THE HON'BLE SMT. JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 547 of 2004 Date: 22.10.2009 Between: The Perupalem alias Smbaldeevi Gram Panchayat rep. by its Executive OfficerMr. Ch.D. Prasad Rao and others. .... APPELLANTS AND The Government of A.P. rep. By its Secretary, Panchayat Raj & Rural Development Department, Secretariat, Hyderabad. .. Respondents. THE HON'BLE SMT. JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.547 of 2004 Oral Judgment: (Per Hon’ble Smt. Justice T. Meena Kumari) This writ appeal is directed against the order of the learned single judge made in Writ Petition No. 10772 of 1999, dated 21.7.2003 whereby and whereunder the writ petition filed by the appellants was dismissed. The appellants/writ petitioners filed the aforementioned writ petition before the learned single Judge seeking a Writ of Mandamus to declare G.O. Ms. No. 218, Panchayat Raj and Rural Development (PTS.IV) Department, dated 24.5.1999 of the 1st respondent, impugned therein, as wholly illegal, ultra vires, without jurisdiction and opposed to the provisions of the Panchayat Raj Act, 1964 and A.P. Panchayat Raj Act, 1994. According to the appellants/writ petitioners, by G.O. Ms. No. 218, dated 24.5.1999, the 1st respondent has directed for implementation of the earlier order issued by it in G.O. Ms. No. 2153, dated 28.10.1955 by the concerned authorities. They further state that under the said G.O., the Government issued orders in exercise of the powers conferred under the provisions of the Madras Canals and Public Ferries Act, 1890 assigned the management of operating a public ferry at Kalipatnam Village of Narsapur Taluk in the West Godavari District across Upputeru to the Village Panchayat, Kalipatnam notifying the ferry as Pathapadu (H/o. Kalipatnam to Chinnagollapalem ferry); and that the income derived from the operation of the ferry shall be apportioned equally between the village Panchayats of Kalipatnam of West Godavari District and Chinnagollapalem village of Krishna District. They further pleaded that under Section 66 of the Panchayat Raj Act, a public ferry vests in the Gram Panchayat. Since the area covered by Upputeru is situated within the limits of Pathapadu Gram Panchayat, the ferry across Upputeru river lies within the limits of Pathapadu Gram Panchayat and therefore it will have complete control and not the 4th respondent, as sought to be shown. It is also pointed out that no portion of Upputeru fell within the limits of Gram Panchayat, Chinnagollapalem. It is further stated that as per the proceedings dated 28.5.1983, the District Collector, West Godavari issued orders to the Divisional Panchayat Officer to adjust the amounts to Chinnagollapalem, which is wholly illegal and therefore the appellant filed earlier a writ petition in W.P. No. 11246 of 1997, questioning para-2 of G.O. Ms. No.2153, dated 28.10.1955 and the consequential orders dated 28.5.1983. The said writ petition was disposed of directing the Government to settle the dispute inter se. Pursuant to which the Government passed the impugned G.O. Ms. No. 218, dated 24.5.1999 reiterating the earlier orders passed in G.O. Ms. No. 2153, dated 28.10.1955. The appellants sought to challenge the same on the ground that the ferry completely falls within the area of Kalipatnam Village of West Godavari District and therefore the 4th respondent Gram Panchayat has no right over the ferry and that sharing of any income between them does not arise. It is further stated that even geographically also Chinnagollapalem is surrounded by water and there is no road facility from any village. They further pointed out that the 1st respondent without issuing proper notification with regard to sharing of income is contemplating to adjust the income, which is highly illegal. While opposing the claim of the appellants, the respondent-authorities filed counter before the learned single judge stating that having regard to the notification issued under Section 10 of the A.P.(Andhra Area) Canals and Public Ferries Act, 1890, the provisions of the Panchayat Raj Act have no relevance to the question in issue and once the ferry in questio is declared as a public ferry under the provisions of the Act, 1890, the ownership as well as the management vests in the Government and not in the Gram Panchayats and, therefore, the Gram Panchayats cannot make any claim. They also denied the allegation that the ferry in question falls within the limits of the appellant-Gram Panchayats. The respondent No.4 also filed counter affidavit while reiterating the very same contentions which were taken by the other respondents. A reply affidavit has also been filed by the appellants stating that since there is no notification as contemplated under Section 10 of the A.P. (A.A.) Canals and Public Ferries Act, 1890 for sharing of income, it cannot be said that