Most Land Issues Due to Not Enacting 13A
Land Commissioner General G.D. Keerthi Gamage says 85% of the land in Sri Lanka is State-owned and that spells out the issues related to land in the country. He added the 13A is a must to reduce land issues and the wrong perception over it has resulted in 90% of the land matters coming to the Land Commissioner’s Department.
By Sulochana Ramiah Mohan
Excerpt of the Interview:
If 85% of lands belong to the State, it is apparent that the 23 million population have a huge problem in the country?
A: Yes, very clearly. Since the land resources in our country are limited, this crisis is getting aggravated daily.
While you say there is no land for people, in the Muthurajawela marshy land, a leading company has purchased 600 acres for a hotel project. How did you grant them permission for that?
A: Actually, I do not think there is even a decimal point of contribution from our Department. I do not know how those lands were given and by whom. There is an Environmental Impact Assessment (EIA). There is no way that any land can be given without carrying out such an Assessment. If it is being done without an EIA, the Central Environmental Authority is held directly responsible.
Do you have land request files that are over thirty years old?
A: To give out lands on long-term leases based on the Crown Lands Ordinance, there are more than 70,000 files which have piled up. There are as I see it more than 30,000 files pertaining to problems too, regarding lands across the island.
How long does it take generally to resolve a land case?
A: I know that there are cases which are over 20 – 30 years old and I accept the fact. There are only a handful of those. We have the ability to solve these problems in most cases in six months, one or two years.
Is there a system to monitor land taxes?
A: No. There is a delay because there are so many other institutions that are connected when preparing a deed. Mainly, we have to get the recommendations from various institutions. There is a delay in obtaining those recommendations. Once the Land Minister approves this, it has to be valued and when we go to the Department of Valuations there is a delay. Also we need to survey which means there is another delay. If we do the preparation of deeds by ourselves, we can do it much faster and we have the ability to do so. There are 26 other departments involved in preparing a deed.
Is there no way that you can get rid of this practice?
A: By going online, this probably could be speeded up. For example, if an application is submitted to the UDA, they obtain all recommendations online. So, we also intend to follow that method. Since we are operating manually now-a-days, the staff is inadequate.
Lands in Deeghavaapi in the East, where people have settled down are now being demarcated as Archaeological sites. What does the law say about how much land can be demarcated surrounding an archaeological site?
A: There is nothing like that. Deeghavaapi is a historic Rajamaha Viharaya. This temple had ownership of thousands of acres of land but with the passing of time people settled down on these lands. They came to reside in the middle. Initially the temple had ownership rights to these lands. It was these lands that the people went and took over forcibly and settled down. There were no boundary markings and they simply settled down. But the government now says that at least a certain extent of land has to belong to the temple. There is no law governing the demarcation. Gazette Notifications issued from time to time have stated that the temple owns a certain extent of land. Those lands are allocated according to Gazette Notifications issued in recent times. It changes from site to site. It could be that one temple is given 1000 acres and another is allocated 40 perches of land for an archaeological site. There are no standard laws.
Land scarcity is a big issue now. As the Land Commissioner General how do you tackle it?
A: When you consider the overall land extent of Sri Lanka, it has been allocated to a number of institutions. The institutions protecting lands include Department of Wildlife Conservation, Forest Conservation, Archaeological Coastal Conservation, Railways, Irrigation, and Roadways. While none of them have the right to allocate lands the Railway Department, based on commercial leasing laws can temporarily give out an extent of reserve lands, but not all. Some of them are using railway land without authority by giving out lands on commercial leasing basis for profit.
Apart from that, about 85% of the land in Sri Lanka is owned by the government. Most of these lands are managed by the Land Commissioner’s Department, and Divisional Secretaries (DS) and Provincial Councils (PC). We also have the Sri Lanka Mahaweli Authority. They grant lands to people.
Additionally, the Land Reforms Commission (LRC) does not belong only to the State. The administration and management of such lands are the responsibility of the LRC. From among the acquired lands, large extents of land were handed over to the guardianship of the Janatha Estates Development Board and State Plantations Corporation. These two institutions leased out lands to about twenty companies. In addition, the LRC has some lands still in their possession.
That is because an opportunity was provided to people from whom these lands were acquired to take them back based on legislation, subject to a maximum of 50 acres. For that purpose, a certain extent in lands was retained by the LRC. From 1974 to date large extents of land were handed back to people by the LRC using various methods such as selling and leasing. In addition, there are institutions such as the Urban Development Authority (UDA), but they do not possess lands. What they do is they acquire for their institutions lands from the Lands Commissioner, DS or the Mahaweli Authority and based on their Act in order to fulfill the responsibilities they have been assigned they dispose of these lands.
