3 May 2020

Mr. Richard Howard

Director
ILO Country office for Nepal
Dhobghat, Nayabato, Lalitpur
Nepal

Subject: For your immediate attention and response to violations of the rights of indigenous Newa
community in Thamel under the Indigenous and Tribal Peoples Convention, 1989 (C169) of the
International Labour Organization

We, the undersigned campaign, would like to draw your immediate attention to the encroachment of
traditional lands of indigenous Newa community in Kathmandu’s tourist district of Thamel due to
construction of a mega business complex named Chaya Center. Besides grave violation of their land
rights, the complex has also infringed the cultural rights of the community as the holy pond and
surrounding areas that used to be where the complex currently stands were intrinsically connected to
their cultural heritage and traditions.

Chhaya Center or Chhaya Devi Complex built over an area of 86,000 sq. ft. has been promoted as the
biggest business complex in Nepal’s history. It houses 200 retail stores, including high-end brand outlets,
multiplex theatres, corporate offices, banquet and conference halls, casino, discotheque, etc., as well as
a five-star hotel Aloft Kathmandu Thamel of the Marriott International1 in its fifth to fifteenth floors. The
land where the complex stands was historically a holy pond called Paleswa Pukhu in Nepalbhasa (Newar
language), translated in Nepali as Kamal Pokhari, and surrounding wells and other structures in its banks.
Over 12 ropani2 of land, including the heritage site of Kamalpokhari, was traditionally owned and used
by Shree Singhsartha Bahu Garun Bhagwan Guthi3 and its members composed of local Pradhan (a sub-
ethnic group within indigenous Newa people) community of nearby-situated Thanbahil (also known as
Bikramsheel or Dharmadhatuu Mahavihar and Rajvihar) monastery. That has now been acquired by the
Chhaya Devi Complex Pvt. Ltd. run by influential businesspeople through a series of encroachments,
abuse of authority of officials and illegitimate land transactions.

The pond was constructed by some tantric method to perform the puja and other festival and rites of
Thabahil monastery. It is believed that the pond was constructed with wells on the four sides and center
part of the pond. Lotus flower was grown in the pond which was used for offering to the deities of the
monastery. The water of the pond was also used to bathe the god of the monastery and the leaves of
the lotus were used while offering variety of food to god. Local Pradhans also used to perform their
death rituals, festival as well as other religious and cultural activities. Guthi members of the monastery

1
See https://www.spotlightnepal.com/2019/07/24/marriott-international-announces-opening-aloft-kathmandu/
2
Ropani is a local unit of measurement of land in Nepal, whereby 1 ropani = 5,476 square feet (sq. ft.)
3
Guthi is a unique system that exists among Newar communities in Nepal, which manages all forms of social, religious,
cultural and other rituals of the communities. The particular aspect of Guthi is the land endowments kept for specific socio-
cultural and religious sites or purposes such as for management and repair of temples or performing rituals.
used to conserve the pond and its surroundings, to perform the puja and other festival and rites of the
monastery.

Attempts to encroach more than thousand-year-old Kamal Pokhari and its surrounding lands dates back
more than a century ago. During the rule of then Prime Minister Chandra Shumsher under the dictatorial
Rana oligarchy, Keshar Shumsher Rana, son of a then general, forcefully annexed the pond in the
compound of his palace Keshar Mahal while the local Pradhans were given limited access to the pond. A
small amount of money was paid to the monastery for the use of the pond and land in its banks, which
the Guthi was forced to tolerate. Idols and structures of various gods and deities in the banks of the pond
were moved. The tradition of using water and lotus flower from the pond for daily worship at the
monastery was discontinued and a stone nearby was used as the site for death rites.4

After Keshar Shumsher, his son Keyur Shumsher was also active in encroaching upon the land. He
unlawfully got the land of the pond and its banks under his tenancy ownership through abuse of
authority and by conniving with government officials. As a result, the land dispute has been in and out
of the courts since 1970. In 1987, the government registered the public lands in Thamel,
including Kamalpokhari (plot number 167), area under its name. Three years later, Keyur Shumsher’s
wife Ambika Rana was able to register the same plot in her name and that of her brother Shankar Prasad
Shah through Guthi Raitani (Guthi land converted to private ownership). This move was widely criticized
by the public, forcing the Guthi Sansthan (Corporation) to rectify matters. Rana and Shah were called
upon to take their money back and free up the land. The two instead took the Guthi Sansthan to court,
but they lost. Six years later, the courts reopened the files and ruled in favor of Rana and Shah. This
decision was also widely condemned. Members of the local Shree Singhsartha Bahu Garun Bhagwan
Guthi appealed at district court to free the land again. They named as defendants not only Rana and
Shah but also several Guthi members, who were allegedly ‘bribed’ by the duo. In 2005, the two sides
compromised in the court. This facilitated illegal transactions in the public land and resulted in private
possession. Following number of fragmentation and transfers of ownership of the land, the land was
brought under private ownership of the company in 2008 and approval for construction of the business
complex was acquired in 2013.

