Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Ajit Kumar and Siddhartha Varma, JJ.,  while holding that its’ their constitutional duty to save innocent people from the pandemic and in order to break the chain of COVID-19 pandemic, people are to be restrained from going outside their homes for a week, expressed that:

Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people.

It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.

Recent surge in the COVID-19 pandemic has virtually incapacitated the medical infrastructure in the State of U.P. and especially in cities like Prayagraj, Lucknow, Varanasi, Kanpur and Gorakhpur.

“…pandemic is teasing the system in a situation where patients have outnumbered the hospital beds and people are just running from pillar to post and in this process attendants of patients are not only getting infected but others in public are also getting infected and a complete chain has got formed.”

Court stated that before the pandemic spirals to engulf in it the entire population of these badly hit districts, it is necessary to take some harsh steps in larger public interest.

Further, the Bench remarked that it understands the limitation of the government in creating infrastructure to meet the challenge of COVID-19 and at the moment efforts are afoot to create the same but before all the efforts are translated into action much water would have flown under the bridge to the utter dismay of a large population of have nots.

“…in a democracy there are legitimate expectations from the government to adopt measures to meet public health issues like all other issues of public interest. Public interest expects judiciary to remain vigilant to all the issues which if not addressed to in time, will result in the failure of the system which is meant to safeguard public interest.”

Adding to the above, High Court stated that if people die of pandemic in a large number due to paucity of sufficient medical aid it would be the governments to blame that failed to counter the pandemic even after one long year of experience and learning. One would only laugh at us that we have enough to spend on elections and very little to spend on public health.

Calling early testing scheme or plan a farce, Court elaborated stating that the reports are neither updated before 72 hours nor, samples are taken care of, owing to the shortage of manpower. Only VVIPs have been getting the reports within 6-12 hours.

Economy, economy and economy is the only tune that the government is all the time harping upon, but bread and butter if you take to a person who needs oxygen and medication, it will be of no use to him.

Pomp show of Development

Calling out the Government, Bench expressed that if hospitals’ staff and medicos go ill for the relentless services to cure people in the pandemic, people would start losing their lives and all pomp and show of development would be of no avail.

Looking at the present situation, Court stated that night curfew in the name of Corona Curfew and Weekend Curfew are nothing else but a mere eyewash.

Not being satisfied with the Government efforts, Court stated that people are largely not following the Court’s Order for putting masks on their faces nor, the police could ensure 100% masking till date.

Due to the elections being conducted, police was virtually shifted to polling places giving priority to election above public health.

No Social Distancing

High Court stated that on many occasions in various political rallies masks were never worn by people. In our considered view action is liable to be taken against the organisers who did not anticipate such eventualities under the Uttar Pradesh Public Health Epidemic Diseases Act, 2020 and/ or any other relevant Act in force.

Admission of patients to ICUs have been largely done on the recommendations of VIPs. Even supply of life saving anti-viral drug namely Remdesivir is being provided only on the recommendation of VIPs. VIPs and VVIPs are getting their RT-PCR report within 12 hours, whereas, ordinary citizen is kept waiting for such reports for two to three days and thus, spreading further infection to other members of his/her family.

If popular government has its own political compulsions in not checking public movements during this pandemic, we cannot remain mere passive spectators.

We can’t shirk away from our constitutional duty to save innocent people from the pandemic which is spreading due to the negligence of a few.

Direction passed by the Court:

  • All establishments be it government or private, except financial institutions and financial departments, medical and health services, industrial and scientific establishments, essential services including municipal functions, and public transport, shall remain closed till 26th April, 2021. The judiciary will, however, function on its own discretion;
  • All shopping complexes and malls shall remain closed till 26th April, 2021;
  • All grocery shops and other commercial shops excluding medical shops, with more than three workers, shall remain closed till 26th April, 2021;
  • All hotels, restaurants and even the small eating points on thelas etc. shall remain closed till 26th April, 2021;
  • All institutions like educational institutions and other institutions relating to other disciplines and activities be it government, semi-government or private shall remain closed including for their teachers and instructors and other staff till 26th April, 2021 (this direction is for the whole of Uttar Pradesh);
  • No social functions and gatherings including marriage functions shall be permitted till 26th April, 2021. However, in case of already fixed marriages a necessary further permission would have to be taken from the District Magistrate of the concerned district. Gatherings would be limited to 25 persons and the district magistrate concerned shall take a decision after giving due consideration to the prevailing situation of the impact of Covid 19 including notification of containment zones in the area where such marriage has to take place;
  • All religious activities in public of any kind is directed to remain suspended till 26th April, 2021;
  • All religious establishments of any kind are directed to remain closed till 26th April, 2021;
  • All hawkers including fruits and vegetable vendors, milk vendors and bread vendors, shall go off the road by 11 AM every day till 26th April, 2021;
  • Containment zones shall be notified every day in two leading Hindi and English newspapers having wide circulation in the districts of Prayagraj, Lucknow, Varanasi, Kanpur Nagar/ Dehat and Gorakhpur.
  • All public movements on roads would remain restricted completely, subject to above directions. Movements would be only allowed in case of medical help and emergencies.
  • In addition to the above directions, we direct the State Government to go robust for implementing the current vaccination programme.

Court directed for the order to be sent to Chief Secretary, Government of Uttar Pradesh today to enforce the above directions from the night of 19-04-2021 till 26-04-2021 in the cities of Prayagraj, Lucknow, Varanasi, Kanpur Nagar, and Gorakhpur.

Our above directions are nowhere close to a complete lockdown. 

While concluding the High Court remarked that:

In this order if we have not imposed a lockdown it does not mean that we do not believe in it. We are still of the view that if we want to break the chain a lockdown for a duration of at least two weeks is a must.

 Government shall consider the imposition of a complete lockdown in the entire state.

Matter to be put up again on 26-04-2021. [In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive v. State of U.P., 2021 SCC OnLine All 273, decided on 19-04-2021]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., addressed an issue in light of the principles of judicial review explained that the Government must have freedom of contract.

 “…fair play in the joints is a necessary concomitant for an administrative body, functioning in an administrative sphere or quasi-administrative sphere.”

Factual Matrix

Petitioner was awarded a contract by the respondent – Navi Mumbai Municipal Corporation for a period of 5 years of the work of mechanized housekeeping and multi-purpose services in its health centres, which came to be terminated in 2017 due to non-satisfactory performance.

Issue in the Writ Petitions 

  • Fresh Tender issued for the same work but with a pre-qualification criterion that an eligibility condition providing that “the contractors whose work contract is terminated due to unsatisfactory services or are blacklisted would not be eligible to participate in the tender”

Arbitration Proceedings

On being aggrieved with the termination of contract, arbitration proceedings by the petitioner were initiated against the Corporation.

Petitioner’s Case

Petitioner’s case that if the petitioner is held to be ineligible by application of the said note in Clause 4(g) of the pre-qualification criteria, it would lead to a consequence that the petitioner cannot participate in such contracts of the Corporation although the petitioner is not blacklisted or debarred and yet is being prohibited to participate in such re-tender.

Discussion and Conclusion

Question that falls for determination in the present matter are:

(I) Whether the Municipal Corporation is entitled in law to impose a pre-qualification criterion as contained in Condition 4(g) (supra) to the effect that ‘the contractors whose work contract is terminated due to unsatisfactory services are not eligible to participate in the tender’?

(II) Whether imposing such impugned condition would amount to blacklisting of the petitioner?

In the present matter, while considering the facts and circumstances of the case, Bench discusses some vital points with respect to:

  • legal principles on the authority of the State and its instrumentalities to enter into contracts and
  • Principles of Judicial Review.

Power of Judicial Review is exercised to rein in unbridled executive functioning.

It is not the function of the Court to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administration. The duty of the court is to confine itself to the question of legality of the tender process on the touchstone of Article 14 of the Constitution.

It is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. The only concern should be with the manner in which such decision have been taken.

On what grounds is the Judicial Review classified:

Firstly, Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it;

Secondly Irrationality, namely, Wednusbury unreasonableness, that is when a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.;

Thirdly Procedural impropriety. The Court does not sit as an appellate authority over the tendering authority, but merely reviews the manner in which the decision was made.

Bench in view of the above-stated expressed that the terms of the invitation to tender cannot be open to judicial scrutiny as an invitation to tender is in the realm of contract.

Further, it was added that the Government must have freedom of contract. Principles laid above are enunciated in the Supreme Court decision of Tata Cellular v. Union of India, (1994) 6 SCC 651.

With respect to taking a review of the authorities and more particularly on the prescription and adherence of essential conditions has laid down principles of judicial review in the Supreme Court decision of BSN Joshi &. Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548.

