It was agreed to start the Dunduwa Irrigation System in 2016 with the assistance of the Government of India with the aim of providing irrigation facilities to 16,000 hectares of cultivable land in Banke. The dam was inaugurated on 19 Falgun 2020.

But after the project was completed, it was revealed that the Dunduwa River, the main source of the irrigation system, did not have enough water in the winter. Then in 2061 BS, a plan was started to irrigate about 16,000 hectares of land by constructing a dam on the Rapti River and diverting water from the main canal to the Dunduwa Canal.

A cost estimate of 1.91 billion 69 million 83 thousand rupees was approved, with 55 percent investment from the Saudi Development Fund and 45 percent from the Government of Nepal. The contract was awarded on 6 Ashar 2073. Coastal-Pappu JV was awarded the contract for 988 million 81 million 18 thousand 268 rupees to complete the work within 28 months.

But by Mangsir 2075, only 2 percent of the work was completed in about 18 months. When it was clear that no further work would be done, the process of terminating the contract was initiated. But Pappu filed one case after another in the court and brought an interim order. This dispute also reached the Arbitration Council. The construction businessmen approached the High Court Patan and then the Supreme Court against the arbitration decision.

The government has started preparations to form an infrastructure court as it is seen that the development work will not only reach the courts and judicial bodies, will be entangled for years and the cost will increase, but also the future of the project will be uncertain. After all these disputes were resolved, the contract process for the construction of the canal began again on 3 Baisakh 2080. Then Pappu filed a new case again. The cost of this project, which has been entangled in one judicial body after another, has increased to 3.4 billion 42 million 76 thousand rupees. After the arbitration decision, the government estimated the new cost and initiated the agreement process with the new contractor company on 26 Mangsir 2081.

Due to the delay in the decision, the construction work has been pushed back by about 10 years. This is estimated to result in a potential loss of production profits of about Rs 9 billion and an additional cost increase of Rs 1.48 billion. The court process of the dispute was concluded only on Magh 26, 2082.

The government moved forward with the Jorpati-Sankhu road expansion project. After this project, which started in 2077 BS, 330 locals filed a case against the government demanding compensation.

When the case was not resolved on the 11.46-kilometer long Chabahil-Jorpati-Sankhu road section, the government moved forward with work only in the unobstructed areas and left the disputed areas. As the case is still pending in the Supreme Court, the road expansion is in doubt.

Gauri Parbati-Dev and Sayar-Bhoomi JV was awarded the contract for a road section under the Postal Highway. According to the agreement signed on Magh 2, 2078 BS, the construction had to be completed by Shrawan 16, 2081 BS. Later, the deadline was extended to Asad 2083 BS. But after only 20 percent progress was found even after four years of construction, the government terminated the contract on 15 Mangsir 2082.

After taking action as per the Public Procurement Regulations, the contractor company approached the Patan High Court. Although the High Court refused to issue an interim order, the contractor company approached the Supreme Court. After the Supreme Court issued an interim order on 1 Chaitra 2082, the construction of the road has again been in doubt.

These three projects are just representative examples of the delays in development. Many other projects have been stuck for years due to land acquisition, compensation and other disputes. In this way, development work is not only being dragged into courts and judicial bodies, getting stuck for years and increasing costs, but also the future of the project is becoming uncertain, so the government has started preparations to form an infrastructure court (tribunal) to resolve this.

After the elections held on 21 Falgun, the government had given the responsibility to the Ministry of Law, Justice and Parliamentary Affairs to study the need for an infrastructure court to speed up development. After that, a study committee was formed under the leadership of Law Secretary Parashwar Dhungana. The cabinet meeting held on Monday decided to move forward with the process after the committee suggested that disputes related to development should be heard through a separate infrastructure tribunal rather than through a regular court.

Many projects have been stuck for years due to land acquisition, compensation and other disputes. Minister for Law, Justice and Parliamentary Affairs Sobita Gautam said that preparations are underway to move forward with the concept paper for the formation of the infrastructure tribunal. ‘After holding discussions with the Ministry of Finance, the process of formal recognition is moving forward,’ Minister Gautam said, ‘We are preparing a draft act for the formation of the infrastructure tribunal. The formation process will move forward after making an act. A representative of the Supreme Court was on the study committee, and since it has also been approved by them, we are now in the stage of completing the remaining legal and administrative work.’

Minister Gautam says that after the formation of the infrastructure tribunal, the situation of development projects with large state capital investments becoming unhealthy will end. ‘After this tribunal is formed, the situation of development projects becoming unhealthy will end. This tribunal is being formed to end the situation where roads, bridges, and irrigation projects are not being built due to the public's interest in state-funded projects,' said Minister Gautam.

When will it be formed?

The Law Ministry has written to other concerned bodies and the Supreme Court after the Council of Ministers gave permission to draft the necessary laws for the formation of the court and start preparations. The process of forming the infrastructure court has moved forward with the permission from the Council of Ministers, said Law Secretary Parashwar Dhungana. He said that the ministry is preparing to proceed with the necessary legal process.

