ReportonPvtandPersonalLawsOfGaunkars

CALLING ATTENTION OF ALL CONCERNED GOANS/CITIZENS

NO CITIZEN IN THIS STATE OF GOA CAN BE SAID TO BE IGNORANT OF THE LAW OF THE LAND AND OF THE FOLLOWING FACTS.

THE CONCERNED AUTHORITIES OF THE GOVERNMENT CANNOT BE SAID TO BE INNOCENT AND CANNOT EXCUSE THEMSELVES AS NOT RESPONSIBLE FOR THE PLUNDER OF LAND AND NATURAL RESOURCES OF THE COMUNIDADES IN GOA THROUGH VARIOUS AGENCIES OF THE STATE.

                            A BRIEF REPORT

ON THE NATURE OF LAND OWNING AND HOLDING BY THE COMUNIDADES IN GOA AND THE NATURE OF FRAUD INTRODUCED AGAINST THEM AFTER 19.12.1961.

WHAT ARE COMUNIDADES?

The Comunidades/or Village Communities of Goa are neither a creation nor an establishment by any State Ruler/Government at any point of time. The said Comunidades are known to have come into existence sui juris and prior to coming into existence of the State itself. It stands recorded that it is the settled communities that first developed the land by clearing the jungles and bushes and established their own Villages, installed their own respective Village Deity and introduced their own private laws to be governed by it. Historical records show that these Village Communities, then commonly known as Gaunkaries or Gaunponn in Goa, came to be constituted at a stage in human social evolution when nomadic life of people moving and wandering with cattle in search of green pastures came to a halt in a given locality and over a land that belonged to no one before them, with an intention to have permanent settlement thereof.

THE LAW OF THE GAUNKARS AND THE CODE OF COMUNIDADES

The fact is these Village Communities have come into existence much prior to coming into existence of the term �State� as understood under the modern concept. The Comunidades in Goa do not fall within the term �State� as expressed under Article 12 of the Constitution of India. The Rules and Regulations of the Comunidades in Goa pertain to various contractual obligations and commitments inter alia the members of the public and the State administration and are founded on usages and customs of the natives followed down the generations.

The law of the Gaunkars is not enacted by any State Ruler or by any State legislature at any point of time and stands declared to be private and personal law of the Gaunkars. Their law has been solemnly recognized by the State after systematic codification of the common usages and customs practiced by Gaunkars over the centuries and being in force in this State of Goa, and therefore, is consistent with the Fundamental Rights enshrined in the Constitution of India in terms of Article 13 of the Constitution of India.

The above said usages and customs are said to be founded under ancient Hindu Law prevailing in this part of the Territory of India before the Muslim and Portuguese Rulers and were protected by the Treaty/Pact of 1510 as declared under the Foral of Afonso Mexia dated 16.9.1526. The present Codigo Das Comunidades or �Code of Comunidades� in force, which stands recognized by the State administration by virtue of promulgation of Diploma Legislativo No.2070 dated 15.4.1961, is a set of mere Rules and Regulations pertaining to the administration of the affairs of the Comunidades and concerning the various contractual obligations thereof inter alia the members as well as with the State Government authorities.

After the liberation of Goa from Portuguese Rule, the State Government have suo moto unilaterally carried out so called amendments to the said rules and regulations (Code of Comunidades), when no such Constitutional Legislative competency or powers are provided under the Constitution of India to amend any customary law of the natives which stands founded on usages and customs from times immemorial. This has also been done by ignoring the prior requirement of hearing of the concerned Comunidades in terms of Article 652 of the Code of Comunidades.

The present Codigo das Comunidades, which stands promulgated by the Diploma Legislativo No.2070 dated 15.4.1961, is still in Portuguese language. However, an unauthenticated and/or fraudulently framed so called English translation is being circulated by some persons in the name of the Administrator of Comunidades of South Zone, Margao, and the same copy is also circulated by the State Government�s Revenue Department through the Government Printing Press as �Code of Comunidades� by taking shelter of the Government Press. The State Government has made use of the said unauthenticated illegal English version to carry out so called amendments thereof and copies of the same are provided to the Judicial organs of the State as well as to the Administrators of Comunidades and the Administrative Tribunal of Goa. Gross prejudice is caused and being caused to the interests of the Comunidades by making use of such fraudulently framed and fabricated so called Code of Comunidades in English version. Likewise, large number of Judgments which stand passed by the Relacao of Goa ( the then High Court of Goa) and by the Supreme Tribunal of Portugal, besides the then Administrative Tribunal of Goa, during the Portuguese rule, on the matters of interest of Comunidades in Goa, are recorded in Portuguese language.

