Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 433 (KER)

Shibu. C. F. v. The Deputy Director of Panchayath

2004-09-10

M.RAMACHANDRAN

body2004
Judgment :- Puthenvelikkara Grama Panchayat (2nd respondent her in), by the notification dated 06-07-2004, had invited tenders for the tight for conducting a ferry service on the Parangiyattukurisu – Cheriyaphazhampallithuruthu by using mechanized boat for 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 condition especially items 1and 6, were ureasonable 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 his 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 Chendamagalam Panachyat. The first special condition, which was pointed our 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 respondents at Chendamanagalam 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 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 his Court in public interest, nevertheless the realities cannot be overlooked, on abstract principles. The respondents submit that Chendamanglam has a vast shore line, and a tie up with the other land owners was not not a impossibility as averred. The respondents submit that Chendamanglam has a vast shore line, and a tie up with the other land owners was not not a 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 partnerships in no way illegal or against public policy. The opening of the ferry cannot await until the advent or an accomplished competitor. The conditions of tender notice cannot therefore be considered as arbitrary, the intending tenderers were to possess the essential requirement 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 charge have been prescribed. It is submitted that the totality of the endeavourer 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 for the ferry service is limited. It is pointed resort to the facility of country boats, which is the method of traveling now being used by them, in case the levy of ferry charges is exorbitant. 8. 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 had taken a policy decision and on such matters, Governmental authorities can have no administrative or supervisory powers. 8. 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 had 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.