IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 22ND APRIL 2008 / 2ND VAISAKHA 1930 WP(C).No. 10103 of 2008(C) -------------------------- PETITIONER: ------------ PHILIP THOMAS ,S/O.SCARIA, AGED 39 YEARS, PERKOTTU PADINJAREMURIYIL, ELANTHOOR P.O., PATHANAMTHITTA DISTRICT BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: ------------- 1. THE ELANTHOOR GRAMA PANCHAYAT ELANTHOOR P.O., PATHANAMTHITTA DISTRICT REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY ELANTHOOR GRAMA PANCHAYAT ELANTHOOR P.O., PATHANAMTHITTA DISTRICT. ADDITIONAL RESPONDENTS 3. THE KERALA STATE POLLUTION CONTROL BOARD DISTRICT OFFICE, PATHANAMTHITTA REP. BY SENIOR ENVIRONMENTAL ENGINEER POLLUTION CONTROL BOARD PATHANAMTHITTA 4. T.S.THOMAS @ PAPPACHAN THALATHAYIL HOUSE ELANTHOOR P.O. PATHANAMTHITTA Additional R3 is impleaded suo motu vide order dated 31-03-2008 Additional R4 is impleaded vide order dated 31-3-08 in I.A.No.4619/08 BY ADV. SRI.SIBY MATHEW ADV.SRI.M.K.CHANDRAMOHAN DAS, SC, PCB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/04/2008, THE COURT ON 22/04/2008 DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 10103 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of April, 2008 JUDGMENT The petitioner who has been conducting chicken stall and meat stall in room nos. 9 and 10 in Sree Chithiravilasam public market in Elanthoor owned by the first respondent Panchayat is challenging the public auction which the Panchayat is proposing regarding the right to conduct chicken stall and meat stall in room nos. 9 and 10 of the Panchayat market. The petitioner relies on condition No.6 in Ext.P6 auction notice dated 07/03/2008 whereby it is obligatory that the participants in the auction shall produce consent letter from the Kerala Pollution Control Board as is required under Board's letter PCB/PTA/TA-53/2005. According to the petitioner no other person in the Panchayat than him, is possessed of such consent letter and therefore the practice obtaining in the Panchayat was to allow him to have the right on paying 5% above the previous year's rate. This year also the petitioner expressed his willingness to pay 5% increase over WPC.No.10103/08 2 the previous year's rate. He submits that though the Secretary of the Panchayat had assured him that the right will be given to him since nobody else satisfies the 6th condition in Ext.P6, the Secretary is now going back on his words with the intention of giving the right to persons who do not satisfy the above condition No.6. 2. The following are the prayers in the writ petition; “1) To issue writ of mandamus or order or direction directing respondents to renew the licence of the petitioner for conducting chicken stall and meet stall in room Nos. 9 and 10 of Sree Chithiravilasam Public Market at Elanthoor and permit him to continue by enhancing the licence fee ( auction amount) by 5%. 2) To issue writ of mandamus or order or direction directing respondents not to conduct the auction regarding the right to conduct the chicken stall and meat stall in room Nos. 9 and 10 of Sree Chithiravilasam Public Market at Elanthoor. 3. On considering the writ petition for admission, I ordered notice on admission by special messenger and directed the petitioner also to participate in the auction which had been adjourned to WPC.No.10103/08 3 27/03/2008. I further directed the respondents namely, The Elanthoor Grama Panchayat - the first respondent and the Secretary, Elanthoor Grama Panchayat - the second respondent not to finalise the auction without obtaining orders in that regard from this court. It was also directed that the auction shall be strictly in conformity with the conditions in Ext.P6. Thereafter on 31/03/2008, the Pollution Control Board was impleaded as the additional third respondent and subsequently on the basis of I.A.No.4619/08 one Sri.T.S.Thomas, who had in the meanwhile become successful in the auction being the highest bidder, was also impleaded as additional 4th respondent. 