The first compilation of usages and customs of the natives of Goa, are found recorded in the Foral or Charter (the Magna Carta) of Affonso Mexia dated 16.9.1526, which throws light on the pre-existence of the Village Communities/Comunidades of Goa, before the arrival of the Portuguese in India. This Foral with reference to the Treaty/pact of 1510, admits the State�s obligation to protect the customary laws in existence and defend the properties of the natives and the Gaunkars against any aggression from outside and at the same time acknowledges the acceptance of the annual tributes and taxes to the State Rulers from the natives and the Gaunkars in terms of the existing laws based on such usages and customs for providing such guardianship and protection.

MEANING OF �ABSOLUTE DOMAIN� OF THE STATE AND THE �RIGHT TO HOLD PROPERTY�

The Carte de Lei dated 9.5.1901, promulgated by the Portuguese in the territory of Goa, solemnly declares that the Government�s absolute domain shall vest on lands and immovable property in this State in India where the land and immovable property does not belong to any person, i.e. where it happens to be non-State land and immovable property.

This law of 9.5.1901 further provides powers and authority to the concerned Government of the State to provide grants and/or assign the various rights over the land belonging to the State to the subjects/citizens as to hold the land in private capacity. The above mentioned solemn declaration has drawn a clear line indicating what pertains to Absolute Domain of the State in Goa. Whereas, what already stands declared to belong to the natives/indigenous people and/or to the Comunidades in this State cannot be said to belong to the State and/or to the concerned Government.

The grants and assignments made by the State Government over the land belonging to the State so as to permit holding of the land and/or any immovable property thereof in private capacity is governed by the State made laws and such holding of rights by such grants and assignments in common English parlance would mean the �right to hold property�. The nature of rights granted and/or assigned by the respective Comunidades in Goa over their absolute private land or immovable property, where element of State grant or assignment is absent in terms of their private law, cannot be equated to the rights granted and or conferred by the State Government in terms of such assignments and does not come within the express or common English parlance as right to hold property. In either case, this right to hold property does not operate against the grantor as such right is subject to elimination or acquisition at the instance of the grantor, be it the State or Comunidade.

The Roman concept of jurisprudence followed during the Portuguese rule in this State of India, does not foresee the granting or assigning of any absolute Domain over the land or immovable property in favour of any person or subject or even by law of prescription. The said Roman law foresees only the right in the form of Domain Util vesting with any holder of the land and that absolute domain always vests with the grantor and/or the assignor thereof. Therefore, such natured grant or assignment of rights in favour of any person or subject cannot come into existence without the execution of the contract, without indicating the period or duration, and without indicating the consideration payable thereof by such grantee or assignee to the holder of absolute domain. The grants and assignments made under the Roman concept, either by the State or by the respective Comunidade in Goa are subordinate to such Absolute Domain which always vests with the grantor of such Rights. The respective holder of absolute domain can terminate such contract by the principles of the Doctrine of Eminent Domain, before lapse of such contract or grant.

The private Village and/or the land of Comunidades in Goa and/or the land and immovable property owned and/or held in possession in the said private Village by such grantees and/or assignees and/or by their respective successors-in-interest, does not fall within the definition and meaning expressed and given to the land and immovable property under Article 31A and/or under Article 300A of the Constitution of India as there is total absence of the element called an Estate in Land. A State Government, as foreseen under the Constitution, has not succeeded any right over the land and properties of the Comunidade in terms of Article 294 and 295 of the Constitution of India and therefore can have no powers of Eminent Domain to acquire the land belonging to the said Comunidades and/or to acquire the land held by the grantees and assignees of the Comunidades in question. The State Government could do so provided the Government is in position to show or satisfy that such land and/or property is granted by the State at any point of time by the powers of its absolute Domain over the given land and prove that such right to hold land or immovable property is subordinate to such absolute Domain of the State Government.

COMUNIDADE LANDS CANNOT BE ALIENATED

The provisions of Article 647 of the present �Codigo das Comunidades� (Code of Comunidades) in force, prohibits alienation of the lands belonging to the Comunidade Villages in favour of any person or authority. Article 12 of the said Codigo provides that no immovable property belonging to the Comunidades in Goa is subject to attachment by any Order of the Court. It further provides that the Court may by Order attach the liquid assets or amount in the coffers of any given Comunidade and/or on future income and receivables to satisfy any debt or liability of the given Comunidade but such order shall never fall on the immovable assets of any given Comunidade. The provisions of Article 323 of the Code of Comunidades provides scope to grant or assign purely temporary rights to the Government over the land belonging to the Comunidades for the purpose of agricultural demonstration farms only.

The provision under Article 647 of the said Code of Comunidades contemplates that no ownership/proprietorship Title to the land in the given Village of the Comunidade can vest on any person and/or any authority. No person can therefore legally claim to be �owning� any land thereof, except the usufructory rights to enjoy the benefits of the land. This provision in the Code of Comunidades is similar to what is provided under Rule 3 of the GDD Land Revenue (Disposal of Government Lands) Rules, 1971 when it comes to granting of rights over the land belonging to the State Government. The provisions of the said Rule reads- �In all grants and disposals of land, the right of occupation and use only, subject to the provisions of the Code, shall be granted, and not the proprietary right of the Government in the soil itself.� In terms of Article 18 of the Constitution of India, the �State� within the meaning assigned under Article 12 of the Constitution of India is prohibited from granting any such Proprietorship natured title on citizens and is bound to abolish any such existing Title. In view of this, all the States and Union Territories in India have given due compliance to the said provisions of Article 18 of the Constitution of India and have abolished such titles and replaced the same by executing State land tenures/leases except by the Government of Goa, for obvious reasons.

