BHARAT SANCHAR NIGAM LTD. AND OTHERS ETC. VERSUS M/S TATA COMMUNICATIONS LTD. ETC.
BHARAT SANCHAR NIGAM LTD. AND OTHERS ETC. VERSUS M/S TATA COMMUNICATIONS LTD. ETC.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).16991723 OF 2015
BHARAT SANCHAR NIGAM
LTD. AND OTHERS ETC. ….APPELLANT(S)
VERSUS
M/S TATA COMMUNICATIONS
LTD. ETC. ….RESPONDENT(S)
J U D G M E N T
Ajay Rastogi, J.
1. The instant batch of appeals has been preferred by the
appellant, Bharat Sanchar Nigam Ltd. assailing the judgment dated
20th August, 2014 passed by the Telecom Disputes Settlement and
Appellate Tribunal, New Delhi, followed with the order dated 14th
October, 2014 rejecting the application filed by the appellant
seeking clarification of judgment dated 20th August, 2014 to the
extent that the rate of infrastructure charges for Active Links of
Licensed Telecom Service Providers to be charged in terms of the
1
circular dated 12th June, 2012 has been made effective from 1st
April, 2013 instead of 1st April, 2009 taking note of increase of 10%
per annum between 1st April, 2009 to 31st March, 2013 as payable
on 1st April, 2013. As consequence thereto, the revised rates
introduced by the appellant as per circular dated 12th June, 2012,
which although were proposed from 1st April, 2009, shall be
applicable with effect from 1st April, 2013 but that was declined by
the Tribunal under the order impugned.
2. It will be apposite to take a narration of facts for better
appreciation of the controversy raised in the instant appeals.
3. The respondents herein who have been granted licenses under
Section 4 of the Indian Telegraph Act, 1885, for providing telecom
services such as Universal Access Service/Cellular Mobile
Telephone Service/National Long Distance Service, etc. and the
service providers entered into Interconnection Agreements with the
appellant which is a public sector undertaking for interconnection
of their telecom networks with that of the appellant.
4. Whenever a new operator wishes to start operations, it is
necessary for such an operator to interconnect with various other
2
networks of the incumbent operators that are already in existence.
It is for this reason that interconnection as well as the terms on
which the same is to be provided, is regulated by the telecom
regulations. The various operators designate some of their
switches/exchanges as points of interconnect (POI) from which the
interconnection facility is provided by a physical connection on the
ports available in such points of interconnect. Sometimes, the
newcomer called the interconnection seeker in common parlance,
may ask for certain other facilities/resources from the incumbent
operators, which may not be mandated by the regulations, on
mutually agreeable terms.
5. The dispute in the present batch of appeals pertains to
charges for infrastructure facilities which are being provided by the
appellant to the batch of respondents, which were increased by a
circular dated 12th June, 2012, w.e.f. 1st April, 2009. The question
that arose was as to whether the appellant was justified in raising
charges for infrastructure facilities with retrospective operation
from 1st April, 2009, more so, when the yearly charges are paid by
the service providers (respondents) upfront in advance every year.
3
6. Interconnect Agreements are executed between the parties and
as per clause 2.1.9, infrastructure facilities will be provided, subject
to availability and feasibility. Rental for use of such space and
mounting shall be determined by the provider of such facility. As
per clause 6.3.3 of the Interconnect Agreement, it is not mandatory
for the appellant to provide any infrastructure to the respondents,
which they are themselves supposed to arrange. The extract of
clauses 2.1.9 and 6.3.3, which are relevant for the purpose is
reproduced hereinbelow:
“Clause 2.1.9
Irrespective of who owns a transmission system of the link
interconnecting one party’s exchange to the exchange of the other
party, each party subject to availability and feasibility may provide
accommodation for the terminals of such equipment of the other
party located in its premises. Each party may permit mounting of
antennae for interconnect link owned by the other party on its
transmission towers subject to feasibility. Rental for use of such
space and mounting shall be determined by the provider of such
facility. Arrangements for installation, operation and maintenance of
such equipment will be arrived at by mutual agreement.”
“6.3.3 Other charges
It shall not be mandatory for BSNL to provide any infrastructure to
BSO which BSO himself is supposed to arrange. In case the BSO is
not able to bring his interconnecting transmission link upto the
BSNL’s designated exchange for the POI, BSNL may subject to
availability and payment of the prescribed charges by BSO, provide
inter exchange junctions on PCMs from the exchange upto which
the BSO has brought its transmission link to the location of POI.
