Summary of Environment Related Judgments of the Supreme Court of Nepal

1) Bhagwati Pahari versus Prime Minister and the Council of Minister (Fewa Lake
Case)
NKP 2018 (2075), Decision Number (DN) 10086
Bench: Honourable Justice Om Prakash Mishra (Author), Honourable Justice
Sapana Pradhan Malla

Issue: This writ petition sought to enforce the environmental rights guaranteed in Article 16 of the
Interim Constitution of Nepal which as per the claim was violated by the Memorandum of
Understanding between the Ministry of Physical Infrastructure and Transport and Manakamana
Darshan Pvt which planned to construct a Cable Car Service in the periphery of Fewa Lake,
Basundhara park and Raniban area. The petitioners sought an order to prevent all construction work
that affect the Fewa Lake. This Lake, which also has the Talbarahi temple area, is of archeological
significance. Further, Raniban area is the habitat of many protected plants, wild animals, birds and
butterflies thus construction and operation there may lead to them being endangered or even
extinct. The forest of Raniwan area is of environmental, scientific and cultural importance thus it
was claimed that the unlawful act of construction of cable car service in the area it should stopped
and it should be declare as protected forest as per Section 23 of Forest Act.

Ratio: The fundamental rights guaranteed in the constitution are for the protection of the interests
of the citizens. It is the responsibility of the state to create an environment where the citizens can
use it easily.

Since living in a polluted environment is bound to have an adverse effect on one's health, living in a
pollution-free environment is inextricably linked with one's right to live. The environment must be
clean to guarantee this right. To preserve this cleanliness, it is important to protect forests, lakes,
ponds, rivers, clean air and water and maintain environmental balance. As the guardian of the
interests of the citizens and the principle of parens patriae, it seems indisputable that the state has
the responsibility to protect the rights and interests of the people.

Order of Court: The Court in this regard upheld the claim of the petitioner. It ordered to make
policies that harmonize with the construction work that take place within the boundaries of natural
and cultural heritage such as the Fewa Lake. The Court also stated that as the land in which
Basundhara Park is situated was acquired with the objective of creating a green belt in the area.
Demolishing the Park and building other physical structure in that place will be against that very
objective so no construction work should be done in Basundhara Park for the preservation of the
Lake. The order of the Court also prevented acquiring lands of the Raniban area for construction
work and prevented any work that causes deforestation there. Further, the Court also directed to
take necessary initiatives to include Fewa Lake- a major tourist attraction, it in the World Heritage
Site list.

2) Khagendra Subedi versus Government of Nepal (Fewa Lake Case-II)

NKP 2018 (2075), DN 10087
Bench: Honourable Justice Om Prakash Mishra (Author), Honourable Justice
Sapana Pradhan Malla

Issue: This writ was filed claiming that the state bodies which are legally responsible for the
protection of the Fewa lake have not been able to adequately protect and promote the Lake and thus
have not fulfilled their duties and responsibilities as per the provisions of the related Constitutional
provisions, Acts and Rules. The petitioners sought for an order to formulate a long term
preservation plan for the Fewa Lake and to declare it as an environmentally protected zone in order
to protect the lake sustainably (as per Section 10, 10 (1) of the Environmental Protection Act). In
addition, the encroachment of the land around the Fewa Lake has been an issue. Thus, such
encroached area should be demarcated and it should be declared back to being the area of the Lake
itself and not of individuals. Orders should be issued in the name of the respondents to not conduct
or allow any construction work against the lake environment or to build any kind of house or hotel,
which affects the lake's biodiversity, aquatic life and causes pollution in the water of the lake water.

Ratio: It is the responsibility of the present generation to preserve, for the future generation, all
natural and cultural heritage, forests, climate, environment and biodiversity that they have
experienced. This is the principle of intergenerational equity. It is the responsibility of the
present generation to hand over the economically, socially, culturally and environmentally important
Fewa Lake to the future generation.

In order to meet the needs of the present and to pass on the natural resources, which we are
consuming, to future generations, it is necessary to stop uncontrolled exploitation of such natural
resources. The work to be done for the conservation of such resources should be done in a way that
preserves such resources in natural conditions.

