INTRODUCTION

General Concept:
What is Administration:
ADMINISTRATIVE LAW • Administration refers to the group of individuals who are in charge of creating and
enforcing rules and regulations, or those in leadership positions who complete important
UNIT 1 tasks. And it is the act of managing duties, responsibilities, or rules.
What is Administrative Law:
• Administrative Law is the compilation of general principles that directs or controls the
use of public authorities.
• Administrative Law is that branch of public law which deals with the organization and
powers of administrative and quasi administrative agencies and prescribes the principles
and rules by which official action is reached and reviewed in relation to individual liberty
and freedom.

• The Administrative law manages division and composition of powers of various Definitions by different scholars:
organs of organization, the framework that the administrative authorities and Jain and Jain: Administrative Law deals with the structure, powers, and function of
specialists will follow in the workings of their power and the different methods of the organs of administration, the limits of their powers, the methods and procedure
control including especially legal review over the various types of powers followed by them in exercising their powers and functions, the method by which their
practiced by the administrative authorities. powers controlled including the legal remedies available to a person against them
• It is essentially concerned with the practical application of law. when his rights are infringed by their operation.
• It deals with the power, especially quasi-judicial and quasi-legislative of C.K. Takwani: Defines administrative Law as a branch of Constitutional Law which
administrative authorities alongside their official executive powers and control. analyzes the function, duty, and rights of administrative officials. It determines the
working method and procedure for operating administrative action and remedies to an
• The chief purpose of administrative Law is the operation and control of
aggrieved person when his/her rights are affected by any action of such authorities.
administrative authorities.

• There are diverse definitions and notions of administrative law, but there remain
some keys aspects that are a common point between all the interpretations. These
are: firstly, it is concerned with the manner of exercising governmental powers What type of questions, the Administrative Law deals with?
and secondly, that any definition of administrative law needs to focus on the basis 1. What sort of powers does the administrative exercise?
of function or a substantial purpose for which it exists, for example, the control of
governmental powers. 2. What are the limits of such powers?
3. What procedures does it have to follow in exercising those powers?
4. What are the ways to keep the administration within the above limits?
5. What remedies are available to an individual against the illegal actions of the
administration?
Fundamental Differences between Constitutional Why Administrative Law?
Law and Administrative Law:
Constitutional Law Administrative Law

Supreme law of the land Subordinate law • To keep the authority within the boundary of its limitations.
Determines the structure and broad framework of the Determines the functions of administrative organs. • To ensure neutrality and impartiality in administrative action.
state. (Structural) (Functional) • To make decisions based on law and with sufficient reasons.
• To ensure the reasonable use of discretionary power.
Determines the governance system Determines administrative system • To make the administrative agencies accountable.
• To protect the rights of citizens by providing a remedy.
Establishes state organs and defines their interrelations Establishes administrative units, determines the power, • To ensure the rule of law.
duty, and limitations of administrative agencies and its
officials
• To establish good governance.

Three theories

Introduced in 1948 A.D. and later acknowledged by countries under Common Legal
System. 2. Green Light Theory:
1. Red Light Theory: • Being driven by the utilitarian theory associated with Jeremy Bentham and John
• When public bodies or executive authorities exceed their powers, judicial intervention Stuart Mill, this theory asserts that the greatest good for the greatest number in a state
works as a sanction. can be attained by encouraging state contribution with lesser control or intervention.
• Used as an effective mechanism for check and balance in a state system. • The main concern of this theory is to reduce the influence of courts over
administration.
• Because Courts are the primary weapon for protection of the citizen.
• This theory prefers democratic form of accountability.
• It advocates for an interventionist standpoint by the courts to the review of
administrative decisions. • When administrative bodies are committing lawful actions, then checking by court is
a questionable activity.

Nature of Administrative Law

3. Amber Light Theory:

• Administrative law is a branch of public law.
• This theory maintains that administrative law should apply the positive elements of both
the theories. • Administrative Law’s nature is based on the welfare state.
• It believes that there must be a balance between both external as well as internal • Its nature is not like that of property law or contract law. It includes statute law,
controlling mechanisms for effective administration. administrative rule-making, precedent, customs and administrative directions etc.
• It combines the necessity for some control over administrative decisions with concern • Its nature looks like something reconciliation because it reconciles liberty with
for setting good standards of administrative conduct, effective decision-taking, power.
accountability and human rights. • It is like state machinery and controlling mechanism in nature.
• It has a close association with both theories however it does not support the existence of
any one theory in isolation.
 Growth and Development of Scope of Administrative Law
Administrative Law
• After the mid of 20th century, administrative law is considered a separate branch of law. • Administrative institutions and their functions, rights, duties and limitations.
• Role and functions of state have undergone an extreme alternation. • Interrelation among state organs
• As the role of a welfare state increased, administrative law gradually expanded with the • Balance between power and right
concept of ‘Rule of Law’, ‘Check and Balance’ and ‘Decentralization’ or ‘Separation of
Power’. • Judicial Review
• The negative policy of maintaining ‘law and order’ and of ‘laissez fair’ is given up. • Remedies on violation of rights
• Formulation of acts, rules and regulations to regulate the action and procedure of state • Perform state’s executive function(issuance of citizenship certificate, security
bodies. management); legislative function(delegated legislation); judicial function(as a
quasi-judicial bodies).

Sources of Administrative Law

We also have to study the scope of administrative law through:

(1). POSDCORB View (2). Subject Matter View [Link]
1. POSDCORB View: (Formulated by Luther Gullick) [Link] made statutes
• P- Planning [Link] made law
• O- Organizing [Link] proclamation/announcement/declarations
• S- Staffing
[Link] practices and experiences
• D- Directing
[Link]
• C- Co-ordination
• R- Reporting
[Link] of the Committees
• B- Budgeting [Link] and publications of scholars
2. Subject Matter View: Focus on the different specific parts of administration in every sector of state. Like;
Administrative organization of education and army have different operating system.

Rule of Law Origin of the concept of Rule of Law

General concepts:
• Aristotle, Greek philosopher, simply talked about Rule of Law as “the constitution,
• The term “Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the moderates the rule of men, and also that the rule of men moderates the rule of law,
principle of legality) including the constitution.” But he concludes with ‘law should be the final sovereign’.
• The phrase Rule of Law literally means that the law should rule. • Magna Carta of 1215, was the first written document compelling an English King to act
• A government of laws not men. according to Rule of Law. It limited the king’s power.
• Law is superior to any other rule or ruler. • In 13th century, Bracton, a judge in reign of Henry III, introduced the concept of Rule of
• The term ‘Rule of Law’ does not provide anything about how the laws are, or anything Law without naming it as Rule of Law. He wrote: “The king himself ought to be the
specific like the Fundamental Rights or Directive principles or Equality etc. but it provides subject to God and the law, because law makes him king”.
for two basic concepts that is; Law must be obeyed by the people and that the law must be • Edward Coke, British Jurist and Politician, is said to be the originator of concept of Rule
made in such a way that it is able to guide the behavior of its subjects. of Law when he said that the king must be under God and Law and thus released the
supremacy of law from the ambitions of the executives.
 Contribution of Dicey on Rule of Law Dicey’s Theory of Rule of Law

1. Absence of Arbitrary Power or Supremacy of Law:

• Beside all these, the credit for developing the concept of Rule of Law goes to
Professor A.V. Dicey who in his classic book “Introduction to the Study of the Law of • No man is punishable or can be lawfully made to suffer in body or goods except for a
the Constitution”, published in the year 1885, tried developing the concept of Rule of distinct breach of law established in the ordinary legal manner before the ordinary courts
Law. of the land.
• Established the fact that law is absolutely supreme and it excludes the existence of 2. Equality before Law
arbitrariness in any form because where there is scope discretion there is room for • Equality of Law or equal subjection of all classes of people to the ordinary law of land. In
arbitrariness. this sense rule of law conveys that no man is above the law.
• He held that every man, whatever be his rank or condition, is subject to the ordinary 3. Constitution is the result of the ordinary law of the land:
law of the realm and amenable to the jurisdiction of the ordinary tribunals. • The general principles of constitutions are the results of judicial decisions determining the
rights of the persons in particular cases brought before the courts.

