The road expansion drive that has been changing the face of Kathmandu has received applause from many who believe that nothing beats the happiness of plying vehicles on wider roads. Many pedestrians seem to be equally happy with the wider footpaths. A great job by the state – it seems. While we are talking about this expansion drive, I would like to urge the readers to keep a simple fact in their mind – “Nepal ranks 78th out of 97 countries in the world, in terms of Property Rights Index,” as per the International Property Rights Index Report, 2014.
There are, as the index reflects, some serious concerns related to road expansion drive—the violation of the constitutionally protected ‘Right to Property’ being one, and ‘non-compliance with the due process’ being the other. When a state cannot safeguard the constitutionally guaranteed right to property, the fundamental of state itself is violated. When people are insecure about their ownership of the fruits of their labor and the property they earn, they lose the incentives to earn. Violation of property rights, consequently, creates obstacles for economic prosperity.
Mr. Bijay Ghimire, permanent resident of Battisputali, Kathmandu has been fighting for over a decade to protect the private property which was inherited by his father. The first shocker came in 2003, when his phone rang and he was notified of the government plan to build a road over his private property. A few days later, municipality officials along with some locals and the police force came, asking that he give up his land. In a bid to protect his constitutional right, he took the matter to the Supreme Court, filing a case against the Kathmandu Metropolitan City. In November, 2006 the Supreme Court made a verdict in his favor. Court ordered Kathmandu Metropolitan City to acquire his property as per Land Acquisition Act, 2034. But municipal authority never respected Supreme Court’s order.
Mr. Ghimire again went to Appellate Court, this time against Road Division Office, Department of Roads, Sano-Gaucharan, Kathmandu. In June 2010, appellate court decided in his favor and ordered discontinuation of road expansion. However, as it stands today, the department has constructed a blacktop road without following due process of land acquisition – sheer disregard to the law of the land! He lost 11 aanas (349.69 square meters) of his private land, whose market value stands around NRs. 44 million. Further validating the Property Rights Index, the state has not paid a penny worth of compensation till date.
Moreover, Mr. Pradeep Agrawal’s two-story house in Lazimpat-3 was demolished in the year 2012. Though his house resided on legal ground, he was accused of encroaching public property and the blame put by the state authority on his family compelled him to bear heavy social costs. His relationship with his neighbors soured as a result of the accusation. Although he has only recently been compensated (which covered a fifth of this re-construction cost) for the state-endorsed demolition, he has not been compensated for the loss of land which has a market value worth NRs. 9 million.
Mr. Bishnu Man Shrestha, a resident of Tutepani, Lalitpur feels helpless as the road expansion drive has a massive loss in store for him. He owns eight aanas (254.32 square meters) of a triangular plot of land which faces roads on either side. If he complies with the notice issued by Lalitpur Sub-Metropolitan City Office, he is left with just 2 aanas (63.58 square meters) of land. As per the current market value of land, his property worth NRs. 15 million is at risk. And he has absolutely no hope that he will be duly compensated for his loss.
Mr. Bijay Gopal Shrestha, a resident of Khumaltar, Lalitpur has a similar story. The state authority marked his property for road expansion and he is now compelled to give up 19 aanas (604.01 square meters) of his land. The market value of his land stands at around Rs. 47.5 millions. He bought the land with his hard earned money and the uncertainty over the compensation scares him.
These two latter cases of road expansion are being conducted as per the Guided Land Development Program under the Town Development Act, 2045. As per this Act, individuals like Bishnu Man Shrestha and Bijay Gopal Shrestha are entitled to compensation funded equally by the beneficiaries of road expansion and the Town Development Committee. The prevailing Act also provides for stakeholders’ meetings. However, these individuals were neither informed about consultation meetings nor did they have a say in the process. Moreover, Article 16 of Town Development Act, 2045 states, “Government of Nepal, for implementing town development program, will facilitate Town Development Committee within the prevailing legal framework” and under the current legal framework, Interim Constitution of Nepal ensures the protection of property right.
“When a portion of wealth is transferred from the person who owns it — without his consent and without compensation, and whether by force or by fraud — to anyone who does not own it, then I say that property is violated; that an act of plunder is committed….. It is not true that the legislator has absolute power over our persons and property. The existence of persons and property preceded the existence of the legislator, and his function is only to guarantee their safety….. The mission of law is not to oppress persons and plunder them of their property, even though the law may be acting in a philanthropic spirit. Its mission is to protect property.”
– Frederic Bastiat, The Law