By Kishali Pinto-Jayawardena, Jayantha de Almeida Guneratne & Radika Guneratne

Published September 30^th 2013, Law & Society Trust, Colombo

Excerpts from the Executive Summary and Introduction

An  extra – legal   parallel  regime  that  is  in  operation reveal the manner in which,  on  the presentation  of  bogus  deeds coupled with brute force,  owners  of  land  possessing  prima  facie  valid  deeds  are  being  told  to  vacate  on the  strength  of  such  bogus  deeds,  and  ad  nauseam.   This plight is being particularly faced by Tamil and Muslim citizens due to the militarization of the North and East in the post-war years. Those who  had  been  compelled  to  vacate  their  lands  during  the  war  are  now  faced  with  frauds  that are  perpetrated  on  them by persons possessing political influence and power. In the Southern regions meanwhile, the poor and marginalized Sinhalese citizenry is pitted against the might of a pronounced State policy centered on the acquiring of private properties citing an urgent public purpose and in many cases, selling them to private companies thereafter for hotel development.

Possessing rights to land is an indicator which demonstrates an individual’s socio-economic, political, cultural and ethnical identity, signifying an emotive and highly symbolic value in respect of the construction of that identity. Post-war Sri Lanka has seen major scale development with the influx of local and foreign capital, particularly in the former war affected areas. Yet political motivations compelling acquisitions/evictions have led to tensions within communities. A careful analysis of the Sri Lankan experience clearly demonstrates a pattern where regardless of the law, government power is increasingly being used in order to acquire land for development purposes or (as in the North and East) in the context of militarisation. High Security Zones and forced acquisition by the military continues to be a pertinent concern in the North and East, years after the ending of war. [1]

The absence of transparency in the functioning of state organs in regard to acquisition/eviction procedures has resulted in the process becoming less participative and clearly arbitrary. In order to establish a democratic system, amendments that empower the persons affected to have a greater say in the acquisition/eviction process and in the resettlement, compensation and rehabilitation process subsequent to the acquisition/eviction are necessary. The lack of transparent procedures is seen most evidently in the former war affected regions of the North and East with the resulting impact most felt by tenants without security of tenure, women and children who do not have title documents to land and marginalised ethnic groups.

From a comparative perspective, it may be relevant to note that for around a century, colonial land acquisition legislation in India was not accompanied by corresponding legally enforceable resettlement and rehabilitation norms. Today, there is a drafted bill pending before the Indian Parliament that concerns resettlement and rehabilitation. Nepal too has no concrete law concerning rehabilitation. In Sri Lanka, ministry bodies and task forces vested with the pre-eminent duty to provide a equitable framework for resettlement of internally displaced persons, do not perform satisfactorily.  Much like India and Nepal, Sri Lanka too requires a separate law governing resettlement and rehabilitation which, in addition to being comprehensive, must also be period-neutral so as to be pertinent even to acquisitions that take place in the future. In order to make this process more accurate, a social impact assessment, in addition to the environmental impact assessment should be made mandatory.

Justice indeed must be done according to law.  Granted, the  State  is  entitled  to  make  inroads  to  that  concept  in  the  larger  public  interest  for  purposes  of  development  as  against  a  private  land owner’s  right  to  property. But as this Study asks,  is  justice  currently being done  according  to  law  in  the  context  of  state practice in regard to the wholesale acquisition  of  privately  owned  land which is a phenomenon most apparent in the formerly war affected areas of the North and East? The same question applies in regard to hasty evictions from state lands occupied by individuals whose families have been living in those lands for generations. This trend is now seen in rural communities in the Uva, Central, Southern Provinces as well as parts of the Western Province.

What indeed is contemplated by the concept of sustainable development?  Would  that  concept  be  satisfied  if  a  landowner  is  required  to  vacate  his/her  land  without  first  being  at  least  monetarily  adequately  and  reasonably  compensated?  While  the  more  privileged  enjoy  expressways  should  the  less  privileged  live  in  hope  that  someday,  they  could  be  compensated  for  their  lost  lands  and  residing  houses?  Should  the  said  less  privileged,  marginalized  per se  be  kept  to  their  fate,  further  surrendering  their  fate  to  State  action  with the real risk that the State would submit  that  it  has  no  financial  resources  in  the  state  coffers  to  compensate  them  for  their  lands?

