THDC LAW

REPORTER
Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A Department

PATRON
From Editor’s Desk
➢ Sh. Vijay Goel, Director (Personal)
Hello readers, this new decade brings us with the new issue of this
e-magazine, we really hope this will be helpful in enhancing your EDITORIAL BOARD
knowledge in legal domain. It is a matter of great pride for all of
us that we are now publishing our seventh edition of THDC LAW ➢ Sh. R.C. Bhauguna, D.G.M. (L&A)
REPORTER with its first issue being published in the year ➢ Sh. V.K. Jain, D.G.M (L&A)
2016.we just entered in this new decade and with full enthusiasm ➢ Sh. K.S. Pundir, D.G.M (L&A)
we are here issuing this new edition with lots of knowledgeable ➢ Sh. N.L. Painuly, Sr. Manager
elements. we were putting our best to come up with new and (L&A)
beneficial. Law is the system of rules which a particular country ➢ Sh. S. Vamsi Prasad, Sr. Manager
or community recognizes as regulating the actions of its members (L&A)
and which it may enforce by the imposition of sanctions Here in ➢ Sh. Himanshu Kumar Jaiswal, Sr.
this issue we tried to focus on the recent and most remarkable Officer (Law)
judgments given by our hon’ble courts with some amazing facts ➢ Sh. Dharmendra Singh Bhati, Sr.
and quizzes. this law reporter is designed to start with articles Officer (Law)
which gives a brief introduction of recent judgments and it ends
with a small quiz which may help to check basic understanding
of law. in between we have mentioned some common legal
maxims which are used in law. we tried to change the format of
In this Issue
the magazine to make it more attractive and effective while
reading it. This new edition provides valuable updates in the field ➢ Important Court Decisions and Legal
of law with reference to recent judgments on the issues raised in
News
the society. we have mentioned achievements of THDC in some
cases such as Jaiprakash associates ltd. vs THDC Ltd. and in the ➢ Recent Judicial Proceeding in regards
judgment passed by the Hon'ble High Court in 14 nos. of land to THDC
reference first appeals in favor of THDCIL. For our improvement
➢ Legal Maxims
and encouragement, we welcome the feedback and opinion of our
readers. ➢ Lex Quizone
➢ Legal Facts
 Important Court Decisions and Legal News

The Arbitration and Conciliation

Amendment Act, 2019

The Framework around the Arbitration in India has

witnessed a patterned shift in recent years. Prior to the
latest amendment of the Arbitration and Conciliation act
of 2019, the Govt had bought changes in the original act
through the virtue of the Arbitration and conciliation act
of 2015. The Government of India Promulgated the
Arbitration and Conciliation (Amendment) Ordinance,
2019 amending certain provisions of the Arbitration and
Conciliation Act, 1996 and the amendment bill of 2015, it
was efforts and steps to providing dispute resolution
mechanism in India.

The Arbitration and Conciliation Amendment Act, 2019

came into force with effect from August 9 2019. This was
primarily done to make India more accustomed to faster
resolution of disputes by 'simplifying the process of
domestic and international arbitration.

The act establishes an independent body called the
‘Arbitration Council of India’ for supervising arbitration,
mediation, conciliation and other alternative dispute
redressal mechanisms under Part 1A of the act.
Section 1CA has been introduced to define an ‘Arbitral
Institution’ Under Section 11, the act Empowers the
Supreme court and the High court to assign and designate
‘Arbitral Institutions’ which will be graded by the ACI.
Section 23 has been amended so that the statement of claim
and defense must be completed within a period of six
months from the date the arbitrator or all the arbitrators
from the time of their appointment.
Section 87 as introduced by the Arbitration and
Conciliation (Amendment) Act, 2019 states that
amendments made to the 1996 Act by the Arbitration and
Conciliation (Amendment) Act, 2015 will not apply to court
proceedings arising out of or in relation to such arbitral
proceedings irrespective of whether such court proceedings
are commenced prior to or after the commencement of the
Arbitration and Conciliation (Amendment) Act, 2015.
The Court noticed that the introduction of Section 87 would
result in a delay of disposal of arbitration proceedings, and
an increase in the interference of courts in arbitration
matters, which defeats the very object of the Arbitration
Act, 1996, which was strengthened by the 2015 Amendment
Act.
When the mischief of the misconstruction of Section 36 was
corrected after a period of more than 19 years by legislative
intervention in 2015, to now work in the reverse direction
and bring back the aforesaid mischief itself results in
manifest arbitrariness.
The retrospective resurrection of an automatic-stay not only
turns the clock backwards contrary to the object of the
Arbitration Act, 1996 and the 2015 Amendment Act, but
also results in payments already made under the amended
Section 36 to award-holders in a situation of no-stay or
conditional-stay now being reversed.

