Sasi K.G.
“The Constituent
Assembly is today forging the Constitution. Do not bother about making changes
in it. Shriman Narayan Agrawal has written to me that in the Constitution that
is being framed now, there is no mention of gram panchayat, whereas the
Congressmen have always said that the gram panchayat must be the foundation of
our future polity. We have to resuscitate the village, make it prosperous and
give it more education and more power. What good will the Constitution be if
the village does not find its due place in it? What Shriman Narayan Agrawal
says, appeals to me. But we must recognize the fact that the social order of
our dreams cannot come through the Congress of today. Nobody knows what shape
the Constitution will ultimately take.,” Mahatma Gandhi said in a constructive
workers’ committee meeting on December 12, 1947.[i]
The hope of Gandhi came into existence through the 73rd amendment of
the Constitution of India which inserted Part IX Panchayats into our
Constitution.[ii] In the original Constitution, constitution of Panchayats
were considered only under Article 40 of the Directive Principles of State
Policy as, “40. The State shall take steps to organise village panchayats and endow them
with such powers and authority as may be necessary to enable them to function as
units of self-government.” The Kerala Panchayat
Act, 1960 (32 of 1960) had come into
force under the power of Article 40 of the Constitution of India.
However,
panchayats were functioning throughout India as socio-legal organizations even
before the colonialization of India. When the British came into India, the
intended to convert these decentralized local customary institutions to fit
into their imperial motives. Imperial Judiciary attempted to interpret the
decisions of the panchayats first and Legislature began then to make laws on
the system of panchayats. Following Imperial Legislations, Rulers of Indian
States also started to make similar laws.
Kerala was mainly
divided at that time as Malabar, Cochin and Travancore. In Malabar, i.e. Madras province, as in the rest of
British India, local self-governments were essentially urban in origin. The
recommendations of the Royal Army Sanitary Commission contributed to the
enactment of the Madras Towns Improvement Act of 1865. Within two years,
under the provisions of the Act, municipalities were established in the major
urban centres of Malabar at Calicut, Kannur, Tellicheri, Palakkad and at Fort
Cochin which was an enclave which was directly governed by the British in
central Kerala. Those municipalities were having nominated councils dominated
by the bureaucracy. The local self-governance in
Malabar area was confined to the Malabar District Board, which had its
origin in the Local Fund Circle, with a nominated local board under the
president-ship of the collector constituted under the Local Funds Act of
Madras 1871. Local boards managed construction and maintenance of roads and
other ways of transport, hospitals and schools, drainage, water supply, and
other local works. The Madras Local Boards Act of 1884 introduced the
three-tier structure and the provision for elected representation. A revenue
village or group of villages constituted the lowest unit, called Union. Above
the Unions, there were the taluk boards and at the district level there
was the district board. The expenses for them were met from taxes on
land, houses, carts, and animals. In 1920 the Madras Village Panchayat Act
was passed. From 1930, the Malabar District Board became an elected body
with an elected president; the first president of which was a local landlord.
The district board later became a focal point of nationalist activities and was
captured by Indian National Congress in 1934. After independence, the Madras
Village Punchayat Act of 1950 considerably enhanced the powers of the local
governments.
In the state of Cochin, the
urban local governments emerged well during the closing decades of the
nineteenth century, essentially to look after sanitary arrangements. In 1910, Municipal
and Sanitary Improvement Regulations were passed. The earliest legislation
for local governance in the rural areas was the Cochin Village Panchayai
Regulation of 1914. As per this regulation, nominated panchayat Committees
were constituted on an experimental basis in selected villages. In 1922, the process
of election was introduced for the rural local governments. By 1934 Panchayats
were formed in the entire rural areas of Cochin State increasing the number from
5 to 87. Panchayats in Cochin State were not levying taxes of any kind and
their income was confined to receipts from usufructs, trees etc. which was not
of much significance.
In the southern Travancore,
Town Improvement Committees were formed in Trivandrum, Nagercoil.
Alleppey and Kottayam, following the Town Improvement and Conservancy
Regulation of 1894. In 1912, the right to voting in election has been made
exclusive to tax payers. Sanitation, construction and maintenance of public
wells, roads, and market places etc. were the main focus areas of the
committees. The Municipal Act of 1920 expanded the scope of
responsibilities of the urban local bodies to education and health sectors. In
1941, Thiruvananthapuram has been made a city corporation with an elected
Mayor. In August 1925, the system of Local Self Government was extended to
rural areas by a regulation called ‘’’Village Panchayat Regulation’’’ VII of
1100 Malayalam Era. This Act delegated certain judicial functions to the Panchayats
in addition to the administrative functions related to the villages. The main
sources of income of the Panchayats were land cess, profession tax, license
fees, vehicle tax and contributions from the Government. Later, the Travancore
Village Panchayat Act of 1935 empowered the government to declare any
revenue village or group of villages to be a panchayat with an elected or
nominated committee to perform the essential civic duties. In 1940, the Travancore
Village Union Act was passed, giving rise to a new type of rural local
governments slightly less powerful than the village panchayats. The Unions were
vested with the judicial functions exercised by the Panchayats. Two categories
of Panchayats were operating in the Travancore region at the time of
integration – One category under the Village Panchayat Regulation of 1925 and
the other under the Village Union Act of 1940.
Travancore and Cochin were integrated
in July 1949 and on 15 August 1951, Travancore-Cochin Village Panchayat Act,
1950 came into force. The first Panchayat elections to village Panchayats
in the Travancore-Cochin State were held in 1953 and these Panchayats started
functioning from 15 August 1953. At the time of integration of Travancore and
Cochin States in 1949, there were 197 village unions and 7 panchayats in the
former and 100 panchayats in the latter. Elections were held in 1953 and these
Panchayats started functioning from 15 August 1953. At the time of formation of
Kerala State, there were 495 reconstituted panchayats in Travancore-Cochin area
and 399 panrhayats in the Malabar area. The local bodies in Malabar followed
two-tier arrangement and single-tier arrangement was in Travancore-Cochin.
On first
November 1957 Kerala State came into existence and Kerala Panchayat Act
was passed in 1960. Kerala Municipal Corporation Act was passed in 1961.
The Kerala District Administration Act was passed in 1979, but it could
not be properly implemented. The District Councils started functioning in
1991-92 only. On 29 January 1991, the first-ever election to the District
Councils was held. The district councils were formally disbanded by the
amendment of the Kerala Panahayat Raj Act in 1994.
It is also
noteworthy that the Imperial Panchayat Laws had accumulated or centralized power
in the bureaucrats in the first instance and the progress of decentralization
was gradual, but steady.
01.INTRODUCTION
Original Part IX of
the Constitution was omitted by the Constitution (Seventh Amendment) Act,
1956, Sec. 29 and Schedule. Part VIII
of the Constitution had provided for the administration of Part C States and
Part IX for the administration of Part D territories. It was then proposed to
amend Part VIII to provide for the administration of Union territories and to
repeal Part IX. Then 73rd
amendment of the Constitution of India inserted Part IX Panchayats
into our Constitution. Part IX consists of Articles 243 and 243 A to 243
O. Various Articles of Part IX enables the Legislature of a State to make
provisions by enacting law on the concerned matters. Item 5 of the List II- State List of the
Seventh Schedule of the Constitution of India covers Panchayats as other local
authorities. It runs, “5. Local government,
that is to say, the constitution and powers of municipal corporations, improvement
trusts, districts boards, mining settlement authorities and other local authorities
for the purpose of local self-government or village administration.” Having
thus authorized to make laws, the Kerala Legislature has enacted the Kerala
Panchayat Raj Act, 1994 (Act 13 of 1994) repealing and replacing the already existing Kerala Panchayat Act, 1960 (32 of
1960). Kerala Panchayat Raj Act, 1994 came into
force on 23.11.1995, i.e. the date of its publication in Kerala Gazette
Extra No. 1175 dated 23.11.1995. Act 13 of 1994 was
amended by Acts 7 of 1995, 7 of 1996, 8 of 1998, 11 of 1999, 13 of 1999, 13 of
2000,12 of 2001,9 of 2003,3 of 2005,5 of 2005, 30 of 2005, 31 of 2005, 32 of
2005, 11 of 2007, 31 of 2009 etc.
02.DEFINITION OF PANCHAYAT SECRETARY
According
to Section 2 (xxvi) of the Kerala Panchayat Raj
Act, 1994, ‘Secretary’
means the Secretary of Village Panchayat or a block Panchayat or a District
Panchayat as the case may be. The powers of these three tiers of Panchayats are
different. The powers of Panchayats as such is listed in Eleventh Schedule of
the Constitution which is appended. Eleventh Schedule of the Constitution
was inserted by the 73rd Constitutional Amendment. However a
detailed split up of these three tiers are available in the third, fourth
and fifth schedules of the Kerala Panchayat Raj
Act, 1994. The third
schedule deals with the functions of Village Panchayats, fourth schedule with
the functions of Block Panchayats and fifth schedule with the functions of
District Panchayats. There are reproduced as appendices. Thus the powers
of a Panchayat Secretary practically varies according to the subjects he deals
with depending on the tier of the Panchayat, namely, Village, Block or
District.
03.APPOINTMENT OF PANCHAYAT SECRETARY
The
Procedure for the appointment of the Panchayat Secretaries are mentioned in
Section 179 of the Kerala Panchayat Raj
Act, 1994. It runs,
179. Appointment of Secretaries. - (1) For every panchayat there shall be appointed a [* * * *][iii]
secretary who shall be a Government Servant.
(2) The panchayat shall pay the
secretary such salary and allowances as may from time to time, be fixed by the
Government and shall also make such contributions towards his leave allowance,
pension and provident fund as may be required by the condition of his service
under the Government to be made by him or on his behalf.
(3) Subject to the provisions of this
Act the Government shall by rules made under the Kerala Public Services Act,
1968 (19 of 1968), regulate the classification, method of recruitment,
conditions of service, pay and allowances, and discipline and conduct of the
Secretaries appointed under sub-section (1) and such rules may also provide for
the constitution of separate service or cadre either for the whole state or for
each district including the Secretary along with such other Government Servants
as are considered necessary by the Government.
(4) The Government of any authority
authorised by Government may, at any time, transfer secretary from a panchayat
and shall do so if such transfer in recommended by a resolution of the
panchayat passed at a special meeting called for the purpose and supported by a
simple majority of votes of the allowed strength of the panchayat.
[Provided that before considering such
a resolution by the panchayat, the Secretary shall be given an opportunity to
make a representation before the Panchayat or the President and shall be heard
by them if necessary.][iv]
(5) A Panchayat shall be competent to
impose minor penalties on its secretary subject to such rules as may be made in
this behalf.
(6) An appeal against an order of the
panchayat imposing any minor penalty shall be to an authority entrusted by
Government in this behalf (hereinafter referred to as the authority).
(7) An appeal under sub-section (6)
shall be in such form and shall be presented within such time and in such
manner, as may be prescribed.
(8) On receipt of an appeal under
sub-section (6), the authority shall after giving the appellant an opportunity
of being heard, confirm, cancel or modify the order appealed against or pass
such other order as it deems fit.
(9) The Government may either suo
moto or on application call for the record of any order passed by the
authority under sub-section (8), and review any such order and pass such order
with respect there to as they think fit;
Provided that no application for review
shall be entertained after the expiration of thirty days from the date on which
the order sought to be reviewed was received by the applicant;
Provided further that the Government
shall not pass any order affecting any party unless such party has had an
opportunity of making a representation.
Provided also that no suo moto revision
shall be made by the Government more than one year after the date of the order
to be reviewed.
Explanation. – Minor Penalty
under this section and sections 180, 181 have the same meaning as given in the Kerala
Civil Services (classification, Control and Appeal) Rules, 1960.
[(10) Where disciplinary Proceedings
have to be initiated against the Secretary; the President shall have the power
to make an enquiry and where a major penalty is to be imposed, to initiate
further action under the rules applicable to the Secretary with the approval of
the panchayat and to report it to the Government or to the authority competent
to appoint the Secretary and the Government or such authority, immediately
after the receipt of such a report, shall take appropriate action and intimate
the final decision thereon to the President.
