TyroCity: Administrative Law Notes

Application of the rule by the Supreme Court of Nepal

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Application of the rule by the Supreme Court of Nepal:

In Nepal the requirement of hearing is particularly observed and spelt out by the Supreme Court in connection with the fundamental rights of citizens guaranteed under the constitution. The extraordinary power of the court to review the administrative action through writs enriches the applicability of the principles of natural justice in diverse ways.

The following cases show the role of the Supreme Court in administering justice through the rule of Audi Alteram Partem:

P. Koirala v. HMG, 2016: –
It is regarded as the first landmark case in the judicial history of Nepal in which the rule of natural justice was highlighted by the court in connection with the invalid action of the executive action. Here, the court expressed, that the constitutional guaranteed right could not be taken away by an administrative order in the name of public security and welfare without providing the detainee the sufficient grounds and reasons for such detention order. The court further stated that it is the fundamental principle of law and justice that a person, against whom an action is taken, must be properly informed with reasons. Any legal proceeding if initiated against him without notice and grounds, it is a violation of the rules of justice.

Rishikesh Shah v. the Chief Zonal Commissioner, 2027: –
The Supreme Court stressed that the petitioner hold the right to know the grounds of detention as it was inherent under the equality clause of the constitution and a part of the natural justice.

Moona Acharya v. the Kathmandu District Court, 2048: –
The court stated that a concerned authority who is confiscating the property of a citizen is under the obligation to provide an opportunity to the petitioner to defend his/her case. The court further expressed, though procedural fairness is the requirement of justice, it does not mean that this requirement can be fulfilled at the disposal and convenience of the petitioner. Therefore, if a reasonable opportunity is given for a hearing, that is quiet sufficient to satisfy the requirement of natural justice.

Lalit Ratna Shakya v. Ministry of Forest and Soil Conservation, 2050: –
The Supreme Court here observed that the principle of audi alteram partem includes a reasonable amount of time to be given to the litigant to present his case, a clear statement of the charges made against him and a favorable environment in which he may state his position.

Rukma Shamsher Rana v. HMG, 2054: –
The court observed, if any action is taken against any member of the national games and sports, he is required to be given an opportunity to be heard as hearing has become an essential phenomena in the present age. Therefore, if a person is dismissed from his post without any notice and ground, there can exist the monopoly of the administration and good governance of the country can become meaningless.

Haribanta Lal Shrestha v. Managing Committee, the Nepal Bank Ltd. : –
The court once again highlighted the importance of the rule of natural justice. The petitioner in this case was debarred from the opportunity to be heard and to produce evidence in his favor. The court condemned the action of the executive and ruled that the principles of natural justice are not founded merely on formalities rather they are the meaningful rules to provide the substantive justice. They help and facilitate in providing definite, solid and concrete justice.

Krishna Prasad Pande v. HMG: –
The petitioner was detained under sec. 3(1)of the Public Security Act, 1989. He was not given the chance of hearing. Grounds for his detention were also not provided to him. The court quashed such detention order of the authority as the order was inconsistent to the principle of natural justice. The court issued the writ of Habeas Corpus to set the petitioner free.

Judicial control over delegated legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Judicial control over delegated legislation occupies an important place in the field of control mechanisms. Judicial control means assessment by the court of the legal validity of a piece of delegated legislation which the court may do first, with reference to the constitution by applying the doctrine of ultra vires and secondly, with reference to the other recognized principles of law. It is the most effective method to keep the administration within legal boundaries. The interim constitution of Nepal 2063 the fundamental law of the land and all laws inconsistent with it shall be void. And can be so declared by the supreme court of Nepal. And stressing the importance and the judicial review supreme court has also stated, “If court were to close its door for the injured people whose legal and constitutional rights have been curtailed, then injured will always suffer injustice and the government and public officials will become more and more arbitrary and ultimately the constitutional aim of rule of law will not be achieved. It is the integral constitutional principle that forms a very important regulating mechanism of democratic government and for the protection of people’s rights. It is not only a means to checking executive action but also an ultimate watchdog of the people’s fundamental rights.

Judicial is adjective of the judiciary. It means 1) the power of a court to interpret statutes and to declare them when they violate the constitution. 2) A form of appeal from an administrative body to the courts for control of the agency’s finding of fact or law.

The general theory of judicial control is called the doctrine of Ulta-vires. Administrative power derives from the statute. The limits are found in the statute itself or in the general principles of the construction by the courts. Judicial control, therefore, means control and is based on the fundamental principle of the legal system that powers can be validly exercised only within their true limits.

The scope of judicial control may be classified by the following principles.

Breach of the principle of Natural justice
Excess of power of “substantive” ultra vires.
Errors of law
Failure to perform a duty
Bad faith or abuse of power

Scope and Classification of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

It is accepted at all hands that a rigid application of the doctrine of non delegability of powers or separation of powers is neither desirable nor feasible in view of the new demand on the executive. The new role of the welfare state can be fulfilled only through the use of greater power in the hands of the government, which is most suited to carry out social and economic tasks. The task of enhancing the power of the government to enable it to deal with the problems of social and economic reconstruction can be effectively and efficiently accomplished through the technique of delegation of legislative power to it. Thus it can be clearly observed that pragmatic considerations have prevailed over theoretical objections.
Therefore, the position has been shifted from one of total objection to the issue of the permissible limits of valid delegation. Legislative delegation raises the issue of delegable and non-delegable legislative powers. There is no agreed formula with reference to which one can decide the permissible limits of delegation. However, as a rule, it can be said that the legislature cannot delegate its general legislative power and matters dealing with policy.
The legislature after formulating the fundamental laws can delegate to administrative agencies the authority to fill in gaps which is an authority necessary to carry out their purposes. The matters which are appropriate for delegation are such matters as procedures for the implementation of the substantive provisions contained in the principal legislation. This indicates that only the subsidiary part of the legislation could be delegated to administrative agencies so as to enable them to fill any available gaps;i.e. the legislative body ought to state an intelligible principle and that the executive branch would merely fill in the details. Subordinate legislation can cover only subject matters delegated expressly in the principal legislation.

Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation.
Essential legislative functions cannot be delegated by the legislature.
After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however, numerous and significant they may be.
The delegated legislation must be consistent with the parent act and must not violate legislative policy and guidelines. Delegatee cannot have more legislative powers than that of the delegator.

