1.0 Introduction
Bhutan is a late entrant to embracing modern development. It has never been colonized and was never under any foreign ideological influence until the 1960s. The country enjoyed undisturbed peace and tranquility and has been guided by a policy of self-imposed isolation. Bhutan entered the scene of modern development with the preparation of its first five year plan in 1961. The first wheel, other than the prayer wheel, arrived the country in 1962. Yet it continued treading this development path in a conscious and calculated manner guided by the nation’s conscience of achieving “Gross Nation Happiness” propounded by the benevolent fourth King Jigme Singye Wangchuck. Even the television and internet were introduced in 1999.
During the last five decades of modern development, Bhutan has experienced unprecedented socio-economic progress. The change has been very dramatic in the urban sector. Currently, Bhutan is at an important crossroad in its history. In the next decade, Bhutan is expected to undergo a profound and rapid demographic transition from a largely subsistence rural economy to an urban society. With current high rates of urbanization (7.3% and 12.6% in Thimphu during 2000–2005), about 70% of Bhutanese are expected to reside in urban areas by 2020. The consequences of this unplanned growth have already created severe pressures on services and available housing. The pace of urbanization of Thimphu (capital city), in particular, is exceptional. The urban dynamics of Bhutan requires very careful study and research overlapping it with economic trends and study of migration patterns. Urban spaces are the platform for convergence of cross-sectoral integration and need to be researched that way. Institutions also changed/evolved and are constantly trying to cope with the fast pace of development.
In the face of these changes/challenges I am interested to learn about the relationship of planning and development when they are juxtaposed against an array of questions such as: How are private property rights and public interests protected by law? What are the laws and legislations that protect these rights and what are the relevant provisions? How do these interests influence planning and development? How are these acts legitimized? What are the tensions between private property rights and public interests? Can both be achieved simultaneously? This paper will attempt to analyze, explore, and answer these questions in Bhutan’s planning and development context through comparative studies of the America’s pragmatic legal system, South Africa’s well-crafted constitutionalism, India’s highly politicized legal dilemma, and Bhutan’s nascent and burgeoning legal culture.
2.0 Property, rights and public Interests – setting the tone
Before dwelling further I would prefer to first define and explore the concepts of property and property rights through the American experience. This is because the American Constitution of 1787 is a property centric constitution and it has a long and commendable history of giving meaning and protection to property (and property rights vis-à-vis planning) through a long skein of opinions issued by the US Supreme Court.
In United States, the idea of property before the 19th century was influenced by agrarian concept whereby an owner is entitled to undisturbed enjoyment. This gave absolute right to the owner and was anti-developmental in principle. In early 19th century this conception changed. Emphasis was then given to the productive use of property and development. By the time of Civil War, this basic change in legal conception was completed.
According to Singer, property ‘is a system as well as an entitlement’. It is a system because property rights concern relations among people regarding control of valued resources, which is done by placing duties on non-owners. By exerting power over things one actually exerts power over people. However, these rights are not absolute. The owners of property have ‘obligations as well as rights’. They possess a bundle of entitlements such as: privilege to use, right to exclude, power to transfer title, immunity from having the property taken or damaged without consent of the owner etc. Legally, the extent of right is partly determined by rules designed to ensure that the property system functions effectively and fairly for a greater and common good.
The construction of the property system requires property law to adjudicate characteristic core tensions in the system such as:
1. Right to exclude versus right of access – Property entails a tension between privacy and free association norms on the one side and equality norms on the other. Sometimes the right to exclude will take precedence over the right to access. The tension between these claims is one that property law must resolve.
2. Privilege to use versus security from harm – Owners are generally free to use their property as they wish, but they are not free to harm their neighbors’ property substantially and unreasonably. The use of one property should not cause unreasonable negative externalities to the other.
3. Powers to transfer versus powers of ownership – Owners of property are free to sell, give, write a will or enter into contract. They may even impose conditions on the use of property while doing so, limiting what future owners may do with it. The law limits freedom of contract and of disposition to ensure that owners have sufficient powers over the property they own.
4. Immunity from loss versus power to acquire – Property owners have the right not to have their property taken or damaged by others against their will. However it is often lawful to interfere with the property interests of others (eg. In case of view, air, sun access). Sometimes the government may exercise its eminent power to take private property for public use with just compensation.
The recurring themes one will need to keep in mind while discussing property and property rights include: social context , formal and informal rights , the alienability dilemma , contractual freedom and minimum rights , social welfare , justified expectations , and the distributive justice .
