SCHOOL SECTOR PROGRAM (SSP) FRAMEWORK FOR LAND ACQUISITION THROUGH VOLUNTARY DONATION OR WILLING SELLER WILLING BUYER PROCESS

Transcription

1 SCHOOL SECTOR PROGRAM (SSP) FRAMEWORK FOR LAND ACQUISITION THROUGH VOLUNTARY DONATION OR WILLING SELLER WILLING BUYER PROCESS MINISTRY OF EDUCATION GOVERNMENT OF NEPAL August 2011

2 2 A. Introduction 1. The Government of Nepal is currently implementing School Sector Reform Program (SSRP). The SSRP is a 7-year program (FY2010 FY2016). It was jointly appraised by Asian Development Bank (ADB) and eight other development partners (DPs) in 2009, covering 5 years, up to The SSRP is a sector wide program. Its primary objective is to ensure access, equity and quality, particularly in basic education (grades 1-8). The School Sector Program (SSP) is a follow-on to Education Sector Program III (ESP III) to support the government s SSRP. 2. This framework concerns the activities under the SSRP that finance an expansion of the physical assets of school education that may require land acquisition. The activities include (i) construction or rehabilitation of classrooms, libraries, toilets and laboratories in schools; and (ii) construction of administrative buildings, such as district education office (DEO) buildings, etc. Land requirements and availability, which vary from one school to another, is not known until the specific schools are identified and civil work needs assessed. As SSP will be implemented in the sector wide approach, land needs would be determined case by case, based on school location and land availability. The government is willing to adopt the willing seller and willing buyer approach to manage the land required for physical facility construction. There will be no involuntary land acquisition. As such, the framework for voluntary donation of land prepared for ESP III has been updated to guide the consultation process, application procedures and record keeping requirements during negotiation for land selling and donation. B. Objectives 3. The objectives of the framework are therefore to (i) explain the consultation process, (ii) describe the policies and laws that are applicable to such transaction, (iii) establish procedures to engage an independent external party to document the negotiation and settlement processes, (iv) outline the mechanism for valuation of affected assets and record keeping requirements, (v) ensure compliance with the Safeguard Policy Statement requirements of ADB on involuntary resettlement, and (vi) ensure that land acquisition for school buildings follows a willing seller and willing buyer approach. C. Scope of Application 4. A unique feature of Nepal is that schools are initiated and established by communities. Government support in the form of teacher grants, student scholarships and additional classrooms are only available after a school has been established. It is likely that the land needed for administrative buildings and classrooms is already registered in the name of DEO, the school or the government. However, if additional land under private ownership is needed, this framework will be relevant and the government will follow the stipulated approach for willing seller and willing buyer and voluntary donation. 5. There will be no involuntary land acquisition. In the case of schools, SSP financing will be made available only if expanding classrooms and other facilities are confined to the existing school premises, and/or if a school has obtained land through the voluntary land acquisition, i.e., negotiated settlement or voluntary donation. A school that has no land for its expansion or has acquired land without following this framework will not meet the minimum eligible criteria (MEC) for financing. A school that has been set up during the program period and has sufficient land for expansion will be eligible for financing. When it is decided that this school will receive support for additional classrooms, the requirements of this framework will have to be met. In

