Days after vocally opposing the State government’s latest legislation giving legal sanity to unauthorised structures on comunidade land, the comunidades made their first move of taking the fight to the court. Seven comunidades, including Nagoa and Sancoale, filed a petition against the Goa government in the Goa bench of the Bombay High Court.
The petitioners maintain that the land is owned by the comunidades and, therefore, the government does not have the power to change the ownership or to permit encroachments. On the flip side, the government points out that these encroachments have been happening for years, and in most cases, the comunidades have been giving their silent consent, while adding that it is through regularisation that the comunidades will benefit, as land will be restored, and revenue will be generated.
Goa's past is deeply connected to the continued existence of the comunidades, a community landholding system based on time-honoured traditions. These are lands that are owned and managed collectively by the local communities and have been the source of Goa's socialist agrarian identity, cultural fabric, and social harmony. However, the latest developments have put a question mark over the powers of these bodies.
This conflict brings up the essential questions of whether local authorities should be allowed to give their approval to the illegal construction on community lands or should these lands, which are secured by centuries-old rights, be protected from arbitrary state intervention. The government maintains that physically removing the encroachments is infeasible and hence this is a practical reason for regularisation. This raises two questions: Does this indicate that all illegal houses could be regularised? And secondly, does this mean that comunidades will now lose power over its own land?
Article 372-B, in particular, of the suggested revisions to the law would allow the legalisation of unauthorised constructions, thereby giving the residents an opportunity to seek regularisation even if their houses were illegally built before 2014. The cooperation of genuine settlers is the only reason for the move, say proponents. Nevertheless, opponents declare this action as a weapon with which they will be able to continue the large-scale encroachments that have been going on, thus confining the comunidades to the shrinking of landholdings and at the same time losing land rights.
The court will have to look into whether the government should be allowed to go against the democratic process within the comunidades. And, most importantly, if such a measure conforms to constitutional safeguards—Articles 14 and 300A—which, respectively, guarantee equal treatment before the law and the right to property, thereby preventing arbitrary deprivation.
The proposal to give authorities the power to consider refusals as “deemed consent” and to expedite regularisation operations gives rise to concerns about transparency and due process. Are these provisions in line with the constitutionally set standards of fairness and equality? Do they have a potential to transform community lands, thus undermining Goa’s distinctive land ethos?
Although the government points out the necessity of a realistic approach to housing and development, it cannot be done at the cost of Goa’s cultural heritage. Comunidades, besides being the landholders, are the important stakeholders of Goa’s past, its nature, and its social balance. Therefore, any measure taken either through legislation or law that pessimistically affects this fragile equilibrium deserves being put under the microscope.
The comunidades dispute in Goa is a fight over the legal issues of land ownership, rights, and even history. It is a battle of identity, sovereignty, and the future of comunidade land rights. As Goa stands at this crossroad, the High Court has an important judgment to make, one that will shape the landscape of the State.
