TyroCity: Administrative Law Notes

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

Sub Delegation

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

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.

Rule of law/ Droit Administrative

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

Droit administratif, or “administrative law,” has been defined by French authorities in general terms as “the body of rules which regulate the relations “of the administration or of the administrative “authority towards private citizens”; and Aucoc in his work on droit administratif describes his topic in this very general language:[1] “Administrative law “determines (1) the constitution and the relations of “those organs of society which are charged with the “care of those social interests which “are the object of public administration, by which “term is meant the different representatives of society “among which the State is the most important, and “(2) the relation of the administrative authorities “towards the citizens of the State.”

It was once all but complete; it is now far less extensive than it was thirty-six years ago. It forms only one portion of the whole system of Droit administratif. It has been imitated in most of the countries of continental Europe. For Droit administratif has, of recent years, been so developed as to meet the requirements of a modern and a democratic society, and thus throws light upon one stage at least in the growth of English constitutional law. It is, however, this very contrast between administrative law as it exists in France, and still more as it existed during by far the greater equality before the law of the land which are firmly established in modern England, that mainly makes it worth while to study, not of course the details, but what de Tocqueville calls the notions generales of French droit administratif.

The prerogative writs of certiorari and prohibition are available against the decisions of administrative tribunals.

Council d’Etat:

This was formed for the judicial and administrative works. This also gives suggestions or opinions to the government in the general administrative matters. In the Council d’Etat there are four types of judicial officials- a president, vice presidents in required number, presidents of different departments and auditeurs. There are five departments in the Council d’Etat , There is the Department of Finance, Department of General Construction, Social Department, Home Department and Department of Justice. The heads of these departments are called as presidents. The main head of the Council d’Etat is the prime minister of France, in his absence, the Minister of Justice acts as the president. In practice, the vice president does most of the works of the president.[1] The auditeurs are also of two types-‘Master of Petitions’ and ‘Councilor of State’ The council has been given very wide powers over the administrative tribunal. The council goes into the merits of questions of law as well as fact. The council also entertains on application in recession to test the legality and propriety of the decisions of the tribunal and the council may take up the error or law apparent on the face of the record, even in case of revision..

With regard to statutes, it is formally provided that all bills introduced into parliament by the government must have been submitted for the Counseil’s advice. The parliament may or may not accept it. In principle, it can present to parliament a new bill containing provisions which conform neither to its original bill nor to the modifications suggested by the Counseil d’Etat; for, although this appears to frustrate the requirement of consultation, parliament must retain complete freedom to adopt whatever text it pleases.[2]

Quite apart from the legislative process, the Counseil d’Etat has the duty of acting as general legal adviser to the government and to individual ministers.

BASIC PRINCIPLES OF DROIT ADMINISTRATIF:

The power of administration to act ‘suo motu’ and to impose directly on the subject the duty to obey its decision.
The power of administration to take decisions and to execute them ‘suo motu’ may be exercised only within the scope of the law which protects individual liberties against administrative arbitrariness.
The existence of a specialized administrative jurisdiction. One speaks of administrative jurisdiction because there decision relate to the superior control of the counseil d’Etat either by means of appeal.

This is principle laid down by the counseil d’Etat, that from administrative decisions. There is a right of appeal to the counseil even where the law is silent or if it provides. That the tribunals are the final authority.

One good result of this is that an independent body reviews every administrative action. The counseil d’Etat composed of eminent civil servant deals with a variety of matters like claim for damages for wrongful acts of government servants, income tax, pensions disputed elections, personal claims of civil servants against the state for wrongful dismissal or suspension and so on.[1]

SIMILARITIES BETWEEN THE ENGLISH RULE OF LAW AND DROIT ADMINISTRATIF OF FRANCE:

The Droit administratif of France resembles (have a similarity to) the English rule of law, because both are the result of ‘Case law’ or judge made law.
The counseil d’Etat of France has been converted from an executive into a judicial or quasi-judicial body by the gradual (not rapid) process of its judicial from and its executive function. In England, the judicial system has grown as a result of transfer to parts of the King’s council of judicial powers originally exercised by the ‘King-in-council. However, the parliament destroyed the arbitrary authority of courts like the Star Chamber and of the council. In France, Droit administratif and administrative tribunals were not only tolerated (sustain) but progressively thrived (prosper) and have come to stay.
In England, the crown and its servants was something beyond and above the ordinary law. Such a concept of administration thrived in France.