COMUNIDADE LANDS ARE ABSOLUTE PRIVATE PROPERTIES

It stands agreed and solemnly declared by the State, at part III of the Preamble of the above said Diploma Legislative No. 2070 dated 15.4.1961, that �the land situated in the Village of the given Comunidade in Goa, is an absolute perfect private property of the respective Comunidade� i.e. without the element of any State grant and or conferment of Proprietorship Title by the State/Ruler and/or without any State land Tenure relationship ab initio. For this reason, it stands further declared that the Doctrine of Domino Util and Domino Directo which is applicable in cases where the land stands granted and or assigned by the State to the members of the public, to hold or to own any such land as Proprietors and/or as Tenure holders, is not applicable in cases where land stands granted and or assigned by the Village Communities/Comunidades. This declaration, coming at the fag end of the Portuguese rule in Goa, is founded on historical truth as revealed to the then Portuguese Government by Cunha Rivara, the then authority in the Administration of Portuguese Government in Goa. It is said this declaration is the outcome of an independent investigation into the case of Comunidades in Goa with reference to the then existence of such age-old Village Communities in the rest of the neighboring States in India, before the Moguls and British Rulers interfered with them (Refer (Out-cry) Brados a favor das Communidades Das Aldeas do ESTADO DA INDIA -by Joaquim Heliodoro Cunha Rivara).

ON ACCOUNT OF THE ABOVE SAID REVELATION, IT IS OF UTMOST NECESSITY TO CONSIDER THE FOLLOWING:

A.     During the Portuguese Colonial Rule in Goa and till the above said declaration, the Portuguese Rulers falsely and wrongly attempted to assume the status of State landlordism over the Comunidades in Goa by presuming that the Comunidades were holding the village lands by way of State grant or by a sort of Zamindari natured grant. However, in terms of Foral (Charter) of Affonso Mexia dated 16.9.1526, it stands declared that the Comunidades in Goa are known to be in existence since times immemorial and one cannot know the date or time of them coming into existence. Based on this false assumption, the said Rulers incorrectly and wrongly presumed that the private Villages of the Comunidades in Goa were held by a sort of State grant of emphyteutic nature (Roman concept of usufructory grant). For example, in some localities of the British Ruled India in the year 1793 and during the Tenure of Lord Cornwallis, the then British Governor to India, the holders of land by State grant were conferred with Proprietorship Title after such holders agreed to permanently settle the payment of annual Land Revenue to the State. By nursing such wrong concept, the Village Communities/Comunidades in Goa were also charged and/or made liable to pay Land Revenue (foro) to the State, besides the contribution towards Predial. (Predial in this case means liability to pay to the State Government a pre-assessed Tax on gross annual income receivable from the output of the agricultural land and in most cases such lands stand identified by such fiscal survey of the Government, as maintained by the then Director of Land Survey. This predial is payable every year by such holders of the land who are vested with Emphyteutic natured Title, either individually and/or collectively.)

B.     The term �Emphyteusis� originated in France. It is used to signify and recognize a sort of Proprietorship natured Right vesting in the citizen, of the nature understood under English legal terminology �to hold land in private capacity after having granted such title by the absolute owner of the land�. The Portuguese Civil Code foresees holding of such Title over the land belonging to the State by a citizen for his private utility and use until the same is determined by the terms of the Contract of Aforamento or such concession or until such right is expropriated. There is nothing called �holding� or �owning� the land or immovable property �in perpetuity� and/or by way of �permanent lease� under the term �emphyteusis�. The said Portuguese Civil Code does not foresee any person holding such title conferred or granted by the Comunidades of Goa.

C.     The then Portuguese Rulers abusively caused the dissolution of several Comunidades in Goa when such Comunidades or their Gaunkars could not pay the demand of such wrongly imposed payment of Land Revenue to the State Government for want of income and such payment fell in arrears and on account of such continuous default the private villages and lands therein fell in the hands of the Portuguese Rulers. After vesting of such possession over such villages and over such lands with the said Rulers, the then State Government commenced to carry out its illegal business and thus appropriated itself the income earned thereof. This business was carried out by assigning Rights under the contract of �Arrendamento� and/or �Aforamento� to members of the public under the State made law. The concerned Government in question after the dissolution of such Village Communities, in certain areas, also caused the distribution of the lands by assigning the rights by the contract of Aforamento with the members of the public and also granted such Emphyteutic titles thereof. Many of these grants and assignments are made by the then Portuguese Government by the provisions contained under the Decree or the Decreto No. 3.602 dated 24.11.1917. This Decreto presently stands rightly and/or wrongly repealed in terms of Section 201 of the Goa Daman and Diu Land Revenue Code, 1968. This decreto pertains to granting or assigning usufructory rights to the members of the public over the land and immovable property vesting with or belonging to the State.