The act of infrastructural development is not bad in itself, but the development that has jeopardized
the very existence of nature by uncontrolled and indiscriminate encroachment or exploitation is not
sustainable. Sustainable development will be achieved only by striking a balance between natural
resources and development, minimizing exploitation of nature and passing on natural gifts to future
generations.

Order of Court: The Court upheld the claim of the petitioners. It also ordered to take necessary
precautionary measures to minimize the additional risks to the conservation of the Fewa Lake
including arranging for the removal of houses or hotels constructed within 65 m from the bank of
the Lake. As is necessary to maintain the water level in the Fewa lake and the environmental
condition around it, and to preserve the dignity of the lake, the Court ordered that Fewa lake be
declared as a protected watershed area as per Section 3 (1) of the Land and Watershed Conservation
Act. It was also ordered to take any necessary decisions and implement necessary works for the
conservation of the Lake and to implement recommendations given in the study reports for the
conservation of the lake at different times.

3) Ram Chandra Simkhada versus Government of Nepal (Chitwan National Park-

Hulak Road Case)
NKP 2019, (2076) DN 10204
Bench: Honourable Justice Ananda Mohan Bhattarai (author), Honourable Justice
Tej Bahadur KC

Issue: In this case, the issue was regarding the construction of road that affects the bio diversity and
the natural environment of the Chitwan National Park (first national park of Nepal) which is home
to many species of flora and fauna including rare ones such as the one horned rhino. No any roads,
structures etc. could be constructed within the National Park. However, a roadway (Thori-
Bharatpur road) of about 30 km from Parsa district to Triveni of Nawalparasi passing through
Chitwan National Park was being approved and designed. It was claimed by the petitioners that the
compulsory procedure of EIA and IEE prescribed by the Environment Protection had also not
been complied. It was claimed that the construction of such a roadway would result in the loss of
many of our natural resources, destroy our unique resources, increase poaching and also cause
serious impacts in the climatic conditions.

Ratio: The government is not the owner of public property, it is only the trustee. Natural resources
are for the benefit of all people of Nepal, present and future generation. It cannot be said that it
used citing the benefit of limited people or community without considering the interest of the whole
of the country. The government needs to understand and reflect on the fact that natural resources
are the property of all the people of the nation, present and future generations and even the
descendants.

Further, the effects of climate change, in recent times, has made protection of environment even
more complicated. It is imperative to practice environmentally sustainable development as
envisioned by the Constitution and protect the right to a "clean and healthy environment"
guaranteed by the Constitution through planned conservation efforts. No work related to road
construction should be carried out within the national park unless the environmental impact study
conducted in consultation and agreement with the concerned bodies including UNESCO gives
permission.

Order of the Court: Order was issued not to carry out any work related to road construction within
the Chitwan National Park unless the Environmental Impact Assessment conducted in consultation
and agreement with the concerned bodies including UNESCO and the Chitwan National Park
Office established by law, grants permission.

4) Tara Bahadur Budhathoki v. Office of PM et.al. (Prevention of cutting down of

protected species of trees for commercial use)
NKP 2019 (2075), DN 10154
Bench: Honourable Justice Meera Khadka (author), Honourable Justice Bam Kumar
Shrestha

Issue: 150 Sal trees (Shorea Robusta) planted on the private land of the petitioner were in a state of
being cut down. The shade of Sal trees fell on the agriculture crops which prevented their growth
thus the petitioner had submitted an application to the district forest office of Dang district with the
recommendation of the village municipality. Section 38 of Forest Act, 2049 talks about the right of
the owner to manage and utilize private forest, and rule 62 of the Forest Regulation provides that
the owner of a private forest may use the Forest Products (Timber) for his own purposes after
notifying the District Forest Office (DFO). The District Forest Office Dang rejected his claim of
cutting down and selling of trees based on the notice published in the gazette by Nepal Government
banning transportation, export and felling of Sal trees. The petitioner sought to quash this decision
of the DFO.

Ratio: Citizens have the right to enjoy their property subject to law. But, the state can, according to
law, regulate even private properties of individuals for public interest. Although trees growing in
private forest are private property, they help in preserving biodiversity and protecting the
environment. The consumption and use of such items should be done in a way that does not
damage the environment and biological diversity.

The country cannot breach its obligations arising from the international conventions it has ratified
relating to fauna, flora, natural resources and the environment, protecting wetlands, controlling the
international trade of rare plants and animals, and protecting biological diversity. Thus, the
government of Nepal can ban the cutting, selling and export of certain types of forest products.