DIFFERENCES BETWEEN THE ENGLISH RULE OF LAW AND DROIT ADMINISTRATION

The following points of differences have been mentioned[1]:

Droit administratif is not the law of a class and it is a distinct body of law which may affect and does affect the rights of French citizen. In England, there are laws, customs or regulations which determine the positions of civil servants of the Head of the State. These laws, customs and regulations constitute the law of a class. The powers exercisable by the civil servants under these laws, customs and regulations must be exercised in accordance with ordinary common law principle.
If an official in England exceeds (be more) the authority given to him, he incurs (suffer) the common law responsibility for his wrongful act and he can not plead in his defense strict obedience to official orders and he becomes amenable (responsible to law) to the authority of ordinary courts for the tort he has committed. But in France the government and its servant exercise wide discretionary powers which is not under the control of any court. The executive or its servant can not be made amenable to the jurisdiction of any tribunal for an act of the state.

REASONS OF SUCCESS TO DROIT ADMINISTRATIF:
Droit administratif has been quite successful in subjecting the rule of law. This success may be attributed to a combination of the following factors:

The composition and functions of the Droit administratif itself.
The flexibility of its ‘case law’.
The simplicity of the remedies available before the administrative courts.
The special procedure evaluated (natural process) by those courts.
The character of the substantive law which they apply.

Analysis of Nepalese situation with reference to Droit administratif:

There is no clear constitutional provision about the administrative tribunal in Nepal. There is operating a revenue tribunal and some special tribunal make-up timely. There is one administrative court established by civil service Act, 2049 (and regulation 2050) section 75. It has not effectiveness. Its name and function is contradiable with other countries.[1] Rules, regulations, bylaws, schemes, orders, notification, directions and circulars are main forms of delegated legislation which makes the effectiveness to the administrative function.

So far the province of administrative law is concerned, it embraces the existence of various administrative bodies such as wage board, central board of revenue, commission of inquiry and advisory boards, tariff commission and also there are administrative tribunals for the judicial function. Provisions of adjudicatory authority, (e.g. decisions of the administrative authorities or tribunals i.e. regional administrator, C.D.O., D.D.C., V.D.C., ministerial, departmental decisions etc. It gives the social justice and to fulfill the administrative purposes. The informal sources of administrative law in Nepal are:- Public Service Commission procedure Act, direction, rule, Karbhai Bandej Act, 2009, Nepal Corruption elimination Act, 2010, Nepal Civil Service Act, 2013 and rule 2021, Administrative reform commission report, Citizen Right Act, 2012, Muluki Ain, 2020, Administrative function reform karya toli, 2056 etc.

Historically, the executive was identified with sovereign, in whose name many acts were performed by the prime minister, cabinet, and other ministers. But the executive today includes all those officials, public authorities and other agencies by which functions of government are performed within the executive are therefore to be included the civil service, the armed forces, the police, local authorities(who exercise executive functions within a defined locality) and independent statutory bodies (e.g. DDC, VDC, ward office etc.). The budget is framed by the executive and after being finally approved by the legislature the executive at different levels spends vast sum of money and all revenues are also collected by the executive at lower levels.

In France, the counseil d’Etat is the supreme authority to correct the decisions of various administrative authorities. This council functions for all practical purposes like a judicial body the proceedings are conducted in public and the parties many represent themselves through counsels. The council give comprehensive judgments and these constitutes valuable precedents for the future.

Administrative law governing the conduct, powers and procedures of administrative agencies. It is control mechanism of the public administration. It deals in particular with the quasi-legislative and quasi-judicial powers of administrative authorities along with their executive powers and their control. There is greater emphasis upon the study of judicial exercise of their diversified powers. For e.g. Administration procedure (regulation) Act, 2028, Corruption elimination Act, 2017, Authority abuse investigation, commission Act, 2048, Civil Service Act, 2049 and regulation 2050, Public Service Commission (procedure) Act, 2048, Health Service Act, 2052, Administrative court rule, 2051, VDC, DDC Act, 2048, Local autonomous govern Act, 2055 etc.

