British-inspired land laws that deprived Kandyans of their right to land

Proclamations and Ordinances made by the British in a systematic way deprived the Kandyan people of land rights

By Samantha Ratwatte

This note is in no way an exhaustive analysis of various Laws that affected the Kandyan people but merely serves to highlight a few sections in Proclamations and Ordinances made by the British in a systematic way to deprive the land rights of the Kandyan people.

Firstly, one must understand rights in respect of land as understood today were not envisaged in terms of the values of our people before 1815. We used lands based on the utility value of those lands and not on any speculative (commercial) value which ownership can bring as understood in today’s context.

Accordingly, several categories of lands were found before 1815 commonly known as;

a) Gabadagam

b) Nindagam

c) Viharagam or Devalagam and 

d) Koralegam or Vidanegam

The service obligations of these lands were based on shares of “Bimpangu” with shares comprising paddy land and appurtenant high land. The right to cultivate and occupy a share was tied up with various well defined revenue and service obligations. 

In Royal, Manorial and Monastic lands for instance, there were certain land shares named “Muttettupangu” the produce from which was set apart entirely for the palace, the Manor or the Temple and on which those who held cultivation rights over the other shares within the “Gama” were obliged to work gratuitously.

The controlling rights of the land holders were either temporary (Divel or Maruvena) or permanent and perpetual (Paraveni). The permanent rights could be inherited, leased or sold but temporary rights represented remuneration for services rendered as holders of certain offices by certain civil or military officers (Nila) and were enjoyed by those on whom such rights were bestowed during the tenure of office. Vide. Prof. G.H. Peiris, Sri Lanka Journal on Agrarian Studies Vol. 2 pages 1 to 26.

However, the British in 1832 by a Proclamation named Tenure by Service altered these services but continued with the right of the Crown to have gratuitous service which in fact was not a feature previously without any benefit accruing to the persons in occupation of Gabadagam.

The British also considered all Gabadagam the absolute property of the Crown though on occasion such as in the case of Queens Advocate Vs. Kirimanike 1880 3 S.C.C 18 Courts have held that even land situated within a Gabadagama does not conclusively give rights to a presumption that it is the absolute property of the Crown for there may be Paraveni as well as Maruvena land within the limits of a Gabadagama.

Nevertheless, by the Crown Lands Encroachment Ordinance No. 12 of 1840 the British declared by Section 6 that all forest, waste, unoccupied, uncultivated land shall be presumed to be the property of the Crown until the contrary thereof be proved and chenas and other lands were also similarly considered.

H.B. Thompson in his book ‘Institutes of Laws of Ceylon’ Vol. 1 referring to S6 of Ordinance No. 12 of 1840 explains how all these lands were considered as Crown lands. However, in the same book very clearly in the introduction Thompson states as follows: “Her Majesty cannot make any new changes contrary to fundamental principles, nor exempt the inhabitants from the power of Parliament; nor legally disregard the articles on which Ceylon was surrendered or ceded; such Articles being inviolable according to their true intent.”

At page 7 of the Introduction he says as follows; “We have before stated the Laws of a conquered or ceded Country remain in force until altered by the conqueror or acquisitors; and even these cannot be altered in disregard or violation of Articles on which the Country was surrendered or ceded. It is on this principle that most of the Laws of Ceylon rest.”

Therefore, we see in terms of Clauses 4 and 5 of the Kandyan Convention of 1815 (which is actually a misnomer since the Sinhala version says the Sinhale instead of Kandyan referring to the entire Nation and not to a Community) that certain rights were clearly accepted as being inviolable by the British. 

In fact the 4th Clause of the 1815 Convention (English version) refers only to “the dominion” of the Kandyan Provinces being vested in the Sovereign of the British Empire. 

This vesting of “dominion” too is qualified by “Saving to the …and to all classes of the people the safety of their persons and property, with their civil rights and immunities, according to the Laws, Institutions and customs established and in force amongst them.”

Despite this by a Proclamation in 1818 the British unilaterally abrogated these Clauses in violation of the “Articles” Thompson refers to and proclaimed that the British had absolute sovereignty over the island of Ceylon.

Therefore “Sovereignty” was never handed over in 1815 but was unilaterally declared to be in the British in 1818.

Nevertheless, for some inexplicable reason (perhaps due to the need to be in “intellectual” company) many in our country accept the British version of events and agree on “the single fault theory” of the treachery of the Kandyan aristocracy and totally exculpate the British.

Using this self-declared “Sovereignty” by the Proclamation of 1832 mentioned previously, the British altered the nature of the service obligations. Thereafter, in 1840 the Crown Lands Encroachment Ordinance No. 12 was introduced. This made the first inroads into depriving the Kandyans of their native lands.

The natives had certain rights even in respect of Gabadagam such as the right to fetch firewood, to release their cattle for feeding, etc. All these were prevented by creating an “absolute” right in the Crown. Thereafter, further Laws were brought to systematically prevent any claim by the Kandyan people in respect of these lands.

In the year 1856 an Ordinance called Registration of Temple Lands, ostensibly stated in the preamble “for the purpose of exempting temple lands from taxation” was brought in.

