Earlier this year, in the process of getting approval for our building plans, I discovered that even the Government through whom we donated part of our land to the People of Sri Lanka – had failed to register their title with the Administrative authorities.
l Gaja Lakshmi Paramasivam
(October 11, Melbourne, Sri Lanka Guardian) In Sri Lanka, Land Ownership is directly linked to Devolution of Powers. Ownership could be ‘apparent, legal and/or belief-based’. The only real and lasting ownership is that Belief - feeling of ownership itself.
In their report regarding their discussion with India’s Foreign Secretary Shree Ranjan Mathai, Tamil Political leaders M/S V. Anadasangaree, D. Siddhartha and T. Sritharan have stated ‘Authority over lands: - The Government’s latest move to have all lands re-registered is unjustifiable and has created a lot of suspicion in the minds of the people. Why should the Government do it in areas where people have not yet properly settled, some have not yet identified their lands and some had gone aboard. Above all a lot of people died during the war. What and what property and where these lands are, is still not known. The Government must abandon the move forthwith.’
The requirement to Re-register, needs to be within the relevant laws of land ownership. It should not promote unlawful possession by the Government. It would if the requirement to re-register is connected to ownership rights. The Government has the lawful powers to require registration at various points – such as purchase, death and inheritance and gifts. But does the Government have the powers to override these legal entitlements through this re-registering process?
The Sri Lankan Ministry of Land & Land Development states in its explanation of the requirement to re-register:
‘The reports of the Land Commissions held in 1927, 1955, and 1985, also recommended a modernized procedure to be applied which paved the way to implement the Title Registration Programme presently followed by many developed nations of the world. The objective of this Title Registration System is to establish a complete database on the land resource of the country, and the proper land management.
The Title registration process which is far more advanced than the document registration is introduced to our country through passing the Title Registration Act No. 21 of 1998 by the parliament of the Democratic Socialist of Sri Lanka. Under this process a state guaranteed Title Certificate is issued to the deeds registered under the Registrar General's Department and Grants issued under the Land Grant (Special Provisions)Law issued to various people. This system not only grants a clear title and boundaries for which the state takes direct responsibility, but also a complete map is issued to every allotment. To register the title, each allotment is surveyed and a cadastral map is prepared. Accordingly, the whole country is covered through surveying villages, treating the village as a basic unit. Through this land surveying procedure, all the allotments of land in the selected village are properly surveyed and maps are prepared. The determinations of the boundaries are made with the concurrence of the land owner and accordingly boundary stones are laid. Accordingly the specialties of this programme are surveying of the whole village, determining the boundaries with the concurrence of the owner, the allotments without identified boundaries are demarcated by laying boundary stones etc.
This procedure undoubtedly would render a yeomen's service specially to those who do not have money to survey their own lands and those who are unaware of a procedure to survey it.
Another specially of this Title Registration Programme is the issue of individual number to each allotment t. Also this generates a favorable trend that it avoids future disputes as the Title Certificates of a particular land is prepared with the unanimity of all the owners of the adjoining lands.
The project was commenced under the World Bank funds as a “Learning and Innovation Project” with the support of the Land Settlement Department, Survey Department, and Registrar General's Department, which was implemented successfully until December 2006.’
World Bank Funding may be used to help the government administer land titles in more orderly manner. It should not make the legal owners and/or belief based owners feel more anxious. In terms of the Government itself, its cooperate wisdom in managing Land ownership needs to be brought into any new structure.
Earlier this year, in the process of getting approval for our building plans, I discovered that even the Government through whom we donated part of our land to the People of Sri Lanka – had failed to register their title with the Administrative authorities. All parties concerned relied on our documents of title. This helped me appreciate my parents’ commitment to and respect for the processes of law.
If collectively, private owners of an area, are able to manage their properties through the existing processes, then new processes such as re-registering need to be taken as the government playing ‘catch-up’. During Tsunami Reconstruction work in Batticaloa, we discovered that many victims did not have their title documents – that they never had them. Many of them owned through prescriptive rights. This is likely to be the case also with many villages in Northern Sri Lanka. To my mind, prescriptive rights are rights based on belief. In a recent submission regarding property in Colombo, I wrote as follows:
‘It is submitted that the law requires the claim of title by physical possession to be ‘independent and adverse’ to that of the Legal Title. The legal title is intellectual title which confirms possession through one’s mind. Ownership is earned the moment legal formalities are executed.
As opposed to this is physical possession. It is submitted that to be more valid in the eyes of the law – physical possession by an owner who is NOT the legal owner – needs to be for at least 10 years – independent of the legal owner – which means of the title conferred by the legal system. The moment a person physically possessing / occupying resorts to the same legal system s/he is no longer independent of the legal system. Hence it is submitted that from the time the defendant felt threatened of his title by a law officer – he lost the claim to possession independent of and adverse to the Legal Title. He was indeed seeking the protection of that very system before establishing title through Prescription Ordinance. Hence his declaration of ownership was dependent on the law protecting him and did not originate independent of the law.
It is submitted that an expression of belief needs to be from within and to be a valid expression of belief it should show no signs of dependence on another system of Justice external to the self.’
Belief based ownership is facilitated through Sri Lanka’s Prescription Ordinance 22 of 1871. The requirement to re-register should not interfere with the enjoyment of land through belief – as provided by Prescription Ordinance 22 of 1871.
There is merit based ownership and there is belief based ownership. Sri Lanka, through its priority status allocated to Buddhism, continues to demonstrate strong commitment to Belief based systems. Unless there is evidence of weakening of belief, all merit based assessments need to be separated and treated as projects. To my mind, the above re-registration system in Northern Sri Lanka needs to be treated as a project – for Government to improve its Administrative system. It should not in any way go towards diluting belief based ownership nor legal ownership. The latter is likely to happen if an Administrative Unit issues a Title Certificate on the basis of their interpretation of the evidence presented, which may prove different to the interpretation of the Judiciary. During our recent seminar at Thunaivi, we discussed a case where funds for Housing were distributed and house built by an occupant. The legal owner had later filed action and had restored successfully the legal titles. Such challenges would increase the burden on the Judicial system.
Any organization, including World Bank, funding such a project is demonstrating lack of commitment to the suffering of the war victims in Sri Lanka. They come in all shapes and forms. Some are less visible than others. Tamils of Sri Lanka, need to restore their belief in themselves. If they lose possession of lands due to rules that majority Tamils do not understand, it would be stronger displacement than when their physical bodies were displaced, during the war. Money without proper administrative system needs to be limited to belief based distribution. This re-registering system is a clear case of placing the cart before the horse.
It’s this belief based ownership that adds uniting force to an area. The ultimate goal of all merit based systems is this belief. Moves to damage/dilute this belief based ownership would naturally damage the authority’s / person’s credit with the Universal system of Justice.
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