internship-submitted to law college

7/28/2019 Internship-submitted to Law College

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CHAPTER 1

INTRODUCTION

1.1 Introduction of the study

Decentralization is an umbrella term to denote the transfer of power from the

Center of the State to the Local Bodies. Delegation, de-concentration and deregulation

all leads to decentralization which is final goal of the power transfer. Decentralization

is a principle, which is being implemented in practice by local bodies.

Decentralization is a system whereupon power, responsibility and obligation of center

transfers to lower level authority by legal arrangement and in this system, state

provides services and facilities to people in easy and familiar way.

Decentralization is a kind of process of people participation in governance

system through local elected institution by way of limited autonomous process;

decentralization is also called as an institutionalization of local democracy.

"Decentralization is a process of separation of powers or division of power or division

of power".1 Decentralization as a tool of public participation on governance has a very

important role in development of every developing country like Nepal.

"Local self-governance is a system of governance, which is done by people's

elected local institutions. Despite their existence under the central government, they

have powers and duties to do several works on local level. They use their power as

well as wisdom without control of any superior authorities".2

Rule of Law has been recognized as fundamental aspect of the Democratic

Republic of Nepal and has constitutionally guaranteed an independent and competent

Judiciary. The constitution identifies decentralization as directive principle of the

state. The constitution further reads "the objective of the State shall be to maintain

peace and order, protect and promote human rights, promote public welfare in the

society, and create opportunities for the maximum participation of the people in the

governance by way of self governance ...."3

1 Dr. Surya Dhungel. Concept, Implementation and Institutional Inter-relation of Decentralization,

Contemporary Legal, Political & Parliamentary Problem, Vol 1 (SCOPE, Kathmandu- 1993),p.12

Ganeschandra Adhikari. Concept of Local Self Governance, 1st (ed.) (Urban Area Development

Project by Local Effort, Kathmandu, 2049), p. 113 Local Self Governance Act, 1999


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Although the constitution explores about the delegation of powers, provisions

about independent and competent judiciary, questions regarding the structures and

role of local bodies, their judicial powers, their financial powers are not answered in

constitution itself. Rather, statues made under the constitution have been used as a

tool to identify the LGs and their separate identity along with the vested judicial,

administrative and legislative powers.

Giving verdict and thereby justice to conflicting parties for any conflicting

case/issue is the power of judiciary. Evaluation of proofs and use of judicial mind are

the most important faculties of judicial decision. So, judicial activity consists of

technical aspects too. Acknowledgement of law, knowledge of precedent etc. are

some inherent aspects of justice delivery.

In line with the Interim Constitution of Nepal 2063, the legislation has

formulated and implemented an Act on local bodies called Local Self Governance

Act, 1999 (hereinafter LSGA) whereon principle and policies of local governance are

clearly mentioned. Similarly, Local Self Government Rules 1999 has also been

implemented under the LSGA. LSGA provides absolute judicial power to both

Village Development Committees (VDC) and Municipalities (MC) for the settlement

of petty cases4

.

We are strangled in the way of constitution making process and it's a big

challenge for all of us to drag the politics back on track to constitution making process

via public pressure. Eventhough, the first importance is of course is on making of

constitution, but what should not be forgotten that such constitution must include the

measures and ways for decentralization.

1.2 Statement of the Problem

Judicial power of LGs is necessary for easy, quick and effective justice

delivery. Having been directive principle of the constitution and also implemented an

Act regarding decentralization known as LSGA 2055. This study encompasses

various issues including the main problem of the study:

1. Whether the judicial power of Local Governments is sufficient or not, ifnot why?

4Local Self Governance Act, 1999 Section 33 & 101


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1.3 Objectives of the study

Every study or research work must contain an objective. This research work is

not an exception. This study will try to achieve the following objectives:

1. Explore decentralization and local self governance,2. Historical development of judicial power of Local Governments,3. Analyze judicial power of LGS under LSGA vested to Local Governments

in line with LSGA and LSGS.

4. Suggest in solving the problems of judicial power of LGs in present legalscenario.

1.4 Significance of the study

Decentralization and local self-governance are main tools for inclusive

progress of country. Nepalese are facing several problems due to lack of proper

decentralization. Statutory provisions on judicial power of LGs have recognized in

LSGA 1999 but practically, these are not seen yet.

This study would attempt to suggest how judicial power of LGs is executed in

performance. Some significance may be drawn as under;

1. This study would try to build an idea about judicial power and its practicalexecution,

2. Methods of delegation of judicial powers to the Local Governments,3. Concept significance of judicial power of Local Governments in Nepalese

context,

4. This study would be helpful for the individuals being actively involved in fieldof the local governments as well as those who seek knowledge of judicial

powers of local governments,

5. It would be helpful in developing policies about judicial power of LGs and6. Advise some useful proposition about development of existing statutory

provision.

1.5 Limitation of the study

Every research work and study has limitations and so does this study. It is very

difficult to encompass the provisions related to the decentralization. Globally, there


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are so many books and journals already written and many might be in the process of

getting published. In such context, it is virtually impossible to analyze the

propositions forwarded by those scholars. Thus, in order to give a fine tune to the

study, this study merely tries to search and analyze the statutory provision and

historical backgrounds of judicial power of LGs in Nepal. Basically, this study

collects the provision of judicial power of LGs from existing LSGA 1999 and LSGA

1999.

1.6 Methodology

The methodology of this study depends on doctrinal method. Both of primary

and secondary sources of data which are collected from different libraries and

institutions are used equally as per necessity.

1.7 Review of Literature

Lack of particular literature in context of Nepal has affected the literary review

of this study. Only very little number of concerned literatures is found. So, in this

study LSGA, 1999 is primarily reviewed as relevant literature and other relevant

books, reports, journals and articles were reviewed as literature.

