Ratheesh M vs Udayanapuram Grama Panchayath Represented By Its Secretary

P.B.Suresh Kumar, J

The grievance of the petitioner in this writ petition concerns P5(a) notice issued by the second respondent, the Secretary of the first respondent

Grama Panchayat for assigning the right to operate the ferry service between Nerekadav â€" Makkekadav across Vembanad Lake.

2. Nerekadav is a place falling within the jurisdiction of the first respondent Grama Panchayat and Makkekadav is a place falling within the

jurisdiction of Thaikattussery Grama Panchayat. The ferry service between these two places is being operated under the supervision of a joint

committee consisting of the elected members of both the Panchayats by inviting quotations and by conducting auction from among the eligible ferry

operators. The right to operate the ferry service is assigned on an year to year basis by the Panchayats alternately. Pursuant to the decision taken by

the joint committee, the second respondent has issued a notice inviting quotations on 12.02.2021 for assigning the right to operate the ferry for the year

2021-22. Ext.P1 is the notice issued by the second respondent in this regard. In terms of Ext.P1 notice, the ferry operator who is offering the highest

amount is entitled to be assigned the right to conduct the ferry service, if he is not otherwise disqualified. The petitioner offered the highest amount in

response to Ext.P1 notice. The second respondent accepted the offer made by the petitioner and directed the petitioner to appear before the second

respondent with necessary documents to enter into the necessary agreement with the Panchayat before 3 p.m. on 24.02.2021. Ext.P3 is the

communication issued by the second respondent to the petitioner in this regard. In terms of Ext.P3, the second respondent has also directed the

petitioner to make available the documents referred to therein and deposit 25% of the amount offered by him on or before the said date. It is specified

in Ext.P3 communication that if the petitioner does not comply with the requirement in the said communication, the right to operate the ferry service

will be assigned to the ferry operator who has made the second highest offer, without further notice to the petitioner.

3. One of the documents directed to be produced in terms of Ext.P3 communication is stamp paper worth 1% of the amount offered for the

purpose of entering into the agreement. It is alleged by the petitioner that he appeared before the second respondent on 24.02.2021 and pointed out to

the second respondent that in terms of the provisions of the Stamp Act, the agreement can be executed in a stamp paper of Rs.200/- and stamp paper

worth 1% of the offered amount is not necessary for the said purpose. It is also alleged by the petitioner that the second respondent then informed the

petitioner that he needs to obtain legal advice on that aspect and permitted the petitioner to approach the second respondent for entering into the

agreement as and when required to do so, after obtaining legal advice. It is further alleged by the petitioner that though he contacted the second

respondent on several occasions thereafter, the second respondent did not permit the petitioner to enter into the agreement on the ground that, in view

of the Code of Conduct in connection with the election to the State Legislative Assembly came into effect in the meanwhile, the agreement can be

executed only after the election. It is stated by the petitioner that he has submitted Ext.P4 representation in the meanwhile requesting the second

respondent to expedite the execution of the agreement and permit the petitioner to operate the ferry service. The case set out by the petitioner in the

writ petition is that while he was awaiting a positive response from the second respondent on Ext.P4 representation, the Panchayat issued Ext.P5(a)

notice inviting fresh quotations for operating the ferry service for the very same period. According to the petitioner, as the offer made by him was the

highest in the process initiated in terms of Ext.P1 notice and as he was willing to comply with the conditions stipulated in Ext.P1 notice and Ext.P3

communication, the Panchayat is not justified in inviting fresh quotations for operating the ferry service for the very same period. The petitioner,

therefore, seeks orders quashing P5(a) notice and all further proceedings thereto. The petitioner also seeks directions to the first respondent to bring

the proceedings initiated in terms of Ext.P1 notice to its logical end so as to enable the petitioner to operate the ferry service.

