The Land Commission of 1957 was critical of the manner in which during the past two decades land had been alienated without sufficient regard to its physical character and suitability for the purpose for which it was enacted. The Land Commission of 1987 correctly emphasized that the issues which dominated the attention of successive Land Commissions depended largely on governmental perspectives. Resulting from the concern about the disintegration of the peasantry due to the spread of plantation agriculture and the relative neglect of the indigenous rural sector, preservation of the peasantry assumed urgency.

In the view of the Land Commission of 1957, provisions relating to tenure in the Land Development Ordinance provided a method of alienating Crown land in perpetuity on a restricted tenure. The Land Commission of 1957, however noted that a high proportion of land alienated under that tenure system had not been satisfactorily developed. According to the Land Commission of 1957 certain features of the tenure may have contributed to the failure to develop so much of this land. One factor noted by the Land Commission of 1957 was the failure to issue grants as soon as the land was developed. According to the Land Commission of 1957, since the general situation of the country had altered so radically, fewer restrictions on tenure then provided under the Land Development Ordinance were thus essential.

When reviewing the Report of the 3rd Land Commission of 1987, it is apparent that the established policy of creating and preserving a ‘multitude of prosperous, self supporting and self respective peasant proprietor’ as recommended by the first Land Commission of 1927 and implemented by the Land Development Ordinance was upheld by the Land Commission of 1987 to be still valid and should continue for the future. But now it is necessary to call for deeper investigation into that matter under new research as to whether this policy of preserving peasantry is still valid today and at least in the near future. The Land Commission of 1987 believed that any failure to create a class of prosperous peasant proprietors was due not so much to any innate incapacity of the peasantry itself, but rather to constraints inherent in a highly bureaucratized system of land management.

The Land Commission of 1987 emphasized that the concept of preservation of peasantry must still be relevant for sometimes to come in view of the need for protecting them from economic, social and political marginalization of which there is already adequate evidence. As the Land Commission of 1987 witnessed in a period dominated largely by the ethnic conflict, the outcome of avacarivety of past land policies displayed both positive as well as negative results. The Land Commission of 1987 made the central point that the root causes of ethnic problems at that time were closely related to the questions of land policy. Similarly, the lack of vigilance on organised encroachments on State lands until recently has caused issues. Accordingly, the Land Commission of 1987 strongly believed that the principle of national integration should form a corner-stone of land policy in the coming decades.

Issues linked to Land Development Ordinance

There are two types of issues associated with the Land Development Ordinance namely legal issues and operational issues resulting from the operation of the provisions of the Ordinance. The legal issues relate to ambiguities and complex substance of the Ordinance. Being a statute enacted over 85 years ago with several amendments in the nature of substitutions, repeals, replacements with new provisions creating complexities, there has justifiably arisen a need for ascertainment of the substance of the Ordinance as amended, with the aid of the interpretations of various provisions of the Ordinance made by the superior courts in Sri Lanka, from time to time in order to review such ambiguities and complexities and to address legal issues directly resulting from the operation of the Ordinance. The operational issues linked to the Land Development Ordinance are related to land tenure with encroachments informal land transactions and land fragmentation, gender discrimination and irrigation management and profitability aspects.

In addition, the circumstances relating to the introduction of the Land Development Ordinance has also changed. This is evident in the operation of the Ordinance over 85 years particularly with regard to the legal provisions relating to the land tenure and gender. However, there has emerged a need to evaluate the existing provisions of the law for suitable reform to the law.

Devolution debate concerns

At the start, the land utilization issues in Sri Lanka emerged as a social problem. Later it has become a political issue with the worsening of the ethnic problem. The heightened State of the ethnic problem is the claim of the Tamil community for North and East Provinces as their native land and their demand for self governance of these two Provinces. The operation of the Land Development Ordinance as a Central Government activity in the Eastern Province in particular is alleged to clash with the aforesaid notion of the Tamil community. The devolution debate concerns in particular the Central - Provincial relations relating to powers over such areas as State land and Police powers. Within the subject of State land too, major settlement scheme is a key issue. This is where the Land Development Ordinance and the devolution debate are linked together through the subject of State lands.

The demand for devolution sprang from the belief in the need for popular participation in decision making and growing suspension of bureaucracy. Several efforts in forming sub national bodies in the country had failed. On the face of violent demand for the division of the country, Parliament passed in 1987 the 13th Amendment to the 1978 Constitution and ancillary Provincial Councils Act No.42 of 1987. Both these laws were passed by a 2/3rd majority of Parliament. The 13th Amendment contains provisions among others, relating to land matters such as State land, land settlement, inter-provincial schemes, with related subjects such as irrigation, agriculture, agrarian services, land development and environment. This is how two law areas namely Land Development Ordinance and 13th Amendment to the Constitution are linked through the subject of State land which forms the subject matter of this research.

Together with the issues which arose from the Land Development Ordinance there are two categories of issues to be addressed under the 13th Amendment. The first category of issues relates to the 13th Amendment include legal issues on the powers of the President in State land matters, identification and demarcation of State land between the Central Government and the Provincial Councils, capacity of the legislative powers of the Provincial Councils with regard to State land matters, inter provincial schemes, criteria for land settlement and institutional framework specially the National Land Commission. The second category of issues relate to operational issues directly resulting from the incongruous allocation of subjects within the context of State land for peasantry under the three Lists in the 13thAmendment, and constitutional exercise of apportionment of legislative competences.