Judicial Power of the Local Bodies in Nepal

5

", written by Prakash Wosti andothers, mainly covered Rationale of judicial power of LGs, historical background of

judicial power of LGs, Judicial power to hear and conciliation under Village

Development Act, 2048 etc.

Mukti Rizal in his article "Local Bodies and Judicial Power: A Brief

Analysis"6discussed on Judicial power of LGs means generally VDCs power to hear

and conciliation of local petty cases, historical background of judicial power of LGs,

lack of judicially competent manpower for delivery of justice.

In the article "Judicial Power of Local Bodies", written by Kashi Raj Dahal7

primarily denoted Concept of judicial power, rationale of judicial power of LGs.

5Prakash Wosti, Bed Prasad Siwakoti and Kashi Raj Dahal. Judicial Right of the Local Bodies in

Nepal. (NLS Kathmandu. 1992)6

Mukti Rizal. Local Bodies and Judicial Right: A Brief Analysis, Law Bulletin. Year 6, Vol. 52, (NLS

Kathmandu 2048), pp.27-337

Kashi Raj Dahal.Judicial Right of Local Bodies,Good Governance, Foundation of Local Democracy.


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Historical background of judicial power of LGs, short description of LSGA provided

judicial power of LGs.

These above mentioned literature are used as per necessity of the research

paper.

1.8 Organization of the study

The first chapter deals with introductory part of study, the second chapter

denotes to conceptual framework of the study, similarly, the third chapter contains

judicial power of LGs in Nepal. The fourth chapter concerns the Review of judicial

power of LGs and the last or fifth chapter covers the finding of study, conclusion and

Suggestions.


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CHAPTER 2

CONCEPTUAL FRAMEWORK

2.1 Brief Description of the Country

Nepal is a landlocked country located in South Asia bordering India to the

east, west and south, and the Tibetan Region of People's Republic of China in the

north. Mount Everest, the highest peak of the world, also lies in Nepal. Kathmandu is

the only Metropolitan City besides being the capital city. The total area of the country

is 147,181 sq. km. Even within this small geographical area, the country hosts

variance in climate, weather as well as other various geographical factors.

The country is situated between 8004' and 88 12' east, and 26 22' and

3027' north. The Himalayan ranges of the country are the great part of the long

Himalayan range. It has been divided into various regions regarding geographical,

ecological, administrative and political aspects. Geographically, the country is divided

into three broad regions: the Mountains (bordering China), the Hills (bordering India

and China) and the Terai (bordering India), constituting 35, 42 and 23 per cent of the

total land area respectively. The total population is 26.49 million having average

annual exponential population growth rate of 1.35%, where only 17.07% of people

resides in the Urban area. The population density is high in Urban i.e. 1381 per square

km. and moderate in rural area i.e. 153 per square km.8

Socio-culturally, Nepal is a multi-lingual, multi-religious, multi-ethnic and

multi-cultural country. Nepali is constitutionally recognized as the official language

but all other languages spoken in the country have been recognized as the language of

the Nation by the Interim Constitution 2063. Hindus, Buddhist, are the twopredominant religious groups in Nepal as per the 10th Population Census 2011.

The country is divided into 5 Development Regions and 14 Zones as per

administrative division of the country. Further, 75 Districts, 58 Municipalities

(including One Metropolitan, 4 Sub-Metropolitans and 53 Municipalities across the

country.

8Central Bureau of Statistics of Nepal, Summary of Population Census 2068.


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2.1.1 Judiciary in the Country

Regarding Judiciary, the Interim Constitution 2063 has provisioned

three levels of Courts i.e. Supreme Court, Appellate Court and District Court.

There is one Supreme Court at the top level, 16 Appellate Courts and 67

District Courts in the country. Provisions to establish other courts i.e. Special

Courts, courts to decide on election matters have also been stated in the

Interim Constitution.

2. 2 Decentralization and Local Self GovernanceA theoretical Aspect

Decentralization means a "political decentralization whereby local units of

government with independent powers are established."9 Further, political

decentralization is just only aspect. Decentralization in true sense involves executive,

legislative and judicial decentralization from the status apparatus to the lower level

people. In other words, transfer of executive power, legislative powers and judicial

powers from the central government to the local governments that are run by local

people.

Such transfer of power is possible only when there is elected local

governments because decentralization engages diverse forms of transferring

responsibility from central governments to local government that involves political,

administrative and judicial transfer as stated above. This is referred to as devolution.

Decentralization is a method of people's involvement in governance system

through locally elected institution. Decentralization is also called as

institutionalization of local democracy as it renders people the power to actively

participate in the governance system, eventhough, in the local level.

Among its various meanings and definitions, decentralization has been defined

as transfer of responsibility for planning, management and allocation of resources

from the central government ministries or agencies to subordinate units."10 It is not

possible and viable for the central government to look at all the issues of the people.

On the one hand it is costly affair and on the other hand people's problems and

9Dharmaraj Paudel. Local Governance and Democratization, Experience of Decentralization and

Local Self Governance in Nepal: challenge and Vision. (A DDCN, 2055). P.2710 UNDP. Nepal Human Development Report 2001, Poverty Reduction and Governance (UNDP.

Kathmandu, 2002), p.72


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aspirations are not known to the Center as much as it is known to the local

governments.

2.2.1 Decentralization as a Practice in Nepal

The constitution identifies decentralization as a directive principle of

the State: "the objective of the State shall be to maintain peace and order,

protect and promote human rights, promote public welfare in the society, and

create opportunities for the maximum participation of the people in the

governance by way of self governance ." 11

Principles and policies of local self-governance are clearly mentioned

on LSGA 1999. The act has provisions on devolution of powers and authority

to LGs. It desires to institutionalize development process by increasing

peoples' participation on the task of operation, division of means, and equal

and balanced distribution of resource for development of their own region.