(11) The Government may, by a general
or special order appoint any officer of the Government transferred to the
service of the panchayat as ex-officio secretary of the Panchayat and the persons
so appointed shall have all the powers and functions of the secretary on the
subjects dealt with by them.][v]
As per Section 180 (1) the officers and employees
of the Panchayat, other than contingent employees shall be Government Servants.
Section 180 (2) provides that the control of the officers
of the Panchayat shall be with the Panchayat. Thus it is clear that
the Panchayat Secretary, in spite of being a Government Servant is subordinate
to and under control of the Committee of the Panchayat in which he works.
As per Section 183, the Government, or any authority, authorised by
Government may, by general or special order, authorise any officer working in
the Panchayat to exercise all or any of the functions of the Secretary in his
absence. As per Section 184,
the Secretary, may with the permission of the President, delegate by order in
writing any of his functions to any officer of the Panchayat, subject, to such
restrictions and control, as he may, specify. The persons in both these case
who gets the powers of the Panchayat Secretary shall be deemed to be the Panchayat
Secretary for all purposes.
Kerala
High Court has upheld the power of the Government
to transfer Secretary from one Panchayat to another in Poruthissery
Grama Pachayat v. Director of Panchayats[vi].
The Honourable High Court observes, “Section 179(4) makes it clear that the
Government has power to transfer Secretary from one Panchayat to another. There
is no fetter on that power. Second part of the section makes it clear that it
is obligatory to the Government to transfer a Secretary, if the Panchayat
requests for that. That does not enable a Panchayat to pass a resolution that a
particular Secretary shall be posted to that Panchayat and a particular
Secretary shall be retained to that Panchayat. That is why the second part of
the section makes it clear that "if such transfer is recommended by a
resolution of the Panchayat". So, the power of the Panchayat is only to
request the Government to take away the services of an unwanted Secretary and
it cannot seek retention of its blue eyed boy as its Secretary.”
In
Parameswaran v. Director of Panchayat[vii],
the Honourable Kerala high Court has held that a meeting held under Rule 6 can
consider a resolution contemplated in Section 179 (4) to transfer the
Secretary.
In
Leelamma v. Perumannu Grama Panchayat[viii]
Kerala High Court has also held that when the provision mandates the exercise
of power to transfer the Secretary in a particular manner, any other mode, also
by violating principles of natural justice would be illegal.
04.POWERS OF PANCHAYAT SECRETARY
It should be borne in mind that
power, functions, duty, and responsibility can only go hand in hand. It is
futile to give a person powers without assigning him any functions, duties, or
responsibilities. Hence the aspects of power, functions, duty, and
responsibility are dealt with simultaneously.
01. Powers of Panchayat Secretary as per Sn. 182 of Act 13 of 1994
Kerala Panchayat Raj
Act, 1994, however, does not make the above between Village Panchayat
Secretaries, Block Panchayat Secretaries and District Panchayat Secretaries and
enumerates the powers and functions of Panchayat Secretary as one under Section182. It runs as follows.
“182.
[Powers and functions of the Secretary. - Subject to the provisions of this Act and the rules
grade there under, Secretary the as executive officer of the panchayat shall,
(i)
Attend the meetings of the Panchayat and of the Standing Committee and may take
part in the discussions purely in an advisory capacity, but shall have no right
to move any resolution or to vote:
[Provided
that the Secretary shall record his views on any matter that may come up for
the consideration of the panchayat and each item of the agenda shall be placed
before the Panchayat with the specific remarks of the Secretary:
Provided
further that if the Secretary considers that any resolution passed by the
panchayat shall be referred to the Government under clause (iii), he shall
record such remarks in writing][ix]
(ii)
attend any meeting of a committee of the Panchayat if required to do so by the
person presiding thereon;
(iii)
carry in the effect the resolutions of the Panchayat:
[Provided
that where the Secretary is of opinion that any resolution passed by the
Panchayat has not been legally passed is in excess of the powers conferred by
this Act or any other Act or is likely, to endanger human life, health or
public safety, if implemented, he shall request in writing in the panchayat, to
review the resolution and express his views at the time of its review by the
panchayat and if the panchayat upholds its previous decision, the matter shall
be referred to the Government after intimation to the President and if no
decision of the Government is received within fifteen days, the said resolution
shall be implemented and information there of shall be given to the
Government;][x]
(iv)
control the officers and employees working under the Panchayat, subject to the
general superintendence and the control of the President;
(v)
discharge all the duties and exercise all the powers specifically imposed or
conferred on the Secretary by or under this Act.
[(vi)
meet the expenses delegated by the President;
(vii)
give amounts either by cheque or cash for all kinds of expenditure authorised
by the Panchayat;
(viii)
be responsible for the safe custody of the Panchayat fund;
(ix)
maintain and keep the accounts of receipts and expenditure of the Panchayat;
and
(x)
Keep the record of the meeting and proceedings of the Panchayat; and
(xi)
have power to initiate disciplinary action against the employees of the
Panchayat referred to in section 180][xi]
[(xii)
place before the standing committee for finance the monthly accounts of the
panchayat before the tenth of the succeeding month or at the first meeting of
the succeeding month;
(xiii)
prepare the annual accounts and B.C.B. Statement of the preceding financial
year and place before the panchayat before the thirtieth or June of the
succeeding financial year;
(xiv)
furnish the returns, accounts statements and other details when called for by
the Government or any audit authority;
(xv)
inspect or cause to be inspected the accounts of the institutions under the
control of the panchayat;
(xvi)
keep the records of the Panchayat, the Standing Committees, the Executive
Committees, such other Committees and the Grama Sabhas;
(xvii)
Co-ordinate the preparation of the annual plans and five year plans within the
time specified by the Government so as to enable the District Planning Committee
to approve the same;
(xviii)
disburse the plan funds to the officers concerned and to render utilization
certificate to the Government as ordered by it.][xii]
In
Reghuvara Panicker vs Maranallur
Grama Panchayat[xiii], Honourable High
Court has held that if it is panchayat committee and not the secretary who has
to decide an issue, secretary is duty bound to bring issue to the notice of
panchayat and get resolution of issue at earliest.
In Antony v. Chellanam Grama Panchayat[xiv],
Honourable High Court held that in a case where originally panchayat had passed
resolution to cancel building permit and when the secretary requested to review
the earlier decision under Section 182 (iii), and if panchayat refused to
review earlier decision and affirmed it, challenge against original decision
independently is maintainable.
02. Powers of Panchayat Secretary to initiate action against disqualified members of Panchayats
A
candidate intending to contest for election to the committee of a Panchayat may
be disqualified under Sections 29 to 34 of the Kerala Panchayat Raj Act, 1994. Section 35 and 35A provides for the subsequent
disqualification and cessation of membership of an elected member of a
Panchayat Committee. Vide
Section 36 of the Kerala Panchayat Raj
Act, 1994, whenever
a question arises as to whether a member has become disqualified under section
30 or section 35 excluding clause (n) thereof after having been elected as a
member, any member of the Panchayat concerned or any other person entitled to
vote at the election in which the member was elected, may file a petition
before the State Election Commission, for decision. However as per amendment by
Act 13 of 1999, a proviso is added to the effect that the Secretary or the
Officer authorised by the Government in this behalf may refer such a question
to the State Election Commission for decisions.
03. Power of Panchayat Secretary to initiate restoration of membership
As per Section 37(1), where a person ceases to be a member of panchayat at any level under
section 31 or clause (a) of section 35, he shall be restored to office for such
portion of the period for which he was elected as may remain unexpired at the
date of such restoration, if and when the sentence is annulled on appeal or
revision or the disqualification caused by the sentence is removed; and any
person elected to fill the vacancy in the interim shall, on such restoration,
vacate office.
As per Section 37 (2), where a
person ceases to be member under clause (k) of section 35 the Secretary of the
Panchayat concerned shall at once intimate the fact in writing to such person
and report the same at the next meeting of the panchayat. If such person
applies for restoration to the panchayat on or before the date of the next
meeting or within fifteen days of the receipt by him of such intimation, the
panchayat may at the meeting next after the receipt of such application restore
him to his office of member, provided that a member shall not be restored more
than twice during his term of office.
The Honourable High Court had held in Mary
John v. Vallathol Nagar Grama Panchayat[xv] that Section
disqualification under Section 35(k) of the Kerala
Panchayat Raj Act, 1994 is
violative of Article 14 of the Constitution of India. Kerala High Court held, “S.162(4)
provides for an automatic inclusion of woman member to the Standing Committee.
The meetings of the Panchayat shall be held at such intervals as may be
prescribed under S.I61 of the act. Therefore, it is quite possible that the
meetings of the Panchayat as well as the various committee meetings can be held
simultaneously or even on a days with close proximity. The preamble to the Act
states that the new Act is enshrined to establish a three-tier system for
securing a greater measure of participation. A member who has been elected for
a term of five years can be disqualified for absenting 15 days automatically.
There is possibility of holding three meetings within 14 days as in this case.
Unlike in a case of the legislature where they decide about the vacancy here
the provision operates automatically and the Secretary informs the cessation of
membership. This provides no opportunity to the member before the deprivation
to put forth his justification for his absence or non-absence. The only course
is to go for an enquiry before the Election Commission under S,36(l) or
restoration under S.37(l) of the Act. This, in my view, unreasonably and
arbitrarily restricts the right of a member of a Panchayat.”
However, a subsequent bench of the High Court upheld the
procedure of that Section in Rajan v. Kerala
State Election Commission[xvi]
by stating, “The only adjudication that
is contemplated is when that member or any other member of the Panchayat or a
voter in the Panchayat, raises a dispute regarding that question before the
State Election Commission by invoking S.36 of the Act. We are therefore, not
able to accept the contention of learned counsel for the petitioner that the
Secretary of the Panchayat could not have issued a notice to him straightaway
under S.37(2) of the Act and before giving him an opportunity to show cause or
to show that he could not be disqualified by virtue of the proviso to S,35(k)
of the Act. The member has to seek such an adjudication before the State
Election Commission after the receipt of the notice under S.37(2) of the Act.
There was no adjudicatory process involved, when a Secretary issues a notice in
terms of S.37(2) of the Act.”
04. Power of Panchayat Secretary to receive resignation letters
As per Section 155
(1) of the Kerala Panchayat Raj
Act, 1994 as amended by Act 13 of 1999, the President or Vice President or any other member of
a Panchayat may resign his office by tendering his resignation in the
prescribed form to the Secretary and the resignation shall take effect from the
date on which it is received by the Secretary and the Secretary shall
immediately report the fact to the Panchayat and the State Election Commission.
As per Section 155
(2) of the Kerala Panchayat Raj
Act, 1994, the President, the Vice-President or
the member who resigns shall either in person or, if such resignation letter
has been attested by a Gazetted Officer, by registered post, tender or send as
the case may be, his resignation to the Secretary and the Secretary shall give
acknowledgement for the receipt of the same.
As per Section 162
(7) of the Kerala Panchayat Raj
Act, 1994 as amended by Act 13 of 1999, a
member other than an ex-officio member of a standing committee and the chairman
of a standing committee other than the standing committee for finance may
resign the membership or chairmanship of a standing committee as the case may
be by tendering resignation to the Secretary in the prescribed form and the
resignation shall take effect from the date on which it was received by the
Secretary and the Secretary shall inform the fact immediately to the President
and the panchayat.
As per Section 162
(8) of the Kerala Panchayat Raj
Act, 1994 as amended by Act 13 of 1999, the
person who resigns the membership of chairmanship of the standing committee
shall give in person or send through registered post his resignation where such
resignation letter is attested by a gazetted officer, as the case may be his
resignation to the Secretary and the Secretary shall acknowledge receipt of the
same.
The Honourable High Court has held in Unni v. Perinjanam Grama Panchayat[xvii] that resignation by
President, Vice-President, or members of a Panchayat takes effect from receipt
of resignation by Secretary.