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Right to Internet: Now a
Fundamental Right
The right to freedom of speech and expression is one of
the most central and the basis of most of the
fundamental rights. It’s recognized in Article 19 (1) of
the Indian constitution, Article 19 of the International
Covenant on Civil and Political Rights which India has
signed and ratified. Also, a part of United Nation Human
Rights Council is the right to speech and expression.
There’s a overabundance of case laws regarding Right to
Speech and Expression.
On 10th January 2020, a three-judge bench of the court
declared and affirmed that the first section of Article 19
also covers right to go online, or right to use internet as
one of the fundamental rights. This marked as a day of
achievement for the citizens of India. This also bring up-
to-date a vital aspect of democratic presence to the IT
age, India in the league of liberal jurisdictions has begun
to correspond our legal position with that of the United
Nations Human Rights Council, which declared Internet
access as a human right in 2016.
This right first came into existence by the judgement
passed by the High Court of Kerala, which ruled that no
one should be deprived of internet as a basic right. It also
considered it as a basic human necessity. All
fundamental rights have some reasonable restriction, it
is a well-settled argument that distinct freedoms are
granted as they are subsequently extensive to violate the
rights of others. For example, Freedom of Speech must
not clatter with other laws & order. As the classic logic
has it, no one should be allowed to falsely shout “fire" in
a closed hall and cause a stampede.
As for right to internet, the Supreme Court’s judgement
gave government space to restrict its access on the
condition that it’s comparable to the problem branded.
Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A
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LEGAL MAXIM #1
‘Actionable Per Se’
MEANING
Actions that do not require the allegations or proof of
additional facts to constitute a cause of action
EXAMPLE
Defamation and trespass are two class examples of torts
that are actionable per se.
While this design seems ambiguous and unclear, it could
provide enough scope for governments to justify internet
bans in various cases, it is still noteworthy that the
justification used for such actions would be open to
judicial scrutiny. In other words, it cannot be done at a
government’s whim.
The judgment was hailed in different alleys of civil
society; however, it is pertinent to note that the judgment
has done very little to address the issue of the internet
ban. As a matter of fact, the judgment has not
pronounced right to access to internet as a fundamental
right. Freedom of speech and expression through the
medium of the internet is a fundamental right under
Article 19(1)(a) of the Constitution. The bench added that
broad suspension of telecom services, be it the internet or
otherwise, being a drastic measure, must be considered by
the State only if necessary and unavoidable. In
furtherance of the same, the State must assess the
existence of an alternate, less intrusive remedy.
3

Curative petition, The last
constitutional remedy
Curative petition is the last constitutional remedy for a
person whose review petition is not accepted by the Supreme
Court. The curative power was introduced in the case of
Rupa Ashok Hurra v. Ashok Hurra & Anr, where the
supreme court reevaluated its judgement to prevent abuse of
its process and to cure a gross miscarriage of justice.
The supreme court observed that the powers conferred on
the court by article 142 is curative in nature and cannot be
interpreted as powers which authorize the court to ignore
substantive rights of a litigant.
The curative petition was allowed in the case of Navneet
Kaur v. State of NCT of Delhi imposed upon him on the
grounds of supervening circumstance of delay of 8 years in
disposal of mercy petition. The apex court in this case
allowed the curative petition by commuting the death
sentence to life imprisonment on the ground of inordinate
delay of 8 years in disposal of mercy petition and on the
ground of insanity.
Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A
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LEGAL MAXIM #2
‘Dies non’
MEANING
A day on which no legal business can be done
EXAMPLE
“The applicant seeks regularization of his three periods
of absence which have been treated to be dies non
without break”
In another case, the Supreme Court set aside its own
judgment which held that the action of a the woman
merely kicking her daughter-in-law or threatening her
with divorce would not come within the meaning of
"cruelty" under Section 498 A of the Indian Penal Code.
The three judge Bench allowed the curative petition led
by the National Commission for Women (NCW) by
restoring the Special Leave Petition.
Before the origin of curative petition in Rupa Hurra
case, a writ petition was led under Article 32 of the
Constitution in the Supreme Court. This is was done in
the case of A.R.Antulay v. R.S. Nayak & Anr. where
the majority judges (5:2) opined that a previous
judgment could be recalled under a petition under
Article 32 or 136 of the Constitution
Thus, it can be said that the idea of the curative
petition is a Constitutional remedy which is a last resort
that was originated to rectify the decision of the
Supreme Court by themselves as a legal and moral
obligation in deciding rarest of rare cases.
4
 LEGAL MAXIM #3
‘Quo warranto’
MEANING

A writ or a legal action through which a person shows

by what warrant an office or franchise is held, claimed
or exercised.

