COMMITTEE ON DECENTRALISATION OF POWERS

FINAL REPORT VOLUME II PART A

TOWARDS INSTITUTIONALISING LOCAL SELF-GOVERNMENT-CONCOMITANT AMENDMENTS TO ACTS RELATED TO LOCAL GOVERNMENT FUCTIONING

October, 1999

Contents1. Introduction2. Rationale of the Amendments3. Methodology adopted4. Structure of the Report5. Recomendations

Appendices

Appendix - A

Appendix - B

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1. Introduction

1.1. Based on the 73rd and 74th Amendments to the Indian Constitution, Kerala enacted new Panchayat Raj and Muncipality Acts in 1994 and further improved them through fundamental amendments in 1999. The basic objective of these amendments was to realise the constitutional mandate of laying the foundation for genuine "institutions of local self-government". In order to further this objective, it is necessary to amend certain Acts which are either administered by the local governments or which have a close bearing on their functioning in the changed context.

1.2. In order to strengthen the legal identity of local governments they have to be given a position in several legislations. This will further consolidate the process of decentralisation which is being actively pursued by the State and promote convergence of action. Also, the propsed amendments would further fortify the functional domains of local governments through a double stamp of legislative approval - i.e. the Panchayat Raj and Municipality Acts complemented by amendments to Acts related to subjects enumerated in the Eleventh and Twelfth Schedules of the Indian Constitution.

1.3. It is worth recalling that about two decades ago when Kerala opted to go in for creation of strong district level governments, a similar exercise was undertaken in a limited manner. It bore fruit another decade later in the form of strong District Councils but only to wither away after a very brief life. In a sense this Report is a follow up, expansion and updating of that exercise in a fundamentally changed institutional, legal and policy milieu conducive for genuine decentralisation.

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2. Rationale of the Amendments

2.1. In India, normally planning and development are not governed by statutes. They are mostly in the realm of executive decision making. However there are some Acts which have developmental implications. Such Acts which are directly related to the functions earmarked for the local governments under the Constitution as well as the State Acts, need to be amended in order to enable the local governments to function freely and effectively within the domain assigned to them. It is with this objective that Acts relating to Water Supply, Electricity, Education, Land Development etc., are recommended to be amended.

2.2. Some of the Acts though administered by the local governments date back to a period when local governments were not given the autonomy they are now entitled to, and as such provide for too much of executive control. Such Acts are to be amended to tone down governmental control and increase the autonomy of the local governments. Examples of such Acts are the Cattle Trespass Act, 1961, the Cinemas (Regulation) Act, 1958 and the Places of Public Resort Act, 1963.

2.3. The State Finance Commission has made certain recommendations regarding the financial base of local governments. Some of the recommendations, to be put into practice require legislative changes. Therefore suitable amendments to the Local Authorities Entertainment Tax Act 1961 and the Additional Tax on Entertainments and Surcharge on Show Tax Act 1963 are necessary.

2.4. A lot of functions and powers have been given to the local governments through the Panchayat Raj and Municipality Acts. But to define the functions clearly and to enable proper exercise of the powers, it is needed to remove contradictions, harmonize, and clarify related legislations dealing with the functions transferred to the local governments. Acts relating to Irrigation, the Plant Diseases and Pests Act, 1972 and the Khadi and Village Industries Board Act, 1957 belong to this category.

2.5. In some instances even where the function has been not transferred to the local governments, certain changes are necessary in statutes like Survey and Boundaries Act, Land Acquisition Act, Land Assignment Act etc., to protect the interests of local governments so that they can exercise their functions more smoothly in a supportive environment.

2.6. A few Acts have become irrelevant in the changed context. They are, the Hackney Carriages Act, 1963 and the Live Stock Improvement Act,. 1961. These Acts have been recommended to be repealed.

2.7. As a new institutional system different from a statutory Board is needed to infuse institutional finance for local development in rural areas, the Rural Development Board Act also is to be repealed.

2.8. Due to the historical legacy of Kerala having been formed out of three distinct political entities viz., Travancore, Cochin and Malabar, statutes relating to Irrigation, Public Health, Town Planning etc., exist separately for one or more of these regions. Of course, efforts are under way to have uniform legislations for the whole State which suit the present context. In such cases a minimalist approach is taken and only a few amendments which recognise the identity of local governments and give them a role are suggested. Eg. Travancore-Cochin public Health Act, 1955 and the Madras Public Health Act, 1939.

2.9. Several Acts were amended along with the District Administraion Act 1979. These amendments have to be modified in consonance with the present situation. With District Government no longer possible in view of the Constitutional scheme of local government, some of the powers given to the erstwhile District Councils have to be modified, shared among various tiers of local government or even withdrawn.

2.10. In order to operationalise the accepted recommendations of the Committee on Decentralisation of Powers a new Town and Country Planning Act has to be brought into force. Similarly the Local Fund Audit Act needs to be radically restructured to provide for an

autonomous Audit Commission. Though not recommended before, in tune with the changed context and changed developmental approach to the problem, it is necessary to have a new Slum Improvement Act.

2.11. In sum, the objectives governing the proposed amendments which essentially create the necessary legal framework for the smooth functioning of the third tier of governance are the following:

i. Demarcating functional domains more clearly;

ii. Increasing autonomy,

iii. Harmonizing by removing contradictions;

iv. Updating to meet present requirements;

v. Facilitating a supportive legal framework for exercise of local government functions; and

vi. Creating new institutions and systems.

vii. Dropping anachronistic legislations.

2.12. With these amendments it is expected that the Local Governments would emerge as a well-defined tier in Government working more as a partner than as a subordinate functionary. It is also hoped that this legislative exercise would be a trend-setter for the future when the local government implications of most of the legislations would be significant and would have to be taken into account in the legislative process.

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3. Methodology adopted

The Committee on Decentralisation of Powers adopted the following methodology for finalising recommendations for amending various Acts.

a) Feed back was obtained on constraints faced by local governments in discharge of their functions, from elected heads as well as officials through elaborate discussions.

b) Acts related to Local Self-Government functions were listed out and studied.

c) The report of the First State Finance Commission (February 1996) was analysed to identify the Acts, which required amendments.

d) Shri V. Ramachandran Committee Report on District Councils (July 1988) was studied in detail and the suggestions regarding amendments to allied Acts adapted to suit the current context.

e) Based on the above, a concept paper on proposed amendments in respect of each Act was prepared and an interactive Workshop help with Task Forces constituted from departments implementing the various Acts. In this Workshop, the response of the departments was obtained and the practical implications got clarified.

f) All these were further discussed in the Committee and modifications were made and gaps filled up.

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4. Structure of the Report

4.1. The Report is presented in two Parts. Part A deals with proposed amendments to 45 Acts. In most of the cases actual amendments to be made are given for ease of adoption. In some cases however, only the recommendations are given and the amendments have to be got prepared by the Law Department.

4.2. In this Part of the Report the Acts are grouped as follows:

i. Acts to be amended to operationalise the recommendations of the State Finance Commission.

ii. Acts which were amended along with the District Administration Act and which need to be modified.

iii. Acts closely related to the functions transferred to local governments.

iv. Acts to facilitate the working of local governments.

v. Acts to be repealed.

4.3. Part B of this Report would give three new draft Bills, viz.,

1) Town and Country Planning Bill

2) Bill to amend the Kerala Local Fund Audit Act 1994 in order to set up Audit Commission.

3) Slum Improvement Bill.

4.4. In addition, Part B would have detailed comments of the Committee on Decentralisation of Powers on the proposed Public Health Bill and the Irrigation and Inland Waterways Bill which have already been prepared by the Government. These comments would clarify the provisions to be incorporated to realise the objective of decentralisation.

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5. Recommendations

5.1. The Committee on Decentralisation of Powers recommends amendment of the following Acts.

1. The Kerala Local Authorities Entertainment Tax Act, 1961

2. The Kerala Additional Tax on Entertainments and Surcharge on Show Tax Act, 1963

3. The Travancore-Cochin Public Health Act 1955

4. The Madras Public Health Act 1939

5. The Cattle Trespass Act, 1961

6. The Kerala Cinemas (Regulation) Act, 1958

7. The Kerala Places of Public Resort Act, 1963

8. The Kerala Parks, Play-fields and Open Spaces (Preservation and Regulation) Act, 1968

9. The Kerala Housing Board Act, 1971

10. The Kerala Land Development Act, 1964

11. The Kerala Plant Diseases and Pests Act, 1972

12. The Kerala Prevention and Control of Animal Diseases Act, 1967

13. The Travancore-Cochin Fisheries Act, 1950

14. The Indian Fisheries Act, 1897

15. The Kerala Marine Fishing Regulation Act, 1980

16. Kerala Lime Shells (Control) Act, 1957

17. The Kerala Khadi and Village Industries Board Act, 1957

18. The Kerala Education Act, 1958

19. The Kerala Public Libraries (Kerala Granthasala Sanghom) Act, 1989

20. The Kerala Water Supply and Sewerage Act, 1986

21. The Madras Irrigation Works (Repairs, Improvement and Construction) Act, 1943

22. The Madras Irrigation Tanks Act, 1949

23. The Madras Irrigation (Levy of Betterment Contribution) Act, 1955

24. The Madras Irrigation Works (Construction and Levy of Cess) Act, 1947

25. The Travancore- Cochin Irrigation Tanks (Preservation and Improvement) Act, 1952

26. The Travancore-Cochin Irrigation Act, 1956

27. The Kerala Irrigation Works (Execution by Joint Labour) Act, 1967

28. The Kerala Command Areas Development Act, 1986

29. The Travancore Public Canals and Public Ferries Act, 1096

30. The Madras Canals and Ferries Act, 1990

31. The Cochin Ferries and Tolls Act, 1082

32. The Indian Electricity Act, 1910

33. The Land Acquisition Act, 1894

34. The Kerala Land Assignment Act 1960

35. The Kerala Land Conservancy Act, 1957

36. The Kerala Land Relinquishment Act, 1958

37. The Kerala Survey and Boundaries Act, 1961

38. The Kerala Land Reforms Act, 1963

39. The Kerala Local Authorities Loans Act, 1963

40. The Kerala Motor Vehicles Taxation Act, 1976

41. The Kerala Tolls Act, 1976

42. The Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968

The details of the amendments proposed and their rationale are given in Appendix A.

5.2. The following Acts are recommended to be repealed.

1. The Kerala State Rural Development Board Act, 1971

2. The Kerala Hackney Carriages Act, 1963

3. The Kerala Live Stock Improvement Act, 1961

The details are given in Appendix B.

5.3. The amendment to the Acts is naturally a time consuming process. In order to speed up amendments to these Acts as well as to synchronize them to have the desired effect, a special procedure is suggested. Once the Council of Ministers approves the Report in principle, a Committee may be constituted under the Chief Secretary, with Law Secretary and other Secretaries and Heads of Departments concerned along with their Law Officers. This Committee could draw up the amendment proposals in about three to four weeks. These proposals could then be submitted again to the Council of Ministers for approval. All the amendments could be brought to the Legislative Assembly as part of a single Bill as was done in the case of the old District Administration Act.

5.4. Just as there is Provision now, whenever a new Bill is introduced in the Legislature, for placing before it the legal and financial implications, it is suggested that for all future legislations a memorandum of Local Government implications of the proposed legislation should also be placed in the Assembly. For this purpose, it is suggested that the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly may be amended suitably. This may be taken up with Hon'ble Speaker.

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APPENDIX - A

(Acts to be amended)

1. The Kerala Local Authorities Entertainment Tax Act, 1961

(20 of 1961)

Kerala is one of the few States where entertainment tax is a local government tax collected as per the provisions of the Local Authorities Entertainment Tax Act 1961. Entertainment tax is one of the important sources of revenue for the Grama Panchayats and Municipalities of the State. Entertainment includes any exhibition, performance, amusement, game, sport or race to which persons are admitted on payment, but does not include a magic performance. As per Section 3, the local authority may levy entertainment tax at a rate not less than 15% and not more than 30% on each price for admission to any entertainment. (As per the provisions in the Kerala Additional Entertainment Tax and Surcharge on Show Tax Act, 1963, an additional tax at the rate of 60% of the entertainment tax is also levied on each price for admission to any entertainment.) Section 6 specifies the manner of levy and payment of tax. In Section 6A, special rate of entertainment tax has been specified for dramatic and circus performances, instead of the tax on the price of admission and the rate is Rs.25 for each drama performance and Rs.15 for each circus performance to be paid by the proprietor. Sections 7 and 7A relate to the cases of exemptions from tax. Section 9 permits the officers of the local authorities, the Chairpersons of the Municipalities, the Presidents of the Panchayats, etc, to enter any place of entertainment while the entertainment is proceeding and any place ordinarily used as a place of entertainment with a view to seeing whether the provisions of this Act or any rules made thereunder are being complied with. Section 10 specifies penalties for non-payment of the tax.

The method of assessment is by stamping the admission tickets with a seal of the local body or adhesive stamp on payment of tax. The tax is collected in advance either at the time of stamping the tickets or its sale to the spectator. In the light of the statistics collected from the local bodies regarding the income derived by the local bodies from entertainment tax, the State Finance Commission (SFC) in its report (February 1996) has pointed out that "the low level of collection of tax from most Panchayats does not seem to arise from objective reasons and gives room for concern at the efficiency of tax administration at the panchayat level; there is evidence to suggest massive evasion of tax which cannot take place without collusion of the local bodies." (vide para 6.10 of the report). The SFC has recommended that the local bodies should have an option to follow either the current system or a modified system based upon gross collection capacity as the basis for taxation. Paras 6.12 and 6.13 of its report are extracted below:

"6.12. In order to put an end to the malpractice indulged in assessment and collection of Entertainment Tax and additional Entertainment Tax and also to simplify the existing procedural formalities, the previous Commissions had made several suggestions. Among them, the one that has been favoured by a majority of those who gave evidence before the SFC, is the recommendation to levy Entertainment Tax on the basis of seating capacity as done in Andhra Pradesh. The Naha Commission (1985) had pointed out that there was unanimity of opinion among all those who has tendered evidence before it that levying of tax on gross collection capacity per show will prevent evasion to a great extent besides securing for Panchayats an assured income. They recommended the introduction of such a system and that even a draft Bill had been introduced in the Legislature. The Mohandas Commission (1993) has also recommended that Entertainment Tax "may be levied at a fixed rate not less than 20% of gross collection per show based on total seating capacity of each theatre". This will help eliminate almost all possible irregularities now practiced except admitting people in excess of the approved seating capacity, which can be minimied by frequent checks and fines.

