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2018 DIGILAW 626 (JK)

Raj Kumar Bhagat v. State of J&K

2018-08-10

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2018
JUDGMENT : D.S. Thakur, J. 1. The present Letters Patent Appeal has been preferred against the judgment and order dated 29.11.2017, passed by the learned Single Judge in writ petition bearing OWP No. 463/2016. 2. In the writ petition, the case of the petitioners was that the contract for building the Common Facility Centre (CFC) in Village Sahar, Tehsil and District Kathua, was allotted to the Secretary of the said Panchayat by the Block Development Officer, which allotment was contrary to the codal procedures prescribed for allotment of Government contracts. 3. It was urged that the Block Development Officer had authority to allot the contract works only upto maximum of Rs. 50,000/- and that the present contract was for an amount of Rs. 48 lacs. It was further urged that in terms of Rule 49 of the Jammu & Kashmir Panchayati Raj Rules, 1996, in contracts involving an investment of more than Rs. 3 lacs, the works could only be executed by the Contractor and not by the Panchayat itself. 4. The Writ Court upon hearing the matter, noticed the fact that the construction of the CFC was being undertaken by the Secretary of the Panchayat, who happened to be a Government servant and, therefore, disposed of the petition with a direction that the Panchayat Secretary would complete the building in question in accordance with the rules. 5. Learned counsel for the appellants submitted that the Writ Court had missed the core issue and had disposed of the petition only on the ground that the construction undertaken by the Panchayat Secretary, who was a Government servant. It was submitted that the Court below ought to have gone into the question as to whether it was incumbent upon the Government to invite bids for allotment of the contract in question and also further to go into the question as to whether the Block Development Officer was competent to allot the contract to the Panchayat Secretary. 6. Mr. A. M. Malik, learned Sr. AAG appearing on behalf of the respondents, on the other hand, with reference to the objections filed dated 21.05.2018 stated that it was incorrect to suggest that the Block Development Officer had allotted the contract to the Panchayat Secretary. It was stated that the work in question was being executed departmentally. 7. Heard learned counsel for the parties. 8. AAG appearing on behalf of the respondents, on the other hand, with reference to the objections filed dated 21.05.2018 stated that it was incorrect to suggest that the Block Development Officer had allotted the contract to the Panchayat Secretary. It was stated that the work in question was being executed departmentally. 7. Heard learned counsel for the parties. 8. On a perusal of the affidavit filed by the Director Rural Development Department, Jammu, it becomes clear that a clear stand has been taken that the work in question was being executed departmentally and key materials like cement steel was issued by the Block Development Officer, as and when required as per the indent provided by the Junior Engineer concerned, who was supervising the building. The procurement of the building material also stated to be made through the BDO through the Government agencies like SICOP/JAKFED, whereas the local materials like sand, stones etc were being procured by the Panchayat Secretary through local vendors. 9. In the affidavit, learned counsel for the respondents has also referred to a judgment of the Division Bench of this Court arising out of OWP No. 1576/2016 in case titled “Residents of Village Begerni, Doda and others Vs State of J&K and others”, wherein the Court held as under:- “We have considered the submissions made by the learned counsel for the parties and in view of the specific statement made by the learned Dy. AG, it is also reflected in the preliminary objections filed in OWP No.1576/2016 it is evident that the work of construction of Community Facility Centre is being undertaken by the Rural Engineering Wing of the Department, therefore, the grievance of the petitioners that the tender could be invited for the construction of Community Facility Centre does not survive as the work is being carried out departmentally. So far as the grievance of the petitioners about the location of the Community Facility Centre is concerned, we are afraid that this Court in exercise of powers under section 103 of the Constitution of the State read with the Article 226 of the Constitution of India cannot determine the place where the Community Facility Center should be constructed. So far as the grievance of the petitioners about the location of the Community Facility Centre is concerned, we are afraid that this Court in exercise of powers under section 103 of the Constitution of the State read with the Article 226 of the Constitution of India cannot determine the place where the Community Facility Center should be constructed. As per the version of respondents the aforesaid issue has already been gone by the respondents and a conscious decision has been taken for the construction of the Community Facility Center at the place where the same is sought to be constructed.” 10. It was stated that even in that case, the Division Bench had upheld the work of Common Facility Centre and the present case being similar ought to be dealt with in a similar fashion. 11. On a perusal of the affidavit thus becomes clear that the work in question is being executed departmentally and not through a contractor. The codal formalities and the procedure relied upon by the learned counsel for the appellants does not suggest that in every case which involves an amount of more than Rs. 3 lacs the department must necessarily invite bids. The said codal procedures do not prohibit the construction of a work departmentally, as has been done in the present case. The apprehension of the appellants that the contract for construction of Common Facility Centre has been allotted to the Panchayat Secretary is, therefore, an apprehension, which is without any basis, in view of the specific affidavit filed by the Director Rural Development. 12. Be that as it may, we are unable to find any merit in the present Letters Patent Appeal, which is, accordingly, dismissed along with connected IA.