Bombay High Court
The Beed District Central Co-Op. Bank ... vs The Election Commission Of India & ... on 17 February, 1998
Equivalent citations: AIR1999BOM121, 1998(3)BOMCR79, 1998(2)MHLJ455, AIR 1999 BOMBAY 121, (1998) 2 MAH LJ 455, (1998) 1 MAHLR 815, (1998) 1 BANKCLR 61, (1998) 3 ALLMR 351 (BOM), (1998) 3 BOM CR 79
Author: R.G. Deshpande
Bench: R.G. Deshpande
ORDER A.D. Mane, J.
1. Rule. Rule is made returnable forthwith.
This petition is filed by the District Central Co-operative Bank Ltd., Beed for issuance of writ of mandamus requiring respondent No. 3-Col!ector, Beed, to release four vehicles belonging to the petitioner Bank, which were taken charge of by the respondent No. 4 under the garb of Code of Conduct, which is made applicable for Parliamentary Elections.
2. The petitioner submits that the Tahsildar, respondent No. 4 by his order dated nil but served on the petitioner on 2-1-1998 directed the petitioner-Bank to deposit with his office all the four vehicles since there is total ban on use of official vehicles of petitioner-Bank during the enforcement of Code of Conduct. Petitioner, accordingly deposited four vehicles with the office of respondent No. 4. On 6-1-1998, the petitioner-bank then applied to the Collector, respondent No. 3 for release of these vehicles for the reasons stated therein. Petitioner also made a request to State Election Commission, but as there was no heed given to the request the petition came to be filed in this Court on 27-1-1998.
3. In answer to the petition, the respondent No. 3 filed reply and in reply it is averred that, "the vehicles of the petitioner are deposited in the office of Collector, Beed, so that these vehicles could not be misused by the non-officials of the petitioner. The vehicles are deposited in the office to avoid any misuse and to conduct fair and free Lok Sabha elections, as also these vehicles are required for election purpose as the Collector office does not have provision of vehicles for the use in the process of election." There is also averment in the reply to the following effect :
"It is also ordered to deposit these vehicles in the office, so that those can be used-for election purposes and the necessary requisition order of these four vehicles under section 160 of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') has been passed and served on the concerned authority".
4. The petitioner, however, clearly stated in the petition that without resorting to the process of requisition of the vehicle the respondent Nos. 3 and 4 acted unfairly in getting the vehicles deposited with them without any authority of law. In additional reply, the respondent No. 3, however, produced the order dated 5-2-1998 passed by the respondent No. 3 in exercise of his power under section 160 of the Act. That order, inter alia reads as under :-
"ORDER:
Whereas Elections to the House of the People have been declared under section 30 of the Representation of the People Act, 1951 by the Hon'ble President of India.
And whereas powers vested in the State Government under section 160 of the said section 166 ibid by the Government Maharashtra.
And whereas it appears to the Collector that in connection with the elections the vehicle as described in column No. 2 of the Annexure in charge of the person whose designation is mentioned in column No. 3 are needed for performance of duties in connection with the elections.
Now, therefore, I, Arvind Kumar, Collector and Dist. Election Officer Beed do hereby order and direct that the person who is in charge of the said vehicle/vehicles shall arrange to deliver the said vehicle/vehicles to the Dist. Collectorate, Beed, on or before 5-2-1998 in good condition with the driver usually working on the said vehicle/vehicles with accessories at 10. A.M. with sufficient T.A. Advn. on tour.
And contravention of the said order shall attract the provisions of sub-section 167 of the Representation of People Act as reproduced below.
ANNEXURE Sr. No Description & registration No. Designation of the Officer person in-charge address.
1.
2.
3.
1) MH-23-B-215
-
Jeep The Manager
2) MH-23-B-640
-
Jeep Dist. Central
3) MH-23-A-9954
-
Car Co-operativer
4) MH-23-E-955
-
Car Bank, Beed.
Section - 16 penalty for contravention of any order 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.
Given under my hand and Seal this Sdl-
Collector & Dist. Election Officer, Beed."
Date : 5-2-1998.
5. The petitioner, by his amended petition further challenges the order dated 5-2- 1998 on the ground that the purported order of requisition of vehicle also does not fulfil the requirement of sections 160 and 161 of the Act.
6. However, in view of the latest position as disclosed by respondent No. 3 in additional affidavit supported by the order dated 5-2-1998, which is passed in pursuance of section 160 of the Ad, the controversy arises in two folds. Firstly, whether the initial order passed by the respondent No. 4 requiring the petitioner Bank to deposit the vehicles with the office of the respondent No. 3 was proper in law and secondly whether the order made by the respondent No. 3 under section 160 of the Act subsequently on 5-2-1998 is valid when the order does not speak about payment of compensation as required under section 161 of the Act.
7. It is clear from the affidavit fi!ed by the respondent No. 3 that Tahsildar was directed to issue an order requiring the petitioner-Bank to deposit the vehicles solely with an object that vehicles should not be misused by the non-officials of the petitioner-Bank.
8. Mr, Kanade, learned G.P. invites our attention to the order dated 15-1-1996 issued by the Election Commission incorporating the Model Code of Conduct and paragraph 5 of the order provides that, "the Commission directs that there shall be total and absolute ban on the use of official vehicles for campaigning, electioneering or election related travel during election". It is, therefore, submitted that when there was total and absolute ban on the use of official vehicle, the action of respondent No. 3 directing the respondent No. 4 to order for deposit of vehicle to the petitioner-Bank was justified in law. We do not agree with the argument of Mr. Kanade, G.P. for respondent. It is true that Commission directed that there shall be total and absolute ban on the use of official vehicle for campaigning, electioneering or election related travel during election, but it is not the case of the respondent that at the relevant time the petitioner-Bank committed breach of the prohibition on the use of any vehicle by the petitioner-Bank so as to direct the petitioner-Bank to deposit the vehicles with the respondent No. 3. In absence of any iota of evidence to show that the petitioner-Bank misused the official vehicle for campaigning, electioneering or election related travel during the election period, it will not be possible for the respondent No. 3 to exercise his powers even under Model Code of Conduct requiring the petitioner-Bank to deposit the vehicle with the office. Therefore, that part of action of the respondent No. 3 is indeed not supported by any authority of law.
