The constitutions of Nepal, Bangladesh and Thailand have provided property rights as the fundamental rights of every citizen. Various laws and by-laws are promulgated in accordance with the authority provided by the constitution to govern land tenure and land administration in all of these countries. A list of the main land laws practiced in Nepal, Bangladesh and Thailand cited in this thesis is presented in Appendix 8.
In Nepal, establishment of land administration organisations, registration of land, collection of land, valuation of land and management of public land are provided for by the Land Revenue Act, 1978. The Land (Survey and Measurement) Act, 1963 provided for the survey and measurement of land and the preparation of cadastral documents. Likewise, the Muluki Ain, 2020 (National Code, 1963) was enacted with the objective of maintaining peace and fostering good relations among people irrespective of class, caste or region, and incorporates procedural, criminal, civil, and penal provisions. The main provisions of the Code concerned with land include a system of land registration, transfer
119 of ancestral property, partition, cultivation of land, land evictions, encroachment of land, women’s property and trust land. Similarly, the main provisions of the Land Act, 1964 are the fixing of a maximum allowable size of a land holding, registration of tenants and recognition of tenancy rights, fixing of rent, compulsory saving programme and establishment of a land use regulation commission. The Guthi Samsthan Ain, 2033 (Guthi Corporation Act, 1976) has provisioned for the administration of trust land.
In Bangladesh, the Bengal Tenancy Act, 1985 made provision for the title, rights and liabilities of zamindars, talukdars, rent receivers and raiyats. The East Bengal State Acquisition and Tenancy Act, 1950 provisioned the acquisition of land by the state. The zamindari system was abolished and the tenants were brought directly under the state after enactment of this law. Similarly, the Survey Act, 1875 and the Registration Act, 1908 provisioned the survey and measurement and registration of land respectively. Likewise, the 1882 Transfer of Property Act provided for the process of transferring land rights. The Land Reform Ordinance, 1984 was promulgated to reform the law relating to land tenure, land holding and land transfer with a view to maximising production and ensuring a better relationship between land owners and bargadars (sharecroppers). The Land Reform Board Act, 1989 and the Land Appeal Board Act, 1989 provided for the establishment of the Land Reform Board and the Land Appeal Board and defined their functions. Other laws relating to land management and land tenure include Non- Agricultural Khas Land Management and Settlement Policy, 1995 and Agricultural Khas Land Management and Settlement Policy, 1997 which determine the procedure for the management and settlement of Khas land. Separate laws are issued to manage the customary rights and practices of the people living in the Chittagong Hill Tracts region, the main home of the indigenous people, including the Chittagong Hill Tracts Land Dispute Settlement Commission Act, 2001.
The Constitution of the Kingdom of Thailand, 2007, Land Code, 1954, The Agricultural Land Reform Act, 1975, Land Development Act, 1963 and Land Readjustment Act, 2004 are the main statutes that constitute the land regulation and governance framework in Thailand. The constitution has provided for the adoption of a land policy including land use, land distribution, planning and protection of land and natural resources. The Land Code, 1954 is the basis for the legal system of land rights in Thailand today. It provides for
120 various types of land tenure and associated rights, and for the establishment of a Land Allocation Committee. It also covers the protection of land, arrangements for the utilisation of State land, land allocation, issuance of documents evidencing rights to land, land surveys and land titling and registration. The Agricultural Land Reform Act of 1975 was enacted to address the issues of tenancy, landless households and allocation of state lands. The Act created the Agricultural Land Reform Office in the Ministry of Agriculture and Cooperatives to implement land reform programmes. The Land Development Act, 1983 provided for the establishment of a National Land Development Committee to help improve the utilisation and productivity of the agricultural land.
Thus, the land tenure and land administration systems of Nepal, Bangladesh and Thailand are determined by various laws and by-laws formulated in accordance with the local requirements.
4.4.2 Organisation Structure
Various efforts were made to develop a land administration system in Nepal in the latter half of the 19th Century. Enactment of National Code, 1854, involved chain surveys of farm land of Terai and Hilly regions, cadastral surveying of Sindhuli district, establishment of land office, classification of land in Abal, Doyem, Sim and Chahar42, preparation of land records in Terai and establishment of Pota Registration Adda (Land Registration Office) in Kathmandu, Lalitpur and Bhaktapur, which all developed a foundation for land administration (MOLRM, 2011). Beginning of registration of deeds in the land office, commencement of cadastral surveying in Bhaktapur district and establishment of the Survey Party Office were other early steps in the development of land administration in Nepal (ibid). The government tried to introduce new laws and establish new institutions after the political changes of 1951. The institutional framework established in the 1950s and 1960s has shaped the modern land administration system of Nepal.
