In two recent landmark judgments from the High Court of Bombay at Goa, critical insights on the interpretation and application of the Code of Comunidades have been provided. The judgments underscore the importance of adhering to the Code's provisions, the State Government's tutelar role in safeguarding Comunidade properties, and the necessity of government approval for alienation of Comunidade lands.
Balancing State oversight and
comunidade autonomy
The first judgment, in the case of Dr Fenton De Souza vs State of Goa (Writ Petition No. 347 of 2023), clarified the extent of tutelage exercised by the State Government over Comunidades. It firmly established that administrative tutelage does not grant the State Government the authority to compel Comunidades to part with their lands even temporarily at prices lower than those determined by the General Body. Such an interpretation would run counter to the fundamental principles of tutelage, which are intended to protect and guide. On the other hand, if the Comunidade attempts to undervalue its land, the Government can step in to guide the Comunidade and protect the best interests of its members. The judgment underscores that tutelage's purpose is to protect and guide, not to interfere with land transactions.
State oversight in
comunidade leasing
The second judgment, in the case of Ramnath Naik vs State of Goa (Writ Petition No. 131 of 2022), focused on the authority of the Managing Committee to grant comunidade property on a "permanent lease basis" for commercial purposes. The Court made it unequivocally clear that the Code of Comunidades does not empower the Managing Committee to lease out comunidade property without adhering to the procedural provisions and government approvals mandated by the Code. The Code, especially Article 64, must be construed in conjunction with other relevant chapters and provisions. The Court's interpretation underscores the imperative need for government approval when leasing comunidade property, emphasizing the scope of Articles 153(9) and 153(10), which bestow the power of granting emphyteusis and long-term leases upon the Government, not the Managing Committee or the general body of the comunidade.
The Court also took note of its decision in Raghupati Bhandari vs Comunidade of Bandora (2021 G.L.D. OnLine 3605), wherein the scheme of the Code of Comunidades was analysed. It highlighted that comunidades cannot deal with their properties as private individuals or entities. They are obliged to follow the Code's provisions, which include checks and balances to prevent Managing Committees from misusing comunidade properties for personal gain or against the interests of the comunidade and its members.
Both judgments also reference the case of Martha Luis vs State of Goa (Writ Petition no. 275 of 2012) wherein the court recognized the public interest in safeguarding comunidade properties from encroachments and easy regularization. The State Government has a duty to prevent the dissipation of comunidade properties, particularly through encroachments.
The provisions of Article 372-A are a one-time exception, and neither the comunidades nor the State Government should unduly expand this exception. The court also rejected discriminatory practices of charging different rates for regularizations to members and non-members, emphasizing the need for equality under Article 14 of the Constitution of India.
Conclusion
Collectively, these judgments underscore the imperative of adhering to the Code's provisions and obtaining government approval when dealing with comunidade properties. Although comunidades may be the owners of their lands, they hold or manage such lands in trust for the village communities. Consequently, Managing Committees have an obligation to ensure that comunidade lands are not used for private gains but are managed in a manner that serves the best interests of the comunidades and their members.
These judgments reaffirm the need to operate within the statutory framework provided by the Code. The court's strong stance against attempts to bypass substantive and procedural requirements serves as a vital safeguard against potential abuse, preserving the integrity of the Code of Comunidades.
The property of the comunidades, must be zealously protected, for, a large segment of the community has a beneficial interest in it; that being the raison d'etre of the Code of Comunidades itself .
The rulings not only impact the legal landscape of Goa but also uphold strict adherence to the provisions of law and ensuring government oversight in land dealings, while safeguarding the interests of Comunidades and their members and upholding the integrity of the Code of Comunidades.
It may be recalled that the amendments to the Goa Legislative Diploma No 2070 (Amendment Bill), 2023, evoked criticism from comunidade members. They have alleged that these changes may undermine the autonomy of the age-old bodies and deprive them of their assets.
The Goa Legislative Assembly recently passed a bill that seeks to make it easier for the government to acquire comunidade land, and suspend managing committees, if needed. Comunidades have always promoted agriculture and related activities.