3 3 addition, for a school that was set up prior to the program period and has acquired additional land during the program period for expansion, the same requirements will apply. 6. For administrative buildings, it is likely that the land to be used is already registered in the name of the Ministry of Education (MOE) or the government. However, if private land needs to be acquired, it will be done only through a willing seller and willing buyer approach. The DEO ensures that failure in negotiated settlement will not result in expropriation. In case negotiation fails repeatedly, funding from that district will be withdrawn. D. Applicable Policies on Voluntary Land Acquisition 7. The Land Revenue Office (LRO) is responsible for land administration and registration of all types of land in Nepal. The Survey Office prepares land records through cadastral mapping. The three major types of land ownership are (i) registered private land, (ii) registered public land, and (iii) un-registered (but cadastral mapped) government land (ailani). 8. The Interim Constitution of Nepal (2007) guarantees the fundamental rights of all citizens. Article 19(1) establishes the right to property for every citizen of Nepal, whereby every citizen is entitled to earn, use, sell and exercise their right to property under existing laws. Article 19(2) states that except for social welfare, the state will not acquire or exercise authority over individual property. Article 19(3) states that when the state acquires or establishes its right over private property, the state will compensate for the loss of property and the basis and procedure for such compensation will be specified under the relevant laws. 9. The Land Acquisition Act (1977) and its amendment in 1993 specify procedures of land acquisition and compensation. The Act empowers the government to acquire any land, on the payment of compensation, for public purposes or for the operation of any development project initiated by government institutions. The Act also includes a provision for acquisition of land through negotiations and thus provides space for voluntary donation. It states in Clause 27 that "not withstanding anything contained elsewhere in this Act, the Government may acquire any land for any purpose through negotiations with the concerned land owner. It shall not be necessary to comply with the procedure laid down in this act when acquiring land through negotiations." 10. The Malpot Aien or Land Revenue (land administration and revenue) Act, 2034 is the main Act to carry out land administration including maintenance and updating records, collection of land revenue and settlement of the disputes after completion of survey and handing over of the records to LRO by the survey parties. It authorizes the LRO to registration and ownership transfer of the land. This Act also authorizes the LRO to transfer ownership and deeds of individual land, if any person applied for the ownership transfer of his/her land with mutual understanding for public use with the recommendation of a relevant committee. 11. Regarding the willing sell and willing buy option, the Department of Education (DOE) will follow the Public Procurement Act, This involves the following established procedures: Firstly, DEO will publish a public notice in newspapers and on notice boards with details of the land required for the construction of buildings requesting individuals within the catchment area of the office to sell their land if interested. The individual shall apply to DEO with evidence of land ownership and proposal of land sale. The DEO will review the proposal and form an evaluation committee as per the act.

4 4 The committee will give permission to the DEO to purchase the land. Finally, the DEO will negotiate on the rate of the land and apply for ownership transfer at the LRO. 12. The community in Nepal has the tradition of voluntary donation of a part of their assets to construct buildings for public/community use if it provides direct benefits to them. SSP will continue the tradition of land donation to some extent. However, adequate process and safeguards will be built into the donation procedure to ensure that land donation is not forced and it will not lead to impoverishment of affected people. These include: Meaningful consultation with land owner and communities on selection of sites and appropriate design to avoid/minimize additional land requirement and resettlement effects; Full recognition and respect of community choice between willing seller and willing buyer and donation through community consultation meetings reported in public meetings; No one will be forced to donate their land and owners will have the right to refuse land donation proposal from schools; In case owners directly benefit and thus are willing to voluntarily donate their land after they are fully informed, the school management committees (SMCs) or the DEOs will assess their socioeconomic status and potential impact of land donation and accept land donation only from well-off land owners who will be able to maintain or improve their income and livelihood status after the donation; Any voluntary land donation (after the process mentioned above) will be confirmed through a written record, including a "no coercion" clause verified by an independent third party; and A Grievance Redress Committee (GRC) will be set up in each school requiring land. Owners who are not satisfied with the land acquisition procedures can file their complaint with the GRC. If the GRC finds out that the above provisions were not complied with, the owners will be excluded from land donation. 13. The proponent will manage the required land and other assets through negotiated settlement based on meaningful consultation with the land owner, including those without legal title to assets. Negotiated settlement will offer adequate and fair price for land and/or other assets ensuring that the offer will be sufficient to maintain or improve the income and livelihood status of the owner after the program. An independent third party will be engaged to document the negotiation and settlement process. E. Procedures for Acquisition of Land for Schools 14. Schools are established by the communities in Nepal, and not by the central or district administrations. The land typically used for the establishment of schools by communities and/or the SMCs is generally ailani land. Such land is obtained by the community or the SMCs with the consent of the local authorities (such as, VDC or the larger representation of the community). If such land is not available, the community may approach a large land owner or other individuals and ask the owner(s) to contribute land to the school. The owner may contribute the land on a purely voluntary basis or may ask for compensation to part with the land. When compensation is sought, the community typically pools resources together, and provides the necessary resources to acquire the land. These procedures are normally completed as per the willing seller and willing buyer procedures of land administration. Similar procedure will be followed if identified ailani land is traditionally used by non-title holders. The DEO/SMC will ensure that non-title holders are consulted early in the identification stage to finalize land acquisition and are treated in a transparent and fair manner.

