Prepared by Badri Prasad Sharma, Associate Professor, LBU, Rupandehi, 9/12/2022.

Unit 1

Unit 1: Introduction

Prepared by

Badri Prasad Sharma

Associate Professor, LBU Rupandehi.

i. Meaning and Definition of Administrative Law:

English word administration is derived from Latin word ad+ministrare, which means “to help”,
“to manage”, “to control”, “to direct”, “to serve”, “to minister” etc. The law relates to the
administration is called as administrative law. Administrative law is part of the branch of law
commonly referred to as public law, the law which regulates the relationship between the
citizen and the state and which involves the exercise of state power. So, it is a part of the legal
framework for public administration. Public administration is the day-to-day implementation
of public policy and public programs in areas as diverse as immigration, social welfare,
defence, and economic regulation—indeed in all areas of social and economic life in which
public programs operate.

Administrative law is the compilation of general principles that directs or controls the use of
public authorities. Administrative law is the body of law that governs the activities of
administrative agencies of government. Government agency action can include rule making,
adjudication, or the enforcement of a specific regulatory agenda.

It is very difficult to have a scientific, systematic and satisfying definition of administrative

law. Some of the scholars have defined administrative law in a broader sense whereas some
have defined it in a strict sense. Some of them define administrative law as a law to control
the right and power of the government whereas some define it as a law to protect individual
rights. It is also defined as the law which enhances the effectiveness in the functioning of
administrative agencies. Others define administrative law as a law that makes governmental
action accountable and enhances the participation of stakeholders in decision making.

According to Davis, “Administrative law is the law concerning the powers and procedures of
administrative agencies, especially the law governing judicial review of administrative action.”

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Sir Ivor Jennings has given a wider definition. According to him, “administrative law is the law
relating to the administration; it determines the organizations, power and duties of
administrative authorities.”

Wade says “administrative law as law implemented to the empowered administrative

agencies foe subordinate legislation and judicial decisions.”

According to Jain and Jain, “administrative law deals with the structure the structure, powers
and function of the organs of administration, the limits of their powers, the methods and
procedure followed by them in exercising their powers and functions, the method by which
their powers are controlled including the legal remedies available to a person against them
when his rights are inferred by their operation.”

A.V. Dicey says, “Administrative law is that portion of the national legal system which
determines the legal status and liabilities of all state officials, which analyse the rights and
liabilities of private individuals in their dealings with public officials. It specifies the procedure
by which those rights and liabilities are enforced.”

Nature and Scope of Administrative Law:

The main objective of administrative law is to limit the administrative officials within the legal
boundary and to prevent the arbitrary exercise of their power. Within these premises, the
nature and scope of administrative law are determined.

a. Administrative law defines the establishment of administrative institutions and their

functions.
b. It determines the interrelation among state organs.
c. It provides remedies on violation of rights by administrative action.
d. Administrative law is a law to enhance good governance.
e. Judicial review, which examines administrative action through the judiciary.
f. Within the ambit of delegated authority, it performs the legislative function and
makes rules and regulations, which is called as delegated legislation.
g. As a quasi-judicial body and officials, it carries out judicial function.

Historical Development of Administrative law:

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The impact of Laissez faire system which manifested in individualism, individual enterprise
and self-help. The state was characterized by minimum government; it was an era of free
enterprise. However, soon it was realized that the bargaining power was not equal and
uncontrolled contractual freedom lead to the exploitation of the weak. State’s interference
was recognized as essential for emancipation of the down trodden. Therefore, state
intervention was favoured and there was regulation on individual enterprise.

Administrative law consists of democratic values and advocates legitimate rule in the
respective country. After the mid-20th century, administrative law is considered a separate
branch of law. Administrative law gained the pace of development when the traditional
concept of police state shifted towards the democratic system. The main motivation for the
growth of administrative law is the need of the government to extend its powers of control
over different spheres of human activity and a corresponding need for the definition of the
powers of the administration and their control in the interest of the individuals affected by
their exercise. As the role of welfare state increased, administrative law gradually expanded,
as the social security, social welfare and industrial relation also began to fall within the
obligation of the state.

