BRITA GUTHI LAND IN NEPAL (An analysis of Supreme Court’s Decision on the Case law)

1.     Introduction

1.1.  Background

Ownership of land (Pre-1964) in Nepal is traditionally vested in the State as offering lands to private individuals (birta), Government current employees (jagir), Royal vassals and former rulers (rajya), Religious and charitable institutions (guthi) and Communal land ownership (kipat). A series of Land Acts were subsequently enacted in the 1950s until 1964 retaining only the raikar and birta as the main forms of tenure with objective of securing the right of land holders and tillers so that land productivity could be enhanced. [1]Some features of Land Reform Act 1964 include Abolition of the Zamindari System, Land Ceilings on land ownership of 17 hectares in the Terai, 4.11 hectares in the hills, and 2.67 hectares in Kathmandu Valley, of tenancy holdings of 2.67 hectares in the Terai, 1.02 hectares and 1.51 hectares in Kathmandu Valley and the hills respectively. 

Land assigned for charitable, religious or philanthropic institutions came under Guthi tenure. There are different forms of Guthi lands. Majority of cases come under state administration called “Rajguthi”. Sometimes Guthi lands are privately operated but grants are registered in the official records called Darta Guthi, and those not registered and generally used for religious purpose are Duniya Guthi. Guthi land may also be owned by monasteries. There are different categories of Guthi land that still exist. Security of tenancy rights[2] i.e.fixing of rent at no more than 50 per cent of production, Abolition of sub-tenancies,  compulsory saving program to provide an alternative source of credit, and the interception of loan repayments to private lenders.

1.2.  Objectives of Study

The objectives of the study are as follows:

i.           To know about the Raj Guthi system and its conversion to Raiker Land System  Nepal.

ii.         To analyze the case law laid by the Supreme Court in its decision in the particular issue.

1.3.  Limitations

The study is limited to the analysis of case law i.e. N.K.P. 2050, Decision No. 4809, Page. 610. Except some relevant information on the particular topic, no other case laws or theoretical information has been included in the study.

1.4.  Research Methodology

During the research, the primary sources of authority are mostly used which involve the review of N.K.P. 2050, Decision No. 4809, Page. 610 . The secondary sources of authority used in the study involve review of books, articles, journals of related subjects found from library, newspapers and the Internet.

1.5.  Organization of Study

Chapter I consists of the general background of the study along with the objectives of the study, limitations, methodology and organization of study. Chapter II deals with the fact of the case, the arguments posed by the parties of the case and the decision of Supreme Court. Chapter III consists of the analysis, conclusion and bibliography.

2.     The Case

2.1.  Address of the Case

a.     Writ No : 1509 of the Year 2048

b.     Decision Date: 2050/08/01 B.S. by Division Bench of Honb’le Laxman Prasad Aryal and Honb’le Hari Prasad Sharma

c.     Nepal Kanoon Patrika : N.K.P. 2050, Decision No. 4809, Page. 610

d.     Nature of Case: Certiorari along with other necessary order

e.     Parties of the Case: Te Ratna Sindhurakar etal v. Land Revenue Office, Kathmandu etal

2.2.  Fact of  the Case

The tenant (and the respondent of this case) Sanubhai Maharjan on 2047/06/01 filed an application in the Land Revenue Office, Kathmandu stating that the owners (the applicants of this case) of the land measuring 4 - 4 – 0 of the Plot No. 127 situated at Kathmandu Metropolitan City Ward No. 24 (B) have till date, not registered the land under Raiker. Hence Sanubhai Maharjan requested the Land Revenue Office to register the land into Raiker as per Birta Abolition Act. Upon such an application filed in the office, the landowners after being notified about the limitation to protest, contended for the annulment of the application made by the tenant and hence, register the land in their own names.

In the proceeding of the case, when the owners of the land inquired about the record of their land in the ledger, no such record was found. But when the Account Section was inquired,  the land was seen to have been registered in the name of some other persons (namely: Chikaji Shakya Bhichhuk, Kulranta Shakya Bhichhuk and Jogratna Shakya ) in the form of Doyam. Also, when the Measurement Section was inquired, the land was seen to have been paid taxes in the Remarks of the Field Book that the concerned land belonged to the same group of persons. It was found that Jogratna Shakya had testified the land tax of 2015 B.S. for Plot No. 100 (the concerned land) a sum total of Rs. 625 in the year 2020/12/27 from Kathmandu Maal (II).

