Revelation of the bench involving chief justice candidate Deepak Raj Joshee ordering registration of the 36 ropani 6 anna land worth Rs 2 billion in the name of Ramprasad Bhattarai of Okhaldhunga

 Menuka Karki : Centre for Investigative Journalism-Nepal

A division bench of Acting Chief Justice Deepak Raj Joshee, the chief justice candidate, and senior most judge after him, Om Prakash Mishra is found to have ordered a 36 ropani 6 anna plot of land located in Handigaun, Kathmandu worth around Rs 2 billion to be registered in the name of a fake tenant.

Local residents, who came to know about the order recently, are preparing to appeal the government and Parliament about the verdict. The division bench of Joshi and Mishra on February 21, 2016 ordered that the area fenced by the Kathmandu Metropolitan City belonged to Ramprasad Upadhyay Bhattarai of Serna, Okhaldhunga. Following the Supreme Court ruling in his favour, Bhattarai is visiting government offices and power centres to register the land in his name. Bhattarai said, “The court has made me victorious but I have not got the land.”

How did Ramprasad’s father Bidhyapati, who hailed from Okhaldhunga, get statutory tenant papers in the old Newar settlement of KMC-5? How did the country’s apex court issue the order so easily to register the highly priced land at the heart of the Capital in the name of an individual? Are there other people to eye the property worth over Rs 2 billion? We have looked into this issue.

 Typical to Handigaun

‘Kahin nabhayeko jaatra Handigaunma’ is an old adage related to the indigenous Newar settlement of Handiagun in Kathmandu Valley. This community of the Valley is known for its various carnivals and festivals depicting tradition and culture. Handigaun was one of such typical places. It has now been synonymous to jatras.

Handigaun on the Dhobikhola banks used to be a small settlement while a larger part of it was fertile field giving bumper paddy harvest. With migration of people from all over the country, the fertile fields of the area were covered by houses and sold as expensive plots of land. Gradually, Handigaun came to be known less for its carnivals than the adage.

The above saying holds true once again when the top court ordered registration of the public Handigaun land in the name of an individual. The totally different new episode of “jatra” reveals deviation from the established process and the all-pervasive corruption within the state mechanism.

The story dates from 1964, when the Land Reform Act was introduced. Survey began the same year. Documents show that the survey retained the land as a public property. Handigaun locals of that time had registered all their land in their name. The powerful even took land beyond the area they had settled on. Records show that those owning one ropani land had even grabbed five-six ropanis. Even then the Dhobikhola area was not claimed by anyone, leaving it to be public property.

This Dhobikhola land used to be a fertile paddy field. Water was channeled here from a dam at Mandikhatar. To its west lied Rajkulo, the traditional water channel. Later this land turned into a Dhobikhola riverbank. Babulal Prajapati, a local resident, said there was no outsider who claimed the land during the 1964 survey. “Even the local who used it did not claim the land,” he said. Locals Krishna Prajapati, Tirtha Prajapati, Bhupendra Prajapati and Kulnarayan Dangol were among those who cultivated the land but none claimed it, according to Babulal.

Surya Lal Prajapati, a 74-year-old born in Handigaun, is a witness to this series of events. He had been a ward chairman in Handigaun for three years until 1990. “Thirteen years after the survey, the government called for proof of ownership or land tenancy from those missing to register their land. But nobody came forward to claim the land.”

According to Prajapati, most of the landowners here were Newars of Ason. “The tenants cultivating the land were from the Newar community in Handigaun. Handigaun then was inhabited by only the Newars of clans including Prajapati, Maharjan, Dangol and Manandhar. There were no settlers from outside. In the 1986 survey too, the 36 ropani 6 anna land was recognized as a public land.”

According to local residents, one Bhattarai never seen there before came to claim the land 25 years ago. Bhattarai claimed that he was tenant on several plots measuring 36 ropani 6 anna in total (See the letter from the Land Revenue Office). He argued that the original recipient of the land was Laxmibai Bhatteni. Since the beneficiary did not register the land, he staked his claim to the land. He filed an application on July 15, 1993 at the Dillibazaar Land Revenue Office to register the land in his name by changing its category.

Bhattarai filed a case at the Supreme Court in 2062 BS. Things took a turn in his favour then. Hearing the writ petition that made the Dillibazaar and Chabahil LROs, the Department for Land Reform and Management and the Ministry of Land Reform and Management defendants, a division bench of Justices Rajendra Kumar Bhandari and Gauri Dhakal on June 27, 2006 issued a mandamus order to the land revenue office to “take action” also by evaluating the tiller’s temporary evidence. In that process, the court also annulled the decisions of the land revenue office taken in accordance with the Acts and Regulations related to land management.

