COHRE Briefing Paper Issue II Land State Development Ordinance Sri Lanka 2008

Women

and

Housing

Rights

Programme

Realizing the Intricacies of the Land Development Ordinance and State Lands Ordinance Alienation of State land is a commonplace concept, which has been put into practice for decades in Sri Lanka. However, there is a lack of clarity and awareness as to the laws governing this area. The objective of this paper is to clearly lay down the features of the two main laws regulating alienation of State land in Sri Lanka, namely the Land Development Ordinance (LDO) and the State Lands Ordinance (SLO).

1. Application of the Laws Both the LDO and SLO laws apply only to State land. According to the Land Development Ordinance, “State Land” means “all land to which the State is lawfully entitled together with all rights, interests and privileges attached or appertaining thereto”. It is important to note that such land is held by the state in trust for the public. This trusteeship concept can be traced back to the ancient Sri Lankan land tenure system, where the king was called the “lord of the earth,” “bhupathi” or “bhupala”.

2. Administration of the Laws The Land Commissioner’s Department functioning under the Ministry of Land and Land Development formulates the national policy with regard to the use of State land. Authority to implement both these laws is also vested with the Department.

The Thirteenth Amendment to the 1978 Constitution has devolved the subject of land to the Provincial Councils. Consequently, the Land Commissioner’s Department collaborates with the Provincial Councils in administering these laws. Lands falling under Inter-Provincial Irrigation and Land Development Schemes are administered by the Deputy/ Assistant Land Commissioners. In contrast, the lands situated within the areas of Provincial Councils are administrated by the Provincial Land Commissioners. Divisional Secretaries provides assistance to both the Deputy Provincial Land Commissioners.

3. Land Development Ordinance No. 19 of 1935 The Land Development Ordinance was enacted in 1935 with the objective of providing for the systematic development and alienation of State land in Sri Lanka. Under the Ordinance lands are mainly issued to the people belonging to the low income groups for agricultural and residential purposes. It provides for the establishment of the office of Land Commissioner (hereinafter referred to as “the Commissioner”) and reservation of State lands for various purposes such as village expansion and human re-settlement.

3.1 Selection of Persons 

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a) where the Minister directs allocation in the public interest; or b) where immediate alienation is desirable in the interests of an applicant. 

A person unsatisfied with the GA’s decision can appeal to the Commissioner.

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It should be noted that State land cannot be alienated to noncitizens

3.2 Manner of Alienation

The process begins with a notice published by the Government Agent (hereinafter referred to as “the GA”) calling for applications for lands proposed to be alienated.

Generally, suitable persons are selected by the GA at a Land Kachcheri, except

Alienation process under the Ordinance consists of two stages.

3.2.1 First Stage:  A permit is issued authorizing the selected person to occupy the land.

R e s p e c t W o m e n’s H o u s i n g R i g h t s

Issue II - December 2008

BRIEFING PAPER

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Thereafter the permit-holder is bound to pay the purchase amount with interest, as determined by the Commissioner, in annual installments within a period of ten years.

If due to sickness, crop failure or other unavoidable causes the permit-holder fails to make full payment, he/she may claim a two years extension.

A permit-holder belonging to the peasant class may be exempted from payments.

A permit should contain the extent and description of the land, the amount of each annual installment and the date on which the payment should commence.

 In addition, any form of encroachment of State land has been made a punishable offence. It is also highlighted that no person is able to acquire prescriptive title to State land by being in possession of a land under a permit or grant.

3.4 Disposal Powers  A grantee enjoys wider disposal powers than a permit-holder, who has no right to dispose with his/her land. A permit-holder does possess a limited capacity to mortgage his interest in the land to any registered society of which he is a member. However, this can only be done with the written consent of the GA.  In contrast, a grantee may dispose of a holding to any other

person with the prior approval of the GA. However, he is not entitled to lease such land or to mortgage it, except to the prescribed institutions.

3.2.2 Second Stage:  When a permit-holder fulfills the following conditions, limited ownership rights are transferred to him by way of a grant.  He/she should have paid the full purchase amount with

 An attempt was made within the years 2002 and 2003 to remove

the restrictions imposed on disposal rights of the grantees by the introduction of a new Land Ownership Bill. However, it turned out to be unsuccessful as the Bill was held inconsistent with the Thirteenth Amendment to the Constitution by the Supreme Court.

interest  Should have complied with all other conditions specified in the permit  Should have developed the land to the satisfaction of the GA

 Issuing of the grant for the State land alienated under the Ordinance since 1935, commenced in 1982. Grants have so far been made using four different types of deeds, namely Swarnabhoomi, Jayabhoomi, Ratnabhoomi and Ranbima.

3.5 Order of Succession  It is highlighted that provisions under the General Law and

 According to the Performance Report of the Land

Customary Laws relating to intestate succession are not applicable to the lands alienated under the Ordinance. However, a permitholder or a grantee is free to nominate a successor under his/her a last will. Order of succession under the Ordinance is as follows:

Commissioner’s Department for the Financial Year 2006, a total of 997,158 grants consisting of 324,203 Swarnabhoomi deeds and 672,955 Jayabhoomi deeds were issued up to the end of year 2002.

