Retrospective Operation Of Govt Order Cannot Be Permitted Particularly Where It Is Merely An Executive Order & Not A Legislation: JKL High Court

A bench comprising Justice Waseem Sadiq Nargal observed,

"As every Government/executive order by virtue of a policy has prospective operation, it can in no way be applied retrospectively by infusing life in a Government order and interpreting differently, when the explicit language leads to an irresistible conclusion".

The observations were made while hearing a plea in terms of which the petitioner had challenged recommendations issued by the J&K Power Development Department dated 28.12.2015, whereby the earlier recommendations of the then Designate Committee for Power granting permission to change arc furnace with induction furnace at his industrial unit had been unilaterally withdrawn.

The specific case of the petitioner was that his Company was running a Casting Unit at Jammu and had been sanctioned power load of 2250 KVA for manufacturing of Ferro Alloys vide Government Order dated 18.10.1995.

However, from the year 2007-08, the working of the unit became erratic due to non availability of chromite ore from the State of Orissa, as a result of which the petitioner approached the Power Development Department seeking requisite permission for replacing the existing arc furnace with induction furnace.

Nevertheless, in the year 2010 Power Development Department issued order dated 03.03.2010, by virtue of which, it was ordered that henceforth no power connection be provided to industrial units engaged in Iron and Steel Manufacturing through the use of electric induction and arc furnaces. By virtue of the aforesaid order, a complete ban was imposed on power connections for electric induction and arc furnace by the industrial units.

In his plea counsel for the petitioner Sr Adv Pranav Kohli argued that the aforesaid Government Order whereby the erstwhile State of Jammu and Kashmir had imposed ban on power connections cannot be made applicable to the case of the petitioner, inasmuch as, it was not the case of the petitioner for providing fresh power connection to the petitioner unit.

The petitioner had sought permission from the concerned dept to replace the Arc furnace with induction furnace which came to be granted by the Chief Engineer on 22.03.2012. Subsequently this permission was withdrawn.

Throwing a challenge to the withdrawal of this permission, counsel contended that the respondent has taken the case of change from arc to induction furnace as a case of new power connection when the fact of the matter was that the Chief Engineer has only granted permission of change of machinery and the order of withdrawal of the said permission is liable to be quashed.

Counsel for the petitioner also placed on record a latest order issued by Government dated 20.05.2022 by virtue of which, the Government of Jammu & Kashmir lifted the ban on Electric Arc and Induction Furnaces in Union Territory of Jammu and Kashmir on which he argued that the ban was lifted only vis-a-vis the new connections and that his case does not fall within the ambit of new connection.

Adjudicating upon the matter Justice Nargal observed that though the order which granted power connection to the petitioner was issued way back in 1995 for running the arc furnace but once a subsequent Government order specifically provides that it is in supersession of all the previous circulars/orders, then the connection which was granted earlier loses its significance and the subsequent ban comes into force, which covers both the cases for the use of electric induction furnace and arc furnace.

"Once ban has been imposed, then it covers both the cases i.e. no power connection shall be provided to the industrial unit engaged in the iron and steel manufacturing through the use of electric induction and arc furnace or even shifting from arc furnace to electric induction furnace, which also tantamounts to granting new power connection, which was banned. Shifting also falls within the ambit of granting new connections, which was prohibited by the said order imposing ban", the bench underscored.

Deliberating on the subject of removal of ban in 2022 and the contention of the petitioner that that the ban was lifted only vis-a-vis the new connections and that his case does not fall within the ambit of new connection, the bench observed that the interpretation drawn by the counsel for the petitioner cannot sustain the test of law and is liable to be rejected on the ground that if the interpretation as projected by the petitioner is taken to be true then, it will tantamount to draw a different interpretation than what was the import of the Government order and in a way, it would tantamount to interpret a Government order imposing ban retrospectively for 12 years in a different way.

Expounding law on the limitations on the retrospective application of executive orders Justice Nargal observed, that the retrospective operation of a Government Order cannot be permitted particularly where it is merely an executive order, and not a legislation, further adding that petitioner has not called in question the order dated 03.03.2010 (supra) for more than 12 twelve years and accepted the same gladly and voluntarily and hence is estopped under law to question the same at such belated stage.

Accordingly the bench found the petition devoid of any merit and dismissed the same.

Case Title : M/s Shree Guru Kripa Alloys Pvt. Ltd. Vs State of J&K

Coram : Justice Wasim Sadiq Nargal

Counsel For Petitioner : Mr Pranav Kohli Sr Adv

Counsel For Respondent : Mr Amit Gupta AAG

Citation: 2022 LiveLaw (JKL) 230 

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