¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

L. A. BILL No. X OF 2018.

A BILL

to provide for the establishment of the Maharashtra Infrastructure

Development Enabling Authority, to regulate the process of submission and

evaluation of unsolicited proposals, to promote and facilitate infrastructure

projects in the State of Maharashtra including through Public Private

Partnership and matters connected therewith or incidental thereto.

WHEREAS, both Houses of the State Legislature were not in session ;

AND WHEREAS, the Governor of Maharashtra was satisfied that

circumstances existed which rendered it necessary for him to take immediate

action to make a law, for the establishment of the Maharashtra Infrastructure

Development Enabling Authority, to regulate the process of submission and

evaluation of unsolicited proposals, to promote and facilitate infrastructure

projects in the State of Maharashtra including through Public Private

Partnership; and matters connected therewith or incidental thereto ; and,

therefore, promulgated the Maharashtra Infrastructure Development

Enabling Authority Ordinance, 2018, on the 23rd February 2018 ;

Mah.

Ord. VII

of 2018.

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+ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ--+

´É¹ÉÇ 4, +ÆEòú 5(3)]

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+ºÉÉvÉÉ®úhÉ Gò¨ÉÉÆEòú 10

|ÉÉÊvÉEÞòiÉ |ÉEòÉ¶ÉxÉ

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MAHARASHTRA LEGISLATURE SECRETARIAT

The following Bill was introduced in the Maharashtra Legislative Assembly on the 14th March

2018 is published under Rule 117 of the Maharashtra Legislative Assembly Rules :—

RNI No. MAHBIL /2009/40123

¦ÉÉMÉ {ÉÉSÉ-+---10---1

(1)

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

AND WHEREAS, it is expedient to replace the said Ordinance by an

Act of the State Legislature ; it is hereby enacted in the Sixty-ninth Year of

the Republic of India as follows :—

CHAPTER I

PRELIMINARY

(1) This Act may be called the Maharashtra Infrastructure

Development Enabling Authority Act, 2018.

(2) It shall be deemed to have come into force on the 23rd February 2018.

In this Act, unless the context otherwise requires,—

(1) “Authority” means the Maharashtra Infrastructure Development

Enabling Authority constituted under sub-section (1) section 3 ;

(2) “Designated Officer” means the officer of the State Government

appointed under sub-section (2) of section 5 ;

(3) “Government” or “State Government” means the Government of

Maharashtra;

(4) “Government Agency” means any instrumentality of the State

Government;

(5) “Government Authority” means the Authorities established by

the State Government;

(6) “Infrastructure Project” or “Project” means a Project in the

Infrastructure Sector, for any development, re-development or

restructuring of an existing Infrastructure Projects, or any under

construction Infrastructure Projects, including those have been awarded

prior to the commencement of the Act by any Government Authority or

Government Agency or Local Authority or Government Company; or

development, operation and maintenance ; or operation and maintenance

of any infrastructure facility in the Infrastructure Sector, for the

purposes of creation of infrastructure asset, or delivery of public services

and shall include a facility of similar nature and substantial expansion

thereof;

(7) “Infrastructure Sector” means the Infrastructure Sectors

prescribed in rules;

(8) “innovative financing” means the financing at the rate below Repo

Rate declared by the Reserved Bank of India, from time to time;

(9) “Local Authority”—

(i) in relation to the Zilla Parishad means the Zilla Parishad

constituted under the Maharashtra Zilla Parishads and Panchayats

Samitis Act, 1961;

(ii) in relation to the Municipal Corporation means the

Municipal Corporations constituted under the Mumbai Municipal

Corporation Act or, as the case may be, the Maharashtra Municipal

Corporations Act ;

(iii) in relation to the Municipal Council, Nagar Panchayat

or Industrial Township means the Municipal Council, Nagar

Panchayat or Industrial Township, as the case may be, constituted

under the Maharashtra Municipal Councils, Nagar Panchayats and

Industrial Townships Act, 1965; or

(iv) any other authority treated as Local Authority under any

other law for the time being in force;

Mah. V

of 1962.

III of 1888.

LIX of

1949.

Mah. XL

of 1965.

Short title and

commence-

ment.