 This decision also cites another case 070-WF-0003 (not published in the NKP) which states
that, “…the notice published in the gazette by the Government of Nepal does not ban the
cutting down Sal trees for private use (for consumption by the concerned person) after
getting permission from the relevant forest office and following the prescribed condition.
Beyond that extent, the Government of Nepal has prohibited transporting or exporting of
such forest produce for commercial purposes or in any form of trading through speculative
leasing. The petitioner's claim to be allowed to cut trees of the prohibited Sal species for
commercial use, sale, distribution, leasing, and transportation did not appear to be in
accordance with the law.”

Decision: Writ claim of the petitioner was quashed.

5) Hari Prasad Neupane on behalf of Federation of Community Forestry Users Nepal

(FECOFUN) v. National Planning Commission (Protection of CFUG rights)
NKP 2003 (2060), DN 7184
Bench: Honourable Justice Gopal Prasad Khatri, Honourable Justice Raman Gina
Singh (Author)
Issue: A group of citizens residing in Madhesh and Chure areas of Terai for years, who had been
managing the forests of that area, formed a community forest user group in accordance with Section
41 of the Forest Act, 2049 and submitted an application to the district forest offices seeking
registration of their CFUG and handing over of the forest as community forest. Both the claims
were refused. It was informed that the Forest Department had instructed the District Forest Offices
in this area not to handover the forests and that a separate decision had been taken by the Council
of Ministers regarding the forests of this area. The decision provided that only areas other than
those falling under government forest management plan and block forest could be handed over to
user groups. The petitioners claimed that according to Sec 41, 42, 43 of the Forest Act, users relating
to any forest desirous to utilize the forest product by developing and conserving such forest for the
collective interest may constitute the Users' Group by submitting an application to the DFO.
Refusing to register CFUG violated the legal rights of the petitioners.

The Forestry Department of the Government decided that a separate program related to forests will
be implemented only in the districts of Terai, and the registration of groups and the transfer of
forests in their name will be prohibited there. As per this decision, citizens who managed
community forests in those areas were banned from forming groups and registering and acquiring
forests. Similarly, by prohibiting the handing over of areas other than vacant, fallow and
undergrown/shrub land areas to forest groups of that area, the Council of Ministers deprived them
of their legal right provided by Section 41 of the Forest Act 2049. This action also amounted to
discrimination as the rest of the country was not subjected to such restriction thus breaching Article
11(1) of the Constitution of Kingdom of Nepal.

In its decision, the Council of Ministers directs to determine the boundaries of the Chakla Forest in
Terai and Inner Madhesh and divide such Chakla Forest into compartments and manage them
scientifically. According to Rule 3 of Environment Protection Regulation while preparing and
implementing a forest management plan and cutting down of forest more than 5 hectares,
environmental impact assessed must be conducted the Ministry of Population and Environment
which was not done. In addition, the questions concerning the kind of plan used to manage the
forest, the effects of such plan on the environment were not addressed. Making a decision to
“scientifically manage forest” without proper planning and environment assessment is bound to
destroy the forest and cause environmental crisis.
In relation to the purpose of community forest, Section 2(h), Section 25 and Section 41 of the
Forest Act clearly states that through community forest, user groups can develop, protect, use and
manage forests and independently determine the price of forest products and sell and distribute
them. Contrary to that, the decision of the cabinet misinterpreted the purpose of community forest
and decided that the government will take 40 percent of the sale price for other program purposes.

Thus, the aforementioned decisions of the Council of Ministers regarding the forests of the Terai,
Inner Madhesh and Chure are against Article 11(1), 12(2) (c), of the Constitution of the Kingdom
of Nepal, 2047, Section 2(j), 2(d), Section 25-45 of the Forest Act 2049, Section 3 of the
Environment Protection Act, 2053 and Rule 3 of the Environment Protection Regulations. The
decisions must be quashed.

Ratio: If there is any reason not to implement the plan and program of community forest in areas
of Terai, Chure and inner Madhesh, the government should take appropriate steps to resolve such
issues. The people of those areas should not be deprived of the benefits of community forestry and
must be discriminated against by the state. The decision of the Council of Ministers of his majesty’s
government to take 40% of the proceeds from the sale of firewood of the community forest is
unlawful. The rights of the petitioners are directly affected by this decision so it will be quashed by
the order of this Court.

