THE POHOTTUWA GOVERNMENT OF SRI LANKA Part 2 C8c
Posted on November 12th, 2020

KAMALIKA PIERIS

LAND DEEDS

To accommodate the acquisition of land for this proposed economic corridor, two new laws, namely the State Land Bank bill and Land Special Provision Bill, were to be enacted.

The State Land (Special Provisions) Bill was gazetted on 27.03.19.” This is a Bill to grant absolute title to state lands held by citizens who hold land grants. Its validity is for seven years. Analysts have seen a connection between the MCC Land projects and the Yahapalana plans to dispose of state land.

According Part I Section 3, the provisions of the Act shall apply to persons who are holders of (i) a grant under the Land Development Ordinance; (ii) an instrument of disposition under Land Grants (Special Provisions) Act; (iii) an instrument of disposition under Crown Lands Ordinance for agricultural purposes provided that they have held the Land “for more than ten years immediately prior to the appointed date of this Act.

However, according to Section 4, the Act shall not apply to Land (i) over one thousand five hundred and twenty-four meters above mean sea level; (ii) declared as development areas; (iii) within reservations or protected areas; (iv) vested in any Local Authority; (v) declared by the Minister; (vi) any settlement programme.

According to Part II, applications for eligibility would be reviewed by a Committee made up of fifteen Secretaries of related Ministries and five ex-officio Members such as the Land Commissioner who shall be the Chairman of the Committee, the Surveyor General, the Registrar General of Lands and nominees of the President and the Prime Minister. The Committee would be assisted by administrative arrangements such as Sub-Committees and Boards to review objections that are normal to finalizing the report of the Committee for submission to the Minister for Lands who in turn is expected to forward it to the President for issuance of the Absolute Land Grants.

The move will enable those occupying these lands to sell or transfer ownership legally and also obtain other facilities such as bank loans and use the deed as a valid document for school admissions, said Yahapalana .

The Bill covers lands granted under the provisions of the Land Development Ordinance, lands disposed under the provisions of the Land Grant (Special Provisions) Act or lands provided under the Crown Lands Ordinance granted for agricultural purposes, under a land settlement programme or a colonization scheme. Those holding land grants and permits for more than 10 years will be benefited by the new legislation. They are entitled to apply and be eligible to get an Absolute Land Grant up to five acres in extent under the provisions of this Act.

The provisions of this Act apply to holders of grants under the provisions of the Land Development Ordinance, instruments of disposition under the provisions of the Land Grants (Special Provisions) Act, and instruments of disposition of lands under the Crown Lands Ordinance granted for agricultural purposes or colonization schemes”.

The Committee will forward its observations to the Land Minister on all applications for Absolute Land Grants and the relevant documents, and the minister will forward them to the President. Once the President issues the Absolute Land Grants, those will be registered in the Land Registry. The grantee of an Absolute Land Grant will have the right of transfer of the land to the heirs or with the consent of all heirs in writing to sell such land to any person.

A 20-member ‘Land Grants Committee’ consisting of Ministry Secretaries, Heads of relevant institutions and two nominees of the President and the Prime Minister will be appointed for the administration of this Act. However, any land which is used for paddy cultivation can be sold only to another farmer. President Sirisena had wanted that the land could be sold only for a person in the adjoining Grama Niladhari division preventing persons from outside areas from buying lands on a large scale.

The Absolute Land Grant issued by the President will be conclusive proof of absolute title to that land. It will be admissible and valid before any court, institution or authority for any transaction, business, transfer of title, as security for a bond or for any other purpose.

Prime Minister said that large extents of land had been distributed among the people under the D.S. Senanayake administration. Those lands were given under the Land Development Ordinance of 1932. “People were given licences. Later people were given letters when they were settled. Sometimes people were settled without any documentation. None of these groups have deeds to show outright land ownership,” he said. Without land deeds those people faced a number of issues and at times they were asked to leave. “With these deeds you can use your land freely. “For a country to develop people must have the ownership of land,” he said.

 Ranil Wickremesinghe said that the government was distributing one million deeds to the people granting them outright ownership of their land. “People who have been using plots of land for over a decade will get outright land ownership.”

