IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13167 of 2003 Surendra Pandey, son of late Ram Ratan Pandey, resident of Mohalla Station Road, P.O. Gaya, P.S. Kotwali, District Gaya – Petitioner. Versus 1. The Chief Electoral Officer, Bihar, Patna at 7, Mangles Road, Patna. 2. The Assistant Chief Election Officer-cum-Additional Secretary to the Government of Bihar, Patna. 3. The District Magistrate, Gaya-cum- District Election Officer, Gaya --- Respondents. ----------- For the Petitioner: Mr. S. D. Sanjay, Advocate. For the Respondents: Mr. Yogendra Prasad Sinha, A.A.G.-15 Amicus curiae: Mr. Jawahar Pd. Karn, Sr.Adv. ******* O R D E R 9/ 10-02-2011 The petitioner has approached this Court by invoking jurisdiction under Article 226 of the Constitution of India seeking a direction upon the respondents to pay adequate compensation to him in view of injury sustained by him, while he was discharging duty on 16.02.1998 for the purpose of conduct of mid-term Lok -Sabha election of the year 1998. 2. The factual matrix in the present case is not in much controversy. As per the pleadings, it is common case of the parties that Mid-term Lok Sabha election was held in the year 1998. A truck bearing registration no. BRB 8519 belonging to one Shri Paras Lal of Gaya town, of which the petitioner was the driver, was requisitioned by 2 the competent authority in exercise of powers under section 160 of the Representation of the People Act, 1951 (hereinafter referred to as “the Act” in short) for the said Mid-term Lok Sabha election in the district of Gaya. It is the case of the petitioner, which has not been disputed by the respondents, that the truck in question was requisitioned on 04.02.1998 and the petitioner reported to the requisitioning officer under the control of respondent no.3. It is also the admitted case of the parties that on 16.02.1998 polling had taken place, and the petitioner was deputed with one Shri Narendra Singh, the Patrolling Magistrate no. 627 in Atri Legislative Constituency segment. After the polling was over, the petitioner was carrying ballot boxes from certain booths on his aforesaid truck, and while he was returning with the ballot boxes, some unknown criminals resorted to firing near village Sankarbigha in the district of Gaya, as a result of which petitioner sustained injury in his eyes. It is claimed that petitioner suffered complete loss of vision in his left eye and partial damage was caused to the vision of his right eye as well, as a result of which he was taken to the Magadh Medical College, Gaya for treatment, and subsequently, he underwent treatment at the Nursing Home of Dr. A.K. Tiwari. The discharge ticket issued by Magadh Medical College, Gaya and certificate issued by Dr. 3 A.K. Tiwari have been brought on record as Annexure-9 and 2, respectively, in support of the claim that there was complete loss of vision in the left eye and partial loss of vision in the right eye. 3. In view of the injuries sustained by the petitioner, during the course of election duty, he submitted representation dated 19.05.1998 (Annexure-3) before the respondent- District Magistrate-cum- District Election Officer, Gaya claiming compensation. There-after, by letter dated 24th August, 2000 (Annexure-4), the respondent no.3 recommended to the respondent- Chief Electoral officer, Bihar for grant of compensation to the petitioner. The fact that the petitioner was on election duty on 16.02.1998 and had sustained injuries, has been admitted in that letter dated 24th August, 2000. It further appears that there was some more communications between the officials, and thereafter, the respondent-District Magistrate was directed to make recommendation about quantum of compensation to be paid to the petitioner. However, by letter, contained in Annexure-6, respondent- District Magistrate expressed his inability to make specific recommendation about specific amount of compensation payable to the petitioner, because there was no departmental guidelines on that issue at the relevant time and hence, the petitioner filed the present writ petition for the reliefs sought for. 4 4. It is true that at the relevant time, there was neither any specific provision nor any specific circular/letter providing compensation to a person, who was engaged on election duty and had sustained certain injuries or death. 5. Mr. S.D. Sanjay, learned counsel appearing on behalf of the petitioner, in his elaborate arguments, submits that even if there was no specific statutory provision or guidelines at the relevant time, then in that case also, the provisions contained under section 161 of the Act may be interpreted in a way that the petitioner is granted some relief by this Court. He has fairly conceded that section 161 of the Act does not contemplates about payment of compensation to a private person, who was engaged on election duty and had sustained some injuries during the course of such election duty. However, he submits that for the purpose of determining quantum of compensation, the beneficial provisions of The Workmen‟s Compensation Act, 1923 (hereinafter referred to as 1923 Act in short) can be applied and in support of his submissions, he has placed reliance on different provisions of the said 1923 Act, where „employer‟ has been defined under section 2(e) and „workman‟ has been defined under section 2(n) of the said Act. He has also placed reliance on sections 3 and 4 of 1923 Act, whereby liability for payment 5 of compensation has been fastened with the employer and amount of compensation to be paid to the employee/workman has been indicated respectively. Though, he has not claimed any compensation under the provisions of the workmen Compensation Act,1923, but according to him provisions of 1923 Act can be applied in the case of the petitioner for determining the quantum of compensation payable to