Definition

When an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation or delegated legislation. Halsbury’s Laws of England, 4th ed.

Delegated legislation is that which proceeds from any authority other than the sovereign power, and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. Salmond.

Scope
Delegated legislation must not:

(i) exceed the parent/enabling Act made by the legislature

(ii) conflict with the enabling Act, and

(iii) alter the necessity, special features, make or polices of the Act.

Forms

Title based classification
Discretion based classification
Purpose based classification
Authority based classification
Nature based classification

Title based classification
(i) Rule– A rule made under any Act, and includes regulation made similar to a rule under any Act . – Nepal Law Interpretation Act, 2010.

The law or rule made by the executive or other concerned authority in exercise of power conferred by the legislature in an Act for fulfillment of the objectives of the Act.

(ii) Regulation– The term relates to a situation where power is given to fix the date for the enforcement of an Act or to grant exemptions from the Act or to fix prices, etc. (more of substantive nature).

(iii) By-law– Regulations, ordinances, rules or laws adopted by an association or corporation or the like for its internal governance. By laws define the rights and obligations of various officers, persons or groups within the corporate structure and provides rules for routine matters such as calling meetings and the like.- Black’s Law Dictionary.

(iv) Order– This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general. The former refers to administrative action while the latter refers to administrative rule-making.

(v) Direction-It is an expression of administrative rule-making under the authority of law or rules or orders made thereunder. These may be recommendatory or mandatory. If mandatory, these have the force of law.

(vi) Scheme: The term refers to a situation where the law authorizes an administrative agency to lay down a framework within which the detailed administrative action is to proceed.

Discretion based classification
(i) Contingent or conditional legislation

A statute that provides control but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute itself. It is fact-finding, not discretionary.

Such as,

future applicability left to the subjective satisfaction of the delegate as to indicating the proper time
Act enforced but power to withdraw the same from operation delegated to satisfaction of the delegate.
Power exercisable upon the delegate’s satisfaction of objective facts by a class of people seeking benefit of the exercise of such power to deprive the rival class of persons of statutory benefits.

Last category of conditional legislation attracts the principles of natural justice.

Though delegated legislation as such does not attract the principles of natural justice, but it applies in the case of conditional legislation where a person is deprived of his statutory rights.

Contingent legislation classification is linked with the case of Field v. Clark (US, 1892)

(ii) Subordinate legislation

The process consists of the discretionary elaboration of rules and regulations.

The distinction is one of discretion. ‘It may be noted that this distinction is hardly real. In contingent legislation also, a certain amount of discretion is always present. The contingent legislation formula is a fiction developed by the U.S. Supreme Court to get away from the operation of separation of powers.

Whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is, therefore, open to attack on the ground of excessive delegation.

Purpose based classification
On the basis of different purposes it is made to serve.

(i) Enabling Act: such Acts contain an ‘appointed day’ clause under which the power is delegated to the executive to appoint a day for the Act to come into operation.

(ii) Extension and Application of Act: extension and application of Act in respect of a territory or for a duration of time or for any other such object.

(iii) Dispensing and Suspending Acts: power is delegated to the administrative authority to make exemptions from all or any provision of the Act in a particular case or class of cases or territory, when at the discretion of the authority, circumstances warrant it.

(iv) Alteration Acts: Alteration is a broad term and includes both modification and amendment.

The power of modification is limited to consequential changes, but if overstepped it suffers challenge on the ground that it is not within the legislative intent of modification.

Sometimes includes the power to remove difficulties so that the various statutes may coexist.

Amendment- e.g. power to change the schedule of an Act.

(v) Taxing Act: The policy of the taxing statute must be clearly laid down by the legislature.

(vi) Supplementary Acts: Power is delegated to the authority to make rules to carry out the purposes of the Act.

(vii) Approving and Sanctioning Acts: Power is delegated not to make rules, but to approve the rules framed by another specified authority.

(viii) Classifying and Fixing Standard Acts: Power is given to administrative authority to fix standard of purity, quality or fitness for human consumption. Courts have upheld on grounds of necessity.

(ix) Penalty for Violation of Acts: Power may be delegated to administrative authority to prescribe punishment for violation of rules.

(x) Clarify the provisions of the statute’ Act: Power is delegated to the administrative authority to issue interpretation on various provisions of the enabling Act.

Authority based classification
Based on the position of the authority making the rules.

Sub-delegated legislation: When the rule-making authority delegates to itself or to some other subordinate authority a further power to issue rules, such exercise of rule-making power is known as sub-delegated legislation.

Rule-making authority cannot delegate power unless such power of delegation is contained in the enabling act. Such authorization may be either express or by necessary implication.

Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is normally not allowable, though the legislature can always provide for it.

If the authority further delegates its law-making power to some other authority and retains a general control of a substantial nature over it, there is no delegation as to attract the doctrine of ‘delegatus non potest delegare.’

The maxim was originally invoked in the context of delegation of judicial powers and implied that in the entire process of adjudication, a judge must act personally except in so far as he is expressly absolved from his duty by a statute.

Sub-delegation in very wide language is improper and some safeguard must be provided before the delegate is allowed to sub-delegate his power.

Nature-based classification
On the basis of nature and extent of delegation

(i) Normal delegation

(a) Positive- where the limits of delegation are clearly defined in the enabling Act.

(b) Negative- where power delegated does not include power to do certain things, i.e., legislate on matters of policy.

(ii) Exceptional delegation

Instances of exceptional delegation may be:

power to legislate on matters of principle
power to amend Acts of Parliament
power conferring wide discretion that is almost impossible to know the limits
power to make rules without being challenged in a court of law

Reasons and Type of Control

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Reasons for Control

Separation of Power. Representativeness. Constitutional supremacy. Rule of law. Not arbitrary or discriminatory.

Constitutional and Parliamentary Control
Judicial Control
Other Control Mechanisms

-Judicial Control

Constitution of Nepal 2015, Article 133. Judicial review and extraordinary jurisdiction of the Supreme Court:

Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution, because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extra-ordinary power shall rest with the Supreme Court to declare that law void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution. . .

The principles on which the constitutionality of statutes is judged and that of subordinate legislation, are different.

Judicial review grounds:

(i) Enabling act is ultra vires the constitution

If the enabling Act is ultra vires the Constitution which prescribes the boundaries within which the legislature can act, the rules and regulations framed thereunder would also be void. The enabling Act may violate the implied or express limits of the Constitution.

