The Bhutanese Leading the way.
The Thimphu District Municipality (TDM) has made it clear that it will appeal against the High Court’s verdict on the Taxi parking land case in the Supreme Court.
“We are not happy with the verdict and we will appeal to the Supreme Court and take this matter to the very end,” said the Thrompon, Kinlay Dorjee.
Thimphu Thromde has 10 working days from the day of verdict to appeal to the Supreme Court.
On Thursday the High Court through a split verdict had ruled that the Taxi parking land belongs to Tashi Commercial Corporation.
Of the four judges two who are the acting Chief Justice Sangay Khandu and Judge Norbu Tshering had ruled in favor of Tashi Commercial while the other two Judges, Lungten Dubgyur and Tshering Namgyel ruled in favor of the government. Finally the acting Chief Justice Sangay Khandu cast the deciding vote in favor of Tashi Commercial Corporation.
The case basically hinges on a longstanding ownership dispute between Tashi Commercial and the TDM over the Taxi parking land behind the Tashi BOD.
Tashi Commercial Corporation owned two Plots of land since 1973; Plot No. L-1 measuring 38.58 decimals of land currently located in the Thimphu BOD and Plot No. I (22) measuring 49.93 decimals of land. Both the Plots measuring a total of 88.51 decimals were bought from the government
The problem arose over the identification of Plot No. I (22) measuring 49.93 decimals of land. Tashi Commercial Corporation claimed that the current Taxi parking areas was I(22) while the City Corporation and Ministry of Work and Human Settlement represented by the Office of Attorney General said that Plot. No. I (22) was merged with Plot No.L-1. during the Survey carried out in 1984.
They argued that Plot. I (22) was the current areas of Gas station and the area of Tashi Commercial Corporation now used as the Office for Bmobile and not the Taxi Parking area which was since then used as Bus and Truck parking.
In the meantime in the measurement of 1984 plot L-1 which measured 38.58 decimals had increased in size to one acre and 23 decimals pushing the total size of both Tashi Commercial plots from 88.51 decimals to one acre and 17 decimals.
Thimphu Thromde had appealed to the High Court in 2007, after the District Court’s verdict went in favor of Tashi Commercial. The then High Court upheld the District Court’s verdict which went in favor of Tashi Commercial based on registration of the land, ownership certificates of 1992 & 2007; and payment for excess land and annual taxes
Based on the TDM’s appeal to His Majesty the King the case was re-directed through the Office of Gyalpoi Zimpon to be reviewed by the current High Court justices since the appeal was post constitutional.
The acting Chief Justice who ruled in favor of Tashi Commercial said that the record revealed that City Corporation is not sure about the two lands being merged together.
He quoted section 95 of the evidence act of Bhutan which reads, a fact is said, and “not to be proved” when it is neither proved nor disproved.
Explaining another evidence which favored Tashi was that back in 2008 when the government had instructed City to construct a proper taxi parking then TDM had mentioned that they would be constructing a temporary parking.
Justice Sangay Khandu said, had the land not been Tashi’s they would have constructed a permanent parking. This is one evident which favored Tashi Commercial Corporation.
“Moreover Tashi Corporation has been paying tax for the land and City has been receiving it,” the acting Chief Justice added.
The acting Chief Justice and Judge Norbu Tshering who ruled in favor of Tashi Commercial also reasoned in thier judgment that the City Corporation representatives; Karma Dorji and Kelzang Tenzing had in fact admitted in the Thimphu District Court on 03.10.2007 for having issued the ownership certificate in 1992, certifying that the Plot No. L-1 and Plot No. I (22) belongs to Tashi Commercial Corporation.
The justices further reasoned that the Land Record Officer vide letter no. dated 25.10.2007 submitted that the current Taxi Parking area was 23,912.26 sq ft. which according to them was an expert opinion as per section 48 of the Evidence Act.
However, the other two judges who ruled in favor of the government and gave a dissenting judgment refuted the two points of the above judges.
They said that upon scrutiny of the said statement submitted by two officials from the City Corporation to the Thimphu District Court on 03.10.2007; the judges found that they have just narrated about the existence of the ownership certificate of 1992 and rather submitted that “the land boundaries of Tashi Commercial Corporation are clearly demarcated by their stone wall and metal fencing and that the taxi parking area is not their land…”. This the judges said establishes that the two officials had never admitted before the lower court as reasoned by the learned justices
On the second point the two dissenting judges said, ‘The letter no. dated 25.10.2007, submitted by the Thimphu Dzongkhag Land Record Officer was a survey report of the disputed area which was carried out as per the direction of the lower court and not an expert opinion as to the location of I (22). Hence, the Land Record Officer’s Survey Report of the survey conducted under the direction of the court which included the re-demarcation of the boundaries in disputed site cannot be considered in our interpretation as an expert opinion as per section 48 of the Evidence Act to justify the allotment of I(22) from public Taxi Parking area.
The two judges also cited several instances and documents where they said it was proven that the land belonged to the government.
The two judges pointed out that the purported ownership certificate issued in 1992 was based on the illegal regularization or increased size of Plot No. L-1 in 1984 from 38.58 decimals to 1 acre 23 decimals. The judges said that Tashi Commercial Corporation had submitted many inconsistent documents concerning the location of Plot no. I (22). They said that in 1997, even Druk Petroleum Company had once requested City Corporation to allot the Taxi Parking areas for the installation of their fuel station which also corroborates the land to be a Government land. They also pointed out that in 1985 and 1986 when Tashi Commercial Corporation submitted approval note to construct staff quarters and gas godown to the TDM , their site plan or sketch maps of the area are shown with boundaries demarcated with that of Bus and Truck parking areas.
Chencho Dema/Thimphu
“Finally the acting Chief Justice Sangay Khandu cast the deciding vote in favor of Tashi Commercial Corporation”. This move of the CJ appears to be controversial. Under which ACT the CJ has such power? In any functioning democracy the vote of the CJ carries the same legal weight as each of the other associate judges. In any court decision the CJ does not have legal authority to overrule the verdicts or interpretations of the other associate judges.
The argument of CJ Sangay Khandu is not convincing: “Explaining another evidence which favored Tashi was that back in 2008 when the government had instructed City to construct a proper taxi parking then TDM had mentioned that they would be constructing a temporary parking. Justice Sangay Khandu said, had the land not been Tashi’s they would have constructed a permanent parking. This is one evident which favored Tashi Commercial Corporation.”
The argument of the justices who gave dissenting opinion appears to be logical: “They also pointed out that in 1985 and 1986 when Tashi Commercial Corporation submitted approval note to construct staff quarters and gas godown to the TDM , their site plan or sketch maps of the area are shown with boundaries demarcated with that of Bus and Truck parking areas.”
so tomorrow if i built a temporary house on my land because of scarce resources, i might loose the land. what a ridiculous argument put by CJ Sangay Khandu. So what happens if i built a permanent house on other’s land?
Please give more lands to Tashi, Singye companies. I have no objections. when favoritism is backed by judgment what can ordinary people expect?
I think we should built a house on Government land and pay taxes. And one thing try to get ownership certificates. I think this kind of judgements are setting really bad precedent. If regularization is not in accordance with law, Thats it as far as i am concern. Tashi have fraudulently claimed the taxi parking area. The dissenting judgement clearly shows that! Supreme should rule in the favour of Government!