Government will pursue various principles and policies of local self-

governance to achieve true essence of the decentralization. In our context and

in the world history too, emergence of concept of decentralization is the result

of historical necessity and people's wide demand and desire to be involved in

the governance system.

The concept of decentralization has been classified into four different

categories, namely deconcentration, delegation, devolution and privatization.

Decentralization as a tool of public participation on governance has a very

significant role in development of every developing country like Nepal.

Decentralization is a principle, which is being implemented in practice in

Nepal by local governments. Hence, local bodies as machinery of

decentralization play important role in nation building and development.

There are "two fundamental dimensions of decentralization namely (i)

decentralization as a means and (ii) decentralization as a philosophy. As a

means, decentralization is a process of transferring functions and powers from

central to local government units and organizations. As a philosophy,

decentralization entails the sharing of powers and functions between and

11The Interim Constitution of Nepal, 2007, article 34(2)


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among various levels of governments and other public and non-public

organizations and agencies as per the constitutional provision and other legal

stipulations and the activities undertaken by the central government to create

and institutionalize the local government institutions and other agencies and

organizations and enable them to identify and respond to the local needs and

priorities, mobilize and allocate resources and deliver services efficiently to

the local people and communities"12. In short, means of decentralization is

practical aspect and philosophy of the decentralization is its theoretical aspect.

Practice is essentially governed and manipulated by the theoretical aspect of

decentralization.

"Constitutional and legal requirements are undoubtedly indicatingrequisite and significance of decentralization on our context. One difference in

the present decentralization movement is that it is a result of the democratic

process and associated with the liberation of political aspirations and the

establishment of plural political institutions at all levels of society."13

2.2.2 Local Governments

A local government can be defined as locally elected self

governing/autonomous and multipurpose political institutions delivering goods

and services to the people of a legally demarcated locality to whom it is

accountable and performing other functions legally conferred to it by its

creator-the central government to whom it has upward responsibility14.Local

self-governance is autonomous institution of local people that is incorporated

by election for versatile development of local area and it has legal power to

activate all programs, which are related to increase life standard of local

people15

.

In summary, local self-governance, we can define it, as is a process of

governance at which lower level authority has legally power, responsibility

12Tulsi Narayan Shrestha. The Concepts of Local Government and Decentralization. 1

sted. (Ratna

Pustak Bhandar. Kathmandu. 1996) p.6313

Donald Curtis. Support for Decentralization in Nepal. UNDP, 1992 p.5914

Tulsi Naravan Shrestha. The Concepts of Local Government and Decentralization. 1st

ed. (Ratna

Pustak Bhandar, Kathmandu. 1996). p.615 Ganeshchandra Adhikari. Concept of Local Self Governance. 1st (ed.) (Urban Area Development

Project by Local Effort, Kathmandu, 2049). p.11


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and obligation to provide services and amenities for buildup of peoples life

standard by peoples own contribution in power process.

Democratic system of governance is precondition for organization of

welfare state. Cause of emergence of institution as Local self- governance for

completion of this sort of requirement. It is very essential to slot in and

function of local independent institutions for making welfare state more

productive and significant to people. Local self-governance is obligatory

reality of modern circumstances.

"Local people have opportunity to widest involvement in governance

themselves through their own elected representatives, is [the] concept of Local

self governance."

2.3 Justice, Judiciary and Concept of Judicial Power

Each and every society in the world suffers from conflict. Concept of justice

aroused from the fact that conflict can only be minimized no prevented. So, the

principle of judiciary and judgment system developed all over the world. The wise

method is to seek the way out in the court room with explanation of facts and issue.

The better the judgment system the better will be the justice. "Justice is issuing of

decision by inventing truth and making it favorable to value and norm of time and

human thought."16

However, it must be noted that, justice cannot be delivered of the ashes.

Analysis of facts and issues, analysis of the legislative mandates, proofs, evidences,

and analysis of legal provisions are the primary factors affecting the delivery of

justice or judgment process. "Judicial task is task to giving decision over disputes

between conflicting parties that might be either people and people or people and

government with evaluating arguments, evidence and pleading of both sides by

determining which law should be prevailed on the particular dispute. It is power of the

court and this task of delivering justice is called judicial task."17

Giving verdict and thereby justice to conflicting parties for any conflicting

case/issue is the power of judiciary. Evaluation of proofs and use of judicial mind are

16Rewati Rarnan Khanal. Outline of Legal Hisiory of Nepal. 1

sted. (Kathmandu. 2059), p.69

17 Na Su. Mukti Sharma vs. S.F. Tek Bahadur Raymajhi, NKP 2017 (Reprinted by Saman Publication

Pvt. Ltd 2057), p. 110


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the most important faculties of judicial decision. Judicial activity consists of technical

aspects too. Acknowledgement of law, knowledge of precedent etc. are some inherent

aspects of justice delivery. So, "judicial power is power of delivering justice on the

conflicting issue with evaluation of proofs and use of judicial mind."18 Judiciary

controls the Balance of Power of the Government bodies i.e. executive, legislative and

the judiciary itself.

2.4 Necessity of Judicial Power of Local Governments and Decentralization

Today's world is the world of 21st Century. People desire for fast decision for

everything and judiciary cannot be an exception. As "justice delayed is justice

denied", one should not be made wait longer for getting judgment or justice. But, due

to demographic, geographic, infrastructural, human resource, technical as well as

numerous other reasons, it might not be feasible to reward people with timely

judgment on issues of conflict. Nepal is a developing country and that lacks

fundamental requirements in order to give verdict in timely manner. So,

decentralization has become a necessity in Nepal in order to reduce the number of

cases in the formal courts and to provide people with fast judgment in minor cases.