The reason for growth and development of administrative laws are:

 Laissez faire system

 Legislative process were rigid and could not be changed, except by amendment by
legislature. Under delegated legislation executive started making rules, regulations,
bye-laws etc., thus it gave flexibility.
 As judicial system was extensive, slow, complex and overburdened the speedy
methods of disposal of disputes got recognition as people found them to be quick, less
expensive and useful. This led to the constitution and working of a large number of
tribunals and quasi-judicial bodies.
 The evolving system of administrative law was more functional. It was not theoretical
or technical or legalistic and hence administrative authorities could solve complex
problems.

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 The administrative bodies or authorities started taking preventive measure in suitable

circumstances, e.g., in licensing, registration, and so on. Thus, it was better for
authorities to take measures to prevent adulteration of food, rather than allowing
adulteration by the wrong-doer, to be sued later by the affected-persons.

Importance of / Objectives/ of Administrative Law:

Development of administrative law is an unavoidable necessity of the modern times. The

administrative law is considered as an intensive form of government. It deals with the
pathology of function. The function that are discharged by the administrative authorities
which differ from time to time and depends upon the changes in socio-economic condition in
any nation. There is a radical changes in states role to administration. The executive, judiciary
and the legislative body inadequate and it has no time and technique to deal with all the
details, thus the administrative authorities can avoid such inadequateness and technicalities.
Administrative law represents functional rather than a theoretical approach. In addition to
this the importance of Administrative law can be traced out as follows:

 To guarantee good governance in the country.

 To apply the concept of limited governance.
 To protect the right of the citizen and provide the remedies.
 To maintain the rule of law.
 To prevent the authorities from abusing the power.
 To make the government accountable and transparent while delivering the public
service.
 To follow the natural law and natural justice.

Sources of Administrative law:

Primary Sources:

1. Constitution: The Constitution is the creator of various several administrative bodies

and agencies. It gives brief details about the mechanism and the administrative
powers granted to various authorities. The Constitution is the supreme law of the land.
Any law or act which is inconsistent with it has no force or effect. The effect of this
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provision is that laws and administrative acts must comply with the Constitution. The
Constitution is binding on the executive branch of government in every sphere of
administration. Constitution establishes a variety of agencies and administrative
structures to control the exercise of public power.

Present Nepali Constitution has mention on three tires of government. Different schedules
has prescribes the function and authority of respective authority. No authority go beyond the
provision of constitution.

2. Act/Statutes: Acts or statutes are promulgated by legislative body of the state which
are important sources of administrative law. Acts are considered to be important
because statutes mention the detail the power, function and modes of control of
several administrative bodies. Statutes emanates from constitution. Under the
provision of constitution, law making power has been given to the legislative body.
Administrative powers are given by statutes.
3. Judicial Decisions: Judicial decision or judge made law have been create the new
principles related to the administrative actions. Judiciary control the arbitrariness of
the administrative bodies through the decision. In Ujjwal pd Devkota vs. Office of Audit
Controller (NKP 2057, lacking the jurisdiction) appeals relating to termination of
government employment should filed with the Administrative Court, which is the
prescribed legal remedy an not as a writ application under the extra-ordinary
jurisdiction of the Supreme Court. Administrative Court is an alternative legal remedy.
Similarly in right to notice SC ordered on the case Gajendra Bahadur vs. District Land
Reform Office Kathmandu (NKP 2050), decision cannot be taken in the absence of the
concerned party. Merely publishing notice in a newspaper, without duly serving notice
pursuant to the law. (due process of law)
4. Delegated Legislation: law making is the primary function of the legislative organs of
the state. But whole of legislation not made by legislature. Supreme legislation power
vested to the other administrative organs of the state. Such power is called as
delegated legislation or subordinate legislation.

Others Sourcess:

a. Executive orders
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b. Admistrative practices
c. Expert opinion
d. Research report
e. Oninion and publication of scholors
f. Reports of various committees and commissions

Relation between Constitutional Law and Administrative Law:

Constitutional law and administrative law both are the part of the public law and govern the
affairs of the state. To the early English scholar relating to administrative law, there was
virtually no differences between administrative law and constitutional law. This is evident
from the words of Keith, “it is logically impossible to distinguish administrative from
constitutional law and all attempts to do so are artificial.” And someone says that it is
‘illegitimate and exotic.’ The relationship between constitutional law and administrative law
discussed on following matters.

