Compensation should be fixed on the basis of market value of property

Kathmandu, September 26

The Supreme Court has upheld that government bodies can acquire individuals’ property only after duly compensating the affected parties.

The apex court said this in the full text of its verdict prepared today in a writ petition filed by  Santawana  Subedi of Kageshwari Manahara Municipality-11 and Sunita Paudel of Budhanilkhantha Municipality-10 against the Ministry of Urban Development and Kathmandu Valley Development Authority, among others.

The judgment passed by a division bench of justices Ishwar Prasad Khatiwada and Ananda Mohan Bhattarai states that the process of carrying out development projects and providing compensation to the affected parties could go hand in hand.

The SC said that it never said that the development projects could proceed only after compensating the affected persons. The court said that the government bodies could categorise affected people on the basis of the loss they might suffer. “The government can give first priority to those who lose all their property compared to those who lose minimum or who will benefit from the new projects,” the SC observed, “The only intention of this court is that all grounds and processes should be just.”

“The concerned bodies cannot be allowed to deviate from their basic duty of protecting people’s rights on grounds of economic and other reasons,” it stated.

The government office bearers and defendants’ argument that if individuals’  land had to be acquired then it would be impossible to build  roads  was  wrong, misleading and also against the letter and  spirit of the constitution, the SC observed in its verdict.

The SC said that its precedents stated that compensation should be determined keeping in mind the present market value of the affected persons’  property and replacement value without saying how much money the government should provide as compensation.

The SC said that it had stated in Sanu Shrestha’s case that affected persons could be categorised in three groups —  partly affected, fully affected and those losing all their land. The SC said that similar approach could be used in road expansion plan.

Cost-benefit ratio of a project can help determine economic aspects of the project in the absence of which unnecessary controversy may arise, the court observed.

“Government bodies should consider these things before developing projects and if an argument is made that compensation will not have to be paid or if the court’s verdicts are criticised without thinking about the various aspects, including economic, social and environmental impacts of the project, then that will not support the constitution’s values and norms,” the SC observed.

“This court cannot tolerate the government bodies’ tendency not to document the details of the people who could be affected by a project or their tendency of forgetting the affected people after the project work proceeds,” it said in its verdict.

The petitioners filed the case on February 8, saying they jointly owned two ana land in Ward-4 of Kathmandu Municipality which was not adjoined by any public land but Kathmandu metropolis moved a plan to acquire their land under a guided land development road project without paying compensation to them. The SC passed the verdict on August 1 and prepared the full text today.

Kathmandu Valley Development Authority had argued that it had decided to open a six-metre wide GLD road after holding discussions with the landowners and tenants of the area in question on November 14, 1988 and August 28, 1989 with the consent of the residents but the court did not accept its argument saying there was no written document to prove the argument.