During the drafting of the American Constitution, neither the Federalist nor the Republican denied that ‘property was a basic right’ but they feared that the ‘propertyless majority would demand measures that destroyed the security of property’. An attempted solution was to formulate categories of rights – civil and political. Civil rights would include both the rights of persons and of property while the political rights were conceived as a means to the true end of the government – the protection of civil rights. A better solution that emerged in 1787 did not rely heavily on limits as such as is evident from the extract reproduced below:
“State governments were limited by specific prohibitions, but the Federal government would rely primarily on a structure of institutions designed to check each other and to minimize the likelihood of effective majoritarian tyranny”
This remarkable solution in the history of American Constitution had several advantages. Apart from sustaining the tensions between competing categories of civil and political rights (of persons, property and participation) it encompassed all of the competing values by avoiding a clear subordination of one to the other. Moreover, it helped in keeping the tensions between competing values ‘open and alive’.
In the realm of planning the relevant institutions at the federal, state and local levels are also systematically established and properly guided by appropriate laws and legislations. As far back as 1928 the US Department of Commerce have developed the Standard City Planning Enabling Act (SCPEA) which covered six main subjects – organization, content of plan, adoption, approval, land subdivision, and regional planning. In order to meet the needs of the changing times, the American Planning Association (APA) in 2002 modernized the SCPEA and issued the ‘Growing Smart Legislative Guidebook: Model Statutes for Planning and Management of Change”. The pragmatic planning culture and the willingness to embrace and keep pace with emerging trends has helped the US in its exponential socio-economic progress until the mid of 21st century.
The state governments have the authority to enforce regulations promoting health, welfare, morale and safety through the ‘police power’. These powers to regulate properties are delegated to municipalities through ‘zoning enabling acts’ which define both the scope of the powers and the procedures by which zoning process operates. Generally, the municipalities engage in two kinds of regulations – Use zoning and Area zoning . Zoning decisions are required to be made with a large, long-range view of how uses harmonize in the city as a whole.
In order to enact the zoning ordinance the municipal governments are generally required to establish a comprehensive plan which separates incompatible uses with an intention to avoid nuisances before they arise. The zoning ordinance is the equivalent of a local statute and is enforceable until it is changed by the governing body. The planning commission receives rezoning petitions from landowners who seek amendments to the zoning law as it applies to their particular parcels which then makes recommendations to the council/governing body.
Sometimes, for the purpose of flexibility, municipalities establish ‘planned unit developments’ and ‘conditional or contract zoning’. In planned unit developments the zoning board works to establish overall density requirements and then work directly with developers to construct a rational scheme that mixes uses in a desirable way. In conditional zoning developers are authorized to construct projects that are inconsistent with zoning requirements in a manner that protect the neighborhood from negative externalities (or improve neighborhood amenities). Municipalities impose conditions designed to ensure that the development is not harmful to the neighbors and the community by imposing limitation on; use, height or bulk restrictions, dedication of land to the city to widen public streets etc. (Please refer Annexure B for important doctrines in zoning).
3.0 Legal aspects of property and land use
3.1 American context
Although the reference to the term ‘property” in the American Constitution is sparse it gained a lot of meaning and protection through a long skein of opinions issued by the U.S. Supreme Court from time to time. The term ‘private property’ is mentioned only once – in the Fifth Amendment’s just compensation clause, which states that “private property” shall not “be taken for public use, without just compensation”. The word ‘property’ alone appears twice, in the 5th and 14th Amendments, which guarantee that government shall not deprive persons of “life, liberty, or property, without due process of law”. Judgments passed for about 38 important cases by the Supreme Court reveal the perpetual lively tensions that exist between the private property rights, public interests and planning exercise. One of these cases – Village of Euclid v. Ambler Reality (1926) upheld the power of the states to enact zoning laws that limit development rights. The court upheld zoning on the justification through the states “police power, asserted for the public welfare”. In other words, the court “decisively affirmed the constitutionality of comprehensive zoning”. The decision on this important case gave a huge morale boost to the profession of urban planning.
Kelo v. New London (2005) and Berman v. Parker (1954) are other notable landmark cases, which endorse the use of eminent domain for integrated economic development. Both cases highlight the tensions between private property rights and the larger development of the city. Urban planners hail the Kelo verdict as a nod to the power of city planning. On the other hand, detractors of eminent domain champion the rights of individuals to own and enjoy property but what happens then to the collective development of the city? An analysis of both these cases offers some insights for urban planners in negotiating between private property rights and integrated economic development. These cases emphasize the tensions urban planners face in negotiating between property rights and public welfare. The backlash against the Kelo verdict in many states is one reason for planners to stop counting on the power of eminent domain for integrated development plans.
