NT NETWORK follows the Foral charter’s legacy through Goa’s slowly fading Gaunkari system
NARESH S.
“We do not own our lands; our lands own us.” The phrase, used by Luis Antonio de Souza and Jocel de Souza in ‘Know the Goa Gaunkari/Comunidades’, captures an idea of land that is markedly different from the vocabulary of modern property records. In the traditional Gaunkari system, land was not merely an asset belonging to an individual. It was tied to a village institution that organised cultivation, maintained common works and distributed benefits according to rules that had evolved over generations.
That institution survives today through Goa’s 223 Comunidades, a self-sustaining model of community resource management shaped by centuries-old customs and now governed within a modern legal framework.
Scientist Dr. Nandkumar Kamat described Gaunkari as “a system for the people, of the people, by the people”, calling it part of the “soul of Goa’s existence”. But the institution that survived dynasties, colonial rule and Liberation now operates alongside a modern administrative system of survey numbers, revenue records, collectors, and statutory land laws.
For Sadanand Malik of Kudne, Bicholim, a former MLA that coexistence has produced a fundamental question: when land historically associated with a village institution is administered through the machinery of the modern State, where does the authority of the Comunidade end and that of the State begin?
What exactly was Gaunkari?
Before the modern State’s system of survey numbers and revenue records, Goa’s villages had their own institutions for managing land and community affairs. This system came to be known as Gaunkari. The traditional account describes the Gaunkars as the original settlers or founding members of a village, who collectively organised cultivation, water resources, bunds and other works necessary for village life.
The system was not simply about cultivation. Community decisions governed the use of land, the maintenance of village infrastructure, and the distribution of benefits. Malik described the old villages as having functions that, in modern terms, could appear legislative, executive and judicial.
The 2024 Bombay High Court, while examining the modern legal status of Comunidades, similarly recorded that the village communities existed before Portuguese regulation and that the Portuguese subsequently regulated the system through the Code of Comunidades. It also noted that new settlers were given shares in the income of the Comunidade and became known as shareholders.
In simple terms, the Gaunkari was the older village institution, while Comunidade became the Portuguese legal-administrative form through which that institution was subsequently regulated and codified. The distinction matters because a Comunidade is not simply another name for a parcel of land. It refers to a village institution, its property and the rules governing its administration.
The 1526 Foral
The Portuguese did not create the village system from scratch. They encountered existing communities and progressively sought to regulate and codify them. The most important early document in that process was the ‘Foral dos Usos e Costumes dos Gaocares e Lavradores das Ilhas de Goa e Outras anexas a Ela’, issued under Afonso Mexia on September 16, 1526.
The Foral contained 49 clauses and has been described by historians as an important document for understanding the rights, customs and functioning of the Gaunkaris. Scholarship on the document has also stressed that its significance was not merely economic: it established a legal relationship between the Portuguese sovereign, the territory and the village communities.
Luis and Jocel describe the Foral as formally recognising the “customs and practices” of the Gaunkars. For Malik, that historical continuity is important because the Portuguese were regulating an institution that, in his account, already had its own rules and community authority. The relevance of the Foral today is therefore not that a 500-year-old charter can, by itself, settle ownership of a survey number in 2026. Its importance lies in the documentary history it provides for an institution that was subsequently governed through successive Comunidade codes. The charter is part of the basis for understanding why Comunidade property developed as a distinct institutional category rather than simply as another form of government land.
The institution that survived
The Comunidade system underwent successive legal changes during Portuguese rule, eventually reaching the framework contained in Legislative Diploma No. 2070 of 1961, the Code of Comunidades. The Code came into force on April 15, 1961, and continued to govern rights in Comunidade land after Goa became part of India. The Bombay High Court has specifically held that the 1961 Code remained an existing law after Liberation.
The Code recognises different categories of members and provides the framework for managing Comunidade property. Article 4 states that members by birth, referred to in the Code as ‘zonnkars’, and shareholders are entitled to the profits and subject to the rights and duties provided by the Code.
This distinction is important. The High Court noted that new settlers who came to reside in villages were historically given shares in the income of the Comunidade and were known as shareholders.
The system therefore cannot be reduced to the simple idea that every person whose name appears on a land document is an individual owner in the modern sense.
What exactly belongs to a Comunidade?
This is where the system becomes difficult to understand through contemporary land records alone.
Malik repeatedly returned to this distinction during his lecture. He argued that government records increasingly treat the land through the language of modern revenue administration, while the underlying historical relationship between the Comunidade and its properties is more complicated.
He referred to the two traditional volumes of Comunidade records, describing Tome I as relating to properties directly under the Comunidade and Tome II as covering properties belonging to the Comunidade but permanently granted to individuals. His argument was that the appearance of an individual’s name should not automatically be understood as extinguishing the Comunidade’s underlying property interest.
The modern Record of Rights adds another layer. Goa’s land-record machinery records rights and interests against individual parcels and operates through the framework of the Goa Land Revenue Code.
The dispute, therefore, is not simply about whose name appears in a record. It is about what that entry means.
Under Land Revenue Code
Malik’s strongest criticism is directed at the Goa Land Revenue Code, 1968.