Land administration functions in Nepal are structured under a single ministry called the Ministry of Land Reform and Management. As mentioned in MOLRM (2013), the main functions of this ministry are implementation, monitoring and evaluation of the policies,
42
121 plans and programmes, land administration and revenue collection, and national and international issues related to land. The ministry also establishes and maintains geodetic control networks, produces topographic maps, aerial surveys and geo-information, manages Guthi Corporation and Guthi land, implements land reform programmes, and undertakes human resources development through professional training in land surveying, mapping and land management (ibid). These functions are carried out by its five central level offices, two national level projects, and 196 local offices (Figure 4-5). The Department of Land Reform and Management (DOLRM) is responsible for land reform and land management activities; the Survey Department prepares cadastral maps and land registers; and the Department of Land Information and Archive (DOLIA) is responsible for archiving land records, providing reliable land information and developing a national spatial data infrastructure (ibid). Similarly, the Freed-Kamaiya Rehabilitation Programme deals with rehabilitation issues of freed-bonded labour and coordinates the activities related to resolving the landless problem and the rehabilitation of freed Haliya,
Badi43 and informal (ibid). In addition, the National Land Use Project is involved in preparing land use maps, and zoning (ibid). The only corporation under this ministry is the Trust Corporation, which conducts the administration of trust land in the country. Around 5,400 people are employed under this ministry (MOLRM, 2011).
Figure 4-5: Structure of land administration organisations of Nepal
Land Revenue Office (83) Department
of Survey
Department of Land Reform and Management Department of Land
Information and Archive
Land Management Training Center Guthi Corporation Land Reform Office (21) Survey Office (83) Guthi Office (11) Ministry of Land Reform
and Management Freed-Kamaiya Rehabilitation Program National Land Use Project Source: MOLRM (2013) 43
122 Similarly, Land Revenue Office, Survey Office, Land Reform Office and Trust Office are responsible for providing land administration services at the local level. The main functions of the Land Revenue Offices are the registration of deeds, issuing ownership certificates, adjudication of unregistered land and updating records whereas the Survey Office deals with parcel subdivision, prepares parcel plans and maintains cadastral maps (MOLRM, 2013). Similarly, the main functions of the Land Reform Offices are to maintain tenancy records, the adjudication of tenancy rights and fixing rents (ibid). The Guthi Offices maintain the records and collect land revenue from Guthi land (ibid).
Other organisations involved in land administration activities are municipalities and VDCs, which provide personal information regarding births, deaths, marriage, divorce, migration and relations, provide valuation reports on buildings, and collect land revenues and property taxes. They are under the Ministry of Local Development.
In Bangladesh, measurement of land was introduced for the purpose of collecting land revenue as in many other countries. Land administration in Bangladesh has a long history that dates back to systems developed by the Hindu rulers of ancient India, and still carries the heavy imprint of the elaborate system of land surveys and registration for revenue collection purposes introduced by the British (CARE, 2003). Sultan Sher Shah (1540-45) had introduced measurement of lands and a regular system of assessment and collection of revenue. But the first real step towards accurate assessment based on a comprehensive survey of land and the establishment of one uniform standard of measurement was achieved by the Revenue and Finance Minister of Emperor Akbar, Todar Mall (1571-82) and this was in practice until 1765 (Hussain, 2012). The Survey Act, 1875, Registration Act, 1908, Non-agricultural Khas Land Management and Settlement Policy, 1995, and Agricultural Khas Land Management and Settlement Policy, 1997 have provided for various issues of land management.
The Mughal rulers had appointed zamindars and talukdars to collect land revenue from the peasants. After taking the dewani of Bengal in 1765, the East India Company appointed some supervisors to look after the land revenue collection mechanism (Ahmed, 2012). A Board of Revenue was set up in 1772 to control and supervise the work of the collectors in matters relating to land administration and collection of land revenue.
123 The Board was reconstituted several times and in recent times was given the status of a fully-fledged ministry called the Ministry of Land Administration and Land Reforms in 1973, and renamed the Ministry of Lands in 1987 (ibid). Similarly, a Board of Land Administration was established according to the Board of Land Administration Act, 1980 which was replaced by the Land Appeal Board and Land Reform Board in 1989.