Three observations are particularly interesting while discussing the American legal culture. First, the property centric American Constitution (1787) has sustained the tensions between competing categories of civil and property rights (of persons, property and participation) while also encompassing all of the competing values by avoiding a clear subordination of one to the other. This pragmatic approach has helped America reap the benefits of economic development in leaps and bounds.
Second, ‘flexibility’ has been a characteristic feature of the US judicial system. Instead of using ‘crystal’ rules the courts have always preferred flexible ‘muddy’ standards and assessments that would benefit the society at large. The American legal culture is an engagement into identifying the conflicting policies (rather than pretending that only one is involved) and then applying the ‘balancing’ test.
Third, the engagement of the courts with property rights, planning, and the public interest reveals an evolutionary, rather than a revolutionary, pattern. Reserving its disdain only for extreme cases the courts usually give precedence to the self-regulating, nonjudicial interplay between political and private market forces. The owners of property continue to enjoy their rights, subject to limitations crafted by planners to protect the public interest.
3.2 South Africa’s context
In the case of South Africa, because of the immense struggles faced by its population during the Apartheid period the Constitution of the Republic of South Africa 1996 has meticulously and craft-fully protected its population from the evils that properties can bring with it. Section 25 (1) states:
“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”
With regard to the expropriation of properties, Section 25 (2) of the said constitution states that:
“Property may be expropriated in terms of law of general application (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court”
The constitution also boldly recognizes and adopts the provision of ‘housing’ as a social goal to be fulfilled by the state (unlike America and India). Section 26 states that:
“(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of its right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”
Similarly, the Republic of South Africa has introduced several other bold and great legislations which are aimed at protecting/using property for the social and economic benefit of its citizen. Few to mention are:
• Restitution of Land Rights Act of 1994 which is aimed to provide for the restitution of rights in land to persons or communities dispossessed of such rights after 19 June 1913 as a result of past racially discriminatory laws or practices.
• Land Reform (Labour Tenants) Act of 1996 which is aimed to provide for security of tenure of labour tenants and those persons occupying or using land as a result of their association with labour tenants and to provide for the acquisition of land and rights in land by labour tenants
• Security of Tenure Act of 1997 which is aimed to provide for measures with State assistance to facilitate long-term security of tenure etc
• Prevention of Illegal Eviction and Unlawful Occupation of Land Act 1998 which is enacted: to provide for the prohibition of unlawful eviction; to provide for procedures for the eviction of unlawful occupiers; and to repeal the Prevention of Illegal Squatting Act, 1951, and other obsolete laws; and to provide for matters incidental thereto.
3.3 India’s context
In the case of India most of the laws and legislations were inherited from the colonial era. It is interesting to learn that there is no legal protection of the property rights of the poor. Most of the properties are owned by the rich and powerful who are predominantly the upper classes. The Narmada project is a classic case whereby the land and properties occupied by the poor are literally taken over by the government for building the dams without making any compensation. About 30 million people were displaced during the construction of the Narmada project. The Forest Act of the late 19th century overnight converted people who are living and dependent on the forest to squatters. They were literally subjected to the whims of the State. The Resettlement and Rehabilitation Bill lying pending at the parliament, if approved, may go a long way in helping the poor.
Article 21 of the Indian Constitution specifies that private property cannot be taken without just compensation. Article 19 gives every Indian the right to property. Article 31 requires due process of law for acquisition of properties. Although these provisions existed the government found it very difficult to plan and implement because of too many conflicts between the politicians and the legal system. The Town Planning Act was for example challenged for being unconstitutional.
Therefore, article 19 of the fundamental right on property along with article 31 was repealed by the then Prime Minister Shrimati Indra Gandhi in 1970s. Ever since this incident happened, India has literally no ‘property rights’ as a fundamental privilege of its citizens. It is interesting to note that the property rights were repealed before India entered the market economy – precisely at a moment when economists emphasized the need for property rights for market economy to function. Article 300A was however inserted which stated that “no person shall be deprived of his property save the authority of law”. This is hilarious because, since it is not included under the ‘fundamental rights’ it may/can be in contravention with laws that may be adopted in the future.
