LEGALITY OF AMENDMENTS TO THE CODE OF COMUNIDADE

A lot of discussion is going around about the amendments to the Code of Comunidade proposed by the Government. Several meetings are held by the components of Comunidades objecting the proposed amendments on different grounds. One of the main contention of the government in past and now is that the several amendments have been made in the past to the Code, hence there should not be any objection to amend the code. During my tenure as M.L.A., the then revenue minister late Dr. Misquita brought several amendments to the Code. When I objected the amendments to the Code, I was told that the Code has been amended in the past on several occasions. Therefore there is a precedent. I told the House that the precedent should not be taken as licence to carry on unlawful acts. I was over ruled by the Hon.Speaker Mr.Tomazinho Cardoz. Unfortunately no one in the House supported me probably because no one had any interest in Comunidades. I should admit my weakness that I was ignorant of the several laws enacted by Parliament after 20th December 1961 in respect of Goa, Daman and Diu and some provisions of the Constitution.

It should be noted that the internet facility and access to several records on internet were almost absent during that time. Anyways, since again the issue has surfaced and given the fact that lot of comunidade land being forcibly acquired by the government invoking the provisions of Land Acquisition Act to provide for and benefit of private industries and establishment , huge land for educational campuses in private sector to provide housing for migrants and government employees disregarding the effects thereof, I felt the need to present my views to the readers in general and those concerned in particular . I am of the opinion that the Code should not be amended for the following reasons:

1 Absence of Legislative competence and Constitutional validity.

a) VILLAGES UNDER COMMUNIDADE GOVERNANCE NOT INTEGRATED INTO INDIAN CONSTITUTION 

It is a well known fact that the Goa and the Comunidades or Gauncaries were not part of the Dominion of India when Indian Constitution was adopted on 26th Nov., 1949 or when Constitution came into force on 26th Jan., 1950. The Constitution was drafted for the British estate i.e. India. That was meant for the Indians who were British subjects but not citizens holding the land as tenants or peasants and not the owners or proprietors excepting the Princely States, who also signed the Treaty of Accession for privy purse and joined India before the adoption of Constitution. Thus the whole of the land of India vested in Union of India through Indian Independence Act and Treaty of Accession. So all people living in India hold the land granted by the Government even if it is a private land. Therefore the country was declared as sovereign .

In Goa however,the “Gauncary” villages referred as comunidade by Portuguese were Sovereign village republics in existence for many centuries before Portutuguese arrival in Goa, governed under Gauncary form of governance by the absolute allodial owners of the village known as Gauncars ; whom Portuguese King in his Foral /Charter issued in the year 1526 referred as Governor or Administrator or Benefactor. Every village republic had an independent local government of the Gauncars alongside the Portuguese government at the Province headquarter. As the whole of the village belong to Gauncrars , any piece of land held by any person in the village under Comunidade is originally granted by Gauncars as Soverign. Any land which is not granted to anyone remains directly under the supervision of the Comunidade/gauncars . It is this land which was kept open for cattle grazing or due to unproductive nature, is being grabbed by the government by resorting to land acquisition or by amending the code of comunidade to enable granting of land to encroachers by regularsing their constructions.

Indian constitution makers had not foreseen that the Goa would be part of India.Hence no provision till this date exist in Indian constitution to cover the land not under the grant by the government or to recognise the local government of village republics in Goa known as comunidades or gauncaries. Therefore these villages are outside the scope of Indian constitution. Any subject which lies outside framework of Indian constitution cannot be legislated upon by the Indian parliament or State legislative assembly for want of sovereignty. Therefore neither the parliament nor state assembly has legal competence to legislate for comunidades in Goa. All amendements so far made are null and void and it is an attempt of invasion upon comunidades by government.

b) VIOLATES SEC. 5 OF GOA, DAMAN AND DIU ADMINSTRATION ACT 1962 

Goa, Daman & Diu were annexed to the Indian Union by conquest on 19th December 1961 with 20th December 1961 as appointed date. Soon after annexation, by twelfth constitutional amendment, The Goa Daman and Diu was incorporated as union territory. The Art. 1(3) (C) of the Constitution of India mention any territory acquired by India shall be part of India but further explains that such acquired territory cannot be considered as Indian territory unless there is a legal transfer. Till that legal transfer, the international law and not the Indian law is applicable for such acquired territory .

