Jammu & Kashmir High Court

Inhabitants Of Village Gundi Panchayat vs Ut Of J&K Through on 17 October, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                                                Sr.No. 29


               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU.

                                                 WP(C) No. 64/2024

Inhabitants of Village Gundi Panchayat, Gundi,                  .... Petitioner(s)
Panchayat Gundi, Tehsil Khawas, District
Rajouri through their representatives Mohd.
Sagheer, Age 27 years
S/o Mohd. Sadiq
R/o Village Gundi, Tehsil Khawas District
Rajouri.

                   Through :- Mr. Ravinder Sharma, Advocate.

         V/s

   1. UT of J&K through                                        ....Respondent(s)
      Commissioner/Secretary to Govt.
      Health and Medical Education
      Department, Civil Secretariat,
      Jammu/Srinagar.
   2. Director Health Services, Jammu.
   3. District Development Commissioner,
      Rajouri.
   4. Chief Medical Officer, Health and
      Family Welfare, Kandi, (Rajouri)
   5. Executive Engineer, PWD(R&B),
      Division Kotranka (Rajouri).
   6. M/S Munir Hussain, "B" Class
      Contractor, Bearing Registration
      No. PWD/SER/10/BEE Class of
      2019-20 R/o Kandi, Tehsil
      Koteranka, District Rajouri.
                   Through :- Mr. Raman Sharma, AAG for R- 1 to 4 and 5.
                              Ms. Monika Kohli, Sr. AAG for R-3.
                              Ms. Pallavi Sharma, Advocate for R-6.
                              Mr. Farhan Mirza, Advocate for R-7.
 Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                JUDGMENT

17.10.2024

(ORAL)

1. Instant petition has been filed in the representative capacity, the petitioners

who are the inhabitants of Village Gundi and Panchayat Gundi, Tehsil Khawas

District Rajouri, are aggrieved of the impugned allotment order bearing No.

EE/R&B/KR/1316-21 dated 09-01-2024, by virtue of which respondent No.6 has

allotted the contract for construction of NTPHC Building at Gundi, (Under

District Plan „Health‟) in favour of respondent No. 7, who is constructing the

said building at the place other than the site approved by the Panchayat Gundi

vide resolution dated 04-02-2023 in consultation with respondent No. 4 and 5.

Factual Matrix

2. It is stated that the petitioner has been authorized by the inhabitants of

Village Gundi, Panchayat Gundi, through resolution at 04.02.2023 to represent

them before this Court by way of this petition.

3. Health Centre at Panchayat Gundi, for providing medical care to the

residents of Panchayat Gundi was running at different rental accommodations

from last more than 40 years. The residents of Panchayat Gundi took up the

matter with the concerned authorities for construction of Primary Health Centre

Building at Gundi, as such, the authorities directed the respondent Nos. 4 and 5

to take up the matter with the representatives of the Panchayat and to identify a

suitable place for setting up New Type Primary Health Centre (NTPHC). A

meeting in this regard was held on 04-02-2023 with the inhabitants of Village

Gundi which was attended by the inhabitants of village and Panchayat Gundi

including Panches, Sarpanches and Block Medical Officer, i.e. respondent No.5

wherein a land measuring 10 kanals comprising Khasra No. 610 situated at Ward

No. 4, near Boys Middle School Gundi, Tehsil Khawas District Rajouri was

identified for the construction of building of New Type Primary Health Centre

[hereinafter referred to as "NTPHC"].

4. It is stated that the land identified was centrally located, spacious and

approachable to the inhabitants of the Panchayat Gundi as well as general public.

The land though was a State land, in occupation and physical possession of one

Mohd. Iqbal S/o Billu for the last more than 50 years, but on the request of the

inhabitants of Panchayat Gundi, the said Mohd. Iqbal voluntarily agreed to

vacate the said land for construction of NTPHC.

5. Respondent No. 5 vide his letter bearing No. BMO/K/Est-I/2023-24/597-

601 dated 05.07.2023 forwarded the required documents to respondent No.4 for

selection of the site for construction of NTPHC building near Boys Medical

School Gundi, W.No. 4, Tehsil Khawas District Rajouri. It was duly forwarded

by respondent No. 5 to respondent Nos. 2 and 3 in terms of communication dated

05.07.2023.

