in the manner mentioned in sub-section (2) of Section 4. As per sub-section (2) of Section 4, while determining compensation to be paid for requisition of a vehicle, the State Government shall take into consideration- (a) the model, make, type, class and condition of the vehicle; (b) the loss of earning, if any, sustained by the owner by reason of requisition; and fix the compensation at such rate as the State Government may deed fit. 20. As noticed above, ROP Act is silent regarding payment of compensation for any material damage suffered by the requisitioned vehicle on account of accident during the period of requisition. In such circumstances where the parent Act is silent, provisions of the 1968 Act can certainly be utilized to supplement the provisions of the ROP Act. 21. Right to property, be it movable property or immovable property, is a precious right of a citizen. Whether it is requisition of vehicle or acquisition of land, it is compulsory in nature with little or no option to the owner to resist such requisition or acquisition. 21. Right to property, be it movable property or immovable property, is a precious right of a citizen. Whether it is requisition of vehicle or acquisition of land, it is compulsory in nature with little or no option to the owner to resist such requisition or acquisition. By such an act, the owner is divested of his properly for which he has to be adequately compensated. In the case of movable property under requisition, it becomes the moral and legal obligation of the requisitioning authority to make good the loss suffered by the requisitioned vehicle in the course of requisition due to accident. This position was lucidly explained by the Supreme Court in Deepa Devi (supra). It was held thus:- "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 there over. 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 there over. 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. 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 therefore in terms of the Act but he cannot not exercise any control thereupon. 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 therefore 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." 22. That was a case where the requisitioned vehicle met with an accident which led to death of a third person. The vehicle was requisitioned for assembly elections and when the vehicle met with the accident, it was under requisition. While Motor Accident Claims Tribunal upheld the contention of the insurance company that under the terms of insurance it was not liable to reimburse the owner of the vehicle as regards his liability to pay compensation on account of the said accident, High Court reversed the said view and held that the owner of the vehicle, the State Government and the insurance company were all jointly and severally liable to pay compensation. While setting aside the judgment of the High Court, Supreme Court held that even if the statute is silent and did not envisage such a situation and as a result the statutory definitions cannot be given effect to in letter and spirit, the same should be understood from the common sense point of view. In the light of the above, Supreme Court held that the State was liable to pay the amount of compensation to the claimant and not by the registered owner of the vehicle. While holding so, Supreme Court took note of the compulsory nature of requisition of vehicles and observed that when the vehicle remains under requisition, the owner does not exercise any control over the vehicle whatsoever. 23. While holding so, Supreme Court took note of the compulsory nature of requisition of vehicles and observed that when the vehicle remains under requisition, the owner does not exercise any control over the vehicle whatsoever. 23. Be that as it may, considering the peculiar facts and circumstances of the case and having regard to the discussions made above, Court is of the view that condition No. 5 of the requisition order dated 1.4.2011 as well as condition No. 3 of the Government notification dated 13.4.2009 not only do not stand to reason but run contrary to the proviso to sub-section (2) of Section 5 of the 1968 Act. 24. Resultantly, petitioner would be entitled to compensation for material damage caused to the vehicle during the period of requisition besides requisition compensation during the period of Assembly Election, 2011. In the light of the above, the following directions are issued:- (i) Respondent No. 2 i.e., Deputy Commissioner, Nagaon-cum-District Election Officer, Nagaon shall take over possession of the requisitioned vehicle, viz, AS-02 2791 which is stated to be parked in the Sonapur Police Station, Sonapur; (ii) Respondent No. 2 shall get the said vehicle verified and assessed by the Motor Vehicles Inspector, Nagaon who shall determine the extent of damage and relatable amount of compensation to make good the material damage; (iii) On such assessment being made, the same shall be paid to the petitioner along with the requisitioned vehicle; (iv) Respondent No. 2 shall also pay requisition compensation for the requisition of the said vehicle as per the rates fixed by the Government notification dated 13.4.2009 for the period from the date of requisition till conclusion of the electoral process of Assembly Election, 2011; (v) The above exercise shall be carried out within a period of 4 months from the date of receipt of a certified copy of this order. 25. Writ petition is allowed but without any order as to costs.