6.13. According to available indications evasion takes place on a widespread scale in Panchayats even though other local bodies may not also be free from it. Even among Panchayats some areas may be exhibiting this tendency more than others. At this stage, State Finance Commission would not like to recommend a wholesale shift of gross collection capacity as the basis for entertainment Tax for all cinema houses in the State. The objective of any reform is to discourage tax evasion and thereby to increase the income of the local bodies. Where a local body is deriving a reasonable level of income from cinema houses by way of Entertainment Tax it is better that they are left with the existing system rather than compelling them to move to a new system. What is required under this circumstance is an option for local bodies to follow either the current system or a modified system based upon gross collection capacity as the basis for taxation. Even under the current legal provisions

there is provision for the cinema house owners to compound the tax payable, but hardly anyone is making use of this provision. If an option without any further conditions is given it may encounter the same response and therefore the decision whether to change over to a system of collecting entertainment tax on the basis of gross collectiopn or not should not be left to the exhibitor or to the Panchayat. The objective criteria should be the actual entertainment Tax that the exhibitor has been paying during the immediately preceding year and if the tax paid, considered along with the tax rate, the total seating capacity and prices of tickets is consistent with an occupation ratio of less than 25% of the gross seating capacity, then it should be incumbent upon the local body to fix the tax payable on the basis of gross seating capacity at a minimum of 25% of the seating capacity. The local body should be free to fix the rate above the minimum. The entertainment, tax remitted during the immediately preceding year should be the criterion and local bodies should fix the tax on the basis of gross seating capacity within a period of two months from the date stipulated by Government after making necessary changes in the legal provisions.

The SFC has also recommended the merger of the Entertainment Tax with the additional tax on entertainment leviable under the Kerala Additional Tax on Entertainments and Surcharge on Show Taw Act, 1963. The Committee on Decentralisation of Powers has recommended separately that the said Act may be repealed and the rate of Entertainment Tax enhanced suitably.

On the Kerala Local Authorities Entertainment Tax Act, 1961 the Committee on Decentralisation of Powers makes following suggestions:-

1) In Section 2 (6) the term 'Local authority ' may be redefined as a Village Panchayat constituted under Section 4 of the Kerala Panchayat Raj Act, 1994 or a municipality constituted under Section 4 of the Kerala Municipality Act, 1994. The word "Panchayat" wherever it occurs may be substituted by the words "Village Panchayat".

2) Section 3 may be amended to the effect that the levy of tax shall be at a rate not less than 24 percent and not more than 48 percent on each price for admission to any entertainment. A proviso may be inserted so that the rate thus fixed will not be lower than the sum of the entertainment tax and additional tax on entertainment prevailing in the area prior to this amendment.

3) Necessary provision may be inserted for levy of tax on the basis of seating capacity, as recommended by the SFC.

4) In Section 6, the rate of entertainment tax for each dramatic performance and circus performance may be revised as Rs.100/- and Rs.60/- respectively.

5) Sub Section (2) of Section 7 says that any dispute as to whether an entertainment is of the character referred to in any of the clauses of sub section (1), (i.e. categories of entertainments eligible for exemption form the levy of entertainment tax) shall be referred to the District Collector whose decision shall be final This sub section may be deleted.

6) In Section 9, in sub-section (1) for the words "Chairman" and "President" the words "Chairperson of the Municipality" and "President of the Village Panchayat" may be substituted respectively. Again for the words "Director of Municipal Administration" and "Director of Panchayats" the words "officers authorzed by the Government" may be substituted. In sub section (2), the rate of fine may be enhanced from Rs.200/- to Rs.2000/-

7) In sub section (1) of Section 10, after the words "liable to pay any tax" the words "including escaped tax" may be added. The rate of fine may be enhanced from Rs.200/- to Rs.2000/-. Under this sub section the following explanation may also be added:

"The term 'escaped tax' shall mean and include any amount of tax detected or revealed to have been not paid or escaped assessment on a verification by the licensing authority or an

authorized officer and calculated or assessed with details collected during his inspection or enquiry. Such assessment shall be presumed to be correct unless the assessee produces sufficient proof to rebut the calculation of the escaped tax".

8) In sub section (3) of Section 12 relating to the approval of bye-laws, for the words "Director or such other officer not below the rank of Deputy Director as may be authorized by him", the words "the Government or any officer authorized by the Government" may be substituted, and the words "provided that in the case of the bye laws made by a municipal corporation the approval shall be that of the Government" may be deleted. The explanation given for the terms "Director" and "Deputy Director" under this sub-section may also be deleted. With this deletion the amendment brough under the Thirty-first Schedule of the Kerala District Administration Act, 1979 will be deleted.

2. The Kerala Additional Tax on Entertainments and Surcharge on Show Tax Act, 1963 (22 of 1963)

This Act was brought into force in 1963 in the wake of the Chinese aggression on India in 1962 which necessitated mobilization of additional funds for the Government. Therefore while the entertainment tax and show tax was within the domain of the local bodies the additional tax on entertainments and the surcharge on show tax had to be collected by the local bodies and passed on the State Governments after retaining two percent of the tax collected to defray the collection expenses. However in 1975 through an Amendment Act (20 of 1975) the entire tax was allowed to be collected by the local bodies.

As per Section 2 of this Act, the rate of additional tax on entertainment is 60% of the entertainment tax leviable under the Kerala Local Authorities Entertainment Tax Act, 1963. The rate of entertainment tax is an amount fixed by the local body between the minimum of 15% and maximum of 30% of the price of admission, i.e. cost of ticket (vide Section 3 of Kerala Local Authorities Entertainment Tax act, 1961). Thus the entertainment tax plus additional entertainment tax is between 24% and 48% of the price of admission.

The show tax is levied under Section 200 (4) of the Kerala Panchayat Raj Act, 1994 read with the Kerala Panchayat Raj (Levy of Show Tax) Rules 1995 in Village Panchayat areas, and under Section 269 of the Kerala Municipality Act 1994 in Municipal areas. The rate of tax is Rs.2 per show for regular cinematography exhibitions in licensed theatres, Rs.10 per show for other cinematography exhibitions, Rs.5 per show for regular exhibitions other than cinemas, and Rs.30 per show for other shows. As per Section 3 of the Kerala Additional Tax on Entertainment and Surcharge on Show Tax Act, 1963, the surcharge of show tax is 25% of the show tax leviable under the above mentioned Panchayat/Municipal laws.

Since the additional tax on entertainments and the surcharge on show tax are levied by the local bodies and credited to their own account, as in the case of the entertainment tax and show tax, the Committee on Decentralisation of Powers is of the view that there in on need to retain the Kerala Additional Tax on Entertainment and Surcharge on Show Tax Act 1963 and that these additional levy of taxes can be merged with the principal taxes. It is enough that the rates of the original taxes are enhanced accordingly. The first StateFinance Commission also has recommended such a merger. The recommendations in paras 6.14 and 6.17 of its Report (February 1996) are extracted below:

"6.14. The Additional Entertainment Tax as originally conceived and implemented accrued to the State Government. Subsequently receipts from Additional Entertainment Tax also came to be made over for the exclusive use of Local Bodies. As the proceeds from both Entertainment Tax and Additional Entertainment Tax now go to Local Bodies, the need for separate collection, accounting and appropriation no longer exist. Recognising this, the Naha Commission (1985) had recommended the merger of Entertainment Tax and additional Entertainment Tax into a single item suitably refixing the rate of Entertainment Tax. Implementation of this recommendation will help in simplification of existing procedures and the State Finance Commission reiterates the above recommendation."

6.17. Similar to Additional Entertainment Tax, Proceeds from "Surcharge on Show Tax" too was originally intended to augment State Government's resource, but from 1-8-1975 the entire proceeds go to Local Bodies along with Additional Entertainment Tax. So now it is irrelevant to continue the practice of levying, collecting and accounting Show Tax and Surcharge on Show Tax separately. With respect to this Tax, State Finance Commission makes the following recommendations:-

i. The distinction between Show Tax and Surcharge on Show Tax may be abolished and both merged into one.

ii. The regime of fixed rates may be replaced by one where the present rates are fixed as the minimum with freedom given to Local Bodies to fix rates above them at intervals of not less than two year."

For the merger of taxes on entertainment, the Committee on Decentralisation of Powers has recommended amendments to the Kerala Local Authorities Entertainment Tax Act, 1961, separately. For the merger of the show tax and its surcharge, Section 269 of the Kerala Municipality Act and the Panchayat Rules need to be amended.

The Committee on Decentralisation of Powers recommends that the Kerala additional Tax on Entertainments and Surcharge on Show Tax Act, 1963 may be repealed.

3. The Travancore-Cochin Public Health Act 1955 (Act XVI of 1955);

4. The Madras Public Health Act 1939 (Madras Act III of 1939)

As per the Kerala Panchayat Raj Act, 1994 (Third, Fourand Fifth Schedules) and the Kerala Municipality Act, 1994 (First Schedule) public health is a function which has been develoved to local governments, particularly the Village Panchayats and Municipalities. Some of the important functions related to public health listed in the Schedules mentioned above are given below:

(i) Collection and disposal disposal of solid waste and control of liquid waste disposal;

(ii) Sanitation and maintenance of environmental hygiene;

(iii) Management of markets;

(iv) Vector control;

(v) Regulation of slaughtering of animals and sale of meat, fish and other perishable food items;

(vi) Regulation of eating establishments;

(vii) Prevention of food adulteration;

(viii) Immunization and other preventive measures;

(ix) Opening and maintenance of burial and burning grounds;

(x) Licensing of dangerous and offensive trades;

(xi) Control of fairs and festivals;

(xii) Providing of toilet facilities in public places;

(xiii) Licensing of pet dogs and destroying stray dogs;

(xiv) Management of dispensaries, primary health centers and sub-centres, community health centers, taluk hospitals and district hospitals;

(xv) Management of child welfare centers and maternity homes.

Government have already transferred the management of Primary Health Centres and Dispensaries to the Village Panchayats, the Community Health Centres (CHCs) and Taluk Hospitals to the Block Panchayats and Municipalities as the case may be. A decision has recently been taken to transfer the District Hospitals to the District Panchayats. Thus barring a few special purpose hospitals and the Medical Colleges, the entire health care system in Allopathy, Ayurveda and Homeopathy have been rought under the control of local governments.

In Kerala there are two Acts governing public health - The Travancore-Cochin Public Health Act, 1955 covering the erstwhile Travancore-Cochin areas and the Madras Public Health Act, 1939 covering the erstwhile Madras Presidency areas. After independence major policy changes have been brought about in the sphere of public health. There have been rapid advancements in technology applications and certain basic shifts in perception of governmental responsibility in public health. With the local governments being brought to the center of public health responsibility there is undoubtedly a need for a unified Public Health Act. The Committee or Decentralisation of Powers recommends that a unified Act be brought about which clearly defines the role of various government institutions, the level of local government control over them, the duties of medical officers, the responsibility of various health staff, issues of preventive health care, sanitation and hygiene including management of waste and control of pollution. Already a Kerala Public Health Bill has been drafted. The Committee recommends that this Bill can be used as a base an improvements made in accordance with the changed context. An expert committee may look into the Bill and suggest modifications required.

As the enactment of a fundamental law like the Public Health Act would take some time, it is suggested that immediate amendments may be brought about in the two Acts governing public health which are now in vogue.

1. The Travancore-CochinPublic Health Act, 1955.

The amendments suggested to this Act are listed below:

1) In Section 2 of the Travancore-Cochin Public Health Act, 1955 the definitions of the terms 'District Councils', 'local authority', 'executive officer', 'executive authority' may be amended suitably.

2) In Section 3, for the words 'Director of Public Health' the words 'Director of Health Services' may be substituted. Consequential changes may also be made.

3) In sub-section (1) of section 7, the words 'urban' and 'may and if so required by the Government' may be deleted.

4) Sub-section (2) of section 7 may be omitted and sub-section (1) of the said section may be renumbered as section 7. After Section 7 so renumbered, the following proviso may be added namely:-

"Provided that, where in the area of a Village Panchayat or Municipality there is no Health Officer posted the Government may nominate a Medical Officer serving in any of the health

institutions under the control of the Village Panchayat or Municipality, as the case may be to function as the Health Officer Ex-officio of that Village Panchayat or Municipality."

5) In Chapter II following Section may also be added after Section 14, to provide for control of the local authority over the health institutions transferred to them.

"14A Local Authority to manage health institutions:- (1) The local authority shall manage health institutions transferred to it by Government.

(2) The government may issue directions to the local authority on matters relating to health policy, planning for health facilities, standards to be maintained, mode of administration and it shall be the duty of the local authority to carry them out."

6) Chapter III deals with water supply. Section 15 requires the local authority to provide or arrange to provide water supply to the inhabitants of the area. The Kerala Panchayat Raj Act, 1994 and Kerala Municipality Act, 1994 make the supply of drinking water, the function of Village Panchayat and Muncipality in accordance with the Constitution Amendments. The Committee has elsewhere suggested amendments to the Kerala Water Supply and Sewerage Act 1986 to provide for a clear role to local governments in providing drinking water. However, Chapter III may be retained as such.

In the light of the recommendation for a unified Public Health Act there is no need to amend other provisions at present.

2. The Madras Public Health Act, 1939.

The Travancore-Cochin Public Health Act 1955 has been modeled on the Madras Public Health Act, 1939. Practically the two Acts are almost identical. The amendments suggested to this Act are listed below.

1. In section 3, the definition of the term "District Control" may be deleted and the terms "local authority", "executive authority" and "executive officer" may be redefined.

2. In section 4 and in the subsequent section, the words "Director of Public Health wherever they occur may be substituted by the words "Director of Health Services".

3. In sub section (1) of section 9 the words "if so required by the Government" may be deleted.

4. Sub section (2) of section 9 may be substituted by the following sub section:

"(2) Where in the area of a Village Panchayat or Municipality there is no health officer posted, the Government may nominate a Medical Officer serving in any health institution under the control of the village panchayat on municipality, as the case may be, to function as the Health Officer Ex-official of that village panchayat or municipality."

5. After section 16 the following new section may be inserted

"16A Local Authority to manage health institutions:- (1) The local authority shall manage health institutions transferred to it by Government.

(2) The government may issue directions to the local authority on matter relating to health policy, planning for health facilities, standards to be maintained, mode of administration and it shall be the duty of the local authority to carry them out."

5. The Cattle Trespass Act, 1961 (26 of 1961)

Though this is an Act which is gradually becoming obsolescent with increase urbanization, it still has some relevance for preventive as well as punitive action be Village Panchayats and Municipalities particularly in agricultural areas. This is an Act which is administered by the Village Panchayats and Municipalities. It is relevant to note that both the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 entrust management of cattle pounds as a mandatory function of the Village Panchayats and Municipalities.

With the empowerment of local governments the Committee on Decentralisation Powers feels that more autonomy should be given to the Village Panchayats and Municipalities while operationalising the provisions of the Cattle Trespass Act 1961. With this objective, the control of the Director of Panchayats and Director Municipal Administration needs to be removed. There is no need for the Director determine the location of a pound and its area. This can be done by the Village Panchayat or Municipality concerned. However, it may not be necessary for Village Panchayats and Municipalities to have cattle pounds. There can be a provision to allow a local government to use the facilities of a pound in a neighbouring local government.

