Gujarat High Court
Rajubhai Ishwarbhai Vasava vs State Of Gujarat & 2....Opponent(S) on 11 September, 2014
Author: J.B.Pardiwala
Bench: Akil Kureshi, J.B.Pardiwala
C/WPPIL/203/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 203 of 2013
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RAJUBHAI ISHWARBHAI VASAVA....Applicant(s)
Versus
STATE OF GUJARAT & 2....Opponent(s)
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Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Applicant(s) No. 1
MR PK JANI, AAG WITH MR VANDAN BAXI, AGP for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/09/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ application in the nature of a public interest litigation, the petitioner a resident of village Chamariya, Taluka Valia, has raised the issue of effective and proper implementation of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (for short 'PESA Act, 1996'). To put it briefly, the case of the petitioner is that it is only upon proper implementation of the provisions of the Act that the people hailing from the poor strata of society would get the benefit of the Act and the object of the Act would be subserved. It appears from the affidavit in reply filed on behalf of the respondent No.1 duly sworn by one Shri Nirvan R. Shah, Deputy Secretary, Panchayats, Rural Housing ad Page 1 of 7 C/WPPIL/203/2013 ORDER Rural Development Department, that pursuant to the enactment of the PESA Act, 1996, certain provisions of the Gujarat Panchayats Act, 1993 were amended in the year 1998. In the affidavit in reply filed on behalf of the respondent No.1, the following averments have been made which are reproduced hereinbelow:
"I state that pursuant to the enactment of the PESA Act,1996 certain provisions of the Gujarat Panchayats Act, 1993 were amended in the year 1998. For example, Section 4(e) of the PESA Act provides that:
"Every Gram Sabha shall -
(i) approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayats at the village level;
(ii) be responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programmes;
7. The corresponding provisions in the Gujarat Panchayat Act, 1993 is provided in Section 4(b) which is as follows:
"The Gram Sabha Shall -
(i) approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the village panchayat.
(ii) Be responsible for the identification of selection of persons as beneficiaries under the poverty alleviation and other programmes in the village."
8. In state that the Gujarat Village Panchayat (Gram Sabha Meetings and Functions) Rules, 2009 have been framed and are being implemented in the State of Gujarat. Rule-26, Chapter IV of Page 2 of 7 C/WPPIL/203/2013 ORDER the Rules provides for additional functions of Gram Sabha in Scheduled Areas.
The Gram Sabha in Scheduled Areas approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the village panchayats.
The Gram Sabha identifies persons as beneficiaries under the various poverty alleviation and other programmes in order of priority, out of the persons identified by the panchayat or local officials.
9. Therefore, similar such provisions have been effected into the Gujarat Panchayat Act, 193 as well as other relevant Rules.
Similarly Section-4 (m) (ii) of the PESA Act provides for endowing the Gram Sabha and Panchayat at appropriate level with the ownership of Forest Produce, whereas Section-108, Sub Section (5) of the Gujarat Panchayats Act, 1993 provides as follows:
"(a) For the purpose of this Act, there shall be vested in the village panchayat minor forest produce found (except found in the areas of National Parks or Sanctuaries) in such area of a forest as is situate in the jurisdiction of that village.
(b) The sale proceeds of the minor forest produce shall be paid into and form part of the village fund.
(c) Nothing in clause (a) shall be construed as vesting in the village panchayat the land in the area of forest referred to in clause
(a) and trees and plantations thereon.
Explanation: For the purpose of this sub-section the expression of minor forest produce shall have the same meaning as assigned to it in clause (9) of section 2 of the Gujarat Minor Forest Produce Trade Nationalization Act, 1979.
10. Therefore, as per the policy decision of the Government of Gujarat in Panchayats, Rural Housing and Rural Development Department upto the year 2010 the work of collecting and disposing off the Minor Forest Produce (MFP) was entrusted to the Page 3 of 7 C/WPPIL/203/2013 ORDER Gujarat State Forest Development Corporation on 'no profit no loss' basis. Income from the sale proceeds of the MFPs were distributed on the following basis:
(1) 15% amount of net income for the conservation and development of forest.
(2) 15% amount of net ;income for the welfare of collectors of MFPs.
(3) 60% amount of net income for creating infrastructural facilities for the community development at village panchayat level.
(4) 10% amount of net income to be allotted and kept in the reserve fund at the disposal of the Development Commissioner, Gujarat State for granting loans to district panchayats for undertaking the work of MFPs.
From the year 2011 the Forests and Environment Department is acting as per the provisions of the Forest Rights Act, 2006 passed by the Parliament.
