Mohd Latief & others V. Union Territory of J&K and others

WP(C)/2045/2021

AI Insights

The case involves two petitions filed by different groups challenging the issuance of e-NITs (electronic Notice Inviting Tenders) for various construction works in Panchayats, arguing that it violated the Jammu and Kashmir Panchayati Raj Rules, 1996. The petitioners, comprising elected Sarpanches and unemployed youths, contended that such works, especially those under a financial threshold of Rupees Three Lacs, should be executed by Halqa Panchayats using daily labor without involving contractors. The respondents defended the e-NITs by asserting that the works were of a technical nature and required expertise, thus justifying the use of contractors. The court's decision leaned on the technical requirements of the projects and the specific provisions of the Back to Village Programme, which emphasized the need for e-Tendering to ensure proper utilization of funds.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 808937 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 24-03-2022
• Assessment Year: misc
• Other Referred Cases: Sant Ram Sharma vs. State of Rajasthan & anr., C.L Verma vs. State of M.P & anr., Chief Commercial Manager, South Central Railway, Secunderabad & ors. vs. G. Ratnam & ors., Pritpal Singh and others vs. State of J&K and others, Halqua Panchayat Nagrota vs. U.T of J&K and others, Ravinder Singh & ors. vs. State & Ors.
• Laws Referred To: Jammu and Kashmir Panchayati Raj Rules, 1996, Article-14 of the Constitution
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: D C RAINA; AYJAZ LONE
• Assessee Lawyers: MUZAFFAR KHAN; UMAR AEJAZ; TAUSEEF ZARGAR; N D QAZI; WASEEM AKRAM
• Keywords: E-NIT; Panchayati Raj; Tendering; Halqa Panchayat; Technical nature of work
• Section: 49

