Date: 26th October, 2024
The Three Judgments — M/s. Zuari Agro Chemicals Ltd. vs. Smt. Basilia M. Gomes, Communidade of Sancoale vs. Zuari Industries Ltd, and Communidade of Chorão vs. Leiticia D’Souza—each addresses the rights over Comunidade properties leased under the Aforamento system. They highlight issues of ownership, lease agreements, and the implications of paying the ‘foro’ (lease rent), setting important legal precedents in property law related to Comunidade land.
In The High Court of Bombay at Goa, the case of M/s. Zuari Agro Chemicals Ltd. vs. Smt. Basilia M. Gomes emerged as a pivotal moment in land lease disputes. The courtroom buzzed with tension as claims of ownership collided with the validity of lease agreements. Ultimately, the judges ruled in favour of Zuari, affirming their rights despite complications from incomplete records, highlighting the fragility of land tenure in the region.
Meanwhile, the Communidade of Sancoale vs. Zuari Industries Ltd. unfolded, focusing on the implications of lease payments on ownership rights. The judges deliberated on the nature of ‘foro’, ultimately declaring that consistent payment could lead to full ownership. However, they cautioned about the potential pitfalls of vague lease terms, reminding all involved that clarity is most important in such agreements to prevent future disputes.
Lastly, Communidade of Chorão vs. Leiticia D’Souza served as a stern reminder of the need for meticulous record-keeping in lease agreements. The court emphasized that gaps in documentation could jeopardize property claims, leading to confusion and conflict. As the judges ruled, they underscored the importance of comprehensive leases, ensuring that all parties understand their rights and obligations clearly, lest they find themselves entangled in legal webs of their own making.
The idea that community land could turn into private property just by paying 20 years of rent brings up questions about fairness. Communal land, usually meant to serve the entire community, becomes privately owned without open auctions or transparency. Although the legal framework may allow this through certain concessions or rent arrangements, many argue it doesn’t align with the spirit of communal ownership. It raises concerns about whether such transitions truly serve the community’s interest or simply favour private interests over shared heritage.
In 1961, the legislative enactment no. 2070, the new Code of Comunidade, brought a critical update to Goan land laws by abolishing the ‘foro’ payments made by Comunidades to the National Exchequer. This move reflected Cunha Rivara’s view that Comunidades held full ownership of their lands without any split in rights, as seen in European feudal law, where dominium utile (use rights) and dominium directum (ultimate ownership) could be separated. Rivara emphasized that Goan Comunidades possessed undivided, autonomous ownership, and the abolition of ‘foro’ reinforced their historical, cultural, and economic sovereignty. This legislative change acknowledged their outright ownership, ensuring that the wealth and heritage of Comunidades remain with the Communidade itself.
With utmost respect for the late M.S. Usgaonkar, who was entrusted by the Government of Goa to re-examine the translated text of the 1961 Code of Comunidades submitted by Mr. E. Noronha Rodrigues, he expressed with great care and pain, “We came across few words which created difficulties in the matter of translation.” He specifically referred to words such as “servidão,” “hypothecation,” “usufruct,” “arrendamento,” “aforamento,” and “emphyteusis,” stressing the complexities involved in accurately conveying their meanings.
Late. M.S. Usgaonkar, the translator for the Government of Goa, admitted in his conclusion that he faced difficulties translating specific terms related to Communidade property rights. His uncertainty about terms like “aforamento“ raises questions about the accuracy of these translations. This uncertainty could affect the understanding of legal rights in subsequent judgments, suggesting that the translations might not fully convey their intended meanings. While interpreting definitions, the court should give careful consideration to these interpretations, as they may not be fully expressed.
Uncertain translations of legal terms in the Code of Comunidades have caused confusion about property rights. When late. M.S. Usgaonkar pointed out issues with words like “aforamento,” it showed that there could be misunderstandings. This lack of clarity has serious consequences, as courts may interpret these terms in ways that weaken Comunidades’ ownership of their property. As a result, Judiciary decisions based on these unclear translations can lead to rulings that harm the rights of Comunidades, threatening their identity and unity. Clear language in legal texts is essential to protect these rights effectively.
Various amendments have been made to the Goa, Daman, and Diu Legislative Diploma No. 2070, dated April 15, 1961, by the state government. The key question is ‘whether the state government is empowered to amend this diploma, which was originally passed by the Governor-General of Portuguese India, and to what extent.’ In this context, it is essential to consider whether the assent of the Administrator of the Union Territory of Goa, Daman, and Diu or the assent of the Governor suffice when dealing with amendments as laid down in Article 31A of the Constitution of India.
With high respect to my Senior Fraternity and the Judiciary, may we approach the Supreme Judgement???