11. I further state that so far as provisions of Section 4(c), Section 4(g) and 4(l) of the PESA Act, 1996 are concerned, which are quoted below for ready reference -
"Section 4(c) :
every village shall have a Gram Sabha consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level;
Section 4(g):
the reservation of seats in the Scheduled Areas at every Panchayat shall be in proportion to the population of the communities in that Panchayat for whom reservation is sought to be given under part IX of the Constitution:
Provided that the reservation for the Scheduled Tribes shall not be less than one-half of the total number of seats:
Provided further that all seats of Chairpersons of panchayats Page 4 of 7 C/WPPIL/203/2013 ORDER at all levels shall be reserved for the Scheduled Tribes;
Section 4(l):
the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for the exploitation of minor minerals by auction;"
12. The relevant effect under the Gujarat Panchayats Act, 1993 is the provision of Section 4(2) which is in consonance with Section 4(c) of the PESA Act, 1996. In other words, the provision of Section 4(2) of the Gujarat Panchayats Act, 1993 is consonance with the Section 4(c) of the PESA Act, 1996.
(2) The provisions of Section 9(5)(a)(ia), Section 10(5)(a)(ia), Section 11(5)(a)(ia) of the Gujarat Panchayats Act, 1993 is in consonance with the Section 4(g) and first proviso to Section 4(g) of the PESA Act, 1996.
(3) The provision of Section 51(2)(a), Section 63(2)(a), Section 77(2)(a) of the Gujarat Panchayats Act, 1993 is in consonance with the second proviso to Section 4(g) of the PESA Act, 1996.
(4) The Governor of Gujarat has, in exercise of the powers conferred by sub-paragraph (1) of Paragraph 5 of the Fifth Schedule to the Constitution of India, vide Government Notification, Panchayats, Rural Housing & Rural Development Department, No.KP/187/PDS/199/712/G, dated 23rd November 2001, directed that the Gujarat Panchayats Act 1993 shall apply to the Scheduled Areas in the State subject to the exceptions and modifications specified in the corresponding entries in column 2 of the Table of the Notification. The exceptions and modifications are as follows:
(1) In section 9, in sub-section (5), in clause (a), after sub-clause (ia), the following proviso shall be inserted namely:-
"provided that the provisions of sub-clause (ia) shall not apply to a village panchayat where the population of Scheduled Tribes is less than 25 (Twenty Five) percent of the total population of the village panchayat."Page 5 of 7
C/WPPIL/203/2013 ORDER (2) In Section 51, in sub-section (2), after clause (a) the following proviso shall be inserted namely:-
"provided that the provisions of sub-clause (a) as amended by Gujarat Panchayats (Amendment) Act, 1998 shall not apply to a village panchayat where the population of non-tribals is 75 (Seventy Five) per cent or more of the total population of the village panchayat."
Further, (1) the Gujarat Village Panchayats Election of Sarpanch (Manner of Allotment of Reserved Offices of Sarpanch by Rotation) Rules, 1994 (2) the Gujarat Panchayats Election of President of Taluka Panchayat (Manner of Allotment of Reserved Offices of President by Rotation) Rules, 1994, (3) the Gujarat Panchayats Election of President of District Panchayat (Manner of Allotment of Reserved Offices of President by Rotation) Rules, 1994 have been framed and are being implemented in the State of Gujarat.
Thus, it can be seen that the provisions of the PESA Act, 1996 in respect of the reservation of seats and offices of chairpersons in the panchayats have been incorporated in the Gujarat Panchayats Act, 1993 in Section 9, 10,11, 51, 63, and 77. To implement the same the rules have also been framed and are implemented as stated above.
13. So far as the grievance of the petitioner with respect to that various state laws and rules which are not amended in consonance with the provisions of PESA Act, 1996 are concerned, I state that the same is not correct as Section 17A has been inserted after section 17 of the Bombay Money Lenders Act, 1946 which provides for previous sanction of the village panchayat before lending money to a member of Scheduled Tribes residing in the Scheduled Areas of the State. This amendment has been brought about by Gujarat Panchayats (Amendment) Act, 1998.
(2) The Gujarat Minor Mineral Concession Rules, 2010 have been framed and are being implemented in the State of Gujarat. As per Rule 4(6), 10(1), 57(2), 62(3) of these rules prior recommendation of the concerned Gram Sabha at the appropriate level is to be obtained.
Page 6 of 7C/WPPIL/203/2013 ORDER (3) The petitioner has not specifically stated as to what provision of the PESA Act, 1996 has not been implemented. Therefore, it is difficult to state anything."
Thus, it appears from the stance of the State Government noted above that as far as possible all the relevant aspects have been taken care of which includes the Bombay Money Lenders Act, 1946, Gujarat Minor Mineral Concession Rules, 2010 and other enactments.
From the aforesaid stance of the State Government, it is difficult for us to say that there has been no effective implementation of the provisions of the PESA Act, 1996. Yet if few relevant aspects have been left out from being considered, then in such circumstances, Mr.Jani, the learned Advocate General states that the same will be looked into by the State Government and the needful will be done in the matter. We do not find any reason now to continue with this public interest litigation and close the same. The petition is disposed of accordingly. No costs.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) (vjn) Page 7 of 7