The LRO did not register the land as claimed by Bhattarai but it wrote to the ministry through the Department of Land Reform and Management. In the correspondence of the ministry dated April 23, 2002 and of the department dated April 25, a comparison of the records taken in 2043 BS and 2021 BS showed that the land is public property.

After the court order, the Dillibazaar and Chabahil LROs wrote to the Kathmandu Land Reform Office seeking information about tenancy of the land. The district LRO replied that there was no tenancy record for the continued plot number. The letter stated that the plot number claimed in the temporary proof for tenancy submitted by Bhattarai (Land Reform Form No 4) to have been recognized in 2043 BS was untrue.

The land revenue office decided on April 7, 2011 to register the plot as a public land since riverside accounted for much of it while the area also met the definition of public land as provisioned by Clause 2 (b) of the Land Revenue Act-2034. According to the clause, fallow land and riverbanks are treated as government land.

This decision showed that Bhattarai presented himself as a fake tenant to register the land where the river ran in his name. He is learnt to have tried to grab the public land on the basis of fake documents. Irked by the decision of the land revenue office, Bhattarai moved the Supreme Court with another case.

In this writ, deputy attorney general Ganga Prasad Poudel argues on behalf of the land revenue office. Poudel said that he had found no basis for Bhattarai’s right over the land since he failed to fill the form as provisioned in Appendix 1 of the land-related regulation even as he submitted to the court the temporary proof of the tiller as per Appendix 4. “We even presented to the Supreme Court the record mentioned in Appendix 2 which ruled out Bhattarai’s tenancy stating that the land was a riverside,” said Poudel.

According to a high level source at the Attorney General’s Office, due to frequent pressures, the government attorneys had not prioritized the case. “The AGO did its formality of defending the case through the assistant attorney general rather than a joint AG. We were asked for help saying that things had already been arranged and were assured fees as we claimed.”The Attorney General’s Office had submitted documents to the Supreme Court claiming that Bhattarai’s temporary proof as tiller was invalid even as the land-related Act and Regulation require issuance of the temporary proof as per Appendix 4 to someone recognized as tiller as per appendices 1 and 2. The Attorney General’s Office argued that Bhattarai’s claim mentioning the plot number created in 2043 BS was fake since the details from 2021 BS should have contained the temporary proof.ker, Handigaun

On February 20, 2016 the Supreme Court ordered urgent action towards registering the land in Bhattarai’s name after transforming it into Raikar (the land that an individual can use by paying revenue to the state). A division bench of justices Deepak Raj Joshee and Om Prakash Mishra annulled the April 7, 2011 decision of the land revenue office through a writ of certiorari while ordering implementation of the June 27, 2006 ruling of the Supreme Court. Local residents wonder how the apex court order established Bhattarai, hitherto unknown in the locality, as a tenant of the land.

The Land Act has ruled out land tenancy right after 2021 BS. After enforcement of the Act, tenants retain their right only through passing of registration while requiring the beneficiary to have the certificate issued by the Land Revenue Office. The apex court order flouts this provision.

Kathmandu Ward 5 Chairman Ramesh Dangol said the exclusive Newar settlement of Handigaun had no settlers from other castes until much later. “It can’t be accepted that a Brahmin cultivated land in the midst of a Newar settlement,” he argued. “A person from an outside district can’t get tenancy right here. Had he been a tenant here, one of his neighbors should know about it.”

No Handigaun local knows Ramprasad and his father Bidyapati Bhattarai. They had not seen the father-son duo earlier. Chairman Dangol said the efforts to grab public land through fake documents would not be successful. “Since no individual had right over this land, nobody claimed it during the 1964 survey. So the riverside remained as public land,” he said. “How can the land determined as government’s 54 years ago be registered in the name of an individual through ‘setting’ in court?”

The per anna(land measuring unit) going rate in Handigaun is between Rs 3.5 and Rs 4 million. The minimum rate can fetch Rs 2,030,700,0000 for the 36 ropani 6 anna total land.

Did Ram Prasad’s father Bidyapati ever come to Kathmandu? To learn about this, we contacted the elected representatives in the rural municipalities where Ram Prasad, his brother Hari Prasad and Bidyapati have houses.

Ram Prasad said his father Bidyapati had come to Kathmandu in 2001 BS. According to him, Bidyapati died in 2032 BS in Gaushala. Hari Prasad said: “Father reportedly travelled between Kathmandu and the village. I came to Kathmandu when I was 10/11 years old. He said the land was given to him by the Ranas. Father died in Serna and I know nothing else.”