Moreover, the impact of recent government-led initiatives in regard to post-war development is worrying. The general thrust of the National Physical Plan (approved on 03/07/2007 by the National Physical Planning Council chaired by the President as per Section 3 (1) of the Tourist Country Planning (Amendment) Act No 49 of 2000) to be implemented over a period of 20 years (2011-2030) forms an important part of these concerns. Acts such as the Tourist Development Act No 14 of 1968 read with the Strategic Development Projects Act, No.14 of 2008 as amended by Act No.12 of 2011 are particularly pivotal. Used very frequently in the formerly war affected areas, these laws enable the acquisition of properties of private landowners without prior payment of compensation, for strategic development purposes such as the development of tourism. When compensation for such acquired land is claimed against the State, where a considerable period of time may have also ensued, the State may well submit, that, the Treasury has said and the Cabinet of Ministers has expressed regret that, there are no funds to defray such compensation.  Would the judiciary in the country be able to compel the State to pay such compensation? The answer to such a question (going by recent judicial precedents) appears unfortunately to be in the negative.

This accentuates  the  theme  pursued  in  this  Study as to how  a  segment  of  society  would  be  rendered  marginalized in the formerly war affected areas of Sri Lanka as well as in other parts of the country where the Government’s development thrust is prioritized at the expense of the individual right to property and land. This may very well lead to such marginalized persons in society revolting against what they see rightly as supreme injustice. Such an eventuality must be prevented at all costs by appropriate legislative and policy reform implemented as a matter of urgency.

Constitutional Protections and Legislative Guarantees

The Constitution of Sri Lanka does  not  recognize  the  right  to  own  land  as  an  expressed  fundamental  right. However, an acquisition  by  the  State  may be challenged on  the  ground  of  arbitrary  action  postulated  by  the  concept  of  the  Rule  of  Law,  flowing from  the  right  to  equality under Article 12 (1) of the Constitution. But, there is a rival thinking which proceeds on the basis that a landowner’s  fundamental rights application  can only succeed on  the  basis  of  the  fundamental  right  violation if  he / she  is  able  to  show  particular  discrimination  as  against  another  equally  circumstanced landowner who has been treated differently and with more favour.  An  acquisition  could  also be  challenged  under  Article  140  of  the  Constitution  through  an  application  for  an  order  in  the  nature  of  a  Writ  of  Certiorari,  prohibition  and / or  Mandamus  on  the  basis  of  the  well  known  doctrines  of  ultra – vires  ( substantive  and  procedural )  and  error  of  law  on  the  face  of  the  record  in  Administrative  Law,  subsumed  in  the  later  established  doctrines  of  illegality,  irrationality,  proportionality  and  procedural  impropriety,  acknowledged  by  the  Sri  Lanka  judiciary. There  is  remedy  by  way  of  a  declaratory  action  that  it  is  not  liable  to be  acquired  in  terms  of  Section  217 (G)  of  the  Civil  Procedure  Code.  But such a  course  of  relief  would  be  hardly  expedient  on  account  of  the  fact  that,  a  landowner  is  not  entitled  to  institute  action  to  prevent  his / her  land  being  acquired  through  injunctive  relief  in  view  of  the  Interpretation  (Amendment)  Act,  No.18  of  1972  read  with  the  Amendment  Law  No.28  of  1974.

Our appellate  courts  have  consistently  held  that,  when  the  Minister  of  Lands  declares  by  Gazette  under  the  provisions  of  the  Land  Acquisition  Act  that,  any  land  is  required  for  a  public  purpose,  such  executive  fiat  cannot  be  questioned  in  any  court. This has been departed from by the higher judiciary  only in addressing  a  procedural  aspect  wherein  the  Supreme  Court  has held  that,  the  public  purpose  reflected  in  the  gazette  in  question  must  be  stated.