Mithilesh Kumar Singh v. PM Girija Prasad Koirala et al (NKP 2056) (certain sections of Land Act 2021 declared ultra vires)

(ii) Administrative legislation is ultra vires the constitution

It may happen that the enabling Act may not be ultra vires the constitution, yet the rules and regulations framed thereunder may violate any provision of the constitution.

Padam Kumar Nepali v. Council of Ministers Secretariat (NKP 2052) (some rules of Police Rules 2049 ultra vires)

Ramchandra Gautam v. Ministry of Information and Communication NKP 2052 (certain bylaws of the Gorkhapatra Corporation Employees Service Bylaws ultra vires).

(iii) Administrative legislation is ultra vires the enabling Act

– It is in excess of power conferred by enabling Act

– It conflict with enabling Act

– It is in conflict w/ the prescribed procedure of the enabling Act

– It is in conflict with the terms of some other statute

E.g. Rule 3(4) of Nepal Citizenship Rules, 2049 which prescribes additional mandatory criteria than that was prescribed by the Citizenship Act 2020, has been held invalid on grounds of conflict with the parent Act and the constitution.

(iv) If delegated legislation is mala fide

Administrative rule-making can be challenged on the ground of bad faith or ulterior purpose.

Mala fide is generally not a ground against legislature or an administrative authority exercising rule making powers

In the US, challenge on the ground or bad faith can be sustained under the Due Process clause of the constitution.

(v) Though delegated legislation as such does not attract the principles of natural justice, but it applies in the case of conditional legislation where a person is deprived of his statutory rights.

(vi) Excessive delegation: Legislature cannot delegate its essential legislative functions, it must lay down policies and principles and may delegate power to fill in details and execute policy.

Court will examine:
(a) scheme of statute including preamble,
(b) facts, circumstances and background under which statute was enacted,
(c) history of legislation,
(d) complexities of problem which State has to face,
(e) liberal construction to be given to statute, its policies and guidelines.

(vii) Unreasonable, arbitrary and discriminatory

(viii) Vagueness. E.g., does not mention the commencement date.

– Parliamentary control

Every delegate is subject to the authority and control of the principal. The exercise of delegated power can always be directed, corrected or canceled by the principal.

(i) Direct general control – through debates, questions, notices, resolutions and votes in the house

(ii) Direct special control – through ‘laying’ (presentation of) the delegated legislation before the parliament

(iii) Indirect control – parliamentary committee recommendations

-Other Control Mechanisms

-Procedural Control

To provide effective vigil over administrative rule-making, and guarantee effective people participation for better social communication, acceptance and effectivity of the rules.

Procedural control mechanism provides for specific audit of rules by those for whose consumption they are made.

(i) Drafting

The drafting of delegated legislation by an expert draftsmen who are, at the same time, in a position to advise whether the proposed rules and regulations are ultra vires is a valuable safeguard.

(ii) Antenatal publicity

Before rules are passed, the proposed/draft rules to be published in order to inform the public and take their feedback. Practice in democratic countries.

Nepal: no clear provision in law for antenatal publicity, no precedent in this regard by Nepal SC

US: Federal Administrative Procedure Act provides for the publication of proposed rules in the Federal Register.

England and India: no general provision by law, parent Act may make provisions.

(iii) Consultation

(a) Consultation with affected persons

This control mechanism makes administrative rule-making a democratic process and increases its acceptability and effectivity.

(b) Consultation with experts

Nepal: Gov of Nepal or concerned authority authorized by the Act make laws, and they do not consult with relevant experts.

(iv) Postnatal publicity

– Ignorance of law is no excuse.

– It is mandatory to publish laws, including delegated legislation made by the executive by exercising powers delegated by the legislature.

Nepal:

Rules, orders, notices, etc. made under delegated legislation is mandatorily published in Nepal Gazette.

Sec. 5 of Evidence Act, 2031 provides that judicial notice shall be taken of such published rules, orders and notices.

England- Statutory Instruments Act- Rules shall not come into force unless published.

US- Federal Register Act- Unless rules are published in the Federal Register, it cannot be enforced against any person except the one who has actual notice of it.

India- No general law prescribing the mode of publication of rules. Publication is necessary in either the Official Gazette or any ‘recognizable’ or ‘customary’ manner.

Classification of Powers of Administrative Agencies

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Administrative agencies, in order to realize their purpose efficiently and effectively, need wider power and discretion. For this reason, they blend together three powers of government: executive, legislative and judicial powers. Even though in principle the later two powers belong to the legislature and courts, granting such powers has become a compulsive necessity for an effective and efficient administration.
Administrative agency rules and regulations often have the force of law against individuals. This tendency has led many critics to charge that the creation of agencies circumvents the constitutional directive that laws are to be created by elected officials. According to these critics, administrative agencies constitute an unconstitutional, another bureaucratic branch of government with powers that exceed those of the three recognized branches (the legislative, executive, and judiciary). In response, supporters of administrative agencies note that agencies should be created and overseen by elected officials, or the president. Agencies are created by an enabling statute; a state or federal law gives birth to agency and outlines the procedures for the agency’s rule-making. Furthermore, agencies include the public in their rule-making processes. Thus, by proxy, agencies are the will of the electorate.
Supporters of administrative agencies also note that agencies are able to adjudicate relatively minor or exceedingly complex disputes more quickly or more flexibly than the state and federal courts, which helps to preserve judicial resources and promotes swift resolutions. Opponents argue that swiftness and ease at the expense of fairness are not virtues, the thrive of the administrative agencies.

Judicial review on the abuse of Administration discretion

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Abuse of administrative discretion
In the word of Justice Douglas of the US Supreme court: where discretion is absolute, man has always suffered … absolute discretion … is more destructive of freedom than any of man’s other inventions. And also absolute discretion like corruption , marks the begging of the end of liberty. It thus becomes necessary to devise ways and means to minimize the danger of absolute discretion. To achieve objectives a multipronged strategy has to be adopted.

The abuse of administrative discretion can be through 4 different ways as numbered below:

Improper purposes

It is unlawful to use a discretionary power to achieve a purpose other than that for which the power was conferred.

Irrelevance

Just as grant of power may specify the purpose to which they may be applied, so they may also indicate consideration which are to be taken into account on the exercise of the power. A failure to take those consideration into account can be ultra vires . the court have also held that the taking into account of irrelevant consideration can render the exercise the power unlawful.

