झारखंड पंचायती राज अधिनियम के दोष

एक सज्जन मिस्टर मंगल मारडी याहू ग्रुप वीसंताल्स में इस विसई पर कुछ सवाल किये हैं. हमको तो लोग अभी तक इस ग्रुप का सदस्य नहीं बनाया है, तो चलिये हम अपने ब्लॉग पर ही ऊ जवाब दे देते हैं जो हम वहां दिये होते.

Joto ko ge in’ak’ Johar
I will attempt to anser Mr. Marndi’s kweschans.
But befor that I apolojije to you all, for my puwar Englis patikularli my spelings. It is the rejult of my no dejyre to studi hardli when i waj a children. Pruves that all childs must studi hardli. I rekwest yu tu plij ignor my puwar Englis patikularli my spellings and folo the sentiments, meenings and logic in its back.
Now Plij come to Mr. Marndi’s kweschans. I hav also added sum of my own kweschans to giv a betar pikchar.

(i) Whether the Jharkhand Panchayatraj Act is conforming to PESA?
Anser: NO.
(iA) Whether the Olisa/ Orissa Panchayatraj Acts, nemli, Orissa Grama Panchayat Act 1965, Panchayat Samiti Act, 1959, and the Zilla Parishad Act 1991 and there amendments in 1997, that ij, Orissa Gram Panchayat (Amendment Act) 1997, Orissa Panchayat Samiti (Amendment Act) 1997, and the Zilla Parishad (Amendment Act) 1997 is conforming to PESA?
Anser: NO.

(ii) If not, which specific provisions of Jharkhand Panchayatraj Act are objectionable for tribal?
(iiA) If not, which specific provisions of Olisa/ Orissa Panchayatraj Acts are objectionable for tribal?
Anser: It wil bi klear by komparijan of provijans of abov two acts with Central PESA.