05. Power of Panchayat Secretary to maintain minutes of meetings
As per Section 161
(8) of the Kerala Panchayat Raj
Act, 1994 as amended by Act 13 of 1999, any member, who was present at a meeting of the
panchayat shall have the right to give the secretary a note of dissent
regarding a resolution passed by the panchayat if has voted against such
resolution, within forty-eight hours of the conclusion of the meeting. As per
Section 161 (9), the secretary shall forward copy of the minutes of every
meeting of the Panchayat and the copy of the note of dissent if any, received
under sub-section (8) to the Government or to the officer authorised by
Government in this behalf, within ten days after the date of the meeting.
06. Power of Panchayat Secretary to grant leave to employees
As per Section 180
(8) of the Kerala Panchayat Raj
Act, 1994, subject to such rules as may be made
the power to grant leave to the officers and employees of the Panchayat shall
vest in the Secretary.
07. Power of Panchayat Secretary to make official correspondence
Section
185 of the Kerala Panchayat Raj
Act, 1994 as amended by Act 13 of 1999, prescribes the Channel of Correspondence of a
Panchayat. According to Section 185 (2) all official correspondence from the
Secretary to the Government and to any other authority not below the rank of
district level authority of the Government and vice versa, shall be through the
President.
Provided
that, all correspondence to the Government or to other authorities shall have
the approval of the President or be signed by himself except in cases where the
President has empowered the Secretary, by general or special order, in this
behalf;
Provided
further that, the Secretary may have direct correspondence with the Government
in respect of a resolution, passed by the Panchayat in contravention of any of
the provisions of this Act or the rules made there under and for furnishing any
information, statement or record, called for by the Government.
Section
185 (3) insists that all correspondence by the Secretary through the President
addressing the Government or as the case may be the other authority and vice
versa shall be delivered by the Presidents without delay.
08. Power of Panchayat Secretary to make reference to cancel or suspend resolutions
As per Section 191 (1), as amended by Act 13 of 1999,
Government may either suo moto or, on a reference by President, Secretary or a
member, or on a petition received from a citizen, cancel or very a resolution
passed or a decision taken by the panchayat if in their opinion such decision
or resolution –
(a)
is not legally passed or taken; or
(b)
is in excess of the powers conferred by this Act or any other law or its abuse;
or
(c)
is likely to endanger human life, health public safety, communal harmony or may
lead to riot or quarrel; or
(d)
is in violation of the directions or provisions of grant issued by Government
in the matter of implementing the plans, schemes or programmes.
09. Duty of Panchayat Secretary to prepare draft administration report
As per Section 192 (2), as amended by Act 13 of 1999,
the draft of the administration report in respect of the institutions and
offices under the administrative control of the panchayat shall be prepared by
the heads of such institutions and offices and shall be furnished to the
Secretary of the panchayat and he shall prepare the draft of the administration
report of that panchayat in consultation with the President of the panchayat
and shall be submitted before the panchayat for its approval.
10. Power of Panchayat Secretary to demand profession tax
As per Section 205 of the Kerala Panchayat Raj Act, 1994, every
head of office or employer in relation to an office or undertaking or
institution where persons are employed for salaries or wages shall as soon as
may be, on receipt of the bill or notice of demand of profession tax, serve
such bill or notice on the employees and return the duplicate of such bill or notice
to the secretary of the village panchayat concerned.
11. Power of Panchayat Secretary to issue requisition on owner, occupier, etc.
As per Section 205B of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999,
the Secretary may, by notice, require the owner or the occupier of any building
or land and every administrator or manager of a hotel, boarding or lodging
house, club or residential chambers, to furnish within a specified time a list
in writing containing the names of all persons occupying such building, land,
hotel, boarding or lodging house, club or chambers and specifying the
profession, art or employment of every such person and the rent, if any paid by
them and the period of such occupation.
12. Power of Panchayat Secretary to issue requisition on employers
As per Section 205C of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, the
Secretary may by notice require any employer or head of office or the
administrator or the manager of any public or Private office, hotel, boarding
or lodging house, club, firm or a company: -
(a)
to furnish, within specified time a list in writing containing the names of the
employer and all persons who were employed or working in such office, hotel,
boarding or lodging house, club, firm or company as officers, employees,
interpreters, agents, suppliers or contractors along with a statement of the
salary or income of such persons employed and
(b)
to furnish particulars in regard to any company of which such employer or head administrator
or manager, as the case may be, is an agent.
13. Power of Panchayat Secretary for recovery of profession tax
As per Section 205D to 205K of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, every
head of office, employer, manager, proprietor and any person in the
administrative control of any office company, firm, undertaking, establishment
or any institution, where persons are employed or engaged for salaries or wages,
shall be bound to recover from any such person liable to profession tax, the profession
tax due at the rate fixed by the village panchayat and pay over to the village panchayat
as hereinafter provided.
The
Secretary shall during the month of April every year, by notice, require every
head of office or person bound to recover profession tax under section 205D to
furnish the names and addresses of the offices or institutions under his
control within such time as may be specified in the notice.
Every
head of office shall furnish to the Secretary the information required by him under
sub-section (1) within such time as may be specified and he shall also furnish
the name and designation of the head of office and shall intimate the secretary
whenever there is a change to the head of office.
The
Secretary shall immediately on receipt of the information furnished to him
under sub section (1) register the name of offices or institutions in a
register maintained for the purpose.
The
Secretary shall, during the month of May and November in every half year, by
notice require every head of office or employer to assess all employees in his
institution, who are liable to pay profession tax and every self drawing
officer to remit the Profession tax due in accordance with the schedule to the
said notice.
The
Secretary shall, on receipt of the payment, issue an official receipt in the
name of the head of office for the amount remitted.
Every
self-drawing officer shall, before the end of August and February every year,
remit or cause to be remitted the profession tax due from him in respect of
such half-year in accordance with the schedule of tax in force along with a
statement showing the details etc. of half yearly income. Soon after the
receipt of payment under sub section (1) the Secretary shall issue official
receipt thereof.
The
Secretary shall maintain a ward-wise Demand Register by providing independent
pages for every institution specified in subsection (2) of section 205E and in
such case the head of office and the self-drawing officers if any, shall be the
assesses and the remittance shall be entered against their names. One demand
register for this purpose may be used for one or more years.
Where,
at any time, it appears to the Secretary that any head of office or employer or
self-drawing officer who are bound to furnish the details and remit the tax due
as specified under sections 205 E, 205F and 205H has failed to furnish such
details or to remit the tax due within the specified time, the secretary shall immediately
thereafter take penal action against such defaulter or defaulters.
14. Statutory functions of Panchayat Secretary
As per Section 185B of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, “Where any officer of the panchayat
is conferred with any statutory powers and functions to be exercised
independently and solely, the panchayat, the panchayat President, Chairman of
the Standing Committee or any member shall not interfere or influence in the
exercise of such powers and functions by that officer.” Thus while Panchayat
Secretary exercises any of his statutory powers and functions he is free from
the interference or influence in the exercise of such powers and functions by
the panchayat, the panchayat President, Chairman of the Standing Committee or
any member of the Panchayat Committee. This principle is upheld by the Kerala
High Court in R.Padmanabhan vs
Cherupuzha Grama Panchayat[xviii] on 19 December.
However if he receives a communication, the perusal of which is beyond his
powers and jurisdiction, it is his duty to bring the matter to the notice of
the appropriate authority. In R.Reghuvara Panicker vs The Secretary[xix] on 18 August,
Kerala High Court has observed that, “when
a citizen makes a complaint to the secretary, it is the bounden duty of the
secretary to place it before the panchayat, if the jurisdiction is exclusively
with the panchayat committee. The secretary is a public servant. He cannot sleep
over his duties and responsibilities.”
15. Duty of Panchayat Secretary to provide records etc for inspection
As per Section 188(2) of the Kerala Panchayat Raj Act, 1994, “Every Panchayat,
President, Secretary and Other Officer shall be bound to give facilities for
exercising duties under Section 188 sub-section (1)” for the purpose of
inspection.
16. Power of Panchayat Secretary to recover sums certified by auditors
As per Section 215(14) of the Kerala Panchayat Raj Act, 1994, “ Every sum
certified by the auditors to be due from a person under this Act shall be paid
by such person to the Secretary of the Panchayat concerned within thirty days
after the date of service on him of the decision of the auditors unless within
that time such person has made an application to the court against the
decision; and such sum, if not so paid, or such sum as the court declares to be
due shall be recoverable as if it were an arrear of land revenue.”
17. Power of Panchayat Secretary to inspect premises for sanitary purposes
As per Section 219R of the Kerala Panchayat Raj Act, 1994, the
secretary or any officer authorised by him may at any time inspect any premises
for the purpose of ascertaining the compliance of the provisions of Kerala Panchayat Raj Act, 1994.
18. Powers of Panchayat Secretary in issuing building permits etc.
As per Section 235C of the Kerala Panchayat Raj Act, 1994, village panchayat has the power to regulate further
construction of certain classes of buildings
in particular streets or localities. According to 235C(4) of the Act, the
Secretary shall publish any declaration so confirmed which shall take effect
from the date of its publication.
As per Section 235 F (1), where any
person intends to construct or re-construct a building other than a hut within
a village panchayat area he shall send to the Secretary. -
(a) an application in writing together
with a site plan of the land for the approval of the site and
(b) and application in writing together
with a ground plan, elevation and sections of the building and specification of
the work for permission to execute the work.
Explanation. - Building in this
sub-section shall include a wall on the boundary of the public street or any
height abutting any public street.
As per 235 F (2) every document
furnished under 235F (1) shall contain such particulars and be prepared in such
manner as may be required under the rules or bye-laws made under this Act.
As per 235 G, the Secretary shall not
grant permission to construct or reconstruct a building unless and until he has
approved the site on an application made under section 235 F.
As per 235 H, the construction or
re-construction of a building shall not be commenced unless and until the
Secretary has granted permission for the execution of the work.
As per 235 I, within thirty days after
the receipt of an application made under section 235 F for approval of a site
or of any information, or further information required under any rules or
byelaws, the Secretary shall by an order in writing either approve or refuse to
approve the site and shall intimate the fact to the applicant.
As per 235 J, within thirty days after
the date of receipt of an application made under section 235F for permission to
execute any work or of any information or of document or further information or
documents required under any rules or bye-laws, made under this Act, the
Secretary shall by an order in writing either grant or refuse to grant such permission
on any of the grounds mentioned in section 235L and shall intimate the fact to the
applicant in writing:
Provided that the said period of thirty
days shall not commence until the site has been approved under section 235 I.
As per 235 K (1), where, within the
period specified in section 235 I or 235 J, as the case may be, the Secretary
has neither given nor refused approval of a building site, or permission to
execute any work, as the case may be, the Village Panchayat shall be bound on
the written request of the applicant, to determine whether such approval or
permission should be given or not.
As per 235 K (2), whether the village
panchayat does not, with in one month from the date of receipt of such written
request, determine whether such approval or permission should be given or not,
such approval or permission shall be deemed to have been given, and the
applicant may proceed to execute the work. But it shall not be so as to
contravene any of the provision of this Act or any rules or bye-laws made
thereunder.
As per 235 L (1) (iv)
the grounds on which approval of site or permission to construct or
re-construct a building shall be refused if any information or document
required by the Secretary under rules or bye-laws made under this Act has not
been duly furnished.
As per 235 N (1)
Where it comes to the notice of the Secretary that, a work –
(a) is not in
accordance with the plans or specifications approved, or
(b) is in contravention of any of the
provisions of this Act or any rule, bye-law, order of declaration made there
under, he may, by notice, require the person for whom such work is done, -
(i) to make such alteration as may be
specified in the said notice to bring the work in conformity with the plans or
specification approved or the provisions so contravened; or
(ii) to show cause why such alteration
should not be made, within such period as may be specified in the notice:
Provided that any construction made in
deviation from such approved plan or specifications may not be required to be
altered unless it contravenes any specifications or provisions mentioned in this
Act or building rules made thereunder.
