Powers of Gram Sabha: Other view

By Cleofato A Coutinho
07 June 2013 22:55 IST

The powers of the Gram Sabha have come into sharp focus in our state. It may not be very popular to assert legal position, nonetheless it is imperative to say what needs to be said. The 73rd amendment to the constitution of India has guaranteed certain powers at the local level. The Panchayat is a elected representative body while the Gram Sabha is a non elected body of voters. Article 243A of the constitution states - A Gram Sabha may exercise such powers and perform such functions at the village level as the legislature of a state may by law, provide. Thus it is important the state legislature must detail out the powers and functions of the Gram Sabha. The Goa Panchayat Raj Act of 1994 in Sec. 6 details out the functions as under. The Gram Sabha functions and the decisions of the Gram Sabha are subjected to appeals to the Director of Panchayats.

 In other parts of the country the Gram Sabhas discuss wide ranging but essential agenda like annual plan and budget, selection of beneficiaries for different social service programmes, pension schemes, identification of schemes for preparation of annual plan, development programmes like (MGNREGS) etc. i.e. the functions detailed out in the Goa Act. However the issue in Goa is not discussion and resolution on the Central and State schemes but the Gram Sabhas demand the right to decide on various matters that do not fit within the four corners of the Goa Act. The Gram Sabhas in Salcete pass resolutions over the Mopa airport while the Gram Sabhas in the mining belt are demanding the resumption of mining activity.  How the government would implement such resolutions say when the Gram Sabhas of Pednem taluka demand the Mopa airport and the Gram Sabhas of Salcete oppose it? What can happen when Gram Sabhas of different villages do not agree over alignment of a district road is anybody’s guess. The government at one time correctly rejected the demand of certain Gram Sabhas in Pednem taluka to have 100% settlement areas in their villages.

In West Bengal the Gram Sabhas are called Gram Sansad (village Parliament ). It appears herein Goa we are trying to take the Parliament  concept literally.

We are reminded that the Supreme Court has upheld the rights of the Gram Sabhas. Yes! The Supreme Court in the matter of Vedanta group’s bauxite Mining Project in the Niyamgiri hills of Orissa has asked the Orissa government to get the Gram Sabha’s clearance on whether it affects their cultural and religious rights of the tribal and forest dwellers living is Rayagada and Kalahandi districts. This is so because under the Forests Rights Act, a clearance from the Gram Sabha is compulsory. The protection of community resources, individuals rights, cultural and religious rights are in the hands of the Gram Sabha. It is in that context that the court ruled “Gram Sabha can also examine whether the proposed mining area, Niyama Dangar, 10 kms from the peak, would in any way affect the abode of Niyam Raja (deity)”.  

The Parliament  has also passed  the Panchayat (extension to Scheduled Areas Act 1996) PESA which mandates consultation with the Gram Sabha or the Panchayat before making the acquisition of land for development project for rehabilitating persons and the prior recommendation of the Gram Sabha or the Panchayats mandatory for grant of concession of exploitation of minor minerals by auction. The SC judgements are to be appreciated in the context of specific laws which makes a Gram Sabha recommendation/ consultation mandatory. The powers under the Forest Rights Act and PESA 1996 are granted to forest dwellers and tribals in pursuance of Article 243A.

Though under the 73rd amendment, Panchayats are vested with powers detailed out in 12th schedule to the Constitution of India, to my mind the only major activity of Panchayats herein Goa is issuance of construction licenses, upon the Town and Country Planning Department approving the plans. It is this power of the Panchayats under Sec. 66 of the Goa Panchayat Raj Act that is sought to be subjected to the decision of the Gram Sabha, despite there being no such provisions at law. A division bench of the Bombay High Court has gone into this aspect in 2009(4) ALL MR page 8 …the High Court holds “no provision in the Act permitting the Gram Sabha to grant permission or construct or to revoke or interfere with the said permission has been pointed out to us…”.  

The Gram Sabhas and various village groups seem to act on the basis that the elected Panchayat bodies are corrupt and their functions must be monitored. There are cases when the Panchayats have permitted illegal constructions but there are also instances that the Gram Sabhas have been selectively targeting citizens based upon consideration other than fairness and law. Right and wrong can never be subjected to majority or minority. What is illegal can never be granted approval if the majority so demands.  In any case grant of license or revoking a license is almost in the nature of adjudication and such matters cannot be subjected to majority and minority both of Panchayat or of Gram Sabha. No citizen can be subjected to tyranny of the elected or the unelected but to law and  fair law only. In case it is possible to get around the law, there is need to strengthen the law by providing penal provisions including imprisonment.

All issues raised by the village groups shall fall in place once the Regional Plan is finalized. Zoning, plot coverage, height of buildings, FAR, road connectivity  must be settled by law and not change on face to face basis. Issues like density of the population and/or how much more population a particular village can take is a matter that has to be decided taking into consideration the infrastructure like water and electricity supply.  These policy matters must be settled in a transparent manner. Panchayat and/or Gram Sabha could be empowered to make such policy recommendations which can considered before finalizing the regulations.  Even that shall require a change in law granting such powers to the Gram Sabhas and/or the panchayats upon formulating proper procedure including minimum attendance at Gram Sabha for a resolution to be given effect to since it is a unelected body.

Disclaimer: Views expressed above are the author's own.

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Cleofato A Coutinho

Cleofato Almeida Coutinho is a senior lawyer and one of the constitutional expert in Goa. A member of Law Commission of Goa, he also teaches at Kare College of Law in Madgao.

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Further to my comments on “Gram Sabha” in other article published by Goanews, I must say, “Hope members of Diocesan Society of Education, Diocese Board of Education for Goa and Daman and other related bodies of Archdiocese of Goa and Daman reads this informative article.”

I also hope they re-read and re-grasp the provisions as spelt out in 73rd amendment to the constitution of India, Article 243A of the constitution, the Goa Panchayat Raj Act, the Town and Country Planning Act of Goa.

They should also realize that “Right and wrong can never be subjected to majority or minority demand. What is illegal can never be granted approval if the minority and or majority so demands.”

Finally and most importantly, “Practice what you are preaching” should be followed as a thumb rule! You cannot sell land belonging to Archdiocese and or churches to outsiders to construct mega projects and preach Goans not to sell their land to outsiders for mega projects and organize dharna/ bandh in retaliation to mega projects coming up in lands sold by individuals!! Such practices would be looked as “Hypocrisy” and you would lose your followers!!!

- Uday, Margao | 08 th June 2013 08:02


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