The governance of Comunidade lands in Goa has recently witnessed two conflicting legislative instruments that present significant legal inconsistencies.
The Goa Legislative Diploma No. 2070 (Amendment) Act, 2025, which has introduced Article 31-A, restricts the change of land use for any property granted by a Comunidade, while the Goa Comunidade Land Development and Regulation Rules, 2025, allow financially insecure Comunidades to engage in large-scale development projects in partnership with private agencies.
This apparent contradiction raises several legal and constitutional concerns regarding the treatment of emphyteutic grantees and developers.
Existing law already penalises misuse:
● Article 344 of the Code of Comunidades already provides a financial penalty (20x foro, minimum 300$) for failure to utilise the land as per Article 341.
The new diploma is overreaching compared to the original statute:
● Under Article 344, emphyteutic tenants were given a financial penalty as a first course of action—land was not immediately reverted.
● The new law completely overrides the financial penalty mechanism, stripping tenants of any chance to rectify their land use or pay a fine instead of forfeiting their property.
● This makes the new regulation more draconian, possibly exposing it to constitutional challenges under Article 300A (Right to Property).
Potential for arbitrary implementation:
● Previously, the penalty mechanism under Article 344 left some room for negotiation or reconsideration.
● The new Diploma grants unchecked discretion to the Administrator of Comunidades, who can now:
○ Issue a show cause notice and unilaterally decide on land reversion.
○ Bypass financial penalties, creating a zero-tolerance framework without procedural safeguards.
● This could disproportionately impact long-standing leaseholders who may have altered land use out of necessity or good faith, such as building additional housing or small commercial establishments.
The restrictive provisions of the Legislative Diploma:
The enactment of the Goa Legislative Diploma No. 2070 (Amendment) Act, 2025, imposes strict limitations on land use. Article 31-A(1) states that any land granted through sale, lease, emphyteusis, or leave and license cannot be utilised for any purpose other than that for which it was originally granted. Any violation of this restriction leads to automatic reversion of the land to the respective Comunidade, as prescribed under Article 31-A(2). Additionally, Article 31-A(4) prohibits any statutory authority, including the Town and Country Planning Department (TCP), the Planning and Development Authority (PDA), Municipal Councils, and Village Panchayats, from approving land-use changes.
These provisions raise concerns over their practical enforceability, given that Section 2(1)(d) of the Goa Town and Country Planning Act, 1974, defines "development" as including "material change in the use of any land." The restrictions introduced by Article 31-A appear to override planning laws that are designed to regulate land use based on evolving economic and infrastructural needs.
The hereditary nature of emphyteusis and land use challenges:
The rigid framework introduced by the Diploma Amendment also contradicts Section 293(2) of the Goa Succession, Special Notaries, and Inventory Proceedings Act, 2012, which provides that "emphyteusis is hereditary." This provision recognises the right of heirs to inherit emphyteutic lands. However, the new restrictive provisions make it legally untenable for successive generations to adapt the inherited land to changing times. Given that Regional Plans and Outline Development Plans (ODPs) govern land use patterns, it becomes increasingly difficult for emphyteutic heirs to utilise land in the same manner as their ancestors, particularly when zoning laws necessitate a shift in purpose.
Moreover, Section 293(3) of the 2012 Act grants the beneficial owner of emphyteutic land the right to alienate, mortgage, gift, and exchange the property. The new Diploma, however, severely limits these rights by preventing any modification of land use, thereby diminishing the property’s economic utility.
Contradictions in the Comunidade Land Development and Regulation Rules, 2025:
While the Diploma Amendment enforces static land use, the Goa Comunidade Land Development and Regulation Rules, 2025, notified on 28th February 2025, introduce a contradictory approach by permitting certain Comunidades to undertake land development projects. Under these new Rules, financially insecure Comunidades are permitted to invite bids from developers to develop their lands, provided the total area is not less than 10,000 square metres. The development model requires Comunidades to retain at least 50% of the plots, while 20% must be reserved for affordable housing for Gaunkars/Jonoeiros.
Further, the Rules explicitly state that once a successful bidder is selected through competitive bidding, the Comunidade shall grant a development work order with prior approval of the government. The land-use planning responsibilities, which were entirely restricted under Article 31-A, are now permitted for large-scale development projects under the new framework. This creates a significant contradiction between two recently enacted legal instruments—one that rigidly prohibits land-use changes, and another that actively encourages large-scale developments.
Legal and constitutional implications:
These inconsistencies raise potential constitutional concerns, particularly in relation to:
1. Article 14 of the Constitution of India (Right to Equality)
○ The differential treatment of emphyteutic landholders and private developers may be subject to legal scrutiny. While individual landholders face absolute restrictions, private developers are granted an avenue for large-scale development.
○ This distinction could be viewed as arbitrary and discriminatory, as it provides privileged treatment to developers while restricting emphyteutic tenants from modernising their inherited properties.
2. Article 300A of the Constitution of India (Right to Property)
○ The forfeiture of emphyteutic lands for unauthorised land-use change raises concerns over property rights.
○ The Rules permit commercial land developers to modify land use, while Article 31-A of the Diploma removes the same flexibility from individual emphyteutic grantees.
○ Affected parties may challenge whether such disproportionate restrictions on emphyteutic landholders amount to an unconstitutional deprivation of property rights.
Conclusion
The introduction of two conflicting legal frameworks governing Comunidade lands has led to an apparent contradiction in policy. While Article 31-A of the Diploma mandates static land use, the Comunidade Development Rules actively promote large-scale development. The rigid enforcement of land-use restrictions on emphyteutic grantees creates a legal paradox, particularly given the hereditary nature of emphyteusis under the Goa Succession Act, 2012.