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

(10) “Maharashtra Infrastructure Projects Policy” means the policy

declared by the State Government, from time to time, for promotion and

development of Infrastructure Projects, including Public Private

Partnerships in Infrastructure Sectors;

(11) “Original Project Proponent” means a person who has submitted

the Unsolicited Proposal to the Authority and declared as Original

Project Proponent under sub-section (3) of section 8 ;

(12) “Person” includes any Private Sector Participant or Public Sector

Participant, company or body corporate or association or body of

individuals, whether incorporated or not ;

(13) “prescribed” means prescribed by rules made under the Act ;

(14) “Private Sector Participant” means any Person other than a

Public Sector Participant;

(15) “Project Entrepreneur” means the Person to whom the project

has been assigned after final bid and declared as Project Entrepreneur

by the Authority under sub-section (3) of section 14 ;

(16) “Public Private Partnerships” means a mode of procurement of

Infrastructure Projects through a combination of public and private

participation;

(17) “Public Sector Participant” means and includes,—

(a) Central Government, State Government, Government

Agency, Government Authority, Government Company or Local

Authority; or

(b) any joint venture by any Public Sector Participant with

Private Sector Participant;

(18) “regulations” means regulations made by the Authority under

the Act ;

(19) “rules” means rules made under the Act ;

(20) “Transaction Advisor” means a person appointed by the

Government Authority, Government Agency or Local Authority under

sub-section (1) of section 18 ;

(21) “Unsolicited Proposals” means the proposals in Infrastructure

Sectors, for promotion and development of Infrastructure Projects as

per the Maharashtra Infrastructure Projects Policy of the Government

with innovative ideas, new concepts, new or modern technologies,

submitted by any Person under sub-section (1) of section 6.

CHAPTER II

ESTABLISHMENT AND COMPOSITION

OF AUTHORITY.

(1) As soon as may be, after the commencement of the Act, the State

Government shall, by notification in the Official Gazette, establish a Authority

to be called the Maharashtra Infrastructure Development Enabling Authority,

to exercise the powers conferred on it and perform the functions assigned to

it under the Act.

(2) The Authority shall be a body corporate by the name aforesaid having

perpetual succession and a common seal, with the power, subject to the

provisions of the Act, to acquire, hold and dispose of property, both moveable

and immoveable, to do all things incidental and necessary for the purposes

of the Act, and to contract, and shall, by name sue or be sued.

(3) The head office of the Authority shall be at such place as the State

Government may specify.

Establishment

of Maharashtra

Infrastructure

Development

Enabling

Authority.

¦ÉÉMÉ {ÉÉSÉ-+----10--1+

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(1) The Authority shall consist of the Chief Secretary and Additional

Chief Secretary, Principal Secretary or Secretary, as the case may be, of the

Departments of the State Government, as may be specified by the Government,

by notification in the Official Gazette, from time to time.

(2) The Government may appoint such other expert Members in such

field as may be prescribed.

(3) The Chief Secretary shall be the Chairperson and Secretaries of the

Departments shall be the ex officio Members of the Authority.

(4) The Secretary of the concerned Department, to which the project

pertains shall act as the Member-Secretary of the Authority.

(1) The Authority shall exercise the following powers and perform

the following functions, namely :—

(a) to receive all proposals and certify whether the project qualifies

to be the Infrastructure Project, keeping in mind the overall objectives

of the State Government and the provisions of the Maharashtra

Infrastructure Projects Policy;

(b) to receive, consider and process the proposals for development

of the Infrastructure Projects and to recognize and grant the status of

‘Original Project Proponent’ or ‘Project Entrepreneur’, as the case may

be;

Government Agency, Local Authority or the concerned Department of

the State Government, and the Original Project Proponent or Project

Entrepreneur, as the case may be;

(d) to promote the competitive bidding of the Infrastructure Projects;

(e) to select Project Entrepreneur for the implementation of

Infrastructure Projects by making appropriate recommendations to the

Government Authority, Government Agency, Local Authority or the State

Government;

(f) to identify and leverage inter-sectorial or inter-project linkages;

(g) to recommend and approve standard form of documents relating

to the Infrastructure Projects;

(h) to identify and encourage use of new concepts, new technologies,

intellectual property rights in the Infrastructure Projects;

(i) to resolve issues relating to the approvals of the Infrastructure

Projects;

(j) to recommend time limit for approval of Infrastructure Projects;

(k) to periodically review the status of the Infrastructure Projects;

(l) to approve sectorial policies and model contract principles;

(m) to discharge such other functions as may be prescribed.

