The controversial Education City project is standing on increasingly shaky legal grounds as a strong and detailed letter from the National Land Commission (NLC) sent on January 9, 2013 has declined to lease or allot the 1,000 acre land for the project.
The letter, in a chronological order, states various violations of the Land Act 2007 and Rules and Regulations for Lease of Government Reserved Forest Land and Government Land surrounding the proposed allotment of 1,000 acres for the Education City project.
The Bhutan Education City (BEC) Board chaired by the Ministry of Works and Human Settlement Minister Lyonpo Dorji Choden recently met to discuss the January 9 letter and the BEC Board decided that Lyonpo should once again discuss the matter with the NLC.
It was decided that if the NLC took the same stand as in the letter then the matter would be forwarded to the Cabinet.
Lyonpo Dorji Choden said, “The NLC sent a letter again, today, declining to change their stand expressed in the earlier letter and they have refused to allot the 1,000 acre land for the project citing various legal issues.”
She said, “The project here involves land which is fundamental to the project and we are struggling with some land issues which needs to be discussed.”
She said that the matter would now be referred to an upcoming cabinet meeting where the NLC’s stand would be presented along with any other issues by the BEC Secretariat.
The Cabinet is then expected to take a final decision on the issue. Reliable sources have told this paper that the Cabinet would not be in a position to overrule the Land Act 2007, and in such a condition, the project may get scrapped.
Why the letter says no
The January 9 letter, which was again reiterated yesterday by the NLC, says that as per documents available to the NLC, the Education City project is to be developed and operated by foreign companies by leasing the land for 90 years.
The letter says, “This directly contravenes Section 308 of the Land Act 2007 which states that the duration of the lease shall not exceed 30 years. The provision to aggregate three consecutive terms of 30 years lease period also pre-empts Section 310 of the Land Act and Section 38 of the Rules and Regulations for Lease of Government Reserved Forest Land and Government Land.”
Section 310 says, “The government may upon expiry of lease renew the lease of the Government land or Government Reserved Forest land including Tsamdro and Sokshing.”
The letter also says that the Commission has been informed by the MoWHS Minister via a letter dated on October 4, 2013 that the Education City project would be given on lease to the developers who would further sublease it to the operators.
It says this contradicts Section 251 and 265 (a) of the Land Act 2007. Section 251 says, “Except as provided in
Section 243 of this Act, the Tsamdro lease shall not subsist if a leaseholder no longer owns livestock. The Tsamdro lease shall be revoked after 180 days of disowning livestock.”
Section 265 (a) says, “A lease shall be revoked if the Sokshing is sub-leased in contravention to Section 261 of this Act.” Section 261 says that there would be no sub-leasing of sokshing.
The letter says that as indicated in Article 15.1.2 of the Concession Agreement and elaborated in Section 14.4 of the Detailed Project Report of the Education City project, 30 percent or more of the land would be permitted to be developed for commercial activities including the construction of luxury villas and resorts within the proposed Education City. The DPR report, according to a newspaper report, had highlighted plans to build 699 luxury villas with 0.5 acre to one acre of land each for sale to foreigners. This would have consumed around 350 acres or more leaving less than 150 acres for the actual project as 500 acres was reserved as a green area.
The letter goes on to states, “This deviation from the core businesses contradicts the Land Act 2007 which promulgates allotment or lease of land for specific purposes.”
The letter also points out that it is illegal for any project to maintain a ‘green area’ land as part of any land project. It says, “500 acres of the proposed land is planned to be maintained as green areas. Green Areas in the Thromdes in particular and forest land in general are state land and well protected. Such a proposal directly contradicts Section 219 of the Land Act 2007.”
Section 219 states if the land of Government institutions, Gerab Dratshang and the land allotted in Thromde for specific purposes are not used by the landowner within 3 consecutive years from the date of allotment, it shall be deemed that the landowner has the intention to abandon their rights to the land.
It states, “In view of the aforementioned facts and legal provisions, National Land Commission regrets its inability to consider either freehold land allotments to the Ministry of Education or leasehold agreement to DHI and Bhutan Education City Board.”
The letter explains why early preliminary approvals don’t stand
Soon after the issue of legality of the Education City land surfaced in September 2012, some BEC officials produced letters and documents to show that preliminary approval for processing formal land allotment to the Ministry of Education was given by the NLC.
The letter addresses this issue among others in its letter as well defending its stand in a chronological order.
It says that the DHI via two letters on April and May 2011 had requested the Dzongkhag Administration, Thimphu and NLC for transfer of 1,000 acres of state land at Wangsisina to DHI citing that RGoB had handed over the Education City project to DHI. The letter says that the NLC was not able to transfer the land that was not even registered.
This was followed by two letters from the MoE in June requesting the Thimphu Dzongkhag for transfer of 1,000 acres of land to the ministry. The Thimphu Dzongkhag, in accordance with the Land Act, sought preliminary approval of NLC.
The letter then says that the NLC through a letter in November 2011 conveyed preliminary approval for processing formal land allotment to the MoE as per the Land Act. “The approval of preliminary proposal entails preparations of a detailed report as per Sections 201 and 202 of the Land Rules and Regulations. It cannot be misconstrued as approval for the registration,” points out the letter.
Accusing the MoE going against the principles of the Land Act 2007, the letter says that as per the law only DHI can propose for allotment on leasehold. The land cannot be subleased. “Knowing these restrictions applicable to DHI the MoE had proposed freehold allotment, primarily with the intention of bypassing the restrictions of leasing and subleasing. Such a move is against the spirit and principles of the existing laws and confuses the understanding reached among the stakeholders.”
Freehold land as opposed to normal leased government land gives the owner of the land freedom in subleasing the land.
The letter says the Chairman of the BEC, the former MoWHS Minister, requested the NLC via a letter in December 2012 to register 1,000 acres of land for the Education City in the name of the BEC board instead of the MoE.
It says, “Therefore, the preliminary approval accorded for the Ministry of Education as highlighted above and thereof any commitments stand null and void.”
The present MoWHS minister, a while after assuming office, was informed that she was head of the BEC. Lyonpo said, “I saw some articles in the media over the issue of legality of the land and so I asked the BEC Secretariat to make a presentation in the first BEC meeting.” She said in the second BEC meeting in line with the decision of the BEC she wrote to the NLC seeking clarification on the land issue.
The reply arrived in January 9 listing out why the land could not be leased by the NLC. Based on another BEC meeting decision, Lyonpo, again communicated with the NLC which maintained its stand sent yesterday in writing.
The Prime Minister Tshering Tobgay said, “We all consider all views and options, and whatever decision we take, one way or the other, will be done keeping in mind the national interest.”
The Education City project originally belonged to the Royal Education Council which made a presentation to the new government in early 2008, but did not get a go ahead. A year later in 2009, a family member of the former PM proposed a similar Education City project along with a Calcutta-based company called Infinity. The project has been controversial from the start due to conflict of interest issues, transparency, size of the project, real nature of the project and commercial space, capacity of the investors, special preferences given to it, its location, its impact and also the allocation of Nu 470 million for building infrastructure.