Criticism Principle of Rule of Law

• Dicey did not realized the fact that even in the above mentioned principles, there would be 1. Accessible and predictable
the abuse of power and misuse of authority in the maximum level.
2. Law must be published
• He is against the arbitrariness and discretionary powers of the public servants or
government. But this principle does not work in the modern era because the responsibility 3. Law must be prospective
and domain of the state has enlarged and widened, 4. Protection of fundamental rights
• In due regard or in view of powers and jurisdiction, C.D.O. and Secretary are not equal 5. Equal application of law
before law. the common people are not vested any authority and power in comparison to 6. Fair justice without delay
any administrative authority. A legal suit can not be made against the ambassadors and
diplomats in host countries. Their case are heard in special courts not in ordinary courts. 7. Legal questions should be determined according to law
• In the countries having written constitution like Nepal and India, where the ordinary laws 8. Avoid contradictory laws
do not result a constitution. Constitution remains a fundamental law of land there.

Basic elements of Rule of Law Attempts to promote Rule of Law

• Equality • The Conference of the International Commission of Jurists held in New Delhi promoted
the concept of law through four committees, (Delhi Declaration, 1959):
• Equity
1. The first committee was concerned with the legislature and rule of law. It was of the
• Periodic election opinion that the law should not be made in a way that it would harm the rights of the
• Democracy people
• Human rights 2. The second committee was concerned with the executive and the rule of law, which
• Good governance advocated for an effective government that would improve socio-economic conditions
and maintains law and order
• Constraints on government power
3. The third committee dealt with ‘criminal procedure and the rule of law’, which covered
• Separation of power issues such as the presumption of innocence, control over arbitrary arrest and detention,
• Civil and criminal justice the right to legal advice, fair hearings, the collecting of witnesses and evidence, open
hearing and the right to appeal
 Nepalese Practice of Rule of Law

4. The fourth committee emphasized the independence of the judiciary. The committee Development through different era:
covered issues related to the security of judges’ tenure, the judiciary free from the
• Kirat Era: “Mundhum” written by Iman Singh Chemjong helped to sketch the Law
interference of the legislature and the executive, and the process of appointment and
retirement of the judges. existed in the then society.
• Chicago Conference of 2014: (Three main themes) • Lichhchavi Period: ‘Golden Era’ in the history of Nepal
1. Conceptual issues around the concept of the rule of law • Malla Period:‘Narad Smrities’ and ‘Manab Nyayashastra’ of 1437 codified in the time of
Jayasthiti Malla; In the time of Pratap Malla, to be proved, the accused as well as the
2. Efforts to measure the rule of law judge had to touch the genital organ of the ‘Kotilingeshwor Mahadev’.
3. Practical issues related to rule of law implementation, including the relationship of • Shah Period: There was the provisions of different oral and written laws in organized
theory to practice manner.

Court Verdicts on Rule of Law

• The National Code of 1910 B.S.: the first codified legal document • Reena Bajracharya vs. Secretariat of the Council of Ministers, 2057
• The New National Code of 2020 B.S.: It was single comprehensive code that • Sabina Damai vs. Secretariat of the Council of Ministers, 2067
includes criminal and civil code along with the code of procedures of Nepal • Meera Dhungana vs. Secretariat of the Council of Ministers, 2052
• Constitutions of different era
• The National Civil Procedure (Code) Act, 2074
• The National Criminal Procedure (Code) Act, 2074
• Court Practices

Challenges and problems

• Complexity in the implementation of the constitutional system • Culture of breaking the law
• The transitional phase is not yet over • Politically guided civil society
• Failure to implement fundamental rights • Weak service delivery
• Lack of accountability and transparency • Lack of equitable distribution of resources lack in the implementation of courts orders
• Lack of easy access to justice • Allegations regarding arbitrariness in the use of state power
• Lack of modernization of law • Slow and costly administration of justice
• Lack of effective implementation of law • Indicators of good governance are weak etc.
• Lack of public ownership and participation in the law-making process
 Separation of Powers and Check and
Balance
• Montesquieu has clarified the separation of powers basically in the following
bases:
General Concept:
1. Out of the three organs of government, one person should not be associated with
• The term “Separation of Power” was coined by Montesquieu, in 18th century more than one of the three organs
• Separation of Powers refers to the division of government responsibilities into distinct 2. One organ of the government should not control or interfere in the activities of
branches to limit any one branch from exercising the core functions of another another organ
• Division of state function into three: (1) Legislative; (2)Executive and (3) Judiciary. 3. One organ of the government should not carry out the functions of another organ
• Check and Balance is the essential tool to control the power of these three organs
• It is an effective tool to convert the power of the state in different entities and check the
abuse of power

Practical Application of Separation of

Power in different countries
• In USA, legislative body is Congress, which shall consist of a Senate and House of • In India, Parliament comprises the President, the Lok Sabha(House of the People) and the
Representatives and it is responsible and authorized for all the legislative powers. Rajya Sabha(Council if the States). The various States also have their respective legislatures, the
Legislative Assembly(Vidhan Sabha) and the Legisaltive Council(Vidhan Parisad) in a few
• All executive powers are vested in a President States. The cardinal functions of legislature include overseeing of administration; passing
• Judicial powers are vested in Supreme Court of USA and such other court as Congress provides budget; power to initiate amendments in the Constitution; other development plans.
for • President as the Head of the State is the Constitutional executive head but the executive powers
• From the practical approach, we can say that in USA, there are interferences of one organ of are vested in Prime Minister as Head of the Government
government into another. For an example: • Judicial powers are vested in Supreme Court, High Courts and Subordinate Courts.
I. A bill passed by the Congress may be vetoed by President in exercise of his legislative power. • Judiciary also performs the administrative actions while formulating the regulations and
II. President has power to make treaty but it is not applied unless approved by the Senate. giving guidance for the subordinate court as well as perform legislative powers by framing
III. The Supreme Court has power to declare the laws made by Congress as unconstitutional. the rules regulating their own procedure.
• In India, there is more application of check and balance than separation of power.

• In United Kingdom, the legislature, Parliament, comprises the Crown, the House of • In Nepal, Parliamentary System of governance has been adopted.
Lords(upper house) and House of Commons(lower house).
• In the context of Nepalese Constitutional provisions, the concept of Separation of
• The executive comprises the Crown and the Government, including the Prime Minister and Power and Check and balance is apparently weaker at the local level compared to the
the Cabinet ministers. federal and provincial levels.
• The Judiciary, enforce the law through their interpretation of legislation • The President has been given the principle duty of abiding by and protecting the
• The separation of power in UK is somewhat unclear but the system of check and balance is Constitution.
effective. For example, the Courts can review delegated Legislation to see it is ultra vires, • In Nepal, the present constitution has made a bicameral federal legislature and
thus checking the Executive. The Executive appoints the judges by advising the Queen on unicameral provincial legislatures and have granted law-making powers to the
their appointment. The House of Lords acts as both a Legislative and Judiciary body. federation, provinces and the local level
 Concepts
What is Government?
• Black’s Law Dictionary:
1. The structure of principles and rules determining how a state
Administrative Functions organization is regulated.
2. The sovereign power in nation or state.
Unit 2
3. An organization through which a body of people exercises
political authority, the machinery by which sovereign power is
expressed.

Legislature Executive
• The formation and authority of the executive are relative to the form of governance
• Legislature is a group of people’s representatives adopted by the state.
• The relationship between the legislature and executive differs on the basis of the • In the Presidential system, president uses executive power.
governance system, i.e; parliamentary or presidential system
• The government does not have to acquire a vote of confidence from the legislature
• The legislature is either unicameral or bicameral.
• However, the President can be impeached in case of breach of constitutional provision
• In Nepal, the present constitution has made a bicameral federal legislature and
unicameral provincial legislatures and have granted law-making powers to the • In a Parliamentary System, the citizens elect their representatives as member of parliament
federation, provinces and the local level and the person who commands the majority of the Parliament is appointed as Prime
Minister
• Major functions: to represent the people; to make laws; to put check and control on the
state treasury; to put a watch over the actions of the government; to accept the budget; • Major function: to execute the law effectively; to maintain peace and order; to distribute
public service effectively; to protect the right of the citizens; etc.

