Details of case
Petitioner: – Tehrathum District Sawola VDC Ward no. 4 houses and now lives in Kathmandu district, Kathmandu municipality,Ward no. 29 Advocate Khagendra Subedi
Respondent: – Government of Nepal, Office of the Prime Minister and Council of Ministers, Singha Durbar, Kathmandu
Jurisdiction: – The supreme court of Nepal
Case: – Certiorari/Mandamus
Case no: – 10086
Date of judgement: – 2075/01/16
Citation: – Advocate Khagendra Subedi Vs Government of Nepal, office of PM and Council of ministers (NKP.gov.np)
Bench: – (Joint Bench) Honourble Judge Shri Omprakash Mishra, Honourable Judge Shri Sapna Pradhan Malla
From the applicant: – Learned Senior Advocates Shri Raghavalal Baidya and Shri Prakashmani Sharma and Learned Advocates Khagendra Subedi, Shri Rajuprasad Chapagain, Shri Chudamani Poudel, Shri Sarojnath Pyakurel and Shri Hira Bahadur Karki.
On behalf of the opposition: – Learned Deputy Attorney General Shri Kiran Paudel
Precedent: -XXX
Law
- Interim Constitution of Nepal, 2063
Principles
- One of the main responsibilities of the current generation is to ensure that all types of natural and cultural heritage, forests, climate, environment and biodiversity that it has experienced or acquired are preserved for future generations, in accordance with the principle of intergenerational equity. It is the responsibility of the current generation to hand over the Fewa Lake, which has naturally acquired economic, social, cultural and ecological importance, to future generations.
- In order to meet the current needs and provide them for future generations, it is necessary to prevent uncontrolled exploitation of such natural resources and also to control their natural degradation. The work done to protect such resources should also be done in a way that preserves such resources in their natural state.
- Development is not a bad thing in itself, but development that endangers the very existence of the immense resources provided by nature by uncontrolled and indiscriminate encroachment or exploitation is not sustainable development but is temporary. Therefore, maintaining a balance between natural resources and development and exploiting nature as little as possible and passing on natural gifts to future generations is sustainable development.
- The right to live with dignity encompasses all the elements necessary for a quality life, such as environmental balance, cleanliness, and a biodiverse environment.
Facts of the case
Fewa lake covers an area in northern Kaski district of Nepal and south to Pokhara Metropolitan City Ward No. 6, Sarangkot Village Development Committee Ward No. 7, and Raniban Pumdibhumdi Village Development Committee Ward No. 1. This area is endowed with rich resources, natural, cultural, hydro power, religious, water, and biodiversity. In 1973, the Fewa Power House was built by the government of Nepal, which began generating 1500 kW of power using water from the Fewa Lake. This power generation has been useful for tourist hotels, government offices, and local people in Pokhara. The government collects revenue from the annual electricity production. However, the area of Fewa lake is being slowly reduced overtime from various natural and human factors.
Opponents are constructing a 13-foot-wide road for approximately 2 km from the Barahi Temple to the Khahare Khola along the northern shore of the lake. Hotels and lodges are being constructed on the land behind the road. All this construction contributes to the unregulated runoff, which is contaminating the lake around its settlements, which have in turn polluted the water and irrigation system, disturbing environmental balance. Ecological disturbance has affected aquatic fauna and seasonal birds in the lake, negatively impacting tourism in the region. From the first Indian Survey and the survey done in 2058 rid, Fewa Lake has shrunk due to a 60% decrease. Several studies conducted by different organizations hint that within the next 100 years, Fewa Lake may be filled quite completely. While a separate report prepared to observe the sedimentation rate over 10 years predicts that sedimentation of 180,000 cubic meters per year can fill up Fewa Lake by 16% in the next 24.33 years.
In the 2058 BS survey by the District Development Committee of Kaski and other concerned organizations, Fewa Lake covered 4.25 square kilometers with a perimeter of 18.70 km. In 2038 BS, Fewa Lake covered 5.80 square km, while in 2018 BS, it was 10.35 square km. The area of the lake has been steadily decreasing since 1957-58, losing into the charm of its original character.
Protecting the right to a healthy environment has also been pursued in Article 16 of the Interim Constitution of Nepal, 2063. While Article 17(3) guarantees each community the right to preserve and promote its language, script, culture, civilization, and heritage, Article 23 guarantees the right to religious freedom. The preservation of religious and cultural traditions is similarly guaranteed by the Guthi Institution Act, 2033, Article 17(3). These ancient monuments are classified by the Ancient Monument Preservation Act, 2013, Section 3(c). Again, Section 7 of the Environment Protection Act, 2053, prohibits polluting and degrading the health of the populace, while Section 9 of the same Act binds all bodies to protect national heritage. In Its Section 10, the Environment Protection Act has placed an obligation on the government to declare areas with important natural resources, beauty, and cultural heritage as protected areas.
