Registration process to be expedited? really?

We read with great surprise the news item titled "Land registration process to be expedited," which appeared in a daily on March 24, 1998, following an interview which Mahinda Kulatunga had with you. The news item refers to certain statements made by you on the Registration of Title Act (not "Land Title Registration Act," as mentioned in the news item), which is said to have been passed by the Parliament on the March 17, 1998 and is to become operative before the end of this year.

We are writing as fellow participants with you (the other participants from Sri Lanka, as you know, being two representatives of the Surveyors' Institute of Sri Lanka; three representatives of the Surveyor General's Department; two representatives of the Registrar General's Department; two representatives of the Legal Draftsman's Department; the Land Commissioner, the Commissioner of Land Settlement; and the Deputy Chief Valuer; together with the four members of the team of the Consultants on the matter to the Australian Government, namely, the Department of Land Administration, Western Australia (DOLA), at the Study Tour to enable the participants to familiarise themselves with the system of registration of title to land in Western Australia, which was conducted by DOLA in Perth, Western Australia, in January/February 1998. We consider that we would be failing in our duty if we permit to go unchallenged the statements in the news item, which you know as a participant at the Study Tour, to say the very least, are incorrect and misleading.

Defective

As you very well know there was unanimity among all the participants, Sri Lankan (including yourself) and Australian, that the very Bill (which was presented in Parliament in December 1995), the virtues of which you now seek to extol, had not considered many of the basic requirements for registration of title to land; was seriously defective; and if implemented, would create chaos and confusion and increase in litigation, and therefore, the participants (including yourself) unanimously agreed that such Bill, which cannot be remedied by amendment, should not be proceeded with and should be allowed to lapse. In fact, you, as the Additional Secretary to the Ministry, was to convey such unanimous agreement and the reasons therefore to the Minister of Agriculture and Lands.

We, therefore, cannot understand how the very same Bill came to be passed, hardly a month after the Study Tour, and you now find great virtue in that Bill

We cannot believe that you could have forgotten, so soon after the Study Tour, your solemn declaration to all the participants during a working session of the Study Tour - "Sincerely, and speaking from the very bottom of my heart, I can now see what was pointed out by Mr. Mahinda Ellepola, Mr. Elmo Perera and Mr. Nihal Pieris that the present Bill will cause a lot of trouble and chaos in the country and should be dropped."

We do not consider it necessary to say more on this aspect except to refresh your memory by pointing out that your solemn declaration re-echoed the agreement on the part of the Australian Consultant of the assessment of the Bar Association of Sri Lanka that the Registration of Title Bill, if implemented, will create "chaos and confusion in the community and inevitably lead to an escalation of land disputes" (Volume I of "Land Titling and Cadastral Mapping Project - Sri Lanka - Feasibility Design Study" of the Australian Consultant).

The fund

It is claimed that "The Australian Government has promised to provide Sri Lanka with equipment worth 350,000 Australian Dollars to set up the computerised data base necessary to implement this program."

Every participant at the Study Tour should know-

(a) that the commitment of the Australian Agency for International Development ("AusAid") of 350,000 Australian Dollars related to Stage 1 of the Project, namely, the establishment of the legislative framework regarding registration of title to land in Sri Lanka and AusAid would consider funding of subsequent stages based on the success of Stage 1. Since the Registration of Title Act has been passed against the specific counsel thereon of the Australian Consultant, we expect that there would be no more funding for this project from AusAid.

(b) that the sum of 350,000 Australian Dollars would be bagatelle when estimating the expenditure for the purchase of equipment to set up the computerised data base, referred to in the news item (the cost of which would have to be borne by Sri Lanka).

Do you have any idea of the cost that would have to be incurred by Sri Lanka in the implementation of a scheme for registration of title?

In regard to this aspect and certain other claims in the news item, as you know, it became clear during the Study Tour that no quantitative or qualitative assessment of the costs, resources nor time frames necessary for the introduction of registration of title nationwide in Sri Lanka has been made and, also, that it had been provisionally estimated by the Australian Consultant that such a scheme may take about 35 years and require a project team of about 2500 people (including lawyers and surveyors), suitably qualified and experienced.

Referring to the claim that "Once this law comes into operation all State and private lands will be surveyed at State expense...", is it your contention that the required personnel and the facilities necessary for such a survey are available? Incidentally, you will recall that it is the present Minister of Agriculture and Lands who, when introducing in 1995 an amendment to the Land Development Ordinance (to repeal the very salutary provision, which was operative from 1935, that no grant should be issued under that Ordinance unless the land is surveyed and the diagram is annexed to the grant) stated in Parliament that if he has to wait till plans are prepared for the issue of Swarnabhoomi deeds he will have to wait for 14 years. On that assessment of the Minister, how many years will it take to survey all State and private lands in the country for the purpose of the Registration of Title Act? On this basis, even the provisional estimate of 35 years by the Australian Consultant would seem to be insufficient.