These charges shall be same as prescribed by TRAI for leased lines
from time to time or on R&G & conditions as the case may be.
4
For any other infrastructure like space BSNL’s building, provision of
power supply, air conditioning, mounting of antenna on towers or
building tops if feasible, the charges and other terms & conditions
for the same shall be as prescribed by BSNL from time to time
separately.”
7. The appellant, in the first instance, by circular dated 19th
February, 2001 fixed the rental charges for providing facilities i.e.
accommodation, power supply, tower space, cable ducts, etc. to the
private licensed service providers and it was specifically mentioned
that the appellant reserve the right to renew the charges as well as
the electricity charges as and when being revised by the State
Electricity Boards. In furtherance thereof, Interconnect
Agreements were executed between the appellant and the
respondents/service providers herein earlier on 31st March, 2004
and it was made explicit that the appellant has no obligation to
provide infrastructure facilities and it is for the respondents/service
providers to arrange the same at their own and in case
infrastructure facilities are taken from the appellant, it shall be on
the rates prescribed by the appellant from time to time.
8. In furtherance thereof, the appellant revised the infrastructure
charges for Active Links leased to the operators by its circular dated
30th May, 2006 w.e.f. 1st April, 2006 and all such charges are to be
5
leviable upfront every year and the circular indicates the
justification of revising the infrastructure charges based on
classification of cities introduced by the Central Government for the
purposes of determining the House Rent Allowance. The extract of
the Circular dated 30th May, 2006, although not under challenge,
but may be relevant for proper appreciation of the grievance raised
by the appellant is reproduced as under:
“Bharat Sanchar Nigam Ltd.
(A Government of India Enterprise)
613B, Statesman House, B148,
Barakhamba Road, New Delhi – 110001
(Commercial Branch)
No. 1031/2006Comml. Dated: 30th May,
2006
Subject: Infrastructure charges for Active Links of Licensed
Telecom Service Providers
In view of various reference received in this office on the
subject, the competent authority has reviewed the infrastructure
sharing charges prescribed vide Circular No.11614/96PHC (pt)
dated 19th February, 2001 and decided to revise the charges as given
below:
2. Definition of links connected to BSNL network:
a. Active Links: These are the links of Licensed Telecom Service
Providers for which transmission equipment of service provider is
installed in BSNL’s exchange premises and their network is
connected through it. The rental charges of infrastructure in this
case have been streamlined and are given below in Para 3.
b. Passive Links: These are the links of Licensed Telecom Service
Providers for which their transmission equipment is installed close
to BSNL exchange premises and only transmission cable
6
(with/without modem) is brought in the BSNL’s telephone exchange
premises. Charges for this have already been prescribed vide
Circular No.1034/2004Comml dated 29th April, 2005.
3. Rental changes for infrastructure sharing have been divided
into following components:
a. Charges for sharing of building space.
b. Electricity and miscellaneous charges.
c. Charges for Tower sharing.
d. Charges for duct sharing.
a. Charges for sharing of building space:
(i) To simplify rent assessment, it has been decided to classify the
areas/cities based on the classification followed by Government of
India for House Rent Allowance i.e. A1, A, B1, B2 and C class cities.
For the sake of simplicity, it has further been decided to have only in
four categories i.e. A (for A1 and A), B (for B), C (C) and Unclassified
cities.
(ii) Accordingly, the rates for one transmission bay (including space
for one box of OF termination and DDF as required) in these
categories of cities may be charged as under. The space is normally
given in technical area of exchange building, which is having high
specifications for installation of telecom equipments. The Licensed
Telecom Service Providers are given space for installation of their
various equipments by officerincharge of building on approval of
equipment installation plan by Head of SSA:
Categories of City Charges
A Rs.36000 per bay per annum
B Rs.28000 per bay per annum
C Rs.20000 per bay per annum
Unclassified Rs.13000 per bay per annum
b). Miscellaneous Infrastructure service charges: These charges
include the sharing of following services:
1). DCT power at – 48V up to 10A/ transmission bay;
2). AC power for lights, fans, testing instruments etc;
3). Air Conditioning charges (sharing of existing air
conditioning system);
4). Generator Backup;
5). Earthing charges (Tapping from exchange earth bar is
allowed)
7
6) Fire equipment (Sharing in case of requirement).
