Consumer Online
Foundation Etc., Vs Union of India & Ors. Etc.
J U D G M E N T
A. K. PATNAIK, J.
1.
Application
for permission to file SLP in SLP [C] No.11799/2011 [CC No.1066/2010] is allowed
and delay condoned.
2.
Leave
granted.
3.
These
are appeals against the judgment and order dated 26.08.2009 of the Division Bench
of the Delhi High Court in public interest litigations upholding the validity
of levy of development fees on the embarking passengers by the lessees of the Airports
Authority of India at the Indira Gandhi International Airport, New Delhi and the
Chhatrapati Shivaji International Airport, Mumbai.
Relevant Facts:
4.
The
Airports Authority of India Act, 1994 (for short `the 1994 Act') came into
force on 01.04.1995 and under Section 3 of the 1994 Act, the Central Government
constituted the Airports Authority of India (for short `the Airports
Authority'). Section 12 of the 1994 Act enumerates the various functions of the
Airports Authority. By the Airports Authority of India (Amendment) Act, 2003 (for
short `the Amendment Act of 2003'), Sections 12A and 22A were inserted in the 1994
Act with effect from 01.07.2004. The newly inserted Section 12A provides that the
Airports Authority may make a lease of the premises of an airport to carry out some
of its functions under Section 12 as the Airports Authority may deem fit.
The newly inserted
Section 22A of the 1994 Act provides that with the approval of the Central Government,
the Airports Authority may levy on, and collect from, the embarking passengers at
an airport, the development fees at the rate as may be prescribed. On
04.04.2006, the Airports Authority leased out the Indira Gandhi International
Airport, New Delhi (for short `the Delhi Airport') to the Delhi International Airport
Private Limited (for short `DIAL') and also leased out the Chhatrapati Shivaji
International Airport, Mumbai (for short `the Mumbai Airport') to Mumbai
International Airport Private Limited (for short `MIAL'). Section 22A of the
1994 Act was amended by the Airports Economic Regulatory Authority of India Act,
2008 (for short `the 2008 Act') and the amended Section 22A provided for determination
of the rate of development fees for the major airports under clause (b) of
sub-section (1) of Section 13 of the 2008 Act by the Airports Economic
Regulatory Authority (for short `the Regulatory Authority').
The amended Section 22A
was to take effect on and from the date of the establishment of the Regulatory Authority.
The Government of India, Ministry of Civil Aviation, sent a letter dated 09.02.2009
to DIAL conveying the approval of the Central Government under Section 22A of
the 1994 Act for levy of development fees by DIAL at the Delhi Airport at the
rate of Rs.200/- per departing domestic passenger and at the rate of Rs.1300/- per
departing international passenger inclusive of all applicable taxes, purely on
ad hoc basis, for a period of 36 months with effect from 01.03.2009. Similarly,
the Government of India, Ministry of Civil Aviation, sent another letter dated
27.02.2009 to MIAL conveying the approval of the Central Government under
Section 22A of the 1994 Act for levy of development fees by MIAL at the Mumbai Airport
at the rate of Rs.100/- per departing domestic passenger and at the rate of Rs.600/-
per departing international passenger inclusive of all applicable taxes, purely
on ad hoc basis, for a period of 48 months with effect from 01.04.2009.
The levy of
development fees by DIAL as the lessee of the Delhi Airport was challenged in Writ
Petition No. 8918/2009 by Resources of Aviation Redressal Association. The levy
of development fees by DIAL and MIAL as lessees of the Delhi and Mumbai Airports
were challenged in Writ Petition No. 9316 of 2009 and Writ Petition No. 9307 of
2009 by Consumer Online Foundation. The Writ petitioners contended inter alia that
such levy of development fees under Section 22A of the 1994 Act can only be
made by the Airports Authority and not by the lessee and that until the rate of
such levy is either prescribed by the Rules made under the 1994 Act or determined
by the Regulatory Authority under the 2008 Act as provided in Section 22A of
the Act before and after its amendment by the 2008 Act, the levy and collection
of development fees are ultra vires the 1994 Act. The Division Bench of the High
Court, after hearing, held that there was no illegality attached to the
imposition of development fees by the two lessees with the prior approval of
the Central Government and dismissed the writ petitions by the impugned
judgment and order. Conclusions of the High Court:
5.
