In 2009, the Supreme Court in Fomento Resorts & Hotels Ltd vs Miguel Martins once again affirmed that natural resources are commonly held by the state as a trustee on behalf of the people, especially future generations.
Governments at the local, State and national levels are supposed to be the trustees of the natural resources on behalf of the people. It is called the doctrine of public trust. But the issues that the Bhutani project raises are an illustration of how the State has breached the trust.
If you enjoyed reading this article, you can help support our journalism by adding OHeraldo as a preferred source.
It is in fact a classic example of how a fence can be eating the very crop it is supposed to protect. The panchayats and the administration, the State Legislature and Executive, the Parliament and the Executive, are supposed to be the protectors of the hills, the fields, the plains, the water resources.
Even the systems that are set out are not aligned with the Constitutional obligations. The 73rd Amendment to the Constitution of India clearly mandated planning at the Panchayat level for economic development and social justice.
This means that the panchayat has to be the first body that has to approve or disapprove a construction project, because it has to see whether it falls within the vision of the concerned village, as expressed through its ward committees and its gram sabha, as to how it imagines its development, what the village wants within its space, what it does not want, what are the uses that land has been put to, what are the consequences of such uses of land (in order to do course correction), what are the skills available within or around the village, which people are willing to apply to their village (certainly not sewerage working which is both a casteist and a hazardous occupation), what are the resources in the village or available to the village (without exploiting another village or city), what are the village’s USPs, including its biodiversity.
But now, as things stand, the panchayat is the last to get the application, after all others have approved, and the panchayats are found saying that all approvals are obtained anyway. So whatever happens to Panchayati Raj in this context, the village’s vision be damned.
If the State wishes to introduce a township project, it could well ask the panchayat to put it up at the gram sabha as to what the people think about the project. If people accept, then it can be considered. If people accept with certain conditions, such as, that a certain tax needs to be paid to the panchayat, then it can begin to be considered.
Therefore, this initial screening must be left with the people. No doubt we cannot gloss over power dynamics in a gram sabha, including gender and caste dynamics and pro or anti-migrant dynamics. Here, it must be made clear that any resolutions which are contrary to the Constitution, can hold no water.
We also know that many panchayats and secretaries sit on files for months together without reason. That is where accountability must be pinned on authorities who omit to carry out their duties or carry out their duties in violation of the law.
There are gram sabhas, such as the one at Taleigao, that have passed resolutions for a moratorium on issuing licence to any new mega construction project. This comes after civic problems, forceful expansion of pathways and roads cutting into fields, paucity of water for domestic consumption and irrigation, and witnessing the flooding of the Panjim city.
But these resolutions are not only unheeded, but trampled on. This is where, again, accountability has to kick in.
The Bhutani project for instance, is believed to not yet have the water supply connections. But how have we landed in such a scenario, where most requisite permissions were given before checking the water availability for such a mega project, with so many swimming pools et al?
People in Sancoale have been raising issues about water availability. Therefore the panchayat has to be the first point of contact for permissions.
Where is the accountability when technical clearances are given by the Planning and Development Authority or completion certificates are issued by the Village Panchayat, when it is so visible to the naked eye even that there are no roads of the breadth that the real estate project claims to have access through?
Further, in order to ensure accountability, there have to be clear provisions and notifications. And if one notification, or rule has amended another, there has to be some Government website where the updated legal position is clearly set out by way of a consolidated notification. Otherwise, it leaves room for corruption and confusion and lack of accountability.
If ward committees as prescribed under the Goa Panchayat Raj Act, that have to be involved in the planning are not constituted, or are not constituted in the manner they should be or are not enabled to function in the way they should be, then whoever is responsible for this should be held accountable.
Without pinning accountability, the authorities will keep repeating brazen illegalities and violations, and environmental destruction.
If any project requires an Environment Impact Assessment, how are permissions being granted without the Environment Impact Assessment? Who is responsible for this? It is not enough to strike down a permission for violating rules.
It is necessary to hold somebody or some authority accountable for not ensuring the necessary compliances. This will produce a deterrent effect. Something on the lines of the Right to Information Act, 2005, which imposes a penalty on the concerned authority for non-compliance.
Also, parties should not have to do another round of litigation before a Lok Ayukta for this purpose. There should be strict liability and apparent non-compliance by a Government officer/authority, should immediately result in holding them accountable.
Else, this will go on and on with each of the projects that are avalanching into Goa, and it is simply unmanageable to expect the people to knock on various doors for justice, first to have a permission quashed, and then to have the authorities accountable.
If there are no consequences for those who are omitting to do what they ought to do, or committing acts which they ought not to, then they will keep repeating these gross violations, because at best the permissions and approvals will only get struck down.
If we do not emphasise on accountability, the very fence that is meant to protect our natural resources, and manage them as the people’s trustee, will gulp everything.
(Albertina Almeida
is a lawyer and human rights activist)