Order of the Court: The decisions of the Cabinet were found unconstitutional and unlawful and
breaching upon the rights of the petitioners, and were thus quashed.

6) Nepal Government v. Belbahadur Thapa et.al., (Issue concerning confiscation of

vehicle used for illegal transportation of protected trees)
NKP 2011 (2068), DN 8629
Bench: Honourable Justice Gyanendra Bahadur Karki (Author), Honourable Justice
Sushila Karki, Honourable Justice Tarkaraj Bhatta

Issue: Illegal cutting and transportation of protected tree (Sal) from national forest.

Question before the Court: Can the vehicle used in stealing and illegal transportation of protected
species of tree be confiscated under the circumstance that the owner of the vehicle had no
knowledge of it? (A previous judgment of a similar nature had provided that even if the vehicle
owner was not aware of it and has not consented to their vehical being used in illegal transportation,
such vehicle being an object used in crime would have to be confiscated as per Section 66 of the
Forest Act)

Ratio: Confiscation of carrier vehicle used for illegal transportation in violation of the Forest Act
would be lawful only when the vehicle has been used for illegal transportation with the involvement
or consent and approval of the owner. When the owner of the vehicle is not involved in the illegal
transportation of forest products or has no intention of transporting illegal forest products and he
does not have the knowledge that his vehicle is being used for the illegal transportation of forest
products, confiscation of his vehicle is not reasonable from any point of view of justice.

Verdict: The aforementioned principle was overruled.

7) Pro Public v. Nepal Government, (protection of rare and endangered species)

NKP 2011 (2068), DN 8556
Bench: Honourable Justice Balram KC (Author), Honourable Justice Mohan Prakash
Sitaula

Issue: The National Parks and Wildlife Protection Act has included various wild animals, including
one-horned rhinoceros as protected wild animals under Schedule 1. Sections 26, 30, 31 provides for
punishment, case investigation officer and case review officer. While Rule 25 of the Chitwan
National Park Regulations provides that the head of the park (warden) and assistant warden
(assistant warden) and ranger as the designated authorities looking into the case. The overall
assessment of the legal arrangements portray that we do not have a separate special law for the
protection of rare and endangered wildlife. In this perspective, since judicial intervention is
indispensable to make the opponents accountable and responsible for the sustainable protection of
rare and endangered wildlife, an order is sought seeking necessary order including the following for
the protection of rare and endangered wildlife:

1) Re-establish security posts removed from national park areas and patrol for giraffe
protection and mobilize anti-poaching units.
2) To arrange a separate comprehensive law for the protection of rare and endangered species
in accordance with the spirit of the Convention against International Trade in Endangered
Species of Wild Fauna and Flora (CITES), the Convention on the Conservation of Cultural
and Natural Heritage and the Convention on the Conservation of Biological Diversity,
3) Arrange to count the number of rhinoceros every two years and update the statistics
4) Arranging proper compensation if wild animals including rhinoceros from the national park
devastate the farming of the local community or cause any kind of damage.
5) To amend the regulations so that the district court can use the judicial powers exercised by
the National Park Office,
6) As the hotels, lodges and resorts within the National Park can be a hindrance to the
protection of wild animals, taking necessary measures even in terms of transferring such
structures to the intermediate area,
7) Conducting programs to protect the traditional knowledge and skills of the tribal peoples
living around the National Park, encourage them to protect wildlife, and promote self-
employment and income-earning opportunities to raise the standard of living.
8) To take necessary action to ensure the meaningful participation of the local people in the
conservation, enhancement and development of the National Park
9) For sustainable conservation of the one-horned rhinoceros, a high-level expert committee
should be formed with the representation of experts in the relevant fields and local
associations working in the field of conservation and the necessary orders should be issued
to implement the recommendations suggested by the committee.

