BREACH OF CONTRACTUAL OBLIGATIONS BY THE STATE
Comunidades experienced brief period of liberation from State bondage under Portuguese rule for eight months i.e. from 15.4.1961 until Liberation of Goa in the same year. Like all western colonial rulers, the Portuguese had earlier assumed the concept that ownership of the land occupied by them on Indian Territory in Goa, was originally vested with the king or ruler of the locality and not with the indigenous people or Gaunkars and hence considered that it vests with the Crown in Portugal, on ousting the last king/ruler in Goa. It is only after several legal battles by our predecessors that the Portuguese conceded that they committed gross error and thereafter discarded their thought and declared that Comunidade lands are not held by the Comunidades on State tenure nor on emphyteusis. It stands further declared that the land is not subject to payment of any Land Revenue to the State and declared abolition of the same towards State coffers. Earlier Codes, in view of wrong presumption were caused to consider that the Comunidades held the land by way of grants or emphyteusis or on land tenure. By this thought or concept, the old Codes provided for payment of Land Revenue to the State, Land Acquisition in favour of the State, transfer of rights by grantee of land, by sale, on prior permission/sanction of the Governor. This wrongly presumed concept of ownership of land to be primarily vesting with the State resulted in the adoption of some provisions of Portuguese Civil Code. While the grant of land by the Comunidades were earlier considered to be sub-leases or sub-emphyteusis, based on the same concept of western thought and that primary ownership of the land is always vesting with the State as the original lessor. Hence the State earlier exercised the power of Eminent Domain over the land of the Comunidades. This nature of power of the State to acquire land has been halted under the Code of 1961. The State thereof has accepted to take on arrendamento or requisition the land of the Comunidades in the interest of the State, as provided under the Code but for agricultural purposes only. Some Comunidades dissolved by wrong acts of the State, during Portuguese rule, by this erroneous concept or for want of payment of land revenue to the State and/or under such concept of ownership, by exercise of the powers of Eminent Domain, are now subject to be reconstituted at the instance of the Central Government vide this recognition/acknowledgement given in the year 1961. Likewise, the Comunidades or Gaunkars in order to maintain their originality and identity, should have also taken steps to restore their Devasthans, Temples and Deities within the respective Gaunkaries, which at present are functioning in exile since Portuguese invasion, in different localities in and outside Goa as refugees. Gaunkars for their spiritual/cult requirements provided and reserved lands for temples and churches, crematoriums and cemeteries in their respective Gaunkaries and these cannot be put to any use other than for the purpose it has been provided or reserved. Presently such reserved lands are unduly interfered with by Revenue Authorities of the State on wrong exercise of powers under Revenue Laws. By this wrong acts and process, documents are prepared on reserved lands without reference to the Comunidades but in the name of unauthorized persons or entities and thereby caused to be transferred, sold, etc. It is thus made clear that primary or founder ownership of land of Comunidades does not vest with the State or other bodies but with the Gaunkars.
The State does not possess Legislative nor has constitutional competency to legislate on the land of the Comunidades or over affairs of the Comunidades. The State has no Eminent Domain over the lands of the Comunidades to acquire or impose agrarian land reforms and constrain or restrict the functions of the Comunidades. Comunidade lands purportedly acquired by the wrongful exercise of authority of Eminent Domain by the State (both for State and Central Governments or for Corporations and Housing Boards or for Public or Private Companies or Societies etc.) amounts to criminal breach of trust and fraud with an intention to eliminate/destroy the Comunidades in Goa. All lands and properties of the Comunidades currently in the hands of the State or other persons at the instance of the State and all improvements made thereon shall be liable for forfeiture and recovery. The acquisition of the land so called, is made at the risk of the Government or those parties who have obtained undue benefits. The State has granted mining leases to various parties to extract soil, mineral ore, cutting of the hills and hillocks, inundation and filling up of low-lying areas and destruction of forest cover on the land of various Comunidades in Goa, without the authority of law, and have thus plundered the wealth of the Gaunkaries besides destroying their eco-system and healthy environment. The acquisition of land by the State is illegal and amounts to fraud. The Revenue authorities have illegally collected revenue by way of land conversions, surveys etc., from the land of Comunidades in favour of the State coffers, by wrongly exercising the powers under Revenue Laws on non-revenue lands belonging to the Comunidades. The same holds good against the wrongful imposition of agrarian land reforms that has freezed the revenue of the Comunidades, besides destroying the fertile and developed agricultural lands and bunds etc. The Government has no authority to make policies or laws or amendments to regularize or encourage regularization of encroachments on Comunidade lands. The Government of the State is wholly responsible and liable to clear in whatsoever manner, all encroachments and trespasses as the same is due to breach of trust by the Administrator of Comunidades, an appointee of the Government of Goa, and by corrupt acts of other employees supposed to be appointed by the Director of Civil Administration. The State wholly responsible and liable to restore to the respective Comunidades the revenue loss and damage caused to the land and properties through various organs of the State and other elements. The Doctrine of Eminent Domain of State by Hugo Grotius propounded in the year 1625 does not apply to provide powers to the State to acquire the lands of the Comunidades.
