THE COMUNIDADES OF GOA
'COMUNIDADE' is a Portuguese word/appellation for GAUNKARY. Gaunkaries are ancient Indian socio-agro-economic institutions established by the original inhabitants (indigenous people) thousands of years prior to Portuguese rule in India for harmonious co-existence. Thus GAUNKARIES were in existence much before constitution of the STATE itself. A Comunidade consists of definite boundaries of land from village to village with its topographic detail, its management and social, religious and cultural interaction. There are at present about 223 Comunidades functioning in Goa. The basic functions of every Comunidade in every locality are those of welfare which are even more than what is stated under Article 39 of the Constitution of India.
Every Gaunkar is the direct male descendant of the first founders of the institution of Gaunkary in the Village. In other words, Gaunkars are co-owners of the land and of all the assets of their respective Comunidades being successors-in-interest in common, through their first ancestors. The lands of the Comunidades cannot be alienated in favour of any person or authority, in any manner whatsoever. The land of the Comunidade cannot be mortgaged or attached by any means to settle debts, loss or deficit of the Comunidade, if any. All such debts, loss or deficit has to be borne by all the Gaunkars/Componentes of the respective Comunidade proportionately, to meet any such eventualities.
The rights granted by the Comunidade by way of arrendamento (hiring) lapses by efflux of time without notice. The aforamento (lease) granted by the Comunidade lapses on expiry of lease period of whatever duration or purpose mentioned at the time of grant. The land grant by way of emphyteusis (heritable lease) to any person, is not subject to alienation or transfer by sale and cannot be put or used for any other purpose than contracted with the respective Comunidade at the time of grant. The land granted on emphyteusis or otherwise is subject to escheat to the respective Comunidade.
Every Gaunkar/Componente is duty bound to report all illegalities and irregularities noticed in the Comunidade and has competency to file suits or by any legal means recover any loss, damage or deficit suffered by the Comunidade at the instance of any person (including Managing Committee members, Attorneys, Administrators etc.) or Government authorities and also seek indemnity in favour of the Comunidade. The Gaunkars/Componentes protecting the interests of their Comunidade are entitled to be lawfully reimbursed the cost incurred by them from the coffers of the respective Comunidade.
CODE OF COMUNIDADES is a conventional law codified, having its origin in Vedic Indian Jurisprudence and based on the principle of Hindu Code which in turn is based on Shrutis devolved since times immemorial. In addition, every Comunidade has its own Private Law based on the particular nature of their locality. The Code of Comunidades is declared Public Law vide DIPLOMA LEGISLATIVO No. 2070 dated 15.4.1961 and recognizes that absolute ownership of land lies with the respective Comunidade, down to the center of the earth.
The original Gaunkary/Comunidade is an institution of the Gaunkars by the Gaunkars for the Gaunkars spread throughout the State covering all the citizens of the respective village. The Code of Comunidades is a law of Gaunkars by Gaunkars and for Gaunkars.
The Law of Comunidades is not enacted by the State Legislature but by the Gaunkars themselves. Neither the State Legislature nor Parliament is vested with powers or authority of the Constitution of India to make laws for Gaunkars.
Comunidades experienced brief period of liberation from State bondage under Portuguese rule for eight months i.e. from 15.4.1961 until Liberation of Goa in the same year. All western colonial rulers including the Portuguese, assumed that ownership of the land occupied by them on Indian Territory was originally vested with the king or ruler of the locality and hence vests with the Crown in England/Portugal on their ousting the last king/ruler. It is only after several legal battles by our predecessors that the Portuguese conceded that they committed gross error and thereafter discarded their thought and declared that Comunidade lands are not held by the Comunidades on State tenure nor on emphyteusis and the land is not subject to payment of any Land Revenue to the State. Some Comunidades dissolved during earlier period of Portuguese rule for want of payment of land revenue i.e. in arrears to the State, are now subject to be reconstituted by this recognition/acknowledgement given in the year 1961.
The Ex-Portuguese Government was under bilateral Treaty with the Gaunkars to give Administrative Tutelage and respect the provisions of the Code. On change of Government rule after liberation, the State continues to be under constitutional obligation to comply with the duty to provide the same tutelage and respect the Code. The Indian Administration which was extended over Goa after liberation, have till date adopted the British concept meant for slaves which held the concept that the ownership of land vests with the Crown/State. The State has thus failed to provide administrative tutelage to Comunidades and have committed a breach of obligation. The Gaunkars are subject to pay 'derrama' (tithes) to the State for the Tutelage provided. This 'derrama' is coming down from ages when Gaunkars were paying tithes to the then kings or rulers for protection of their interests. This contribution had been accepted by the ex-Portuguese rulers in the form of Derrama to render protection to Gaunkars as was the case under the then Kings/Rulers. The State and its agents are under fiduciary duty at all times to the Gaunkars.
The State has no Eminent Domain over the lands of the Comunidades to acquire or impose agrarian land reforms. Comunidade lands so acquired by the wrongful exercise of authority of Eminent Domain by the State (both for State and Central Governments, Government agencies or Companies, Corporations or Housing Boards etc.) shall be liable for forfeiture and recovery. The acquisition of the land so far made is at the risk of the Government or those parties who have obtained undue benefits. The same holds good against the wrongful imposition of agrarian land reforms. The Government has no authority to make policies or laws or amendments to regularize or encourage regularization of encroachments on Comunidade lands. The law of Comunidades is ancient and exclusively private and not enacted by Legislature. The Government of the State is wholly responsible and liable to clear in whatsoever manner, all encroachments and trespasses as a result of breach of trust by the Administrator of Comunidades, an appointee of the Government of Goa, as well as other employees supposed to be appointed by the Director of Civil Administration.
In a recent Mabo's case, the Australian High Court by judgement of 1992, has held that indigenous people of Australia had common law rights and interests in land and waters, according to their traditional law and customs. The High Court held that it has been wrongly assumed that indigenous people had no prior right of ownership of Australia. The judges held that this legal fiction had continued for more than 200 years. This judgement of the High Court caused the Australian Parliament to enact the Native Title Act 1993, establishing the rights of the indigenous people of Australia over the land. Whereas, for Gaunkars in Goa such declaration is given by the State itself on 15.4.1961 and hence there is no need to move any Court to establish the rights of the Gaunkars of Goa over their land.
The decisions and deliberations of the General Body on any item or issue once given is final when not set aside in appeal and becomes res judicata. The Managing Committee cannot substitute the General Body and/or overrule the decision of the General Body. The say of the Attorney or of the Managing Committee is not the say of the Comunidade to bind the respective Comunidade.
The Government should have declared Comunidades of Goa, 'National Heritage of India' being the only institutions in existence since Vedic India.
What Mahatma Gandhi had envisioned for local self-governance are the very institutions in the form of Gaunkaries which were prevailing throughout the Indian sub-continent (Bharat) and abolished on account of progressive invasions from outside. Had Gandhiji to live longer, he would have certainly learnt that there is such an ancient Indian institution of his vision known as Comunidades still struggling for survival in the territory of Goa and would have never allowed the Gaunkars to be crushed or held bondage at the whims and fancies of the political leaders.
'Association of Componentes of Comunidades',
C/o Savio Herman De Souza,
Socorro, Gaunkary of Serula,
Post Porvorim, Bardez, Goa.
Savio De Souza
COMUNIDADE OF SERULA