In
the impugned judgment and order, the High Court held that under sub-section (1)
of Section 12A of the 1994 Act, the Airports Authority is empowered to lease an
airport for the performance of its functions under Section 12 and such a lease
is a statutory lease which enables the lessee to perform the functions of the
Airports Authority enumerated in Section 12. The High Court further held that
sub-section (4) of Section 12A provides that the lessee who has been assigned some
functions of the Airports Authority under sub-section (1) shall have "all"
the powers of the Airports Authority necessary for the performance of such functions
in terms of the lease and use of the word "all" indicates that the
lessee would have each and every power of the Airports Authority for the purpose
of discharging such functions including the power under Section 22A to levy and
collect development fees from the embarking passengers.
The High Court took
the view that development fee though described as fee in Section 22A is more akin
to a charge or tariff for the facilities provided by the Airports Authority to the
airlines and passengers. The High Court came to the conclusion that the
exercise of the power to levy and collect development fees under Section 22A
was not dependent on the existence of the rules and, therefore, this power can
be exercised even if the rules have not framed prescribing the rate of development
fees under Section 22A (before its amendment by the 2008 Act). In coming to
this conclusion, the High Court relied on the decisions of this Court in U.P. State
Electricity Board, Lucknow v. City Board, Mussorie & Ors. [(1985) 2 SCC
16], Mysore Road Transport Corporation v. Gopinath Gundachar Char [AIR 1968 SC
464] and Sudhir Chandra Nawn v. Wealth- Tax Officer, Calcutta & Ors. [1969
(1) SCR 108]. Contentions on behalf of the appellants:
6.
Mr.
Fali S. Nariman, learned senior counsel, leading the arguments on behalf of the
appellants, made these submissions: (i) The conclusion of the High Court that
the power under Section 22A to levy and collect the development fees from the embarking
passengers can be exercised without the rules is erroneous because the language
of Section 22A of the 1994 Act prior to its amendment by the 2008 Act makes it
clear that development fees could be levied and collected from the embarking
passengers at the airport "at the rate as may be prescribed" and the fees
so collected are to be credited to the Airports Authority and are to be regulated
and utilized "in the prescribed manner". Unless, therefore, the statutory
rules are made prescribing the rate at which such fees are to be collected and
prescribing the regulation and manner of the utilization of development fees,
the power under Section 22A cannot be exercised.
After the amendment by
the 2008 Act, Section 22A(ii) provides that the development fee to be levied on
and collected from the embarking passengers at major airports, such as the
Delhi Airport and the Mumbai Airport, would be at the rate as may be determined
under Clause (b) of sub-section (1) of Section 13 of the 2008 Act. The Regulatory
Authority has been established by notification dated 12.05.2009 and unless the rate
of development fees is determined by the Regulatory Authority under Clause (b) of
sub-section (1) of Section 13 of the 2008 Act, the same cannot be levied and
collected from the embarking passengers at the two major airports. The
determination of the rate of development fees to be levied at the two major airports
under Clause (b) of sub-section (1) of Section 13 of the 2008 Act by the
Regulatory Authority of India is still pending and the impugned levy of development
fees by DIAL and MIAL are, therefore, ultra vires.
The purposes for
which the development fees are to be levied and collected are indicated in
clauses (a), (b) and (c) of Section 22A of the 1994 Act and these are: (a)
funding or financing the costs of upgradation, expansion or development of the
airports at which the fees is collected, or (b) establishment or development of
a new airport in lieu of the existing airport, or (c) investment in the equity in
respect of shares to be subscribed by the Airports Authority in companies engaged
in establishing, owning, developing, operating or maintaining a private airport
in lieu of the existing airport or advancement of loans to such companies or other
persons engaged in such activities. Under the 1994 Act, it is only the Airports
Authority which can carry out these three purposes and not the lessee of the
Airports Authority under Section 12A of the 1994 Act and, therefore, the lessee
can have no power to levy and collect the development fees from the embarking passengers.