It further states that issuing of grants was suspended during the period of 2002-2003 as a result of the endeavour to revise the Land Development Ordinance. However, due to the failure to revise the Ordinance, the issuing of grants was restarted in year 2004.

 Grants are issued subject to the below mentioned conditions.

3.5.1 Where a permit-holder or a grantee dies leaving behind his/her spouse i) Upon the death of a permit-holder:  The spouse of the holder is given preference over all others even

These conditions accompany the land and bind the original and subsequent owners.

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i) In terms of the general conditions or Conditions attached to every grant the grantee is not entitled to

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 dispose of a divided portion or an undivided share of the land

less than the minimum fraction specified  dispose of the land except with the prior approval of the GA ii) Special conditions are applicable to individual cases  Finally, both the permits and grants issued under the Ordinance

must be registered

3.3 Protection provided for alienated land

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if he/she has not been nominated as the successor.

Thereafter the conditions of the permit become applicable to the spouse.

If during the lifetime of the spouse he/she manages to comply with the conditions of the permit such spouse is entitled to a grant of the land Such grant will not be subject to any conditions if the spouse has been the successor nominated by the deceased.

However, if not, the grant will be subject to the following conditions:  Spouse will have no power to dispose of the land  He/she will have no power to nominate a successor  Upon his/her death or marriage, the person who has been nominated as the successor by the deceased, or if no nomination has been made, the person entitled to succeed under Rule 1 of Third Schedule will be entitled to succeed

 Special protection is afforded by prohibiting seizure or sale in execution of decrees of any court. However, seizure and sale is allowed:  for the enforcement of a mortgage executed in favour of a

prescribed institution, such as a licensed commercial bank; or

ii) Upon the death of a grantee:  The spouse of the owner will succeed to the land without

being subject to any conditions, if he/she was the successor nominated by the deceased.  If the spouse was not the nominated successor he/she will

 for the recovery of an amount fixed as bail.

succeed to the land subject to the same conditions aforesaid.

3.5.2 Where a permit-holder or a grantee dies without leaving behind a spouse, or upon the failure of the spouse to succeed, or upon the death of the spouse  The successor nominated by the deceased should succeed to the land.

 If no successor has been nominated, or if the nominated successor fails to succeed, the person next entitled to succeed under Rule 1 of the Third Schedule should succeed.

 Order of succession as enumerated in Rule 1 is discriminatory as it prefers male relatives over female relatives. For instance sons are preferred over daughters and the father is preferred over the mother. It is important to realize that the purpose of this law is to restrict the disposal rights of the grantee to prevent him and his descendants from again falling into the landless state and not to perpetuate discrimination based on gender.

 It is noted that under Goal 3 of the Millennium Development Goals to Promote Gender Equality and Empower Women, the Sri Lankan Government is currently in the process of amending the Third Schedule to eliminate the current male bias in the law.

The amending Bill includes a Table which does not give priority to males and instead lists out those who can succeed to land as ‘children, grand children, parents, siblings’ etc thereby eliminating the male preference that currently exists in the law.

4. State Lands Ordinance No. 8 of 1947 4.1 Main Purposes State Lands Ordinance enacted in 1947 intends to provide for:

 the grant and disposition of State lands;  the management and control of such lands;  the regulation of the use of water of public lakes and streams; and  other incidental matters.

4.2 President’s Powers The President is vested with enormous powers regarding alienation of State land under the Ordinance. Among them the three main powers are, 1. the power to make dispositions of State land; 2. the power to accept the surrender of any State land already disposed; 3. the power to exchange Sate land for private land.

His power to make dispositions includes making absolute or provisional grants, selling or leasing State land, and selling or leasing the right to mine or gem in any State land. In addition, he is empowered to fix, revise or waive the payments due to the State.

However, as stated above, the Land Commissioner is charged with the administration of the Ordinance.

4.3 Making a disposition Unlike the Land Development Ordinance, lands are made available for a wider range of purposes under the State Lands Ordinance.

Accordingly, grants are made to individuals, as well as, government institutions and the private sector.

3.6 Cancellation of Grants and Permits Where there is no person entitled to succeed to a land held under a grant, or the person entitled is not willing to succeed, such grant may be cancelled by the President. In a similar scenario where the land is held under a permit, the GA can take over the possession.

If a permit-holder has breached a condition of the permit the GA may issue a notice warning that his permit will be cancelled unless sufficient cause is shown for the breach. If the permit-holder fails to show sufficient cause, his/her permit may be cancelled. A grantee or holder remaining in possession even after cancellation will be ejected from the land.

3.7 Recovery of Payments It is highlighted that any payment due to the State from a permitholder is considered to be a first charge on the land. Where a holder defaults in payments, the GA may seize and sell any movable property belonging to the holder, except his/her necessary belongings, to recover the sum due. If the amount recovered at the sale is insufficient to discharge the debt, then the land will be seized, which will amount to a cancellation of the permit. The Minister and GA both have the power to reduce or waive any payment due to the State.

