Over the last couple of weeks, MNREGA is back in the spotlight. The Union Minister for Rural Development wrote to certain states regarding potential misuse of funds, and it was announced that rural development schemes are open to CAG audit. In large schemes like MNREGA, officials at all levels of government - central, state, district, block, panchayat - have roles to play. This can make it difficult to locate the responsible authority in case implementation issues arise. We list the responsibilities of different government agencies involved in implementation of MNREGA in the Table below.
| Stakeholder | Responsibilities | |
| Gram Sabha | (a) recommending works; (b) conducting social audits on implementation every six months; and (c) functioning as a forum for sharing information. | |
| Gram Panchayat | (a) planning works; (b) receiving applications for registration; (c) verifying applications; (d) registering households; (e) issuing job cards, (f) receiving applications for employment; (g) issuing detailed receipts; (h) allotting employment within 15 days of application; (i) executing works; (j) maintaining records; (k) convening Gram Sabha for social audit; and (l) monitoring implementation at the village level. | |
| Intermediate Panchayat | (a) consolidating Gram Panchayat plans into a Block plan and (b) monitoring and supervision at the block level. | |
| Programme Officer (PO) | (a) ensuring work to applicants within 15 days; (b) scrutinising Gram Panchayat annual development plans; (c) consolidating proposals into a Block plan and submitting to intermediate panchayat; (d) matching employment opportunities with demand for work at the Block level; (e) monitoring and supervising implementation; (f) disposing of complaints; (g) ensuring that Gram Sabha conducts social audits; and (h) payment of unemployment allowance. | |
| District Panchayat | (a) finalizing district plans and labour budget; and (b) monitoring and supervising at district level. | |
| District Programme Coordinator (DPC) | (a) ensuring that the scheme is implemented according to the Act at the district level; (b) information dissemination; (c) training; (d) consolidating block plans into a district plan; (e) ensuring that administrative and technical approval for projects are obtained on time; (f) release and utilisation of funds; (g) ensuring monitoring of works; (h) muster roll verifications; and (i) submitting monthly progress reports. | |
| State Employment Guarantee Council (SEGC) | (a) advising the state government on implementation; (b) evaluate and monitor implementation; (c) determining the "preferred works" to be taken up; (d) recommending the proposal of works to be submitted to the state government; and (e) prepare an annual report to the state legislature. | |
| State Government | (a) wide communication of the scheme; (b) setting up the SEGC; (c) setting up a State Employment Guarantee Fund; (d) ensuring that dedicated personnel are in place for implementation, including Gram Rozgar Sahayak, Programme Officer, and technical staff; (e) ensuring state share of the scheme budget is released on time; (f) delegation of financial and administrative powers to the DPC and Programme Officer if necessary; (g) training; (h) establishing a network of professional agencies for technical support and quality control; (i) regular review, monitoring, and evaluation of processes and outcomes; and (j) ensuring accountability and transparency. | |
| Central Employment Guarantee Council | (a) advising the central government on MNREGA matters; (b) monitoring and evaluating implementation of the Act; and (c) preparing annual reports on implementation and submitting them to Parliament. | |
| Ministry of Rural Development | (a) ensuring resource support to states and the CEGC; (b) regular review, monitoring, and evaluation of processes and outcomes; (c) maintaining and operating the MIS to capture and track data on critical aspects of implementation; (d) assessing the utilization of resources through a set of performance indicators; (e) supporting innovations that help in improving processes towards the achievement of the objectives of the Act; (f) support the use of Information Technology (IT) to increase the efficiency and transparency of the processes as well as improve interface with the public; and (g) ensuring that the implementation of NREGA at all levels is sought to be made transparent and accountable to the public.. | |
| Source: Operational Guidelines, National Rural Employment Guarantee Scheme, Ministry of Rural Development. | ||
The Insolvency and Bankruptcy Code, 2016 was enacted to provide a time-bound process to resolve insolvency among companies and individuals. Insolvency is a situation where an individual or company is unable to repay their outstanding debt. Last month, the government promulgated the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 amending certain provisions of the Code. The Insolvency and Bankruptcy Code (Second Amendment) Bill, 2018, which replaces this Ordinance, was introduced in Lok Sabha last week and is scheduled to be passed in the ongoing monsoon session of Parliament. In light of this, we discuss some of the changes being proposed under the Bill and possible implications of such changes.
What was the need for amending the Code?
