The aforamento system, a legacy of the Portuguese legal framework, grants perpetual leasehold rights over comunidade land, balancing the interests of the Comunidade as the superior owner (dominium directum) and the grantee as the beneficial owner (dominium utile).
While the Comunidade retains limited oversight, the grantee enjoys exclusive rights to possession, development, and transferability of the land.
However, recent trends indicate increasing instances of unilateral interference by Comunidades and panchayats, particularly concerning infrastructure projects such as road construction, without due regard for the legal protections afforded to grantees.
Legal foundations of Aforamento and Grantee Rights:
The Portuguese Civil Code, 1867, explicitly delineates the extent of the grantee’s rights under Articles 1653, 1673, 1674 and 1704.
Article 1653 establishes aforamento as a perpetual grant, allowing the grantee to enjoy the land as if it were their own, subject to the obligation to pay foro (ground rent).
Article 1673 confirms that grantees retain full ‘dominium utile’, including the right to develop and encumber the land, without interference from the Comunidade or other third parties.
More significantly, Article 1674 empowers the grantee to initiate legal proceedings against any party—including the grantor (Comunidade)—should their rights be disturbed.
This provision serves as a critical safeguard against arbitrary decisions that may alter the use or status of aforamento land.
Article 1704 of the Portuguese Civil Code, 1867 prescribes that any transfer or expropriation of emphyteutic land must follow due legal procedure, which includes notifying the grantee and providing an opportunity to contest the action.
Limits of Comunidade authority Over Aforamento Land:
While Comunidades retain certain residual powers under the Code of Comunidades, these do not extend to unilateral modifications of land tenure once a valid aforamento has been conferred.
Article 5 of the Code of Comunidades affirms that once land is granted on aforamento, it ceases to be under the full control of the Comunidade, transferring independent rights to the grantee.
Article 1662 of the Portuguese Civil Code, 1867 further reinforces this by prohibiting the division or subdivision of emphyteutic land without the grantee’s consent.
These provisions collectively emphasise that the integrity of the aforamento grant remains protected from arbitrary communal decisions.
Despite this, some Comunidades have sought to override these limitations, either by granting permissions for road construction or attempting to reclaim lands for public use without following due process.
Such actions are not legally sustainable, particularly when the land was never designated for public purposes at the time of the grant.
Panchayat permissions and the question of authority:
A common justification for interfering with aforamento lands involves panchayat-granted permissions for road construction or public infrastructure projects.
The Goa Panchayat Raj Act, 1994, grants panchayats regulatory authority over land use within their jurisdiction.
However, this authority does not extend to overriding the leasehold rights of aforamento grantees.
Two key principles apply:
1. Panchayats may issue permissions for road construction only in compliance with legal mandates, but they cannot unilaterally override the grantee’s rights.
2. If the aforamento land was never designated for public use, then the grantee retains full dominium utile, and the panchayat lacks authority to grant construction permissions without consent.
Any attempt to reallocate aforamento land for public roads or infrastructure projects without legal backing constitutes an overreach of authority and may be challenged before judicial forums.
Judicial safeguards for grantees under the Portuguese Code of Civil Procedure, 1939:
Under the Portuguese Code of Civil Procedure, 1939, Article 1511 establishes the procedural mechanism for enforcing pre-emption or preference rights. This provision ensures that when an owner intends to sell, transfer, or otherwise dispose of property subject to a pre-emption right, the interested party must be duly notified and given an opportunity to exercise their legal entitlement.
In the context of emphyteusis (aforamento), the Portuguese Civil Code, 1867, specifically Articles 1678 and 1704, recognises the right of pre-emption for the grantee (lessee).
Article 1402 establishes a legal framework for determining the allotment of emphyteutic property when it forms part of an inheritance.
Grantees of aforamento lands can rely on Article 1402 to:
Ensure lawful succession of the leasehold interest within an inheritance process. Legal remedies for the grantee:
A grantee affected by unauthorised interference may initiate legal proceedings through:
● Administrative objections – Filing an official complaint before the panchayat or the respective Comunidade, citing their lack of jurisdiction to authorise road construction.
● Writ petitions – Approaching the High Court to seek an injunction against road construction, preventing irreversible harm to their property.
● Compensation claims – Demanding damages for unlawful deprivation, particularly when infrastructural modifications alter the fundamental character of the land.
Additionally, a constitutional challenge may be mounted where governmental or administrative actions infringe upon property rights, especially if they fail to provide due process protections to the grantee.
Courts have historically upheld private property rights against arbitrary state actions, ensuring that leasehold rights under aforamento are not weakened by inconsistent or unilateral executive decisions.
Conclusion
The aforamento system exists to provide stability and security to leaseholders, ensuring that land use remains predictable and legally protected.
Any unilateral decision by a Comunidade or panchayat to alter, encroach, or expropriate aforamento land must withstand judicial scrutiny.
The law clearly delineates the rights of the grantee, and any interference must comply with the stringent procedural and substantive safeguards embedded in Portuguese legal tradition.
As governance mechanisms evolve, the legal framework must continue to protect grantees from arbitrary interventions, upholding their exclusive rights of use, enjoyment, and ownership under the aforamento system.