(2) The Authority may appoint officers of the Government as the

Designated Officers for the purposes of implementing the provisions of the

Act.

(3) The Authority may in respect of the specific Infrastructure Project,

delegate its functions to the concerned Department of the Government or

Government Authority, the Government Agency or the Local Authority, as

the case may be, in such manner as may be prescribed.

Powers and

functions of

Authority.

Composition

of Authority.

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(4) The Authority shall advise the State Government on all or any of the

following matters, namely :—

(a) formulation of the Maharashtra Infrastructure Projects Policy;

(b) promotion and use of new concepts, new ideas, innovation,

efficiency and economy in harnessing the proposals, awarding contracts

and overall development of Infrastructure Projects in the State;

(d) any other matter referred to the Authority by the State

Government.

(5) The Authority shall ensure transparency while exercising its powers

and discharging its functions.

CHAPTER III

INFRASTRUCTURE PROJECTS DELIVERY PROCESS

(1) Any Person desirous of developing any Infrastructure Project in

the Infrastructure Sectors, shall submit the proposal to the Authority in such

form, in such manner, with such documents and with such details along with

such fee as may be prescribed.

(2) On receipt of the proposal under sub-section (1), the Authority shall,

on the basis of the information furnished to it, ascertain whether such proposal

is, prima facie, a Unsolicited Proposal and qualifies to certify as the

Infrastructure Project specified in the rules and is in consonance with the

overall objectives of the State Government and to the provisions of the

Maharashtra Infrastructure Projects Policy.

(3) The Authority shall not qualify such proposal as Infrastructure

Project, if such proposal,—

(a) contravenes any existing laws;

(b) results in the creation of a monopoly;

(d) is out of the Infrastructure Sectors or sub-sectors as prescribed ;

(e) requires viability gap funding ; or

(f) does not involve use of modern technology, or new concept or

innovative financing.

(4) If the Authority is satisfied that the proposal is in consonance with

the overall objectives of the State Government and the provisions of the

Maharashtra Infrastructure Projects Policy, the Authority may grant a

Certificate to the Person in the prescribed format. If the proposal is not

approved, the Authority shall communicate its decision to such Person with

reasons.

(5) If the Authority is satisfied that the proposal submitted by the Person

under sub-section (1) is adequate to declare as the ‘Original Project

Proponent’, the Authority may, with the prior approval of the Government,

declare such Person as the ‘Original Project Proponent’ under clause (b) of

sub-section (3) of section 8, for such Infrastructure Project.

(6) The Authority shall take the decision within such period as may be

prescribed.

(7) When the Certificate is granted under sub-section (4), the Authority

shall seek further information as may be prescribed, pertaining to such

proposal from such Person. Such Person shall submit the information online

to the Authority in such manner and within such period as may be prescribed.

Procedure for

Infrastructure

Projects delivery.

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

The Authority may reject the proposal if,—

(i) such proposal does not fulfil the eligibility criteria provided

under section 13; or

(ii) such Person fails to furnish the appropriate information or

documents or the clarifications sought by the Authority, within the time

communicated to it; or

(iii) the information or documents submitted by such Person are

not in accordance with the prescribed Forms; or

(iv) the contents or information or documents submitted are

incomplete or deficient or found to be false; or

(v) the Person has failed to make payment of the fees in the manner

as may be prescribed; or

(vi) any other grounds as may be prescribed.

(1) The Authority shall within prescribed period, from the date of

receipt of the information sought under sub-section (7) of section 6, ascertain

as to whether the proposal submitted is an Unsolicited Proposal or not and

as per the Maharashtra Infrastructure Projects Policy. The Authority shall

while ascertaining the said proposal consider the following parameters :—

(a) whether such proposal addresses any public need;

(b) whether there is any on-going process (Public Private

Partnership or otherwise) that is addressing the same public need;

innovation or contains proprietary intellectual property rights or

innovative financing or financial structuring for Infrastructure Project

of a value not less than the value prescribed by the State Government,

from time to time, in respect of the Infrastructure Project; which in

turn,—

(i) enables reduction of project cost; or

(ii) reduces project completion time; or

(iii) enhances the quality of infrastructure; or

(iv) substantially adds value in respect of incremental, emergent or

revolutionary changes in products, services and processes; or

(v) substantially reduces financial burden on the State Government

or Government Authority or Government Agency or Local Authority.