As per 235 N (2) where such person does
not show cause as aforesaid, he shall be bound to make the alterations
specified in such notice.
As per 235 N (3) Where such person
shows sufficient cause as aforesaid, the Secretary shall, by order confirm,
modify or cancel the notice issued under Section 235N (1).
As per 235 O, notwithstanding anything
contained in any of the foregoing provisions in this chapter, the Secretary
may, at any time, stop the construction or reconstruction of any building if, in
his opinion, the work in progress is dangerous to human life.
As per 235 P (1) every person who
proposes to construct or re-construct a hut in any land lying adjacent to the
roads referred to in clause (b) of section 220, with in a Village Panchayat
area shall send to the Secretary, -
(a) a site plan of the land, and
(b) an application for permission to
execute the work.
As per 235 R, the Secretary shall within
fourteen days after the date of receipt of an application under section 235 P,
or any information or plan or further information or fresh plan required under
the rules or bye-laws made under this Act, by an order in writing either grant
the permission or refuse the permission on any of the grounds mentioned in section
235T.
As per 235 S (1), where with in the period
specified in section 235 R the Secretary has neither granted nor refused to
grant permission to construct or re-construct a hut, the Village Panchayat shall
be bound on the written request of the applicant to determine whether such permission
should be granted or not.
As per 235 S (2), where the Village
Panchayat does not, within thirty days from the date of receipt of such written
request, determine whether such permission should be granted or not, such permission
shall be deemed to have been granted and the applicant may proceed to execute
the work but not so as to contravene any of the provisions of this Act or any
rules or bye laws made there under.
As per 235 T (iii), one of the grounds
on which permission to construct or re-construct a hut may be refused if any
information or plan required by the Secretary under the rules or bye-laws made
under this Act has not been duly furnished.
As per 235 W (1)(i)(a), where the Secretary
is satisfied that the construction, or reconstruction or alteration of any
building has been commenced without obtaining the permission of the Secretary
or in contravention of the decision of the village panchayat, he may make a provisional
order requiring the owner or the persons for whom the work is done, to demolish
the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully
executed or to make such alteration as may be necessary to bring the work in conformity
with the provisions of this Act, bye-laws, rules, direction, order or
requisition as aforesaid, or with the plans and specifications on which such
permission or decision was based, and may also direct that until the said order
is complied with, the owner or such person shall refrain from proceeding with
the work.
Provided
that the Secretary may, on realisation of a compounding fee as may be fixed by government,
regularise any construction, re-construction, or alteration of the building, commenced,
carried on or completed, without getting a plan approved by the Secretary or in
deviation of the plan approved by him, if such construction or alteration of
the building does not contravene any of the criteria or specifications
mentioned in the Act or the rules made there under.
As per 235 W (2), the Secretary shall serve
a copy of the provisional order made under Section 235 W (1) on the owner or
the persons for whom such work is done together with a notice requiring him to
show cause with in a reasonable time, to be specified in such notice, why the
order should not be confirmed.
As per 235 W (3) where the owner or the person
for whom the work is done fails to show cause to the satisfaction of the
Secretary, the Secretary may confirm the order or modify the order to such an
extent as he may think fit to make and such order shall then be binding on the owner
or the person for whom the work is done and on the failure to comply with the order,
the Secretary may himself cause the building or part thereof, demolished, as
the case may be, and expenses thereof shall be recoverable from the owner or
such person.
As per 235W (4), prosecution proceedings may be
initiated against the owner or the person for whom the work is done. As per 235W (5)
where the Government is satisfied that the construction, re-construction or
alteration of any building has been carried out in violation of any of the
provisions of this Act or any rule made there under or any direction lawfully
given by the Government or Secretary, the Government may direct the Secretary
of the Village Panchayat to cause the demolition of such construction,
re-construction or alteration and if such direction is not complied within the
time limit specified in such direction, the Government may arrange its
demolition and the cost there of shall be recovered from the Village Panchayat.
As per 235 X (1),
where the erection of any building or the execution of any work has been
commenced or is being carried on (but has not been completed) without obtaining
the permission of the Secretary or in contravention of any decision of the
Village Panchayat or any of the provisions of this Act or any rule or byelaw
made there under or any lawful direction or requisition given or made under
this Act, or the rules or byelaws, the Secretary may without prejudice to any
other action that may be taken under this Act, by order require the person at
whose instance the building or the work
has been commenced or is being carried on, to stop the same forthwith.
As per 235 X (2), where such order is
not complied with, the Secretary may require any Police Officer to remove such
person and all his assistants and workmen from the premises within the specified
time on such application and the police officer will have to act accordingly.
As per 235 X (3), after complying with
the requisition under sub-section (2), the secretary may, if he thinks fit,
require in writing the assistance of a Police Officer or dispute by a written order
an officer or employee of the Village Panchayat to watch the premises in order
to ensure that the construction of the building or the execution of the work is
not continuing and the cost thereof shall be paid by the person at whose
instance such construction or execution was being continued or to whom notice
under sub-section (1) was given, and shall be recoverable from such persons as
arrears of property tax under this Act.
As per 235 Z (1) Where the construction,
reconstruction or alteration of any building,
(a)
is commenced without the permission of the Secretary; or
……………………………….
(e)
about which any person to whom a direction, given by the Secretary under
section 235 W, fails to obey such direction; the owner of the building or such
person, as the case may be, shall, on conviction be liable to a fine which may
extend to rupees ten thousand in the case of a building and to rupees one
thousand in the case of a hut and to a further fine of rupees one thousand in
the case of a building and rupees ten in the case of a hut for each day of
continued offence:
Provided
that the construction or reconstruction of the building may be regularised
under section 235 W and if so regularised by the secretary, no person shall be
made liable for conviction under this sub-section.
19. Powers of Panchayat Secretary in prohibition of advertisement
As per Section 209A (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, no advertisement shall after taking a
decision by the Village Panchayat on the levy of tax under section 209, be
erected exhibited, fixed or retained upon or over any land, building, wall, hoarding
or structure within the village panchayat area or shall be displayed in any
manner whatsoever in any place in that village panchayat area without the
written permission of the Secretary.
As per 209A(2), the Secretary shall not grant
such permission if. -
(i)
the advertisement contravenes any bye-law made by the Village Panchayat under
section 256; or
(ii)
the tax, if any, due in respect of the advertisement has not been paid.
Section 209A (3), states that “Subject to the
provisions of subsection (2), in the case of an advertisement liable to advertisement
tax, the Secretary shall grant permission for the period to which the payment
of tax relates and no fee shall be charged in respect of such permission:
Provided
that the provisions of this section shall not apply to any advertisement
erected, exhibited, fixed or retained on the premises of a railway
administration relating to the business of the railway administration.”
As per Section 209 C (1), where any advertisement
is erected, exhibited, fixed or retained contrary to the provisions of section
209 or section 209 A or after the written permission for the erection,
exhibition, fixation or retention thereof for any period shall have expired or
become void, the Secretary may, by notice in writing, require the owner or
occupier of the land, building, wall hoarding or structure upon or over which
the same is erected, exhibited, fixed or retained to take down or remove such
advertisement, or may enter any building, land or property and have the advertisement
removed.
As per Section 209 C (2), any person exhibiting or
responsible for exhibiting any advertisement otherwise than, in accordance with
the provisions of this Act shall be liable to pay, in addition to the penalty
prescribed in VI and VII Schedule, the charges for the removal of the unauthorised
advertisement, to the Village Panchayat.
Section
209 D provides that “the Secretary may farm out the collection of any tax on
advertisement leviable under section 209 for any period not exceeding one year
at a time on such terms and conditions as may be provided for by bye-laws made under
section 256.”
20. Powers of Panchayat Secretary in recovery of arrears of tax, cess, etc.
As per Section 210 of the Kerala Panchayat Raj Act, 1994, any arrear of cess, rate,
surcharge or tax imposed or fees levied under this Act shall be recoverable as
an arrear of public revenue under the law relating to the recovery of arrears
of public revenue for the time being in force:
Provided that the Secretary of a
Village Panchayat may directly recover by distraint, under his warrant, and
sale of movable properties of the defaulter subject to such rules as may be
prescribed:
Provided further that, if for any
reason the distraint or a sufficient distraint of a defaulter’s property is
impracticable, the Secretary may prosecute the defaulter before a Magistrate.
21. Powers of Panchayat Secretary to require village officer to collect taxes and fees due to panchayats
As per Section 211 of the Kerala Panchayat Raj Act, 1994, subject to such rules as may
be prescribed, the Secretary shall have power to require the village officer
having jurisdictions over Village Panchayat area or any part thereof to collect
any tax, cess, surcharge or fee due to the Panchayat on such conditions as the Government
may by general or special order determine.
22. Powers of Panchayat Secretary in the Preparation and sanction of Budget
As per Section 214 (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, subject to such directions as may be issued
by Government from time to time and rules as may be prescribed, the budget proposals
containing detailed estimate of income and expenditure expected for the next year
including the expenditure on the development plans prepared and sanctioned
under section 175 shall be prepared by the respective standing committee
considering the estimates and proposals submitted by Secretary and the officers
dealing with the respective subjects, before the 15th January every year and
the same shall be submitted to the standing committee for finance.
23. Powers of Panchayat Secretary in removal of rubbish, solid, wastes, filth, etc.
As per Section 219 A (2) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, the Secretary shall make adequate provision for preventing
the depots, place, receptacles, dust bins, vehicles and vessels referred to in Section
219 A (1) from becoming sources of nuisance.
As per Section 219 B (2), such receptacles shall, at all times, be kept in good
condition and shall be provided in such number and at such places as the
secretary may, from time to time by written notice direct.
As per Section 219 B (3), the Secretary may, by public notice direct the
owners or occupiers or all premises to segregate the waste generated from such
premises for easy management and disposal of such waste by the employees or
contractors engaged by the village panchayat.
Section 219 B (4) provides that,
“It shall be incumbent on the owners and occupiers of all premises to cause all
domestic waste, trade waste, Institutional waste, dusts, ashes, refuse, rubbish
etc., to be collected from their respective premises and to be deposited in the
public receptacle depot or place provided for the temporary deposit of wastes
at such time as the secretary may, by public notice from time to time, specify
or hand over the waste to the persons engaged or identified by the village
panchayat for the purpose.”
As per Section 219 C, the secretary may enter into
contract with the owner or occupier of any premises to remove rubbish or filth
from such premises on such terms and conditions as is deemed expedient to the secretary
and on payment of fees at such rates as the village panchayat determines from time
to time.
As per Section 219 D (1), the secretary may, with
the sanction of the village panchayat introduce in the village panchayat area
or part there of house to house collection of rubbish and other offensive
matter for which he may publish from time to time an order specifying the hours
within which the occupier of any house or premises or land may place, rubbish
or offensive matter adjacent to his house, premises or land as may be specified
by the secretary, in a proper receptacle provided by the village panchayat or
in a receptacle of the size and type as may be specified by the secretary in
the order that such rubbish or offensive matter may be removed by the employees
of the village panchayat or by the contractors who may be engaged by the village
panchayat for this purpose.
Section 219 B H (1) provides
that, “the Secretary may if he thinks fit by notice in writing of any premises
used as
(a) a factory, workshop or a place for
carrying or any manufacturing process, or
(b) a market or trade premises, or
(c) a slaughter houses, or
(d) a hotel, eating house, or restaurant,
or
(e) a hospital or a nursing home, or
(f) a warehouse or godown, or
(g) a place to public resorts, where
rubbish offensive matter, filth, trade refuse, special wastes, hazardous wastes
or excrementitious and polluted matters are accumulated in large quantities, to
collect such matters accumulated thereon and to remove the same to a depot or
place provided or directed by the secretary at such time and in such manner and
by such routes as may be specified in the notice.
