2022 – Nautiliyaa Legal

19 Dec

Does Municipal Corporation of Delhi has Accountability Towards Delhi Government or Central Government

Recently, Aam Aadmi Party won by thumping majority bagging a 134 out of a total of 250 councillors seat in Delhi Municipal Corporation elections, with BJP confined to 104. Immediately after few days of election results, spokesperson of the Delhi unit of BJP Praveen Shankar Kapoor said that the Municipal Corporation of Delhi (MCD) has no accountability towards the Delhi government or the Vidhan Sabha of the city. Instead, after the amendment in the Delhi Municipal Corporation Act, 2022, the MCD is now under the Central Government or its representative Lieutenant Governor. This is a brief attempt, therefore, to look into the amendments that have been introduced in the Delhi Municipal Corporation (Amendment) Act, 2022 (“2022 Amendments”) and determine whether and what changes have been introduced in the legislation so as to shift the weight and answerability of MCD to the Centre.

The Amendment Act, 2022 was passed on 18^th April, 2022 by the assent of the President of India. The foremost important change that has been introduced is unification of Municipal Corporations in Delhi. It replaces the three municipal corporations under the Delhi Municipal Corporation Act, 1957 with one Corporation named the Municipal Corporation of Delhi. The Amendment Act further changed the following (in sections 1, 3A, 5, 6, 32A, 55, 56, 57, 193, 330A and 499, for the word “Government”, wherever it occurred, the words “Central Government” was substituted):

Total number councillor seats were decreased from 272 to maximum of 250;
The Amendment Act omits the provision for a Director of Local Bodies who was appointed to assist the Delhi government;
The Act empowered Central Government to appoint a Special Officer to exercise powers of the Corporation until the first meeting of the Corporation is held after the commencement of the Act;
The Act introduced obligatory functions of the new Corporation to establish an e-governance system for citizen services on anytime-anywhere basis for better, accountable, and transparent administration; and
The Act omits the provision regarding the condition of employment of a sweeper employed for doing house scavenging of a building where there is a requirement to provide a reasonable cause or a 14 day notice before discontinuing his service.

Along with the changes as stated above, the Amendment Act further empowers Central Government, in place of the Delhi Government, to decide matters which were under the Delhi Government as per amendments introduced in 2011. These included: (i) total number of seats of councillors and number of seats reserved for members of the Scheduled Castes, (ii) division of the area of corporations into zones and wards, (iii) delimitation of wards, (iv) matters such as salary and allowances, and leave of absence of the Commissioner, (v) sanctioning of consolidation of loans by a corporation, and (vi) sanctioning suits for compensation against the Commissioner for loss or waste or misapplication of Municipal Fund or property.

Above all, the Act now mandates that the Commissioner will exercise his powers regarding building regulations under the general superintendence and directions of Delhi government. As per section 330A:

330A. General superintendence, etc., of the Central Government.–Notwithstanding anything contained in any other provision of this Act, the Commissioner shall exercise his powers and discharge his functions under this Chapter, under the general superintendence, direction and control of the Central Government. It is therefore, to an extent clear that there is a sea change that has been brought by the latest amendments to the MCD Act wherein the answerability lies to the Central Government instead of Delhi Government as it was for the last 11 years.

12 Dec

Clarification Regarding Publication of Resolutions made by the Collegium

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Uncategorized

The Hon’ble Supreme Court in the matter of Anjali Bhardwaj v. CPIO, Supreme Court of India, (RTI Cell) Petition for Special Leave to Appeal (C) No. 21019 of 2022] filed against the decision of the High Court dismissing the LPA, has recently clarified that “unless and until, final decision is taken after due consultation and on the basis of such a final decision a final resolution is drawn, whatever discussions had taken place cannot be said to be a final decision of the Collegium” and therefore such tentative decision shall not be published or disclosed in an RTI application.

The petitioner had preferred an RTI application before the Central Public Information Officer (CPIO), Supreme Court of India seeking information regarding a copy of the agenda of the meeting of the Collegium of the Supreme Court held on 12.12.2018, a copy of the decisions taken and a copy of the resolutions of the Collegium meeting on the date. The information was declined even at the appellate stage. While dismissing the Writ Petition, the Learned Single Bench held that as there was no formal resolution that came to be drawn up, there is no question of providing any decision taken in the meeting held on 12.12.2018. The decision was confirmed at the appellate stage.