The Bill has been virulently opposed. The Bill has been submitted without the approval of the Cabinet of Ministers, said critics. The Bill with amendments proposed by President should be presented for Cabinet approval before it is submitted to Parliament. But Lands Minister has submitted the Bill to Parliament without presenting it to Cabinet, said Dayasiri Jayasekera.

Critics want to know whether there was a connection between this decision and Millennium Challenge Corporation Agreement (MCC) which the Government is expected to sign with the United States of America.

The government seems to be in a mighty hurry to grant outright ownership to those who have their land holdings under the Land Development Ordinance of 1935, said critics. The government wants to neutralize the Land Development Ordinance, Crown Land Ordinance and Lands Grant Act by way of the proposed Lands (Special Provisions) Bill. These had ensured the state land provided to the needy families remained with them.

The introduction and the implementation of the Land Development Ordinance 1935 was one of the most important welfare measures taken before independence. It was a very effective rural development strategy followed during pre and post independent period, explained critics.

The initial objectives of the Land Development Ordinance 1935 were (a) protecting peasant farmers as a group (b) alleviating land hunger among the poorest of the poor (c) relieving population pressure of the villagers in the wet zone of the country, (d) increasing food production particularly paddy (e) developing the scarcely populated dry zone.

The land alienation was done under different types of schemes such as major settlement schemes, village expansion schemes, highland settlement schemes, middle class schemes, and youth settlement schemes and regularization of encroachments. The land alienated originally was crown land. Latterly with suitable crown land not being available land from other sources such as estates were acquired and alienated under this Ordinance.

Under the 1935 Ordinance the allottee could not fragment the land, mortgage the land or dispose of it without Government Agent’s permission. The tenure was liable to cancellation for any default. The allottee’s land was a protected holding. Selection of allottees was done at a land Kachcheri by the Government Agent or his representative. Landless peasants from the area with large families were given preference and on selection were issued a permit. The land could be passed on, only to a nominated successor by the allottee. This prevented fragmentation of peasant holdings.

When the permit holder had fulfilled the requirements stipulated in the permit he was entitled to receive a grant of his allotment. The grantee was able to freely dispose of his allotment without the consent of the Government. However, The LDO requires peasant holder to obtain the prior consent of the Government Agent before disposal. The restriction has been designed to prevent the passing of land intended for the peasantry to the richer classes or high income groups. The LDO ensures that no State land shall be alienated to any person other than citizens of Sri Lanka and declaring that any alienation made in contravention of this provision shall be invalid.

Critics said the new Land Bill would have far reaching consequences which the country couldn’t cope with. Since farmers are chronically indebted, the reforms underway will in all likelihood lead them to sell their plots. “We’ll have to struggle with thousands of families being homeless with the selling off of their property overnight,” critics said. A farmer who owned about a quarter acre of land, after selling it to a multinational company would himself be destitute after some time.

Well organized unscrupulous politically influential persons would rapidly procure land received by the landless. The project would cause a massive displacement of people, especially smallholders. It will drive poor peasant families off the state land they had settled on for generations, critics said.

The concept of the village having a temple, agricultural land and a tank would be gone. Factories would crop up in farm lands. The agricultural economy would fall. The natural environment might change for the worse.

Critics have also seen the new Bill as a move to enable Yahapalana to sell off state land to foreign companies. Through this Bill government seeks to dispose of large tracts of land in a short time,  to make them quickly available for investors.

The Ranil Wickremesinghe administration was also attempting to create a cheap labour force needed to facilitate the implementation of neoliberal economic policies, by amending` land laws, said the Movement for Land and Agricultural Reform, MONLAR. Providing land deeds may look like a progressive move but we have to look at the reasons said MONLAR.

On the one hand there is a serious crisis in the rural economy, created by the policies of successive governments, especially the present administration. On the other hand, large multinational companies have made small time farmers bankrupt and are buying off their agricultural land. The only thing that has held back these predatory companies and the neoliberal economic policies are the so-called antiquated land laws. By giving desperate people, an asset that they can sell the government has ensured that these lands will be sold off.”  They will sell their small holdings for a pittance. The net result will be the rise of a generation of poverty stricken landless population in rural areas.