Acquisition of Private Lands

There were many statutes enacted to deal with Land and which made provision for the issuing of permits, grants, licences, etc since the 19th century. Currently, Lands are acquired by the State using the Land Acquisition Act and the Urban Development Authority Act. The  Minister  of  Lands is  empowered  to  acquire  a  privately  owned  land  under  the  Land  Acquisition  Act while the President  of  Sri  Lanka  could  sanction  an  acquisition  under  the  Urban  Development  Authority  Act. There are  other  statutes  impacting  on  the  said  principal  statutes including the  Provincial  Council  Act and several  statutes  in  the  context  of  local  government  namely, the  Municipal  Councils  Ordinance, the  Urban  Councils  Ordinance,  the  Pradeshiya  Sabha  Act. To  these  may  be  added  several  statutes  where  statutory  authorities  may  require  to  acquire  a  privately  owned  land including  line  Ministries  which  may  propose  to  acquire  privately  owned  land  for  stated  purposes  of  education,  (for  school  development);  health  (for  the  purpose  of  putting  up  a  hospital) etc.

The requirement of any private property being required for a public purpose and the payment of “just compensation” operate as conditions precedent to the actual “taking’ of a private land by the government (or State). The Land Acquisition Act of Sri Lanka confers power on the Minister to set in motion the exercise of acquiring private land for “a public purpose’ by merely declaring that by gazette notification he is empowered to state that, a private land is required for a ‘public purpose”.  The Act does not require the Minister to state the public purpose for which such private land is required. In a series of decisions of the Appellate Courts of Sri Lanka discussed in the study it had been consistently held that, the Minister is not obliged to state ‘the public purpose.’

The overall  pattern of  how  privately  owned  land  is  being   acquired  by  State  authorities  reveals that,  on  the presentation  of  bogus  deeds coupled with brute force,  owners  of  land  possessing  prima  facie  valid  deeds  are  being  told  to  vacate  on the  strength  of  such  bogus  deeds  ad  nauseam.   This plight is being particularly faced by Tamil and Muslim citizens, due to the militarization of the North and East, in the post-war years. Those who  had  been  compelled  to  vacate  their  lands  during  the  war  are  now  faced  with  frauds  that are  perpetrated  on  them by persons possessing political influence and power. In the Southern regions meanwhile, the poor and marginalized Sinhalese citizenry is pitted against the might of a pronounced State policy centered on the acquiring of private properties citing an urgent public purpose and in many cases, selling them to private companies thereafter for hotel development. Administrative practice discloses several instances where the Urban Development Authority (UDA) as well as local authorities have acquired private land ostensibly for the purposes of urgent public purpose but thereafter used the land so acquired to construct hotels

The Board of Investment of Sri Lanka established by Law No.4 of 1978 is conferred with the power to identify, in consultation with the relevant line ministries, proposed strategic development projects.[2] Buttressing this provision is the Strategic Development Projects Act, No.14 of 2008. Development in the national interest per se to the exclusion of private rights is not what is required by good governance and the Rule of Law. A balance ought to be struck. “Sustainable Development” is what is required. The land so acquired for a tourist development project as being a Strategic Development Project may well have been land that the private owner might have been using for business purposes which he/she would find deprived of.

Evictions from State Lands

The Study discusses how evictions from State Lands have been approached by the State and the Courts under the various statutes applicable to State Land i.e. the Forest Ordinance, the Irrigation Ordinance, the State Lands Ordinance, the Land Development Ordinance, the Land Resumption Ordinance and the State Lands (Recovery of Possession) Act. A recommendation is also made to the government to set in motion the Land Resumption Ordinance with suitable amendments particularly in regard to the time limits contemplated in the present Section 2(1), ideally, by the enactment of new legislation titled “The Land Resumption (Special Provisions) Act” to deal with the situation that arose some thirty years ago due to the conflict.  Under the State Lands (Recovery of Possession) Act once the competent authority forms an opinion that, the land in question is state land and the person in occupation or possession is in unauthorized occupation or possession, the magistrate would have no option but to order the ejectment of such person unless, the person is able to show that, he is in occupation or possession under a permit or some written authority.

Much of the case law in this regard relates to who would be viewed as a ‘competent authority’ and what would constitute ‘unauthorized occupation or possession’. Two important cases discussed in this regard are Senanayake v. Damunupola and Karunawathie Jayamaha & others v. Janatha Estate Development Board & Others.

Other ancillary statutes that deal with State Lands include The State Landmarks Ordinance, the Definition of Boundaries Ordinance, The Land Surveys Ordinance and the Requisitioning of Land Act.

