NATIONAL 1 (Spotlight Weekly)]

Land Riddle

The apex court walks a tight rope in seeking to protect the interest of the citizens without hurting the government

By KESHAB POUDEL

Whenever the legislature or executive tries to impose certain restrictions on the Supreme Court, common citizens and professionals join hands to stop the government from interfering with the independence of the judiciary. Can the apex court have a reciprocal attitude when the executive and police authority moves to encroach upon the fundamental rights of the individual and the powers of other constitutional organs?

Supreme Court : Meaningful verdict

The apex court has made a number of landmark decisions on vital national issues like the Tanakpur accord, citizenship, Labor Act, among others. In some cases, the final authority on interpreting the constitution has been found to escape from delivering a clear judgment. In the debate over the right and jurisdiction of the attorney-general, for instance, the court delivered an ambiguous decision, giving the authorities plenty of opportunity to misinterpret the verdict. In the writ of land reform, lawyers argue, the court delivered a decision that has given dubious meaning and raised greater controversy in the phase of implementation.

The court dismissed the writ petition seeking to nullify the so-called bond. But it declared that the bond has no legal meaning and consequences whatever. If parliament is able to pass the proposed amendment bill, it will give retrospective powers from the date of declaration of August 16, 2001 regardless of who is the new owner of the land.

Although a full bench of the apex court declared the government’s decision to freeze the transaction of the land as unconstitutional and asked the government to continue the status quo until parliament passes the bill, it also accepted the arguments of the petitioners to declare the bond illegal.

The first batch of writs had become non-functional on account of its non-existence of the situation and no order was issued by the court. All petitions were rejected on the ground that the government had reopened land transaction activities. As parliament can pass a law retrospectively, the court cannot say anything on that.

For the second writs, the court was required to consider the legality of the conditions imposed by the government. To this, the attorney-general’s submission was that its purpose was for the well-being of both the buyers and sellers with respect to the new ceiling proposals.

On August 16, the Prime Minister Sher Bahadur Deuba made a declaration through a special announcement in parliament indicating government's policy and the plans of radical land reform by reducing the existing land ceiling. In the same statement from the rostrum, he had declared that all land transaction would be frozen until the legislation amending the existing land ceiling laws were promulgated and enforced.

The Ministry of Land Reform and Management, on the basis of the prime minister's statement, issued an administrative circular and imposed a blanket freeze on all land transactions throughout the country without taking recourse to any valid law. After the prime minister’s announcement, six batches of writ petitions were filed in the Supreme Court seeking to declare it null and void.

For 12 days, the land freeze was enforced without the authority of valid laws, simply relying on the illegality of the circular. But the government issued an order invoking the power conferred by Section 62 (1) of the Lands Act 2021 (power granting removal of difficulties in enforcing existing law) effecting a partial ban through a gazette notification on August 28.

On August 31, the government was finally able to submit a Land Act Amendment bill in parliament and on same day it issued a fresh order invoking the same law, thereby lifting the land freeze order. But one condition was still imposed: all parities to land transactions were required to furnish a bond indicating their consent to abide by the new land ceiling as provided in the proposed amendment bill.

It is interesting to note that the government announcement came on the same date fixed by the apex court for hearing the six petitions already filed against the land freeze order. As the hearing on the petitions was not completed, the case was postponed for hearing on September 6. On September 3, two of the petitioners had filed another writ petition challenging the order of August 31 which was heard by the court on September 4 and the same was disposed for hearing for hearing on September 20 by another bench of the court.

The special bench headed by Chief Justice Keshab Prasad Upadhyaya, Justices Laxman Prasad Aryal, Kedar Nath Upadhyaya, Krishna Jung Rayamjhi and Govinda Bahadur Shrestha dismissed the writs, but issued an order declaring the bond illegal.

Attorney-General Badri Bahadur Karki argued the case on behalf the government. He pleaded that the prime minister’s announcement was merely a policy statement which no law prohibited him from making. More than half a dozen senior advocates and advocates pleaded the case on behalf of the petitioners.

Although the court's decision give certain relief to the citizens, the social and economic tension and trauma generated by Prime Minister Deuba's statement will remain in society. Can the executive, judiciary and legislature inject confidence among the people?