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


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)

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.

 

  • Principles of Natural Justice

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. 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.