Nepal Government Appeals Supreme Court Decision on Land Commission

Kathmandu. The government led by Balendra (Balen) Shah has appealed to the Supreme Court, concluding that the 'Land Commissions' formed to solve the problems of landless squatters and unmanaged settlements have become mere political recruitment centers, and instead of solving the real problems, they have plundered state assets.

The government claims that the mandamus issued by the Supreme Court to revive the commission formed by the then government led by KP Oli has encroached upon the jurisdiction of the executive and ignored the spirit of the 'Gen Z' (youth) rebellion.

The government's assessment is that past land commissions, rather than identifying genuine landless squatters, have become a means to distribute public land to their cadres in the name of 'unmanaged settlements'. The government argues that while a separate legal provision related to fundamental rights is necessary to ensure the right to housing for landless Dalits and squatters, legitimizing those who encroach on government land through influence is contrary to the spirit of good governance.

The government has also claimed that political parties, at that time, had issued laws contrary to the constitution by 'holding parliamentary supremacy hostage' in decisions including the formation of commissions. Furthermore, the government claims that the verdict is contrary to the precedents and legal principles established by the Supreme Court itself.

The petition registered by the government in the Supreme Court claims that the 'legal formulation for the formation' of the commission is itself flawed. The government stated, 'Despite having judicial knowledge of the prevailing laws of Nepal, the decision to allow a commission formed on flawed legal grounds to perform its duties is flawed and liable for cancellation.'

The government has concluded that the decision is flawed and liable for cancellation, considering that the formation order, the commission formed based on that order, and the actions taken by the district committees are all based on the principle of the fruit of a poisonous tree, meaning the foundation or root is wrong, and thus the outcome is also flawed. The government has cited 14 precedents and principles to explain why the Supreme Court's recent decision to revive the land commission should be overturned.

The government has concluded that the decision is flawed and liable for cancellation, considering that the formation order, the commission formed based on that order, and the actions taken by the district committees are all based on the principle of the fruit of a poisonous tree, meaning the foundation or root is wrong, and thus the outcome is also flawed.

The government's argument is that the 'Land Problem Resolution Commission Formation Order, 2081' brought by the then government led by KP Sharma Oli is contrary to the spirit of the constitution and the land act, and therefore, reviving the commission formed under that order is legally incorrect.

The review mentions the legal criteria adopted by India, Bangladesh, Sri Lanka, Thailand, and China for landless people. The government has also informed that it is moving forward on the path of good governance, corruption prevention, development, and economic prosperity by implementing the priority, reform plans, and good governance roadmap of the 100-point agenda for administrative reform passed by the Council of Ministers of the government formed by the mandate received from the general elections held in the country.

'The decision is flawed and liable for cancellation, being contrary to the constitutional provision under Article 75 of the Constitution of Nepal that the executive power of Nepal shall vest in the Council of Ministers according to the constitution and laws, as well as the Act Relating to the Interpretation of Laws,' the government stated, asserting the validity of the decision of the then government led by Sushila Karki.

Furthermore, the government claims that the then Oli-led government formed the commission to distribute land across the country in the name of unmanaged settlements. Citing 14 precedents, the government stated, 'The court's interference in policy decisions is outside the scope of judicial management standards.' The government has urged the court to exercise 'judicial restraint' and argued that the judiciary should not obstruct the work of the executive.

Precedents Cited by the Government in the Review

The government has demanded the cancellation of the verdict, stating it is contrary to the interpretation of the Supreme Court's Constitutional Bench, which stated that land distribution in the name of landless or unmanaged settlers should not be done without the official and formal decision of bodies established by law. The government has also cited the precedent from Nepal Law Journal (NeKaP) 2054, Issue 12, Decision No. 6479. In the case related to land encroachment, it was recalled that the precedent was established that 'unless convincing proof of possession is presented for any land, any unallocated land must be considered public unallocated land.'

Similarly, another precedent established in the case of Writ of Mandamus in NeKaP 2075, Issue 1, Decision No. 10625 has also been mentioned. The government's claim is that the precedent established is that 'there can be no two opinions that government and public land should remain public. Public land must remain public, and any encroachment on riverbanks and other lands is unacceptable.'

The basis of the precedent established in the Writ of Mandamus case of 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 government or public land registered in the name of the Government of Nepal cannot be transferred to an individual's name solely based on long-term possession.

Basis of the 100-Point Agenda Cited by the Government in the Review

The government led by Balendra Shah has recalled that in the Good Governance Roadmap for Administrative Reform, 2082, brought to light on Chaitra 15, point no. 21(b)(u) regarding land administration, suggestions were made concerning the management of landless Dalits, landless squatters, and unmanaged settlements. It has also been presented that the Land Problem Resolution Commission and its orders formed to solve land-related problems have not achieved the objectives of the constitution and laws.

