JUDGMENT

1. This order will dispose of five petitions bearing WP(C) Nos. 3580/2019 and WP(C) Nos. 284, 383, 496 & 663 of 2020.

Facts Of The Cases

WP(C) No. 3580/2019

2. The present petition has been filed by the petitioners who claim themselves to be Sarpanches and Panches of Halqa Panchayat, Gole Gujral, challenging the letter issued by Assistant Commissioner (Development), Jammu dated 18.09.2019, directing that all the allotment of work under RURBAN Cluster Gole Gujral shall be through e-tendering process.

WP(C) Nos. 284, 383, 496 & 663 of 2020

3. The challenge in the aforesaid petitions filed by Sarpanches, Panches is to the Government Order No.267-RD & PR of 2019 dated 04.10.2019, vide which certain guidelines have been issued for execution of works in the Rural Development Department.

Arguments Of The Petitioners

4. Mr. K. S. Johal, learned Senior Counsel appearing for the petitioners in WP(C) No. 3580/2019 referred to Articles 40 and 243G of the Constitution of India with reference to decentralization of powers to the Halqa Panchayats. Taking his argument further it was submitted that Jammu and Kashmir Panchayati Raj Act, 1989 (for short the Act) was framed in line thereof. Preamble to the Act is quite relevant, which talks of conferring powers on the elected bodies in the rural areas. Section 4 of the Act talks of establishment of panchayats. Section 12 of the Act which is quite relevant talks of the powers and functions of the panchayats. Section 25 of the Act was referred to which specifies functions of the Sarpanch, Naib Sarpanch. Referring to the Rule 48 of the J&K Panchayati Raj Rules, 1996 (for short the Rules), it was submitted that this defines the powers and functions of the Halqa Panchayat. Rule 49 of the Rules talks about execution of works and Rule 59 the mode of execution of contract.

5. While referring to the aforesaid provisions of law, it was submitted that once complete procedure has been prescribed in the Act and the Rules, no order or circular can be issued by the Government or any officer thereof to clarify or supplement the same. In case the State finds any deficiency, the only solution is to amend the same and not issue orders. The provisions of the Act and the Rules cannot be done away with while issuing the circulars. The provisions of the Act and the Rules, as have been referred to above, clearly provide that the panchayats being the local bodies in the rural areas duly elected, have complete power to execute the works in their respective areas. The government cannot interfere. In fact the action of the government clearly interferes in the powers of the panchayat and the functions assigned to them in terms of the constitutional scheme. With the issuance of the impugned letter the members of the elected bodies have been totally ignored. Entire work has gone to the government authorities.

6. In the case in hand, the works had been allotted by the Halqa Panchayat, Gole Gujral after due process and the work is being executed. Some of the works have been executed to the extent of 70% and only 30% remains, whereas some of the works are yet to be allotted. If the scheme of the Act and the Rules are considered, the only areas where the government can interfere, are the projects which are highly technical in nature. In rural areas, there can hardly be any such project as these are small-small projects where no expertise as such is required. These can always be executed at the local level. It was not disputed that the projects before execution are required to be got approved from the competent authority. He further submitted that Rule 59 of the Rules has to be interpreted in the manner that the word highest should be read as lowest. Then only it will give a true meaning. Reliance has been placed on the decision of this court in WP(C) No.3421/2019 titled as Hanifa Akhter v. State and others , decided on 26.06.2019.

7. Mr. Abhinav Sharma, learned counsel appearing for the petitioners in WP(C) No. 496/2020 su