PANAJI
This is not the first time that the BJP-led Goa government is talking about regularizing the encroachments or houses on the Comunidade land. It had started way back in 2001 when Manohar Parrikar (late) took over the reins of the State and amended the Code of Comunidade to regularize these encroachments built before June 15, 2000 but in consent with the respective Comunidade. Many Comunidades did not consent and the matter was also challenged in the High Court, who disallowed the regulation.
The efforts were again made by Parrikar in 2012 and in 2017 and by incumbent Pramod Sawant led government in 2021; however it failed to materialize following opposition from the Comunidade bodies.
Now, ahead of crucial 2024 Lok Sabha elections, BJP is mooting a similar proposal but with a twist that the “houses” (which are actually built by encroaching the land) of “Niz Goemkar” would be regularized. A move, which the experts feel is a “political gimmick” and will not stand the test of “Constitutional Validity”.
The experts also categorically pointed out that the government has no powers to regularize the structures on Comunidade land without the consent of these 200-odd age-old institutional bodies- the one who have got the right under the Code to decide whose structures to be “regularized” and who should be left out. The power that the State government does not have.
Former Union Law Minister and Law Commissioner Adv Ramakant Khalap explained “under the Comunidade Code, there is already a provision for regularization of encroachment and hence there is no need to bring in a separate law or provision. The encroachers can simply apply under the relevant provision and the government can decide but only after consent from the Comunidade”.
“Now, suppose the government wants to make a law especially for comunidade land and that too only to grant protection to Goans, then the same may not stand the test of Constitutional validity because as a government, you cannot undertake discrimination between Indian nationals,” he said.
“Government cannot bring in a law that differentiates between a Goan and non-Goan, such a law may be declared as ultravires. There is a big-big pitfall so far as legislation of this type, favouring only a category of people is concerned,” the former Union Minister went on to add.
Stating that migrants are the largest encroachers of comunidade as well as government land, Khalap, who was one among those leaders demanding Special Status for Goa when the State got statehood in 1987, said “if the State had to get Special Status under Article 378 of the Constitution, government would have the power to bring in legislation to protect only its people like how in States like Uttarakhand, Himachal Pradesh, Nagaland, Assam, Mizoram, government is giving special treatment to its residents under the law.”
Khalap said that there is wholesale encroachment on comunidade and government land; it is not just restricted to houses but in some places huge residential constructions and tourism related structures. “Lots and lots of land has been encroached upon. When there is nobody to really stop this…when comunidade officers, panchayat and municipal machineries are hand in gloves…what else can happen”.
The government, in 2001 had carried out an amendment under Article 372(A) to the Code of Comunidades by inserting a provision to regularize certain illegal constructions in communidade land up to June 2000 but with prior consent of the Comunidade bodies. Many rejected it, such as Comunidade of Margao, which moved the High Court. There are huge slum areas in Motidongor and Tolsazor. Based on consent of some, the government had managed to regularize few, before the Court disallowed the regulation.
Stressing upon the Consent of Comunidade as must, MLA Adv Carlos Ferreira said that “these institutions being private bodies, governed by the Code of Comunidade, the government has no right to regularise or direct regularization”.
The Article 5 of the said Code, has made it clear that the Comunidades shall be under the administrative tutelage of the State. “This is nothing more than supervision and has nothing to do with its affairs,” he said.
Ferreira said that any law that speaks of regularisation needs the consent of comunidade and without the consent being there no such law will be held to be valid. “The government can bring in a legislation where comunidade consent can be taken but it has to be done in accordance with law. Now if comunidade decides to regularise there is a procedure that needs to be followed,” he said.
Referring to what Ramakant Khalap said, the senior counsel informed, “There is a chapter in the said Code which had allowed lands to be regularised. But it was not like an open tap that allows you 24x7 to keep on encroaching, followed by regularising it”.
Pointing to the 2001 amendment, Ferreira said that the government itself, way back, had recognized that comunidade consent as necessary.
He pointed out how the government backtracked on Bhumiputra Bill and how the Regularization of Unauthorized Structures Act was a complete failure in the absence of consent. “All these Acts are basically to regularize immigrant structures,” he commented.
The MLA urged the government to bring in an ordinance and get the law tested. “Planning to bring a law during the winter session in January, next year is nothing but a political gimmick ahead of LS polls,” he said.
Further, he explained that a law that differentiates people on the basis of place of birth or residence is hit by Article 14 of the Constitution and such distinction is impermissible in the eyes of law. “The government cannot distinguish but a comunidade has the power of being a private body. They can decide upon whom they want to regularize. Parrikar brought the law granting powers to comunidade to decide whom they want to regularize,” he said.
