Recovery from memory Lane 2008: Village Power is Goa ’s Power!

Village Power is Goa ’s Power! by Soter D'Souza The developments in several Gram Sabhas across several villages of Goa over the last few months have thrown up a debate on what powers the local bodies enjoy. One of the questions that repeatedly gets thrown up is, “Do these Gram Sabhas and Village Panchayats have the necessary powers to reject mega housing projects in the villages?” For us, mega housing projects in a village would imply any building with more than 4 flats that does not cater to the housing needs of the population of the village. A Village must be self-sustained and capable of managing its affairs. Panchayati Raj could best be described in Mahatma Gandhiji’s words. He said that, “Independence must begin at the bottom. Thus every village will be a republic or Panchayat having full powers. It follows, therefore, that every village has to be self-sustained and capable of managing its affairs.” This description will definitely be threatening to the politicians, builders, mining companies and other industrialists who have their profit interests in villages. There are already claims of around Rs. 100 crore being at stake due to the decisions of some Village Panchayats to stay the construction of mega housing projects. Several opinions denouncing the Gram Sabhas for abuse of powers have been appearing in the local media. Even the ministers and bureaucrats have joined in the campaign to demoralize the Gram Sabhas by advocating that they have no powers. The irony is that while those with vested interests were quick to go on the offensive, the civil society groups which have been in the forefront to exhort the village people into exercising their rights have surprisingly refrained from citing any legal defense on the rights of the Gram Sabhas. This has resulted in the misinformation propaganda being believed by several people. Those that take credit for consciousness-raising of the people, leading them into exercising their rights in village governance, also need to fulfill their moral responsibility of providing a legally sound defense against malafide propaganda. Therefore, in the interest of establishing the supremacy of the Panchayat institution, more so the Gram Sabha which is the supreme body in the Village Panchayat, we set out to state our case in its support. Article 243 - Panchayat is an institution of self government The ‘Panchayat’ is an institution of self-government for rural areas according to the definition in Article 243 of the Constitution of India. According to Hon. Union Minister for Panchayati Raj, Shri Mani Shankar Aiyar in the valedictory address delivered on 26 February 2006 during a meeting at the Institute of Social Sciences , New Delhi, by the term ‘self-government’ is meant; * A Government run by local people, * A Government concerned with the local issues, * That the local people can check the activities of the government, and * That the people can participate in all the concerns and functions of the government. Gram Sabha can decide on village development The Gram Sabha is the primary body of any Village Panchayat and therefore one of the first references to it in the 73rd Constitutional Amendment is vide Article 243A. Even the Goa Panchayati Raj Act, 1994 (GPRA) describes the Gram Sabha and its functions in the very first sections i.e. Sec. 4 and 5 which follows the ‘definitions’ in Sec. 2 and ‘the declaration of the Panchayat areas and establishment of Panchayats’ in Sec. 3. It is therefore important to bear in mind that the Village Panchayat cannot exist without the Gram Sabha. Therefore, Section 5 of the GPRA makes it necessary for the Sarpanch to place before the Gram Sabha among other matters, the accounts and developmental activities for its approval. The Gram Sabha has powers to constitute Supervisory Committees (Section 5 sub-section 2) to supervise the Panchayat work and other activities. Thereby, it is implied that the Gram Sabha has the right to decide against any activity that is detrimental to the welfare of the village. The decision of Gram Sabha is binding on the Sarpanch under Section 6 (4). Whether the resolution is in accordance with the law is something that the Sarpanch may decide before allowing the resolution under rule 10 of the Goa Panchayats (Gram Sabha Meeting) Rules, 1996. Once the resolution is approved, the decision to stay its implementation lies with the Director of Panchayats and not the Sarpanch. In this case, construction is a subject of the Village Panchayat and therefore the Gram Sabha is authorised to decide on it. Construction in Villages is about Rural Housing However, another question that will arise is, how are the mega housing projects detrimental to the interests of the Village Panchayats? For this we have to refer to Schedule XI of the Constitution of India which gets reflected in Schedule 1 and 2 of the Goa Panchayati Raj Act, 1994 wherein is listed around 29 functions for local self-governance. These very functions offer a blue print on the type of development activity that needs to be undertaken in a village. Many of the activities specified are directly dependent on land and other natural resources. From among these activities what has been provided for, is ‘rural housing’ which definitely cannot mean ‘mega housing projects’. It is in this spirit that Sec.66 of the Goa Panchayati Raj Act needs to be interpreted. The term ‘buildings’ mentioned in this section is therefore to be interpreted in the context of rural housing. So also, the powers to regulate construction under this section definitely lie with the Village Panchayat which is the licensing authority. The Town and Country Planning department which has been the agency to decide on land use and buildings is only consulted by the Village Panchayat to ascertain that the proposed construction conforms to the technical requirements from the planning point. The ‘No Objection Certificate’ is not a license but just indicates that the construction application fulfils the specified requirements under various other laws that govern construction activity. However, the responsibility to assess the social, infrastructural, economic and environmental impact of the proposed construction lies with the Village Panchayat. Therefore, the Village Panchayat is held responsible for the garbage problem and not the T&CP Department which decides on land zoning and F.A.R. An argument is often floated as to how can a Village Panchayat deny the right to construct a building when the laws pertaining to spatial planning permit such an activity in the area? Planning for Local Bodies under present Goa Town & Country Planning Act is Ultra-vires of Article 243ZD of the Constitution of India The scope offered by any law for an activity does not necessarily imply that a local government cannot regulate the activity. The very laws that have been applied to decide upon the zoning and building specifications in areas governed by Village Panchayats cannot over ride the GPRA. The Goa Town & Country Planning Act, 1975 which is made applicable to the Village Panchayats is ultra vires of Article 243ZD of the Constitution as it is now required that every State government must constitute District Planning Committees to formulate District plans. It is the DPC which has to decide upon issues of spatial planning, conservation of resources, etc. in Village Panchayats and Municipal areas. This procedure has not been followed by the government and planning norms meant for urban areas have been mischievously imposed on rural areas without consultation with the rural local bodies. The people have never been consulted on matters of planning in their village. These faulty and unconstitutional planning processes have resulted in social, cultural and economic strife in Village Panchayat areas. Village development is definitely not just about housing construction but also involves several other sectors like agriculture, horticulture, animal husbandry, social forestry, non-conventional energy generation, rural/cottage industry, education, art and culture and so on. The direct impact of these irrational and unbalanced development processes imposed by the State government over the years falls on the village people. Since the government departments have resorted to unconstitutional acts within the jurisdiction of the local bodies, and considering that Village Panchayats are solely responsible for the social, cultural, economic and ecological development of their villages, the Gram Sabhas are well within their rights to reject what they in their collective wisdom see as damaging to their welfare.