High Court elaborating more, added that the freedom to arrive at legitimate terms and conditions in inviting public offers cannot in any manner be taken away.

Cherished principles of free play in the joints and the liberty to choose a contractor, on terms and conditions fixed by the tendering authority in public interest, cannot be taken away.

Court would not have any expertise to sit in appeal over the tender conditions, the role of the Court is triggered only qua the decision-making process.

Moving forward, Bench examined whether Corporation acted either malafide or arbitrarily with material illegality in having a condition to restrict participation of a bidder whose contract is terminated due to unsatisfactory services?

 It was noted that the said condition was applicable to all the bidders and not just to the petitioner. The corporation made it clear with its condition that it did not desire a party whose work was unsatisfactory in the past to get onboard again, hence in Court’s opinion, the said condition became imperative, considering the nature of the contract.

Hence, Corporation’s condition was in no manner arbitrary and illegal. Therefore, Corporation was entitled in law to impose pre-qualification criteria as it did.

Second Question

 Imposing of impugned condition resulted in blacklisting the petitioner from participating in the tender in question?

Bench in light of the above question noted that a contractor cannot be blacklisted for having breached the terms and conditions of the contract unless a fair hearing was accorded to the party being blacklisted in due adherence to the principles of natural justice.

In Court’s Opinion, the present case is not the one wherein the petitioner can be said to be blacklisted by the Corporation.

In fact, the petitioner’s case is of an implied blacklisting by the Corporation by prescribing of a pre-bid criteria that a contractor whose work contract is terminated due to unsatisfactory performance is not eligible to participate in the tender.

Hence, present case is not of blacklisting.

It is also fallacious for the petitioner to label such condition as a condition of an implied blacklisting of the petitioner in future tenders to be issued by the Corporation. This is only a presumption of the petitioner. 

Concluding with the decision, High Court held that the petitions failed and were accordingly rejected. [BVG India Ltd. v. State of Maharashtra, 2021 SCC OnLine Bom 412, decided on 19-03-2021]


Advocates before the Court:

Mr. V. A. Thorat, Senior Advocate with Mr. Ashutosh M. Kulkarni and Mr. Sarthak S. Diwan for the Petitioner.

Mr. Sandeep Marne, for the Respondents.

Mr. P. P. Kakade, Government Pleader with Ms .R.A. Salukhe, AGP for State.

Hot Off The PressNews

Here’s the press statement released by the Ministry of External Affairs with regard to the comments by some foreign individuals and entities on the farmers’ protests:

“The Parliament of India, after a full debate and discussion, passed reformist legislation relating to the agricultural sector. These reforms give expanded market access and provided greater flexibility to farmers. They also pave the way for economically and ecologically sustainable farming.

A very small section of farmers in parts of India have some reservations about these reforms. Respecting the sentiments of the protestors, the Government of India has initiated a series of talks with their representatives. Union Ministers have been part of the negotiations, and eleven rounds of talks have already been held. The Government has even offered to keep the laws on hold, an offer iterated by no less than the Prime Minister of India.

Yet, it is unfortunate to see vested interest groups trying to enforce their agenda on these protests, and derail them. This was egregiously witnessed on January 26, India’s Republic Day. A cherished national commemoration, the anniversary of the inauguration of the Constitution of India, was besmirched, and violence and vandalism took place in the Indian capital.

Some of these vested interest groups have also tried to mobilise international support against India. Instigated by such fringe elements, Mahatma Gandhi statues have been desecrated in parts of the world. This is extremely disturbing for India and for civilised society everywhere.

Indian police forces have handled these protests with utmost restraint. It may be noted that hundreds of men and women serving in the police have been physically attacked, and in some cases stabbed and seriously wounded.

We would like to emphasise that these protests must be seen in the context of India’s democratic ethos and polity, and the efforts of the Government and the concerned farmer groups to resolve the impasse.

Before rushing to comment on such matters, we would urge that the facts be ascertained, and a proper understanding of the issues at hand be undertaken. The temptation of sensationalist social media hashtags and comments, especially when resorted to by celebrities and others, is neither accurate nor responsible. ”

#IndiaTogether

#IndiaAgainstPropaganda


Ministry of External Affairs

[Press Statement dt. 03-02-2021]

Cabinet DecisionsLegislation Updates

The Cabinet Committee on Economic Affairs considered and approved the proposal of Department for Promotion of Industry and Internal Trade for Central Sector Scheme for Industrial Development of Jammu & Kashmir. The scheme is approved with a total outlay of Rs. 28,400 crore upto the year 2037.

Government of India has formulated the New Industrial Development Scheme for Jammu & Kashmir (J&K IDS, 2021) as a Central Sector Scheme for the development of Industries in the UT of Jammu & Kashmir. The main purpose of the scheme is to generate employment which directly leads to the socio-economic development of the area. Considering the historic development of reorganization of Jammu & Kashmir with effect from 31.10.2019 into UT of Jammu & Kashmir under the J&K Reorganisation Act, 2019, the present scheme is being implemented with the vision that industry and service-led development of J&K needs to be given a fresh thrust with emphasis on job creation, skill development and sustainable development by attracting new investment and nurturing the existing ones.

The following incentives would be available under the scheme:

  1. Capital Investment Incentive at the rate of 30% in Zone A and 50% in Zone B on investment made in Plant & Machinery (in manufacturing) or construction of the building and other durable physical assets(in service sector) is available. Units with investment upto Rs. 50 crore will be eligible to avail this incentive. Maximum limit of incentive is Rs 5 crore and Rs 7.5 crore in Zone A & Zone B respectively
  2. Capital Interest subvention: At the annual rate of 6% for maximum 7 years on loan amount up to Rs. 500 crore for investment in plant and machinery (in manufacturing) or construction of building and all other durable physical assets(in service sector).
  3. GST Linked Incentive: 300% of the eligible value of actual investment made in plant and machinery (in manufacturing) or construction in building and all other durable physical assets(in service sector) for 10 years. The amount of incentive in a financial year will not exceed one-tenth of the total eligible amount of incentive.
  4. Working Capital Interest Incentive: All existing units at the annual rate of 5% for maximum 5 years. Maximum limit of incentive is Rs 1 crore.

Key Features of the Scheme:

  1. Scheme is made attractive for both smaller and larger units. Smaller units with an investment in plant & machinery upto Rs. 50 crore will get a capital incentive upto Rs. 7.5 crore and get capital interest subvention at the rate of  6% for maximum 7 years
  2. The scheme aims to take industrial development to the block level in UT of J&K, which is first time in any Industrial Incentive Scheme of the Government of India and attempts for a more sustained and balanced industrial growth in the entire UT
  3. Scheme has been simplified on the lines of ease of doing business by bringing one major incentive- GST Linked Incentive- that will ensure less compliance burden without compromising on transparency.
  4. Scheme envisages greater role of the UT of J&K in registration and implementation of the scheme while having proper checks and balances by having an independent audit agency before the claims are approved
  5. It is not a reimbursement or refund of GST but gross GST is used to measure eligibility for industrial incentive to offset the disadvantages that the UT of J&K face
  6. Earlier schemes though offered a plethora of incentives. However, the overall financial outflow was much lesser than the new scheme.

Major Impact and employment generation potential:

  1. Scheme is to bring about radical transformation in the existing industrial ecosystem of J&K with emphasis on job creation, skill development and sustainable development by attracting new investment and nurturing the existing ones, thereby enabling J&K to compete nationally with other leading industrially developed States/UTs of the country.
  2. It is anticipated that the proposed scheme is likely to attract unprecedented investment and give direct and indirect employment to about 4.5 lakh persons. Additionally, because of the working capital interest subvention the scheme is likely to give indirect support to about 35,000 persons.

Expenditure involved:

The financial outlay of the proposed scheme is Rs.28,400 crore for the scheme period 2020-21 to 2036-37. So far, the amount disbursed under various special package schemes is Rs. 1,123.84 crore.


Cabinet Committee on Economic Affairs (CCEA)

[Press Release dt. 07-01-2020]

[Source: PIB]

Op EdsOP. ED.

1. That the era of modernisation has brought about a radical change in the manner of functioning of not only private undertakings but also the Government. The functions of modern Government extend much beyond the sovereign functions such as legislating, and now the Government is a key functionary in the commercial arena as well, primarily by delegating infrastructure development to private entities by floating tenders.

2. The Government has now started delegating the task of infrastructure development to private entities which work directly under the supervision of the Government Departments concerned or any instrumentality of State, which now forms an essential part of the trade and commerce activities carried out by the Government. The power of the Government to enter into contracts has been recognised under Article 299 of the Constitution, which states as under:

299. Contracts.– (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.

(2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.”

