Project Work Of: Gram Panchayat Consitution, Power And Functions Under U.p. Panchayat Raj Act, 1947

PROJECT WORK OF LAND LAWS ON TOPIC: GRAM PANCHAYAT CONSITUTION, POWER AND

FUNCTIONS UNDER U.P. PANCHAYAT RAJ ACT, 1947

SUBMITTED BY: ARUBA ANSARI (GU15R0O75 )

SUBMITTED TO: Mr. ASIF BELAL ANSARI (Assistant Professor of Law)

SEMESTER-X

GLOCAL LAW SCHOOL

Contents CONCEPT OF VILLAGE PANCHAYAT........................................................................................2 GRAM PANCHAYATS......................................................................................................................4 1|Page

DEFINATION OF GRAM PANCHAYAT UNDER U.P. PANCHAYAT ACT 1947....................5 POWERS AND FUNCTIONS OF THE SARPANCH: SECTION 12 (3-A) AND SECTION 15.........................6 POWER OF GRAM PANCHAYAT MEMBERS:.......................................................................................6 FUNCTIONS OF GRAM PANCHAYAT:..................................................................................................6 Optional Functions......................................................................................................................7 JUDICIAL POWER............................................................................................................................8 Sources of income –......................................................................................................................8 CASE LAW..........................................................................................................................................9 BHANUMATI V. STATE OF U.P............................................................................................................9 SHORTCOMINGS............................................................................................................................10 CONCLUSION..................................................................................................................................11

CONCEPT OF VILLAGE PANCHAYAT It is the oldest system of local government in the Indian subcontinent. The word “panchayat” literally means “assembly” (ayat) of five (panch) wise and respected elders chosen and accepted by the local community.1 Traditionally, these assemblies settled disputes between http://www.publishyourarticles.net/knowledge-hub/essay/how-to-write-an-essayarticle-on-villagepanchayat.html 1

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individuals and villages.British established local self-government in 1869 when they made a District Local Fund in Bombay. This was a nominated body.In 1882, Lord Ripon established local self- government in India with the seating up of district local boards. District boards and councils were established in Maratheada and vidarbh. The next important piece of legislation was the Bombay Village Panchyat Act 1920. Under this Act, the Panchayats was constituted into an elected body. Members were elected by adult male villagers and the Panchayat was entrusted with local functions, mainly of a civil nature. Panchayat was empowered to collect compulsory house taxes. The Bombay Village Panchayat Act 1920 empowered village Panchayats to take up various activities, including some social-economic functions and gave the power to heavy taxes and duties in order to increase their income. After the reorganization of states in 1956, laws to introduce the Panchayat system in different stator were gradually enacted. This process was almost complete in Andhra Pradesh, Assam, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Utter Pradesh, and Bombay.2 The Bombay Village Panchayats Act was enacted in Producers for seeking legal redress through judicial courts are both long and enormously complicated, and also involve considerable expenses. It is because of this that several different and newer ways of setting disputes both quickly and inexpensively have come up. One such method is Lok Adalat, established under Lok Adalat Act, 1958. Under the Act, a district village for the supervision and control of village Panchayats. 3 These Mandals were, however, abolished in 1962.Apart from this enactment in various states, a direction is contained in the Constitution of India in Article 40 which says that “The State shall take steps to organize village Panchyats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government. Under the new enactment, a Gram Sabha of adult residents in the village was constituted, and it was made obligatory on the Panchayats to hold meetings of the Gram Sabha within two

2

Pandey, J.N., “The Constitution Of India”, Central Law Agency, 50th Edition, 2013, Pg. 653.

3

ibid

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months from the commencement of every financial year and to prepare an annual statement of accounts to be placed before such a meeting. The administrative report, the proposed development programmes, adult report, compliance of adult objections and other such matters were also required to be placed before this meeting. Group NyayaPanchyats were established, but later they were abolished. Obligatory duties of the Panchayats were mainly of a civil nature that is, making provisions for sanitation, street lights and drinking water. The discretionary functions covered the fields of agriculture, cooperation, animal husbandry, self-defence and other such administrative and development works. Village Panchayats are controlled and supervised by ZillaParishads, PanchayatSamitis and their officers. The state government also has direct control over Panchayats through the Collector of the district. District Village Panchayat officers work under ZillaParishads to supervise and control the village Panchayats, and are appointed by the state governments. There is however, no proper machinery for the public to air their grievances and control malpractice in ZillaParishads. Vested interests in the government have always been found to be sheltering corrupt elements in the system and they are now well entrenched. Government control over this institution has seldom proved to be effective and the poor masses at the grassroots level are yet to get benefit from the existing system of Panchayati Raj. In view of these shortcomings, part IX, consisting of Article 243 was inserted by the Constitution (73 rd Amendment) Act, 1992.

