16th November 1997

Registration of Title Bill draws flak

By Mudliyar


Bar Association President Romesh de Silva paid a glowing tribute to Chandrika Bandaranaike Kumaratunga at the last meeting of the Bar Council. He also paid a compliment to President's Secretary Kusumsiri Balapatabendi. Romesh de Silva said that it was due to the immediate intervention of the President that the Registration of Title Bill, which was on the Order Paper of Parliament, was not taken up for debate.

Mr. Dayaratne, Secretary of the Bar Association, had met Mr. Balapatabendi at a funeral, and had impressed upon him the necessity of immediately convening a meeting of the President and the members of the Bar Association.

Mr. Balapatabendi, before he became the Secretary to the President, was a civil lawyer of repute, and had an extensive practice in the District Court of Colombo and in the Court of Appeal. The members of the Bar Association did not encounter any difficulty in explaining the problems and the fears with regard to the Registration of Title Bill.

It must be said that unlike in the case of the Bail Bill, where the members had failed to express the obvious shortcomings in the Bill and made the Bar Association look guilty of dereliction of a duty towards the public, the Bar took a firm stand against the Registration of Title Bill.

The Bar and the public are fortunate to have as its Chairman, Elmo Perera and Nihal Pieris as its Convenor. Mr. Perera, a senior partner of De Sarams, had been one of those members who were actively involved in the affairs of the Bar Association. The fact that he was a busy practitioner did not prevent him from working tirelessly for and on behalf of the members of the Bar Association. Mr. Pieris is an instructing Attorney who has a wide civil practice. They were willing to bear the brunt of hard work, which one may presume would have given them immense satisfaction. The national trait of being loquacious, lethargic and being critical has not escaped members of the Bar. These members, a rare exception to this rule, worked together in unison as a team to achieve its goals.

The Registration of Title Act is the brain-child of Minister D.M. Jayaratne. It is said that a foreign Government was prepared to give extensive funds to the Sri Lankan Government for the infrastructure development for the implementation of the Registration of Title. The Bill as it is drafted makes it compulsory for any one possessing land to register his name as the owner of that land and obtain a certificate from the Commissioner.

What is the effect of the Registration of Title Act ?

When the Registration of Title Act becomes law, every person who owns land or who has a claim on any land should submit a claim to the Commissioner of Title Settlement. This would mean that if you own land, and if you possess all the documentary evidence, like the title deeds, survey plans, Crown grants or even a partition decree showing that you are the undisputed owner of a particular land, still you will be compelled to state your claim to the Commissioner and request him to register you as the owner of that land.

There may be some distant relative who always thought that he had by some ancestral relationship to the owner's parents and may have with him some old deed showing some interest to the land in question, might prefer a claim to the Commissioner stating that he is the owner. If there is a dispute and if the land is claimed by more than one person such dispute will be referred to an appropriate forum for a determination.

Should the Title Registration be made compulsory or voluntary?

The Bar Association has posed a very important and relevant question to Minister D.M. Jayaratne. They have asked by letter dated 24th September, 1996, why a person who already has a perfect title be made subject to the Bill. It was suggested that the objective of the Act could be achieved under a voluntary system of registration of title. If this Bill becomes law, the Bar contended, many owners, who are in peaceful enjoyment of their holdings will find that sleeping antagonists had been aroused when their land is brought under the law.

After the Act no person could ever go to sleep thinking that he has a perfect title to his land till a determination is made. Sri Lanka has the highest rate of murder in the world. Of these murders almost 75% is in relation to land disputes. If this Act ever becomes law, then anyone who has some land will suddenly be confronted with a number of enemies who are claiming title to land which has been undisputed and in undisturbed possession.

Once the process of compulsory registration begins, the Minister shall by proclamation in the Gazette issue a notice under Section 1 of the Act and direct the Surveyor General to prepare cadastral maps for the area. The Surveyor General is expected to survey every inch of land in the area and draw up cadastral maps. Then the Commissioner of Title Settlement will call and receive claims of land depicted in the cadastral maps surveyed and prepared by the Surveyor General.

Once the Commissioner of Title Settlement receives claims from the parties, he shall then cause an investigation to be conducted to determine the genuineness or otherwise of the claims made. This would effectively mean that though a person had been the undisputed owner of land, he has to prove his claim to the Commissioner and negate the claim of any rival who has been having delusions about his title to the property. If another person claims to be the real owner of the said land, the Commissioner of Title Settlement will make an inquiry.

A rival claimant will have to make representations to the Commissioner of Title Settlement, and show that he has a better claim than the other. If the Commissioner of Title Settlement cannot come to a conclusion, he may refer any such dispute to the Mediation Board. If one party is not satisfied, and the matter is not settled before the Mediation Board, or the party against whom an order has been made, being aggrieved of such order may invoke the jurisdiction of the District Court. The District Court may direct additional surveys and the expenses will have to be borne by the claimants. Thereafter the Commissioner of Title Settlement will publish the determination and a schedule will be prepared and despatched to the Registrar of Title for registration.

With the present problem in relation to the laws delays in the District Court and in the higher Courts, the Bar Association very conservatively estimates that the procedure referring to a dispute to such an institution will take up to 10 to 15 years.

A heavy burden would be imposed on claimants to adjudicate some title which was not in dispute. A person who had absolute and straight forward claim to ownership of a land, might be saddled with others who would want to engage in a voyage of discovery with the assistance of the Commissioner of Title Settlement to probe whether he has any title to that land or not.