Constitutional law viewed through administrative eyes:

Since the English Constitution is unwritten, the impact of constitutional law upon
administrative law in England in insignificant and blurred. As Dicey observes, the rules which
in other countries from part of constitutional code, are the result of the ordinary law of the
land in England. As a result, whatever control the administrative authorities can be subjected
to, if any, must be deduced from the ordinary law, as contained in statutes and judicial
decisions. But in the countries having written constitutions, there is an additional source of
control over the administrative action. In these countries there are two sources or modes of
exercising judicial control over the administrative agencies (constitutional and non-
constitutional). The written constitution imposes limitations upon all organs of the state.
Therefore, while all authors attempt to distinguish the scope of administrative law from that
of constitutional law, they cannot afford to forget not to mention that in a country having
written constitution with judicial review, it is not possible to dissociate the two (constitutional
and administrative law).

The acts of the executive or the administration are protected in Nepal in various way.
Legislative acts or the administration, i.e. statutory instruments (including the sub-ordinate

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legislation) are expressly brought with in the fold of Article 306 (b) which states that ‘law’
means federal law, provincial law and local laws’. As in all common law countries, a delegated
legislation can be challenged as invalid not only on the ground of being ultra vires the statute
which confers power to make it, but also on the additional ground that it contravenes any of
the fundamental rights guaranteed by part III of the present constitution.

Administrative growth in constitutional matrix (medium): administrative law is a by-product

of intensive/demanding from of government. During the last century, the role of government
has changed in almost every state of the world, from a laissez faire state to a welfare and
service state. As a result, it is expected of the modern state not only to protect its citizens,
right from external aggression and internal disturbance, but also to take care of its citizens,
right from birth to their death. Therefore, the development of administrative process and the
administrative law has become the cornerstone of modern political philosophy. Today there
is a demand by the people that the government must redress their problems in addition to
merely defining their rights. The rights are elaborately defined in the constitution but the
policies to protect these rights are formulated by the government (the executive) and
implemented by the administrative agencies of the state. There thus arises a direct nexus
between the constitutional law and administrative law where the former acts as a source
from which the rights of the individuals flow and the latter implements its policies accordingly
mandated to preserve the sanctity of those rights.

The Genus-species relationship:

It can be inferred that constitutional law has a wide sphere of jurisdiction, with administrative
law occupying a substantive part. In other words, constitutional law can be termed as the
genus of which a substantive portion of administrative law is the species. Administrative law
has been defined as the law relating to administration. It determines the organization, powers
and duties of administrative authorities. This definition does not make any attempt to
distinguish administrative law from constitutional law.
Administrative law tends to deal with these matters as the constitution has embodied the
principle of a welfare state and the state can execute and implement these rules in the society
only through administrative laws. It is also known as ‘administrative law is a part of

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constitutional law and all concerns of administrative law are also concerns of constitutional
law.
Constitutional law determination of the scope of administrative funtinon:
Constitution is the fundamental law of the land. The constitution prescribes the powers of
the legislatures and executive and limits their authority in various ways. It distributes the
governmental power between the centre, provincial and local level by way of legislative or
executive action. The court interpret the constitution and declare the acts of legislature as
well as executive as unconstitutional if they violate the any provision of the constitution.
The validity of executive act is seen with reference to the power given to it by the legislature.
The constitution has, however, in turn laid down the framework defining the extent of laws
made by parliament, the provincial legislature and the local level law making body.
Constitutional law therefore, enjoys the status of the prime moderator monitoring legislative
actions and in turn install a yardstick upon the extent of the rules made by the executive while
acting the capacity of a delegate. It can be inferred indisputably that constitutional law plays
a critical role of the key channel from where the guidelines determining the scope of
administrative action flow, thereby establishing a unique relationship between the two very
distinct but highly related spheres of law.
Constitutional law impact on administrative adjudication:
Differences between Constitutional law and Administrative law:

Constitutional Law Administrative Law

1. It is supreme and highest law of the country. It is subordinate to the Constitution

(Art.1)

2. It is always as the genus It is species of Constitutional law

3. It is mainly deals with various organs of the state. It deals with organs of the state as motion.
(Part 6, President and vice-president, Part 7,
Federal Executive, Part 8, Federal Legislature,
Part 11 Judiciary etc)

4. It is mainly deals with structure of the state. It mainly deals with the various functions of the
state.

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5. Constitutional law touches all the branches of Administrative law does not deal with all branches
law and gives guidelines with regarding to the of law, rather it deals with the power and functions
general principle relating to organization powers of the authorities.
of the organs of the state, and their relations
between citizens and towards the state.

6. It gives the guidelines about the international It does not deal with the international law. It deals
relations. (50 (4) 51(m) exclusively with the powers and functions of
administrative authorities.

7. It deals with general principles of state pertaining It deals with powers and functions of administrative
to branches of the state. authorities including services, public departments,
local authorities and others statutory bodies
exercising powers, quasi-judicial powers etc.

Good Governance and Role of Administrative Law:

“Good governance is not a phenomenon which can be described in words, it is rather a

phenomenon which can be felt by people.”

Administrative law has a several purpose i.e. to improve the quality, efficiency and
effectiveness of government decision making and to enable people to test the lawfulness and
the merits of decisions that affect them. A person whose interests are affected by a
government (or administrative) decision can challenge that decision in a court, an
administrative tribunal, or through an investigatory agency/ Ombudsman (CIAA).
Administrative Law provides a mechanism for achieving justice in individual cases by enabling
people to test the lawfulness and the merits of decisions that affect them. Through the
provision of feedback to decision makers, it improves the quality of government
administration; and provides a mechanism for ensuring that the government acts within its
lawful powers. It thus contributes to the accountability system for government decision
making.

The functions and objective of today’s state, being a welfare state, have become wide and
complex. Wide discretionary powers have been granted to the executive organ of the state
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which has led to the development of administrative law. Administrative law, becoming public
law, aims to achieve the following objectives:

 To keep watch on administrative authorities by making them act in accordance with

the law,
 To work in accordance with the principles of rule of law,
 To work for public welfare and
 To work for better management of the government.

The terms like governance and good governance are commonly used terminologies in the
examination of the way government is run. Etymologically, the term good governance is
composed of two words i.e. ‘good’ and ‘governance’. Literally, ‘good’ indicates sound,
reliable, effectual, and valid or under the law and ‘governance’ signifies the exercise of power
to manage the public affairs. Thus, good governance means delivering high-quality programs
and services in an accountable, responsive and lawful manner. ‘This concept has become a
universally recognized phenomenon. Good governance is about utilizing power and resources
in a way that maximizes the welfare of the people. It is closely associated with the control and
rule of administration of a state through implementation of laws’ in a fair and legitimate
manner.

Good governance is the system which is conscious oriented and participatory, following the
rule of law that is effective and efficient, accountable, transparent, responsive, equitable and
inclusive.

Good governance is about fair application of authority and utilization of resources in

implementing coherent governing plan for the best interests and priorities of the people at
through legitimized democratic governance under rule of law. It is avenues for peace, crime
control, fairness of public decision with legal certainty and equality. It avails bridled
governmental power, qualified administration, and a system of fraud and corruption-free
state operation.

The concept of governance is as old as human civilization and the society/state itself. Human
beings do not exist independently and in isolation. A person who lives outside the society and

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in isolation is either god or a beast. In the ancient time, human beings began to unite and
associate themselves in some sort of groups such as family, society, community and state.

In Nepali context, The Constitution of Nepal 2015, Commission for the Investigation of Abuse
of Authority Act 1991, The Prevention of Corruption Act 2002, Public Procurement Act 2007
and Rules 2008, Good Governance Act 2008, Right to Information Act 2007 and Rules 2009,
Local Government Operation Act 2017etc. are the primarily statutory measures to ensure
good governance in Nepal. But the legal provisions and practice is not sufficient for ensuring
good governance in Nepal. Some remarks on the application of these laws to an end of good
governance have been overviewed by apex court in this relation.

