IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 8636 of 2007(C) ------------------------------------- PETITIONERS: ----------------------- 1. PUTHENVALIKARA PASSENGERS ASSOCIATION, REPRESENTED BY ITS PRESIDENT P.S.BAIJU, AGED 48, S/O. SUKUMARAN, RESIDING AT POOTHUTHARA HOUSE, PUTHENVELIKARA, NORTH PARUR. 2. V.K.MURALI, SECRETARY, PUTHENVELIKKARA PASSENGERS ASSOCIATION, RESIDING AT VEETUVANTHARA HOUSE, PUTHENVELIKKARA, NORTH PARUR. BY ADV. SRI.B.RAMACHANDRAN RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, MINISTRY OF LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. PUTHENVELIKKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PUTHENVALIKKARA, NORTH PARUR. ADV. SRI.JOHN JOSEPH VETTIKAD SRI.SABU GEORGE SRI. V. TEK CHAND, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8636 of 2007 APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: TRUE COPY OF G.O, M.S. NO.54/96/TR. D DATED 1/8/1996. EXHIBIT P2: TRUE COPY OF DECISION NO. 3 DATED 27/12/2005 FIXING TERMS AND CONDITIONS OF THE FERRY CONTRACT. EXHIBIT P3: TRUE COPY OF DECISION NO.4 DATED 27/12/2005 REGARDING RATES, TIME AND SCHEDULE. EXHIBIT P4: TRUE COPY OF REPRESENTATION DATED 12/1/2007. EXHIBITP 5: TRUE COPY OF NEWS APPEARED ON MALAYALA MANORAMA DATED 11/2/2007. EXHIBIT P6: TRUE COPY OF NEWS APPEARED IN MALAYALA MANORAMA DATED 13/2/2007. EXHIBIT P7: TRUE COPY OF NEWS APPEARED IN MALAYALA MANORAMA DATED 14/2/2007. EXHIBIT P8: TRUE COPY OF DECISION NO.111(1) DATED 15/2/2007 OF THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE pac P.R.RAMACHANDRA MENON, J. --------------------------------------- W.P.(C) No.8636 OF 2007 --------------------------------------- Dated this the 25th day of March, 2009 JUDGMENT The challenge in this writ petition is against the increase in the ferry charges brought about by the second respondent Panchayath, stating that the second respondent Panchayath ought to have adhered to the rates fixed by the first respondent Government as per Ext.P1 Government Order. The petitioners have also got a grievance that the Panchayath has given the right to collect the ferry charges to others on contract basis and that the contractor is extracting money from the passengers without any regard to the actual facts and figures and without complying with the terms and conditions specified by the Panchayath while giving such right in auction. It is further contended that the contractor is not properly operating the ferry, which made the petitioners to file Ext.P4 representation before the second respondent. 2. The second respondent Panchayath has filed a W.P.(C) No.8636 of 2007 2 counter affidavit stating that Ext.P1 notification was passed as early as in the year 1996 and that it is with regard to the rates to be collected from the ferries noted therein and not with regard to the issue involved in the present writ petition. It is further contended that after the promulgation of the Kerala Panchayath Raj Act, 1994 the ferries which were previously conducted by the PWD of the Government have been handed over to the concerned Grama Panchayaths and District Panchayaths. The second respondent further points out that the Government had issued G.O.(P) No.189/1995 dated 18.09.1996 declaring that the respondent Grama Panchayath would have full control over all the ferries which fall within their jurisdiction. The Panchayath also places reliance on the judgment rendered by this Court in O.P.No.1072/1996 to contend that the right to conduct the ferry service is exclusively with the Grama Panchayaths and District Panchayaths in accordance with the Kerala Panchayath Raj Act and Rules. It was accordingly that the Panchayath had W.P.(C) No.8636 of 2007 3 taken over the concerned ferry on 07.06.1996 as per resolution No.37 dated on the same day and as such, it is absolutely for the Panchayath to fix the ferry charges and the manner of operation. 3. With regard to the rate of enhancement, the learned counsel for the Panchayath, referring to the facts and figures given in the counter affidavit and the undisputed figures brought out in the writ petition, submits that the enhancement of the ferry charges was made several years after Ext.P1 rates issued in August, 1996. Subsequently in the year 2007, it was further enhanced on a nominal basis as explained in para 6 of the counter affidavit. Since the authority of the Panchayath to conduct the ferry and to fix the ferry charges has not been controverted from the part of the petitioners, the decision taken by the Panchayath to conduct the ferry by assigning the right by way of public auction and also fixing the rates permitted to be realised by the contractor cannot be assailed under any circumstances. W.P.(C) No.8636 of 2007 4 4. The learned counsel for the petitioners submits that the contractor to whom the rights have been assigned by the second respondent for conducting the ferry is not complying with the terms and conditions proceeded by the Panchayath and is even collecting the charges according to his whims and fancies. But it is to be noted that the said contractor has not been brought into the party array. In such circumstances, the remedy of the petitioners can only be by approaching the second respondent Panchayath pointing out the specific instances as to the violation on the part of the contractor. The petitioners are at liberty to approach the second respondent by filing appropriate representation within a period of one month and on such event, the second respondent shall consider and finalise the same after giving an opportunity of hearing to the petitioners and also to the concerned contractor and pass final orders thereon ensuring that the terms and conditions prescribed by the Panchayath are satisfied and implemented by the contractor. Final orders in this regard W.P.(C) No.8636 of 2007 5 shall be passed as expeditiously as possible and at any rate within a period of three months after the receipt of the copy of the representation. The writ petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE pac