As the rates of electricity and capital expenditure of BSNL in
developing these facilities is varying as per the size of city, the rates
for one transmission bay in these categories of cities will be as
under:
Categories of City Charges
A Rs.2,00,000 per bay per annum
B Rs.1,80,000 per bay per annum
C Rs.1,50,000 per bay per annum
Unclassifie
d
Rs.1,20,000 per bay per annum
C. Tower Charges: Charges per antenna will be as under:
Sl
.
Tower Height All Cities
1. Up to 30 meters Rs.1,20,000 per
annum
2. 3160 meters RS. 2,50,000 per
annum
3. More than 60
meters
Rs.4,00,000 per
annum
The above charges will be multiplied by no. of antennas in
case multiple antennas are installed by Licensed Telecom Service
Providers.
d. Duct Charges: Permission may be granted to Licensed Telecom
Service Providers to lay one 50 mm pipe inside the BSNL exchange
premises to lay their OF cable. It will be the responsibility of
Licensed Telecom Service Providers to restore telecom exchange
building and its premises in original shape after their construction
work is over which should be done within one month. A refundable
security of Rs.50,000 may be obtained from Licensed Telecom
Service Providers before the permission is given.
BSNL will not lease its own DUCTs as far as possible. Duct
rental for already leased ducts of BSNL may be continued to be
charged as at present, i.e.:
=[Cost of Duct x No. of Cable x 36%] /[Total no. of pipes in duct]
8
4. Applicability of above chargesa) These revised rates will be applicable w.e.f. 1st April, 2006 with a
provision of 10% annual increase every year i.e., 01.04.2007
onwards. Billing cycle shall be from 01.04 to 31.03 of every year.
Hence, billing cycle for all existing links may be shifted to the new
arrangement;
b) All these charges will be leviable in advance every year;
c) In case of change of classification of cities, high classification will
be applicable at the time of yearly renewal only. The charges will be
applicable financial year wise;
d) No cash refunds shall be made and any excess payments received
by BSNL, due to difference in charges based on old and new
formula, shall be adjusted in future bills of party concerned.
(R P Bhalla)
Assistant Director General (Commercial)”
9. It may further be noticed that the revised rates applicable
w.e.f. 1st April, 2006 with a provision of 10% annual increase every
year i.e. 1st April, 2007 onwards and the billing cycle shall be from
1
st April to 31st March and the charges will be leviable upfront in
advance every year with a further stipulation that in case of change
of classification/categorization of cities, higher classification will be
applicable at the time of yearly renewal only and charges will be
applicable on each financial year.
10. The Government of India, Ministry of Finance, by its circular
dated 29th August, 2008, revised the classification of cities effective
9
from 1st September, 2008 and the cities have been revised as
follows:
“2. Based on the recommendations of the Sixth Central Pay
Commission, the earlier classification of cities has been revised
viz., A1 to “X”; A, B1 & B2 to “Y” and C & Unclassified to “Z”. In
determining the revised classification, the population of Urban
Agglomerate area of the city has been taken into consideration.
Accordingly, the rates of House Rent Allowance shall be as under:
Classification of Rates of House Rent
Allowance
Cities/Towns as a percentage of (Basic Pay
+
NPA where applicable)
X 30%
Y 20%
Z 10%
11. The Government of India reclassified the cities w.e.f. 1st
September, 2008 but so far as the appellant is concerned, the
circular revising the infrastructure charges for telecom service
providers in terms of circular of the Government of India dated 29th
August, 2008 came to be introduced by a circular dated 12th June,
2012, but charges stood revised retrospectively w.e.f. 1st April, 2009
with a provision of 10% annual increase every year w.e.f. 1st April,
2010 onwards and rest of the conditions remained the same. The
10
impugned extract of part of the circular dated 12th June, 2012 is
reproduced hereinbelow:
“Rates & Costing Cell, Bharat Sanchar Nigam Limited
Bharat Sanchar Nigam Limited, A Govt. of India Enterprises
Corporate Office,
Janpath,
New Delhi – 110001
No.22/2009R&C[CFA] Dated: 12.06.2012
Circular R&C – CFA No.11/1112
Subject : Infrastructure Charges for Active Links of Licensed
Telecom Service Providers
In view of reclassification of cities and revision of rates of house
rent vide Govt. of India Department of Expenditure letter
No.2(8)/2008EII(B) dated 29.08.2008, the existing rental charges
for Infrastructure Sharing by the other licensed service providers
fixed vide BSNL HQ No.1031/2006Comml. Dated 30.05.2006 has
been reviewed by Competent Authority and it has been decided to
revise the charges w.e.f. 01.04.2009, as details given below:
1. Charges for building space.
(Rates for one transmission bay including space for
one box OF transmission and DDF as required)
S.No
.