1. Central PESA - Section No. 4 (a): State legislation on the Panchayats that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources
Jharkhand Panchayatraj Act: NIL
Orissa Panchayatraj Acts: NIL
2. Central PESA - Section No. 4 (d): Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution:
Jharkhand Panchayatraj Act - Section No. 10. 5. i: Gram Sabha shall safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution, WHICH ARE NOT IN CONFLICT WITH THE TENETS OF CONSTITUTION. AS AND WHEN REQUIRED IT SHALL ALSO PRESENT RULES IN THIS RESPECT BEFORE THE GRAM PANCHAYAT, PS, ZP AND THE STATE GOVT.
Orissa Panchayatraj Acts - Section No. 5 (6) inserted by the 1997 amendment Act: In the scheduled areas, the Grama Sasan shall be competent to safeguard and preserve the tradition and customs of the people, their cultural identity, community resources and customary mode of dispute resolution CONSISTENT WITH THE RELEVANT LAWS IN FORCE AND IN HARMONY WITH THE BASIC TENETS OF THE CONSTITUTION and human rights
3. Central PESA - Section No. 4. (e) (i): every Gram Sabha shall — (i) approve the plans, programmes and projects for social and economic development before such plans, programmes and projects are taken up for implementation by the Panchayat at the village level;
Jharkhand Panchayatraj Act - Section No. 10.1.A: SUBJECT TO SUCH SPECIAL OR ORDINARY ORDERS AS MAY BE ISSUED BY THE STATE GOVERNMENT FROM TIME TO TIME, the gram sabha shall perform the following functions:
(i) “identification” of programmes for economic development and formulation of guidelines for determining priority for such plans.
(ii) to approve the plans for economic and social development, which includes all the annual plans at the Panchayat level, before such programmes and policies are implemented.
4. Central PESA - Section No. 4. (e) (ii): every Gram Sabha shall be-- (ii) responsible for the identification or selection of persons as beneficiaries under the poverty alleviation and other programmes;
Jharkhand Panchayatraj Act - Section No. 10.1.A: SUBJECT TO SUCH SPECIAL OR ORDINARY ORDERS AS MAY BE ISSUED BY THE STATE GOVERNMENT FROM TIME TO TIME, the gram sabha shall perform the following functions:
(vi) to identify and select persons as beneficiaries under the poverty alleviation and other programmes
- Section No. 75.A.15: SUBJECT TO THE RULES AS MAY BE PRESCRIBED BY THE STATE GOVERNMENT FROM TIME TO TIME AND THE FUNDS AVAILABLE, the Gram Sabha shall perform the following functions:
…(15) Poverty alienation programmes:
(ii) to select the beneficiaries under various programmes through Gram sabha.
5. Central PESA - Section No. 4. (f): Every Panchayat at the village level shall be required to obtain from the Gram Sabha a certification of utilisation of funds by that Panchayat for the plans, programmes and projects referred to in, clause (e);
Jharkhand Panchayatraj Act - Section No. 10.1.A (v): SUBJECT TO SUCH SPECIAL OR ORDINARY ORDERS AS MAY BE ISSUED BY THE STATE GOVERNMENT FROM TIME TO TIME, the gram sabha shall perform the following functions
(v) to ensure & certify proper utilization of funds by the gram Panchayat for the plans, programmes and projects mentioned in 10 (1) (A) (ii)
6. Central PESA - Section No. 4. (i): (i) the gram sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level;
Jharkhand Panchayatraj Act: NO SUCH PROVISION UNDER JPRA, 2001
Orissa Panchayatraj Acts - Section No. 3 (6)(b) of the Orissa Zilla Parishad (amendment) Act, 1997: No acquisition of land for development projects and for resettling or rehabilitating persons affected by such projects shall be made under any law without prior consultation of the PARISHAD [S.3 (6)(b) of the Orissa Zilla Parishad (Amendment) Act, 1997]
7. Central PESA - Section No. 4. (k): the recommendations of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory prior to grant of prospective license or mining lease for minor minerals in the Scheduled Areas;
Jharkhand Panchayatraj Act: No such provision under JPRA, 2001.
Orissa Panchayatraj Acts - Section No. 3 (6)(a) of the Orissa Zilla Parishad (amendment) Act, 1997: No prospecting license or mining license for minor minerals by auction shall be granted under any law on or after the commencement of the Orissa Zilla Parishad (Amendment) Act, 1997,except with the prior recommendation of the PARISHAD
8. Central PESA - Section No. 4. (l): the prior recommendation of the Gram Sabha or the Panchayats at the appropriate level shall be made mandatory for grant of concession for the exploitation of minor minerals by auction;
Jharkhand Panchayatraj Act: NO SUCH PROVISION UNDER JPRA, 2001
Orissa Panchayatraj Acts - Section No. 3 (6)(a) of the Orissa Zilla Parishad (amendment) Act, 1997: No prospecting license or mining license for minor minerals by auction shall be granted under any law on or after the commencement of the Orissa Zilla Parishad (Amendment) Act, 1997,except with the prior recommendation of the PARISHAD.
9. Central PESA - Section No. 4. (m): “While endowing Panchayats in the Scheduled Areas with such powers and authority as may be necessary to enable them to function as institutions of self-government, a State Legislature shall ensure that the Panchayats at the appropriate level and the Gram Sabha are endowed specifically with…..”