Molar said that they had looked at all documents approved by the Cabinet between January 2015 and April 2019 on land reform, recommendations given by the World Bank and International Monetary Fund (IMF) to the government on the land rights of the people and bi-lateral trade agreements between Sri Lanka and other countries had the potential projects that would deprive the people of their land rights.

The target clearly is state owned land. In Sri Lanka, we have freehold properties that belong to individuals or companies and then there is state owned land a portion of which is utilized directly by the government and a portion which remains allocated for other purposes of the republic such as forest reserves and the like and another potion of state land is held by the public under lease or licensing arrangements, pointed out Chandraprema. It is obviously the latter that the MCC is targeting.

Even though such state owned lands have been alienated to individuals under licensing or long term lease arrangements, the tenants on these lands enjoy security of tenure because the government will not simply kick them off the land if it is cultivated and used productively. The lease holder or licensee will be adequately compensated before the government takes back a state land which has been given to private individuals for farming or other purposes. We almost never hear of even the smallest of smallholders being unreasonably evicted from state owned land that had been leased or given to them on a license by the state.

Such land can also be passed down from generation to generation provided the land had been utilized productively. The fact that the land is owned by the state discourages fragmentation of the land and strategic buying up of cheap land by organized parties

Admittedly, recipients of state owned land on lease will face issues when trying to raise money from banks with the land pledged as surety. Banks prefer freehold land. However, this was a problem that had to be dealt with at the level of the banks instead of trying to give leaseholders freehold tenure.

If leaseholds on state land can be bought and sold between citizens of Sri Lanka and their only problem is the inability to use that lease as collateral, the answer to that can’t be the wholesale transformation of such lands into freehold tenures. There is besides, the well-founded fear that if state owned lands which are at present farmed by individuals on leasehold or licensing arrangements are turned into freehold properties, it will not be long before unscrupulous elements lay their hands on these lands creating a landless rural population.

The first attempt to do away with these laws was made in 2003. The UNF had wanted to see large scale organized transferring of ownership of land and this would have certainly become law if not for the Supreme Court ruling given in 2003.

.Justice Shirani Bandaranayake ruled that the disputed Bill should be approved in parliament with a two-thirds majority and by the people at a referendum. The ruling, he said was based primarily  on two factors (1) As the subject of land is under the purview of the Provincial Councils, the Bill required the consent of 09 Provincial Councils and (11) The exclusive right enjoyed by the President in respect of granting of land cannot be transferred to the Minister responsible for the subject of lands.

In 2015, Yahapalana UNP revived the project. “It was the same Bill rejected by the Supreme Court in 2003. The cabinet discussed it several times after January 2015. ” it was difficult to see how this law could take effect in view of 2003 Supreme Court ruling.

Critics argue that the present Bill would violate the sovereignty of the People as given in entrenched Article 3 of the Constitution, Land cannot be granted to anyone outright without a two-third approval of Parliament and approval by the People at a Referendum all land and all its resources belong to all the people of Sri Lanka as part of their sovereignty. This is inalienable. Governments hold Land in trust, said critics. This has been determined by the Supreme Court in several instances   such as the Eppawela case (S.C. 884/99)

State Land is an inalienable right of the sovereignty of the People. In view of this undeniable and uncontestable fact, it is a violation of the inalienable rights of all the People for any government to legislate granting Absolute Land Grants to some of the People, an asset that belongs to all without due process of two-third approval of Parliament and approval of the People at a Referendum.

A Special Determination petition challenging the Bill entitled ‘State Land (Special Provisions)’ was filed before the Supreme Court in July 2019. Convener of the of the Truth Seeker’s Organization has sought a declaration that this Bill shall become law only through a two-thirds majority in Parliament and the approval of the people at a referendum.

The petitioner, Attorney Premanath Dolawatta stated that the concerned bill was presented to Parliament and placed in the Order Paper of Parliament on June 28, 2019. Dolawatta states that the Bill contains 36 clauses and a schedule and the entirety of the Bill violates and is inconsistent with Articles 3, 4, 12(1), 12(2), 75, 154G of the Constitution. The petitioner stated that the purpose of the proposed law is to alienate State lands which amounts to a breach of the duty of the state to be the guardian of state lands holding the same in trust. There have been several other petitions against this Bill.

