MAYEM CASE: BILLED FOR TAKEOVER (Herald Review) Serious implications for land ownership in Goa too...
The new Bill passed in the state assembly to deal with the Mayem evacuee property issue has serious implications for land ownership in Goa, and is likely to cause more harm than good, legal experts have said. Brought to the House in a tearing hurry by the BJP government with an eye on the Lok Sabha poll, the new legislation offers only an illusion of "liberation" to the Mayem landholders and is pitted with defects that one might even interpret as being deliberate, if the government does not rectify them soon. GERARD DE SOUZA and NISHITHA NAIR SHRIVASTAVA report ------------------------------------------------------------- Legal experts across the board see the legislation as nothing more than "an election gimmick" and one passed in a desperate hurry. Ideally, a piece of legislation like this should have been referred to a select committee, they feel. ------------------------------------------------------------- The Goa (Abolition of Proprietorships, Titles and Grants of Lands) Bill, 2014, which was passed in a tearing hurry in the final hours of the sixth session of the Goa Legislative Assembly on March 7 not only allows the government to take care of evacuee property, but it would, in effect, allow the authorities to take over any property it chooses, given the loose definitions and some obvious ambiguities that have been allowed to creep into Bill. Lawyers are almost unanimous that far from settling the Mayem evacuee property issue, the new Bill will probably spur more property litigation in Goa than ever before. Once Governor B W Wanchoo assents to the Bill, he will in a single stroke "deem to have extinguished and permanently cancelled all rights, title and interest of every proprietor, titleholder, grantee, in or in respect of lands held by him as such proprietor titleholder, grantee". The catch in fact lies in how the Bill defines a proprietor". "Proprietor includes a person who holds lands granted to him or any of his predecessors-in-interest by the erstwhile Portuguese government regime by way of gift, sale or otherwise, his co-sharers, or person having become owner of land by prescription/adverse possession," is how the Bill defines the term. Explaining the dangerous nuances of such a loose definition, Advocate Cleofato Almeida Coutinho, former member of the Law Commission, says, "They have used the word 'includes' instead of 'means' when defining the meaning of 'proprietor'. This means that proprietor could mean anything, even beyond what has been set out in the definition." If they had used the word 'means' instead, it would have restricted the definition to only what has been articulated, he adds. Theoretically, this would mean the government could suddenly wake up one day and say every land owner is a 'proprietor' as defined in the Act and by virtue of this Bill, once it becomes an Act, their rights will be deemed to have been cancelled. Further, the Bill makes every proprietor or title holder or grantee a Class II occupant under the code on payment to the government, land revenue as under Section 4, the land "shall be deemed to have been regranted to the proprietor or title-holder or grantee from whom they had vested in the Government of Goa". Coutinho believes that the Bill, instead of being applicable to the whole of Goa, should have been made applicable only to the villages of Mayem, Bicholim, Cuncolim and Siolim where there is evacuee property located. Another lawyer Aires Rodrigues concurred with this view, terming the Bill "devious" in its intentions. "The definition is an inclusive definition and not only intended to sort out the Mayem issue. All proprietors will get covered by this new legislation. [The Bill] vests all lands of the proprietor in the Government and even the proprietor will not be entitled to receive rents. Further Section 4 re-vests the land in the proprietor as Occupant Class II," Rodrigues said, adding that the legislation was "a very devious move" hurriedly bulldozed through without deliberation by the state government. It is a well known fact that the grants of lands by the erstwhile Portuguese regime are not restricted to the Mayem evacuee property, but in several villages, especially in Salcette where lands have been granted as 'lotes' or 'meias' and continue to be cultivated to this day. Deputy Chief Minister Francis D'Souza has, however, said, "It is the choice of the government which (land) to take and which not to. This is mainly about the evacuee property in Mayem; the government does not intend to touch anything else." While D'Souza would like us to believe that the government is interested only in the Mayem property and that it has a choice which land to take and which not touch, that is not what is said in the Bill that was recently passed. The Bill says that all rights will "deem to have extinguished and permanently cancelled". Irrespective of whether the government is interested in your land