As already explained, decentralization of judicial power is inherently

connected with decentralization itself. State's authority cannot be transferred to the

local authorities in true sense until and unless the power of judiciary is transferred to

local level. Decentralization is all about peoples involvement on development and

decision making process indicating re-allocation of powers from the central

government to the people.

Decentralization is a process of people's participation in government through

locally elected bodies. It improves transparency, responsibility and accountability on

the side of government and authorities towards the people by way of constant

surveillance by the people to the locally elected bodies working on local level. It helps

to refine government services and facilities to the people with constant vigilance over

government authorities by the people directly. Further, the local bodies consist of the

representatives of the peoples of local area so they are bounded to give justice to

themselves by giving justice to their own region/area/locality.

18 Kashi Raj Dahal.Judicial Right of Local Bodies . Good Governance: Foundation of Local Democracy.

Ganga Bahadur Thapa ed. (POLSAN. Embassy of Finland Kathmandu. 1999). pp.122-129


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Decentralization means not only transfer of executive powers from center to

grassroots but also the transfer of judicial decentralization. Thus, transfer of

executive, administrative, economic coupled with judicial power from the central

government to the local authorities is decentralization in true sense.

The people has right to access to easy, inexpensive and straightaway justice.

Justice is, along with social and human issue, a technical issue too. As such, transfer

of judicial power and authority cannot be transferred hastily to the LGs without

proper arrangement and management of necessary infrastructure. Here major

infrastructure does not focus on physical infrastructure but the human resource having

technical knowledge of the legal procedures and concepts.

Transfer of judicial power to the Local authorities is inevitable. It is required

to provide the people an inexpensive justice at their own locality from the people who

know the locality. In this regard, transfer of judicial power also includes building of

necessary human resource at least by providing trainings at the local level to the local

people who will be finally engaged in deciding cases on local level.

Judicial power may be, thus, regarded as an inherent power as well as right of

the local people. To respect the inherent power of people, each and every nation

should establish and activate the machinery of judicial decentralization. Hence, "if

there is no provision for use of judicial power in local level, principle of

decentralization has no any rationale."19

2.5 Governance System and Judicial Power of Local Government

Needless to mention, state is the combination of Population, Sovereignty,

Land and the Government. Similarly, state is the combination of executive, legislative

and the judiciary. Thus, the function of the states is categorized into three categories:

a) executive function, b) legislative function, and c) judicial function.

Local governments, being themselves the government on local level by virtue

of transfer of power from the State apparatus or Central Government, should have all

those functions of Central Government i.e. executive, legislative and judicial. To give

true essence of decentralization in, LSGA, that governs the aspects of decentralization

19 Kashi Raj Dahal.Judicial Right of Local Bodies, Good Governance, Foundation of Local Democrary.

Ganga Bahadur Thapa ed., (POLSAN, Embassy of Finland Kathmandu. 1999). p. 124


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in Nepal, has delivered the above mentioned rights required for them. As such LSGA

1999, has set the three main functions for MC and VDC as follows;

a) Executive function: Collect of tax and revenue20, implementation ofplan and program med relating to agriculture, construction and

transportation, education and sports. Physical development, health,

forestry and environment, language and culture, etc.21

b) Legislative function: pass the budget, plan and program,22 passresolutions to collect tax and revenue,23 formulate bylaws.24

c) Judicial function: proceed and settle various types of cases.25

20Local Self Governance Act, 1999, Section 55-57, 136-145

21Ibid. section 28 & 96

22Id. section 26(1 )(a) & 96(1 )(a)

23Id. section 26(1)(b) & 96(1)(b)

24 Id. section 265(2)25

Id. section 33-41 & 101-109


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CHAPTER 3

JUDICIAL POWER OF LOCAL GOVERNMENTS IN NEPAL

3.1 Rationale of Judicial Power of Local Governments

Lack of legislative body (after the Constituent Assembly dissolved) resulted

into shortage of required number of Justices in Supreme Court as Parliamentary

hearing is a mandatory provision for recruiting Justice in Supreme Court as per the

Interim Constitution of Nepal 2063. So, Parliamentary hearings could not be

conducted resulting into vacant seats of Justice in the Supreme Court. Now the

problem has further sustained as that election of Parliament or the Constituent

Assembly is in dilemma. This has affected the procedure of judge appointment in

lower level courts too, namely, district courts and appellate courts.

Consequently, the decentralization of judicial power to locally elected bodies

through legal means has become necessary phenomenon. On the one hand, workload

of court is increasing and justice is not easily accessible and other, as petty disputes

are also under jurisdiction of regular court, justice is a far cry for the general people.

Justice delivery has also been strangled as a result of our geographical circumstances

too.

To address these problems, Court Management Committee has suggested that

"by adopting concept of decentralization local authority should be empowered to

settle petty cases through process of arbitration and it should he spelt out on

concerned laws of local bodies and it is necessary and suitable that power to settle of

several petty cases should be provided to arbitration committee."26

Definitely, the local authorities have knowledge about local problems and

conflict so they can better provide proper justice to people located at theirsurroundings. This sort of justice administration system supports to increase peoples

trust in governance system and process. It also helps to have Good-Governance.

The persons, who know the background as well as resulting consequences of

dispute and also the nature of disputant parties closely, may settle the dispute in a

better way. Settlement of the legal disputes of petty caseskeeps the parties away from

lengthy and tedious procedures of the court.

26 Honorable Justice Keshav Prasad Upadhyay. Presided Court Management Committee.

Suggestive Report on Court Management, 2055. (Kathmandu, 2055). p. 12


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Moreover, settlement of case through the court is a very costly affair.

