Through the judicial review, judicial control is exercised over administrative adjudication.
Constitution of Nepal 2015- Article 133 – This provision applies to all administrative actions. It falls under the extraordinary jdx of SC, and review is done by a different judge than judge who decided earlier. The principles of review contained in this Article are recognition of judge-made principles, and hence are not inconsistent with the court-recognized grounds of judicial review but rather supplement it.
- Exercise of Fundamental Rights
- Exercise of legal rights, if another remedy is absent, or if another remedy is present but is inadequate or ineffective
- Resolution of constitutional or legal question involving an issue of pubic right or interest
- Ultravires– partially or in entirety, void ab initio or from decision date
Any law w/ the constitution
Provincial statute w/ federal statute
Local (municipality or village) statute w/ federal or provincial statue
(constitutional and legal) Grounds for judicial review:
1. Principle of Ultra-vires:
Beyond powers conferred by the constitution and statute, beyond limits set, beyond prescribed jurisdiction
- Substantive/excess of power ultra-vires
– Errors of procedure/procedural ultra-vires
2. Lack of Jurisdiction
If adjudication is done without authority given by constitution and laws
Decisions taken by such officials or agency is invalid.
(a) Error in formation
If the administrative tribunal is not formed in accordance with the law.
(b) Subject matter beyond jurisdiction
If the subject-matter of the dispute is beyond the jurisdiction of the decision-maker.
(c) If the parent Act is ultra-vires the Constitution
If the parent Act or its provisions contradicts with the constitution, to the extent of contradiction the provisions of the Act invalid, and decisions taken pursuant to such provisions is invalid.
(d) Error in determination of preliminary question
The jurisdiction of the tribunal may depend upon the existence of certain facts or conditions. The questions as to whether such facts or conditions exists is called collateral or preliminary question.
If preliminary question is beyond jurisdiction of decision-maker, then decision taken is invalid.
Appropriate person, proceeding and remedy are considered in determining if preliminary question is within jdx. Right remedy sought by right person in the right proceeding.
(e) To use jurisdiction for another purpose
Use power for an objective other than or beyond the objective of the Act.
(f) Excess of Jurisdiction
Where the quasi judicial body or administrative tribunal exceeds the jurisdiction conferred on it.
Ramji Shrestha v. District Administration Office Nuwakot (NKP 2042, p.117)
The DAO received a petition regarding a transaction agreement between individuals, upon which it ordered for the execution of a document. The decision was held invalid by SC.
(vii) To review one’s decision himself
If an administrative tribunal decides a case as well as reviews its own decision, unless authorized to do so by a statute, then the SC can deem it invalid on ground of lack of jdx
3. Decline of Jurisdiction
Administrative tribunal or agency declines to perform its functions as per its jurisdiction.
SC can issue mandamus ordering the administrative agency or tribunal to perform in accordance with its jurisdiction.
(i) Rule against dictation
Any administrative authority invested with the power of decision-making must exercise this power in exercise of its own judgment. If a decision is taken at the direction of any outside agency, there is decline or jdx and violation of fair hearing.
(ii) Delegate its Power
An administrative tribunal or agency should not delegate its judicial functions to a lower or assisting employee or to another agency or person. If it does then its decline of jdx.
(iii) Fails to exercise its powers
If the administrative agency or tribunal fails to exercise it authority, because of inability to resolve any procedural or doctrinal issue or due to erroneous interpretation of its jdx
4. Questions of Facts and Questions of Law
Both need to be correctly determined by the decision-maker, else subject to judicial review.
5. Principles of Natural Justice
(a) No one should be judge in own case
(b) Right to fair hearing