State land utilisation between the Centre and Provinces under 13th A - Part 1 | Sunday Observer

State land utilisation between the Centre and Provinces under 13th A - Part 1

12 March, 2023
The Provinces in Sri Lanka where each province has a Provincial Council
The Provinces in Sri Lanka where each province has a Provincial Council

The 13th Amendment to the 1978 Constitution and the Provincial Councils Act of No. 42 of 1987 marks a watershed in our constitutional evolution. It describes and codifies the distribution of the power between the Centre and the sub national elected tires.

By means of this Amendment, the system of devolution of power to the Provincial Councils was entrenched in our Constitution by protecting the avenues for autonomy for each level of government. The 13th Amendment also contains provisions to devolve power over the control of state land to Provinces.

Establishment of PCs

Provincial Councils were established under the 13th Amendment to the Constitution of 1978 which came into effect on November 14, 1987 along with the Provincial Councils Act No. 42 of 1987.

Three lists in the 9th Schedule to the 13thAmendment are the Provincial Council List (List I) the Reserved List (List II) and the Concurrent List (List III).

The Provincial Council List contains the matters in respect of which the Provincial Council is empowered to make statutes. These mainly cover those areas of authority where decisions affect primarily persons living in the Province and are applicable to the Province only.

The Reserved List contains matters in respect of which Parliament is empowered to make laws. These cover the areas of national importance. The Concurrent List contains the matters in respect of which both Parliament and the Provincial Councils may make laws and statutes respectively.

The Supreme Court per His Lordship S.N. Silva CJ., in Vasudeva Nanayakkara v K.N. Choksy case explaining the scope of the 13th Amendment stated that:

“The 13thAmendment to the Constitution certified on 14.11.1987 provided for the establishment of Provincial Councils. Article 154G (1) introduced by the Amendment vests the legislative power in respect of the matters set out in List I of the 9th Schedule (the PC List) in Provincial Council. Article 154 C vests the executive power within a Province extending to the matters on List I in the Governor to be exercised in terms of Article 154 (F) (I) on the advice of the Board of Ministers. In terms of Article 154F (6) the Board of Ministers is collectively responsible and answerable to the Provincial Council. Thus, it is seen that the 13th Amendment provides for the exercise of legislative and executive powers within a Province in respect of matters in the Provincial Council List on a system a akin to the ‘Westminster’ model of Government”.

13th A and State lands: Legal perspective

It is now necessary to identify briefly the demarcation between the Centre and the Provinces with regard to State lands and to examine the nature and content of the subject matter of the State lands that lie within a Province by virtue of the 13th Amendment to the Constitution. In this examination, it is necessary to scrutinise the Articles contained in the 13th Amendment to the Constitution in relation to land and State land by way of pronouncements made by the Superior Courts of Sri Lanka.

Item 18 of the Provincial Council List states:

Land – land, that is to say, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, to the extent set out in Appendix II.

The opening paragraph of Appendix II is as follows:“State land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) and written law governing this matter.” It is thus made clear that there is no change in the ownership of State lands. Article 33(d) referred to empower the President, inter alia, to ‘make and execute under the Public Seal such grants and dispositions of lands and immovable property vested in the Republic as he is by law required or empowered to do’.

Appendix II (Land and Land Settlement) continues

Subject as aforesaid, land shall be a Provincial Council Subject, subject to the following special provisions:-

1. State land –

1:1 State Land required for the purposes of the Government in a Province, in respect of a reserved or concurrent subject may be utilised by the Government in, accordance with the laws governing the matter. The Government shall consult the relevant Provincial Council with regard to the utilisation of such land in respect of such subject.

1:2. Government shall make available to every Provincial Council State Land within the Province required by such Council for a Provincial Council subject. The Provincial Council shall administer, control and utilise such State land, in accordance with the laws and statutes governing the matter.

1:3. Alienation or disposition of the State land within a Province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council, in accordance with the laws governing the matter.

Special provision 2 placed just after the above provisions,(under aforesaid Appendix II) is on inter-provincial irrigation and land development projects.

Inter – Provincial Irrigation and Land Development Projects

The scope of such projects are found in paragraph 2:1. These projects would be the responsibility of the Centre (2:2). However, the principles and criteria regarding the size of holdings of agricultural and homestead lands arising out of these projects will be determined by the Government in consultation with the Provincial Councils (2:3).

The selection of allotees for such lands will be determined by the Government having regard to settler selection criteria including degree of landlessness, income level, size of family and agricultural background of the applicants. The actual application of these principles, selection of allotees and other incidental matters will be within the powers of the Provincial Councils. (2:4). Further provisions are found in paragraphs 2:5, 2: 6. 2:7 and 2:8).

In special provision 3, (National Land Commission under Appendix II) placed after the above provision 2 the Centre is required to establish a National Land Commission which would be responsible for the formulation of national policy with regard to the use of State land.

This Commission will include representatives of all Provincial Councils in the country.

Further particulars of National Land Commission are found in paragraphs 3:2, 3:3 and 3:4.

To be continued next week