GRAM PANCHAYATS Gram Panchayats are the basic unit of rural administration. The Gram Panchayat shall consist of the Pradhan and Up-Pradhan and 9 to 15 members, elected from the different constituencies depending on the size of the Panchayats. The Pradhan shall be elected directly while the Up-Pradhan (Assistant) shall be elected indirectly, that is, by the members of the gram panchayat. Reservation for SCs, STs and OBCs for the post of Pradhan has been made as per the proportion of their population in the state. The reservation for the backward 4|Page

classes, however, cannot exceed by 27 percent. One third seats have been reserved for women candidates in all the three-tiers. The seats are allotted by rotation to different constituencies. The meetings of Gram Panchayat shall be held at least once in a month (Section 12B). The Panchayat also have some other powers such as to make contributions to organizations outside their jurisdiction, exercise control over public streets, water ways and other facilities, improve sanitation conditions, maintain and improve schools and hospitals, establish primary schools, hospitals and dispensaries, enquire and report about the misconduct of certain officials and to take contracts for collection of taxes and other dues for proprietors (Section 16A-24). The Act also has the provision (Section 28A) for constituting a Bhumi Prabandhak Samiti (Land Management Committee) to oversee general management, preservation and control of all the properties of the Panchayat that are held by it, under the Uttar Pradesh Zamindari Abolition and Land Reform Act, 1950. The Pradhan and UpPradhan are the chairperson and vice-chairperson respectively of the Samiti and the Lekhpal (Patwari) of the area is its Secretary. This body has been kept under overall control of the collector (Section 28C). Besides, the Panchayat shall also constitute a Samta Samiti, a Vikas Samiti, Shiksha Samiti and Lokhit Samiti (Section 29). These Samities can co-opt members from organizations engaged in the development of rural areas and recognized by the state government. In the Shiksha Samiti, three persons from amongst the guardians of the student of the primary school shall be co-opted. This is a welcome step as it will establish an organic link between the school and the beneficiaries. The act also provides for a gram fund for each Gram Panchayat (Section 32) to help it in carrying out its duties and obligations. It is also empowered to acquire land, make borrowings and impose taxes and fees.4 The Commission has analyzed the resource position of Gram Panchayats in Uttar Pradesh. Gram Panchayats have meager resource base. Jawahar Rozgar Yojna is the main resource at present. There is indeed a potential for raising tax and non-tax resources of Village Panchayats which have been inadequately utilized so far. Gram Panchayats are not levying even the obligatory tax as assigned to them by the Uttar Pradesh Panchayat Raj Act 1947. The Pradhan, being the head of elected body and having all the powers to impose taxes, avoids tax collection for fear of unpopularity. Surcharge on land revenue was an obligatory tax. Even this tax is not being levied by gram panchayat. The Commission recommended that the surcharge on land revenue should be collected by the revenue machinery of State Government a lot, with the demand for land revenue. It has also recommended that Gram 4

George Mathew, op.cit., p.294.

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Panchayats should be made to levy surcharge on land revenue at the rate of 50 percent of land revenue. The Commission has also recommended levying tax on use of pump sets and tractors. This way, Gram Panchayats now can grow as ‘institutions of self-government’ because they would become economically sound.5 DEFINATION OF GRAM PANCHAYAT UNDER U.P. PANCHAYAT ACT 1947 Gram panchyat is constituted for every Panchayat area which comprises a village or group of villages. Gram Panchyat shall bear the name of Panchayat area. Section 12 (1) provides for the constitution of Gram Panchayat which is reproduced below:“GRAM PANCHAYAT” – a) There shall be constituted for every Panchayat area, Gram Panchayat, bearing the name of the panchayat area. b) Every panchayat shall be a body corporate. c) A Gram Panchayat shall consist of a Pradhan and in the case of Panchayat area having a population ofi.

Upto 1000

9 Members

ii.

1001 – 2000

11 Members

iii.