As Goa , Daman and Diu is a acquired territory the International law should have been made applicable to Goa but mischievously, the British made laws meant for their subjects and slaves were extended to the Citizens of Goa Daman and Diu.
Villages in Goa under Gauncary (Comunidade) governance were never part any estate whether of British or Portuguese. The Goa Daman and Diu Administration Act 1962 was passed on 27th March 1962 by Parliament of India thereby providing through Sec.5 of the Act , continuance of existing laws which reads:  ‘’ (1)All laws in force immediately before appointed day in Goa Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by competent legislature or Authority.” (2) ‘‘for the purpose of bringing the provisions of any such law into accord with the provisions of Constitution Central government may within two years from the appointed day by order make such adaptation and modification.’’ (Appointed day is 20th Dec 1961). Further expression “All laws in force” includes not only enactments but also personal laws and customary laws as per Article 372 of the Indian Constitution. As per the above provisions it is clear that all Portuguese laws then existing in Goa Daman and Diu which includes Code of Comunidade/ Diploma No. 2070 are saved and are in force. Secondly, if at all any existing law is to be modified that modification or adaptation can be done only by Central Government within two years from appointed day 20th Dec. 1961. Therefore no modification can be done in the law after 20th Dec., 1963. All such amendments to Code of Comunidade and other existing laws or any other provision made through any other Act or enactment or rules or bye laws to modify or alter the provisions of existing saved laws including the customs and usages are unlawful and void ab initio.

c) VIOLATES ART. 372 OF THE INDIAN CONSTITUTION 

The above provisions of Goa Daman and Diu Administration Act are in conformity with Art.372 of the Constitution. The clause (1) of the Article states, ‘’Notwithstanding repeal by this Constitution of enactments referred in article 395 but subject to the other provisions of the Constitution , all laws in force in the territory of India immediately before the commencement of this Constitution shall continue to be in force therein until altered or repealed or amended by a competent legislature or other competent Authority.’ Clause (2) to the Article provides empowering the President to issue Order to make any adaptation in the existing laws to bring them in conformity with the Constitution of India. However Clause (3)(a) of the same Article puts a time frame by stating, ‘Nothing in clause (2) shall deemed – (a) to empower the President to make any adaptation or modification of any law after the expiration of three years (substituted for two years) from the commencement of this Constitution’.  Hence the changes made in Code of Comunidade since 1984, enactment of Land Revenue Code repealing the several decrees and application of Land Revenue Code to villages under Comunidade are void. The provisions of Land Revenue code cannot be applied to villages under Comunidades since none in these villages hold the land under tenure from the Government. The other Indian laws affecting land and natural resources are also not applicable. Obviously Transfer of Property Act, Land Acquisition Act, Mines and Minerals Regulation and Development Act and other Acts which affects directly or indirectly to the villages under Comunidade are also not applicable and therefore all sale deeds executed on the basis of Record of rights are unlawful and no purchaser can avail any right on the property transferred including the land acquisition by Government. One interesting thing about land acquisition is that the government does not get any title for the land acquired because government already has title but possession of the property was transferred by government to occupant by grant that is taken back by land acquisition. If the Government is not the grantor of land, the acquisition cannot be done . Comunidade itself being grantor of land, there cannot be land acquisition from Comunidade villages. Therefore all land acquisitions of Comunidade villages are unlawful. Further Transfer of property Act or Land Acquisition Act can be applied in respect of the’ property’ as defined in Indian Constitution under Art. 31A and 300A or for that matter Seventh schedule of Constitution. Such properties are hardly available in Goa and absolutely not available in Comunidades( Gauncary villages).