The Watershed Conservation Act, 2039, Sections 4(k), 4(l), 4(m), and 4(n) provide a number of mechanisms for the protection of water resources, including prohibition of pollution and maintenance of water quality. Just as the Local Self-Governance Act, 2055, Section 28(1)(j), creates the duty for local bodies in the preservation of forests and the environment, the act also vests local governments with powers over the preservation of lakes, rivers, wells, ponds, and water bodies within municipal areas. Local administration law, 2028, Section 5(5) tasks the district chief with the management and conservation of government properties, including Fewa Lake, whereas the Water Resources Act, 2049, Section 19 prohibits the pollution of any water resource. P. 466(/) 24Land Registration Act, 2034 prohibits the settlement or registration of government or public land into private ownership. Tourism Act, 2035 aims to promote tourism for public purposes. These incidents also create a direct violation of the Constitution and the other numerous legislations that intend to protect the environmental and cultural heritage of the said area as a result of the failure of the concerned authorities in adequately protecting and preserving Fewa Lake. The continuous hassle posed by the opponents is attacking the religious and cultural relevance of the Barahi Temple and other temples around the lakeside. In direct violation of Articles 17 and 23 of the Interim Constitution of Nepal, 2063 are these cases. Therefore, the petitioner prays for the following orders in accordance with Article 107(2) of the Interim Constitution of Nepal, 2063: Declare as a protected watershed area under the Watershed Conservation Act, 2039, Section 3 and 3(k) and as an environmental protection area under the Environment Protection Act, 2053, Section 10, for proper and sustainable conservation: the area surrounding Fewa Lake (north to Sarangkot Hill, south to Pumdibhumdi VDC, east to Pokhara Metropolitan City Ward No. 17 and 6, and west to Sarangkot VDC Ward No. 7). Map out the original boundary, area, and coordinates of Fewa Lake as per the initial Indian Survey (Draft 1957/58) and identify the filled-in areas. Where any land has been registered under private ownership, cancel the ownership certificates for such land in accordance with the Land Registration Act, 2034, Section 24, re-register such land in the name of the lake. Immediately halt the construction of the road, which is said to be 2 km long and 13 ft wide, from Barahi Temple to Khahare Khola with any soil or debris piled for the purpose of road construction removed. Building hotels, homes, and any other forms of development that can cause damage to the lake ecosystem, water, or environment are prohibited. Prohibiting the discharge of any waste into the lake, no development shall be allowed that contravenes the environmental integrity of the lake. A flower garden along the banks of the lake shall be created where local communities work together with the authorities for maintenance and conservation to ensure the biodiversity, water quality, and tourism value of Fewa Lake.
Petitioner’s contentions
All the documents attached to the file of the writ petition, which was submitted to the bench on the daily filing list as per the rules, were studied. On behalf of the petitioner, learned senior advocates Shri Raghavalal Baidya and Shri Prakashmani Sharma and learned advocates Khagendra Subedi, Shri Rajuprasad Chapagain, Shri Chudamani Poudel, Shri Sarojnath Pyakurel and Shri Hira Bahadur Karki submitted that since the Ministry of Forests accepted the petitioner’s demand in its written reply that there was no hesitation in protecting Fewa Lake by designating a watershed conservation area as per (3) of the Soil and Watershed Conservation Act, 2039 BS, Fewa Lake Directive prepared by the National Planning Commission, the survey conducted under the initiative of the JVS in 2051, 2058 BS, the central survey of 2064 BS, the Lamichhane report of 2069 BS, and the report of 2069 BS, Fewa Lake should be protected, as per the petitioner’s demand, Sarangkot (P.U.M.N.P.A. 10) in the east and south, and Bhumdi in the south. (P.U.M.N.Pa.10), East Pokhara U.M.N.Pa. Ward No. 17, 6, West Sarangkot (P.U.M.N.Pa.10) should be declared as Fewa Lake Watershed Conservation Area with demarcation of the boundary. The map of Fewa Lake shown in India Survey 1957-1958/1959, when measured with the help of a technician, shows 1035375.718 square meters (one crore three lakh fifty three thousand seven hundred fifteen square meters) or 20351.685 ropanis. According to the survey conducted in 2058 BS with the active participation of G.V.S. Kaski and various related bodies, the area of Fewa Lake is 4.25 square km. and the perimeter is 18.70 km. It is mentioned in the same report that the area of Fewa Lake in 2038 BS was 5.80 square km. and in 2018 BS it is mentioned that it was 10.35 square km. The report prepared and submitted by the Ministry of Land Reforms in accordance with the order of the Honorable Supreme Court dated 2071.12.22, stating that the area of Fewa Lake was 51,17,530 square meters in 2072 is not valid. In the report submitted to the Government of Nepal on 2069.2.4 by the Fewa Lake Encroachment Land Investigation Committee, formed by the decision of the Government of Nepal dated 2068.11.4, regarding Fewa Lake, the Grand Survey conducted by the Central Survey Team in 2064 BS has shown that the water-covered