2001 – 3000

13 Meembers

iv.

3001- and above

15 Members

POWERS AND FUNCTIONS OF THE SARPANCH: SECTION 12 (3-A) AND SECTION 15 1. To convene and preside over the meetings of the Gram Panchayat. 2. To conduct and regulate and be responsible for the proper maintenance of the records of the proceedings of the meetings. 3. To execute documents relating to controls on behalf of the Gram Shasan. 4. To be responsible for the proper custody of all records and documents, all valuable securities and assets belonging to the Gram panchayat or belonging to the Gram shasan. 5. To be responsible for the proper working of the Gram panchayat as required by or under the Act.

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Nilofer, op.cit., p.29

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6. To exercise supervision and control over the acts and proceedings of all officers and employees of the Gram panchayat. 7. To have authority to enter into correspondence on behalf of Gram panchayat. 8. To order the preparation of all statements and reports. 9. To exercise such other powers, discharge such other duties and perform such other functions as may be conferred or imposed on or assigned to him.[xii]  POWER OF GRAM PANCHAYAT MEMBERS: 1. To supervise during office hours, the records of the Gram Panchayat after giving due notice to the Sarpanch. 2. To move resolution or question on any office bearer on matters connected with the administration of the Gram Panchayat. 3. To exercise inspection overt all works undertaken by the Gram Panchayat. 4. To supervise all institutions working under the direction, management and control of the Gram panchayat. 5. To bring to the notice of the Sarpanch the irregularities if any, noticed during such inspection. FUNCTIONS OF GRAM PANCHAYAT: There are a number of functions perform by Gram Panchayats. These functions are divided into two categories, namely, the obligatory functions and the options functions. Following are the Obligatory or the Compulsory Functions: 1. Construction, repairs, maintenance, alteration and extension of village roads, provisions of lights on the roads and other places of public resort and removal of encroachments and obstructions on the roads and other public places. 2. Construction, maintenance and cleaning of the drainage system and provision of sanitation in the village by the removal of filth and clearance of marshy areas. 3. Supply of drinking water to the villages.

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4. Adoption of preventive measures against epidemics and other dangerous diseases, prevention of obnoxious and dangerous trade, registration of births and deaths and the preparation of the necessary records for the purpose. 5. Maintenance of common pasture and other public institutions. 6. Preparation of census records of men and animals, maintenance of relevant records and submission of periodic records and returns. 7. Management of Panchayat properties as assets. 8. Spread of primary education and its management. 9. Social conservation. 10. Control of Markets, ferries, fairs, Ghats and other public places. 11. Adoption and encouragement of improved methods of cultivation. 12. It has to perform such other functions which are given to the Gram panchayat on a compulsory basis.6 Optional Functions In addition to the compulsory functions, each Gram Panchayat is also required to perform certain optional functions for the development of the rural people.  These functions are given below: 1. Development and maintenance of village forests. 2. Construction, management and control of slaughter houses. 3. Famine relief measures. 4. Organization of the Fire services and protection of life and property in case of fire. 5. Maternity and child welfare and establishment of centers of the purpose. 6. Establishment and maintenance of works for providing employment in a time of scarcity and establishment and granaries. 7. Organization, management and promotion of cottage industries. 8. Construction and maintenance of Dharmasalas and Rest houses. 9. Provision of adult education, the establishment of primary schools with the prior approval of the Panchayat Samiti.

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10. To keep the records about the unemployed persons.7 JUDICIAL POWER It decides minor & criminal cases within its areas. Now the villagers need not go to the Tahasil or the District headquarters to set their disputes decided. In the criminal sphere, the Panchayat can hear cases involving mischief, assault, theft of property etc. on payment of prescribed fee. These fees are of a nominal nature. They can hear civil cases of the value of Rs. 200/-. They can impose a fine up to Rs. 200/-. One thing is to be noted that the lawyers cannot appear before the Panchayats. Both the parties are to appear before the Panchayat to plead their case. In criminal cases, the Panchayat can only impose a fine and it cannot sentence anybody to imprisonment. It can impose a fine up to Rs. 25 openly those who defy its orders. 8 Normally the decision of the Panchayat is final but an appeal can be made to the Court of District Magistrate with its prior sanction. Sources of income – 

It gets 10% of the total revenue collected from the village.



It imposes House tax.



It sets profit from the sale of fertilizers.