(2) The Authority shall also verify whether the proposal falls within the

purview of any Government Authority or Government Agency or Local

Authority.

(3) If the Authority is satisfied that,—

(a) the proposal is as per the provisions of the Act and the rules

made thereunder and as per the Maharashtra Infrastructure Projects

Policy; and

(b) the proposal submitted by the Person under sub-section (1) of

section 6, is adequate to declare such Person as the ‘Original Project

Proponent’,

the Authority may, with the approval of the Government, declare such

Person as an ‘Original Project Proponent’ for such Infrastructure Project.

Grounds of

rejection of

proposal.

Declaration

of Original

Project

Proponent.

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

(4) In the event, when the Authority decides that the proposal is not,—

(i) an Unsolicited Proposal;

(ii) as per the Maharashtra Infrastructure Projects Policy ; and

(iii) in accordance with the rules made under the Act,

the Authority shall communicate its decision to such Person alongwith

reasons thereof.

(5) The declaration made by the Authority under sub-section (3), as the

Original Project Proponent of the Infrastructure Project shall be valid for a

period of one year.

(1) If the Original Project Proponent agrees to the terms and

conditions for such Infrastructure Project, the Original Project Proponent

shall enter into an Agreement in such manner as may prescribed which inter

alia, shall determine the obligations of the Original Project Proponent,

representations and penalties, liquidated damages, liability, nature of

concessions and benefits to be granted, etc. to the Original Project Proponent.

(2) The nature of concessions and benefits to be granted to the Original

Project Proponent shall be such as may be prescribed.

10.

(1) The Authority shall direct the Original Project Proponent to

submit such Detailed Project Report (DPR), and other details within such

period as may be prescribed.

(2) If the Original Project Proponent fails to submit the details of Project

within the prescribed period, the Original Project Proponent will have no

right over the said Project.

11.

(1) The Authority shall, with the approval of the Government,

publish the information about the provisional declaration of the Original

Project Proponent for such Infrastructure Project, on the website designated

by the Authority and also simultaneously in the newspapers (one in English

and one in Marathi) having circulation in the area, for calling objections from

the affected persons, in the manner prescribed.

(2) If objections are received from the affected persons, the Authority

shall hear such objections in such manner as may be prescribed and shall

take the final decision on the said Project.

12.

(1) The Authority shall direct the concerned Department to call

the bid of the approved Project.

(2) The procedure of the bid, notice period, technical aspects and the

terms and conditions for approval of such Project shall be such as may be

prescribed.

13.

(1) The eligibility criteria for submission of proposal by any Person

under sub-section (1) of section 6 or competitive bidder for the Project shall

be such as may be prescribed.

(2) The Person who fulfils the criteria specified in sub-section (1) shall

be eligible to submit the proposal or eligible for the bid of the Project.

14.

(1) If in the bid,—

(a) the proposal of the Original Project Proponent is in deviation of 10

per cent. or more, compared to the other competitive bids received, the

Authority shall grant the Project to the best competitive bidder and thereupon

the Original Project Proponent will lose its status as Original Project

Proponent of the said Project.

Rights of

Original

Project

Proponent.

Submission

of details of

Project.

Publication of

provisional

declaration of

Project.

Competitive

bids.

Eligibility

criteria.

Assignment of

Project.

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

(b) If the proposal of the Original Project Proponent has deviation

of less than 10 per cent. compared to the other bidders, the Authority

shall give opportunity to the Original Project Proponent to match his

proposal with the proposal selected in bid.

(2) If the Project is not assigned to the Original Project Proponent, he

shall be entitled to reimbursement of the cost of the Detailed Project Report

as prescribed:

Provided that, the Original Project Proponent shall be entitled to

reimbursement of the cost of the Detailed Project Report only if, the Project

is implemented:

Provided further that, the Original Project Proponent shall not be entitled

to reimburse the cost of the Detailed Project Report, if he unilaterally

withdraws the proposal.

(3) The Person to whom the Project has been assigned, the Authority

shall, with the approval of the Government, declare such Person as the Project

Entrepreneur of the Project.

