Case BriefsTribunals/Commissions/Regulatory Bodies

Telecom Disputes Settlement and Appellate Tribunal (TDSAT): Justice Shiva Kirti Singh, (Chairperson) while not granting any interim relief to the petitioners upholds that the amendment Regulations 2018 cannot have retrospective operation.

The two respondents, Tata Communications Ltd. and Bharati Airtel Ltd., are owners of facilities called Cable Landing Operations. For these, they are entitled to levy three distinct charges: (1) Access Facilitation Charges (2) Co-Location Charges (3) Operation and Maintenance Charges. Prior to June 2007, the charges were based purely on a contract basis. In 2007, TRAI issued “International Telecommunication Access to Essential Facilities at Cable Landing Stations Regulations, 2007” (2007 Regulations). This introduced the requirement of framing of Cable Landing Stations – Reference Interconnect Offer (RIO) calculated on cost-based method. Such RIOs for all the three charges were required to be submitted to TRAI, the Regulator for approval. 

On 21.12.2012, TRAI fixed all the three charges vide Notification brought into effect the “International Telecommunication Landing Stations Access Facilitation Charges and Co-Location Charges Regulations, 2012”.

The respondents filed writ petitions in Madras High Court as the charges fixed by the TRAI were lower to the earlier charges. 

The petitioners prayed for interim relief against demands made by the respondents on the ground that if the amendment Regulations of 2018 prescribing the same rate of charges which were applicable earlier from 01.01.2013 are treated as retroactive and effective from 01.01.2013.

Counsel for the Petitioner, Venkat Raman relied on a judgment of Zile Singh v. State of Haryana, (2004) 8 SCC 1, the amendment Regulations 2018 have used the word “substitute” for replacing the Schedules of 2012 with that of 2018, this shows that the intention of the Regulator was to give effect to the new schedules from 01.01.2013.

Counsel for the Respondent submitted that the word “substitute” will not make any difference by relying on a judgment of Sri Vijayalakshmi Rice Mills v. State of A.P., (1976) 3 SCC 37. He further submitted that as per Section 36 of the TRAI Act, 1997, TRAI being a delegate has no authority to frame Regulations with retrospective effect.   

The Court observed that the exercise of determining charges by TRAI is like the determination of tariffs and not procedural. It creates rights and liabilities for the concerned service providers and hence cannot be retrospective in absence of provisions to that effect in the TRAI Act.[Reliance Jio Infocomm Ltd. v. Tata Communications Ltd, 2019 SCC OnLine TDSAT 1732, decided on 07-11-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of M.G. Giratkar, J. allowed revision petition and set aside appellant’s conviction under Section 497 IPC in light of Supreme Court decision in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

The applicant was alleged to have had sexual relations with the complainant’s wife. He was tried and convicted by the trial court for committing the offence of adultery under Section 497 IPC. His appeal thereagainst before the Additional Session Judge was dismissed. Hence, then he filed the present application for revision. It was prayed that in light of the decision in Joseph Shine where the Supreme Court had held Section 497 to be unconstitutional, the present application ought to be allowed.

The High Court relied on A.S. Gauraya v. S.N. Thakur, (1986) 2 SCC 709 wherein it was held that a law declared by Supreme Court applies even to pending proceedings with retrospective effect. Hence, the Court gave a retrospective effect to the law laid down in Joseph Shine to the proceeding pending before it. The Supreme Court in Joseph Shine held Section 497 IPC and Section 198 (2) CrPC to be violative of Articles 14, 15(1) and 21 and therefore unconstitutional. Therefore, in view of Joseph Shine, the conviction and punishment awarded to the applicant under Section 497 was quashed and set aside. [Rupesh v. Charandas, 2018 SCC OnLine Bom 6292, dated 14-12-2018]

Case BriefsHigh Courts

Patna High Court: The petition challenging the order of reduction in pay scale and stopping of increment was allowed by a Single Judge Bench comprising of Mohit Kumar Shah, J.

The petitioner who worked as a Junior Engineer in the Rural Construction Department was subjected to an enquiry for delinquency in inspection of a construction project. In furtherance of the enquiry so conducted, the pay of the petitioner was reduced to the lowest stage and his increments were also stopped. The said order which was passed on 14.10.2006 was set aside by the High Court in an appeal preferred by the petitioner. Thereafter, another order was passed by the respondents dated 31.3.2016 which was in same terms as the earlier order. This order was challenged by the petitioner in the instant petition.

The High Court considered the record and found that the impugned order was in violation of the terms of Bihar Service Rules as the order did not provide any time frame for the reduction of pay scale. Further, the order proposed to inflict punishment on the petitioner with a retrospective effect, and that could not be allowed. The Court held it to be a settled law that an order of punishment can never be retrospective and it always has to be prospective. Therefore, the Court held that the impugned order was liable to be set aside which was ordered accordingly. [Raj Kishore Sinha v. State of Bihar, 2018 SCC OnLine Pat 825, 18-05-2018]

Case BriefsHigh Courts

High Court of Judicature at Hyderabad: In the present case, petitioners filed writ petitions seeking to set aside the rejection orders for transfer of lease passed by Director of Mines and Geology by retrospectively applying the amended Rule 12(5)(h)(viii) of the Andhra Pradesh Minor Concession Rules, 1966.

The issues are: Whether the applications for transfer of lease should be considered, as per un-amended Rule which was in force at the time of submission of application or, as per amended Rule at the time of disposing off the application? Will there be any vested right to prevent the authorities to apply the rule retrospectively?