Judiciary Quasi-Judicial Bodies

• When an administrative action partakes of some judicial characteristics, it is characterized
as ‘Quasi-Judicial’.
• Administrative authorities act either in an administrative manner or a quasi-judicial manner
• The Judiciary must have structural independence, functional independence but never in judicial manner
and environmental independence • Ordinarily, it is said that if the statute imposes either expressly or by necessary implication
• Regular responsibility of interpreting the law an obligation to act judicially, the authority acts in a quasi-judicial manner
• The independent judiciary is an important element of constitutionalism • Whether an authority acts in a quasi-judicial or administrative capacity depends on the
• Major functions: to interpret laws; to protect the constitutions; to enforce scope and effect of the power conferred by the statute and/or the rules
the rights of the citizens; to promote the rule of law; to limit the actions of • Some examples of quasi-judicial bodies of Nepal are: Home Affairs Administration(Chief
the government through judicial process; etc District Office); Land Administration(Office of Land Revenue); Office of Land
Reform(Guthi Corporation); Forest Administration(National Park and Wildlife
Preservation Office); etc.
 Need of Classification of Classification of Administrative Actions
Administrative Actions
• in 21st century, various functions are performed by administrative entities so much so Administrative action can be classified into three groups:
that the administrative process cuts across the traditional bounds of classification and
combines into one, the powers exercised by all the organs, i.e; legislature, executive and 1. Rule-making Function or Quasi-legislative Function
judiciary.
2. Decision-making Function or Quasi-judicial Function
• Classification of Administrative action is necessary to determine the scope of effect of
judicial and legislative powers on administrative actions. 3. Rule-application Function or Purely Administrative Function
• It is essential to classify the administrative actions as many consequences flow from it.
For an example; if an executive authority exercises judicial or quasi-judicial functions, it
must confirm with the principles of natural justice or amenable to certiorari or
prohibition.
• It is therefore, necessary to determine what type of function, the administrative authority
performs.

Rule-making Function or Quasi-legislative Decision-making Function or Quasi-

judicial Function
• Administrative decision making may be defined as a power to perform acts administrative in
Function nature but requiring some judicial characteristics
• We know, Legislature is the law-making branch of the State. • Those types of function which are to be carried by the administrative authorities using their
• When any administrative body exercises the law-making power delegated to it, conscience.
it is known as rule-making action of the administration or quasi-legislative • The Quasi-judicial involves elements like: Presentation of the case; ascertainment of
action. evidence and submission of legal arguments.
• When an instrument of a legislative nature is made by way of delegated • Most often the dividing line between an administrative power and quasi-judicial power is
powers, it is called subordinate legislation, being subordinate in the sense that quite thin and it is not necessary to classify an action of the administrative authority as
the powers of the authority are limited by the statute which conferred these quasi-judicial or administrative because the administrative authority is bound to follow the
powers. principles of natural justice in any case
• Quasi-legislative action is the function of subordinate legislation-making rules • In Nepal too, the quasi-judicial authorities like Land Reform Officer and Chief District
and regulations. Officer also hear the complaints and separate suits they hear so far.
• The main features are: (I) Generality, (II) Prospective, (III) Public Interest, and • According to I.P. Masey: Administrative decision making may be defined as a power to
(IV) Creating Rights and Obligations. perform acts administrative in character but requiring incidentally same characteristics of
judicial tradition.

Rule-application Function or Purely Functional Interrelationship among the State

Administrative Function
Organs
• Administrative functions are those which are neither legislative nor judicial
1. Legislative Function of the Executive
• An administrative act includes the adoption of a policy, the making and issue of
specific directions and the application of a general rule to a particular case in 2. Judicial Function of the Executive
accordance with the requirements of policy of expediency or administrative practice
• It has no procedural obligations of collecting evidence and weighing argument, it is 3. Executive Function of Legislature
based on policy and practicality. 4. Judicial Function of Legislature
• Mostly, the principles of natural justice can be ignored completely when the
administrative authority is exercising administrative powers.
5. Executive Function of Judiciary
• But we know, the aim of both administrative inquiry and quasi-judicial inquiry is to
arrive at a just decision. And if a rule of natural justice is calculated to secure justice, to 6. Legislative Function of Judiciary
prevent miscarriage of justice, it’s difficult to see why it should be applicable to quasi-
judicial inquiry and not to administrative inquiry
 Judicial Function of the Executive
Legislative Function of Executive
• Law-making is primarily the function of the legislature • The judicial function performed by the executive authority falls within the
• By the authority provided by delegated legislation, the executive performs the definition of the quasi-judicial function
legislative functions • The executive body within a very specific area of expertize and authority,
• Most of the bills for legislation are introduced and piloted by executive in the performs the judicial function
legislature. The bills passed by the become laws only after these are signed by the • To reduce burden of the regular courts; for specific purpose; to improve
head of the state administrative efficiency; to maintain natural justice and for quick remedy of
• Through ordinance, executive formulates law and such ordinance have the same certain situations, executive body performs judicial functions
effect as an Act of parliament(Article-114)

Executive Function of Legislature Judicial Function of Legislature

• Legislature also exercises executive authority for internal
administration and management of parliament • It can provide decision and punishment in the subject matter of special jurisdiction
• The duties performed by various Parliamentary Committees in • The procedure of impeachment against the constitutional officials on the basis of
exercising the power of inquiry are basically administrative and in their work efficiency, morality and responsibility seem to be of the judicial nature
that respect constitute an exercise by the Legislature of executive
• The judicial proceedings such as, investigation, providing an opportunity for
powers
defense, etc
• The legislative exercises certain other functions that are executive
in nature, such as considering the qualifications of the
government’s nominees for appointment.
• Arranging and distributing administrative functions to local
jurisdiction is another power executive in nature exercised by the
legislation

Executive Function of Judiciary Legislative Function of Judiciary

• The function of managing the administration of the judiciary by • The interpretation of laws by the judiciary amounts to law-making as
the judicial council or judicial service is an executive function these interpretations really define the laws
• Role of judiciary in establishing ‘Good Governance’. Good • The doctrine of ‘precedent’ whereby the legal principles established by
Governance signifies the way an administration improves the the Supreme Court should be followed in other similar cases by the
standard of living of the members of its society by creating and Supreme Court and other courts
making available the basic amenities of life; providing its people • Supreme Court Regulations, High court Regulations, District Court
security; providing opportunities on an equitable basis; etc. regulations, etc. have been introduced which reflects the legislative
• In this case, judiciary plays the main role for implementing and function of the judiciary
enforcing the Human Rights including economic, social and • During the formulation of the laws related to administration of justice,
cultural rights of the people and various laws regarding these. there is involvement of judiciary as a consultant
 Concept
• The development of the legislative powers of the administrative authorities in the
form of the delegated legislation occupies very important place in the study of the
Administrative Law.
Delegated Legislation • One of the most significant developments of the present century is the growth in
the legislative powers of the executives and it has been one of the most debated
Unit 3 issues in the domain of legal theory because of its various implications
• It is the Legislature which grants legislative power to the administration, it is
primarily its responsibility to ensure the power exercise of delegated legislative
power, to supervise and control the actual exercise of this power, and ensure the
danger of its objectionable, abusive and unwarranted use by the administration.

Definition Scope of Delegated Legislation

• Delegated Legislation means the powers given by the legislature to the executive or
administrative bodies to enact certain laws.
• The excessive delegation of power of legislative to the executive or
• When the function of the legislation is entrusted to organs other than the legislature by administrative bodies harms the people’s rights and weakens the
the legislature itself, the legislation made by such organs is known as delegated democratic norms and rule of law.
legislation
• If the legislature confers power subject to certain norms and standard,
• The principle of delegated legislation is that the legislature must lay down the guidelines, then the exercise of the power can be tested in the light of those
the principles of policy for the authority to whom power to make subordinate legislation norms, and any attempt by the delegate to ignore those norms may be
is entrusted checked. So, delegated legislation must not:
• According to M.P. Jain: The term ‘Legislative Delegation’ is used in two senses: 1. Exceed the parent/enabling Act made by the legislature,
(I) Exercise by a subordinate agency of the legislative power delegated to it by the 2. Conflict with the enabling Act, and
legislature, or
3. Alter the necessity, special features, make or policies of the Act.
(II) The subsidiary rules themselves which are made by the subordinate authority in
pursuance of the power conferred on it by the legislature

Factors Leading to the Growth of Delegated

Legislation Limitations on Delegated Legislation
1. Lack of Time of Legislative Body • Constitutional Supremacy
2. Lack of Technicality on the Subject Matter • Principle of Ultra Vires
3. Need of Flexibility in Law • Judicial Review
4. Solution of Emergency Situation
5. Discretion and Preventive Measures
6. Direct Participation of those who are governed
7. Complexity of Modern Administration
 Constitutionality of Delegated Legislation Classification of Delegated Legislation

• Constitutionality of Delegated Legislation means the permissible limits of the Constitution 1. Title Based Classification: (i) Rule; (ii)Regulation; (iii)By-law; (iv)Order; (v)Direction;
of any country within which the legislature, which as the sole repository of law making (iv)Scheme.
power, can validly delegate rule making power to other administrative agencies. 2. Discretion Based Classification: (i) Contingent or Conditional Legislation; (ii)
• In context of Nepal constitutionality test of the delegated legislation is the one of the strong Subordinate Legislation.
mechanism to control the delegated legislation 3. Purpose Based Classification: (i) Power to Remove difficulties; (ii) Taxing Acts; (iii)
• Constitutionality test of the delegated legislation protect the essence of the Constitution i.e Power to fill in Details; (iv) Powers to Prescribe Punishment.
Right to equality; non-discrimination; etc. 4. Authority Based Classification: Authority of Legislature to delegate the power
• Thus, any rule inconsistence with the Constitution will be matter of judicial review. 5. Nature Based Classification: (i) Normal Delegation; (ii) Exceptional Delegation.