(4) The procedural details of assignment of the Project to the Project

Entrepreneur shall be such as may be prescribed.

15.

(1) If the Authority and the Project Entrepreneur agrees to the

terms and conditions for such Infrastructure Project, the concerned

Government Authority or Government Agency or Local Authority may enter

into Concession Agreement with the Project Entrepreneur as prescribed

which inter alia, shall determine the obligations of the Project Entrepreneur,

representations and warranties, penalties, liquidated damages, liabilities,

nature of concession and benefits to be granted, etc.

(2) It shall be binding on the Project Entrepreneur to complete the Project

within the period as per the agreement.

16.

(1) The Authority may prescribe the model Concession Agreement

for the purposes of the Act.

(2) The following Concession Agreement with their variations and

combinations may be made,—

(a) design-build-operate-and-transfer ; or

(b) design-build-own-operate-and-transfer ; or

(d) develop-operate-and-transfer ; or

(e) any other Concession Agreement as may be prescribed.

(3) The details of the Concession Agreement specified in sub-section (1)

shall be as prescribed in the regulations.

17.

(1) The concerned Government Authority or Government Agency

or Local Authority, identified by the Authority shall be responsible for

implementation of the Project either on its own or through any agency.

(2) The Authority shall oversee that the actions carried out by such

Government Authority or Government Agency or Local Authority are

transparent and cause such Government Authority or Government Agency

or Local Authority, report to the Authority in the manner as may be

prescribed.

Agreement

with Project

Entrepreneur.

Nature of

Concession

Agreement.

Implementation

of Project.

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18.

(1) The concerned Government Authority or Government Agency

or Local Authority may appoint a Transaction Advisor as per the requirements

of the Project.

(2) The functions and duties of the Transaction Advisor shall be such as

may be prescribed.

CHAPTER IV

MISCELLANEOUS

19.

(1) The Authority shall provide Single Window Clearance for

administering the proposals in relation to the Infrastructure Project under

the Act.

(2) The procedural details of the Single Window Clearance shall be such

as may be prescribed.

(3) The Authority shall from time to time, accept all documents, proposals

and applications under the Act through online mode designated by the

Authority or designated by the State Government for this purpose and any

such document, proposal or application so uploaded shall constitute a valid

submission for the purposes of the Act.

(4) The Government and the Authority shall promote digital system and

e-governance in respect of all matters of the Act.

20.

The provisions of the Information Technology Act, 2000 shall apply

to the information submitted by any Person or exchanged with any Person in

respect of any matters relating to the Act.

21.

(1) The Authority or Government Authority or Government Agency

or Local Authority shall ensure transparency in their functioning under the

Act.

(2) Any Person while submitting the proposal to the Authority under

sub-section (1) of section 6 of the Act shall enter into integrity pact with the

Authority.

(3) The details of the integrity pact shall be such as may be prescribed.

22.

The State Government may, by notification in the Official Gazette,

direct that any power exercisable by the State Government under this Act

(except the power to make rules under section 24) shall be exercisable by an

officer of the State Government, subject to such terms as may be specified in

such notification.

23.

The provisions of this Act or the rules made thereunder shall have

effect notwithstanding anything to the contrary contained in any other law

for the time being in force.

24.

(1) The State Government may, by notification in the Official

Gazette, make rules to carry out the purposes of the Act.

(2) Every rule made under this Act shall be laid, as soon as may be, after

it is made, before each House of the State Legislature, while it is in session

for a total period of thirty days, which may be comprised in one session or in

two or more successive sessions, and if, before the expiry of the session in

which it is so laid or the session immediately following, both Houses agree in

making any modification in rule or both Houses agree that the rule should

not be made, and notify their decision to that effect in the Official Gazette,

the rule shall, from the date of publication of such decision in the Official

Gazette, have effect only in such modified form or be of no effect, as the case

Appointment

of Transaction

Advisor.

Single Window

Clearance.

Applicability

of Information

Technology

Act, 2000.

21 of

2000.

Transparency.

Delegation of

powers.

Act to have

overriding

effect.

Power to

make rules.

¦ÉÉMÉ {ÉÉSÉ-+----10--2

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

may be ; so however that, any such modification or annulment shall be without

prejudice to the validity of anything previously done or omitted to be done

under that rule.