He argued that the conclusion
of the High Court in the impugned judgment and order, that under sub-section
(4) of Section 12A of the 1994 Act, the lessee having been assigned some of the
functions of the Airports Authority has all the powers of the Airports Authority
necessary for the performance of such functions in terms of the lease including
the power to levy development fees under Section 22A of the 1994 Act, is
therefore not correct. He referred to the various provisions of the Operation, Management
and Development Agreement (for short `OMDA') and the State Support Agreement
executed between the Airports Authority and DIAL/MIAL to show that the power to
levy development fees from the embarking passengers have in fact not been
assigned by the Airports Authority to DIAL/MIAL.Reply on behalf of the Union of
India:
7.
Mr.
Gopal Subramanium, learned Solicitor General appearing for the Union of India,
made these submissions: (i) Section 12A of the 1994 Act begins with a non-obstante
clause and it empowers the Airports Authority to lease the premises of an
airport to a third party to carry out some of its functions under Section 12 of
the 1994 Act and in exercise of this power the Airports Authority and the DIAL
and the Airports Authority and MIAL have entered into agreements in respect of the
leases and the Airports Authority has delegated some of its functions to DIAL and
MIAL in respect of the Delhi Airport and Mumbai Airport respectively. A reading
of the lease agreements (OMDA) would show that the functions of operation, maintenance,
development, design, construction, up-gradation, modernization, finance and
management of the airports are to be carried out by the two lessees.
If DIAL and MIAL have
to carry out these functions under the lease agreement to develop, finance, design,
construct, modernize, operate, maintain, use and regulate the use of the airports
by the third party, they must have power to determine, demand, collect and
retain appropriate charges from the users of the airports.(ii) Section 22A of the
1994 Act permits the Airports Authority after previous approval of the Central
Government to levy on and collect from embarking passengers at an airport
development fees. Accordingly, after the lease of the two airports by the Airports
Authority to DIAL and MIAL, the Central Government has conveyed its approval in
the two letters dated 09.02.2009 and 27.02.2009 to DIAL and MIAL for levy of development
fees by DIAL and MIAL respectively from the two airports. Such approval
conveyed by the Central Government is entirely in accordance with Section 12A of
the 1994 Act. In view of sub-section (4) of Section 12A of the 1994 Act
providing that a lessee who has been assigned any of the functions of the
Airports Authority would have all the powers of the Airports Authority
necessary for the performance of such function in terms of the lease, the power
of the Airports Authority to levy the development fees has also been rightly
assigned to DIAL and MIAL.
A reading of the two
approval letters would show that various conditions and safeguards have been incorporated
in the approval letters to protect the interest of the public and to provide
rigorous checks with regard to the manner in which DIAL and MIAL can deal with the
fees collected by them and it will be clear from the approval letters that the
fees can be utilized only for the purpose mentioned in Section 22A of the 1994
Act. (iii) The purposes mentioned in clauses (b) and (c), namely,
"development of a new airport" and "a private airport"
respectively relate to the very airport in respect of which the lease is
executed and fees are collected, as it would be clear from the expression "in
lieu of the airport referred to in clause (a)". It is significant that Section
12A and Section 22A of the 1994 Act were both introduced by the same Amendment
Act of 2003. (iv) Though Section 22A of the 1994 Act, before its amendment by the
2008 Act provided that for levy of development fees "at the rate as may be
prescribed" and for regulation and utilization of the development fees "in
the prescribed manner", the absence of the rules prescribing the rate of development
fees or the manner of regulation and utilization of development fees will not render
Section 22A ineffective.
