A STUDY OF THE QUASI JUDICIAL FUNCTION OF THE OFFICE OF LAND REVENUE IN NEPAL

Introduction

The doctrine of separation of power has divided state power into three legislative, executive and judiciary. All these organs of government has been separated in such a way that the action of one would not hamper the action of the other.

Judiciary in general, has been entitled for the administration of justice in the state. [1]The Supreme Court being the court of record heads the subordinate courts. But, with the passage of time, the social system has been such complicated that the issues raised between the members of society has not been possible to be settled solely from the judiciary itself. The modern state activities, if taken into an account, it would not be otherwise to term it as an ‘administrative era’. [2]. Basically, the frustration from the conception of the ‘Police State’ and the economic recession during 1930s has resulted the rise of the conception of the ‘Welfare State’ by which state activities have been more complicated. The scope of government at present era have expanded to social security, public health, labor welfare, education, public transportation etc. In this state, the disputes between the members of society are more technical.[3]Hence, by introducing these issues directly into judiciary results to the increase in the pressure of cases in the courts in one hand and on the other hand, it becomes inappropriate both principally as well as practically.[4]So, it is provided that that the issues related to the administrative policies should be dealt with different perspective which gives rise to the quasi judicial bodies.

     Objectives

The objectives of the term papers are as follows:

a.     To study about the quasi judicial functions, its functions and structures in context to Nepal.

b.     To throw lights in regards to the quasi judicial functions of the Office of Land Revenue according to the Land Revenue Act 2034.

What does a Quasi Judicial  Body Mean?

The term ‘Quasi Judicial’ is comprised of two words ‘quasi’ representing partial and ‘judicial’ means the issues which need to be settled. Generally, it is the prerogative of judiciary to conduct judicial administration of the state. However, in certain issues as provided by special acts, administrative bodies are also entitled to deliver justice. Those administrative bodies apart from its administrative works also enjoys its judicial authority as provided by law. But such judicial authority is not absolute in itself but are entitled to deal with the issues related to the nature of work of that administrative which falls under the jurisdiction of the particular administrative body.

Features of Quasi Judicial Bodies

The features of quasi judicial bodies can be listed out as follows:

a.       Quasi judicial bodies are the agencies who have been entitled to the judicial authority in certain issues.

b.       Generally, they follow the general procedures to conduct their quasi judicial activities.[5]

c.       The administrative policies are made the basis of adjudication.

d.       In almost all the issues decided by the administrative bodies, they can be challenged in the appellate court.

Quasi Judicial Bodies in context of Nepal

Talking about the quasi judicial bodies in Nepal, it has been found that from early times the rulers apart from judicial bodies, had given the judicial authority of several administrative bodies like Amali, Panchabhaladmi, Amal Kot etc. [6]The Muluki Ain of 1910 B.S. contained the chapter of ‘hfuL/bf/ ljtf{jfnfn] emu8f x]bf{sf]’. Apart from this, the decisions given by trial courts through Dittha or Bichari were subjected to an appeal at ‘Badahakim’. Before 2017 B.S., the administrative bodies like Maal, Bajar, Banjanch, Rakam Bandobasta, Kumari Chowk and Goshwara possessed judicial authority.

Talking about the prevalent quasi-judicial bodies in Nepal, following administrative offices are most frequent:

1.                  Home Affairs Administration

• Chief District Office

2.                  Land Administration

• Office of Land Revenue

b.                  Office of Land Reform

• Guthi Corporation

3.                  Forest Administration

• National Park and Wildlife Preservation Office

4.                  Local bodies Administration

• District Development Committee

b.                  Municipality

• Village Development Committee

5.                  Labour Administration

• Labour and Employment Promotion Department

Constitutional frame work for the quasi judicial function in Nepal

In Nepal, there is a constitutional provision that insures that quasi judicial bodies. Article 101(2) of Interim Constitution of Nepal 2063 has provided that apart from Article 101(1), a special type of court or tribunals can be established in order to deal with special issues. This provision was also stated in the Constitution of Kingdom of Nepal 2047 B.S.[7] But, it has been also stated that for a particular case, no courts or tribunals can be established nor the head of a quasi judicial body who has been entitled to hear particular cases as per law cannot be transferred to other bodies.