However, in S11 in the said Ordinance, the temples had to pay for the surveys of entire temple villages which consisted even Paraveni lands and the temple lands were confined to such extents of land.

Prof. G.H. Peiris in his aforesaid article explains that this was done in certain areas of the country only as the real intention was to pave way for the creation of plantations.

If one inquires into the lands that were surveyed under this Ordinance, it is clear that most of the surveys were done in the Central, Sabaragamuwa, Uva and the North Western Province where the British opened up lands for plantation purposes.

In the book ‘Ceylon and the Sinhalese’ by Henry Charles Sir Vol. 1 page 345 the author explains how Lt. Gen. Sir Colin Campbell who assumed office in 1841 had found that valuable land was sold for five schillings per acre and that Government servants enriched themselves at the expense of the country by purchasing these lands turning them into coffee estates and neglecting their official duties.

“Governor, Sir Colin Campbell prohibited by Government minute the sale of Crown land under the sum of 20 schillings per acre and at this advanced price found numerous and ready purchases and frequently a much higher sum was realised.”

Again the author says: “By the unbiased representations of the Governor to the home Government, civil servants were forbidden to purchase or retain land for agricultural purposes and were required to devote their whole time and attention to the duties of the respective offices which they held under the Government.”

The same book at pages 341 and 342 referring to the uprising of 1848 states as follows: “A new convention is now entered into with the chiefs by which it was stipulated that all personal services, excepting those required for making and repairing roads and bridges, should be abolished and all taxes should be merged into one…”

This goes to show that the British retained the use of gratuitous service for the construction of roads even as late as 1848, so much so for the claim of leaving a legacy of a road network in this country based on their “benevolence” as some claim in their ignorance.

Thereafter, Ordinance No. 6 of 1866 called “An Ordinance to Compel the Registration of Old Deeds and Other Instruments of Title” was brought in which placed restrictions on using the best form of rights granted by our Kings. In terms of Ss. 2 and 7 of this Ordinance no instrument such as a Sannasa could be used as evidence of title unless they were registered. 

After the above Laws were used to deprive the Kandyans of their right to lands systematically , a “mopping up” operation was done to take over anything that remained by an Ordinance in 1897 called the Forest, Chena, Waste and Unoccupied Lands (The Wastelands Ordinance) – Ordinance No. 1 of 1897. 

This law was even more draconian than the previous ones and by a publication the Government called upon persons to make whatever claims they could and if it could not be established that a person had “title acceptable to the Government,” all such lands were considered as State lands. This was superseded by Land Settlement Ordinance 20 of 1931.

All these were done while depriving the ordinary right available in the rest of the country to claim title on prescription in the Kandyan Provinces. 

Even in the Proclamation of 1818, S25 declared that inhabitants of temple villages were liable to perform fixed gratuitous service also to the Crown and that was to continue unaffected though it was claimed that the “rigours of the old Laws were removed”.

Under our Kings the “Rajakariya” system was one that built cohesiveness in society while making everyone part of the core culture of the country which gave mutual benefits to “Nilakarayas” and those in in charge of the relevant villages though it may have contained certain features akin to a feudal system.

If “removal of rigorous” was the “benign” aim of the British, the feudal aspect could have been removed by replacing individuals in charge of villages by committees while retaining the beneficial feature of social cohesiveness without destroying the entire system. However, this was not even attempted.

Thereafter, even as late as 1947, a further Law was brought stating that unless title is registered under any of the laws referred to in S3 all documents pertaining to title prior to the year 1864 were invalid.

Therefore, the resultant position was prescriptive title was not possible for a Kandyan and even title based on Grants of the King were placed under severe restrictions preventing effective claims. Even today we find politicians happily handing over parcels of land to all and sundry depriving the landless Kandyans termed “Peasantry” by the British of their birth-right.

In the case reported in 62 NLR AG Vs. Herath the Privy Council was at pains to bring in our concept of land usage within the ambit of the European concept of “ownership”. 

For this purpose an artificial method was utilised by stating that the three requirements, utendi, fruendi and abutendi, namely the right of possession, the right of use and enjoyment and right of disposition, have to be compared and seen whether a particular person enjoys a major part of these rights and if so such a person is deemed to be the owner.

The reason for this was because, in the kind of land usage that was prevalent in the Kandyan Provinces there was no defined owner. The Paraveni Nilakaraya and the “Holder” of the “Gama” were utilising the land for mutual benefit and in the strictest sense of the word none of them were owners but were holding certain rights in relation to each other in respect of the land.

This probably was based on our original concept of even the King being a trustee of the country and not an absolute owner. The reason why the word “Dominion” (as against Sovereignty) had to be used in the 1815 Convention to represent the interests the British received was only the King’s rights, is understood when this ancient concept of land use is appreciated. 

The reader is challenged to consider the question whether we cannot draw inspiration from the system of our ancient land usage by suitably modifying it to create a “produce tax” system even at present.

From the above account, it can be seen that, by a gradual process, the British and thereafter even our Governments have been able to change our views on land usage and effectively deprive the descendants of those who fought to preserve the national culture cherished by all today as the “common heritage” of their birth-right to the land of their ancestors.