3. The above raises an important question as to whether the Government should be subjected to the same rigours as other individuals or does it have any special rights over and above the rights available with ordinary contracting parties under the Contract Act, 1872?

4. The State authorities which are then tasked with the responsibility of infrastructure development should be deemed to act reasonably even though they are acting in a private law capacity. The doctrine of arbitrariness should not only extend to testing the effect and enforcement of legislations but also to provisions of contracts, particularly, contracts whose enforcement is widespread.

5. It would also be relevant to point out here that most contracts entered into by government agencies are standard form contracts (typically referred to as General Conditions of Contract) which are completely non-negotiable, and contractors are required to sign the dotted line. Any subject-matter which is not covered under the provisions of the General Conditions of Contract, are then agreed upon in the form of an addendum typically referred to as the Additional Conditions of Contract or Special Conditions of Contract.

6. In this backdrop, the Supreme Court has set aside the arbitrary and one-sided provisions in several contracts, particularly Builder-Buyer Agreements. However, the contracts which are entered into by governmental agencies perhaps stand at a higher pedestal than those of private builders inasmuch as governmental contracts do not withstand the same level of scrutiny from our judiciary. Thus, for the purposes of this article, I would restrict the discussion to the following clauses which are commonly used in government infrastructure contracts:

  1. Escalation clauses
  2. Variation clauses vis-à-vis claims for loss of profit
  3. Extension of time and recovery clauses
  4. Dispute resolution clauses

Escalation Clause

7. In contracts involving large quantum of work, price escalation clauses are introduced to prevent increase of price during the fixed course of execution of the work entrusted to the contractor, on the ground that the price of the material or equipment being utilised has increased. In ordinary course, the duration of the contract increases much beyond the initial estimated duration (referred to as the ‘stipulated period of completion’) and often by several years. In these circumstances, where a tendered work is a fixed-price and fixed-time contract, the contractors cannot be bound to execute the work at the initial cost over a period which has increased multi-fold. The Supreme Court in Tarapore & Co. v. State of M. P.[1] has observed that “escalation is a normal incidence arising out of gap of time in this inflationary age”. The Court  further went on to hold that escalated rates could be awarded in arbitration even in the absence of any provision for escalation in the contract.

8. Further, the intent behind incorporating escalation clauses in infrastructure contracts is succinctly explained by the Delhi High Court in Deconar Services Pvt. Ltd. v. NTPC Ltd.[2], as under:

9. …   A fixed price contract would be a fixed price contract only during the original period and surely it is an absurdity to suggest that irrespective of the extension of the contract well beyond the original stipulated date of completion and more so when the same is on account of breaches/ delays by the objector, yet in such a case it can be contended that still no escalation would be paid…

9. The difficulty which arises in pressing these claims is that all the pronouncements give liberty to the arbitrator to determine a reasonable measure of compensation while deciding the claims, so even if the escalated amount of the claims are calculated as per the formula provided in the agreement between the parties, the Tribunal is free to reject the calculation and decide any amount which it considers to be reasonable. This again is an exception to the series of judgments which state that “The arbitrator, being the prisoner of the contract, is bound to remain within the four corners of the contract[3]. On the other hand, if there is no escalation clause (and therefore, no formula for calculation), the Arbitral Tribunal is free to determine the amount to be paid towards escalation by any means which are ‘reasonable’. This results in a precarious position where the Arbitral Tribunal has the discretion to apply any method that it deems fit coupled with the varying levels of discretion that are appended to the term ‘reasonable’.

Variation clauses vis-à-vis claims for loss of profit

10. Variation clauses are inserted into the agreement for a prudent reason and fixing the price of the contract up to a reasonable limit. When the project which involves the use of large quantities of material and equipment, there might arise a situation that the quantity of some material differs from what had been mentioned in the Bill of Quantities/Schedule of Quantities. Thus, it is prudent to introduce and keep a variation clause in the agreement to deal with the exigent situation of difference in quantities which are actually utilised for execution of the project as compared to what was estimated in the Bill of Quantities. For ease of reference, Clause 12 of the General Conditions of Contract[4], published by the Central Public Works Department is being reproduced hereunder:

The Engineer-in-Charge shall have the power (i) to make alteration in, omissions from, additions to, or substitutions for the original specifications, drawings, designs and instructions that may appear to him to be necessary or advisable during the progress of the work, and (ii) to omit a part of the works in case of non-availability of a portion of the site or for any other reasons and the contractor shall be bound to carry out the works in accordance with any instructions given to him in writing signed by the Engineer-in-Charge and such alterations, omissions, additions or substitutions shall form part of the contract as if originally provided therein and any altered, additional or substituted work which the contractor may be directed to do in the manner specified above as part of the works, shall be carried out by the contractor on the same conditions in all respects including price on which he agreed to do the main work except as hereafter provided.

(emphasis supplied)

11. Per contra, in the event that the work is substantially curtailed from what had been originally awarded, the contractors are at liberty to raise a claim under the head ‘loss of profit’. This head of claim finds its inception in the judgment of the Supreme Court in T. Brij Paul Singh v. State of Gujarat[5] which has been reiterated several times and the judgment in Dwaraka Das v. State of M. P.[6] concisely elucidates the subject claim as under:

9…. This Court in A. T. Brij Paul Singh v. State of Gujarat[7] while interpreting the provisions of Section 73 of the Contract  Act, 1872 has held that damages can be claimed by a contractor where the Government is proved to have committed breach by improperly rescinding the contract and for estimating the amount of damages, the Court should make a broad evaluation instead of going into minute details. It was specifically held that where in the works contract, the party entrusting the work committed breach of contract, the contractor is entitled to claim the damages for loss of profit which he expected to earn by undertaking the works contract. Claim of expected profits is legally admissible on proof of the breach of contract by the erring party.

12. The question which frequently arises for consideration before the arbitrators is balancing the rights of the parties where one pleads loss of profit on account of curtailment of the scope of works after awarding the tender and the other takes a defence stating that the contract allows them to modify and amend the scope of work up to a certain extent while relying on the variation/deviation clause. The intent behind the variation/deviation provisions is to meet the exigencies which arise on account of some peculiar situations at the project work site and definitely not to cover up the mismanagement or lack of planning/decision-making on the part of the governmental agencies.

13. These clauses are being misused as a defence to contest claims for loss of profit and conceal the mismanagement on the part of the government agency, which is not considered by Arbitral Tribunals. The Arbitral Tribunals ought to consider the intent behind the provisions rather than mechanically applying them in the manner as is being contended by the government agency.

Extension of time and recovery clauses

14. The third area of friction which really comes up in infrastructural arbitrations is the fact of extension of time, which later becomes the basis for imposing a penalty on the contractors as well as making deductions from the sums due to the contractors as being liquidated damages.

15. The importance of the extension of time provisions in infrastructure contracts is based on the termination of contract (particularly, by efflux of time). Since, infrastructure projects contain a stipulated period for completion of the works, failing which penalty is imposed on the contractor by the State instrumentality. However, there are certain exceptions to extending the time without imposition of any penalty which stem from there being circumstances beyond the control of the parties due to which the project work could not be executed e.g. the nationwide lockdown. The same applies vice versa as well i.e. in the event, time for completion of the works is extended without imposition of any penalty, it is presumed that there was no breach of contract or non-performance on the part of the contractor. The High Court of Delhi in N. Kharbanda & Son v. Delhi Development Authority[8] has observed as under:

9….However, it is not in dispute that the time period of the contract was extended by the respondent without any penalties on the petitioner and such an occasion would only arise if the fault was not attributable to the petitioner…

16. However, one contentious issue which often arise for consideration is what is the consequence of non-extension of the time period for completion of the project? Ordinarily, the contract would be deemed to have been terminated by efflux of time, but if the parties continue to perform their obligations without any extension, the same should tantamount to it becoming a concluded contract in terms of Section 8 of the Contract Act, 1872.

17. What is even more intriguing in these matters is that the governmental agency in these contracts has conferred upon itself the power to impose penalty upon the contractor. Most government contracts confer upon a senior officer of its agency the power to determine whether the contractor is guilty of breach of contract and the power to impose penalty after determination of guilt. Even though, this issue has come before the Courts several times over, the Courts have not considered the factum that ultimately the official making the so-called analysis of guilt or innocence is an employee on the rolls of that very agency which would later become a party to that lis. In my opinion, the same falls foul of fundamental principles of natural justice, particularly, nemo judex in sua causa (no person shall be a Judge in his/her own cause). The Courts intervene to a limited extent by checking whether the contractor was given an opportunity to present its case before the appointed official.

