Supreme Court Cases Delay Land Distribution and Commission Legitimacy

Kathmandu. Cases filed at the Supreme Court regarding the distribution of public land and the legality of the Land Problem Resolution Commission have become entangled in various benches one after another. The future of the Land Commission and the land distribution process has become more uncertain as the legal battle between the government, citizens, and former commission officials has reached different benches. Cases of a similar nature have not yet been brought together for hearing. Currently, disputes related to the commission and land distribution are under consideration in three different benches of the Supreme Court. On one hand, the bench has sought details of the government's actions in a writ petition demanding a halt to land distribution, while on the other hand, the government's own review petition against a previous order to revive the dissolved commission has reached a full bench. Writ to Stop Land Distribution in Joint Bench, Court Seeks Written Response In a writ filed by senior advocate Dhruvalal Shrestha, claiming misuse of authority by arbitrarily distributing public, forest, and uncultivated land, a joint bench of Supreme Court Justices Tekprasad Dhungana and Nityananda Pandey on Wednesday ordered the government to submit a detailed report within seven days. The bench has sought complete details of the structures formed at the central and district levels and the work done in the name of distributing land to landless Dalits, squatters, and unorganized residents. Earlier, on April 8, a single bench of Justice Meghraj Pokharel had issued an interim order in the same writ to immediately stop the distribution of public land and keep it in its current state. The petitioner has also raised a question of contempt of court, alleging that the government has proceeded with work in defiance of the court's interim order. Order to Revive Commission from Joint Bench After the government decided to dissolve the Land Problem Resolution Commission, former chairman Hariprasad Rizal and others filed a writ at the Supreme Court. Hearing this writ, a joint bench of Justices Sharanga Subedi and Shrikant Poudel issued a mandamus to reinstate the commission by overturning the government's dissolution decision. The Supreme Court had determined that since Article 37 (Right to Housing) and Article 40, Sub-articles (5) and (6) of the Constitution of Nepal guarantee the provision of land to landless Dalits and housing for the landless as 'fundamental rights', dissolving the commission would directly hinder the implementation of these constitutional rights. The court had also overturned the government's decision, finding a violation of the specified work period. The work period of the commission was set at 3 years as per Article 27(1) of the 'Land Problem Resolution Commission Formation Order, 2081'. The joint bench concluded that dissolving the commission midway without any concrete and reasonable basis and before the expiry of its term was not lawful. Furthermore, the court pointed out that the dissolution of the commission without objective grounds was wrong. Although the government argued that the commission was dissolved in the name of 'reducing unproductive expenditure and thrift', the verdict mentioned that no study, report, or data was presented to show to what extent and for what reasons it was unproductive. The court considered the dissolution decision made without clear basis and reason as arbitrary. The court had interpreted that the constitutional responsibility and accountability towards citizens remain intact even with a change in government. The court overturned the government's decision, stating that the interim government formed with the mandate of holding elections, which came into power with the strength of the Janji movement on August 23 and 24, did not have the authority to dissolve commissions linked to citizens' fundamental rights without reason. Although the commission was revived after the mandamus, the dispute over land distribution did not stop. Government's Review in Full Bench The government filed a review petition at the Supreme Court, arguing that the joint bench's mandamus to revive the commission was contrary to its own previous precedents and legal provisions. Hearing this petition, a full bench of Justices Tekprasad Dhungana, Balkrishna Dhakal, and Nripadhwaj Niroula granted permission (nissa) for the review. Now, the justification of the commission and the previous order will be re-examined by a three-member full bench of the Supreme Court. The government has also demanded the overturning of the verdict, citing that it goes against the interpretation of the Supreme Court's constitutional bench, which stated that land distribution in the name of squatters or unorganized residents should not be done without the official and formal decision of bodies established by law. The government has also cited the precedent in Nepal Law Gazette (Nekap) 2054, Issue 12, Decision No. 6479. In the land dispute case, it was recalled that the precedent established was that 'any land should be considered public uncultivated land as long as there is no reliable evidence of an individual's possession'. Similarly, another precedent established in the case of Mandamus, Nekap 2075, Issue 1, Decision No. 10625, has also been mentioned in the review. The