Land is a state subject as per the Indian constitution which implied that all initiative for land reform should come from the states. There were intense conflicts between the courts and the states in the interpretation of the rights to property and due process required by the law for acquisition. The courts were essentially a political theatre in India whereby there was too much intervention form outside forces (politicians, media, and the public). In a bid to legitimize the government’s actions the politicians succeeded in inserting the 9th schedule in the constitution. This schedule lists about 284 Acts/legislations which are immune from judicial scrutiny. This may be interpreted as a back door entry for the rich to protect their own interests.
The biggest conflict or confusion in the Indian system is the existence of too many agencies involved in a project. Each agency has its own agenda which do not cohere with a similar activity in another agency. There is no proper coordination and they sometime undermine each other. It is therefore very difficult for citizens to know where to go to protect their rights. They keep going around in circles without getting justice. Thus people sometimes resort to approaching the Supreme Court directly. Narmada dam project is a classic example. However, unlike in America the courts in India adjudicate cases based on crystal rules and they do not end up making policies.
4.0 Bhutan’s laws with respect to property, public interest & planning
In the case of Bhutan many legislations that address the property, property rights, public interest and planning (vis-à-vis land use) are passed within the last five years. This section will discuss relevant issues with a focus towards the three laws: The Constitution of the Kingdom of Bhutan 2008, Land Act 2007 and Local Government Act 2009. In the absence of an overarching law governing urban planning and development other remotely relevant legislations which are not discussed in this paper include: Forest Conservation Act, Environment Impact Assessment Act, and Land Compensation Rate.
4.1 The Constitution of the Kingdom of Bhutan 2008
The Fundamental Rights enshrined in the Constitution of the Kingdom of Bhutan 2008 has two provisions related to property:
i. Article 7, S9 – A Bhutanese citizen shall have the right to own property, but shall not have the right to sell or transfer land or any immovable property to a person who is not a citizen of Bhutan, except in keeping with laws enacted by Parliament.
ii. Article 7, S14 – A person shall not be deprived of property by acquisition or requisition, except for public purpose and on payment of fair compensation in accordance with the provisions of the law
These rights (including a list of other 21 fundamental rights) conferred by the constitution can however be subjected to “reasonable restrictions” by law when it concerns (Article 7, S22):
a) The interests of the sovereignty, security, unity and integrity of Bhutan;
b) The interests of peace, stability and well-being of the nation;
c) The interests of friendly relations with foreign States;
d) Incitement to an offence on the grounds of race, sex, language, religion or region;
e) The disclosure of information received in regard to the affairs of the State or in discharge of official duties; or
f) The rights and freedom of others.
If planning can be considered and understood by the public (or interpreted by the courts) as an act of subjecting “reasonable restrictions” to those who are privileged so that the majority could enjoy the public good by imposing limitations on “the rights and freedom of others” Bhutan do seem to have a hope. A hope and an opportunity for the planners to take care of the needs of the majority and yet plan for the general benefit of all. This way, the government can take some sticks away from the property rights for public purpose and after payment of fair compensation.
The Fundamental Duties in Article 8, S7 requires a person “to safeguard public property”.
The Constitution allows the acquisition of property “for public purpose and on payment of fair compensation in accordance with the provisions of the law (Article 7, S14). It also empowers the government “in the public interest” to “raise loans, make grants or guarantee loans in accordance with the law” (Article 14 S4).
With regard to the planning exercise the Constitution states that the “Local governments shall be supported by the Government to promote holistic and integrated area-based development planning” (Article 22, S18e).
However, the current setup and staffing pattern, both at the central and local levels, are faced with the number of constraints. While there are a few professionally trained urban planners and designers, there is need for other relevant professionals like the transport planner, urban economist, investment planner, social planners, urban GIS specialist, urban environmental specialist, legal experts, etc. It is observed that it may be a challenge to immediately recruit such professionals either from outside or from within the country. Therefore, long term plans need to be made to train professionals in these fields. For the immediate needs, relevant professionals could be given short term skills enhancement opportunities.
4.2 The Land Act 2007
The Land Act of the Kingdom of Bhutan was enacted in 2007 which repealed the Land Act of 1979. The intention was to modernize the inherently rural nature of the previous act. However, the present land act, drafted locally without any expert input, is also rural biased and is not very urban friendly. The few provisions that support the administration and management of urban areas are not implemented in reality due to the existence of turfiness among the various relevant institutions. Some of the provisions related to property and property rights in the Land Act are:
i. S119 – Any authorized person … any agency of the Government shall have entry to a registered land, landed property or roads for conducting cadastral works, land survey, or for utility service facilities as deemed necessary by the Government
ii. S120 – Before the entry to a registered land … shall serve an appropriate notice of entry to the landowner or any person in custody of such land.
iii. S144 – Acquisition of land shall entail a fair compensation
i. S153 – The compensation rate fixed by the Property Assessment and Valuation Agency and any subsequent revisions shall be subject to approval of the Government”
ii. S269 – The landowner shall allow any authorized person or persons to enter his land to carry out alterations, adjustment or improvement of service utility works and for purposes connected therewith which are reasonably necessary for the benefit of larger community or environment after reasonable notice.