It appears that the aforesaid legal defects of these two law areas have not yet been comprehensively addressed together by a proper legal study. There are ample studies conducted on agrarian and socio-economic aspects of the Land Development Ordinance by research institutions, and experts in these areas with little attention on legal defects. Moreover, those agrarian, socio-economic studies on the Land Development Ordinance have been most probably based on the operational defects of the Land Development Ordinance. There are operational defects in the Land Development Ordinance mainly due to the defects in law and not so linked to some operational aspects. Therefore operational issues directly resulting from defects in law have also not yet been properly addressed by such agrarian and socio-economic research studies.

Concluding remarks

(A) On the Legal Content of the Land Development Ordinance

• The tenure under the Land Development Ordinance at the beginning provided for the lease of Crown land to an allottee in perpetuity on a restricted tenure. The allottee could not fragment the land, mortgage the land or dispose of it without the Government Agent’s permission. The tenure was liable to cancellation for any default. The allottee’s land was therefore a protected holding which could not be mortgaged, leased or sold or could not be seized by a Court of Law.

• The first major amendment to the Land Development Ordinance was made in 1969 by the Land Development (Amendment) Act of 1969. The main purpose of the Amending legislation in 1969 was to confer the ownership of the allotment alienated under the Land Development Ordinance No.19 of 1935 as amended to the allottee.

• Hitherto the right of a nominated successor to succeed to land held on a permit or grant was given precedence over all others including the spouse of the deceased permit holder or owner. Under the Amended legislation, the surviving spouse is given the right of immediate succession in every case. The nominated successor is only entitled to succeed on the failure of such a spouse to succeed or on the re-marriage or death of such a spouse.

• Where a spouse succeeds by operation of law, such spouse will have no power to dispose of the land or to nominate a successor thereto. A spouse who succeeds as nominated successor however, will succeed to all the rights of the deceased permit holder or owner like any other nominated successor. A spouse who succeeded otherwise than as a nominated successor will lose his or her right on the land on re-marriage. Only a spouse or a nominated successor can succeed a permit holder in the first stage of alienation. Any such nominated successor must obtain a fresh permit for the land.

• As explained in Land Order No.72, the complete process for the alienation of State land under the Ordinance consists of five steps: (a) selection of suitable land and mapping – out (b) selection of allottees for alienation (c) issuing permits for land alienated under section 19(2) (d) on completion of the conditions relating to the development the surveying of land and fixing of boundary stones (e) on satisfaction of all the conditions, conferring grants to such allottees.

• A permit issued under section 19(2) of the Ordinance is a valid document issued to the permit – holder for the land, to prove his title to the holding till he is issued a grant under section 19(4) the Ordinance. As decided in Palisena v Perera, which discussed the right of the permit holder under a permit issued under section 19(2) of the Ordinance, it was decided that the permit holder under section 19(2) of the Ordinance as a plaintiff in the Rei Vindicatioaction has a right to obtain declaration of title to his holding and to obtain an order of ejectment against a trespasser. As decided in Seeni Thambi v Ahamadu Lebbe where two permits have been issued by the State authorities, the second permit is invalid, if the first permit has not been cancelled.

• The Land Development Ordinance as amended makes provision for several ways in which rights on permits come to an end. (a) One such way is effected through sections 23A and 23B under which the Land Commissioner can set aside or change the selection of the allottee made by the government Agent. In consequence the person’s selection comes to an end. (b) The right under a permit comes to an end when the permit is cancelled due to infringement of the conditions by the permit – holder under Chapter VIII of the Land Development Ordinance. (c) the right under a permit comes to an end when there is no legally entitled person to succeed to the land on the death of the permit – holder or even if there is one to succeed, he or she does not like to be a successor under section 105 of the Land Development Ordinance as amended d)After the death of the permit-holder, on the failure to succeed to the land under section 84 of the Ordinance, the land is deemed to have been surrendered under sections 85, 86 to the State.

• Although alienation of State land is not effected in the first instance to minor children, upon the death of the holder of a permit or grant, if his right is to succeed to a minor child, then such right should be passed to a minor child. At the time of issuing a permit, minor child may be nominated as a successor. Even if nominated or not nominated, while the title to the holding on a permit or grant has devolved on a minor child, this situation may arise. Section 76 of the Land Development Ordinance as amended which provides for curators is relevant in this regard.

• Chapter VII of the Ordinance deals with succession. Upon the death of a permit – holder, whether or not, the spouse has been nominated as successor by that permit-holder, the spouse is entitled to succeed to the land alienated to the permit – holder on the permit and the terms and conditions of the permit shall be applicable to such spouse. But where the spouse who was nominated as successor by the deceased permit – holder succeeded and where so succeeding spouse marries then upon such marriage, the title to the land goes to the person nominated by the deceased permit – holder who can succeed to land or where no successor has been nominated, the spouse will lose the title to the land and title to the land shall devolve as proposed by Rule I of the Third Schedule. One method by which the holder of a permit or grant can dispose of his interest to a successor under the Land Development Ordinance is the nomination or cancellation of a permit or grant by way of Last Will as provided in section 63 of the Ordinance.