Article 152 (1) of the Constitution provides for the formation of a specialized court. 'Other specialized courts, judicial bodies, or tribunals may be established and formed in accordance with federal law to handle and settle cases of specific types and nature, except those mentioned in Article 127,' the article states. Secretary Dhungana said that the government has started preparations to form an infrastructure court like the labor court and the consumer court in accordance with this provision of the Constitution.

Senior advocate Baburam Dahal, an expert in public procurement and construction law, claims that at least 50,000 cases will be filed in such a court right now. He said that it is necessary to set a ceiling for how many cases will be registered in such courts. ‘Otherwise, if all infrastructure cases are to be heard, it will not be possible,’ he said, ‘There are such construction and contract-related cases in 77 districts. In all of them, the government office is the defendant. This will create a court with many cases.’

What will the infrastructure court be like?

The study committee formed under the leadership of the Law Secretary has suggested that it would be appropriate to form a court under the leadership of a High Court judge or a person with similar qualifications. The report mentions that a separate bench and tribunal will be formed to hear cases related to infrastructure and development construction. It is proposed that there will be a separate bench for appeals in the Supreme Court and that the same bench will hear cases appealed from the tribunal.

It has been mentioned that writ petitions related to land acquisition, compensation determination and contract process for infrastructure construction and development projects should be heard.  It has been mentioned that writ petitions related to land acquisition, compensation determination and contract process for infrastructure construction and development projects should be heard. A provision has been proposed to finalize such cases within 60 days. The committee has also suggested that the Chief Justice of the Supreme Court and the Chief Justice of the High Court should make arrangements to continuously study and monitor whether the cases are heard and processed within 60 days.

The report states that ‘the trend of infrastructure development projects in Nepal being blocked due to legal disputes for a long time, causing losses of billions of rupees, has been seen as a serious problem.’ ‘In particular, hundreds of projects across the country have been stuck in litigation for years. The general public is forced to be deprived of the services and facilities that such projects provide for a long time,’ the report says.

The report states that since the current judicial structure takes a long time to finalize technical and complex construction-related cases, development projects are stalled, costs increase excessively and the general public is directly affected. The committee has suggested that the Infrastructure Tribunal should be given the authority to hear eight types of disputes. This includes joint ventures, disputes between partners, bank guarantee disputes, matters to be resolved by the court under the Arbitration Act, 2055 BS, disputes related to right of way, royalty distribution, project operation, public procurement contracts, and construction material excavation and maintenance and operation disputes. The report mentions that projects constructed and operated under Public-Private Partnership (AAA), disputes between construction entrepreneurs, consultants, human resources, suppliers and local affected communities during the construction phase should also be considered. The report mentions that it would be appropriate to have expert members

The report mentions that it would be appropriate to have expert members in finance and engineering fields who have gained experience and expertise in the field of project management in the Infrastructure Tribunal under the chairmanship of a High Court judge. It has been proposed that the court will have a chairman and at least five or six members. The members will include technical members ranging from civil engineers to structural engineers. The committee has also suggested that a roster of engineers be created so that engineer members can be assigned according to the nature of the case. The report mentions that an appeal should be filed in the Supreme Court against the decision of the Infrastructure Tribunal and that a separate 'fast track' infrastructure bench should be formed in the Supreme Court to hear the appeal.

The committee has suggested that cases related to land acquisition, house and property valuation and compensation determination should be resolved through fast track from the beginning within a maximum of two months. For this, the report mentions that the Public Procurement Act, Arbitration Act, Civil Code, Administration of Justice Act, Short Procedure Act, Civil Code and Supreme, High and District Court Rules should be amended.

What is the international practice?

There is an international practice of forming special courts or tribunals to hear disputes related to infrastructure, construction, large projects, contracts and public projects. The 'Technology and Construction Court' is in operation in the UK. In China, there is a special court or bench for construction and commercial disputes. In Australia, the 'Planning and Environment Court' is in operation. In the US, various states have formed construction and commercial courts.

It is an international practice to set up special courts or tribunals to hear disputes related to infrastructure, construction, large projects, contracts and public projects.

In India, courts have adopted a structured process with time limits to resolve disputes related to infrastructure and development projects expeditiously. Strict time limits are set for submission of pleadings, evidence and arguments. The Supreme Court and the High Courts of India have adopted a balanced approach to avoid unnecessary delays in public projects. Rather than ordering a halt to the entire project, the practice is to allow the project to proceed with necessary safeguards.

In the UK, the adjudicator generally gives a binding interim decision within 28 to 42 days. The ‘pay first, dispute later’ principle has been implemented. In many states in Australia, construction disputes, especially disputes related to payment and construction progress, are resolved within 10 to 15 working days. In Indonesia, disputes related to infrastructure and development projects are resolved through a systematic judicial and administrative process. In land acquisition disputes, the court is required to give a decision on compensation within about 30 days.

In Singapore, infrastructure cases are resolved at a high speed. त्यहाँ व्यावसायिक विवाद औसत १ सय ६४ दिनभित्र समाधान हुने गरेको उल्लेख छ । विश्व बैंकको ‘डुइङ बिजनेस रिपोर्ट २०२०’ ले सम्झौता कार्यान्वयनमा सिंगापुरलाई विश्वमै पहिलो स्थानमा राखेको थियो ।