the petitioner in view of recommendations made by respondent District Magistrate for payment of compensation to him. 6. Mr. Yogendra Prasad Sinha, learned A.A.G. No.15, appearing on behalf of the respondents has placed reliance on the averments made in the counter-affidavit filed on behalf of the respondents, and has submitted that if there was no specific guidelines or any statutory provisions at the relevant time for payment of compensation to any private person or a driver of a private vehicle on account of some injuries sustained during the course of election duty, then the petitioner is not entitled for any relief in the present proceeding. He also submits that if the petitioner was at all aggrieved because of non- payment of compensation, then he could have made a claim under the provision of the Workmen‟s Compensation Act, 1923 and since he has not done so, is not entitled for any relief by this Court. He further submits that the recent 6 policy decision taken by the State Government by the resolution dated 01.04.2009 (Annexure-11) shall be applicable for future cases and that cannot be applied in the present case. However, he has not disputed the fact that the petitioner was on election duty on 16.02.1998 and had sustained certain injuries and the respondent- District Collector had made recommendation for payment of compensation to the petitioner. 7. In order to appreciate the claim raised on behalf of the petitioner, it will be relevant to quote section 160 and 161 of the Representation of the People Act;1951, which runs 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 purposes 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 7 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 the 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 8 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 disputed 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 the Government for determination, 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 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.” 9 8. On plain examination of section 160 and 161 of the Act, it is apparent that Section 160 of the Act empowers the State Government or its officials to requisition any premises, vehicle or vessel etc. for the purpose of smooth conduct of the election. The mode and manner of requisition has also been indicated under section 160 of the Act. Section 161 of the Act prescribes for payment of compensation for such requisition of the premises, vehicle or vessel etc. It has also been provided that owner of vehicle, vessel or animal, if aggrieved by the amount of compensation, may raise a dispute before the State Government for being referred to an Arbitrator However, it does not provide for any compensation, if the requisitioned vehicle meets an accident and is damaged, or the driver of the requisitioned vehicle sustains some injury or suffers death, while on election duty. 9. The scope and ambit of sections 160 and 161 of the Act, in the background set forth above, came up for consideration before a Full Bench of this Court in the case of Ram Narayan Singh vs. Election Commission and others, reported in 1996 (1) P.L.J.R. 621. After taking into consideration the judicial pronouncements by the Apex Court particularly in the case of Jiwani Kumar Paraki Vs. First Land Acquisition Collector and others, reported in AIR 1984 SC 1707: (1984)4 SCC 62, the Full 10 Bench has laid down a law that while the property including the vehicle, after „requisition‟ for the purpose of conducting election, remains under the possession of the requisitioning authority, the real owner loses its control and possession. In that situation, for the purpose of liability to pay damages, the requisitioning authority becomes owner of the vehicle. The Full Bench further held that though there was no specific provision for making payment of compensation due to loss and damage, but it would be always open to the court while exercising extraordinary power under Article 226 of the Constitution of India, to grant such reliefs in public interest and equity. The Full Bench has also held that in such a situation, the State Government alone has to be held responsible for payment of compensation for the loss and damages caused to the vehicle on account of accident during the course of election duty. Portion of Paragraph-9, 13, and 17 of the aforesaid Full Bench judgment are relevant for the purposes of deciding the issues involved in the present case and are reproduced herein below: “9. It is well known that in event of “acquisition” or „requisition‟ of a vehicle or any other property by the Government, either perennial or permanent, no owner can raise objection, except to the extent as provided by a particular statute. But in both the cases, the owner will have no 11 control over the property while the same remains under the possession of the Government. There cannot be any dispute that on strict interpretation of Article 300A of the Constitution, there will be definitely a difference under „requisition‟ or „acquisition‟ of a property. The Supreme Court while examining the difference, in the case of Jiwani Kumar Paraki v. First Land Acquisition Collector & others [AIR 1984 SC 1707: 1984(4) SCC 62] held that normally the expression „requisition‟ is taking possession of a property for a limited period in contradiction of „acquisition‟. But the two concepts are different. In case of „acquisition‟, title passes to the acquiring authority, while on „requisition‟ the possession goes to such authority. One is taking over of the title and the other is taking over of possession. But admittedly, while the property remains under possession of the requisitioning authority, the real owner losses its control and possession. In these backgrounds, it can safely be urged that for the purpose of liability the requisitioning authority becomes owner of the vehicle. ………………………… 13. In these backgrounds, although there is no specific provision for making payment of compensation due to loss of damage, it is always open to the Court, while exercising extraordinary power 12 under Article 226 of the Constitution, to grant such relief in public interest and equity……………………. 