Bad faith

As a nothing that an administration authority has not acted in good faith is such a serious thing. It is not surprising that it is a rare ground of review. Megaw LG. has suggested that bad faith involves dishonesty. Yet it is difficult to think of an example in which a dishonest exercise of power would not the consideration of an irrelevant purposes or seeking of an improper purpose.

Unreasonableness

In many cases decided that the discretion should be reasonable as well as in accordance with law and discretion should not be arbitrary. The cases are as follows: R v. commissioner of Fens(1666) 2 keb.43, Westminister Corporation v. L and NW Railway (1905) AC 426 at 430, and lord Macnaghten said that, “ nobody, of course, can dispute that the government or the board had a discretion in the matter. But it was not an arbitrary discretion… It was a discretion to be exercised reasonably, fairly and justly.”

Substantive review

Illegality is concerned with keeping authorities within their power, whereas irrationality insures that there is no breach of substantive principles which are independent of those in the statute, even if the decision or action is technically inside the scope of the legislative scheme.

Judicial review on the abuse of administrative discretion

To exercise statutory power reasonably, in good faith, and on correct ground. The courts are still working within the bounds of familiar principle of ultra vires. The analysis involves no difficulty or mystique. Offending acts are condemned simply for the reason that they are unauthorized. The court assumes that parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many of the case.

The fundamental principle of rule of law is all authorities and their actions are subject to law. The administrative authority is discharging their duties may act beyond the power or abuse the power conferred on them. As result, individual right and liberties may be affected, therefore it is necessary that there should be judicial control over misuse of discretionary power of the administrative authorities. So the rights of the peoples are not adversely affected and protect the notion of democracy and rule of law.

Judicial review can be on done for the declaring invalid the decision of the administrative decision. The administrative discretionary power is sometime very much authoritative and it hamper on the fundamental right of the individual at that time the court issue such order to repel that decision. The following case is one of the important example this regard.

Case description

Baburam Poudel v. HMG and council of ministers

Fact of the case

His Majesty Government gives retirement to a person by using the discretionary power. HMG claim that the conduct giving retirement is lawful as per the Civil Service Regulation 2021 rule 7.1(3). This rule state that any person who is reach at the stage of getting pension then government can give retirement to him or her.

Ratio Decidendi

Civil Service Regulation 2021, rule 7.1(3) talks about the discharging any government official from the service by the Government, when he/she is at the stage of getting pension. But any Act or Rules are void until the contradiction or inconsistency with Constitution is exist. This rule is some how contradict with the fundamental right. The use of discretionary power should be just and reasonable. The applicant discharge from his position and it is related with the positional right. So the decision regarding this matter should be just. The discretionary power should be use as consistent with the law; any decision made under that power is not done with the bad intention. The decision should consistent with the equality right provided by the constitution. In the question regarding, Whether is this type of decision rational and amiable? Whether are those laws inconsistent with the constitution under which decides about the retirement? If such laws are contradict with the constitution, then art. 88(1) of the constitution and the extra ordinary Jurisdiction of Supreme Court under art 88(2) provide authority to declare the conduct and laws as invalid.

The Supreme Court is competent and authoritative to decide on such constitutional issue so, supreme court can do judicial review on the decision regarding the retirement.

The universal principle is that, the discretionary power should not be arbitrary. Arbitrary acts are negative aspect of the Rule of Law. The constitution of Nepal aims to protect and follow the rule of law. That’s why the discretionary right is limited and controlled.

Civil Service Regulation 2021, rule 7.1 provide right for applicant that, applicant can stay on service until his age of 60. The Government conducts under rule 7.1(3) blunt the right provided by rule 7.1 so the use of discretionary power should be just.

Laws provide the discretionary power to the administrative executive officer, whereas the power is not arbitrary and absolute. It must be amiable. The abuse of power is not acceptable and the discriminatory conduct is functional. The decision of the administrative executive is free from the mal intention and biasness.

Court Verdict

The decision of the Government regarding the retirement of the applicant is discriminatory and unlawful. So the decision of HMG in 2048/6/4 was made void by issuing the certiorari order. Again issuing the Mandamus, order to the general administrative ministry for the re-recruitment to the applicant.

The discretionary power provided to the administrative executive body for the reason of, quick and prompt decision making in the emergency. The discretionary power does not mean arbitrariness but must be used on the ground of reasonableness and just. To control over that arbitrary discretionary power the judicial review play a vital role. So the universally accepted principle regarding the discretionary power is just and reasonable.

The judicial review is done if the act or the laws are inconsistent with the constitution. In the Baburam Poudel v. HMG and council of minisry case, in this case also Government give retirement to a person by using the power of discretion. But that act was inconsistent with the same Regulation’s rule 7.1.

The civil servants are not absolute servants of the government. As same as the appointment and discharge the general servant the civil servant cant be appoint and discharge. The civil servants recruit as per the Civil Service Act 2013 and Civil Service Regulation 2021, so the discharging or give retirement from service also be done as per the Civil Service Act 2013 and Civil Service Regulation 2021. The doctrine of pleasure is not means that the ignorance of law. For having pleasure to any one the ignorance of law is not accepted and is not having the autocracy.

Thus Judicial review by Supreme Court can control over the massive discretionary power. It helps in protecting the democracy, rule of law and people’s fundamental right and legal right. In this case also the judicial review plays role for the protection of individual right which is protected by law and constitution. And applicant was reappointed in his post though was discharged using the discretionary power by government.

Exception to The Rule of Natural Justice

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Exclusion of Natural Justice-:

Though the rule of natural justice namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law, and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rule yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are alike. These rules are not cast in a rigid mould nor they be put in al legal strait-jacket. They are not immutable but flexible. These rules can be adopted and modified but statues and statutory rules and also by the constitution of the tribunal which has to decide a particular matter and the rules by which such tribunal is governed.[1] There are exceptional situation which exercised this types of practice informed the administration tribunals and so many laws are overtake the natural justice may be excluded-:

1. Statutory exclusion
The principles of natural justice do not suppliant the law but supplements it. It follows where the statute is silent about the compliance with the principles of natural justice; such statutory silence is taken to imply observance of the principles of natural justice. However, where a statue excluded the application of any or all the rules of natural justice than court cannot ignored statutory mandate and read in to the concerned provision the requirement natural justice.[2]

2. Exclusion in cases of legislative function
Legislative action, plenary or subordinate, is not subject to the rules of natural justice. This is so because these rules lay down a policy without reference to particular individual especially it was applied disciplinary action which is exercised the rights to maintained peace and security and privacy. Legislative action, for example, price fixing, is a direction of general character, not directed against a particular person or individual manufacturer or trader. There is no question invoking principles of natural justice in such cases.[3]

3. Exclusion in Emergency
In exceptional cases of emergency where prompt and preventive action is required, the principles of natural justice need not to be observed. According to Justice krshna Iyer ….. ‘If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity’.[4] Thus, where dangerous building is required to be demolished to save human lives.