d) ART. 295 OF THE CONSTITUTION OF INDIA AND INTERNATIONAL LAW 

As international law /Authorities did not recognise the annexation of Goa by India and the Art. 1(3)(c) of the Constitution of India relating other territories that may be acquired also does not cover up the acquired territory as territory of India, and such acquired territories are covered under international law, the Government of India entered into treaty with the Government of Portugal in 1975, recognising Goa, Daman and Diu as part of India with effect from 20th December 1961 according to Indian government but came in force with effect from 4th June 1975 as per Decree No 206/75 of Portugal. Further according to Portuguese Constitutional law, Goa ,Daman and Diu was territory of Portugal till 3rd June 1975. The treaty therefore is either not complete or treaty is deemed to be effective from 4th June 1975. It is interesting to note that Supreme Court of India has made it clear in one of the Judgment in 1966 that the Goa, Daman and Diu is part of India through annexation by CONQUEST . If Supreme Court of India has approved the annexation what was the need for India to sign the treaty with Portuguese for transfer of Goa, Daman and Diu? Does not it mean that the India knew that the sovereignty of Goa Daman and Diu did not vest with India till the legal transfer by treaty? Therefore clearly the Goa ,Daman and Diu was not part of India till the Indo Portuguese treaty. Hence all laws / regulations made by the Union government of India or by the Union territory of India before 4th June 1975 are invalid and cannot be used in the Goa, Daman and Diu .
Moreover portuguese on 15th April 1961 promulgated diploma no. 2070 to give effect to the treaty of Affonso Mexia between gauncars of the sovereign village republics known as gaucaries in local language and comunidades in portuguese version declaring the comunidades as perfect owners of their villages and doctrine of dominium directum and dominium utile is not applicable to commuidades.

This diploma confirmed the sovereign nature of Comunidades and also the Portuguese government as protector by providing administrative tutulege (help).Thus the Comunidades were protectorate of Portuguese by treaty and through Diploma no. 2070. Can the treaty between India and Portuguese therefore transfer Comunidades (village republics)? Communidades in Goa are now either independent or the protectorate of India under Art. 372 and Art. 295(2) of the constitution of India. Right of eminent domain and sovereignty vest in repective comunidades/gauncars and not with the State. Therefore unless Indian constitution is amended to accommodate and integrate Comunidades neither the Indian Constitution nor the Indian laws can be extended to Communidades (villages) and use their land in their villages without permission of the respective communidade. Land used by the union government and State Government for their establisments in these villages can be treated illegal occupation. Due to wrong government policies Comunidade villages have become den of crimes for criminals from outside Goa. Unlawful land acquisitions and regularisation of illegal constructions in Comunidade land has led to uncontrolled settlement in these villages disturbing the demographic composition in the village. Gauncars now fear displacement from their own village due to encroachment by migrants and protection to them from government. In fact, the Comunidades are associated to India at the most by virtue of Indo Portuguese treaty signed in 1975. Art. 295(b) of the Indian constitution cast the responsibilities of the former government upon Indian goverernment. In case of Goa the responsibilities and obligations of Portuguese government rest upon Indian Government. Further Indo Portuguese treaty of 1975 under Article III of the the treaty state ‘‘The two contracting parties agree to settle through bilateral negotiations all questions between them including those concerning the property, assets or claims of citizens of respective countries, as well as questions concerning the State property and assets of either State in the territories of other State.’’ Thus responsibilities that were vested in portuguese government towards communidades under diploma no. 2070 and treaty of Affonso Mexia read with charter granted by king john III of Portugal to the Gaunkars , farmers and settlers of villages is now the responsibility of Indian Government . Any deviation from such responsibilities and obligation violate the treaty between India and Portuguese and provides aggrieved citizens to approach appropriate court of justice nationally and internationally.