Alienation can only be effected by an instrument of disposition signed by a prescribed officer. In the event where the term of a grant exceeds the prescribed period it should be signed by the President and registered. Such instrument may contain conditions regulating the use of land, which run along with it. Also, the State’s right to any minerals found in any alienated land is expressly reserved under the Ordinance.

4.4 Various Instruments of Disposition 4.4.1 Long Term Lease Permit Long term leases for a period of 30 years are issued for agricultural, commercial and residential purposes. In special circumstances the period of lease could be extended up to 50 years.

4.4.2 Grants A lessee under a lease for residential purpose can obtain full ownership to the land by way of a grant if he/she has successfully operated within the initial lease period.

4.4.3 Special Grants This is a type of grant executed for a special reason and generally, these are used to grant lands to government authorities to be utilized for public service development projects.

4.4.4 Releasing Certificates For lands released for the use of government departments a Releasing Certificate is issued.

4.4.5 Vesting Orders Vesting orders are issued to release land for the administration purposes of armed forces and local authorities. Title to the land so vested remains unaffected with the State, except in the case of land sold by any local authority. The President may revoke the order in prescribed circumstances such as upon the breach of any term or

at the request of the armed force or authority. Local authorities are entitled to lease the land held under an order with the sanction of the Minister.

4.4.6 Pooja Deeds These deeds are issued to Buddhist temples. Initially a Primary Lease Bond is executed in the name of the Board of Trustees and then it is released by way of a grant in the name of the Viharadhipathi.

According to the Performance Report of the Land Commissioner’s Department for the Financial Year 2006, a total of 197 allotments amounting to 637.383 hectares of land have been allocated for various purposes in the year 2005. While the most number of allotments has been allocated in the Galle District, the largest extent of total land allocated amounting to 440.162 hectares is recorded in the Nuwaraeliya District. In addition, a total of 107.65 hectares of land have been allotted under special grants. The most number of special grants has been made in the Colombo district. A significant increase can be seen regarding lands distributed under long term leases as well as special grants in 2005 when compared with the statistics of 2004.

4.5 Disposal, Cancellation and Termination of Dispositions A grantee cannot dispose of the land held under an instrument without obtaining the prior consent of the President or a prescribed officer. Any disposition effected contrary to these terms is void.

Where a grantee has failed to fulfill any condition attached to a permit or licence, it can be cancelled by the GA. Cancellation can also occur upon non-payment of sums due to the State. In addition, a civil action may be filed to recover the moneys due.

of any public stream or lake and the construction of any road, hospital or school. He is also empowered to cancel any declared reservation.

It is highlighted that prescriptive rights cannot be claimed against State reservations and any unlawful occupier can be ejected. In particular, certain lands are recognized as road reservations under the Ordinance.

The management of foreshore is vested with the State. However, the President is authorized to make constructions on the foreshore for prescribed purposes and has the power to lease any part of it or to issue permits for temporary occupation. While the Minister has the power to declare that sea, sand or other substance cannot be removed from certain areas without a permit, the GA is authorized to prohibit removal of sand from particular places on foreshore. Any person guilty of unlawful removals of sand or removals contrary to terms of a licence will be punished.

4.7 Regulation of the Use of Water of Public Lakes and Streams The right to use, manage and control water in public lakes and streams is vested in the State. The State officers can enter any land and take measures for conservation, equal distribution, and prevention of pollution and unauthorized obstruction of public lakes or streams.

However, this right is subject to the following restrictions:  It cannot contravene any right lawfully conferred on any

person, company or authority under any law or licence granted by the State;  It is subject to the rights of the occupiers of land on the

banks;  It should be subject to the rights of permit holders under the

Ordinance.

In case of a personal permit or licence, upon the death of the grantee the land with any subsequent improvements revert to the State and his heirs are not entitled to claim any interest in the land or compensation for improvements.

4.6 Declaration of Reservations and Administration of Foreshore State lands can be declared as reservations under the Ordinance by the Minister for certain purposes such as the protection of the source

While the bed of the lake or stream is owned by the State, riparian occupiers enjoy the right to use the water in the lake or stream for domestic purposes and agriculture. However, they cannot divert water through a channel, pipe or other mechanical device.

To divert water, or to construct any work in a lake or stream or upon the bank, or to construct any bridge a permit must be obtained from the GA, which may be cancelled in the event of a breach of a term.

Also, a penalty is imposed against unlawful diversion.

5. Concluding Remarks The role land has played in human origin and survival is invaluable. It continues to be the most valuable asset of human beings. Therefore, each and every individual has an interest in preserving land in general. When it comes to State land, the State and the citizens have a shared responsibility towards preservation, regulation and productive development of State land. In this context the need arises to re-examine the public attitude towards State ownership as opposed to private ownership.

Mobile services called “Janahamuwa” programmes conducted by the Land Commissioner’s Department at national, provincial and divisional secretariat levels to deal with problems relating to State land can be seen as a first step towards informing and clarifying doubts of the public. However, there is much to be done to improve public awareness of the laws regulating State land and the consequences of their breach.

Centre on Housing Rights and Evictions 106 1/1, Horton Place, Colombo 7, Sri Lanka.

Email: srilanka@cohre.org Tel: +94 11 2693143 www.cohre.org/srilanka

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