ASHOK MUNISHWAR GIRI Versus STATE OF GUJARAT & ORS.
================================================================ Appearance:
MR HJ DHOLAKIA, ADVOCATE for the Applicant.
MR PK JANI, GOVERNMENT PLEADER with MS. KRINA CALLA, ASST. GOVT. PLEADER for the respondent No. 1.
MR BIREN A VAISHNAV, ADVOCATE for the respondent No. 4 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/12/2012 CAV ORDER (PER : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. In this Public Interest litigation, the petitioner has challenged the mode of requisition of vehicles at the instance of Election Commission and also the amount of compensation given by the respondents for requisitioning of such vehicles.
2. According to the writ-petitioner, the respondent-authorities requisition the vehicles according to their wish at any moment that they think fit and even when a particular vehicle is plying on road, by stopping the vehicle, the passengers are asked to get out of the vehicle by the concerned officers without caring for the passengers as to how they would reach their respective destination. The petitioner has also stated in the petition about instances where top level executives of multi-level Companies, who were on their business tour in the State of Gujarat, were forced to get out of their car as the officers of the Commission wanted their car for election duty. It is also alleged that the average amount of compensation given for a car is around Rs.400/- per diem which is utterly inadequate having regard to the existing rate of rental of a car per diem.
3. An affidavit-in-reply has been filed on behalf of the Election Commission thereby contending that the Election Commission has acted in accordance with the provisions contained in the Representation of the People Act, 1951, [the Act, hereafter] and has also issued instructions regarding the manner of requisition of vehicles. A copy of such instruction dated 4th December 2012 has been relied upon in this connection.
4. By way of a supplementary affidavit, the petitioner has relied upon some additional documents as regards the award of compensation for the requisitioned vehicles.
5. Our attention has been drawn to the fact that in the past, a Division Bench of this Court, by order dated 16th March 2009 passed in Special Civil Application No. 2156 of 2009, directed the State Government to pay compensation for requisitioning of vehicles strictly in accordance with the provisions of Section 161(2) of the Act but according to the petitioner, the State Government is not complying with the said directions and are giving compensation according to their own calculation.
6. It appears from the latest circular issued on 4th December 2012 by the Chief Electoral Officer, Gujarat State, that the following instructions have been given to the Collectors and District Election Officers regarding requisitioning of vehicles:-
Thus, above mentioned provisions are to be complied with while requisitioning vehicles for election work. Further, it is imperative to adopt humane approach with the owners of the vehicles while requisitioning their vehicles and ensure that no hardship is caused to them. For this, the requirement of vehicles should be ascertained in advance and private vehicles should be requisitioned after taking into account the available Government vehicles. The orders for requisition should be served well in advance so that the vehicle owner can make alternative arrangement in absence of his vehicle.
In spite of these instructions, news have been published citing incidents of requisitioning vehicles by abruptly stopping them on the road, causing immense hardship to the passengers. It is not proper to requisition vehicles in this manner for election work and such actions amount to misuse of powers conferred under the laws. As a result, a public interest litigation has been filed in Hon ble High Court. You are requested to ascertain that no such incident has taken place in your district and report to this office by 12.0 noon on 5th December, 2012.
You are requested to ensure that Returning Officers and Assistant Returning Officers of the respective constituencies in your district strictly abide by the provisions of the law while requisitioning vehicles.
7. Regarding payment of compensation to the owners of the vehicles requisitioned for the purpose of election, public safety, essential services etc., Mr. Jani, the learned Government Pleader appearing on behalf of the respondent-State, has submitted before us that it is for the State Government to make payment of compensation and the Government of Gujarat, Ports & Transport Department has, by Resolution No. MVA-2009/2188/KH dated 5th December 2012, decided to revise the rates of compensation for the vehicles requisitioned, and has produced before us a copy of the said resolution, which was ordered to be taken on record. The manner of calculating the amount of compensation as provided in the said resolution is quoted below:
It has not been found necessary at present to revise the 10% interest on the price of the requisitioned vehicles and 20% depreciation on the price of public service vehicles and goods vehicles and 15% depreciation on the price of other vehicles as prescribed in the resolution dated 10th April, 2003. However, it has been found necessary to revise the rate of profit and therefore the rate of profit, which was fixed at 3% in the resolution of 2003 is now raised to 7.5% which means, when a vehicle is requisitioned without the driver or fuel, average annual compensation of the vehicle shall be calculated at the rate of 10% interest on the original price of the vehicles, 20% depreciation on the original price in the case of public service vehicles and goods vehicles and 15% depreciation on the original price of other vehicles, profit at the rate of 7.5% on the remaining price after deducting the depreciation from the original price of the vehicle. The amount of compensation so calculated shall be divided by 365 days to arrive at the amount of per day compensation of the vehicle.