2. LAND IN GOA DO NOT VEST IN CENTRAL GOVERNMENT 

After annexation of Goa , Daman and Diu Central government passed ‘ The Daman (Abolition of proprietorship of Villages) Regulation, 1962, thereby abolishing proprietorship and taking over almost whole of the land in Daman and declaring whole of the land of Daman vesting in Central Government. Similar law is also passed to vest the land in Diu with the Central government in 1971. Whenever land vest in central Government, the Central government declares the area as REVENUE DISTRICT and appoints a collector as the principal District Revenue Officer and as District Magistrate. Thus it is the central government to declare new area as a revenue district and create a post of District Collector and District Magistrate for the land vesting in Central Government. These enactments enable the Central Government to extend the Constitution and central laws. The process has been done for the area of Daman and Diu but not for Goa. That process could not be done by Central Government for Goa because almost 80% of the land in Goa is under governance of Comunidades who were in the Goa much before arrival of Portuguese. The law abolishing proprietorship in Daman defines proprietor under sec 2(h) as ‘’a person who holds any village or villages granted to him or any of his predecessors in interest by former Portuguese government by way of gift, sale or othererwise and includes his co shares’’.
Obviously no grant of land was made to Comunidade by Portuguese and hence the abolition or dissolution was not possible as Comunidade was not the proprietor.

Thus the Goa till date is neither declared as revenue district nor has appointed Collector by Central Government under any statute. The collectorate existing in Goa is unconstitutional and the record of rights brought in circulation in Goa are invalid and unconstitutional and not in conformity with Land Revenue Code 1968 which was mainly enacted on the requirement of the Collector of Daman for the land vested in Central Government for land held under tenure. Land Revenue revenue records can be created only for the Government land which is clear if one reads secs.14,15,16,17,18,19,20,21,22,27,28,30,32,36,55, 56 etc of the Code. Moreover the Record of Rights declares Comunidades as occupants when Comunidade itself is grantor of land in their respective village. Further occupant is defined as a person holding the land under grant. How can the Government that came into existence in India on 15 th August 1947 and in Goa on 20th December 1961 grant the land to Comunidades thousand years back. This is the greatest fraud and culprit should be criminally prosecuted. Firstly, the land so far lost by Comunidades due to transfer on the basis false record of rights should be restored to Comunidade immediately. Secondly, Collector and all other revenue officers be barred from dealing with Comunidade villages as VILLAGES UNDER COMUNIDADE ARE NOT REVENUE VILLAGES and Thirdly withdraw all the Record of Rights and ban them from use for Villages under Comunidade.

3. ISSUE OF CITIZENSHIP 

After annexation on 20th December1961, Goa , Daman and Diu ( citizenship) Order 1962 was issued by the Central Government on 28th March 1962 which reads  ‘‘IN exercise of powers conferred by sec. 7 of the Citizenship Act 1955 ( 57 of 1955), the Central Government hereby makes the following Order, namely:

1 This Order may be called the Goa, Daman and Diu Citizenship ) Order, 1962.
2 Every person who or either of whose parents or any of whose grand parents was born before the twentieth day of December 1961, in the territories now comprised in the union territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day.’’ 

This order implies (a) The citizenship is temporarily given to Goans by Order issued by the Central government and not by statute either by amending Article 5 of the Constitution of India along with 12 th Amendment, or by amending the Citizenship Act 1955.
(b) Goans are deemed to be citizens and and are not full fledge citizens.
(c) The union territory was created by the Central Government in1962 and State of Goa in 1987,only for deemed citizens. Is it possible under Indian Constitution?

The effect of this order can be very dangerous, as even after completion of 6o years of annexation of Goa, neither citizenship act is amended nor the constitution stating ‘‘Goan shall be citizens’’ from 20th Dec 1961. What happens if the Central Government in future revokes the Order? Being a Government Order the Government need not go to Parliament for approval. Goan land remains occupied by Indian Citizens who are migrants in Goa and goans remains without citizenship and rights thereof, like slaves as Indians were under British. So Goa that was not a Portuguese colony will now be an Indian Colony!