Governmental Policies and Initiatives

The Government has in the past made many attempts to formulate a National Lands Policy. But, discussions on a national lands policy have generally been to the exclusion of the very persons whose rights are directly in issue; namely, those with rural agricultural livelihoods, primarily farmers who are currently permit holders of restricted land grants. The 2001 Draft Land Use Policy, (while acknowledging that land is one of the most fundamental resources necessary for human beings to survive) demonstrated specific problems particularly in relation to enhancing the role of the Private Sector in land resources development, giving priority thereby to quick profits rather than sustainability and local needs of food security. This proposed Lands Policy was abandoned due to objections being raised by land rights advocates on the basis that the creation of a free land market was incompatible with the objectives of meeting human needs and of sustainability of rural agricultural livelihoods.

In 2001, the Government adopted a National Involuntary Resettlement Policy to address the gaps with regard to resettlement in the Land Acquisition Act.  The policy aimed to avoid, minimize and mitigate the negative impacts of involuntary resettlement. This policy though having remarkable provisions especially on providing compensation has rarely been used during the acquisition process. In 2007, the Government adopted a National Physical Plan for its developmental projects. But, for all these projects and the development drive, the State would surely need land and the available land resources at the disposal of the State would certainly not be adequate. Those owners and/or occupiers of land would inevitably be affected.

The Impact of Devolution

In 1987, Parliament passed the 13th Amendment to the Constitution and followed it with the enactment of the Provincial Councils Act No. 42 of 1987 and the Provincial Councils (Consequential Provisions) Act No. 12 of 1989. The ninth schedule to the 13th Amendment made an explicit constitutional demarcation of the spheres of authority of the centre and the constituent units or ‘Provincial Councils.’

The 13th Amendment made express provision that, in the case of all matters set out in the Provincial Councils List, no bill presented to Parliament shall become law unless approved by all Provincial Councils or by a special majority in Parliament, with or without a referendum as the case may be. Insofar as lands were concerned, the President of the Republic is constitutionally vested with the power to “make such grants and dispositions of land and immovable properties vested in the Republic.”[3] Appendix 11 to the Provincial Councils List details rights in or over land, land tenure, transfer, alienation of land, land settlement, land use and land improvement. Item 18 of List 1 of the Ninth Schedule (the “Provincial Council List) Appendix 11 prescribes that;

“alienation or disposition of state land within a Province to any citizen or any organisation shall be by the President on the advice of the relevant Provincial Council in accordance with the laws governing the matter.” (Vide section 1:3 of Appendix 11)

Though the 13th Amendment made provision for a National Land Commission, (the constitution of which includes members of Provincial Councils) which was empowered to formulate a National Lands Policy, this has not been established up to date. In particular instances, the interplay between the dual authority bestowed in respect of matters concerning lands on both the Centre and the Provinces has resulted in increasingly complex legal dilemmas. Two instances where this was seen relate to the Determinations of the Supreme Court with regard to the Lands Bill (2003) and the Amendment Bill to the Town and Country Planning Ordinance (2011) both in which the Court ruled that consent from all Provincial Councils would be required to pass the relevant Bill which respectively dealt with matters coming within the purview of the Provincial Councils.

On 26 September 2013, a three member Bench of the Supreme Court handed down three separate opinions concurring that the Court of Appeal had erred in law in holding that the Provincial High Court had jurisdiction under the 13^th Amendment and the consequent High Court of the Provinces (Special Provisions) Act, No 19 of 1990, to quash by way of a writ of certiorari, a quit notice issued under the State Lands (Recovery of Possession) Act, No 7 of 1979 (as amended). The judges agreed that the devolution of state land to Provincial Councils was subject to State land continuing to be vested in the Centre and that the power of the President to make grants and dispositions of state land continued to be unaffected. The Provincial Councils would only have the legislative competence to administer, control and utilise state land once those lands are made available to the Provincial Councils by the Centre.

The ensuing divergence in judicial views, with two judges specifically disagreeing with the  Determination of the Court in the Lands Bill (SC Nos 26-36 of 2003) in its previous holding that the power of disposition by the President in terms of Article 33(d) had been ‘qualified’ by Section 1:3 of Appendix 11, highlighted yet unresolved fundamental ambiguities inherent in the 13^th Amendment in regard to the nature, extent and reach of devolved powers concerning land.