Minimum Procedures that quasi judicial bodies should follow:

a.     The theory of natural justice must be followed. The administrative head of the quasi judicial body should not give verdict in her/his own case. In addition to that, s/he must be impartial, loyal and non-biased.

b.     The quasi judicial authority must be administered only by those who have been stated by specific law as judges. The judgement done by unauthorized person is null and void.

c.     The judge of quasi-judicial bodies must give their verdict after the proper analysis of the proofs.   

The quasi-judicial function of Office of Land Revenue in Nepal according to Land Revenue Act 2034 B.S.

Office of Land Revenue is and office under land administration of Nepal which is established in all districts of Nepal[8].  It has various functions such as registration of land and its authentication after proper measurement of land and recording it.  Apart from this, this office also registers the written legal documents, transfer of land, etc.

As guaranteed by the Interim Constitution of Nepal 2063, Office of Land Revenue also performs quasi judicial activity related to the disputes of land and houses. Sections 7, 8, 8(b), 28, 29, 30, 32 (b) includes the quasi judicial function of the office.

Section 7

(1a) Notwithstanding anything contained in other Sections of this Act, if Government of Nepal deems it necessary, it may, by notification published in the Nepal Gazette for a commission or committee comprising one chairperson and a maximum of four members in order to resolve any problem arisen in respect of registration of the land belonging to any person, class or area and make decision on the registration of land; and the functions, duties and powers of the commission or committee shall be as specified in the mode of formation of 12such commission or committee.

Section 8(b)

To Withhold or Release House and Land: (1) If any house or land has to be withheld owing to dispute thereof or for any other reason, the Land Revenue Office may withhold such a house or land.

(2) If any office, court or government office writes to withhold any house or land or to release the withholding of any house or land pursuant to the laws in force, the Land Revenue Office shall withhold or release such a house or land as so written.

(3) If any bank, financial institution established pursuant to the law in force or local body writes to withhold any house or land or to release the withholding of any house or land in the course of its financial transactions, the Land Revenue Office shall withhold or release such a house or land as prescribed. In so withholding or releasing the withholding, the Land Revenue Office shall collect the fees as prescribed, in the case of a bank or financial institution.

Section 28

The Chief of the Land Revenue Office may impose a fine of up to Five Hundred Rupees on any person who causes obstruction and hindrance in recovering and collecting land revenue.

Section 29(A)

If any person submits false details with mala fide intention in connection with the functions and proceedings of the Land Revenue Office pursuant to Prevailing Law, such person shall be punished by the Land Revenue Office with a fine upto One Thousand Rupees while deciding such matter.

Section 30

Any person who cultivates or causes to be cultivated any land not registered without obtaining approval pursuant to Sub-section (4) of Section 26 shall be punished with a fine of a sum not exceeding ten-fold of the amount of land revenue in question from the very year of cultivation of the land under the prevailing Nepal Law, and the In-charge of Land Revenue Office shall confiscate that land, and the land so confiscated shall be dealt with as prescribed.

In this way Land Revenue Act 2034 has determined the quasi judicial functions of Office of the Land Reform. While performing its quasi judicial function, Section 32 of the Act provides that the authority to the Land Revenue Officer to hear about the disputes between the parties, evaluate the evidences as provided by law.

In the same way, it is provided in Section 32 of the Act that an appeal can be made in the Appellate Court upon the decisions made by the offices according to Sections 7, 8(b), 28, 29 and 30. Section 8 of the Judicial Administration Act 2048 provides that the Appellate Courts under their jurisdiction can hear the appeals against the decisions made by the quasi judicial bodies like Office of the Land Revenue.