Ratio: Rhinos are being killed due to the illegal international trade of the skins, bones, horns,
etc. of wild animals. In order to control it, there should be strict punishment and effective
implementation of the laws. But preventive measures are more important. For this, strict and
effective implementation of Sections 4, 5 and 11 of the National Parks and Wildlife Protection
Act, 2029 should be implemented in the wildlife reserve area. The enforcement of these
provisions is possible when entry is prohibited in restricted areas, unauthorized persons are
prohibited from entering the reservation, hunting is completely prohibited and regular patrolling
is done around the reservation area to prevent hunting and unauthorized entry into the
protected areas. Immediate and effective action should be taken against hunting activities.
 Order of Court: The Court ordered to form a Committee to prepare a Report concerning the
protection of endangered species including rhino, which gave suggestions on policy reforms,
data on the number of rhinos, relation between rhino and local people etc. The concerned
authorities for the protection of rhino and other endangered animals were already taking many
actions as per these suggestions. Thus, the Court gave the following orders:

 Regarding the data of rhinoceros it is suggested that their number be calculated every 5 years
in 2 and regular monitoring be carried out,
 Human made noise not only disturbs the peaceful environment of the reservation but also
affects the survival and reproduction of wild animals. Therefore, entry inside the reservation
area with any kind of noisy equipment and weapons should be prohibited,
 In relation to the other demands of the writ petition, a directive order was issued in the
name of the respondents to effectively implement the recommendations of the said
recommendation committee formed in accordance with the prevailing law and the order of
this court.

8) Amarnath Jha vs. Office of PM (disaster management and climate change)

NKP 2022 (2078), DN 10743
Bench: Honourable Justice Ananda Mohan Bhattarai (author), Honourable Justice
Sushmalata Mathema

Issue: A resident of Terai region seeking filed a writ preventive and restorative action from the
government for the people/families affected by the yearly flood (specifically in the Khado River)
caused by the monsoon rain in Terai. It was claimed that the floods which had become
unpredictable in recent times caused massive loss of life and property. The petition sought
immediate measures of relief as well as long term solutions from the government including building
of resilient dams to ensure that such flood do not cause loss of lives and irreversible physical damage
each year.

Rationale: Court delved into the notion of environment protection and related the disaster of flood
with climate change and other issues of environmental degradation which are in fact the causative
factor of disasters. Factors such as unseasonal rain, melting of glaciers (caused due to climate
change) were identified as the causative factor of flood in the Southern plain lands of Nepal. The
bench highlights the effect of climate change on a mountainous country like Nepal and puts forth
the duty of state to mitigate the factors that cause environmental harm resulting in disasters such as
excess sand mining, encroachment of basin areas for settlement or construction, deforestation etc. It
invokes various principles of environment law including the principle of sustainable development,
common but differentiated responsibility and precautionary principles to highlight the need of
environmental preservation.

Regarding disaster management, the bench states that disaster risk management should be looked in
conjunction with climate change adaptation in an integrated manner. The practices of early warning,
preparation, rescue, relief and rehabilitation are also highlighted as mandatory measures to be
adopted for disaster management. Further, for disaster management, the bench finds it important
that the land use policy be mindful of the geographical sensitivity and also include concerns related
to environmentally sustainable development such as biodiversity protection, environmental
protection, maintaining forest areas in the land necessary for environmental balance etc. The plans
and programs of the state must keep in mind the state policies provided for in the Constitution.

It talks about the need of proper implementation of environment related laws stating that the rights
provided in the Constitution are not just for the sake of it, they are there for actual realization by the
people and thus need to be implemented. The fundamental rights enshrined in the constitution can
only be realized if sustainable development is implemented and applied in all programs and policies
of state in an accountable manner. In the context that our constitution accepts not only clean but
also "healthy environment" as a fundamental right of citizens, it is necessary to keep the river
systems clean and healthy. The state has to carry out the responsibility of promoting the protection
of natural resources, ensuring the enjoyment of fundamental rights and rights, and turning the state's
policy principles into action by embracing the concept of intergenerational justice.

It also highlights that the court should take the growing scope and interest in environmental, climate
change and human rights law seriously. The right of people to live in a healthy and safe environment
should be respected in every way and courts should protect its people from the effects of flood and
landslides. Thus, when the government fails to discharge its obligations in protecting the rights of
disaster-affected people and communities, the Court has to pave way for judicial activism. When
fundamental rights are violated and harm is caused to environment, Court has the duty to prevent it.
Order: The Court initially issued an interim order to the government to provide adequate and
immediate relief package for the victims of flood of that year. In the final judgment the bench issued
an order of mandamus to ensure not just immediate relief packages but also long term rehabilitation
to the victims; and, to reduce the damage caused by flooding of the Khado River by constructing
dams and embankments in places where there is risk of flood.