'To implement the spirit and voice of the Gen Z movement, the Good Governance Roadmap for Administrative Reform, 2082, and the 100-point agenda for administrative reform passed by the Council of Ministers on 2082.12.13 through law and its implementation, the government is committed and working to bring into practice a separate legal provision regarding fundamental rights on the issues of landless Dalits, landless squatters, and unmanaged settlements and implement it,' the government claimed in the review.

On What Basis Did the Supreme Court Overturn the Government's Decision?

Following the Gen Z movement on Bhadra 23 and 24, 2082, the interim government formed under the leadership of Sushila Karki decided to dissolve the Land Problem Resolution Commission and its district committees in a Council of Ministers meeting on Ashoj 23, 2082. Hari Prasad Rizal, the chairman of the Land Problem Resolution Commission, filed a writ in the Supreme Court against that decision.

The petition claimed that the government's decision to dissolve the land commission was retaliatory, given that the officials were appointed for a three-year term and more than 1.1 million landless Dalits, landless squatters, and unmanaged settlers had applied for land problem resolution. The Land Commission has more than 350 officials and members, and more than 1100 employees working in its central office and 77 district offices.

The Land Problem Resolution Commission was formed through the Land Problem Resolution Commission Formation Order, 2081, during the Oli government's tenure. In a hearing on the writ filed by Commission Chairman Rizal on Mangsir 15, 2082, a joint bench of Supreme Court Justices Sharanga Subedi and Shrikant Poudel overturned the Council of Ministers' decision to dissolve the land commission.

The Supreme Court determined that dissolving the commission would directly hinder the implementation of the 'right to housing' guaranteed by Article 37 of the Constitution of Nepal and the provisions in Article 40, subsections (5) and (6), which mandate providing land to landless Dalits and arranging housing for the homeless Dalits, as these are 'fundamental rights'. The court also ruled that the government's decision was invalid, finding a violation of the fixed work period.

According to Article 27(1) of the 'Land Problem Resolution Commission Formation Order, 2081', the commission's term was set at three years. The joint bench concluded that dissolving it midway without any concrete and reasonable basis, and before the term expired and the commission fulfilled its objectives, was not lawful.

Furthermore, the court pointed out that the dissolution of the commission without objective grounds was incorrect. Although the government argued that the commission was dissolved in the name of 'reducing unproductive expenditure and promoting frugality,' it failed to present any study, report, or data on why and to what extent it was unproductive, the verdict stated. The court considered such a decision without clear basis and reason to be arbitrary.

The court 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 strength of the Gen Z movement on Bhadra 23 and 24 had only a mandate to conduct elections and did not have the authority to dissolve commissions that have long-term effects and are linked to citizens' fundamental rights without cause.

The Supreme Court ruled that the government's decision was contrary to the rule of law. It held that the dissolution of the commission based on political expediency, without adhering to the methods and procedures prescribed by the constitution and laws, and without giving anyone a chance to be heard, was an abuse of power, violating the rule of law in the exercise of state power.

Additionally, the court issued the writ because it appeared that dissolving the commission abruptly, when it had already collected data, processed applications, and distributed some land ownership certificates, would nullify all progress made so far and cause long-term damage to the state.

The current Land Problem Resolution Commission, formed on Kartik 13, 2081, had initiated its work by announcing it as the 'final opportunity for land registration and acquisition in the name of landless Dalits, landless squatters, and unmanaged settlers across the country.' The commission had issued a notice on Srawan 30, 2081, extending the deadline for submitting applications by another 35 days, calling it the 'final time.' Before the notice period expired, the government changed. Within a month of the new government being formed, the decision to dissolve the land commission was made.

Repeated Formation of Commissions, Problems Remain the Same

According to the latest updated details from the Land Commission, applications from 88,895 landless Dalits, 168,441 landless squatters, and 872,181 unmanaged settlers have been verified by local levels and entered into the commission's information system. Since 2076, only 8,848 landless and unmanaged settlers 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 'Ka' of the Act (Seventh Amendment 2075) states, 'The Government of Nepal shall provide land to landless Dalits for once as prescribed within three years.' According to this provision, land was supposed to be provided to landless Dalits by Ashoj 2078, but it was not achieved.

In accordance with the provision made through the amendment of the Act, a Land Problem Resolution Commission was formed under the leadership of Devi Gyawali in Baishakh 2076. It was dissolved in 2078 and replaced by the National Land Commission 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 problems of landless squatters. Commissions led by 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), Md. Aftab Alam (2058), Kailash Mahato (2064), Gopalmani Gautam (2066), Bhaktiprasad Lamichhane (2068), and Sharadaprashad Subedi (2071), and the Managed Settlement Commission under Vikram Pandey (2073) were formed, and land was distributed, but the problems still remain.