1.

As per the Land Acquisition Act 2034, State can acquire any type of private property but
the Article 25 of Constitution of Nepal has guaranteed Property Right as Fundamental
Right. Do you think that Provision of Land Acquisition Act 2034, regarding to acquisition
of land is inconsistent with the Article 25 of the Constitution of Nepal? Justify.

Question no. 1 answer

The Land Acquisition Act, 2034 B.S. was promulgated as to fulfill the need to amend and
consolidate the laws of Nepal pertaining to land acquisition. The basic objective of this Act is to
offer the land to the general public welfare.

Nepal: purna bahadur vs. Land reform office, NKP 2050.

The supreme court of Nepal has defined property in this case as, property means not only
physical substance having his/her ownership but to possess or control such substance or to
benefit from using such substances is also property.

Section 251 0f the Muluki Dewani Samhita, 2074 has defined property in a broad sense as, any
cash, goods or work shall be deemed to be a property if such cash, goods or action can be used or
transacted in or the title thereto can be transferred by way of purchase, sale or otherwise or any
benefit can be derived therefrom.

India: west Bengal v. Subodh Gopal 1954, SLR , 587

The Supreme Court of India has defined property as an inherent right of the state. The state can
acquire any type of property for the public purpose.

America: Nevia v. New York

The Supreme Court of America, stated Right to property is not however absolute, it is subject to
eminent domain (inherent right to state to compulsory acquired private property for common
good).

Despite the fact that the right to property is a fundamental right in context of Nepal Provision of
Land Acquisition Act 2034, regarding to acquisition of land is not inconsistent with the Article
25 of the Constitution of Nepal. As the constitution also mentions in article 25(2) of the
constitution that The State shall not, except for public interest, requisition, acquire, or otherwise
create any encumbrance on, property of a person. Also, section 3 of the land acquisition Act
states that the state can acquire any type of land with compensation for the public purpose as
mentioned in the constitution too.

Eminent domain

Eminent domain concept is based upon the philosophy that the state has the power of the to take
private property for its conversion into public use and the consequent right of the owner to
compensation are well established.

2 principles of eminent domain

 Salus populi supreme max: regard for the public welfare is the highest law
 Nacassita public major ext quam pribata: public necessity is greater than private
necessity.

These principles are the basis of establishment of the concept of eminent domain in the domestic
law of the nation. This philosophy has also been used in Nepal and can be seen in article 25(2) of
the constitution of Nepal as well as land acquisition Act, 2034.

The theories of eminent domain:

Mathew Herrington an American prof. of law developed 3 theories based upon the jurisprudence,
legal system and judicial decision regarding land acquisition. They are as listed below:

a. Reserve right theory

 first theory conceives eminent domain reserve right of sovereign. state is sole owner and
land is occupied by individual in a contract.

b. Inherent right
second theory presumed eminent domain as inherent right of state. After the formation of
state has a territory occupies a land.
c. Consent theory
Third theory argues that inherent domain power emanates from consent of the
government.

Case: Netra raj Pandey vs. PM & cabinet office ktm

supreme court of Nepal stated as per the provision relating to article 19(2) as fundamental right
of citizen & right of eminent domain of citizen of the state. Right of eminent domain means state
has sold and exclusive right over all kinds of property of state. Under this authority of eminent
domain within all property of individual could be acquired providing compensation for states
public work, public interest and public purpose only.

Public purpose

Anything that would promote the welfare of the people could constitute a public purpose. The
expression public purpose would however include a purpose in which the general interest of the
community as opposed to the particular interest of the individual is directly & vital concern.

Section 2(b) of the land acquisition Act, 2034 has defined “Public Purposes” as a means
undertaken in the interest of or for the benefit or use of the general public, or functions to be
undertaken by Government of Nepal and the term also included the following:

 Project approved by Government of Nepal

 Project undertaken by local bodies in different levels.

Judicial view regarding public purpose:

 i. Kedar bahadur v. Education Ministry

When the HMG had acquired land for KU, kedar bahadur filed the case against the act of the
government. The supreme court of Nepal observed that, HMG can acquire land for the
Kathmandu university. The Kathmandu university which is established under the Kathmandu
university Act is not a profit organization rather is established for public purpose. Thus, the
SC decided in favor of the Kathmandu university.

ii. Ram Kunwar vs. state of west Bengal, AIR 1963

It was held that public purpose would include a purpose in which the general welfare of the
community as opposed to the particular interest of the individual is directly & vitally
involved.

iii. Sanu Shrestha case

In the issue relating to expansion of road in the kritipur- kalanki area the state denied
compensation to the people whose land were being acquired by the government for the land
expansion. The supreme court of Nepal held that, State can acquire land but this doesn’t
mean that the state can deny individuals right i.e., state cannot deny compensation before
acquiring the land. The supreme court further stated;

 if an individual land is to be taken, they are to be compensated;

 Places of archeological and religious value are to be considered and;
 if better option is available other than taking an individual land then such options are
to be explored and chosen.

To conclude:

As per the Land Acquisition Act 2034, State can acquire any type of private property but
the Article 25 of Constitution of Nepal has guaranteed Property Right as Fundamental
Right. this Provision of Land Acquisition Act 2034, regarding to acquisition of land is not
inconsistent with the Article 25 of the Constitution of Nepal.
Despite the fact that the right to property is a fundamental right in context of the constitution also
mentions in article 25(2) of the constitution that “The State shall not, except for public interest,
requisition, acquire, or otherwise create any encumbrance on, property of a person”.

This means that the state can acquire individual land for the purpose of public interest.

Also, section 3 of the land acquisition Act states “Government of Nepal has power to Acquire
Lands for Public Purpose : Government of Nepal may, if it so deems necessary, acquire any land
at any place for any public purpose, subject to compensation under this Act”

Thus, the provision mentioned in Land Acquisition Act 2034, regarding to acquisition of land
is not inconsistent with the Article 25 of the Constitution of Nepal.

The philosophy regarding the power of the state to acquire an inf=dividual property is based
upon the principle of eminent domain being based upon which the laws regarding the
acquisition of individual property for the purpose of public interest and public purpose is deemed
valid and is mentioned in article 25(2) of the constitution. This matter is of “ individual v.
general public benefit” where the benefit of general public or the maximum number of
individuals is looked upon but this does not mean that the individuals rights are curtailed without
proper compensation. Since compensation is to be provided compulsorily to an individual after
acquisition of their land the land acquisition Act mentions about the provisions regarding
compensation in section 7 of the Act and this has been established through judicial decisions too
as in Sanu Shrestha case.