As per existing provisions the seized cattle need to be sent to the pound only with 24 hours. This long interval would mean starvation of the cattle for a long time resulting in cruelty to the animals. Therefore this period could be reduced to hours.

In the light of these remarks, the amendments suggested are enumerated below:

1) In Section 2,

(i) the term 'Director' defined in sub-section (2) may be deleted.

(ii) The term 'local authority', may be redefined as follows:

" 'Local authority' means a Village Panchayat constituted under Section 4 of the Kerala Panchayat Raj, 1994 or a Municipality constituted under Section 4 of the Kerala Municipality Act, 1994."

2) In Section 3,

(i) sub-section (1) may be substituted with the following:-

"(1) Pounds may be established at such places in each Village Panchayat or Municipality if the local authority so decides."

(ii) sub-section (2) may be substituted by the following:-

"(2) Any pound established in one local authority may be used by the adjacent local authority subject to the conditions as may be mutually agreed by the local authorities concerned."

3) In Section 5,

(i) In sub-section (3) after the word 'shall' the words 'be as prescribed' may be added.

(ii) Clauses (a) and (b) may be omitted.

(iii) Sub-section (4) may be omitted.

4) In Section 9, in sub-section (1) for the words 'twenty-four' the word 'twelve' may be substituted.

5) In Section 10, the words 'and such other officers as the Director may empower in this behalf may be omitted.

6) In Section 11,

(i) the word "Director" may be substituted by the words "local authority" wherever it occurs;

(ii) in sub-section (3) the words "or where there is no municipal corporation, municipal council or panchayat, in such manner as the Government may, from time to time direct" may be deleted.

7) In Section 13,

(i) insub-section (1) the words "or to such officer as the Director specifies in thisbehalf" may be deleted.

(ii) in sub-section (2) the words "or the other officer"and "by beat of drum" may be omitted.

(iii) In sub-section (3) for the word "Director" may be substituted with the words "local authority" and the words "or the said officer or any other officer subordinate to him deputed for that purpose" may be omitted.

(iv) The proviso to sub-section (3) may be omitted.

8) In Section 15, in sub-section (1) the words "or by such officers as the case may be", may be omitted.

9) In Section 17. in sub-section (1) the words "or where there is no municipal corporation, municipal council or panchayat, in such manner, as the Government may from time to time direct" may be omitted.

10) In Section 18, in sub-section (2) the word "the Director or" and the words "or the magistrate.....such order" may be deleted.

11) In Section 19, the words "the District Magistrate or any Magistrate authorized to receive and try charges without refernce by the Magistrate of the district" may be substituted by the words "local authority".

12) In Section 20, in sub-sections (1) and (2) word "magistrate" may be substituted by the words "Secretary of the local authority".

13) In Section 21, in sub-sections (1) and (2) the word "Magistrate" may be substituted by the words "Secretary of the local authority".

14) In Section 22, the words "in the manner .... Code of Criminal Procedure 1898" may be substituted by the words "as if it were arrears of tax due on land".

15) In Section 31 may be omitted.

6. The Kerala Cinemas (Regulation) Act, 1958 (32 of 1958)

The Kerala Cinemas (Regulation) Act, 1958 was brought into force to regulate exhibitions of cinemas in the State. Basically the local bodies are the agencies for most of the regulatory functions. As per Section 4, the the authority having power to grant a licence under this Act is the executive authority of the local authority within whose jurisdiction the place in respect of

which the licence is to be granted is situate. As per the proviso under Section 4, the Government may, by notification, constitute for the whole or any part of the State such other authority as they may specify in the notification to be the licensing authority. As per Section 6 any person who intends (a) to use any place for the exhibition of cinematograph films or (b) to use any site for constructing a building thereon for the exhibition of cinematograph films or (c) to construct any building for such exhibition or (d) to install any machinery in any place where cinematograph exhibitions are proposed to be given, shall make an application in writing to the licensing authority for permission therefore. The licensing authority shall, after consulting such authority or officer as may be prescribed and with theprevious concurrence of the local authority concerned, grant or refuse the permission applied for. As per sub-section (7) of Section 5, any person aggrieved by the decision or order taken or passed by the licensing authority under this Act may, within such time as may be prescribed, appeal - (i) where the licensing authority is the executive authority of a local authority and such executive authority has taken the decision or passed the order without the previous concurrence of that local authority, to that local authority and (ii) in any other case, to such officer or authority the Government may, by notification specify in this behalf. (The Revenue Divisional Officers have been notified as appellate authorities under item (ii) above). As per sub section (8) any officer or authority appointed by the Government in this behalf may either of his or its own motion or otherwise call for the records of any case in which an order has been passed in appeal under sub-section (7) and pass such order thereon as he or it thinks fit. (The District Collectors have been appointed as the revisional authorities.) Section 9 empowers the Government and the District Collectors to suspend the exhibition of any film if they are of the opinion that the film which is being or is about to be publicly exhibited is likely to cause breach of peace or any other sufficient reason. In the context of the enactment on District Councils the District Collector has been defined as the Secretary of the District Council - vide section 2 (1A). Section 11 gives powers to the licensing authority and the District Collector, to revoke the licence where the licensee has been convicted of an offence under this Act or the Cinematograph Act or the Kerala Local Authorities Entertainment Tax Act.

The Committee on Decentralisation of Powers makes the following suggestions with regard to Kerala Cinemas (Regulation) Act:-

i. The definition clause relating to the District Collector as Secretary of District Council may be deleted. The local authority may be defined as a Village Panchayat constituted under Section 4 of the Kerala Panchayat Raj Act or a Municipality constituted under Section 4 of the Kerala Municipality Act.

ii. In sub section (7) of section 5 the local authority may be specified as the appellate authority in respect of the decision taken or order passed by the licensing authority.

iii. In sub-section (2) of Section 6, the words "and with the previous concurrence of the local authority concerned" may be deleted, since the local authority is made the appellate authority.

iv. Section 9, which gives powers to the Government and the District Collectors to revoke the licence on the ground of breach of peace and sufficient other grounds, may be retained.

v. The rates of fine mentioned in Section 10 for violation of the provisions in the Act and the rules may be enhanced- say ten times.

vi. In sub-section (2) of Section 11, the powers given to the District Collector to revoke the licence may be withdrawn and given to the local authority.

vii. The Panchayat and Municipal enactments mentioned in the Schedule of the Act, read with section 6, may be revised as the Kerala Panchayat Raj Act 1994 and the Kerala Municipality Act 1994.

7. The Kerala Places of Public Resort Act, 1963 (40 of 1963)

This is an Act which is implemented by the Village Panchayats and Municipalities. The main purpose of this legislation is to license places of public resort with the intention of ensuring public safety, public health and hygiene.

Places of public resort mean any place, enclosure, building, lent, booth or other erection whether permanent permanent or temporary, where music, singing, dancing or any diversion or game or the means of carrying on the same is provided, and to which public are admitted either on payment of money or with the intention that money may be collected from those admitted otherwise than for bonafide charitable or religious purposes, and shall include a race course, circus, theatre, music hall, billiard room, bagatelle room, gymnasium and fencing school, except the places licensed under the Cinema Regulations Act for cinematograph exhibitions. A licence is required for using any enclosed place or building, whether permanent or temporary, having an area of 50 sq. metres or more, for public resort or entertainment. The Committee on Decentralisation of Powers recommends the following amendments which are required to make this Act harmonious with the Acts governing local governments in the State.

1) Section 5 may be revised as "such application shall be made to the Secretary of the Municipality or the Village Panchayat as the case may be" (A Municipality includes a Municipal Corporation).

2) Section 11 provides for appeal to the Council of the Municipality or the Panchayat Committee against the orders of the Secretary. Sub Section (3) may be modified as "the appeal shall lie to the Council of the Municipality or, as the case may be, the Panchaytat concerned.

3) Section 13 gives revisionary powers to Government suo moto or on application. Since this is against the spirit of decentralization this power may be conferred on the Appellate Tribunals to be constituted under Section 271 S of the Kerala Panchayat Raj Act 1994.

4) The rate of fine mentioned as Rs.500 in Section 16 may be enhanced to Rs.5000.

5) In Section 16 a new sub section (5) may be inserted to the effect that the licensing authority may, subject to such restrictions and control as may be prescribed, compound any offence punishable under this Act, or any rules or bye laws made thereunder which may, by rules, be declared compoundable

8. The Kerala Parks, Play-fields and Open Spaces (Preservation and Regulation) Act, 1968 (2 of 1969)

Preservation of parks, play fields and open places constitute an important aspect of spatial planning in the interest of healthy and aesthetic town and country planning. It is essential to protect existing open spaces. This duty is a natural function of the local governments at the cutting edge viz., Municipalities and Village Panchayats. The Kerala Parks, Play-fields and Open spaces (Preservation and Regulation) Act, 1968 is only limited application. In the context of the growing tendency to gobble up open spaces for various development purposes, it is essential to make the Act applicable automatically to all the urban local bodies and village panchayats. The power of the Government to change local body decisions needs to be done away with in the context of decentralization. Accordingly the Committee on Decentralisation of Powers suggests the following amendments to the Act.

(1) Sub Section (4) of Section 1 may be modified to the effect that the Act shall apply to every Municipality constituted under Section 4 of the Kerala Municipality Act, 1994, and every Village Panchayat constituted under Section 4 of the Kerala Panchayat Raj Act, 1994.

(2) Sub Section (5) of Section 1 may be deleted.

(3) In clause (a) of Section 2 of this Act the term "executive authority" is defined. In the case of a city or a municipality, it means the Commissioner of the Corporation or Municipality

concerned and in the case of Panchayat or Township, it means the 'Executive Officer' of the Panchayat or of the township committee concerned. The definition may be revised as "executive authority means the Secretary of the Municipality or the Village Panchayat as the case may be".

(4) 'Local authority' may be defined as the "Village Panchayat or the Municipality as the case may be".

(5) Section 3 of the Act deals with the preparation and publication of provisional lists of parks, play fields and open spaces by the Secretary of the Municipality/Village Panchayat, with the approval of the local authority, calling for objections and suggestions from the public. As per Section 4, the local authority may, after considering the objections and suggestions, approve the list with or without modifications and shall publish the same in the prescribed manner. Sub Section (4) provides for an appeal against the list approved by the Panchayat, to the Government. This appeal may lie to the Appellate Tribunal constituted under Section 271 S of the Kerala Panchayat Raj Act, 1994. Sub-sections (4), (5) and (6) may be amended accordingly.

(6) Section 5 empowers the Government to add to, vary or revoke a list published under Section 4, either suo moto or at the instance of the local authority concerned or of any person interested. This power of the Government may be limited to adding to the list after consulting the local authority. At the same time the local authority may be empowered to add to, vary or revoke a listpublished under Section 4 either suo moto or on the request of any person interested, after following the procedure mentioned in section 5. Sub Sections (1) to (4) may be modified accordingly.

(7) Section 13 of the Act deals with "the control of Government". The provision is analogous to the provisions in Sections 188 and 194 the Kerala Panchayat Raj Act, 1994 and Sections 56 and 61 of the Kerala Municipalities Act, 1994, about which mention may be made in sub-section (2) of Section 13 instead of references to the repealed Panchayat/Municipal enactments. The Section heading "control of Government" may be revised as "Role of the Government".

(8) In the context of the District Councils, new Section 13A was introduced in the Act which states that the powers and functions of the Government except those under Section 14 (Rule making powers) shall be exercised by the District Council, subject to such rules as may be prescribed. This Section is not relevant now since the district councils do not exist. Hence Section 13 A may be deleted.

9. The Kerala Housing Board Act, 1971 (19 of 1971)

The 73rd Amendment to the Constitution entrusts rural housing to Panchayat Raj Institutions as per the Eleventh Schedule of the Constitution. Similarly the Seventy-fourth Amendment entrusts spatial planning and slum improvement and upgradation, to the Municipalities. It implies that housing is an activity to be taken up by the urban local bodies.

These Constitutional provisions been reflected in the laws relating to Panchayats and Municipalities in Kerala and during the last two years, housing has assumed special prority for the local governments particularly in their effort to provide basic facilities to families below poverty line. In this context, it is necessary to harmonize the functioning of the Kerala State Housing Board with those of the local governments in the sphere of housing so that mutual support and synergy can be generated and the task of providing shelter to the poor achieved at the earliest. The Committee feels that housing schemes for families below poverty line should be left to the local governments and the Housing Board should focus on providing loans to non-poor households. With this objective, the amendments are suggested to the Kerala Housing Board Act 1971 as given below:

1) In Section 2, in the definition a new clause may be added after clause (9), namely,-

"(9A) 'local authority' means a panchayat at village, block or district level, as the case may be, and includes a municipality.

Explanation: The terms 'panchayat' and 'municipality' shall have the meaning assigned to them in the Kerlal Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 respectively".

(i) in clause (c) after the word "Tribes' the words 'and of whom two shall be from among the Presidents or Chairpersons of the local authorities' may be added.

(ii) After clause (c) the following proviso may be added:

"Provided that the term of office of a member nominated from among the Presidents or Chairpersons of the local authorities shall be co-terminus with the term of his office as such President or Chairperson."

3) In Section 39, after sub-section (2) a new sub-section may be added, namely:-

"(3) At the instance of the local authority and with the approval of the Government, the Board shall frame and execute such schemes for poramboke dwellers and homeless poor as may be proposed by any local authority within a period of one year from the date of approval of such scheme by Government. The expenses for execution of the scheme shall be met from a separate fund viz., 'Relief Fund' to be administered by the Board to which interested persons, institutions, Government owned companies and corporations, the local authorities and the Board may contribute periodically."

4) In Section 41, after sub-section (2) the following sub section may be added, namely:-

"(3) In respect of the loans and advances to private individuals having governmental subsidy, the application forms shall be supplied by the Board to the local authority concerned which shall distribute the same among the deserving persons who have been identified as per provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994."

5) In Section 45, in sub-section (1) in between the words "frame" and "an" the following may be inserted, namely:-

" with the previous approval of the local authority concerned"

6) In Section 46, in clause (d) of sub-section (1) at the end, the words "in consultation with the local authority concerned" may be added.

7) In Section 53, for the words "executive officer" the words "Secretary of the local authority" may be substituted.

8) In Section 60, Sub-section (1) may be substituted by the following namely:- "(1) Where a street scheme or any other scheme has the approval of the local authority concerned, such of the provisions of the Kerala Municipality Act, 1994 (20 of 1994) and the Kerala Panchayat Raj Act, 1994 (13 of 1994), as relate to maintenance of repairs of public streets, closure of public streets or parts thereof, diverting or turning public streets or parts thereof and in disposal of the land which is no longer required when any public street is permanently closed, shall not apply to any street vested in the Board under such scheme".

