To whose benefit the Agricultural Tenancy (Amendment) Act 2014 is ?

                                                        By Adv. John Fernandes

                                    Initial object of the legislation

The Goa legislative Assembly then headed by Dayanand Bandodkar  brought out “The Daman and Diu Agricultural Tenancy Act 1964” which received the assent of the president of India on 16/12/1964 and in order to give it a special protection along with the 5^th Amendment to the Agricultural Tenancy Act have been  included in the IXth Schedule of the constitution of India. The object of the Act is to give protection/ownership right  to  the marginalize section that is the tenants/cultivators   from the oppression and suppression of the feudal class which was then prevailing  in Goan society  in respect of the  land which they were/are cultivating. 

The Goa legislative assembly in a recently concluded Assembly session by way of Bill No. 20 of 2014 had  passed the Amendment to the Goa Agricultural Tenancy Act 1964. That by way of present amendment the Goa Government has introduce  three major changes to the Agricultural Tenancy Act.  One of the change which the amendment tries to introduce is to take away the authority of the Mamlatdar Court in deciding the tenancy cases,  Secondly it introduces contract farming and thirdly it puts  a time limitation to file tenancy cases. 

That from the bear reading of the recent amendment to the agricultural Tenancy Act   it shows that the amendment is introduce  without studying  the ground realities, without application of mind  and without taking all the stake holder particularly  the Tenants/have-nots   and the institution which are working for the benefit of the tenants  like the Mamlatdar, the agriculture department etc into confidence/consideration. However it appears before introducing the present  Amendment the haves that is the feudal class might have taken into consideration and it has been drafted as per their whims and fences as the amendment is likely  to benefit them rather then the illiterate and ignorant farming class/have-nots.

              Amendment Introduce without understanding ground realities  

As stated by the Government one of the object of the amendment particularly in introducing the Contract farming is to avoid fertile land from remaining fallow.  Before introducing such an  amendment has the government have undertaken any study/survey to known the ground realities  as to why people keeps the agricultural land fallow? The Answer may be in negative. As per my study most of the fertile paddy field particularly in villages are kept fallow on account of problem of stray cattle. The High Court of Goa in writ petition No.261 of 2004 ( Shri Audhut Kurtarkar v/s State of Goa)  has directed the  local bodies to solve the stray cattle problem. The Government has also provided the local bodies  with funds  and manpower but no efforts have been made by the  local bodies nor by the Goa government  to solve the problem of stray cattle as even today  herds of stay cattle’s are seen on the road and in the paddy field. In some cases the farmers cultivates but during night time the stray cattle’s destroy the paddy field  which disappoint the farmers from cultivating. Secondly in some cases the land holding are small and segregated and it is  surveyed  accordingly,  cultivation of which  find difficult and  uneconomical for the farmers which  sometime also  result in keeping the land fallow. Collapsed embankment ( Bandh )  due to which the saline water enters into the field, Sluice gate opened by the fish folk at khazan land, Release of sewage water by big residential complex into the paddy field sometime results in keeping the land fallow.  Government should  have studies these problem first before introducing any amendment as the problem have to be solved permanently. But from the intention of the Government in introducing the present amendment there is not intention of the government to solve problems but to create problems.

                                 Time limit for Applications

By way of the said amendment the government has introduce section 60C by which  three  year time limit has been put  to file tenancy cases  under section 7, 7A, 8, 8A, 10, 11, 12, 14, 18,18A, 18B, 18C, 18E, 18F, 18G, 18H, 18J and/or 18K. The inserted section reads as under  “No Court of Senior Civil Judge shall entertain any application under section 7, 7A, 8, 8A, 10, 11, 12, 14, 18, 18A, 18B, 18C, 18E, 18F, 18G, 18H, 18J and/or 18K of this Act unless it is filed within a period of three year from the date of commencement of the Goa Agricultural Tenancy (Amendment) Act, 2014.” This mean no tenant will be in a position to filed tenancy cases after three  years from the date when the amendment receives the assent of the governor. Why the burden is put on the tenant to file cases and why not on the landlord if they are aggrieved.  

The factual scenario in Goa is that after  Administrative Tribunal  Judgment passed in Tenancy Revision Application  No.71/96 (Dr. Rui Tito Vaz v/s Agusta Simoes )  and 9 other connected cases  the Tribunal held that ‘The mamlatdar should first conduct inquiry under section 7 under  the Agricultural Tenancy Act and thereafter decide the proceedings under section 18C. 

The judgment discusses that no separate survey was conducted under the Agricultural Tenancy Act hence the survey conducted under the Land Revenue code cannot be made applicable to the tenancy act. As per the judgment it can be concluded that  mere figuring of name in survey record  one is not entitled for tenant ship, but one has to get himself/herself declare as tenant in respect of the portion he or she cultivate. Which means every tenant even whose names are  figuring in the survey records are not tenant  and they have to file tenancy cases for declaring them as tenant? That based on the said judgment most of  the 18-C cases which were sue- motto initiated by the government have been closed/discontinued.  The judgment vitiates the entire tenancy act and the 5^th amendmentto the Agricultural tenancy act which are even  included in the IX^th Schedule of the constitution and has given special protection. By way of 5^th Amendment to the Agricultural Tenancy Act Chapter IIA has been introduce to the Agricultural Tenancy Act . Section 18A which was introduce by way of 5^th Amendment to the act says that “Tenants deemed to have purchased lands on tillers day” that is from the year 1976 in which year the 5^th amendment to the Agricultural tenancy act came into force. But till today most of the genuine tenants who are still tilling the land are yet to become the owner, are yet to get the benefit of the law. Why the government is not coming out with an amendment to give relief to these tenant?   Why the government is not  resolving this problem?