They request lands from us and distribute them according to their Acts. When disposing of lands, we follow two Acts: they are the Lands Development Ordinance and Crown Lands Ordinance. In addition, initially certain lands were given over to the DS to be given for cultivation and poverty-stricken people. That is to be given to poor people in this country who do not own any lands. These were lands acquired by the government and given over to DSs for disposal.
Some lands that are acquired by the government and in the possession of the LRC were assigned to DSs to distribute to people. A separate Act was passed on lands that were distributed to the people under the Land Grants Special Provisions Act and under this Act lands were distributed. It was in 1935 that the Lands Development Ordinance was passed. Actually, at that time there was a major commotion among the people of this country because under the Waste Land Ordinance, many lands belonging to citizens of this country were acquired by the government and due to this the Land Settlement Ordinance was subject to confusion.
Inspections were held on the lands the ownership and rights of which could not be proved in writing and lands which had been enjoyed traditionally were taken over by the government. Therefore, large extents of land belonging to the people came into the possession of the government and people were deprived of their lands. As a result, according to the recommendation of a Commission, the Lands Commissioner in 1933 or earlier the Whites passed the Lands Development Ordinance in 1935. What that Ordinance enabled was for lands to be given to farmers without land and low-income families for cultivation and to settle on. According to that law, Land Kachcheris were formed; lands were given to people, poverty-stricken people and farmers for living on and cultivation. Due to this, land areas began to drop, allocating lands also became less and less over the years. Initially when land was available each family received five to eight acres of land which they then turned into paddy fields and 3 acres of dry land. Today, that has been reduced to 80 perches. The resources are now reducing steadily.
Is that law active now?
A: Yes, the law was amended in 1969 and 1981 but recently a critical dialogue has cropped up that this Act should be amended. The main reason for this is that something called the third sub-document has been introduced in this Act by the Land Development Ordinance. It means that if a land is given to some individual, it has been analysed as to whom this land will go to on his demise. If required this individual can designate someone to whom the land will go to, which is simply naming the heir to the land in a will.
The licenses granted indicates among how many persons this land can be divided. The smallest unit to which the land can be broken up has been identified. It is subject to those restrictions only that the land can be divided. For example, a dry land of two acres can be divided up into units of ¼ acre, which is a rood. There are four roods to an acre. So, this land of two acres can be divided up into units of one rood. The number of plots of land this two-acre plot can be divided into is one eighth (1/8) which is a minimum 40 perches. This is not practical now.
It is sometimes broken up into six perches. Therefore, the Act needs an amendment. In certain deeds this minimum extent has caused problems for people. In addition, subject to the mentioned regulations, the land can be divided up and names designated, if that is not done. If a certain person received the land and he was unable to designate who will be the heir to the land after his death, he can name either his wife or children. If there is no will written, automatically it would belong to the eldest male of that family. If there are three or four younger brothers and the eldest has left the land and the youngest son is still with the father and no will has been written to anyone, the youngest son looking after the mother could be named. So, it is a great social injustice.
So, that means daughters do not inherit land?
A: The second fact is that priority is not given to females. The land will go to sons and only if there are no sons that the right goes to the daughter. However, the father can name a female, a daughter in the will. Not otherwise. If it is not written to the wife problems arise. This practice is not suitable now. So, this should be amended so that females can be named as well. Cabinet approval has been received for this resolution and there is hope that it can be adopted in Parliament with a two-thirds majority.
When do you think it will happen? Who brought in this proposal? Was it you?
A: This proposal was put forward in 1996. There are certain unfortunate circumstances in our country; With the 13th Amendment to the Constitution in 1987, devolution of power was enacted.
But then can they give out lands according to the law?
A: But since the Act has not been amended the PC cannot do so as it is an amendment of the third sub-document. Due to this, the agreement of Provincial Councils has to be obtained when amending certain Acts. The basic Act has to be amended according to the consent of the Provincial Council. Then in 1996, the North Eastern Provincial Councils and the Western PC have not expressed their willingness to amend this Act due to some misunderstandings. They objected without having a proper understanding. Therefore, that Amendment could not be done then. At that time, the North-Eastern Provincial Council did not exist. It was after that that they were established.