9) After Section 156, a new Section may be added viz.,

"156 A. Implementation of Housing Schemes for Low Income Group:-

(1) Any scheme intended to benefit the low income group in the rural or urban area may be planned by the Board in association with the local authority concerned, and as far as possible, shall be executed by such local authority with the technical advice of the Board if so required.

(2) The local authority may plan and implement schemes for rural or urban housing for low income groups in which case, the Board shall render technical advice in the manner laid down by the Government.

(3) Where the local authority proposes promotes or implements housing schemes in the local area in consultation with Board, the Board may make available funds for the implementation of scheme on the security of the plots and the proposed construction and at the rate of interest agreed to by the local authority."

10. The Kerala Land Development Act, 1964 (17 of 1964)

The Kerala Land Development Act, 1964 is one of the important legislations in the field of development. It envisages a planned execution of land development schemes to protect soil resources and to reclaim waste land. The Act empowers the Government to constitute the Land Development Board with the Minister for Agriculture as Chairman, Agricultural Production Commissioner as Vice Chairman, the Director of Agriculture (Soil Conservation) as Secretary and other officials and four non-officials as members. The Act also provides for the constitution of the District Soil Conservation Officer as Secretary and two other officials and four non-officials as members. The functions of the State Land Development Board and the District Committees have been specified in the Act. The District Committee shall, if directed by the Government or the Board, constitute Padasekharam Committees not exceeding 21 members for each Padasekharam who are to be elected from among the owners of the Padasekharam. The District Committee may prepare draft schemes, in consultation with the Padasekharam Committee, for control and prevention of soil erosion; preservation and improvement of soil; reclamation of waste, saline or water logged areas; improvement in the methods of cultivation and extension of cultivation; construction of earth and masonry works in fields, gullies and ravines including construction of catch water drains and control bunding wherever necessary; construction of permanent bunds in water-logged lands for increasing agricultural production; regulation or prohibition of cutting down or destroying of trees and other growths, setting on fire of trees, timber, forest produce or other wild growths; planting or growing trees, shrubs or grasses for the purpose of afforesting uncultivable land or for providing shelter belts against wind or sand or for any other purpose; control and maintenance of tree growth; improvement of water supply; consolidation of the holdings of cultivators in an area for the better use of land; training canals, streams and rivers to prevent bank erosion; providing pump sets and platforms for the erection of pump sets for dewatering process; providing channels for watering and dewatering purposes and such other matters not inconsistent with the objects of the Act. The District Committee is to publish the draft schemes together with connected maps and plan inviting objections from the public and issue notices in this regard to the owners of the land affected by the scheme. The draft scheme is to be got approved by the Board with or without modifications. Wherever necessary the Board shall obtain orders of the Government also. On approval of the scheme, the District Committee shall appoint an officer not below the rank of the District Soil Conservation Officer or the Padasekharam Committee as the agents of the District Committee to execute the scheme. The cost of execution of the scheme is to be paid by the owners of the land included in the scheme. Owners of the land included in the scheme have been given the freedom to carry out the work by themselves under the technical guidance provided free by the Board.

Development of land and water resources, particularly as integrated watershed development programmes is now a local government responsibility. From the long term point of view of enhancing productivity in the agricultural sector and from the larger point of view of eco restoration a concerted attempt at preserving and upgrading the quality of land and water resources is essential. In recognition of the role of local governments in exploiting production possibilities, Government have stipulated that at least 40% of the Plan Grant-in-aid (25% in the case of urban local bodies) should be earmarked for the productive sector, bulk of which is covered by the primary sector. Recognising the primacy of local governments in land

(including water) development the Committee on Decentralisation of Powers suggests the following amendments to the Kerala Land Development Act.

1. The amendments made in the context of the District Councils as the Thirtieth Schedule of the Kerala District Administration Act 1979 are no longer relevant and they may be deleted.

2. The District Collector may be defined as the Member Secretary of the District Planning Committee constituted under the Kerala Municipality Act, 1994.

3. Watershed may be defined as an item in Section 2.

4. The Land Development Board may be constituted consisting of the following persons:

(i) Minister for Agriculture as Chairman.

(ii) Minister for Local Self Government as Co-Chairman.

(iii) Agriculture Production Commissioner as Member Secretary.

(iv) Secretary, Local Self Government.

(v) Secretary, Irrigation.

(vi) State Land Use Commissioner.

(vii)Chief Engineer in-charge of Irrigation.

(viii) Chief Conservator of Forests.

(ix) Director of Agriculture.

(x) Vice Chancellor of Kerala Agriculture University.

(xi) Director, Centre for Water Resources Development and Management, Kozhikode.

(xii)Director, Centre for Earth Science Studies, Trivandrum.

(xiii) Director, Kerala Forest Research Institute, Peechi.

(xiv) One nominee of Indian Council of Agriculture Research. (xv)

(xv) Representative of National Remote Sensing Agency.

(2) The function of the Board would be to advise Government on the strategies to be followed for land and water conservation as well as eco-restoration. It may advise Government on the priority areas, technology options, research needs and provide feed back on works taken up.

(3) Based on the advice of the Board, Government may direct the local authority to take up schemes for watershed management in the priority areas.

(4) At the district level, there is no need for a District Land Development Committee; instead the District Planning Committee may perform the functions envisaged for the District Land Development Committee. The District Planning Committee may be supported by the District Agriculture Officer, District Soil Conservation Officer, Executive Engineer in-charge of irrigation

in the District and the Divisional Forest Officer having jurisdiction in the District. This Committee can co-ordinate preparation of schemes and issue approvals. The DPC may be authorized to constitute Padasekharam Committees and Watershed Committees in the mannerprescribed.

(5) There is no need for Section 12. The schemes can be sanctioned by the District Planning Committees. A provision may be inserted in the section to the effect that the scheme approved by the District Planning Committee for implementation is registered in the Sub Registry Officer concerned in the manner prescribed so that the liability of the land owners with regards to the execution of the schemes charged on the land involved in the schemes is made clear.

(6) In sub Section (1) of Section 14 the word "Government" may be substituted with the words "District Planning Committee", since the works will be approved by the Committee and not by the Government Sub Sections (2) (3) and (4) which permits the land owners to carry out the works under the technical guidance of the Board may be deleted. Sub section (5) the word "Board" may be deleted.

(7) In Section 15, the word "Government" may be substituted by the word "District Planning Committee."

(8) In Sections 22 and 23 the word "Government" may be substituted by the words "District Planning Committee".

(9) Various sections having reference to Board and Government need to suitably modified in the light of what has been recommened above.

11. The Kerala Plant Diseases and Pests Act, 1972 (25 of 1972)

With the coming into force of the Kerala Panchayat Raj Act, 1994 and Kerala Municipality Act, 1994, almost all the activities related to the agriculture sector at the field level have been transferred to the Panchayats and Municipality Naturally this would include prevention of plant diseases and avoidance of per. Therefore there is need to amend the Kerala Plant Diseases and Pests Act, 1972 to give the local governments their legitimate legal role.

The Kerala Plant Diseases and Pests Act is intended to control plant diseases and pests and also noxious weeds. As per Section 3 of the Act, where it appears to the Government that any disease, pest, parasite or weed in any area is injurious to plants or is likely to contaminate water supply or is obstructive to water ways, and that it is necessary to take measures to eradicate such diseases, pests, parasite or weed or to prevent its introduction, spread or reappearance, the Government may by notification in the Gazette, declare any area to be an affected area for such period as may be specified in the notification , and with reference to such area also do the following.

a) Declare that such disease, pest, parasite or weed is a plant, disease, pest, parasite or noxious weed;

b) Prohibit or restrict the movement or removal of any plant, soil or manure form one place to another;

c) Prohibit the plantation or growing of any play which is likely to be injurious to other plants.

d) Direct that such other preventive or remedial measures as the District Collector may consider necessary shall be carried out to eradicate, destroy or prevent the introduction, spread or reappearance of any plant disease, pest, parasite or noxious weed.

Section 4 empowers the District Collectors to direct the occupiers within the affected area to carry out such preventive or remedial measures (including the removal or destruction plants

which are infested or likely to be infested) to eradicate, destroy or prevent the introduction, spread or reappearance of any plant disease, pest, parasite or noxious weed. Sections 6 and 7 give certain powers to the Inspecting Officers (appointed under section 13) with regard to the measures taken or to be taken consequent on the notifications of the Government and the District Collector. Section 8 gives certain additional powers to the Government where emergent situations prevail. As per Section 9, the District Collector or any other authority as the Government may specify has been given the appellate powers in respect of the orders passed by the Inspecting Officer with regard to the assessment and recovery of the cost of any preventive or remedial measures carried out by the Inspecting Officers, from the occupier. As per Section 12, the Village Officers and Village Extension Officers and other officers as may be prescribed are responsible to report to the District Collector the existence of any plant disease, parasite or noxious weed in the affected area and the District Collector after making such enquiry as he may deem fit shall make a further report to the Government.

In the context of the enactment on District Councils, the definition of District Collector in the Kerala plant Diseases and Pests Act has been revised as the Secretary of the District Council and it includes such other officer of the District Council as may be authorized by it. As per Section 15 A, the powers or the Government under the Act, except the power to make rules shall be exercised by the District Council or such authority or officers as may be authorized by the District Council in this behalf.

The Committee on Decentralisation of Powers suggests the following amendments to the Kerala Plant Diseases and Pests Act, 1972:-

1) In the definition clause, the term 'District Collector' may be deleted and the local authority may be defined as a District Panchayat constituted under Section 4 of the Kerala Panchayat Raj Act or a Municipality constituted under Section 4 of the Kerala Municipality Act.

2) The powers of the Government under Sections 3 and 8 may be retained. The word "District Collector" appearing in Section 3 (d) may be modified as the "local authority concerned".

3) The word "District Collector" appearing in Sections 4 (1), 7 (1), 8 (1) (a), 8 (1) (b), 9 (1), 9 (2), 9 (3) and 12 may be substituted by the words "Secretary of the local authority".

4) In Section 12, for the words "All Village Officers, Village Extension Officers" the words "the Agricultural Officers in charge of a Village Panchayat area or a Municipal area" may be substituted; and for the words "make a further report to the Government", the words "make a report to the local authority concerned and the Government" may be substituted.

5) Section 13 may be modified to the effect that the local authorities may appoint Agricultural Officers in charge of Village Panchayat area area or Municipal area as Inspecting Officers.

6) Section 15 A may be deleted.

7) A new provision may be incorporated to empower the local authorities to make bye-laws according to Government guidelines.

12.The Kerala Prevention and Control of Animal

Diseases Act, 1967 (4 of 1967)

This legislation was enacted by consolidating the then prevalent provisions related to control of animal diseases which were lying scattered among the following Acts.

1. The Madras Cattle Diseases Act, 1866 (applicable in Malabar) 2. The Madras Rinderpests Act, 1940 (applicable in Malabar)

3. The Travancore Animals Diseases Act, 1094.

4. The Travancore Glanders and Farcy Act, 1091.

5. The Cochin Cattle Diseases Prevention Act, 1093.

6. The Cochin Glanders and Farcy Act, 1093.

The Act essentially deals with professional powers and functions which are bestowed on the Director of Animal Husbandry, Veterinary Surgeons and Veterinary Inspectors. As such the local governments would have only a limited role and not direct involvement as it is better for the professionals to function independently and application of mind on various issues to be made by the technically qualified persons themselves.

The only change the Committee on Decentralisation of Powers has to suggest is in sub-section (5) of Section 17. This deals with exhibition of copy of a notification issued under the Section in the offices of the Panchayat, Municipality and Block. It is suggested that the notification may be exhibited in the local veterinary institution and Krishi Bhavan. Hence in sub section 5(a) in item (i) for the words "in the office of the Panchayat, Township or the Municipal Council or Corporation" the words "in the office of the Village Panchayat or the Municipality" may be substituted and at the end the words "and in the local veterinary institution and in the Krishi Bhavan" may be added. In item (ii) for the words "in the office of the National Extension Block" the words in"the office of the Block Panchayat" may be substituted. The penalties under Section 22 to 27 may be increased.

13. The Travancore -Cochin Fisheries Act, 1950 (XXXIV of 1950);

14. The Indian Fisheries Act, 1897 (IV of 1897)

Development of Fisheries particularly Inland Fisheries is a function devolved to the local governments. The extracts from the relevant Schedules of the Kerala Panchayat Raj Act and the Kerala Municipality Act are given below.

1. Development of fisheries in ponds and fresh water and brackish water fish culture, Mari culture.

2. Fish seed production and distribution.

3. Distribution of fishing implements.

4. Fish marketing assistance.

5. Development of traditional landing centers.

6. Introduction of new technologies.

6.In Kerala the Malabar area is covered by the Indian Fisheries Act and the erstwhile Travancore-Cochin area by the Travancore-Cochin Fisheries Act.

i. The Travancore-Cochin Fisheries Act, 1950. (XXXIV of 1950)

The Act mainly empowers the Government to make rules for the purpose of prohibiting fishing in any specified water except under a licence granted by the Government and in accordance with such terms and conditions as may be specified therein. Such rules may also prohibit or regulate either permanently, or for a time for specified seasons only, all or any of the following matters, viz.,

(a) erection and use of fixed engines,

(b) construction of weirs,

(c) dimension and kind of the contrivances to be used for taking fish generally or any specified kind of fish and the modes of using such contrivances,

(d) minimum size or weight below which no fish of any prescribed species shall be killed,

(e) the variety, description or power of lights used for fishing,

(f) destruction of fish or depletion of fisheries by pollution by trade or industrial effluents.

In the rules Government may provide for the seizure, forfeiture, and removal of any fixed engines erected or used or nets or other contrivances used for fishing in contravention of the rules and the forfeiture of any fish taken by means of any such fixed engine or nets or other contrivances. The Act prohibits the using of dynamite or other explosives in any water or putting any poison, lime or noxious substance into the water with the intent to catch or destroy any fish and any person who violates the provision is punishable with imprisonment or fine or with both.

In the context of the District Administration Act, the Travancore-Cochin fisheries Act was amended incorporating a new section 23 A as per which the Government can delegate its powers except the power to make rules to the District Councils and its officers subject to such restrictions and control as may be specified by the Government. In the new context the Committee on Decentralisation of Powers suggests the following amendments to the Travancore-Cochin Fisheries Act.

1) In section 2, among the definitions the term "local authority" may be included which would mean a Village Panchayat constituted under Section 4 of the Kerala Panchayat Raj Act, 1994 or a municipality constituted under Section 4 of the Kerala Municipality Act, 1994.

2) The rate of fine mentioned in Section 6 may be enhanced from Rs.100 and Rs.1000.

3) In Sections 7 and 8, the rate of fine may be increased.

4) In Section 9, the local authority may be empowered to grant the licences under the Act.