The Supreme Court examined the Bill titled State Lands (Special Provisions)” which has been challenged in the Supreme Court in terms of Article 121 (1) of the Constitution and gave its determination.

Supreme Court determined that in terms of Article 120 read with the Article 123 of the Constitution, that the Bill in question is in respect of a matter set out in the Provincial Council List, and shall not become Law unless it has been referred by the President to every Provincial Council, for the expression of their views thereon, and only thereafter be placed on the Order Paper of Parliament, as required by Article 154G (3) of the Constitution. The Supreme Court has further observed that the Bill has been placed on the Order Paper of Parliament without compliance with the Provisions of Article 154 G (3.)

The upset over land does not end there. For some time now, land rights activists and analysts have warned of potentially disastrous consequences of reforms to land laws contemplated by the Wickremesinghe-led government announced critics. President Sirisena said he had blocked two ‘anti-national’ Land Bills the PM sought to introduce. He said these new laws sought to allow foreigners to buy any land in the country, both privately and publicly owned.

LAND BANK

“USA has done a study on Sri Lanka and issued a report with recommendations on Sri Lankan lands. They are engaged in surveying the lands in Sri Lanka and have suggested establishing a state land bank. According to these proposals all state lands would come under this bank, allowing these lands to be given to anyone even foreign parties said critics.

The government’s moves to remove the bar on foreigners owning land, the removal of the 50-acres limit on individual ownership, the proposed ‘Land Bank’ (that will bring publicly owned land under a single hub and make it available for private investors), are inter-related.”You need to look at all the factors to see the final outcome” said MONLAR

LAND SURVEYS

Lastly, there is an interesting tussle going on regarding land surveys. Trimble Navigation Ltd, a US company based in California, had in October 2015,  forwarded a proposal for ‘Title/Tenure Regularisation and Cadastral Registry Modernisation’ in Sri Lanka. This proposal has been rejected earlier in 2010. 

A high level committee headed by senior advisor to Prime Minister R. Paskeralingam had recommended this proposal. The Cabinet Committee on Economic Management (CCEM) approved it  and Cabinet    accepted it. Trimble had asked for USD 170 million and Yahapalana had beaten it down to USD 154 million. The money would come as a loan at an interest of four percent. The loan is to be paid back in 15 years inclusive of a grace period of five years.

The Finance Ministry’s External Resources Department was authorized to negotiate with Trimble to prepare land survey maps and create a streamlined database of 3.6 million parcels of state owned land. Trimble would first survey 2.5mn blocks of land around the country, excluding the Western Province and issue title deeds. Then it would survey 2.5mn plots of land in the Western Province.

The Government Surveyors’ Association (GSA)   announced  in January 2017, that there was a move to hand over several operations of the Sri Lanka Survey Department (SLSD), including Land Information System (LIS) and Aerial Survey Operations to Trimble Navigation for 15 years  ‘The required plans are already in place to complete the transfer. It appears that the US government had forced Yahapalana to agree to this, said the surveyors. 

It was observed some time later, that ‘the   land part of the Compact seems to have undergone drastic change.’ There is no mention now of giving deeds to those occupying state lands so that they can sell the land and become destitute. The focus now is on creating a cadastral map of land parcels and creating a complete digital inventory of state land.

Surveyors are not impressed.  This is exactly what the American firm, Trimble was going to do, at the start of Yahapalana rule, surveyors said. They also said that this mapping which the Compact is talking about could be done by the Land use Planning Department. The Land use Planning Department has already mapped out all sorts of land, they said.   They have mapped out protected areas, unutilized lands,    underutilized lands, abandoned paddy lands, river basins, water sheds. The data will   be fed into ICTA’s National Spatial Data Infrastructure.

The Compact is now focusing on under-utilized state land”   held by government Departments, such as the Government Railway. The Compact is eyeing these lands, which it says can generate better revenue in the hands ofindustrial investors.  Sri Lanka will have a place in these industrial ventures. The MCC compact will provide opportunities for Sri Lankan companies to compete and win multi- million dollar projects,” the US embassy said. We want private sector expertise and we pay really well.”  (Continued)

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