The legal proposition
that absence of rules and regulations cannot negate the power conferred on an
authority by the legislature is settled by decisions of this Court in Orissa State
(Prevention & Control of Pollution) Board v. Orient Paperdd Mills & Anr.
[(2003) 10 SCC 421], U.P. State Electricity Board, Lucknow v. City Board,
Mussorie & Ors. (supra), Kerala State Electricity Board v. M/ S.N. Govinda
Prabhu & Bros. & Ors. [(1986) 4 SCC 198], Surinder Singh v. Central
Government & Ors. [(1986) 4 SCC 667] and Mysore Road Transport Corporation v.
Gop inath Gund achar Char (supra).(v) The arguments advanced by Mr. Nariman on
behalf of the appellant regarding the amendment of Section 22A of the 1994 Act by
the 2008 Act were not raised before the High Court and the foundation for such
a plea has also not been laid in the special leave petition.
In any case the
approval granted by the Central Government to DIAL and MIAL to levy the
development fees for a period of three years would not be rendered automatically
inoperative on the enactment of the 2008 Act amending Section 22A of the 1994
Act and therefore DIAL and MIAL continue to have the right to collect the development
fees by virtue of the approvals granted by the Central Government which are
saved by Section 6 (c) of the General Clauses Act, 1897 despite the amendment of
Section 22A by the 2008 Act.
The decisions of this
Court in Jayantilal Amrathlal v. Union of India [(1972) 4 SCC 174], S.L.
Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr. [(2006) 2 SCC
740] and M/s. Gurcharan Singh Baldev Singh v. Yashwant Singh & Ors. [(1992)
1 SCC 428] support this contention. (vi) Section 2 (n) of the 2008 Act defines
"service provider" as any person who provides aeronautical services "and
is eligible to levy and charge user development fees from the embarking passengers
at any airport and includes the authority which manages the airport". This
provision expressly indicates that under the 2008 Act also the entity managing the
airport is eligible to levy and collect the development fees.
The 1994 Act and the
2008 Act provide a statutory framework for the modernization and improvement of
the aviation infrastructure of the country and should be interpreted in a harmonious
manner so that they complement each other rather than conflict with each other.
The Regulatory Authority constituted under the 2008 Act has already issued a public
notice dated 23.04.2010 which would show that it has permitted DIAL to continue
to levy the development fees at the rate of Rs.200/- per departing domestic
passenger and at the rate of Rs.1,300/- per departing international passenger with
effect from 01.03.2009 on an ad hoc basis pending final determination. The Court
should not therefore interfere with the levy and collection of the development
fees by DIAL and MIAL at this stage. Reply on behalf of MIAL and DIAL:
8.
Mr.
Harish N. Salve, learned senior counsel, and Dr. Abhishek Singhvi, learned senior
counsel, appeared for MIAL and DIAL and made these submissions:(i) The challenge
of the appellant to the levy and collection of airport development fees by the lessees
of the two airports is based on a misconception that development fees is in the
nature of a tax and can be levied strictly in accordance with Section 22A of the
1994 Act, only by the Airports Authority and not by the lessee. Development
fees is not really a tax but charges levied and collected by the lessee for
development of facilities for the use of the airport.
The lessees, which are
non-government companies, have established the utility in a public-private partnership,
and do not require a statutory authorization or permission to recover such charges
by way of development fee, from the passengers using the airport and the
lessees do not require the support of the statutory provision of Section 22A
for levy and collection of development fees. Section 11 of the 1994 Act mandates
that the Airports Authority would discharge its functions on business principles
and Section 12 of the 1994 Act enumerates the functions of the Airports
Authority and as the Airports Authority in the discharge of its functions
provides different facilities, it is entitled to collect charges for such
facilities as per contractual arrangements with those who use the facilities.
