Eminent Domain v Private Property Rights

"Where the people fear the government you have tyranny. Where the government fears the people you have liberty."- John Basil Barnhill

When the people vote for their government, they put forward their trust and hope for the best representation. The people expect their representatives to protect their rights. However, it has not been the case for the people of Balaju. They never expected the government to bulldoze and reduce their houses to piles of dust.

The government shall not acquire the property of a person unless it is for public use and until just compensation is paid. The rationale is that the individual must sacrifice his/her right to property for the sake of the common good benefiting society at large but get just compensation in its stead. So where do we draw the line between Eminent Domain versus Right to Private Property? How can we define “greater public good” ? How do we distinguish the power of the government to rob people of their houses in the name of development? Is it tyrannical or are the actions justified?

Eminent domain is subject to certain constitutional limits such as: the property acquired must be taken for a “public use” the state must pay “just compensation” in exchange for the property; and no person must be deprived of his/her property without due process of law and the government's action should be rational and legitimately reflect public interest.

The Constitution of Nepal has given every citizen a right to housing and owning property but at the same time has enabled the government to acquire private property for public good, public necessity or public benefit by paying compensation. In addition, Section 15 of the Public Roads Act states the requirement of Compensation of Land to be requisitioned and the necessity of fixation of compensation while Section 3 of Land Acquisition Act, 2034 states that GON may acquire any land for any public purpose but it is subject to compensation.

The problem lies here, since the affected families claim that they were evicted without information, consultation and compensation even if their lands and homes were taken in the name of development and the public good, they didn't have prior information and they still haven't received just compensation. The fact that the government has failed to fulfill their basic responsibility to give them temporary shelter until they get compensation and have a roof over their heads shows how the government has failed to fulfil their duty and has failed the citizens displaced by this road expansion. Hence, the taking of their lands is illegal, unconstitutional and tyrannical.

If large groups of people are being affected negatively or if people have been displaced due to road expansion in different parts of Kathmandu valley along with Kalanki,

Thankot, Harisiddhi, Balaju, and approximately in other 22 different parts, in the name of road expansion, where road widening drive was conducted. How do we determine what "for the greater public good/ interest" is?

Even when the Judiciary stepped in to protect the rule of law and maintain the supremacy of the constitution, the rights of the citizens have not been protected. For instance, on August 7, 2016, when the High Court issued an interim order for the government to halt the road expansion metropolitan authorities continued to destroy the houses built on both sides of the road. On March 7 , 2021, the stay order of the Supreme Court was ignored and the construction work on Bypass Road of Kathmandu Metropolitan City-16 was taken ahead.

In a democratic regime, where we supposedly check and balance power of all three branches of the government, this harms public trust and makes a mockery of rule of law. This will in turn incite public outrage, cause tyranny and might lead to coup d'état. When one branch overpowers the other it creates chaos.

 

 

 

 

 

 

 

 

 

 

 

 

Anjila Shrestha

Anjila Shrestha is a research intern at Samriddhi Foundation. She is a recent law graduate from Kathmandu University School of Law.

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