Nepal — Advocate Prakash Mani Sharma for Pro Public vs His Majesty Government Cabinet Secretariat and others, WP 2991/1995 (1997.06.09)

(Translation from Nepali to English by Raju Prasad Chapagai)

Advocate Prakash Mani Sharma for Pro Public vs His Majesty Government Cabinet Secretariat and others, WP 2991/1995 (1997.06.09)

Supreme Court of Nepal, Joint Bench

Hon’ble Keshab Prasad Upadhayay,
Hon’ble Kedar Nath Acharya,

WP No 2991of the year 2052 B.S (1995)

Petitioner: Advocate Prakash Mani Sharma for Pro Public

Versus

Respondents: His Majesty Government Cabinet Secretariat and others

Case: Certiorari with Prohibition

Constitutional/Legal Issues

1. Whether the directive principles incorporated under Part Four of the Constitution are enforceable?

2. Whether there is locus standii of the petitioner to invoke the extraordinary jurisdiction of the Supreme Court in regard to heritage conservation?

3. Whether the court can issue any order to give effect to the Convention for the Protection of the World Cultural and Natural Heritage 1972?

The Court held: The court most interpret that the violation of directive principles and policies under the Constitution of the Kingdom of Nepal 1990 becomes the subject to judicial scrutiny. Simultaneously, reinforcing the doctrine of locus standi already established in its previous judgments, the court further illuminated this doctrine in connection with the heritage conservation. In this case, for the first time, the court also ordered the government to formulate policies concerning heritage conservation in order to give effect to the Convention for the Protection of the World Cultural and Natural Heritage 1972.

Order in detail:

* * * *

Concerning the question of petitioner’s standing to file the case in the court: respondents seemed to agree in their written statement about the fact that the historical religious and cultural importance of the Katmandu Valley has been maintained due to the existence of Rani Pokhari, built by Pratap Malla by bringing holy water from various pilgrimages, and the statues, temples and monuments surrounding it. The fact that for day-to-day guarding of this area and the pond, it has been encircled by iron bars for security purpose also establishes that the Rani Pokhari is public property that has maintained the historical and cultural importance of that area. As such, the words “public right” or “concern” under Article 88(2) of the Constitution signifies the collective right of the general public under the constitution and law. That is why it cannot be said that a public-spirited individual has no right to be concerned about such public property. Previously, in various cases this court has ruled that any individual has locus standii to bring suit in the Supreme Court concerning matters of public importance. Here it is not necessary to further consider locus standii as the court has granted broad interpretation in many cases: Radhye Shyam Adhikari vs Kalyan Bikram Adhikari (NLR 2048, JN 4420), Surya Prasad Dhungel vs Godavari Marble Industries Pvt. Ltd. (NLR 2052, Silver Jubilee Issue Page 169), Balkrishna Neupane vs His Majesty Government, Cabinet Secretariat (SC Bulletin 2049 No 11, P. 1) Yogi Narahari vs HMG Ministry of Education Culture and Social Welfare (NLR 2053, JN 5127). Hence, the court disagrees with the argument put forth by Learned Government Attorney Balaram K.C. and the written statement of the respondent that the writ petition filed in court on behalf of Forum For Protection of Public Interest lacks locus standii.

In regard to the second question raised by the petitioner, directive principles and policies were already considered in Yogi Narahari vs HMG Ministry of Education Culture and Social Welfare (NLR 2053, JN 5127). The precedent propounded in that case that despite the unenforceability of a directive principle, the court could intervene if government decisions are contrary to directive principles. Directive principles are highly valued as these are incorporated under the constitution itself. To declare the directive principle unenforceable in the Constitution doesn’t necessarily mean that these principles and policies are worthless and meaningless. Art 24(2) or the Constitution of the Kingdom of Nepal itself clarifies the explicit concept concerning directive principles. Art 24(2) states that the principles and policies contained in this Part shall be fundamental to the activities and governance of the state and shall be implemented in stages through laws within the limits of resources and the means available in the country; because of this, these principles should be deemed as an open order from the Constitution to the legislature and the executive branch. Directive principles comprise the goal and objectives that the leadership of the country has to adopt in order to shape the framework of the country in the future. That is why the state has a moral obligation to follow the directive principles in course of its functioning. To run government as per the objectives and policies enshrined under the constitution is an indispensable fact. No one is entitled to do any thing against said principles and policies under the constitution. If any action is done against directive principles, the court does not keep silent. Like our Constitution, the Constitution of India also provides directive principles. In Sachidananda Pandye vs State of West Bangal (AIR 1987 SC 1109), the Supreme Court of India has held that whenever an environmental issue is brought before the court, the court is bound to bear in mind Art 48A (Directive Principles) of the Constitution. When the court is called upon to give effect to directive principles and fundamental duties, the court may not shrug it’s shoulders and say that priorities are a matter of policy and so it such matters are relegated to policy making authorities … in appropriate cases the court may go further but how much further must depend on the circumstances of the case. The court may always give necessary directions.

Henceforth, the directive principles and state policies under Chapter Four of the Constitution are not worthless provisions and these provisions cannot be abrogated. If these provisions are violated, at such time the court can issue necessary order in order to give effect to the directive principles.