area is 9955-6-2-3 ropani, the wetland area is 562-12-0-0 ropani, the cultivated area is 2101-0-1 ropani, and the fallow area is 165-0-0 ropani, totaling 12874-2-3-0 ropani. In the same report, it has been recommended to cancel the registration of 1692-6-0-1, which was irregularly registered. The report shows the area of the lake as 16216-2-2-2. Therefore, by immediately implementing the report of the Fewa Lake Encroachment Investigation Committee of 2069 BS, the area of the lake as shown in the 2064 BS Central Survey Report and the 2058 BS Kaski District Administration Survey Map, the area of 10.35 sq km as of 2018 BS should be established as per the provisions of the Fewa Lake Encroachment Investigation Report of 2069 BS, and the Land Revenue Act,In accordance with Section 24(1)(2) of 2034, I request that the landowner’s records be recorded and maintained in the name of Fewa Lake. Since the road being constructed on the banks of Fewa Lake in the name of Foot Track is seen to be contrary to the Pokhara Valley City Plan, and since the justification for the road under construction has not been confirmed without assessing the risk of direct impact on the conservation of Fewa Lake, and since it is seen that it was constructed without an environmental study, I request that I request that the construction of the road be stopped, not to be done, and the wall constructed for the road be removed. Similarly, since it is directly seen that sewage is being poured into Fewa Lake, I request that I request that an order be issued in the name of the opponents to not pour sewage and to implement a plan to involve the locals in the construction of flower gardens around the lake, and I submitted a discussion note on the same matter.
Respondent’s contentions
The learned Deputy Attorney General, Shri Kiran Poudel, appearing on behalf of the opposition, argued that since the footpath built on the banks of Fewa Lake has protected Fewa Lake and has also enhanced its beauty and promoted tourism, there is no need to quash the decision to build the footpath. The Government of Nepal and its subordinate bodies have expressed their international commitment to protect the environment and archaeological heritage of lakes and wetlands and have been working accordingly. In view of the fact that lakes are defined as government property in the law and that such property cannot be transferred to anyone under any circumstances, if someone has encroached on the land of the lake and even registered it in his name, it is null and void and there can be no dispute that the government will take back such land. The Government of Nepal and its subordinate bodies are continuously making efforts to protect and enhance Fewa Lake, the environment around it and the biodiversity, so an appropriate order from this court in this regard is welcome.
Questions of law
- What is the natural, biological, touristic and ecological importance of Fewa Lake?
- Has there been any encroachment on the area and natural form of Fewa Lake?
- Should the order as claimed by the petitioner be issued or not?
Judgement of Court
- Demarcation of Phewa Lake Boundaries
The court ordered the government to finalize and enforce the lake’s boundaries within six months based on historical surveys and reports. This includes defining the lake’s area, wetlands, and buffer zones to prevent further encroachment. - Removal of Illegal Encroachments
All unauthorized constructions within 65 meters of the lake’s banks must be removed within six months. This includes hotels, houses, and other structures that violate the lake’s protected zone. - Prohibition of Chemical Use in Agriculture
The use of chemical fertilizers and pesticides in the lake’s vicinity was banned to prevent water pollution and protect aquatic life. - Declaration as a Protected Watershed Area
The court directed the government to declare Phewa Lake a protected watershed area under the Soil and Watershed Conservation Act, 1982. This ensures stricter regulations for its conservation. - Control of Siltation and Pollution
The government was ordered to construct check dams to prevent silt and debris from entering the lake. Additionally, urban drainage and waste must be treated before being discharged into the lake. - Management of Invasive Species
The court mandated measures to control water hyacinth and other invasive species that threaten the lake’s ecosystem. - Long-term Conservation Plan
The government was instructed to prepare and implement a comprehensive conservation plan for Phewa Lake, including regular monitoring and public awareness campaigns. - Intergenerational Equity
The court emphasized the principle of intergenerational equity, stating that the current generation has a duty to protect natural resources for future generations. - Coordination Among Government Bodies
The verdict called for coordination among federal, provincial, and local governments to ensure the lake’s sustainable management.
Legal Basis for the Verdict
The court based its decision on several national and international legal frameworks, including:
- Nepal’s Constitution (2015): Articles 16, 30, and 51 guarantee the right to a clean environment and mandate the state to protect natural resources.
- Ramsar Convention (1971): Nepal is a signatory to this international treaty, which requires the conservation of wetlands.
- Convention on Biological Diversity (1992): This treaty obligates Nepal to protect biodiversity and ecosystems.
