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Nepal (2018)

Land policy in Nepal has been changed intricately during past historical regimes. As an epoch-making event, after Land Act 1964 was enacted, it is said that agricultural land reformation to individuals from royal owned land was promoted. However prior to 1990, there was no official constitutional obligation for the State to pay compensation for the acquisition of personal property . For the first time, Constitution 1970 expressed private property right clearly as ‘No person shall be deprived of his property save in accordance with the law’ and following tentative Constitution (2007 elaborated more about expropriation of private property by the state for public purposes. 

 

Land Acquisition Act 1977

The Land Acquisition Act 1997 (2034 BS) has been enacted to integrate the laws for Acquisition of Land, 1962, and partially updated in 1993 by its subsequent amendment. The section 3 of the Act empowers the government to acquire land at any place, for the purpose of public works by providing the required compensation to its owners. The Act obliges the government to consider the compensation for acquisition of land for the benefit of the local people. Article 12 established Compensation Fixed (Determination) Committee as a leading organisation for fixing compensation unit price. Steps of land acquisition plans as per Land Acquisition Act 1977 are as follows:

  1. Department of Road will forward a proposal for land acquisitor to the Ministry of Physical Infrastructure and Transport

  2. Ministry approves and orders the initiation of acquisition process

  3. Compensation Determination Committee (CDC) to be formed under chairmanship of respective Chief District Officer (CDO)

  4. Publication of notice for the land acquisition in national level newspaper

  5. Owners may file complaints within 15 days notification of Gov of Nepal through CDO

  6. Resolution by Home Ministry, Government of Nepal within 15 days of filing complaint

  7. Start land acquisition and compensation payment

 

Land Acquisition Guidelines 1989

The Land Acquisition Guidelines and guidelines pursuant to section 16 and 17 of the Land Acquisition Act 1977 specify two categories of affected families, namely PAF and SPAF. A PAF consists of the members of a household including elderly dependents and minor children residing under one roof and operating as a single economic unit, who are adversely affected by the project. SPAF is defined as a family who loses over 25% of its total land holdings or whose land is reduced to an uneconomic holding (less than 5.0 katha) or who is being displaced. 

Under these guidelines the concerned officials with the assistance of the project team, are to carry out assessments of project affected families to identify their standard of living and types of assets. Valuation of land and asset lost were to be based on comparative market values of similar assets in the vicinity. The guidelines also included arrangements for rehabilitation of project affected families. For PAFs, the compensation package includes cash for assets acquired or damaged by the project and a rehabilitation grant (assistance allowance) to cover any suffering and hardship. For SPAFs, the compensation additional include employment for one family member and provision of skill training. 

 

The Guidelines specify the establishment of an Acquisition and Rehabilitation Committee ( also knows as Compensation Fixation Committee CFC) consisting of the concerned Chief District Officer (Chair), Land Revenue Officer, representative of the District Development Committee (DDC) and the Project Manager and others as deemed necessary. The Committee is responsible for acquiring land and paying compensation. In 1993, a second set of guidelines reduced the Acquisition and Rehabilitation Committee to a four-member Compensation Fixation and Rehabilitation Management Committee by dropping the Land Revenue Officer and other governmental appointees. The functions and powers of the committee were clarified, as were methods of payment and means of ensuring fair value of land quality. 

 

Public Road Act 1974

 

The Public Road Act 1974 has been enacted to ensure the construction an operation of the road projects smoothly. Section 3 of the Act empowers the government to prohibit the construction of permanent structures (buildings) in the prescribed distance from the road, i.t. the Dept of Road has the authority over everything within the boundaries of the road. The DOR may acquire temporarily the land and other property adopting compensatory measures during the construction, rehabilitation and maintenance of the public road (Sections 14 and 15). The Act obliges the DOR to plant trees on both sides of the road and hand it over to the local bodies (VDC or municipality) for their management (Section 16). The Act also empowers the DOR to operate quarries and borrow pits and other facilities during the road construction (Section 17). In sum, the Act facilitates the construction of this road by even acquiring land and property including for the execution of construction materials and development of other facilities during road construction through compensation as negotiated and as well as to maintain greenery along the roadside. 

 

Public Road Management and Land Acquisition Directives DOR 2002

The DOR has published a directive for Public Road Management and Land Acquisition in 2002 for the use in road management and land acquisition in DOR’s Sector Wide use. This Directive specifies two categories of affected families, PAF and SPAF. A PAF consists of the embers of a household including elderly dependents and minor children residing under one roof and operating as a single economic unit, who are adversely affected by the project. SPAF is defined as a family who loses over 26% of its total land holdings or whose land is reduced to an uneconomic holding (less than 5.0 katha) or who is being displaced. 

 

Under this Directive the concerned officials, with the assistance of the project team, are to carry out assessments of the project affected families to identify their standard of living and types of assets. Valuation of land and asset lost were to be based on comparative market values of similar assets in the vicinity. The Directive also included arrangements for rehabilitation of PAFs. For PAFs, the compensation package includes cash for assets acquired or damaged by the project and a rehabilitation grant to cover any suffering and hardship. For SPAFs the compensation additionally include employment for one family member and provision of skill training. 

 

Environmental and Social Management Framework DOR 2007 

This Environmental and Social Management Framework report (ESMF) is prepared for the DOR to compile in an overview and guidance manner, various safeguard and compliance aspects of environmental and social issues related with the Sector Wide Road Program and the Priority Investment Plan Study for Nepal’s Strategy Road Network (SRN) planning for 2007 to 2016. The Study commenced in September 2005 and was completed in December 2006. The ESMF intends to provide technical and managerial inputs and guidance into the design of the strategic roads (both designated for rehabilitation and to lesser extent to new construction), through identification of key environmental and social issues related to the foreseen projects mitigate potential impacts and concerns and devise opportunities to enhance the benefits. The framework integrates in a step-wise approach the most important environmental and social considerations into all stages of project preparation, implementation, monitoring and operation and is applicable to all future sub-projects funded under the SRN program. The ESMF is applicable to all proposed subproject activities and through all stages of the subproject cycle, i.e. from pre-planning, planning and design, implementation to post-implementation. The design flow of ESMF activities will be coordinated and integrated into the project cycle. 

 

Land Acquisition, Resettlement and Rehabilitation Policy (not enforced as of 2015 - check to see if it is enforced now)

The government, Ministry of Land Reform, has prepared Land Acquisition, Resettlement and Rehabilitation Policy under technical assistance with ADB, however, the policy has not yet been enacted in Nepalese Gazette. The drafted policy emphasises scientific standards for land valuation and extension of compensation equivalent to minimum market value of land. A provision in the policy allows the government to take action against those who try to disrupt land acquisition process or create hurdles for the project. In this regard, the policy has stressed on the need to first assessment of socio-economic impacts of a project. All expenses related to land acquisition, compensation and implementation of resettlement and rehabilitation plans should be considered as a project cost. 

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In general there are no significant gaps with IFI requirements. The only issue may be the determination of compensation rate, as in past cases there were deductions and/or government fixed rate lower than the market price. There is no regulation on cut-off dates and eligibility is not clearly defined in national legislation. Cash forehand is the common way of compensation for both formal and informal land, and PAPs in general prefer cash. Support for transition period is not clearly mentioned in national legislation. 

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