IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 21123 of 2004(M)
1. SHIBU.C.F., CHERAMANTHURUTHY,
... Petitioner
Vs
1. THE DEPUTY DIRECTOR OF PANCHAYATH,
... Respondent
2. THE PUTHENVELIKKARA GRAMA PANCHAYATH,
3. C.V.ANTONY, CHERAMANTHURUTHY,
4. K.K.CHITHRANGADHAN, KALAKKASSERY,
For Petitioner :SRI.DINESH R.SHENOY
For Respondent :SRI.P.L.DEVADAS
Coram
Dated : 10/09/2004
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Puthenvelikkara Grama Panchayat (2nd
respondent herein), by notification dated 06-07-2004, had
invited tenders for the right for conducting a ferry
service on the Parangiyattukurisu–
Cheriyapazhampallithuruthu by using mechanised boat for
.JY
the period from 01-08-2004 to 31-07-2005. Auction also
was proposed to be held on the notified date. The
petitioner has filed this writ petition pointing out that
the special conditions, especially items 1 and 6, were
unreasonable and illegal, and showed the mala fides,
which were attached to the grant of such right.
Especially condition No.1, according to him, was loaded
in such a manner so as to confer advantage on a single
earmarked individual to the exclusion of all others. He
is disabled from participating. The question is whether
such conditions are unreasonable which vitiates the
entire transactions and therefore interference of this
Court is warranted.
2. A request was made by the petitioner to the
Deputy Director of Panchayat agitating over the matter
but no follow up action has been taken by him on such
complaint. It was pointed out that he owed a public duty
and especially to inhabitants of the island and
appropriate measures ought to have been taken, which
resulted in a fair deal by warding off monopoly.
3. The ferry, referred to in Ext.P1, is to
connect the second respondent–Panchayat with
Chendamangalam Panchayat. The first special condition,
which was pointed out as objectionable, could be
extracted herein below:
4. It is contended by Mr.Dinesh R.Shenoy, counsel
for the petitioner, that such a condition was to benefit
two individuals. He had made them parties to these
proceedings. Petitioner submits that the third
respondent is the owner of a boat and he had made certain
agreements with the 4th respondent. The advantageous
geographical position of the 4th respondent at
Chendamangalam was that it would not have been possible
for any other land owner to offer any land for the
conduct of ferry service other than him, and since he was
hand in gloves with the third respondent, no opportunity
for anybody else was there to compete. The condition, as
above, is prescribed as a precondition in a deliberate
manner, though in all appearance innocuous.
5. The learned counsel also refers to the past
practice which had been followed by the second
respondent, namely that the rights were proposed to be
farmed out without public auction and by a private
arrangement and the 3rd and 4th respondents had been the
beneficiaries. This had been opposed and it was in the
light of the above, the formality of notice by Ext.P2 had
come to be passed. This turned out as an eye-wash, since
the successful bidder could have been only the 3rd
respondent. What could not have been permissible to be
done directly, according to the learned counsel, is
attempted to be done indirectly.
6. We have to understand the basic fact that the
second respondent does not own any property within
Chendamangalam Grama Panchayat. It has no control over
any other properties there and the Government also does
not possess any land in Chendamangalam Grama Panchayat
which could be used as landing for the ferry. The
argument of the petitioner is that in this situation, as
had been done in other cases and in other Panchayats, at
least by the intervention of the departmental officers,
negotiation should have been made with the Chendamangalam
Grama Panchayat for earmarking a place as a site for
landing, by whatever manner that was feasible, so that it
would not have been possible for any single person to
assert his presence to the exclusion of any others.
However, it is easier said than done. It is evident that
the second respondent–Panchayat was not interested in
exerting itself. It is clear that the ferry is not
likely to generate any real funds, commensurate with the
investment. At the bar, it is pointed out that during
the last time, when the ferry was being conducted in the
late 1990’s, the bid amount was in
the region of Rs.3000/- per annum. Though as a principle
mooted, the petitioner can be considered as having a
grievance, and thereby could be reckoned as moving this
Court in public interest, nevertheless the realities
cannot be overlooked, on abstract principles. The
respondents submit that Chendamangalam has a vast shore
line, and a tie up with the other land owners was not an
impossibility as averred. This Court cannot be expected
to embark upon an enquiry for finding a landing site, or
identifying a willing land owner. That might be the case
with the 2nd respondent or the Government officials also.
Further, possession of skills and infrastructure
facilities may confer advantages on individuals, and a
rank outsider cannot always insist for a level play
field. A ferry will be workable only if landing site and
pathway for thoroughfare is available. The petitioner,
therefore, cannot harbour a grudge to the advantageous
situation of any competitor, who might have acted with
foresight. Their partnership is in no way illegal or
against public policy. The opening of the ferry cannot
await until the advent of an accomplished competitor.
The conditions of tender notice cannot therefore be
considered as arbitrary, the intending tenderers were to
possess the essential requirements only.
7. The second submission of the learned counsel
was that there was no stipulation about the ferry charges
and this may develop as a nepotism, as it would have been
possible for the operator to fleece the public.
Reference was made to the notifications made by other
Panchayats, and especially Ext.P3, which showed that even
before the auction, the leviable charges have been
prescribed. It is submitted that the totality of the
endeavour was to see that the residents of the area was
put to loss and hardship. From the facts of the case, it
is clear that it may not be possible for the third
respondent to make any undue gains, since the total
income from the ferry service is limited. It is pointed
out by the second respondent that people in the area can
resort to the facility of country boats, which is the
method of travelling now being used by them, in case the
levy of ferry charges is exorbitant.
11. The further issue is as to whether it is
possible for the Deputy Director of Panchayats to
prescribe any solution. Even though he had been
addressed in the matter, as far as I could see, the
second respondent has taken a policy decision and on such
matters, Governmental authorities can have no
administrative or supervisory powers. It will be
improper on my part to direct him to look into the matter
or to draw his views, as he has no such jurisdiction, and
the suggestion may also be opinion, purely personal. The
writ petition is therefore dismissed.
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Dated: 6th day of July, 2004
7
[WPC 21123/2004] –