These charges are really
in the nature of consideration from persons using the facilities provided by
the Airports Authority. The nature of these charges for the facilities provided
by an authority has been clarified by this Court in The Trustees of the Port of
Madras v. M/s Aminchand Pyarelal & Ors. [(1976) 3 SCC 167], Mumbai
Agricultural Produce Market Committee & Anr. v. Hindus tan Lever Limited
& Ors. [(2008) 5 SCC 575], Union of India v. S. Narayana Iyer [(1970) 1 MLJ
19] and Union of India & Ors. v. Mot ion Picture Association & Ors. [(1999)
6 SCC 150]. As the facilities are in the nature of monopolies, the statute imposes
regulations for the charges to prevent an abuse of monopolistic position and
Sections 22 and 22A of the 1994 Act reflect such statutory curtailments of the
rights of the owners of the facilities to recover sums from airlines and
passengers.
Hence, the right to
recover charges is not based on Sections 22 and 22A but flows from the
ownership of the facilities. What is determined, therefore, is the charges that
would be contractually recovered from the users of the facilities as was held in
M/s Aminchand Pyarelal & Ors. (supra).(ii) Section 22 of the 1994 Act
identified the heads on which charges could be recovered. Section 22A,
therefore, merely adds three more heads for which funds could be raised and
this is akin to adding components of a tariff. Section 22A does not change the
quality and character of the recovery of charges by the owners of the facilities
from the users thereof. Section 22A does not also change the nature and
character of what is recovered by an airport operator from its customers.
The High Court was, therefore,
right in coming to the conclusion in the impugned judgment that development
fees under Section 22A of the 1994 Act was in the nature of a tariff. (iii) Section
12A of the 1994 Act (a) recognizes statutorily the power of the Airports Authority
to make a lease of the premises of an airport for the purpose of carrying out
some of its functions under Section 12 and (b) transfers as it were to the
lessee all the powers of the Authority. As will be clear from sub-section (4) of
Section 12A of the Act, the lessee who has been assigned some functions of the Airports
Authority under Section 12 of the 1994 Act has the power of the Airports Authority
"necessary for the performance of such functions". The power to recover
charges for the facilities at the airport in respect of which a lease is made,
whether they be the charges under Section 22 or the charges under Section 22A
are necessary for discharging of the functions of maintaining and upgrading the
airports.
Since sub-section (4)
of Section 12A itself states that the lessee shall have "all" the
powers of the Airports Authority, there is no warrant to take the view that the
lessee shall not have the power of the Airports Authority under Section 22A to
levy and collect development fees. (iv) The functions which have been entrusted
to the two lessees, DIAL and MIAL, include the up-gradation and modernization of
the airport including construction of new terminals and this will be clear from
clause 2.1 titled "Grant of Function" and clause 8.3 titled "Master
plan" of the OMDA. The relevant provisions of the State Support Agreement between
the Airports Authority and the two lessees and in particular clauses 3.1 and 3.1A
also deal with the recovery of such charges in the performance of the
functions.
It is for the discharge
of these functions that development fees is levied and collected and the power to
collect development fee has been passed on to the lessee under sub-section (4)
of Section 12A of the 1994 Act. (v) Rules prescribing the rate of development fees
and regulation and the manner in which the development fees will be utilized as
provided in Section 22A of the 1994 Act cannot curtail the power to levy and collect
development fees under Section 22A of the 1994 Act. This proposition is settled
by the decisions of this Court in Orissa State (Prevention & Control of Pollution)
Board v. Orient Paperdd Mills & Anr. (supra), T. Cajee v. U. Jormanik Siem &
Anr. (AIR 1961 SC 276), The Madras and Southern Maharatta Railway Company
Limited v. The Municipal Council Bezwada [(1941) 2 MLJ 189] as approved by the
Privy Council in its decision reported in AIR 1944 PC 71, Jantia Hill Truck Owners
Association, etc. v. Shailang Area Coal Dealer and Truck Owner Association &
Ors. [(2009) 8 SCC 492], Surinder Singh v. Central Government & Ors. (supra),
Meghalaya State Electricity Board & Anr. v. Jagadindra Arjun [(2001) 6 SCC 446]
and U.P. State Electricity Board, Lucknow v. City Board, Mussorie & Ors.