However, ‘immediacy’ does not exclude duty to act fairly because even an emergent situation can co-exist with the canons of natural justice. Thus, even in the case of emergency here precious rights of the people are affected; post-decisional hearing has relevance to administrative fairness.

Public interest
There requirement of notice and hearing may be excluded where prompt actions to be taken in the interest of public safety, public health or public morality. In case of pulling down property to extinguish fire, destruction of contiguous plant is animal like destruction of unwholesome food etc. action has to be taken without giving the opportunity of hearing. Nevertheless, hearing may be given in some of this situation after the action has been taken as a corrective measure to see whether mistake has been committed.

Exclusion based on impracticability
Judicial approach in applying the rules of natural justice to fact situations is not theoretical but pragmatic. Where the number of persons is so large that is not practicable to give all of them the opportunity to being heard, the court does not insist an observance of the principle of natural justice. The entire MBA entrance examination was canceled the university because of mass copying, the court held that notice and hearing to all the candidates is not practicable in such situation.[5]

Exclusion based on the Academic evaluation
Where a student is removed from an educational institution on grounds of unsatisfactory academic performance, the requirement of pre decisional hearing is excluded. Thus, a student of the university was removed from the rolls because of unsatisfactory academic performance without giving any hearing.[6]

Exclusion in case of interim disciplinary action
Where disciplinary action is preventive in nature, the observance of the rules of natural justice is excluded. Thus in

Abhay kumar v. K. Srinivasan[7] case the Delhi high court ruled that such an order could be compared with an order of suspension pending enquiry which is preventive in character in order to maintain peace in the campus, and therefore the principles of natural justice not attracted.

Contractual transaction
In state of Gujrat v. M.P. shah Charitable trust[8] the Supreme Court held that the principles of natural justice are not attracted in case of termination of an agreement in any contractual field. The reason is clear that termination of an arrangement is neither a quasi judicial nor an administrative act. Hence, the question of duty to act judicially does not arise.

[1] C.K. Thakker, Administrative Law,(Eastern Books Company, 1996), 207

[2] Union of India v. J.N sinha AIR 1971, SC 40

[3] Union of India v. Cynamide India AIR 1987, SC 1802

[4] Mohinder Singh Gill v. Chief election commissioner, AIR 1978 SC 851

[5] R. Raadha Krishnaman V. Osmania University, AIR 1974Ap 283

[6] Jawar lal Nehru Universityv. B.S. Narwal, AIR 1981 DEL 381

[7] AIR 1981 Del 381

8 3 SCC 552

Separation of Power and Check and Balance

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Administrative law deal with the nature of the power of the administration and the manner in which the power are exercised but does not go into an examination of the content of those exercised powered.

Administrative law is that branch of public law which deals with organization and powers of administrative and quasi- administrative agencies and prescribes principle and rules by which official actions reached and reviewed in relation to individual life, liberty and property.

The theory of separation of power has engaged in several forms at different periods, it was originated by Aristotle and it was developed by Locke. In the 16th and 17th centuries, French Philosopher John Bodin and British politician locke respectively had expressed their views about the theory of separation of power. But, the rule (Or doctrine) of separation of power was propounded for the first time by the French Jurist, Montesquieu. He formulates this theory in his famous book “The spirit of laws”, published in 1718. According to him, there are three main organs of the government in a state.

The legislature
The judiciary, and
The executive

[1]. S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.8

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre First edition, Page No.15

Meaning of Separation of Power and Check and Balance

Montesquieu states in De L’Esprit des lois (1748) that when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be not liberty… Again, there is no liberty, if the judicial power be not separated from the legislative and executive where it joined with the legislative, the life and liberty of the subject would be exposed to arbitory control; for the Judge might behave with violence and oppression. There would bean end to everything, were the same man, or the same body… to exercise those three powers. (Book XI, chapter 6, quoted in vile 1967)

Montesquieu, a French scholar, conceived the principle of separation of power. He found that concentration of power in one person or a group of persons resulted in tyranny. He therefore, felt that government power should be vested in three different organs, the legislature, the executive and the judiciary. The principle can be stated as follow.

Each organ should be independent of the others;
No one organ should perform function that belongs to the other.

According to this theory of separation of powers, those three powers and functions of the Government in a free democracy must be kept separate organs of the government. One organ of the government should not exercise the function of the other two organs. In other words,

The legislature cannot exercise the power of the Executive or Judiciary.
The Executive cannot exercise the power of the legislature or Judiciary.
The Judiciary cannot exercise the power of the legislature or Executive.

[1]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21

[2] . S. P. Sathe, Administrative law, LexisNexis Butterworths, Seventh Edition, Page No.20

According to Berkley and Rouse:

Each branch of government is assigned a particular task; Legislature makes the law, the Executive branch administers the law, and the judicial system enforces and interprets the law. The separation of power concept operates in tandem with the limited government powers. Separation of power doctrine restrains one branch from usurping the power of the others; the limitation of government powers inhibits the national government from overpowering the right of the state and restricts the intrusion of government into private lives.

Wade and Phillips say that the doctrine of separation of power means the following three things:-

The same set of person should not compose more than one department of the three departments.
One department should not exercise the function of the other two documents.
One department should not control, or interfere with the work of the other two departments

According to the above statement, we can say that the Separation of powers means the three branch of the government are institutional autonomous, functional non-intervention & personal nonalliance between and among each other. As per the above description a pure form of the separation of powers doctrine has some features: (i) the function of government are to be divided into the Legislative, the Executive, and the Judiciary; (II) Different functions are to be vested in separate and appropriate institutions; (III) the members of one institution should not be member of any other institution; and (IV) the function of one institution should not encroach on the functions of another.