With regard to public interest the Land Act has the following relevant provisions to offer:
i. S142 – The Government may acquire a registered land for public interests
ii. S151 – There shall be a Property Assessment and Valuation Agency established under the Ministry of Finance to valuate and fix the value of land and any other collateral property that may be acquired.
iii. S271 – The landowner, whose land is surrounded by the land belonging to other landowners and if he has no access to a public way or his other land, may pass through the surrounding land to reach the public way or his land.
iv. S279 – If the lower land is damaged by artificial drainage constructed on the higher land and if before water flowed naturally onto the lower land, the owner of the lower land may, without prejudice to any claim for compensation, require the owner of higher land to construct the drainage right through the lower land to a public drain. The cost shall be borne by the owner of the upper land.
v. S280 – As a consequence of sub-division of land, if a plot is left without access to a public way, the owner of such plot may claim a right of way over the land, which has been so partitioned or partially transferred
vi. S319 (1) – Acquisition of land means taking over of a registered land by the Government for public interests after providing compensation in accordance with this Act
vii. 319 (50) – Public interest means the needs arising out of socio-economic development and environmental concerns including cultural, environmental, heritage, protection of land degradation, recreational, social and strategic interests as determined by the Government
It may be noted that the Land Act of 2007 gave birth to the establishment two institutions: National Land Commission Secretariat (NLCS) and the Property Assessment and Valuation Agency (PAVA). The former is established by renaming the then Department of Survey and Land Records while the latter is a new institution, currently involved only in assessing the value of land and properties. The establishment of the NLCS has centralized the authorities over land.
One question that is still not answered is what constitutes “fair compensation”? In Bhutan, there are so many forces under play that it is difficult to determine the fair value of land. The seven financial institutions adopt different rates for the same parcel of land and there is no scientific basis for their rates. The rates fixed by the government in the past were far below the people’s expectations, which also do not have any grounding. Because the Act has mandated the PAVA to establish land values, which should be updated every after three years, it is felt that the rates fixed by the PAVA for different categories of land should be legally binding. The PAVA has, for the first time, through a detailed study of the existing scenarios, have come up with land values which are somewhere in between the past government rates and speculated market prices. For the purpose of uniformity and to avoid market distortions it would be advisable for everyone (including financial institutions) to adopt the fair values (compensation rates) proposed by the PAVA.
With regard to facilitating planning and zoning exercises, the Preamble of the Act do contain some mention when it defines the purpose of the act as being envisaged “to manage, regulate and administer the ownership and use of land for socioeconomic development and environmental well-being of the country through efficient and effective land administration, security of land tenure, equal opportunity to land, facilitation of operation of land market, effective use of land resources and conservation of the ecosystem”.
4.3 The Local Government Act 2009
The Local Government Act has been one of the most contentious acts, requiring several sessions and special joint sittings at the Parliament to finally approve it. With regard to urban sector the first enabling act was the Municipal Act of 1999 which was repealed by the Thromde (Municipal) Act of 2007 and the Local Government Act of 2007. All these three acts were finally repealed by the recent Local Government Act of 2009, which is again tabled for review during the winter parliament session of 2011. The ways these acts get approved and repealed and revised very often indicate the existence of inherent tensions that surround properties, rights and urban planning.
The provision of relevance to property as enshrined in this Act states that: “the Thromde Tshogde shall purchase, lease, or otherwise acquire land and property or dispose it off in the interest of the Thromde in accordance with the policies of the Government” S61h (repeated in S63c).
The relevant provisions with regard to public interests/use are:
i. S48k – to protect public health
ii. S88 – member of the Local Government shall ensure public participation from his/her constituency in the formulation of five year and annual plans.
iii. S143 – Local Governments shall announce the dates of their sessions through public media and other means
iv. S145 – All sessions of Local Governments shall be open to public to participate as audience except for closed door sessions
v. S146 – Local Governments shall make every effort to ensure public participation in the development of various plans and programs
vi. S175 – A member shall cast his/her vote solely based on the national and public interests and not on any other factors
vii. S184 – A member of the Local Government shall respect and subscribe to the nonpartisan nature of Public Service
viii. S295c – The protection of the public from nuisance
ix. S295e – The protection, promotion, and maintenance of public health and safety
x. S304t – “Public interest” means the needs arising out of socioeconomic development and environmental concerns, including cultural, environmental, heritage, protection of land degradation, recreational, social and strategic interests as determined by the Government
At this point it may be noted that although the Constitution do not specify what constitutes ‘public interest’ the Land Act and the Local Government Act has the same definition. The act of government in planning for the greater good is therefore legally protected. The same should however be done in a fair manner by providing compensation to the affected party as mandated to the PAVA.
