The previous Land Acquisition Act 2034 (1977) in Nepal did not include provisions for private-sector land acquisition. Land acquisition posed a significant challenge for private hydropower investors because they were not covered by the Act. The recently enacted law has proven to be a boon for private sector hydropower projects.
Because the land market is riddled with flaws and challenges, the government must take both a facilitative and substantive role in ensuring more cost-effective land acquisition.
1. What does the term “Land Acquisition” mean in Nepal?
Land acquisition refers to the act of acquiring a land by an individual in a permanent or temporary manner or by any other means or acquisition or to have control over such land by any other means or to create a right over it. Section 2(I) of the Land Acquisition Act 2076 (2019) describes Land Acquisition as the process of acquiring land from landowners for a specific purpose. It is a process by which the government can acquire private land for infrastructure development and hydropower companies. In exchange, the government and private sector will be required to pay the landowner a fair market value compensation and will be responsible for the rehabilitation and resettlement of the affected landowners.
Another term for this is eminent domain law. The power of the state to seize a citizen’s private property without the consent of the property owner is referred to as eminent domain. The current Land Acquisition Act 2076 (2019), on the other hand, expressly forbids the acquisition of land by force. The current law protects the rights and interests of the general public and condemns the forcible acquisition of private property that violates the principle of eminent domain law. The new law was intended to apply to the acquisition of land by private companies; however, the new law changes this to acquisition by ‘private entities.’ A private entity is any entity that is not a government entity and may include a sole proprietorship, joint venture, corporation, corporate entity, non-profit organization, or any other institution under any other law. The private sector is always self-serving. The newly enacted law has thus attempted to protect the general public’s interests in a variety of ways. The new law has protected the interests of poor farmers while also preventing landowners from being exploited in order to advance the personal agendas of private sector entities.
2. Process of Land Acquisition for a Private Hydropower Company
Environmental Impact Assessment (EIA) – Explore the options.
Private hydropower companies must submit an application to the District Administrative Office before acquiring the land. Section 3 of the Land Acquisition Act 2076 (2019) specifies the types of impacts that may be imposed on natural, social, and economic systems. When submitting a report, the amount of land required for the hydropower project should be specified. Determine the number of affected families and the social impact of the land acquisition.
3. Planning for Land Acquisition
Its purpose was to identify the people and assets who would be affected by land acquisition. Based on this assessment, they were to receive not only compensation, but also rehabilitation and resettlement packages. Hiring an independent party, such as Prime Legal Consultants and Research Center, for the assigned task will produce positive results in this case. It should include the payment of compensation to affected families in exchange for land acquisition, the arrangement of alternative land details, if possible, resettlement arrangements, or rehabilitation schemes. The proposed land, house, or any other alternative property details detailing its value in exchange for the yet-to-be-determined compensation.
4. A public hearing should be held.
A public hearing should be held in the area where the land is to be acquired following the completion of the Environment Impact Assessment (EIA) in accordance with Section 5 of the Land Acquisition Act 2076 (2019). The report prepared for Land Acquisition Planning should be shared with the landowners prior to seeking consent to acquire the land.
- A notice should be published three days before the public hearing, and an invitation should be sent to the relevant local representative, project affected family members or representatives, and the area expert, if possible, while the public hearing is taking place.
- The public hearing should be held in the same location where the land is to be acquired; if this is not possible, the public hearing should be held in the same ward area but in a different location.
- The public hearing inputs, suggestions, recommendations, and expert suggestions may be incorporated into the study of social impact evaluation.
- Approval is required.
- Following the conclusion of the public hearing and submission of the aforementioned report, the relevant Ministry or the concerned authority should approve it within 35 days of its submission and receipt.
Section 11 of the Land Acquisition Act 2076 (2019) also requires the purchasing entity to file an application with the District Administrative Office, which must include the following information:
- Intention to purchase land; • Reason for making such a purchase; • Specifics of the land to be purchased
- Include the province, district, or name of the local level, as well as the ward number where the land is located.
- Land Number, if the land measurement is finished.
- If the land to be purchased is to be measured, detailed information about the land must be provided.
- Relevant information that will aid in identifying the land to be purchased.
- The exact land area and type of land to be purchased should be specified.
- The name and contact information for the property owner in question.
- Include the land map, number, and sheet number.
- The name and contact information of the tenant farmer in question.
- The evaluation rate determined by the relevant Land Revenue Office for land registration purposes.
6. Negotiation with the farmer.
Section 22 of the Land Accusation Act 2076 (2019) addresses negotiations with farmers, land valuation, determining compensation, resettlement, and rehabilitation, among other things. Because land acquisition for the private sector is a controversial subject, the new Act includes specific provisions to govern such acquisition. It expressly states that prior consent from affected families is required before a private company can acquire land. Before acquiring the land, private hydropower companies must first satisfy the affected families, according to the new law. This permission must be obtained in the manner specified.
7. Costs of rehabilitation and resettlement are covered.
When the private sector purchases land through private negotiations, rehabilitation and resettlement costs must be paid if the land area acquired exceeds the state government’s limits. The state government will set such limits after taking into account all relevant factors and circumstances that it deems important.
The government recognizes its legal right to work closely with the private sector. The New Land Acquisition Act is essential for the development of Nepal’s infrastructure. It legitimizes the government’s role as a facilitator of private-sector land acquisition for public-sector goals. This current model, with clearly defined goals and constraints, is expected to relieve the concerns of those who have long challenged government aid for private-sector land acquisition. Under this new model, the private sector will find it easier to prevent problems. It will enable the private sector, in particular, to petition the government for intervention and land acquisition.
Under this new model, the private sector will find it easier to avoid complications. More specifically, it will allow the private sector to request that the government intervene and acquire land on its behalf whenever the title to any piece of land is questionable.
The Act conclusively acknowledges that it is simply impossible for a single company to reach an agreement with thousands of farmers and acquire the land, and that government intervention is required when a public purpose is at stake. When a specific piece of land is associated with a specific purpose, such as resource extraction, the government’s involvement becomes even more relevant.
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Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.