Kerala High Court
The Poovar Service Co-Operative ... vs District Collector on 12 March, 2021
W.P(c).No.24597/2020-Y 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942
WP(C).No.24597 OF 2020(Y)
PETITIONER:
THE POOVAR SERVICE CO-OPERATIVE BANK LTD. NO.3966
REPRESENTED BY ITS SECRETARY, POOVAR.P.O.,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 525.
BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS:
1 DISTRICT COLLECTOR,
THIRUVANANTHAPURAM, COLLECTORATE, CIVIL STATION
BUILDING, CIVIL STATION ROAD, THIRUVANANTHAPURAM
695 043.
2 CHIEF EXECUTIVE OFFCIER/DEPUTY COLLECTOR,
DISTRICT DISASTER MANAGEMENT AUTHORITY,
COLLECTORATE, CIVIL STATION BUILDING, CIVIL STATION
ROAD, THIRUVANANTHAPURAM 695 043.
3 REGIONAL TRANSPORT OFFICER,
OFFICE OF REGIONAL TRANSPORT OFFICER, OVER-BRIDGE,
PAVITHRA NAGAR, SANTHI NAGAR, THAMPANOOR P.O.
THIRUVANANTHAPURAM 695 014.
4 ADDL.R4: DEPUTY COLLECTOR (ELECTION)
COLLECTORATE, CIVIL STATION BUILDING, CIVIL STATION
ROAD, THIRUVANANTHAPURAM - 695 043.
(ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED
8/12/2020 IN I.A.4/2020 IN WP(C)24597/2020.)
W.P(c).No.24597/2020-Y 2
5 ADDL.R5: STATE OF KERALA,
REPRESENTED BY THE SECURITY TO GOVERNMENT,
DEPARTMENT OF DISASTER MANAGEMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
(ADDITIONAL R5 IS SUO MOTU IMPLEADED AS PER ORDER
DATED 08.02.2021 IN WP(C)24597/2020.)
BY GOVERNMENT PLEADER SMT.PRINCY XAVIER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:s
W.P(c).No.24597/2020-Y 3
P.V.ASHA, J.
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W.P(c) No.24597 of 2020-Y
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Dated this the 12th day of March, 2021
JUDGMENT
The petitioner society had approached this Court at a time when the vehicle,
which was requisitioned by the 1st respondent for the use of Sectoral Magistrates
in view of the outbreak of Covid 19 pandemic, was not returned to the society.
2. The petitioner's vehicle was requisitioned for the period from
15.10.2020 to 31.10.2020 and thereafter from 3.11.2020 to 11.12.2020. The
vehicle which was requisitioned for the use of Sectoral Magistrate was handed
over to the Deputy Collector (Election) for the purpose of election duty in
connection with the election to the local bodies and it was under the custody of the
additional 4th respondent from 25.11.2020 to 11.12.2020. In the meanwhile, the
petitioner had complained that continuous custody of the vehicle was not
necessary even for the purpose of election and this Court had passed an interim
order on 08.12.2020 directing the respondents to release the vehicle of the
petitioner on 09.12.2020 as the election was already over at that time, with liberty
to the respondents to requisition the same for the purpose of counting, if necessary.
The learned counsel for the petitioner submitted that even without any further
orders, the vehicle was made available to the respondents, at the time of counting
for 2 days i.e on 15.12.2020 and 16.12.2020 and it was under the custody of the
additional 5th respondent on those days. It is stated that altogether the vehicle was
under the custody of the respondents for a period of about 55 days. As at present
the complaint of the petitioner is that no amount is paid towards the compensation.
3. The Writ Petition was filed raising several other complaints; as at
present the only issue to be considered is relating to the claim of the petitioner for
compensation.
4. The respondents have filed a statement producing the orders of
requisition. The fact that the vehicle was in custody for the use of Sector
Magistrate as well as for the purpose of election, is not in dispute. Regarding the
compensation, the learned Government Pleader on instructions submits that the
respondents had out of their own funds met the fuel charges for the vehicle. Apart
from that, duty certificate was given to the driver and according to the respondents
no compensation is payable to the petitioner. Regarding the period during which
the vehicle was used for election duty it is submitted that there is no order from the
Election Commission to pay compensation for the vehicles requisitioned for the
purpose of election and the only order which is available is relating to the duty
certificate to the drivers and fuel charges.
5. The learned counsel for the petitioner points out that under Section
66(2) of the Disaster Management Act, 2005 the vehicles which are requisitioned
by the Disaster Management Authorities are liable to pay compensation and that
cannot be confined to the fuel charges for the period during which the authorities
under the Disaster Management Act themselved had used the vehicle.
6. Section 66(2) reads as follows:
"66. Payment of compensation:-- xxxx xxxx xxxx xxxx
(2) Whenever any Committee, Authority or officer, referred to in sub-section (1) of
section 65 in pursuance of that section requisitions any vehicle, there shall be paid to the
owner thereof compensation the amount of which shall be determined by the Central
Government or the State Government, as the case may be, on the basis of the fares or
rates prevailing in the locality for the hire of such vehicle:
Provided 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
Central Government or the State Government, as the case may be, 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 Central Government or the State Government, as the case
may be, 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 Central Government or the State Government,
as the case may be, in this behalf may decide."