5) The first proviso under Section 11 may be revised as "provided that the Government or the local authority may, in the interests of scientific research exempt any person from taking out a licence this Act"

6) In Section 12 for the word "Government" the words "local authority" be substituted.

7) In Section 17, for the word "Government" the words :local authority" may be substituted.

8) After Section 18, a new provision may be inserted for appeals to the local authority from orders made under this Act by any person other than a magistrate

9) In Sub Section (2) of Section 19, the word "Government" may be substituted the words "local authority".

10) In Section 22, the maximum of licence fees (Rs.5 per acre) mentioned in shall section (4) and the rate of fine mentioned in sub section (5) may be enhanced.

11) The new section 23A introduced in the context of district councils may be deleted.

12) A new Section may be inserted to the effect that all rents, fees and other moneys payable to the local authority on account of fishing leases and licences granted by them may be recovered in like manner as if they were arrears of land revenue

ii. Indian Fisheries Act, 1897 (IV of 1897).

This is a Central Act relating to Fisheries, for which State amendments possible. The Act is applicable to the Malabar region in Kerala. For the Trancore-Cochin area the Travancore-Cochin Fisheries Act, 1950 is there where which has been drawn up on the lines of the Central Act, with some additional provisions.

In the context of emergence of the District Councils the above mentioned Central Act had been amended as per the Twelfth Schedule of the Kerala District Administration Act, as per which Sections 8 and 9 were introduced. These Sections provide for the recovery of rents, fees and other moneys payable under the Act and for the delegation of powers and functions of the Government (except the rule making powers) to the District Councils.

The Committee on Decentralisation of Powers suggests that a State amendment to the Indian Fisheries Act may be introduced incorporating the additional provisions available in the Travancore-Cochin Fisheries Act along with the modifications suggested by the Committee.

15. The Kerala Marine Fishing Regulation Act, 1980 (10 of 1981)

This is an Act to regulate the fishing by fishing vessels in the sea along the coast line of the State. This is basically a regulatory Act. The Committee on Decentralisation of Powers feels that the local bodies do not have a critical role to play in the implementation of this Act at this stage. Therefore the only amendment suggested is to delete the proviso to Section 2 (c), which was brought about through the District Administration Act.

16. The Kerala Lime Shells (Control) Act, 1957 (18 of 1958)

This Act was brought into force to regulate activities related to sale, supply and distribution of lime shells. The Act also empowers the Government to notify the maximum price, the maximum quantity that may be possessed at a time and the maximum quantity of any single transaction. In keeping with the general principle of giving local governments a role in the management of local natural resources, the Committee on Decentralisation of Powers recommends that the Secretaries of the Village Panchayats and Municipalities could be made licensing authorities under the Act and the Village Panchayats and Municipal Councils could be appellate authorities.

Hence the following amendments may be made in the Kerala Lime Shells (Control) Act.

1) In sub section (1) of Section 2 the licensing authority may be redefined so that the Secretary of the local authority can function as the licensing authority. The local authority may be defined as a Village Panchayat constituted under Section 4 of Kerala Panchayat Raj Act, 1994 or a municipality constituted under Section 4 of the Kerala Municipality Act, 1994.

2) In sub section (5) of Section 3, the Village Panchayat or the Council of the Municipality may be made the appellate authority with regard to any order of the licensing authority.

17. The Kerala Khadi and Village Industries Board Act, 1957 (9 of 1957)

Khadi and Village Industries are by definition local development activities. They can be best promoted and intensified only with the active involvement of local governments. The Indian

Constitution as well as the concomitant Acts relating to Panchayats and Municipalities in Kerala list village industries as a local government responsibility.

As per the Kerala Khadi and Village Industries Board Act, 1957 it shall be the duty of the Kerala Khadi and Village Industries Board to organize, develop and regulate khadi and village industries and perform such functions as the Government may prescribe from time to time. The functions and duties of the Board as enumerated in sub-section (2) of Section 15 of the Act are:-

(i) to start and encourage, assist and rum khadi and village industries;

(ii) to provide employment through organizing khadi and village industries;

(iii) to grant loans and other assistance;

(iv) organize co-operative societies in khadi and village industries;

(v) to conduct training centers;

(vi) to supply raw materials;

(vii) to carry on trading activities;

(viii) to endeavour to educate public;

(ix) to seek advice from experts;

(x) to promote research;

(xi) to carry on such other incidental activities.

From the above it can be seen that all activities under the khadi and village industries are organized by the Khadi and Village Industries Board.

The Committee on Decentralisation of Powers is of the view that activities in the khadi and village industries sector would receive a big boost with the involvement of local governments. What is suggested is not transferring the activities undertaken by the Kerala Khadi and Village Industries Board to the local governments. But there should be a meaningful partnership between the local governments and the Kerala khadi and Village Industries Board, so that the Board can play the role of a facilitators in planning and development of khadi and village industries with special reference to providing technical services and marketing support besides channeling institutional finance. The Board can retain its identity and autonomous nature but should act in co-operation with the local governments. Keeping this idea in mind the Committee suggests the following amendment to the Kerala Khadi and Village Industries Board Act, 1957.

(1) In section 2 the local authority may be defined as a Panchayat at any level constituted under Section 4 of the Kerala Panchayat Raj Act 1994 or municipality constituted under section 4 of the Kerala Municipality Ac, 1994.

(2) As per sub section (2) of section 4, the Board shall consist of not 'lest than five and not more than fifteen members appointed by the Government and the members can be non-officials, who in the opinion of the Government have shown active interest in the production and development of khadi or in the development of village industries, and the officials. Government nominates one member as the Chairman and another member as the Vice Chairman of the Board. Sub section (2) (a) may be amended so that one from among the

members of the Panchayats at all levels and one from among the councilors of the municipal corporation councils can be appointed as non-official members of the Board.

(3) Section 10 relates to the appointment of secretary and other staff under the Board. It may be stipulated that the local authorities shall have powers to supervise the work of the local level employees of the Board working in the respective area of the local authority.

(4) Sub Section (1) of the Section 15, which mentions the main function of the Board, may be revised as "it shall be the duty of the Board to organize, develop and regulate khadi and village industries and to assist the local authorities in implementation of the schemes for the development of khadi and village industries and perform such functions as the Government may prescribe from time to time."

(5) In sub-section (2) of Section 15, the fuctions of the Board under items (6) and (10) can be clubbed. Thus item (6) can be deleted and item (10) modified as "to arrange for publicity and popularising of goods manufactured in khadi and village industries by opening stores, shops, exhibitions and like in consultation with the Panchayats and the Municipalities as the case may be, and to carry on such activities incidental and conducive to the objects of this Act and to perform such other functions as the Government may direct for the purpose of carrying out the objects of this Act".

(6) In sub Section (2) of Section 15, the function of the Board underitem (6 a) may be revised as "to carry on trading activities by way of running emporia, neera bhavans, depots, manufacturing centers and the like, on request from a Panchayat or Municipality."

(7) The first proviso under Section 16 (i) stipulates that to acquire, lease, sell or otherwise transfer any immovable property by the Board previous sanction of the Government is required. This proviso may be modified so that to acquire no permission is needed. Section 16 (ii) permits the Board to incurs expenditure and undertake works in any area in the State for the framing and execution of schemes as the Board may consider necessary for the purpose of carrying out the provisions of the Act or as may be entrusted to it by the Government. The word "Government" may be followed by "or local authorities".

(8) As per section 16 A introduced in the context of the District Administration Act, the district councils and other local governments shall be competent to prepare and implement schemes for development of khadi and village industries in the respective jurisdictions and may also propose such schemes to the Board for its approval and assistance. Sub-section (2) of Section 16 A stipulates that the Board shall use the agency of the local government the district as far as possible for the implementation of its schemes and programmes. These provisions have become redundant. In the place of this section, a new provision may be inserted to the effect that the Government may by order, delegate the functions of the Board under the Act to the local authorities, subject to such conditions as may be specified in that order.

(9) As per Section 17 in each year on or before such date as may be fixed by the Government, the Board has to prepare and forward to the Government a programme of work which the Board proposes to execute during the next year. As per Section 18 the Government may approve and sanction the programme fully or with modifications. Section 19 allows the Board to prepare and forward supplementary programme for approval of the Government. Section 19 A empowers the Board to make alterations in the scheme with previous approval of the Khadi and Village Industries Commission. Sections 17 and 18 may be revised to the effect that the District Planning Committee constituted under Section 53 of the Kerala Municipality Act 1994 is empowered to approve the programmes of work prepared by the Board for the respective district, subject to technical and financial guidelines issued by the Board. Sections 19 and 19 A may be deleted. Section 33 (2) (f), which is related to section 19, may also be deleted.

(10) As per Section 20, the Government may transfer to the Board buildings, land or any other property, whether movable or immovable for use and management by the Board on such conditions and limitations as the Government may deem fit. In this section provision may be added to the effect that the Government may also transfer to the local authorities, buildings,

land or any other property whether movable or immovable, for the use and management by the Board.

18. The Kerala Education Act, 1958 (6 of 1959)

Consequent on the Seventy-third and Seventy-forth Amendments to the Indian Constitution and with the enactment of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994, school education in the governmental section has been transferred fully to the local governments. In rural areas management primary schools is with the Village Panchayats and the management of High School is with the District Panchayats; in urban areas both the functions are performed by the urban local bodies. In this context, it is necessary to integrate the role of the local governments with the role played by the State Government. With this objective the Committee on Decentralisation of Powers recommends the following amendments the Kerala Education Act 1958.

1) In the definition clause (4) Section 2, "the Local Educational Authority may named as "the District Educational Authority". The local authority may also defined.

2) After Section 6, the following new section 6A may be inserted to check the alienation of the properties of Government Schools transferred to the local authorities:

"6A. Restriction on alienation of property of Government Schools:- Notwithstanding anything to the contrary contained in any law for the time being in force, no deed of sale, mortgage, lease, pledge, charge or transfer of possession in respect of any land appertaining to a Government School, transferred to the local authority shall be created and such property shall not be used for any purpose other than any educational purpose:

Provided that nothing in this section shall affect the surrender of the land for road widening with the permission of the Government."

3) After section 7, the following new Section may be inserted to vest the management of Government schools in the local authorities.

"7A. Management of Government Schools:- The management of every Government School shall vest in the local authority which has jurisdiction over the area in which the school situates, as shown below, namely:-

(a) Government pre-primary schools and Village Panchayats

Primary schools in rural areas

(b) Government high schools (including District Panchayats

lowerprimary or upper primary section

attached to high schools) and higher

secondary schools in rural areas.

(c ) Government pre-primary schools, Municipalities

primary schools, high schools and higher

secondary schools in urban areas.

4) After Section 10, the following Section 10 a may be inserted so that the local authorities can appoint teachers in Government Schools against temporary vacancies.

"10A. Temporary appointment of teachers:- Subject to the rules and conditions laid down by the Government, the local authority may appoint a teacher in a school under its control against any temporary vacancy, through the employment exchange, from among the persons who possess the qualifications prescribed under section 10, and the period of such appointment shall cease by the end of the academic year concerned or when a regular candidate is appointed against such vacancy whichever is earlier."

5) Section 14 relates to the taking over of the management of aided schools (other than minority schools) by the Government for a period not exceeding five years, whenever it appears to Government that the manager has neglected to perform any of the duties imposed under the Act and Rules and also in the public interest. As per sub section (6) where any school is taken over, the Government may rural the school affording any special educational facilities which the school was affording immediately before such taking over. The sub section may be amended so that the management of the schools taken over by the Government under this Section shall vest in the local authorities during the period of such take-over.

6) Sectiuon 15 empowers the Government to acquire any category of schools (other than minority schools) for standardizing general education, for improving the level of literacy in any area, for effectively managing the aided schools in an area or for bringing education of any category under their direct control. Such take-over can be ordered be ordered only if the proposal is supported by a resolution of the Legislative Assembly. In this section also a provision may be assed to the effect that the management of the schools taken over by the Government under the Section shall vest in the local authorities concerned.

7) As per Section 17, for the purpose of associating people with the administration of education and to preserve and stimulate local interest in educational affairs the Government may establish "Local Educational Authorities" to exercise jurisdiction in any local area specified in the notification. Each Local Educational Authority consists of seven members, viz., the District Education Officer, one elected from among the graduate teachers, on elected from among the non-graduate teachers, one elected from among the members of the Panchayats and Municipalities and two persons nominated by the Government from among those who have experience in education. The functions of the Local Educational Authority are mentioned in Section 18. The structure of this body may be changed to include the elected members of the local authorities and the jurisdiction may be the entire District. The functions of the body may also revised. Hence it is suggested that Sections 17 and 18 may be revised follows:

"17. Establishment of District Educational Authority .- (1) For the purpose of associating people with the administration of education and to preset and stimulate local interest in educational affairs, each District Planning Committee constituted under section 53 of the Kerala Municipality Act 1994 shall establish a District Educational Authority to exercise jurisdiction in the district.

(2) The District Educational Authority shall consist of the following members:-

a) The District Panchayat President, who shall be its Chairman,

b) Two members elected from among the members of the Standing Committee for Education in the District Panchayat, one of whom shall be a womam,

c) Two members elected from among the Presidents of the Village Panchayats, one of whom shall be woman,

d) The Chairmen of the Standing Committees for Education in the municipalities,

e) The Deputy Director of Education, who shall be the ex-officio Member and Secretary of the Committee,

f) One member elected from among the Headmasters of the Government High Schools,

g) One member elected from among the Headmasters of the aided High Schools.

h) One member elected from among the Headmasters of the Government UP and LP schools,

i) One member elected from among the Headmasters of the aided UP and LP schools,

j) Two members nominated by the Government from among educational experts.

(3) The term of office of the members other than the functionaries of the local authorities and ex-officio member shall be five years commencing from the date on which the first meeting of the District Educational Authority is held. In the case of members elected from among headmasters of schools, their term will cease on their relinquishing the post of headmaster in that capacity

(4) The election of the members of the District Educational Authority shall be conducted in such manner as may be prescribed.

(5) Any person elected or nominated to fill a vacancy occurring in the office of a member previous to the expiry of this term of office shall hold office only so long as the member in whose vacancy he is elected or nominated would have held office if the vacancy had not occurred.

(6) It shall be lawful for the District Educational Authority to exercise its powers under this Act notwithstanding any vacancy in the Authority.

18. Functions of the District Educational Authority:- The District Educational Authority shall,-

(i) assess the educational needs of the District by conducting surveys or otherwise and prepare each year schemes for the development of educational and submit the same to the District Planning Committee including the proposals for opening new schools, upgrading of the existing schools and matters incidental thereto.

(ii) Supervise the implementation of the schemes related to health and nutrition of school children.

(iii) Promote conference, exhibitions or other measures calculated to create among the public an interest in education and .

