Administrative Or Executive Orders Cannot Be Made Applicable Retrospectively In Absence Of Legislative Competence: SC
The Supreme Court has observed that administrative/executive orders or circulars in the absence of any legislative competence cannot be made applicable retrospectively. The Court further held that the law could be made retrospectively if it was expressly provided by the Legislature in the Statute.
"The power to make retrospective legislations enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act, but at the same time, administrative/executive orders or circulars, as the case may be, in the absence of any legislative competence cannot be made applicable with retrospective effect. Only law could be made retrospectively if it was expressly provided by the Legislature in the Statute.", the Bench of Justice Ajay Rastogi and Justice BV Nagarathna observed.
The Court made this observation while dealing with a batch of appeals filed by the appellant-Bharat Sanchar Nigam Ltd. assailing the judgment passed by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi, followed with the order rejecting the application seeking clarification of aforesaid judgment to the extent that the rate of infrastructure charges for Active Links of Licensed Telecom Service Providers to be charged in terms of the circular dated June 12, 2012 has been made effective from April 1, 2013 instead of April 1, 2009.
Advocate Gaurav Sharma represented the Appellant whereas Advocate Pallavi Langar represented Respondent.
The limited question raised for the consideration of the Court was as to whether the rates prescribed by the appellant under the circular could be applied retrospectively w.e.f. April 1, 2009 or be effective from April 1, 2013, and whether the appellant is entitled to claim 10% notional increase every year from April 1, 2009 to be applicable from April 1, 2013.
The Court noted that Competence to make a law for a past period on a subject depends upon present competence to legislate on that subject. The Court noted that law could be made retrospectively if it was expressly provided by the Legislature in the Statute.
Keeping in mind the aforestated principles of law on the subject, the Court held thus "…we are of the view that applicability of the circular dated 12th June, 2012 to be effective retrospectively from 1st April 2009, in revising the infrastructure charges, is not legally sustainable and to this extent, we are in agreement with the view expressed by the Tribunal under the impugned judgment."
On the submission of the Appellant with regard to the notional increase of charges by a certain percentage every year, the Court was not persuaded with the finding of the Tribunal.
"…the appellant might not be justified in making the circular dated 12th June, 2012 effective from 1st April, 2009, but once the competence of the appellant in fixing the rates of infrastructure charges in question stands affirmed and is not a subject matter of challenge, the appellant is well within its rights to make their charges leviable on notional fixation by increase of charges by a certain percentage every year in terms of circular dated 12th June, 2012 from each of the service provider as being notionally applicable from 1st April, 2013.", the Court held.
Accordingly, the Court directed that "…the appellant is at liberty to revise the notional rates based on 10% increase every year in terms of circular dated 12th June, 2012 as applicable on 1st April, 2013 and to raise its additional demand/bills based on notional increase of infrastructure charges effective as on 1st April, 2013 to the service providers/respondents herein and if the service providers/ respondents fail to pay, consequences in terms of the agreements executed between the parties shall follow."
Cause Title- Bharat Sanchar Nigam Ltd. and Others etc. v. M/S Tata Communications Ltd. etc.
Click here to read/download the Judgment