18. Further, the same bears similarity to the provision contained in Article 371-D(5) of the Constitution, which was struck down by a Constitution Bench of the Supreme Court in Sambamurthy v. State of Andhra Pradesh [9] as being violative of the rule of law which is a part of the basic structure of the Constitution. It can be said that the powers conferred upon the official of the government agency to impose penalty should also be ultra vires as the agency itself, as a party to the lis, is then deciding the extent of breach by the other side and is empowered to effect a recovery without any adjudication whatsoever. Ordinarily, the agency ought to initiate a claim/counter-claim before the Arbitral Tribunal or the Court to decide the breach of contract and damages, rather than equipping its own self to pass a decision in a matter where it has economic interest. The said position of law was reiterated by the Supreme Court in Gangotri Enterprises Ltd. v. Union of India[10] where it was held that until the demand of the Government was crystallised or adjudicated upon, the Government cannot withhold the money of the contractor. However, in a recent decision in State of Gujarat   v. Amber Builders[11], the decision in Gangotri Enterprises has been declared per incuriam, but it has been reiterated that any recovery effected by the Government is subject to further adjudication by the Arbitral Tribunal, which would independently decide the merits of imposition of the financial penalty.

19. In ordinary commercial transactions, it has become trite law that one-sided or arbitrary provisions in agreements are struck down if they favour one-party or constitute an unfair trade practice, but it seems that perhaps because the Government is deemed to act in a reasonable and rational manner, that contracts entered into by governmental agencies do not bear similar scrutiny.

Dispute resolution clauses

20. Most contracts now contain a dispute resolution clause, whereby the parties are bound to refer any disputes arising out of the agreements, to arbitration. The primary reason for introduction of such clauses was the delay which comes about in the regular adjudicatory process before the Courts in India.

21. Government contracts in particular, contain a dispute resolution clause, which is not only limited to arbitration, but prescribes several pre-requisite measures to be adopted before a request for appointment of an arbitrator can be made before the appointing authority i.e. persona designata, who again is an official of the governmental agency itself. Most Government contracts provide for a proceeding before some senior officials akin to mediation of the disputes, and more often than not, such mediation fails simply because the presiding officer is an official of the government agency itself.

22. The Courts also refuse to entertain petitions for appointment of arbitrators in the event the party approaches the Court, primarily on the ground that the ‘mandatory pre-requisite’ conditions imposed by the Dispute Resolution Clause have not been complied with. This leaves aside all scope for claiming urgent relief against governmental agencies in infrastructure contracts[12].

23. The Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd.[13] has held that a person who has an interest in the outcome or decision of the disputes must not have the power to appoint a sole arbitrator. In my opinion, the persona designata, who is mostly a senior employee of the same government agency would have an interest, albeit indirect, in the outcome of the dispute. To my utter dismay, even the latest edition of the General Conditions of Contract as formulated by the Central Public Works Department does not reflect this changed position of law and continues to have its own official as the persona designata.

24. The second problem which arises while complying with the myriad pre-requisites in these long-drawn arbitration clauses is the concept of delay in appointment of arbitrators. In certain situations, the persona designata has delayed the appointment of arbitrators so that the formalities for imposition of penalty can be completed by the agency and the Tribunal does not stay the imposition of the penalty under Section 17 of the Arbitration and Conciliation Act, 1996[14]. In certain situations, the persona designata, calls for the list of claims proposed to be raised by the contractor, and chooses to refer only a few of them rather than all claims, by virtue of which he has effectively usurped the powers of the Arbitral Tribunal and decided the claim on his own.[15]

Conclusion

25. What constitutes a major hitch for the parties presently, is the narrow scope of intervention by Courts in the arbitral process as well as in the awards. Particularly, the recent judgment of the Supreme Court in SsangYong Engineering & Construction Company Ltd. v. National Highways Authority of India[16] which has crystallised and narrowed down the scope of interference under Section 34 in light of the amendments made to the Act in 2015.

26. In view of all of the foregoing, though it can be said that the Courts have exercised their judicial powers to balance the equities between the parties, much is left to be desired in the judicial scrutiny of governmental contracts. Even though, the Government is obligated to act in a fair, non-arbitrary and reasonable manner even while acting in a private law capacity, the same remains to be mere sermons and directives in the law reports. Government contracts should not be protected from judicial scrutiny, particularly, when the Constituent Assembly chose to not grant any special protection or status to the contracts entered into by the Government under the Constitution. Moreover, now that the Supreme Court has propounded the doctrine of arbitrariness to test the validity of legislations[17], it is the appropriate time to apply the same to private law and test the validity of contractual provisions.

27. Therefore, it is optimal time that the judicial scrutiny of governmental contracts is done at par with private commercial contracts and the conduct of the Government is analysed objectively to determine the breach of contract and consequential damages.


*Advocate

[1] (1994) 3 SCC 521

[2] 2009 SCC OnLine Del 4108

[3] Republic Construction Co. v. Delhi Development Authority, 2009 SCC OnLine Del 1902

[4]Available at https://cpwd.gov.in/Publication/GCC_Constructions_works_2020.pdf, last accessed on 15.06.2020

[5] (1984) 4 SCC 59

[6] (1999) 3 SCC 500

[7] (1984) 4 SCC 59

[8] 2006 SCC OnLine Del 1871

[9] (1987) 1 SCC 362

[10] (2016) 11 SCC 720

[11] (2020) 2 SCC 540

[12] Although in exceptional situations, the Courts have intervened, in writ petitions where patent illegality can be seen on the face of the record

[13] 2019 SCC Online SC 1517

[14] The  Supreme Court in the celebrated judgment of J. G. Engineers v. Union of India(2011) 5 SCC 758, has clearly stated that decision of the Superintending Engineer imposing penalty on the contractors is not adjudication

[15] Earnest Builders (P) Ltd. v. Union of India, 2007 SCC OnLine Del 678; Rajeev Traders v.  South Central Railway, 2002 SCC OnLine AP 628

[16] (2019) 15 SCC 131

[17] Shayara Bano v. Union of India, (2017) 9 SCC 1

COVID 19Hot Off The PressNews

The proposals presented today by the Finance Minister are designed to stimulate spending in a fiscally prudent manner as some of the proposals are for advancing or front-loading of expenditure with offsetting changes later while others are directly linked to increase in GDP. The present announcement by Sitharaman highlights the active intervention by the Government of India to combat the economic slowdown created by COVID-19.

The details are as follows: –

CONSUMER SPENDING

  1. Leave Travel Concession (LTC) Cash Voucher Scheme

While announcing the scheme, the Finance Minister said, “The biggest incentive for employees to avail the LTC Cash Voucher Scheme is that in a four-year block ending in 2021, the LTC not availed will lapse, instead, this will encourage employees to avail of this facility to buy goods which can help their families.”

Central Government employees get LTC in a block of 4 years in which air or rail fare, as per pay scale/entitlement, is reimbursed and in addition, Leave encashment of 10 days (pay + DA) is paid. But due to COVID-19, employees are not in a position to avail of LTC in the current block of 2018-21.

Therefore, the Government has decided to give cash payment in lieu of one LTC during 2018-21, in which:

  • Full payment on Leave encashment and
  • Payment of fare in 3 flat-rate slabs depending on class of entitlement
  • Fare payment will be tax-free

An employee, opting for this scheme, will be required to buy goods/services worth 3 times the fare and 1 time the leave encashment before 31st March 2021.

The scheme also requires that money must be spent on goods attracting GST of 12% or more from a GST registered vendor through digital mode. The employee is required to produce GST invoice to avail the benefit.

If Central Government employees opt for it, cost will be around Rs. 5,675 crore. Employees of Public Sector Banks (PSBs) and Public Sector Undertakings (PSUs) will also be allowed this facility and the estimated cost for them will be Rs. 1,900 crore. The tax concession will be allowed for State Government/Private Sector too, for employees who currently are entitled to LTC, subject to following the guidelines of the Central Government scheme. The demand infusion in the economy by Central Government and Central PSE/PSB employees is estimated to be Rs. 19,000 crore approx. The demand infusion by State Government employees will be Rs. 9,000 crore. It is expected that it will generate additional consumer demand of Rs. 28,000 crore.

2. Special Festival Advance Scheme

A Special Festival Advance Scheme for non-gazetted employees, as well as for gazetted employees too, is being revived as a one-time measure to stimulate demand. All Central Government employees can now get an interest-free advance of Rs. 10,000, to be spent by 31st March, 2021 on the choice of festival of the employee. The interest-free advance is recoverable from the employee in maximum 10 installments.