With regard to the question whether or not the court should issue an order as demanded by the petitioner: the facts concerning the historical, religious and cultural significance of Rani Pokhari have been unquestionably established; the written statement of the respondents further supports them. His Majesty’s Government has also adopted various measures for the conservation of things of cultural and religious importance. Prior to the approval by government of the Katmandu Valley City Development Plan in 1975, the Master Plan for the Physical Development of the Kathmandu Valley was adopted in 1969, which had an objective to protect cultural and historical features of the Valley. Section 5(1)(b) of the Town Development Plan Implementation Act, 1970, relates to places of archaeological, religious and historical importance; and Section 5(1)(e) empowers a committee for protection of the environment. The Town Development Plan of 1976 has an objective to conserve and promote historical places, and there was also an objective to renovate and protect archaeological and natural places. Many studies have also been done concerning the environmental consequences and the complexities to be created in promoting the well-being of the people due to the unplanned construction of housing. According to the Section 11 of Village Development Act, 1990, Village Development Committees are charged with the responsibility to achieve well-rounded development and maintain religious, cultural and the historical heritages. The Municipality Act, 1990, imposes legal duties on municipalities to conserve natural and archaeological heritages; to declare particular places as protected areas; to protect rivers, streams, ponds, wells etc. Section 2(a) of the Ancient Monuments Protection Act 1956 defines ‘Ancient Monument’ as Devalaya (Palace/of God), Shivalaya (Place/Palace of God Shiva), Math (religious houses) Gumba (Monastery) etc. Section 9 discusses the rights and duties of the His Majesty`s Government to make proper arrangement for their protection by preventing any misappropriation and misuse of Devalaya, Shivalaya and places of historical and archaeological importance or any other place government has a duty to protect under the Act. According to the abovementioned legal provisions it is revealed that the relevant government authorities are entrusted with the legal obligation to protect places of religious, archaeological and historical importance. Accordingly, there is no question that the respondents have a legal obligation to protect Rani Pokhari and the temples and statues of god and goddesses that exist in that area. The precedent that the government has a duty to protect places of religious, cultural and historical significance was propounded in Yogi Narahari Nath vs His Majesty’s Government Ministry of Education Culture and Social Welfare and Others. It is not sufficient to state, in its written statement, that the government is alert about protection. Commitment should also be reflected by action and creation of public awareness. Plans adopted since 1954 should be evaluated for how successful they have been.

Concerning the question of environment: it is an established fact that the environment of Katmandu Valley is getting polluted due to the adverse effect created by many factors: Rapid urbanization, over population, lack of tree planting, operation of factories and industries, pressure of diesel and petrol run vehicles, unplanned settlements, construction of large buildings for various purposes. Though all the relevant stakeholders seem concerned to find solutions, it seems that there is the need for cooperation, collaboration and coordination among them to secure success. Planning and reports themselves are not the solution; only effective implementation of them results in success. In regard to the environment, Article 26(4) of the Constitution of the Kingdom of Nepal states that the state shall give priority to the protection of the environment and also to the prevention of the further damage due to physical development activities by increasing awareness of the general public about environmental cleanliness; therefore, it is expedient to take effective steps towards environmental protection on a priority basis by making serious considerations and contemplations. Nepal has also expressed its commitment towards the protection of environment at the Rio de Janeiro Conference (United Nations Conference on Environment and Development 1992). In this regard, the recently enacted the Environment Protection Act 1997 has not received full-fledged implementation, so special attention must be paid towards the implementation of laws.

The petitioner’s contentions, the written statements of respondents, the arguments presented to the bench by learned advocates for both sides unquestionably prove the historical, religious and cultural importance of Rani Pokhari and the temples and statues of various god and goddesses surrounding that area. There is a consistency in this regard between both sides. There are also other established facts that Rani Pokhari is encircled by iron bar; many buildings surrounding Rani Pokhari have existed for a long time. On the site of the recently constructed Mid Region Police Office building there previously stood the Chief Zone Officer building, and prior to that there stood a building of the Supreme Court that was occupied for many years. There were no prior allegations about the adverse impact upon the religious, cultural and historical attributes of Rani Pokhari due to the long-standing existence of these buildings. In addition, the petitioner also has not put forth clear concepts about how constructing the Mid Region Police Office building affects these religious, cultural and historical attributes. As for the petitioner’s contention that the existence of the building causes negative environmental consequences: Rani Pokhari is situated at the middle of Kathmandu Valley and there is no reason to assume that the building causes more environmental degradation to Rani Pokhari than vehicles and people on the roads surrounding Rani Pokhari. Construction of the Mid Region Police Office building is complete. In this perspective also, there is no rationale for issuing an order as demanded by petitioner.

So far as the issues concerning the religious, cultural and historical recognition and environmental protection raised in petition: these are the matters of national and international importance and of humanity as well. Nepal has ratified the Convention Concerning the Protection of World Cultural and Natural Heritage, 1972. Accordingly, His Majesty’s Government also initiated some tasks to develop Kathmandu Valley in a planned way as per the Physical Development Project of Katmandu Valley, 1972, and the Katmandu Valley Town Development Plan, 1975. Nevertheless, in recent times, many decisions seem to have been made time and again without making proper evaluation and monitoring of the national policies previously adopted concerning religious, cultural and historical subjects. The reluctance of concerned authorities towards performing their obligation as per legal provisions cannot be viewed as a healthy practice. This judicial principle has also been established in Yogi Narahari Nath vs His Majesty’s Government Ministry of Education, Culture and Social Welfare and Others. Therefore, taking into account the necessity of concrete and effective measures, a directive order issued to His Majesty’s Government Cabinet Secretariat to monitor whether the concerned authorities are complying with commitments expressed in the Convention Concerning the Protection of World Cultural and Natural Heritage, 1972, as well as Nepalese laws, and then to take actions for maintaining uniformity in protecting all areas by formulating national policies regarding objects of religious, cultural and historical importance.

A copy of this order to be sent to the respondent His Majesty’s Government Cabinet Secretariat via Office of the Attorney General.

Justice: Kedar Nath Acharya

I concur with aforesaid opinion. Justice Keshab Prasad Upadhyay

Done on the 27th day of the month Jestha 2054 B.S.
(9th June 1997)