EXAMPLE

“A quo warranto has been filed against the High court

of Uttarakhand against the Chief Minister”

Mahatma Gandhi is beyond formal

recognition of Bharat Ratna
A petition with a peculiar prayer seeking conferment of
Bharat Ratna on Mahatma Gandhi was heard by the
Supreme Court today. This PIL prayed for the father of the
nation Mahatma Gandhi to be awarded the Bharat Ratna,
India's highest honor, for his contribution to the building of

“Truth never
the nation.

When this petition was taken up by the Bench of Chief

Justice of India SA Bobde with Justices BR Gavai and Surya

damages a cause Kant, the Court said that while it agrees with the sentiment
of the petitioner, this was not the forum to ask for the same.
The Court also remarked that Mahatma Gandhi, being the

that is just” father of the nation, is beyond such formal recognitions and
didn't need the same.

With these observations, the Court pointed out that this

Mahatma Gandhi prayer was beyond its scope and thus would not entertain
this plea. The petitioner, however, was told by the Court to
make a representation before the government if he so
desired.

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Whether MPs and MLAs are allowed
to practice law during their tenure?
This petition was filed under article 32 of Indian Constitution
as Public Interest Litigation in Supreme Court of India. In this
petition it was prayed by the petitioner that the legislators or
Members of Parliament and Legislative Assemblies who had
degree of law and registered as lawyers be prohibited to
practice as advocates in courts.
That this Public Interest Litigation was filed by the petitioner
seeking directions of the apex court for prohibiting
legislators/Members of Parliament/lawmakers/Members of
Legislative Assemblies and Members of Legislative Councils
from practicing law. That it was contended by the petitioner
that the MPs/MLAs and MLCs are elected by the public in
large and called public representatives.
That the argument was made by the petitioner that such
persons are duty bound to work for public cause which is a full-
time engagement. That practice of law is also a full-time work
and a noble profession. If these people work as public servant
as well as they practice law being an advocate, they cannot
justify both the works simultaneously.
That the petitioner contended against such people who are
seen regularly in courts as advocate and they are Members of
Parliament as well. It was also argued that such people
frequently come in media, give interview and appear on TV
channels. They can influence the litigants and courts too. That
it was also contended by the petitioner that such people
practice law and they charge high amount of fees from their
clients and they get allowances/ funds and pension from the
government as well.
That it was also argued by the petitioner that there can be
professional misconduct on their part if they don’t justify their
role as an advocate. That there are chances that at the time of
the bill of any law (when law was being made in legislative
assembly or parliament) they may be present in parliament
and play a deliberate role and give contradictory opinion in
court at the time of practicing such law by challenging the
wisdom of parliament. This may cause a conflict of interest.
That the rule 49 of Bar Council of India Rules was referred by
petitioner which prohibits the practicing advocate from taking
any other employment.
Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A
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LEGAL MAXIM #4
‘Bona Vacantia’
MEANING
Bona Vacantia is a legal concept associated with the
property that has no owner. It exists in various
jurisdictions, but with origins mostly in English law.
EXAMPLE
“The right can be transferred only intestate or via a will
and becomes bona vacantia if no heirs exist.”
The Supreme Court of India held that in the absence of
any rule which clearly and expressively prohibit the
legislators from practicing as advocates Rule 49 of the
rules framed by Bar Council of India does not apply. It
was held that rule 49 of the Bar Council of India Rules
provides that an advocate should not be the full-time
employee of anybody. It includes any person, firm,
organization or government. If any advocate takes any
such employment, he has to inform the Bar Council about
the employment and he ceases to be an advocate and from
practicing law till the course of employment.
It was held by the Supreme Court that State Bar Councils
can frame the rules regarding restrictions and conditions
for the practicing advocates. Court held that advocacy is a
noble work which requires full time engagement. Rules
can be made for putting restriction on legal practitioners
so that they can pay full attention towards their clients
and the cases. Supreme Court held that the case of
professional misconduct will have to be proved beyond
reasonable doubt and it may vary from case to case.
Court held that rule 49 does not impose any unreasonable
restriction on the advocates. The mere fact that law
makers or legislators or member of parliament/legislative
assemblies/councils withdraw salaries and pension or
allowances does not bring them into the ambit of rule 49.
6
 Recent Judicial Proceedings in regards to THDC
Jayprakash Associates LTD.
V. THDC LTD
In this case the Appellant (Jayprakash Associates) was given
a contract for certain works. Some disputes arose between the
parties as there was an arbitration clause in the agreement
both the parties decided to solve the dispute through
arbitration. Through arbitration a majority award was
pronounced on October 10, 2010. The arbitrators also granted
interest at 10% pa and future interest at a 18% pa.
The dispute in the court is that Clauses 50 and 51 of the General
Conditions of Contract (GCC) which governed the terms
between the parties. Delhi High Court decided that no interest
is payable as clauses 50 and 51 GCC.
The court also held that the clause followed by the Arbitrators
was from the case of Board of Trustees for Calcutta Port v.
Engineers De Space Age, and held that the clause had meant
no interest was payable on claim for delayed payment due to
contractor. Therefore, same construction is needed to be
applied to clauses 50 and 51.
Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A
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LEGAL MAXIM #5
‘Ubberime Fide’
MEANING
Utmost Good Faith
EXAMPLE
“She has established her position as a ubberime
fide celebrity.”
The appellant council submitted that the judgement of
State of Uttar Pradesh v. Harish Chandra and Company
was in contrary to the current judgement. The
Respondent council (THDC) gave the defense that the
Harish Chandra case followed the Arbitration act of
1940 and Arbitration act of 1996 was to be followed in
the cases of arbitration.
The appeal was rejected by the supreme court on the
same basis as no clause in the THDC ltd (supra) spoke of
no claim of interest payable which may be lying in the
government.
7