The employees will get a pre-loaded RuPay Card of the advance value. The Government will bear Bank charges of the card. Disbursal of advance through RuPay card ensures a digital mode of payment, resulting in tax revenue and encouraging honest businesses.

The one-time disbursement of Special Festival Advance Scheme (SFAS) is expected to amount to Rs. 4,000 crore; and if the SFAS given by all State Governments, another tranche of Rs. 8,000 crore is expected to be disbursed.

CAPITAL EXPENDITURE

  1. Special Assistance to the States:

While announcing measures related to Capital Expenditure, Smt. Sitharaman said that money spent on infrastructure and asset creation has a multiplier effect on the economy. It not only improves current GDP but also future GDP. The Government wants to give a new thrust to Capital Expenditure of both States and Centre.

Giving a new thrust on Capital Expenditure, Smt. Sitharaman said that money spent on infrastructure and asset creation has a multiplier effect on the economy. It not only improves current GDP but also future GDP. The Government wants to give a new thrust to Capital Expenditure of both States and Centre. Smt. Sitharaman said that the Central Government is issuing a special interest-free 50-year loan to States of Rs. 12,000 crore Capital Expenditure. The Scheme consists of 3 Parts.

Part – 1 of the scheme provides for:

  • Rs. 200 crore each for 8 North East states (Rs. 1,600 crore)
  • Rs. 450 crore each Uttarakhand, Himachal Pradesh (Rs. 900 crore)

Part – 2 of the scheme provides for:

  • Rs. 7,500 crore for remaining states, as per 15th Finance Commission devolution.

The Finance Minister said that both Part 1 and Part 2 of interest-free loans given to States are to be spent by 31st March, 2021 and 50% will be given initially, the remaining 50% will be given upon utilization of first 50%. Unutilised funds will be reallocated by the Central Government.

Under Part – 3 of Rs. 12,000 crore interest-free loans to states, Rs. 2,000 crore will be given to those states which fulfill at least 3 out of 4 reforms spelled out in Aatma Nirbhar Bharat Package (ANBP) vide Department of Expenditure’s Letter F.No. 40(06)/PF-S/17-18 Vol. V dated 17th May 2020. Rs 2,000 crore is over and above other borrowing ceilings.

Following are the features of this Scheme:

  • It can be used for new or ongoing capital projects needing funds and / or settling contractors’/ suppliers’ bills on such projects
  • CAPEX to be spent by 31st March 2021
  • This funding will be over and above all other additional borrowing ceilings given to states
  • Bullet repayment after 50 years, no servicing required for 50 years
  1. Enhanced Budget Provisions:

The Finance Minister said that additional budget of Rs. 25,000 crore, in addition to Rs. 4.13 lakh crore given in Union Budget 2020, is being provided for Capital Expenditure on roads, defence, water supply, urban development and domestically produced capital equipment.

To allow smooth conducting of Government business, allocations will be made in forthcoming Revised Estimate discussions of Ministry of Finance with concerned ministries.

It may be recalled that a package of Rs 1.70 lakh crore under Pradhan Mantri Garib Kalyan Package (PMGKP) was announced on 26th March, 2020 and the Aatma Nirbhar Bharat Package (ANBP), a Special economic and comprehensive package of Rs 20 lakh crore – equivalent to 10% of India’s GDP – was announced on 12th May, 2020 by Hon’ble Prime Minister Shri Narendra Modi. He gave a clarion call for आत्मनिर्भर भारत अभियान or Self-Reliant India Movement and also outlined five pillars of Aatmanirbhar Bharat – Economy, Infrastructure, System, Vibrant Demography and Demand.


Ministry of Finance

[Press Release dt. 12-10-2020]

[Source: PIB]

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit and P.N. Desai, JJ., while allowing a writ petition by a civil servant, observes,

“Government being a model employer cannot act like the East India Company of the bygone days”

The present writ petition is sought by a Civil Servant of the State, challenging an order dated 12-08-2020, made by, the Kalaburagi bench of the Karnataka State Administrative Tribunal (‘KSAT’), denying relief against the unilateral termination of his deputation by the borrowing department (RDPR) on the ground of ‘efflux of time.’ The series of events are categorically stated hereunder:

  1. That vide notification dated 09-05-2017, the Karnataka State Government sent the petitioner on deputation to the respondent 1; RDPR department.
  2. That vide notification dated 02-06-2017, the RDPR department posted the petitioner as an Assistant Executive Engineer, project subdivision – Vijayapur.
  3. That vide notification dated 15-07-2017, the RDPR department further transferred the petitioner as a Technical Assistant, project division – Bagalkot.
  4. That the aforementioned notification was called in question through application no. 4434 of 2014 and the KSAT had thereby allowed the petitioner to continue at his previous position by an interim order against the last deputation.
  5. That the borrowing department vide notification dated 27-02-2020, unilaterally cancelled the deputation of the petitioner and sent him back to his parent department; PWD.
  6. That the petitioner challenged this notification in application no. 1270/2020, which was eventually denied by the KSAT vide an order, and hence the petitioner has sought relief through the instant Writ Petition. 

Observations

The Court made significant remarks with respect to deputation in public services.

Citing the Supreme Court decision in, State of Punjab v. Inder Singh, (1997) 8 SCC 372, wherein it was said, “Concept of deputation is well understood in service law and has a recognized meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words, deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per recruitment rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed.”

The Court further cited Rule 50 of the Karnataka Civil Services Rule, which reads as,

“50(1). When a Government Servant is permanently transferred or deputed from one department to the other, under the provisions of Rule 16 of General Recruitment Rules, 1977, he will draw pay in the new post at the same stage in which he was drawing in the old post and earn the next increment on the date on which he would have earned it had he continued in the old post.”

Decision

While issuing the writ of certiorari, the Court directed respondents 1 & 2 to restore the petitioner to the office which he had held on deputation immediately preceding the impugned notification dated 27-02-2020. It further said that the borrowing department has sent the petitioner back to the parent department abruptly and unilaterally, without any prior consultation with the lending department, which infact, is in deep contravention of the service rules.[C.B. Chikkalagi v. State of Karnataka, WP No 226384 of 2020, decided on 28-09-2020]

Case BriefsHigh Courts

Andhra Pradesh High Court: Battu Devanand, J., while addressing the instant matter, observed that,

The government is not supposed to spend public money as per their whims and fancies as public money is accrued from the payment of the taxpayers.

Discontinuation of Pensions

175 Petitioners filed the petition seeking direction declaring the action of respondents in discontinuing pensions to them as illegal, arbitrary, discriminatory and against the rules governing the distribution of pensions and direct all the respondents to distribute arrears of pension to the petitioners and continue to pay them thereafter.

Another petitioner consisting of 5 petitioners filed the petition against the respondent’s action to stop old aged/widow pensions.

Decision

The Government of Andhra Pradesh vide its order said that the Government of Andhra Pradesh is implementing various pension schemes as part of its welfare programmes for most needy and vulnerable people i.e., the persons in old age, widows, people with disabilities and weavers to provide them some succor.

Court stated that on perusal of the Government Order, it is clear that as part of welfare programmes the Government is implementing various social security pension schemes for the benefit of needy and vulnerable sections of the people to provide them some succor.

“…attempt of the government to implement these “Social security pension schemes” to provide the people belong to vulnerable sections to provide some succor is undoubtedly laudable.”

Bench emphasized the fact that the Government is the trustee of public money and is empowered to utilize the public money in a proper manner for the benefit of the public at large.

Supreme Court’s decision in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 was also referred, wherein the following was held:

“The discretion of the government has been held to be not unlimited in that the government cannot give or withhold largess in its arbitrary discretion or at its sweet will.”

Public Money

Further, the High Court also noted the fact that earlier crores of public money was spent on different activities in the State of Andhra Pradesh.

In view of the above Court stated that,

Did any person in the State ask the State Government to spend a thousand crores of rupees for organising “Godavari and Krishna Pushkaralu”? 

Did any Christian ask for “CHRISTMAS KANUKALU ?”

Did any Muslim request for “RAMJAN THOFA?”

At present, thousands of crores of rupees are being sent under various pogrammes stating that it is for the welfare of the people. 

One has to question himself whether the public money is being utilized properly as it seems to be.

Unreasonable to stop payment of meager amount

Hence, the Bench held that Court is of the opinion that while spending crores of rupees of public money for all the programmes as stated above, it is unreasonable to stop payment of meager amount being paid towards social security pension in favour of the petitioners.

