Also gives more rights to private landowners than before
One of the unspoken fears of a private landowner in Bhutan is to have his or her land being acquired by the government for some local or national project.
However, the new Land Acquisition and Compensation Rules and Regulations, 2022 (LACRR 2022) of the National Land Commission (NLC) significantly raises the bar for government agencies to acquire private land and also enforces some rights for the private landowner.
Section 4 of the rule says, “Government institutions and Gerab Dratshang proposing to acquire the private registered land shall state the public interest. Any suspicion of conflict of interest undermining the public interest shall be deemed not to be in the public interest.”
Section 5 says, “Government institutions and Gerab Dratshang shall acquire registered land only under unavoidable circumstances.”
Section 23 says that if an acquiring agency has unutilized landholding in the proposed locality, the agency shall not be eligible for acquisition.
Another issue is that there have been many instances in the past where government agencies have taken over private land for various projects from building roads to hydro projects and even started work, but the private landowners languish for years in their attempts to get land compensation or even cash compensation.
This will no longer be allowed under the LACRR rules which will oversee all land acquisition and compensation.
Section 6 of the rule says, “The private registered land under acquisition shall be taken over only after registering the land substitute or payment of cash compensation to the landowner.
A NLC official said, “If a government agency wants to build a school or hospital and wants to acquire private land for it then it has to first ensure land compensation for the private landowner and then only it can take over the land and start the project.”
This section is drawn from the Land Act 2007, but it is now being emphasized for implementation as the ground reality is that government agencies often take over private land and start work before land substitute is given or there is payment of cash compensation.
The new rule under section 10 says that in the event that the land substitute process is being delayed, to facilitate project implementation, the project may consider taking the proposed land on lease by executing an agreement between parties until the land substitute is registered. However, this clause is limited to the national strategic projects only.
This would mean something like a hydro project where farmland or an orchard may have been acquired and the land substitute process is taking time and a person cannot access his crops, but by giving the land on lease the person can collect lease rent from the agency until a substitute is found.
The original Land Act 2007 says that after acquiring a land if the remaining plot size is less than 10 decimals then it will also be acquired by the state.
However, the rules work around this by saying that if the landowner has private land elsewhere bordering state land then he or she can take the substitute for the plot less than 10 decimals from there.
The rule also says that acquisition of land less than 10 decimals that is prevalent before the enactment of the Land Act 2007, shall be eligible for a proportionate land substitute.
Another way land owners suffered in the past was during road construction or widening when private land was acquired in the beginning only to later find in the end that the actual private land used by road is more than stated after digging, drains and support walls.
Here the rule says that for road construction and widening, if the actual affected registered land cannot be assessed in the initial phase, the land substitute shall be processed after completion of the project.
Following the Land Act, it says that in case of private land acquired from rural areas, the landowner shall have the discretion to opt for substitute land or cash compensation or a combination of both, proportionate to the value of the acquired land.
The substitute priority will be given in terms of the same village, same Gewog and then the same Dzongkhag.
In case land is acquired in Thromde, the landowner shall be provided cash compensation. If the land to be acquired is the only plot owned by the landowner in the Thromde, he shall be entitled to a land substitute from the same Thromde. If the value of substitute land is inadequate additional cash compensation shall be provided based on the PAVA rate on the date of approval/acquisition.
In line with the Land Act the rule says the private registered land acquisition shall entail a fair compensation.
Here the official said the official rate is the PAVA rate last revised in 2017 but the process is onto revise the PAVA rates upwards given how high land prices have become.
There is compensation for cash crops as per PAVA rate and for structures as per the Bhutan Schedule Rates.
Another change in favour of private land owners is that the Acquiring Agency has to obtain necessary clearances on behalf of the affected landowner from relevant agencies, and process and release the land substitute cost based on the cost estimation submitted by DLACC within 3 months after receiving the Lagthram.
The Dzongkhag or Thromde shall have the Land Acquisition and Compensation Committee established with the member secretary as Land Registrar of the concerned Dzongkhag or Thromde.
The NLCS shall have the Land Acquisition and Compensation Committee established for a national strategic project.
These bodies can be held accountable under the Penal code for failure to carry out their their functions under these Rules and Regulations and the Act.
A NLC official said the whole intent and ideology behind the rules is to empower the private landowners and strengthen their rights.
He said, “Government agencies can no longer bull doze people now.”