Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Wasim Sadiq Nargal dismissed a writ petition challenging a government-issued tender for the construction of veterinary and sheep extension centres. The petitioner, a Panchayat Halqa, sought the quashing of the tender notice on the grounds that it was issued without prior consultation or consent from the concerned Panchayat and that the proposed site was classified as common grazing (Kacharai) land.

Upon a detailed legal analysis, the Court held that the issuance of the tender did not contravene any constitutional or statutory mandate, as the land was recorded in revenue documents as Sarkar (government-owned) land. The Court further concluded that no legal right of the petitioner had been infringed and that the tender process adhered to standard norms. Consequently, the writ petition was dismissed in its entirety.

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The Court clarified that absence of consultation with the Panchayat in this context does not vitiate the tender or the administrative decision. It stated that executive decisions concerning government-owned land used for public infrastructure do not legally require Panchayat approval unless explicitly stated in statute.

The petitioner in the present matter was Panchayat Halqa Tappar Pattan, Baramulla, Kashmir, represented through one of its elected Panchs. The legal proceedings were initiated based on a resolution passed by the Panchayat members authorizing the Panch to approach the Court. The petition challenged tender notice e-NIT No.118/8497-8506/2021-22/RnB/Bla dated 16.10.2021 issued by the respondents for the construction of a Veterinary Centre at Buchoo Block, Pattan, and a Sheep Extension Centre at Tapar Bala/Tappar Waripora, Pattan.

The petitioner alleged that the tender was issued without consulting the Halqa Panchayat, thereby violating the provisions of the Jammu & Kashmir Panchayati Raj Act, 1989, and associated Rules, particularly Sections 4, 12, and 13 of the Act and Rules 48 and 49. These provisions, according to the petitioner, mandate Panchayat involvement in identifying and approving developmental works within its jurisdiction.

Another ground raised by the petitioner was that the proposed site for the Sheep Extension Centre was located on Kacharai land — traditionally used as village common grazing land. The petitioner contended that such land is vested in the Panchayat and cannot be repurposed without acquisition proceedings, express consent, and due legal process.

To substantiate this claim, the petitioner relied on revenue extracts purportedly classifying the land as Kacharai. It also cited two administrative directives: Government Order dated 29.09.1979 discouraging the acquisition of Kacharai land for non-essential use and a Circular dated 09.12.2010 issued by the Financial Commissioner (Revenue) which prohibited processing cases for allotment or transfer of Kacharai land.

Judicial precedents were also invoked, including the Supreme Court decision in Jagpal Singh v. State of Punjab (2011) 11 SCC 396. The petitioner referred to this judgement to argue that common village lands cannot be diverted even for public purposes without due process including notice and acquisition.

The respondents contested the maintainability of the petition, arguing that it was filed in a representative capacity without the Court’s leave and that the resolution authorizing the Panch only related to protecting Kacharai land — not to challenging the tender process.

Substantively, the respondents denied the classification of the land as Kacharai. They submitted that the revenue records designated it as Sarkar (government-owned) land, thereby entitling the state to use it for public infrastructure projects without Panchayat approval.

The respondents also maintained that the tendering process followed applicable norms and did not infringe any fundamental or legal rights of the petitioner. They argued that the petition failed to demonstrate mala fides, arbitrariness, or any procedural irregularity in the tender issuance, which would be necessary to justify judicial intervention under Article 226 of the Constitution.

They relied on precedents such as Silppi Constructions Contractors v. Union of India (2020) 16 SCC 489 and Tata Cellular v. Union of India (1994) 6 SCC 651 to argue that judicial review in tender matters must be limited and exercised with caution unless illegality or mala fides are clearly established.

In rejoinder, the petitioner reiterated that the land was indeed Kacharai and reaffirmed the Panchayat’s statutory and constitutional role in safeguarding community assets. It argued that exclusion of the Panchayat undermined the principles of grassroots democracy as envisaged in the 73rd Constitutional Amendment and Article 243G.

In examining whether non-consultation with the Panchayat constituted a violation of the J&K Panchayati Raj Act, 1989, the Court stated: "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 Court further observed: "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 Court cited Muncipal Council, Ratlam v. Vardichan (1980) 4 SCC 162 to support this reasoning, stating: "While local bodies play a crucial role in decentralized governance, executive discretion in essential public functions must be preserved, unless clearly fettered by law."

Concerning the nature of the land, the Court noted: "The revenue records placed on record by the respondents unequivocally classify the land in question as Sarkar (State) land… The petitioner has failed to produce any countervailing revenue extracts." It added: "Mere assertions in the pleadings or references in the Panchayat resolution… are insufficient to rebut the presumption of correctness attached to official records."

Relying on State of Bihar v. Radha Krishna Singh (1983) 3 SCC 118, the Court stated: "Entries in revenue records are presumed to be correct unless rebutted by cogent evidence. Mere oral assertions or assumptions cannot displace official records."

The Court also evaluated the implications of the Jagpal Singh judgment, remarking: "The project does not involve any diversion for commercial use… it is aimed at enhancing rural infrastructure and livestock support systems, a purpose that falls squarely within the exceptions recognized by the Hon’ble Supreme Court."

On the issue of whether the tendering process warranted judicial interference, the Court found: "The petitioner has not made any averment or placed on record any material that would prima facie suggest mala fide intent, procedural impropriety, favoritism, or irregularity."

Citing Tata Cellular, the Court noted: "The scope of interference is limited to the decision-making process, and not the merits of the decision itself." The Court also referenced its own decision in WP(C) No. 1540/2024, observing: "The scope of interference by the Constitutional Courts in tender matters is minimal… unless there is arbitrariness, irrationality, and unreasonableness, mala fide or bias."

The Court concluded that "no material has been brought on record to show that the tender process was vitiated by any illegality, discrimination, or arbitrariness."

The Court issued its directions as follows: "Upon due consideration of the factual matrix, the documentary record, and the rival submissions of the parties, the Court is of the view that the writ petition is liable to be dismissed on the ground of substantive legal infirmities."

"The petitioner has not established the existence of any legal right that has been infringed. The petitioner does not claim ownership, occupancy, or legal entitlement over the land in question, nor is the petitioner an aggrieved participant in the tendering process."

"In the absence of a demonstrable legal injury, the invocation of this Court’s writ jurisdiction under Article 226 of the Constitution of India cannot be sustained."

"Sections 12 and 13 of the J&K Panchayati Raj Act, 1989… do not impose a mandatory requirement for consultation with the Panchayat before the commencement of development works on government land by the State authorities."

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"With regard to the classification of the land, the respondents have placed on record certified revenue extracts showing the land to be classified as Sarkar (i.e., government) land… have not been rebutted by the petitioner."

"Even assuming… that the land was previously used as Kacharai… the proposed use for veterinary and sheep welfare facilities falls squarely within the category of public utility infrastructure."

"The petitioner has not alleged any instance of mala fide, bias, procedural irregularity, or statutory violation. The tender appears to have been issued through a competitive and transparent process, in furtherance of a public welfare objective."

"Accordingly, the writ petition is dismissed."

Advocates Representing the Parties:

For the Petitioners: Mr. Asif Bhat, Advocate with Ms. Azra Bhat, Advocate
For the Respondents: Mr. Faheem Nisar Shah, Government Advocate

Case Title: Panchayat Halqa Tappar Pattan v. Union Territory of J&K & Ors.
Case Number: WP(C) 2274/2021 CM (7336/2021)
Bench: Justice Wasim Sadiq Nargal