Not only this, Section 32(b) of the Land Revenue Act provides that legal provision of departmental action upon the officials of the same office in their quasi judicial function which is determined by either by complaints or other sources. Upon such act, the Land Revenue Officer may declare such acts void and give decisions according to law.

Analysis

The quasi judicial functions provided to the Office of Land Revenue is an effective way of solving the disputes related to land. Generally, it has been considered an efficient mechanism to decrease the pressure of land related cases in the courts and also is expected to adjudicate land related disputes in a scientific way. But the act itself provided certain conditions where the party dissatisfied upon the decisions given by the Land Revenue Officer can appeal in the Appellate Court. It means that the party can appeal against only those decisions which have been given on the basis of Section 7, 8, 8(b), 28, 29 and 30. But the decisions given according to Section 32(a) and 32 (b) does not attract any provision of appeal in the Appellate Court.

Section 32(b) of the Act is itself contrary to the principle of natural justice. This is because the mistake done during the administrative procedure certainly affects the party. But the provision of declaring such acts void by the Land Revenue Officer and again giving decision has obstructed one to adopt the remedial measures in the case s/he is aggrieved from the mistake of the officer.

Conclusion

The quasi judicial functions of Office of Land Revenue makes it clear that the quasi judicial bodies are of great importance for the countries like Nepal. In the course of development, many technical disputes arise which needs a specialized agencies to solve those problems which are not always possible to be administered by courts. In fact, the developing states like Nepal have much concern in the formulation of economic policies, taxation policies, development plans, security system etc. In that case, disputes related to such issues if approaches formal judicial procedures in courts, results to piles of cases, rigid formalities and more cost. Besides, in the technical disputes, there is always a risk of non-proper decisions from the courts. Quasi judicial procedures, on the contrary is cost-effective, less time consuming and more effective. In the quasi judicial function, the quasi judicial bodies must be abide by the general principles of law. This fulfils the notion that quasi judicial bodies are the fulfillment for the judicial bodies.

Office of Land Revenue in this context although being an administrative office, has also been performing an effective role in the settlement of disputes related to land in Nepal. The quasi judicial authority provided by the Land Revenue Office has been proven an effective aid in settling the disputes from the office itself. But some provisions in the Act themselves stand contrary to the general principles of law. The legislature should take such provisions in its concern. Besides, there are much chances in the manipulation of record or decisions from the officials of the Land Revenue office. And in the name of mistake, every manipulation of records if are termed as unintentional rather to be the general mistakes made by the officials, it results to the state of dishonesty. Hence, such provisions should be reviewed by the law making authority in such a way that public officials are made accountable to what they have done.

Bibliography

1.  Land Revenue Act 2034

2.  Judicial Administration Act 2048

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4.  Shrestha ,Gyaindra Bahadur, An Outline of Procedural Law, Pairai Prakashan

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[2] Gyaindra Bahadur Shrestha, An Outline of Procedural Law, Pairai Prakashan, 126.

[3] Gyaindra Bahadur Shrestha, An Outline of Procedural Law, Pairai Prakashan, 126.

[4] kjg s'df/ cf]‰mf, g]kfnsf] sfo{ljlw sfg'g, l;4fGt / Jojxf/, k}/jL k|sfzg, $.

[5] For example: d'n'sL P]g @)@) hUuf ldRg]sf] # g+, #-s_, hUuf cfjfb ug]{sf] !@ g+, hUuf khgLsf] !^ g+ cflb.

[6] Gyaindra Bahadur Shrestha, An Outline of Procedural Law, Pairai Prakashan, 127

[7] /fd s'df/ bfxfn, ;+j}wflgs sfg'g / g]kfn clw/fHosf] ;+ljwfg @)$&, /Tg k':ts e08f/, ef]6flxl6-@)%%_

[8] Section 3 of Malpot Act 2034