The structure of organisations directly involved in land administration activities in Bangladesh is depicted in Figure 4-6. The Directorate of Registration is under the Ministry of Law, Justice and Parliamentary Affairs and headed by the Inspector General- Registration. This department records land mutations44 arising through sale, inheritance or other forms of transfer, reports changes to the Ministry of Land, and collects the Immovable Property Transfer Tax through Sub-Registration Offices (NORC, 2009). There are 61 District Registrar Offices, which provide guidance to the Sub-Registration Offices on policy and problems regarding registration, collaborate with the District Registrar Office and Sub-Registration Offices in the collection and management of information, and look after the complaints, operational irregularities and corruption cases involving Deeds and Marriage Registry Staffs and Deed Writers (ibid).
Figure 4-6: Structure of land administration organisations of Bangladesh Office of the
Prime Minister
Ministry of Lands Ministry of Law, Justice
and Parliamentary Affairs
Land Appeal Board Land Reform Board Directorate of Registration District Registrar Sub-Registry Office Land Administration Training Centre Directorate of Land
Records and Survey Assistant Commissioner Lands-Office Tehsil Office Settlement Office Source: NORC (2009)
44Actions of tehsildars and AC-Lands to update record of rights reflecting change in land rights and physical
124 The tasks of land management including management of state land, waste land, vested and non-resident property, boundary demarcation, land revenue and settlement are the responsibility of the Ministry of Lands. The Land Appeal Board, Land Reform Board, Directorate of Land Records and Survey and Land Administration Training Centre are the four central level organisations under this Ministry. The Directorate of Land Records and Survey is the largest organisation among them and employs around 95 per cent of the 6,000 employees of the ministry. It is responsible for creating the base cadastral maps (mouza45 or village maps) by systematic survey and titling of large areas on a continuous and rolling basis. Land settlement and revision settlement throughout the country is undertaken through its zonal and revisional settlement offices (NORC, 2009). Along with the cadastral maps, the settlement survey prepares the initial khatiyan (Records of Rights), a narrative title history of each legal property object recorded in the cadastral maps (ibid). Other responsibilities of the Directorate of Land Records and Survey include preparing maps of the international boundary between India and Bangladesh, preparing, printing and reprinting mouza maps, upazila maps, district maps, and country maps of Bangladesh, providing advice to the government on the above issues, and conducting training for civil service officials (ibid).
The sporadic modification to the cadastral maps and Records of Rights, however, is done by the AC-Lands Office46 and their subordinate tehsil47 level land offices, structured under
the Land Reform Board. The main duties of the AC-Lands Office relating to land include mutation approval (sales and inheritance), administration of unoccupied state lands, administration of the land development tax, and administration of the tehsil level offices staffed by Assistant Land Officers (NORC, 2009). There are eight to 12 tehsil level offices under each AC-Lands Office. The main responsibilities of the tehsil level land office include collection of the land development tax, updating the Record of Rights subject to the approval of AC-Lands Office by recording mutations, land surveys, supervision of Khas land (lease terms), supervision of abandoned lands, and responding to inquiries about land ownership, mutation, litigation, and land surveys (ibid). Thus, the Land Reform Board
45A type of administrative district comprising one or more settlements 46 Office of the Assistant Commissioner of Land
47
125 is most involved in the land record system. It administers Khas land, and manages abandoned and vested property, updates maps and land records between surveys, and sets and collects the Land Development Tax (ibid). It is also formally responsible for the implementation of land reform legislation and the implementation of tenant’s rights (CARE, 2003). The Land Appeal Board is the highest revenue court in the land, serving as the final arbiter in matters of Khas land, changes in records, plot demarcation and taxation, which cannot be resolved at lower levels.
Three other ministries or cabinet level departments are involved indirectly in land administration activities, including the Ministry of Establishment, the Prime Minister's Cabinet Division and the Ministry of Finance; the responsibilities of these involve management of the structure of government and the civil service, local government administration, and taxation and revenues respectively (NORC, 2009). The Ministry of Establishment appoints and transfers the commissioner and other administrative staff of the AC-Lands Office. The Prime Minister’s Cabinet Office also exercises supervisory authority over divisional and district officers.