Case Studies

This Study comprises of case studies from the Northern, Eastern, Central, Uva, Western and Southern Provinces buttressing the overriding theme of this exercise which is that people from almost all parts of Sri Lanka have faced issues with regard to the acquisition of their lands by the State. In the North and East, the issue of High Security Zones (HSZs) established during the war and now evolved into military strongholds, impacts negatively on the livelihoods of the owners of the lands situated in the HSZs. These HSZs have resulted in lands being taken away from their legitimate owners with little or short notice. Even those who possessed legal documents of their lands and homes that were taken over for HSZs have not been provided with legal remedies.

In Sampoor, in the Trincomalee District land previously designated as an HSZ is now being used for a new coal power project initiated in collaboration with India. Other lands in the East are also being taken for newly designated Special Economic Zones. In Thiriyai, a mainly Sinhala populated village the government is refusing to let many villagers who had been displaced due to the war return on the pretext of claims by the Forest Department to their lands as well as the claim of a sacred area in that area.

In the Batticaloa District, Pavachikudiyena or Paduvankarai which was earlier under LTTE control and fully Tamil populated, Muslims who had been chased away or fled during the conflict are now returning to their lands but the Tamils who are currently in occupation of those lands are unwilling to return them. This has created much tension between the communities. In the Ampara District, in Panama the mostly Sinhalese villagers around the area have lost their lands to armed groups who have attacked and evicted them from their lands. Government authorities to whom they have complained have not taken any action. In Olvuil, people have lost their lands for the construction of a commercial port. At the same time in a village called Kesankerni (Ashraffnagar) the inhabitants are being deprived of their land for the establishment of a military camp in the area.

Similarly in the Northern Province, meetings with villagers confirmed that even outside the so-called High Security Zones (HSZs) the SL military has appropriated acres of land in the peninsula from civic bodies and private owners. It is a somewhat unique phenomenon that members of local government bodies have been threatened in the process. In Karainagar for example, the SL Navy has appropriated lands from the local government bodies. Other targeted areas are Point Pedro and Valikaamam North. Recently (April 2013) a notice by the Land Acquiring Officer for Jaffna acting upon the instructions of the Minister of Land, was issued which stipulated the acquisition of a vast tract of land (6381 acres, 38.97 perches) within the Tellipalai HSZ in Valigamam North for the purported reason of building a Defence Battalion Headquarters [Jaffna]. More than 2000 affected landowners have filed fundamental rights and writ petitions in Court contesting this purported land grab.

In the Southern Province, land has been acquired for many developmental projects including the newly established Mattala Airport and the Hambantota Port. Furthermore, the designation of Hambantota as an economic zone and the special projects being undertaken there make it inevitable that much land will be acquired for these purposes. Discussions with parties in the South including affected villagers show that much of the development work is being done without proper planning or impact assessment. Circumstances also show that the affected parties have been given inadequate compensation and not granted hearings according to the law.

In the Uva Province, the Uma Oya multi purpose project has given rise to many concerns re the impact on livelihood of the persons. The impact of the project will be felt by three different types of people; namely the people who are directly displaced; people who live in the downstream of Uma Oya who will suffer water shortages and the people who are living in the areas where the earth will be made unstable due to the tunneling process. The aim of development is to enhance the living standards of the citizens of the country and those who are affected by development activity should be helped to achieve a better standard of living. Discussions with affected communities show that those who are due to lose their lands and livelihood due to the Uma Oya project are to be resettled in areas which are completely alien to them and which are unsuitable for their livelihoods.

In the Central Province, in Dambulla, the declaration of a Sacred Area within the town led to many landowners being sent quit notices. There after again land was to be acquired for the establishment of an urban development area but there has not been any such development activity taking place and they were told that steps would not be taken to acquire the land. But, suddenly in 2012 they were told to hand over their lands for the purpose of a ‘sacred area development project’.

In Negombo, in the Western Province there has been a remarkable increase in the un-authorised filling up of ‘lagoon lands’ by persons having political patronage with the result that the natural flow of water to long standing occupied residencies are being interfered with. Land officers are helpless in this situation. Meanwhile, several local politicians have been directly accused of acquiring vast tracts of land in the Kadol Kele which is a mangrove forest belt spanning on a 36-acre strip along the Negombo lagoon, historically identified as a marshy land rich in bio diversity.