D.     The provisions of Article 648 of the present �Codigo das Comunidades� indicates that the then Portuguese Government realized its own gross illegalities and wrongs against the interests of Comunidades in Goa during the administration of their Rule in Goa, since it was based on such wrong concept of State landlordism. The then Government admitted that the illegalities and wrongs need to be undone and provided scope to the concerned Government to restore, reconstitute and or re-establish the extinct Comunidades wherever possible. Till date no efforts have been made by any State Government of Goa, to comply with the said provisions and to undo the illegalities and wrongs by the State administration at the relevant point of time and to restore the wrongfully dissolved Comunidades in Goa. Instead, the government of Goa is making use of the laws which have originated under the British colonist to eliminate the Comunidades by all means available for the benefit of its politicians.

E.     No State Ruler/Government, in the absence of State�s absolute ownership to the land ab initio, could possibly assign such natured Proprietorship Title or execute any agreement or contract of State land Tenure and/or of lease agreement. In the absence of absolute ownership to the land vesting with the State, no State Government can execute any such contract with the subjects and/or attain the status of a Landlord in origin over any land.   In this State of Goa every successive Government is committing fraud by making use of fraudulently, if not illegally, framed so called Land Revenue Survey Records under the false color of the provisions of the G.D.D. Land Revenue Code, 1968 and thus falsely carrying business as foreseen under the Constitution of India and under the so enacted Agrarian Land Reform Laws which otherwise was not possible at all.

F.   No private Village and/or any land thereof, belonging to any Comunidade in Goa, can be expropriated and/or acquired by the State Ruler/Government, when there is absence of grant and absence of State landlordism ab initio. The State of Goa stands freed from the Portuguese Rule by the act of the Union of India on 19.12.1961, who succeeded the same before the popular State Government could be installed in this State. The said Union Government and or the State Government can succeed all the immovable properties and assets that belonged to the State and/or which were vesting in the ex-Rulers as provided in terms of Article 294 and 295 of the Constitution of India, and not beyond.   In our case, the Union of India is functioning as a �successor colonist� through vested interested politicians.

G.    Neither the Central nor the State Government can be said to be vesting with the powers of �Eminent Domain� over the land and immovable properties belonging to the Comunidades in Goa, when the said land and immovable properties thereof never belonged to the State and/or to the ex-Rulers as absolute owner in the first place and when no such subordinate rights therefrom stands assigned by the State and vesting with any Comunidade or with any member of the public. Neither is the Central nor the State Government in question a legitimate successor thereof in terms of Article 294 and 295 of the Constitution of India to assume the ownership of the private villages of Comunidades in Goa. The State Government of Goa has no constitutional legislative competency to legislate in the absence of State landlordism over any land and over the Private/Personal law of the Comunidades which is founded on age-old usages and customs from times immemorial.

H.   All the so called land acquisition by the Government of the land belonging to the Comunidades in Goa and/or of the land and immovable properties in the possession with any person by such forceful acts of the State Government in the private Village of the given Comunidade, is an illegality ab initio. This is a perfect example of colorable exercise of power under the provisions of whatsoever public laws and is amounting to a fraud by the State, as �Guardian�, whose Government is under contractual obligation to protect the interests of the Comunidades in Goa. In all cases under the Land Acquisition Act, 1894, the Government is making use of the fraudulently framed and maintained documents as otherwise the Collector foreseen under the Revenue Laws of Central State Government would not have any jurisdiction and/or power or authority to exercise or carry out any such Land Acquisition acts of the Government.

UNDERSTANDING THE CONCEPT OF LAND ACQUISITION

To understand the concept of State powers to acquire the land from private hands for public purposes, one has to understand the nature of land and immovable properties and or interests thereof as stands expressed under Article 31A of the Constitution of India and what is the nature of legal right to property held by citizens in terms of Article 300A of the Constitution of India as to own and/or hold the land in their private use and possession. Further, one has to also understand what is meant by an �Estate in land� under the English legal terminology vis-�-vis the foundation of all public laws in terms of Land Acquisition under the commonwealth Countries. Without the State vesting with the Absolute Domain over the given land in the first place and without lawfully granting any subordinate rights thereof to the concerned members of the public to hold such land privately no such right to hold property can come into existence and therefore no provisions of land acquisition can be applied to terminate or extinguish such non-existing right or to say that such land is acquired from any person.

The next question is whether the State can cause acquisition of any such subordinate rights by the doctrine of Eminent Domain in respect to a person who is in illegal or unauthorized possession of the State land by applying the provisions of the Land Acquisition Act, 1894, and offer such person any compensation thereof? And the answer is NO when there is Public Premises (Eviction of unauthorized Occupation) Central Act, 1971, and other such State public laws which provides scope for eviction of such unauthorized occupant holding onto such land or immovable property by imposing fines and penalties but not by compensation.