Going by the aforesaid provision, the vehicles which are requisitioned under
Section 66(2) are liable to be paid compensation at the rates for the hire of such
vehicles on the basis of the fares or rates prevailing in the locality, for the hire.
Proviso to the aforesaid Section also provides for referring the matter to an
arbitrator in the event of dispute relating to compensation. In the present case it is
seen that the petitioner is not paid any compensation.
7. Regarding the claim of the petitioner for the period from 25.11.2020
to 09.12.2020, the claim of the petitioner is covered in his favour by the judgment
of this Court reported in Mutholy Service Co-operative Bank Ltd. No.1631 v.
District Election Officer & District Collector & Anr. [2019 KHC 730].
8. Therefore, the Writ Petition is disposed of with the following
directions:
(i) There shall be a direction to respondents 1 and 2 to determine the
compensation due to the petitioner towards the hire of the vehicle for the period
from 15.10.2020 to 31.10.2020 and from 3.11.2020 to 24.11.2020 as provided in
Section 66(2) and to make payment to the petitioner within a period of two months
from the date of receipt of a copy of the judgment.
(ii) The petitioner would be free to take up the matter before the
appropriate authority as provided under Section 66(2) of the Disaster Management
Act, 2005 in case he is not satisfied with the amount of compensation determined
by the Arbitrator.
(iii) There shall be a further direction to the 1 st respondent, in his capacity
as the District Election Officer, to consider the question of payment due to the
petitioner for the period from 25.11.2020 to 09.12.2020 in accordance with the
provisions contained in Section 158 of the Municipalities Act and Section 134 of
the Kerala Panchayat Raj Act and to pass orders within a period of two months
from the date of receipt of a copy of the judgment.
Sd/- (P.V.ASHA, JUDGE)
rtr/
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 11.2.2016 TO
PURCHASE THE CAR BY REGISTRAR OF CO-
OPERATIVE SOCIETIES.
EXHIBIT P2 TRUE COPY OF THE SERVICE BILL DATED
2.11.2020 OF TOYOTA WORKSHOP WITH RESPECT
TO THE VEHICLE.
EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED
3.11.2020 ISSUED BY THE PETITIONER TO THE
1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED
3.11.2020 OF 3RD RESPONDENT BY WHICH THE
VEHICLE IS SEIZED.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED
6.11.2020 FROM THE WORKSHOP AS REGARD
SEIZURE OF VEHICLE.
EXHIBIT P6 TRUE COPY OF THE G.O.(RT) NO.768/2020/DMD
DATED 29.9.2020.
EXHIBIT P7 TRUE COPY OF COVERING LETTER DATED
23/11/2020 WHICH CONTAIN THE ENDORSEMENT OF
2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF ORDER DATED 16.11.2020 OF 1ST
RESPONDENT AS REGARD REQUISITION OF VEHICLE
FOR ELECTION ACTIVITIES.
EXHIBIT P9 TRUE COPY OF RECEIPT DATED 25.11.2020 BY
DEPUTY COLLECTOR (ELECTION).
RESPONDENTS' EXHIBITS
ANNEXURE R1(a) TRUE COPY OF ORDER ISSUED BY THE DEPUTY
COLLECTOR (DM) DATED 8.10.2020.
ANNEXURE R1(b) TRUE COPY OF THE LETTER ISSUED TO THE JOINT
REGISTRAR, CO-OPERATIVE SOCIETIES DATED
12.10.2020.
ANNEXURE R1(c) TRUE COPY OF ORDER DATED 2.11.2020.
ANNEXURE R1(d) TRUE COPY OF LETTER ISSUED BY THE SECRETARY
OF PETITIONER BANK AND TYPED COPY OF
LETTER.
ANNEXURE R1(e) TRUE COPY OF THE COMMUNICATION FROM THE
TOYOTA SERVICE STATION.
ANNEXURE R1(f) TRUE COPY OF THE DIRECTION ISSUED TO RTO.
ANNEXURE R1(g) TRUE COPY OF ORDER DATED 14.11.2020.
ANNEXURE R1(h) TRUE COPY OF ORDER DATED 16.11.2020.
ANNEXURE R1(i) TRUE COPY OF THE ENDORSEMENT BY THE
SECRETARY OF PETITIONER BANK.
ANNEXURE R1(j) TRUE COPY OF ORDER NO.E2-245001/2020-V
DATED 16.11.2020.
ANNEXURE R1(k) TRUE COPY OF RECEIPT OF THE LOG BOOK OF THE
VEHICLE HANDED OVER BY THE SECRETARY POOVAR
SERVICE CO-OPERATIVE BANK.
ANNEXURE R1(l) TRUE COPY OF THE REVISED ORDER SECTION 134
AND 158 OF THE KERALA PANCHAYAT RAJ ACT
1994 AND THE KERALA MUNICIPALITIES ACT
1994.