This doctrine of the ‘separation of power’ develop as a political theory to prescribe what ought to happen in relation to the distribution of powers within a constitution. Essentially it suggest that the abuse of power will be limited by distributing different functions, legislative, executive and judicial, between governmental institutions to prevent any one of them from predominating, thus preventing power from being concentrated in a single person or body.[3]

2.2 Doctrine of Separation of Power in Nepalese context.

In context of Rana resime, the doctrine of separation of power was not used properly. It is so because Rana prime minister possage the right of law making, law interpreting and law enforcement. So the three organ of government was not there at that time. But in Interim Sashan Bidhan 2007, there was a provision of three organ of government.

After the promulgation of constitution of constitution of 2007, the three organ of government has different right as today i. e law making body as legislative, law enforcement body as executive and law interpretive body as Judiciary. Similarly, after the promulgation of constitution of kingdom of Nepal 2047, The sovereign power are vested upon people and the doctrine of separation of power was establish to protect and promote the interest of people and liberty of Nepalese people.

[1]. George Berkley and John Rouse (1997), the Craft of public Administration, 7th edition, Chicago: Brown & Benchmark, page no 14

[2]. B. P. Acharya, Administrative Law, Pairavi books and stationery centre, First edition, Page No. 88-89

[3]. Peter Leyland and Gordon Anthony, Textbook on Administrative Law, Oxford University Press, fifth edition, Page No.21-22

Doctrine of Separation of Power and its effects on Administrative law

Administrative law is totally opposite to the Rules/Doctrine of separation of power. Both aim at the maximum protection of the rights and liberties of individuals. The doctrine of separation of power resist to delegated legislation. But administrative law’s main province is delegated legislation, Judicial Review, adjudication and decentralization separation of power does not accept to the delegated of power.

Separation of power not only provides each branch with somewhat different authority over public administration but may also frustrate coordination among them. Basic political science tells us that chief executive, legislature and courts are responsive to different constituencies, pressure and constrains. All three branches have legitimate interest in public administration. However, they often differ with regard to what they think agencies should do and how they ought to do it.[1]

Separation of power control to the state organ’s authority and resist to the arbitrary and capricious power. Administrative law does control to Administrative authority and protection government to people. So Administrative law and separation of power with check and Balance Future is golden-bright.

The logic behind this doctrine is of Polarity (the tendency of a lodestone rather than strict classification meaning there by that the centre of authority must be dispersed over a wide area to avoid absolutism) the acceptance of in the same manner. Prof. Wade, writes that the objection of Montesquieu was against accumulation the act and monopoly rather interaction.

The separation of power is not in essence concerned with the allocation of functions as such. Its primary purpose … is the prevention of the arbitrary government, or tyranny, which may arise from the concentration of power… . This point is perhaps most clearly appreciated if we consider what has become one of the most complex areas for separation of powers analysis; the organization, and control, of administrative authorities and agencies.

Public administrators make rules (Legislation), implement these rules (an executive function), and adjudicate questions concerning their application and executions ( a judicial function). The collapsing of the separation of power has been well recognized. [2]

Institutions of Government

Legislature can do:		Executive can do:	Judiciary can do:
Legislature	To make laws	Ø Veto Legislation Ø Recommend leg.	Ø Review legislature acts
Executive	Ø Confirm executive appointments (senate) Ø Override Executive Veto	To enforce the Law	Ø Review executive acts Ø Issue injunctions mandamus strictures
Judiciary	Ø Impeach Ø Create or Eliminate court	Ø Grant pardons Ø Nominate Judges	To interpret laws

Sources: Keneth Janda, Jeffrey M. Berry, and Jerry Goldamnt, (1992), the Challenge of Democracy Government of America, 3rd Edition, Boston; Houghton Mifflin company, at 85

The doctrine of separation of powers was championed as a device for limiting governmental power by taking from the monarch his ancient law making power and vesting it in a legislature, Montesquieu[1] argued, For example that under an oppressive and despotic government, which concentrated all power into a single hand, liberty would never be attained by the people.

Meaning of Administrative Law

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Administrative law

Administrative law is primarily concerned with the manner of exercising governmental power. The decision making process is more important than the decision itself. Secondly, administrative law cannot fully be defined without due regard to the functional approach. This is to mean that the function (purpose) of administrative law should be the underlying element of any definition. The ultimate purpose of administrative law is controlling exercise of governmental power. The control aspect‘ impliedly shades some light on the other components of its definition.

Austin has defined administrative law, as the law which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or indirectly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust.

Davis who represents the American approach defines administrative law as; ―The law that concerns the powers and procedures of administrative agencies, specially the law governing judicial review of administrative action.‖

Massey gives a wider and working definition of administrative law in the following way.

“ 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 an official action is reached and reviewed in relation to individual liberty and freedom”

It studies powers of administrative agencies. The nature and extent of such powers is relevant to determine whether any administrative action is ultra-vires or there is an abuse of power. It studies the rules, procedures and principles of exercising these powers. Parliament, when conferring legislative or adjudicative power on administrative agencies, usually prescribes specific rules governing the manner of exercising such powers. In some cases, the procedure may be provided as a codified act applicable to all administrative agencies. It also studies rules and principles applicable to the manner of exercising governmental powers such as principles of fairness, reasonableness, rationality and the rules of natural justice.

Administrative agencies while exercising their powers may exceed the legal limit abuse their power or fail to comply with minimum procedural requirements. Administrative law studies control mechanisms like legislative & institutional control and control by the courts through judicial review.

It studies remedies available to aggrieved parties whose rights and interests may be affected by unlawful and unjust administrative actions. Administrative law is concerned with effective redress mechanisms to aggrieved parties. Mainly it is concerned with remedies through judicial review, such as certiorari, mandamus, injunction and habeas corpus.

Differences between Constitutional and Administrative Law

Therefore, Keith observed:

“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial”.

However, according to Holland, “Constitutional law describes the various organs of the government at rest, while administrative law describes them in motion”

Therefore, according to this view, the structure of the legislature and executive comes within the purview of the constitutional law but there functioning comes within the sphere of administrative law.

According to Jennings– administrative law deals with the organization, functions, powers, and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the state and their mutual relationship of these organs with the individuals. In other words, constitutional law deals with fundamentals while administrative law deals with details.