In Thailand, the Land Code of 1954 and the Civil and Commercial Code published since 1923 provide the foundation for the development of the land administration system and property rights. The Civil and Commercial Code covers the basis of law, obligations and contracts, specific contracts, including transfer, sale and mortgage, property, including its acquisition, extent and exercise of ownership, family, and succession. Similarly, the Land Code covers the protection of land, the arrangements for the utilisation of state land, land allocation, rights in land, issuance of documents evidencing rights in land, land survey, registration of rights, limitations on rights for religious purposes, and limitations of alien’s rights in land.
A number of government agencies are involved in land administration activities in Thailand; they are the Department of Lands, Royal Forestry Department, Agricultural Land Reform Office, Department of Cooperatives and the Department of Social Development and Public Welfare (Figure 4-7). The Department of Lands, one of the Departments of the Ministry of Interior, is the major provider of land administration services. It conducts its function through 75 Provincial Land Offices, 343 branches of Provincial Land Offices, 445
126 District Land Offices and the Bangkok Metropolitan Land Office and its 16 Branch Offices (Nanthamontry and Rakayo, 2007).
Figure 4-7: Structure of land administration organisations of Thailand
Ministry of Agriculture and Cooperatives Agricultural Land Reform Office Department of Social Development and Public Welfare Ministry of Social Development and Human Security Department of Cooperative Promotion Department of Lands Provincial Land Offices (75) Provincial Land Offices Branch (343) District Land Offices (445) Ministry of Interior Bangkok Metropolitan Land Offices Metropolitan Branch Land Offices (16) Prime Minister’s Office Ministry of Natural Resources and Environment Royal Forestry Department Department of Survey Ministry of Defence
Source: USAID (2011); Ministry of Interior (2013)
The Department of Lands is responsible for implementing the Land Code and the registration of land rights throughout the country. It manages two categories of land; the titled public land called Nor-Sor-Lor48 belonging to the government agencies and for communal purposes that guarantees public ownership over land. Another category of land is the private land for which it can issue four forms of documents in accordance with the Land Code, namely: the Title Deed (Chanod or NS-4), Certificate of Utilisation (Nor-
Sor-Sarm or NS-3 and Nor-Sor-Sarm Kor or NS-3K), Pre-emptive Certificate (NS-2 or Bai- Chong), and the Claim Certificate (Sor-Kor-Neung or SK-1) (Nanthamontry and Rakayo,
2007). As observed by Feder et al. (1988), the NS-4 is the most secure, full and unrestricted ownership title, NS-3 and NS-3K are also secure which can be sold, transferred and mortgaged and can be converted to title deed (NS-4), and the NS-2 and SK-1 are less secured documents which can be converted into NS-3 or NS-3K. It is responsible for implementing the Land Code and the registration of land rights throughout the country.
48
127 The Royal Thai Survey Department is under the Ministry of Defence. It is responsible for cadastral surveying. Similarly, the Royal Forestry Department of the Ministry of Natural Resources and Environment is responsible for undertaking surveys of national forest reserve areas declared by the cabinet. This department can issue land documents for plots inside the forest reserves. A programme to recognise the rights of agricultural land holders inside forests, with five year usufruct licences for the land suitable for agriculture was introduced by this department in 1981 (Nanthamontry and Rakayo, 2007).
There are two other agencies under the Ministry of Agriculture and Cooperatives concerned with agricultural land: the Agricultural Land Reform Office and the Department of Cooperative Promotion. The Agricultural Land Reform Office was created in 1975 with the aim of distributing forest reserves to the landless and households with small agricultural land holdings (ibid). It is mainly responsible for three activities: allocating land to the farmers, developing the land in land reform areas and improving agricultural production. It can issue the land use certificate called SPK (Sor- Por- Kor), which can be inherited but not sold. The Department of Cooperative Promotion also issues usufruct licences. The Department of Social Development and Public Welfare of the Ministry of Social Development and Human Security also issues usufruct licences in specific areas. Thus, the land administration functions in Nepal, Bangladesh and Thailand are organised differently. Only one ministry is involved in land administration in Nepal whereas, at least two ministries in Bangladesh and five ministries in Thailand are responsible for these activities.
4.4.3 Land Registration
A typical process of land registration excluding the mortgaging process in Nepal, Bangladesh and Thailand is shown in Figure 4-8 which is prepared based on the information provided in respective land laws and the Doing Business Report, 2013 of the