The further question arises after the amendment are as follows.   What about the fate of 18-C cases in which some of the tenant have paid their purchase price but Sanad have not been issued to them. What about those 18-C  cases  in which  Judgment is passed by the Mamlatdar but the purchase price is not paid,  what about those 18-C cases  in which  judgement is passed but not signed by the concerned Mamlatdar and what about those cases in which payment is made, sanad is issued but mutation is not done? The government had to answer these questions before proceeding with the amendment.

Now the question is if a tenants name is figuring in the survey record conducted under the land Revenue code, however he/she  has not filed application within the stipulated time as mentioned in the amendment? Does  he/she cease to be tenant  or cannot he or she claim the benefit of tenancy Act?  Why the government has not given any  clarification to that effect in the amendment /why it is not implementing  or making effort  to make the genuine tenant as owners as per the 5^th amendment to the agricultural tenancy act.  The Goa Government particularly the revenue Minister had to answer these question and should come out with a concrete solution.

                              Change in  Jurisdiction

The new amendment proposes to change the jurisdiction of tenancy cases from the Mamlatdar court  to Civil Senior court may be with a intension to expedite the matter. But any study was done before such an amendment  as to why the matters were getting delay before the Mamlatdar, the answer may be in negative. Is there any guarantee that after the matters being transferred to the Civil Court  will they be  disposed of in a time bound manner. Certainly no as our civil court are already overloaded with Civil cases. Moreover the proposed amendment empowers the civil  Court to try and decide   tenancy cases which means the tenancy cases pending before the Mamlatdar of Dharbandora  had to be transfer before the Sanguem  court.  Even the tenancy appeal pending before the Dy-Collector of Canacona and Quepem had to be transferred to the District Court Margao. The litigation in civil court will be more costlier then that of Mamlatdar court  which again instead of doing justice to the poor farmers will do more injustice.

I agree that in some case the tenancy cases used to get delayed and there are many reasons for the same. First  most of the time the Mamlatdars  are busy with  administrative work and give less importance to tenancy or mundkar cases as a result hardly effective hearings in such cases take place. Secondly Sometime they are being transferred abruptly and the replacement take months  together. Sometime the mamlatdar are  given  two or three additional charges. Thirdly  in most of the case the  appointment of Mamlatdar is done on influence (either political or those who can pay  more) rather than merits which hampers competency of the Mamlatdar. These are some of the  factors that are  responsible in delaying the cases.  That without finding the reason  and without studying the ground realities transferring the jurisdiction from one court to another court is not a solution. It will only defeat the beneficial purpose of the legislation. 

Solve the issue once for all

Why government by way of amendment is not trying to simply the procedure under the Agricultural Tenancy Act or under the Mundkar Act as after being declared the tenant /mundkar had to file  an application for purchase, then again an application  for mutation, and except for mutation every time  the tenant/Mundkar had to serve the bhatkar  in which case lot of time and money of the have-nots get wasted.

The Governor should have a broad thought before signing the present amendment. The government should make sincere efforts to  solve and come out with such a amendment which will solve the tenancy   problems of the poor farmers once for all. Is there such a intention on the part of the present government certainly no. It appears that the government wants to create problem so as to make the poor poorer and the reach richer.

 

When High Court Judgment fails to deliver justice: what happened in Benaulim

Benaulim is known as the land of Lord Parashuram with the legendary arrow landing at a site close to the Arabian sea, and known as the Komla Tollem (The Lotus Lake). Parashuram, according to Puranas has been military leader of the Brahmin in quest of the conquest of Indian territories. He is known for fighting bloody wars against Marathas (Also known as Chardes after Shenoy Gembab's book Ain Vellar of 1945) weeping them off the face of the planet earth 21 times. He is also known for killing of his mother Ranuka because she was not a Brahmin but a mulnivasi of India. This narration has been publicly cited often by Hon. Waman Meshram, President of Bharat Mukti Morcha. It is unfortunate Bamani myth associated with Benaulim to serve their agenda of keeping real history wrapped up under their Parashuram myth. This is also the reason why Parashuram' statue is prominently displayed at Menezes Braganza Hall, Panjim just like Chanakya's statue at Kala Academy, Panjim. They are both icons of Bamon Raj.

This judgment of the Goa bench of Bombay High Court lacks element of justice and totally bias in favour of the real estate owners and totally against agitating people of Benaulim and entire Goa. It sets dangerous precedent of using High Court to bulldoze voices of protests against nastier developments. This judgment is another arrow of Parashuram working tirelessly in quest of establishing Bamon Raj.  Here is a critical review of the context and then text of the judgement.

