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MODEL ANSWER 2018 CONSTITUTION II Q.No. Explain the contractual Liability of the State with reference to constitutional provisions. Introduction:The subject of government contracts has assumed great importance in the modern times. Today the state is a source of wealth. In the modern era of a welfare...

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MODEL ANSWER 2018 CONSTITUTION II

Q.No.1. Explain the contractual Liability of the State with reference to constitutional provisions. Introduction:The subject of government contracts has assumed great importance in the modern times. Today the state is a source of wealth. In the modern era of a welfare state, government's economic activities are expanding and the government is increasing. Today a large number of individuals and business organizations enjoy largess in the form of government contracts, licenses, quotas, mineral rights, jobs, etc. This raises the possibility of exercise of power by a government to dispense largess in an arbitrary manner. It is axiomatic that the government or any of its agencies ought not to be allowed to act arbitrarily and confer benefits on whomsoever they want. Therefore there is a necessity to develop some norms to regulate and protect the individual interest and at the same time to create working environment to exercise the discretion of the Government to extend the contractual benefits to the other parties to the contract. Contract - Meaning of the term A contract is an agreement enforceable by law which offers personal rights, and imposes personal obligations, which the law protects and enforces against the parties to the agreement. The general law of contract is based on the conception, which the parties have, by an agreement, created legal rights and

obligations, which are purely personal in their nature and are only enforceable by action against the party in default. Section 2(h) of the Indian Contract Act, 1872 defines a contract as "An agreement enforceable by law". The word 'agreement' has been defined in Section 2(e) of the Act as ‘every promise and every set of promises, forming consideration for each other’ Government Contract A contract to which the Central Government or a State Government is a party is called a 'Government Contract'. The Indian Contract Act, 1872 does not prescribe any form for entering into contracts. A contract may be oral or in writing. It may be expressed or be implied from the circumstances of the case and the conduct of the parties.But the position is different in respect of Government Contracts. A contract entered into by or with the Central or State Government has to fulfill certain formalities as prescribed by Article 299 of the Indian Constitution. In the case of State of Bihar v Majeed The Hon'ble Supreme court has held 30 Section 2(h) of the Indian Contract Act, 1872 defines a contract as "An agreement enforceable by law". The word 'agreement' has been defined in Section 2(e) of the Act as ‘every promise and every set of promises, forming consideration for each other’ Government Contract:A contract to which the Central Government or a State Government is a party is called a 'Government Contract'. The Indian Contract Act, 1872 does not prescribe any form for entering into contracts. A contract may be oral or in writing. It may be expressed or be implied from the circumstances of the case and the conduct of the parties.

But the position is different in respect of Government Contracts. A contract entered into by or with the Central or State Government has to fulfill certain formalities as prescribed by Article 299 of the Indian Constitution.

'Contracts' and 'Government contracts' It is true that in respect of Government Contracts the provisions of Article 299(1) must be complied with, but that does not mean that the provisions of the Indian Contract Act have been superceded.

In the case of State of Bihar v Majeed, the Hon'ble Supreme court has held that;

"It may be noted that like other contracts, a Government Contract is also governed by the Indian Contract Act, yet it is distinct a thing apart. In addition to the requirements of the Indian Contract Act such as offer, acceptance and consideration, a Government Contract has to be complied with the provisions of Article 299.

Thus subject to the formalities prescribed by Article 299 the contractual liability of the Central or State Government is the same as that of any individual under the ordinary law of contract." As regards the interpretation of contract, there is no distinction between the contracts to which one of the parties is the Government and between the two private parties. Article 299 provides:All contracts made in the exercise of executive power of the union or 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 all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such person and in such manner as he may direct or authorize. 2. Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purpose of any

enactment relating to Government of India hereto before in force , nor shall any such contract or assurance on behalf of any of them be personally liable in respect thereof". Thus Article 299 lays down three conditions which the contracts made in the exercise of the executive power of the Center or a State must fulfill to be valid – a. The contract must be expressed to be made by the president or the Governor as the case may be; In Union of India v. SSH Syndicate, AIR 1976 SC 879. It is observed that the contract with the Government will not be binding if it is not expressed to be made in the name of the President or the Governor, as the case may be. b. These contracts made in the exercise of the executive power are to be executed on behalf of the President/Governor as the case may be; and In Union of India V. N.K.Ltd(AIR 1972 SC 915) The Director was authorized to execute contract on behalf of the president, but the contract was entered into by the secretary. The contract was declared invalid as it was entered by an officer who was not authorized for this purpose. c) The execution must be by such person and in such manner as the President or the Governor of the case as the case may be, may direct or authorize. It has been held by the Hon'ble Supreme Court in the case of BhikarajJaipuriavs Union of India "it is clear from the words "expressed to be made" and "executed" that there must be a formal written contract…The provisions of Article 299(1) are

