Abstract:
In order to obtain a Certificate of Temporary Land Possession much has been depended upon the authority concerned who use a wide range of discretion in giving the approval. The use of discretion of the official can be said that it derives from the provisions of the law which prescribe the roles of the official so that they are within the boundary of rules and regulations of the society and that the rights of people are protected and peace and order is created. If the use of authority of the official is in such a way as to disturb or transcend the rights of other people, society unrest is certainly occurred. Therefore, the discretion in using the authority must take into account as not in conflict with the law. As a result law can be said to be the source and limitation of the authority of the administrative authority which has both the authority and the use of such authority. The Land Department officers who have the authority as the representative of the State to distribute the land in various forms, especially temporary land possession, to the people must use their discretion according ot the criterions as prescribed by the National Land Distribution Committee, specifically the qualification of those towhich the Land will be distributed for building housing or keeping a living (Part 3,Regulations related to Land Distribution for the Public B.E.2498) An individual who will be granted the land possession for building housing or keeping a living must be a natural person having the following qualifications: I. Must be a Thai nationality. 2. Has become of age or a head of the family. 3. Must be healthy, not incapacitated of incompetent or nusound mind or contacted with abhorrent disease, except the individual is a needy head of a family which the authority is of the opinion to make an excepion. 4. Being diligent in pursuing his career, 5. Being a person of good conduct, not being a person of delinquent or deviate behavior, 6. Having the ability to pursue his career on the land disributed. 7, Do not own any land or own some land but not sufficient for for making a living; 8. Must comply with the rules, regulation and conditions as prescribed by the National Land Distribution Committee. In addition, the intention of land distribution of the Land Department in to Provide land for housing and making a living for those who do not own land or those who so own some land but not sufficient for making a living. However, the review of the qualifications and criteria afore mentioned do require using a lot discretion which might create certain problems as the scope of using discretion has been widely opened to produce legal loopholes in the law and injustice which enable the officers to demand benefit for their own interest or to give favor to their own people. Following from what has been said the people were not able to havethe possession of land as intended by the Land Department, due to the abuse of discretion of the officer. From the above problems, the qualifications of those who are titled to temporary land possession should be amended as follows: (1) The parents of a Thai citizen should be by birth; (2) the phrase "become of age" shall include those reach the age of 20 years or by marriage; (3) The phrase "a healthy person, not incapacitated or incompetent or of unsound mind or contacted with abhorrent disease, except the individual is a needy head of a family which the authority is of an opinion to make an exception should de supported by a certificate of physical examination and neediness should be certified by the local administrative official, Kamnun or village chief evidencing the neediness; (4) Being diligent in pursing his careers; (5) Being a person of good behavior; (6) Being able to pursue a career on the land distributed; (7) Do not own land or own some land but not sufficient for making a living. Sub (4) (5) (6) and (7) should be accompanied with certification from local administrative officer, Kamnun or village chief where the land is situated or the individual resides; (8) Must comply with the rules, regulations and conditions as prescribed by the National Land Distribution Commission. This sub-section should be amended to require the officer to give advice to the individual whom the land has been distributed to take proper actions as required. If the afore-mentioned can be carried out, the problem of the use of discretion of the officer wil be accordingly minimized to a certain degree as well as legal dispute in the Administrative Court. The confidence of the people ni the justice and the use of discretion of the State official would certainly enhanced.