As a long-term solution to this matter, the Court provided directive orders to:

 create and implement a National Master Plan related to disaster management,

 prepare and implement land use policies based on river basins and create programs related to
land management and include them in periodical plans while also following the policy of
conservation, promotion and sustainable use of biological diversity,
 collect detailed data based on information technology and update it timely,
 ensure the right to housing of disaster victims as provided by Article 37 of the Constitution
and build sustainable housing with basic facilities and to increase the resilience of other
public and private structures,
 address the impact of climate change and disaster on farmers and provide protection
measures and compensation,
 ensure easy access to real time data and information about disaster

9) Advocate Ram Kumar Acharya (Environment Development and Conservation Legal

Forum) v. Nepal Government, Office of the Prime Minister
NKP 2013 (2070), DN 8942
Bench: Honourable Damodar Prasad Sharma (author), Honourable Justice Prakash
Wasti

Issue: Reasons like the changes in production and consumption style and increased infrastructural
construction caused the over-exploitation of natural resources. This over-exploitation caused the
gradual extinction of national resources and the lack of availability of resources for future
generations. Sustainable Development was introduced in the realm of protection of the environment
and natural resources.
The Precautionary Principle developed in relation to environmental protection and sustainable
development emphasizes that before starting any development program, it is necessary to anticipate
the negative impact it will have on human health, natural resources, and the overall environment and
then take precautions to prevent such impact. According to this principle, it is necessary to
anticipate the negative impact and take necessary precautions before any development work is
carried out. It is the responsibility of the one proposing the project to confirm that the development
works will not have any negative impact on the environment. Environmental Impact Assessment
(EIA) is based on the principle of precaution. It adopts a precautionary approach to control
environmental damage before its occurrence rather than controlling it after it has occurred.

The issue, in this case, is related to whether a road can be constructed for human needs within the
Bardiya National Park, which is a haven for a clean environment, diverse biodiversity, and wildlife. If
constructing such a road is possible, what would be the relationship between environmental
protection and development based on prevailing laws?

Rationale: Protecting the environment is a common concern of the entire world. The court has a
role of a guardian in the protection of the environment. The organizations and individuals who are
involved in its protection are also expected to play an active role.

The question of environmental protection goes beyond the needs of the boundary of a nation and
nationality. For a multifaceted issue that is a common concern of the world, it is not just to limit it
by narrowing it to the elements of rights and interests.

If there is any other option instead of the proposed project where the environmental damage can be
limited following the option, the alternative should get universal priority.

Environmental impact assessment provides that every possible option should be studied. Thus,
environmental protection should be considered as the main objective while choosing the option.
The question of financial expenditure should not be given importance when taking in consideration
of the viable option. Nepalese laws stand in favor of environmental protection. Since Nepal is a
signatory of environmental protection treaties and conventions, the question of environmental
protection cannot be considered secondary in the name of development.

Environmental impact assessment should be done through the process prescribed by law. The
objective basis of the report should be that the option chosen from the various options is the most
appropriate from the point of view of environmental protection. Whether those objective grounds
are lawful or not is the subject of the court's examination. It is not possible to agree with the
statement that the court should not enter the context of Environmental Impact Assessment (EIA).

It is the duty of this court to enforce the law and see through its proper application. The necessity of
the road or lack of it is not to be determined by the court. However, from the point of view of
environmental protection, the court only enters into the matter when it comes to examining the
legality of the viable options that have opted to construct the road.

10) Bajudin Miya v Office of the Prime Minister

NKP 2009 (2066), DN 8169
Bench: Honorable Justice Balram KC, Honorable Justice Krishna Prasad Upadhyaya
(author)

Issue: Koshi Tappu Reserve Area has different species of wild animals. It also does not have
essential compounds, walls, or any barriers to control the border area from wild animals. Even
where there are such compounds, walls, or barriers, the animals destroy such walls and escape the
boundary destroying the crops planted on the lands, which are the property of people, like the
petitioner, who have their rights vested in it. The petitioners claim that there is a situation where
there is no effective law providing compensation for this kind of loss and damages caused by wild
animals protected by the state.