Being genus, rational and social animal, human beings live in a society and they are co-
existent, interrelated and interdependent with each other. Cordial relations and
understanding among people is indispensable for the smooth continuation of society. If a
group or society is to continue smoothly, some form of social order is necessary. To regulate
human activities, relations, protection, interactions properly some sort of governance and
governance mechanisms is required. Therefore, the society to function, the social systems,
social relationships and social order within the society people started to develop and follow
social rules, social norms and values, religion, culture, custom, usages, rituals, societal
standards and practices or mores to function as governing institutions. All these social rules
and practices are required to regulate and govern the human activities and society. In the
modern society, there are several rules, regulations and laws to have governance in national
level, regional and international arena.

Good governance is about fair application of authority and utilization of resources in

implementing coherent governing plan for the best interests and priorities of the people at
large. It aims at protection and promotion of rights, welfare and well-being of the citizens
through legitimized democratic governance under rule of law. It is avenues for peace, crime
control, fairness of public decision with legal certainty and equality. It avails bridled
governmental power, qualified administration, and a system of fraud and corruption-free
state operation. In Nepali context, The Constitution of Nepal 2015, Commission for the
Investigation of Abuse of Authority Act 1991, The Prevention of Corruption Act 2002, Public
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Procurement Act 2007 and Rules 2008, Good Governance Act 2008, Right to Information Act
2007 and Rules 2009, Local Government Operation Act 2017etc. are the primarily statutory
measures to ensure good governance in Nepal. But the legal provisions and practice is not
sufficient for ensuring good governance in Nepal. Some remarks on the application of these
laws to an end of good governance have been overviewed by apex court in this relation.

A remarkable achievement of the apex court has been its use of the constitution and other
laws as a tool to provide bedrock for good governance. When other branches of government
and institutions else was crumbling, the court time and again came to the rescue of the nation,
thereby being the course corrector. The Supreme Court of Nepal time and again take the
landmark move and properly save the notion of good governance. In the case of Gopal
Guragahin on behalf of Communication Corner Pvt. Ltd. vs. Office of the Prime Minister and
Council of Ministers, Singhdurbar, Kathmandu (N.K.P., 2067, Vol.1, D.N. 8299, p.101) the
Supreme Court held that, when the government preforms the governmental works by fully
following transparency the citizens does not became victim of the impacts of red tapism,
corruption, and delay. Right to be informed makes the government accountable towards the
citizens. Transparent governmental works and citizens right to be informed always guides the
government in right track.

In the case of Advocate Dhurba Prasad Chaulagain vs. Government of Nepal, Office of the
Prime Minister and Council of MinistersSinghdurbar, Kathmandu et. al. (N.K.P., 2073, Vol. 3,
D.N. 9561, p.487), the norms and values of good governance can only be meaningfulness in
the condition when the government staffs became sensitive and aware to deliver services to
the service seekers. When any civil servant makes delay to provide service to the service
seekers due to the cause including the use of mobile phone is the matter of departmental
action. Nabaraj Silwal vs. Government of Nepal, Office of the Prime Minister and Council of
Ministers, Singhdurbar, Kathmandu [Link]., (N.K.P. 2073, Vol. 12, D.N. 9723, p. 2213), the
subject of promotion must be relatively seen from the perspective of good governance, rule
of law, accountable and limited government. Another similar case is Tulashi Prasad Neupane
vs. Ministry of Energy Singhdurbar et. al. (N.K.P., 2074, Vol.5, D.N. 9806, p. 799) while making
decisions the principle of natural justice and due process of law must be followed by the court,

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administrative bodies and judicial entities. It helps to establish fair, just and impartial decision
process. Modern jurisprudence accepts human rights, independence of judiciary, separation
of power, constitutionalism, rule of law, due process of law, procedure determined by the
law, natural justice, reasonableness and prudent/justified action which are the principles of
justice and aims to ensure fair dealing appropriate and impartial justice and good governance.

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