4. A counter affidavit has been filed in the matter by the second respondent. The stand taken by the second respondent in the counter affidavit is

that since the petitioner has not turned up for executing the agreement with the Panchayat in response to Ext.P3 communication after complying with

the conditions stipulated therein, he has forfeited his right to operate the ferry service in the tender process commenced pursuant to Ext.P1 notice. It is

also the stand of the second respondent in the counter affidavit that since the petitioner did not comply with the requirements in Ext.P3 communication

before 3 p.m. on 24.02.2021, a meeting of the committee of the first respondent Grama Panchayat was convened on the same day itself to discuss

about the further course of action for operating the ferry service; that it has come out in the course of the discussion in the said meeting that after the

election to the local bodies took place during December 2020, a new joint committee consisting of newly elected members of the Panchayats should

have been constituted to supervise the operation of the ferry service and since Ext.P1 notice was issued on the basis of the decision taken by the joint

committee before its reconstitution, the proceedings initiated in terms of Ext.P1 notice was irregular. According to the Panchayat, it is in the

circumstances, the proceedings pursuant to Ext.P1 notice was cancelled and Ext.P5(a) notice was issued later based on the decision taken by the joint

committee, after its reconstitution.

5. Heard the learned counsel for the petitioner as also the learned counsel for the first respondent Panchayat.

6. As noted, the reason stated by the petitioner in the writ petition for not entering into the agreement on 24.02.2021 is that when he pointed out the

defect in Ext.P3 communication as regards the stamp paper to be produced for executing the agreement, the Secretary of the Panchayat informed

him that he needs to obtain legal advice on the defect pointed out by the petitioner and agreement can be executed only thereafter. Ext.P4 is the

representation submitted by the petitioner before the second respondent about two months after 24.02.2021. There is no reference in Ext.P4

concerning the defect in stamp paper which is stated to have been raised by the petitioner before the Secretary of the Panchayat on 24.02.2021.

There is also no statement in Ext.P4 that the petitioner appeared before the Secretary on 24.02.2021 with the remaining documents and with the

preparedness to remit 25% of the amount offered by him. Instead, what is stated by the petitioner in Ext.P4 is that he contacted the Secretary on

several days after Ext.P3 and he has been made to believe that there are some legal impediments in entering into the necessary agreement with the

petitioner and that he will be informed as to the date of execution of the agreement in due course. In the circumstances, according to me, the case set

out by the petitioner that it is on account of the defect pointed out by him concerning the stamp paper required to be produced, that the agreement

could not be executed on 24.02.2021 cannot be believed.

7. As noted, the specific case of the petitioner is that he has appeared before the second respondent on 24.02.2021 pursuant to Ext.P3

communication for execution of the agreement with necessary documents and with the preparedness to remit 25% of the amount offered by him,

whereas, the case of the respondents is that the petitioner has not turned up on 24.02.2021 pursuant to Ext.P3 communication for execution of the

agreement. The fact that there was a meeting of the committee of the Panchayat on 24.02.2021 to discuss about the operation of the ferry service is

not disputed by the petitioner. Ext.R1(a) is the minutes of the said meeting. It is recorded in Ext.R1(a) that the petitioner did not turn up pursuant to

Ext.P3 communication for execution of the agreement. Ext.R1(a) being the minutes of the meeting of the Panchayat held on the day on which the

petitioner was called upon to enter into necessary agreement for operation of the ferry service, there is absolutely no reason to doubt the correctness

of the statement recorded therein. In other words, the case of the petitioner that he has turned up before the Panchayat on 24.02.2021 pursuant to

Ext.P3 communication with necessary documents cannot be accepted.

8. Be that as it may. It is stated in Ext.R1(a) that Ext.P1 notice was issued pursuant to the decision taken by the joint committee of the two

Panchayats constituted for supervising the operation of the ferry service. In Ext.R1(a), the committee of the Panchayat has noticed that the said joint

committee should have been reconstituted before the said decision by including the newly elected members of both the Panchayats and that the

decision, on the basis of which Ext.P1 notice was issued, was therefore irregular. According to me, in a case of this nature, the committee of the

Panchayat cannot be found fault with for having cancelled the proceedings initiated in terms of Ext.P1 notice for assignment of the right to operate the

ferry service. It is all the more so since the petitioner did not appear before the Panchayat for execution of the necessary agreement with the

Panchayat for operation of the ferry service when called upon to do so. The materials on record indicate that after Ext.R1(a) decision, the joint

committee for supervision of the operation of the ferry service was reconstituted, and Ext.P5(a) notice was issued based on the decision taken by the

reconstituted joint committee.

In the light of the findings aforesaid, I do not find any merit in the writ petition and the same is, accordingly, dismissed.