(iv) Cary out such other functions as may be prescribed and those entrusted by the District Planning Committee."

8) As per section 30, it shall be the duty of the Government to see that noon-day meals, clothing, books and writing materials are provided to poor pupils free of cost. This duty may be assigned to the local authorities. Hence the word "Government" may be substituted with the word "local authority".

9) As per Section 34, it shall be lawful for the Government to delegate to any officer of the Education Department all or any of the powers vested in them by this Act (except certain specified powers). It is to be provided that the Government may be delegate its powers to the local authorities as well.

10) Section 34 A introduced in the context of District Councils permits the Government to delegate its powers to the District councils and its officers. Since the provision has become irrelevant this section may be deleted.

11) A new Section may be inserted in the Act to the effect that -

i. The manager of every private school (aided or recognised) shall arrange adequate toilet and drinking water facilities in the school and furnish a report on such arrangements to the Secretary of the local authority before the beginning of every academic year;

ii. The adequacy of the arrangements shall be inspected and certified by the Secretary of the local authority or any officer authorised by him; and

iii. In respect of the schools under the management of a authority such arrangements shall be made by that local authority.

12) Another new Section may be inserted in the Act to enable the constitution of Educational Development Committee by the local authority for each school under its control for attending to the welfare needs of the School. The Committee is to be authorised to create a fund viz. "Education Development Fund" from which the expenses for the welfare measures of the school can be met.

19. The Kerala Public Libraries (Kerala Granthasala Sanghom) Act, 1989 (15 of 1989)

This is a hallmark Act which is a model for the rest of the country. It epitomizes the strong and progressive library movement in the State. With the ushering in of decentralisation the Panchayats and Municipalities have an important role to play in the spread of the library movement in the State. The Committee on Decentralisation of powers strongly feels that the democratic structure and the civil society connotations of the library movements should not be diluted. However, a distinct role for local governments and provisions for their participation need to be provided. As per the provisions of the Act, the Government is empowered to constitute a Taluk Library Union as well as a District Library Council. There is also a provision for a State Library Council. The elections to these bodies are held in a democratic manner. Though the representatives of the State Library Council opined before the Committee that there is no need to modify the law relating to libraries to libraries, the Committee feels that the following modifications are required.

(1) As per Section 19 every Taluk Library Union consists of two representatives of each affiliated library in the Taluk. Such representatives are elected by the general body of the affiliated library from among its members. Each Taluk Library Union elects a nine member Executive Committee including a President, Vice President, Secretary and Joint Secretary. Every Taluk Library Union elects seven persons as members to the District Library Council. As per Section 11, every District Library Council consists of the Presidents and the Secretaries of the Taluk Unions in the District, seven persons elected by each Taluk Union to represent it in the District Council and the President or any other office bearer of any affiliated library in the District nominated by the Government. Each District Council elects an eleven member Executive Committee including a President, Vice President, Secretary and Joint Secretary. As per Section 3, the State Library Council consists of one member each from a Taluk elected by the general body of the District Library Council and 5 other members nominated by the Government. The State Council has an Executive Committee consisting of 25 members, of whom 15 are elected from among the elected members of the State Council, 5 non-officials nominated by the Government and 5 Secretaries to Government. As per the provisos under Section 10 (1) and under Section 18 (1), introduced in the context of District Councils, where there is a District Council, the power of the Government to constitute the District Library Council and the Taluk Library Unions ahall be exercised by the District Council subject to such conditions and restrictions as may be prescribed. The above provisos may be deleted since they have become irrelevant. The structure of the State Library Council, the District Library Council and the Taluk Library Union may be revised, by amending Sections 3, 11 and 19 respecitively, so that five elected representatives of the Village Panchayat Presidents and one

elected representative of the municipal Chairpersons (if any) in a Taluk are included in the Taluk Library Union; elected representatives of the District Panchayat members, equal to the number of Taluks in the District and one elected representative of the Municipal Corporation councilors (if any) are included in the District Library Council and an elected representative from among the District Panchayat members in each District is included in the State Library Council.

(2) Under Sections 8 (1) (i), (iv) and (vi) the State Library Council may organize activities for promoting distance education, adult education and eradication of illiteracy and, with the concurrence of the Government may establish and conduct schools for promoting adult education and non-formal education. Under entries 17 and 19 of the Eleventh Schedule to the Constitution, education, including primary and secondary schools, adult and non-formal education are the subjects of the Panchayats. Therefore, it is not necessary to give the above powers to the State Library Council. The above items under Section 8 (1) (i) may therefore be deleted.

(3) Sub Section (1) of Section 29 of the Act empowers the District Library Councils to prepare a Library Development Plan for the entire District. The local bodies are not given any role in this regard. It is considered necessary to give active role to the local bodies in the preparation of the Library Development Plan by the District Library Council. The sub section my be revised as follows:

"(1) Subject to the provisions of the Act and the rules made thereunder and any general or special orders of the Government, if any, in this behalf, a District Library Council may, in consultation with the District Planning Committee; prepare a District Library Development Plan for establishing, co-ordinating and spreading library service within the entire district or part thereof, in such form and manner and containing such particulars as may be prescribed.".

(4) Section 48 of the Act provides for the levy of a library cess in the form of five percent on the building tax/property tax levied under the old Panchayat and Municipal Acts of 1960. It is also provided in the said section that the cess so levied and collected by the local bodies shall be paid to the State Library Council. As per the provisions in the new Panchayat and Municipal laws, the local bodies are empowered to levy not more than two surcharges at a time on building tax/property tax, subject to a maximum rate of 5% for the purposes as determined by the local bodies. It needs to be clarified that the surcharge under the Libraries Act is separate. However, collection charge may be paid to the local bodies. Therefore it is suggested that Section 48 of the Public Libraries Act may be therefore be amended on the following lines.

(i) In sub-section (1) for the words "the Kerala Panchayats Act, 1960 (32 of 1960)" the words "the Kerala Panchayat Raj Act, 1994 (13 of 1994)" may be substituted, and for the words "the Kerala Municipalities Act, 1960 (14 of 1961) or the Kerala Municipal Corporations Act, 1961 (30 of 1961)" the words "the Kerala Municipality Act, 1994 (20 of 1994)" may be substituted.

(ii) Sub-section (2), may be revised as "Notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 or the Kerala Municipality Act, 1994 the cess levied under subsection (1) shall be collected in an area within the jurisdiction of a Village Panchayat by that that Village Panchayat and in an area within the jurisdiction of a Municipality, by that Municipality, as if the cess were a property tax, payable under the said Acts and the provisions of the said Acts so far as the procedure for collection of tax shall be apply".

(iii) The provisos to sub-section (2) which empowers the Government to impose modifications with regard to the provisions in the Panchayat/Municipal law for the purpose of collection of the Library cess may be deleted.

(iv) Sub-section (3), may be revised as "The cess collected under sub-section (2) less collection charges at the rate specified by the Government, shall be paid to the State Library Council by the Village Panchayat or the Municipality, as the case may be".

20. The Kerala Water Supply and Sewerage Act, 1986 (14 of 1986)

The Travancore-Cochin Public Health Act 1955 and the Madras Public Health A 1939 make supply of drinking water, the responsibility of local governments. Even the Kerala Water Supply and Sewerage Act 1986 deems the Kerala Water Authority to be a local authority.

In the mid 80's it was felt that a centralised system for supply of water would be more efficient way in supply of drinking water to the people. But experience all over the world in recent years has shown that decentralised methods of supply of drinking water through local initiative could be equally, if not more, efficient. The Eleven and Twelfth Schedules of the Indian Constitution make water supply a local government function. This has been reflected in the Kerala Panchayat Raj Act 1994 and the Kerala Municipality Act 1994. The amendments to the Act made in March 1999 have incorporated certain provisions, which also could be incorporated in this Act. They are the following:

(1) The Kerala Water Authority may transfer water supply schemes covering the area of a single village panchayat or municipality to that local body and if so requested by the local body, the transfer should be made mandatory.

(2) Local bodies are free to start their own water supply schemes either individual or as groups of local bodies. For such schemes they will be free to fix their user charges.

(3) The Kerala Water Authority shall render necessary technical services to the local governments for planning, execution and running of water supply schemes in the manner prescribed by Government.

(4) The above three suggestions would apply mutates mutandis to sewerage schemes as well.

(5) For schemes operated by the Kerala Water Authority, necessary tariff for street taps may be collected from the local governments at rates fixed by the Government. Government may deduct the tariffs from grants due to the local governments. However, where the assessment is disputed, Government may prescribe an appellate authority whose verdict shall be final.

21. The Madras Irrigation Works (Repairs, Improvement and Construction) Act, 1943 (XVIII of 1943).

22. The Madras Irrigation Tanks Act, 1949 (XIX of 1949).

23. The Madras Irrigation (Levy of Betterment Contribution) Act, 1955 (III of 1955).

24. The Malabar Irrigation Works (Construction and Levy of Cess) Act, 1947 (VII of 1947).

25. The Travancore-Cochin Irrigation Tanks (Preservation and Improvement) Act, 1952 (XXIII of 1952).

26. The Travancore-Cochin Irrigation Act, 1956.

27. The Kerala Irrigation Works (Execution by Joint Labour) Act, 1967 (20 of 1967).

With the decentralisation of powers, bulk of he primary sector activities have now become the responsibility of local governments. As nearly 40% of the Plan Funds are being utilised by local governments and they are to earmark a substantial portion of the grants-in-aid for productive purposes, they have to concentrate on improving local production possibilities. In the case of agriculture as the scope for expansion of cultivation is limited the accent would normally on intensification of cultivation. Therefore irrigation would get considerable importance.

The Kerala Panchayat Raj Act, 1994, as amended in 1999 assigns to the local governments most of the functions related to irrigation.

These realities have to be reflected in the Act relating to Irrigation in the State. At present there are seven legislations dealing with irrigation in the State.

1. The Madras Irrigation Works (Repairs, Improvement and Construction) Act, 1943 (XVIII of 1943).

2. The Madras Irrigation Tanks Act, 1949 (XIX of 1949).

3. The Madras Irriation (Levy of Betterment Contribution) Act. 1955 (III of 1955).

4. The Malabar Irrigation Works (Construction and Levy of Cess) Act, 1947 (VII of 1947).

5. The Travancore-Cochin Irrigation Tanks (Preservation and Improvement) Act 1952 (XXIII of 1952).

6. The Travancore-Cochin Irrigation Act, 1956.

7. The Kerala Irrigation Works (Execution by Joint Labour) Act 1967 (20 of 1967).

It is understood that the Irrigation Department has decided to go in for an integrate Act on Irrigation and Water Regulation in the State. However, till such time necessary amendments may be made in the existing Acts as suggested below.

1. The Madras Irrigation Works (Repairs, Improvement and Construction) Act, 1943 (XVIII of 1943).

The Act empowers Government to construct or upgrade an irrigation work in private land and recover the cost as prescribed from the land holders benefited. Section 7 provides for delegation of these powers. The Committee on Decenralisation of Powers to the Panchayats and Municipalities constituted under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 respectively.

2. The Madras Irrigation Tanks Act, 1949 (XIX of 1949)

This is an Act which allows Government to increase the capacity of an irrigation tank which is located in public or private land. The Committee recommends the following amendments:

(1) The power to take measures for increasing the capacity and efficiency - irrigation tanks may be vested with the concerned Village Panchayat and Municipality. If the benefit extends to the area of more than one ... Panchayat, the Block Panchayat may be empowered.

(2) In Rule 7(1) the words "Fort St. George" may be deleted.

(3) Section B of 7 maybe deleted and substituted by a Section dealing with delegation of powers to Panchayats and Municipalities constituted under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act 1994 respectively.

3. The Madras Irrigation (Levy of Betterment Contribution) Act, 1955 (III 1955).

This Act enables the Government to levy betterment contribution from the land holders of the ayacut area benefited from irrigation costing Rs.25,000 or more The Committee suggests the following amendment:

Section 12 A which was inserted by Act 7 of 1980 dealing with district administration may be amended to provide for exercise of powers Panchayats and Municipalities constituted under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 respectively.

4. The Malabar Irrigation Works (Construction and Levy of Cess) Act, 1947 (VII of 1947).

This is an Act which provides for construction of irrigation works in public land including acquisition of land for the purpose of construction and levying of water cess as the first charge on the lands. The Committee suggests the following amendment to this Act.

1) Section 2(b) defining District Council may be deleted and substituted with definition of Panchayats and Municipalities constituted under the Kerala Panchayat Raj Act 1994 and the Kerala Municipality Act,1994 respectively.

2) Section 2A may be modified to enable Government to delegate powers to a Panchayat or Municipality constituted under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 respectively.

5. The Travancore-Cochin Irrigation Tanks (Preservation and Improvement) Act 1952 (XXIII of 1952).

This Act enables the Government to improve irrigation tanks in the State and prevents conversion of such tanks. The amendments suggested to this Act by the Committee are given below:

(1) Section 2(i) may be deleted and "Collector" defined as a "District Collector or Secretary of a local authority notified by the Government for this purpose.

(2) The definition in Section 2(iii) may be deleted and substituted with definition of Panchayats and Municipalities constituted under the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994 respectively.

(3) Section 3A may be modified to enable Government to delegate powers to Panchayats and Municipalities.

6. The Travancore-Cochin Irrigation Act, 1956 (7 of 1956)

This Act which extends over the Travancore-Cochin area of Kerala deals with construction of petty, minor, medium and major irrigation works and levy of irrigation cess. In the light of the decentralisation of powers the Committee suggests the following amendments to this Act.

1. Section 2(1) may be modified.

2. Section 2(2A). This may be deleted and the Panchayats and Municipalities defined.

3. Section 3 A may be modified to enable Government to transfer its powers to a Panchayat or Municipality.

4. Section 4(2) may be modified to enable a local authority to levy an annual cess without previous sanction of the Government.

5. The power under Section 6 may be given to the local authorities.

7. The Kerala Irrigation Works (Execution by Joint Labour) Act, 1967 (20 of 1967).

This Act empowers Government to take up dewatering as well as strengthening of bunds in Padasekharams on a shared cost basis by the owners of the land. The Act specifically empowers the District Collector and Punja Special Officer. The Committee suggests that the Government may authories Agriculture Officers of local authority also to exercise this function. Sections 3, 4, 5, and 6 may be modified accordingly.

28. The Kerala Command Areas Development Act, 1986 (37 of 1986)

Vast areas have been benefited by irrigation projects taken up by the Government. Once the dams are constructed and the canals are laid out, their proper upkeep and management is of prime importance. The Kerala Command Areas Development Act, 1986, seeks to provide for systematic development of areas which fall within the ayacut of irrigation projects.