Uneducated and illiterate people from the rural areas are not able to follow technical

rules of the court. Hence, "entrusting power to the LGs seems appropriate. It reduces

the cost of litigation, avoids unnecessary delays, and reduces the burden of court."27

Fundamentally, rationale of judicial power of LGs is that it saves time, money

and resources of people. As such, petty cases are on the rise in court rooms, effective

and better justice can be provided to the local people only through decentralization of

judicial power to the LGs. Appropriate arrangement of justice delivering institutions

for easy and inexpensive justice to people should always be the subject of research

because no one can invest more time, labor and money to get justice on petty cases. It

is not an easy task to access of justice through lengthy and tedious process. Due to allthese reasons, it has become very urgent and necessary that LGs settle the petty

civilian cases themselves.

3.2 Local Governments and their Jurisdiction

Nepal consists of Terai, Hill and Mountain regions. Division of administrative

and judicial bodies across the country might be inadequate due to lack of necessary

infrastructure on the part of government. As the country itself is a developing country,

it lacks resources and money to establish such institutions across the country. Thus it

has become necessary to delegate judicial power. The LSGA 1999 reads, "LSGA has

provided LGs to hear and settle following cases."28

a. Cases or border/boundary of land, public land, Sandhi Sarpan(inconvenience in respect of boundary or way-outs), Aali dhur, canals,

dams, ditches or allocation of water and encroachment on roads or way-

outs.

b. Cases on compensation for damage of crops,c. Cases on forced labor (Beth beggar) and cases under the Chapter on

wages.

d. Cases under the chapter on paupers,e. Cases under the chapter on missing and finding of quadrupedsf. Cases under no. 8 and 9 of the Chapter on construction of Houses

27Badri Prasad Bhandari.Judicial Rights of the Local Bodies Under Local Self - Governance Act,

1999. Nayadoot, Year 33. Vol 4 No.134. (NBA 2003). p.12928

Local Self Governance Act, 1999, Section 33 & 101.


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g. Cases under the Chapter on Kalyan Dhan (hidden and unclaimedproperties).

h. Cases under the Chapter on Deposits expect those under No. 5 of thatChapter.

i. Cases on providing expenses for food and clothing according to status andincome under No.10 of the Chapter on Partition,

j. Cases on uses of water bank (ghat) and security of public property,k. Cases under the Chapter on Quadrupeds other than the killing of cow,l. Cases on pasture land, grass, fuel woods,m. Cases on entering into, staying in or attempting to enter in or stay in

others house forcefully,

n. Except those cases referred to in Annex-i and Annex-2 of the GovernmentCases Act, 2049(1993), such other cases as assigned by Government of

Nepal by publishing a notification in the Nepal Gazette.

LSGA has focused on mutual understanding and conciliation before

proceeding in any cases, complaints and conflicts. Even if the case proceeds forward,

it is the, arbitration board that shall exercise judicial power of LGs. Rule 54 of LSGA

1999, has provisioned regarding the appointment of Arbitrators. As such, at first

instance, it attempts to settle cases in the form of conciliation as far as possible, in

condition of failure to attempt of conciliation the board delivers decision.

3.3 Dispute Settlement Procedure under LSGAEventhough, LSGA has provided such judicial authority and explicated about

the procedure of settling the particular and locally emerged cases at first instance. As

stated in section 33 and 101 of the act, it has put restriction that such judicial power

will be come into effect from such date as may be prescribed by Government of Nepal

by publishing a notification in the Nepal Gazette. And such notification has yet to be

published and thus, judicial power of LGs has not activated yet.

Regarding procedure of settlement of case, LGs use their judcia1 power

through an arbitration board as per the LSGA 1999. Three members arbitration board

shall be formed from amongst the persons enlisted in the list of arbitrators, to hear and

settle the cases filed in LGs under section 33 or 101 of LSGA. In cases the parties to acase fail to reach an agreement in the appointment of arbitrators by LGs, the parties


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should appoint each arbitrator of their own and provide the name of such arbitrator to

the LGs and LGs appoint the other arbitrator. If disputant parties fail to send name of

arbitrators LGs appoints all three arbitrators on their own. On all conditions, LGs will

designate one arbitrator as the chairman of the arbitration hoard.29

For the purpose of hearing and settling the cases filed, LGs will prepare a list

of arbitrators, setting out their names, surnames and addresses as well, comprising the

local persons and social workers including the women and backward community and

will get it published in the respective offices of LGs.30

The arbitrators collectively exercise their jurisdiction and the decision is taken

on the ground of opinion of majority. If the arbitrators hold different opinions, an

opinion supported by concern LG prevails on that matter.31 The arbitrators to the

extent possible cause the parties to negotiate with each other on the case submitted to

them and have the case compromised.32 In the cases where the arbitrators fail to settle

the cases by compromise, they exercise their jurisdiction on such case and decide it.33

lf the arbitration board fails to achieve the compromise between disputant parties or

fail to reach the majority or unanimous decision, their decision shall be submitted to

concern LGs and the opinion supported by the LGs shall prevail. Thats why

regarding provisions on procedures for the settlement of disputes we can clearly reachin the conclusion that LSGA has accepted both mediation and arbitration as a process

for settlement of cases.

29Local Self Governance Act, 1999, Section 34 & 102

30Ibid. Section 35 & 103

31Local Self Governance Act, 1999,Section 36 & 104

32 Ibid. Section 37(1) & 105(1)33

Id. Section 37(2) & 105(2)


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CHAPTER 4

REVIEW OF JUDICIAL POWER OF LOCAL GOVERNMENT

4.1 Problems on Judicial Power of Local Governments"A dog that barks do not bite" has been fully in line with the current situation

of the judicial power of the Local Bodies. They are granted with the judicial power

but such power has not been activated by publishing necessary notification to activate

in Nepal Gazette as prescribed in the LSGA 1999 itself. So, at first instance, judicial

power of the LGs has been handicapped as such power cannot be exercised. "It is as if

the showpiece teeth of an elephant."