Example -1:
If the original price of a public service vehicle requisitioned is Rs.5 lakh, its per day compensation shall be calculated as follow:
vehicle shall be entitled to receiver per day compensation of Rs.493.00.
Example -2:
If the original price of a public service vehicle requisitioned is Rs.10,00,000/- the vehicle owner shall be entitled to receive per day compensation as follow:
(1) Interest at the rate of 10% = Rs.1,00,000 (2) Depreciation = Rs.2,00,000 (3) Original price of the vehicle minus depreciation =Rs.10,00,000 2,00,000 =7.5% of Rs.8,00,000 = Rs.60,000 Thus (1) + (2) + (3) = Rs.3,60,000 Average annual compensation Rs.3,60,000 / 365 = Rs.986.00 Thus, the owner of the
vehicle shall be entitled to receiver per day compensation of Rs.986.00.
Cost of petrol / diesel and expense of drive are not included in above mentioned rates. Other terms and conditions shall remain the same as mentioned in resolution dated 10th April, 2003 of this department.
8. Mr. Jani, the learned Government Pleader, submits that the aforesaid mode of calculating compensation is quite reasonable and the owners of the vehicles cannot have any objection.
9. In order to appreciate the questions involved in this writ-petition, it will be appropriate to first refer to the provisions contained in sections 160, 161, 162, 163, 166 and 167 of the Act and rule 98 of the Conduct of Election Rules, 1961, which are quoted below:-
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, the 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.
161. Payment of compensation.-- (1) Whenever in pursuance of section 160 the State Government requisitions any premises, there shall be paid to the persons interested compensation the amount of which shall be determined by taking into consideration the following, namely:-
(i) the rent payable in respect of the premises or if no rent is so payable, the rent payable for similar premises in the locality;
(ii) if in consequence of the requisition of the premises the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change:
Provided that where any person interested being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:
Provided further that where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred by the State Government to an arbitrator appointed in this behalf by that Government for deter- mination, and shall be determined in accordance with the decision of such arbitrator.
Explanation.-In this sub-section, the expression "person interested " means the person who was in actual possession of the premises requisitioned under section 160 immediately before the requisition, or where no person was in such actual possession, the owner of such premises.
(2) 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:
Provided that where the owner of such vehicle, vessel or animal being aggrieved by the amount of compensation so determined makes an application within the prescribed time to the State Government for referring the matter to an arbitrator, the amount of compensation to be paid shall be such as the arbitrator appointed in this behalf by the State Government may determine:
Provided further that where immediately before the requisitioning the vehicle or vessel was by virtue of a hire-purchase agreement in the possession of a person other than the owner, the amount determined under this sub-section as the total compensation payable in respect of the requisition shall be apportioned between that person and the owner in such manner as they may agree upon, and in default of agreement, in such manner as an arbitrator appointed by the State Government in this behalf may decide.
162. Power to obtain information.- The State Government may with a view to requisitioning any property under section 160 or determining the compensation payable under section 161, by order, require any person to furnish to such authority as may be specified in the order such information in his possession relating to such property as may be so specified.
163.Powers of entry into and inspection of Premises, etc.-
(1) Any person authorized in this behalf by the State Government may enter into any premises and inspect such premises and any vehicle, vessel, or animal therein for the purpose of determining whether, and if so in what manner, an order under section 160 should be made in relation to such premises, vehicle, vessel or animal, or with a view to securing compliance with any order made under that section.
(2) In this section, the expressions "premises" and "vehicle" have the same meanings as in section 160.
xxx xxx xxx 166. Delegation of
functions of the State Government with regard to requisitioning.- The State Government may, by notification in the Official Gazette, direct that any powers conferred or any duty imposed on that Government by any of the provisions of sections 160 to 165 shall, under such conditions, if any, as may be specified in the direction, be exercised or discharged by such officer or class of officers as may be so specified.