One fine April morning, some unusual digging activity commenced in the near vicinity of this lake and a little over 500 metres away from the high tide line, at Survey  No. 378/1-B.  This caught the attention of the villagers from Soriant Ward of Benaulim.  

A complaint was filed in April 2008 with the local Panchayat stating that some illegal construction activity is going on at the site without displaying the mandatory Licensing details.  Inquiries revealed that a mega housing project was coming up at the site.  Scrutiny of the Construction License revealed that the construction plan besides other irregularities showed an access road of 6 metres.  Soon a show cause notice and Stop work order was issued by the Panchayat after a huge agitation by the Villagers against similar mega housing projects.

Stung by this action of the Panchayat, this builder from Mumbai filed a number of false police cases against the villagers.  He unsuccessfully sought an injunction through the civil courts and when he failed in his ulterior designs, he dragged the villagers to the High Court too.  The villagers though continuously harassed, remained undaunted.
After laying low for about three years, he approached the Panchayat to renew his License which by then had expired.  The Panchayat refused.  The builder appealed against the panchayat Decision with the quasi-judicial authority in the Directorate of Panchayats which upheld his appeal and directed the Panchayat to issue the licence.  

The Panchayat was dragged to the High Court of Bombay at Goa.  The case was halfheartedly defended by the Panchayat resulting in directions being issued to the Panchayat to reconsider the builder’s application for renewal.  When the Panchayat was about to issue the License, the villagers approached the Chief Minister of Goa who was also the Minster for Town and Country Planning Department (TCP) and urged him to direct the TCP to conduct a site inspection.  The site inspection revealed that the approach road was less than 3.5 metres and that the Technical clearance given in 2007-08 was illegal.  The TCP then informed the Panchayat not to renew the licence and to
 keep the same in abeyance till the approach road was put in place.  The Panchayat could have rejected the application for renewal and also cancelled its earlier Licence of 2007-08 since it was obtained under false claims.  However, TCP-Builder-Panchayat nexus was revealed when the Panchayat in December 2012, meekly kept the renewal in abeyance despite the resolution of the Gram Sabha to reject the construction Licence in totality.

The Builder moved the High Court of Bombay at Goa through Writ Petition No. 382/2013 naming The Village Panchayat of Cana-Benaulim as respondents and The TCP Department, Margao as second respondents. During the course of the hearing, the Courts in its Order dated 3rd April, 2014 directed the  Executive Engineer (Roads) PWD, Margao to depute a competent person to visit the site in question and submit a Report disclosing as to whether a six-metre wide road along with a carriageway is available at the site which would be accessible to the proposed project of the Petitioners herein; and also further directed that the Report should also include the width of the existing road and the width as per the Acquisition Plan.  Accordingly a site inspection was conducted on 5th April, 2014.  A report was submitted to the Court.  The report concluded that the site is approximately 315 metres away from the junction of the road leading to Benaulim Beach.  

The report also mentioned that land acquisition has been done upto property bearing survey No. 378/1 of Benaulim village in 1995.  The Builder’s property is in Survey No. 378/1-B.  Between this two points, there is a stretch of a narrow private road of 93 metres and which has not been acquired by the government.  The width of this road is 3.3 metres at its broadest point and 2.7 metres at its narrowest point states the report.  This road is abutted by compound walls of the owners of the respective houses alongside the road.

Subsequent to placing of this report/affidavit, the TCP through its Senior Town Planner filed an affidavit stating that their letter dated 25.05.2012 (directing that the NOC dated 28.12.2006 be kept in abeyance) could be withdrawn subject to the prior compliance of the following conditions, ie. the builder (the Petitioner in this case) shall develop the carriage width to 4 metres at their own (builder’s) cost upto the portion for which the land was acquired by the Government.  The affidavit further states that the stretch of road which is a private road shall also be developed by the Petitioner at their cost to 4 meters carriage width.

The Builders subsequently filed an Affidavit cum Undertaking stating that they will deposit the amount determined by the PWD to extend the width of the existing tar road to a minimum width of 4 metres . As usual, the case was poorly defended by the Counsel of the Panchayat.

The High Court of Bombay at Goa vide its oral judgment dated 07/05/2014 quashed the decision of the Panchayat not to renew the license (letter dated 22.12.2012) and directed the Panchayat to consider the renewal application dated 08.02.2011 afresh within four weeks after TCP passes the order as stated in their affidavit.

What makes the villagers wonder is how the High Court could appreciate the statement of the TCP to develop a stretch of road of 93 metres length which is in private property and which does not belong to the Builder in question.  The villagers say that the sudden U-turn of the TCP is understandable considering the fact that it is controlled by vested interests and politicians.  They say that the same High Court had quashed attempts to issue Construction Licences in the past where the access road was not in place.  They wonder what went wrong in this case.

The TCP which usually takes months to grant technical approval to simple applications for individual houses was prompt in issuing revised technical clearance within days of the high court order.  It is for the general public to summarize the case. The manipulation has taken place at the highest level.