It would appear that Sri Lanka’s public authorities (no doubt subjected to enormous political pressure in many instances) are not adhering to stipulated legal procedure in regard to the acquisition of land. Even if the occupied lands were state lands held under permits such as the Land Development Ordinance or the State Lands Ordinance, still those occupying the land for generations would have been entitled to notice. Moreover, private lands are being taken over, apparently without any recourse being had to the provisions of the Land Acquisition Act[4] or even the Urban Development Authority Act.[5] The legal procedure followed seems to have been adopted ignoring the provisions of the Land Acquisition Act. The provisions relating to providing notice and the payment of just compensation seem to have been flouted completely.

Constitutional and Statutory Provisions

The Constitution of Sri Lanka  does  not  recognize  the  right  to  own  land  as  an  expressed  fundamental  right. However, an  acquisition  by  the  State  may be challenged on  the  ground  of  arbitrary  action  postulated  by  the  concept  of  the  Rule  of  Law,  flowing from  the  right  to  equality under Article 12 (1) of the Constitution. Although this development  forms  part  of  the  jurisprudence  of  the  country,  in  the  context  of  the  right  to  equality  in  general  applied  to  the acquisitions  of  land  as  well, a rival  school  of  judicial  thought  that bases  the  right  to  equality  on  the  “equally  circumstanced”  doctrine still persists, as would be discussed later. This rival thinking proceeds on the basis that a landowner’s  fundamental rights application  can only succeed on  the  basis  of  the  fundamental  right  violation if  he / she  is  able  to  show  particular  discrimination  as  against  another  equally  circumstanced landowner who has been treated differently and with more favour.

Apart  from  that,  an  acquisition  could  be  challenged  under  Article  140  of  the  Constitution  through  an  application  for  an  order  in  the  nature  of  a  Writ  of  Certiorari,  prohibition  and / or  Mandamus  on  the  basis  of  the  well  known  doctrines  of  ultra – vires  ( substantive  and  procedural )  and  error  of  law  on  the  face  of  the  record  in  Administrative  Law,  subsumed  in  the  later  established  doctrines  of  illegality,  irrationality,  proportionality  and  procedural  impropriety,  acknowledged  by  the  Sri  Lanka  judiciary.  The  doctrine  of  reasonableness  established  in  the  English  Law was also  absorbed  into  our  legal  jurisprudence  as  an  extended  arm  of  the  doctrine  of  ultra – vires,  subsumed  in  the  subsequently  developed  doctrine  of  Proportionality.

Finally, by  way  of  remedies  open  to  a  landowner  whose  land  is  proposed  to  be  acquired  by  the  State,  there  is  remedy  by  way  of  a  declaratory  action  that  it  is  not  liable  to be  acquired  in  terms  of  Section  217 (G)  of  the  Civil  Procedure  Code.  But such  a  course  of  relief  would  be  hardly  expedient  on  account  of  the  fact  that,  a  landowner  is  not  entitled  to  institute  action  to  prevent  his / her  land  being  acquired  through  injunctive  relief  in  view  of  the  Interpretation  (Amendment)  Act,  No.18  of  1972  read  with  the  Amendment  Law  No.28  of  1974. This  explains   why  an  aggrieved  landowner  will not be inclined  to  pursue  that  remedy  but  would rather  opt  to  pursue  an  application  by  way  of  fundamental  rights and / or  by  way  of  an  application  for  an  order  in  the  nature  of  Writ  under  Article  140  of  the  Constitution.

Thus, although the constitutional  regime  provides certain remedies to an  affected  landowner, the  jurisprudence  evolved  through  years  have  set  even those slim reliefs largely at  nought, apart from some notable exceptions.  This paper discusses these decisions in full in succeeding segments but developments thereto may be summarized at this point. First,  our  appellate  courts  have  consistently  held  that,  when  the  Minister  of  Lands  declares  by  Gazette  under  the  provisions  of  the  Land  Acquisition  Act  that,  any  land  is  required  for  a  public  purpose,  such  executive  fiat  cannot  be  questioned  in  any  court. This has been departed from by the  higher  judiciary  only in addressing  a  procedural  aspect  wherein  the  Supreme  Court  has held  that,  the  public  purpose  reflected  in  the  gazette  in  question  must  be  stated. In  effect  therefore,  the  Minister’s action,  by  a  subsequent  Gazette, to state  the  public  purpose, was ruled as not proper. [6]

On the other hand, the  Court  of  Appeal  has held  that,  although,  the  gazette  fails  to  disclose  the  public  purpose, such may be inferred  from  correspondence  between  the  affected  land owner  and  the  authorities. Thus, if there  was  no  doubt  as  to  the  purpose  for  which  the  land  in  question  was  proposed  to  be  acquired,  the  procedural  flaw  would  stand  circumvented on  the fact that no prejudice is deemed to have been caused to the landowner.[7] These decisions will be discussed in full later.

