BHARAT SANCHAR NIGAM LTD. AND OTHERS ETC versus M/S TATA COMMUNICATIONS LTD. ETC.

Citation: [2022] 18 S.C.R. 143 · Decided: 22-09-2022 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Case Partly allowed

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Judgment (excerpt)

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BHARAT SANCHAR NIGAM LTD. AND OTHERS ETC.
v.
M/S TATA COMMUNICATIONS LTD. ETC.
(Civil Appeal Nos. 1699-1723 of 2015)
SEPTEMBER 22, 2022
[AJAY RASTOGI AND B.V. NAGARATHNA, JJ.]
Administrative Law – Administrative/executive orders or
circulars, if can be made applicable with retrospective effect – Held:
Only law could be made retrospectively if it was expressly provided
by the Legislature in the Statute – Administrative/executive orders
or circulars in the absence of any legislative competence cannot be
made applicable with retrospective effect – In the present case,
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, the view
expressed by the Telecom Disputes Settlement and Appellate  Tribunal
under the impugned judgment is agreed with – However, 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-respondents as being notionally
applicable from 1st April, 2013 – It was open for the appellant to
notionally fix the charges to be computed and became payable from
1st April, 2013, based on 10% annual increase every year or by
any other mechanism which may have a reasonable justification –
Such notionally increased charges can indeed be leviable on the
service providers and to this extent, the order passed by the Tribunal
is not sustainable in law – Order of the Tribunal dated 20th August,
2014 followed by the order dated 14th October, 2014 are modified
– Indian Telegraph Act, 1885.
Partly allowing the appeals, the Court
1.1 The present dispute survives regarding payment of
infrastructure charges for the limited period of two years i.e. from
   [2022] 18 S.C.R. 143
143
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SUPREME COURT REPORTS
[2022] 18 S.C.R.
1st April, 2013 to 31st March, 2015. That the authority of the
appellant in revising the infrastructure charges for active links
leased to telecom operators is not a subject matter of challenge
and none of the respondents have questioned the authority of
the appellant in revising the infrastructure charges for active links
leased to telecom operators. The limited question which has been
raised for consideration is as to whether the rates prescribed by
the appellant under the circular dated 12th June, 2012 could be
applied retrospectively w.e.f. 1st April, 2009 or be effective from
1st April, 2013, as observed by the Tribunal and whether the
appellant is entitled to claim 10% notional increase every year
from 1 st April, 2009 to be applicable from 1st April, 2013.
[Paras 23,25 and 26][160-D, F-G]
1.2 So far as the impugned circular dated 12th June, 2012
is concerned, it stipulates that it shall be made effective from 1 st
April, 2009 and the rates would revise from 1st April, 2009 with
10% annual increase w.e.f. 1st April, 2010, particularly, in the
circumstances when all the infrastructure and other charges are
being paid upfront every year. It is not disputed that each of the
service provider has paid upfront for the previous years from 1st
April, 2009 in terms of the earlier circular dated 30th May, 2006
until the circular dated 12th June, 2012 was introduced. It is a
settled principle of law that it is the Union Parliament and State
Legislatures that have plenary powers of legislation within the
fields assigned to them, and subject to certain constitutional and
judicially recognized restrictions, they can legislate prospectively
as well as retrospectively. Competence to make a law for a past
period on a subject depends upon present competence to legislate
on that subject. By a retrospective legislation, the Legislature
may make a law which is operative for a limited period prior to
the date of its coming into force and is not operative either on
that date or in future. [Paras 27-29][160-H; 161-A-D]
1.3 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
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case may be, in the absence of any legislative competence c

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