5 5 15. For schools that are eligible for financing as described in Para 5, the DEO, or an appropriate designate, will arrange for a public hearing. There are well established procedures for a public hearing given the historical roles that communities have played in delivering essential services across the country. The public hearing shall verify the information provided in the land assessment data sheet (Attachment 1), with the purpose of ensuring that all land acquired by the schools during the program period were indeed obtained through voluntary mechanisms. An independent third party or an appropriate designate will prepare minutes of the meetings, which will be filed in the office of the DEO. If grievances/claims are raised during this public meeting or filed in GRC, the concerned school will cease to be eligible for program financing. 16. SMC will submit request for financing physical infrastructure with verified data sheet to DEO. The DEO or DOE will not approve any financing without completed data sheet on availability of land for physical facility expansion. DEO will provide information on land record, means of acquisition and ownership status of schools with physical financing assistance to DOE in regular manner. 17. All land transactions will be subject to registration (as per market transactions) under the ownership of the school that is involved in the program and will be done only after ensuring that new school infrastructure or additional classroom construction will be built on that particular piece of land. The DEO or an appropriate designate will coordinate with the LRO and the Survey Office for the land registration and/or transfer of land title. 18. These new procedures will be conveyed to all districts and other appropriate offices through a government circular for this year, and will be included in the guidelines of the DOE for the following year. In addition to this the government will disseminate this through other means as well. Further, DOE will disseminate information on requirements of this framework and make concerned stakeholders aware of the provisions. F. Procedures for Acquisition of Land for Administrative Buildings 19. For the construction of DEO buildings and other infrastructure, the DEO will explore the use of government or public land as the first step. If DEO identifies government land within its catchment area then it will apply for the ownership/right of use to the concerned authority. After the authorization of land use rights, the DEO will apply for SSP funding for physical infrastructure development. 20. If government land is not available in the catchment area of the DEO, the DEO will proceed towards using the willing seller and willing buyer option. In the first step, the DEO will publish a public notice in newspapers and place these notices on notice boards with details of land required for the construction of buildings requesting individuals for their proposals for the sale of land. 21. The individual will apply to DEO with evidence of land ownership and proposal of land for sale. The DEO will review the proposal and form an evaluation committee as per the Land Acquisition Act. The committee will give permission to the DEO to purchase the land. Finally, DEO will negotiate rates for the transfer of the land and apply for ownership transfer at the LRO. The DEO engages an independent external party to document the negotiation and settlement processes and ensures that such negotiation will offer an adequate and fair price for land and/or

6 6 other assets. Once DEO gets the land ownership certificate, it will apply for SSP funding for physical infrastructure development. 22. In the case of voluntary donation of land, the DEO must submit written evidence ensuring that the donation of land is completely voluntary (without any coercion) and unless the household giving the land is clearly well off, ensure that the donation of land does not cause any significant loss of income. The procedures must also ensure that the land title is transferred in the name of the school or the DEO. G. Rules of Taking Possession of Land 23. The DOE will not only ensure that any land donation is fully voluntary, but also that such donation does not involve physical displacement or any significant adverse impacts upon the incomes of the donor household. All voluntary land transactions must meet the following criteria: (i) The land in question will be free of squatters, encroachers or other claims. (ii) Verification of the voluntary nature of land donation in each case will be done through a formal public hearing. (iii) Land transfer will be completed through registration, with land title vested in the school. (iv) Leasing of land or rights of use of land for schools will be duly documented. (v) Program Implementation Guidelines will include the principles of land acquisition described in this document. (vi) For any government building to be constructed under SSP, the land will be purchased from the open market and will follow the existing legal procedures on land procurement. (vii) A grievance redress mechanism will be in place to hear complaints regarding land acquisition. H. Information Dissemination, Consultation, Participation and Disclosure 24. Various mechanisms of participation will be adopted in the process. The SMCs and communities will be consulted during SIP preparation and provided with relevant information about SSP, and supplementary safeguards documents prepared for SSP implementation. DOE will ensure availability of the following documents for review by ADB and other DPs. Legal records of lands donated by private owners and of those directly purchased by DOE on willing seller-buyer basis, with prices and names and addresses of peoples present during price negotiation and payment, and evidence of actual payment. Records of compensation payment to individual PAPs. Records of complaints and grievances and the decisions given by GRCs and DEO. Records of all agreements pertaining to the voluntary contribution of land. I. Grievance Redress Mechanism 25. DOE will establish a procedure to answer queries related to land acquisition and school undertaken for additional physical infrastructure and/or new construction. SMC at each school will form a Grievance Redress Committee (GRC) comprising 5 members representing school, parents, two community representatives and a vulnerable group representative for hearing the complaints of different stakeholders and for their appropriate resolution. District education committee at DEO will work as district level GRC including representation from parent teachers association. Other than disputes relating to legal rights, it will review all grievances relating to