25.

(1) The Authority may, with previous sanction of the Government,

by notification in the Official Gazette, make regulations consistent with the

Act, generally to carry out the purposes of the Act.

(2) The Authority shall make the regulations for the following purposes,-

(a) the procedure to be followed by the Authority;

(b) provide the standard forms of agreements and documents;

or Government Agency or Local Authority;

(d) any other matters as may be prescribed.

26.

No suit, prosecution or other legal proceeding shall lie against the

Government, Government Authority or Government Agency or Local

Authority or, any officer or employee of the Government, Government

Authority, Government Agency or Local Authority, for anything done or

purported to have been done in good faith, in pursuance of the provisions of

this Act or rules or regulations made thereunder.

27.

(1) If any difficulty arises in giving effect to the provisions of this

Act, the Government may, as occasion arises, by an order published in the

Official Gazette, do anything not inconsistent with the provisions of this Act,

which appears to it to be necessary or expedient for the purposes of removing

the difficulty :

Provided that, no such order shall be made after expiry of a period of

two years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may

be, after it is made, before each House of the State Legislature.

28.

(1) The Maharashtra Infrastructure Development Enabling

Authority Ordinance, 2018, is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken

(including any notification or order issued) under the said Ordinance, shall

be deemed to have been done, taken or issued, as the case may be, under the

corresponding provisions of this Act.

Power of

Authority to

make

regulations.

Protection of

action taken

in good faith.

Power to

remove

difficulties.

Repeal of

Mah. Ord. VII

of 2018 and

saving.

Mah.

Ord.

VII of

2018.

¨É½þÉ®úÉ¹]Åõ ¶ÉÉºÉxÉ ®úÉVÉ{ÉjÉ +ºÉÉvÉÉ®úhÉ ¦ÉÉMÉ {ÉÉSÉ-+, ¨ÉÉSÉÇ 14, 2018/¡òÉ±MÉÖxÉ 23, ¶ÉEäò 1939

STATEMENT OF OBJECTS AND REASONS

Considering the limitations on development of Infrastructure Projects

through Government funding, the Government of Maharashtra vide

Government Resolution, dated the 6th November 1996 has set up a Cabinet

Committee for promoting private participation in the State’s Infrastructure

Projects. The said Cabinet Committee has played enabling and decision

making role in respect of many projects.

Currently various Departments of State, State Undertakings and

Government Authorities act as a Project Proponents. The Infrastructure

Projects are selected on the basis of demand from public representatives and

studies commissioned by the respective Departments, Public Undertakings

and Local Authorities. While giving impetus to the implementation of the

Infrastructure Projects, it has become necessary to explore all possible

financial options, innovative financing, new concepts, ideas and technologies.

There are limitations at the Departmental and Local Authority Levels as

regards structuring of projects, identifying the best mode of financing,

adoption of new concepts, ideas and modern technologies.

With the advent of digital technologies and consolidation of

intellectual property rights in India, many solutions have emerged to address

the complex problems faced by Infrastructure Sector. In order to strengthen

the institutional mechanism required for considering use of new concepts,

ideas and technologies in conceiving, developing, constructing, operating,

managing and implementation of Private Partnership in the Infrastructure

Sector, the concept of allowing Unsolicited Proposal has emerged as a

effective solution to the Infrastructure Sectors in the modern world.

The concept of Unsolicited Proposal is now widely used in many

countries and in some States in India for accepting Infrastructure Proposals

of public need with new concepts, ideas and technologies. The concept of

allowing Unsolicited Proposal known as “Swiss Challenge Method” is

universally applicable.

Many States in India have adopted the modified version of Swiss

Challenge Method by incorporating certain provisions in the law and policy

mechanism to ensure transparency, competitiveness and proper execution

of such projects, as per Hon’ble Supreme Court’s guidelines in Ravi

Development V/s Shri Krishna Pratishtan and others (2009) 7 SCC 462.

Likewise, in order to explore all financial options, new concepts, ideas and

technologies for development of infrastructure of public need, it is imperative

to adopt method of inviting Unsolicited Proposals for Infrastructure

Developments, not covered by the studies of Government Departments, Public

Undertakings and Local Authorities.

