Quasi-Judicial Authorities in Nepal

Dr Bipin Adhikari
January 2013 (Unpublished Notes)

No legal definition of quasi-judicial bodies has been given by any law or statute in Nepal. However, the quasi-judicial authorities have been used prominently ever since the country started building a modern legal system in 1951. 

Generally, a quasi-judicial body is an executive authority, which makes decision on legal issues and has powers and procedures resembling those of a court of law or judge.[1] These bodies are not similar to each other in their forms, jurisdiction, and modus operandi. However, the common theme is that there is contest between the two or more contending parties and, as such, an executive authority is required to adjudicate upon their rights. Such an agency is obligated to objectively determine facts and draw conclusions from them so as to provide the basis of an official action. The decisions rendered by such an authority are regarded as quasi-judicial. 

The concept is to create a unique system to face the challenges of the administration of justice. With more developed infrastructure, issues evolve regarding adjudication of rights vis vis issues of development requiring specialized knowledge and expertise which are not generally available with the regular courts. The specialized bodies with appropriately qualified members are therefore able to dispose of matters with adeptness. Such actions are able to remedy a situation or impose legal penalties, and may affect the legal rights, duties or privileges of specific parties. However, the operation of many of the quasi-judicial authorities in Nepal, appointed and supervised by the executive branch, have been criticized on some grounds, including inadequate training requirements in legal or judicial matters and excessive grant of criminal jurisdiction.[2] Some of the important quasi-judicial bodies may be mentioned as follows: 

1. Chief District Officer (CDO)

Local Administration Act, 2028 (minor cases of theft, pick-pocketing, cheating by use of fabricated weighing machine or measurements, slaughtering of female four-footed animals (except in the temples or shrines, where traditionally allowed), inappropriate profits in the sale of goods, trespass of public land and property, etc) 

A decision made by the CDO on these cases, in which one is not recorded as a recidivist criminal, a fine up to five hundred rupees is imposed. It is final. 

Some Public Offence and Punishment Act, 2027 (obstruction in the official business of any public official by way of assault, battery and hooliganism; breach of peace in public places, indecent language, gesture and publication, disruption in the working of post office, communication, transportation, electricity, or other similar and essential services, etc). They are offenses for which the police have the power of arrest without warrant. 

In a case tried under this Act, the CDO may, depending on the gravity of the offence, impose a fine of up to Rs.10,000 to the offender and order the offender to provide compensation to the victim as per the actual damage, loss, injury, for example, and issue an order of detention to keep the offender in custody for at most 35 days. However, if he/she finds reasons to impose imprisonment to the offender, the penalty of a fine is inadequate; the CDO shall refer the case before the Court of Appeal in order to impose the penalty of imprisonment for at most two years. The Court of Appeal shall decide the matter in such a case. 

Arms and Ammunitions Act, 1962 (2019) (arms and ammunitions, their transportation, search and seizure, licensing procedures, prohibition on their use, etc) 

This Act provides for a range of severe sentences. A person manufacturing cannon or machine guns (without authority) or bringing or taking them away is to be punished with imprisonment from three to seven years, or with a fine from Rs.60,000 to Rs. 144,000. Similarly, a person committing the offence of buying the arms from the person unauthorized to sell or transfer them knowingly is to be punished with imprisonment of one year and up to three years or with a fine from Rs.20,000 up to Rs.60,000. 

Food Act, 1966 (2052) (Prohibition on production, sale or distribution of adulterated foodstuff or sub-standard foodstuff, license to produce, sell, distribute, store or process foodstuff, quality and standards setting procedures, and punishment) 

Black Marketing Act, 1952 (2008)Essential Commodities Control (Authorization) Act, 1961 (2017)) definition of “essential commodities” and power to control production or distribution thereof) 

Motor Vehicles and Transport Management Act, 1993 (2049)(type of motor vehicle, their registration, revocation of certificate, driving license, transport management, route permit, traffic control, Transport Management Committee, Examination Committee, etc). The role of the CDO is limited to the chairperson of Transport Management Committee. However, it is his/her responsibility to ensure that the amount of obsequies expenses and compensation to be paid to the successor of the deceased in the event of death in an accident and the amount of medical expenses to be paid to the person who sustains disablement in the accident by the driver, owner or manager of the motor is paid.)

Procedures: 

The procedures to be followed by a CDO for the offences under Some Public Offence and Punishment Act, 2027 and Essential Commodities Control (Authorization) Act, 1961 (2017) are the procedures laid down by the Nepal Special Court Act, 2059 (2002). 

In case of Arms and Ammunitions Act 1962 (2019), Black Marketing Act 1952 (2008) and Motor Vehicles and Transport Management Act, 1993 (2049) no such provision exists. The procedures outlined in the Act are inadequate. For example, in the case of Arms and Ammunitions Act, the only provision on procedure states: “Notwithstanding anything contained elsewhere in the prevailing law, the accused of the case pursuant to this Act, shall be kept in to the custody on the basis of the evidence availablethen”  [Section 24A]. It is expected that the general procedures that apply in such a case are court procedures that have been prescribed by the Muluki Ain (National Code). But it is not stated anywhere in the Act. Many defendants will not generally understand these legal clicks. The stakeholders generally think that the level of adherence to these National Code (Muluki Ain) procedures is very low. 

Right to Appeal 

Appeals in the decision of the CDO under Some Public Offence and Punishment Act, 2027Arms and Ammunitions Act 1962 (2019) and Food Act 1966 (2052), and Motor Vehicles and Transport Management Act, 1993 (2049) lie with the Court of Appeal. 

Number of cases and Adjudications 

The adjudication power of the CDO can be exercised by CDO alone. However, every District Administration Office has a section which specialises in adjudication support. 

The Ministry of Home Affairs does not have regularly published annual reports, not to mention the updated reports on the nature and number of cases handled and decided by the CDOs across the country. A document produced by the Ministry in 2012, which deals with its vision, mission, and objectives, sets out priorities and strategic interventions, but does not mention anything about the cases that CDOs handle, and any plan of the government on how to deal with the pitfalls of the system. By way of sample, the situation of the Lalitpur District Office as at Kartik 2070 (October-November 2013) is as follows:[3] 

S. No.

Case Title

Cases carried forward

New cases this month

Total number of cases

Cases settled till last month

Cases settled this month

Total number of settled cases

Case in progress

1

Arms and ammunitions

6

1

7

1

-

1

6

2

Some Public Offences

156

14

170

77

49

126

44

3

Black Marketing

1

-

1

-

-

-

1

4

Food Act related

16

2

18

1

-

1

17

5

Compensation for vehicular accidents and medical bills

3

-

3

-

-

1

3

 

Total

182

17

199

79

49

128

71

The situation of the Kathmandu District Administration Office for the year 2069/70 (2012/13) is as follows:  

S. No.

Case Title

Number of cases

Settled cases

Backlogs

1

Arms and ammunitions

69

23

46

2

Some Public Offences

2415

1977

438

3

Black Marketing

10

6

4

4

Food Act related

79

36

43

5

Miscellaneous (including compensation for vehicular accidents and medical bills)

27

3

24

 

Total

2600

2045

555

The situation of Bhaktapur District Office for 2069/2070 (till the end of Kartik or October-November 2013) is as follows: 

S. No.

Case Title

Number of cases

Settled cases

Backlogs

1

Arms and ammunitions

6

1

5

2

Some Public Offences

143

23

120

3

Black Marketing

4

-

4

4

Food Act related

5

-

5

5

Compensation for vehicular accidents and medical bills

18

-

18

 

Total

176

24

52

As the highest administrative officer in the district, a CDO is in the position of power (or its abuse) by virtue of more than seven dozens of parliamentary statutes, which deal with district level institutions in the area of health, education, security,and all other government offices (except courts). There is no record of the number of cases on which appeals have been made regarding any of these District Administration Offices.

2. Land Reform Officer (LRO)

Land Act 2021 (Abolition of Jimidari land system, limitation on land holdings, acquisition of excess land, compensation, land sale and distribution, tenancy, koot, compulsory saving and debt, land use, land fragmentation and plotting, etc). This Act empowers the Land Reform Officer, or any other officer or committee appointed by the government, to exercise quasi-judicial powers.  

Procedures:

The procedures to be followed by a LRO or any other officer or committee appointed by the government to hear cases under Land Act, 2021 are the procedures laid down by the Nepal Special Court Act, 2031.

Right to Appeal 

Appeals in the decision of the LRO under Land Act, 2021 lies with the Court of Appeal.

Number of cases and adjudications

At present, there are 21 Land Reform Offices in Nepal. There are no statistics for the number of cases and adjudications. The Ministry of Land Reform and Management is clueless in this regard. 

3. Land Revenue Officer (LRO)

Land Revenue Act, 2034 (1978) (Land registration, levy collection system, levy exemption, jagga aabad, etc). It provides for land administration including maintenance and updating records, collection of land revenues, and settlement of the disputes after completion of survey and handing over of the records to Land Revenue Office by the Survey Parties. This Act is not as comprehensive as others, as this Act does not cover all substantial and procedural matters related to land administration and settlement of disputes. In most of the cases, other Acts are to be referred to settle the cases. This Act covers corrections of survey records, collection of land revenue, and updating of the records when ownership is transferred. It also authorizes the Land Revenue Offices to correct the mistakes of Survey and register land which otherwise have slipped from the process of registration (Chhut Darta).

Land (Survey and Measurement) Act, 2019 deals with land (cadastral) survey in the country, the provision for re-survey for updating the existing records. The records prepared by Department of Survey under this Act are the base for administration of land and collection of revenue. The Act states that the land records prepared by the survey are authentic and once the records are handed over to the Land Revenue Offices, the previous records should be automatically replaced by the new ones and subsequent land administration should be based on the new records.

Procedures:

While taking actions pursuant to this Act, the person in charge of the Land Revenue Office has the power of taking statements, issuing summons in the name of the parties, procuring evidences, and getting documents produced as the court is entitled to exercise under the prevailing Nepalese Laws.

The Land (Survey and Measurement) Act, 2019 does not lay down specific procedures. But some procedures are included by the Rules created under it.

Right to Appeal

An appeal may be made to the Court of Appeal against any decision made by the Land Revenue Office. The only exception is that no appeal may be made over the decision on entitlement where the Land Revenue Office ordered that the issue should be taken to the court for its resolution.

Similarly, underLand (Survey and Measurement) Act, 2019, any person unsatisfied with the decision of Land Revenue Officer may file an appeal to the Court of Appeal.

Number of cases and Adjudications

During the year 2068/69 (2011/12), the number of cases and adjudication throughout the country was as follows:

 

Land Registration

Transfer of Ownership

Amendment

Entry and Cancellation

Haq saafi (Clearance of Claims)

 

Total

Settled

Remaining

Total

Settled

Remaining

Total

Settled

Remaining

Total

Settled

Remaining

Total

Settled

Remaining

 

16642

2277

14365

50110

42154

7956

23409

20536

2873

32461

30321

2140

407

217

190

The situations in the three Districts in the Kathmandu Valley were as follows:

 

Land Registration

Transfer of Ownership

Amendment

Entry and Cancellation

Haq saafi (Clearance of Claims)

 

Total

Settled

Remaining

Total

Settled

Remaining

Total

Settled

Remaining

Total

Settled

Remaining

Total

Settled

Remaining

L

866

142

724

1401

675

726

1086

607

479

423

145

278

2

2

0

K

702

174

528

693

693

0

201

201

0

603

395

208

4

4

0

 

350

47

303

459

457

2

198

198

0

219

219

0

11

10

1

B

2513

17

2496

1239

54

1185

67

5

62

13

-

13

11

-11

 

L – Lalitpur, K – Kathmandu, B – Bhaktapur

There is not a record of the number of cases on which appeals have been made.

4. District Forest Officer (DFO):

Forest Act 2049 (1993) (demarcation of forest boundaries, provisions relating to the government managed forest, protected forest, community forest, leasehold forest, religious forest, private forest, formation of users’ groups, provisions relating to unclaimed and stray timbers, etc)

Procedures:

The District Forest Officer hears and decides all the cases under this Act. He/she can either fine any violators up to Rs.10000 or impose imprisonment up to one year or both. While hearing and deciding the cases, the DFO has to follow the proceedings and exercise the powers as described in the Special Court Act, 2058. Any Forest employee (or Police employee) may, if any person has committed or attempted to commit any offence to be punishable pursuant to this Act, arrest such person without warrant, if there is every a likelihood on his/her escaping in case he/she is not arrested.

In case the evidence received then and there shows that any person arrested under this Act is guilty of any offence on a charge relating to forest to be punishable for a period of one year or more imprisonment or in case there seems to be a reasonable ground to believe from such evidence that he is guilty, such accused shall be kept in detention for the proceedings. In case of other offences, proceedings shall have to be carried after releasing him/her on bail or surety of assets equivalent to the maximum amount of fine. Or, imprisonment that can be imposed on him/her is furnished and, if such bail or surety is not furnished, proceedings shall have to be carried keeping him in detention.

Right to Appeal

Any party who is not satisfied with the decision made by the District Forest Officer may appeal to the Appellate Court within thirty five days from the date of the receipt of the notice of the decision.

Number of cases and Adjudications

The number of cases and adjudication of some districts with higher number of cases during 2068/69 (2011/12) may be presented as follows. The available record from which this summary has been presented does not categorize cases that were dealt with. 

 

S.N.

 

District

Case Role

Settled Cases

Accused

Last Year

This Year

Total

Last Year

This Year

Yet to be settled

 

Detention

On Call Register

Absconded

1

Jhapa

72

42

114

21

-

93

242

-

2

Sunsari

27

17

44

8

36

2

74

10

-

3

Morang

35

21

56

13

-

43

98

10

4

Udaypur

31

15

46

1

-

45

-

93

41

5

Saptari

83

19

102

34

1

67

-

-

-

6

Sarlahi

258

15

273

-

19

254

-

-

-

7

Kathmandu

35

31

66

31

3

32

-

-

-

8

Bhaktapur

1

3

4

-

3

1

-

3

6

9

Chitwan

31

29

60

18

9

33

-

27

43

10

Nawalparasi

17

36

53

42

-

11

3

24

-

11

Kapilvastu

47

35

82

42

11

29

70

-

12

Banke

99

13

112

10

5

97

2

41

-

13

Kailali

92

73

165

8

1

156

-

269

-

14

Kanchanpur

74

1

75

8

2

65

214

-

All the 14 districts listed above have a high number of cases. There are other districts with few or no cases, like Taplejung, Panchthar, Illam, Darchula, and Dadeldhura. The total of all 74 districts combined is as follows: 

 

District

Case Role

Settled Cases

Accused

Last Year

This Year

Total

Last Year

This Year

Yet to be settled

 

Detention

On Call Register

Detention and On Call

Absconded

All 74 districts

1169

487

1656

271

88

1299

12

966

685

173

5. Warden [The prescribed Officer]

National Parks and Wildlife Conservation Act, 1973 (2029) (dealing with national park, reserve and conservation area, buffer zone, prohibited action within national park and reserve, operation of services there, hunting without license, export or import of trophy, arrest without warrant, search and seizure, confiscation, etc)

Procedures:

While disposing of cases under this Act, the prescribed court or Authority shall follow the same procedure adopted by the court with original jurisdiction (as prescribed in the Muluki Ain [National Code].

Right to Appeal:

An appeal may be filed before the Appellate Court against the decision made or order issued by the court or Authority prescribed within 35 days after such decision is made or order issued.

Number of cases and Adjudications

There are 10 national parks, three wildlife reserves, six protected areas, one hunting reserve and 12 buffer zone areas in the fold of the Act. All cases and adjudication have remained a local issue. There is no credible statistics available at the departmental level.

Special Court Act, 2059 (2002)

There are different forms of procedures in vogue in Nepal. The Muluki Ain [National Code] civil and criminal procedures are the common law applied in all courts of first instance barring a few exceptions. All quasi-judicial authorities, which have not been required to follow any specific procedures, are expected to follow these procedures.

The Summary Procedures Act 2028 (1971) and procedures applicable in reference to special courts (tribunals) are noted exceptions. The procedures laid down by Special Court Act passed in 2059 [2002],[4] in reference to irregular tribunals created for special purpose, detail some basic procedures to accomplish the trial and decision of the special types of cases in an expeditious, prompt and effective manner. Many quasi-judicial authorities have been required by law to follow this Act as far as the procedural law is concerned. The power of the Special Court is as mentioned hereunder:

(a) Summoning other persons, apart from the witness of the plaintiff and defendant, or evidence relevant with a case as deemed appropriate [The quasi judicial authority exercises this power]

(b) Recording the statement of defendant or witness failing to attend within the dates given by arresting through issuing warrant. [It is strange that even a witness is subject to this procedure]

(c) Conducting the trial of the case by giving a party a due date of presence or by requiring him/her to be present as and when necessary without giving a due date,

(d) Demanding the security or guarantee keeping in view the amount of loss or damage or amount illegally accepted by him/her and the imprisonment or fine to be inflicted on him/her in case it is not deemed to have a trial of the case by putting an offender in custody from the evidence so collected,

(e) Notwithstanding anything contained in the prevailing law, conducting a trial of the case by putting the offender in custody in case there is an adequate and reasonable cause to have a trial of the case by putting one in custody, [This is based on precedents established by Supreme Court and general principles of law].

 (f) May accept the security or guarantee taken by the agency for investigation in the course of investigation extent it covers.

It is the point of view of the stakeholders that rules are generally at low ebbs in the quasi-judicial administration.

Uniformity in the Nature, Functions and Power?

There is no uniformity in the nature, functions, and powers of these quasi-judicial bodies. No efforts were made to study them as a system in terms of their powers, differences from the judiciary, decision-making system, and common features, until recently.

The 2012 report of the Committee for the Study of Judicial Power of Administrative Officials constituted by the government under the leadership of the Law secretary is the only retrospection in Nepal’s experience with the quasi-judicial authorities. It makes clear that investigation, prosecution and decision making should not be entrusted to one authority, thereby creating a concentration of power. The limit on discretionary power should be clearly specified. In no case should the power to impose life imprisonment be given to a quasi-judicial authority. In the cases of criminal nature which may result in prison sentence, tribunals may be created where judicial professional will also have his/her presence in the decision-making organ. The report recommends that any offence that may result in a sentence of three or more years should be given back to the ordinary court of justice.

It requires serious efforts to develop uniform standards for all quasi-judicial authorities. Barring a few exceptions[5], all quasi-judicial authorities have been created and empowered by parliamentary authorities. A comprehensive law reform Act on quasi-judicial authorities may be worked out to create uniform standards and amend all laws that are in operation. However, if the government so desires, as a preliminary step, it can require all quasi-judicial authorities to go through training, as required by the Supreme Court to the CDOs in the case of Amar Bahadur Raut (2011).

Problems with the Decision-Making of Quasi-Judicial Bodies:

The problems that have been identified on literature review and consultation with relevant sectors are as follows:

Specific:

General

Many quasi-judicial authorities have been given the authority to issue warrant and arrest the accused by the terms of their own legislation. CDOs and DFOs, for example, enjoy this power. They need not go to the District Court for the warrant because of their adjudication capacity under the law. This is a power which could be abused both due to ignorance and the lack of commitment to governing principles. 

Supreme Court Rulings 

Several cases that have reached the Supreme Court on the issue of interpretation of law or the constitution over the years have ruled against bias and have upheld the right to a fair hearing. The term natural justice remains in use as a general concept, and the duty to act fairly has been acknowledged. As a process, it requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. This perspective in the justice administration comes only in a context where there is a willingness to develop the business of quasi-judicial authorities as a profession with proper training and checks and balances. 

So far, the government of Nepal has not taken any discernible action on the 2012 report of the Committee for the Study of Judicial Power of Administrative Officials. 


[1] They include District Offices under the Ministry of Home Affairs, Land Revenue offices, District Forest Office, National Park Office, National Human Rights Commission, National Women Commission, National Dalit Commission, etc. There are others in the area of financial markets, employment law, and other development sectors. All are governed under their own statutes and decrees. See Appendix – 1 for the exhaustive list. 

[2] ILF-Nepal Case Notes, the International Legal Foundation, Fall 2011

[3] In these boxes, cases settled means cases adjudicated. Data on cases appealed against these cases are not available.

[4] It replaced the Special Court Act, 2031 (1974)

[5] See the separate note on Training Need Assessment for the exceptions.

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