mandatory in character and any contravention thereof nullifies the contract and makes it void. The provisions of Article 299(1) have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against the unauthorized contracts. The provisions are embodied in the constitution on the ground of public policy on the ground of protection of general public and these formalities cannot be waived or dispensed with." Where a contract is made by tender and acceptance, the acceptance must be made by a duly authorized person and on behalf of the President, and a valid contract may result from correspondence. Implied Contract with the Government In view of Article 299(1) there can be no implied contract between the government and another person, the reason being that if such implied contracts between the government and another person were allowed, they would in effect make Article 299(1) useless, for then a person who had a contract with the government which was not executed at all in the manner provided under Article 299(1) could get away by saying that an implied contract may be inferred on the facts and the circumstances of the particular case. It was held by the Hon'ble Supreme Court in the case of K.P.CHOWDHARY VS STATE OF MADHYA PRADESH "In view of the provisions of Article 299(1) there is no scope for any implied contract. Thus no contract can be implied under this Article.if the contract between the Government and a person is not incompliance with Article 299(1), it would be no contract at all and would not be enforceable as a contract either by the Government or by the person."

CONCLUSION The reason for enacting Article 299 of the constitution of India is that in order to bind a government there should be a specific procedure enabling the agents of the government to make contracts. The Public funds cannot be placed in jeopardy by the contracts made by unspecified public servants without express sanction of the law. It is a provision made to save the state from spurious claims made on the strength of unauthorized contracts. Q2. Discuss the Establishment, Composition and Powers and Functions of Election Commission of India. Introduction: Preamble of our Constitution declares India to be a Democratic Republic. Democracy is the basic features of the Indian Constitution. Democracy is sustained by free and fair elections. Only free and fair elections to the various legislative bodies in the country can guarantee the growth of a democratic polity. It is the cherished privilege of a citizen to participate in the processes which place persons in the seats of power. India has been characterised as a biggest democracy in the world because of the colossal nature of the elections held in the Country. At a general elections, an electorate of millions goes to the polls to elect members for the Lok Sabha. The Legislative Assemblies and the Legislatures of the Union Territories. Free and fair election has been held to be a basic feature of the Constitution Establishment of Election Commission: In order to ensure free, fair and impartial elections, the Constitution establishes the Election Commission, a body autonomous in character and insulated from political pressures or executive influence. Care has been taken to ensure that the commission functions as an independent agency free from external pressures from the party in power. Part-XV, Articles 324 to 329 of the Constitution deals with provisions relating to Establishment, Composition, Powers and Functions of Election Commission of India.

According to Article 324 (1) the election commission was constituted for purpose of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and VicePresident held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). Composition of Election Commission: According to Article 324 (2), The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. As per Article 324 (3) says that When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission. According to Article 324 (4), Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1). Tenure & Safeguard: Article 324 (5) Every Election Commissioner has a term of six years from the date he/she assumes office or till he attains the age of 65 years (whichever is earlier). The Chief Election commissioner cannot be removed from his office, except in a like manner and on like grounds as a judge of the Supreme Court. All the three members are entitled to the same salary and other facilities, as are provided to a judge of the Supreme Court. Powers and Functions of Election Commission:

The election commission plays a pivotal role in the electoral mechanism of the Country. The Election Commission primarily exercises administrative functions but it also has some adjudicative and legislative functions as well. Article 324 (1) assigns the following powers and functions of Election Commission: The Superintendence, direction and control rolls for all elections to Parliament, State Legislatures, Offices of the President and VicePresident; Conduct of all these elections. Prepare, revise and maintain the voter’s list. Delimitation of Constituencies. Advises the President and Governor regarding electoral matters Determine criteria for recognizing political parties Settle election disputes. Election Commission has the power to review its decision as to the expediency of holding the poll on a particular date. When there is no law or rule made under the law, the Commission may pass any order in respect of the conduct of elections. Q3. Define Gram Sabha under Panchayath Raj Institutions? Explain its Composition, Costitution and powers and function of Panchayath? Introduction: In India there is a government at the Center and State levels. But there is another important system for local governance. The foundation of the present local self-government in India was laid by the Panchayati Raj System (1992). But the history of Panchayati Raj starts from the self-sufficient and self-governing village communities. In the time of the Rig-Veda (1700 BC), evidence suggests that self-governing village bodies called ‘sabhas’ existed. With the passage of time, these bodies became panchayats (council of five persons). Panchayats were functional institutions of grassroots governance in almost every village. They endured the rise and fall of empires in the past, to the current highly structured systemLocal self-government implies the transference of the power to rule to the lowest rungs of the political order. It is a form of