Provided that, where such solid wastes
cannot be removed to such place or depot as required by the secretary on health
reasons, the secretary may direct the owner a occupier of such, premises to
make his own arrangements for disposal of such wastes and for noncompliance of
such direction, he may on conviction, be punished with a fine which may extend
to rupees ten thousand and a further fine at the rate of rupees one hundred for
each day during which the offence is continued.
As per Section 219 I (1), no person shall deposit or cause to be deposited any
building rubbish on any streets or on any public or private land without the
previous permission of village panchayat:
Provided that, no
permission shall be granted without paying the fee as determined by the village
panchayat:
Provided further that, the secretary
may, for reasons to be recorded in writing refuse to give such permission.
As per Section 219 J, no owner or occupier of any
premises shall keep or allow to be kept for more than twenty four hours any
filth on such premises or in any building or on the roof thereof or in any
outhouse or any place appurtenant thereto, or fail to comply with any
requisition of the secretary as to the construction, repair paving or clearing
of any latrine belonging to premises.
24. Powers of Panchayat Secretary to inspect animal slaughter houses etc.
As per Section
231(3) of the Kerala Panchayat Raj Act, 1994,
the President, Secretary or any officer authorised by the Government or by the village
panchayat may without notice enter any place where meat or any other article of
food is stored for sale and inspect such article.
25. Powers of Panchayat Secretary in issuing licenses
As per Section 232 (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, the village panchayat may notify that no place in the
Panchayat area shall be used for any of the purposes specified in the rules
made in this behalf being purposes which in the opinion of Government, are
likely to be offensive or dangerous to human life or health or property, without
a license issued by the Secretary and except in accordance with the conditions
specified in such licence:
Provided that no such notification
shall take effect until the expiry of thirty days from the date of its
publication.
While
upholding the statutory power of the Secretary to issue licences independently
of the Panchayat Committee, in Smt. Beena Bency vs Niranam Grama Panchayat[xx] on 29th day of October, Kerala High Court has observed
that Rule- 8 of the Kerala Local Self Government Institutions Rules, 1999
clearly provides an appeal even against a notice or order of the Secretary. The
rule is made consistent with the provisions contained in the Act and therefore,
an appeal clearly lies to the Tribunal against the notice or order of the
Secretary.
26. Powers of Panchayat Secretary in construction of factories and the installation of machinery
As per Section 233 (2) of the Kerala Panchayat Raj Act, 1994, an
application for permission for factories and installation of machinery etc shall be submitted to the village panchayat
addressed to the Secretary in such form and with such details as prescribed.
As per Section 233 (3) the secretary shall, as soon as may be after the receipt of the
application, enquire and report to the village panchayat as to whether the
establishment of the factory, workshop or workplace or other installation of
machinery or manufacturing plant for which permission is applied for is
objectionable by reason of density of population in the neighbourhood and the
possibility to cause nuisance or pollution and the village panchayat after
having considered the application and the reports of the secretary, and of such
other authorities as specified in sub-section (4) may as expeditiously as
possible, at any rate within sixty days, -
(a) grant the permission either
absolutely or subject to such conditions as it thinks fit to impose; or
(b) refuse the
permission for the reasons to be recorded.
In Travancore
Rubber and Tea Co. Ltd v. Peruvanthanam Grama Panchayat[xxi], High Court has held that
factory run without a licence is an offence under Section 233 which is
compoundable and since offence is a continuing offence under proviso to Section
245, Secretary is entitled to treat each year of violation as a separate
offence and demand compounding fee for all years during which factory was run
without licence.
27. Powers of Panchayat Secretary for abatement of nuisance caused by factory, workshop etc.
As per Section 233A (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, where any factory, workshop, workplace or machinery
causes, in the opinion of the village panchayat nuisance by reason of a
particular kind of fuel being employed or by reason or the noise or vibration
created, or effluent discharged or by reason of noxious odour, smoke or dust
omitted, the secretary may direct the person in charge of such factory,
workshop, workplace or machinery for the abatement of such nuisance within a reasonable
time to be specified for that purpose.
As per 233 A (3),
where there has been wilful default in carrying out a direction given under
subsection (1) or where in the existing circumstances the abatement of nuisance
is found impracticable, the secretary may prohibit the working of the factory
workshop, workplace or machinery till such time the person concerned takes
necessary steps to the satisfaction of the secretary for the abatement of the
nuisance.
28. Powers of Panchayat Secretary in numbering of buildings
As per Section 235 (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, the Secretary of the village panchayat may in any area,
where the Kerala Panchayat Raj Act, 1994, is applicable, affix a number of a
particular size and form on the side or outer door of any building or on any
place at the entrance to the compound.
As per Section 235(2), no person shall
without any legal authority, destroy, remove or wipe out any such number
affixed on any building in any such area.
As per Section 235 (3), when a number is affixed under sub-section (1) the owner of the building
is liable to keep it up and renumber in case it is removed or faded away and if
he defaults in doing so, the Secretary may, by notice, require him to put the
number again.
29. Powers of Panchayat Secretary in matters of buildings constructed unlawfully
As per Section 235 AA (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, where any person has unlawfully constructed or
re-constructed any building, such building shall, without prejudice to any
action that may be taken against that person, be liable to property tax from
the date of completion or occupation whichever is earlier, till the date of
demolition of that building.
As per 235 AA (2), nothing contained in
sub-section (1) shall preclude the Secretary from proceeding against a person
under section 235 W (demolition or alteration of building) and no one shall be
entitled to compensation or damages due to any action, taken by the Secretary
under this section.
30. Powers of Panchayat Secretary in issue of licences and permissions
As per Section 236(3) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, (3) save as provided, if orders on an application for any
such licence or permission are not communicated to the applicant within thirty
days or such longer period as may be prescribed in any class of cases after the
receipt of the application by the Secretary the application shall be deemed to
have been allowed for the period, if any for which it would have been
ordinarily allowed and subject to the law, rules and bye-laws and all conditions
ordinarily imposed.
As per 236 (5), if an act for which any such
licence or permission is necessary is done without such licence or permission
or in a manner inconsistent with the terms of the licence or permission
obtained, then –
(a)
The Secretary may, by notice require the person so doing such act to alter,
remove or as far as practicable restore to its original state, the whole, or
any part of any property, movable or immovable, public or private, affected
thereby, within a time to be specified in the notice; and 189[shall, so require
if directed by the Village Panchayat;
As per Section 236 (7) every order of the
Secretary granting or refusing a licence or permission shall be published on
the notice board of the village panchayat.
As per Section 236 (8), every order of the
Secretary refusing, suspending, cancelling or modifying a licence or permission
shall be in writing and shall state the grounds on which it proceeds.
As per Section 236 (9), any licence or permission
granted under this Act or any rule made under it may at any time be suspended
or revoked by the Secretary, if any of its restrictions limitations or conditions
is evaded or infringed by the grantee or if the grantee is convicted of a
breach of the provisions of the Act or of any rules made under it in any matter
to which such licence or permission relates or if the grantee has obtained the
same by misrepresentation or fraud.
As per Section 236 (10), it shall be the duty of
the Secretary to inspect places in respect of which a licence or permission is
required by or under this Act, and he may enter any such place between sunrise
and sunset and if he has reason to believe that anything is being done in any
place without a licence or permission where the same is required by or under
this Act, or otherwise than in conformity with the same, he may at any time by
day or night without notice enter such place for the purpose of satisfying
himself whether any provision of law or rules, any condition of a licence or
permission or any lawful direction or prohibition is contravened and no claim
shall lie against any person for any damage or inconvenience necessarily caused
by the exercise of powers under this sub-section by the secretary or any person
to whom he has lawfully delegated his powers or by any force necessary for effecting
an entrance under this sub-section.
The Honourable High Court of Kerala in Concrete
Aggregate Industries & Anr. v. Abdul Khader & Others[xxii] has observed while interpreting Section
234 of the Act that “cutting rock stone may involve breaking, sizing, crushing
etc., and in that process of manufacture it is likely that smell, fumes, dust
or noise which are offensive or dangerous to human life are likely to occur.
Therefore, item No. 101 overlaps the requirement of item 84 which generally is
in the nature of manufacturing articles.”
31. Powers of Panchayat Secretary in dealing with dangerous trees and pruning of hedges and trees
As per Section 238 (2) of the Kerala Panchayat Raj Act, 1994, the Secretary of a village panchayat
may without notice. -
(a)
trim or prune any hedge bordering on a public street so that it may not exceed such
height from the level of the adjoining roadways as may be provided for this purpose;
or
(b)
cut and trim any hedge or tree overhanging the said trees and obstructing it or
the view of traffic or causing damage to it; or
(c)
remove fallen trees on public roads and waterways which obstruct traffic.
However
the Honourable High Court of Kerala has observed in Thankamma v.
Ezhumattur Grama Panchayat[xxiii] that,
“in
a Panchayat area ramification of proceedings in such sensitive matter may be
greater than in a city, and perhaps the legislature thought that the
responsibility for such decision should rest in the collective body, and is not
to be conferred on an individual who may not be conversant with local flavours.
When a threat was spoken to arise in the Panchayat, it was imperative that a
decision is to be taken thereon. Appropriate orders should be issued to the
Executive authority to set right the situation. The Secretary has no
independent discretion, however.”
32. Powers of Panchayat Secretary to form the notices and permissions, time for complying with notices, orders etc.
As per Section 240 (1) of the Kerala Panchayat Raj Act, 1994, all notices and permissions given
issued or granted as the case may be, under the provisions of this Act shall be
in writing and be signed by the Secretary of the Panchayat concerned.
Section 240 (2), whenever by any notice,
requisition or order under this Act or under any rule or byelaw made
thereunder, any person is required to execute any work, to take any measures or
to do anything, a reasonable time shall be fixed in such notice, requisition or
order within which the work shall be executed, the measures taken or the thing
done.
As per Section 240 (3), if such notice,
requisition or order is not complied within the time so fixed -
(a)
the Secretary, may, with the approval of the Panchayat concerned, cause such
work to be executed, or may take any measures or do anything which may, in his
opinion, be necessary for giving due effect to the notice, requisition or
order; and the cost incurred by the panchayat in this connection may be
recovered from the owner or occupier of the premises in the same manner as if
the same were taxes due to the Panchayat; and
(b)
if no penalty has been specifically provided in this Act fob failure to comply
with such notice, requisition or order, the said person shall be punishable
with fine not exceeding five hundred rupees for every such offence.
Honourable
High Court of Kerala has observed in Annamma v. Elsamma[xxiv]
that when votes are equal and lots are drawn, issue of notice in writing is
mandatory.
33. Powers of Panchayat Secretary to entry and inspection into any place, building or land
As per Section 241 (1) of the Kerala Panchayat Raj Act, 1994, subject to such restrictions and
conditions as may be prescribed, the Secretary of a Panchayat or any person
authorised by him or by the Panchayat may enter on or into any place, building
or land, with or without assistants or workmen in order –
(a)
to make any inquiry, inspection, test examination, survey, measurement or
valuation or to execute any other works which is authorised by the provisions
of this Act or of any rule or bye-law or order made under it or which it is
necessary to make or execute for any of the purposes of this Act or in
pursuance of any of the said provisions; or
(b)
to satisfy himself that nothing is being done in such place, building or land
for which a licence or permission is required under any of the said provisions
without such licence or permission or otherwise than in conformity with the
terms of the licence or permission obtained.
Provided
that –
(i)
no such entry into a building shall be made between sunset and sunrise.
(ii)
no dwelling house or place shall be so entered except with the consent of the
occupier thereof or without giving the occupier at least twenty-four hours
notice of the intention to make such entry;
(iii)
reasonable opportunity and facility shall be allowed to the women occupying any
part of a dwelling house to withdraw; and
(iv)
due regard shall, so far as feasible, be paid to the social and religious
customs and usages of the occupants of the premises entered into.
As per Section 241 (2), it shall be lawful for any
officer authorised by the Secretary or by the Panchayat to open or cause to be
opened any door, gate or other barrier to made any entry into any place -
(a)
if he considers the opening thereof necessary for the purpose of such entry;
and
(b)
if the owner or occupier is absent or, being present, refuse to open such door,
gate or barrier.