The State public laws of land acquisition of every country in the world stands founded on the Doctrine of Eminent Domain. This Doctrine was propounded in the year 1625, by an eminent jurist namely, Hugo Grotius (1583-1645). It is founded on his legal theory on �Social Contract�. It provides scope to the State or its Government to acquire and/or terminate or extinguish the subordinate rights granted under such contract to the citizens/subjects to own and/or hold the land or immovable property in private capacity. This acquisition of rights is done in the larger interest of general public good by offering sufficient compensation to such holder of right and more so for reasons that such acquisition of right to the land or immovable property in question, have not come to be determined by the term of holding such right thereof and/or the contract duration or period of the Tenure but on account of forceful dispossession at the instance of the absolute owner who provided/granted such right under such social contract.

The then Portuguese Rulers in Goa, as said earlier, also nursed the said wrong concept of State landlordism and exercised the State powers of Eminent Domain thereof over the private Villages of the Comunidades in Goa during their Rule in Goa till the fag end. The said Rulers also expropriated lands belonging to the Comunidades under such wrong concept when there was total absence of element of State Grant or the so called element of an �Estate� in Land. The said wrong concept stands abolished by the solemn declaration made thereof, which stands promulgated under the Diploma Legislativo No.2070 dated 15.4.1961. This declaration has cleared the Comunidades from the wrongly imposed obligation for payment of Land Revenue to the State Government by stating that there is total absence of State Land Tenure and or State Landlordism. Hence, the land of the Comunidades is not of the kind of a property as stands defined and expressed under Article 31A of the Constitution of India and there is total absence of the element of an Estate in Land in the Village of Comunidades as understood under British legal concept.

The provisions of Article 7 of the Codigo das Comunidades, have firmly expressed, that the Comunidades have suo moto powers and are free to exercise their powers and authority in sub-dividing and or partitioning of their Village land for the purposes of generating greater economy to themselves and for the said reasons it stands declared that the Comunidades in Goa do not enjoy such rights over the land of the nature enjoyed as Proprietors/Landlords, as in these cases such Proprietors come into existence only when the State Administration grants emphyteusis title to the members of the public.

The Comunidades in Goa, as stands recorded in the Foral of Affonso Mexia, dated 16.9.1526, were known to be granting and assigning, over the centuries, various rights to the members of the public over their land in their respective Village as to hold the land in terms of their private law before the coming of the Portuguese Rule in this State of Goa. The then Portuguese Rulers wrongly assumed this act on the part of the Comunidades to be an act of the nature of assigning the title of Sub-emphyteusis, as the said Rulers had wrongly presumed that the Comunidades owned and/or held their respective Villages by the title of emphyteusis conferred by some previously unknown Ruler of the State. After promulgation of the Diploma Legislative No. 2070 dated 15.4.1961, the word �Sub-emphyteusis� appearing in the earlier Code of Comunidades ceased to exist in the present Codigo das Comunidades in force, after revelation of the truth. The said word �Sub-emphyteusis� wherever appeared stands replaced by the word �Emphyteusis� when it happens to be granting of Rights on the �Aforamento� holders. This term �Emphyteusis� is superior to the term �Aforamento� appearing in the present Code of Comunidades, as such title holder has secured the holding to such land or immovable property for a definite term and/or duration of the contracted period. This grant of right is not in perpetuity as commonly presumed but subject to the terms of Aforamento.

In terms of Article 18 of the Constitution of India, the granting of the land under Emphyteusis and or conferment of Proprietorship title or Perpetual grants by the State is prohibited. The State Government is bound to abolish all such Proprietorship titles, if any, vesting with the citizens after coming into operation of the provisions of the Constitution of India, as has been done in Districts of Daman and Diu, the then part of Union Territory of Goa, Daman and Diu. As earlier stated, this exercise has taken place all over India except in the State of Goa. The State Government of Goa is instead found progressively granting Proprietorship titles over the land belonging to the State so as to hold the land by the concerned citizen in perpetuity. The State Government of Goa is also encouraging and causing the various Comunidades in Goa to provide such natured titles over their land to the members of the public as to hold the land in perpetuity and contrary to the law.

The question of abolishing any Title held by the Comunidades in terms of Article 18 of the Constitution of India does not arise as it has no such Title vesting with them and similarly, any right or Title granted by the respective Comunidade to the members of the public does not mean a Title granted by the State and therefore is not subject to abolition by any law of the State. The Agrarian Land Reform Laws of the State do not apply to the land where State Land Tenures are not in existence and hence the question of applying such provisions of the laws to the lands situated in an absolute private Village of a Comunidade in Goa does not arise at all. By applying the provision of the Land Acquisition Act, 1894, no such Proprietorship title nor such Tenure relationship can be said to be terminated in respect to the land belonging to the Comunidades, when there is no such natured holding to the land.

