- Reclaiming lost state land, a challenge
SLR General Manager M.J.D. Fernando stated: “Most of these lands are occupied by the employees of the SLR itself. The railway reserve land falls under the purview of the Superintendent of Railways and Station Master of the respective railway station in the area. Over the years, these employees have misused their position of power and gone ahead to construct private dwellings.”
Fernando said the SLR is awaiting the Cabinet Minister to provide the necessary directives and make policy decisions after the committee carries out an investigation into the lands in question.
“We will have to charge them leasehold for the years they occupied the land and then take necessary action to evict them as well. Some argue that it is their right to live in the land as the SLR owes them for all the delayed salary increments, etc. This is an issue that will have to be taken up separately by them,” Fernando elaborated.
However, the four-member Cabinet Subcommittee meeting that was to take place two weeks ago to look into reclaiming the SLR reserve lands occupied by squatters had been postponed due to the present Covid-19 situation.
The Cabinet Subcommittee headed by Minister of Transport Lokuge comprises Minister of Public Services, Provincial Councils, and Local Governments Janaka Bandara Tennakoon; Minister of Lands S.M. Chandrasena; and State Minister of Money and Capital Market and State Enterprise Reforms Ajith Nivard Cabraal.
State responsible for squatters
Sri Lanka’s state-sponsored land settlement schemes (SLSS) seem to be the reasons for the continuing presence of squatters. Recent research suggests that the legal and regulatory framework in these settlements may be what triggers the necessary social preconditions required for squatter settlements to come into existence, a major reason behind it being the legal restriction pertaining to minimum subdivisions by virtue of the Land Development Ordinance of 1935, among other statutory provisions.
Accordingly, this restriction prohibits owners from allotting the title to their land; they may only transfer the title subject on the condition that such a transfer will not divide or fraction the property. Such restrictions serve to create a “social space” where a number of second and third-generation settlers are effectively left without a lawful claim to the land.
The state owns over 80% of the land in Sri Lanka and the remainder is owned by private parties. Under the State Lands Encroachments Ordinance, all waste lands, forest lands, and unoccupied and uncultivated lands are presumed to belong to the state until the contrary is proved (Section 7), and all cinnamon land which have been uninterruptedly possessed by the state for over 30 years are held and deemed to belong to the state (Section 6).
Legal provisions
Several laws and enactments deal with state lands – how grants are made; how it is recovered from unlawful encroachers; how it is regulated, controlled; and managed; etc. The law also sets out how encroachers are to be dealt with.
As the owners of the land, the state can grant permits to persons to use the land. It can make outright grants (for example, the Land Reforms Commission can make outright grants of land), or lease the land out to either private parties or state-owned entities themselves (for example, the Janatha Estates Development Board [JEDB] which runs many estate companies has a 99-year lease of tea and rubber lands which belong to the Land Reform Commission).
The State Lands Ordinance makes provisions for the grant and disposition of state land in Sri Lanka; for the management and control of such lands and the foreshore; and for the regulation of the use of water of lakes and public streams.
In reviewing the legal framework for SLSS, it is necessary to begin from the colonial period where legislation for Sri Lanka was included under the sovereignty of the British crown. The most important statute in this context is the Crown Land (Encroachment) Ordinance of 1840, which sets the basis for the regulation of all state lands.
This ordinance, first enacted in 1849 and revised thereafter to its latest form in 1949, gave the crown the right to take over any uncultivated land and to grant, sell, or lease such lands to individuals or institutions “for any purpose which the Governor General may approve”. As such, all forest, waste, unoccupied, or uncultivated lands (the majority of which were located in the country’s Dry Zone) were presumed to be Crown property until the contrary was proved.
The legal situation created by this ordinance is of extreme importance, since it identifies and delineates certain portions of lands in Sri Lanka as “crown lands” (later styled as “state lands”). The legal frameworks that govern these “crown lands” are very different to the usual laws that govern land ownership, commonly referred to as “Fee Simple Absolute in Possession” (FSAP).
FSAP lands give their owners the right to divide, distribute, lease, or alienate these lands in any manner of their choosing; in other words, their ownership is largely unencumbered. Crown lands, in contrast, operate according to a different set of rules and impose severe limitations on the occupier.
Moreover, the legal framework arrived in the form of the Land Development Ordinance of 1935, which reflects the increasing concern for improving the position of the peasant cultivator.
For the first time, the government sought to alienate crown lands to several classes of settlers, most notably cultivators. It should be noted that the legal principles that underlie the creation of SSLS all stem from the framework created by this ordinance, as SSLS are, in fact, a variety of crown lands alienated to a specified class of persons.
As such, ownership of these lands is replete with various encumbrances: The land “cannot be sold, leased, or mortgaged, either in part or whole, without the written consent of the government agent”. If a grantee fails to abide by any of these encumbrances, the grant/permit of the land parcel could be cancelled.
Another notable finding in relation to the Land Development Ordinance is that it gives the government agent (acting on behalf of the crown) the right to impose any additional conditions to the piece of land being alienated (in accordance with Sections 35, 37, and 48A Subsection 1). Thus, it is possible for the state to introduce specific rules to the grantee in relation to the land parcel being alienated.