Herald: No “Revenue Lands” in Goa, hence, Land Revenue Code, 1968 is unconstitutional

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No “Revenue Lands” in Goa, hence, Land Revenue Code, 1968 is unconstitutional

23 Sep 2018 05:49am IST
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23 Sep 2018 05:49am IST

By Adv. Gajendranath R. Usgaonkar

he people of Goa are made to believe that all the lands in Goa are revenue lands and Government, Collector, Dy. Collector and Mamlatdar’s created under the Goa Land revenue Code, 1968, hereinafter referred to as “said code”, are legitimately exercising jurisdiction to deal with all the lands in the State of Goa, under the various provisions of said code, such as land conversion, mutation, partition and all enactment controlling development of lands, including agricultural tenancy and town country planning act, under which regional plan is prepared.

After liberation of the territory of Goa, Daman & Diu, Indian rulers fond it difficult to administer territory of Goa, Daman & Diu, because they were familiar with British revenue system, however, what was prevailing in Goa was advance Civil Administration System similar to European countries. Continental system of administration always being republican model, it gave more emphasis on civil rights of the people. Goa was no exception to it as it was a part of Republic of Portugal, peoples were citizens of Portugal and they had same rights to the land, which were guaranteedto the people under the Portuguese Constitution with very few restrictions on it.  In short Portuguese never ruled over the private properties to claim land Revenue from it, but only claimed tax on income from owners of the private properties. The section 201 of the said Code repeals decree No.3603 dated 24.11.1917 and similar legislations relating to government lands.

The Indian rulers / officers, especially who came from Maharashtra and Delhi and other parts of India, were familiar with the revenue based administrative system prevailing in British Raj, where British were ruling over the Indian lands as they had obtain “Diwani” right to collect tax from the Moguls as Moguls claimed right to land / soil.  And were foundation of Collectorate system of administration was born. Under this Revenue system British had develop various type of landowning classes known as Royatwari, Mahalwari, Permanent system in various part of India and appointed Collectors to collect Revenue from the peasantry, who were not owner of land but merely occupant of land and various experiments were made appointing intermediaries were appointed to collect revenue.  ActualyState’s have treasury and all taxes are deposited in the Treasury. However, no change was carried out in the said system as, it suited them. After Independence from the British same continued with Independent Indian Rulers as it suited them. The land Administration system prevailing in Portuguese India of Goa, was contrary to the British revenue Administration system. In Portugese India people were having more rights and basic right was right to land/ property.  PortugeseLand Administrationsystem  came for scrutiny of the Constitutional Bench of Hon’ble Supreme Court of India in GulabhaiVallabhaiDessai Vs. Union of India [AIR 1966 SC 1110]. In order to understand Portuguese Land Administration System prevailing in Goa, Supreme Court framed some points and asked Judicial Commissioner Court to examine the witnesses. The State witnesses presented translation of the Decree 1785 “ContribucaoPredial” or “MatrizPredial” and some Article’s with regards to Portuguese Civil Code, 1867.

The word “Fazenda” was erroneously was and is being translated by GoanPortugesetranslators  as “Revenue”, when its real meaning of the said phrase is “Treasury”.   British and their agents / Collectors and High Courts brutally and rigorously used this phrase “Revenue” and same is being used till date everywhere in India. Justice Hidayatulla, who delivered the Judgment makes it clear that Goa had no land tenure system and it has no revenue lands. Interestingly, Goa Land Revenue Code , 1968 does not define what is mean by “revenue land”, though  section 14(1) of the said code  reads that Government will have title to the lands which are not  belonging  to any private person. In  Govindbhai case (supra) Justice Hidayatulla, distinguishes land revenue stem prevailing in British India and land Administration system in Portuguese India and relevant observation made by him are  quoted for information of the readers so that truth is brought forward and it is for people to judge, whether said code is constitutional or is colourable exercise carried out by our legislatures of the State.

“After this remand two witnesses were examined on behalf of the petitioners and two on behalf of the State. These witnesses also produced some Portuguese Legislative Enactments with their official translations and gave their respective interpretations of those laws. The interpretation so made by them is contradictory. We have, however, not found it necessary to rely upon oral testimony because, in our opinion, an examination of the laws in question renders it unnecessary.”

“To begin with an 'estate' in Indian revenue law ordinarily means land which is separately assessed to land revenue under a single entry in a Record of Right and such land is held under a tenure.”