Justice delivery is a crucial task. It is very hard to find a solution in which all

the disputant parties have a win-win situation on the disputed matter. As such, taking

into consideration the gravity of disputes, the task of justice delivery is hard, and

difficult, requires theoretical knowledge and in most cases causes at least one party to

the case suffer from the outcome.

Moreover, delivery of justice is the task of a court of justice. But, it is not

always viable in all conditions and situations. Besides, Nepal is a geographically very

complex and remote and the people find it hard to have easy access to the judiciarybodies i.e. Courts. Due to the lengthy process of formality and overload of several

cases in the courts, it is hard to get justice in proper period. Constitutional provision

clearly denotes that "powers relating to justice in Nepal to be exercised by courts and

other judicial institution in accordance with the provisions of the Constitution, the

laws and the recognized principles of justice."34 "Every judicial authority requires the

wisdom, the sagacity, broadmindedness, catholicity of outlook, constitutional culture

and the goal of justice system."35

LGs exercise their judicial authority only through Arbitration Board as spelt

out in section 34 of LSGA 1999. It plays role as main tool of settlement of disputes.

Arbitration Act, 2055 is a separate statute regarding arbitration. On the comparison

between these two statutes, there are not only many gaps in LSGA but it is

contradictory to Arbitration Act, 2055. LSGA has delivered power-of hearing of

34

The Interim Constitution of Nepal 2007Article, 10035Ramkrishna Timilsena. Basic Procedure and Other Related Subjects on the Course of Decision

Process of Quasi Judicial Authority. NvaydootYear 32. No. 3, Vol. 126. (NBA 2058). p.29


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appeal to District Court on the decision of Arbitration Board.36 But Judicial

Administration Act, 2048 did not give any power of hearing of appeal to District

Court. Some Public (Crime and Punishment) Act, 2027, Local Administration Act,

2028 and Forest Act, 2049 has authorized Chief District Office (CDO) to settle the

disputes about unauthorized entry into or stay in the others house, the disputes about

protection of public property and the disputes about pasture land, grass and fuel

woods in the area of National and Government Protected forest.

The main problems on the judicial power of LGs could be mentioned as under:

(a)Contradiction to Legal ProvisionConstitution provides the judicial authority to the courts but has not

described about the judicial power of local governments. According to

constitution, LGs could be treated neither as court or judicial institution nor as

special court or tribunal. There is no any provision mentioned in the Constitution

regarding the judicial power and authority of the Local Bodies.

By the view of separation of power and the above mentioned constitutional

phenomenon, how much appropriate to give judicial Power for LGs.37 A writ

petition was filed in the Supreme Court challenging the delegation of judicial

power to the VDCs and MCs on the ground that judicial power was to be

exercised by the court and demanded that section 33 to 42 and section 101-110 of

LSGA are inconsistent with the article 84, 85 and 86 of constitution hence, these

provisions should he declared as null and void ab initio. Apex Court quashed the

writ on the ground that these concerned provisions have not been activated by

publishing notification on Nepal Gazette. Government should publish the date of

activation of these provisions raised on petition and making the provisions

consistent with constitutional provisions. There is no condition of analyzing

whether inactive provisions are consistent or inconsistent with constitution.38

36Local Self Governance Act. 1999, Section 40 & 108.

37Shambhu Prasad Gyawali. Use of Judicial Right, an Unveiled Aspect of the Constitution.

Kanoon Vol 17. (Lawyers Club 2056). pp.47-4838Advocate Kalam Bahadur Khatri vs Secretariat of Parliament Singhadarbar and others, KP

2058. No.5\6. p.43


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Judicial Administration Act, 2048 has arranged provision about

jurisdiction of District Court. It has power to hear and settle at first instance all the

cases within its territory, except otherwise provided by other prevailing laws.39

(b)Conflict of JurisdictionConflict lies in the jurisdiction of the judicial power of the LGs. Some

examples may be drawn as under:

- Section 2(e) of Some Public (Crime and Punishment) Act, 2027 has authorizedChief District Office (CDO) to settle the disputes about unauthorized entry

into or stay in the other's house. By contrast, LSGA has made provision to

give this authority to LGs. Further, section 9(6a) and 10.A.(2) of Local

Administration Act, 2028 has made provision that CDO has power to settle the

disputes about protection of public property. In contrast, LSGA has made

provision to give this power to LGs.

- Moreover, section 49 of Forest Act, 2049 has authorized District ForestOfficer (DFO) to hear disputes relating to grazing and falling of trees in the

area of National and Government Protected forests. In contrast, LSGA has

made provision to give this power for LGs

- Arbitration is used to resolve commercial disputes but LSGA has madeprovision to use arbitration for solving only the socio-legal disputes.

Thus, there are contradictions in the provisions on various legal documents

such as Local Administration Act, LSGA, Some Public (Crime and Punishment)

Act, 2027 etc. Such contradictions also give rise to problem on jurisdictions of

LGs.

Political Control on Justice, lack of manpower, lack of people's

representative in local bodies are far reaching problem of the local governments in

the present context. More importantly, election have not been conducted since

2055/56 for the peoples representatives in the LGs, this has added severe

consequences regarding the transparency in the conduct of the LGs not only in the

Judiciary issues but also in the day to day administrative issues to.

After the People's Revolution orApril Movement of 2062/63, oncept of

decentralization through federalism has been in discussion in Nepal and also the

39Judicial Administration Act, 2048. Section 7


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fundamental aspect of the Interim Constitution of Nepal 2063. Federalism, also

one of the directive principles of the Constitution, has not been in practice since

there is no legal provision regarding the same except in the Constitution. So, it has

become vague to decide on the power of judiciary pertaining to the local

governments because of the new concept of federalism.