The petitioners claim that their sugarcane crop saw damage because of the many wild elephants,
deer, badgers, and other wild animals that have come in hundreds of numbers from the wildlife
reserve. The animals have repeatedly eaten and trampled the sugarcane crop resulting in irreversible
damage.

The petitioners filed the writ seeking the Court to provide them compensation for damages caused
to their crops. In addition, they also asked for necessary policy rules or additional legal and budget to
be arranged. They claimed to be compensation from the new arrangement along with an order being
issued to the defendant to construct a compound around the Wildlife Reserve to prevent damages to
the crops.

Ratio: The state has the following duties to fulfill the Right of Food Sovereignty given to the
citizens by the Constitution:
 a) Citizens should be able to produce their own food and become self-sufficient.
b) The state should secure and store adequate amounts of food by making food available and
supplied to the market so as not to let its citizens suffer from food shortages.
c) The state should assist in food production, marketing and conservation to achieve the Right
of citizens to food sovereignty.
d) The state should create conditions and an environment where all citizens have easy access to
food.

The State should create an appropriate economic environment by making necessary laws and
policies and other necessary provisions for access to food for every citizen to enjoy the fundamental
right of food sovereignty. This is to not deprive citizens of the right to food sovereignty.

The fact that Nepal is cultivating commercial sugarcane and has helped to save crores of foreign
currency that Nepal spends every year on sugar import should be taken into consideration to give
special protection to the professional business.

To protect the basic rights of the citizens to be free from hunger i.e. Right to Food and basic rights
related to occupation and business, compensation should be arranged.

It is natural for wild animals to move out of the reservation area due to the increased deforestation
within the forest. But even though it is natural, the State should fulfill its responsibility towards the
people's right to food sovereignty if the property of the citizen that should be protected is damaged
by a wild animal protected by the state agency or caused by such an animal.

The state cannot deviate from its constitutional duty by saying that there is no law and no policy on
issues such as food sovereignty, health, food problems and security, and the environment for doing
business and its proper protection, where the interests and concerns of the citizens are intertwined.

The government, which is also the guardian of the rights and interests of the citizens, should use its
inherent right to make policy decisions and follow its constitutional duties and responsibilities by
providing compensation.

Wildlife protected according to the law are considered public property, and if these wild animals
within the reservation protected by the state destroy the crops of the citizens based on agriculture,
even if the State does not cause any direct damage to it, the state is tortuously liable to provide
necessary and appropriate compensation. If an animal inside a reservation protected by the state
causes damage to someone's property such as crops, farming, the State, as the keeper of such an
animal, should compensate the victim.

In a matter related to the fundamental right of citizens to be free from hunger i.e. Right To Food
that is important and sensitive until a directive order is issued to provide compensation and a law or
policy is issued, until the protected animals in the reservation destroy the crops or crops of the
citizens who come out of the reservation.; the following order will be issued to compensate the
relevant people whose crops have been damaged:

a) In order to address the problems mentioned regularly by the citizens around the national
parks or reserves of Nepal, a committee should be formed in the district where the national
park or reserve is located. The Committee should form with representation from relevant
stakeholders, including experts and farmers.
b) If the protected wildlife of the park or reserve area damages the crops of the residents
outside the reservation, an arrangement for the damaged person to register an application
with the said committee should be made.
c) If the application is registered, the committee, as soon as possible, should investigate
whether the protected animals within the reservation caused crop damage. If the evidence
shows that the damage was caused by the protected animals within the reservation, an
arrangement for a reasonable amount of compensation based on the amount of damage seen
should be made.
d) The committee can decide its own operating procedures.
e) The work of the committee in accordance with this directive will continue until a law or
policy related to punishment is made and it is displaced or replaced. After a law or policy is
made and the issue regarding compensation is properly managed, the committee will dissolve
automatically.

Order: The Court is of the view that animals protected by the state within the Wildlife Reservation
should not cause damage to the crops of the citizens. The state should compensate those whose
crops are damaged because of these animals. The Court, in this case, observed that both the
petitioners and the opponents had mentioned the lack of law and policy to compensate for such
damages in the current situation. It is also observed that such damage is seen every year, meaning it
is recurring. The Court also observed that there is a dispute in determining the number of damages
and that the state has a constitutional duty to compensate for the damage in such a situation.
However, there is a lack of laws and policies providing compensation for such damage.