Court to fortify its view cited the Supreme Court decision in, Raghunath Thakur v. State of Bihar, (1989) 1 SCC 229, wherein the following was held:

“…a person adversely affected by order has right of being heard and making representations against order, even though rules do not provide so expressly”.

Social Security

Concluding with its’ analysis, Court held that stopping payment of social security to the petitioners without conducting any enquiry or without issuing any notice is illegal, arbitrary, discriminatory and against the object of the social security pension scheme and against the principles of natural justice.

Two directions have been passed by the Bench in the above petitions:

  • Respondents are directed to make payment of pension to the petitioners from the month when it was stopped to till date within a period of 15 days.
  • Respondents are directed to continue the payment of the pension every month.

[Seepana Govindamma v. State of Andhra Pradesh, WP No. 21104 of 2019, decided on 08-09-2020]

Hot Off The PressNews

The Ministry of Electronics and Information Technology, Government of India invoking it’s power under Section 69A of the Information Technology Act read with the relevant provisions of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules 2009 and in view of the emergent nature of threats has decided to block 118 mobile apps (see Appendix) since in view of information available they are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.

The Ministry of Electronics and Information Technology has received many complaints from various sources including several reports about the misuse of some mobile apps available on Android and iOS platforms for stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India. The compilation of these data, its mining and profiling by elements hostile to national security and defence of India, which ultimately impinges upon the sovereignty and integrity of India, is a matter of very deep and immediate concern that requires emergency measures.

The Indian Cyber Crime Coordination Centre, Ministry of Home Affairs has also sent an exhaustive recommendation for blocking these malicious apps. Likewise, there have been similar bipartisan concerns, flagged by various public representatives, both outside and inside the Parliament of India. There has been a strong chorus in the public space to take strict action against Apps that harm India’s sovereignty as well as the privacy of our citizens.

On the basis of these and upon receiving of recent credible inputs that information posted, permissions sought, functionality embedded as well as data harvesting practices of above-stated Apps raise serious concerns that these Apps collect and share data in a surreptitious manner and compromise personal data and information of users that can have a severe threat to the security of the State.

In the interest of sovereignty and integrity of India, defence of India and security of the State. And using the sovereign powers, the Government of India has decided to block the usage of certain Apps, used in both mobile and non-mobile Internet-enabled devices. These apps are listed in the attached appendix.

This move will safeguard the interests of crores of Indian mobile and internet users. This decision is a targeted move to ensure safety, security and sovereignty of Indian cyberspace.

Appendix

  1. APUS Launcher Pro- Theme, Live Wallpapers, Smart
  2. APUS Launcher-Theme, Call Show, Wallpaper, HideApps
  3. APUS Security -Antivirus, Phone Security, Cleaner
  4. APUS Turbo Cleaner 2020- Junk Cleaner, Anti-Virus
  5. APUS Flashlight-Free & Bright
  6. Cut Cut – Cut Out & Photo Background Editor
  7. Baidu
  8. Baidu Express Edition
  9. FaceU – Inspire your Beauty
  10. ShareSave by Xiaomi: Latest gadgets, amazing deals
  11. CamCard – Business Card Reader
  12. CamCard Business
  13. CamCard for Salesforce
  14. CamOCR
  15. InNote
  16. VooV Meeting – Tencent Video Conferencing
  17. Super Clean – Master of Cleaner, Phone Booster
  18. WeChat reading
  19. Government WeChat
  20. Small Q brush
  21. Tencent Weiyun
  22. Pitu
  23. WeChat Work
  24. Cyber Hunter
  25. Cyber Hunter Lite
  26. Knives Out-No rules, just fight!
  27. Super Mecha Champions
  28. LifeAfter
  29. Dawn of Isles
  30. Ludo World-Ludo Superstar
  31. Chess Rush
  32. PUBG MOBILE Nordic Map: Livik
  33. PUBG MOBILE LITE
  34. Rise of Kingdoms: Lost Crusade
  35. Art of Conquest: Dark Horizon
  36. Dank Tanks
  37. Warpath
  38. Game of Sultans
  39. Gallery Vault – Hide Pictures And Videos
  40. Smart AppLock (App Protect)
  41. Message Lock (SMS Lock)-Gallery Vault Developer Team
  42. Hide App-Hide Application Icon
  43. AppLock
  44. AppLock Lite
  45. Dual Space – Multiple Accounts & App Cloner
  46. ZAKZAK Pro – Live chat & video chat online
  47. ZAKZAK LIVE: live-streaming & video chat app
  48. Music – Mp3 Player
  49. Music Player – Audio Player & 10 Bands Equalizer
  50. HD Camera Selfie Beauty Camera
  51. Cleaner – Phone Booster
  52. Web Browser & Fast Explorer
  53. Video Player All Format for Android
  54. Photo Gallery HD & Editor
  55. Photo Gallery & Album
  56. Music Player – Bass Booster – Free Download
  57. HD Camera – Beauty Cam with Filters & Panorama
  58. HD Camera Pro & Selfie Camera
  59. Music Player – MP3 Player & 10 Bands Equalizer
  60. Gallery HD
  61. Web Browser – Fast, Privacy & Light Web Explorer
  62. Web Browser – Secure Explorer
  63. Music player – Audio Player
  64. Video Player – All Format HD Video Player
  65. Lamour Love All Over The World
  66. Amour- video chat & call all over the world.
  67. MV Master – Make Your Status Video & Community
  68. MV Master – Best Video Maker & Photo Video Editor
  69. APUS Message Center-Intelligent management
  70. LivU Meet new people & Video chat with strangers
  71. Carrom Friends : Carrom Board & Pool Game-
  72. Ludo All Star- Play Online Ludo Game & Board Games
  73. Bike Racing : Moto Traffic Rider Bike Racing Games
  74. Rangers Of Oblivion : Online Action MMO RPG Game
  75. Z Camera – Photo Editor, Beauty Selfie, Collage
  76. GO SMS Pro – Messenger, Free Themes, Emoji
  77. U-Dictionary: Oxford Dictionary Free Now Translate
  78. Ulike – Define your selfie in trendy style
  79. Tantan – Date For Real
  80. MICO Chat: New Friends Banaen aur Live Chat karen
  81. Kitty Live – Live Streaming & Video Live Chat
  82. Malay Social Dating App to Date & Meet Singles
  83. Alipay
  84. AlipayHK
  85. Mobile Taobao
  86. Youku
  87. Road of Kings- Endless Glory
  88. Sina News
  89. Netease News
  90. Penguin FM
  91. Murderous Pursuits
  92. Tencent Watchlist (Tencent Technology
  93. Learn Chinese AI-Super Chinese
  94. HUYA LIVE – Game Live Stream
  95. Little Q Album
  96. Fighting Landlords – Free and happy Fighting Landlords
  97. Hi Meitu
  98. Mobile Legends: Pocket
  99. VPN for TikTok
  100. VPN for TikTok
  101. Penguin E-sports Live assistant
  102. Buy Cars-offer everything you need, special offers and low prices
  103. iPick
  104. Beauty Camera Plus – Sweet Camera & Face Selfie
  105. Parallel Space Lite – Dual App
  106. “Chief Almighty: First Thunder BC
  107. MARVEL Super War NetEase Games
  108. AFK Arena
  109. Creative Destruction NetEase Games
  110. Crusaders of Light NetEase Games
  111. Mafia City Yotta Games
  112. Onmyoji NetEase Games
  113. Ride Out Heroes NetEase Games
  114. Yimeng Jianghu-Chu Liuxiang has been fully upgraded
  115. Legend: Rising Empire NetEase Games
  116. Arena of Valor: 5v5 Arena Games
  117. Soul Hunters
  118. Rules of Survival

Ministry of Electronics & IT

[Press Release dt. 02-09-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed off the writ petition in light of settled law regarding the scope of regulation of schools by the Government.

The facts of the case are that a government notification dated 27-05-2020 was issued regarding the collection of school fee in the wake of COVID-19 which included mainly to only charge tuition fee on a monthly basis, payment of which is optional, no fine chargeable and no restriction on attending online classes on delay of fee payment along with timely payment of salaries to teachers without any pay cuts. Aggrieved by the said notification registered association of 45 private schools have preferred the instant petition to quash the said notification being unreasonable and oppressive.

Counsel for the petitioners R. K. Gautam and Radhika Gautam, relying on the Supreme Court decision in  T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 and P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 submitted that any action of the State Government seeking to regulate or control admissions including interference in the fee structure of private unaided educational institutes will constitute a serious encroachment on the right and autonomy and liable to be struck down.