4.2 Essence of Judicial Power of Local Governments(a) Effective and Inexpensive Justice

Fast, easy, effective and fair judgment and justice delivery is the need

of the time. While delivering justice from court rooms, it takes lengthy formal

procedure, more money and it takes time to settle the case. Effective and

inexpensive justice is necessity of society and an urgent need of the present

21st century and a major measuring instrument of the success of any state

machinery too. Easy settlement of social/local conflicts and disputes creates

environment of peace and harmony in the society.

Peace and cooperation in society is possible only when judicial process

become transparent and accessible and people get effective and inexpensive

justice. Today's unrest and fighting in the world is because of unhealthy and

un-accessed justice by the people. Thus, social institutions should be

strengthened and made more capable of handling the social problems having

far reaching effect.

Local persons on LGs and the arbitration board of the same closely

know the consequences of dispute and nature of disputant parties, so they can

settle petty civil legal disputes better. It keeps the parties away from lengthy

and tedious procedures of the court.

From Supreme Court to the District Court, all the courts are filled with

hundreds of cases and many of such cases could have easily been handled and

arbitrated in local level had there been adequate system of judiciary on local

level. So, it becomes imperative to delegate judicial power to the local bodies.

Uneducated or illiterate people from the rural areas are not able to follow

technical rules of the court. Hence, entrusting power to the LGs seems


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appropriate thereby reducing the cost of litigation, avoids delays, and reduces

the burden of court.40

(b) Easy Access to Justice

Let alone the Appellate courts, there are not even required number of

district level courts in Nepal. We have 75 districts but only 67 district courts.

How could the people get justice easily when there is not even a district court

in their districts. Thus, delegation of judicial power to LGs has much

importance to award the people right to get easy access to justice. Further,

LSGA 1999 and LSGS 1999 have simplified procedures for settlement of

cases. And each and every VDC and MC are empowered to hear and settle

disputes, as mentioned on LSGA. It has decentralized justice from at least

district level to VDC, and MC.

(c) Justice at the Doorstep

Problems and disputes of one particular local body naturally differ

from another local body. When the problem itself differs, the resulting

judgment system and justice inherently differs from case to case basis.

Surroundings, locality and environment affect the incidents and cases. Thus,

the solution and settlement problems and disputes should be local based.

Hence, the meaning of justice of Doorstep. People must get justice at their

doorstep to get the fair justice. Justice delivering from LGs is effective as well

as practical too apart from delivering justice at the doorstep. It is the need of

the time too.

40Badri Prasad Bhandari. Judicial Rights of the Local Bodies Under Local Self-Governance Act,

1999. Nayadoot. Year 33. Vol 4 No.134. (NBA 2003). p.129


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CHAPTER 5

FINDINGS, CONCLUSION AND SUGGESTIONS

5.1 Findings

Delivery of justice is the task of the court of justice. But due to the lengthyprocedures and pile of cases in the courts, it is hard to accomplish justice

in timely manner.

Due to lack of sufficient manpower, resources and lack of sufficientnumber of court of justice, justice delivery is being delayed. "Justice

delayed is justice denied." Delayed justice gives more pressure to the

victims than the injustice.

Every judicial authority needs vital essentials such as proper informationof principle of law and justice, impartiality and wisdom.

Political interference on local people, and political control on justice hasraised doubt over the ability of LGs judgment.

The contradiction existing among laws has caused problems forimplementation of decentralized judiciary in the country.

Fairness and impartiality are the indispensable qualities of justice. Bycontrast, how a politically discriminated person nominated or elected in

local bodies could follow the previous mentioned qualities of justice.

LSGA is conflicting to other legal provisions regarding jurisdictions tohear and resolve the disputes.

There is constant lack of infrastructure on the local bodies to impartjustice. Also, there is lack of human resource to technically understand the

judicial problems and resolve the same.

Justice delivery is not the children's game. The government hasntpublished necessary announcement to apply statutory provision of judicial

power of LGs as provisioned in LSGA regarding notification in Nepal

Gazette.


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5.2 Conclusion

Decentralization is the need of the time. Not only people aspire for delivery of

state facilities and services at their doorstep but also the solution to the conflicts that

arises as a result of day to day to contact between human beings, humans and legal

persons. In line with the spirit and provisions of the Interim Constitution of Nepal

2063, LSGA has set out policy and principle of decentralization and local self-

governance.

People's participation on governance is major goal of the decentralization. It

improves transparency, accountability and responsibility on the part of government

regarding the facilities, services to be provided to the people from the State.

Procedural tediousness of the formal courts give rise to the need of alternative dispute

resolution (ADR). Thats why LSGA has also adopted concept of ADR for settling of

locally appeared disputes.

In our country courts are suffering from pile of cases on general matters.

Judicial bodies are full of cases and as a result justice delivery is being delayed. Thus,

the importance of ADR and arbitration for solving legal problems is heightening. In

this context, judicial power of LGs could play important role in upgrading judicial

system. It helps entire judiciary to reduce work loads of courts.

The judicial Power of LGs has further importance basically because of the

easy and less costly access to justice for the people. It proves the concept of

democracy in out context for the people, by the people and of the people mainly

because it renders justice to the people at their door steps. Judiciary at the local level

is indispensable and an inescapable part of present governance system. Even if we are

to constitute a Federal Governance System, the concept of Decentralized Judiciary has

to be adopted vigorously in order to solve the people's dire effort to get timely justice.

Decentralized judiciary will surely strengthen the judicial system of the country on the

whole. This will affect on all other power strata from legislative to the executive thus

rendering good environment for the governance system.

Restriction on imparting justice by the Local Governments as per the

provision on LSGA should be amended to create fair environment for the LGs.