Judgement Text

" HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 1887/2021 CM Nos. 7088/2021 & 7936/2021 in WP(C) No. 2045/2021 CM No. 7547/2021 Pronounced on: 24.03.2022 Mohd Latief & others …. Petitioner (s) Through:- Mr. Muzaffar Iqbal Khan, Advocate Mr. Umar Aejaz, Advocate in WP(C) No. 1887/2021 Mr. Tauseef Zargar, Advocate Mr. N. D. Qazi, Advocate Mr. Waseem Akram, Advocate in WP(C) No. 2045/2021 V/s Union Territory of J&K and others …..Respondent(s) Through:- Mr. D. C. Raina, Advocate General with Mr. Ayjaz Lone, Dy. A.G. CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. In both the petitions, the controversy involved is similar, as such, these are taken up together for consideration and disposal by this common judgment. 02. The petitioners in WP(C) No. 1887/2021, are the elected Sarpanches of District Rajouri and they are aggrieved of e-NIT No. 42 REW Rajouri of 2021 dated 02.09.2021 vide which e-tenders have been invited for execution of works at various Panchayats on the ground that the same are in violation of the Jammu and Kashmir Panchayati Raj Rules, 1996. 2 WP(C) Nos. 1887/2021 & 2045/2021 03. The petitioners in WP(C) No. 2045/2021 are unemployed youths of Village Ganika, Tehsil Bhagwah, Distirct Doda and theyare also aggrieved of e-tenders i.e., e-NIT No. 15/capex of REW Doda 2021-22 dated 08.09.2021 and e-NIT No. 02/capex of REW Doda 2021-22 dated 24.08.2021 for works under Capex Budget scheme as the same are in violation the Panchayati Raj Rules, 1996. 04. The petitioners submit that these e-NITs have been invited in contravention to the Jammu and Kashmir Panchayati Raj Rules, 1996, even with regard to those works which are less than of Rupees Three Lacs. The Panchayati Raj Rules provide that all works may be executed by Halqa Panchayat itself and no contractor should be employed, except for work of highly technical nature or involving financial investment of more than Rupees Three Lacs. 05. The petitioners have also questioned Government Order No. 251- FD of 2020 dated 17.09.2020 vide which it was directed that all allotment of works shall be based on tendering and could be limited to the Members of the Gram Sabha of each Panchayat of the village concerned. According to the petitioners, the Halqa Panchayat is empowered within the area of its jurisdiction for sanctioning of projects and preparation of list of works approved by them and they can also execute the work by employing daily labour. 06. The petitioners submit that the execution of the works by the Halqa Panchayat is to be executed by employing daily labour and the respondents, suddenly without any reason have started insisting for engaging contractors for all works by inviting tenders in violation of the Jammu and Kashmir Panchayati Raj Rules, 1996. In this regard, it is contended that it is an interference in the performance of duties and 3 WP(C) Nos. 1887/2021 & 2045/2021 responsibilities and discretion conferred on the Panchayati Raj Institutions would make execution of small projects not only difficult but also almost impossible. 07. It is also submitted that the smaller projects are indispensable for the development of the Panchayats as every Panchayat does not have an eligible contractor to participate in the bidding process. The respondents by allowing the contractors to execute projects involving such small financial investments would, in fact, render them unexecuted, for want of eligible contractors to participate in the process due to the nature of work and small amount invested. This would result in inordinate delay in the execution of the projects of the Panchayats which though same are of every day’s importance. 08. Lastly, it was argued that the procedure to execute the works has been provided under the Panchayati Raj Act and Rules, and once the procedure has been provided, it was incumbent upon the respondents to proceed with the procedure in the same manner. The respondents instead of following the requisite procedure, have issued Government Order No. 251- FD of 2020 dated 17.09.2020. 09. The Government Order dated 17.09.2020 is issued in furtherance of Govt. order No. 247-FD 2020 dated 09.09.2020 which is regarding authorization of funds for execution of work under Back to Village Programme. The Government Order No. 251-FD of 2020 dated 17.09.2020 directs that allotment of all works of each panchayat shall be based on tendering but the same may be limited to members of Gram Sabha. 10. The petitioners, thus, are aggrieved of the action of the respondents in issuing e-NITs for execution of works on the ground that it would not only be difficult but rather impossible for the petitioners to 4 WP(C) Nos. 1887/2021 & 2045/2021 execute the smaller projects indispensable for the development of their respective Panchayats as every Panchayat of the area may not have an eligible contractor to participate in the bidding process, therefore, small- scale projects involving small financial investment would be left unexecuted. The tendering of each project of the Panchayat would be resulted in delay of small projects besides being in violation of Rule-49 of the Jammu and Kashmir Panchayati Raj Rules, 1996. 11. Mr. Muzaffar Iqbal Khan, learned counsel submits that the Jammu and Kashmir Panchayati Raj Rules, 1996 prescribed a specific procedure to be followed for execution of work by the Halqa Panchayat. It provides for execution of work by the Panchayat itself by employing daily labourer and has provided no exemption from tendering of the same except investment involving more than Rupees Three Lacs. 12. The petitioners have placed reliance on the judgments of Hon’ble the Apex Court in “AIR 1967 SC 1910; Sant Ram Sharma vs. State of Rajasthan & anr.”, “AIR 1990 SC 463; C.L Verma vs. State of M.P & anr.” and also on “AIR 2007 SC 2976; Chief Commercial Manager, South Central Railway, Secunderabad & ors. vs. G. Ratnam & ors.” in support of his contentions that administrative instructions cannot compete with statutory rule and between the two rule prevail. 13. The respondents, therefore, are not justified in issuing tender for works involving financial investment of less than of Rupees Three Lacs and these e-NITs have been issued against the provisions of Jammu and Kashmir Panchayati Raj Rules, 1996 and, therefore, their action is arbitrary and in violation of Article-14 of the Constitution. 14. The respondents in their objections have submitted that under the 3rd phase of Back to Village (B2V3) Programme and conducting of Jan 5 WP(C) Nos. 1887/2021 & 2045/2021 Abhiyan Muhim, the Government of Jammu & Kashmir, Finance Department vide Government Order No. 247-FD 2020 dated 09.09.2020 accorded sanction to the authorization of Rs. 10 Lacs in favour of each Panchayat for execution of works under Back to Village Programme. The utilization of funds is subjected to various conditions which included condition No. (i) That no work shall be executed without accord of AAA/TS and mandatory e-Tendering. Subsequently, in furtherance to Government Order No. 247 of FD of 2020 dated 09.09.2020, Government Order No. 251-FD of 2020 dated 17.09.2020 was issued which prescribed that the allotment of works shall be based on tendering which can be limited to members of Gram Sabha of each Panchayat for B2V3 plan. However, in respect of the funds to be utilized in convergence from other schemes like MGNERGA and F.C grants, the existing scheme guidelines shall apply. 