The campaign of Mayor Balen Shah to demolish unauthorized structures inside the Kathmandu Metropolitan City (KMC) is against the KMC’s own working procedure.
The campaign that has seen unauthorized structures built in commercial complexes including Kathmandu Mall, Alfa Beta Complex and others have been widely lauded by the general public. But it has violated the working procedure about building construction implemented by the KMC in August 2018.
Clause six of the working procedure specifies the process for taking action against unauthorized structures including those built without passing the design or tinkering with the passed design or the design that is under process of being passed. The KMC should first determine whether the structure is against the standard and code related to building construction and then submit that to the mayor for hearing.
Action can be taken in a way to fine the owner of the structure or demolish a certain part of the building with the mayor judiciously using her wisdom based on the technical report and arguments of the owner of such buildings.
The working procedure incorporates the basic tenet of judicial process to ensure that nobody is meted with injustice, and those who have erred knowingly or unknowingly also get an opportunity for self-defense.
The law and the court provide an opportunity for self-defense for even those accused of the gravest crime of murder.
Mayor Shah seems to have utter disregard for due process and has gone to demolish unauthorized structures with excavators in tow after issuing a 35-day notice without giving opportunity for self-defense to those who have built unauthorized structures.
This violation of due process has not just denied the house owners an opportunity for self-defense but has also hit those doing business by renting such structures hard.
“We have run a shop paying rent. We don’t know whether the landlord has violated laws or not. Our shop is lost when you suddenly demolish it. Where should we go then? Please don’t do this on the eve of Dashain. This is the best time for business in the whole year. I will myself remove the shop after that,” a woman selling bags in a shop at Kathmandu pleaded with Shah when he reached there with excavators on Wednesday.
He pointed that he has already issued a 35-day notice and the law applies equally on everyone.
How would the woman know about the notice published by the KMC? All the house owners also may not necessarily know about the notice published in a certain newspaper. Shah has stated that the KMC cannot send individual notice to all 250,000 houses in Kathmandu. Shah repeated the argument even to owner of Alpha Beta Complex in Naya Baneshwore on Thursday.
But it is equally irrational to expect owners of all those 250,000 houses to check all the newspapers every day to see whether the KMC has issued any notice.
The KMC should at least have followed its own working procedure.
The public notice issued by the KMC almost 40 days back also isn’t complete and does not include everything. The notice only asks to remove any structure built in the space allotted for parking in the design and used for other purpose. It warns that the violators will be denied KMC’s services and will be punished as per regulations.
Mayor Shah’s personal secretary Bhup Dev Shah could not specify the law, regulation or working procedure the 35-day notice was based on and asked Setopati to contact legal director of the KMC for that.
Chief of the Law, Justice and Human Rights Department of KMC and its Information Officer Basanta Acharya told Setopati that the notice was issued focusing only on parking areas and could not give clear answer when asked why the working procedure for building construction was not followed.
The 35-day notice about parking space does not apply on the structures in the outer part of Kathmandu Mall demolished on Wednesday and the structure demolished at Alpha Beta Complex on Thursday.
Administrative Officer of KMC Lok Nath Paudel also could not specify the clear legal provision for that. He repeated the same arguments of Shah and Acharya. He pointed that the person to order removal of unauthorized structures was KMC mayor and opined that it would be inappropriate to raise questions about the order issued by the mayor.