In the background  of  the  aforesaid  divergent  attitudes  in  the  context  of private  land  proposed  to  be  acquired  by  the  State,  judicial advances have been few. In one interesting instance however, the  concept  of  sustainable  development  was acknowledged by the Supreme Court in  the  context  of  acquisition  of  massive  expanses  of  land  for  the  construction  of  the  Southern – Expressway,  where  thousands  of  villagers  were  rendered  landless.[8] In that case, the  Supreme  Court  was  reluctant  to  quash  the  acquisition  which  was  found  to  be  flawed  procedurally  thus,  upholding  in  effect, the  State’s  action  to  launch  an  expressway  as  against an individual’s  right  to  property. However, it modified  the  Court  of  Appeal  ruling  in  decreeing  that,  compensation  must  be  paid  to  the  landowner   (the  petitioner in  the  case),  who  had   resisted  vacation  until  then  and  who  eventually  vacated  only  upon  compensation  being  paid  on  the  strength  of  the  ruling  of  the  Supreme  Court  on  a  subsequent  order  of  the  Court  of  Appeal.

This instance illustrates  the case of a  landowner,  who  had  the  financial  resources to  challenge  State  action  in  acquiring  her  land  and who  ultimately  was  able  to  obtain  monetary  compensation  from  the  State  before  vacating  her  privately  owned  land. But what  about  those  people  marginalized  in  society  for  want  of  financial  resources  who  have  had  to  vacate  their  lands  along with  residential houses  and are  unable  to  challenge  the  acquisition  for  that  reason  without  any  compensation  for  their  expropriated  land  before  vacating?

Where statute law is concerned, one speaks today of permits, grants, licences etc. given under statutes such as the Land Development Ordinance, State Lands Ordinance etc. re: agricultural activity. The origins of this system go back to the 5^th Century B.C in regard to land grants given for services rendered to the King (owner of all State Lands). Grants were given with financial support to people to construct private reservoirs, a tax however being imposed. Ownership of tanks was also permitted.[9] The owner of the tank was allowed to levy a fee from those who utilized the waters of such tanks. After some setbacks owing to the advent of the South Indian rulers, the system was restored by the British Proclamation of 1800.[10] The ancient system gradually came to be regulated by loose practices developing into customs later. It is those customs that today stand further regulated by the several statutes that has formed a major part of the Study in question. The major portion of land was held by people under Service Tenures testifying to the tenant – cultivation regulatory system that exist today; ownership of lands by private persons was subject always to the acquisition by the State for public purposes.

In the present-day context, there  are  two  principal  statutes  in  pursuance  of  which  a  privately  owned  land  could  be  acquired  by  the  State  viz  the  Land  Acquisition  Act and  the  Urban  Development  Authority  Act. While  it  is  the  Minister  of  Lands  who  is  empowered  to  acquire  a  privately  owned  land  under  the  Land  Acquisition  Act,  the  President  of  Sri  Lanka  could  sanction  an  acquisition  under  the  Urban  Development  Authority  Act.  There  are  other  statutes  impacting  on  the  said  principal  statutes including the  Provincial  Council  Act and several  statutes  in  the  context  of  local  government  namely, the  Municipal  Councils  Ordinance, the  Urban  Councils  Ordinance,  the  Pradeshiya  Sabha  Act. To  these  may  be  added  several  statutes  where  statutory  authorities  may  require  to  acquire  a  privately  owned  land including  line  Ministries  which  may  propose  to  acquire  privately  owned  land  for  stated  purposes  of  education,  (for  school  development);  health  (for  the  purpose  of  putting  up  a  hospital) etc.

