Environment Law Case: Prakash Mani Sharma et. al vs. PM and Council of Ministers et. al, NKP 2076, Writ No. 074-WO-0748 DN: 10409
Case: Mandamus
Plaintiff: Adv. Prakash Mani Sharma et al
Respondent: Government of Nepal, Office of Prime Minister & Council of Ministers and others.
Decision number: 10409
The case is related to the protection of historical cultural heritage & its restoration.
Facts of the case:
A tripartite agreement had been signed between Department of Archaeology, Kathmandu Metropolitan City & Maharjan business associates, regarding the construction of buildings stating for no basement construction. But a revised plan suggested construction of a basement. The petitioner filed the case stating that Maharjan Business Association had illegally constructed an infrastructure in the Hanuman Dhoka area which was declared as the protected monument zone. On 2074/05/16, the Kathmandu Chief District Office held a decision for the construction to be paused. The place where the basement lies currently used to be Kumari temple which was worshipped by the locals. Since, the temple is no longer there, Article 32 of the Constitution of Nepal has been violated.
The infrastructure which is being constructed by Maharjan Business Association used to be Crystal Hotel in the past. After the 1990 earthquake, it was confirmed that the land in the Durbar area was separated from the former Crystal Hotel due to the personal ambition of the then Prime Minister Juddha Shamsher Rana. Hence, the petitioner has demanded for the destruction of the infrastructure, restoration of the temple & statue of Kumari (which was displaced from former Crystal Hotel).
Legal issues:
- Whether the present dispute falls within the sphere of public concern or not?
- Whether the statue of Kumari located inside the former Crystal Hotel should be installed inside the Maharjan Business Associates building or not?
- Whether the basement built in the said building should be restored or not?
Different Courts Decision:
Supreme court:
The Supreme Court stated that the displaced Kumari shrine/idol must be restored as it was originally located there. Supreme Court did not order demolition of the basement as there were no concrete & unified laws guiding construction in Buffer Zone & Core Zone. Also, the building was being constructed in Buffer Zone & not Core Zone. Additionally, the construction had reached an advanced level, so destroying it wouldn’t be justice.
The Court did not grant the petitioners’ request to restore the site to its previous condition by removing the basement.
Principles established:
- If the sphere of public interest and concern is brought into conflict with the freedoms and rights of citizens, both should be given equal importance and treated equally, keeping them in line with the standards and equivalents of the Constitution and the law.
- Citizens shall have the right to freely and without hindrance enjoy, utilize, and protect the property in their undisputed ownership, subject to the laws, regulations, and standards.
- The provisions of the By law for Construction, Renovation and Conservation of Private and Standards for conservation and construction in the Hanumandhoka Protected Monument Area, 2064 (हनुमानढोका संरक्षित स्मारक क्षेत्रमा हुने संरक्षण एवं निर्माणसम्बन्धी मापदण्ड, २०६४) should be uniformly and equally implemented and enforced in questions regarding who has the final authority to approve the plans for buildings to be built in the protected monument sub-area, whether the approval of the Department of Archaeology must be obtained before approving the plans for buildings to be built in that area and whether basements can be built in buildings in those areas.
Relevancy of the case:
The case depicts how the bench used rationality rather than just applying legal rules. Since the basement was already constructed & the overall construction had also reached its advance phase, the demolition wasn’t ordered. Instead, the court suggested that the statue of Kumari be placed in the basement and be worshipped. It relates to the right to religion & right to culture.