It imposes tax on animals, profession etc.



Drainage fee.



The Panchayats issue various types of license & get a fee for the same.



It takes money by selling the slain of dead animals.9

CASE LAW BHANUMATI V. STATE OF U.P.10

7

ibid

8

http://www.publishyourarticles.net/knowledge-hub/political-science/what-is-the-functions-of-grampanchayats.html 9

ibid

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AIR 2010 SC 3096

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The facts were that the U.P. KeshetraPanchayats and ZilaPanchayatsAdhiniyam 1961 was amended in 1965, 1976, 1990, 1994, 1998 and 2007. IN 1994, The Amendment was also done of United Provinces Panchayat raj act, 1947. The amendments in 1947 and 1961 acts were in keeping with the objectives of the Constitution 73rd amendment act, 1992. By section 9 of the U.P.Panchayat Laws (amendment) ordinance, 2007, latter on act, 2007, the offices of “ Up – pramukh,” “Senior Up-pramukh”, “Junior Up –pramukh” and “upadhyakshaya” were omitted from 1961 Act. Section 2 of the amendment act omitted “Up-pradhan” wherever occurring including the marginal  heading.The  amendment was in total contravention of part IX  of the constitution providing for a three tier structure of Panchayat  administration and the reason for such a three tier to minimize the executive interference . In the case of removal   or disqualification of “Pramukh“or Pradhan” from running the administration, the “Up-pramukh” or upPradhan” prior to such amendment could have taken over whereas the abolition of these office will pave the way for executive interference. It was also argued that there is no provision of no- confidence motion in chapter IX of the constitution and therefore incorporation of this of this principle militates against the principle ofPanchayati Raj institution. Besides, substitution of the provision ‘more than half’ in place of ‘not less than two-thirds’ i.e. the no-confidence resolution to be carried on by simple majority instead of two-thirds majority and the reduction of   ‘one year’ in place of  two year for bringing no-confidence motion dilutes the principle of stability and continuity which are main purposes behind  the object and reason of constitutional amendments in Part IX of the Constitution. The SC dismissed the appeal and held – a constitution is not to give all details of the provisions. In Articles likes 243A, 243 C(1), (5), 243D(4), 243X(6), 243F(1),(6), 243G, 243H, 243I(2), (4) the state Legislature has been empowered to make a law to implement the constitutional provision. Further in view of the “Constitution doctrine of Silence”, the petitioner arguments cannot be accepted. A Constitution professing to be a democratic and republican in character cannot be interpreted to exclude the provision of the no-confidence motion in respect of the chairperson of the Panchayat just because of its silence on that aspect. 10 | P a g e

As a result of no-confidence motion, the chairperson of Panchayat, does not lose this position as a member of Panchayat  and therefore there is no set back to the institution .the essence of democratic republicanism is that all person who comprise  such bodies . Therefore, the statutory provision cannot be called either unreasonable or ultra vires of Part IX of the constitution. Regarding the  contention that the  post  of chairperson  should have the same immunity as the president of India, the court held the argument of argument of desperation and  advanced  without any regard to the vast difference  between  the constitution status and position between the two posts ,which were not comparable at all by any standards even the president of India  being  subject to impeachment proceedings under Art. 61 of the constitution. SHORTCOMINGS But in most of the States, the people are apathetic towards this body. It has been noticed that meetings of the GS end in a mere formality. Decisions which were supposed to be taken by the GS were taken by the local elite, thereby rendering this body redundant. Meetings were conducted without any consideration of quorum. The absence of women and weaker sections of rural society was another feature of the GS. Hence, the entire exercise could not deliver the expected results. The reason for poor attendance is due to the fact that provisions relating to the GS contain nothing of substance which could attract the masses towards it. The people, particularly the poor, did not want to lose their daily wages for the sake of attending the GS meetings. Apart from giving the GSs only a ritualistic role, the problem is compounded by having the meetings of the Sabha at a time of the day when the women and weaker sections are busy at home or in earning their wages. This renders the GS meetings meaningless. The role of the GS in bringing transparency in its own functioning in ensuring equitable distribution of the benefits, in creating community assets where these are needed and bring about social cohesion which is the most important factor in the success of the GPs.11 In order to make the GS a powerful, vibrant and pulsating institution we must make it as a fulcrum of the entire scheme of democratic decentralisation. Kurien.Lucyamma: The structure and functioning of Gram Sabhas: A study focused on the district of Kottayam : Chapter VIII:Shodhganga.inflibnet.ac.in/bitstream/10603/354/15/15 11