With regard to planning/land use, the act has the following relevant provisions:
i. S48g – Promote holistic and integrated area-based development planning
ii. S61e – Approve land use and development plans in accordance with the laws made by Parliament and rules and regulations made thereunder
iii. S61f – Thromde Tshogde shall approve local area plan including land pooling schemes and any other relevant planning techniques
iv. S62d – Prepare urban development plans or amend an approved urban development plan to regulate and enforce land use and building activity in the Dzongkhag Thromde
v. S62g – Regulate and enforce appropriate land uses including nonconforming land uses and vehicle repair workshops, and building activities in the Thromde
vi. S212 – The Ministry responsible for urban development shall formulate national urban policies, guidelines, and standards; approve structure plans including land use plan of the Thromdes; and carry out planning audits in the Thromdes
vii. S273b – Promote planned development and appropriate land use, control of squatter and illegal settlements and regulation of commercial activities;
viii. S273l – Ensure that urban planning and development are carried out in a manner which is consistent with the national urban development policies
ix. 273o – Carry out preparation of structure plans including land use plans within Thromde areas and recommend their approval by the Ministry responsible for urban development
x. S273p – Carry out land pooling scheme or any appropriate planning techniques and prepare local area plan within the jurisdiction of Thromdes
Thus, it may be noticed that the LGA does actually provide for planning. Although the Land Act mandates the delegation of power and responsibilities to the Local Governments the NLCS is plans to tread slowly and carefully in the process.
5.0 Conclusion
In Bhutan, by and large, the protection of private property rights, their appropriations, and the need to provide fair compensation when private properties are acquired for public purposes are to a great extent taken care by the Constitution, Land Act and the Local Government Act. A recurring limitation is on legitimizing the action and process of planning. Plans and projects are often delayed or huge losses are incurred due to bureaucratic hassles caused by weak and inadequate institutional setup. Lack of proper legislations and legal framework to guide the process of planning and to legitimize government action for public purposes is another challenge. The laws we have discussed above do not provide for the specific needs of urban planning. The Local Government Act mainly caters to the administration of the municipalities and its functions while the Land Act provide only for administration and management of land aspects – that too with more focus on rural lands. Therefore, there is an urgent need for an overarching act that would encompass the aspects of planning. It would provide for and facilitate land use planning. It would also provide for preparation, introduction and adoption of secondary legislations which may be required for effective, efficient and appropriate urban planning and development.
6.0 References:
1. Carol Rose, Crystals and Mud in Property law, 40 Stan.L.Rev. 577 (1988), pp.1-6; 19-30.
2. Charles J Hoch, Linda C. Dalton, and Frank S. So. The Practice of Local Government Planning, Third Edition, ICMA Press, 2000
2. Duncan Kennedy, A Critique of Adjudication: fin de siecle (1997), chapter 2 and 6
3. Frank Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165 (1967), pp.1165-1169; 1214-1238; 1245; 1253-1258.
4. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (1994), introduction and conclusion.
5. Morton Horwitz, The Transformation in the conception of property, 1780-1860, (1977), chapter
6. National Assembly of Bhutan, The Constitution of the Kingdom of Bhutan (2008)
7. National Assembly of Bhutan, The Land Act of the Kingdom of Bhutan (2007)
8. National Assembly of Bhutan, The Local Government Act of Bhutan (2009)
9. Robert C. Ellickson, The untenable case for an Unconditional Right to Shelter, 15 Harv.J.L.&Pub.Pol’y 17 (1992), pp.17, 20-28, 32-34.
10. Singer, Joseph W, Property Law: Rules, Policies, and Practices. 5th ed. Aspen Publishers, (2010)
7.0 Annexure A – List of relevant provisions in the Constitution, Land Act and the Local Government Act (with regard to property, public interest and planning)
THE CONSTITUTION OF THE KINGDOM OF BHUTAN 2008 THE LOCAL GOVERNMENT ACT 2009 THE LAND ACT OF BHUTAN 2007
PROVISIONS RELEVANT TO PRIVATE PROPERTY AND PROPERTY RIGHTS
Article 7, S9 – A Bhutanese citizen shall have the right to own property, but shall not have the right to sell or transfer land or any immovable property to a person who is not a citizen of Bhutan, except in keeping with laws enacted by Parliament.