In November 2017, the Insolvency Law Committee was set up to review the Code, identify issues in its implementation, and suggest changes. The Committee submitted its report in March 2018. It made several recommendations, such as treating allottees under a real estate project as financial creditors, exempting micro, small and medium enterprises from certain provisions of the Code, reducing voting thresholds of the committee of creditors, among others. Subsequently, the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018, was promulgated on June 6, 2018, incorporating these recommendations.
What amendments have been proposed regarding real estate allottees?
The Code defines a financial creditor as anyone who has extended any kind of loan or financial credit to the debtor. The Bill clarifies that an allottee under a real estate project (a buyer of an under-construction residential or commercial property) will be considered as a financial creditor. These allottees will be represented on the committee of creditors by an authorised representative who will vote on their behalf.
This committee is responsible for taking key decisions related to the resolution process, such as appointing the resolution professional, and approving the resolution plan to be submitted to the National Company Law Tribunal (NCLT). It also implies that real estate allottees can initiate a corporate insolvency resolution process against the debtor.
Can the amount raised by real estate allottees be considered as financial debt?
The Insolvency Law Committee (2017) had noted that the amount paid by allottees under a real estate project is a means of raising finance for the project, and hence would classify as financial debt. It had also noted that, in certain cases, allottees provide more money towards a real estate project than banks. The Bill provides that the amount raised from allottees during the sale of a real estate project would have the commercial effect of a borrowing, and therefore be considered as a financial debt for the real estate company (or the debtor).
However, it may be argued that the money raised from allottees under a real estate project is an advance payment for a future asset (or the property allotted to them). It is not an explicit loan given to the developer against receipt of interest, or similar consideration for the time value of money, and therefore may not qualify as financial debt.
Do the amendments affect the priority of real estate allottees in the waterfall under liquidation?
During the corporate insolvency resolution process, a committee of creditors (comprising of all financial creditors) may choose to: (i) resolve the debtor company, or (ii) liquidate (sell) the debtor’s assets to repay loans. If no decision is made by the committee within the prescribed time period, the debtor’s assets are liquidated to repay the debt. In case of liquidation, secured creditors are paid first after payment of the resolution fees and other resolution costs. Secured creditors are those whose loans are backed by collateral (security). This is followed by payment of employee wages, and then payment to all the unsecured creditors.
While the Bill classifies allottees as financial creditors, it does not specify whether they would be treated as secured or unsecured creditors. Therefore, their position in the order of priority is not clear.
What amendments have been proposed regarding Micro, Small, and Medium Enterprises (MSMEs)?
Earlier this year, the Code was amended to prohibit certain persons from submitting a resolution plan. These include: (i) wilful defaulters, (ii) promoters or management of the company if it has an outstanding non-performing asset (NPA) for over a year, and (iii) disqualified directors, among others. Further, it barred the sale of property of a defaulter to such persons during liquidation. One of the concerns raised was that in case of some MSMEs, the promoter may be the only person submitting a plan to revive the company. In such cases, the defaulting firm will go into liquidation even if there could have been a viable resolution plan.
The Bill amends the criteria which prohibits certain persons from submitting a resolution plan. For example, the Code prohibits a person from being a resolution applicant if his account has been identified as a NPA for more than a year. The Bill provides that this criterion will not apply if such an applicant is a financial entity, and is not a related party to the debtor (with certain exceptions). Further, if the NPA was acquired under a resolution plan under this Code, then this criterion will not apply for a period of three years (instead of one). Secondly, the Code also bars a guarantor of a defaulter from being an applicant. The Bill specifies that such a bar will apply if such guarantee has been invoked by the creditor and remains unpaid.
In addition to amending these criteria, the Bill also states that the ineligibility criteria for resolution applicants regarding NPAs and guarantors will not be applicable to persons applying for resolution of MSMEs. The central government may, in public interest, modify or remove other provisions of the Code while applying them to MSMEs.
What are some of the other key changes being proposed?
The Bill also makes certain changes to the procedures under the Code. Under the Code, all decisions of the committee of creditors have to be taken by a 75% majority of the financial creditors. The Bill lowers this threshold to 51%. For certain key decisions, such as appointment of a resolution professional, approving the resolution plan, and making structural changes to the company, the voting threshold has been reduced from 75% to 66%.
The Bill also provides for withdrawal of a resolution application, after the resolution process has been initiated with the NCLT. Such withdrawal will have to be approved by a 90% vote of the committee of creditors.