Counsel for the respondents Ashok Sharma, Ranjan Sharma, Vinod Thakur and Seema Sharma submitted that the notification in question has only deferred the collection of some fees and charges usually levied by the schools, while permitting them to collect only the tuition fee during the lockdown period and hence the State Government has not encroached on any right by private schools.

The Court on hearing the submissions of both sides held that while directing the private schools to neither stop payment of monthly salary nor reduce the existing total emoluments being paid to their teaching and non-teaching staff but at the same time permitting the schools to collect only the tuition fee, that too on monthly basis without authorizing them to compulsorily realize even this tuition fee is an unreasonable restriction. It was further observed that the impugned notifications were issued by the State Government practically in a state of emergency therefore perhaps principles of natural justice were not complied before their issuance. Hence in light of the observations and authoritative pronouncements stated above, the Court directed the State Government to revisit and reexamine the notification.

The Court also directed that in case of exceptional financial hardship reported by any parent, the school authority concerned must examine the situation within a week on compassionate grounds and ensure proper attendance of teaching & non-teaching staff and impart quality online education to the students.

In view of the above, impugned notification is quashed and petition disposed off.[Independent Schools Association v. State of Himachal Pradesh,  2020 SCC OnLine HP 1267, decided on 24-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Legislation UpdatesNotifications

Jute Advisory Board –Abolished

In consonance with the Government of India vision of “Minimum Government and Maximum Governance”, a leaner Government Machinery and the need for systematic rationalization of Government bodies, the Government of India has abolished Jute Advisory Board (JAB) with effect from the date of publication of this Notification in the Gazette of India.

*Read the notification, here: NOTIFICATION


Ministry of Textiles

[Notification dt. 04-08-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Siddhartha Varma and Ajit Kumar, JJ., while addressing the matter observed that the following rule, “Two individuals should remain two yards away and wear masks” seems to be an empty shibboleth coined by the Government.

Court furthering its observations stated that neither the government is looking interested in implementing the above rule nor the people of Uttar Pradesh are interested in following the said rule.

Shops are surrounded by people without complying with the norm of social distancing of two yards.

Advocate, Ram Kaushik, brought certain photographs on record from which it is certain that Unlock-1, 2 and 3 have been misunderstood by the people of Uttar Pradesh.

Either the people have not been told to maintain social distancing or they have chosen to flagrantly violate the principle of maintaining social distance.

Shopkeepers will have to be told that crowding at their shop would be of no help and even may invite coercive measures against them.

Hence, police along with the District Administration will have to see that people who crowd at shops should queue up with a distance of two yards in between two individuals.

“Nagar Nigam Administration is not only proceeding at a snail’s pace but it has mostly remained a passive spectator of the encroachment activities in various parts of the city.”

Also, it can be then expected for social distancing norms to be followed in letter and spirit, if such unauthorised encroachers are permitted to carry out commercial activities in every nook and corner of the city.

Further, the Government is coming up with various data to show that things are under its control but newspaper reports are not very encouraging. There are complaints that people, though have been tested for COVID-19 but have not yet received their reports even after a lapse of two or more weeks.

Chief Medical Officer has been directed to file an affidavit stating the pending COVID-19 reports already tested and reports received and delivered date-wise from 20th July, 2020 till 5th August, 2020.

Bench also added to its observations that, the rule of maintaining 2 yards distance has to go on till the time there is either a cure of the Corona Virus or there is a vaccine for the general public.

Court issued the following directions:

  • State Authorities to see vigorously that no two individuals in public remain within a distance of two yards from each other.
  • If any public place is found where people fail to maintain a distance of two yards from each other then the owner of the premises, where the violation of this Rule is found, should be brought to book and the premises should be closed down.
  • If policemen etc. are not enforcing rules of distancing then action should be taken against them.
  • If there is crowding seen at O.P.Ds of hospitals, Nursing Homes and Clinics then action must be taken against them.
  • If within an hour of the starting of the functioning judicial institutions, it is found that crowding is happening and physical distancing is not being maintained by individuals on whose shoulders the judicial institutions function then the Bar Association, the Registry and the District Administration should step in and see that proper physical distancing is maintained.
  • Administration to remove all encroachments within the time limit as was provided to the Nagar Nigam by the Court at an earlier date.
  • No pillion riders except a couple on two-wheelers are to be seated unless there is an extreme urgency.

Matter to be listed on 07-08-2020. [Inhuman Condition at Quarantine Centers and for Providing Better Treatment to Corona Positive v. State Of U.P., 2020 SCC OnLine All 901, decided on 05-08-2020]

Hot Off The PressNews

Introduction of Paternity Leave System

The Government is not planning to introduce any paternity leave system to men employed by organizations/companies in the private sector.

This information was given by Shri Santosh Kumar Gangwar, Minister of State (I/C) for Labour and Employment in written reply to a question in Rajya Sabha today.


Ministry of Labour & Employment

[Press Release dt. 05-02-2020]

[Source: PIB]

Case BriefsHigh Courts

Allahabad High Court: Dinesh Kumar Singh, J. was hearing a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter mentioned as CrPC) in the High Court of Judicature at Allahabad pertaining to the complaint filed by the petitioner. 

The petition has been filed by The Group Editor, The Local Editor, and The Press Reporter, Sahara India Mass Communication, Lucknow impugning the orders of summoning by Additional Chief Judicial Magistrate in Case No. 221 of 2010, Ramveer Upadhaiya v. Jaibrat Roy. The case was regarding a news article published by Rashtriya Sahara on 11-09-2009, based on a letter written by Mr Krishan Gopal on behalf of the Chief Minister to Mr J.N. Chamber and a subsequent letter to Mr Navneet Sehgal asking for inquiry over-demanding of Rupees 10 lakhs by respondent 2 (Minister) from Mr R.K. Kashyap, Chief Engineer, Western Electricity, failure in fulfillment of what led to his transfer and his suspension subsequently. Mr. Kashyap later in 2 letters denied allegations over the minister and withdrew his role in the letter writing. 

The petitioner submitted that the article published in ‘Rashtriya Sahara’ on 11-09-2009 was preceded by a similar kind of article published in daily Hindi newspaper ‘Deshbandhu’ and it contained statements made by several political leaders. Later, Mr O.P. Rai, on behalf of the complainant sent a letter to Rashtriya Sahara stating that Mr Kashyap has not given any complaint against the minister. The same was published on 22-10-2009.

The respondent submitted that the petitioners have published the aforesaid news item with an intention to malign the image and reputation of respondent 2 and of the State Government.

The Court held that it is the duty of the press to expose the government and its functionaries. If the press is put under the threat of prosecution, it can not perform its duty and thus the rights granted under Article 19(1)(a) of the Constitution of India is violated. And also the Court took note of the article published in another Hindi daily ‘Deshbandhu’ and if the newspaper had not published the article it would violate its duty. The Court also held that the complaint on behalf of the minister has should be filed through a Public Prosecutor in the Court of Session.

The Court opined that to constitute the offence of defamation under Section 499 of Penal Code, 1860 there has to be imputation, and it must have been made in the manner with intention of causing harm or having reason to believe that this imputation will harm the reputation of a person. It was held that the article is not defamatory and that the complaint is not maintainable before the Additional Chief Judicial Magistrate and hence the petition is allowed. [Ranvijay Singh v. State of Uttar Pradesh, Case No. 284 of 2013, decided on 20-12-2019]

Cabinet DecisionsLegislation Updates

Union Cabinet has approved the Infusion of Rs 4,557 crore by Government in IDBI Bank.

It will help in completing the process of IDBI Bank’s turnaround and enable it to return to profitability and normal lending, and giving Government the option of recovering its investment at an opportune time.

IDBI Bank needs a one-time infusion of capital to complete the exercise of dealing with its legacy book. It has already substantially cleaned up, reducing net NPA from peak of 18.8% in June 2018 to 8% in June 2019. The capital for this has to come from its shareholders. LIC is at 51% and is not allowed to go higher by the insurance regulator. Of the Rs. 9,300 crore needed, LIC would meet 51% (Rs. 4,743 crores). Remaining 49%, amounting to Rs. 4,557 crore, is proposed from Government as its share on a one-time basis.

After this infusion, IDBI Bank expects to be able to subsequently raise further capital on its own and expects to come out of RBI’s Prompt Corrective Action (PCA) framework sometime next year. This cash neutral infusion will be through recap bonds i.e. Government infusing capital into the bank and the bank buying the recap bond from the Government the same day, with no impact on liquidity or current year’s Budget.

Background:

Following Cabinet’s approval in August 2018, LIC acquired 51% stake in IDBI Bank. Government continues to be a promoter and holds 46.46% stake.