The then High Court (Relacao), on 30.1.1786, passed a landmark judgements declaring that the Civil and Revenue Courts established by the State in Goa have no jurisdiction over the judges and courts established by the Gaunkaries/Comunidades in Goa. By an earlier judgement dated 8.1.1744, the then High Court (Relacao) declared null and void a decision taken by the then General Council of Salcete, for payment of taxes by Gaunkars, being illegal. All these judgements ought to have been part of a study under legal history of India. However, the present Civil and Revenue Courts, blissfully ignorant of the provisions of the Code of Comunidades, which is officially in Portuguese language till date, are causing prejudice to the Gaunkaries by entertaining suits against the Comunidades, when specific remedy is available under the Code itself. Neither the Government nor the Civil Courts are provided with an authentic translation, in a language recognized under the Constitution of India, till date. The currently available English version, besides being unauthentic, is fatally relied upon by Courts and by everybody else. Much harm is presently caused by the State judicial organs by excess of their jurisdiction. The Civil and Revenue Courts have no authority or powers to adjudicate on matters or subjects within the jurisdiction of the authorities appointed under the Code of Comunidades to decide, and especially when provisions of Civil Procedure Code and Land Revenue laws of the State do not apply. It is known that these Courts zealously uphold their powers to adjudicate even when issues are beyond their scope.
The Central Government needs to conduct a study of the role played by Gaunkaries prior to Portuguese, during and after the Portuguese rule vis-�-vis atrocities caused against them and their future in tune with Gandhiji�s thought on local self-governance. The Panchayats are no match nor translates to what is meant by Gaunkaries, but imposed prejudices in the absence of Revenue Villages within the jurisdiction of Comunidades. No Village Panchayats, Municipalities or Planning and Development Authorities can carry out their functions or planning over the land of the Comunidades, when such lands do not constitute Estates nor fall within the term �land subject to legislation� under the List I and II of the Seventh Schedule of the Constitution. The Village Panchayats, Municipalities, Town and Country Planning and Development Authorities, P.W.Ds, Irrigation Department and Revenue Authorities of the State are the cause of destruction and degradation of fertile agricultural lands, paddy fields, irrigation systems, horticultural gardens, encatchment areas, lakes, ponds and rivulets in Goa. Most of the encatchment areas, lakes, ponds, irrigation systems, paddy fields etc. have been illegally converted into waste and sewage disposal sites. Lakes, ponds and encatchment areas have turned into cesspools and the underground fresh water reservoirs polluted. A case in particular is the Mormugao Municipal Council which is in continuous contempt of Court for breach of the undertaking given to the High Court in Writ Petition No.86/86.
In a recent Mabo�s case, the Australian High Court by judgements of 1992, has held that indigenous people of Australia had common law rights and interests in land and waters, according to their traditional law and customs. The High Court held that it has been wrongly assumed that indigenous people had no prior right of ownership of Australia. The judges held that this legal fiction had continued for more than 200 years. This judgements of the High Court caused the Australian Parliament to enact the Native Title Act 1993, establishing the rights of the indigenous people of Australia over the land. The National Native Title Tribunal is constituted under the Native Title Act, 1993, and is functioning from 1.1.1994. Whereas for Gaunkars in Goa, such declaration is given by the State itself on 15.4.1961 and hence there is no need to move any Court to establish the rights of the Gaunkars of Goa over their land.