6. Respondent No. 6 issued NIT No. 02 of 2023-24 dated 07-10-2023 (E-

tendering) inviting applications from the approved and eligible contractors

registered with the Union Territory of J&K, CPWD, Railways and other

State/Central Governments for execution of various works including

construction of "NTPHC Building at Gundi", at serial no. 20 of the said NIT. As

many as five contractors participated in the tender process for construction of

NTPHC building at Gundi, respondent No.7 being lowest bidder L1 was allotted

the contract in terms of NIT No. 02 of 2023-24 dated 07.10.2023. It is stated that

respondent No.7 under the influence of few political persons of a particular

political party has managed to change the site of construction of NTPHC

Building at Gundi from W.No. 4, near Boys Middle School Gundi, Tehsil

Khawas District Rajouri to Ward No. 5.

5. Being aggrieved of the change of location from ward No. 4 to Ward No. 5,

petitioners submitted their objections before respondent No.4 and requested him

to raise the construction at the site approved by the Panchayat at Gundi. The

petitioners herein are aggrieved of the allotment granted to respondent No.7 at

ward No.5, wherein the construction has been restricted on the plot of land of 01

kanal against resolution dated 04.02.2023, whereby 10 kanals of land was

offered in the interest of general public for construction of NTPHC. It is stated

that the shifting of the construction of NTPHC building is not only illegal but is

also not feasible for the villagers of the Gundi.

6. Per contra, indenting department i.e. respondent No. 1 to 4 & 5 have

stated in their reply that the construction work of NTPHC building was approved

at the District Capex Budget 2022-23 with approved cost of civil work of Rs.

20.00 lacs. It is stated that the work was allotted to respondent No. 7 by

respondent No. 6 by allotment No. EE/R&B/KR/1316-21 dated 09.01.2024, with

a completion period of 90 days. However, some dispute arose with regard to the

location of site at Ward No.4 for construction of NTPHC Gundi, as such, Ward

No. 5 near PMGSY Road was selected, which is more accessible to the public of

the area and is free from all encumbrances. It is more feasible as compared to the

land identified at ward No.4. Accordingly, respondent No. 5 vide letter bearing

No. BMO/K/2023-24/ 1870-74 dated 28-12-2023 communicated to respondent

No. 4 and also submitted a copy of the resolution and GPS Map of the site as

submitted by the PRIs and Public of Village Gundi.

9. The respondents have also annexed the resolution submitted by the PRIs/

Panchayat committee dated 28.12.2023, which clearly indicates that Panch of

ward No. 4, namely, Mohd. Rashid is also a signatory to the resolution for

construction of NTPHC Gundi at a new location.

10. It is further stated that in the larger interest of the public, the Chairman

District Development Council, Rajouri vide letter dated 30.12.2023

recommended to construct building on the State land under Khasra No. 610

situated at Mandi Gala on PMGSY road at Ward No. 5 near the house of Abdul

Qayoom which was unanimously selected for the construction of said building.

Consequent upon recommendations of Chairman District Development Council,

Rajouri vide communication bearing No. CMOR/PLG/2023-24/6400-05, dated

01-01-2024 requested the respondent No.6 to start the construction work of

NTPHC building Gundi at Mandi Gala ward No. 5 under Khasra No. 610 (state

land).

11. As per the latest status of construction of building for NTPHC Gundi, the

work has been started by the contractor and an amount of Rs. 3.00 lacs stand

released under District Capex Budget 2023-24 in favour of the Executing agency

PWD (R&B) Division Koteranka. The plinth work is completed and further

work was in progress but due to passing of an interim order dated 23.01.2024,

tender work could not be executed at the site.

12. Respondent No. 7 has stated in his reply that the petitioner has forged the

resolution which is placed on record alongwith the application. The resolution is

alleged to have been signed by the inhabitants of Village Gundi, whereas the

same is in contradiction as 06 members who are Panch and Naib Sarpanchs of

the locality, out of the members who are the signatories, have sworn by way of

affidavits that they are not the signatories of the said resolution. It is also stated

that in the present case the Sarpanch of the locality, namely, Mohd. Tufail who

had participated in the tendering process, could not succeed in getting the

contract awarded in his favour, has managed the resolution with fake signatures

of the Panchs and Naib Sarpanch, as such, the instant petition is motivated and

sponsored litigation on behalf of the Mohd. Tufail, who could not succeed in

getting the contract in his favour.

13. It is further stated that the current location where the PHC is being

constructed is also a State land measuring 15 kanals, as conveyed by the BMO

vide communication, dated 28.12.2023, to the Chief Medical Officer, Rajouri

belonging to one Abdul Qayoom, which was later clarified by way of

corrigendum dated 30.12.2023, wherein it was stated that the 15 kanals of land is

a State land and is not in occupation of Abdul Qayoom. It is stated that no

injunction of Public Projects can be granted under Section 20-A of the Specific

Relief Act, 1963.

