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‘Bim Saviya’ Title Registration Act’s 24-year reign of chaos 

12 Oct 2022

BY Shenali D. Waduge This article pertains to an open letter addressed to the Additional Secretary to the Ministry of Lands by three attorneys-at-law – Mahinda Ellepola, Elmo Perera, and Nihal Pieris – on 12 April 1998, titled “Registration process to be expedited? Really?”  Their open letter was penned after reading a news item titled “Land registration process to be expedited”, published on 24 March 1998, referring to an interview with Mahinda Kulatunga. Taking the centre stage of discussion was the Registration of Title Act, which had been passed by Parliament on 17 March 1998. The Registration of Title Act is not the Land Title Registration Act. Prior to the Act being passed by Sri Lanka’s Parliament a delegation had gone to Australia on a study tour to familiarise themselves with the Title Registration system in Western Australia, in January/February 1998, a month prior to the Act being passed in Sri Lanka. The delegation comprised officials from the Surveyors Institute of Sri Lanka (two participants), Surveyor General’s Department (three representatives), Registrar General’s Department (two representatives), Legal Draftsman’s Department (two representatives), the Land Commissioner, the Commissioner of Land Settlement, the Deputy Chief Value, and the Additional Secretary to the Ministry of Lands. Participating from the Australian Government were representatives from the Department of Land Administration (DOLA) of Western Australia who organised the study tour. After these key personnel associated with land matters went on a study tour, the Sri Lankan Parliament suddenly passed the Title Registration Act on 17 March 1998, and a week later, on 24 March 1998, an interview with Mahinda Kulatunga and the Additional Secretary to the Ministry of Lands claimed that the land registration process will be expedited.  The three attorneys, in their letter, had highlighted some important points for consideration by the general public. The participants of the study tour (Sri Lankan and Australian), as well as the Additional Secretary to the Ministry of Lands, were unanimous in their opinion that the Bill was defective.  The draft Title Registration Bill had been presented to Sri Lanka’s Parliament in December 1995 (a year after President Chandrika Bandaranaike took oaths as President in November 1994). The Bill did not take into consideration the basic requirements for registration of title to land The Bill if implemented would create chaos and confusion, and increase litigation (exactly what has happened and is happening now). The Sri Lankan delegation, including the Additional Secretary, were unanimous that the issues arising from implementing the Bill could not be remedied by amendments, and that therefore it should not be proceeded with. What does this mean in the present context? The three attorneys questioned the Additional Secretary to the Ministry of Lands, who undertook to convey the unanimous agreement to the Minister of Agriculture and Lands. The attorneys also questioned how the Bill came to be passed when the Additional Secretary undertook to convey the unanimous decision of those who took part in the study tour. The Australian consultant also agreed on the assessment by the Bar Association of Sri Lanka that the Registration of Title Bill, if implemented, would create “chaos and confusion in the community, and inevitably lead to an escalation of land disputes”, and this is exactly what we see happening (refer to Volume 1 of “Land Titling and Cadastral Mapping Project – Sri Lanka – Feasibility Design Study” by the Australian consultant). Thought the Australian Government had agreed to provide Australian dollars (AUD) 350,000 worth of equipment to set up a computerised database to implement Stage 1 of the programme (legislative framework for registration of title to land), given that the Australian consultant claimed the Registration of Title Act was passed against specific counsel, Australian funding was unlikely to be given. Besides, the AUD 350,000 would hardly suffice against the cost Sri Lanka would have to bear for the project. Did Sri Lanka conduct a costing estimate for implementation of the project before the Act was passed? The three lawyers highlighted the cost aspect too – as no quantitative or qualitative assessment of the costs, resources, or time frames had been looked at to register the title system islandwide. The Australian consultant had estimated it would take 35 years and 2,500 staff members (including lawyers and surveyors) to implement the project. Ironically, it has now been 24 years since the Act was passed; only 750,000 lands have been registered over 20 years, out of 12 million owners. The three lawyers challenged the Additional Secretary, who in the 24 March 1998 interview claimed that all State and private lands would be surveyed at State expense, and demanded to know if the personnel and facilities to take on such an exercise were available. The three lawyers claimed that the Minister of Agriculture and Lands brought an amendment in 1995 to the Land Development Ordinance (LDO) because he did not want to wait until plans were prepared to issue Swarnabhoomi deeds, as this may have taken 14 years to do.  The 1935 LDO had a valuable provision that ensured no grant was to be issued under the LDO unless land was surveyed and a diagram was annexed to the grant. This was repealed in 1995. The three lawyers used the assessment by the Minister (taking 14 years to survey land) to question how long it would take to survey all State and private lands in Sri Lanka in order to implement the Registration of Title Act.  What is relevant in 2022 to the citizens of Sri Lanka are the following predictions made by these lawyers in 1998 April: 
  • When the Title Registration Act (Bim Saviya) comes into operation, a person will be able to obtain a title registration certificate for his/her land – a one-page printout
  • Prior to obtaining certificate of title – a cadastral survey and investigation into the title is a must (this negates the claim that a certificate can be given in minutes) 
  • Title deeds will be replaced with the new computerised registration system
  • The new system claims to eliminate delays in registering land and prevent forging title deeds
Western Australia has only one Land Registrar’s Office. They have two centres to collect deeds to register at the Land Registrar’s Office. Thus, how can Sri Lanka maintain computerised offices in 200 divisional secretariats, especially when 39 land registries have been denied the basic needs to carry out their functions? Another pertinent question the three lawyers asked was why land transactions would be recorded by deeds, and how deeds could become a thing of the past in such a scenario. The three lawyers also raised doubts about the new computerised system preventing the forgery of title deeds.  The most important aspect of the open letter was to highlight how a foreign concept was to overrule the law of the land, where there were likely to be instances of the rightful owner’s title to land going to a person who purchased land by fraud and has it included into a computer system, resulting in the rightful landowner restricted to claiming only compensation from a fund set up by the State, as the provision to go to court is denied by the Act. The three lawyers rightfully raised the merit of an Act that has spent time, money, and effort to introduce to Sri Lanka whereby more chaos and confusion would emerge. They suggest instead that the present system of land titling should continue.  The three lawyers rightfully questioned the Additional Secretary, who had also been a participant in the study tour, and having studied the pros and cons of a foreign land system, was in agreement with the rest of the participants that it was not beneficial to Sri Lanka. Having agreed to convey this to the Minister on behalf of the team that went on the study tour, the Additional Secretary instead sang hosannas for the new land system, going so far as to falsely extol its merits.  The poignant aspect of this open letter written  in 1998 was that the lawyers highlighted how a foreign land registration system was not only going to change the prevailing land system, but was also to give public servants the role of guardianship, which had thus far been vested in the courts. How can the rights of the people be vested in public servants instead of courts?  If the outcome of the study tour, as well as the decision of the Australian consultant, was not to proceed with the Registration of Title Bill, why was the Bill passed and enacted in March 1998? The predictions of these three lawyers are proven truer with each passing year – chaos and confusion prevails, and this should be immediately addressed instead of soliciting more funds to roll out what was agreed to be unsuitable for Sri Lanka in 1998.   (The writer is an independent political analyst who writes on a broad range of topics, and was previously the International Human Rights Commission’s Goodwill Ambassador for Sri Lanka) ……………………………. The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.  

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