The Court observed that the matter raised by the petitioner was of sensitive matter related to the
fundamental right of citizens to be free from hunger i.e. Right to Food. Thus, it issued a directive
order in the name of the defendant to permanently resolve and provide compensation. The directive
order issued also ordered the Government to make laws and policies addressing the problem as
soon as possible in order to prevent such recurring problems in the future.

11) Adv. Narayan Devkota v. Prime Minister and the Council of Ministers
NKP 2010 (2067), DN 8521
Bench: Honorable Justice Balram KC (author), Honorable Justice Bharatraj Upreti

Issue: Writ was filed regarding the issue of use of crushers by Indian companies for extraction of
stones and other materials in about 25 districts of Terai region. It was claimed that the crusher
industry had no regard for the environmental components and had been damaging forests, the
biodiversity while also polluting the residential area around which they are operating. This caused
massive environmental and bio-diversity damage in the Chure range and in about 25 districts of the
Terai region which have national parks and other protected areas within them.

The petitioner claimed that despite there being clear provisions in the Environment Act and Rules
and the Mines and Minerals Act, Water Resources Act, National Parks and Wildlife Conservation
Act and the Forest Act, the government is indifferent, inactive and helpless and there is lack of
monitoring of such activities.

Ratio: The court agreed on the fact that mismanaged crusher industry is extremely detrimental to
environment as well as to the lives of people and stated that “Planners and governments should be
able to balance economic development and industrial development and environmental protection
when planning. Today's 21st century world needs to be conscious of the need and importance of a
clean environment. The economic development of the cost of environmental destruction is not
acceptable.” The Court here invoked the Public Trust Doctrine and provided that under the Public
Trust Doctrine, the Government of Nepal should have access to Nepal's natural resources only as a
Trustee and there is no legal basis for allowing Nepal's natural resources to be used in a way that
adversely affects the environment just because such act generates some revenue. The court further
went to say that the bad policies of the government are causing pollution and that allowing Indian
crusher industries to cause such nuisance is against its constitutional mandate to protect
environment. The extraction and use of natural resources should not be viewed only from the point
of view of economic benefits. Natural resources should be allowed for commercial use only after
ensuring that such use do not adversely impact the surrounding.

Order: The Court provided directive order to the responsible agencies of the government form a
policy for the prevention of such exploitation of resources and environment and work under the
Public Trust Doctrine acting as a trustee and not the owner of natural resources to protect the
environment and rights of its citizens. It also ordered the government to formulate a policy to
manage and use natural resources in a way that can be used only for the common benefit and public
interest of all Nepali people; to conduct EIA while conducting activities that affect the environment;
and to make necessary arrangements for the use of natural resources without any adverse effect on
the environment as per the law.

12) Yogi Narahari Nath et.al. v. Prime Minister and the Council of Ministers
NKP 1996 (2053), DN 6127
Bench: Honourable Justice Surendra Prasad Singh (author), Honourable Justice
Narendra Bahadur Neupane

Issue: Devghat area lies next to the Narayani river and an area of a national park having dense
forests. Thousands of old idols were found during excavations in this area. Wild animals come to
feed and drink from the Narayani river and rare herbs are also found in this area. The people and
the government of this area consider this place as a public property. His Majesty’s government had
decided to provide 42 acers of this area to an international medical center free of cost. Writ was filed
seeking to quash this decision and preserve the natural and religious environment of the Devghat
area. At present, this area is a place of reservation for greengrocer and other forest animals. If a
medical campus is built at that place, it will lead to unauthorized entry of people and destruction of
wild animals and forest and cause adverse effect on the environment. The religious sanctity of the
place dignity will be violated. With these claims, a writ was filed to quash this decision of the
government.
Ratio: Even if the court cannot apply the directive principles and policies of the state arranged by
the constitution, if the government decides against the directive principles and policies of the state
arranged in the constitution, then it can direct to resolve such a situation.

Natural heritage of the country is the common property of all citizens.

When the government makes a decision on matters of national importance, the decision should be
made in a manner that does not conflict with the constitution and the law, keeping in mind the
interest of the nation.

Order: Taking into account the environmental and cultural importance of Devghat area, the
Supreme Court quashed the decision of the government to lease that area to construct an
international medical study center which would have destroyed the forest and the environment
affecting the habitat as well as the residence around the area.