government's contention is that the precedent established was that 'there can be no two opinions that government and public land should remain public, and any encroachment on riverbanks and other lands is unacceptable'. The basis of the precedent in the case of Mandamus, Nekap 2076, Issue 1, Decision No. 10169, has also been shown in the review. According to that precedent, it is claimed that the Supreme Court has decided that land registered in the name of the Government of Nepal cannot be transferred to an individual's name solely based on long-term possession. Writ Against Distribution of Government and Forest Land in Constitutional Bench Chartered Accountant Bheshraj Luitel has filed a writ against the legal provision of distributing land ownership certificates to 'unorganized residents' who have encroached upon government, public, and forest land, by charging only 10 percent of the minimum government valuation. In this writ, the constitutional bench issued a show-cause order to the government on April 23. Luitel has made the Office of the Prime Minister and Council of Ministers, the Ministry of Land Management, Cooperatives and Poverty Alleviation, the Ministry of Forests and Environment, and the Land Problem Resolution Commission, among other government bodies, as respondents. Through Section 52(c) of the Land Act, a policy has been put forward to provide land ownership certificates to individuals who have illegally occupied public, government, and forest land, in the name of 'unorganized residents', by collecting only 10 percent revenue. The writ claims that this legal arrangement has been made to benefit land mafias, political party cadres, and encroachers in the name of solving the problems of genuine landless Dalits and squatters. The petitioner argues that instead of being jailed for committing crimes and occupying land, the state is rewarding them with ownership, which is policy corruption, fraudulent use of power, and a serious mockery of the rule of law. Corruption Ripples at District Level While Case is Ongoing in Court While the dispute over the Land Commission is entangled in various benches of the court, facts about serious irregularities in the commission's activities at the district level have begun to surface. The Commission for the Investigation of Abuse of Authority (CIAA) on Wednesday filed a corruption case in the special court against individuals accused of embezzling public property worth over 1 crore 76 lakh rupees by illegally registering government and public land in private names in Khandachakra Municipality, Kalikot. The CIAA has filed a case against the then chairman of the District Land Problem Resolution Commission, Kalikot, Dhir Bahadur Bam, the then chief of the Land Revenue Office, Netra Bahadur Shahi, and 12 others. Commission Formed Repeatedly, Problems Remain the Same According to the latest updated details of the Land Commission, applications from 88,895 landless Dalits, 168,441 landless squatters, and 872,181 unorganized residents have been verified by local levels and entered into the commission's information system. Since 2076, only 8,848 landless and unorganized residents have received land ownership certificates. Some land-related issues have been settled by the constitution itself, with land being designated as a 'fundamental right'. To implement this provision, the seventh amendment to the Land Act was made in 2075. Section 52 'A' of the Act (Seventh Amendment 2075) states, 'The Government of Nepal shall provide land to landless Dalits once, as prescribed, within three years.' According to this provision, landless Dalits were supposed to receive land by October 2078, but this did not happen. Based on the provision made through the amendment of the Act, a Land Problem Resolution Commission was formed under the leadership of Devi Gyawali in April 2076. That commission was dissolved in 2078 and the National Land Commission was formed under the leadership of Keshav Niroula. That commission was also dissolved in 2081. Before the eighth amendment (2076) to the Land Act, commissions were formed based on formation orders. It has been over three and a half decades since the government started forming commissions to solve the problem of squatters. Commissions were formed under Bal Bahadur Rai (2048), Shailaja Acharya (2049), Rishiraj Lumsali (2051), Buddhiman Tamang (2052), Chanda Shah (2054), Buddhiman Tamang (2054), Tarinidatta Chataut (2055), Gangadhar Lamsal (2055), Siddharaj Ojha (2056), Mo. Aftab Alam (2058), Kailash Mahato (2064), Gopalmani Gautam (2066), Bhaktiprasad Lamichhane (2068), Sharda Prasad Subedi (2071), and the Organized Settlement Commission under Vikram Pandey (2073). Although some of these distributed land, the problems still remain. On one hand, the single bench of the Supreme Court has banned land distribution, while on the other hand, the joint bench is awaiting the response of the government's mechanisms. Furthermore, the government's review petition against the mandamus to revive the commission is pending in the full bench. With the writ petitions filed against the distribution of public and environmental land based on political influence through legal loopholes, and the disputes over the commission's jurisdiction caught in the web of different benches, the issue of proper management of genuine landless Dalits and squatters has become even more uncertain.