Sri Lanka: Amending land laws to help fraudsters without protecting the land owners
Posted on December 17th, 2020

The Justice Ministry, the land ministry, the AG’s department & the Cabinet are either drafting new laws, amending existing laws, appointing committees or with one nod eliminating existing statutory laws. This is a new Constitutional procedure even when the constitution does not allow court to eliminate statutes. How far each are working with each other or consulting legal experts in the areas amendments are being proposed is a question to be answered. We have 3 scenarios that warrant the attention of the decision makers and the general public as they all deal with the core sovereign component of land and necessitates public debate and discussion.

  1. Cabinet nod to annul caveat notices– Cabinet in a single day completely repealed Sections 32, 33, 34 and 36 of the Registration of Documents Ordinance 23 of 1927. These are thestatutory provisions relating to caveats

Caveats are registered by the registrars according to the law given in section 36 [and not according to the way cabinet had stated] from the Ordinance which grants power to the registrar to adjudicate the rights of the person presenting the caveat before registering. They have no authority under the law to register caveats on any land.  Not only has the Registrar the power to refuse registration of caveats, the law is extended for the real owner to obtain damages for registering unlawful” caveats on lands according to section 34.

How can cabinet decisions repeal statutory provisions in law? Is it correct to do so and what are the repercussions in doing so?

There is no problem for sellers and banks as owners know how to remove the caveats under the provisions given in the Registration of Documents Ordinance

This new situation will create an ideal situation to steal land specially from those living abroad. These citizens have only the solace of placing a caveat to safeguard their land.

Law of Caveat essential.

In other nations law of caveats have been extended to save owners from fraudsters. Registrar sends a message to the owner’s telephone if anyone tries to register any document in the land registry. These modern methods should be adopted in Sri Lanka.

A caveat is a safeguard made available to a land owner to protect his/her land from being sold without his/her permission.

Only the owner can put a caveat.

2. Amending Register of Documentation Ordinance but not amending Section 7

Are we conniving with fraudsters?

The Registrar as per Section 33 of the Documents Ordinance 23 of 1927 is bound to adjudicate only land deeds that has the owner’s interest.

Nevertheless, anything can be done by bribery and this is the area that any new laws being introduced has to address – not to completely annul a safeguard made available to original land owners seeking to protect their land.

Removal of the caveat is removing the safeguard owners have to protect their land.

Thus the removal of the caveat completely is a bad and wrong decision.

Didn’t the Minister see the important provisions that require immediate attention —

What is the point in amending the Register of Documentation Ordinance but keeping Section 7?

What is Section 7? 

Section 7 of the Register of Documentation Ordinance does not make the Registrar responsible for registering invalid deeds.  He has no authority to refuse deeds or to check the identity of owners. This means the registrar can accept even forged deeds and he is not responsible for accepting forged deeds.

3. Shortcomings in Notaries Ordinance

As per Notary Ordinance all illegible signatures are valid and once the seal is affixed under section 33 of the Notaries Ordinance all deeds are valid even if the NOTARY DID NOT OBSERVE THE LAWS TO IDENTIFY THE PERSON WHO SIGNED THE DEED.

These are the provisions that are required to be repealed.

Not the only safeguard the poor man’s caveat.

Ex of an actual victim – a Bank Manger. 

The bank manager wished to buy a land. The Broker and the notary were looking after his interest. The owner of the land was abroad. A forged deed was presented to the bank manager selling the land at Nugegoda for Rs4 million and Rs160,000 stamp duty with a fee of Rs80,000. The bank manager was unaware that the land he bought was not from the original owner.

The forged deed was duly registered as the registrar was not responsible and the notary went scot-free as under section 33 all deeds are valid.

If the overseas owner had registered a caveat, the notary could have known and the person abroad would have been informed that the land was being sold without the knowledge of the owner. The buyer eventually lost his money and the house – part of it was bank loan which he has to pay back monthly. These are scenarios that can arise if immediate measures are not taken.

Now connect the situation – notary is not bound to identify original owner, but his/her seal is valid, the registrar is not responsible for accepting forged deeds and the safeguard provision for the land owner (caveat) is removed.

What is the scenario Sri Lanka is creating for the land owners of Sri Lanka?

Shouldn’t the Ministries, the lawyers and others tasked to look at where the malady lies come up with answers and not create more problems?