However, the  point  to  make  is  that,  any  such  proposed  acquisition  must  receive  the  sanction  of  the  Minister  of  Lands  under  the  Land  Acquisition  Act  in  the  generality  of  cases  and  in  specific  contexts,  the  sanction  of  the  President  under  the  Urban  Authority  Act. While the  Minister’s  said  power  has  not  been  held  to  be  immune  from  judicial  review,  even  the  President’s  power  itself  has  not  been  regarded  as being  beyond  the  reach  of  judicial  scrutiny,  notwithstanding  Article  35  of  the  Constitution  relating  to  the  concept  of  Presidential  immunity.[11]

While that  may  represent  the  strict  legal  regime,  in  practice, as the  empirical  data reveal, there  is  an  extra – legal   parallel  regime  that  is  in  operation. The  overall  pattern of  how  privately  owned  land  is  being   acquired  by  State  authorities  reveals that,  on  the presentation  of  bogus  deeds coupled with brute force,  owners  of  land  possessing  prima  facie  valid  deeds  are  being  told  to  vacate  on the  strength  of  such  bogus  deeds,  and  ad  nauseam.   This plight is being particularly faced by Tamil and Muslim citizens due to the militarization of the North and East in the post-war years. Those who  had  been  compelled  to  vacate  their  lands  during  the  war  are  now  faced  with  frauds  that are  perpetrated  on  them by persons possessing political influence and power. In the Southern regions meanwhile, the poor and marginalized Sinhalese citizenry is pitted against the might of a pronounced State policy centered on the acquiring of private properties citing an urgent public purpose and in many cases, selling them to private companies thereafter for hotel development.

Conclusion and Recommendations

Granted, laws impacting on the land rights of individuals in Sri Lanka are presently governed by statues dating back more than a 1 ½ century, and therefore perhaps could be described as archaic. Nevertheless, if the political regime is sensitive and functions within a Rule of Law framework, the existing legal framework still carries potential, with appropriate modifications and/or amendments to cater for those who have lost their lands as a result of conflict as well as post-war development in Sri Lanka. Yet the problem in Sri Lanka is the non-adherence of the political establishment which pervades the economic and social rights sphere, as well as more obviously, the civil and political rights spectrum.

A National Land Commission will result in further delays and may not be the ideal solution to address the problem. Rather, looking at the statutory functionaries vested with power in the context of the problem, it would be more expedient, to constitute an ad hoc committee on the initiative of the Minister of Lands (with independent power to act) comprising the divisional secretaries, the Provincial Land Commissioners, the surveyor general as well as representatives of affected communities and land rights advocates  to entertain and inquire into claims of those who have lost (or abandoned) their lands in consequence of militarization or post-war development.

Such inquiries should be conducted sans the insistence of deeds or other comparable instruments or documents in the nature of primary evidence. Secondary evidence must suffice given the background to the problem as articulated earlier in this paper as constituting Prima facie proof of claims in question unless, there are rival claims inter se in which event, after inquiry, the said committee could be advised to refer the matter to the courts for resolution.

In conclusion, these reflections and concerns show the need for special legislation perhaps in the form of and titled a Land Resumption (Special Provisions) statute, taking in the several aspects surfacing, being out of step with the existing provisions of the Land Resumption Ordinance itself read with the State Landmarks Ordinance, the Definition of Boundaries Ordinance, the Land Survey Ordinance and the State Lands (Claims) Ordinance.

It is consequently recommended that, a special law be enacted consolidating the said enactments for which purpose, strong, public awareness initiatives be taken by civil society groups in the public interest to prevail upon the government to do so. Necessary Amendments to Sri Lanka’s Constitutional and Statutory Regime are proposed in this Study which include making the right to property a fundamental right as well as following proper procedure in issuing notice of acquisition and providing for ‘just compensation’. Changes to administrative practice are also recommended.

Most importantly, in view of the fact that thousands of people in the North and East had been compelled to abandon lands earlier possessed by them owing to the war situation and who are now desirous of resuming their possession that special pro – active legislation is enacted on account of present provisions of the Land Resumption Ordinance, the Forest Ordinance and other allied statutes which appear to stand in their way (as analysed in this Study), added to the fact that, new parties are now found to have gained possession or occupation of the said lands as condoned by state authorities. Those displaced thousands have lost whatever documents they may have had earlier in their possession. They must be allowed to establish their earlier possession prior to abandonment by other extrinsic evidence such as through Grama Sevakas’ records, registers of residence, in the absence of which even by oral evidence, acceptable to a court in the event of litigation. Appropriate provisions must be made in such proposed special legislation to that effect.