The financial parameters of IDBI Bank have improved considerably during the last year:

  • CRAR has improved from 6.22% as on 30.9.18 to 11.58% as on 31.3.19.
  • Net NPA ratio reduced from 17.3% as on 30.9.18 to 10.11% as on 31.3.19 and further to 8.02% as on 30th June 2019
  • Provision Coverage Ratio (PCR) improved from 69% (30.9.18) to 83% (31.3.19) and further to 88% on 30th June 2019
  • Synergy with LIC has enabled access to 29 crore policyholders base spread over 3184 branches and also to 11 lakh agents and 2 lakh employees of LIC.
  • Rs.500 crore revenue for FY 2020 and Rs. 1,000 crore from FY 2021 onwards projected from LIC Synergy.
  • Sale of insurance kick-started in March 2019 with Rs. 160 crore premium. This momentum has continued with over Rs. 250 Cr premium collection in first four and a half months of this year. FY 2019-20 target is Rs. 2000 crore of premium and Rs. 200 crore revenue.
  • Additional business anticipated is Rs. 5,000 crore (Housing loan, Auto loan, personal loan) by leveraging LIC agents’ network.

Cabinet

[Press Release dt. 03-09-2019]

Case BriefsHigh Courts

“Wherever democratic institutions exists experience has shown that to secure an efficient civil service it is essential to protect it as far as possible from political or personal influences and give it that position of stability and security which is vital to its successful working as the impartial and efficient instrument by which Governments, of whatever political complexion may give effect to their policies. In countries where this principle has been neglected, where the “spoil system” has taken its place, an inefficient and deorganized civil service has been the inevitable result and the corruption has been rampant.” 

                       – The Lee Commission, 1924

Tripura High Court: S. Talapatra, J. allowed a petition directing Tripura Public Service Commission (TPSC) to complete the recruitment process within eight months from the date of judgment.

TPSC by an advertisement dated 30-04-2016 had invited applications for recruitment to the Tripura Civil Services (TCS) Group-A gazetted by direct recruitment in terms of Rule 5 of the Tripura Civil Services Rules, 1965. The petitioner here had applied for the said selection in terms of the said advertisement. Since the petitioner was found eligible he was asked to appear in the preliminary examination. The result of the preliminary examination was published by the TPSC in their notification dated 30-10-2017. In this regard, there was no controversy. The petitioner was thus selected for appearing in the Main Examination. TPSC further published a notification showing the date of examination for various optional papers. Suddenly, on 05-06-2018 the General Administration (Personal and Training) Department issued a notification laying down the new recruitment policy for all establishments under the administrative control of the Government of Tripura. According to the new notification “weightage for the interview should not exceed 10 per cent of total marks. In exceptional case weightage of interview may be increased beyond per cent with the approval of cabinet, if sufficient justification exists.” Following the notification, TPSC started the process of termination of the recruitment process in which the petitioner was appearing. Hence, the present petition.

The learned counsels for the petitioner S.M. Chakraborty along with B. Chakraborty, contended that all the recommendations made in the new recruitment policy could only come into force prospectively. It was submitted that such cancellation was the grossly arbitrary and colourable exercise of power. He also mentioned the Judgment given in Gopal Krushna Rath v. M.A.A. Baig, 1999 1 SCC 544, in which it was well settled that no retrospective operation of the subsequent rules can be given in a pending selection process. It was also decided in the case that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. In the concerned matter, the notification clearly said to have a prospective effect thus, the petitioner urged the Court to order TPSC to continue the process of selection and to complete it before a stipulated deadline as decided by the Court.

A.K Bhowmik learned counsel for the respondent categorically contended that the petitioner has no cause of action on cancellation of the recruitment process as the Government has inherent power to cancel the recruitment process, whether initiated by the Government Departments or by the TPSC. It had been further asserted that all existing recruitment processes initiated by the respective departments or the TPSC have been cancelled as the old recruitment policies failed to ensure transparency and fair play in the recruitment. He further vehemently submitted that at any moment, the State Government as an employer can withdraw any recruitment process and initiate a fresh process in terms of the new recruitment policy. The selection process can be revoked by the State Government at any stage in terms of the changed recruitment policy. As such, the writ petition is bereft of merit and is liable to be dismissed.

 The Court observed that respondent had utterly failed to provide any reason for cancelling the recruitment process inasmuch as no foundation had been raised to show that action has been taken to protect any greater or public interest the mode prescribed by those service rules for selection is infested impediment in following that procedure. Thus, the Court allowed the petitioner and ordered TPSC to complete the process of selection within 8 months of the judgment.[Samudra Debbarma v. State of Tripura, 2019 SCC OnLine Tri 145, decided on 14-05-2019] 

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench comprising of Pradeep Nandrajog, CJ. and G R Moolchandani, J., disposed of writ petitions against the misuse of public money for political agendas.

A PIL was filed to spouse a public cause claiming the misuse of public money by the respondent in order to cater their political motives during the Gaurav Yatra i.e direct contact with the voters by means of road-shows during which the Hon’ble Chief Minister would address public meetings for which tent, sound system and stage would be provided by the Public Works Department.

The respondents contended that whenever the Chief Minister travels (official/personal) protocol and security arrangements were to be borne by the State and thus it cannot be given the colour of expenditure incurred towards a political rally and additionally taking advantage of the presence of the Chief Minister, the respondent was organizing exhibitions to educate the general mass regarding social welfare schemes of the respondent.

Taking into consideration Common Cause v. Union of India, (2014) 6 SCC 552 and Common Cause v. Union of India, W.P (Civil) No.13 of 2003, order dated 13-05-2015 wherein it was held that, “Under the garb of communicating with the people, undue political advantage and mileage was sought to be achieved by personifying individuals and crediting them as being responsible for various Government achievements”; the High Court concluded by saying that, so intermingled are the State-sponsored d State-financed programmes with the Gaurav Yatra that it would be impossible to segregate one from the other. It is trite that the impact of an act was to be understood from the viewpoint of a mythical common man because to him if during the Gaurav Yatra, the Chief Minister inaugurates public functions, the understanding would be the glorification of the political party and not of the respondent.

It was declared by the Court that henceforth no public functions sponsored and financed by the state funds would be held during Gaurav Yatra. [Sawai Singh v. State of Rajasthan, 2018 SCC OnLine Raj 1746, order dated 05-09-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a writ petition against the order of Respondent 5. The said order directed the petitioner to vacate the government accommodation given to him, by or before 08.08.2018.

The main issue, in this case, was whether Respondent 5 was justified in issuing an order for vacating the said premises without adopting the due course of law.

The Court, in this case, observed that it is an accepted fact that the petitioner was an unauthorized occupant of the said government premises because he ceased to hold the official status/position and the allottee of a Government accommodation, may it be a Government Servant, Minister or a Legislator, is required to vacate the accommodation allotted to him, after he ceases to hold the official status/position. The Court further applied the ‘useless formality theory’ according to which if there is no possibility of change or improvement in a situation even after hearing the person against whom the order is passed, then such a formality can be avoided.

The Court held that since petitioner was an unauthorized occupant of the said government accommodation for a long time now, hence he has no indefeasible right to be heard before issuing the order of eviction of public premises. Concluding that the petitioner has failed to show any valid and reasonable cause to retain the Government Accommodation in question after the petitioner ceased to be Minister or Member of State Legislative Assembly, hence his petition was dismissed.[Thakur Randhir Singh v. State of J&K,2018 SCC OnLine J&K 505, order dated 13-08-2018]

Legislation UpdatesNotifications

G.S.R. 681(E).- In exercise of the powers conferred by sub-section (3) of Section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, and on being satisfied that it is necessary so to do for the purpose of clarifying the scope and applicability of the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 11/2017- Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i), vide number G.S.R. 690(E), dated the 28th June, 2017, hereby inserts following Explanation in the said notification, in the Table, against serial number 3, in column (3), in item (vi), namely:

Explanation. – For the purposes of this item, the term ‘business’ shall not include any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities.”.

2. This notification shall come into force with effect from 27th of July, 2018.

[F. No.354/13/2018-TRU]

Note: The Principal Notification No. 11/2017-Central Tax (Rate), dated 28th June, 2017, was published in the Gazette of India, Extraordinary, vide number G.S.R. 690 (E), dated 28th June, 2017 and was last amended by notification No. 1/2018- Central Tax (Rate), dated 25th January, 2018 vide number G.S.R. 64(E), dated 25th January, 2018.

[Notification No. 17/2018-Central Tax (Rate)]

Ministry of Finance