The tenant upon the notification in 2047/12/13 filed an application in the Land Revenue Office to register the concerned land in the Birta Rajguthi. Such an application was challenged in two grounds:

1. The evidence once used to take the land ownership certificate cannot be raised again in the same jurisdiction, and
2. The Chief of the Land Revenue Office does not have the authority to decide on the issue regarding the ownership of the land.

The applicant further stated that although they requested the Land Revenue Officer and the Chief of the Land Revenue Office (the respondents of the case). However, they ignored such a request from the applicants and kept lingering in the same case.

The applicants then submitted an application before the Minister of Land Reform stating that the process of obtaining the land ownership certificate of the land which was already being registered in the Land Measurement Section had been obstructed. The Minister then ordered to provide applicants with the land owner certificate of remaining land. However, the authority provided the tenant with a temporary registration of land and provided the applicants with the scope of approaching district court according to 2048/02/24  according to Section 7(4)(1) of Birta Abolition Act. It states ‘If the person holding Guthi Birta Land fails to provide details to register it as Raiker at Rajguthi or even if  the details are provided, it could only be registered after the tenant as well provides it with the details, the Guthi Birta can be registered in Rajguthi.’ Furthermore, Section 7(2) of the Land Revenue Act 2034 provides ‘Any land which has already been measured but missed the registration requires the jurisdiction of Land Revenue Office to recommend the committee to register the land. Hence the Land Revenue Office decided that the land in dispute however was measured but was not registered. Hence, according to Section 6 (7) of Land Measurement and Survey Act 2019, the Guthi Birta land was seen most likely to be entitled to the tenant (Sanu Bhai Maharjan). So the Office provided tenancy right to  the tenant with the temporary registration of the land in the Raj Guthi.

The land which was not surveyed and registered by the Napi according to Land Measurement and Survey Act 2019 could be registered under Section 7(2) of Land Revenue Act 2034. However, the Land Revenue Office is not entitled to register those lands which have been already surveyed and registered by the Napi. The lands i.e. Bhansar 39 (3 Ropanis) and Pasikhwat (1.5 Ropani) of the Plot No. 127 of Kathmandu Metropolitan City Ward No. 24(B) according to the receipt of 2023/04/30 from Land Survey Office , the lands were seen already registered. It had been further held by the Land Revenue Office that the land owner certificate could not be made only because the Land Survey Officer did not send the record of one of the land. Such type of mistake from the office cannot be held likely to curtail the right of the landowners. The land was seen to had been registered according to the Survey Field Book along with other lands. Hence it is the breach of jurisdiction by the Land Revenue Office to decide on the land according to Section 7(2) of the Land Revenue Act and Section 6 (7) of Land Survey and Measurement Act which had already been registered by the competent authority. It is therefore, the breach of Article 11(1) of the Constitution of Kingdom of Nepal 1990, Section 5, 6 and 7 of Land Revenue Act, Section 7(2) of Land Survey and Measurement Act and Section 7 of Birta Abolition Act and its regulation. Hence the applicants (in this case) appealed before the Supreme Court for the annulment of such a unlawful decision of the Supreme Court by issuing certiorari.

2.3.  Arguments Advanced

The court ordered the respondents (of this case) for a written submission within the limitation on 2048/02/29.