In 2012, the land dispute was in court once again when Bhagabat Narshing Pradhan and five others filed
a case at the Kathmandu district court to review the earlier decision. But the district court and then the
appellate court ruled against them, which they appealed against in the Supreme Court. With support of
rights advocates, locals also filed a public interest litigation in the Supreme Court against the Chhaya
Center, local officials and the concerned government authorities in 2014. The Supreme Court however
did not issue an interim order to halt the construction of the complex as requested in the petition that
claimed violation of the right to religion and cultural rights as well as other constitutional rights of the
local Pradhans, along with infringement of different national laws due to the construction.5

4
For more historical records, including locals’ testimonies, see https://myrepublica.nagariknetwork.com/news/how-
kamalpokhari-land-morphed-into-chhaya-center/
5
See https://www.ncard.org.np/newsdetail/communication-to-un-experts-on-thamel-chhaya-center.html
In 2017, nonetheless, the apex court vindicated the appellants and faulted the earlier decisions that
favored Ambika Rana. The court found that the transfer of Guthi lands to private ownership was against
the provisions of Guthi Corporation Act, 1976, which could be annulled at any time as per the Land
Revenue Act, 1978 and thus decided to re-examine the case. However, when the court asked the land
revenue office for all original papers related to the land, the latter stated that the papers could not be
found even after intense searches. It is suspected that the documents have been deliberately missed as
they would have exposed shenanigans behind the privatization of the land. It is clear that the ‘land grab’
has pitted the locals and general public concerned about preservation of cultural heritage against some
influential families, that has received significant media attention recently with publication of
investigative reports connecting those business families in the Chhaya Center.6 As a result, many of them
have been fearful to speak against the construction of the complex due to the strong influence of the
investors in political circles.7

On the other hand, while the case has been sub-judice at the Supreme Court, the construction of the
complex has been rushed and eventually completed, and it was officially opened in 2018. Despite the
favorable court ruling in 2017, the following court process has been sluggish with hearings postponed
repeatedly. Recently, in February 2019, the Chhaya Devi Complex officials in a press conference have
made false claims that the land where the complex stands was never a historical or traditional pond
owned and used by the monastery, but a recreational pond established by Chandra Shumsher. They also
maintained that the lands of the pond and its banks were transferred to private ownership after
obtaining tenancy rights. Locals of Thamel along with rights activists have been organizing various
gatherings, protests and demonstrations against the illegal encroachment of the Guthi lands of the
Kamal Pokhari and its banks over the years. They have been awaiting the Supreme Court verdict for
almost more than half a decade now to revive the historical pond and its surrounding areas replaced by
the Chhaya Center. Complaints submitted to the National Human Rights Commission and Commission
for the Investigation of Abuse of Authority on the issue also did not produce any result for the
community. In 2015, UN Special Rapporteurs on the rights of indigenous peoples and in the field of
cultural rights were also apprised of the matter.8

In above context, construction of the Chhaya Center gravely violates the rights of indigenous Newa
community of Thabahil guaranteed in international human rights law, including the ILO Convention 169.
Article 5(a) of the convention affirms that ‘the social, cultural, religious and spiritual values and practice
of [indigenous] peoples shall be recognized and protected, and due account shall be taken of the nature
of the problems which face them both as groups and as individuals.’ Article 5(b) states that ‘the integrity
of the values, practice and institution of these peoples shall be respected.’ Further Article 14(1) affirms
that ‘the rights of ownership and possession of the peoples concerned over the lands which they
traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to
safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which
they have traditionally had access for their subsistence and traditional activities.’ Article 14(2) requires

6
For more information on the more than a century old battle of locals in relation to Chhaya Center and connections with
various business families in it, see https://myrepublica.nagariknetwork.com/news/117-year-battle-to-save-thamel-s-
kamalpokhari/. The link also includes picture records.
7
Supra note 5
8
Supra note 5
Nepal’s government to ‘take steps as necessary to identify the lands which the peoples concerned
traditionally occupy, and to guarantee effective protection of their right of ownership and possession’.
Article 14 (3) states that “adequate procedure shall be established within the national legal system to
resolve lands claims by the peoples concerned.’ Also, Article 16(1) states that ‘the people concerned
shall not be removed from the lands which they occupy’ and Article 16(3) provides that ‘whenever
possible, these people shall have the right to return to their traditional lands, as soon as the grounds for
relocation cease to exist.’

The Government of Nepal has clearly failed to safeguard the above-mentioned rights of the indigenous
Newa community of Thabahil guaranteed under the ILO Convention 169 in the context of the
construction and running of the Chhaya Center in the lands of Kamal Pokhari and surrounding areas that
held social, cultural and religious values for the community but was illegitimately encroached and
grabbed over more than a century. As provided under the Convention, the rights of ownership and
possession of the indigenous Newa community should be recognized over the lands and their land claims
should be resolved to return the lands to them. Similarly, the Government is also infringing on the rights
of indigenous Newar communities of Khokana and Bungamati guaranteed under the UN Declaration on
the Rights of Indigenous Peoples (UNDRIP). Hence, we have also informed the UN Country Team calling
for their appropriate actions on this matter.

We thus hereby ask your prestigious institution to take the matter in this letter for serious consideration
and take appropriate actions under your mandate, including to draw the attention of the Government
of Nepal regarding violations of the ILO Convention 169, for promotion and protection of the rights of
indigenous Newa community in Thamel. We further invite your office to come for a field visit to the
affected communities in Thabahil. We expect for timely and decisive actions from your office before
indigenous Newa community in the area suffers further harms.

We remain available to respond to any further inquiries you may have as needed. For further, details we
have also attached the latest press release (in Nepali) that we published in relation to the situation in
January 2020.

Sincerely,

Prem Raj Shilpakar

7d]nl:yt k'/ftflTjs sdnkf]v/L k'g::yfkgf cleofg (Campaign to Restore Archaeological Kamal Pokhari in
Thamel)