National 3 (Spotlight Weekly)

Protecting Public Property

By issuing mandamus against the construction of shopping mall at Lagankhel, the apex court moves to protect public lands that have religious significance

By KESHAB POUDEL

Thanks to a mandamus issued by the Supreme Court, construction of shopping mall at a Saptapatal Pokhari nearby Ashok stupa in Lagankhel has been stalled but the question remains will it protect other similar historically and culturally important public lands.

CJ Sharma : Landmark decision

At a time when other two stupas in Lalitpur district said to be built by Ashok, emperor of India, during his visit to the country more than two thousand years ago, are struggling for their existence as people have already built houses encroaching the lands at Pulchowk and Imadol, the largest of them the stupa of Lagankhel was also under threat as the land around it was gradually vanishing.

The latest dispute appeared following the decision of Namuna Machhindra School - which is built at the public land - to build shopping mall at Saptapatal Pokhari (Hell's Pond) next to the stupa. The pond is an integral part of the yearly procession of Red Machhindranath, Minnath and Batuk Bhairab chariot. Since the pond also serves as an aquifer for a couple of stone spouts of Patan, the proposed construction of shopping mall was a threat to the environment as well as local religious and cultural practice.

In its landmark decision, the court said Saptapatal Pokhari needs to be protected for its religious and environmental importance. Built by using mud, Ashok stupa - a popular Mauryan type of stupa, remains historically and culturally important place of Lalitpur and the pond is also a part of that stupa.

As public lands close to the heritage sites in Kathmandu valley continue to be encroached by different organizations/individuals to construct buildings, shopping complexes and other government offices and in many cases registered by individuals, the mandamus issued by apex court has come as a welcome relief as the decision clearly states that the public property must be protected and priority should be given to religious and cultural importance of such public land rather than commercial interest.

Led by chief justice Hari Prasad Sharma, the single bench dismissed arguments presented by school that the construction of shopping mall is necessary to increase its internal revenue. The court said that construction of shopping mall by a public school in front of Ashok stupa also violates the right to religion guaranteed by the Constitution of the Kingdom of Nepal 1990.

The Article 19 of Right to Religion in the constitution states that every religious denomination shall have the right to maintain its independent existence and for this purpose to manage and protect its religious places and trusts.

"The court's decision supported the earlier principle set by the court regarding the use of public property. Importantly, the court verdict protects individual right to religion. The court also said that Saptapatal needs to be protected keeping intact its religious importance and environment values," said advocate Purna Man Shakya, who pleaded on behalf of a public litigation filed by local people against the proposed construction of shopping mall at the pond.

After his appointment as the chief justice, Sharma has indicated that he would not allow commercial interests to overshadow the cultural and religious significance by rejecting the arguments given by defendants that the construction of shopping mall would increase the annual income of Namuna Machhindra high school. Dozens of lawyers affiliated to all the political parties had pleaded on behalf of the defendant.

Despite the importance of open spaces for cultural, religious and local environment, public lands remain target for encroachment. Whether it is government offices or non-governmental organizations, other social institutions or individuals, every one tries to grab public land.

In Lagankhel area, there used to be a big open space around Ashok stupa in the past. Later on the government distributed the open space to different organizations including Royal Nepalese Army, Nepal Electricity Authority, Sajha Yatayat, Patan Mental Hospital, Animal Health Clinic and Namuna Machhindra School.

When Hari Prasad Pradhan was appointed as the first chief justice of Supreme Court, he took a number of landmark decisions protecting individual freedoms and protecting the public property. Fifty-four years later, another Hari Prasad (Sharma) has been appointed the chief justice of the Supreme Court but it remains to be seen how the new chief justice will uphold the independence and dignity of the court.

As the saying goes "morning shows the day", chief justice Sharma's recent decision indicates his intention towards the protection of public land, heritage sites and places of religious importance.