Kamalpokhari Land Dispute Reaches Supreme Court

Kathmandu. The dispute related to the construction of Chhaya Center by encroaching on Kamalpokhari in Thamel, Kathmandu, has become increasingly complex in recent times. The dispute has reached the Supreme Court after the land, including Kamalpokhari, which was under the Bhagwan Guti, or Raj Guti, was registered in the name of an individual and subsequently sold.

In 2071 BS, 15 cases were filed in the Supreme Court by advocates Dipak Bikram Mishra, Ram Hari Shrestha, and others after banker Prithvi Bahadur Pandey built a commercial complex in the name of his mother, Chhaya Devi Pandey, by encroaching on Kamalpokhari located in front of Thamel Bhagwan Bahal. They demanded the demolition of Chhaya Center.

This dispute has been lingering in the Supreme Court for a long time. After the joint bench could not resolve this dispute, the question has arisen whether it is permissible to establish tenancy rights without cultivating the land under the Guthi Sansthan and register it in an individual's name.

It appears that a compromise was made on the Guthi land, and therefore, the full bench of the Supreme Court needs to interpret whether such land can be compromised. The Supreme Court needs to interpret whether it is permissible to facilitate a compromise in the court's supervision to transfer any Sansthan or Guthi land into an individual's name.

Before Chhaya Center was built, in the fieldbook created after the survey and mapping on Kartik 16, 2033 BS, it is found that the fieldbook for plot number 167 in the former Kathmandu Metropolitan City-29, with an area of 12.13.2.2, and plot number 1040, with an area of 9 ana 2 paisa 3 dam, had 'Pokhari' (pond) and 'Chok' (courtyard) mentioned in the cultivator and landowner columns respectively, while the cultivator column was empty.

Previously, the Land Revenue Office, Kathmandu, had sent a response to the Supreme Court stating that although the fieldbook description of the historical land of Kamalpokhari in Thamel, plot no. 167, indicated it was a pond, the category in the records was of 'Sim' (irrigated land).

In view of the clear provision in clause (b) of the proviso to Section 27 of the Guthi Sansthan Act, 2033 BS, issued on Kartik 4, 2033 BS, that no one can acquire tenancy rights on Guthi land of this nature, the question of whether the compromise made on Poush 3, 2033 BS, before this very court, creating the right for the defendant Ambika Rana, wife of Keyur Shamsher Jabra, to cultivate tenancy rights on the disputed plot nos. 167 and 1040, which are described as ponds and pond banks, and what the legal status of that compromise is, has been raised by the joint bench of the Supreme Court earlier.

Previously, the Land Revenue Office, Kathmandu, had sent a response to the Supreme Court stating that although the fieldbook description of the historical land of Kamalpokhari in Thamel, plot no. 167, indicated it was a pond, the category in the records was of 'Sim' (irrigated land). This is Guthi Tainathi land, so the Sansthan has full authority. Generally, tenancy rights do not apply to such land. However, the Sansthan can cultivate it itself or lease it out to someone, but such a person does not acquire permanent tenancy rights.

• Action Taken Against Employees When Guthi Land Was Registered in Individual's Name

The Guthi Sansthan took action against its employees for approving the compromise in the name of individuals for the land described as ponds and pond banks in plot numbers 167 and 1040, which was against the Guthi Sansthan Act. Ambika Rana had registered the land of plot no. 167 in her name and her elder brother Shankar Prasad Shah's name as Guthi Raitani (in individual name) on Magh 18, 2047 BS, which faced opposition. Within two months (Chaitra 15, 2047 BS), the Guthi Sansthan decided to take departmental action against the Guthiyar of Shri Singharth Bahu Garuda Bhagwan Guthi and the concerned employees involved in the registration, stating that the public land was registered in individual names due to the mistake of its employees, and to return the land to the Guthi. Rana and Shah were called to collect their money. Rana and Shah filed a lawsuit against the Guthi Sansthan in court to nullify that decision.

The locals demand that Surendra Man Pradhan, son of Hiranyeshwar Man, the chairman of the Guthi committee, along with others, who gave consent letters to transfer the rights of the public pond and its banks to the company named Chhaya Complex Pvt. Ltd., should be taken into custody and prosecuted, and the structures built on the public land, including the currently registered plots 2412, 2413, 1617, 2019, and 1040, which were originally plot no. 167, should be demolished.

Hiranyeshwar Man Pradhan and others, who were the 'Naike' (caretaker/manager) of the 26 Ropani 8 Ana area including Kamalpokhari, its banks, and courtyard, which is under the protection of Thahavi Vikramshil Mahavihar Rajguti, had signed agreements in 2033 BS and 2062 BS, contrary to the Guthi Sansthan Act, to register the land in individual names through compromise.

In response to the Supreme Court's query, the Land Revenue Office sent a letter stating that regarding plot no. 167 of the former Ward 29, with an area of 12 Ropani 13 Ana 3 Paisa 2 Dam, and plot number 1040, with an area of 9 Ana 2 Paisa 3 Dam, the office's records show them as original plots in their surveyed condition. The letter from the Guthi Lagaat Tatha Tahabil Office, Bhadrakali, number 038-039, dated Jestha 21, 2039 BS, mentions registration.

According to the Guthi's letter dated Ashar 6, 2040 BS, and the Survey Office's letter dated Shrawan 15, 2041 BS, plot 167 was divided into plot no. 1616 with an area of 6 Ropani registered to Sudha Poudel, plot no. 1617 with an area of 2 Ropani 10 Ana registered to Bina Poudel, and plot no. 1618 with an area of 9 Ropani 13 Ana 2 Paisa 2 Dam remaining with Keyur Shamsher, as informed to the Supreme Court.

In 2044 BS, the government of His Majesty the King registered 57.14.3.2 Ropani of public land in Thamel Ward No. 29 in its own name. In the description of plot no. 167 of Kamalpokhari, which was registered in this manner, measuring 12.13.2.2 Ropani, 'Aabadi' (cultivated/occupied land) is described as 'Parti Pokhari' (unoccupied pond) and the 'Ghar Jagga' (house and land) column mentions 'Pokhari'. The landowner's name is written as 'Shree 5 Ko Sarkar' (Government of His Majesty the King). The cultivator's column also mentions 'Pokhari'.