Draft proposal for amending the provisions related to land acquisition: some room for improvement.

The state cannot claim the right over an individual’s property, and does not have the power to requisition it, unless it is to be used for the common good

April 19, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 07 No. -20 April 18- 2014 (Baishakh 5, 2071)

Land is an immovable property. According to the prevailing laws, “land, revenue from the land, and things attached to the land are immovable property,” and property other than what is immovable is movable property [Interpretation of Laws Act 1954, sections 2 (11) and (15)]. Similarly, “land means all categories of land, including those with buildings, gardens, trees, factories, lakes, ponds etc.” [Land (Survey and Measurement) Act 1963] Another provision under land acquisition has defined it as “land belonging to any person, and walls, buildings, trees, etc., permanently attached to it.”  [Land Acquisition Act 1977]

In Nepal, like in many other countries around the world, the right to own land is constitutionally protected as a fundamental right. Furthermore, this right is also guaranteed as a citizen’s right [Interim Constitution of Nepal (2007), article 19; Civil Rights Act 1955, section 9]
Constitutional and legal provisions

With the exception of the United States Constitution, the constitution of all nations were written in the 20th century. In the last two centuries, individual rights and freedoms were given too much importance, perhaps due to excessive arbitrary encroachments on individual liberties in the past. Once defined as fundamental or basic rights, these individual liberties found their way into the spirit of the law, the constitution, of various countries. More interestingly, provisions were made for appealing and treatment regarding the violation of these rights, defined as fundamental, to fall under the jurisdiction of the highest court of the country (the Supreme Court, in the case of Nepal). In other words, timely treatment by the highest court was enshrined in the supreme laws of most nations. The right to moveable and immoveable property is one such right.    

The current constitution, like those in the past, protects the right to own property as a fundamental right. Under this article, citizens have been given the right to acquire, enjoy, buy, and sell property. The state cannot claim the right over an individual’s property, and does not have the power to requisition it, unless it is to be used for the common good. In such cases, there is a provision for the state to provide the appropriate compensation. Article 32 of the Interim Constitution ensures that any violation of fundamental rights under this provision falls under the jurisdiction of the Supreme Court. In conformity with the constitutional provision, section 9 of the Civil Rights Act 1955 states that “no one shall be deprived of his/her property without the authority of the prevalent law.”

In Nepal, the Petty States and Rulers Act 1961, Birta Abolition Act 1959, Land Act 1964, etc. abolished sarpat, kipat, birta, and other forms of landlordism. At the time, even though some individuals sought legal remedy against the infringement on their fundamental right to own land, this was impractical because of autocratic state mechanisms: there was a fear of the monarch and the judiciary did not dare to go against his will. Otherwise, it was possible to raise issues of fundamental rights – as right in rem – according to the Constitution and law.

On inspecting the 25 decisions made on the related issue by Nepal’s Supreme Court in the last 20 years, it seems that the legal acquisition of land for the common good has been seen positively by the Court. With a few exceptions, land acquired in accord with law has not generally been declared illegal.

Review

The law was made such that the state cannot simply claim what is generated by nature. Therefore, the draft of this bill has been made to address the legal acquisition of land in the interest of the public. 

Section 2 (c): In the last sentence under the definition of ‘land’, ‘situated’ is a more appropriate word than ‘attached’.

Section 2 (j) (1): It would be more appropriate to replace ‘people’ with ‘ordinary people’.

Section 2 (j) (2) (1): In the context of heading towards federalism, careful attention must be paid to phrases like ‘local bodies’. Hence, phrases like ‘public bodies’ might be more appropriate.  

Section 2 (j) (2) (10): Perhaps it would be appropriate to replace the phrase ‘financial missions’ by including it under diplomatic missions.

Section 2 (j) (2) (10) should be followed by (11): “To protect natural resources and to establish and/or manage monuments.”

Section 2 (l): Keeping in mind the possibility of electric trains and trams in the near future, phrases like ‘electric energy- based transportation and their foundations’ should be used to indicate ‘ropeway’, ‘cable car line’, and ‘trolleybus’. Similarly, the meaning of ‘open area’ needs to be clarified. Finally, it would be appropriate to add the following after the phrase “the building of other foundations”: “that have been specified by the GoN by publishing in the Nepal Gazette.”   

Section 3: remove the phrase ‘for the state’

Section 4 (1): ‘any quantity’ should be replaced with ‘appropriate quantity’

Section 4 (2): ‘disappearing ethnicities’ should be followed by ‘single women, juveniles, the differently-abled, and those above 70 years of age’. 

Section 5 (1): It is appropriate to allow companies to acquire land only for foundational development programs. The use of the phrase ‘for the public interest’ is too open-ended. Also companies can lie about doing something for the common good. It will be necessary to keep a close eye on these activities. (In processing, for example, if skin and other waste from dead animals are not managed properly, the business, done in the name of agricultural productivity, can cause more harm than good.)

Section 10 (3): A provision is needed for the officer undertaking preliminary action to coordinate with the relevant forest authority in cases where trees need to be cut down, and with the Department of Archaeology where walls need to be removed in any place of religious or historical importance.

Sections 11: It would be appropriate to rethink making the decision of an appellate court final in cases related to compensation. 

Section 14: The reference to 2 (d) (5) should be replaced with 2 (e) (5).

