Goemkarponn desk
PANAJI: Much has been said and written about the Bhumiputra Adhikarini Bill, which was hurriedly passed in the Goa Legislative Assembly.
The Bill gives legalization of the dwelling to those residing at the place for more than 30 years with a payment of a nominal amount fixed by the committee.
This has snowballed into a major controversy as thousands of migrants are residing in slums in various parts for more than 30 years now.
However, Goemkarponn has laid its hands on the documents, proving that the Bill is contrary to the Supreme Court Order in Jagpal Singh v/s State of Punjab case.
Dismissing the petition by encroachers, the Supreme Court had directed all the States to submit a plan for eviction of illegal encroachers on Government and private land.
Then Chief Secretary Sanjay Srivastava had submitted in SC that the State has laws in place for eviction which any other law cannot supersede.
In an affidavit, the then CS had written that. a regulation enacted by the State Government known as Goa Land (Prohibition of Construction Act) 1995. “Nothing in this Act shall be deemed to affect the operation of any other law, and the provisions of this Act shall be in addition to and not in derogation of the provisions of such other law,” the regulation says.
“Restriction on construction on certain lands.- No person shall on and from the date of commencement of this Act, undertake any work of construction of any structure, building, hut or other structure or any part thereof on any land belonging to the Government, a local authority or a Comunidade except under the authority of written permission granted by the concerned authority,” he swore before the Supreme Court.
AFFIDAVIT ON BEHALF OF RESPONDENT-STATE OF GOA
- Shri Sanjay K. Srivastava, s/o late Mr. TrilokiNath Srivastava, aged 54 years, working as Chief Secretary, Government of Goa, having my office at Secretariat, Porvorim Goa, do hereby on solemn affirmation state and submit as under:
- By Order dated 28/1/2011 this Hon’ble Court has issued directions in para 22 of the Judgment to all the State Governments that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poromboke/Shyamlat land and these lands must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. It is further directed that the State Government shall provide for speedy eviction of illegal occupants after giving a Show Cause Notice and a brief hearing.
- I say that in Goa there is The Goa Panchayat Raj Act, 1994. As per Section 159 of the said Act, the land belongs to the Panchayat vests in the Panchayat. The said Act contains provisions enabling the Panchayat to take action against the illegal occupants. In Goa, 03 cases of encroachments have been reported by the Directorate of Panchayats so far.
- In Goa, there are also lands that belong to Village communities governed by law known as the Code of Comunidade. According to the precious history of the region known as State of Goa the original residents of the village were known as Gaoncars and they are holding of the village was known as Gaoncaria. The Gaoncars were entitled, to the shares in the income of the Comunidade of the village which used to manage its affairs. After the Portuguese Rule came in Goa, the said system continued, but it was regulated by the Code enacted by the Portuguese Government. The said Code was known as Code of Comunidades. There were new settlers who had come to reside in the village, and they were given shares in the income of the Comunidade and were known as shareholders. Their rights were also regulated by the Code of Comunidade. The Code of Comunidade which was enacted in 1933, had undergone changes as a results of many amendments introduced therein. A new Code Comunidades was enacted under Legislative Diploma No. 2070 dated 15/04/1961, After Goa was liberated and became a part of India with effect from 19/12/1961, the Code of Comunidade dated 15/4/1961 still govern the rights in land belonging to the Comunidades. There is an existing law by virtue of the Goa Daman and Diu Administration Act, 1962.
- I say that Article 371 of the Code of Comunidade gives powers to the Comunidade to take action through the Collector for eviction of unauthorized occupants.
- I say that there is also a regulation enacted by the State Government known as Goa Land (Prohibition of Construction Act) 1995. Section 3, 4, 5 and 6 of this Act provide as follows;
“3. The provision of this Act to be in addition to any other law for the time being in force.– Nothing in this Act shall be deemed to affect the operation of any other law, and the provisions of this Act shall be in addition to and not in derogation of the provisions of such other law.
- Restriction on construction on certain lands.- No person shall on and from the date of commencement of this Act, undertake any work of construction of any structure, building, hut or other structure or any part thereof on any land belonging to the Government, a local authority or a Comunidade except under the authority of written permission granted by the concerned authority.
Explanation.
(1) Comunidade’ means the Comunidade established under the Diploma Legislative No. 2070 dated 15-04-1961.
(2) Any construction intended for temporary use of not more than fifteen days in connection with any festivities or religious activities shall not be deemed to be a construction for the purpose of this section.
- Penalty. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, whoever contravenes the provisions of section 4 shall, on conviction, be punished with imprisonment which may extend to three months or with fine which may extend to Rs. 2000/- or with both.
(2) An offence under this section shall be cognizable.
- The local authority may remove any unauthorized temporary buildings work.– (1) The local authority of the area or such authority as specified by the Government on this behalf, may remove or cause to be removed any construction done in contravention of section 4.
(2) All reasonable expenditure incurred by the local authority or such authority as duly authorized by the Government under sub-section (1), shall be recoverable as arrears of land revenue under the law for the time being in force.”
- I say that the State has in place the appropriate enactments to remove encroachments from the lands belonging to the Government or local authority or a Comunidade.
- I say that any complaint received in respect of encroachment will be dealt with in accordance with the provisions of the above enactments and action will be taken to clear the encroachment and restore the land to the local authority/Government.
- I say that whatever stated above in paragraphs to 7 is true to my knowledge based on records available in my office.
What Supreme Court said in
Jagpal Singh v/s State of Punjab case….
We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on the Gram Panchayat land using muscle power/money power and collusion with the officials and even with the Gram Panchayat.
We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village.
The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion, such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.
In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion, all such Government orders are illegal and should be ignored.
Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village.
For this purpose, the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant after giving him a show-cause notice and a brief hearing.
The long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal Act or regularizing illegal possession.
Regularization should only be permitted in exceptional cases e.g. where the lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.