34. Powers of Panchayat Secretary to call for information from village officers
As per Section 242 (1) of the Kerala Panchayat Raj Act, 1994, the Secretary of a Panchayat may,
with the approval of the Panchayat by an order in writing require the village
officer of any revenue village in the Panchayat area to furnish him with the information
on any matter falling within such categories as may be prescribed in respect of
such village or any part thereof or any person or property therein and every
such order shall be complied with by the village officer.
As per 242 (2), the order shall specify the
period within which it may be complied with, and it shall be complied within
the time specified and if not, the Secretary shall not extend such time limit
more than once.
35. Duty of Panchayat Secretary for affecting recovery of dues within limitation
As per Section 243 (2) of the Kerala Panchayat Raj Act, 1994, notwithstanding
anything contrary to this contained in this Act or the rules made there under,
where for any reason, a person liable to pay any tax or fees leviable under this
Act has escaped assessment, the Secretary may at any time within four years
from the date on which such tax should have been assessed, serve on him a
notice assessing the tax or fee due and demand the payment within fifteen days
from the date of serving such notice and thereupon the provisions of this Act
and the rules made there under shall apply as if the assessment of such tax or
fee was made in time.
Honourable
High Court of Kerala has observed in Indian Oil Corporation Ltd v. Thenhipalam
Grama Panchayat[xxv] that imposition of
condition that if applicant wants renewal of licence, it should pay arrears of
licence fee is not illegal.
36. Duty of Panchayat Secretary to make complaints to prosecute within limitation
As per Section 245(1) of the Kerala Panchayat Raj Act, 1994, as amended
by Act 13 of 1999, save
as otherwise expressly provided in this Act, no person shall be tried for an
offence against this Act or any rule or bye-law made thereunder unless
complaint is made within one year of the commission of the offence by the
police, the Secretary or a person expressly authorised by the Panchayat in this
behalf, but nothing herein shall affect the provisions of the Code of
Criminal Procedure, 1973 (Central Act 2 of 1974) in regard to the power of
certain Magistrate to take cognizance of offences upon information received or
upon their own knowledge of suspicion:
Provided
that failure to take out a licence or obtain permission under this Act shall,
for the purpose of this section, be deemed to be a continuing offence until the
expiration of the period, if any, for which the licence or permission is
required.
As per Section 245 (2), every person other than
the Secretary making a complaint shall immediately report the fact to the Secretary.
37. Powers of Panchayat Secretary to compound an offence
As per Section 246 of the Kerala Panchayat Raj Act, 1994, the Secretary of a panchayat may,
subject to such restrictions and control as may be prescribed, compound any
offence against this Act, or any rule or bye-law made thereunder, which may by
rules be declared compoundable with the approval of the President.
As per Section 247, every Prosecution instituted
or offence compounded by the Secretary shall be reported by him to the Panchayat
at its next meeting and its approval secured.
38. Duty of Panchayat Secretary to furnish information
As per Section 271 C (1) of the Kerala Panchayat Raj Act, 1994, a person,
requiring any information from a Panchayat, shall make an application to the Secretary
of that Panchayat in such form and in such manner and paying such fees as may
be prescribed in that behalf and the Secretary or the officer authorised by the
Panchayat shall, furnish such information to the applicant within the
prescribed period unless the application is rejected or otherwise disposed of
within that period.
As per Section 271 C (2) If any
application for information is rejected, the reason for such rejection shall be
given in writing.
As per Section 271 D (1), the Secretary
or any officer of the Panchayat responsible for furnishing any information
under this Chapter shall be personally liable for furnishing the same within
the period prescribed unless such information is in respect of a notified
document.
As per Section 271 D (2), where such information is not furnished within the
time specified, the officer responsible for not furnishing the information
shall be punishable with a fine of rupees fifty for each day of delay after the
due date for furnishing the information and the fine so collected shall be
credited to the fund of the Panchayat.
As per Section 271 D (3), where the Secretary of the Panchayat or any other officer bound to
furnish the information fails to do so or furnishes false information in
respect of its material particulars which he knows or has reason to believe it
to be false or not true, he shall be punishable with a fine which shall not be
less than rupees one thousand.
However, as per Section 271 E, Protection
of action taken in good faith is extended as runs hereunder, “Notwithstanding
anything contained in section 271 D the Secretary or the officer bound to
furnish the information after making a thorough search find that the document
is not traceable by reason of the expiry of the
period for preservation of that
document or the document is not available or for any other valid reason and
that the information cannot, therefore, be furnished, the matter shall be communicated
to the applicant and dispose of the application and no action shall lie against
him.
39. Delegated Powers of Panchayat Secretary
Kerala Panchayat Raj Act, 1994 confers powers on persons authorized by Government or
other authorities. Such authorizations, at times, empower Panchayat secretary
also with powers, functions, duties and responsibilities. An example of such
powers is given in Section 157 Motion of no confidence. As per Section 157 (2),
a duly signed no confidence motion shall be delivered in person by any of the
elected members of the Panchayat signing the notice, to the officer as may be
authorised by the Government in this behalf. As per Section 157(3) it is the
duty of such authorized officer to convene a meeting for the consideration of
the motion. As per Section 157(5A) such person can attend the meeting as an
observer. As per Section 157(11) such person is responsible to forward the copy
of the minutes of the meeting together with the copy of the motion and the result
of the voting therein, on the termination of the meeting to the Government. As
per sub section (12), if the no confidence motion is passed it is the duty of
such officer to report the vacancy to the Government and State Election
Commission and the fact shall also be published in the notice board. However by
virtue of the amendment of Section 157(2) vide Act 13 of 1999, w.e.f.18.01.2000
the power to appoint the officer under that subsection was conferred with the
State Election Commission. As a practice Kerala State Election Commission
confers this duty on the respective Panchayat Secretaries. Such conferring of
duty on Panchayat Secretaries by the Kerala State Election Commission is upheld by the Kerala High Court in M.K.
Sivarajan v. The State Election Commission[xxvi]
on 23.11.2006.
05.OFFENCES AGAINST PANCHAYAT SECRETARY
Kerala Panchayat
Raj Act, 1994 provides
punishments for a few offences among which those specifically connected with
the powers of the Panchayat Secretary are given below
As per Section 260 (1), any person who prevents the President, the
Secretary or any person to whom the President or the Secretary has lawfully
delegated his powers of entering on or into any place, building or land, from exercising
his lawful power of entering thereon or there into shall be deemed to have committed
as offence under section 341 of the Indian Penal Code 1860.
As per Section 261, any person obstructing or
molesting a Panchayat, or the President, Vice-President, Chairman of Standing
Committee, member or the Secretary of the Panchayat, or any person employed by
it or any person with whom a contract has been entered into by or on behalf of
the Panchayat, in the discharge of his duty or of anything which he is
empowered or required to do by virtue, or in consequence, of this Act or of any
rule, bye-law or order made there under, shall be punishable with fine which
may extend to five hundred rupees.
As per Section 262, any person who without authority in that behalf,
removes, destroys, deface or otherwise on literates any notice exhibited or any
sign or mark erected by, or under the orders, of a Panchayat or its Secretary,
shall be punishable with fine which may extend to two hundred rupees.
06. SANCTION FOR PROSECUTION OF PANCHAYAT SECRETARY
As per Section 248 of the Kerala Panchayat Raj Act, 1994, when the President, Vice- President,
Chairman of a Standing Committee or any member of a Panchayat, or the Secretary
or other employee of the Panchayat who is not removable from his office save by
or with the sanction of the Government is accused of any offence alleged to
have been committed by him while acting or purporting to act in the discharge
of his official duty, no court shall take cognizance of such offence except
with the previous sanction of Government.
07.POWERS OF PANCHAYAT SECRETARY AND PRESIDENT
As
the Executive functions of the Panchayat are divided between the President and the Secretary of the Panchayat, the
relationship between them should be clearly defined for the proper functioning
of the organs of the Panchayat. Section 156 (6) of the Kerala Panchayat Raj
Act 1994 as amended by Act
13 of 1999 is helpful here. It runs,
“156. Function
of President and Vice-President.-
(6)
The President of the Panchayat shall also have the following powers, namely: -
(a)
To ensure the attendance of the Secretary and if necessary the attendance of
the employees under the control of the Panchayat including the employees of the
Government transferred to the Panchayat in the meetings of the Panchayat;
(b)
Suspend from service, if necessary, any employee or officer under the control
of the Panchayat other than the Secretary and the Government Officers in the
Gazetted rank who are transferred to the service of the Panchayat, when
disciplinary proceedings are to be taken against them for dereliction of duty
or insubordination or for violation of rules or Standing Orders:
Provided
that the President shall place the order of suspension in the next meeting of
the Panchayat and get it ratified; otherwise the said order will become
invalid;
(c)
to call for in writing any record or file relating to the administration of the
Panchayat from the Secretary or any Officer of the Panchayat and to give
necessary directions or pass orders thereon under this Act or the rules made
there under or in the light of the Standing Orders:
Provided
that no files and records relating to the exercise of statutory powers vested
solely with the Secretary or any Officer in respect of the administration of
the Panchayat shall be called for;
Note:
- The receipt and return of files and records shall be properly acknowledged
and recorded.
(d)
to refer immediately to Government any resolution passed by the Panchayat,
which in his opinion has not passed in accordance with law or is in excess of
power conferred by this Act, or any other law or if carried out, is likely to
endanger human life, health or public safety.
Honourable
High Court of Kerala has observed in Director of Panchayats v. Krishnan[xxvii] that President of a Grama Panchayat has got
power to take disciplinary action against a non-gazetted Government Servant
allotted to the panchayat.
08.RELATIONSHIP BETWEEN THE ELECTED AUTHORITIES AND OFFICERS
As per Section 185A of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999,
“(1)
The Government shall prescribe a code of conduct in respect of the relationship
between the elected authorities and employees of the Panchayat for the purpose
of protection of the rights of the officers and employees under the control of
the panchayat to render advice on matters dealt with by them and professional
freedom and statutory rights.
(2)
The views expressed by the officials shall be included in the minutes of
discussion.
(3)
Mutual respect shall be shown between the elected authorities, the officers and
employees of the panchayat, totally avoiding rude language, gesture and
actions.
(4)
Any complaint on the violation of the code of conduct by the elected
authorities shall be considered by the Ombudsman constituted under section 271
G for the Local Self Government Institutions and the report thereon shall be
forwarded to the Government for appropriate action.
(5)
Oral instructions given to the officers by the elected authorities shall be
confirmed in writing before they are implemented.
09.POWER OF GOVERNMENT TO TAKE ACTION FOR DEFAULT BY A PANCHAYAT PRESIDENT OR SECRETARY
As per Section 190 of the Kerala Panchayat Raj Act, 1994, power
or take action for default by a Panchayat President, or Secretary is provided
as under.
“(1)
If, at any time, it appears to the Government that a panchayat, or its
President or its Secretary has made default in performing any duty imposed by
or under this Act or in carrying out any orders lawfully issued by the
Government may, by order in writing, fix a period for the performance of such
duty, or the carrying out of such order.
(2)
If such duty is not performed or such order is not carried out within the
period fixed under sub-section (1) the Government may, after giving a
reasonable opportunity to the Panchayat or its President or its Secretary, as
the case may be, to explain why further action under this section may not be
pursued, appoint any officer, or authority to perform the duty or to carry out
the functions and may direct that the expenses incurred therefore shall be paid
from the fund of the panchayat within such time as may be specified by the Government.
(3)
If the expenses which the Government may direct under sub-section (2) to be paid
from the fund of the Panchayat are not paid as provided in that sub-section,
the Government may make an order directing the persons having the custody of
the said fund to pay it in priority to any other charges against that fund,
except charges for the service of authorized loans.
(4)
The person referred to in sub section (3), shall as far as the funds to the
credit of the Panchayat admit, be bound to comply with the order made by the
Government under that sub-section.