COMUNIDADES ARE NOT BHATKARS, LANDLORDS OR HOLDERS OF �ESTATES�

A Village Comunidade cannot be addressed as a �Bhatkar� and/or �landlord� of any person in the present context of Agrarian Land Reform Laws based on the grants and assignment made by it. In the present term a �Landowner� means a person who holds the land by State Land Tenure and who is under the contractual obligation to pay Land Revenue as consideration thereof. He acquires status of an �Occupant� on payment of occupancy price thereof as provided under the G.D.D. Land Revenue (Disposal of Government Lands) Rules, 1971, read with Section 21 of the GDDLRC, 1968.

When a lawful lease stands executed by a State Land Tenure holder (or by an �Occupant�) in favour of another person, this act and/or deed confers on such State Land Tenure holder or such occupant the status of a �landlord�. Such execution of lease by the grantee (occupant) in question amounts to an act of sub-letting and or sub-leasing of the grant and the rights in the land thereof in the eyes of the State Administration, and such third person or transferee acquires the status of a Tenant of any land or any premises thereof and is entitled to obtain the benefit under the Agricultural Tenancy Act, 1964, and/or under the Mundkarial Act, 1975, and/or in the case of Buildings Rent Control Act, in respect to premises thereon.

All the Agrarian Land Reform laws of the States in India including the Goa Town and Country Planning Act, 1974, as recognized under the Constitution of India, presume the pre-existence of State Landlordism and or State Land Tenure Contract with every holder of the land and/or the Preamble and the provisions of the Constitution of India expects every Government to develop such State tenure relationship with the members of the public/citizens in equality to them before every State made law. The State has to in the first place therefore require to bring every citizen in equal status and for every law to be equally applicable to such citizens. It is not possible to apply the provisions of every State made law universally to every citizen in any State of India if they are not equally situated or posted. Every such holder of land and immovable properties is seen as an �intermediary� between the State and the actual cultivator/Tiller or as actual occupier of any land and/or premises thereof. It is only when such holder transfers his rights in the land or immovable property in favour of another by Agreement or by Contract of Lease that such transferee in common parlance is called the �Tenant�. Besides other things there should also be present the element called �Estate in Land� and such element called an Estate in Land is present in the English/British concept only when the State or its Ruler assumes itself the status of Proprietor or Landlord in origin.

The benefits available and/or provided under the above said Agrarian Land Reform laws of India cannot be said to be available to every person who claims to be a lessee or tenant of any land or premises thereof. These benefits cannot be extended in the private Village of the Comunidades in Goa for obvious reasons. It is equally true that such benefits cannot be extended to a person who claims to be a lessee or tenant of another person, when such other person is the original grantee and/or assignee or holder of any given land in a private village of any given Comunidade in Goa. Neither the Comunidade in Goa nor its grantee and/or the assignee can be considered as Intermediaries between the State and the cultivator of the soil in the absence of overall State Landlordism thereof. This concept of State landlordism is attributed to the State when there is State land tenure relationship with the grantee and the term �landlord� is assigned to the said grantee, when such grantee transfers part or whole of such Right granted by the State as to hold the land or premises in favour of third parties i.e. sub-letting or by lease with or without the approval or sanction of the State Administration. State landlordism is extended over such third parties by the State made law. Section 20 to 27 of the GDDLRC, 1968, indicates the position of the State Land Tenure holder and that of the Government lessee and who can be addressed as �Occupant� and as �Government Lessee� and those who can transfer such occupancy right to another.

GRANT OF LAND BY THE COMUNIDADE

The provisions of Article 5 of the Codigo, besides other things, provides that it is possible for the respective Comunidade to grant and/or assign various rights to the members of the public over their land, as per the laid down provisions of the said Codigo das Comunidades. The provisions of Article 30-4(f) of the said Codigo, provides that the say of the concerned Comunidade is necessary in granting the Title of emphyteusis or perpetual rights on any grantee and similarly the say is required for grant of permission or approval to transfer the granted land by sale to another person as well as permission to exchange the granted land. The term �sale� under this context does not mean �sale of land belonging to the Comunidade� but granting of permission to the original grantee or to his successors to transfer the title to land in question along with the improvement and developments made thereon, by sale, in favour of another person. This act or deed of transfer of Title to the land by Sale or by any lease thereof is not an act and/or deed of a kind of Title and/or the transfer of land foreseen under the Transfer of Property Act in force. The provisions of the said Transfer of Property Act originally foresaw the transfer of Proprietorship Titles by Sale Deed and or by leases etc. but after introduction of Article 18 to the Constitution of India, it foresees transfer of transferable and marketable �Occupancy Rights� held by any citizen by any such Title of State Land Tenure and/or the transfer of land or immovable property of the kind as stands defined and expressed under Article 31A of the Constitution of India. In this case the act and/or Deed inter-alia the citizens attain the legal validity when such transactions stand registered before a competent authority appointed under the Indian Registration Act.