Eventhough, there have been proper and sufficient legal provisions made by the

legislative of the country, such provisions have not yet come into effect because the


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government has not published such provisions in Nepal Gazette as necessary

requirement for activating the legal provisions. Despite having various problems on

grass level of LGs, efforts should be made to set up to impart justice from LGs.

5.3 Suggestions

Present study paper has various findings regarding the judicial power of the

Local Governments. It has reviewed the legal provisions thereof. Nothing in the world

is complete in itself, everything has lapses and weakness and so does the provisions

related to judicial decentralization in Nepalese context too. It is not bad that we have

lapses in our legal documents but it will be surely bad if we do not recognize them in

time and amend them in order to propagate efficient judicial administration and

justice delivery from local governments on local level thereby institutionalizing

democracy in the country.

To resolve the problems found during the study, following measures and steps

may be helpful:

Nepal Government must publish necessary notification in Nepal Gazetteso as to activate the provisions of LSGA, 1999 regarding judicial rights of

the LGs. Constitutional provisions are vague regarding the judicial powers to the

Local Governments lacking specific guidelines regarding the same. So,

specific guidelines regarding judicial provision of the LGs should be

formulated and implemented by the executive.

LGs must be provided with necessary infrastructure i.e. physicalinfrastructure, human resource, etc.

LSGA has been given power to hear appeal to district court which isinconsistent with section 7 of Judicial Administration Act, 2048. Section 7,

of JAA 2048 reads "District Court has power to hear and settle at first

instance all the cases within its territory, except otherwise provided by

other prevailing laws."

Such contradictory provision of Judicial Administration Act, 2048 shouldbe amended to avoid contradiction.

Inconsistent statues/laws/rules/regulations should be amended so as tomake them consistent.


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Politically affiliated arbitrators should be disqualified for minimizingpolitical control and intervention as well as interference on justice.

LGs are lying vacant due to non-election since more than a decade. It hasbeen already late to fulfill vacant position of the local governments withelected persons through fair election. Without representative of the

peoples, there is very little chance of establishing proper judicial activities

in local government.

LGs must be provided with proper financial resources so as to settledisputes the cases without burdening the people for the cost involved and

incurred while settling the disputes. This will create belongingness towards

the government from the side of the people.


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Bibliography

Statues, Acts, Rules

Interim Constitution of Nepal, 2007

Forest Act, 1993

Judicial Administration Act, 1991

Local Self Governance Act, 1999

Local Administration Act, 1971

Some Public (Crime and Punishment) Act, 1970

Village Development Committee Act, 1991

Local Self Governance Rules, 1999

Books and Reports

Khanal, Rewati Raman - Out line of Legal History of Nepal, Kathmandu, 2002

Martinussen, John -Local Authorities in Nepal, LDTA, Kathmandu, 1993

NLS - Seminar Proceeding Report Effective Decentralization Strategy in

Nepal, Kathmandu, 1996

Ojha, Pawan Kumar - Dictionary of Legal Maxims, Phrases and Abbreviations,

Democracy, Development and Law, Kathmandu, 2001

Oppe, A. S. - Whartons Law Lexicon, Universal Law Publishing Co. Pvt. Ltd.

Delhi, 1997

POLSAN -Promoting Participatory Democracy in Nepal, Kathmandu, 1998

Roy Chowdhury, S.R. and Saharay H. K. - Law of Arbitration and Conciliation,Eastern Law House, Calcutta, 1997

Shrestha, Tulsi Narayan - The concepts of Local Government andDecentralization, Ratna Pustak Bhandar, 1996

Central Bureau of Statistics - Nepal Population Census Summary Report 2011,

Kathmandu

Wosti, Prakash, Bed Prasad Siwakoti and Kashi Raj Dahal - Judicial Powers

of Local Bodies in Nepal,NLS, Kathmandu, 1992


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Various periodicals and Journals

Kanoon

Nyayadoot

Law Bulletin


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Table of Contents

Acknowledgement i

Acronyms ii

Abstract iii

CHAPTER 1

INTRODUCTION

1.1 Introduction of the study 1

1.2 Statement of the Problem 2

1.3 Objectives of the study 3

1.4 Significance of the study 3

1.5 Limitation of the study 3

1.6 Methodology 4

1.7 Review of Literature 4

1.8 Organization of the study 5

CHAPTER 2

CONCEPTUAL FRAMEWORK

2.1 Brief Description of the Country 6

2.1.1 Judiciary in the Country 7

2. 2 Decentralization and Local Self GovernanceA theoretical Aspect 7

2.2.1 Decentralization as a Practice in Nepal 8

2.2.2 Local Governments 9

2.3 Justice, Judiciary and Concept of Judicial Power 10

2.4 Necessity of Judicial Power of Local Governments and Decentralization 11

2.5 Governance System and Judicial Power of Local Government 12

CHAPTER 3

JUDICIAL POWER OF LOCAL GOVERNMENTS IN NEPAL

3.1 Rationale of Judicial Power of Local Governments 14

3.2 Local Governments and their Jurisdiction 15

3.3 Dispute Settlement Procedure under LSGA 16


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CHAPTER 4

REVIEW OF JUDICIAL POWER OF LOCAL GOVERNMENT

4.1 Problems on Judicial Power of Local Governments 18

(a) Contradiction to Legal Provision 19

(b) Conflict of Jurisdiction 20

4.2 Essence of Judicial Power of Local Governments 21

(a) Effective and Inexpensive Justice 21

(b) Easy Access to Justice 22

(c) Justice at the Doorstep 22

CHAPTER 5FINDINGS, CONCLUSION AND SUGGESTIONS

5.1 Findings 23

5.2 Conclusion 24

5.3 Suggestions 25

Bibliography 27

internship-submitted to law college

Documents