Classification of
Cities/Towns
Charges w.e.f. 01.04.2009
1. X Rs.61,606 per annum per bay
2. Y Rs.47,916 per annum per bay
3. Z Rs.26,620 per annum per bay
2. Misc. Infrastructure Service Charges : These charges
include the sharing of following services.
1. DC power at – 48V up to 10A/transmission bay;
2. AC power for lights, fans, testing instruments etc.;
3. Air conditioning charges (sharing of existing air
conditioning system);
4. Generator Backup;
5. Earthling charges (Tapping from exchange earth bar is
allowed);
11
6. Fire equipment (sharing in case of requirement).
S.No
.
Classification of
Cities/Towns
Charges w.e.f. 01.04.2009
1. X Rs.2,95,778 per annum per bay
2. Y Rs.2,66,200 per annum per bay
3. Z Rs.1,99,650 per annum per bay
3. The other two infrastructure Sharing rentals viz Tower
Sharing Charges and Duct Charges, which are not dependent on
reclassification of classification of city and house rent rates, shall
remain unchanged and be charged as per this office letter No.103
1/2006Comml. Dated 30.05.2006.
4. Other terms and conditions applicable to above charges are:
i) These revised rates will be applicable w.e.f. 01.04.2009
with provision of 10% annual increase every year i.e.
01.04.2010 onwards. Billing cycle shall be from 01.04.2004
to 31.03.2013 of every year. Hence, billing cycle for all
existing links may be shifted to the new arrangement;
ii) All these charges will be leviable in advance every year;
iii) In case of change of classification of cities, higher
classification
will be applicable at the time of yearly renewal only. The
charges
will be applicable financial year wise;
iv) TAXs, duties as per Govt. orders from time to time will be
levied
extra.
v) This Circular is issued based on the approval of Competent
Authority in NOWCFA file No.69/2010POI (Infra)(Pt.). For
any Clarification/correspondence, in this regard, matter may
be taken up with NOWCFA Section, BSNL Corporate Office,
Janpath, New Delhi – 110001 [Tel No.01123711795 Fax
No.01123734135].
Sd/
(AGM(T&CCFA)”
12. It may be relevant to note at this stage that the circular dated
12th June, 2012 revised the infrastructure facilities retrospectively
w.e.f. 1st April, 2009, however, the fact is that all the telecom service
12
providers have made their payments for the previous years in terms
of the circular dated 30th May, 2006 according to the terms of
Interconnect Agreements where the charges are leviable upfront
every year and after introducing the circular dated 12th June, 2012
w.e.f. 1st April, 2009, additional bills were raised by the appellant
for the previous years for which the upfront payment was made by
each of the telecom service provider and that became the subject
matter of challenge at the instance of the telecom service providers
(respondents herein) by approaching the Tribunal.
13. The learned Tribunal, after taking note of the submissions and
the pleadings on record, arrived to a conclusion that the appellant
is well within its rights to revise the rates according to classification
of cities and it was for the respondents to continue to use the
resources of the appellant at the revised rates or take the same
from other resources if available and it was open to the service
provider to avail the infrastructure facilities such as building space,
etc. either from the appellant or from any other service provider, if
any.