The provisions of Article 14 of the said Codigo das Comunidades provides the respective Comunidade powers to acquire whatsoever Title or Rights granted or assigned by it on their land, whether such Title is held by a single person or collectively, by refund of twenty annuities collected by the said Comunidade at any point of time and when it has sufficient amount in its coffers to repay or refund the said annuities, except when the land stands granted or assigned for any Religious or Pious purposes. This form of Eminent Domain is vesting with the respective Comunidade since such land holding is subject to escheat to the respective Comunidade.

In the case of the State, the conferment of such Proprietorship Title and/or �perpetual free holdings� by citizens by applying the principles �Domino Util and Domino Directo�, the State looses its character of Landlord since such assignee and grantee is freed from the obligation of payment of any rent and or Land Revenue to the State Government on having acquired the right of Domino Directo. The State can regain the Status of a Landlord on abolition of such Title and re-establishment of State Tenure Relationship and this scope is provided in terms of Article 18 of the Constitution of India and the State in this case is expected to resort to the powers of Eminent Domain which is said to be vesting with the State at all times. The scope of the present Land Acquisition Act, 1894, and of such other public laws of the State after coming into operation of Article 18 of the Constitution of India, foresees acquisition of �Occupancy Rights� and/or Estate in Land and/or any interest thereof as held by the State Tenure holders by again applying the principle of State�s Eminent Domain.

ILLEGAL EXERCISE OF LAND SURVEY AND FRAUD COMMITTED BY THE GOVERNMENT ON COMUNIDADES

The then vested interested politicians in Goa, after coming into force the provisions of the GDDLRC, 1968, have caused the Survey authorities appointed under the said Land Revenue Code in general to carryout Land Survey of the entire land in the State of Goa, when the provisions and Rules made under the said law restricts itself in the areas or localities of State Land Tenure holders. The said Survey authorities consequently framed and fabricated so called plans, maps and so called Record of Rights as Extract Form I and XIV and/or in Form B and D and maintained the same as valid and legal Statutory Instruments thereof, even over Comunidade lands. This entire exercise at the cost of the Exchequer is illegal and the documentation of the records is invalid and fake in the absence of State Land Tenures with the holders and owners of the land. These documents are used by the authorities appointed under the G.D.D. Agricultural Tenancy Act, 1964, to give benefits to persons claiming Tenancy rights over every kind of land.

The said Survey of land and maintenance of so called Record of Rights under the provisions of the said GDDLRC, 1968, is possible only where there exists and/or on coming into existence any State Land Tenure or Government lease, either by previous existing law and/or on grant of land in terms of the provisions of Section 21 of the GDD LRC, 1968, and/or in terms of the provisions of GDD Land Revenue (Disposal of Government Lands) Rules, 1971. No such Survey is applicable where citizens are holding Proprietorship Titles granted by the State and where no such Proprietorship Titles are abolished. It amounts to absolute fraud on the part of the State Government to apply the provisions of the above said LRC to the land covered under the private Village of the respective Comunidades in Goa, whether held by it and/or by any of its grantees or assignees and/or even under encroachment, when the law of the Comunidades is in force to determine and control such occupation . Illegal documents are made use of by the Revenue Department of the Government of Goa, as well as by the Collector and the District Court, when it comes to acquisition of so called Land under the provisions of the Land Acquisition Act, 1894.

The Land, water and natural resources of the various Comunidade Villages in Goa based on the above fraud, stands under plunder by the State Government at the instance of the vested interested politicians by making illegal and unlawful use of the above said illegal documentation. The State Government of Goa is carrying on illegal business through various Revenue authorities of the State by faking private Villages of the Comunidades in Goa to be Revenue Villages of the State Government. There are no lawfully constituted Revenue Villages, Revenue Talukas nor Revenue Districts in this State of Goa in the absence of State land Tenure holders. This legal fact is within the knowledge of the Revenue Department of the State Government of Goa, besides others.

It now appears that the present Government of Goa, through its Revenue Department, would resort to making use of the prevailing fraud on Comunidades, to acquire the land of the Comunidades in Goa as to implement the presently floated housing scheme under the Ambedkar Awas Yojna, meaning yet another fraud in terms of similar fraud carried by previous Congress Governments in Goa under the 20 point programme of Indira Gandhi. Such schemes cannot be floated by any Government without the State being absolute owner of the land and with reference to Section 21 of the GDDLRC, 1968, and to the specific provisions under Rule 26 of the above said GDD Land Revenue (Disposal of the Government Lands) Rules, 1971, in force. Acquisition of land from Comunidades cannot confer upon the State any Title and no land in the Private Villages of the Comunidades is subject to the said provisions of GDDLRC, 1968, or to any Rules made thereunder.