14. Respondent No. 7 has also stated that the allotment was made on

09.01.2024 and the construction was initiated by the respondent No. 7 on

18.01.2024 and by this time first phase before passing of the interim order dated

23.01.2024 has already been completed by respondent No.7.

Submissions made by learned Counsel for the petitioners.

15. Mr. Ravinder Sharma, states that the petitioners are aggrieved of the

change of site referred in the communication dated 05.07.2023, whereby Block

Medical Officer, respondent no.5, had communicated to respondent No.5 with

respect to site selection for the construction of NTPHC building at Gundi, near

Boys, Middle school Gundi, Ward no.4, state land, as per the revenue record

under Khasra no. 610, measuring 10 Kanals. Subsequently, NIT No. 02 of 20

23-24 dated 07.10.2023 was floated, whereby tenders were invited from the

eligible contractors amongst others, at serial number 20 for construction of

NTPC building at Gundi (under District plan health). Lowest bidder M/S Munir

Hussain was allotted contract on 09-01-2024, but the location of the site was

changed at the instance of DC- Chairman in terms of his letter dated 01.01.2024,

which, as per the petitioners is not in the interest of the general public.

16. Learned counsel for the petitioner has relied upon the judgments passed by

Supreme Court of India titled The Haryana State Agricultural Marketing

Board and others V. Sadhu Ram, 2008 (16) SCC 405 and Jagdish Mandal v.

State of Orissa and Ors. (2007) 14 SCC 517. Relying upon M/s Monarch

Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal

Corporation and others, (2000) 5 SCC 287, Mr. Ravinder Sharma, learned

counsel for the petitioners has contended that the rules of the game cannot be

changed after it had began.

Submissions made by learned Counsels for the Respondents.

17. Learned counsel representing official respondents, Mr. Raman Sharma,

learned AAG has stated that keeping in view the larger interest of the public the

Chairman District Development Council, Rajouri in terms of letter dated

01/01/2024, recommended to construct building on the State land under Khasra

No. 610 situated at Mandi Gala on PMGSY Road at ward No.5. He further states

that it is the prerogative of the government to decide location for establishment

of medical sub-Centre or other government amenities to be provided to the

residents of the particular area/village, taking into consideration all relevant

factors. Moreover, petitioners have not challenged the communication issued by

DDC Chairman dated 01.01.2024, he has not been arrayed as respondent in the

instant petition. It is also stated that that no prejudice has been caused

detrimental to the interest of the petitioners as the government has kept the

provision for expansion of NTPHC, having 15 Kanals of land at Ward No.5,

which is nearby to Ward no.4, in the same revenue village Gundi.

13. The respondents have relied upon the judgment passed in a similar writ

petition bearing OWP No. 153/2011 titled "Mohd. Akhter and Ors v. State of

J&K and Ors." decided on 02.07.2019 wherein it is held that it is within the

domain of the competent authority to decide about the location of Government

amenities to be provided to the residents of a particular area. Neither the

petitioners nor anybody else can dictate the State to have particular amenity at a

particular place. However, while selecting the location for establishment of

Medical Sub Centre or some other Government amenity, it is the bounden duty

of the respondents to take into consideration the convenience and large benefit of

the population of the area for which, such facility is proposed to be provided.

Para 5 of the judgment is reproduced hereunder:-

"5. Be that it may, the fact remains that it is within the domain of the competent authority to decide about the location of Government amenities to be provided to the residents of a particular area. Neither the petitioners nor anybody else can dictate the State to have particular amenity at a particular place. However, while selecting the location for establishment of Medical Sub Centre or some other Government amenity, it is the bounden duty of the respondents to take into consideration the convenience and large benefit of the population of the area for which, such facility is proposed to be provided."

14. Mr. Raman Sharma, AAG has also placed Reliance upon section 41

Specific Relief Act 1963, which was amended by central act 18 or 2018, where

in clause (ha) was inserted in section 41 of the said Act

"41 injunctions when refused - an injunction cannot be granted-(ha) if it would impede or delay the progress or completion of any infrastructure, project or interfere with the continued provision of relevant facility related there to our services being the subject matter of such project."