13
14. The limited question which the Tribunal considered was
regarding the rates prescribed by the appellant under the circular
dated 12th June, 2012 could have been made applicable
retrospectively w.e.f. 1st April, 2009 and taking into consideration
the backdrop of the matter, while upholding the right of the
appellant (BSNL) to revise the rates of the infrastructure facilities in
question held that the circular dated 12th June, 2012 of the
appellant shall be applicable prospectively w.e.f. 1st April, 2013,
which is the next financial year instead of 1st April, 2009 and upto
31st March, 2013, the infrastructure facilities provided by the
appellant to the telecom service providers shall be charged at the
rates and as per classification of cities prescribed in the circular
dated 30th May, 2006 and the consequential effect is either for
refund or for realization of charges, if any, the same may be
accounted for by the appellant in terms of the judgment impugned
dated 20th August, 2014. Relevant extract of the judgment dated
20th August, 2014 is reproduced hereinbelow:
“In view of the aforesaid circumstances, while upholding the
right of the respondentBSNL to revise the rates of the infrastructure
facilities in question, we direct that the revised rates as per the
circular dated 12.06.2012 of the Respondent shall be applicable
14
with effect from 01.04.2013 which is the next financial year. Up to
31.03.2013, the infrastructure facilities provided by the respondent
to the petitioners shall be charged at the rates and as per
classification of cities as prescribed in the circular dated
30.05.2006. The excess rates, wherever realised from the petitioners,
shall be refunded back to the petitioners along with interest at the
rate as is prescribed in the interconnect agreements for delayed
payments from the date of realization of these amounts and till the
time of filing of the petitions along with pendente lite and future
interest @9% till the payment is made. The refunds shall be made
within a period of four weeks. If any amount is found payable by the
petitioners in terms of this order, the same shall also be paid along
with interest, as payable in case of refunds, and shall be paid within
four weeks.”
15. The appellant, at this stage, filed an application before the
Tribunal seeking clarification of the judgment and order dated 20th
August, 2014 on the premise that the rate of infrastructure charge
for active links of licensed telecom service providers indicated in the
circular dated 12th June, 2012 has become effective from 1st April,
2013 instead of 1st April, 2009. In the given circumstances, the
10% notional increase per annum between 1st April, 2009 to 31st
March, 2013 is leviable and can be charged from 1st April, 2013 but
that application was dismissed by the Tribunal by its later order
dated 14th October, 2014 with a clarification that the revised rates
as per the circular dated 12th June, 2012 shall be applicable w.e.f.
1
st April, 2013 and the rates which were applied w.e.f. 1st April,
15
2009 are to be applied w.e.f. 1st April, 2013 without any notional
increase and consequently disposed of the application filed by the
appellant. Relevant extract of the order dated 14th October, 2014 is
reproduced hereinbelow:
“We, however, do not find any such direction in the judgment.
On the contrary, if the rates mentioned in this circular are to be
taken w.e.f. 01.04.2009 and then notionally increased by certain
percentage every year to arrive at a rate to be applicable from
01.04.2013, it will be contrary to the letter and spirit of the
judgment. The direction in the judgment is clear that revised rates
as per the circular dated 12.06.2012 shall be applicable w.e.f.
01.04.2013 and, therefore, the rate which was applied as per the
circular w.e.f. 01042009 is to be applied w.e.f. 01.04.2013 without
any notional increase. We, however, make it clear that this will be
without prejudice to the right of the respondentBSNL to revise the
rates prospectively, and in accordance with the agreement between
the parties.”
16. That both the orders passed by the Tribunal dated 20th
August, 2014 and 14th October, 2014 became the subject matter of
challenge in the instant batch of appeals before us.
17. It may be further noticed that in furtherance of the circular
dated 12th June, 2012, circular dated 13th May, 2015 has been
notified revising the infrastructure charges for active links of
licensed telecom service providers w.e.f. 1st April, 2015 leviable in
advance for the year 201516 onwards and the justification
tendered by the appellant was that it is based on commercial
16
viability and enhanced maintenance cost and the appeals filed by
the service providers assailing the circular dated 13th May, 2015
came to be dismissed by the Tribunal by judgment dated 18th
October, 2019 and the appeal preferred against the judgment of the
Tribunal came to be dismissed by this Court by an order date 17th
February, 2020 in Civil Appeal No.1438 of 2020.
18. Counsel for the appellant in the first instance has tried to
persuade this Court that the rate of infrastructure charges stood
revised on the basis of the circular issued by the Government of
India, Ministry of Finance, revising the classification of cities vide
its circular dated 29th August, 2008 and that became effective from
1
st September, 2008 and it was the reason for which the circular
dated 12th June, 2012 became effective in revising the
infrastructure charges for telecom service providers w.e.f. 1st April,
2009. The appellant revised the rates based on the classification of
cities and such revision was permissible in relation to commercial
agreements duly supported with the evidence on record.
