Constitutional and legal provisions:
The present Constitution (interim), like those of the past, guarantees the right to property as a fundamental right. According to the specific article in the Interim Constitution, every Nepali citizen shall, subject to existing laws, have the right to acquire, own, sell, and dispose of property. Unless it is for the public interest, the state does not have the right to acquire or create any encumbrance on the property of another. In cases where land is acquired for the public interest, a provision has been made for the state to pay an appropriate compensation. Constitutional remedy under article 32 can be sought through the Supreme Court if this fundamental right is violated. In accordance with these constitutional provisions, section 9 of the Civil Rights Act, 1955, states that, “no one shall be deprived of his/her property without the authority of the law in force.”
Commentary on the draft legislation:
A Bill has been recently drafted to outline a procedure for legally acquiring property for the public interest. Overall, it has addressed all aspects that legislation of this sort ought to consider. The drafting is quite exceptional. There remain, however, some key points that are in need of refining.
a) Section 2 (c): In the last sentence under the definition of property, the word ‘added’ should be replaced with ‘located’ or another appropriate word.
b) Section 2 (j) (1): ‘People’ should be replaced with ‘civilians’.
c) Section 2 (j) (2): Given the tendency towards federalism and state restructuring, any reference to ‘local bodies’ can be problematic. ‘Public bodies’ is a more appropriate term.
d) Section 2 (j) (2): The word ‘all’ does not seems necessary.
e) Section 2 (j) (2) (4): Is this conditionality appropriate in the context of land acquisition?
f) Section 2 (j) (2) (5): Perhaps this conditionality should be removed from the Bill.
g) Section 2 (j) (2) (7): This provision should be reconsidered.
h) Section 2 (j) (10): Perhaps it would be better to remove this provision and instead add ‘financial missions’ under ‘diplomatic missions’.
i) Section 2 (j) (11) should be added: “To protect natural resources and to establish or manage monuments.”
j) Section 2 (l): Keeping in mind the possibility of bringing electrical trains and trams to Nepal in the near future, a phrase like ‘electrical energy based modes of transportation and their foundations’ should be used instead of ‘ropeway’, ‘cable car line’, and ‘trolleybus’. Similarly, the meaning of the phrase ‘open area’ needs to be clarified. Finally, it would be appropriate to add the following at the end of the sentence after the phrase “building other foundations”: “that have been specified by the Government of Nepal through publication in the Nepal Gazette.”
2. Section 3: remove the phrase ‘for the state’
3. Section 4 (1): ‘any amount’ should be replaced with ‘necessary amount’ or another appropriate phrase.
4. Section 4 (2): ‘Single women, juveniles, the differently-abled, and those above 70 years of age’ should be added after ‘disappearing ethnic groups’.
5. Section 5 (1): Land acquisition should be made acceptable, where companies are concerned, only if the use contributes to foundational development. The use of the phrase ‘for the public interest’ is too open-ended. Building a tap, a guesthouse, or a rest area may also be, for example, interpreted as benefiting the public interest.
Sometimes, activities supposedly done with the interest of the public at heart can actually be detrimental. It is thus necessary to keep a close eye on such activities. A company, for example, may adversely affect public health by not disposing waste products from processing meat and agricultural produce, although the activities of the company, it can be claimed, are in the interest of the public: local employment and increased agricultural production.
6. Section 10 (3): A provision is needed such that, in cases where trees need to be cut down from a forested area, a prior consultation with the relevant forest authority is needed, and, in cases where walls need to be removed from any place of religious or historical significance, the Department of Archaeology needs to be consulted.
7. Sections 11: The provision of accepting the decision of an appellate court as final in cases related to compensation should be re-evaluated.
8. Section 14 (7): In the context of negotiations, there should be a provision to negotiate with the person mentioned in 2 (e) (5) rather than 2 (d) (5).
9. Section 19 (2): In addition to the approval of the tiller of the land, if applicable, it would be appropriate to seek the approval of or mention the names of, in the very least, the heirs to the property, rightful claimants, and institutions that have accepted the land as securities for loans, if applicable. Additionally, it would be beneficial to clarify, under section 21, that the person from whom land is acquired shall be responsible to anyone else whose rights or interests may be impacted by such transactions.