15. In terms of these instructions, all works under the B2V3 plan were to be executed by e-Tendering only and however, by Government Order No. 251 FD of 2020, allotment of works shall be based on tendering which could be limited to the Members of the Gram Sabha of each Panchayat and accordingly, registration of Contractors/e-Tendering was sought. Subsequently, the Administrative Council vide its decision dated 14.08.2021, issued Government Order No. 238-FD of 2021 dated 07.09.2021, which has restricted the participation of tendering process works up to an amount of Rupees Three Lacs to the residents of the concerned Panchayat and, in case, of inadequate response of a tender, participation from the adjoining Panchayats was permitted. 16. A simple execution system for registration was introduced. Lastly, it is said that there is no bar under Rule-49 for carrying out of works 6 WP(C) Nos. 1887/2021 & 2045/2021 in a Panchayat through contractor if the work demands technical expertise in carrying out the same. It is submitted that the works advertised in the impugned e-NITs are of technical nature, as such, the instant petition is misconceived and deserves to be dismissed. 17. The respondents have further stated that the Finance Department has issued Government Order No. 162-FD of 2018 dated 28.03.2018 and had made e-Tendering compulsory for all works. It is submitted that this order was issued in compliance to the Order passed in WP(C) No. 1629 of 2016 titled “Ravinder Singh & ors. vs. State & Ors.”. The respondents submit that the works advertised by e-NITs are of technical in nature, as such, there is no bar in their execution by the Contractor i.e. Tenderer. 18. The issue in this petition pertains to Rule-49 of the Jammu and Kashmir Panchayati Raj Rules, 1996 which reads as under: “Execution of works.- All works may be executed by the Halqa panchayat itself by employing daily labour. However, no contractor shall be employed except for work of highly technical nature or involving financial investment of more than Rs. 3.00 lacs.” 19. The works advertised in the e-NIT are of technical in nature, as such, there was no bar in execution of the same through Contractor. Perusal of the list of works advertised in terms of e-NITs reflects that these works also required technical expertise and are highly technical in nature, therefore, the respondents were well within their rights to issue e-NITs. This coupled with the fact that the very funds received by the Halqa Panchayat for undertaking all these development works have been under Back To Village Programme which contains the mandatory condition that no work shall be executed without e-Tendering in terms of Government Order No. 247 of FD of 2020 dated 09.09.2020. The respondents have thus 7 WP(C) Nos. 1887/2021 & 2045/2021 rightly issued tenders for these works to be able to utilize the funds and see that they are properly executed. More so, when they were limited to the residents of the concerned Panchayat. 20. This Court while considering a similar issue in WP(C) No. 3580 of 2019 titled “Pritpal Singh and others vs. State of J&K and others” has already considered similar issues. Para 28, 34 and 36 being relevant are reproduced below: 28. The argument of the petitioners that in the rural area, the projects are not of technical nature, is totally misconceived. Even construction of a drain or even a road also requires technical evaluation and knowledge for execution thereof. For example, natural flow of water has to be ensured in any drain and similarly for the purpose of construction of road, it has to be ensured that the water does not accumulate on any portion besides the strength of the road considering the load of traffic for which the same is to be used. These cannot be executed by the daily rated laborers only. The idea is to best utilize the funds. It is the tax payers money which is ultimately utilized. It is the responsibility of all of us to ensure that there is no pilferage. It is not a secret that as compared to population of more than 130 crores in the country only 1.5 crore people pays income tax. And the assessees who file return of income above ₹50 lakhs is about 3 lakhs only. 34. The role of the Halqa Panchayat is not taken away with the impugned circular or 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 8 WP(C) Nos. 1887/2021 & 2045/2021 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. 36. 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. 21. The only apprehension expressed by the petitioners is that it would be impossible for them to execute the smaller projects, which are indispensable to development of the respective Panchayats, and there may not be an eligible contractor to participate in the tendering process, which due to small financial investment would be left unexecuted for want of eligible contractor. This, however, is only an apprehension stands taken care by the Government Order No. 238-FD of 2021 dated 07.09.2021 which restricts the participation of these works to the residents of concerned Panchayat. 22. It is in the public interest to execute projects by inviting tenders and more so by persons who have knowledge and experience of the same. The list of works tendered includes that of construction of sheds, wall, Playground and road, cannot be required technical knowledge and cannot 9 WP(C) Nos. 1887/2021 & 2045/2021 be undertaken by daily labourers. The respondents, while issuing Government Order only prescribed procedure for sanction of plan for optimum utilization of its funds, for the benefit of the Panchayat of public at large. The judgments relied upon by the learned counsel for the petitioners governing the field of administrative law and are not applicable to the facts and circumstances of the present case, as all these works require technical expertise. These works have been tendered to effectively utilize the funds under Back to Village (B2V3) Programme as it was mandatory upon the respondents to tender all works. As this issue stands settled by a coordinate Bench of this Court in “Pritpal Singh and ors. Vs. State of J&K and ors.” and in “Halqua Panchayat Nagrota vs. U.T of J&K and others WP(C) No. 935 of 2020” and I find no reason in this case to take a different view. 23. In view of the aforesaid discussion, there is no merit in these petitions and the same are, accordingly, dismissed alongwith connected application(s). (Sindhu Sharma) Judge JAMMU 24.03.2022 SUNIL-II Whether the Judgment is speaking : Yes Whether the Judgment is reportable : Yes SUNIL KUMAR 2022.03.30 10:44 I attest to the accuracy and integrity of this document "