The comunidade system of land administration in Goa was an example for others to follow during the erstwhile Portuguese rule, but in the last 55 years after the liberation, the politics of State’s governance and selfish interests within the system has brought disrepute to the institute of comunidades. Comunidade authorities today are blatantly violating rules and procedures in order to serve the interest of those encroaching on comunidade lands, and as a result huge tracts of lands belonging to various comunidades are being unlawfully grabbed, even by total strangers to local people, in prime location of the state. This is due to increasing corruption in the functioning of the comunidades as well as on account of political patronage of the land-grabbers. In several instances, even politicians themselves, besides their close relatives and ‘chamchas’ have cornered large upmarket valued communidade lands through fraudulent means.
Comunidades are essentially ‘associations’ of villagers, having members like ‘jonoeiros’ and shareholders. Whilst the rights of ‘jonoeiros’ are inherited by their lineal descendents, shares held by shareholders can be sold to and purchased even by strangers, who, upon such acquisition, become shareholders of a communidade. Comunidades are purely private associations, which hold land like any other private bodies. The comunidades have power to exercise all rights in respect of their properties, like any private owner.
The powers of a comunidade are spelt out in Article 30 of the Code of Comunidades, which contains provisions akin to aims and objects of any association / company. The powers include the right to deliberate on works, extraordinary expenses to be incurred, lease, etc., with the residuary power being contained in Article 30 (j) of the Code, which is wide enough to encompass sale or even gift of land. This power is provided to the comunidades, perfectly in line with the legal jurisprudence relating the rights and powers, including the incidence of ownership. The comunidades, therefore, have power not only to grant land by means of lease or long-term lease, but also by other modes available to an owner of his own private property, the only rider being that the alienation of communidade property is subject to the administrative tutelage of the State government.
‘Administrative tutelage’ is not to be construed as a subjugation of the comunidades to the dictates of the government, but merely power inherent in the government to ensure that the components, especially those in minority and those who are absent from Goa, are not deprived of their rights, either by mismanagement or illegal decisions, detrimental to the interest of the communidade and such components. This does not take away the nature and character of the private ownership nor independence of the association, but ensures its regulation in accordance with the law. The administrative tutelage of the State government is purely supervisory jurisdiction. The Code of Comunidades states that the State is under a contractual obligation to provide administrative tutelage and act in the capacity of a guardian to the comunidades by virtue of a provision adopted under Article 5 and other provisions of the Code, so as to prevent any sort of prejudice.
The Code of Comunidades provides for filling of suits in the name of any comunidade, but also makes it mandatory and essential to pass a resolution to this effect at an extraordinary general body meeting of the communidade concerned, as laid down under Article 30-(4)(G). The same holds good to arrive at any agreement or consent by the communidade in case of any suit. Any resolution adopted by a comunidade regarding an encroachment, is required to be recorded in the respective minutes book in terms of Article 460 of the Code, before taking any action in the name of the Comunidade. The resolution so passed requires to be examined by the Administrative Tribunal, to ensure that such resolution or action (including filling of terms of consent) is in the interest of the comunidade. Hence, basically there cannot be any resolution to alienate the land or any other property or capital, which is prohibited in terms of Article 647 read with Article 12 of the Code.
The worst decay in management of the comunidades is said to have come after the State government amended the Code of Comunidades in October 1986, wherein the original provisions in Article 371 and 372 of the Code enabling the Comunidades to file suits against encroachers and trespassers before the civil courts were deleted, and petitions for removal of such illegal structures are directed to the director of civil administration (Collector) who in turn delegated the power to the administration of comunidades. The complainants allege that comunidade attorneys, managing committees and administrators are deliberately not following the rules and procedures so as to benefit the encroachers, in utter defiance of the provisions laid down in the Code.
Unfortunately, instead of redressing grievances of those wanting to conserve the institution of comunidades for posterity, the State government is planning to bring about another amendment in the Code of Comunidades to facilitate regularisation of illegal encroachments on Comunidade lands. And this, despite Supreme Court ruling that community lands cannot be allowed to remain encroached and trespassed by any person and that the State should clear them, unconditionally.
The government must be protective of the spirit of comunidades instead of allowing the loss of their land through the proposed regularization of encroachments. Instead of resorting to ‘vote-bank politics’ the government should take a firm stand on illegalities and allow the land to remain for the communities.
(The writer is a freelance journalist)