Article 7, S14 – A person shall not be deprived of property by acquisition or requisition, except for public purpose and on payment of fair compensation in accordance with the provisions of the law
Article 8, S7 – A person shall have the responsibility to safeguard public property” S61h – The Thromde Tshogde shall “Purchase, lease, or otherwise acquire land and property or dispose it off in the interest of the Thromde in accordance with the policies of the Government”
S63c – Thromde Tshogde shall “Approve purchase, lease, or otherwise acquire land and property or dispose it off in the interest of the Thromde in accordance with the policies of the Royal Government”
S119 – Any authorized person of the Commission Secretariat or any agency of the Government shall have entry to a registered land, landed property or roads for conducting cadastral works, land survey, or for utility service facilities as deemed necessary by the Government”
S120 – Before the entry to a registered land by such a person, the Commission Secretariat or any other agency of the Government shall through the Local Authority serve an appropriate notice of entry to the landowner or any person in custody of such land.”
S121 – The landowners shall allow the authorized person to enter their land and landed property subject to the notice served in accordance with Section 120 of this Act.
S153 – The compensation rate fixed by the Property Assessment and Valuation Agency and any subsequent revisions shall be subject to approval of the Government”
S269 – The landowner shall allow any authorized person or persons to enter his land to carry out alterations, adjustment or improvement of service utility works and for purposes connected therewith which are reasonably necessary for the benefit of larger community or environment after reasonable notice.
PROVISIONS RELAVANT TO PUBLIC INTERESTS
Article 7, S14 – A person shall not be deprived of property by acquisition or requisition, except for public purpose and on payment of fair compensation in accordance with the provisions of the law
Article 14 S4 – The Government, in the public interest, may raise loans, make grants or guarantee loans in accordance with the law
S48k – Protect public health
S88 – A member of the Local Government shall ensure public participation from his/her constituency in the formulation of five year and annual plans.
S143 – Local Governments shall announce the dates of their sessions through public media and other means
S145 – All sessions of Local Governments shall be open to public to participate as audience except for closed door sessions
S146 – Local Governments shall make every effort to ensure public participation in the development of various plans and programmes
S175 – A member shall cast his/her vote solely based on the national and public interests and not on any other factors
S184 – A member of the Local Government shall respect and subscribe to the nonpartisan nature of Public Service
S295c – The protection of the public from nuisance
S295e – The protection, promotion, and maintenance of public health and safety
S304t – “Public interest” means the needs arising out of socioeconomic development and environmental concerns, including cultural, environmental, heritage, protection of land degradation, recreational, social and strategic interests as determined by the Government S142 – The Government may acquire a registered land for public interests
S151 – There shall be a Property Assessment and Valuation Agency established under the Ministry of Finance to valuate and fix the value of land and any other collateral property that may be acquired. The valuation of the land and property shall consider the total registered area, registered land category, its current use, location in relation to accessibility to vehicular road, immovable property, local market value, and other elements such as scenic beauty, cultural and historical factors, where applicable.”
S271 – The landowner, whose land is surrounded by the land belonging to other landowners and if he has no access to a public way or his other land, may pass through the surrounding land to reach the public way or his land.
S279 – If the lower land is damaged by artificial drainage constructed on the higher land and if before water flowed naturally onto the lower land, the owner of the lower land may, without prejudice to any claim for compensation, require the owner of higher land to construct the drainage right through the lower land to a public drain. The cost shall be borne by the owner of the upper land.