The Land Revenue Office sent a written submission to the Supreme Court. It held that on 2047/06/01Chikaji and Jog Ratna filed a case in the court stating that the Birta Land of Plot No. 127 of Kathmandu Metropolitan City Ward No. 14 (B) to be registered according to Section 7(4) of Birta Abolition Act and Ruele 2(1),(2),(3) of Birta Abolition Rule had favored the applicants (Chikaji and Jog Ratna). Similarly, the application registered by Sanubhai Maharjan (the tenant) on 2048/02/24 to register the land as Raiker. On the evaluation of the evidences, it was seen that the Plot No. 127 matches with Kilagal Pota No. 100, however was not yet converted into Raiker. Hence Section 7(4) of Birta Abolition Act 2016 requires the Birtawar submit the details of the Guthi Birta land to be registered into Raiker. If not done so, Section 7(1) a, b and c of the same act  states such land to be registered in Rajguthi. According to Section 7(2) of Land Revenue Act, the land which had been surveyed but not registered authorizes Land Revenue Office to register the land upon examination and recommendation by the Committee. So, in the present issue, strong evidence had been Sanubhai Maharjan according to Section 7(4) of Birta Abolition Act. So he had been provided with the temporary registration of the land in Raj Guthi on 2048/2/24 and the defendants had been provided with the limitation to appeal in the higher jurisdiction.

The Land Revenue Office further submitted that regarding the claim of Birtawal Jog Ratna Sindrakar to have filed an application for the conversion of Guthi Birta Land into Raiker, no such receipt of payment of land tax as claimed by the Birtawal (Jog Ratna Sindhurakar) had been found in the record of the Land Revenue Office. Hence, the land which was recorded to have been surveyed and measured but not registered can be registered according to Section 7(2) of Land Revenue Act 2034 and the Rule 4(b) of Land Revenue Rule 2036. The Land Revenue Office decided in the following issue in compliance to the directives from the Land Revenue Department which read as ‘In case there is more than one claim on a land, temporary registration of land should be provided to the party who submits strong evidence according to Section 6 and Sub-Section 7 of Land Survey and Measurement Act. Additionally, the aggrieved party should be provided with the limitation to appeal in higher jurisdiction.’ Hence, the Land Reform Office submitted that the writ petition should be quashed as it was yet to decide about the registration of Guthi Birta Land in Raj Guthi.

Similarly, Sanubhai Maharjan (the tenant) submitted the present writ petition should be quashed. He submitted that the concerned land of Plot No. 127 of Kathmandu Metropolitan City Ward No. 24(b) which the applicants (Chikaji Shakya and Jogratna Sindurakar) claimed as their land was not registered had been cultivating by himself. He further contended that the applicants applied for acquiring land ownership certificate only when he initiated for registering the land. Futhermore, he also stated that the applicants who had been claiming over the land were misrepresenting that they had the receipt of the land tax they paid in the Kathmandu Maal II. It was because his representative (Gopal Das Baishnav) to the case when searched for the receipt in Land Revenue Office, he could not find any record of it. The Land Reform Office has also considered such a misrepresentation by the applicants as an offence of forgery of documents (Section 12 of Chapter of Forgery under Muluki Ain )on 2048/04/27. The land is not registered in the name of the applicants. It has been decided by the Land Revenue Office, after the examination of evidence that the land would be temporarily registered in his name in the Raj Guthi according to Section 7(4) of Birta Abolition Act 2016. The applicants were also provided with the scope of challenging such decision in the higher court. Hence the respondent claimed that the concerned land in dispute is yet to be registered.

Advocate Dhruba Nath Panta, on the behalf of the applicants argued that the concerned land on dispute did not fall under the category of missed land defined under Section 7(2) of Land Revenue Office. In order to attract this section, it must be either missed the registration or yet not registered.

Government Attorney Narendra Kumar Shrestha, on the behalf of the responded Land Revenue Office argued that the Land Revenue Office had decided on the issue on the basis of Section 7(1),(2) and (3) of Birta Abolition Act. Hence the writ should not be issued.

Advocate Ram Chandra Prasad Barnabal, on behalf of another respondent  Sanubhai Maharjan argued that the decision of Land Revenue Office had not curtailed the rights of the applicants as the land had not been completely registered.

2.4.  Decision of the Supreme Court

The court to decide whether the order as per petitioner’s claim should be issued or not decided on the following issues.

a.     The court declared that as it had been already provided by Section 6(7) of Land Survey and Measurement Act 2019 that the land should be temporarily registered in the name of those who produce best evidences. Hence it was not necessary to present the issue regarding registration of land in front of the committee as it was not the type the registration of absolutely missed land as per Section 7(2) of Land Revenue Act. Hence, the act of forwarding the issue before the committee for recommendation would be held void ab initio according to No. 35 of Court Management under Muluki Ain.

b.     The court held that it cannot be said that the act of temporarily registering land which was yet to be decided by the authority had curtailed the right of the applicants. Hence the writ petition would be quashed.

