Halqua Panchayat Nagrota And Others vs Union Territory Of J&K And Others

Vinod Chatterji Koul, J

The present petition has been filed by the petitioners, who claim themselves to be Naib Sarpanch of Panchayat Bamyal and a prominent citizen of Panchayat Jagti of block Nagrota of District Jammu respectively, challenging Government Order No.267-RD&PR of 2019 dated 04.10.2019 by virtue of which the government has directed for resorting to e-tendering process with respect of the developmental works, vis a vis its operation in the halqa panchayats.

It is stated in the petition that in the year 2018 the Panchayat elections were held after a long gap in erstwhile State of Jammu and Kashmir, and during the same process the halqa pachayats in block Nagrota were also constituted. In the absence of a popular government in the Union Territory of Jammu and Kashmir, an endeavour has been consistently made to strengthen the democratic set up by empowering the panchayats, which have been conferred with the power to plan and execute the developmental works. As per the plan of the halqa panchayats, various developmental works were sanctioned in different halqa panchayats of block Nagrota including the halqa panchayat Nagrota for variable sums under various developmental schemes of the government. It is further stated that on account of failure of the respondents to initiate the tendering process with respect to the various works planned, approved and sanctioned in various halqa panchayats of block Nagrota, under the influence of impugned order, the funds which were available for undertaking the developmental works are likely to lapse for remaining unutilized funds at the end of financial year 2019- 2020. Due to poor internet services in the Union Territory of Jammu and Kashmir, especially in the rural areas, it is not appropriate to resort to the e-tendering process for carrying out the work which has been duly approved and for which money has already been earmarked and is likely to lapse for remaining unutilized.

Impugned Government Order No.267-RD&PR of 2019 dated 04.10.2019 has been challenged on the following grounds:-

a) That the impugned order is in violation of Rule 49 of the Panchayati Raj Rules, which categorically envisages that all the works may be executed by the Halqa Panchayat itself by employing daily labour without employment of any contractor, except the work involving technical aspect and financial investment beyond 3 lac;

b) That by issuing the impugned order the respondents have curtailed and contradicted the powers of halqa panchayats under rule 59 of J&K Panchayat Raj Rules, which deals with the mode in which the contracts are auctioned;

c) That the impugned order is contrary to the schedule I of Panchayati Raj Act, which empowers the halqa panchayats to plan and execute the construction work in their respective panchayats;

d) That by virtue of executive directions in terms of impugned order, the respondents have attempted to outwit the mandate of Panchayati Raj Act and rules framed thereunder, hence the same is required to be declared inoperative;

e) That the impugned order has been arbitrarily issued and the effect of suspension of internet services in the entire Union territory post August 5, 2019 has not been taken note of by respondent No.1, resultantly the fate of the developmental works planned by the panchayats and approved by the government and for which the funds stood earmarked, is hanging in uncertainty; and

f) That the petitioners are interested in the execution of work for which funds are lying with respondent No.4, but the work orders could not be issued in view of the issuance of impugned order, and if the approved developmental work is not undertaken in the panchayats it would prejudice them and violate the right impliedly enshrined in article 21 of the constitution.

With afore the submissions, learned counsel for the petitioners has prayed for allowing of the writ petition and quashing of Government Order No.267-RD&PR of 2019 dated 04.10.2019 being contrary to the mandate of Panchayati Raj Act and rules made thereunder.

Objections stand filed on behalf of respondents wherein it is specifically stated that impugned Government Order No.267-RD&PR of 2019 dated 04.10.2019 also came to be challenged in a number of petitions including WPC No.383/2020 titled Halqa Panchayat Sohangini Vs. UT of JK, in which, the Hon'ble Court after considering the matter, dismissed the writ petitions with lead case being WPC No.3580/2019 titled Prithpal Singh and ors. Vs. State of J&K and others vide judgment dated 18.03.2020. Further stand of the respondents is that present petition raises disputed questions of fact, as such, is liable to be rejected. The petition on hand filed by the Halqa Panchayat Nagrota is without any cause of action. It is, therefore, prayed that the instant petition is liable to be rejected.

Heard learned counsel for the petitioners and learned Sr. AAG representing the respondents at length.

The issue involved in this petition is identical to the issue in WP(C) No.3580/2019 clubbed with connected matters and a coordinate Bench of this Court has dismissed the said petitions vide judgment dated 18.03.2020. The relevant extract of said judgment is reproduced here as under:-

"34. The role of the Halqa Panchayat is not taken away with the impugned circular of the government order whereby they can identify the project to be executed and also carry out concurrent and quarterly social audit of all works/schemes/contracts being implemented in the Panchayat area as per the procedure notified by the Government (Section 12(3) ). This is how they can effectively participate in the developmental projects and ensure that every penny earmarked for the purpose of development in their area is used properly and the money is not thrown in drain. But the effort should not be to hold the projects for oblique motives. After all the infrastructure is to be created for the use of the residents of the area. They are the most affected persons in case the project is not properly implemented or delayed. In fact all concerned to work by joining their hands together to ensure proper development in the areas concerned.

The fact cannot be denied that for execution of any project wherever the tenders have been called, these are normally in two parts-namely the technical bid and the financial bid. The capacity of a person who bids for the project is examined first before opening the financial bid. All this expertise are not available with the Halqa Panchayat. There are norms laid down even for the projects to be executed by any of the agencies of the Government which are to be followed for the purpose. This highly technical work cannot be left at the hands of Halqa Panchayats, which are presently lacking technical qualifications and the expertise for the purpose."

Considering the contents of the petition and the objections filed by the respondents coupled with the submissions advanced at the Bar, this Court is of the considered view that the issue involved in the present case is no longer res integra as a coordinate Bench of this Court has already dealt with the identical matter bearing WP(C) No.3580/2019 clubbed with connected matters. This petition also merits dismissal and is accordingly dismissed.