S280 – As a consequence of sub-division of land, if a plot is left without access to a public way, the owner of such plot may claim a right of way over the land, which has been so partitioned or partially transferred
S319 (1) – Acquisition of land means taking over of a registered land by the Government for public interests after providing compensation in accordance with this Act
319 (50) – Public interest means the needs arising out of socio-economic development and environmental concerns including cultural, environmental, heritage, protection of land degradation, recreational, social and strategic interests as determined by the Government
PROVISIONS RELATED TO PLANNING, ZONING AND LAND USE
Article 22, S18e – Local governments shall be supported by the Government to promote holistic and integrated area-based development planning
S48g – Promote holistic and integrated area-based development planning
S61e – Approve land use and development plans in accordance with the laws made by Parliament and rules and regulations made thereunder
S61f – Thromde Tshogde shall approve local area plan including land pooling schemes and any other relevant planning techniques
S62d – Prepare urban development plans or amend an approved urban development plan to regulate and enforce land use and building activity in the Dzongkhag Thromde
S62g – Regulate and enforce appropriate land uses including nonconforming land uses and vehicle repair workshops, and building activities in the Thromde
S212 – The Ministry responsible for urban development shall formulate national urban policies, guidelines, and standards; approve structure plans including land use plan of the Thromdes; and carry out planning audits in the Thromdes
S273b – Promote planned development and appropriate land use, control of squatter and illegal settlements and regulation of commercial activities;
S273l – Ensure that urban planning and development are carried out in a manner which is consistent with the national urban development policies
273o – Carry out preparation of structure plans including land use plans within Thromde areas and recommend their approval by the Ministry responsible for urban development
S273p – Carry out land pooling scheme or any appropriate planning techniques and prepare local area plan within the jurisdiction of Thromdes Preamble – Whereas, this Act is envisaged to manage, regulate and administer the ownership and use of land for socioeconomic development and environmental well-being of the country through efficient and effective land administration, security of land tenure, equal opportunity to land, facilitation of operation of land market, effective use of land resources and conservation of the ecosystem
8.0 Annexure B: Important doctrines in zoning – protecting preexisting property rights
Zoning is essentially assessed (in American legal culture) based on either its INTENT or RESULT tests. Passing the intent test is to assess if the ordinance is well grounded in meeting the public purpose/s. The result test or the magnitude test imply that the zoning should be assessed to gauge how much of the property rights are disturbed or infringed upon.
While applying zoning laws it is important to understand the three doctrines which involve legal protection of property owners from retroactive zoning application. These doctrines are; prior non-conforming uses, variances, and vested rights.
In order for a prior non-conforming use to be justified the following conditions should be fulfilled:
• The prior use should be lawful
• The use should be same or similar to the proposed/adopted zoning ordinance (complimentary)
• The intensity of use should not increase
Because zoning as a police power uniformly regulates land use in large districts it is impractical to tailor such ordinances to meet the condition of each individual parcel. However there can be instances where the size shape, topography or other conditions may affect a parcel where the ordinance will render it relatively useless. In such cases variances are allowed. For a variance to be justified the following conditions should be met:
• The character of the parcel/site should constitute a nuisance (shape, size, topography, narrow frontage etc)
• The variance should not impact the neighbor
• The variance sought should be modest
• Nuisance should not be self-imposed. For example, the owner’s refusal to sell the property for fair market value to a neighbor who is willing to buy constitutes a self-imposed hardship
• The strict application of the ordinance would produce undue hardship.
It may however be pointed out that a variance is generally granted to relax lot and building restrictions, not use restrictions.
The third doctrine of ‘vested rights’ is applied only if the proposal fulfills the following conditions:
• Merely purchasing property (for a personal interest) is not enough to challenge a zoning ordinance
• The owner should have made substantial investment based on the existing zoning
• The fact that the zoning deprives the property of its most beneficial use does not render it an unconstitutional taking
• The rezoning should not exceed the bounds of reasonableness
Zoning and competing values
While planning an area through zonings are done with best of intentions they are sometimes challenged by litigations wherein the municipalities go through value scrutiny of their zoning ordinance under the Federal and State constitutions. Two cases stand out:
In the Village of Belle Terre v. Boraas, the ordinance contained an unusual definition of “family” that recognized only a few categories of related individuals to live together. The city sought to justify the ordinance as a means of preventing overcrowding, minimizing traffic and parking congestion which are actually noble and legitimate goals. The Supreme Court however held that the Federal Constitution protects the right of traditional family members to live together.
Similarly, in Charter Township of Delta v. Dinolfo, the city issued violation notices to the defendants citing them for having violated the zoning ordinance, which limit those groups who can live in single-family dwellings to an individual, or a group of two or more persons related by blood, adoption, or marriage, and not more than one unrelated person, excluding servants. Here too, the city had rational and laudable goals such as; preservation of traditional family values, maintenance of property values and population and density control. However the court held that the city’s ordinance is “capricious, arbitrary, and in violation of the Michigan Constitution” on the grounds that “it limits the composition of groups in a manner that is not rationally related to the stated goals of the zoning ordinance”.
These two cases reveal good examples of zoning ordinances that revolve around competing family values. They also reveal a debate about the competing views of what the American family should be like.
geleynorbu 