It is strange that the respondents are alleging that the Applicant has played a fraud when despite being issued summons and filing a written statement, respondents themselves have not produced the purchase certificate - Agnelo Fernandes, Deputy Collector
Respondents have not alleged necessary facts to indicate any fraud played on Court
no evidence or document produced to establish tenancy apart from Form I & XIV entry
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PANAJI
Special inquiry officer Deputy Collector Agnelo Fernandes who has ruled that the land in question at Tiracol is not tenanted and thus does not come under the purview of the Goa Land Use Act, has in his order recorded that the tenants have not substantiated their claims that the negative declarations were obtained through fraud and that their tenancy claims are not backed by evidence including oral of tenancy being in existence.
"Respondents have not even alleged necessary facts to indicate any fraud played on the Court. Even in the reply, very vague and general allegations are made which are devoid of specifications," Fernandes ruled in his order made available on Tuesday.
"It is not even stated that any representatives of the Applicant (Leading Hotels) were involved in the alleged fraud nor is the nature of the fraud alleged. It is not even stated as to in what way fraud has been played by the Applicant on the Court or which documents were forged or in what way were the respondents induced, if at all," Fernandes ruled.
Both the Goa Foundation as well as the Saint Anthony's Tenants and Mundkar's Association had alleged that Leading Hotels had obtained tenancy free certificates for the land in question through fraud with a section of tenants and their legal heirs colluding with Leading Hotels to state before the court that they were erroneously included as tenants.
"The respondents have not pleaded or led evidence to show that admission was in anyway illegally extracted or coerced or induced, which the Respondents were duty bound to establish if they wanted to substantiate their contention that the order of negative declaration is obtained by fraud and/or is a nullity," Fernandes said.
"It is strange that the respondents are alleging that the Applicant has played a fraud when despite being issued summons in the case and filing a written statement in the case, respondents themselves have not produced the purchase certificate," Fernandes rued.
"It is important to note that the written statement filed in the negative declaration proceedings were filed personally by the respondents and not through any power of attorney. The same reflects on the conduct of the respondents. I would like to state again that respondents have till date not challenged the negative declaration and the order in appeal setting aside purchase certificates, although all sorts of allegations are made about fraud," Fernandes said.
On the issue of whether the lands were tenanted, Fernandes said that the tenants could not substantiate their claims through any means including oral submissions. "Respondents have not produced any document or evidence to establish their tenancy apart from Form I & XIV entry and pre-promulgation records and therefore, there is reason to believe that the respondents admitted the claim of the applicant knowing fully well that they don't have any documents to establish tenancy," Fernandes ruled.
"Apart from the fact the necessary details of date of creation of tenancy and other aspects are not specified in the reply, least that was expected of respondents who are claiming oral tenancy is that they would step in the witness box to prove oral tenancy or at least attempt to prove it. This is a vital circumstance in the case and according to me, it was incumbent upon the respondents to step in the witness box in support of their claim of oral tenancy," Fernandes said pointing out that former landlord Kashinath Khalap stepped in the witness box and has denied any tenancy creation.
"In such circumstances, adverse inference needs to be drawn against the respondents," Fernandes ruled.
On the question of the fact that when the land was acquired by the Goa Tourism Development Corporation tenants were paid compensation, Leading Hotels argued that the acquired land was not the subject of the sale deed and just because there were undisputed tenants in one part of the land it would have no bearing on other parts of the land, an argument which was accepted by the inquiry officer.
"According to me, since the subject matter of land acquisition proceedings does not involve any of the survey numbers which are part of the present inquiry and therefore tenancy of a part of land cannot be said to be tenancy of the entire land. What applies to one part may not apply to the other part and no such inference can be drawn especially when evidence has been led by the parties on specific issues," Fernandes ruled.
THE ORDER: IN BLACK & WHITE
Tenants could not prove allegations of Leading Hotels having obtained negative declarations and tenancy free certificates through fraud
No evidence including oral to substantiate that tenancy was indeed created
Compensation to tenants at the time of land acquisition around the fort would have no bearing on the rest of the land as that is not part of current project
Tenants vow to fight for their land
PERNEM: Denouncing Deputy Collector Agnelo Fernandes' report declaring Tiracol land as tenant-free, the St Anthony Tenants and Mundkars Association President Francis Rodrigues on Tuesday said the report not only was against tenants of Tiracol, but had gone against all tenants of Goa.
"The tenants of Tiracol will not give up and will fight for their land," said Rodrigues.
Reacting to the Fernandes report, Rodrigues told The Goan that many years back, some 14 tenants had submitted affidavits stating that they are not tenants in the land.
"Accordingly, Agnelo Fernandes had prepared the report. If 14 people claim that they are not tenants, it doesn't mean that 12.5 lakh square metres of land is free from tenancy. There are many others who are tenants of this land," he added.
"Fernandes has not studied the Tenancy Act and the report is one-sided. His report is not only against tenants of Tiracol, but it has gone against the interests of all tenants of Goa," stated Rodrigues.
"We will come on the road to oppose this report and we will not hesitate to approach the Supreme Court to fight for our rights," threatened Rodrigues.
Adv Prasad Shahapurkar, who was fighting on the behalf of St Anthony Tenants and Mundkars Association, said the case regarding only 3.5 lakh square metres of land is pending in the court and decision has not been made.
"However, 8 lakh square metres of land is declared as tenant-free in the report. I have not received copies of the reports and we will take a decision after studying the report," he added.
"The Goa Foundation and Tiracol Kul-Mundkar organisation had filed a PIL in the court demanding an enquiry regarding the 14 tenants who sold their land. The report was based on these 14 people and we will get details of the inquiry after getting the copy of report in our hands," said Shahapurkar.
Goa Kul-Mundkar Sangharsh Samiti Pernem Block President Daniel D'Souza said the report on Tiracol tenant land, which was earlier given by Sandeep Jacques, was correct and said the report prepared by Fernandes was wrong.
On the other hand, former chief minister and former Mandrem MLA Laxmikant Parsekar said the Tiracol residents should state if any MLAs and ministers had sold their land there.
"The tenanted land was sold by the Tiracol residents and why did they not oppose it while accepting money for their land," he questioned.
"The company should set up the project in the land acquired by it and I don't oppose the project. I welcome this project as it will solve unemployment problem and boost tourism in the village," he added.