10. Sections 23, 24, 25, and 26: How appropriate, from a legal point of view, is it to involve district courts during the administrative procedure of land acquisition? Given that the Legislature Act provides the authority for executing such procedures to the executive organs of government/ the administration, it does not seem appropriate to involve the judiciary.
11. In Article 24, it might be more appropriate to limit the involvement of the district courts only to cases that are against the public interest or where the law is violated, instead of involving them during the formal procedure of land acquisition. Similarly, how appropriate is it, in section 25, to limit the right of district courts to ask for renegotiation only to those cases where negotiating parties are in agreement? It might also be unwise, in section 26, to not allow the decision of a district court on matters of land acquisition to be challenged in an appellate court.
12. Under Section 41, it might be appropriate to make a provision for establishing a tribunal to handle cases related to the acquisition of administrative land mentioned in Section 38, rather than keeping the current provision that lets district courts handle them. Additionally, it might be prudent to make a provision that allows decisions related to compensations made by such a tribunal to be challenged in an appellate court.
13. Since the involvement of the judiciary has been brought into the process of land acquisition, it would be wise to seek approval for doing so from the Supreme Court.
14. A provision should be kept under section 29 (2) to post the information mentioned here on the website of the Ministry of Land Reform or any other relevant body.
15. Section 31 (b): It would be better to replace the phrase “a district attorney from the relevant district” with “the head of the district attorney’s office of the relevant district”.
16. Section 32 (2): It would be better to replace “a value equal to the damage or loss” with “a value not less than the market value of the loss.”
17. Subsection (d) should be added as follows after 39 (c): “If compensation is not paid within a specified deadline, the compensation, when awarded, will be paid with interest for the number of days that have elapsed after the deadline.”
18. Section 47 (1): ‘Electricity’ should be added after ‘transportation’ and ‘communication’.
19. Section 48: The following should be added after “for identity”: “the social, environmental, cultural, gender-related, and human rights oriented impacts must be taken into consideration.”
20. Section 51: “Social considerations” must be supplemented with all the other considerations suggested above for section 48.
21. Section 56: This provision for returning land after it has been acquired needs to be reconsidered. This might create administrative complications. Perhaps it would be better to follow the provision under section 55 and sell land, if no longer needed, rather than returning it.
22. In the future, land acquisition may be conducted by state governments under a federal structure. If a law is passed by a state, through the state’s legislature, which gives the state the authority to acquire land, the legislation created by the national legislature can act as a guiding document.
23. How appropriate is it to involve the judiciary in the formal administrative process of land acquisition? Any such provisions should be revaluated. However, the responsibility of deciding on matters related to establishing rights should be given to the judiciary.
24. As mentioned several times already, land acquisition is an administrative process. The involvement of the district and appellate courts, therefore, is not in agreement with the prevalent law. If it has been considered appropriate to involve the judiciary in this process, perhaps this matter can be brought up again after establishing a special court that adjudicates matters strictly related to property.
25. 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 other institutions that are privately owned should be excluded from this definition. Also, the Act must specify a list of acceptable activities for which companies are allowed to acquire land under this Act.
B) As far as possible, this Act should not be used to acquire land for private companies.
26. Deadline for paying compensation: A) Keeping in mind the increase in prices and inflation, a provision must be made to pay compensation as soon as possible.
B) It would be appropriate to exclude the provision to return land once it had been acquired.
27. The provisions under section 2 (j) – (3), (4), (5), (7), and (8) – are conducive to one party benefiting and another losing. It is not desirable to allow land acquisition from this angle. Also, subsections (j) (7) and (8) seem repetitive as they are covered by the provision under section 12 (foundational development).
28. Land inhabited by indigenous people or by members of disappearing ethnic communities, the poor, and the marginalised, as well as land that has historical, religious, and cultural significance or which contains valuable natural resources, should not be subjected to the provisions under this Act. Hence, the Bill should refrain from talking about the acquisition of ‘any quantity’ of land from ‘anywhere’.
29. A provision should be added for paying compensation in cases where land, once acquired, is not used for the stated purpose, and if the quality or productivity of the land is degraded as a result of this.
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, Ram Bahadur 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 opinion expressed in this report are of the authors and don't necessarily reflects of the The Asia Foundation.