KURUPPASSERI CHEEKU JOSEPH Vs. PALLIPPURAM PANCHAYAT

JUDGEMENT

(1.) THE apparent conflict between the fields of operation of two State laws, the Travancore Public Canals and Public Ferries Act (for short, the Travancore Act) and the Kerala Panchayats Act, (for short, the Panchayats Act) in the context of a claim by two citizens to navigate a canal under a licence issued under the former Act and the monopoly right to operate a ferry claimed by the Panchayat under the Panchayats Act, has been argued with refreshing thoroughness by the counsel on both sides, arguments covering certain definite and determinate regions and some grey regions of doubt, leaving me to choose between a citizen's right as opposed to the right of a local authority. If I lean on the side of the Panchayat, I will be acting in furtherance of the directive principles contained in Article 40 of the Constitution; while in accepting the petitioner's case would be to concede to him the fundamental right to navigate a public canal. I will indicate my preference as the case unfolds itself. The petitioners are residents of the Vadakkekara Panchayat. The ferry in question is the Munambam -Maliyankara ferry. The banks of the backwaters on the eastern side is in the Vadakkekara Panchayat while on the western side in the Pallippuram Panchayat. One of the petitioners obtained Ext. P1 licence to navigate the canal. Sometime in 1966, for the first time, the 1st respondent (Pallippuram Panchayat) made an attempt to auction the rights to carry the passengers across the ferry. Three persons who claimed prescriptive right to navigate the canal filed O.S. No. 507 of 1966 on the file of the Munsiff's Court, Parur. The suit was originally decreed : but on appeal it was remanded. Ultimately, the suit was dismissed repelling the case based on prescriptive title. Another suit appears to have been filed against the Panchayat for an injunction. The petitioners were not parties in these suits. The question and effect of the licences granted to the petitioners under the Travancore Act and the effect of the declaration of the ferry under the provisions of that Act were not raised by either side. It was more or less assumed that the Panchayat had certain rights. The 1st respondent issued a notification Ext. P3 to conduct an auction to collect the ferry fees. The Director of Panchayats, Trivandrum, has issued Ext. P2 circular containing instructions to regulate the opening and maintenance of ferries within the Panchayat area. This writ petition is filed for a declaration that the provisions of the Panchayats Act do not empower or authorise the 1st respondent to separate a ferry service, to declare that such operation would infringe the fundamental rights of the petitioners under Art. 19(1) (g) of the Constitution, to quash Ext. P3, to issue a direction to the 1st respondent restraining it from proceeding further pursuant to Ext. P3 notification and for other reliefs.

(2.) THE case of the petitioners is controverted in detail by the 1st respondent Panchayat in its counter -affidavit and its case is put forward as follows : Under the Panchayats Act and the Kerala Panchayat (Accounts) Rules, 1966, the manner in which the right to collect the fees in respect of a ferry proposed to be leased has been detailed. The maintenance of the ferry is one of the duties of the Panchayat. The Panchayat takes into account the public interest involved in the opening of the ferry and conducting it under its supervision, control and direction. There had been several complaints against the way in which some persons with vested interests were plying vessels to conduct the ferry service. Such vessels were of comparatively low capacity and were carrying large number of passengers. This had resulted, on very many occasions, in the capsizing of boats. The private individuals are only interested in collecting the maximum amount and have scant regard for the safety of the passengers,

(3.) IN an additional affidavit filed by the 1st respondent it is stated that the Vadakkekara Panchayat had agreed to the auction proposed by the 1st respondent and resolution No. 198 of 1981 was passed concurring with the auction for the year 1981 -82. The auction was confirmed and the ferry is being operated by a person in whose favour the auction was confirmed. In the reply affidavit filed by the petitioners they have reiterated what they stated in their petition. Ext. P2 circular has the force of law. The 1st respondent itself has relief upon a circular published in the Panchayat journal to substantiate its authority. For the same reason Ext. P2 circular should also be respected by the 1st respondent. Public interest will not suffer in any way as there is no existing ferry service by the Panchayat.