4. A counter affidavit has been filed by the Panchayat wherein it is contended that Rule 11 of the Panchayat Raj ( Acquisition and Transfer of Property) Rules 2005 relied on by the petitioner to contend that there is no necessity to conduct auction and that the Panchayat is bound to allow him to conduct the chicken stall and meat stall on receiving 5% increase from him is not at all applicable. It is contended that the right which was given to the petitioner during the previous years was only the right or permission to run the chicken and meat stall WPC.No.10103/08 4 in rooms belonging to the Panchayat and that the rooms as such have not been let out to the petitioner at all. The Panchayat Raj (Acquisition and Transfer of Property)Rules 2005 relate only to grant of immovable property by the Panchayat by transfer, lease or licence and not to grant of rights in the nature of the right enjoyed by the petitioner. The judgment of this court in Marykutty George v. State of Kerala (2005 (2)KLT 515) is relied on in this context in the counter affidavit. It is contended that Ext.P6 is not the auction notice pursuant to which the Panchayat conducted the auction. Ext.R1(a) is the copy of the fresh auction notice on the basis of which the adjourned auction was proposed to be conducted on 27/03/2008. Relying on Ext.R1(a) it is contended that it is not necessary that the bidder by himself should own a slaughter house. It is sufficient that the animals are slaughtered in an approved slaughter house. Thus if the Panchayat owns a slaughter house, animals can be slaughtered in that slaughter house or animals can be slaughtered in slaughter houses approved by the Pollution Control Board in other areas. It is contended further that the petitioner cannot claim any preference over the other bidders on the ground that WPC.No.10103/08 5 he was running the chicken and meat stall during the previous years. Besides, difficulties were pointed out by other intending bidders and the Municipal Council passed resolution No.I(3) on 19/03/2008 ( the date of the auction notice) stipulating that the intending bidders need produce the consent from the Pollution Control Board only after the confirmation of the auction, but before the commencement of business. Ext.R1(b) is the copy of that Panchayat resolution. A notice on the basis of Ext.R1(b) was published on the notice board of the Panchayat office and in the auction hall on 26/03/2008. Ext.R1(c) is the copy of that notice. It is contended on the basis of Exts.R1(b) and ( c) that it is not necessary that the intending bidder should have the consent letter from the Pollution Control Board prior to the participation in the auction. In the auction conducted on the basis of Exts.R1(b ) and (c ) the highest bid was offered by the additional 4th respondent and the auction is to be confirmed in his favour in the best interest of the Panchayat. Unless other persons were allowed to participate in the auction there would not have been no competition and that would have been encouraging the monopoly which the petitioner is claiming. The WPC.No.10103/08 6 same would not have been in the interest of the public. A reply affidavit has been filed by the petitioner reiterating his contentions. 5. Sri.O.V.Maniprasad, counsel for the petitioner and Sri.Siby Mathew, counsel for the Panchayat were addressed me very extensively on the basis of the grounds/contentions and the documents placed on record. I am of the view that the Panchayat was justified in passing Ext.R1(b) resolution and allowing other intending bidders also to participate in the adjourned auction which was held on 27/03/2008. Insisting that every intending bidder should have a consent from the Pollution Control Board even prior to his participating in the auction will be to compel other such intending bidder to spend huge amount without any guarantee that his bid will be accepted in the auction. A resolution in the nature of Ext.R1(b) was necessary for encouraging more competition which would fetch more income to the Panchayat. The petitioner cannot claim exclusive right to conduct chicken and meat stall of the Panchayat for ever. Competition should be encouraged and imposing a restriction that consent from the Pollution Control Board should be obtained as a pre-condition for participating WPC.No.10103/08 7 in the auction will be to discourage competition and to perpetuate the monopoly of the petitioner. By insisting that business will be permitted to commence only after consent from the Pollution Control Board is produced, the mischiefs which are sought to be averted through Pollution Control Board's consent are effectively averted. The result of the above discussion is that the Writ Petition will stand dismissed. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.10103/08 8