7 7 land acquisition and other SSP interventions. Grievances will be redressed within 2 to 4 weeks from the date of lodging the complaints. 26. If resolution attempts at the school level fail, the SMC will refer the complaints to DEO along with the minutes of the hearings. If a decision made at this level is found unacceptable by the aggrieved person, DEO can refer the case to DOE with the minutes of the hearings at both school and district levels. 27. To ensure impartiality and transparency, hearings on complaints will remain open to the public. The GRCs will record the details of the complaints and the reasons that led to the acceptance or rejection of the particular cases. The SMC/DEO will keep records of all resolved and unresolved complaints and grievances and make them available for review as and when asked for by the DOE, ADB and other DPs and any entities interested in the program. 28. The key functions of the GRCs are to (i) record, categorize and prioritize the complaints; (iii) settle the grievances in consultation with the complainer and the program staff; (v) report to the aggrieved parties about the decision/solution; and (vi) forward the unresolved cases to higher authorities. J. Monitoring and Reporting 29. The MOE/DOE will monitor the provisions mentioned in the framework to ensure that they are complied with during the implementation of SSP. The MOE/DOE will prepare annual reports on land acquisition and submit this during the Joint Consultative Mission and Joint Annual Review. In addition, a section on status of land acquisition will be included in each progress report. 30. DOE will carry out an annual review to assess how effectively the framework requirements have been followed to obtain lands on donation and purchase. ADB will also assess the efficacy of the provisions adopted in the framework for land acquisition fielding review mission during or after Joint Consultative Mission with community consultation. K. Implementation Arrangements 31. The key agencies involved in implementation of this framework are MOE, DOE, DEOs, and SMCs. MOE/DOE has overall coordination responsibility. The DEOs and SMCs have planning and implementation responsibilities at the district and community levels, respectively. The DOE and DEOs will implement and comply with the provision of the framework. L. Budget 32. The budget required for the purchase of land or any assistance to be paid to a voluntary donor of the land and administrative cost for the land transaction will be borne by the DOE, DEO and/or respective SMC.

8 8 Appendix 1 Sample Format Land Acquisition Screening Data Sheet [The information sought in this form should be verified and recorded during school/site visits and/or community/stakeholder consultations. A DEO staff will fill in the form in presence of community members, local government officials, and civil society representatives and others who have interests in the school.] 1. General Information Name of School/office: 2. Address: Settlement: Ward no.: VDC/Municipality: District: 3. Screening Date: 4. Name of persons participated in screening : DEO staff: SMC representative: Community members: VDC representative (if any): 5. Scope of work: [ ] Improvement in existing infrastructure [ ] New construction 6. Required infrastructure Type of infrastructure Number Total area required (sqft) 1. Additional class room Required land belongs to* Land presently used for** 2. Toilet 3. Learning Center 4. DEO building 5. Library 6. Other Note: * a. School or office, b. community, c. government, d. private individual **1. Agriculture, 2. Residential purpose, 3. Commercial purpose, 4. Under customary use, 5. Barren land, 6. Squatter, 7. Other purposes (specify) 7. Method of acquisition [ ] Donation [ ] Sell-purchase [ ] Lease [ ] Rights of use [ ] Other means (describe)

9 Appendix Details of Land/ assets acquired1 Plot No. Area, local unit Area, Sq.Ft equivalent Description of assets in the land, if any Date of acquisition (YY/MM/DD) Name of the owner 2 9. Documentary proofs of land ownership or rights of use. (Notarized or witnessed statements) 10. Location map 11. Information on public hearing (Date, venue, number of participants) 12. Name and designation of staff who fill in this form Signature:.. Date:.. 1 To be used to record all land acquired for schools. 2 Provide name of the office in case of the government and name of the VDC in case of the public land.