14 Land References for price
determination of land
As per the Land Acquisition Act, 1894 some land under the
Bhumidari Rights was assigned in the village of Fulsaini,
Dehradun by the State Govt. for the rehabilitation of the Tehri
Dam ousters. The market rate of the land was Rs 2,34,120.76
per acre by the Special Land Acquisition Officer, Dehradun. 14
bhumidars had filed a reference against the award declared by
the officer. The reference was referred in the Dehradun court
for hearing.
The ADJ, Dehradun reference court had enhanced the market
rate of the acquired of the acquired land (land in question)
from Rs. 2,34,120.76 per acre to Rs. 14,30,737.97 per acre along
with the benefits as per Land Acquisition Act of 1894. State
Govt. of Uttarakhand through Collector, Dehradun had filed
the appeals against the judgment dated 28.4.2007 passed by
the ADJ in land reference no. 15 of 2004 Veena Jain Vs
Collector, Dehradun and other 13 connected land references.
THDCIL was impleaded as appellant no. 3 in these land
reference appeals before Hon’ble High Court of Uttarakhand.
Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A
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LEGAL MAXIM #6
‘Ex post Facto’
MEANING
It is law that retroactively changes the legal
consequence of actions that were committed or
relationships that existed, before the enactment of law.
EXAMPLE
“The decisive ex post facto evidence of the benefits of
union must therefore come from the united churches
themselves.”
The reference court had enhanced the market rate of the
above acquired land to six times of the awarded amount. As
per judgment given by the reference court, huge financial
allegation was involved in these cases. The Hon’ble High
court had allowed the all 14 first appeals on 21.5.2014 and
had also set aside the judgment dated 28.7.2007 passed by
the ADJ in LAR no. 15 of 2004 Veena Jain and other v.
Collector, Dehradun and Anr. and other 13 connected
references. Out of 14 appeals, 9 distressed respondents had
filed recall /review application against the judgment dated
21.5.2014 passed by the Hon’ble High Court of
Uttarakhand in 9 first appeals.
The Hon’ble high court has rejected/dismissed the all 09
recall/review applications on 28.8.2019 which were filed in
09 first appeals (copy of judgment dated 28.8.2019.
Resulting to aforesaid judgment of the hon’ble High Court,
an amount of Rs. 29.50 crores (approx.) has been saved by
THDCIL against financial liability as per the impugned
judgment of the reference court.
8
\
Royalty cases won by THDCIL LEGAL MAXIM #7
THDCIL filed cases before High Court of Uttarkhand against
order dated 19-03-2013 passed by DM , Tehri Garhwal (acting ‘Jus Naturale’
on behalf of State Government) directing THDCIL to deposit
an amount of Rs. 28 Crores(approx.) towards pits mouth value MEANING
of total mines and minerals allegedly illegally extracted by
THDC and also against order dated 12-03-2013 passed by DM Natural law is a philosophy that ascertains that certain
Tehri Garhwal directing THDCIL to deposit an amount of Rs. rights are inherent by human nature, traditionally by
1,70 Crores (Approx.) towards value of total mines / minerals, god and something that can be understood universally
mining extraction, transportation of the same done without through human reason.
lawful authority.
EXAMPLE
THDC challenged the above orders on the ground of being
violative of fundamental, statutory rights under article 14, 19 “The roman courts followed Jus Naturale.”
(1)(g) of Constitution of India; under Mines and Minerals Act
1957; UP Mines and Minerals (concession) rules. THDC filed
these cases and challenged the impugned orders because it had
acquired the land for the public purpose for quarrying for
purpose of construction of Koteshwar dam in lieu of. This was Judgment
primarily raised as a ground for attributing no rationale in
imposing the aforementioned amounts by DM, Tehri Garhwal. It was held that State Govt. is not competent to levy or
recover any royalty and penalty from the petitioners for
Identical questions of law and facts were involved in all cases; digging of site of Dam for the purpose of construction of
therefore, Single Judge bench of Hon’ble HC of Uttarakhand Tehri Dam and Koteshwar Dam.
vide order dated 26-05-2014 disposed of these cases by a
common judgment in favour of THDCIL. Against this common judgment of Single Judge of High
Court of Uttarakhand, appeals were filed by State
Background Government before Division Bench of High Court, but
same were dismissed on 24.10.2018. Further to this, State
For the purpose of construction of Tehri dam, huge chunk of Govt. has also reached Supreme Court of India in Special
land was dug and ultimately, Tehri Dam, came into existence. Leave Petitions but that were also dismissed by Supreme
The State Government (of Uttarakhand) decided to recover Court of India on 2.12.2019.
the royalty and penalty from the petitioners on the ground
that they were involved in illegal mining of minerals within THDC saved more than Rs. 200 Crores (Approx) through
Tehri Dam and Koteshwar Dam areas without taking mining these cases.
lease/ license, as required under Section 4 of the Mines and /
minerals (development and Regulation) Act, 1957 , therefore,
were liable to pay royalty and penalty under Section 21 (5) of
the Act.