15. Learned counsel representing respondent No.7 Mr. Farhan Mirza states

that a contract is a commercial transaction, evaluating tenders and awarding

contract, essentially are commercial functions, power of judicial review cannot

be invoked to protect the private interests of an individual. In the present case,

the Sarpanch of the locality named Mohammed Tufail, who participated in the

tendering process and failed to succeed in getting the contract awarded in his

favour, has managed the resolution with fake signatures of the Panches and Naib

Sarpanch, and also in filing of the present petition. he has relied upon judgment

passed by Supreme Court of India, titled as M/S N.G.Projects Ltd versus M/S

Vinod Kumar Jain and others, (2022) 6 SCC 127 .

CONCLUSION

16. After hearing learned counsels for the parties, perused the material on

record and after considering the submissions made by them, this Court has come

to the conclusion that the government being a competent authority has an

exclusive power to decide about the location of the NTPHC in the best interest of

the general public. The petitioners herein, who are the inhabitants of the village

Gundi, which includes Panchs, Sarpachs and respondent No.5 i.e Block, Medical

Officer, Health and Family Welfare, Kandi, Rajouri as referred in the meeting

held on 04.02.2023, had decided to construct NTPHC at ward no.4, near Boys

Middle School, Gundi, whereas impugned order of allotment dated 09-01-2024

has been issued in favour of respondent no.7 with the consent of the intending

department that is respondent Nos. 1, 2, 4 and 5. This clearly substantiates that

government in its wisdom has taken a reasonable decision, thereby changing the

site from ward no. 4 to 5 with the consent of the villagers as well of respondent

Nos. 4 and 5.

17. As far as the change of site stated by the learned Counsel for the petitioner

is concerned, the site has nowhere been referred in the NIT No.02 of 2023-24

dated 07.10.2023, on which the construction of NTPC building at Gundi had to

be raised if at all some grievance had to be raised for change of location or

change of rules of game, after issuance of the NIT, then only a tenderer or a

contractor, who had submitted his bid could have been an affected party. It may

be a procedural aberration or error, which could have prejudiced the interest of a

tenderer, but in no case, it could have caused any prejudice to the petitioners

herein. The power of judicial review cannot be invoked to protect private interest

of the parties. The judgments being cited by the learned counsel for the petitioner

have no applicability in the instant case.

18. The learned Counsel for respondent No.7 has also pointed out some

disputed question of facts, he has placed on record certain affidavits of some

individuals who have stated that they have not signed the resolution dated 04-02-

2023. It is stated that the signatures were taken by the individuals on the blank

papers and then the resolution was drafted. The official respondents have also

placed on record resolution of villagers of Gundi who are supporting the action

taken by the respondents for shifting of the site of NTPHC to ward no.5. It is a

settled principle of law that the disputed questions of fact cannot be gone into in

writ jurisdiction.

19. This petition seems to be a sponsored litigation filed only to secure

individual interest of someone, who failed to qualify in the tendering process and

instead of approaching this Court individually, has opted to get this petition filed

through inhabitants of the village, Gundi. The Supreme Court in the case of State

of Karnataka and others v, All India Manufacturers Organization and

others, (2006) 4 SCC 683 endorsed the view of the High Court of Karnataka

that the Court cannot allow its process to be abused by politicians and others to

delay the implementation of a public project.

20. The Supreme Court in case titled as M/S N.G.Projects Ltd versus M/S

Vinod Kumar Jain and others, (2022) 6 SCC 127 are relevant for our purposes

and are reproduced hereunder:-

"21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India.

22..............

23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present- day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands,

rather the Court should examine as to whether the decision-making process is after com- plying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

24..............................

25. ............................

26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."

21. It is no longer res integra that power of judicial review can‟t be invoked to

protect private interest at the cost of public interest or to decide contractual

interests. Even when some defect is found in the decision making process, the

Court must exercise its discretionary powers under Article 226 of the

Constitution with great caution. This Court cannot allow its process to be abused

for delaying the implementation of a public project which is in larger interest of

the public at the cost of some egomaniacal objective of the petitioners.

22. The Supreme Court in the case of Tata Motors Ltd. v. Brihan Mumbai

Electric Supply and Transport Undertaking (Best) and others, AIR 2023 SC

2717 has observed that the Courts should exercise lot of restrain while exercising

their powers of judicial review in contractual or commercial matters. It has also

been observed by the Supreme Court that Courts must restrain to show

indulgence where such interference would cause unnecessary loss of public

exchequer. Para 48 of the judgment is relevant for our purposes and is

reproduced hereunder:-

"48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints"

to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will

cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489"

23. In view of the above and for the reasons stated above, no interference of

this Court is called for. This petition is devoid of any merit and is, accordingly,

dismissed. However, in the facts and circumstances of the case, there shall be no

order as to costs.

(Moksha Khajuria Kazmi) Judge

Jammu: