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8/2/2019 Legislation Notes

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Legislation Notes

73rd

Amendment Act, 1992The salient features of the Act are: -

The 73rd amendment to the Constitution enacted in 1992 made statutory provisions for the

establishment, empowerment and functioning of Panchayati Raj institutions. Some

provisions

of this amendment are binding on the States while others have been left to be decided by

respective State Legislatures at their discretion. The salient features of this amendment

are as follows:

Some of the compulsory requirements of the new law are:

l Organisation of Gram Sabhas;

l creation of a three-tier Panchayati Raj Structure at the Zila, Block and Village levels;l almost all posts, at all levels to be filled by direct elections;l minimum age for contesting elections to the Panchayati Raj institutions be twentyoneyears;l the post of Chairman at the Zila and Block levels should be filled by indirect election;l there should be reservation of seats for Scheduled Castes/ Scheduled Tribes inPanchayats, in proportion to their population, and for women in Panchayats up toone-third seats;l State Election Commission to be set up in each State to conduct elections to PanchayatiRaj institutions;l the tenure of Panchayati Raj institutions is five years, if dissolved earlier, fresh electionsto be held within six months; and

l a State Finance Commission is set up in each State every five years. (Please refer to74th Amendment discussed above)Some of the provisions which are not binding on the States, but only guidelines are:l Giving voting rights to members of the Central and State legislatures in these bodies;l providing reservation for backward classes; andl the Panchayati Raj institutions should be given financial powers in relation to taxes,levy fees etc. and efforts shall be made to make Panchayats autonomous bodies.

Panchayt acts

To provide 3-tier system of Panchayati Raj for all States having population of over 20 lakh.

To hold Panchayat elections regularly every 5 years.

To provide reservation of seats for Scheduled Castes, Scheduled Tribes and women (not less

than 33%)

To appoint State Finance Commission to make recommendations as regards the financial

powers of the Panchayats.

To constitute District Planning Committee to prepare draft development plan for the district

as a whole.

Powers and Responsibilities

According to the Constitution, Panchayats shall be given powers and authority to function as

institutions of self-government. The following powers and responsibilities are to be delegated to

Panchayats at the appropriate level

Preparation of plan for economic development and social justice.


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Implementation of schemes for economic development and social justice in relation to 29

subjects given in Eleventh Schedule of the Constitution.

To levy, collect and appropriate taxes, duties, tolls and fees.

Gram Sabha

In the Panchayati Raj set up, the Gram Sabha, the general assembly of villagers, has a key role for

effective functioning of Panchayats. In the Gram Sabha meeting, the rural poor, the women and the

marginalized people would now get an opportunity to join in decision making on matters affecting

their lives. Active functioning of the Gram Sabha would ensure a participatory democracy with

transparency, accountability and achievement.

Gram Sabha should meet least in each quarter preferably on Republic Day, Labour Day,

Independence Day and Gandhi Jayanti.

Decide developmental work to be undertaken by Panchayats based on needs assessment.

Suggest remedial measures for economy and efficiency in the functioning of the Panchayats.

Question and scrutinize the decisions of Panchayats in the meeting of Gram Sabha.

Discuss the Annual Financial Statement of Gram Panchayats.

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996

This Act extends Panchayats to the tribal areas of eight States, namely Andhra Pradesh, Bihar,

Gujarat, Himachal Pradesh, Maharashtra, Madhya Pradesh, Orissa and Rajasthan. This has come into

force on 24th

December 1996. Except Rajasthan and Bihar all States have passed laws to give effect

to the provisions contained in the Act, 40 of 1996.

Under the Act, Gram Sabha has been vested with powers for: -

Ownership of Minor Forest Produce

Development plans approval

Selection of beneficiaries under various programmes

Consultation on land acquisition

Manage minor water bodies

Control mineral leases

Regulate/Prohibit sale of intoxicants

Prevent alienation of land and restore unlawfully alienated land of STs

Manage village markets

Control money lending to STs

Control institutions and functionaries in all social sectors.

Urban Local Body

It is a common practice to divide the organisation of a corporation or a municipality intotwo parts: (a) the deliberative, and (b) the executive part. The corporation, council ormunicipal board or council consisting of the elected representatives of the people constitutesthe deliberative part. It acts like a legislature. It discusses and debates on general municipalpolicies and performance, passes the budget of the urban local body, frames broad policiesrelating to taxation, raising of resources, pricing of services and other aspects of municipaladministration. It keeps an eye on municipal administration and holds the executiveaccountable for what is done or not done. For instance, if water supply is not being properly

managed, or there is an outbreak of epidemic, the deliberative wing criticises the role ofthe administration and suggests measures for improvement. The executive part of municipal


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administration is looked after by the municipal officers and other permanent employees. Inthe corporations, the Municipal Commissioner is the executive head, and all otherdepartmental officers like engineers, finance officers, health officers etc. function underhis/her control and supervision. In a large corporation such as Delhi or Mumbai MunicipalCorporation the Commissioner is usually a senior IAS officer. In the municipalities, theexecutive officer holds a similar position and looks after the overall administration of amunicipality.Municipal functions are generally classified into obligatory and discretionary types. Theobligatory (compulsary) functions are those that the municipal body must perform. In thiscategory fall such functions as water supply; construction and maintenance of roads,streets, bridges, subways and other public works, street lighting; drainage and sewerage;garbage collection and disposal; prevention and control of epidemics. Some other obligatoryfunctions are public vaccination and inoculation; maintenance of hospitals and dispensariesincluding maternity and child welfare centres; checking food adulteration; removal of slums;supply of electricity; maintenance of cremation and burial grounds; and town planning. Insome States some of these functions may be taken over by State Government.The discretionary functions are those that a municipal body may take up if funds permit.

These are given less priority. Some of the discretionary functions are construction andmaintenance of rescue homes and orphanages, housing for low income groups, organisingpublic receptions, provision of treatment facilities, etc.Municipal Corporations take up more functions than municipalities. There are corporationslike Delhi, Mumbai, Vadodara , Pune, Ahmedabad which are known for their various citydevelopment activities in such areas as public transport, public parks and open spacesincluding municipal zoo, and even milk and electricity supply.

Powers, authority and responsibilities of Municipalities, etc.-

Subject to the provisions of this Constitution, the Legislature of a

State may, by law, endow-

(a) the Municipalities with such powers and authority as may be

necessary to enable them to function as institutions of self-government and such

law may contain provisions for the devolution of powers and responsibilities upon

Municipalities, subject to such conditions as may be specified therein, with respect to-

(i) the preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be entrusted

to them including those in relation to the matters listed in the Twelfth Schedule;

(b) the Committees with such powers and authority as may be necessary to enable them to

carry out the responsibilities conferred upon them including those in relation to the

matters listed in the Twelfth Schedule.

243X. Power to impose taxes by, and Funds of, the Municipalities.-The Legislature of a State

may, by law,-

(a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and

fees in accordance with such procedure and subject to such limits;


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(b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the

State Government for such purposes and subject to such conditions and limits;

(c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund

of the State; and

(d) provide for constitution of such Funds for crediting all moneys received, respectively,

by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom.

as may be specified in the law.

TWELFTH SCHEDULE

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings.3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and commercial purposes.

6. Public health, sanitation conservancy and solid waste manage-ment.

7. Fire services.

8. Urban forestry, protection of the environment and promotion of ecological aspects.

9. Safeguarding the interests of weaker sections of society, including the handicapped

and mentally retarded.

10. Slum improvement and upgradation.11. Urban poverty alleviation.

12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.

13. Promotion of cultural, educational and aesthetic aspects.

14. Burials and burial grounds; cremations, cremation grounds and electric crematoriums.

15. Cattle pounds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

17. Public amenities including street lighting, parking lots, bus stops and public

conveniences.

18. Regulation of slaughter houses and tanneries.''.

Land Acquisition Method

In this method, the public planning authorities/development agencies acquire large areas of

land from agricultural landholders (farmers) under the Land Acquisition Act of 1894.

Compensation paid to farmers is based on prevailing agricultural land prices. To minimize

opposition to acquisition farmers are paid prices marginally higher than agricultural land

prices. Then a master plan of the area is prepared, laying out the roads, plots for social

amenities, and plots for sale. Roads and infrastructure are then built, using governmentfunds or loans.