19. Counsel for the appellant further contended that once the
competence of the appellant in laying down the charges has been
17
upheld by the Tribunal, retrospective application to the circular
dated 12th June, 2012 should not have been interfered with by the
Tribunal, but in the next breath, has submitted that if the
retrospective applicability of the circular dated 12th June, 2012
effective from 1st April, 2009 is not sustainable, at least the
appellant is within its rights to make the charges leviable after
notional fixation by increase of 10% every year w.e.f. 1st April, 2009
and, to this extent, the finding of the Tribunal is not legally
sustainable and deserves to be interfered with by this Court.
20. Counsel further submits that so far as the notional fixation of
charges to be effective from 1st April, 2013 is concerned, in terms of
circular dated 12th June, 2012, there is a provision of 10% annual
increase every year w.e.f. 1st April, 2010 onwards and, in the given
circumstances, even if the infrastructure charges as levied by the
appellant to be charged from service providers at the revised rates
applicable w.e.f. 1st April, 2009 are not chargeable because of the
impugned judgment of the Tribunal still the service providers are
under an obligation to pay w.e.f. 1st April, 2013 the notional
increase of charges based on 10% annual increase and this was a
18
manifest error which the Tribunal has committed in passing the
judgment impugned and the same needs to be interfered with by
this Court.
21. Counsel for the respondents, on the other hand, submits that
the right of the appellant to revise the rate of infrastructure facilities
indeed after the finding has been recorded by the Tribunal has not
been questioned by the respondents in the later proceedings, but if
the circular dated 12th June, 2012 could not be given retrospective
effect w.e.f. 1st April, 2009, at least no notional increase of 10%
every year could have been permissible to be charged from the
service providers w.e.f. 1st April, 2013 and if that is being made
permissible, what could not have been directly chargeable from the
service providers can be indirectly charged at the rates which the
appellant is entitled to claim as the infrastructure charges w.e.f. 1st
April, 2013 and that was the reason the Tribunal intervened in the
matter and clarified in its latter order that there shall be no notional
increase of 10% every year as being indicated in the circular dated
12th June, 2012 and the appellant is under an obligation to charge
the rates as applicable on 1st April, 2009 to be applied w.e.f. 1st
19
April, 2013 without any notional increase. The circular dated 12th
June, 2012 applicable prospectively w.e.f. 1st April, 2013 was to be
purposively interpreted and the plea of notional increase by 10%
every year in revising the rates, to be charged from 1st April, 2013 is
not legally sustainable.
22. Counsel for the respondents, while supporting the finding
recorded by the Tribunal under the impugned judgment, further
submits that if what is being prayed for by the appellant is accepted
by this Court, each service provider will have to bear the additional
financial burden for the period for which they have not charged any
additional charge from their customers and since the respondents
have not charged from their customers for the previous years from
1
st April, 2009 onwards, it will carry a financial burden on the
service providers for which they are not at fault.
23. As a matter of fact, the present dispute survives regarding
payment of infrastructure charges for the limited period of two
years i.e. from 1st April, 2013 to 31st March, 2015.
24. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
20
25. 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.
26. The limited question which has been raised for our
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 1st April,
2009 to be applicable from 1st April, 2013.
27. So far as the impugned circular dated 12th June, 2012 is
concerned, it stipulates that it shall be made effective from 1st 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.
21
28. 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.
29. 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.
30. 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
22
applicable with retrospective effect. Only 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, 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.
31. So far as the submission made by the appellant with regard to
the notional increase of charges by a certain percentage every year
as being referred to in the circular dated 12th June, 2012 is
concerned, we have not been able to persuade ourselves with the
finding recorded by the Tribunal. The reason is that 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
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every year in terms of circular dated 12th June, 2012 from each of
the service provider as being notionally applicable from 1st April,
2013. In other words, the service provider is not under an obligation
to pay any additional infrastructure charges which was prescribed
by the appellant under its circular dated 12th June, 2012 for the
previous years, effective from 1st April, 2009, but at the same point
of time, 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. That such notionally increased
charges can indeed be leviable on the service providers and to this
extent, the order passed by the Tribunal, in our considered view, is
not sustainable in law and deserves to be set aside.
32. Consequently, the appeals stand partly allowed. The order of
the Tribunal dated 20th August, 2014 followed by the order dated
14th October, 2014 are hereby modified and 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
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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.
33. Pending application(s), if any, shall stand disposed of.
…………………………….J.
(AJAY RASTOGI)
…………………………….J.
(B.V. NAGARATHNA)
NEW DELHI
SEPTEMBER 22, 2022.
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