The State of Maharashtra is one of the leading States that had

embarked early upon the concept of Public Private Partnership in

infrastructure projects and successfully exhibited the contribution of Public

Private Partnerships in developing the State’s infrastructure. The State

Government recognizes the need to strengthen the institutional mechanism

required for considering use of new concepts, ideas, technologies, innovative

financing, know-how to meet its needs in conceiving, developing,

constructing, operating, managing and implementing Public Private

Partnerships in the Infrastructure Sector by encouraging the private sector

participants to submit Unsolicited Proposals through a well-defined

institutional mechanism. In order to ensure transparency, competitiveness,

proper and timely execution of Unsolicited Proposals in the Infrastructure

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Sectors, the Government considered it expedient to enact a law, so as to

establish the Authority known as the Maharashtra Infrastructure

Development Enabling Authority, with power to approve, advise, co-ordinate

and supervise the Unsolicited Proposals in the State.

The salient features of the then proposed provisions are explained

broadly as follows :—

(i) to provide for establishment of the Maharashtra Infrastructure

Development Enabling Authority for approval and monitoring the

Unsolicited Proposals for Development of Infrastructure for public need

and its powers and functions ;

(ii) to provide for Infrastructure Projects Delivery Process ;

(iii) to provide for condition precedence for declaration of Original

Project Proponent (OPP) and rights of the Original Project Proponent ;

(iv) to provide for publication of provisional declaration of

Infrastructure Project for calling objections and public hearing ;

(v) to provide for innovative financing ;

(vi) to provide for invitation of competitive bids and assignment of

Project ;

(vii) to provide for nature of concessions to the Project Entrepreneur ;

(viii) to provide for Single Window Clearance system for Infra-

structure Projects ;

(ix) to provide for appointment of Transaction Advisor for the

Project ;

(x) to provide for transparency in the functioning of the Authority,

Government Authority, Government Agency and Local Authority, in

implementation of the Projects under the Act.

As both Houses of the State Legislature were not in session and the

Governor of Maharashtra was satisfied that circumstances existed which

rendered it necessary for him to take immediate action to make aforesaid

provisions by a law, for the purposes aforesaid, the Maharashtra

Infrastructure Development Enabling Authority Ordinance, 2018 (Mah. Ord.

VII of 2018), was promulgated by the Governor of Maharashtra on the 23rd

February 2018.

The Bill is intended to replace the said Ordinance by an Act of the

State Legislature.

Mumbai,

CHANDRAKANT (DADA) PATIL,

Dated the 12th March, 2018.

Minister for Public Works.

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MEMORANDUM REGARDING DELEGATED LEGISLATION

The Bill involves the following proposals for delegation of legislative

power, namely :—

Clause 4.—(a) Under sub-clause (1), power is taken to the State

Government to specify by notification in the Official Gazette, the composition

of the Authority ;

(b) under sub-clause (2), power is taken to the State Government to

prescribe by rules, the field of such other expert members to be appointed on

the Authority.

Clause 5.— (a) Under sub-clause (1) (m), power is taken to the State

Government to prescribe by rules, the other functions to be discharged by

the Authority ;

(b) under sub-clause (3), power is taken to the State Government to

prescribe by rules, the manner to delegate the functions of the Authority to

the Government Department or the Government Authority, Government

Agency or the Local Authority.

Clause 6.—(a) Under sub-clause (1), power is taken to the State

Government to prescribe by rules, the forms and the manner to submit the

documents, other details and fee of the proposal to the Authority ;

(b) under sub-clause (3) (c) and (d), power is taken to the State

Government to prescribe by rules, the value of the Infrastructure Project and

Infrastructure Sectors and sub-sectors, to qualify as the Infrastructure

Project ;

prescribe by rules, the format of the Certificate to grant to the Person;

(d) under sub-clause (6), power is taken to the State Government to

prescribe by rules, the period within which the Authority shall take the

decision;

(e) under sub-clause (7), power is taken to the State Government to

prescribe by rules, the manner to seek the further information and the period

to submit the information by the Person to the Authority.

Clause 7(vi).— Under this clause, power is taken to the State Government

to prescribe by rules, the other grounds to reject the proposal.