The present State Government of Goa, which has given assurances to protect the age old institutions from being abused and plundered, was expected to remove the prevailing fraud not only on the Comunidades but the Goan society. It appears that the present Government is glorifying the prevailing fraud and harvesting the same for its own political advantage. This fraud is being successfully carried on and made use/utilized by every Government in power to their advantage to build Vote Banks. THIS FRAUD IS THE MOTHER OF ALL EVILS IN THE ADMINISTRATION OF SOCIAL JUSTICE TO THE CITIZENS IN THIS STATE OF GOA and promoted by making use of the provisions and Rules under the GDDLRC, 1968, in the absence of State land Tenures and in the absence of lawfully constituted Revenue Villages of the State Government in Goa.

GOOD GOVERNANCE IS NOT POSSIBLE WITHOUT UNDOING THE FRAUD PERPETRATED ON GOANS

No Government of the State of Goa can boast about Good Governance by sitting on the fraud and/or by making use of the same to their own advantage and fool the citizens under the color of the Constitution of India when the laws prevailing in this State, which are under the Roman Concept prior to coming into operation of the Constitution of India, which is founded under the British concept of jurisprudence, have not been reconciled, and thus permits continuation of fraud and allows corrupt practices to plunder the land and economic resources of the Comunidades not only to the detriment of the age-old Village Communities in Goa but the detriment of all the Goans.

The interested Componentes of the Comunidades in Goa demand to be governed by the law of the land as followed by their ancestors from generation to generation which is in force as per the Code of Comunidades and not by the law introduced by the Portuguese and/or by the British colonist. The componentes are hostile to introduction of such laws based on the concept of such colonist and do not expect the Government of India to carry on functions as another colonist based on the laws introduced by the British concept before the Independence of India and by which laws the State Government attempts to alienate the land and immovable properties of the age old Village Communities of Goa, not for the benefit of the Goans, but for the benefit of the vested interested politicians in the Government and anti-social elements under the guise of welfare of the State.

It is regretful to note that till date, our State Government which claims liberation from Portuguese Rule- through their respective politicians, are glorifying and making abusive use of the laws founded by the British colonist unmindful of Article 372 of the Constitution of India and not for the benefit of the natives/Goans but for political and monetary greed at the cost of destruction of the said age-old Village Communities of Goa. There is no such scope under the law of the Comunidades, which is founded on usages and customs of the natives/indigenous people of Goa from times immemorial, to alienate the lands belonging to it in favour of any person as understood under the English Concept. The fraudulently framed so called English translation of the original law of the Comunidades, is made use of by the Government, the members of public as well as by the Judicial organs of this State to take a contrary stand and also for causing immense damage and prejudice to not only the Comunidades but to the legitimate villagers as a Community.

MISCHIEF PLAYED WITH USE OF THE ILLEGAL AND UNAUTHENTICATED TRANSLATION OF THE CODE OF COMUNIDADES

Some vested interested elements at the relevant point of time had provided to the Government officials a fraudulently and or dishonestly framed so called Translation of the original Code of Comunidades in English language and subsequently, the text of the said fraudulent framed translation was printed by the vested interests at a Cuncolim private printing press, in collusion with the then Administrator of Comunidades, South Zone. The copies of the same were sold and also circulated to the judicial organs of this State. Recently the Revenue Department of the Government of Goa thought it wise to reprint and sell/or distribute as true and correct, the same fraudulently framed text, under the cover of the Government Printing Press, when it was pointed out by one of the Petitioners to the Hon�ble High Court that the Government is carrying out amendments in English to the original Code of Comunidades, which is in Portuguese. Several Judgments stand passed by the Courts in this State, besides the Administrative Tribunal in the absence of authenticated text based on such fraudulently framed translation of the Code of Comunidades in English. The politicians and their advisors are providing false information to the Office of the Governor as well as to the Central Government for their selfish interest. There are several reported Judgments of the then High Court of Goa and as well as by then Supreme Tribunal of Portugal pertaining to the interest of Comunidades of Goa but the records thereof are not made available in English language till date for obvious reasons so as to wrongly advise the members of the public.

It is based on such falsehood and misinterpretation of the law of Comunidades that certain members of society look at the Comunidade institution just like the case of five blind men describing what an Elephant is and are attempting to describe either in their own respective interest and/or in connivance with the vested interested persons or politicians in the given Government, as to what is meant by the Comunidades of Goa, to those members of the public who have no such knowledge at all and/or to those who have little knowledge of law but bound to believe as true what in fact is false and grossly incorrect.

Prepared by:
Adv. Andre A. Pereira (B.COM; LL.B; D.L.W; LL.M)
H. No. 113, Down Mangor, Vasco da Gama, Goa.

At Panaji, Goa.
Dated: 04.11.2004

Adapted for Public And Promoted in the interest of Comunidades by:
Savio Herman D�Souza, President, New Age Society�, Goa.
Our Website: www.geocities.com/newagegoa
Phone: +91 (0832) 2416573

For Private Circulation Only

II Edition 2006

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