3.     Analysis and Conclusion

Generally, guthi land cannot be bought or sold. However, Rajguthi land can be bought or sold after it is converted into Raitan Numberi - land on which tax is paid by the tenant to the Guthi Sansthan.

The Supreme Court while deciding on the particular petition has solely taken the legal basis provided by Land Revenue Act, Birta Abolition Act and Land Survey and Measurement Act. The Court held it appropriate towards the decision of the Land Revenue Office in providing the temporary land ownership certificate to the party who produced more reliable evidence. The case had been adjudicated in the year 1993 in which the decision of the executive body of the Government was held. On 24^th January 2008, the Supreme Court (SC) put an end to transactions in Rajguthi land owned by the government trust known as Guthi Sansthan.
In a ruling to the government, the Supreme Court said such a move was necessary to preserve Rajguthi lands, which are decreasing day by day.

The provisions in the Guthi Sansthan Act 1976 allowing the conversion of Rajguthi land into Raitan Numberi have been ruled null and void by the bench comprising Justices Ram Prasad Shrestha, Bal Ram KC and Damodar Prasad Sharma as these provisions violated people's cultural and religious rights guaranteed by the Interim Constitution.
The litigation mentioned that the existing legal provisions had allowed rampant misuse of Rajguthi land and caused massive decrease in such lands.
The court also ordered the government to stop the practice of exchanging private Guthi land with other lands. At present, the practice of exchanging expensive Guthi land with less valuable land is prevalent. Consequently, expensive land owned by private Guthis is decreasing, according to the litigants.[3]

Bibliography

1. Tribhuvan University Journal, Vol. XIX, No.2, Dec. 1996

2.     Krishna Neupane, “Dilemma of Land Reforms : An Incursion to the Private Property Rights”, article accessed from https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CE4QFjAB&url=http%3A%2F%2Fwww.efnasia.org%2Fattachments%2FPaper%25208%2520Dilemma%2520of%2520Land%2520Reform%2520%2520Mr.%2520Krishna%2520Neupane.ppt&ei=4h1ZUdPkEoXLrQeU_YHABQ&usg=AFQjCNEyfdQfetK1aIK6eS0Wx73KyHBsTQ&sig2=lS2GTGKO7eoFU4KUOdK_vQ&bvm=bv.44442042,d.bmk <Accessed on April 1, 2013>

3.     [1] Babu Ram Acharya, “Land Tenure and Land Registration in Nepal”, Article Published on http://www.fig.net/pub/fig2008/papers/ts07b/ts07b_02_acharya_2747.pdf <Accessed on April 1, 2013>

4.     [1] http://nepallaw.blogspot.com/2008/01/sc-bans-transactions-in-rajguthi-land.html <Accessed on April 1, 2013>

5.     N.K.P. 2050, Decision No. 4809, Page. 610

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[1] Krishna Neupane, “Dilemma of Land Reforms : An Incursion to the Private Property Rights”, article accessed from https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CE4QFjAB&url=http%3A%2F%2Fwww.efnasia.org%2Fattachments%2FPaper%25208%2520Dilemma%2520of%2520Land%2520Reform%2520%2520Mr.%2520Krishna%2520Neupane.ppt&ei=4h1ZUdPkEoXLrQeU_YHABQ&usg=AFQjCNEyfdQfetK1aIK6eS0Wx73KyHBsTQ&sig2=lS2GTGKO7eoFU4KUOdK_vQ&bvm=bv.44442042,d.bmk <Accessed on April 1, 2013>

[2] Babu Ram Acharya, “Land Tenure and Land Registration in Nepal”, Article Published on http://www.fig.net/pub/fig2008/papers/ts07b/ts07b_02_acharya_2747.pdf <Accessed on April 1, 2013>

[3] http://nepallaw.blogspot.com/2008/01/sc-bans-transactions-in-rajguthi-land.html <Accessed on April 1, 2013>