The English administrative law is based on the concept of the Rule of Law, French administrative law is conducting according to the theory of Droit administratif. Nepalese administrative law is regulating according to mixed system of heterogeneity, though, Droit administratif or administrative law studied as separate subject from long ago. The scope of administrative law in our country is very much similar to that in the United States and India.

Development of Administrative Law

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

In General
Unlike other fields of law, administrative law is a recent phenomenon and can fairly be described as ‗infant.‘ Historically, its emergence could be dated back to the end of the 19th century. This era marked the advent of the welfare state‘ and the subsequent withering away of ‗the police state.‘ The interventionist role of the welfare state practically necessitated the increment of the nature and extent of power of governments. Simultaneous, with such necessity came the need for controlling the manner of exercise of power so as to ensure protection of individual rights, and generally legality and fairness in the administration. With such background, administrative law, as a legal instrument of controlling power, began to grow and develop too fast. Typically, with the proliferation of the administrative agencies, administrative law has shown significant changes in its nature, purpose and scope.

Presently, administrative law, in most legal systems, is significantly developed and undoubtedly recognized as a distinct branch of law. However the path followed to reach at this stage is not uniform and similar in most countries. Administrative law is unique to a specific country. Such uniqueness can be explained by the fact that it is the outcome of the political reality, economic circumstances and the nature of the legal system prevailing in that country. It is also highly influenced by the constitutional structure, the system of government and principles of the public administration adopted by that country.
Generally, the proliferation of the administrative agencies and the expansion of delegated legislation were two significant factors for the growth of the administrative law in most countries. The 20th century marked with the vast increase of administrative agencies with vast and wide-ranging powers. This necessitated legislative measures and judicial interference aimed at controlling the manner of exercise of power of these entities so as to ensure protection of individual rights and freedoms. As a result, most countries introduced specific and comprehensive rules and procedures governing administrative adjudication and rule-making. In US, the Administrative Procedure Act which was made law in 1946 is one such example of a comprehensive response to deal with the growing power of agencies. Since then, the landscape of the history of the American administrative law has been changed significantly. Similarly, in England the Statutory Instrument Act was promulgated in the same year (1946) even though it was not as comprehensive and influential as the American counterpart. The Act was a direct response to the ever increasing power of agencies, more specifically, the delegation power of agencies. In the 1920s fear developed about the volume and nature of the delegated legislation being produced, which was not receiving parliamentary scrutiny; many sought necessary or desirable.
In 1929, lord chief justice Lord Hewart published The New Despotism in which he railed against what he saw as dangerous and uncontrolled growth of bureaucratic power. In 1932, the report of the Donoughmore-Scott Committee on Ministers‘ powers was issued. The report, amongst other things, explained the inevitability of the delegated legislation, and also suggested some safeguards. The report also recommended better scrutiny of the vesting in Ministers of ‗oppressive‘ powers. This, finally, led to the enactment of the Statutory Instruments Act of the 1946.
However, the growth of the administrative law is not limited to statutory prescriptions of rules and procedures governing the administrative process. Courts have also played important roles in shaping the form, substance and scope of the administrative law. In England, until the Second World War and in the period immediately following 1945, courts continued limiting the scope of their controls. Such judicial restraint was relaxed after the 1960s and there was judicial revival and activism with the judiciary reclaiming their proper role of ensuring the legality and fairness of exercise of governmental powers. In America, where the judiciary has firmly asserted its strong position in checking the constitutionality of parliamentary legislation, the courts didn‘t hesitate to review administrative decision, including delegated legislation.
In France, Italy, Germany and in a number of other countries, there is a separate system of administrative courts which deal with administrative cases exclusively. As a natural consequence, administrative law has developed on its own independent lines, and is not enmeshed with ordinary private law as it is in the Anglo-American system.

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

Public undertaking

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

Public undertaking. An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of their ownership, financial participation, or the rules which govern it.

