The Act was struck down by the votes of Chief Justice Prakashman Singh Raut and Justices Sapna Pradhan Malla, Kumar Regmi and Manoj Kumar Sharma of the Constitutional Bench.
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The Constitutional Bench of the Supreme Court has annulled the law allowing the construction of infrastructure in parks and protected areas. On the eve of the investment conference held last May, the Ordinance and after the commencement of the Parliament, the Parks Act was amended with the provision of enabling the national priority projects to be carried forward through the bill.
Chief Justice Prakashmansingh Raut and judges Sapna Pradhan Malla, Kumar Regmi, Hariprasad Phuyal and Manoj Kumar Sharma were heard in the constitutional bench of the petition to quash the amended act which was passed by the Parliament and came into effect last June to allow the construction of infrastructure within parks and protected areas.
Chief Justice Raut along with Justices Sharma and Regmi have ordered to cancel the amendment in the National Parks and Wildlife Act, while Justice Malla has ordered to issue a writ with a different approach. Judge Phuyal said that there is no need to repeal the amended Act and ordered the writ to be quashed.
On the eve of the investment conference held last May, half a dozen laws related to national parks and protected areas were amended through the Ordinance and later through 'Bill 2081 to amend some Nepal Acts on Investment Facilitation'. Section 5A was added to the National Parks and Wildlife Protection Act, 2029 to provide that 'any area within a national park, reservation or conservation area may be designated as a sensitive area'.
Similarly, it was said in section 6(1a), "The government of Nepal can give approval to carry out national priority projects, projects approved by the Investment Board or projects of national pride in areas other than highly sensitive areas, in order to maintain the coexistence of nature and human beings." In the same way, projects can be conducted in the intermediate area and tourism and other industry businesses can be allowed to operate. Advocate Dilraj that the provisions of 'Section 6(1A)' and 'Section 6(1A)' are contrary to Article 30 (3) of the Constitution of Nepal and should be declared null and void. Khanal, Prakashmani Sharma and others filed a writ on July 13. On that, the constitutional bench with the then Chief Justice Vishwambhar Prasad Shrestha issued a short-term interim order on July 30.
On Wednesday, the constitutional bench dismissed the law in accordance with the demands of the petitions. According to Section 3 of the National Parks and Wildlife Protection Act, 2029 to amend certain Nepal Acts related to Investment Facilitation as per the petition as the Section 5A and Section 6(1A) added to the National Parks and Wildlife Protection Act, 2029 are in conflict with the mentioned constitutional provisions. Section 5A and Section 6(1A) added to are invalid and null and void from the beginning as per Article 133 (1) of the Constitution of Nepal. It has been done," said the order of the Supreme Court.
"We have filed a writ because it is related to the exploitation of the environment," said one of the petitioners, lawyer Sharma, "especially some groups were active with the aim of constructing a hydroelectric project at the mouth of the river coming out of the Everest region. According to the same plan, the Act was amended, it has now been stopped by the intervention of the Supreme Court.'
Judge Malla has ordered the writ to be issued with a different approach. Article 51 (g) (8) of the Constitution of Nepal stipulates that 'Environmental protection has adopted the principles of environmental sustainable development such as precautionary measures and prior informed consent' and he said that it would be appropriate not to practice risky practices where environmental destruction cannot be improved. She ordered to do it. It is mentioned in Malla's order with a different approach that by amending the Parks Act, the government has prepared a way to harm the environment protection by keeping unnecessary and risky language.
"This system seems to prove fatal for the sake of the environment and human civilization," said Malla with an explanation of the principle that the environment and development should be taken together.
Judge Fuyal has a different opinion on the order. Even though the constitution gives the right to a clean environment, it is also said that 'necessary legal arrangements can be made for a proper balance between the environment and development in the work of the nation's development.
'The clauses added to the National Parks and Wildlife Protection Act, 2029, which was issued almost 50 years ago, have been added to the preamble and purpose of the Act and the constitutional changes that have come about, the pressure seen in the national aspirations of economic policy and development, and the changes in the scope of international and regional economic development. must also be seen," he wrote, "to conclude that the purpose of the added sections 5A and 6(1A) is to break up or destroy national parks, reservations or protected areas. It is not possible.''It is mentioned in his order that the writ should be repealed as it makes sense that when establishing
as a highly sensitive area, development work of a certain nature can be carried out in areas other than that. He stated that the writ will be dismissed saying that 'could not agree with the opinion of the honorable judges'.