The news item

Taking together the following statements in the news item - "When the new Act becomes operative a person will be able to obtain a title registration certificate for his or her land situated anywhere in the country within a matter of a few minutes with the help of a computer network set up at the divisional secretariat level.

"Under the new computerised registration system, the present procedure of issuing title deeds will become a thing of the past....

"The new system will not only eliminate the present delays encountered by people in registering their land but also prevent the forging of title deeds."

(a) Even the Registration of Title Act, despite its many serious shortcomings and defects, provides for the preparation of a cadastral survey and an investigation into title before a person is able to obtain a certificate of title in respect of his land. We, therefore, look forward to your explanation as to how this could be done "within a matter of a few minutes."

(b) You would, no doubt, have learned during the Study Tour that the whole of Western Australia has one Land Register Office, which attends to the registration work, while there are two centres (in the city of Perth and Bunberry) for collection of deeds for registration at the Land Register Office. Do you honestly believe that it is feasible or practicable to set up and maintain computerised offices at "divisional secretariat level" (that is, more than 200 offices) when the present 39 Land Registries have, over the years, been denied by the Authorities the basic requirements necessary for the conduct of their functions and duties?

(c) Even under registration of title, transactions relating to land would be recorded by the execution of deeds. Accordingly, how can it be validly claimed that, under a computerised registration system, the issue of "deeds will become a thing of the past"?

In any event, there seems to be some confusion on your part because, after the claim that under the computerised registration system the issue of "title deeds will become a thing of the past", you go on to say that the new system will "prevent the forging of title deeds."

(d) Your claim regarding the "delays encountered by people in registering their land" (we expect you refer to delays in registering deeds relating to land) was dealt with by the representatives of the Registrar General's Department, during the Study Tour.

(e) Regarding your claim that the new system will also "prevent the forging of title deeds," it appears to us that the new system you envisage has even improved on the system of registration of title to land, which is in operation in Western Australia. Perhaps, even the Australian Consultant would be eager to learn of the new system from you, because during the Study Tour, we observed that forgery and fraud were two of the several exceptions to indefeasibility of title, which is sought to be provided by registration of title to land.

In fact, there were many discussions on the concerns expressed by us that, in the proposed system of registration of title, it is sought to amend the substantive law of Sri Lanka by introducing to our law a foreign concept whereby the rightful owner's title to his land would be defeated by a person, who purchases such land for valuable consideration and without knowledge of a forgery from a person who forges the signature of such rightful owner, in such an instance, such rightful owner would lose title to his land and his rights would be restricted to a claim for compensation from the Fund set up by the State for the purpose of meeting claims of a rightful claimant who is deprived of an interest because of the provisions of the Registration of Title Act (and that, too, after he has exhausted his legal remedies for obtaining such compensation from the forger). It is unfortunate that you seem to have forgotten or overlooked such discussions, which were an important feature of the Study Tour. You contend that the new land registration certificate system will be "very much similar to the present vehicle registration system."

The new system

If after all the expenses, time and effort that would be involved in the introduction to Sri Lanka of a system of registration of title to land, all that is sought to be achieved is a system "very much similar to the present vehicle registration system" with its attendant ills and problems, it would be far more desirable and advantageous from the point of view of the country for the present system of land titling to continue. It is also obvious that you have not considered the distinction between the legal effect of a certificate of registration of a motor vehicle as against a certificate of title to land under a system of registration of title

Your response

As a senior official of the Ministry of Agriculture and Lands and, especially, one who has had the benefit of the Study Tour, and, in the light of what we have stated in this letter in which we have also sought to refresh your memory relating to the Study Tour, would you still honestly make the claims set out in the news item, or, is this yet another example of a curse in this country, namely, public servants being sought to be made lackeys of politicians?

Your response to this inquiry would be of importance, because of the role that is sought to be entrusted to public servants under a system of registration of title to land in Sri Lanka, minimising the role of the traditional guardians of the rights of the people to their land, the Courts.

You will, no doubt, recall that, during the Study Tour, you undertook that, on your return to Sri Lanka, you will arrange for a discussion on the various issues that arose on the Study Tour with Her Excellency the President of Sri Lanka, together with the Minister of Agriculture and Lands, and the participants of the Study Tour.

Kindly attend to this matter, very urgently, especially because of the unforeseen and most unusual turn of events subsequent to the conclusion of the Study Tour (the counsel of the Consultant not to proceed with the Registration of Title Bill being disregarded) and let us know as soon as such a meeting is arranged.

More Plus * People and events

Return to the Plus Contents