Public Sector Undertaking, known as PSU, is a company in which majority of the stake (more than 50%) is owned by the Government.

An undertaking over which the public authorities directly or indirectly exercise dominant influence by virtue of their ownership, financial participation, or the rules which govern it. A dominant influence of public authorities is in particular presumed when they: a) hold the major part of the undertaking’s subscribed capital, b) control the majority of the votes attached to shares issued by the undertaking or c) are in a position to appoint more than half of the members of the undertaking’s administrative, managerial or supervisory body.

Constitutionality of Delegated Legislation

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

Constitutionality of delegated legislation means the permissible limits of the constitution of any country within which the legislature, which as the sole repository of law making power, can validly delegate rule making power to other administrative agencies.

Meera Gurung Vs central Immigration Department Themel: Rules 14(4) of Foreign Immigration Rules was declared null andvoid.

Reena Bajracharya and others v. RNAC and others: Rule 16.1.3 of Royal Nepal Airlines Corporations Workers Rule ultra vires.

Balkrishna Neupane vs. Cabinet Secretariat and other: Rule 3.4(a) (b) (c) of Citizenship Rules 2049 was quashed.

Lilamani Poudel v. HMG: Rules 6(2) of Legal Aid Regulation 2055 was declared void as it is inconsistence to Art. 14(5), 11 of the constitution.

Chandra Kant Gyawali and others v. HMG and others: Bye-law 21(1) of the Prison Rules was declared null and void as it violate the Article 11(1)(2)(3) of the Constitution.

Aachuta Prasad Kharel vs. prime Minister, Office of Council of Minister and others: Rule 5(2)(3) of Appointment and Service/ facilities Regulation of Official of Nepal council of Legal Professional, 2055was against the principle of natural justice and Art. 24(9) of the of the constitution.

So, constitutionality test of the delegated legislation is the one of the strong mechanism to control the delegated legislation in context of Nepal. This constitutionality test of the delegated legislation protect the essence of the Constitution i.e. Right to equality and non discrimination. Thus any rule inconsistence with the Constitution will be the matter of judicial review and court declare it void ab initio. Thus, Constitutionality test of the delegated legislation make administrative action accountable towards the citizens and keep within the preview of the Constitution for the protection of the Constitutional rights and the welfare of the country.

Constitution is the fundamental law of the land and any laws, bylaws or the regulation promulgated should be consistent with the constitution. If any laws inconsistent with the constitution is declared null and void to the extent of inconsistency with the constitution. If parliament exceeds its legislative power and makes any law contrary to the constitution provisions and principles, Supreme Court under Article 107(1) and (2) of the constitution has power of judicial review can declare these laws ultra vires

Quasi Judicial Bodies

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

a. Administrative Court
The Administrative Court in Nepal hears appeals related to removal of government employee only.

It decides on appeals related to removal of gov employee only, does not hear all disputes concerning government employee, such as those related to promotion, deployment, departmental action, corruption, etc.

No relation to cases regarding ordinary citizens.

In this sense, Administrative Court in Nepal does not really reduce the burden of cases on the regular courts.

Public Service Act, 2049 is the special governing Act

Constitution and Qualification of members– 1 chairperson and 2 members’ panel. Tenure of member is 5 years. Chairperson is person who was, is or qualified to be judge of appellate court. Other 2 members, 1 is from legal and another from administrative background.
Jurisdiction– Hear appeal against departmental action to remove gov employee from service, with or without restriction on future government employment.
Exercise of jdx– Collectively by the 3 members based on majority opinion.
Decision on Appeal– to endorse or invalidate the earlier decision, or decrease punishment or to acquit, within 6 months from date of filing of appeal
Parties may appoint lawyer or plead themselves
Enforcement of decision- via Ministry of Public Administration
Contempt of court- proceedings may be held against those who do not comply with this Court’s decisions or orders or one who commit contempt of this court. Up to 6 months imprisonment or not exceeding Rs. 5,000 fine or both for contempt.