17. Therefore, having regard to the facts stated above, I am satisfied that a case of award of just compensation has been made out by the petitioner. Therefore, there is no option but to hold that the State Government is vicariously liable……………………………” 10. In view of law laid down by a Full Bench of our own High Court in the case of Ram Narayan Singh vs. Election Commission & Ors. (Supra), at the relevant time i.e., 16.02.1998 requisitioning officer was the owner of the vehicle in question, which was being driven by the petitioner. If the requisitioning officer was the owner of the vehicle in question and thereby became employer of the petitioner and as such the liability to pay compensation can be easily fastened on the requisitioning officer under the control of the respondent- State. 11. Section 161 of the Act can be further interpreted in favour of a private person, who had admittedly sustained injuries while on election duty and respondent- District Collector had also made recommendations for payment of compensation to him. Fortunately, in the light of the direction issued by the Election Commission of India as also certain judicial pronouncements made by this Court, the State 13 Government has come out with a policy decision through a resolution dated 01.04.2009 (Annexure-11), whereby it has been contemplated that in case of death of an employee engaged on election duty, a payment of compensation of Rs. 10,00,000/- (Rs. Ten lakhs) shall be paid to his family. However, in case of injury sustained by a person resulting in partial physical incapacity upto 40% on account of certain violence or accident, while on election duty, he would be entitled to receive compensation amount of Rs. 5 lakhs. Clause-3 of that resolution gives the details of the persons, who are covered and can be given benefits under the aforesaid policy decision. A driver of a private vehicle requisitioned for the purpose of election duty has also been included in Clause-3, to whom such benefits can be extended. Obviously the aforesaid resolution/circular has to apply prospectively and cannot be applied in toto in present case and to that extent learned Additional Advocate General No.15 is fully justified in his submission. 12. However, in a given case, question arises as to whether with respect to an accident having taken place in the year 1998 and the petitioner having sustained injuries referred to above while engaged on election duty, he is entitled to have any compensation or he should be left in the lurch ? The admitted position is that the petitioner was in service of the respondent State on the 14 date of election on 16.02.1998 and due to firing by the criminals, he had suffered complete loss of vision in his left eye, as per the certificate issued by the doctor and he also suffered some injuries in his right eye, making him incapable of driving the vehicle in question, the source of livelihood of the petitioner. The respondent District Collector had also made recommendation for payment of compensation to him. The liability has to be fastened with the respondent-State in view of the law laid down by a Full Bench of this Court, referred to above. 13. Now the policy decision of the State Government contemplates for payment of compensation of Rs. 5 lacs in the case of physical incapacity upto 40%. In the first application filed by the petitioner for making payment of compensation, he made a demand of Rs. 1,50,000/- towards compensation. However, in the subsequent application vide Annexure-7 filed by the petitioner, he prayed for payment of compensation of Rs. 4,39,213,90/-by taking the help of the provisions of the 1923 Act. The petitioner is moving pillar to post for redressal of his valid grievances since 1998, more than 12 years have passed since then. It has also been pleaded by the petitioner and not disputed by the respondents that he is now suffering from paralysis and he is unable of walk. Therefore, in the circumstances, the petitioner cannot be 15 left in the lurch. Ours being welfare State, appropriate compensation is required to be paid to the petitioner. 14. Taking into consideration the entire facts and circumstances, this Court is of the considered opinion that no useful purpose would be served by remitting the matter for fresh decision either before respondent-District Magistrate or any other officer for fixing the quantum of compensation. According to the respondents also the petitioner is entitled to receive some compensation. In that view of the matter, interest of justice would be sub-served if the petitioner is directed to be paid Rs. 2.50 lakhs by way of compensation. Accordingly, respondent no.1 is directed to pay Rs. 2.50 lakhs (Rs. Two lakhs fifty thousand only) by way of compensation to the petitioner within a period of two months from the date of receipt/production of a copy of this order, failing which it shall carry an interest @ 9% per annum till the actual date of payment. 15. Accordingly, this writ petition stands allowed. But there shall be no order as to cost. 16. Before parting with this case, this Court appreciates the gesture shown by Mr. Jawahar Prasad Karn, learned Senior Advocate, who appeared as amicus curiae and gave reference of the policy decision dated 01.04.2009, where-after, it was brought on record as 16 Annexure-11 and which has enabled this Court to come to a just conclusion in the given facts and circumstances of the present case. Patna High Court,Patna Dated 10th February, 2011 BTiwary/(AFR) ( Birendra Prasad Verma, J.)