Control over Delegated Legislation Cont…

1. Parliamentary Control
(i) Direct General Control 3. Procedural Control
(ii) Direct Special Control (i) Drafting
(iii) Indirect Control (ii) Antenatal or Pre-publicity
2. Judicial Control (iii) Consultation with Experts
(i) Constitutionality of the Parent Law (iv) Postnatal Publicity
(ii) Constitutionality of Delegated Legislation 4. Other Control Mechanisms
(iii) Excessive of Parent Law
(iv) If the Delegated Legislation is Mala Fide

Concept
• The Principle of Natural Justice have great significance in the study of
Administrative Law and characterized as fair administrative procedure
• Procedural safeguard against improper exercise of powers by a public
Natural Justice authority
• Natural sense of what is right or wrong
Unit 4
• Involves a procedural requirement of fairness
• Also called substantive justice or fundamental justice or universal justice
or fair play in action
• Principles of natural justice are not embodied rules and are not codified.
 Nature of Natural Justice Scope of Natural Justice
• It is a law of nature • The scope of Natural law is wider than any other law of the state
• It is simple and elementary • Neutrality and Impartiality
• It is a settled law and no dispute on its principles • Its scope can be determined on the basis of ‘Due Process of Law’ and
• Principles of natural justice are not embodied rules and are not ‘According to Law’
codified. • Its scope depends on the ‘Rule of Law’
• Conscience of what is right and wrong • Cannot be limited within any codified laws
• Judge made law

Limbs of Natural Justice

Importance of Natural Justice
• In the present world, the importance of Natural Justice has been gaining its 1. The Duty to Act Fairly
strength and it is now the essence of any judicial and administrative system 2. The Rule Against Bias
• Principles of natural justice are no doubt, procedural requirements but (i) Application of the Rule Against Bias
ensures a strong safeguard against any judicial or administrative; order or (ii) The test for Bias
action, adversely affecting the substantive rights of the individuals (iii) Modification on Bias
• The term Natural Justice signifies basic principles of justice, which are made 3. Right to be Heard:
available to everyone litigant during trial (a) Prior Notice
• It protect the public rights against arbitrary decisions (b) The opportunity to be Heard
• It allows a person to claim the right to adequate notification of the date, time, (c) Scope of the Rule
place of the hearing as well as detailed notification of the case to be met (d) Legal Representative
(e) Substantive Ultra-vires
(f) To know the Reason of the Decision

Basic Principles of Natural Justice Nemo Judex in Causa Sua or No One Shall be a Judge in his one Case
• The literal meaning of the Latin maxim ‘Nemo Judex in Causa Sua’ is that ‘No One
Shall be a Judge in his one Case’ i.e. to say, the deciding authority must be
• Nemo Judex in Causa Sua or No One Shall be a Judge in his one impartial and without bias.
Case • The fundamental principle of justice is that justice should not only be done but
undoubtedly be seen to be done
• Audi Alteram Partem or No One should be Condemned • To serve this purpose, it is necessary that a person who decides on matter should
not have any substantial interest either in the subject matter to the parties in
unheard dispute
• It implies that no man can act as a judge for a cause in which he has some interest,
may be monetary or otherwise
• It has been laid down as principle of law that pecuniary interest would disqualify a
judge to decide the matter even though it is not proved that the decision was in
anyway affected
• Waiver of Right to question Bias: An allegation of bias if not raised at the proper
time, the right to object will be lost by principle of waiver.
Forms of Bias: Audi Alteram Partem or No One should be Condemned unheard
i. Personal Bias: Arise from friendship, personal or professional • The rule has its origin in the Latin Maxim ‘Audi Alteram Partem’ which
means ‘Hear the other party’.
relationship, personal hostility, personal prejudices
• According to this theory any person whose rights or interest is being
ii. Bias as to subject matter: An extraordinary interest shown by the judge affected should be given reasonable opportunity to defend him.
on subject matter
• Natural Justice requires that the person who is likely to be affected by
iii. Financial Bias: Monetary interest in the subject matter the decision must be heard before a decision is given
iv. Departmental Bias: A person to decide on the subject matter acts upon • This principle includes a reasonable amount of time to be given to a
the dictation from the superior litigant to present his case, a clear statement of the charges made
against him and a favorable environment, in which he may state his
v. Pre-judgement of issues: A person who made a prior statement on the position( In the case of Lalit Ratna Shakya vs Ministry of Forest and
subject matter cannot be a judge on disputes on the same subject matter Soil Conservation)
vi. Combination of different roles: Single person cannot be a complainant • There are mainly two elements of this principle: Notice and Hearing
and judge; judge and witness; judge and enquiry officer • The hearing may be oral or it can be through a written representation

The ingredients of Fair Hearing are:

i. Reasonable Notice
ii. Conduct of Hearing Essential Elements of Reasoned Decision:
iii. Right to Adduce Evidence • Use of judicial mind or conscience
iv. Disclosure of Evidence • Institutional decision or One who decides must hear
v. Cross Examination • Rule against dictation or direction
vi. Right to Legal Representation • Decision post-hast
vii. Absence of legal wrong • Cause of financial incapacity not to attend the enquiry
viii. Reasoned Decision

Exceptions of the Rule of Natural Justice

1. Exclusion in Emergency
2. Exclusion in case of Confidentiality
3. Exclusion in case of purely Administrative matter Quasi Judicial Bodies and
4. Exclusion based on impracticality
5. Exclusion in the case of contractual arrangement Administrative Tribunals
6. Excluded in the Interim Preventive Action Unit 5
7. Exclusion in the cases of legislative action
8. Matters relating to the conduct of military, naval or foreign affairs
9. Aliens
10. Exclusion in case statutory exception or necessity
11. Where no right of the person in infringed
12. Exclusion in the case of government policy
 How Administrative Tribunal differ from quasi Development of quasi judicial bodies and
judicial body tribunals in nepal
 The practice of local justice dispensation, however, is not new for Nepal
Administrative Tribunals are created by statues  Contained the chapter in Muluki Ain 1910 B.S.(Page 110- ‘Adaalat Firadiko’ and
‘Adaalat ra Amaali ko Jhagara’.
Administrative Tribunals are not adhered by strict rules of
 In early times, the administrative bodies like Amal Kot, Panchabhaladmi,
evidence and procedure Amaali, etc. were given the judicial authority
Three members, a Chairperson and other judicial members  Apart from this, the decisions given by trial courts through ‘Dittha’ or ‘Bichari’
Expertized group of decision maker were subjected to an appeal at ‘Badahakim’.
Limited scope  Before 2017B.S., the administrative bodies like Maal, Bajar, Rakam Bandobasta,
Kumari Chowk and Goshwara possessed judicial authority
Perform judicial function
 After the 1990 Constitution and the subsequent Local Self Governance
Formed to deal with specific matters Act(LGOA) 1999, there were local agencies recognized as quasi judicial bodies
Can exercise jurisdiction over defamation and the practice of community mediation, too, gained ground. In recent time,
quasi judicial bodies and tribunals have been developed as alternatives to the
regular courts fro speedy trial and settlement

advantages and disadvantages of quasi

Quasi judicial bodies
 Quasi Judicial Bodies are entities such as an arbitrator or judicial bodies
tribunal board, generally of a public administration agency,
which has power resembling those of a court of law or judge,
and which objectively determine facts and draw conclusions • Advantages: Disadvantages:
from them so as to provide the basis of an official action. Such oLow cost Unnecessary monetary claims
actions are able to remedy a situation or impose legal penalties
and may affect the legal rights, duties, or privileges of specific oSimplicity Lack of smooth performance
parties. oQuick settlement Unfair and imbalanced services
 The concept of quasi judicial implies that the act is not wholly
judicial. It describes only a duty cost on the executive body or oExpert knowledge Most of the decisions are challenged
authority to conform to forms of judicial procedure in oReduction of work load Understaffed and burdened
performing some acts in exercise of its executive power. The
quasi may indicate that it is not acting purely administratively or
that it is acting in a manner in which the judicial tribunal is
expecting to act.