Director of Mines and Geology, Andhra Pradesh granted quarry lease for colour granites to M/s Maruthi Granites (original lessee) for a period of twenty years (12.07.2007 to 11.07.2027). Managing Director of the original lessee along with petitioner filed joint applications for transfer of quarry leases in favour of the petitioner on 16.07.2015 under Rule 12(5)(h)(viii) of the Andhra Pradesh Minor Concession Rules, 1966.

Unamended Rule 12(5)(h)(viii): “The licensee or lessee shall not assign, sub-let, transfer or otherwise dispose of the under licence or lease without obtaining the previous sanction in writing of the Director.”

Royalty Inspector and surveyor inspected the mining lease and recommended to accord permissions for transfers of quarry leases for unexpired periods i.e. up to 11.07.2027 in favour of the petitioner. All formalities required under the rules and executive instructions have been complied by both the petitioners and respondents. Rule 12(5)(h)(viii) was amended vide G.O.Ms.No. 29, Industries, Commerce (Mines –II) dated 15.02.2017.

Amended Rule 12(5)(h)(viii): “The prospecting licenses and quarry leases granted for the purpose of non-captive consumption are not transferable.”

Director of Mines and Geology, Andhra Pradesh rejected the joint applications for transfers of the leases on 29.05.2017, on the ground that Rule 12(5)(h)(viii) has been amended and that the subject quarry leases are not transferable in view of the said amended provision.

The counsel for respondents contended that the orders of rejection by applying the amended Rule 12(5)(h)(viii) of the Rules is in accordance with law as there is no dispute that the amended Rule is in force and is holding the field as on the date of rejection of the applications. He relied on State of Tamil Nadu v. Hind Stone, (1981) 2 SCC 205 in which it was held that in the absence of vested rights in anyone, an application for lease has to decided according to the rules in force on the date of disposal of application but not on the basis of rules in force at the time of making the application.

The learned Senior Counsel Sri K.G. Krishna Murthy contended that the above case has no relevance to the present facts of the case as the Apex Court was dealing with the grant of lease for a fresh period whereas in the case on hand, the original lessee is having subsisting lease period and hence, there is a vested right. It was also contended that the amended Rule cannot be applied retrospectively which would amount to changing the lease conditions unilaterally to the detriment of the petitioner.

The High Court held that there is a vested right as the original lessee is having subsisting lease period and the amended rule cannot be applied retrospectively as the lease holder entered into lease on the belief that he will be entitled to proceed in accordance with law and might have arranged his affairs by relying upon then existing law and made plans accordingly. Therefore High Court directed to consider the applications for transfer as per the un-amended Rule which was in force at the time of submission of applications without reference to the amended Rule. [Air and Sea trading Company v. State of Andhra Pradesh, Writ Petition Nos. 37319 and 38948 of 2017, decided on 06.12.2017]

 

Case BriefsSupreme Court

Supreme Court: Dealing with the question as whether the State Legislature could have legislated for the period prior to coming into existence of the State in the light of the Telangana (Agricultural Produce & Livestock) Markets (Amendment) Act, 2015 which has been made retrospective with effect from 01.01.2012, the Bench of Dipak Misra and Shiva Kirti Singh, JJ held that after the legislature came into existence, it has the competence to enact any law retrospectively or prospectively within the constitutional parameters.

Regarding the question as to removal of the base of earlier judgments due to the said Amendment, the Court said that there is a demarcation between legislative and judicial functions predicated on the theory of separation of powers. The legislature has the power to enact laws including the power to retrospectively amend laws and thereby remove causes of ineffectiveness or invalidity. When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way of an enactment, declare a decision of the court as erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the statute in conformity with the legislative intent and correct the flaw pointed out by the court, can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling by the legislature, however, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation.

The High Court in its earlier judgment had struck down the amended provision on the foundation that there was discrimination between the existing appointees and future appointees to the office of members, Vice-Chairmen and Chairmen. As per the earlier provision members were to be appointed by the Government in consultation with the Director of Marketing from among certain categories of growers of agricultural produce, owners of livestock and products of livestock in the notified area. The High Court had opined that the classification between the two categories was not reasonable and it caused discomfort to Article 14 of the Constitution. It had given emphasis on the statutory safeguards meant for removal. The legislature after the decision of the High Court had amended the thereby removing the distinction between the existing members and the members who are to come in future. The Court said that the legislature, in its wisdom, has substituted the word “appointment” and made it “nomination with retrospective effect”. To enable it to curtail or reduce the term, the procedure for removal remains intact. A nominee can go from office by efflux of time when the period is over. That is different than when he is removed. A nominated member, in praesenti, can also be removed by adopting the procedure during the period. Otherwise, he shall continue till his term is over; and the term is one year. [Cheviti Venkanna Yadav v. State of Telangana, 2016 SCC OnLine SC 1166, decided on 24.10.2016]

Case BriefsHigh Courts

Kerala High Court: While dealing with question relating to the retrospective applicability of Payment of Bonus (Amendment) Act, 2015, the Court stayed the retrospective operation of the Amendment Act by way of an interim order.  The Amendment Act, 2015 was introduced on 1st  January, 2016 and was made retrospectively applicable from 1st  April 2014. The retrospective applicability of the Amendment Act was challenged in the High Court of Kerala through a writ petition. The Court, by its interim order dated 27th  January, 2016 stayed the applicability of the Amendment Act to the extent it gives retrospective effect from 1st April 2014 and further specified that the Amendment Act should be implemented from 2015-16, pending disposal of the writ petition. [United Planters’ Association of Southern India vs Union of India, 2016 SCC OnLine Ker 213, decided on January 27, 2016]

Editor’s Comment: It would seem from the decision of the Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254, that an order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.