10.INSTITUTION OF SUITS AGAINST AUTHORITIES OF PANCHAYATS, THEIR OFFICERS ETC.
As per Section 249 (2) of the Kerala Panchayat Raj Act, 1994, a notice referred
to in Section 249 (1) for institutions of suits against authorities of
Panchayats, their officers etc., when it is intended for a Panchayat shall be addressed
to the Secretary.
11.PROTECTION OF ACTS DONE IN GOOD FAITH
As per Section 250 (1) of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, no suit prosecution or other legal proceedings
shall lie against the president, vice-president, any member, secretary, any officer
or employee of a panchayat for anything which is in good faith done or
purported or intended to be done in pursuance of this Act or any rule or
bye-law made thereunder.
12.DUTIES OF POLICE OFFICERS
As per Section 252 of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, specific duties are
assigned to police officers as given below.
“(1) It shall be the duty of every
police officer, -
(a)
to communicate without delay to the President and Secretary any information which
he receives of the design to commit or of the commission of any offence under
this Act or any rule or bye-law made thereunder; and
(b)
to assist the President or the Secretary or any officer of the Panchayat
demanding in writing his aid for the lawful exercise of any power vesting in
the President, the Secretary or in such officer or employee of the Panchayat
under this Act or any rule or bye-law made thereunder, or for the performance
of any function entrusted to any of them.
(2)
Any police officer who omits or refuses to perform any duty imposed on him by
this Act shall be deemed to have committed an offence under section 41 of the Kerala
Police Act, 1960 (5 of 1961).
It
is noteworthy that Kerala Police Act, 1960 (5 of 1961) has already been
repealed and Kerala Police Act, 2010 (Act 8 of 2011) has come into
force.
13.POWERS OF GOVERNMENT TO MAKE RULES
As per Section 254 (1), the Government may, by
notification in the Gazette, make rules either prospectively or retrospectively
to carry out all or any purposes of this Act.
As
far as the Panchayat Secretary is concerned, Section 254 (2)
(vi), (xix) and (xxvi) provide
provisions as far as a Panchayat Secretary is concerned. They are given below.
“(2)
In particular, and without prejudice to the generality of the foregoing power,
the Government may make rules, -
(vi) as to the powers of Secretary to
call for information on any matter, to summon and examine witnesses and to
compel the production of documents;
(xix) as to the powers which may be
exercised by the Panchayat or the Secretary or officer in respect of any public
or private market or the use thereof, and the enforcement of any orders issued
in pursuance of such powers; and as to the prohibition of the sale or purchase
of any commercial crop in any such market within any area, notified in respect of
such crop under the Madras Commercial Crops Markets Act, 1933 or any
other law;
(xxvi) for the use of the facsimiles of
signatures of the President the Secretary and other officers of the Panchayats;”
However, for fear
of space and workload, they are not reproduced in this paper. In addition to
the above, numerous references to the duties, functions, powers and
responsibilities of the Panchayat Secretary as delegated to him through the
various Panchayat Raj Rules, notifications, Government Orders and other
subordinate legislation are also, though relevant, purposefully left un-referred
with the above said reasons.
14.STATUTORY POWERS OF PANCHAYAT SECRETARY CONFERRED ON HIM THROUGH LEGISLATIONS OTHER THAN KERALA PANCHAYAT RAJ ACT, 1994
In addition to the
powers, functions, duties and responsibilities of the Panchayat Secretary as
conferred by the Kerala Panchayat Raj Act, 1994, there are numerous
other legislations also conferring on him many other powers, functions, duties
and responsibilities. Some of the examples are given below.
As per Rule 20 (6)
of the Kerala
Protection of River Banks and Regulation of Removal of Sand Rules, 2002 Panchayat Secretary also is entrusted with
the issue of passes for the transportation of legitimate removal of river sand.
As per provisions contained in Registration of Births and Deaths Act 1969
and Kerala Registration of Births and
Deaths Rules 1999, Panchayat
Secretary acts as the Registrar of Births and Deaths within his jurisdiction. There are numerous other
enactments also which confer the Panchayat Secretary with powers, functions,
duties and responsibilities.
15.APPEAL AND REVISION
As per Section 276
of the Kerala Panchayat Raj Act, 1994, certain actions of the Panchayat
Secretary is appealable. Section 276 (1) runs, “ An appeal shall lie to the panchayat against the notice
issued or order passed or action taken by the president or secretary in
exercise of the powers conferred as per the provisions of this Act, rules,
bye-laws or regulations made thereunder except sections 235 I, 235 J, 235 N,
235 W and 235 X:
Provided
that an appeal or matters connected with tax shall be filed before the standing
committee for finance of the village panchayat.
As per Section 276
(4), an appeal on the
notice, order or action of the Secretary under section 235 I, 235 J, 235 N, 235
W and 235 X shall be filed before the Tribunal Constituted for Local Self Government
Institutions under section 271 S, and it may on an application by an order, stay
the operation of the said notice, order or action taken pending disposal of the
appeal.
16.REFERENCE TO PRESIDENTS TO MEAN REFERENCE TO SECRETARIES IN CERTAIN CASES
As per Section 278
(1) of the Kerala Panchayat Raj Act, 1994, “Any reference to the President of a
Panchayat contained in any enactment in force in the State or in any
notification, order, scheme, rule, form or byelaw made under any such enactment
and in force in the State shall where such reference relates to the executive
functions of the President be construed as a reference to the secretary of the
Village Panchayat.”
As per Section 278
(2), if any question
arises as to whether any such reference relates to the executive functions of
the President or not, the decision of, the Government shall be final.
17.CONCLUSION
The
powers, functions, duties and responsibilities of the Panchayat Secretary are
manifold and his relationship with the Government, District Administration, and
the three tier elected Panchayat Committees are very complex. In addition to
these, his statutory powers, functions etc. towards his staff and public at
large have also to be protected and executed. He is the chief executive officer
of the panchayat, but the executive functions are not primarily vested with
him. Even though he is not part of the process making body, he has the
responsibility of ensuring that whatever decisions are taken by the panchayat are
legal and bonafide. He is empowered to make a dissent note, as well as other
Executing Officers. But if his such actions displease the Panchayat Committee,
it can take a resolution to transfer him, start steps to take disciplinary
actions against him and even appraise his performance which depends on his
future career advancement. He is answerable to the judiciary also for all
litigations on behalf of the panchayat are addressed in his name. However, only
a very few part of the important communications are sent to higher authorities
by him, as the President only is empowered in this behalf. Many Panchayat
Secretaries at village level are not even Gazetted Officers. Thus the
challenges before him are manifold and the power with him is limited. In a
sentence we may say that Secretary is an officer with abundant responsibilities
and relatively less power.
However,
as Citizens of India, we expect at village level local administration not as
Secretary Raj, but as Panchayat Raj. As far as that principle is concerned, the
tendency to curtail the powers of the Panchayat secretary is a right step in
empowering the people in village administration.
APPENDICISES
ELEVENTH SCHEDULE[xxviii] OF THE CONSTITUTION
(Article 243G)
1. Agriculture,
including agricultural extension.
2. Land improvement,
implementation of land reforms, land consolidation and soil conservation.
3. Minor irrigation,
water management and watershed development.
4. Animal husbandry,
dairying and poultry.
5. Fisheries.
6. Social forestry
and farm forestry.
7. Minor forest
produce.
8. Small scale
industries, including food processing industries.
9. Khadi, village and
cottage industries.
10. Rural housing.
11. Drinking water.
12. Fuel and fodder.
13. Roads, culverts,
bridges, ferries, waterways and other means of communication.
14. Rural
electrification, including distribution of electricity.
15. Non-conventional
energy sources.
16. Poverty alleviation
programme.
17. Education,
including primary and secondary schools.
18. Technical
training and vocational education.
19. Adult and
non-formal education.
20. Libraries.
21. Cultural
activities.
22. Markets and
fairs.
23. Health and
sanitation, including hospitals, primary health centres and dispensaries.
24. Family welfare.
25. Women and child
development.
26. Social welfare,
including welfare of the handicapped and mentally retarded.
27. Welfare of the
weaker sections, and in particular, of the Scheduled Castes and the Scheduled
Tribes.
28. Public
distribution system.
29. Maintenance of
community assets.
THIRD SCHEDULE[xxix] TO KERALA PANCHAYAT RAJ ACT 1994
[See Sub-section
(1) of section 166]
Functions of
Village Panchayats
A. Mandatory
Functions.
1. Regulating
building construction.
2. Protection of
public lands against encroachment
3. Maintenance of
traditional drinking water sources.
4. Preservation of
ponds and other water tanks
5. Maintenance of
waterways and canals under the control of Village Panchayats.
6. Collection and
disposal of solid waste and regulation of liquid waste disposal.
7. Storm water
drainage.
8. Maintenance of
environmental hygiene.
9. Management of
public markets.
10. Vector Control
11. Regulation of
slaughtering of animals and sale of meat, fish and other easily perishable food
stuffs etc.
12. Control of
eating places.
13. Prevention of
food adulteration.
14. Protection of
roads and other public properties.
15. Street
lighting and its maintenance.
16. Adopt immunisation
programmes.
17. Effective
implementation of National and State level strategies and programmes for
prevention and control of diseases.
18. Establishment
and maintenance of burial and burning grounds.
19. Issue of
licenses to dangerous and offensive trades.
20. Registration
of births and deaths.
21. Providing
bathing and washing ghats.
22. Provision for
ferries.
23. Provision for
parking spaces for vehicles.
24. Construction
of waiting sheds for travellers.
25. Provision for
toilet facilities and bathing ghats at public places.
26. Regulate the
conduct of fairs and festivals.
27. Issue licence
to domestic dogs and to destroy stray dogs.
B. General
Functions
1. Collection and
updating of essential statistics.
2. Organise
voluntary workers and make them participate in collective activities.
3. Organise
campaigns for thrift.
4. Awareness
building against social evils like drinking, consumption of narcotics, dowry,
abuse of women and children
5. Ensuing maximum
peoples participation at all stages of development.
6. Organise relief
activities during natural calamities.
7. Inculcating
environmental awareness and motivating local action for environmental
upgradation.
8. Promotion of
co-operative sector.
9. Enhancing
communal harmony.
10. Mobilisation
of local resources in cash or in kind including free surrender of land for
developmental purposes.
11. Campaign on
legal awareness among weaker sections.
12. Campaign
against economic offences.
13. Organising
neighbourhood groups and self-help groups focusing on the poor.
14. Awareness
building on civic duties.
C. Sector-wise
functions.
I. Agriculture
1. Cultivate
wastelands and marginal lands.
2. Ensure optimum
utilisation of land.
3. Soil protection
4. Production of
organic manure.
5. Establishment
of nurseries.
6. Encourage the
system co-operative ground farming.
7. Organise self
help groups among farmers
8. Encourage
horticulture and vegetable cultivation.
9. Fodder
development.
10. Plant
production.
11. Seed
protection.
12. Farm
mechanisation.
13. Management of
Krishi Bhavans.
II. Animal
Husbandry and Diary farming
1. Cattle
Development Programmes
2. Diary farming
3. Poultry
farming, bee keeping, piggery development, goat rearing, rabbit rearing, etc.
4. Running of
veterinary hospitals
5. Running of ICDP
sub-centres.
6. Preventive
Health Programmes for animals.
7. Prevention of
cruelty to animals.
8. Implementation
of fertility improvement programmes.
9. Control of
diseases of animal origin.
III. Minor
Irrigation
1. Maintenance and
implementation of all minor irrigation projects within the area of a village
panchayat.
2. Implementation
and maintenance of all micro irrigation projects.
3. Put into
practice water conservation.
IV. Fishing
1. Development of
fisheries in ponds, pisci-culture in fresh water and brackish water and
mariculture.
2. Improvement of
fish seed production and distribution of offsprings.
3. Distribution of
fishing implements.
4. Provide
assistance for fish marketing.
5. Provide minimum
basic facilities for fishermen families.
6. Implementation
of fishermen Welfare Schemes.