Procedures of quasi judicial bodies

• 1. After the case is registered by a party, the notice(Myad) is send to the other • 2. The authority should grant both the parties, the opportunity to adduce
party. If the other party is outside the country at that time, he/she is given 30 witnesses and other evidences.
days of time to be present at the office, otherwise 15 days for the party who is • 3. The authority, if necessary, may investigate and may ask parties for
inside the country. There must be included the description of the case in that
notice. further evidences.
• Normally, the extra term is not granted in quasi judicial bodies, until and • 4. In case of criminal offences, if the party did not present within time, the
unless he/she prove it. If proved, then extra 7 days is granted for his/her authority may issue arrest warrant. If could not arrest within 7 days of
presence. If the case run for more than one year, then every year he will be issuance of arrest warrant, then can issue extra 30 days of time.
privileged with 7 days. • 5. The authority may not take the party, said involved in the crime, into
• The judicial bodies should settle the case within the term provided by the custody after interrogation. But later on if necessary, may issue the 7 days
government. If not, should request with reasonable ground for the extra term notice to present.
and accordingly, the government may extend the term not exceeding for 6
months. And it may repeat through same process. • 6. The authority shall search and seize any evidential document or any
object those may relate to the case, but in presence of Sub Inspector.
 Quasi judicial bodies in Nepal Judicial committee
 The Constitution mandates the establishment of one judicial committee in each of
Some Quasi Judicial Bodies in Nepal are: the country’s 753 municipalities and rural municipalities
 Headed by deputy mayor at the municipal level and deputy chairperson at the rural
 Municipality municipality, as per Article 217 of Constitution of Nepal, the three-member
 Land Administration(Office of Land Revenue); committee has the mandate to adjudicate, arbitrate and refer cases for mediation at
the local level based on their jurisdiction.
 Home Affairs Administration(Chief District Office);  Similarly, Article 217(2) provides for the election of the other two members of the
 Office of Land Reform(Guthi Corporation); judicial committees from within the village and municipal assemblies.
 Forest Administration(National Park and Wildlife Preservation Office);  As per Section 47(1) of Local Governance Operation Act, 2074(LGOA), judicial
committees have been empowered to settle disputes related to 13 specific matters.
 Labor Administration(Labor and Employment Promotion department); Likewise, as per Section 47(2) in 11 other matters, judicial committees has the right
 Local Bodies Administration to refer cases for mediation.
 The decision can be appealed to district court and subsequently be appealed to
higher courts. In case of arbitration, judicial committees collectively exercise its
jurisdiction, and the opinion of the majority is regarded as the decision of the
committee

Home Affairs Administration(Chief District Office)

Land Administration (Office of Land Revenue)
 Land Revenue Act, 2034(1978)  The District Administration Office is a general administration of
 ‘Land Revenue’ means the land revenue and any other revenue similar thereto
government in each district of Nepal
required to be paid by a land owner to Government of Nepal pursuant to the  The Local Administration Act, 2028(1971)-Section 5
prevailing Nepal Law, and it also includes any fee(penalty) payable for non- payment  The Chief District Officer(the most powerful position in Nepalese
of the land revenue within the time-limit administrative service) is responsible for proper inspection of all the
 Recovery of arrears from Jimidar departments in a district such as health, education, security and all other
 Punishment for causing obstruction and hindrance in recovering and collecting land government offices
revenue  Can mobilize security forces and take other actions like imposing ‘curfew’
 Punishment to a person who register or cultivates governmental or public land order, fixing restricted area, arresting anyone according to law, hearing
 Punishment to a person who submits false details some cases as a quasi-judicial body
 Punishment to a person who cultivates land without approval  Enjoy the authorities provided by more than 90 prevailing acts like; Power
 While taking actions, the in-charge of the Land Office Revenue shall have such
of the CDO to search, seize under Arms and Ammunition Act, 2019; Radio
powers as of the court like; taking statement, issuing summons, procuring Act, 2014
evidences, etc

Guthi Corporation
Office of Land Reform
 The Guthi Corporation Act, 2033
 Land Rules, 2021(1964)
 Guthi Corporation has been established to operate the state trusts in a
 District Land Reform Office systematic manner
 Collect the record(lagat) of the landowner and tenant cultivating the land of  Shall take actions and punish the persons who:
the area under any village Development Committee or Municipality
Who forcibly occupies any house or land belonging to the Corporation or
 Notice to be given by posting in such a place that can be seen by all or also nay temple, inn or shelter without permission of the Corporation
by any other means
Who does not furnish statement or pay land revenue
 After issuing notice, concerned landowner, tenant, adjacent landowner
Who registers Guthi land as Raikar
(Sandhiyar), agent or representatives shall present
Who misappropriate ornaments other properties offered to God, Goddess
 Evidences are examined before any decision are made in particular subject
matter like; partition of the portion of landowner or tenant Who does not perform his/her religious duty
 Forest Administration(National Park and Wildlife Preservation Labor Administration(Labor and Employment Promotion department)
Office)
 National Parks and Wildlife Preservation Act, 2029(1974) and  New Labor Act, 2074(Previous Labor Act, 2048)
Rules, 2030(1974)
 Labor and Employment Policy 2062
 Hunting Rules, 2026
 Provisions relating to Labor Court in Chapter-22 of Labor Act, 2074
 Warden is the officer of the Government of Nepal having major  There are provisions for Complaints, Punishment and Appeals in Chapter-23
responsibility of administration of a National Park or reserves of Labor Act, 2074. According to which: The Department, after conducting
 Needed ‘License’ or ‘Permit’ for any kind of hunting necessary inquiry into the complaint, may impose fine, take a departmental
action carry out necessary work for the settlement of dispute relating to
 The warden shall have the power to adjudicate the cases of the remuneration and benefits to be provided to workers, arises between a labor
offences under the rules. And for other territory, it shall have to provider and a main employer, etc.
the concerned District Forest Controller  Section-165: Any person dissatisfied with the order or decision given by the
Department or Office under this Act or the rules made under this Act may file
an application for appeal in the Labor Court within 35 days of such decision.

Administrative Tribunals
 Bodies outside the hierarchy of the courts dealing with specialized matters,
valuable claims and matters involving the exercise of a discretion Characteristics:
 In pursuance of administrative law, there can arise disputes. These disputes  Administrative Tribunals are the creation of a statute and thus have statutory
require adjudication. There are administrative agencies other than the courts origin
to adjudicate such issues arising in the course of day to day administration  They have some trappings of a court
 The ordinary courts do not have the technical expertise and it becomes quite  They are entrusted with the judicial powers of the State and, thus, perform
dilatory and costly to dispense with cases of administrative nature judicial and quasi-judicial functions, as distinguished from pure administrative
or executive functions
 According to Servai, ‘The development of administrative law in a welfare state
has made administrative tribunals a necessity’.  They are independent and are not subject to any administrative interference
in the discharge of their judicial or quasi-judicial functions
 The Administrative tribunals may be more appropriately defined as especially  They are not bound by strict rules of evidence and procedure
constituted authorities established by law to settle the disputes between the
citizen and administration  Tribunals are not against the court but only a supplement to the court