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 Some Legal Questions

ANSWERS
1) Who is the present Chief Justice of India?
1) Justice Sharad Arvind Bobde
2) Who is the present Chief Justice of High Court
2) Justice Ramesh Ranganathan
of Uttarakhand?
3) ignorance of law is no excuse
3) What is meant by ignorantia 'legis non excusat'?
4) to produce a body- a writ requiring a person under
4) What is meant by writ of 'Habeus Corpus'? arrest to be brought before a judge or into court,
5) How many present judges in Supreme Court? especially to secure the person's release unless
6) In which case Supreme Court has held right to lawful grounds are shown for their detention.
internet as a fundamental right? 5) 30 judges
7) Indian parliament is based on the principle of? 6) Anuradha Bhashin Vs. Union of India
8) Public holidays are declared under which law? 7) Bicameralism.
9) If a witness makes a statement in court, knowing 8) Negotiable Instruments Act.
it to be false. he commits the offence of? 9) Perjury
10) Beyond what distance from the coast in the sea 10) 200 KM
known as "high sea”?

Interesting Legal Facts

1. The Indian Constitution is the largest in the world.

2. A Total Of 283 Members of The Constitution Assembly Signed the Constitution.
3. The Original Hand Written Copies of The Constitution Are Kept in Helium-filled Cases in The Library Of The
Parliament House.
4. The concept of the Five-Year plan was taken from the USSR.
5. The Preamble to Our Constitution was inspired by the preamble to the Constitution of United States of America.
6. The Fundamental Rights recognized by our Constitution has also been adopted from the American Constitution.

Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A 10

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Issue 7th | January 2020 | A quarterly e-magazine of Corporate L&A
Department