Do we really require a new land register? We in Goa had a very good system of maintaining land records for centuries starting from the communidades initially known as the ‘Gaunkaris’. The Portuguese were remarkable in maintaining old record books and archives probably acquired from Roman times. The Portuguese introduced and established the offices of ‘Conservatoria do Registo Predial ‘ and side by side ‘Consevatiria do Registo Civil’, both are self-explanatory, referred to as land registration records and civil registration records, the person in charge was called the ‘Conservador’ which translates to conservator, who used to be a lawyer (advogado), public prosecutor(delegado) and sometimes even a junior judge, it was the responsibility of the ‘Conservador’ to maintain the record books and hence only persons with integrity and honesty and knowledge of book keeping were appointed to the post. After liberation the office was known as the office of sub-Registrar.
The record books were categorized and catalogued:- Livro (Book) de inscricões e Descricões, Livro (Book) de Trasmissões, Livro (Book) de encargos etc, Livro (Book) de Incrição e descrição : gave the registration number of the property its location ,type of land, description, boundaries ,area and sometimes dimensions. For quick reference there was a personal index of names of landowners (Indiçe Pessoal.)
Livro (Book) de Transmissões :- The book of transfer of titles gives a clear picture of who was the initial owner and title holder of the property ,it then shows who were the subsequent title holder and how the title got transferred by way of sale deed, gift deed, succession (Inventario), court order etc.
This is probably the most important book. Prior to liberation in the Portuguese system: Immediately after the sale deed, a noting was made called the ‘Averbamento’ making an entry that the property is transferred in the name of the new buyer. This process would be completed in one week or at best two weeks from the date of the sale deed. A certificate was issued to the buyer on request.
Livro de Encargos :-This book keeps a record of deed of mortgage, hypotication, lease etc.
The system failure and the crux of the matter lies here: After liberation this system was discontinued, even after change of title by way of sale deed, succession deed (Inventario), court decree.etc.no entry of title change was made. The property still remained in the name of the grandfather and great grandfather this created the lacunae for fraudsters to take advantage of.
I am citing this just as an example: I recollect that an ancestral property belonging to a national sports award winning lady, who was an NRI resident of Germany, was sold without her knowledge, the lady got a shock of her life when she returned home, she threatened to return the award, it was only after that some serious investigation started to take place. This is not an isolated case. Communidade land is also being sold fraudulently.
There is an important observation to be made here: if the Portuguese system of transmissões was used, the name of the person who is selling the property had to match the name in the books of records (Livro de Transmissões) as the owner in possession of the property being sold; if NOT, sale deed cannot be registered. This would have stopped the mischief of selling the property twice over to two different unsuspecting buyers in the tracks.
The next question is even after more than half a century (69 years) no attempt was made to correct the system. The ‘Goa Daman and Diu Land Revenue code 1968 (Act No 9 of 1969) was applied to Goa introducing a parallel system of land registration of records via form I & XIV ; this system was introduced by Goa’s first Chief Minister the late Dayanand Bandodkar ,the whole idea was to safeguard the rights of the tenants rather than of the land owners, this created a perpetual tenancy right in favour of the tenant, this was like a windfall for the humble tenant, who got land for almost nothing, but was a readymade vote bank for the politician, this eventually caused the downturn of agriculture and down fall of the communidades where most of the land is tenanted.
To survey the land and make entries of land titles in form I & IXV thousands of workers called ‘deputationist’ were hired from neighbouring states mostly from Maharashtra who did not speak and understand the Konkani language and were not conversant with Cristian names and made monumental errors in writing names of persons as well as places, some even hilarious (‘Ricardo’ written as ‘Reçhado’…… Purificação written Picação ) which are glaring errors some remain even to this day.
Because of limited space I am citing only few important topics.
MUTATION: – Why is this cumbersome procedure required at all? The sale deed is a conclusive document and the name of the buyer should be entered without much ado. Everybody knows how complicated it is, publishing in the newspapers, the procedure takes months sometimes years, if you don’t have influence and money.
CONVERSOIN SANAND:- Regional plan has specified zones, but the politicians keep changing the colour of the zone faster than a chameleon .Zone change has become the favourite cash cow before elections. (Refer to controversial art,16B of TCP Act) It is much more than mere revenue for the government.
NIL ENCUMBRANCE CERTIFICATE :- If you ever had the misfortune to apply for a loan on your property your name has to match exactly as on the form I & IV, however, if it does not and the mistakes are only alphabetical and minor (made by the ‘Deputation’ clerk),you need to get what is called a divergence certificate from the authorities which is sometimes very difficult and impossible . If your name matches, still the bank’s advocate who is called a retainer asks you to get a ‘Nil Encumbrance Certificate’, because he does not give much weightage and credence to survey records, he relies more on the old tattered Portuguese land registration records (15 year search report), rather than the survey records, as the Courts have held that survey records are only presumptive of the title and not conclusive. ‘NIL Encumbrance Certificate’ mentions that the Government shall not be held responsible for any inaccuracies therein making its veracity contradictory, so what use is it.
CONCLUSION:- If the Portuguese Land registration system is good; revive it and maintain it. In the Portuguese era, experts called ‘Escrivães’ who were specially selected for their beautiful calliography usually coming from the ‘Dessai’and ‘Naik’ families from Kuncolim, became almost a hereditary trait coming from father to son.
OPINION: I am not a blind admirer of the Portuguese, I appreciate things objectively and subjectively. Some fanatical people think that everything done by the Portuguese should be dismantled brick by brick. My personal opinion, is that the Portuguese system of maintaining records books, administrative system and the judicial system is superior to the English (British) system. Código Civil Português (Portuguese Civil Code), Código das Communidade, sucession system of ‘Inventarío’ are unique and elaborate systems worth maintaining. India is the largest democracy but does not have a uniform civil code, senior advocate Manohar Usgaonkar has now translated it and could be applied to the whole of India hopefully. Archaic colonial laws are being extended in a copy, paste fashion without vision e.g. Land Revenue Code, Agricultural Tenancy, Rent Control, even without a ‘Mutatis Mutandis’ adaptation, causing the downfall of agriculture in general. It is pertinent to note how often sec.144 is invoked arbritarily. Is the objective of the new land register to protect the ancestral land of the Goan NRI or to protect the interests of the Delhiwallas. Jawaharlal Nehru once remarked that Goa has a unique identity which needs to be preserved, a high court judge recently remarked that Goa is a land worth fighting for. People are the best judges of their land. Long live (‘Viva’) Goa.
(The author is a lawyer and
social activist.)