9. It is true that the respondent No. 3, during the pendency of this petition, passed order on 5-2-1998, in exercise of his powers under section 160 of the Act. Section 160 of the Act, inter alia, provides :
"160. .... .....
(1) If it appears to the State Government that in connection with an election held within the State....
(a) .....
(b) any vehicle ..... 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 ..... vehicle .....
and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning."
Proviso to sub-section (1) of section 160 requires :
"that no vehicle ..... 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."
Sub-section (2) of section 160 requires :
"(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."
Moreover, sub-section (3) requires :
"(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 subsection."
It is clear from the impugned order dated 5-2-1998 that the order is belated to the action initiated and it also lacks of material particulars as required under section 160(1), (2) and (3) of the Act as referred to above. Apart from that, Mr. Patil, learned Counsel for the petitioner submitted that order under section 160 will not stand unless provisions of section 161 of the Act are complied with.
10. Section 161 of the Act contains a provision for payment of compensation in case of requisition of vehicle, etc., in connection with an election which is being hefd within the State. Sub-section (2) of section 161 of the Act provides that;
"161 .....
(1) .....
.....
(2) Whenever in pursuance of section 160 the State Government requisitions any vehicle ..... 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....."
Proviso to sub-section (2) of section 161, inter alia provides that :
"Where the owner of such vehicle..... 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 behaff by the State Government may determine."
11. Mr. Kanade, G.R however, invites our attention to the Government Circular, dated 7-2-1989 in connection with the hire/rental charges for vehicles of Government/ Semi-Government Departments requisitioned for the conduct of Elections to the Parliament or to the State Legislature. Under that Circular, Government was pleased to direct that, "whenever vehicles belonging to Offices/Departments of the State Government or Public Sector Enterprises/Autonomous Statutory Bodies/Public Sector Undertakings/Government Companies/Statutory Corporations and Departmentally-managed Commercial Undertakings of the Government of Maharashtra are requisitioned for the conduct of elections to the Parliament or to the State Legislature, they may not prefer claim relating the hire charges or rental charges for the use of their vehicle/s when the vehicles are placed at the disposal of the Chief Electoral Officer/ Divisional Commissioner/District Collectors, etc. in terms of their requisition order therefor. However, whenever such vehicles are requisitioned, the cost on account of petrol, oil and/or minor repairs during the period of requisition would be borne by he Requisitioning Authority." Relying on this Circular, Mr. Kanade, G.R argued that the provisions contained in section 161 of the Act are not mandatory and, therefore, the respondent No. 3 was justified in not making any provision for payment of hire/rental charges for vehicle/s which were/was requisitioned for the conduct of election. In the first place, it is not shown how the Circular referred to above is applicable in the instant case. It is not the case that the petitioner-Bank fails within the category of offices/ Department of State Government and the Authorities under it. Therefore, this Circular is not of any avail to the respondent No. 3 for relieving the Officers/Departments working under it from the application contained in section 161 of the Act, for payment of hire/rental charges for the vehicle/s requisitioned for the conduct of elections to Parliament. Secondly, if we consider the scope of section 161 of the Act, so far it relates to vehicle/s, we have no doubt in mind, that the provision is clear and it casts a duty on the authority requisitioning the vehicle/s to make provision for payment of hire/rental charges for vehicles which are requisitioned for the conduct of elections to Parliament forthwith. Failure to follow the procedure as provided in section 161 of the Act indeed would vitiate the order passed under section 160 of the Act.
12. We are, however, satisfied that since the requisition is intended for the-conduct of elections, in that case, instead of giving any relief asked for by the petitioner-Bank, it is suffice if we give direction to the respondent No. 3 to comply with the requirements of section 161 of the Act for payment of hire/rental charges for the vehicle/s requisitioned for the purpose of conduct of elections to Parliament. It is true that the initial action of requiring the deposit of these vehicles by the petitioner-Bank with the respondent No. 3 by the order made by the respondent No. 4 was wrong, but since the same appears to have been rectified subsequently by passing requisition order, we do not think, that the entire action would thereby become bad in law. If the provision of payment of hire/rental charges for the vehicle/s requisitioned for the conduct of elections is made, we think, that will meet the ends of justice.
13. We, therefore, partly allow the petition and direct the respondent No. 3 to pay to the petitioner-Bank amount of compensation which should be determined on the basis of fares or rates prevailing in the locality for hire of such vehicle/s within a period of three weeks from today. We also mention that in case the petitioner-Bank disputes the quantum of amount of compensation, it shall make an application within two weeks from the intimation by the respondent Nos. 3 and 5 in prescribed form to the State Government for referring the matter to the Arbitrator and the respondent Nos. 1 and 2 in that case shall refer the matter to the Arbitrator for determination of the amount of compensation to be paid to the petitioner-Bank as required under section 161 of the Act. The compensation shall be paid from the date of deposit of vehicle/s with the respondent No. 3 i.e. from 3rd of January, 1998. Rule is accordingly made absolute in above terms. However, there shall be no order as to cost.
14. Petition partly allowed.