they have no claim over the ferry in question. The learned single Judge while taking into consideration the fact that the impugned order came to be passed by the 1st respondent in pursuance of an order passed by this Court in Writ Petition No.11246 of 1997 and since it has been reiterated under the impugned order that the ferry in question is a public ferry, it vests in the Government; that the appellants cannot have any claim over it and the provisions of the A.P. Panchyat Raj Act will not step in. The learned single judge also did not agree with the contention of the learned counsel for the appellants that there is no notification under Section 10 of the A.P. (Andhra Area) Canals and Public Ferries Act, 1890. The Government has already decided under Section 10 of the A.P. (Andhra Area) Canals and Public Ferries Act, 1890 and declared it as a public ferry even in the year 1955 and the same is reiterated in the impugned order by taking into consideration, the geographical location. Therefore, the appellants cannot make any claim over the management of such ferry which has already been declared as a public ferry. While so opining, the learned single Judge held that the appellants have no right to claim any control over the public ferry and accordingly dismissed the writ petition. Aggrieved, the appellants have filed the present appeal. Sri M. Adinarayana Raju, learned counsel for the appellants would contend that as per Section 57 of the A.P. Panchayat Raj Act, “notwithstanding anything contained in the A.P. (Andhra Area )Canals and Public Ferries Act, 1890, the management of public ferry in the Andhra Area shall vest in the case of ferry connecting any public road under the management of Gram Panchayat in such Gram Panchayat and lying within the jurisdiction of more than one Gram Panchayat, in a joint committee of the Gram Panchayats concerned and the learned single judge without taking the aforesaid provision into consideration held that the local authorities cannot have any claim over the management of such ferry.” Learned counsel contends that since the learned single Judge without considering the aforesaid fact has dismissed the writ petition, the writ appeal be allowed and the impugned order be set aside. Sri G. Krishna Murthy, learned counsel for the respondent No.4 has contended that Chinnagollapalem Village is situated between Upputeru on Northern side and Bay of Bengal on Southern side and because of the straight cut, it was made as an island and the Upputeru which starts from the village of Akiveedu of West Godavari District ultimately merges in Bay of Bengal at their Gram Panchayat. He further submits that the 4th respondent village is covered by the provisions of the A.P. Canals and Public Ferries Act of 1890 and rules made thereunder and the Government also issued G.O. Ms. No. 2153, Public Works and Transport Department, dated 28.10.1955 notifying the village of Kalipatnam as a ferry at Pathapadu Hamlet of Kalipatnam to Chinnagollapalem within the limits prescribed under the said notification for the purpose of operation of ferry in between the two villages and the said G.O. was issued basing on the orders issued by the Government in G.O. Ms. No.3304, Public Works dated 6.11.1947 and the said G.O. clearly states that the income derived from the ferry operation shall be apportioned between the two Gram Panchayats namely; Kalipatnam and 4th respondent Gram Panchayat. Subsequently, the said Kalipatnam village was bifurcated into Kalipatnam East and Pathapadu in the year 1978. The village Perupalem was also declared as a separate village under the provisions of the A.P. Gram Panchayat Act and they started collecting the fares as fixed by the Government from passengers goods, animals etc. Since the ferry in question is connecting the public road under the management of the 4th respondent Gram Panchayat at which the public road vests with the appellants and hence the 4th respondent is entitled to share income derived from the ferries. He would further contend that since there is a dispute between the appellants-Gram Panchayat and the 4th respondent with regard to sharing of income being derived from the ferry in question, the Government has to conduct an enquiry with one of its officers of Panchayat Raj Department or through the Collector of that particular District. In support of this contention, he relied on a judgment of this Court in Gram Panchayat, Kesankurru vs. Gram Panchayat, Kundaleswaram & Others([1]). Hence, he submitted that the impugned order does not require any interference at the hands of this Court. Heard the learned counsel for the parties and perused the impugned order. On a perusal of the record, it is seen that a similar issue has arisen for consideration in Writ Appeal No. 50 of 1968. A Division Bench of this Court through the judgment reported in Kesanakurru