KATHAMDNU, Nov 15: The Kathmandu District Court has ruled that the Marwadi Sewa Samiti (MSS) has no claim over the Pashupati Gaushala Dharmashala, which is owned by the Pashupati Area Development Trust (PADT).
A single bench of Judge Kamal Prasad Pokharel has concluded that there is no lease agreement for the Pashupatinath Dharmashala and explained that the MSS cannot claim indefinite use of the Gaushala Dharmashala.
The verdict highlights that land acquired through an agreement for religious purposes has been used for commercial purposes, resulting in the PADT being deprived of the profits earned from such commercial use. The ruling also mentions that the PADT may claim compensation from the MSS under such circumstances.
The verdict paves the way for the PADT to evict the MSS from the Gaushala Dharmashala. Additionally, the verdict also gives authority to the Kathmandu Metropolitan City to execute its plan to demolish the structures built without the approval of the building plans inside the Dharmashala.
After questions were raised regarding the use of Pashupati land without any agreement, a memorandum of understanding was signed between Amalkot Kachahari, now known as PADT, and the MSS on May 23. 2003. The agreement stated that the land would not be privately owned, no shops selling meat or alcohol would be allowed in the structures built on the land, and when the structures were closed, the property would belong to the PADT. It also stated that the bull sanctuary named after Pashupatinath should be preserved.
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The MSS, which had been paying only Rs 51,000 annually to the PADT, was utilizing the structures built in the Gaushala for commercial purposes and making financial gains. Later, the MSS also added more structures there.
After widespread questions were raised, the PADT decided on August 2, 2023, to review the agreement. The PADT subsequently issued a notice canceling the old agreement and requesting the MSS to come forward and sign a new agreement with appropriate and just terms within 15 days. In response, the MSS knocked on the doors of the Kathmandu District Court as a part of legal recourse to resolve the issue.
The MSS made two claims: first, that since the agreement did not specify a date, they should be allowed to use the land of the Dharma Shala indefinitely, and second, that they held a tenant on the land in the name of the Pashupati Amalkot Kachahari, which was associated with the Pashupati Gaushala Dharmashala.
The committee claimed that the Amalkot Kachahari had issued a tenant registration certificate to them on May 7, 1989, and therefore, they had a tenant right over the land.
However, the district court explained that the MSS could not provide any evidence, and therefore, the mere mention of "Pashupati Dharmashala" in the tenant deed would not establish a tenant claim on the land. Although the document referred to "Pashupati Gaushala Dharmashala," the court mentioned that no such institution exists, and thus, the tenant claim could not be substantiated.
Around the year 2067 BS, the Commission for the Investigation of Abuse of Authority (CIAA) had made a decision that the benefits that the PADT gets from Pashupati Gaushala Dharmashala need to be increased. A dispute against that decision reached the Supreme Court, after going through the Special Court.
On July 11, 2011, the Supreme Court interpreted that the MSS did not have any claim over the land. The district court’s full judgment states that the MSS accepted this, confirming that the MSS acknowledged the full ownership of the Pashupati Amalokot Kachahari.
The district court has also explained that since the name of the Dharmashala was not registered anywhere, and the lawsuit was filed under the name of General Secretary Mahabir Prasad Agarwal, he did not even have the right to file the case.
The district court, highlighting the public interest in the utilization and preservation of the land within the Pashupati area, which is listed as a World Heritage Site, stated in its full judgment, "Officials must manage the preservation of important land and structures in a fully accountable and transparent manner."
The district court also raised questions about the annual rent of Rs 51,000. The court stated in its judgment that although the building on the land was rented out, the PADT was unaware of the income from it. The court stated, "There is no clear basis to show that the use of the property was solely for non-profit and purely public service or religious activities."
Initially, there was no approval for the plan of the Pashupati Gaushala structure. Later, a provision for obtaining approval was introduced. However, the MSS added structures without obtaining the necessary approval. The Supreme Court interpreted this as a breach of the contract terms with the PADT, highlighting that the Gaushala was providing dialysis services with a cost of Rs 120 million for 30 beds.
The full text of the judgment states, "If the property of the Dharmshala has been used for economic gains without sharing its proper share, it appears that the PADT can claim compensation and file a lawsuit."
The District Court of Kathmandu upheld the decision made by the PADT in September 2023, stating that the MSS had failed to comply with the terms of the agreement. The court stated, "The claim to annul the decision made by the PADT is not substantiated."
