Courts should address land disputes: SC

The land commission dealt all land cases since the enactment of the Land Act 2007

Judiciary: To render speedy resolutions to land related disputes, the Supreme Court Chief Justice recently instructed courts to accept four types of cases directly without them having to route through the National Land Commission.

The Chief Justice’s order, issued last month, stated that land cases related to sale or purchase, inheritance, and easement of land could be directly submitted to courts.

Those dissatisfied with the decisions of the National Land Commission’s (NLC) dispute settlement committee (DSC) could appeal to the courts with the copy of the decision as the decisions are subject to judicial review.

Following the NLC secretary’s letter to the Chief Justice citing among others, the commission’s difficulties in executing their duties and the legalities of the commission’s DSC in December last year, the Chief Justice asked to form a joint committee of NLC officials and judges to address the issues.

The Chief Justice’s order comes after the joint committee submitted a report. This order clarifies the role and responsibilities of the commission according to the Land Act 2007, and identifies measures to pluck loopholes in the legislation for quicker resolutions of land related cases.

The Chief Justice’s order emphasises on the need for the dispute settlement committee to first allow mutual settlement of the issues. If the settlement fails, then the committee should issue a decision.

Of the 18 cases the commission submitted to the task force on April 27 this year, the Chief Justice ordered that the commission would deal with the five cases that the courts have issued judgments on and forward the remaining to the court.

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The commission should abide by the court judgment and in case the land reflected in the judgment is not there at all and the lapses are from the court, then the issue may be submitted to the Chief Justice for further directives.

The commission would also refer cases falling in the grey area, whereby there is no clear issue of determining the jurisdiction between the judiciary and the NLC, to the Chief Justice.

However, if during the proceeding of a sale-purchase or inheritance case, the issue of thram, cadastral records or other area occupied on land arises, then the respective court should forward such a case to the commission.

According to the Land Act 2007, any discrepancy relating to thram, cadastral records or the area occupied on the ground is required to be resolved by the commission by constituting an investigation committee whereby jurisdiction of the courts to accept such cases at the first instance is ousted.

Before the Land Act 2007, courts dealt all land cases as per the Thrimzhung Chenmo and the Land Act of Bhutan 1979. The Thrimzhung Chenmo’s section Ka 1-3 stated that only the courts could execute the registration, change and cancellation of the thram.

The Land Act 1979 stated that every transaction of transfer of ownership, cancellation of registration, and new registration among others being recorded in the thram was first thoroughly investigated by the courts.

One of the main reasons to amend the Land Act 1979 was founded on the perceived mismanagement of land related cases by the judiciary and also to avoid lengthy court procedures.

The legislative intent of the Land Act 2007 was to ouster authority from the judiciary and vest the same with the Land Commission.

Following the amendment, the courts refused to accept land related case as the new act had given the mandate to the commission. However, the NLC had confusions over the legality of its SDC, difficulties in summoning parties, and over the administrative nature of its SDC’s decisions, among others.

This left people running between the courts and the commission for redressal of their grievances.

The courts across the country have registered 6,236 land related cases as of March this year according to figures from the Supreme Court.

By Tshering Palden

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