“It was pointed out that Art. 31-A was concerned with a land tenure which could be described as an estate and with the acquisition, extinguishment or modification of the rights of the land holders or subordinate tenure-holders.”

Daman District, as we have seen, had several kinds of land. There were perpetual and period leases from Government. Villages and lands were sold or were granted for life or lives which later became hereditary possessions. This made little difference, in so far as Government was concerned, because there was neither a tenure nor payment of land revenue. No condition on which the land was held could properly be said to be a condition denoting tenure and the payment to Government was either rent or a percentage of the presumable income from land. The above findings of the Constitutional bench of Hon’ble Supreme Court makes it clear that there  was no land tenure law nor there were lands paying land revenue to the Portuguese Government, contrary, all land owners were owners of the soil and paying presumable agricultural Income tax to the National Treasury [ Fazenda National]  under Diploma Legislative  1785.

 Inspite of the aforesaid constitutional bench decision as early as year 1966, the State Government acting on ill advice of the officers from Maharashtra who were deputed to Goa Administration enacted  said Code in year 1968, which up rooted Portuguese Civil Administration in Goa. The said Code is nothing but carbon copy of Maharashtra Land Revenue Code, 1960 and all provisions are copies from said Maharstra code. The said code was enacted under the power vested to the State Government under Entry 45 List-II of the VIIth Schedule under Article  246 of the Constitution of India, which entry reads that “land revenue, including the assessment and collection of revenue, maintainance of land records, survey for revenue purposes and records of rights, and alienationation of revenue”. When there is clear finding given by highest Court of land, that too constitutional bench, that there are no revenue lands in state of Goa, whether the Collectors, Mamlatdar’s exercising jurisdiction on private land is proper. Further Government legislating over private land presuming that all private lands  are revenue lands and passing sweeping legislations, when Government  has no source of power to legislate  over the private lands, all these legislations curbing land owners right, is justified. 

As result of Presidential OrderContribucao or MatrizPredial Diploma 1785 was  saved under Entry 46  taxes on agricultural and State Government also increased  the percentage of tax on agricultural income in year 1973. All the private properties in the State of Goa were registered for payment of agricultural Income tax and records were elaborately maintained.  It is interesting thing that said code repeals Decree 3603 dated 24.11.1917 Assignment of Government lands in India and not Diploma legislative  No.1785 regulation of land tax ormatrizpredial. Yet,  Government has destroyed the Matriz record under wrong notion that same has been substituted with records of rights and today Matriz records have been disappeared into past and practically destroyed by the Government as the State Government stopped collection of ContribucaoPredial and  started collecting  revenue under new records prepared under the said code. 

The Goa State legislature and Judges of High Court as well as Advocate fraternity need to be blamed for taking people to ride and causing great inconvenience to the general public, mainly land owning class in the State.  Either it came to the notice of the High Court or not cited before High Court Gulabhai case (supra) which gave clear findings on the issue with regards to land revenue and ContribucaoPredial.

TheHon’ble High Court always tried  to down play the value of Matriz records as it nevr took in to consideration  ratio laid down in Govindbhai case  as early as year 1966. In case of Fabrica da Igreja De N.S. De Milagres [1995 (1) BCR 588] High Court  held that Matriz was merely administrative exercise aimed at collecting revenue from the land. In Deeksha Holding case it was held that Matriz record is not source of title being document prepared only for purpose of collection of revenue. In recent judgment AnantYeshwantKavalekarVs. Milan Dabtie @ Anita Dante decided on 21.01.2014, it was held that Matriz records have no value after the new survey records came into force. In another judgment Comunidade of Quitol Vs. President relying upon previous Judgment High Court held that “ it is true that neither Matriz certificate nor recent survey records under said code can confer title. But promulgated survey records have the benefit of presumption. All these judgments overlooked the provision of Article 101,102 and 103 of Land Registration Code Decree No.42565 dated 8.10.1959 which came into effect from 1.1.1960 and saved under list –II seven schedule of the constitution of India, which reads that  Matriz is document of title in absence of land registration document and based on the Matriz land registration can be undertaken.

Challenge was placed to the Goa Land Revenue Code 1968, for declaring same unconstitutional and restraining the Collectors, Mamlatdars from exercising jurisdiction in Writ Petition No.415 of 2018, but High Court knowing its larger impact of striking down said code, Hon’ble Court avoided to decide the issues raised therein and dispose the petition directing the Government to furnish Matriz document within six week. It is unlikely that High Court will put its hand to decide the issuesraise herein above. 
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