Ujjwal P. Devkota v. Office of Audit Controller (NKP 2057)

Appeals relating to termination of government employment should be filed with the Administrative Court, which is the prescribed legal remedy, and not as a writ application under the extraordinary jurisdiction of the Supreme Court. Administrative Courts is an alternate legal remedy.

This decision put an end to the practice, after the enforcement of Constitution of 1990, of directly filing writs by employees against whom departmental action had been taken , instead of filing appeal at Admin Court.

b. Revenue Tribunal

Hears appeals against decisions related to revenue taken by various agencies and official pursuant to Revenue Tribunal Act, 2031

Constitution and Qualification of members– 1 chairperson and 2 members’ panel. Chairperson is person who is or qualified to be judge of appellate court. Other 2 members, 1 is from revenue and another from audit background.
Jurisdiction– Initial complaint: relating to its contempt (of court).

Appeal: Hears appeals against decisions related to revenue taken by various agencies and official

Appeal against Decision of Revenue Tribunal- Decision of RT is final. May file appeal against decision of RT at the Supreme Court on the following legal grounds:

(i) question of jurisdiction

(ii) admission of irrelevant evidence and exclusion of relevant evidence, or

(iii) violation of mandatory procedural laws.

. . .

c. District Administrative Office . . .
d. Local Authorities
e. Others (Forest, Land, Police, etc.)

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.

Supreme Court’s Role in Development of Administrative Law in Nepal

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

Read the cases of Rajiv Parajuli v. RCCC and Baburam Poudyal v. Secretariat of Council of Ministers in greater details. Previous exam questions point of view.

Below is merely a suggestion of possible topic discussion, and some (not exhaustive or the most illustrative) corresponding cases.

You are free to judge the role in either positive or negative light as long as you support your view evidence, i.e. case laws in this regard. Or, to discuss in terms of time-periods and trends of the court.

Classification of Administrative Action
Mukti Sharma v. Tek Bahadur (NKP 2017, p.101)

The principles of natural justice apply to only judicial and quasi-judicial decisions. The discretion of HMG to grant approval for prosecution of corruption related allegations is a purely administrative function and not a quasi-judicial function, and hence, the principle of natural justice do not apply to it.

Yagyamurti Banjade v. Bagmati Special Court (NKP 2027, p. 57)

The decision of a judge is judicial, the judicial decision taken by administrative official is quasi-judicial, and the decision regarding administration that is taken by an administrative official (where there is more discretion) is (purely) administrative decision.

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

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

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).

Excess of Jurisdiction/authority

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.

Jurisdiction of the SC
Alternate Remedy

Ujjwal P. Devkota v. Office of Audit Controller (NKP 2057)

Principles of Natural Justice
Mukti Sharma v. Tek Bahadur (NKP 2017, p.101)

Yagyamurti Banjade v. Durga Das Shrestha (NKP 2027, p.157)

The rule was reinforced in the case of Yagyamurti Banjade v. Durga Das Shrestha (NKP 2027, p.157), where the court expressed the difference between judicial, quasi-judicial and purely administrative, and held that the rule of natural justice must be adopted in quasi-judicial decisions, not in purely administrative decisions.

Reasoned Decision or Speaking Orders

Kalar Thakur Hajam v. District Land Reform Office Saptari (NKP 2043, p.304)-

An official with authority to take a judicial or quasi-judicial decision, while deciding, must consider evidence and decide by giving reasons for the decision.

Use of judicial conscience – The SC of Nepal at times uses the term ‘judicial conscience’, similar in meaning to reasoned decision.

Right to Notice

Gajendra Bahadur v. District Land Reform Office Kathmandu (NKP 2050, p. 671)- Decision cannot be taken in the absence of the concerned party, by merely publishing notice in a newspaper, without duly serving notice pursuant to the law.

Right to Present Case and Evidence

Nyuchhemaya Tuladhar v. Rupandehi Dist. Court (NKP 2050, p.231)- Where proceedings required inclusion of registered persons other than the borrower, and the auction notice which was published did not include such registered persons, therefore, the proceeding requiring such registered persons to make payment without the opportunity to be heard is against the principle of natural justice. SC order Rupandehi and Ktm dist courts to issue notices to the registered persons.