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Serviced plots are then sold for urban uses at market rates, which are most often

much higher than the rate at which land is acquired.

There are merits as well as demerits to this method. The merits are listed as

follows:

Adequate amounts of land for urban uses can be rapidly generated, providedthat there is little opposition to bulk acquisition from farmers.

To expedite acquisition, some states allow private developers to assemble land. In many

cases, developers use extralegal means to secure farmers consent.

There are very few constraints in preparing the master plan.

The benefit of appreciation of land value on its being converted to urban use accrues to

the development authority.

The demerits of this method are as follows:

Original owners or farmers dont share this benefit in any manner. This goes against the

grain of fairness. In this method, farmers are essentially thrown off their land.

Unable to wisely invest the money received as compensation for their land and deprived

of a means of livelihood, they have to join the pool of urban labor. This process adds to

familiar urban problemsgrowth of slums, increase in crime rates, and increased

informal-sector economic activity.

The development process is slow. Any person who needs land for urban use has to

approach the urban development authority. The development authority ends up becoming

a bottleneck for development.

Development agencies using the method of bulk land acquisition end up being powerful

large-scale land developers, controlling vast urban resources.

This is likely to breed corruption and is antithetical to the emerging paradigm, where

government plays a facilitators role. This method, with some variation, is used in, for

example, the states of Delhi, Haryana, Rajasthan, Andhra Pradesh, Karnataka and

Maharashtra.

Land Pooling and Readjustment Method

In this method, the public planning agency or development authority temporarily brings

together a group of landowners for the purpose of planning, under the aegis of the state-

level town or urban planning act. As there is no acquisition or transfer of ownership

involved, there is no case for paying compensation. A master plan of the area is prepared,

laying out the roads and plots for social amenities. The remaining land is reconstituted into

final plots for the original owners. The size of the final plot is in proportion to the size of the

original plot, and its location is as close as possible to the original plot. A betterment charge

based on the cost of the infrastructure proposed to be laid is levied on the landowners.

Infrastructure is then provided utilizing these funds. There are merits as well as demerits to

this method. The merits are as follows:


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All the land, except whatever is needed for infrastructure development and social

amenities, remains with the original owner. The development agency plays a limited role in

ensuring planned urban growth.

The increment in land value resulting from the development accrues to the original owner

whenever the land is sold and developed for urban use. Thus the benefit of developmentgoes to the original owner instead of the development agency.

The original owner is not displaced in the process of land development and continues to

enjoy access to the land resource. Thus the negative impact of the process of urbanization

on farmers (original owners) is minimized.

The demerits are as follows:

This method is time consuming, since the procedure prescribed for preparation and

implementation of such land pooling or readjustment schemes is unduly complicated and

cumbersome.

Betterment charges are assessed at the beginning of the land pooling or readjustmentscheme preparation. Due to the inordinate delays in finalizing schemes, the betterment

charges levied on finalization of the scheme do not meet the cost of the infrastructure

provided. This method is used, for example, in Gujarat and Maharashtra:

TPO duties and powers

1) Supervising the work of Asstt Town Planners and other technical staff working under

them.

2) The Town & Country Planner(HQ) is responsible to expedite the plan preparation process

i.e. preparation of development plans /schemes, sectoral plans, model village plans, land

pooling & reconstitution schemes(s) and to get the same approved and notified from the

competent authority

3) To monitor the progress with regard to targets fixed by the Department regarding

preparation of Development Plans/Regional Plans/Sector/Plans/Schemes etc.

4) Town & Country Planner(HQ) assist the State Town Planner in formulating the opinion on

cases of grant of CLU permission and approval of building plans and composition of

offences under the Acts administered by the Department and collection of information

thereof.

5) Town & Country Planner(HQ) also generates report techno- legal-policy parameters.

6) To get the status report of construction activities carried out /being carried out by

individuals without prior approval of the Department, collected from field Offices/SADAs

in respect of Planning Areas/Special Areas and to ensure action against the same as well

as to initiate steps to curb the tendency of raising the construction work un-authorizedly.

7) To get the work relating to conservation of heritage in the State, Single Window System,

SADAs and correspondence relating to HIMUDA disposed off.

8) Any other job assigned by the State Town Planner/Head of Department from time to

time.

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