(supra).
Since the power to
collect the development fee is already available to the Airports Authority or
its lessees as part of its power to collect charges for the facilities, absence
of a rule does not negate the power. The rule under Section 22A was to be made not
for purposes of conferring the power but to regulate the rate of development fees
and manner of utilization of development fee as a check on such power. (vi) After
the 2008 Act and after the notification dated 31.08.2009 bringing the
provisions of 2008 Act in Chapters III and VI into force w.e.f. 01.09.2009, the
Regulatory Authority has jurisdiction under Section 13(1)(b) of the 2008 Act to
determine the amount of development fees in respect of major airports, such as,
Delhi and Mumbai Airports. The Regulatory Authority has already commenced its functions
and has undertaken the process of final determination of development fee.
Till the Regulatory
Authority modifies the levy of development fees, the two lessees are entitled to
collect development fees as per the two letters dated 09.02.2009 and 27.02.2009
of the Central Government conveying the approval to the lessees of the two airports.
The contention of the appellant that the development fees cannot be recovered till
such time as the Regulatory Authority determines the rate of development fees is
misconceived. The contention of the appellant that the development fees can be utilized
only for the purposes mentioned in Section 22A of the 1994 Act is also
misconceived. The approval letters of the Central Government show that the
development fees can be utilized for the development of Aeronautical Assets which
are Transfer Assets in terms of OMDA; and under the OMDA, these Transfer Assets
shall revert to the Airports Authority on the expiry or early termination of
OMDA. On a perusal of the three clauses enumerated in Section 22A of the 1994
Act, it is clear that depending on the functions assigned to the lessee, the
corresponding powers to collect development fees for discharging the function also
is passed on to the lessee under sub-section (4) of Section 12A of the 1994
Act. In other words, there is a clear nexus established between the function so
assigned and the power to collect the development fees.Rejoinder on behalf of
the appellants:
9.
In
rejoinder, Mr. Nariman made these submissions: (i) Under Clause 13(i) of OMDA
the lessee has undertaken to arrange for financing and/or meeting of all financial
requirements through suitable debt and equity the contribution in order to
comply with its obligation including development of the airport pursuant to the
Master Plan and the Major Development Plans. Hence, there was no question of levy
of development fees by the lessee for the purposes of development of the airport
which has been leased out to the lessee.
The airports belong
to the Central Government and the Airports Authority has leased out the airport
premises to the lessee to manage the airport. Section 38 of the 1994 Act empowers
the Central Government to temporarily divest the Airports Authority of the
management of the airport and Section 39 of the 1994 Act empowers the Central Government
to supersede the Airports Authority. The lessee, therefore, is not the owner of
the airport and is consequently not empowered to charge development fess for
the development of the airport. Only a limited right has been conferred on the
private lessee under Section 12A of the 1994 Act to undertake some of the
functions of the Airports Authority enumerated in Clause 2.1.1 of the OMDA read
with Schedule 5 and Schedule 6 which enumerate the aeronautical services and non-aeronautical
services respectively.(ii) The levy under Section 22A of the 1994 Act is for
the specific purposes mentioned in Clauses (a), (b) or (c) thereof and though termed
as fees, it is really in the nature of a cess and therefore there need not be
any direct co-relation between the levy of fees and the services rendered as has
been held by the High Court in the impugned judgment.
In Vijayalashmi Rice Mills
& Ors. v. Commercial Tax Officers, Palakot & Ors. [(2006) 6 SCC 763],
this Court has also held that ordinarily a cess means a tax which raises revenue
which is applied to a specific purpose. This Court has held in Commissioner of Income
Tax, Udaipur, Rajasthan v. Mcdowell and Company Ltd. [(2009)10 SCC 755] that the
power to levy tax, duty, cess or fee can be exercised only under law authorizing
the levy. Thus, cess is ultimately a compulsory exaction of money and must satisfy
the test of Article 265 of the Constitution which declares that no tax shall be
levied or collected without authority of law.
