‘Public welfare projects fall within executive domain’
Mohinder Verma
JAMMU, Aug 3: In a significant ruling clarifying the scope of Panchayat authority, the High Court of Jammu & Kashmir and Ladakh has held that J&K Panchayati Raj Act, 1989 doesn’t impose a mandatory obligation upon the State or its executing agencies to seek prior consultation with the Panchayat in all development works particularly those undertaken on Government-owned land and funded by State or Centrally Sponsored Schemes where administrative control remains with the executive.
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The judgment was delivered by Justice Wasim Sadiq Nargal in a writ petition filed by Panchayat Halqa Tappar Pattan, Baramulla, which challenged the construction of a Sheep Extension Centre at Tappar Waripora on the grounds that it was undertaken without prior consultation or approval of the Panchayat.
The petitioner argued that such unilateral action violated the provisions of the J&K Panchayati Raj Act, 1989, and that the land identified for the project was common grazing (Kacharai) land traditionally under the control of the village Panchayat.
After hearing Advocates Asif Bhat and Azra Bhat for the petitioners and Government Advocate Faheem Nisar Shah for the respondents, Justice Wasim Sadiq Nargal observed, “it is true that Sections 12 and 13 of the 1989 Act define the functions and responsibilities of Halqa Panchayats and envisage a participatory framework wherein Panchayats play an active role in identifying and implementing developmental priorities”.
“However, upon a careful reading of the statutory scheme, it becomes evident that the Act does not impose a mandatory obligation upon the State or its executing agencies to seek prior consultation with the Panchayat in all development works-particularly those undertaken on Government-owned land and funded by State or Centrally Sponsored Schemes, where administrative control remains with the executive”, the High Court added.
The High Court further observed, “the principle that unless consultation is made a statutory condition precedent to the exercise of a power, non-consultation cannot vitiate the exercise of that power squarely applies to the present case”, adding “the petitioner has not pointed to any provision in the 1989 Act that expressly mandates consultation with the Panchayat prior to issuing tenders for such public works”.
“The mere inclusion of general duties or roles within Sections 12 and 13 cannot be interpreted to mean that executive decisions are subject to Panchayat veto or pre-clearance, unless the statute says so in express terms”, the High Court clarified, adding “the land identified for the project is not vested Panchayat property under Section 4 of the1989 Act, nor is the project funded through Panchayat allocations. Accordingly, the administrative domain over both land and finances lies with the executive wing of the Government”.
It was further observed by the High Court that while decentralized governance is a constitutional value, it must be balanced against the legitimate administrative interests of the state, particularly in the execution of time-sensitive public welfare projects. “The principle of cooperative federalism and decentralization must not be interpreted to imply that every executive decision must be routed through a consultative process with the local body. Such a reading would disrupt governance”, the High Court added.
The assertion of the petitioner that land identified for the project is Kahcharai land traditionally reserved as village common grazing land failed to withstand the scrutiny when tested against the documentary record and binding judicial precedents. “The revenue records placed on record by the respondents unequivocally classify the land in question as State land, under the ownership and administrative control of the Revenue Department”, the High Court said.
“It is also an admitted position of law that no acquisition proceedings are required when the land in question is Government-owned. Similarly, no Panchayat consent is mandated by statute in such cases unless the land is vested in the Panchayat under specific legislative provisions, a factual scenario in this regard is absent in the present case”, Justice Nargal said.
Moreover, petitioner has not made any averment or placed on record any material that would prima facie suggest malafide intent, procedural impropriety, favoritism, or irregularity in the issuance, evaluation, or award of the tender, the High Court observed.
With these observations, the High Court dismissed the petition.
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