167. Penalty for contravention of any order regarding requisitioning.-- If any person contravenes any order made under section 160 or section 162, he shall be punishable with imprisonment for a term which may extend to one year or with fine or with both.
xxx xxx xxx Rule : 98 [of the Conduct of Election Rules 1961] Manner of serving the order of requisition of premises, vehicles, etc. An order of requisition under section 160 shall be served-
[a] Where the person to whom such order is addressed is a corporation or farm in the manner provided for the service of summons in Rule 2 of order XXIX or Rule 3 of order XXX, as the case may be in the first schedule to the Code of Civil Procedure, 1908 [Act V of 1908]: and [b] Where the person to whom such order is addressed is an individual-
[i] Personally by delivering or tendering the order, or [ii] by registered post or [iii] if the person cannot be found, by leaving an authentic copy of the order with any adult member of his family or by affixing such copy to some conspicuous part of the premises in which he is known to have last resided or carried on business or personally worked for gain.
10. So far as the question of requisitioning the vehicles is concerned, Mr. Kavina, the learned senior advocate appearing on behalf of the Election Commission, at the very outset, has apologized for some irregularities committed by some officers of the Election Commission in requisitioning vehicles, and, according to Mr. Kavina, those irregularities occurred not for any instructions issued by the Chief Electoral Officer, Gujarat State, but due to over-enthusiasm on the part of some of the officers.
11. After going through the circular dated 4th December 2012 issued by the Chief Electoral Officer, Gujarat State, we find that specific directions have been given for strict compliance of the provisions of the Act and the rules framed thereunder, and in view of such stance taken by the Commission, no further directions except that the requisition should be made strictly in accordance with the Act and the Rules need be given. Ordered accordingly.
12. So far as the manner of giving compensation to the owner of the vehicles, we find that in the past, another Division Bench of this Court gave specific directions to give compensation in accordance with section 161 (2) of the Act which specifically provides that the amount of compensation should be determined by the State Government on the basis of the fares or rates prevailing in the locality for hire of such vehicle.
13. However, from the papers submitted by the State Government, it appears that they have calculated the amount of compensation not on the basis of the fares or rates prevailing in the locality for hire of such vehicle but on the basis of different criteria which have nothing to do with the method and mode of calculation of such fare or rates as provided under Section 161(2) of the Act. Moreover, our attention has been drawn to the fact that when a vehicle is requisitioned, the services of the driver is also simultaneously requisitioned but no payment is made for the salary of the driver and the drivers are merely provided with meals during the period of requisition.
14. We find substance in the contention of the learned advocate for the petitioner that if the service of driver is also requisitioned, in such a case, the payment of salary to the driver should also be borne by the State Government, and our attention has also been drawn to the fact that such drivers are requisitioned for the whole period of 24 hours a day. It is rightly contended on behalf of the petitioner that generally, salary of a driver is paid on the basis of eight hours duty, and if the duty-time exceeds 8 hours, further overtime amount is also given by the owners. Thus, if the driver is requisitioned for a continuous period of 24 hours a day, the overtime allowance should be paid for the additional hours over 8 hours at the same rate prevailing in the area for the payment of drivers.
15. We, thus, find that the payment of compensation for requisitioned vehicles in the ratio of of Rs.493/- for a vehicle priced at Rs.5 lakh or payment of Rs.986/- for a vehicle priced at Rs.10 lakh is not in accordance with the provisions of section 161(2) of the Act, and, therefore, the same cannot be accepted. When the substantial part of a statute specifies a specific mode of calculating compensation indicating that it should be the amount of the fares at the rates prevailing in the locality for hire of such vehicle, a different mode of compensation adopted by the State which has no connection with the mode provided for in the relevant provisions of the Act cannot be accepted.
16. We, therefore, direct the State-respondent to pay the compensation at the rate of the fares or rates prevailing in the locality for hire of such vehicle. At the same time, we also direct that if the services of driver is also requisitioned along with the vehicle, then not only the salary of the driver but also overtime for the additional hours over 8 hours of work done by such drivers should also be paid.
17. The State-respondent is directed to make a fresh assessment of compensation for requisitioning of vehicles in the light of the observations made in the order and place the fresh mode of assessment before this Court within a period of two months from today. Let the matter appear after two months from today for consideration of the above part of the litigation for computing compensation based on the fares of the vehicles requisitioned.
(BHASKAR BHATTACHARYA,CJ) (J.B.PARDIWALA, J.) mathew Page 15 of 15