This Court has also held
in Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla &
Ors. [(1992) 3 SCC 285] that the power of imposition of tax and/or fee must be very
specific and there is no scope of implied authority for imposition of such tax or
fee. This position of law has been reiterated by this Court in State of West Bengal
v. Kesor am Industries Ltd. & Ors. [(2004) 10 SCC 201]. Section 22A of the 1994
Act was, therefore, enacted by the Amendment Act of 2003 to specifically
empower the Development Authority to impose levy and collect development fees
which is to be used for the specific purposes indicated in clauses (a), (b) and
(c) of Section 22A of the 1994 Act and this power cannot be usurped by the
lessee of the airport by treating it as charges for facilities.
The judgments relied
on by the respondents in support of their contention that non-framing of rules
do not negate the power to levy development fees under Section 22A of the 1994
Act have been rendered by this Court in the context of enactments which are not
pari materia with Section 22A of the 1994 Act. In Bangalore Water Supply & Sewerage
Bo ard v. A. Rajappa & Ors. [(1978) 2 SCC 213], this Court has cautioned
that the same words may mean one thing in one context and another in different
context. This position of law has also been stated in Justice G.P. Singh's
Treatise on Interpretation of Statutes, 12th Edition 2010 at pages 298-299. Hence,
the judgments cited on behalf of the respondents are of no aid to interpret Section
22A of the 1994 Act which clearly provides that the development fees can be levied
and collected at the rate prescribed by the rules and are to be regulated and utilized
in the manner prescribed by the rules.
In Mohammad Hussain Gulam
Mohammad & Anr. v. The State of Bombay & Anr. [1962 (2) SCR 659], a
Constitution Bench of this Court has held that since Section 11 of the Bombay Agricultural
Produce Markets Act, 1939 provides that rules will prescribe the maxima and the
fees fixed must be within the maxima, till such maxima are fixed by the rules,
it would not be possible for the Market Committee to levy fees. Similarly, in
Dhrangadhra Chemical Works Ltd. v. State of Gujarat & Ors. [(1973) 2 SCC
345], this Court has held that the framing of rules was a mandatory requirement
enjoined by Section 60(a)(ii) of the Bombay Municipalities Act, 1901 before
imposing a tax by a resolution passed at a general meeting.(iv) The two letters
dated 09.02.2009 and 27.02.2009 of the Government of India, Ministry of Civil
Aviation, to DIAL and MIAL respectively can convey only the approvals of the
Central Government under Section 22A of the 1994 Act for levy of development
fees by DIAL and MIAL respectively but cannot authorize DIAL and MIAL to levy and
collect development fees under Section 22A of the 1994 Act because under this provision
the Airports Authority only has the power to levy and collect development fees
and DIAL and MIAL have no such authority.
The two letters dated
09.02.2009 and 27.02.2009 are not saved by Section 6 of the General Clauses Act,
1897 because this provision does not protect any action taken under the authority
of the letter. (v) The public notice dated 23.04.2010 issued by the Regulatory
Authority pertaining to levy of development fees by DIAL regarding the fees of Rs.200/-
per departing domestic passenger and Rs.1300/- per departing international passenger
on ad hoc basis is without jurisdiction as under the 2008 Act, the Regulatory
Authority alone has the power to determine the rate of development fees in respect
of major airports after following the procedure laid down in Section 13 of the
2008 Act. There is no public notice issued by the Regulatory Authority so far
in respect of the Mumbai Airport. The levy and collection of development fees
by DIAL and MIAL at the two airports are, therefore ultra vires and may be
restrained by the Court.Relevant Provisions of Law:
10.
Section
12 of the 1994 Act as amended by the Amendment Act of 2003, Section 22 of the 1994
Act, Sections 12A and 22A inserted by the Amendment Act of 2003 with effect from
01.07.2004 and Section 22A as amended by the 2008 Act, which are relevant for deciding
the questions raised before us by the parties, are extracted herein below:-
"Functions of the
Authority.-- (1) Subject to the rules, if any, made by the Central Government
in this behalf, it shall be the function of the Authority to manage the airports,
the civil enclaves and the aeronautical communication stations efficiently.