Advantages Disadvantages
• Elements:
 Flexibility Negation of Rule of Law
 Appointments
 Adequate justice No set procedures
 Status of Office of Tribunal Judiciary
 Less expensive Do not follow any precedents
 Evidence and Procedures
 Headed by experts Experts may not have legal background
 Legal representation
 Relief to Courts
 Decision
 Appeal
Establishment and formation of Tribunal in Nepal  Qualification for being a member:
 Article-152 of The Constitution of Nepal 2072 1. For the Law member: one who is incumbent or is qualified to become a
 Established under respected Acts. Such as: Revenue Tribunal under Revenue judge of the District Court and for Appeal Tribunal one who is incumbent or
Tribunal Act, 2031; Debt Recovery Tribunal under The Act on Recovery of is qualified to become a judge of the High Court
Debts of Banks and Financial Institutions, 2058; etc. 2. For the expert member: at least bachelor’s degree and has gained at least
 The area and headquarters of each tribunal shall be as specified by the seven years of experience in the related field
Government of Nepal from time to time, by a notification in the Nepal Gazette 3. For the account member: at least bachelor’s degree in management and
 Shall consists three members among which: gained (3/7/10 years) experience in the related field
1. Law member  Tenure of five years
2. Expert of particular sector(eg: revenue member; bank member; IT member)
3. Account member

Types of tribunals in nepal Revenue tribunal

 Revenue Tribunal, under the Revenue Tribunal Act, 2031(1974) hear appeals of
 Revenue Tribunal decisions of district level customs, income tax, and value added tax offices.
 Debt Recovery Tribunal and Appeal Tribunal  Each three-member tribunal comprises members from three different disciplines:
law, taxation, and accounts.
 Foreign Employment Tribunal
 The law member chairs the tribunal, and is chosen on the recommendation of the
 Information Technology Tribunal and Appeal Tribunal Judicial Council from among currently serving judges on the Court of Appeals.
Other Types of Courts:  The tribunals reverse or partly reverse a large number of cases in a year, possibly
 Administrative Court due in part to the failure of revenue officers to follow norms or standards when
calculating taxable income. Revenue officials levy taxes to meet annual revenue
 Labor Court targets irrespective of whether their decisions will stand on appeal. In this
 Special Court condition, cases are sent back to the respective revenue offices for disposition by an
ad hoc tax clearance commission — where payables can be negotiated, something
that cannot be done at the tribunals.

Debt Recovery Tribunal and Appeal

Tribunal
 Appeals from the tribunals can be made to the Debt Recovery Appellate Tribunal  The Banks and Financial Institutions face problems in recovery of loans advanced
 Normally, decision of the tribunal is final, but may be appealed to the Supreme by them to individual people or business entities.
Court only if the Supreme Court permits it to appeal to itself as there is a direct legal  So, Debt Recovery Tribunals have been developed as an effective system to
error in any of the following questions: recover the money from borrowers
1. Question of jurisdiction,  DRTs handle the cases in relation to disputed loans above Rs.5 lakhs
2. Question of having not examined the evidence that should have been examined or  Debt Recovery Appellate Tribunals deals with the appeal against the order passed
having examined the evidence that should not have been examined, by the DRTs
3. Question of the violation of the procedural law that must be followed,  Recovery of Debts of Banks and Financial Institution Act, 2058(2002)
4. Questions of serious legal errors.  Cooperatives Act, 2075-Section 82(Debt Recovery Tribunal for cooperative sector)
 Contempt of Tribunal  Each three-member tribunal comprises members from three different disciplines:
 Power to inspect and direct law, banking, and accounts.
 Foreign Employment Tribunal
• Recovery of Debts of Banks and Financial Institution Act, 2058(2002)  Foreign Employment Act, 2064: Chapter-11, Section-64
 Section-14: Functions, duties and jurisdiction  For originally trying and settling cases other than those punishable by
the Department
 Section-15: Filing a petition with tribunal
 Three-member tribunal comprises chairpersonship of the Judge of
 Section-17: Period for trying and settling cases Appellate Court, case trying authority of the labor Court and the First
 Section-19: Appeal Class Officer of Judicial Service recommended by the Judicial Service
 Chapter-4: Procedures of debt recovery Commission with tenure of four years
 The cases to be filed under this Act shall be tried and settled in
accordance with the Summary Procedures Act, 2028(1971)
 A party who is not satisfied with a decision made by the Foreign
Employment Tribunal may make an appeal to the Supreme Court
within 35 days of such decision

Information Technology Tribunal and

Appeal Tribunal Administrative court
 The Electronic Transaction Act, 2063(2008): For controlling the acts of  The Administrative Court is responsible for hearing cases related to the transfer,
unauthorized use of electronic records or of making alternation in such records promotion and dismissal/departmental punishment of civil servants(defined in
through the illegal manner Section -2(c) )
 Provisions Relating to Information Technology Tribunal: Chapter-10  Hearing of those cases(prior to the enactment of the Administrative Courts Act,
 Provisions Relating to Information Technology Appellate Tribunal: Chapter-11 2076) which were running at the Administrative Court constituted under Civil
Service Act 2049, Section-69(has been Dismissed)
 Government of Nepal, in order to initiate the proceedings and adjudicate the
offences concerning computer, shall constitute:  Administrative Court Rules 2051, Section-3
 Each three-member tribunal comprises members from three different  Administrative Courts Act 2076
disciplines: Law, IT, and Accounts/Management.  To reduce the number of appeals to the Supreme Court, the jurisdiction of
Administrative Court has been expanded in the latest Act

 Formation of the Court: Section-3

 Jurisdiction of the Court: Section-7,9
Chairperson: Who is or eligible to be the judge of High Court or from amongst the
 Provisions related to Appeal: Section-12,13
officials who have worked as a Gazette Special Class Officer in judicial service
recommended by Judicial Council and appointed or nominated by the Government of  Ground for Appeal to Supreme Court: Section-16
Nepal,  Contempt of Court: Section-19
Member: a law graduate nominated by the Government of Nepal with at least twenty
years of experience in the field and justice or a person retired as a Gazette Special
Class Officer of Judicial Service, and
Member: a person retired as a Gazette Special Class Officer or a person who has
completed bachelor’s degree and has at least have twenty years of experience in the
field of Public Administration nominated by Government of Nepal
 Labor court
 Formation of Labour Court under Labor Act, 2074: Chapter-22, Section-151 • 4. To inspect any place or workplace related to the dispute,
 Governmental judiciary body responsible for hearing cases related to the labor or • 5. If the application made by any party to the case submitting that it is necessary to
employment related matters and disputes defer the case until any case sub-judice in the Labour Court is finally settled or to
 The Labor Court shall consist of one chairperson and two members: Any sitting judge of continue the same appears to be reasonable, notwithstanding the state of the case,
the High Court or any person having the qualification of becoming a judge of the High to issue an interlocutory order to any party to the case to stop any act for a certain
Court shall be qualified to be the chairperson or member of the labor Court time or give continuity to any act being carried out, with or without fixing a period,
 Powers of Labour Court: Section-153: • 6. To uphold, without or alter any direction, decision or order given by the Office or
1. To examine witness, evidence, the employer,
2. To take the defendant’s statement equal to the note of defense, as per necessity, • 7. The Labour Court shall, in holding the proceeding of and adjudicating the case,
3. To order any party who is not made party or opponent in the case, on the basis of have the powers as mentioned in the case of the matters set forth in this Act or the
application by such party or of the nature of the case, to appear in the course of rules framed under this Act, and the same powers as the District Court may exercise,
hearing, and set as a party to a case if so required, in the case of the other matters.