Section 19 (2): In addition to the approval of the tiller of the land, the approval of co-inheritors and rightful owners of the land seem most appropriate, in the very least. If the piece of land under question has been kept as a security, the approval of the institution keeping it as a security would also be positive.  

Section 21: It should be clarified that the one who gives away land shall take responsibility, in case the rights and welfare of others are impacted by the giver’s actions.

Sections 23,24,25, and 26: How appropriate is it to acquire approval from the district court during the process? Given that the Legislature Act provides this authority to the executive organs of government/administration, it does not seem appropriate to involve the judiciary.

In Article 24, it might be more appropriate to limit the involvement of the district court to cases going against the common good or the law, and not involve the court during the process. Similarly, how appropriate is it, in section 25, to limit the right of the district court to ask for renegotiation, except for cases where both parties are in agreement? It might also be unwise, in section 26, to not allow the decision of the district court to be challenged in an appellate court. In the context of 41, it might be appropriate to make provision for a tribunal in cases related to the acquisition of administrative land, rather than letting a district court handle them (38). Similarly, it would be good to make a provision for appealing the case in an appellate court, in case the judiciary does not find the compensation determined by the tribunal to be acceptable.  

Since the involvement of the judiciary is asked in the process of land acquisition, it would be wise to take approval from the Supreme Court.

And, finally, in section 29 (2), it would be appropriate to disclose such information through the website of the Ministry of Land Reform and Management, or the concerned office.
Conclusion

Overall, it seems that the draft bill has included all aspects of the land acquisition debate. The effort is commendable. Yet there is room for improvement in regards to the language, use of appropriate words, and practicality. There is the possibility that some provisions might have to be reviewed after the federal state restructuring guaranteed by the Interim Constitution and the Peace Agreement. It would be wise to keep in mind that the restructuring will impact the names of the local bodies and officials, and their division of responsibilities, presented in the bill. 

The shape of federalism will ultimately impact the mechanism of land acquisition. However, if a federal state gets the authority to acquire land through laws made by federal legislature, the act passed by the Parliament at the centre can play a role as a set of guiding principles.

The role of the judiciary needs to be questioned. How wise is it to involve the judiciary in the actual process of acquiring land, given that it seems like an administrative matter? But on issues dealing with the question of rights, it seems wise to involve the judiciary. The only concern lies with involving it in the procedural aspect of land acquisition.

Managing the acquisition of land is the job of the administration (executive arm of government). From a legal point of view, it does not seem wise to include the district and appellate courts in the process of land acquisition, which has been the case in several sections of the bill. If the role of the judiciary in that capacity is thought of as appropriate, it would make sense to make such provisions only if/when a special court is created someday.

In regards to the acquisition of land by companies: A) The definition of a company, 2 (a), should include government and public companies. Firms, organisations, and institutions of private nature should be excluded from this definition. B) As far as possible, this Act should not be used to acquire land for private companies. C) Land given to companies should only be given in lease. The ownership should not be given to the company. D) The bill should mention what kind of companies can be given land through this process. The short-term and long-term impacts on many lives and the environment in the Union Carbide incident in Bhopal and the leakage of radioactive rays in the Chernobyl disaster show the kind of situations that badly-managed companies can create. Companies like Shell, Chevron, and Total British Oil, in the process of extracting oil, have destroyed agricultural land, killed animals, caused desertification, and damaged human health. Many African and South American countries have seen their lands and biodiversity destroyed due to the leakage of oil. Keeping all these things in mind, what kind of companies should be allowed to acquire land?

Deadline for paying compensation:

A) Keeping in mind the increase in prices and inflation, compensation should be paid as soon as possible.

B) The payment deadline should be pushed closer.

C) It would be appropriate to exclude the provision to return land, once acquired.

The bill should embody the principle of ‘no displacement for replacement’:

The provisions under section 2 (j) – (3), (4), (5), (7), and (8) – are conducive to one party benefiting and the other losing. It is not desirable to allow land acquisition from this angle. (7) and (8) seem repetitive as they can be included in the provision under 12 (foundational development).

No provision should allow the acquisition of ‘any quantity’ of land ‘anywhere’ (section 4). A) From a human rights point of view, the acquisition of land inhabited by indigenous people since time immemorial or by disappearing ethnic communities should not be allowed. B) As a result of the above-mentioned point, the acquisition of land owned by poor and marginalised people (section 32) will not be possible. C) Land of historical, religious, cultural importance or having valuable natural resources should not fall under the purview of this bill. A provision should be made for compensation if the land acquired is not used in the way described for the purpose of acquisition, or used in a way that degrades the quality of the land or decreases its fertility.

This research and recommendation paper prepared by legal expert Bishal Khanal for the Nepal Constitutional Foundation has been finalised based on the inputs given by various pressure groups: women’s, ethnicity-based, Dalit, Madeshi, youth, and others. The Constitutional Foundation would like to thank Laxmi Prasad Uprety, Narendra Pathak, Shanti Mishra, Sajana Maharjan, Radha Tendulkar, Rambahadur Mijar, Sarala Moktan, Kailash Subba, Ratna Kumari Shrestha, Dinesh Tripathi, Mukti Bahadur Regmi, Kripasur Niraula, Dhana Lama, Khil Nath Ghimire, Shareen Tuladhar, B.P. Bhandhari, as well as Sabin Rana, Ganesh Datta Bhatta, and Dr Bipin Adhikari.

This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.

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