It was pleaded before the Apex Court that decision taken in the meeting on 12.12.2018 was not uploaded on Supreme Court’s website when the article on the website of Bar and Bench mentioned that certain decisions were taken regarding elevation of a certain judge however, in the subsequent meeting of the Collegium on 10.01.2019 earlier decisions were changed. It was further argued that everybody has a right to know the decision(s) taken by the Collegium as per the earlier Resolution of the Supreme Court dated 03.10.2017, by which, it was resolved that the decision(s) taken by the Collegium shall be uploaded on the Supreme Court’s website.

After hearing the counsels, the Court observed that the actual resolution passed by the Collegium only can be said to be a final decision of the Collegium and till then at the most, it can be said to be a tentative decision during the consultation. During the consultation if some discussion takes place but no final decision is taken and no resolution is drawn, it cannot be said to be a final decision of the Collegium. Collegium is a multi-member body whose decision embodied in the resolution that may be formally drawn up and signed. The Court therefore held that since no final decision was taken on 12.12.2018 which was culminated into a final resolution drawn and signed by all the members of the Collegium, the same was not required to be disclosed in the public domain and that too under the RTI Act. Whatever was discussed shall not be in the public domain. As per the Resolution dated 03.10.2017 only the final resolution and the final decision is required to be uploaded on the Supreme Court’s website.

24 Nov

Duty of the Courts to Examine the Arbitrability of Disputes at the Reference Stage

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Arbitration

In a recent case of M/s. Emaar India Ltd. v. Tarun Aggarwal Projects LLP & Anr [CIVIL APPEAL NO. 6774 OF 2022], once again question that emerged for the consideration of Hon’ble Supreme Court was whether the High Court was justified in allowing the application under Section 11(5) & (6) of the Arbitration and Conciliation Act, 1996 for appointing the arbitrators without considering the aspect of arbitrability of dispute as per the relevant clauses under the Agreement. As per the Agreement executed between the parties, if any conflict or difference arose between the parties or in case either party refuses or neglects to perform its part of the obligations under Agreement, then such issues were not arbitrable but the other party had right to get the agreement specifically enforced through the appropriate court of law. Therefore, the question whether the dispute is arbitrable or not, was to be considered by the Court or by the arbitral tribunal in the light of the very terms of the said agreement.

The Court while analysing the issue went into underling the relevance of contract and observed that the reliefs to the parties shall not travel beyond the terms of the contract executed between the parties. It is because a contract is a transaction between two parties and has been entered into with open eyes and by understanding the nature of contract and that such contract has to be interpreted giving literal meanings unless there is some ambiguity therein. The Court further referred to the judgment in Harsha Construction Vs. Union of India and Ors. (2014) 9 SCC 246 and observed that a contract with regard to arbitration has to be an expressed one. It must be in writing as per the legislation. In Harsha Construction case it was clearly held that it was not open to the Arbitrator to arbitrate upon the disputes which had been expressly “excepted” and thus non-arbitrable. An award, therefore, so far as it related to disputes regarding non¬arbitrable disputes was bad in law and liable to be quashed.

The Court further referred to the judgment in Vidya Drolia and Ors. Vs. Durga Trading Corporation (2021) 2 SCC 1 to elaborate on the aspect of arbitrability and its determination at the stage of application under section 11(6) of the Arbitration and Conciliation Act, 1996. The Court observed that the issue of non-arbitrability of a dispute is basic for arbitration as it relates to the very jurisdiction of the Arbitral Tribunal. As per Vidya Drolia and a catena of judgments decided earlier, the question of arbitrability, specially relating to the inquiry whether the dispute was governed by the arbitration clause, can be examined by the Courts at the reference stage itself. Further, Court can examine the validity of an arbitration agreement, the authority which is covered by the expression, “existence of arbitration agreement” in Section 11 of the Arbitration Act. Court shall not refer the matter for arbitration and as a demurrer interfere under section 8 and 11 when it is manifestly and ex facie certain that the arbitration agreement is non-¬existent, invalid or the disputes are non-arbitrable and also when the matter is demonstrably “non-arbitrable and to cut off the deadwood.” The judicial scrutiny may however vary with the nature and facet of non-arbitrability. If, however, the contentions relating to non–arbitrability are plainly arguable, the court by default shall refer the matter for arbitration. Applying the law laid down by this Court in the aforesaid decisions, the Court in the present matter held that the dispute is not arbitrable since the claims have been excepted by the clear term in the Agreement.

