Constitutional Provisions For Property Rights In Nepal

The author of this petite article would like to express the desire to share an understanding about, more specifically, constitutional provisions for property rights in Nepal, and to some extent pertinent constitutional provisions for property rights existing in neighboring countries viz. India Islamic Republic of Pakistan, Bangladesh including some relevant Cases of Nepal to all the concerned readers. It is an undeniable fact that property occupies an important place for the survival and prosperity of human beings and the progress of society as well. Nowadays property is not confined to ownership of only the reality but also shares, claims, and intellectual property, Property is the central institution of private law, fulfilled in the system of simple commodity production. The protection of rights today is spread over the community asa whole, where it has, in the past, essentially benefited the limited class of owners of land and commercial property. Today, the balance is being restored by a wider conception of property. Gradually, new social and economic philosophies are influencing legal concepts. The concept of property has social and political implications which go to the very root of the organized society. The theoretical justifications of property are many. The right to property is an inalienable right of citizens immune from interference by government or other individuals, notwithstanding anything talked about elsewhere, modern states may exercise of power acquisition, requisition and encumbrance.

The Constitution of Nepal, 2015 (2072) has stipulated that every citizen shall be subject to the laws in force, and have the right to acquire, own, sell, dispose of, acquire business profits from, and otherwise deal with property. However, the right to property IS not an absolute restriction that may be imposed upon the acquisition, enjoyment, and disposal of property. The Muluki Civil Code, 2017 (2074) in Nepal has made provisions relating to the acquisition and transfer of property in Nepal, for instance, if a person sells, donates, and transfers or otherwise transfers a property in which he or she has the right and gifts or otherwise transfers a property in which he or she has right and ownership to another person. The Code has also stipulated the provisions of the power of a guardian to sell property, transfer of joint property by way of sale, and prohibition of transferring property in common without obtaining the consent of co-owners. The Code has made the provision of transferring of right in property by an attorney, nevertheless, it has restricted the transfer of property to a foreigner.

The first Constitution of Nepal, 1948 (2004) had guaranteed to the citizens of Nepal the security of property subject to the principles of public order and morality. Likewise, the Interim Government of Nepal Act, 1951 (2007) had provided the right to acquire, hold, and dispose of property subject to the laws for the time being in force. The Constitution of the Kingdom of Nepal, 1959 (2015) guaranteed that no person shall be deprived of his property save in accordance with the law and every citizen was entitled to acquire, hold and dispose of the property. The Constitution of Nepal 1963 had guaranteed to all citizens the fundamental right of freedom to acquire, and enjoy the property or to dispose of it by sale or otherwise. It also, further, provided that no person should be deprived of his property save in accordance with the law. The Constitution of the Kingdom of Nepal, 1990 (2047) stipulated the provision of the Right to Property which stated that all citizens should have the right to acquire, own, sell and otherwise dispose of property subject to the existing laws. The Interim Constitution of Nepal, 2007 (2063) stated that every citizen, shall subject to the laws in force, have the right to acquire own, sell, dispose of, and otherwise deal with property and the State should not, except in the public interest, requisition or acquire or otherwise create any encumbrance on, the property of any person. The then Constitution had clearly mentioned that compensation should be provided for any property requisitioned, acquired or encumbered by the State in the course of enforcing a scientific land reform program or in the public interest, in accordance with law.

The Constitution of Nepal, 2015 (2072) has stipulated that every citizen shall Subject to the law have the right to acquire, own, sell, dispose of, acquire business profits from and otherwise deal with property, this constitution has provided the explanation as well which has stated “property” means any form of property including movable and immovable property and includes an intellectual property right. The existing Constitution runs in Article 25(2) that the State shall not, except for public interest, requisition, acquire or otherwise create any encumbrance on the property of a person. The principle of eminent domain is that state can acquire an individual’s property for public purpose without his or her consent by giving compensation for the property acquired. Land Acquisition Act, 1977 (2034) empowers the State to acquire land even for institutions.

It may also be stated that the existing Constitution of Nepal has made the provisions of policies of the State Relating to Agriculture and Land Reforms as well. The Government of Nepal has adopted the National Land Policy, 2019 addressing land administration and land management reforms. Agricultural reforms in Nepal are required to focus on increasing production, diversifying products, liberalizing the sector, ensuring quality control and alleviating poverty. Constructive plans and policies are required to eradicate poverty.