SETTLED: All lands cannot be presumed to be agricultural

1 February pages_Layout 1 1/31/2015 11:06 PM Page 1
Panjim | SUNDAY, FEBRUARY 1, 2015 |
Fighting to plan
Calangute and
Reviving the
Oratorian order
poisoning the
common people
Vincent Braganza
ThE horror sTorIEs of BrITIsh ExpaTs who havE InvEsTED In
propErTy In Goa anD now rEaLIsE ThaT many of ThEm Do
noT aCTuaLLy own ThEm anD havE BEEn DupED has EarnED
Goa a nEw namE ‘ZImBaBwE By ThE sEa”, EquaTInG our LanD
wITh ThE LawLEssnEss of ThE afrICan naTIon. as horror
sTorIEs mounT, hEraLD rEvIEw Looks aT ThE naTurE of
ThEsE ExCEssEs anD why IT has BEComE a maTTEr GravE
EnouGh To makE IT To ThE BrITIsh parLIamEnT
n the middle of the night, there is a knock
on the door. Two men enter the home of a
British lady, threaten her at knife point
and ask her to sign away the property she
thought she had “bought” back to the builder
with whom she signed the agreement to sell.
Another couple who were told by their
neighbours and the local lawyer in 2004 that
they could trust their money with the builder
who would use their deposit to further build
the property and then ultimately get it registered, were left asking the same builder in
2011 when they could have their flat registered.
By this time they had already received an investigation notice questioning the legitimacy
of their purchase and their stay in India. By
this time they had decided to sell their flat
and finally leave the country. They even had a
buyer. Just when they thought that they could
exit and did a quick check with the registrar,
they were told that the flat could not be
sold because it was under investigation and
wasn’t registered in the first place. The
builder then made an offer. He would pay
them the principal sum for the apartment
they bought seven years ago with no interest.
This is a story that is being played out across
Goa with the victims mainly being British.
While there is voluble discussion and debate
in social media groups whether sympathy for
them is misplaced because they did not quite
do checks about rules before investing, those
in the real estate, property business as well
lawyers, are clear that a lobby of builders,
property agents and lawyers, cashed in on the
boom of people from the West wanting to
retire in Goa.
The situation is now turning ugly, because
they need to cash in on the high prices
people from Delhi and other metros are
willing to pay and are therefore “clearing
out” foreigners whose paperwork is not
perfect -thanks again to the same lawyers
themselves. It is exactly this situation which
found an echo in the British Parliament last
week. British MP Tim Loughton speaking in
Westminster last Tuesday said “Hundreds
of British subjects have been prevented
from registering their properties in Goa,
having previously fulfilled the requisite legal
processes, primarily because of restrictions
on visas. In some cases, that has led to
criminality and harm towards foreigners when
they have tried to obtain their properties causing loss of investment. Some cases have been
involved in extreme violence. Other people
included those who came together to invest
in Indian tourism and who have been prevented
from trading due to altered interpretations of
the law, and in tandem prevented from registering their properties. Huge stress has been
caused to people who legitimately went out
to invest in businesses in Goa. In most cases,
they are not wealthy but invested their life’s
savings. We seem to have the Goan equivalent
of the mafia”.
Bryan Smith, who is working with an informal
group of British expats with such problems is
very alarmed. In a conversation with Herald
in a café in North Goa he said, “ None of you
know what really is going on. It’s a mafia all
right. They are elderly people out there and
they are very very scared. People are falling
sick, some are suicidal and one suicide which
has happened is, we are sure, a direct result
of such stress. Some really do not have any
money left”. He went on to add, “Do you
know what Goa is referred to by a majority of
those who are suffering and those who have
friends and relatives back home who know
what’s going on? Goa is called “Zimbabwe by
the sea”. He referred to the absolute lawlessness
in that nation and compared Goa to the ills of
Zimbabwe”. He also spoke about “threatening
conduct” on the part of officials and “a culture
of enormous fear.”
He however added that over the last two
years, the only area where there has been
some hope is the Enforcement Directorate.
Herald understands that they are contrary and
divided views on this and will hold final
judgment. But it is clear that there were indeed many whose cases have been cleared
and feel that the current Enforcement Directorate team has at least helped clear
cases under investigation more sympathetically. One elderly lady named Margaret said,
“When I was first called by the ED six years
ago, I cried because my documents were
just discarded and I wasn’t told what more
they wanted. My taxi driver saw me crying
and went back to the ED office and asked
“What did you do to make mamma cry”.
She however said that her case is now clear
and she is ready to sell her property and
move back to England.
It is clear that while earlier cases under ED investigation
are being handled,
the fear point lies
with builders,
lawyers who are
using the plain
agreement to sell
to force properties to be given
back to them. And
this is done
through coercion
first and violence
later. And the
real horror stories
been told yet.
Review Bureau
Visa uncertainty and ED scrutiny pre 2010
made the Goa dream a nightmare for Brits
Enforcement Directorate now has firm mandate to be humane
and practical, 187 of 400 cases remain under investigation with
only 44 convictions
itting in a café on the busy thoroughfare of
Candolim, on which men and women from
several nationalities move, little does one
realise that many are carrying excess baggage,
which is far different from the kind that you pay
for at airports, while checking in.