Panchayat’s case cited supra, on an elaborate consideration of the issue, has allowed the writ appeal through the judgment reported in Kesanakurru Gram Panchayat (cited supra). It would be relevant to extract the relevant portion, which reads thus: “Section 234 of the Gram Panchayats Act lays down that when a dispute exists between a Gram Panchayat and one or more other local authorities in regard to any matter arising under the provisions of the Gram Panchayats Act or any other Act and the Government are of the opinion that the Gram Panchayat and the other local authorities concerned are unable to settle it amicably among themselves, the Government may take cognisance of the dispute and either decide it themselves or refer it for inquiry and report to an arbitrator or a Board of arbitrators or to a joint committee constituted under Section 42 of the Act. It will thus be clear that in case Kundaleswaram Gram Panchayat thinks, that it has a right to manage the declared the public ferry under Section 66(1) (a) either under the first or second part of the said provision, it can always approach the Government to get that dispute heard and decided in accordance with the said provision. It is only in such an enquiry that the allegations and counter allegations made in the petition and the counter regarding the situation and limits of the Gram Panchayat can be gone into and decision taken. It is not possible for this Court to embark upon an enquiry in regard to that question, the duty to enquire which is cast by Section 234 on the Government. The right to manage the ferry, if any, of the petitioner, also is not affected by the notification. Except the right to manage, it is already seen that the petitioner has not claimed any other right. Admittedly, the petitioner had no proprietary right over this ferry which is treated as a property to be acquired in lawful manner. If it has right to management under Section 66 as is claimed in the petition, there is a dispute it can be got settled under Section 234”. It is quite clear from the aforesaid judgment that when a dispute arises between a Gram Panchayat and one or more local authorities with regard to any matter and if the local authorities are not able to settle the issue amicably among themselves, the Government may take cognisance of the dispute and either decide the same or refer it for enquiry and report to an Arbitrator or a Board of Arbitrators or a Joint Committee and this Court cannot embark upon an enquiry with regard to such an issue. In the instant case also, there is a dispute between two local authorities with regard to management of the ferry and sharing of the income being derived from operation of such ferry. Admittedly, the Government has got a bounden duty either to conduct enquiry with one of its Officers of Panchayat Raj Department or through the Collector of the particular District to come to the conclusion with regard to the management of the public ferry. On a perusal of the impugned G.O. Ms.No.218, dated 24.5.1999, it is seen that no such enquiry has been conducted by the Government before issuing the impugned G.O. directing implementation of the orders issued in G.O. Ms. No. 2153, dated 28.10.1955. There is no material placed before this Court by any of the parties to show that the Government has conducted such an enquiry as contemplated under Section 273 of the Panchayat Raj Act, 1994 before issuing the impugned G.O. Further, on a perusal of G.O. Ms. No.218, dated 24.5.1999, it is seen that though in the references mentioned therein, the Government has referred to the representations of the Sarpanches of Chinnagollapalem and the written arguments of the Sarpanches of Gram Panchayats of Kalipatnam and Perupalem and Pathapadu, but in the impugned G.O., the Government does not refer to any of the grounds urged by the aforesaid Gram Panchayats. Thus, we are of the opinion that the Government has not applied its mind to the real issues involved in the adjudication of the disputes. Hence, we are of the opinion that the matter requires to be remanded back to the 1st respondent for conducting fresh enquiry. Accordingly, we set aside the impugned order of the learned single judge and remand the matter to the 1st respondent for conducting fresh enquiry with reference to the subject matter in dispute, especially, on the issue as to whether the appellant-Gram Panchayats and the 4th respondent are entitled to the income being derived from the operation of the ferry in question and the apportionment thereof. The 1st respondent shall now decide the same afresh, while keeping in view the provisions of Section 57 of the A.P. Panchayat Raj Act, 1994. With the above observations, the writ appeal is disposed of. No costs. ___________________ T.MEENA KUMARI,J Date: 22nd October, 2009 _________________ SANJAY KUMAR,J pnb [1]1972 ILR A.P. page 857