Though major irrigation is a subject which has not been transferred to the local bodies, bulk of the functions related to agriculture including minor and micro irrigation and watershed management are now local government responsibility. Therefore unless there is formal co-ordination between the Irrigation Department and the local governments the optimum utilisation of the irrigation projects cannot be achieved. In order to provide for an active role to the local governments in the management of command areas, the Committee on Decentralisation of Powers make the following recommendations regarding amendment to the Kerala Command Area Development Act, 1986.

1) Section 4 may be amended to include Chairpersons of District Planning Committees of the benefited area in the Authority. Also two Village Panchayat Presidents and one Block Panchayat President may be nominated in the Authority based on the extent of benefited area in the panchayats.

2) Section 9 may be amended to add a proviso that while exercising the functions, the Authority would consult the concerned local authorities and involved them in all activities. The authority would take into account the development plans of the local governments while discharging its functions.

3) Section 12 which deals with preparation of schemes may be amended ensure that Authorities prepare the schemes in consultation with the local governments involved or the Authority may prepare schemes at the request of the local authorities.

4) Section 14 may be modified to permit local governments to sanction schemes with the prior approval of the Authority.

5) Section 18 may be amended to include the Village Panchayat Presidents in the Canal Committees.

6) Section 19 may be amended to include the Chairpersons of the District Planning Committees concerned as members of the Project Committee. Five Village Panchayat Presidents may also be nominated based on the extent of benfited area within those panchayats.

29. The Travancore Public Canals and Public Ferries Act, 1096 (6 of 1096)

As per the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994, public ferries are to be maintained by the local authorities. In this context the Committee on Decentralisation of Powers suggests the following amendments:

1. Panchayat and Municipality may be defined in Section 4.

2. The powers of Government under Chapter III may be deleted to the village panchayats and municipalities.

30. The Madras Canals and Ferries Act, 1890 (II of 1890)

As ferries have become the function of village panchayats and municipalities, the Committee on Decentralisation Powers suggests the following amendments to this Act.

1. In Section 3 the definition would include panchayats and municipalities.

2. Section 6 may be modified to enable a local authority to fix rates, fees and rates of toll in respect of various landing places, wharves etc., which are owned by them.

3. Section 10 may be modified to enable local authorities to provide for management of ferries and fix fees.

31. The Cochin Ferries and Tolls Act, 1082 (3 of 1082)

This Act deals with the management of ferries and collection of toll in the Cochin area. The Committee on Decentralisation of Powers suggests the following amendments to this Act.

1) Section 3 may be amended to permit village panchayats and municipalities to establish ferries and toll gates. In the case of toll gates prior permission of Government would be required.

2) Section 4 may be amended to provide for management of ferries by village panchaayats and municipalities.

3) Section 5 may be amended to enable village panchayats and municipalities to fix the ferry charges. As regards tolls they may fix the rate with prior permission of the Government.

32. The Indian Electricity Act, 1910.

The Indian Electricity Act governs the generation and supply of electricity. In Kerala the Kerala State Electricity Board is the licensee for supply of energy. As per Section 22 A of the Act, the state government has the power to issue directions to the licensee in the interest of maintaining services essential to the community as notified by the Government in the gazette.

The Schedule to this Act contains 'Provisions to be deemed to be incorporated with, and to form part of, every licence granted under Part II'. Clause VIII of this Schedule relates to supply for public lamps. (It may be noted that the State Electricity Board is not exempted from the operation of this clause). As per this clause, where a requisition is made by the State Government or a Local Authority requiring the licensee to supply for a period, not less than seven years, energy for any public lamps within the area of supply, the licensee shall supply and continue to supply energy for such lamps in such quantity as the State Government or the Local Authority, as the case may be, may require.

The State Government or, as the case may be, a Local Authority may require the licensee-

(a) to provide the mains and other equipment for public lamps, and

(b) to use for this purpose supports, if any, previously erected or set up by him for supply of energy.

Clause VIII of the schedule is extracted below:- (1) Where after distributing mains have been laid down under the provisions of Clause IV or Clause V and the supply of energy through those mains or any of them has commenced a requisition made by the State Government or by a local authority requiring the licensee supply for a period of not less than seven years energy for any public lamps with the area of supply, the licensee shall supply, and, save in so far as he

is prevent from doing so by cyclones, floods, storms or other occurrences beyond his control continue to supply, energy for such lamps in such quantities as the State Government or the Local Authority, as the case may be, may require.

(1-A) The State Government or, as the case may be, a Local Authority may require the licensee-

(a) to provide the mains and other equipment for public lamps, and

(b) to use for that purpose supports, if any, previously erected or set up by for supply of energy.

(2) The provisions of sub-clause (b) of the first proviso, of sub-clauses (c) and (d) the second proviso, and of the third and fourth provisos to sub-clauses (2)and of Clauses VI shall, so far as may be, apply to every case in which a requisition for the supply of energy is made under this clause as if the State Government or local authority were an owner or occupier within the meaning of those provisions.

Such local authority shall be deemed to be an owner occupier within the meaning of provision applicable under schedule VI. As per sub-clause (3) of schedule VI difference or dispute as to the amount of energy etc., shall be referred to the Electrical Inspector.

Village Panchayats and Municipalities have been maintaining public lamps through the Electricity Board. The electricity charges are paid for by those local governments. During the last two years even repairs and maintenance have become the responsibility of these local governments.

Experience of the local governments has not been very happy as the relationship with the Electricity Board has not been formalised. The Committee on Decentralisation of Powers suggests that changes may be brough about as State Amendments to the Indian Electricity Act as follows:

In its application to the Kerala State, following sub clause shall be added to clause VIII of the schedule to the Indian Electricity Act of 1910, viz.-

"(3) Notwithstanding anything contained in clause VI of the Schedule, the State Government may, by notification in the gazette give directions to the licensee, as to,-

(a) the manner of calculating the electricity charges due from the Local Authority in respect of the use of energy for the public lamps;

(b) the placing of the personnel of the licensee at the service of the Local Authority for maintenance and up keep of the installations and equipment and the replacement of bulbs and tubes and other ancillary items supplied by the local authority;

(c) manner of settlement of disputes by reference to the Chief Electrical Inspector or his nominee for settlement and decision thereon; and

(d) any other transaction between the local authority and the licensee, which the State Government may deem necessary, to regulate by prescribing procedure,

and such direction shall be treated as directions issued under Section 22A."

Also provisions could be incorporated to enable Government to designate local authority for maintaining the transmission system within that authority. Similarly local authorities not

served by the Kerala State Electricity Board could be permitted to undertake stand-alone project for generation and distribution of electricity.

33. The Land Acquisition Act, 1894 (Central Act 1 of 1894)

With the entrusting of several functions relating to creation of local infrastructure and providing of sufficient funds to local governments, the demand for land, for development purposes has increased considerably over the last two years. The experience so far reveals that the procedure for land acquisition as per the provisions of the Land Acquisition Act 1894 is quite time consuming and often delays land based projects considerably. Hence there is a need to have a provision for purchase by negotiation. The price is to be fixed by the District Collector. The procedure for negotiation has to be prescribed by the Government.

Another problem faced by the local governments in relation to land acquisition is the enhanced compensation awarded in LAR cases many years after the land acquisition proceedings have been completed. Local governments are often forced to pay hefty amounts by way of enhanced compensation, upsetting the budgeted programmes. In this context it is felt that at least there should be a provision to make it obligatory for local governments to be represented in the LAR cases.

In the light of what has been stated above, the Committee recommends the following amendments to the Land Acquisition Act 1894.

1) In sub-section (aa) of Section 3 of the Act, the expression 'local authority' is to include the 'local authority' as defined in the Kerala Panchayat Raj Act, 1994, or the Kerala Municipality Act, 1994, as the case may be.

2) In sub-section (1) of Section 4 of the Act the words 'or local authority' may be inserted in between the words 'or to the Collector' and 'that land in any locality'.

3) After Section 17 of the Act, the following new Section namely Section 17 A may be inserted.

"17A. Purchase of land by local authorities.- Any local authority may purchase land by negotiation at a price fixed by the District Collector in the manner prescribed".

34. The Kerala Land Assignment Act, 1960 (30 of 1960)

This Act provides for assignment of Government land. This is a very general Act enabling Government to frame Rules for the assignment of various kinds of Government land. Now that local governments are managing most of the government institutions at the local level and since they look after the housing needs of the poor, it is necessary that they be formally involved in the assignment process. Therefore the following provisions need be built into the Land Assignment Act.

(1) There should be a provision in the Act making consultation with the village panchayat or municipality mandatory before any government land is assigned. If the village panchayat or municipality requires the land in question for carrying out any of the functions assigned to it that land should be set apart for that purpose and should not be assigned.

(2) As regards land vested with the panchayats and municipalities, a separate procedure would have to be prescribed which provides in the first instance for divesting with the formal consent of the concerned local boby and later for assignment following the rules and procedures.

35. The Kerala Land Conservancy Act, 1957 (8 of 1958).

The Kerala Land Conservancy Act is a powerful legislation enabling Government to protect public land from encroachment and unauthorised occupation. Now that the village panchayats

and municipalities have been vested with a lot of government land in addition to their managing government land belonging to schools, hospitals, offices etc., the Committee feel that there should be greater clarity in defining land for which provisions of the Land Conservancy Act can be invoked. Explanation (4) of Section 3 states that land belonging to a municipal corporation shall be deemed to be a property of Government. This explanation may expanded to cover land belonging to any panchayat as defined in the Kerala Panchayat Raj Act 1994 or any municipality as defined in the Kerala Municipality Act 1994.

Section 15 of the Act empowers Government to authories by notification any Officer by virture of his office to exercise all or any of the powers conferred on a Collector under this Act. The Secretaries of Panchayats and Municipalities may be conferred this power by notification.

36. The Kerala Land Relinquishment Act, 1958 (38 of 1958).

This Act provides for unconditional surrender of land by its registered holder to Government for various development purposes. A provision needs to be incorporated in this Act to allow relinquishment of land in favour of a local authority following the procedure prescribed in Section 4. This is required as bulk of the development activities at the local level requiring land like widening of roads, construction of irrigation canals etc., are done by the local authorities.

37. The Kerala Survey and Boundaries Act, 1961 (37 of 1961).

With the transfer of powers to local bodies a lot of Government land is now under their control and management. Often disputes arise regarding the boundaries of such lands. This is particularly true of roads and canals and other lands which are vested with the village panchayats and municipalities. Therefore the Committee feels that a provision has to be made in the Kerala Survey and Boundaries Act 1961 to the effect that whenever a local authority requests for surveying and demarcating the boundaries of any land, the Government or any officer or authority authorised by the Government in this behalf shall get the land surveyed and demarcated.

38. The Kerala Land Reforms Act, 1963 ( of 1963)

The implementation of land reforms is almost complete in Kerala. Therefore there is not much scope for involving local governments in implementing the provisions of the Kerala Land Reforms Act. However some cases are still under litigation and some of the ecess land taken over has not yet been distributed. Village Panchayats and Municipalities could be involved in a limited way while assigning excess land. The Committee on Decentralisation of Powers suggests the entrusting of the following items of work to Village Panchayats and Municipalities by suitable amendments to the Kerala Land Reforms Act 1953.

(1) The Act provides for surrendering of the land in excess of ceiling area to the Government. The excess land is utilised by the Government for public purposes and also for assigning among various categories of landless persons. A provision may be added to the effect that the Government should inform the local bodies concerned the details of the excess land taken over for public purpose and for assignment to the landless persons and others.

(2) The assignment of the Land to the landless persons shall be done by the Government only on the recommendations of the local authority concerned. The views of the Grama Sabha/Ward Sabha should also be taken into account by the local bodies.

39. The Kerala Local Authorities Loans Act, 1963 (30 of 1963)

The local governments have now been given a lot of functions and responsibilities. The Government have devolved nearly 40% of the Plan funds to enable the local governments to take up developmental programmes related to their functions and responsibilities. However, these funds would not alone be sufficient to meet the vast requirements for development of infrastructure and provision of basic needs to the people. It is absolutely essential that local

governments are able to tap institutional finance besides borrowing from the open market to meet their fund requirements Some of the projects could be of a revenue earning nature sufficient to be financed by pledging the income stream from the project without recourse to any other guarantees. Such schemes would result in a continuous inflow of income to local governments. There are some other schemes the cost of which could be partially or fully be met by user charges and public contribution. There could be also some schemes particularly for infrastructure development which call for a heavy investment at a single time to by cost effective; in such cases they are to be financed by borrowing and the debt defrayed by annual payments from the general revenues of the local government including grants in aid from the Government. Thus there is every need to enable local governments to borrow. At the same time the experience of various local governments show that borrowing has to be very carefully done so that local governments do not get pushed into chronic indebtedness. For this a rations regulatory frame-work is necessary.

Kerala fortunately has a Local Authorities Loans Act which defines borrowing power of the local authorities in the State. 'Local authority' has been defined as 'any person legally entitled to the control or management of any local, panchayat or municipality fund, or legally entitled to impose any cess, rate, duty or tax within any local areas 'Fund' includes any local, Panchayat or municipal fund to the control or management of which such authority is legally entitled and any cess, rate, duty or tax which such authority is legally entitled to impose and any property vested in such authority.

Section 3 of the Act empowers a local Authority to borrow money from the Government or with the previous sanction of the Government from any other person, on the security of its funds or any portion thereof for any of the following purposes, viz.,

(i) carrying out of any work which it is legally authorised to carry out;

(ii) giving of relief and the establishment and maintenance of relief works in time of famine, scarcity, epidemic or flood;

(iii) Prevention of the outbreak or spread of any dangerous epidemic disease;

(iv) Any measures which may be connected with or ancillary to any purposes specified in clauses (ii) and (iii);

(v) Payment of money previously borrowed in accordance with law, provided that no portion of the money so borrowed shall be applied to any purpose other than that for which it was borrowed; and

(vi) Any other purpose which the Government may specify.

The time for the repayment of any money borrowed under this section shall not exceed 60 years. Section 4 provides for the attachment of the funds of the local authority, if the loan is not repaid. As per Section 5 the Government may authorises any local authority to charge its funds or any part thereof, by way of guarantee for the payment of interest on, or by the creation of a fund for the repayment of money expended or to be expended on any work or for any of the purposes to which such funds might be by law applied. As per Section 7, subject to the provisions of Section 31 of the Reserve Bank of Indian Act, 1934, any local authority to which the Government may by notification in the Gazette extend the provisions of this Section, may, with the previous sanction of the Government, borrow money by means of the issue of bills or promissory notes payable within any period not exceeding 12 months, for any purpose for which such local authority may lawfully borrow money under the provisions of this Act.

Though the Act is 36 years old, it has all the provisions making it an excellent basis for regulating borrowings by the local governments. It has features for limitations to borrowing for escrow and for creating charges for future revenue streams.

The Committee on Decentralisation of Powers in Parts A, B and C of Volume I of its final Report submitted to Government in December 1997, has made specific recommendations with regard to the raising of funds by the Panchayats and Municipalities by way of loans. Para 3.28.4 of Volume I Part A & B of the Report relating to the Panchayats is extracted below.