He argues that the revenue system introduced after Liberation was based on a conception of land administration different from Goa’s historical Comunidade system. His central contention is blunt: “In my opinion, Land Revenue Code applies only to government land.”
He argues that the situation in Goa was different from the land regimes in territories where land had been vested in the government. In his view, applying the revenue system to Comunidade properties risks treating land belonging to a village institution as though it were government land.
The Goa Land Revenue Code is nevertheless the statutory framework governing land revenue and a substantial part of land administration in the State. The disagreement is therefore not over whether Goa has a modern land administration system. It does. The deeper dispute is over how far that system can determine the character of land governed by a separate historical legal regime.
Malik objects particularly to what he sees as the treatment of Comunidade land as government “occupant” land in modern records.
His argument is that a revenue entry cannot itself transform the underlying character of property. “The government’s Record of Rights has turned Comunidade land into ‘government occupant’ status,” he argued, saying this was something that should be challenged.
That remains his legal interpretation rather than a blanket judicial determination applicable to every Comunidade parcel. The title to an individual property would depend on its historical records, grants, applicable laws and any judicial findings.
Tutelage is not ownership
The distinction between administration and ownership received important judicial attention in a Bombay High Court judgment of July 26, 2024, concerning the Comunidades of Mapusa and Pilerne and their status under the Right to Information Act.
Article 5 of the Code states that the Comunidades shall be under the “administrative tutelage” of the State. The court examined the nature of that relationship and held that the Comunidades before it were not “public authorities” under the RTI Act.
The judgment referred to the meaning of “tutelage” as including “protecting or guiding” and found that the powers exercised by the State Government and Administrators under the Code were regulatory or supervisory and not so dominant as to amount to substantial control.
The judgment also made a more direct point. It held that the State’s responsibility of tutelage could not be interpreted to mean that the government could force a Comunidade to give up its property on terms contrary to the institution’s own resolution and the protections of the Code.
For Malik, this distinction is central. In his interpretation, tutelage means protection and guidance, not ownership or unrestricted control.
The court’s finding, however, does not mean that the State has no authority over Comunidades. The Code itself creates a regulatory structure through which the State exercises specified powers over their administration and property.
Where the old system becomes
complicated
The contemporary problems become clearer when the discussion moves from history to individual disputes.
Encroachment is one example. Malik described an earlier arrangement in which a Comunidade attorney could act against illegal construction or occupation. He argued that later changes shifted greater powers to State authorities and created additional avenues of appeal, weakening the community’s ability to act quickly.
“If someone encroaches, Comunidade has the right to object and pursue legal proceedings,” he said, arguing that where amendments weaken those rights, they should themselves be challenged.
Inheritance creates another problem. Families may continue paying annual dues or holding documents in the name of a deceased ancestor while contemporary records still carry that person’s name. Malik said that historically a successor’s name should be entered in the Comunidade records, but that the increasing importance of the Record of Rights had changed how people interacted with the institution.
Old purpose-specific grants create similar questions. Land could be granted for cultivation, service or another defined purpose, and the holder could be required to maintain that purpose. Malik argued that a grant of use did not necessarily mean absolute ownership and that land could revert if its conditions were not fulfilled.
The question of shareholders adds another layer. Malik himself acknowledged that some aspects of the law governing shares and their transfer required further examination. Historically, the relationship between Gaunkars, shareholders and Comunidade land developed differently in different villages, making it difficult to reduce the entire system to one uniform model.
An old institution in a
constitutional republic
There is another tension that prevents Gaunkari from being treated simply as a lost golden age.
During the discussion, questions were raised about hereditary service arrangements and their historical association with caste. Malik agreed that discriminatory practices could not continue merely because they formed part of an old custom.
“Discriminatory and customary practices cannot continue,” was the essence of his response, while acknowledging that the present constitutional framework has to prevail.
That distinction is important. Preserving gaunkari cannot mean freezing Goa in a pre-modern social order. The challenge is to identify what remains valuable in the institution — collective stewardship, community assets, agricultural infrastructure and local participation — while ensuring that its practices comply with constitutional rights.
The same caution applies to the larger constitutional arguments Malik raised over acquisition, mining and the State’s powers over natural resources on Comunidade land. He argued that the state’s powers had been extended beyond what the historical character of Comunidade property permitted. Those questions involve several statutes and constitutional provisions and require examination case by case rather than being treated as settled propositions.
Several comunidade bodies have spoken in favour of giving the rights of descendants to women too.
What survives?
The paradox of the Comunidade today is that it has survived precisely because it was capable of crossing political eras. But survival in law is not necessarily the same as institutional power.
For Malik, the future of the system depends less on government declarations than on whether Gaunkars and Comunidades understand the rights that remain available to them and are willing to assert them.
“If restoration can be done at any level, it can only be done by Comunidades/gaunkars themselves,” he said.
That does not necessarily mean recreating the village of centuries ago. It means deciding what the word “Comunidade” should mean in a Goa where land is increasingly described through survey numbers, revenue records and statutory categories.
Dr Kamat’s description of Gaunkari as a “system for the people, of the people, by the people” may therefore be less a call to return to the past than a question for the present.