Special court
 Special Court Act, 2059
 Contempt of Court: Section-154  The Government of Nepal may constitute Special Court, in order to accomplish
the trial and decision of the special types of cases in a expeditious, prompt and
 Power to demand bank guarantee or deposit: Section-155
effective manner. Also hear cases of corruption, money laundering and crime
 Power to order payment of interest: Section-156 against the state
 High Court to perform functions of Labour Court: Section-158  Crime Against State and Punishment Act, 2046
 To forward the matter to the body having jurisdiction: Section-159  Commission for the Investigation of Abuse of Authority Act, 2048
 Appeal to the Supreme Court: Section-161  The Prevention of Corruption Act, 2059
 Money Laundering Prevention Act, 2063
 The Government of Nepal, in consultation with the Judicial Council, will appoint
the chairperson and members of the Special Court formed accordingly from
among the judges of the High Court: Section-3

Judicial review
 The process whereby courts exercise control over the findings of fact and
interpretations of law by governmental agencies
 Cases may be increased or decreased: Section-4  Judiciary should not view Judicial Review as it’s right to keep check on other organ of
government but should also remember it as one of the most important duty that it is
 Jurisdiction: Section-6 called upon
 Power: Section-7  Article-133 of The Constitution of Nepal 2072
 Contempt: Section-14  Grounds for Judicial Review:
 Appeal: Section-17 (a) Illegality, (b) Irrationality, and (c) Procedural Impropriety.
 Judicial Review allows parties to challenge:
Rulemaking actions
Adjudicatory decisions
Violation of fundamental rights
Violation of principle of natural justice
Abuses of administrative discretion
 Administrative adjudication Control over administrative adjudication
1. Misuse of Jurisdiction or Principle of Ultra-vires
 It is always a matter of making reasonable adjustments between the two
competing claims. So the claims of the interests of the general public have to be a. Substantive or excess of power ultra-vires
weighed and balanced against the claims of the individual citizen in regard to b. Errors of Procedure or Procedural ultra-vires
his/her fundamental rights 2. Lack of Jurisdiction
 A legal ruling or judgment, usually final, but can also refer to the process of a. Error in the formation of authority
settling a legal case or claim through the court or justice system
b. Subject matter is out of Jurisdiction
 Forms of Administrative Adjudication:
c. Parent Act, conferring the Jurisdiction to the authority, contradict with
1. Voluntary Adjudication Constitution
2. Compulsory Adjudication d. Wrong determination of the preliminary facts
e. Use of jurisdiction in against the norms of the Act
f. Encroachment of the Jurisdiction
g. Review in own adjudication

• 3. Decline of Jurisdiction
a. To work under other’s dictation or direction
b. To delegate own power or authority
c. Failure in exercising the power
Administrative Discretion
4. Avoid of Principle of Natural Justice
a. No one should be judge in his own case
and Judicial Control
Unit 6
b. No one should be condemned unheard
5. Determination of Preliminary and Collateral or Secondary Questions
a. Fact in issue
b. Relevant facts
6. Determination of Question of Fact
7. Determination of Question of Law

Concept of Administrative Discretion

• Discretion in layman’s language means choosing from amongst the various available
alternatives without reference to any predetermined criterion, no matter how
fanciful that choice may be. A person writing his will has such discretion to dispose of • In modern times, it becomes necessary to confer discretionary powers because it is not
his property in any manner, no matter how arbitrary or fanciful it may be. But the always possible to lay down standards or norms for the exercise of administrative power
term “discretion” when qualified by the word “administration” has somewhat • Therefore, there has been a constant conflict between the claims of the administration
different overtones. “Discretion” in this sense means choosing from amongst the to an absolute discretion and the claims of subjects to a reasonable exercise of it.
various available alternatives but with reference to the rules of reason and justice
• Discretionary power by itself is not pure evil but gives much room for misuse. Therefore,
and not according to personal whims. Such exercise is not to be arbitrary, vague and
remedy lies in tightening the procedure and not in abolishing the power itself.
fanciful, but legal and regular.
• There is no set pattern of conferring discretion on an administrative authority. Modern
• It is true that in any intensive form of government, the government cannot function
drafting technique uses the words like; adequate, appropriate, etc.
without the exercise of some discretion by the officials. But it is equally true that
absolute discretion is a ruthless master. It is more destructive of freedom than any of
man’s other inventions.
 Nature of Discretion
• Discretion and Jurisdiction:
• Arbitrary
In order to have discretion one must have jurisdiction, but that the converse is not
necessarily true. If one exceeds the bounds of one’s discretion, one automatically • Flexible
exceeds one’s jurisdiction, but the limits of jurisdiction can be violated even by • Discretion and Jurisdiction
those who have no discretion.
• Not pure evil
Some have viewed discretion as an element tending to extend jurisdiction.
However, the better view is that discretion is merely one type of jurisdiction. Court • Controlled
will always review excesses of jurisdiction, and thus an act beyond the limits of • reviewed
discretion will usually be reviewed. • Inseparable part of sound administration

Judicial Control Over Administrative Discretion

Abuse of Discretion
• When discretionary power is conferred on an administrative authority, it must be Judicial control mechanism of administrative discretion is exercised at two Stages
exercised according to law. and other different Grounds. The two Stages are:
• When the mode of exercising a valid discretionary power is improper or 1. Control at the stage of delegated of discretion
unreasonable, there is an abuse of discretion  The court exercises control over delegation of discretionary powers to the
• Authority can exercise discretion only to fulfil the spirit of the statute creating it administration by adjudicating upon the constitutionality of the law under which
such powers are delegated. Therefore, if the law confers vague and wide
• The power of discretion in functioning is vested in the administrative authorities. This discretionary power on any administrative authority, it may be declared ultra vires
ensures that it has sufficient autonomy and freedom in performing its activities. The
exercise of this discretion can be violated in two ways: 2. Control at the stage of exercise of discretion
Firstly, the administrative authority might fail to exercise the authority vested in it.  Two generalizations are developed as the formulations to control exercise of
administrative discretion. (a) the authority is deemed not to have exercised its
Secondly, the authorities might exercise this discretion incorrectly that is, with improper discretion at all, or there is failure on its part (b) The authority has not exercised its
motives, bias or under the influence of another body. discretion properly or there is an excess or abuse of discretion

Writ
Other Grounds of Judicial Control:
Mala fides What is Writ?
Lack of Jurisdiction What is Public Interest Litigation?
Avoidance of Principle of Natural Justice What is Locus-Standi?
Avoidance of Principle of Neutrality What is Theory of Laches?
Unreasonableness What is Alternative Remedies?
Improper Purpose What is Res-Judicata?
Irrelevant Considerations
 Remedies of Writ
History:
Concept: Anglo-Saxon kings used writ primarily to convey grants of land, although they also
made some efforts to employ them for judicial purposes.
Writ is a remedial right for enforcement of substantive rights
Later on drawn from the English folk court and the orders passed by the King’s of
The concept of writ has been developed in the belief “Ubi jus ibi remedium” or England
“where there is right there is a remedy”
In 13th century, three types of writ were in use: charters, letters patent, letters
Writ has been developed as an important means to provide a remedy for the acts close
against the legal process and arbitrariness of public officials
The development of the concept of the writ in Nepal was observed after the
Definition: enactment of Pradhan Nyayalaya act, 2008(Article-30)
The written order of a court in the name of the state or other legal authority Civil Rights Act, 2012
ordering the person addressed to either do something or restrain from doing
something Supreme Court Act, 2013
Constitutions of different eras

Types of Writ
Practice of writ in Nepal: 1. Habeas Corpus
The writ is generally regarded as an extraordinary jurisdiction of the Court 2. Certiorari
Writ jurisdiction is not exercised under normal circumstances 3. Mandamus
No appeal is maintainable against the writ 4. Prohibition
Writ petition cannot be filed directly under the jurisdiction of the court if there is a 5. Quo-Warranto
prevalence of an alternative remedy
Injunction
Article 133, 144 and 151 of The Constitution of Nepal

2. Certiorari:
1. Habeas Corpus:
 Certiorari is a Latin word meaning “To inform”
 Referred as the oldest writ remedy
 This writ examines whether the lower-level judicial and quasi-judicial and other
 Habeas Corpus is a Latin term, which literally means “You should have the body”. administrative decisions are within the limits prescribed by law
 The writ is issued to produce a person before a court who has been detained or  Also called corrective writ
imprisoned and not produced before the court within 24 hours whether in prison or
private custody and would release the person if such detention is found illegal  Grounds for certiorari:
 The purpose of the writ is not to punish the wrong doer but merely to release the (a) Lack of jurisdiction,
person unlawfully detained (b) Excess of jurisdiction
 A very valuable writ for safeguarding the personal liberty of an individual (c) Abuse of jurisdiction
 Can be filed by any person on the behalf of the person detained or by the detained (d) Error of law
person himself
(e) Violation of the principles of natural justice
3. Mandamus:
 Mandamus is a Latin word, which means “To Command”
4. Prohibition:
 It is a judicial remedy in the form of an order to act legally and to abstain from
 Prohibition refers to “ To forbid or to stop”
perpetrating an unlawful act
 Popularly known as “Stay order”
 It is an order issued by the court to a public authority asking it to perform a public
duty imposed upon it by the Constitution or by any other law  The court issues this writ to restrain the judicial body, the quasi-judicial body,
and the tribunal from acting against the law
 The petitioner should have legal rights and the defendant should have legal
obligations  It is preventive rather than corrective remedy
 Not issued in the name of the constitutional head of the state  Prohibition is a writ that can be issued before a decision is made. This writ
cannot be issued after the decision has been made. If the decision has been
made, the writ of certiorari is applicable