Shouldn’t the caveat remain but ensure there is proper mechanism to ensure no one else but the real land owner can put a caveat.

Shouldn’t the registrar be made responsible & accountable for accepting forged deeds & ensure he accepts only original deeds?

Shouldn’t the notary be made to have a means of identification system before placing his/her seal?

The Ministries, Ministers, lawyers and public servants who are all living off tax payers money must work towards facilitating the citizen and not uprooting the citizen of his ownership of land.

Attorney General, the Justice Ministry & BASL —Today Bim Saviya law is funded by foreign experts to govern the e-register.  According to this law even the rich victims affected by fraud cannot go to court if the land registry registers fraudulent deeds. They cannot get back the lands.

The Justice Ministry must protect the land of the nation that belongs to both the State & the private individuals. The Justice ministry can enter history books proposing to repeal Act 21 of 1998 and do away with the Bim Saviy and continue with a modernized deed system.

The e-register allows to register forged deeds in one hour in the future with no caveats. Imagine what this means to the land owners. Registrar and the Notary will not be responsible as said the laws protect them.

We cannot watch a legal land grab by fraudsters taking place knowing that the Government has all the powers to stop it and the data and information required to do so.

Shenali D Waduge

2 Responses to “Sri Lanka: Amending land laws to help fraudsters without protecting the land owners”

  1. Nimal Says:

    Thank you Shenali for this valuable article.
    I hope you stick to the articles that inform the readers about the problems in the country without going back to our history,culture etc.
    Justice system is truly ineffective and too slow and should be remedied immediately.
    My hard earned money of the country from the suddas were invested in land in the island.Being a honest person could not find enough spare cash to build on it but during the 1989 dark days a senior cop grab an valuable part of my land giving me no road access where the court case went for years but in spite of a caveat that land was sold.He sold to another buyer in spite of the lending bank was warned formally about the court case and the Caveat in operation,nevertheless the lnad was sold to the new buyer and the bank financed it .after a long battle in courts it was decided by the courts that some other piece useless unbuildable land was given to me.It seems the courts didn’t have the courage to go against the politician who bought the land with a bank loan.
    MR was informed about another person’s very valuable house and property in Colombo 7 was forcibly occupied by thugs of a politicians where the young wife and the three kids were kept in a small room until the property was forcibly written to the illegal occupiers.MR and Professor GLP was informed in London by a party workers.The illegal occupiers left for a short time but using a false deed raised a loan using a bank in Mortuwa.My friend lives in fear and have to defend her house in courts.This is the state of the lawless country where some are appealing to foreign governments to help them to safeguard their properties and even lives.
    Government must look into this immediately.
    My burgher family’s court case against illegal occupier goes over 50 years and only few left in the family to fight the case.These kind of practices and culture make me very critical of our balu culture and equally our balu history.We had a glimmer of hope when the British was allowed to take over in 1914 where they rapidly increased our infrastructure. The leader who brought the misery to our country was murdered by the very filth he associated with,disgracing the noble religion at the same time.
    I went several time for the court cases all the way from UK to be postponed and the last day of the case I over heard my lawyer telling the assistant to go to courts and get another date and I was furious.at the court house just before my case a poor woman whose land was encroached by some powerful business man was taken up and the lawyers demanded that she pays for another survey but the poor woman said that she was so poor that she walked many miles to ,the court house and after hearing this (I stood up and gave her few thousand Rs notes to fight the case to the end.Judge noticed this as the person I was fighting for my land and I was given chairs just next to the judge’s box and that person said that I will get a merit in my next birth but I said loudly that I don’t want any merit in the next birth but I want my stolen land in this birth.That fearless judge hear me and took the case next resulting in adjuring the court sessions for the day and resumed the case on our disputed land on the lad itself,remarkable indeed.It was too much for him to go against the politician instead asked me to take another unbuildable land elsewhere.Even good honorable people like that judge could do his job in that very corrupt country.All this rot came to us after the good colonials left.In Africa they want the colonials back and this is sad.

  2. Nimal Says:

    Sorry I meant 1814 not 1914,too busy to recheck.

Leave a Reply

You must be logged in to post a comment.

 

 


Copyright © 2022 LankaWeb.com. All Rights Reserved. Powered by Wordpress