Chisankhugadhi Rural Municipality Ward 5 member Chiran Bhattarai, who is a distant relative of Bidyapati and who knows his family well, say: “I heard that Bidyapati uncle died in the village where he was known as the priest of the poor.”

From threats to luring

Former Deputy Attorney General Thok Prasad Shiwakoti says, “The Land Reform Act states that a person can have tenancy right only under 10 ropanis of land. It’s a mystery how he claimed land beyond the limit and how the court validated his claim.”

Shiwakoti says, “While the first and second surveys did not list them as tenants, the document comes up 43 years later. Suspected to be fake, the Attorney General’s Office had written to the police seeking investigation and action, to no avail.”

“While pleading, I had said that the claim of a same individual over land adjacent to Dhobikhola and Bagmati can’t be recognized. I had warned of an ‘overhead canal’ above Dhobikhola if the government land is distributed as claimed. It is coming true,” said former AG Shiwakoti.

Bhattarai is actively engaged in registering the land in his name. The Dillibazaar LRO has decided to register the land if the local level provides field evidence for the purpose. The LRO mobilized staff on May 23, 2018 and has written to Kathmandu Ward No 5 office and the Dillibazaar survey office to provide field evidence involving locals whether Ram Prasad has right to the land. (See the LRO’s letter)

Dillibazaar LRO Office chief Keshav Prasad Neupane said the authorities were asked to prepare a field note by consulting local residents on the matter. “Since the ruling was made by the Supreme Court, the case has to be concluded accordingly,” said Neupane. “We intend to implement the court order, not register public land in an individual’s name. We’ll convey the ground report to the ministry.”

The Land Revenue Act-2034 provides that the government can reclaim any time public land used or registered by whoever by whatever means. Point 1 of Clause 24 of the Act states that government or public land must not be registered or inhabited by an individual while Number 2 says that illegal registration of such land is revoked. According to the Act, ownership certificates have to be issued in the government’s name of land areas mentioned in the field book as rivers and streams, rest houses and fallow based on the 1964 survey.

People of Kathmandu Ward No 5 are campaigning to save the property by forming the “Public and Government Land Conservation Concerned Society”. Its secretary Birendra Prajapati said Bhattarai had been using his relatives to both press and lure with millions in cash locals to prepare field documentation in support of his tenancy claim. “The land historically claimed to belong to the government can’t now be registered in the name of a stranger,” said Prajapati.

Ward Chairman Ramesh Dangol said the locals would not testify that the land belonged to an individual even on the basis of the Supreme Court order. “There is pressure for verifying locally that the land belongs to Bhattarai,” said Dangol. “Fully aware, we cannot register government land in the name of an individual.”

According to local social worker Meena Shrestha, the apex court’s order has surprised locals. The retired police officer says, “Until recently, here were no settlers other than from the Newar community. The metropolis had fenced the area to build a park. All of a sudden, somebody unknown to any locals came up as a tenant and the court ordered registration of the land in his name.”

The Commission for Investigation of Abuse of Authority is seen to have written to Chabahil and Dillbazaar LROs, pressing for implementation of the Supreme Court order. The correspondence is beyond the CIAA’s jurisdiction. The Verdict Implementation Directorate of the Supreme Court also wrote to the land revenue offices to honour the order.

Four more claimants

The 35 ropani 6 anna land claimed by Ram Prasad Bhattarai has four other claimants. Purna Bahadur Thapa of Handigaun filed a case in the Supreme Court two years ago claiming 5 ropani 11 anna of the area. The case is sub judice in the court.

Ramesh Prajapati and Shyam Prajapati of Handigaun have also filed cases in the apex court staking their claim to 10 ropani each of the land. The pieces they claim are currently owned by the Gokarneshwar Panchamrit Trust. Plot numbers 636, 637 and 443, owned by the Shree Pashupati Mahasnan Trust, are claimed by Keshav KC. Besides the Prajapatis, all others migrated to Handigaun.

A committee chaired by Kathmandu CDO Eknarayan Aryal decided on September 2, 2015 to hand over the government/public land to the Kathmandu Metropolitan City for conservation. As decided by a meeting chaired by another Kathmandu CDO Ramkrishna Subedi on May 5, 2016, the KMC fenced the area west of Dhobikhola after demarcating the land. This area currently has offices of the Narbuddha Bihar, Community Police Service Centre and the disaster response office of Nepal Police.

Kathmandu Mayor Bidya Sundar Shakya said the public land within the metropolis would not go to individual owners. “I’ve not inquired about the court order but the KMC fenced the land since it is a public property. Public land can’t, and won’t, be registered in the name of an individual,” said Shakya.