13 Nov

R. 14(2)(b) of Building & Other Construction Workers Welfare Cess Rules, 1998 ultra vires the provisions of S. 11 Building and Other Construction Workers Welfare Cess Act, 1996

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Uncategorized

Labour Commissioner, the Appellate Authority constituted under the Building and Other Construction Workers Welfare Cess Act, 1996, gave an order dated 05.08.2013 dismissing the appeal of the Petitioner on the ground that Petitioner failed to deposit 100% of cess, penalty and interest as a precursor to the appeal getting admitted. According to the Appellate Authority, the appeal was not viable, as it did not comply with the provisions of Rule 14(2) of the 1998 Rules. The order was challenged before the Delhi High Court along with the challenge laid to the vires of Rule 14 of the Building & Other Construction Workers Welfare Cess Rules, 1998. The core issue, which arises for consideration is, whether the petitioner could have been called upon to pay 100% of cess, penalty and interest, for progressing its appeal, which was filed before the Appellate Authority?

The Petitioner contended that the provisions of Rule 14(2)(b) of the 1998 Rules are beyond the provisions of Section 11 of the 1996 Act. Section Section 11 of the 1996 Act prescribes for deposit of fees while instituting the appeal, and not cess and penalty.

The Court began by examining the width and scope of Section 11 of the 1996 Act with the background of the settled position that the rule making authority cannot frame a rule, which is beyond the power conferred under the 1996 Act. As per section 11(2) of the 1996 Act, “[e]very appeal preferred under sub-section (1) shall be accompanied by such fees as may be prescribed”.

As per Rule 14(2)(b) and (c) of the 1998 Rules, the appeal shall be accompanied inter alia with — “a certificate from the cess collector to the effect that the amount of cess or penalty or both, as the case may be, relating to such appeal has been deposited” and “a fee equivalent to one per cent, of the amount in dispute or penalty or both, as the case may be, under such appeal”. The Court concluded that the provision made in sub-clause (b) of sub-rule (2) of Rule 14 of the 1998 Rules is clearly beyond the provisions of Section 11(2) of the 1996 Act.

7 Nov

Court’s Permission not Required in Renewal of Passport Where a Criminal Case is Pending

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Criminal

In a recent case before the Division Bench of the Bombay High Court [Abbas Hatimbhai Kagalwala v. The State of Maharashtra and Anr. Writ Petition No.384 of 2019], a petitioner approached with the main contention that permission from the Court is not necessary for renewal of the Passport where a criminal case is pending against the Petitioner. According to the Counsel, the only limitation, where a criminal case is pending against a person, would be that the Petitioner shall not travel abroad without the permission from the Court. While a criminal case was pending against the Petitioner u/s 420, 465, 467 r/w 120-B of the Indian Penal Code, the validity of the Passport of the Petitioner came to an end in the year 2017. The Petitioner applied for renewal but the said application was pending for more than 4 years.

The contention from the side of the Government was limited to the argument that as per the Notification dated 25.8.1993 and Section 6.2 (f) of the Passport Act, 1967, a permission of the Court where criminal case is pending against the Petitioner is required to be obtained for the purpose of issuance of the Passport. As per the provision:

(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of section 5 on any one or more of the following grounds, and on no other ground, namely:—

…

(f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India; The court while underlining the difference between issuance of passport on one hand and renewal of passport on the other, held that where a criminal case is pending against the Petitioner, the authority shall process the application of the petitioner for renewal of Passport without insisting for permission of the Court. It is only if the Petitioner is travelling abroad, that the Petitioner would be required to seek permission from the Court where criminal case is pending.Court’s Permission not Required in Renewal of Passport Where a Criminal Case is Pending

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