Jharkhand Panchayatraj Act: THE JHARKHAND PRA, 2001, DOES NOT CONTAIN THIS PROVISION. HOWEVER WHETHER THE STATE ACT FOLLOWS THIS IN PRACTICE IS A MATTER OF INQUIRY.
Orissa Panchayatraj Acts - Section No. 44) of the Orissa Grama Panchayat (Amendment) Act1997]: Notwithstanding anything contained in any other law in the scheduled areas, subject to the control and supervision of the Grama Sasan, the Grama Panchayat shall exercise within its local limits, such powers and perform such functions IN SUCH MANNER AND TO SUCH EXTENT AS MAY BE PRESCRIBED IN RESPECT OF THE FOLLOWING MATTERS, namely-
10. Central PESA - Section No. 4. [m(i)]: the power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant;
Jharkhand Panchayatraj Act: NO SUCH PROVISION UNDER JPRA, 2001
11. Central PESA - Section No. 4. [m(ii)]: “ … the Gram Sabha are endowed specifically with…..” the ownership of minor forest produce;
Jharkhand Panchayatraj Act - Section No. 75.A (8), 76 (A) (viii) (d) and 77 A. (vii) (d): SUBJECT TO THE RULES AS MAY BE PRESCRIBED BY THE STATE FROM TIME TO TIME AND AVAILABILITY OF FUNDS, the Gram Panchayat shall perform the following functions:
SUBJECT TO THE RULES AS MAY BE PRESCRIBED BY THE STATE FROM TIME TO TIME AND AVAILABILITY OF FUNDS, the Panchayat Samiti shall perform the following functions:
(d) Collection, storage and marketing of minor forest produce and its supervision.
SUBJECT TO THE RULES AS MAY BE PRESCRIBED BY THE STATE FROM TIME TO TIME AND AVAILABILITY OF FUNDS, the Zilla Parishad shall perform the following functions:
(d) Consolidated management of MFPs.
12. Central PESA - Section No. 4. [m(iii)]: “ … the Gram Sabha are endowed specifically with…..” the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe;
Jharkhand Panchayatraj Act - Section No. 77 (A) (xxiii) (i): SUBJECT TO THE RULES AS MAY BE PRESCRIBED BY THE STATE FROM TIME TO TIME AND AVAILABILITY OF FUNDS, THE ZILLA PARISHAD shall perform the following functions
(i) to restore the unlawfully alienated land of an adiviasi.
13. Central PESA - Section No. 4. [m(v)]: “ … the Gram Sabha are endowed specifically with…..” the power to exercise control over money lending to the Scheduled Tribes;
Jharkhand Panchayatraj Act - Section No. 77.A. xxiii (g): exercising control over CHARGING OF EXCESSIVE INTEREST by money-lenders.
Orissa Panchayatraj Acts - Section No. 44 (2)(d) of the Orissa Grama Panchayat (Amendment) Act1997: Notwithstanding anything contained in any other law in the scheduled areas, subject to the control and supervision of the Grama Sasan, the Grama Panchayat shall exercise within its local limits, such powers and perform such FUNCTIONS IN SUCH MANNER AND TO SUCH EXTENT AS MAY BE PRESCRIBED in respect of the following matters, namely-
(d) Control over money lending to the Scheduled Tribes]
14. Central PESA - Section No. 4. [m(vi)]: “ … the Gram Sabha are endowed specifically with…..” the power to exercise control over institutions and functionaries in all social sectors;
Jharkhand Panchayatraj Act - Section No. 76.B.2 and 77 (c) (2): Panchayat Samiti shall have the following powers in Scheduled Areas:
(2) control over institutions and functionaries in all social sectors.
The Zilla Parishad shall have the following powers in Scheduled Areas
(2) control over institutions and functionaries in all social sectors.
Orissa Panchayatraj Acts - Section No. 20 (5) (i) of the Orissa Panchayat Samities Act: Notwithstanding anything to the contrary in this Act, in the scheduled areas, the Samiti shall, in consultation with the Grama Sasan, be competent –
(i) to exercise control and supervision, the nature and extent of which shall be such as may be prescribed, over institutions and functionaries of various social sectors IN RELATION TO THE PROGRAMMES AND MEASURES, AS THE GOVERNMENT MAY, BY NOTIFICATION, SPECIFY

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AND MOTHER OF ALL PROVISIONS
1. Central PESA - Section No. 4 (o): the State Legislature shall endeavour to follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the Panchayats at district levels in the Scheduled Areas.
Jharkhand Panchayatraj Act: NO SUCH PROVISION UNDER JPRA, 2001
Orissa Panchayatraj Acts: NO SUCH PROVISION UNDER Orissa Panchayatraj Acts


(iii) Who were the parties that originally challenged the Jharkhand Panchayat Raj Act, 2001 in HC and subsequently in SC;
Anser: Adivasi Buddhijeevi Manch.

(iv) Is it the same group now filing the review petition in SC;
Anser: Yes.

(v) Whether the issue has been debated by tribal leaders and intellectuals;
Anser: Leaders – if meening, political, then NO. Intellectuals – Dont no the meening. People in whyte kolar job – yes.

(vi) If so what is the general consensus among the tribal; and
Anser: People in whyte kolar job – all yes.

(vii) Is the issue in its present form a legal issue to be challenged in SC or an issue to be resolved politically?
Anser: In SC – at list yu kan chalenj. With political leaders – Hu kan chalenj?