So now there is a different problem here. Therefore, we have been deprived of the opportunity to carry out these people-friendly amendments. As a result, the government has determined that these are essential amendments and causing problems for the people. If there is no agreement from PCs then they have to obtain two-thirds majority in Parliament and do it for the welfare of the public. As the Lands Commissioner I would like to request PCs to see this problem from the point of view of the people and agree to these amendments. Due to this amendment not being carried out in 1996, 2006, 2016 throughout 24 years and not only that from the day this Act was initiated, 90% of people’s problems which come to us are connected to these amendments. If these amendments were carried out we will be able to easily solve about 90% of these problems. But since PCs have not agreed we have been deprived of the opportunity to do it.
What should be done is that all political parties should get together and pass the resolution for the amendments.
Are you talking about the 13th Amendment?
A: Yes. It is a must. If the powers were given to PCs, there is a talk that a ‘struggle’will commence in the North. That is wrong. But if you look at this from people’s point of view, it is necessary to devolve certain powers. They have to be allocated locally, provincially which is necessary. But then again certain powers should not be devolved.
What sort of powers?
A: There is a national policy when we determine something. For example, the government determines that the forest density should be 32% and if by chance some PCs do not take this policy into consideration then what will be the situation that will arise? Even now this is happening. Applications were called to allocate lands to young entrepreneurs by the Ministry of Public Administration. A great number of these applications were from the North and East. When an inquiry was made it was discovered that it was not young entrepreneurs who had thus applied but some other persons with ulterior motives.
Are you under pressure to give approval for certain requests made to allocate lands for development?
A: There was an extremely good mechanism for this in the past in our country. The foreigners had introduced it to us.
What was that?
A: If unauthorised settlement or capture took place, we had in our possession an Act. However, during the period of terror in 88-89 this system collapsed. After that, the system was not normalised or updated. Now, the GN has to compulsorily submit a report to the DS and the DS has to file legal action. This mechanism has collapsed, but needs to be carried out now.
Now, if such a thing comes to you do you dismiss it? They say acquisition is for business, international investment etc?
A: If it is a conserved forest land that is captured by someone, I cannot regularise that. If those departments release the land then I can take action. That is what happened at Wilpattu. The General of Forest Conservation had released those lands. I have no authority to speak up.
It means there is no mechanism at all regarding lands in Sri Lanka?
A: There is no system to clearly identify these lands.
What is the system we have?
A: A far better local idea is presently in use now. We see pillars of the RDA set up here and there by the roadside. The other institutions such as the Wildlife Department, the Forest Conservation and the Irrigation Department have set up a pillar of their own, similar to the Archaeological Department.
In demarcation of land people have been arrested for encroaching into forest land? Mayilathamadu grassland in the Eastern Province is now being used for corn cultivation while they have chased all the cattle out.
The Wildlife and Forest Conservation Departments have lands but they have not marked them out. In the past there were no clear marked boundaries for lands of the Wildlife Conservation Department. It is only now that the boundaries are being marked.
So this problem is not resolved either?
A: This is sometimes due to arbitrary actions of certain officials. If I mention an example, we know that Keppitipola Nilame was taken into custody in a certain village. It is about 600-700 years old. However, the Wildlife Department issued a Gazette notification in 1989 saying that this village was a zone that belonged to them. They did not look into the facts or carry out a study. President Rajapaksa mentioned this during a ‘Gama Samaga Pilisandarak’ programme and asked officials not to name areas where people have settled down as conservation areas. That is why the President has asked to appoint people who are in conservation areas to mark borders.
How much of this has been done?
A: Now it has been about seven months. By now we have informed all DSs. We are also carrying out a survey regarding lands at present. This has been delayed due to lack of funds. DSs have identified that there are a certain group of unauthorised people living in certain Grama Niladhari divisions. We have instructed DSs to hold land Kachcheris in all of these villages by 30 May 2021 and identify persons living on government land without a licence and gather information and subject them to a survey and to select suitable qualified persons. So, this has to be completed by June.
That is considered to be our target of plots of land which the government has provided 120,000 for which deeds have to be provided.
20,000 of these deeds will be provided to young entrepreneurs based on a certain entrepreneurship task which is being carried out by the Ministry of Public Administration. In addition, we have to give out deeds for 100,000 more plots of lands. There are limits to the extent of lands to be given, that is if it is to settle down it is 20 perches of land and if it is for cultivation it is ¼ acre.