- Soil and Watershed Conservation Act, 1982: Provides the legal basis for declaring Phewa Lake a protected watershed area.
- Environment Protection Act, 2053: Prohibits environmental pollution, mandates protection of national heritage, and empowers the government to declare protected zones for areas of ecological significance.
- Watershed Conservation Act, 2039: Provides legal frameworks for the conservation and management of watershed areas to maintain water quality and ecosystem health.
- Land Registration Act, 2034: Prevents the transfer of public or government land into private ownership, ensuring that Fewa Lake’s surrounding lands remain under governmental protection.
- Tourism Act, 2035: Promotes sustainable and responsible tourism practices that prioritize the preservation of natural environments and cultural sites.
Significance of the Verdict
- Environmental Protection:
The verdict reinforces the importance of protecting natural resources like Phewa Lake, which are critical for biodiversity, tourism, and local livelihoods. - Legal Precedent:
This case sets a legal precedent for the protection of other lakes and wetlands in Nepal, emphasizing the state’s responsibility to conserve natural heritage. - Public Awareness:
The court’s directives highlight the need for public awareness and community involvement in environmental conservation. - Sustainable Development:
The verdict aligns with the principles of sustainable development, ensuring that economic activities do not compromise environmental integrity.
Conclusion
The Supreme Court judgment on the preservation of Fewa Lake emphasizes the legal and moral responsibility of the Government of Nepal and its citizens towards the preservation of vital natural resources for generations to come. By mandating the demarcation of lake boundaries, clearing illegal encroachment, prohibition of destructive cultivation, and protection of Fewa Lake as a protected watershed zone, the court has taken a bold step in the direction of environmental protection and sustainable development.
This ruling not only addresses the imperative environmental problems facing Fewa Lake but is also a pioneering judicial precedent for the protection of other lakes and wetlands in Nepal. It is a reminder of the doctrine of inter-generational justice, emphasizing the duty of the present generation to preserve natural heritage for future generations. Furthermore, it emphasizes the need for coordinated efforts by government institutions and community involvement in conservation activities towards a collective approach to conservation.
The instructions of the court are also meant to enhance public awareness of conservation of the environment, thus promoting public engagement in the conservation of natural resources. Finally, this decision is an epitome of internationalization of law, ecology, and social responsibility since it establishes a necessity for responsible and active management of Fewa Lake in tune with national and international legal requirements for environmental conservation. As the court’s mandate takes effect, it will be important to monitor progress and ensure that Fewa Lake’s ecological, cultural, and economic benefits are not just retained but maximized for future generations.
Recommendation
Based on the judgment regarding the conservation of Fewa Lake and its broader implications, here are some recommendations:-
Improved Legal Framework for Protection
The Government of Nepal needs to enact strict regulations particularly for Fewa Lake conservation and other natural resources of this kind. This includes a stronger system for encroachment identification and public and private land use regulation in areas around sensitive ecological locations.
Establishing a Management Authority
Establish a dedicated Lake Management Authority that would consist of local stakeholders, environmental experts, and representatives of community-based organizations. This authority would be responsible for ensuring the enforcement of conservation measures, development plans, and community participation programs.
Public Awareness and Education Campaigns
Launch educational programs to inform local communities, tourists, and businesses about the environmental importance of Fewa Lake, the adverse effects of pollution, and the benefits of adopting sustainable practices. It can be through workshops, schools, and community meetings.
Community Participation in Conservation Programs
Involve local communities to actively participate in conserving the site, e.g., maintaining flower gardens, participating in clean-up activities, and monitoring the health of the lake. Community-related activities could enhance the sense of ownership and responsibility towards the environment.
Sustainable Tourism Practices
– Promote sustainable tourism for the Pokhara region through the guidance of companies in ecologically friendly procedures. This would include regulations related to waste, water conservation, and development work being aligned in favor of conservational goals. Incentives for environmentally-friendly hotels and lodging facilities must be provided as well.
Regular Monitoring and Reporting
Set up a regular monitoring system for Fewa Lake’s ecological health, sedimentation rates, and biodiversity. This may be through collaborative effort with universities and NGOs to periodically review conditions and report and publish on progress and recommend improvement strategies.
Research and Data Collection
Research funding programs to investigate the role climate change, urbanization, and agriculture play in disrupting the ecosystem of Fewa Lake. Data collected can inform policy decisions and conservation initiatives.
Restoration of Natural Habitats
Implement restoration schemes to restore damaged areas surrounding Fewa Lake, such as re-planting native cover, habitat rejuvenation for aquatic biodiversity, and natural purification to improve water quality.
Improve Coordination Between Government Agencies
Support enhanced coordination between the federal, provincial, and local governments in order to create a unified effort towards the conservation and management of Fewa Lake. Regular inter-agency meetings can harmonize efforts and share best practices.