Differences Between the Constitutional and Administrative Law of India

Accordingly to Keith: “It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.” But still some of the most important differences between the constitutional and administrative law of India are:

Constitutional Law:

It is the supreme and highest law of the country. No law can be regarded above the law of the constitution of India.
The constructional law is always regarded as the genus. It is the main law.
This law mainly deals with various organs of a state.
It mainly deals with the structure of the state.
It touches all the branches of law and gives guidelines with regard to the general principle relating to organization and powers of organs of the state, and their relations between citizens and towards the state.
It also gives guidelines about intentional relations.
It deals with the general principle of state pertaining to all branches.
It demarcates the constitutional status of Ministers and public servants.
It imposes certain negative duties on administrators if they are found violating the fundamental rights of the citizens and etc. It also imposes certain positive duties on administrators, viz, implementation of social welfare schemes.
The constitutional laws have complete control over the administrative law and administrators of the country.

Administrative Law:

It is not the supreme law of the country rather it is subordinate to the constitutional law.
Administrative law is the species of constitutional law.
It deals with the organs of the state as motion.
It mainly deals with the various functions of the state.
It doesn’t deal with all branches of law, rather it details with the powers and functions of administrative authorities.
It does not deal with international law. It deals exclusively with the powers and functions of administrative authorities.
It deals with the powers and functions of administrative authorities, including services, public departments, local authorities and other statutory bodies exercising administrative powers, quasi-judicial powers, etc.
It is concerned with the organization of the services or the working of the various government departments.
The administrators have to follow constitutional law first and next to the administrative law.
The administrators should perform their functions with utmost obedience to constitutional law. Administrative law is just a subordinate to constitutional law.

Definition

On his part, Foulks: Administrative law 7th edition, page 1, defines:
Administrative law is the law relating public administration. It is concerned with the legal forms and constitutional status of public authorities; with their powers and duties and with the procedures followed in exercising them; with their legal relationships with one another, with the public and with their employees; which seek, in varied ways, to control their activities.

H.W.R.Wade & C.F.Forsyth, (1994), Administrative law, 7th edition

In his view, Wade: Administrative law 7th edition pg 4, defines Administrative law in the following words:

A first approximation to a definition of Administrative law is to say that “it is the law relating to the control of government power”

Wade asserts “the primary purpose of Administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running ‘amok’.” Wade further contends that “abuse”, it should be made clear, carries no necessary innuendo of malice or bad faith. He further elaborates this by stating that government departments may misunderstand their legal position as easily as many other people and the law which they have to administer is frequently complex and uncertain. Abuse is therefore inevitable, and it is all the more necessary that the law should provide means to check it. In addition to this, Wade further asserts that it is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default. At page 5, Wade tries to distinguish functions of Administrative law from the structure by giving a second approximation to a definition of Administrative law. He thus states “It may be said to be a body of general principles which govern the exercise of powers and duties by public authorities”. In this regard, Wade contends that “the whole of Administrative law may indeed be treated as a branch of Constitutional law since is flows directly from the constitutional principles of the rule of law, the sovereignty of parliament and the independence of the judiciary; and, it does much to determine the balance of power between the state and the citizens.” To this extent, Wade further asserts, “As liberty is subjected, justice must be added. That the more power the government wields, the more sensitive its public opinion to any kind of abuse or unfairness. The machinery of Administrative justice therefore combines Administrative authorities, Administrative functions, judicial control and how that control and authority can be exercised.

It is important to note is that the whole essence of Administrative law is to advocate for or uphold natural justice most especially for public servants or any other person appearing before an administrative tribunal.

Meaning and definition of Delegated Legislation

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Delegated legislation means legislation made by bodies other than legislature. Delegated legislation means a legislation which is passed by a body to which the power of legislation is delegated by the statute. The parliament delegates the power making rules, regulation, orders etc to certain bodies and authorities. Such powers are exercised by these authorities within the limits and in accordance with the limits and in accordance with the principles laid down by parliament. In other word, when the function of legislation is entrusted to organs other than parliament by word, when the function of legislation is entrusted to organ other than the legislation. Delegated legislation is generally known as rules, regulations, bye-laws or notification etc.

‘Delegated legislation’ in Nepal is generally expressed as statutory rules and orders, but expressions like, ‘regulation’, notification, bye-laws, schemes, direction etc are also employed in the same context. The practice in England, India, France has been the same. The term statute law covers both acts of parliament and delegated legislation. It is also called subordinate legislation.

According to R.Dayal, “Delegated legislation means legislation which is passed by a body to which the power of legislation is delegated by the statute.”

According to Salmond, “Delegated legislation as that which proceeds from any authority other than the sovereign power and is therefore dependent for its continuous existence and validity on some superior or supreme authority.”

According to jain and jain, The term delegated legislation is used in two sense.

The exercise by a subordinate agency of the legislative power delegated to it by legislature, or
The subsidiary rules themselves which are made by the subordinate agency pursuance of the power as mentioned in no (a).

So, from above definition we can say that delegated legislation is a subordinate legislation by the authority other than the legislature and it gets legal validity and recognition on the basis of the law promulgated by the supreme authority.

Reasons for the Growth of Administrative agencies/ Administrative Adjudication

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Agencies are created and assigned specific tasks by the legislature. They carry out the tasks making decisions of various sorts and supervising the procedure by which the decisions are carried out. There are many reasons why administrative agencies might be needed. Almost every governmental agency has been created because of a recognized problem in society, and from the belief that an agency may be able to help in solving the problems. The following are the main reasons for the creation of the administrative agencies.

A. Providing Specificity
The legislative branch of government cannot legislate in sufficient detail to cover all aspects of many problems. The house of the people‘s representatives cannot possibly legislate in minute detail and, as a consequence, it uses more and more general language in stating its regulatory aims and purposes. For instance, the house of people‘s representatives cannot enact a tax law that covers every possible issue that might arise. Therefore, it delegates to the council of ministers and ministry of revenue the power to make rules and regulations to fill in the gaps, and create the necessary detail to make tax laws workable. In many areas, the agency has to develop detailed rules and regulations to carryout the legislative policy.
It is also true that courts could not handle all disputes and controversies that may arise. They simply do not have the time or the personnel to handle the multitude of cases. For instance, the labour relations board entertains and resolves so many number of collective labour disputes between employees and employers. Similarly, the tax appeal commission and the welfare (pension) appeal tribunal adjudicate and decide vast number of administrative litigations within their jurisdiction. The creation of such adjudicatory agencies (usually known as quasi- administrative agencies) is necessary, because of the fact that they have, specialized knowledge and expertise to deal effectively with the detailed, specific and technical matters, which are normally beyond the competency of judges of ordinary courts.