democratic decentralization where the participation of even the grass root level of the society is ensured in the process of administration. Definition of Gram Sabha: Gram Sabha is described as a legal general assembly of all adult persons residing in a village or a group of villages. The roles, powers and functions of the Sabha are decided by the State Legislature, as per the 73rd amendment. Gram Sabha reviews annual budget, accounts of the Panchayat and also discusses its audit and administrative reports and tax proposal. Further, it approves development schemes formulated by the Panchayat. It also plans and organizes various resources for community development programs. Two meeting of the Gram Sabha, are organised every year, wherein the first meeting is to consider the budget of the Gram Panchayat and the second meeting is held to take into account the reports of the Panchayat. The members of the Sabha elect their representatives at the Village Panchayat, i.e. its members and the Chairperson, through voting by a secret ballot. Constitution And composition of Panchayaths: The Three-Tier System of Panchayati Raj in India: 1. Village Panchayat: In the structure of the Panchayati Raj, the Village Panchayat is the lowest unit. There is a Panchayat for each village or a group of villages in case the population of these villages happens to be too small. The Panchayat chiefly consists of representatives elected by the people of the village. Only the persons who are registered as voters and do not hold any office of profit under the government are eligible for election to the Panchayat. The persons convicted by the court for criminal offences are disqualified from election of the Panchayat. There is also provision for co-option of two women and one member of the Scheduled Castes and Scheduled Tribes, if they do not get adequate representation in the normal course.

The Panchayat as a body is accountable to the general body of the village known as Gram Sabha which meets at least twice a year. The Gram Panchayat must present its budget, accounts of the previous year and annual administrative report before the Gram Sabha. The Sarpanch occupies a pivotal position in Gram Panchayat system. He supervises and coordinates the various activities of the Panchayat. He is an ex-officio member of the PanchayatSamiti and participates in its decision-making as well as in the election of the Pradhan and of the members of various Standing Committees. He acts as the executive head of the Panchayat, represents it in the PanchayatSamiti as its spokesman and coordinates its activities and those of other local institutions like cooperatives. The Panchayat Secretary and the Village Level Worker are the two officers at the Panchayat level to assist the Sarpanch in administration. 2. PanchayatSamiti: The PanchayatSamiti is the second on join tier of the Panchayati Raj. The BalwantRai Mehta Committee report has envisaged the Samiti as a single representative and vigorous democratic institution to take charge of all aspects of development in rural areas. The Samiti, according to the Committee, offers “an area large enough for functions which the Village Panchayat cannot perform and yet small enough to attract the interest and services of residents.” Usually a PanchayatSamiti consists of 20 to 60 villages depending on area and population. The average population under a Samiti is about 80,000 but the range is from 35,000 to 1, 00,000. The PanchayatSamiti generally consists of(1) about twenty members elected by and from the Panches of all the Panchayats falling in the block area; (2) two women members and one member each from the Scheduled Castes and Scheduled Tribes to be co- opted, provided they do not get adequate representation otherwise; (3) two local persons possessing experience of public life and administration, which may be beneficial for the rural development; (4) representatives of the Co-operatives working within the jurisdiction of the block; (5) one representative elected by and from the members of each small municipality

lying within the geographical limits of a block; (6) the members of the State and Union legislatures representing the area are to be taken as associate members. The President of the PanchayatSamiti is the Pradhan, who is elected by an electoral college consist of all members of the PanchayatSamiti and all the Panchas of the Gram Panchayat falling within the areas. Besides the Pradhan, the Up-pradhan is also elected. The Pradhan convenes and presides over the PanchayatSamiti meetings. He guides the Panchayats in making plans and carrying out production programmes. The principal function of the PanchayatSamiti is to coordinate the activities of the various Panchayats within its jurisdiction. The PanchayatSamiti supervises the work of the Panchayats and scrutinises their budgets. 3. ZillaParishad: The ZillaParishad stands at the apex of the three-tier structure of the Panchayati Raj system. Generally, the ZillaParishad consists of representatives of the PanchayatSamiti; all the members of the State Legislature and the Parliament representing a part or whole of the district; all district level officers of the Medical, Public Health, Public Works, Engineering, Agriculture, Veterinary, Education and other development departments. There is also a provision for special representation of women, members of Scheduled Castes and Scheduled Tribes provided they are not adequately represented in the normal course. The Collector is also a member of the ZillaParishad. The Chairman of the ZillaParishad is elected from among its members. There is a Chief Executive Officer in the ZillaParishad. He is deputed to the ZillaParishad by the State Government. There are subject matter specialists or officers at the district level in all the states for various development programmes. The ZillaParishad, for the most part, performs co-ordinating and supervisory functions. It coordinates the activities of the PanchayatSamitis falling within its jurisdiction. In certain states the ZillaParishad also approves the budgets of the PanchayatSamitis. Powers, authority and responsibilities of Panchayats:

State Legislatures have power, to confer on the Panchayats such powers and authority as may be necessary to enable them to function as institutions of selfgover...