"These issues raise serious questions in relation to the country's land governance, transparency, and the rule of law"
KATHMANDU, FEBRUARY 7
The Supreme Court annulled then-KP Sharma-led government's decision to allow Giri Bandhu Tea Estate to relocate its 343-19-12 bigha land to a different location.
A constitutional bench of the Supreme Court comprising Chief Justice Bishowambhar Prasad Shrestha, Justices Ishwar Prasad Khatiwada, Prakash Man Singh Raut, Sushma Lata Mathema and Sapana Pradhan Malla delivered the verdict in response to a writ petition filed separately by Advocate Om Prakash Aryal, Om Prakash Mishra, Bhaktaraj Bharati and others.
The constitutional bench did not declare some provisions of Land Act, 1964 particularly Section 12 (c), 12 (e), Rule 16a of Land Regulations and Schedule 5 ultra vires as claimed by the petitioners, but ruled that the Oli government's decision taken on April 26, 2021 to allow Giri Tea Estate to relocate, was not consistent with the provisions of Land Act, including Section 12 (c). The court ruled that generally land above the ceiling must be confiscated. The court issued a writ of mandamus to the government telling it to manage the land keeping in mind the area of land, capacity of estate to grow tea, and guarantee of getting proportional land in the case of land swap and the price of the land. The court will deliver the full texts of the verdict later.
A certiorari order to revoke the Cabinet decision and any work carried out in accordance with it was issued by the constitutional bench of the Supreme Court because it was determined that the controversial Cabinet order allowing the exchange of the tea estate's land was immature and in violation of section 12(c) of the Lands Act 1964 and other legal provisions.
"The court has revoked the Oli government decision by maintaining the status quo of the Giri Bandhu Tea Estate Land," Petitioner Advocate Om Prakash Aryal told THT.
Additionally, attempts to build commercial buildings on the Tea Estate Land have been halted by the decision.
Aryal said that the Oli-led government of the past had orchestrated a legislative plan to bring about a policy that would have allowed the interest group to bribe the policy makers to exchange the Giri Bandhu Tea Estate land for whatever they desired.
"Therefore, we filed a petition in the Supreme Court demanding the annulment of the decision because the government had approved the lease of the land at Giri Bandhu Tea Estate to facilitate plotting at that location for residential purposes," he said.
"The land was allowed to be used in excess of the limit for agricultural farms; the price of land at Giri Bandhu Tea Estate, which is in Birtamod, has skyrocketed; as a result, the tea estate devised a plan to exchange company land for inexpensive land in the rural area by influencing the Oli government."
A precise provision pertaining to the delimitation of land has been made in the Land Act, 1964. According to Section 7 of the Act, a landowner may own up to 10 Bighas in the Terai region, 25 Ropanis in the Kathmandu valley, and 70 Ropanis in other hilly regions of Nepal, for a maximum of 10 Bighas in all. One Bigha will be kept for homesteading in the Terai region, and five Ropanis can be kept in the
Kathmandu Valley and in other hilly areas.
Similarly, Section 10 of the act enables the government to confiscate the land if any landowners exceed the upper ceiling, which is 10 Bighas in Tarai, however, Giri Bandhu Tea Estate planned to swap 343 Bigha land.
On the other hand, Clause (e) of Section 12 of the Act stipulates that the land of the extent specified in the notified order, which has been taken in accordance with the conditions specified in the work of the agro- industrial activity by the Government of Nepal through a notified order, will be exempted from the maximum limit as long as it remains in the work in consonance with such terms.
As a result, if there is more land than is exempted, the government will automatically acquire it under Section 7.
However, during the Panchayat era, the Giri Bandhu Tea Estate, owned by landlords, maneuvered to avoid nationalisation of surplus land.
Budhkaran Rajbansi and the Giri brothers ingeniously established tea estates to avoid land ceilings under the Land Act of 1964, taking advantage of a Gazette notice that exempted approximately 344 bighas from sealing if they operated as tea estates.
Real estate magnate Deepak Malhotra is entangled in the dispute after he is purportedly involved in large-scale investments to enable the trade of prime Birtamod land for lesser-valued plots in Jhapa Rural Municipality and Kachanakbal.
Advocate Om Prakash Aryal notes that in Nepal's evolving socio-political landscape, these issues raise serious questions about land governance, transparency, and the rule of law.
Aryal argued in the writ petition that any business that is allowed to own more land than the ceiling should return the excess land to the government, and it should not be allowed to relocate or sell it.