Injunction:
5. Quo-Warranto:  An Injunction is not a writ but an order issued in the petition of the writ
 Quo Warranto is a Latin term, which means “By what warrant”  It is an interim arrangement to prevent difficulties in the case and to resolve an
 Issued as an order against judicial, quasi-judicial, administrative, or any person to immediate crisis
test if the person is entitled to hold the office or if the person ahs an authority  To receive an order of injunction, the claimant must have an absolute right or
he/she presumes to have non-disputed right to the property which is said to be affected
 Among the various writs of Nepal, the quo-warranto writ is the least heard writ  An injunction can have two forms: Obligatory and Prohibitive. An obligatory
injunction is issued to force someone to do something and a prohibitive
injunction is issued to prevent someone from carrying out a particular act.
 An injunction can be temporary, but prohibitions are permanent in nature

Public Interest Litigation(PIL)

The term “Public Interest Litigation” ordinarily means a legal action which is The rule of Locus-Standi is motivated chiefly by the following four consideration:
initiated before a court of law for the purpose of enforcement of general interest 1. To enable the court to reach the disadvantaged people who have been denied their
of the public rights,
PIL also contemplates legal proceedings for vindication or enforcement of the 2. To enable individuals or groups of people to raise matters of common concern arising
fundamental or legal rights of a group of people or community who are incapable out of dishonest or inefficient government,
of enforcing them for various reasons like indigence, incapacity, illiteracy,
3. To compel and caution the executive which appears to have failed in discharging its
unawareness or ignorance of law
constitutional or statutory duties or obligations, and
The court has developed a new paradigm of judicial process which envisages an
4. To increase public participation in the process of constitutional adjudication
affirmative proactive role of the judiciary for ensuring access to justice fro those
who cannot invoke the judicial process for a variety of reasons. This could be made Public Interest Litigation and Judicial Activism:
possible chiefly by liberalizing the rule of “Locus Standi” which created the test of  Judicial Activism is a judicial process of activating the legal mechanism to play a vital
“Sufficient Interest” role in socio-economic transformation of the society by articulating the concept of
liberty, equality and justice.
 PIL and Judicial activism are both interrelated concepts
 Concept
• “The foundation of the Government of a nation must be built upon the rights
of the people but the administration must be entrusted to experts”._ Dr. Sun
Yat-Sen(1867-1925), Founder and President of the Chinese Republic, 1912
• The term Ombudsman means something in the nature of “grievance
Ombudsman representative” or “entrusted person”
• The chances of administrative faults touching the rights of a person, personal
Unit 7 or property, have tremendously increased which led to the never ending search
for an efficacious mechanism that can protect a person from administrative
faults
• That search has produced the idea of ‘Ombudsman’ which in terms of utility
means a “watchdog of the administration” or “the protector of the little man”

Meaning History
• In 1809, the Swedish State appointed an official called the justitieombudsman to
• An Ombudsman is an official, usually appointed by the inquire into citizens complaints and report to Parliament.
government or by parliament but with a significant degree of
independence, who is charged with representing the interests of • After that this model was taken up in other parts of Scandinavian countries like Finland
the public by investigating and addressing complaints of in 1919, Denmark in 1953 and in the same way in New Zealand in 1962, Norway in
maladministration or violation of rights 1963, England in 1967(Six years after the Whyatt Report), Canada in 1967, France in
1973, Australia in 1979, Spain in 1981 and Poland in 1988.
• A government official appointed to receive and investigate
complaints made against abuses or capricious acts of public • Later on developed all over the world as an unique institution which leads to an “open
officials government” by providing a democratic control mechanism over the powers of the
State
• According to Larry B. Hill: Ombudsman is an organization which
protects the rights and interest of the people by investigating the • In India, after the Lokpal and Lokayukta Act, 2013 was constituted.
abuse of authority and maladministration of a public official. • Important role of Anna Hazare in the establishment of Jana Lokpal

Need and Role of Ombudsman Ombudsman in Nepal

• Defender of the people • The Commission for the Investigation of Abuse of Authority(CIAA) is the
• A government that is free from corruption and is committed to preventing, always distinctive anti-corruption agency in South-Asia, which plays the role of an
stand up for promoting good governance ombudsman, investigator and prosecutor as well.
• It is an essential element in the democratic system of the state • It aims to crack down the corruption issues at a national level with system-based
approach. It also focuses on detection and punishment of corrupt acts on the
• The activities of the Ombudsman are connected between the state and civil society one hand and social, cultural and institutional reform on the other.
• By monitoring and restraining the bureaucratic excesses, it helps to uphold the rule • However, it has no jurisdiction over any official in relation to whom the
of law constitution itself separately provides fro such action and any official to be
• Plays important role in : prosecuted under the Army Act.
a. Public Administration Reform • As a constitutional body, the authority vested on CIAA as per the Article 238 and
239 of The Constitution of Nepal 2072
b. Open Government Reform
c. Access to information
 Basic Preventive Measures of Corruption The Commission for the Investigation of
in Nepal Abuse of Authority(CIAA)
Introduction:
• Commission for the Investigation of Abuse of Authority Act, 1991
• The Commission for the Investigation of Abuse of Authority Act, 2048(1991)
• Prevention of Corruption Act, 2002
• Part-21, Article 238 and 239 of The Constitution of Nepal 2072
• National Vigilance Center(NVC) has been established as an governmental anti-
corruption agency(ACA) • CIAA is an apex constitutional body for corruption control
• Special Court Act, 2002 • CIAA carries out 3Ps(Preventive, Promotional and Punitive) measures to control
corruption while performing its duties and responsibilities
• Money Laundering(Prevention) Act, 2008
• The organizational structure of CIAA consists of one chief-commissioner at the
• Judicial Council Act, 2017 topmost level and four commissioners appointment as per constitutional provision.
• Army Act, 2006 • Altogether it has 12 divisions to carry out its day to day function and 8 regional offices
which are at Itahari, Bardibas, Hetauda, Pokhara, Butwal(2), Surkhet, Kanchanpur.

Power and Function of CIAA

According to Article-239 of The Constitution of Nepal 2015: Other Power and Functions of CIAA
• May conduct investigations of any abuse of authority committed through corruption by
any person holding public office • CIAA investigate the cases of corruption and prosecute the cases in the Special Court
on the basis of a complaint of a particular person or information received from any
• May conduct investigations after the removal of: the persons who can be removed from source
office by passing a motion of impeachment; the judges who can be removed by the
Judicial Council; and the person who are liable to action under the Army Act • May take statement of the accused or any person deemed necessary
• May file a case against the person holding public office and other person involved, who • May search and seize, suspend the accused from his or her post of public
has committed an act which is defined by law as corruption responsibility
• May write to the concerned office or body for necessary action, if any act or action done • May arrest/detain the accused for a maximum of six months with the order of
or taken by a person holding public office appears to be of such nature as to be falling competent court, the Special Court
under the jurisdiction of another official or body • Has authority to access bank accounts and other financial transactions
• May delegate any of its function, duties and power to the Chief Commissioner, a • May seize the passport of accused and also order area restriction against accused
Commissioner or an officer employee of the Government of Nepal to be exercised and depending upon gravity of offence
complied with subject to the specified condition

Independence and Integrity of CIAA

• Take appropriate measures for facilitating the access of any person, group or • CIAA has been taken as a symbolic of the Administrative Law because it controls the
organization to submit complaints or information to CIAA through any of activities of the executive authorities and bodies
available means of communication including hotline, fax, email, etc. • Established as a separate constitutional body
• Makes information public • Its independency and integrity is also based on the appointment and removal of the
• Organize educational, interaction and coordination programs on anti-corruption Commissioners as provisioned in The Constitution of Nepal 2015: being of high
moral character; not being a member of any political party at the time of
• Provide policy suggestions to the Government appointment; shall not be eligible for appointment in other government services;
• Conduct reformative programs • No questions shall be raised against any act performed by CIAA
• Detection of corrupt behavior • CIAA have enough legal power to carry out its functions and duties
• Focuses on Social, Cultural and Institutional reform • Working as a major institution for the prevention and control of corruption
• Independent investigation and detection process
• Independent organizational structure