V. Social
Forestry
1. Growing trees
for cattle feed, fire wood and growing of fruit trees.
2. Organise
campaigns for planting of trees and to build environmental awareness.
3. Afforestation
of waste land
VI. Small scale
Industries
1. Promotion of
cottage-village industries.
2. Promotion of
handicreafts.
3. Promotion of
traditional and mini industries.
VII. Housing
1. Identification
of the homeless people and the poramboke dwellers and provide them with lands
for house construction and with houses.
2. Implementation
of rural housing programmes.
3. Implementation
of shelter upgradation programmes.
VIII. Water Supply
1. Management of
water supply schemes within a village panchayat.
2. Setting up of
water supply schemes within a village panchayat.
IX. Electricity
and Energy
1. Installation
and maintenance of streetlights.
2. Encourage the
consumption of bio-gas.
X. Education
1. Management of
Government Pre-primary Schools and Primary Schools.
2. Implementation
of literacy programmes.
3. Management and
promotion of reading rooms and libraries.
XI. Public Works
1. Construction
and maintenance of village roads within a village panchayat.
2. Construction of
buildings for institutions including those transferred from the Government.
XII. Public Health
and Sanitation
1. Running of
dispensaries, Primary Health Centres and Sub-centres (with all systems of
medicines.)
2. Management of
maternity and Child Welfare Centres.
3. Carry out
immunisation and other preventive measures.
4. Implementation
of family welfare programme.
5. Implementation
of sanitation programmes.
XIII. Social
Welfare
1. Running of
Anganwadis
2. Sanctioning and
distribution of pension to destitutes, widows, handicapped and agricultural
labourers.
3. Sanctioning and
distribution of unemployment wages.
4. Sanctioning of
financial assistance for the marriage of the daughters of widows.
5. Implementation
of Group Insurance Scheme for the poor.
XIV. Poverty
Alleviation
1. Identifying the
poor.
2. Implementation
of self employment and Group Employment Schemes for the poor especially for
women.
3. Providing
community assets of continuing benefits to the poor.
XV. Scheduled
Caste-Scheduled Tribe Development
1. Implementation
of beneficiary oriented schemes under S.C.P., T.S.P.
2. Running of
nursery schools for Scheduled Caste-Scheduled Tribes.
3. Arrange basic
facilities in Scheduled Caste-Scheduled Tribe Colonies.
4. Provide
assistance to Scheduled Caste-Scheduled Tribe Students.
5. Provide
discretionary assistance to scheduled Caste-Scheduled Tribe when necessary.
XVI. Sports and
Cultural Affairs
1. Construction of
playgrounds.
2. Establishment
of Cultural Centres.
XVII. Public
Distribution System
1. Examining the
complaints against the Public Distribution System and find out and implement
remedial measures.
2. Organise
campaigns against offences relating to weights and measures.
3. General
supervision and guidance of Ration Shops, Maveli Stores, Neethi Stores and
other public distribution systems and start new public distribution centres, if
necessary.
XVIII. Natural Calamities
Relief
1. Protection of
Relief Centres.
2. Conduct works
relating to natural calamity. The work to compensate damages caused to the
assets should be done by the respective panchayats.
XIX. Co-operation
1. Organise
Co-operative societies within the boundaries of village panchayat.
2. Strengthen [the
existing co-operative institutions
FOURTH SCHEDULE[xxx] TO KERALA PANCHAYAT RAJ ACT 1994
[See Sub-section
(1) of section 172]
Functions of Block
Panchayats
(A) General
Functions
1. Utilise
Governmental-non-Governmental technical expertise at block level.
2. Provide
technical assistance to Village Panchayats.
3. Prepare schemes
taking into consideration the schemes of village panchayats in order to avoid
duplication and to provide backward, forward linkage.
(B) Sectorwise
functions
I. Agriculture
1. Farmers
training programmes for the implementation at the village level.
2. Arrange
agricultural inputs required for schemes at the village level.
3. Conduct of agricultural
exhibitions.
4. Management of
watersheds falling within the Block Panchayat area.
5. Mobilise
agricultural loans.
6. Encouragement
of sericulture.
II. Animal
Husbandry and Dairy Farming
1. Running of
veterinary poly clinics and zonal artificial insemination centres.
2. Provide
speciality services in animal husbandry.
3. Conducting of
cattle and poultry shows.
III. Minor
Irrigation
Implementation and
maintenance of all Lift Irrigation Schemes and Minor Irrigation Schemes
covering more than one village panchayats.
IV. Fisheries
Development of
traditional landing centres.
V. Small Scale
Industries.
1. Establishment
of mini industrial estates.
2. Promotion of
industries with investment limit of one third of S.S.I.
3. Formulation of
self employment schemes in Industrial sector.
VI. Housing
1. Popularisation
of low cost housing.
2. Promotion of
housing co-operative societies.
VII. Electricity
and Energy
Development of
conventional energy sources.
VIII. Education
Management of
Government Industrial Training Institutions.
IX. Public Works
1. Maintenance of
Village roads connecting more than one village panchayat within the Block
Panchayat and other roads vested in block panchayat.
2. Construction of
buildings for institutions transferred from Government.
X Public Health
and Sanitation
Running of
community health centres and Taluk Hospitals with all systems of medicine within
the Block Panchayat.
XI Social Welfare
Management of
I.C.D.S.
XII Poverty
Alleviation
1. Planning and
implementation of employment assurance schemes in co-ordination with the
Village Panchayat.
2. Skill
upgradation of poor for self employment and giving wage employment for people
below poverty line.
XIII. Scheduled
Caste/Scheduled Tribe Development
1. Management of
pre-metric hostels.
2. Promotion of
Co-operative Societies means for Scheduled Caste/Scheduled Tribes.
XIV. Co-operation
1. Organising
co-operatives within the jurisdiction of block panchayat.
2. Strengthening
of co-operative institutions.
FIFTH SCHEDULE[xxxi] TO KERALA PANCHAYAT RAJ ACT 1994
[See Sub section
(1) of Section 175]
Functions of
District Panchayats
(A)General
Functions
1. Mobilisation of
the technical expertise available from Government-non-Government institutions.
2. Provide
technical assistance to Block Panchayats, Village Panchayats and Municipalities.
3. Prepare schemes
after taking into account the schemes of the Village Panchayat and the Block
Panchayat to avoid duplication and to provide forward-backward linkage.
(A) Sectorwise
Functions
I. Agriculture
1. Running of
agriculture farms other than regional farms and research centres.
2. Integrated
water-shed management in water sheds covering more than one block panchayat
area.
3. Provide for
agricultural inputs.
4. Soil testing
5. Pest control
6. Marketing of
agricultural products
7. Cultivation of
ornamental plants.
8. Promotion of
agricultural co-operatives
9. Promotion of
commercial crops.
10. Application of
bio-technology.
11. Popularisation
of innovative field trials and pilot projects.
12. Conduct of
locally appropriate research and development.
II. Animal
Husbandry and dairy Farming
1. Running of
district level veterinary hospitals and laboratories.
2. Running of
dairy extension units.
3. Promotion of
Milk co-operative societies.
4. Running of
farms other than regional farms, breeding farms and research centres.
5. Implementation
of district level training.
6. Implementation
of disease prevention programmes.
7. Propagating new
methods of field trials and pilot projects.
8. Locally
relevant research and development.
III. Minor
Irrigation
1. Development of
ground water resources.
2. Construction
and maintenance of minor irrigation schemes covering more than one block
panchayat.
3. Command area
development.
IV. Fisheries
1. Arrangements
for fish marketing
2. Management of
fish farm development agency.
3. Management of
district level pisci-culture centres net making units, fish markets, feed
mills, ice plants and cold storages.
4. Management of
fisheries schools.
5. Introduction of
new technologies.
6. Provide
implements required for fishermen.
7. Promotion of
fishermen’s co-operative societies.
V. Small Scale
Industries.
1. Management of
district industries centres.
2. Promotion of
small scale industries.
3. Setting up of
industrial estates.
4. Organising
exhibitions for sale of products
5. Conduct of
entrepreneur development programme.
6. Marketing of
products.
7. Imparting
training.
8. Create input
service and common facility centres.
9. Implementation
of industries development credit schemes.
VI. Housing
1. Implementation
of housing complex and infrastructure development.
2. Mobilisation of
housing finance.
VII. Water Supply
1. Implementation
of water supply schemes covering more than one village panchayat.
2. Taking over of
water supply schemes covering more than one village panchayat.
VIII. Electricity
& Energy
1. Taking over of
micro-hydal projects.
2. Determining
priority areas for extension of electricity.
IX. Education.
1. Management of
Government high schools (including Lower and Upper Primary Schools attached to
high schools).
2. Management of
Government Higher Secondary schools.
3. Management of
Government Technical Schools.
4. Management of
Government Vocational Training Centres and Polytechnics.
5. Management of
government Vocational Higher Secondary Schools.
6. Management of
District Institute for Education and Training.
7. Co-ordination
of centrally and state sponsored programmes related to education.
X. Public Works.
1. Construction
and maintenance of all district roads vested within the district panchayat
other than major district roads.
2. Construction of
building for institutions transferred.
XI. Public Health
& Sanitations
1. Management of
district hospitals with all systems of medicines.
2. Setting up of
centres for the care of special categories of handicapped and mentally disabled
people.
3. Co-ordination
of centrally and state sponsored programmes at district level.
XII. Social
Welfare
1. Provide grants
to orphanages.
2. Establishment
of welfare centres for the handicapped and destitutes.
XIII. Poverty
Alleviation
1. Providing
infrastructure facilities for self employment programme.
XIV. Development
of Scheduled Caste-Scheduled Tribe
1. Management of
post metric hostels.
2. Management of
vocational training centres for the Scheduled Caste/Scheduled Tribes.
XV. Sports and
Cultural affairs.
Construction of
stadia.
XVI. Co-operation
1. Organisation of
co-operatives within the limits of district panchayat.
2. Strengthening of the co-operative institutions.
BIBLIOGRAPHY
1. Complete Works of Mahatma Gandhi Vol 98, Government of
India, Electronic Version,
2. Constitution of India, Government of India, Ministry of
Law and Justice, 2007, Electronic Version
3. The Kerala Panchayat
Act, 1960 (32 of 1960)
4. Kerala Panchayat Raj Act, 1994 (Act 13 of 1994)
5. Kerala Panchayat Manual Vol I, by Siby Mathew, published
by Kerala Law Times, Cochin-31, 2011 May Edition
6. History of local governance in Kerala, Wikipedia, https://en.wikipedia.org/wiki/History_of_local_governance_in_Kerala
7. The
Constitutional Law of India by Dr. J.N. Pandey, published by Central Law Agency, Allahabad-2, 49th Edition 2012
8. Judgments in
the table of case laws
9. Bare Acts of
the list of enactments and the rules mentioned
10. Official site
of the Local Self Government Department http://www.lsgkerala.gov.in/en/index.php
NOTES
[i] Complete Works of Mahatma Gandhi
Vol 98, Page 37
[iii] Omitted by Act 13 of 1999
[v] Ibid
[vi] 2000 (2) KLT 776 : 2000 (2) KLJ
[vii] 2005 (2) KLT 248
[viii] 2010 (1) KLT SN 86 (C No. 104)
[ix] Inserted by Act 13 0f 1999
[x] Ibid
[xi] Inserted by Act 7 of 1995
[xii] Added by Act 13 of 1999
[xv] 1999 (1) KLT238 : ILR 1999 (2) Ker.
184 : AIR 1999 Ker. 161
[xvi] 1999 (3) KLT 601 : 1999 (2) KLJ 965
: AIR 1999 Ker. 399
[xvii] 2009 (3) KLT 150
[xxi] 2009 (3) KLT 852
[xxii] 1995 (2) KLJ 589
[xxiv] 1984 KLT 387
[xxv] 2010 (3) KLT 300
[xxvii] 2001(2) KLT 286
[xxx] Ibid
[xxxi] Ibid
