Statutory versus Customary II
Article

Statutory versus Customary II

Institutional Weaknesses in Nepal

Of the roughly thirty million people living in Nepal, a majority belongs to peasant households and lives below the international poverty line of $1.25 a day. The peasant population has also, under former customary land tenure arrangements, been exploited and pauperised. Land related statutory acts introduced since 1951 have not brought security of rights for the actual cultivators of the land, and thus discourage investment in it. Thanks in part to institutional weaknesses, land administration services are today distrusted by the population. The author inventories these weaknesses and provides suggestions for solution.

For many centuries farming has been the principle economic activity in Nepal and governmental policy been directed towards maximising agricultural production and so increasing tax revenue. From ancient times up until the early 1950s land ownership was hierarchically arranged. The crown was supreme owner and from this pinnacle land rights were handed down to nobles, priests, farmers and others. No registration and cadastral survey was needed. People could enjoy the use of land without any evidence of title based on customary tenure. Titling appeared unnecessary as long as population density remained low and land was mainly used for farming. Following ending of the oligarchic Rana regime (1846-1951), which dynasty practiced a policy of isolating and so maintaining independence but also stimulating economic lag, the state started to reform land tenure from customary to statutory.

Land types
By 1951 dissolution had begun of most customary land tenure arrangements. In 1953 the Land Reform Commission was formed. By 1954 the Land and Cultivators' Records Act had come into force, followed in 1955 by the Lands Act, in 1957 by abolition of the Birta Land Act and in 1960 by the Agriculture Act. Together with the constitution, these acts guarantee security of land tenure. Three types of land are distinguished: (1) private, (2) public and government, and (3) trust. Individuals have the right to use or lease their private land, and to sell, mortgage, divide or transfer it, but they have to pay land revenue tax to the government. Mortgaging has raised the level of economic activity over recent years. Both public and government land is owned by the government, but the former is used by the community and the latter by government institutions. Trust land (Guthi) is land endowed by the government or individuals for establishing or maintaining religious, philanthropic and charitable institutions, which rent it out to individual cultivators.

Organisation

The Ministry of Land Reform and Management is responsible for all land policy and consists of five departments (Figure 1). The Land Use Project established in 2001 has prepared land-use maps, but lack of knowledge and commitment has meant no land-use plans: the basis for environmental protection as well as management of natural resources, infrastructure and housing. The 83 district survey offices perform cadastral surveys and prepare cadastral maps and land records (Figure 2). As decreed by the Land Revenue Act 1978, the 83 district land-revenue offices are responsible for inclusion of land records in land registers and maintaining valuation registers for tax purposes. The 21 district land-reform offices under the umbrella of the DoLIA are responsible for computerisation of land records and cadastral maps. Thus three types of district office are involved in strongly related activities: parcel measurement, land registration and their digital archiving. However, the offices all fall under different departments of the Ministry of Land Reform and Management. They are differently accountable and carry out their work along differing chains of command. Such dispersed organisation of related activities by departments having different mandates inherently results in insufficient co-ordination.

Onwards
Land may be transferred through purchase, inheritance, gift and other means, and ownership may also be established through court or government decisions. No change in ownership and/or use can be effected without consent of the owner. Up until 1978 land transfer could be arranged by private conveyance; since then acts have had to be drawn by the notary. Registration of deeds was not originally obligatory, while land records were registered but no cadastral maps produced. The cadastre as an institution was established by the Land Act of 1962, which also covered the important subject of adjudication: that is, registration and ascertaining of existing rights on land. Cadastre has been being gradually established district by district since 1964. Since 1978 all land transfers must be registered by the district land revenue office.


Transfer of land comes into effect once the owner has signed the notary deed. If the parcel is subdivided, the district survey office modifies the cadastral map using graphical methods (Figure 3). The scales of the maps are 1:500, 1:1250 and 1:2500 respectively, depending on land value, parcel size and population density. Old maps are still in use and have scales one inch to 200ft (1:1,200) and one inch to 400ft (Figure 4). All 25 million parcels covering the whole of Nepal have unique identifiers. Registered rights are backed by the government, but the holder receives no compensation in the case of error, fraud or forgery. Registration fees and land tax were past major sources of revenue for the national treasury. Today the fee is 2% of land value in rural areas and 4% in urban areas and together they account for about six billion rupees, about 2.5% of total national budget.

Modern Times
Computerisation of land records started in 1993, aimed at putting all parcels belonging to the same owner on one certificate. But software deficiencies and lack of human resources meant the goals were not met and the unit collapsed. A new project began in 1996 under direct control of the Ministry of Land Reform and Management; this migrated to DoLIA in 2000 with as objectives:
-improving transparency, reliability and sustainability in maintaining, storing, disseminating and archiving land records
-easing civic access to land information
-defining responsibilities and accountability of land administration staff.

Issues
No national land policy exists in Nepal, and no major efforts are underway to establish one. As a result, land administration has not been guided by a framework for land management and use, nor by an agenda for urban, rural and environmental development. One consequence is that there is no strategy on the ground for managing land records, which are deteriorating due to poor storage conditions and frequent manual consultation and updating (Figure 5). For the notary and para-legal practitioners (Lekhandas) the deed is the ultimate land-right document and these individuals are nonchalant about registering land rights in the land records. The skills of land surveyors are underdeveloped. Measurement of boundaries is based on the graphical method and general-boundary principle. There is too little support and incentive for land surveyors and other staff, which has impaired their motivation. Survey equipment is outdated, so measurements are time-consuming and result in delays. Only 38 of the 75 districts in Nepal are covered by a national geodetic reference system: just 48% of the land area. Only some of the cadastral plans at scales 1:500, 1:1250 and 1:2500 are founded on a national geodetic reference system (Figure 6).


Over time districts have developed their own procedures and practices for storing and maintaining records and maps. All these deficiencies have led to public services dealing with land to lose credibility; they are not trusted by the public. Restoration of trust is essential, and to arrive at more citizen-friendly systems, institutions established to carry out similar activities must be put under one umbrella.

Proposed Solutions
What measures must be undertaken to restore trust? First of all, the distance between government services and the public must be lessened by introducing the ‘one-counter' concept. This can be achieved by merging the present three offices (revenue, survey and reform) into one land-administration office, and extending services. The five departments must also be reformed. SD and LRMD departments must be merged with DoLIA. The physical appearance and storage facilities of district offices should be reengineered to create public goodwill and enhance the motivation of the workers. The latter will also be served by modernising equipment and training to improve skills and capabilities. Geomatics engineering education at BSc level has been launched at Kathmandu University. The qualification of basic surveyors should be upgraded and their position in the organisation up-scaled. All activities in the land-administration offices should be supervised by licensed or university educated surveyors. Parcel plans must be referenced within a unified national geodetic coordinate system, and the general-boundary be replaced by the fixed-boundary principle. Diverse protocols across districts should be streamlined and harmonised. The creation of a National Geographic Information Infrastructure should remain the sole and autonomous responsibility of the Survey Department.

Final Remarks
All the proposed solutions will be associated with a high level of risk if not properly managed. A master plan should be put on the ground whereby changes are introduced in a phased manner and intertwining complex facets unravelled.

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