Over the years many have realized that the
real baggage has been acquired much after they
arrived in Goa and settled down to a life of
locals, with more friends and fresh memories
than they have way back home.
Home for most was England. Their new home,
for most, is Goa. But it’s a home they have to
leave every 182 days, the time they are allowed
to spend in the country at a stretch. These are
people who have lived for 12 years or even more
in India, have set up business establishments,
run homes or just live here.
As we write this, we learn that one British
couple, who run a resort in Canacona district,
will be going to Kathmandu, later this month to
“have lunch” and return the same day to fulfill
the clause of exiting India once in 182 days.
Another elderly gent, frail in health says 50
percent of his annual expenditure is on travelling
to the UK for two weeks, staying in a hotel,
because his life is only in India, is just to get his
visa renewed.
The uncertainty over the status of
their visas was one of the reasons
which triggered questions regarding
the validity of their businesses. Senior
lawyer Rajnish Sharma, who is dealing
with several cases of foreigners having
property in Goa says, “The length of
the Visa cannot determine if the
person is a resident or not. As long
they have registered a company in
Goa and paying taxes, that is enough
to establish residency. FEMA does
not differentiate between a foreigner
and an Indian. It does between a
resident and a non-resident.”
In the early 2000s, it seemed
that the laws were simple and
Members of the British Business Group Goa meeting with (center) British Secretary were interpreted simply. That was
the time more and more British
of State of Business, Innovation and Skills Vince Cable in October last year
nationals arrived in Goa either to set up businesses or retire. According to senior police
intelligence officials, agencies like the Enforcement Directorate swung into action after,
the Russians came to Goa and started buying
land. That was time when there were large
scale complaints of literal land grabbing. The
immediate scrutiny that followed affected
everyone. It is assumed that over 400 such
inquires which were done, the majority of
them were British, because simply put, their
numbers were higher than Russians. There
were essentially two grounds on which the
scrutiny happened --a) Whether the business
were set up according to all FEMA rules; b)
whether the land on which their establishments
were set up was no agricultural and c)
whether the nature of the businesses they
declared were really being carried out. An
official of the enforcement directorate said
that many of these notices were sent in the
period between 2007 and 2011.
“Most properties had a built up area
and a large open land. Often the open
space was seen as agricultural land
and came under the ambit of investigation”.
The Joint Director of the Enforcement
Directorate office in Goa told Herald,
“There were 400 cases under investigation to begin with. This has been
brought down to 187 cases, of which
confiscation orders have been given
in just 44 cases. We hope to bring
down the cases under investigation to
100, by the end of the year”
Words which will hopefully bring relief to
those who call Goa,home.
Review Bureau
SETTLED: All lands cannot be presumed to be agricultural
he genesis of the plethora of notices
received by foreigners from the Enforcement Directorate, is over the land
they bought or the properties they purchased
from existing owners, which are still classified
as agricultural land. The presumption has
always been that lands were presumed to be
agricultural unless classified otherwise.
The case of State of Goa & others Vs
Zarina Abdulai Karmali and others, the High
Court ruled that Deputy Collector and others
who passed orders for ‘illegally” using agricultural
land for non agricultural purpose, had done
so on “wrong presumption”.
“There is no presumption in law that all
lands are agricultural lands unless they are
classified as "non-agricultural". There is also
no presumption that each and every land
found within municipal limits of city would
indicate that the land is non agricultural. AIR
1972 SC 2027 referred to on facts held both
authorities proceeded on wrong presumption.
Orders quashed and matter remanded to
Deputy Collector.
The Deputy Collector while passing
the order dated 1810-1988 proceeded
on the presumption that all lands
are agricultural
lands, unless they
are classified as
'non-agricultural' by
order of Government or converted
for non-agricultural
purpose with the permission of the competent
authority, whereas the Administrative Tribunal
proceeded on the presumption that the Land
Revenue Code itself contains different provisions
in respect of different types of lands and,
therefore, accepted the argument of the respondents that a land once found located
within the Municipal limits that itself would
be enough to indicate the same to be nonagricultural land.
The Court crucially ruled neither the Land
Revenue Code nor any other law presupposes
that all lands are agricultural lands. So also,
no law supports the presumption that the
moment the land is found located in the
Municipal limits of the city, the same has
necessarily to be a non agricultural land.
Both the authorities having proceeded on
wrong presumptions, have acted with material
irregularity in exercise of their jurisdiction
while dealing with the matter in hand.
In fact, whether a particular
land is an agricultural land or not
or whether it is non-agricultural
land or not would depend on the
factual situation in each case. It
will depend on the evidence regarding nature of land to be placed
before the authority competent to decide the said issue.
Review Bureau
The matrix of classification
* Land revenue code does not
pre suppose all lands are
* It also does not pre suppose
that all lands within municipal
limits are not agricultural
* Classification of land as agricultural or non agricultural to
depend on evidence provided
before competent authority