State withdraws impugned circular on management of land in North-East

By S.S Selvanayagam

In view of the undertakings given by the State, the Writ application filed in the Court of Appeal challenging the impugned controversial Land Circular on the management of land in North East withdrawn yesterday. A Writ petition had been filed by TNA Parliamentarian M.S Sumanthiran challenging the said controversial Land Circular. The matter came up before the Bench comprising Justices S. Sriskandarajah (President) and Deepali Wijesundera.

The State had earlier conceded that the said circular which was allegedly flawed was being reconsidered by officials and did not object to the stay order being issued preventing the operation of the public notice.  

Thereafter an undertaking was given in Court that the respondents would take steps to withdraw the said circular and no steps would be taken to implement it.

The said circular was withdrawn on 19 January and firm assurances were given by the Respondents that no further steps would be taken to implement it.

In view of the undertakings given, Counsel for the Petitioner yesterday moved to withdraw the application reserving the right to file a fresh application if a need arose.

Court permitted the case to be withdrawn, without prejudice to the Petitioner’s right to file a fresh application if necessary.

A public notice was published with regard to the said Circular requiring the people of the Northern and Eastern Provinces to register their land by 20 November last year.

The Court on 9 November last year issued an Interim Order staying the operation of the said public notice. The Writ petition was filed against the Circular issued by the Land Commissioner General’s Department titled ‘Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces’.

Tamil National Alliance National List Parliamentarian M.A Sumanthiran in his petition filed through Attorney-at-Law Moahan Balendra expressed apprehension that the impugned Circular is a means to maliciously and illegally circumvent and compromise the rights and protections granted to persons in and from the Northern and Eastern Provinces mandated by the Constitution and the law.

Petitioner Sumanthiran stated he owns land located in the Districts of Jaffna and Kilinochchi in the Northern Province and is directly and personally affected by the impugned Circular.

He sought an order of mandate in the nature of Writ of Certiorari to quash the impugned Circular and an Interim Order restraining the Respondents from acting upon the said Circular until the hearing and final determination of his petition.

He cited Land Commissioner General R.P.R Rajapakse, Land and Land Development Ministry Secretary T. Asoka Pieris, Commissioner of Title Settlement L.K Pemaratne, Northern Provincial Land Commissioner P. Thayananthan, Eastern Provincial Land Commissioner Anura Dharmadasa, Army Commander Lt. Gen. Jagath Jayasuriya, Navy Commander Vice Admiral D.W.A.S.Dissanayake, Air Force Commander Air Marshal H.D.Abeywickrama and the Attorney General as Respondents.

K. Kanag Iswaran PC with Viran Corea, Bhavani Fonseka and Gehan Gunatilleke instructed by Moahan Balendra appeared for the Petitioner. Additional Solicitor General Y. Wijayathilaka with Deputy Solicitor General Murudu Fernando, Senior State Counsels Arujuna Obersekera and Anushiya Samaranayake appeared for the Attorney General.

The Petitioner stated the land and property rights are governed by statutory provisions and customary laws ad influenced by Roman Dutch law principles.

Thus, any valid changes to legal rights recognised, protected, provided or regulated by law pertaining to the ownership, use or interest in or over land and immovable property require legislation as provided for and required by the Constitution.

 The said Circular covered a range of issues which are:

a) Temporary suspension of all distribution of new lands, unless lands are distributed for national security and special development projects;

b) Re-location of lands to those who were displaced or who fled from the land;

c) Provision of alternative land for persons who have prior claims in cases of development of the land by an occupier;

d) Alienation of land to those who encroached state lands prior to 15 June, 1995;

e) Issuing documentation for lands where original documents were destroyed or damaged;

f) Development of a process, which is headed by local officials and includes the participation of nominees of the security force commander, to address competing land claims;

g) Establishment of special mediation boards;

h) Non-extension of annual permits where payment was not made or renewed annually;

i) Extension of titling programme to the North and East; and

j) Non-inclusion of cases where there is on-going litigation, and where the Divisional Secretary or other officials are parties, into the proposed process for resolving competing claims.

The impugned Circular compelled private landowners, including the Petitioner, to submit an ownership application form, presumably in pursuance of a process set in motion under the Registration of Title Act.

Petitioner maintained the impugned Circular is ultra vires the Registration of Title Act and that neither the Land Commissioner General nor the so-called Land Settlement Commissioner General is vested with any power whatsoever under law to decide on ownership.

He entertained concerns that the established laws, jurisprudence and traditional customs recognised and given effect to by the law of the land are not contravened or undermined in a manner that is illegal, arbitrary and irregular and that it does not infringe, negate or erode the rights of the people as owners and/or occupiers and/or stakeholders in respect of the lands within Northern and Eastern Provinces.

The petitioner sought an interim order restraining certain respondents including the Land Commissioner General from acting upon the Land Circular No. 2011/04.  

The new circular exclusively dealt with land in the Northern and Eastern provinces. It temporarily suspended all distribution of land in the North and East unless lands are distributed for national security and special development projects, and provides for the settlement of disputes relating to state land.  

The circular also required all persons in the North and East, including private landowners, to submit ‘ownership application forms’ disclosing all details of their land.  

Under the said circular, all landowners of the North and East, including private land owners such as the petitioner were required to furnish details to the relevant Divisional Secretary or Assistant Government Agent, through the Grama Niladari, within two months.