Panaji: The provisions of the Goa Bhumiputra Adhikarini Bill — which was passed by the state assembly on Friday and became a hot-button issue for many — is contrary to the affidavit filed by the state government in the Supreme Court in 2011, which said that it would clear encroachments on land belonging to the government, local authority or comunidade.
But legal experts said no affidavit, no existing statute and no executive or judicial order can put “fetters on the power of Parliament or state legislature”.
“The provisions of the Bhumiputra bill does not contravene the affidavit and even if it is made out that it contravenes, no affidavit can stand before the power of legislature. What is an affidavit after all? There can be no restrictions on the power to legislate,” legal commentator Prabhakar Timble told TOI.
The affidavit was filed in the case of Jagpal Singh vs State of Punjab, which pertained to encroachment on government and panchayat land. The SC had issued directions to all state governments to prepare schemes for the eviction of illegal, unauthorised occupants of land belonging to gram sabhas, gram panchayats and such bodies, and that these lands must be restored to the gram sabha or gram panchayat for the common use of villagers.
The top court further directed that the state government should “provide for speedy eviction of illegal occupants after giving a show cause notice and a brief hearing”.
“The state has in place the appropriate enactments to remove encroachments from the lands belonging to the government or local authority or comunidade,” then chief secretary Sanjay Srivastava had said.
He also said that any complaint received in respect of encroachment would be dealt with in accordance with the provisions of the above enactments, and action would be taken to clear the encroachment and restore the land to the local authority or government.
The Bhumiputra bill is set to allow the state to give the self-occupied dweller of a small housing unit ownership rights “so as to enable him to live with dignity and self-respect and exercise his right to life”. The state will give ownership to the government as well as private land, the bill said.
Timble said the affidavit only affirms that the state has a legal mechanism in place to deal with encroachments on public land. He said it also affirmed that any complaint received of any encroachment will be dealt with as per provisions in the existing laws.
“We are a parliamentary democracy. The supremacy of the legislature and separation of powers between the three organs of the government are a part and parcel of the basic structure of the Constitution. Even existing statutes could fall and be razed by the legislature,” Timble said.
As per the bill, after receipt of an application under Section 5, the Bhumiputra Adhikarini will publish a notice within 30 days, including to the owner of the land in case the land is not owned by the government.
“Dwelling unit”, according to the bill, refers to a permanent structure having plinth area not exceeding 250 sqm, which has been constructed or has been in existence before April 1, 2019, and assessed for house tax by the local authority and has water and electricity connections.
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