"Among other sources of funding for the development schemes of the Panchayats loans from banks and financial institutions could assume special importance in the near future. While for such loans, the Panchayats could be permitted to use the revenue stream from the project or the assets created by the project as collateral security for borrowing the required funds. Yet at this stage, it may not be advisable to allow the Panchayats to pledge their properties in general to raise loans. However, as a beginning Panchayats may be allowed to pledge the property where the development scheme is being implemented. On no account should land belonging to educational and public health institutions transferred to Panchayats from the Government be allowed to be pledged."

In the light of the above stand, the Committee recommended following amendments to Section 197 of the Kerala Panchayat Raj Act, 1994.

1. The existing Section may be numbered as sub-section (1) and the following proviso shall be added thereunder, namely:-

"Provided that no property of the Panchcayat shall be pledged for raising such loan unless the loan is to be utilized for a remunerative development scheme."

2. After sub-section (1) the following sub-sections shall be added, namely:-

"(2) The borrowing powers shall be fixed by the Government in manner prescribed and in relation to annual income of the Panchayat.

(3) The District Panchayat may float Revenue Bonds for which the net revenue flowing from the facilities or services created utilising the proceeds of such bonds can be offered as security. Any shortfall in the payment to the escrow accounts shall be made good by the Government by directing the grants due to the Panchayat to the escrow account."

In respect of the Kerala Municipality Act, 1994 the recommendations of the Committee are extracted below:-

"Sections 297 to 309 deal with the powers of the Municipality to borrow funds, the time limit for repayment of such borrowed money, limitation to borrowing etc.

The present municipal law provides for market borrowing through issue of securities and such securities qualify as Trustee Securities under the Indian Trust Act 1882. But this provision has not been used by any municipality. The experience of several Countries particularly the USA shows that there is much scope for developing the market for municipal bonds so that funds could be tapped, particularly for improving urban infrastructure.

Municipal Bonds are essentially of two types differentiated on the basis of how the repayment is secured. General obligation Bonds are backed by the faith in the financial capacity and standing of the municipality. Issuance of such bonds are subject to a statutory limit and is preceded by a thorough assessment of the debt carrying capacity of the Municipality based on factors like efficiency of tax collection, financial management, debt service ratio etc. Normally such bonds are used to finance projects with lowers return like health, public buildings, public lighting, recreation, and the like. The other type of bond viz., Revenue Bonds is secured to the specified sources of revenue flowing out of the facilities services which are financed by and proceeds of the bonds. Security is by way of pledging the need revenues of the system and the money and assets are credited to special funds like toll funds. Revenue Bonds would entail rigorous rate setting to meet the debt servicing obligation. Obviously these bonds are outside the statutory limit on borrowing by the municipality.

The existing provisions of the Kerala Municipality Act are sufficient for issue of General Obligation Bonds. But amendments are required for issue of Revenue Bonds with the consequential provision for escrow mechanisms and credit enhancements. At present borrowing limit is pegged at 12.50% of the annual value of buildings and lands. It would be more prudent to link to borrowing powers to the annual revenue receipts. But the Revenue Bonds should be excluded from this limit.

The desired objectives could be achieved by amending Sections 297, 299 and 303.

In sub-section (1) of Section 297, after the word "fees" the words "user charges" may be inserted.

Section 299 may be amended as follows:

"299. Limitation on borrowing power:- Notwithstanding anything before contained, the borrowing powers of a municipality shall be fixed as prescribed by the Government in relation to the annual receipts of that municipality.

Provided that nothing contained in the section shall affect the issuance of Revenue Bonds by the municipality, secured by pledge to the revenue stream from the project which is financed by the revenue bonds and ring-fenced by escrow account and credit enhancements.

Notwithstanding anything contained herein before shortfall in the escrow account would be made good by directing the grants due from government, on intimation by the Trustee".

To Section 303 (1) the following sentence may be added:-

"In the event of the municipality defaulting in payment of quarterly installment, grants due from Government may be remitted to the sinking fund."

The recommendations of the Committee as given above have been accepted in full by the Government and incorporated as amendments to the Kerala Panchayat Raj Act 1994 and the Kerala Municipality Act 1994.

As regards the Kerala Local Authorities Loans Act, 1963, the Committee suggests the following amendments:

(1) The term 'local authority' may be defined as "any person legally entitled to the control or management of any local fund or legally entitled to impose any cess, rate, duty fee or tax and includes the Panchayat or the Council of the municipality, as the case may be, and also includes the Secretary of such local authority if he has been specifically authorised by the local authority for discharging the duties and functions under this Act."

(2) After the definition an explanation may be added to the effect that .- "a person means and includes any authority or body corporate".

(3) The borrowing powers of a local authority shall be fixed by the Government in relation to the annual income of that local authority.

(4) A proviso may be added that this shall not affect the issuance of Revenue Bonds by the Local Authority by pledging the revenue stream from the project and ringfenced by escrow accounts and credit enhancements.

40. The Kerala Motor Vehicles Taxation Act, 1976 (19 of 1976)

This Act provides for the levy of tax on motor vehicles and in passengers and goods carried by the motor vehicles in the State. Section 19 of the Act provides that a compensation can be paid to each local authority, an amount that has to be fixed according to the rules prescribed. These rules provide for constitution of a Committee whose recommendations are then processed by Government and a decision taken.

But with the amendment to the Constitution, a State Finance Commission has to be constituted every five years and it has been given the power to recommend devolution of funds from the State Government including sharing of taxes. Thus, when there is provision for a constitutional body, there is no need for another system to determine the share of tax of local bodies. Therefore the Committee on Decentralisation of Powers recommends that Section 19of the Kerala Motor Vehicles Taxation Act may be modified as follows:

"19. Sharing of the proceeds of tax with local authorities, - From the proceeds of the tax collected under this Act every year, the Government shall before the end of the succeeding year, pay to each local authority such share a may be fixed by them with reference to the recommendation if any made in this behalf by the State Finance Commission constituted under Article 243 I of the Constitution".

41. The Kerala Toll Act, 1976. (6 of 1977)

This Act empowers Government to levy tolls in the case of bridges costing more than Rs.35 lakhs. Section 3 of the Act provides for levy of toll, by Government on every motor vehicle entering a bridge constructed wholly or partly at the expense of the Government and declared open for traffic after 1st January 1983. The toll shall be levied at such rate and for such period as the Government may declare to be necessary for the recovery of the amounts expended upon such bridge by the Government or such portion thereof as may be decided by the Government together with interest at such rate as they may fix. The Government may farm out the collection of toll. As per Section 12 a fund namely "Kerala State Bridges and Roads Fund" is constituted to which the proceeds of the toll levied and collected shall be credited after deducting the expenses of collection as determined by Government. The amount is first credited to the Consolidated Fund of the State, and after deducting the expenses the remaining among, under appropriation duly made by law, is entered into and transferred to the Bridges and Roads Fund, to be administered by the Chief Engineer (Roads and Bridges). The fund is to be expended in the manner as prescribed in the Rules, for the purpose of constructing roads and bridges. Section 3 A introduced by 1986 Amendment enables a Company or a Corporation under the State or Central Government to levy the tolls at the rate fixed by the Government, till the recovery of amount expended upon such bridge.

One of the important methods of financing infrastructure is to enable private investors to build infrastrastructure using their funds and later recover it through tolls. The tolls are seen as a form of concession. The amount leviable is built into contractual agreement between the Government and the private investor. Of late local governments have been showing keen interest in taking up such developmental works particularly in providing bridges and roads. Therefore amendments to the Kerala Tolls Act have to be made on the following lines.

1) Local governments may be permitted to take up works on Build-Operate-Transfer (BOT) basis by giving concession on collecting tolls to the private investor.

2) The local governments themselves can levy tolls in the case of bridges constructed by them using their own funds. The rates may be as decided by the local body and notified by them.

42. The Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 (25 of 1968).

The Local Governments, Particularly the Village Panchayats and Municipalities own a lot of public buildings which are rented out or leased out. Therefore they have to be given clear powers to evict unauthorised occupants. With this objective the Committee on Decentralisation

of Powers suggests the following amendments to the Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968.

(1) As per section 2 (b) of the Act 'local authority' means " a municipal corporation, a municipal council, a township committee, a panchayat or any other authority by whatever name called, constituted under any law for the time being in force for the purpose of local self government and includes Thiruvananthapuram City Improvrmrnt Trust Act, 1960 or any other authority constituted under any law for the time being in force for the development of any local area". The definition may be revised as "a municipality constituted under the Kerlal Municipality Act, 1994 or a Panchayat at any level constituted under the Kerala Panchayat Raj Act, 1994 or any other authority by whatever name called, constituted under any law for the time being in force for the development of any local area".

(2) As per section 3, Government may by notification in the gazette appoint such persons, being gazetted officers of Government, below the rank of District Collector, as they think fit to be estate officers for the purpose of this Act,; provided that in the case of local bodies the executive authorities of the concerned local authorities shall be appointed as estate officers. The proviso may be modified to the effect that in the case of the Panchayats and Municipalities, the Secretary of the local authority concerned shall be the estate officer.

Since the Act applies to all public buildings or part thereof belonging to the Government or a local body or an autonomous authority, the appellate powers of the District Collector under Section 10 against the order of the estate officer may be retained.

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APPENDIX - B (Acts to be repealed)

1. The Kerala State Rural Development Board Act, 1971 (15 of 1971)

The Kerala State Rural Development Board was established in 1971, at a time when the Village Panchayats were very weak, financially and technically. Then it was required to support such Panchayats with funds and technical man power to carry out specific projects particularly commercial ones. But with the massive devolution of funds to Village Panchayats and the provision of technical support for execution of public works the situation has changed totally. The Rural Development Board has become irrelevant. This has been suggested by the First State Finance Commission in its report which is extracted below:

"8.3. So far as the rural Local Bodies are concerned, the Rural Development Board functions in a different manner. No loans are given by them. The Panchayat makes a proposal for the construction of buildings for commercial purposes or for their own use and the Rural Development Board, if it approves the proposal, finances it subject to the Panchayat meeting a part of the capital cost. The entire process of construction including calling for tenders, supervising the construction etc., is handled by the Rural Development Board and the total cost inclusive of centage charge at 18% is treated as the amount to be recovered from the Local Body with interest. An analysis was done on the rate of return obtained by the Local Bodies on such investments, selected at random, made by Rural Development Board, and the details are in Annexure VIII-1. This discloses that the rate of return is negative in most cases and even cases where the rate of return is not so, it is well below 12%. During the evidence tendered to the Commission, suggestions were made for the discontinuance of the present practice of Rural Development Board undertaking construction of the buildings and charging to the Local Body the entire cost including centage and the cost over runs not attributable to the Local Body.

8.4. The poor returns of Local Bodies from their investment financed by Rural Development Board is largely attributable to the poor choice of projects and lack of effective cost control mechanisms in the execution of these projects. Development of shopping and commercial complexes are taking place all over the State and the vast majority of them are financed by

non-Governmental agencies. It is doubtful whether the construction of shopping or office complexes should be an item of priority to Local Bodies. It is ironic that many Local Bodies have constructed such complexes but there is no single modern garbage treatment facility in any Local Body. The SFC is of the view that construction of shopping complexes and office complexes should not be a high priority item to Local Bodies. There are many other socially more useful purposes which should command a higher priority. Moreover the major contribution in this area is being made by the private sector and there is no evidence to suggest that they are reluctant to go in for investments which will fetch adequate returns. If Local Bodies have real estate suitable for development as shopping or office complexes, they can invite private developers to develop these on the basis of open competitive tenders with provisions for payment of a share of the rent or for giving free to the Local Body a portion of the developed property. The Local Bodies should however be free to undertake these projects provided they are credit-worthy and can be financed by funds raised at commercial rates of interest. All over the State, a large number of private agencies are undertaking the construction of such complexes depending upon funds borrowed from financial institutions at market rates. There is no compelling reason why Local Bodies cannot do likewise. Such borrowing and lending will be done with both agencies keeping their eyes open and after the projects, hopefully, undergo rigorous valuation. There should be no question of Government or any agency guaranteeing such loans or giving loans at concessional rates of interest. The present practice of Rural Development Board being the financing agency as well as the construction and supervising agency should cease and it may lend money to Local Bodies on merits and at market rates after rigorous evaluation of projects."

What is now needed is a mechanism for routing funds from financial institutions as well as the market to local governments for taking up works of a commercial nature, or investments in infrastructure which require large funds at one go. For this purpose it would be better to have a Company. There is no need for a statutory organisation. Hence the Kerala State Rural Development Board Act 1971 may be repealed.

Since Kerala has a similar company, Kerala Urban Development Finance Corporation (KUDFC) for the urban areas, it is suggested that this company could be suitably restructured to service rural areas as well. The Committee feels that there is no space for two organisations to fund local governments. The long experience of KUDFC (it is the oldest such institution in the country having been establishe in 1970), and its working relationship with financial institutions can be put to good use and its expertise suitably enlarged.

2. The Kerala Hackney Carriages Act, 1963 (18 of 1963)

This is an old legislation, which was valid during the period when horse and bullock carts, rickshaws etc were very common and their use as passenger or goods conveyance needed to be regulated. In Kerala almost all such hackney carriages including cycle rickshaws have disappeared. Only some bullock carts and hand carts and a few horse carts exist now. The number is dwindling and there is no need for their registration or regulation. Therefore the Committee on Decentralisation of Powers recommends that this Act may be repealed.

3. The Kerala Live Stock Improvement Act, 1961 (17 of 1961)

This is a legislation enacted with a view to improving the live stock in Kerala. As per Section 4 of the Act, no person shall keep a bull which has attained the prescribed age except under and in accordance with the terms, conditions and restrictions of a licence granted under the Act, unless it is certified by the prescribed officer that the bull has been effectively castrated by a method and in a manner approved by the Director of Animal Husbandry. The Director or any officer or person authorised by him is the licensing authority. As per Section 14 the officers of Animal Husbandry, Agriculture and Revenue Departments and the employees of the Panchayats and Municipalities are responsible to report to the licensing authority the cases of violation of the provisions in the Act and to assist him to prevent the commission of such offences.

This is an old legislation brought in to genetically improve livestock in Kerala. Essentially it aims at licensing Stud Bulls. The local authorities were involved in reporting violations. The Committee on Decentralisation of Powers feels that since this Act is practically in disuse and is no longer relevant, it may be repealed.

1. V.J. Thankappan Vice-Chairman Sd.

2. K.Prakash Babu Member Sd.

3. T.K.Balan Member Sd.

4. M.A.Oommen Member Sd.

5. M.P.Parameswaran Member Sd.

6. K.Mohan Das Member Sd.

7. P.K.Sivanandan Member Sd.

8. S.M.Vijayanand Member Secretary Sd.