Clause 8(1).— Under this clause, power is taken to the State Government

to prescribe by rules, the period within which the Authority shall ascertain

as to whether the proposal submitted is an Unsolicited Proposal or not and

as per the Maharashtra Infrastructure Projects Policy;

Clause 9.— (a) Under sub-clause (1), power is taken to the State

Government to prescribe by rules, the manner to enter into agreement with

the Original Project Proponent;

(b) under sub-clause (2), power is taken to the State Government to

prescribe by rules, the nature of benefits to be granted to the Original Project

Proponent.

Clause 10(1).—Under this clause, power is taken to the State

Government, to prescribe by rules, the period to submit the Detailed Project

Report (DPR).

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Clause 11.—(a) Under sub-clause (1), power is taken to the State

Government, to prescribe by rules, the manner to call the objections from the

affected persons;

(b) under sub-clause (2), power is taken to the State Government, to

prescribe by rules, the manner to hear the objections of the affected persons.

Clause 12(2).— Under this clause, power is taken to the State

Government, to prescribe by rules, the procedure of bid, notice period

technical aspects and terms and conditions for approval of the Project.

Clause 13(1).— Under this clause, power is taken to the State

Government, to prescribe by rules, the eligibility criteria for submission of

the proposal by the Persons under sub-section (1) of section 6 or competitive

bidder for the Project.

Clause 14.— (a) Under sub-clause (2), power is taken to the State

Government, to prescribe by rules, the reimbursement of the cost of the Detail

Project Report to the Original Project Proponent ;

(b) under sub-clause (4), power is taken to the State Government, to

prescribe by rules, the procedural details of assignment of Project to the

Project Entrepreneur.

Clause 15(1).— Under this clause, power is taken to the State

Government, to prescribe by rules, the Concession Agreement with the Project

Entrepreneur.

Clause 16.— (a) Under sub-clause (1), power is taken to the Authority,

to prescribe by regulations, the model Concession Agreement ;

(b) under sub-clause (2) (e), power is taken to the State Government to

prescribe by rules, the variations and combinations of other Concession

Agreements ;

regulations, the details of Concession Agreements.

Clause 17(2).—Under this clause, power is taken to the State

Government, to prescribe by rules, the manner in which the Government

Authority or Government Agency or Local Authority report to the Authority.

Clause 18(2).—Under this clause, power is taken to the State

Government, to prescribe by rules, the functions and duties of the Transaction

Advisor.

Clause 19(2).—Under this clause, power is taken to the State

Government, to prescribe by rules, the procedural details of Single Window

Clearance.

Clause 21(3).— Under this clause, power is taken to the State

Government, to prescribe by rules, the details of integrity pact.

Clause 22.— Under this clause, power is taken to the State Government,

to issue notification in the Official Gazette, to direct that the power exercisable

by the State Government (except the power to make rules under section 24)

shall be exercisable by an Officer of the State Government subject to such

terms as may be specified in such notification.

Clause 24.—Under this clause, power is taken to the State Government,

to make rules, by notification in the Official Gazette, to carry out the purposes

of the Act.

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GOVERNOR’S RECOMMENDATION UNDER ARTICLE

207 OF THE CONSTITUTION OF INDIA

(Copy of Government of Maharashtra Order, Law and Judiciary Department)

In exercise of the power conferred upon him by clause (3) of Article 207

of the Constitution of India, the Governor of Maharashtra is pleased to

recommend to the Maharashtra Legislative Assembly, the consideration of

the Maharashtra Infrastructure Development enabling Authority Bill 2018.

Vidhan Bhavan :

DR. ANANT KALSE,

Mumbai,

Principal Secretary,

Dated the 14th March 2018.

Maharashtra Legislative Assembly.

ON BEHALF OF GOVERNMENT PRINTING, STATIONERY AND PUBLICATION, PRINTED AND PUBLISHED BY SHRI PARSHURAM JAGANNATH GOSAVI, PRINTED

AT GOVERNMENT CENTRAL PRESS, 21-A, NETAJI SUBHASH ROAD, CHARNI ROAD, MUMBAI 400 004 AND PUBLISHED AT DIRECTORATE OF GOVERNMENT PRINTING,

STATIONERY AND PUBLICATION, 21-A, NETAJI SUBHASH ROAD, CHARNI ROAD, MUMBAI 400 004, EDITOR : SHRI PARSHURAM JAGANNATH GOSAVI.