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The institution of the GS is very important as it gives an opportunity to each and every voter of the GP at the local level to take part in the decision-making of decentralised governance, planning and development. CONCLUSION The term ‘Panchayat Raj’ is relatively new, having originated during the British administration. ‘Raj’ literally means governance or government. Mahatma Gandhi advocated Panchayati Raj, a decentralized form of Government where each village is responsible for its own affairs, as the foundation of India’s political system. His term for such a vision was “Gram Swaraj” or Village Self-governance. It was adopted by state governments during the 1950s and 60s as laws were passed to establish Panchayats in various states. It also found backing in the Indian Constitution, with the 73rd amendment in 1992 to accommodate the idea. The Amendment Act of 1992 contains a provision for devolution of powers and responsibilities to the panchayats to both for preparation of plans for economic development and social justice and for implementation in relation to twenty-nine subjects listed in the eleventh schedule of the constitution. The panchayats receive funds from three sources ie, local body grants, as recommended by the Central Finance Commission, funds for implementation of centrally-sponsored schemes, and funds released by the state governments on the recommendations of the State Finance Commissions. By the seventy third amendmentPanchayat became an ‘institution of self-governance’– Article 243(d) and comprehensive provisions came to be incorporated for democratic decentralization of governance on Gandhian principle of participatory democracy. The Panchayati Raj institutions structured under the 73rd Amendment are meant to bring about sweeping changes in the governance at the grass root level. By this amendment, Parliament introduced three tier system of Panchayati Raj institutions at Village, Block and District levels. Article 243C provides for the composition of a Panchayat and filling up of the seats in a Panchayat by direct election. Article 243D provides for reservation of seats and Article 243E provides for the duration of Panchayat. Article 243F enumerates the grounds of

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disqualification of membership of the Panchayat and Article 243G prescribes the powers, authority and responsibilities of a Panchayat. Article 243H gives power to the State Legislatures to enact law and authorise a Panchayat to levy, collect and appropriate taxes, duties, tolls, and fees; assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government and also provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State. Clause (d) of this Article envisages a legislative provision for constitution of appropriate provisions for crediting all monies received by or on behalf of the Panchayats and also for withdrawal of such monies. Article 243I envisages constitution of Finance Commission to review the financial position of the Panchayats. An analysis of Article 40 and Articles 243 to 243O shows that the framers of the Constitution had envisaged Village Panchayat to be the foundation of the country’s political democracy -a decentralized form of Government where each village was to be responsible for its own affairs. By enacting the Constitution (Seventy-third Amendment) Act, Parliament has attempted to remedy the defects and remove the deficiencies of the Panchayati Raj system evolved after independence, which failed to live up to the expectation of the people in rural India. The provisions contained in Part IX provides a firm basis for self-governance by the people at the grass root through the institution of Panchayats at different levels. For achieving the objectives enshrined in Part IX of the Constitution, the State Legislatures have enacted laws and made provision for devolution of powers upon and assigned various functions listed in the Eleventh Schedule to the Panchayats. The primary focus of the subjects enumerated in the Eleventh Schedule is on the social and economic development of the rural parts of the country by conferring upon the Panchayat the status of a constitutional body. Parliament has ensured that the Panchayats would no longer perform the role of simply executing the programs and policies evolved by the political executive of the State. By virtue of the provisions contained in Part IX, the Panchayats have been empowered to formulate and implement their own programs of economic development and social justice in tune with their status as the third tier of government which is mandated to represent the interests of the people living within its jurisdiction. 13 | P a g e

The system of Panchayats envisaged in this Part aims at establishing strong and accountable systems of governance that will in turn ensure more equitable distribution of resources in a manner beneficial to all. The Union Cabinet of the Government of India, on 27 August 2009, approved 50% reservation for women in PRIs (Panchayati Raj NIJO Institutions). The Indian states which have already implemented 50% reservation for women in PRIs are Madhya Pradesh, Bihar, Uttarakhand and Himachal Pradesh. As of 25 November 2011, the states of Andhra Pradesh, Chhatisgarh, Jharkhand, Kerala, Maharastra, Orissa, Rajasthan and Tripura also reserve 50% of their posts for women.

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