The net result would be that there would be additional litigation in the District Courts to determine title, which may have been determined before by the District Court itself. Minister Jayaratne in his ebullience is supposed to have told the Members of Parliament that 80% of the cases pending in civil courts relating to land would be settled within a few months of the Act coming in to force. Any reasonable man would observe that the District Courts once burdened with matters referred for settlement could increase its workload 10 to 15 fold and clog the District Court and impose a heavy burden on the Judges and the law's delays worsen to such an extent that people will lose faith in the administration of justice.

Preparing the Cadastral Map

The Minister is believed to have observed that the Surveyor General will be in a position to make cadastral maps within a very short period and that the Survey Department will be equipped with all modern gadgetry to make this project feasible. What the Minister fails to understand is that even if the donor countries are prepared to give us a satellite, which is used exclusively by the NASA and other space stations to take photographs of the objects on the ground which would enable their supersonic bombers to hit at the enemy targets accurately, and the satellite pictures are transferred to base station computers, yet human beings will have to manually survey the land and input the results into a computer to get a fair picture of the land in a particular area.

This highly sophisticated equipment and technology would cost millions of US Dollars and no donor country would be prepared to give so much money to implement the Registration of Title Act. Basically whatever the Surveyor General has to say the surveyors have to survey the land and prepare plans according to the survey. Minister Jayaratne is a veteran politician, and like all such politicians loves, at times, to contradict his position to suit the occasion. Not very long ago it was the same Minister, moving an amendment to the Land Development Ordinance, who eloquently expressed his feelings in alluding reasons for the repeal of provisions which made it mandatory for the department to hand over survey plans along with the deeds to the recipients of land under the "Swarnabhoomi" Scheme. According to the Minister, if the land has to be surveyed and plans to be prepared so that the grant be made legal it would take 14 years to do so.

In order to implement the compulsory Registration of Title to land a cadastral map must be made by the Surveyor General and the Bill contemplates the registration of title to land in accordance with such a map. The State would then be called upon to provide a survey of the whole country. Whether wholly or originally, such survey should contain all details of each parcel of land so that every such parcel could be identified without any uncertainty for the purpose of establishment to title of such land. The survey fees have become prohibitive like the lawyer's fees. It is beyond the imagination of anyone how much expenditure would be incurred by the State in order to survey the entirety of Sri Lanka and prepare a survey which would identify every single block of land. The preparation of such a Cadastral map would be a phenomenal task and the cost at the end of the day would be beyond the estimates prepared. If according to the Minister it would take 14 years to survey allotments made to peasants under the Land Development Ordinance, how long would it take to survey the entire country?

If the Surveyor General by some magical feat accomplishes the task of preparing the Cadastral map in time, then after the inquiries The Commissioner of Title Settlement would grant two classes of title, first class based on ownership, the second class certificate based on possession. The resultant position would be a battle between the absentee landlords who have never even stepped on to their land, and the peasants who had been living on those lands for a number of years, but who have no documents to prove.

The landlords will necessarily win the battle and the peasants would be thrown out of their land by these absentee landlords. The title of the poor peasants who had been tilling the land and keeping it productive for a number of years by sheer dint of hard work would be deprived of their land. As the only claim of the peasants for title for land is based on continued occupation, they will be confronted with absentee landlords who had in their Walauwas and inside their "pettagamas" title deeds which would under the Registration of Title Act enable them to become owners and dispossess the poor peasantry who had been living in these lands for a number of years.

This Government which came to power promising to protect the poor from oppression by the rich and the mighty could it now justify an action where absentee landlords are given a privileged position as against millions of peasants.

As it stands today the determination of the ownership of a person to land would ordinarily be decided by Courts; but under this Bill such determination will be made by officers appointed by the Minister. Obviously these officers will have far reaching powers to determine the ownership and title to land worth millions of rupees.

The intention of the Minister according to what he has expressed was to make titles that are defective marketable, but if the registration of title under the present act becomes law then all good and marketable land with absolutely impeccable title will cease to be marketable for many years until the disputes are determined. This would cause extensive hardships to the general public.

Invalidating grants made under trusts and last wills

Another obnoxious feature of the Bill, is that Section 46 of the Bill prevents a parent from validly creating a Trust in respect of land for the care and benefit of a minor child or a child under a disability, physiologically or physically handicapped. Further Section 54 provides that a declaration in a last will to make a person owner of an undivided share, will have no legal effect. If a person leaves by his last will a property to only two children and disinherits the other, Section 54 will render the declaration a nullity and would pass the land to all his children and to his all interstate heirs. The intention of the testator that the land in question should be made only available to his two children will be negated.

The Registration of Title had not been made compulsory even in rich countries like Great Britain.

If due to the determination of a Minister who had been misled by his officials the Registration of Title Bill is permitted to become law, there would be chaos and pandemonium in the country. The backbone of the PA vote bank is found among the rural peasantry. They would be the most affected by this Act. Our peace and quiet would be disturbed, passions would be aroused.

In a country where people commit murder for not being able to stake a claim to an arecanut tree, they would unhesitatingly kill each other as the only land they had would be under a threat by enemies who would present a claim with the Commissioner of Title Settlement requesting him to make them the owners of such land to which they had no title at all.

I believe that eventually saner counsel would prevail, and the memorandum of the Bar submitted to the Members of Parliament and to the President has enumerated hundreds of reasons why this Government should not implement such drastic proposals which have come as a foreign funded monster to our country. We must have the strength of our convictions to say no to any foreign agency which recommends laws to us which are not even suitable in their own country.


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