or not, your rights are deemed to have been extinguished and permanently cancelled. D'Souza also said that he does not "think" Comunidade land will come under this Bill. "The definition of 'titles' would be interpreted in so many ways," he said, adding that he expected there to be teething problems as "people will be apprehensive about the word 'abolition'". As chairman of law commission under the previous government, Ramakant Khalap had submitted a report in 2011 proposing that the government bring in an Act to provide for the abolition of proprietorship of lands granted to the Conde of Mayem. The former union law minister is convinced the new law would further complicate matters. Coutinho who had helped prepare that report said the compensation promised in the new Bill "at the rate of 20 times the annual payment (contribução predial) which the proprietor or grantee was liable to make to the erstwhile Portuguese regime" was against the compensation promised under the Central Government's newly passed Land Acquisition Bill and could be seen as a violation of the "Right to Property" as guaranteed under the Constitution of India. Legal experts across the board see the legislation as nothing more than “an election gimmick” and one passed in a desperate hurry. "Ideally, a piece of legislation like this should have been referred to a select committee," Coutinho said. Leader of Opposition Pratapsingh Rane had in fact pressed for the Bill to be referred to a select committee. That did not happen with Chief Minister Manohar Parrikar saying that it was "an assurance given by the government to the people of Mayem village". He also said that other lacunae, if any, could be removed at a later stage. Parrikar who has bulldozed the legislation also amended the legislation to include a financial memorandum of Rs 20 crore. Who stands to loose Irrespective of protests to the contrary, the law in its current form will call into question whether lands belonging to the Visconde de Pernem Jitendra Deshprabhu as well as huge tracts of lands allotted to the Rane families, all during the Portuguese regime, will "deem to have been vested with the government". Rane himself, however, appeared unsure of what the Bill that was passed will serve to achieve. "It may create some confusion. The implications are to be seen at the time of execution," the former Congress chief minister told Herald Review. Liberated? For all the rhetoric and the chest thumping by politicians who are claiming they have "liberated" Mayem village, in effect the bill, once assented, only transfers the Mayem land from the custody of the Custodian of Evacuee property into the care of the government. "The solution is miles away. The tenant and mundkar will have to prove their status under the respective laws, i.e. Tenancy Act and Mundkar Act. This will be a tedious process fraught with obstacles," Khalap said. He expects costly and time consuming litigation to ensue owing to the debate over who is a tenant and who is mundkar. Advocate Joaquim Souza from Margao reiterates this view, stating unless all such claims are adjudicated appropriately, no squatter who has illegally occupied land in the village be allowed entitlement to land. Khalap also questions the status of land held by churches, temples, local panchayats, schools and other public bodies. "To this extent, the law is faulty," he said. The way forward, the former union minister believes, is for “the government not to get into a discussion of tenant and mundkar, but instead take over the land and distribute equally among the people now residing in Mayem. Simultaneously it should provide land for all these public bodies and retain the rest for the government to utilise. Claimant to challenge Antonio S C Pereira, who has been caught up in litigation both in the Supreme Court as well as in the High Court, has questioned how the government can pass a legislation when the matter is still before the highest court of this country. He is expected to challenge the legality of the legislation, if it gets the governor's assent. Pereira has been challenging the declaration of the property as evacuee property, citing that heirs were living in India and were Indian citizens at the time of declaration of the property as evacuee property. However, the Bill has a penal provision which mandates that "whosoever... refers to himself for the said title or as a proprietor of the land or as a grantee of the land and continues to hold out shall be punished with imprisonment for a term which may extend to three months and liable for a fine of Rs 1 lakh." Advocate Souza questions why the government should declare property as evacuee property at all. "Can't a foreign national have his property taken care of through a power of attorney? Further, today's laws of PIO (Person of Indian Origin) and OCI (Overseas Citizenship of India) allow foreign nationals to hold land in India," he argues. ------------------------------------------------------------ Courtesy: Herald Review.