B. Providing Protection
Many government agencies exist to protect the public, especially from the business community. Business has often failed to regulate itself, and the lack of self- regulation has often been contrary to the public interest. For instance, the Environmental Protection Agency is created to regulate environmental pollution. In the absence of such agency, business could not voluntarily refrain from polluting the environment. The same can be said with respect to quality of private higher education and unjustified and unreasonable increase in the price of essential goods. The Ministry of Education and Ministry of Trade and Industry, regulate respectively both of these cases to protect consumers and the public at large.

C. Providing Services
Many agencies are created simply out of necessity. If we are to have roads, the Nepal Roads Authority is necessary. Welfare programs require government personnel to administer them. Social security programs necessitate that there should be a federal agency to determine eligibility and pay benefits. The Nepal Social Security Authority is established to process pension payment and to determine entitlement to such benefit. The mere existence of most government programs automatically creates new agencies or expands the function of the existing ones.

The following may be summarized as purposes of the administrative agencies.

A) Regulation
One of the key reasons for regulating economic activities by the government is the inability of business to regulate itself. When the government decides to regulate a certain sector, it entrusts the task to the administrative agencies. Agencies offer several advantages over regulation through the legislature and courts in the management of complex and technical regulatory problems. Because they are specialized bodies, they can consider technical details more effectively than the legislature.
When the government regulates business its aim is to minimize the negative impacts of a free economy. In the absence of regulation, business does not respond to concerns over the environment and consumers. Some of the justifications for regulation include:

To control monopoly power
Agencies are often created to replace competition with regulation. In this case the agency may determine rate (e.g. transportation, or electricity). Sometimes the difference in bargaining power may be a ground for regulation, avoiding monopoly power of one party. Such instances include regulation of banking, insurance and labour relations.

To control excess profit
The agency regulates business to ensure that business is not collecting excess profit, which may endanger the laws of free market and also may pose a danger to consumers.

To compensate for externalities
―Externalities‖ occasionally referred to as ―spillovers‖, that occur when the cost of producing something does not reflect the true cost to society for producing the goods. One example is manufacturing process that creates air pollution for which society pays the clean up costs. A business organization, unless otherwise it becomes sure that there is also corresponding participation by other companies, will not install costly pollution control equipment. Doing so will drive up that company‘s costs which makes it unable to compete with other companies in producing the same product without equipment and selling their products at a lower price. So, some entity i.e. a government agency must require all companies to make those investments (installing equipments) in order to spread the costs of pollution control over the entire industry..

To compensate for inadequate information
Compensating for inadequate information is a justification for a great deal of legislation for consumer protection. Purchasers of food, for instance, cannot analyze the nutritional content or the health hazards of various food products so that there has to be some organ that ensures these tests are fulfilled.

To compensate for unequal bargaining of powers
Contracts between banks & customers, insurers & the insured, employees & employers are adhesive in their nature. Either the consumer has to take it or leave it. Hence, it becomes self-evident to regulate and set minimum standards to minimize the effect of unequal bargaining of power.

B) Government exactions
In addition to regulation, administrative agencies may also engage in government exactions. Government exactions are the traditional powers and responsibilities of agencies. Such functions include collection of tax and military conscription.

C) Disbursement of money or other commodities
This purpose of administrative agencies is also the prominent one which characterizes the welfare state. In this regard, through the social security programme and other government systems of insurance or compensation, agencies disburse public money as payment of pensions for veterans or assistance for the aged, the disabled, the unemployed and generally the needy. The payments may be directly through cash or food rations.

D) Provision of goods and services
Nowadays, the government is in charge of building and maintaining roads, high ways and dams, the provision of police force and other protective services. Funding public education and the health service may also be mentioned as additional examples. More recent additions include mass transit communications, satellite systems, government research and development programmes, public hospitals and public housing.

Other Reasons

i) Intensive form of government; welfare state

(ii) Informal, cheap and quick vs. expensive, time-consuming litigation in court

(iii) Expertise, specialization and experimentation needed to develop and apply new public law standards

(iv) Growing emphasis on preventive justice rather than punitive justice

(vi) To reach decisions not strictly according to law as such, but on the ground of policy considerations and mutual give and take

(vii) Courts are groaning under the weight of pending cases and if the whole mass of fresh litigation arising in an intensive form of government is diverted to them, the judicial system would virtually collapse

Structure and Procedure of Quasi-Judicial Bodies/Administrative Tribunals

Administrative Law Notes — Sun, 18 Aug 2013 05:41:42 +0000

Structure

Quasi-judicial body/administrative authority exercising adjudicatory powers/administrative adjudication

(i) Not based on any uniform conventional pattern, and is derived from a statute or a statutory rule

(ii) Sometimes they are an integral part of the administration, and sometimes autonomous.

(iii) Adjudicatory powers may be given to a single individual or to a multi-member body.

(iv) Besides exercising adjudicatory powers, they may also exercise other regulatory and administrative powers.

(v) No uniform formal qualification is prescribed. Sometimes, a legal qualification is prescribed and sometimes a technical qualification

unlike courts where the structure is based on uniform pattern, and judges are required to have the necessary legal qualifications and experience, and they exercise only judicial functions.

However, there are administrative tribunals which are autonomous and their members are required to have prescribed qualifications and exercise only judicial powers.

The only difference between a court and an administrative agency exercising adjudicatory powers/administrative tribunal/quasi-judicial body seems to be the legislative classification. A court is a court because it has been classified as such, and an administrative tribunal is an administrative tribunal because it has been designated as such.

Procedure

(i) No uniform procedure which administrative tribunals are required to follow. Differs from agency to agency.

(ii) Sometimes procedure is prescribed by the statute which creates the adjudicatory authority, sometimes the agencies are left free to prescribe their own procedure

(iii) ALL of these administrative tribunals follow the rules of natural justice in adjudication.

(Courts follow a uniform, fixed statutory procedure)

(iv) Many administrative tribunals are vested with the powers of a general court for the purpose of summoning witnesses, examining them on oath, compelling the production of document, etc.

(v) Courts of law are bound by precedents, principle of res judicata and technical rules of the Evidence Act and procedural law; but administrative tribunals are not uniformly and strictly bound by them.

(vi) There is more emphasis on policy considerations, compared to a court of law which is more concerned with application of law in its decision.

(vii) Quicker, cheaper than courts usually.