Due Process of Law
Gajendra Bahadur v. District Land Reform Office Kathmandu (NKP 2050, p. 671)- Decision cannot be taken in the absence of the concerned party, by merely publishing notice in a newspaper, without duly serving notice pursuant to the law.

Public Interest Litigation / Locus Standi

Limit on discretionary power

Baburam Poudyal v. Secretariat of Council of Ministers (NKP 2048)

Discretionary power should be exercised not in arbitrary manner, but in a proper and rational way.

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.

Nature, Scope and Sources of Administrative Law

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

Sources of Administration Law
Administrative law principles and rules are to be found in many sources. The followings are the main sources of administrative law in Ethiopia.

The Constitution
The F.D.R.E constitution contains some provisions dealing with the manner and principle of government administration and accountability of public bodies and officials. It mainly provides broad principles as to the conduct and accountability of government, the principle of direct democratic participation by citizens and the rule of law. It also embodies the principle of separation of powers by allocating lawmaking power to the house of people‘s representatives, executive power cumulatively to the Prime Minister and Council of Ministers, and finally the power to interpret the laws to the judiciary.

Legislation
Laws adopted by parliament, which may have the effect of creating an administrative agency, or specify specific procedure to be complied by the specific authority in exercising its powers, can be considered a primary sources for the study of administrative law. The statute creating an agency known as enabling act or parent act, clearly determines the limit of power conferred on a certain agency. An administrative action exceeding such limit is an ultra virus, and in most countries the courts will be ready to intervene and invalidate such action. Moreover, parliament, when granting a certain power, is expected to formulate minimum procedure as to how that power can be exercised to ensure fairness in public administration. This can be done, on the one hand, by imposing a general procedural requirement in taking any administrative action mainly administrative rule making and administrative adjudication just like the American Administrative Procedure Act (APA). And on the other hand, parliament in every case may promulgate specific statutes applicable in different situations.

Delegated Legislation
Rules, directives and regulations issued by Council of Ministers and each administrative agencies are also the main focus of administrative law. Administrative law scholarship is concerned with delegated legislation to determine its constitutionality and legality or validity and ensure that it hasn‘t encroached the fundamental rights of citizens. One aspect of such guarantee is subjecting the regulation and directive to comply with some minimum procedural requirements like consultation (public participation) and publication (openness in government administration). Arbitrary exercise of power leads to arbitrary administrative action, which in turn, leads to violation of citizen‘s rights and liberty. Hence, the substance and procedure of delegated legislation is an important source of administrative law.

Judicial Opinion
Much, but not most, of the doctrine that envelops and controls administrative power is found in judicial analysis of other sources. However, much of administrative law will not be found solely in judicial opinions. Furthermore, the opinions themselves must be carefully pursued to avoid generalizations about controls on agency behavior that may not be appropriate, as the outcome of many cases may turn on particular statutory language that may not necessarily reflect the nature of disputes in other agencies.
The American experience as to judicial opinion influencing administrative law is characterized by lack of generalization and fluctuating impacts. These may be due to two reasons. First, cases coming before the courts through judicial review are insignificant compared to the magnitude of government bureaucracy and the administrative process. Second, even as between two apparently similar cases, there is a possibility for points of departure.

Scope of Administrative Law
I- Public Law/Private Law Divide
The boundaries of administrative law extend only when administrative agencies and public officials exercise statutory or public powers, or when performing public duties. In both civil and common-law countries, these types of functions are sometimes called ―public law functions‖ to distinguish them from ―private law functions‖. The former govern the relationship between the state and the individual, whereas the later governs the relationship between individual citizens and some forms of relationships with the state, like relationship based on government contract.
For example, if a citizen works in a state owned factory and is dismissed, he or she would sue as a ―private law function‖. However, if he is a civil servant, he or she would sue as a ―public law function‖. Similarly, if residents of the surrounding community were concerned about a decision to enlarge the state- owned factory because of environmental pollution, the legality of the decision could be reviewed by the courts as a ―public law function.‖ It is also to be noted that a contract between an individual or business organization with a certain administrative agency is a private law function governed by rules of contract applicable to any individual – individual relationship. However, if it is an administrative contract it is subject to different rules (see civ. code art 3136 ff).
The point here is that the rules and principles of administrative law are applicable in a relationship between citizens and the state; they do not extend to cases where the nature of the relationship is characterized by a private law function.
B) Substance vs. Procedure
Many of the definition and approaches to administrative law are limited to procedural aspects of the subject. The focus of administrative law is mainly on the manner and procedure of exercising power granted to administrative agencies by the legislature. Fox describes the trend and interaction between substance and procedure as:

It is the unifying force of the administrative process – in dramatic contrast to the wide variety of substantive problems with which agencies deal- that has persuaded most administrative law professors to concentrate on agency procedure rather than agency substance. Hence, to a wider extent, the study of administrative law has been limited to analyzing the manner in which matters move through an agency, rather than the wisdom of the matters themselves.‘
With respect to judicial review, the basic question asked is not whether a particular decision is ―right‖, or whether the judge, or a the Minister, or officials have come to a different decision. The questions are what is the legal limit of power or reasonable limit of discretion the law has conferred on the official? that power been exceeded, or otherwise unlawfully exercised? Therefore, administrative law is not concerned with the merits of the decision, but with the decision making process.

Presently, the perspectives on administrative law are summarized by two contrasting models labeled by Harlow and Rowling as red light‘ and green light‘ theories. The former is more conservative and control-oriented; the latter is more utilitarian (socialist) in orientation and facilitative in nature. Both significantly serve to describe the concept of administrative law, and to act as normative (i.e. moral and political) suppositions about what its role in society ought to be.
A) Red Light Theory
The red light approach advocates strong role for the courts to review administrative decisions. It considers that the function of law is to control the excesses of state power. ―The red light view can be seen to originate from a political tradition of 19th century laissez faire (minimal state) theory. It embodied a deep-rooted suspicion of governmental power and a desire to minimize the encroachment of the state on the rights (especially property rights) of individuals.
According to this theory of state, the best government is the one that governs least. Wider power means danger to the rights and liberty of citizens. Hence, the red- light theory serves the function of controlling excess and arbitrary power, mainly by the courts. Its descriptive feature is that, on the one hand, it gives much attention on control of governmental power, and on the other hand, it is confident that the effective controlling instrument are the courts through judicial review; As Harlow and Rawlings put it:
―Behind the formalist tradition, we can often discern a preference for a minimalist state. It is not surprising, therefore, to find many authors believing that the primary function of administrative law should be to control any excess of state power and subject it to legal, and more especially judicial control. It is this conception of administrative law that we have called red light theory‖.

B) Green Light Theory
The green light approach considers that the function of administrative law is to facilitate the operation of the state. It is based on the rationale that bureaucrats will function most efficiently in the absence of intervention. Administrative law should aim to help simplifying the procedures and enhance efficiency. It starts from the standpoint of a more positive, largely social and democratic view of the state.
The green light theory is originated from the utilitarian tradition, which proposes promoting the greatest good for the greatest number. According to the utilitarian theory, the state is expected to provide the minimum standards of provision, including housing, education, health, social security, and local services. To provide maximum satisfaction for most of its people, the state should assume a broader role, hence, should possess wider powers. The green light theory broadly supports the introduction of policies aiming at developing public service provisions. Law is perceived as a useful weapon and an enabling tool. It is something very concrete and can provide in principle, at least, the proper authority and framework with which to govern consensually. It regards law not as a controlling mechanism, rather as a facilitative tool. Consequently, it considers the court‘s intervention as an obstacle to efficiency.

Harlow & Rawling write:
“Because they see their own function as the resolution of disputes and because they see the administrative function from the outside, lawyers traditionally emphasize external control through adjudication. To the lawyer, law is the policeman; it operates as an external control, often retrospectively. But a main concern of green light writers is to minimize the influence of the courts. Courts, with their legalistic values, were seen as obstacles to progress and the control which they exercise as unrepresentative and undemocratic. To emphasis a crucial point in green light theory, decision making by an elite judiciary imbued with a legalistic, rights-based ideology and eccentric vision of the „public interest‟ was never a plausible counter to authoritarianism.”