Gaunkars are the co-owners of Comunidades in Goa. If they are only deemed citizens , how can their properties be appropriated by Government? How can their personal law be amended by Legislative Assembly? Can Goa Legislative Assembly or Parliament legislate to take and use any land of deemend citizens? Does the government of the State and Centre has any moral right to propose the amendments to the code of comunidade especially when they are out of the ambit of Indian Constitution? Government must withdraw all the amendments made so far and proposed before the court of law strikes down.

CONCLUSION 

Present Code of Comunidade 1961 is preceded by Regulation of 1735, 1847, Code of Comunidade 1904 and Code of Comunidade 1933. Before promulgating the Code of 1904, 1933 and also 1961 commissions were appointed. In case of the present Code of Comunidade, the Commissions was appointed to hold the sessions of the Gauncars. The report was finalised by Commission to the satisfaction and acceptance of Gauncars and thereafter the said report was submitted to the Governor . Governor after getting the approval of legislative council in accordance with Art. 151 of the Portuguese Constitution, the Code of Comunidade was promulgated through Diploma No. 2070 on 15th April 1961. Thus the code was entirely based on the acceptance of the Gauncars and agreed by the Government through Diploma No. 2070. Therefore it cannot be unilaterally changed. Further the Diploma promulgated the Code so the Code and Diploma are different, which is clear from the statement in Diploma No. 2070 that ‘‘In fact the Diplomas that altered the Code did not always keep loyalty to the basic principles as many a times the solution adopted, meant the application of new principles, entirely different if not contrary to those guided the compilation of Code of 1933’'. So Diploma is the instrument through which the Code is brought into force to give the legal status to the Code. It is also clear from this statement that the Diploma No. 2070 was promulgated to do away with piecemeal changes done to Code of 1933 through several Diplomas. Now that the Government resorts to amendments of the Code without consultation of Gauncars against the accepted norms and declaration in the charter by Order of King John III on 16th September 1526 done through Affonso Mexia, amendments are not binding upon Comunidades.

Any one dealing with Comunidades and temples established by Gauncars in their Comunidade, whether politicians, civil servants, business establishments and others should know one thing that Gauncaries are not creation of law i.e. Comunidades have not come into existence like village panchayats, municipalties, corporations, societies etc,. through enactment of respective law by the Legislature or Parliament. If the respective law is not there these institutions would not have come into existence. Even India as a nation has come into existence by Indian Independence Act 1947 passed by British Parliament. The case of Comunidades is entirely different. They are in existence for thousands of years back and governed their respective village without written Constitution on the basis of Customs, Practices and Usages without any intervention from outside forces. Portuguese only compiled these customs and practices through charter and Diploma so that the Government can provide comunidade the protection. The diploma in Art. 1 mention that ‘‘The Comunidades or Gauncaries existing in the District of Goa shall be governed by the bye-laws contained in this Code and specially by Private law of each of them. General law shall be observed in omitted cases.’’ Nowhere in the code word Diploma is used again making clear that the Diploma is different from Code. 

Further ‘’private law’’ is defined as any written law by which the Comunidade was governed since olden times and, in the absence of this, the practice, invariably followed during at 50 years prior to 1904. This content in the Code under Art. 1 itself gives unlimited scope for Comunidade to exercise powers on the matter not covered under the Code. 

Thus the Comunidades were in existence without any written law. Portuguese gave the written law with independence to use the private law. And in future even if the law is denotified the Comunidade will function without any restriction from any power as independent territories as they are not covered under Indian Constitution. There are 186 village panchayats in Goa unlawfully covering 226 villages under Comunidade governance.

The Code therefore proves that in Comunidades there is no superior holder of land than the Gauncars. Gauncaries or Comunidades are absolute owners (“Propriedade Perfeita”) and therefore sovereign. This Sovereignty gives them the right of Eminent Domain. Diploma No. 2070 has confirmed this in addition has gone to the extent of stating that the Comunidades are juridical institutions. That makes it abundantly clear that the Government has neither sovereignty nor right of eminent domain over Comunidades. Any attempt to amend or dismantle the code will be suicidal for the State of Goa and Goans .

Mr. SADANAND U. MALIK
Ex-M.L.A. and former Minister, Goa.