(2) It shall be the duty
of the Authority to provide air traffic service and air transport service at
any airport and civil enclaves. (3) Without prejudice to the generality of the provisions
contained in sub-sections (1) and (2), the Authority may—
a.
plan,
develop, construct and maintain runways, taxiways, aprons and terminals and ancillary
buildings at the airports and civil enclaves; (aa) establish airports, or assist
in the establishment of private airports by rendering such technical, financial
or other assistance which the Central Government may consider necessary for such
purpose. (Inserted by the Amendment Act of 2003)
b.
plan,
procure, install and maintain navigational aids, communication equipment, beacons
and ground aids at the airports and at such locations as may be considered necessary
for safe navigation and operation of aircrafts;
c.
provide
air safety services and search and rescue, facilities in co-ordination with other
agencies;
d.
establish
schools or institutions or centers for the training of its officers and employees
in regard to any matter connected with the purposes of this Act;
e.
construct
residential buildings for its employees;
f.
establish
and maintain hotels, restaurants and restrooms at or near the airports;
g.
establish
warehouses and cargo complexes at the airports for the storage or processing of
goods;
h.
arrange
for postal, money exchange, insurance and telephone facilities for the use of passengers
and other persons at the airports and civil enclaves;
i.
make
appropriate arrangements for watch and ward at the airports and civil enclaves;
j.
regulate
and control the plying of vehicles, and the entry and exit of passengers and visitors,
in the airports and civil enclaves with due regard to the security and protocol
functions of the Government of India;
k.
develop
and provide consultancy, construction or management services, and undertake operations
in India and abroad in relation to airports, air-navigation services, ground aids
and safety services or any facilities thereat;
l.
establish
and manage heliports and airstrips;
m.
provide
such transport facility as are, in the opinion of the Authority, necessary to
the passengers traveling by air;
n.
form
one or more companies under the Companies Act, 1956 or under any other law
relating to companies to further the efficient discharge of the functions imposed
on it by this Act;
o.
take
all such steps as may be necessary or convenient for, or may be incidental to, the
exercise of any power or the discharge of any function conferred or imposed on it
by this Act;(p) perform any other function considered necessary or desirable by
the Central Government for ensuring the safe and efficient operation of aircraft
to, from and across the air space of India;
p.
establish
training institutes and workshops;
q.
any
other activity at the airports and the civil enclaves in the best commercial
interests of the Authority including cargo handling, setting up of joint
ventures for the discharge of any function assigned to the Authority.(4) In the
discharge of its functions under this section, the Authority shall have due
regard to the development of air transport service and to the efficiency, economy
and safety of such service.(5) Nothing contained in this section shall be
construed as-
(a) authorizing the
disregard by the Authority of any law for the time being in force; or(b) authorizing
any person to institute any proceeding in respect of duty or liability to which
the Authority or its officers or other employees would not otherwise be
subject.
22. Power of the
Authority to charge fees, rent, etc.- The Authority may,-
(i) With the previous
approval of the Central Government, charge fees or rent -
(a) for the landing, housing
or parking of aircraft or for any other service or facility offered in
connection with aircraft operations at any airport, heliport or airstrip;Explanation.
- In this sub-clause "aircraft" does not include an aircraft
belonging to any armed force of the Union and "aircraft operations" does
not include operations of any aircraft belonging to the said force;
(b) for providing air
traffic services, ground safety services, aeronautical communications and navigational
aids and meteorological services at any airports and at any aeronautical
communication station;
(c) for the amenities
given to the passengers and visitors at any airport, civil enclave, heliport or
airstrip;
(d) for the use and
employment by persons of facilities and other services provided by the
Authority at any airport, civil enclave heliport or airstrip;
(ii) with due regard to
the instructions that the Central Government may give to the
Authority, from time to
time, charge fees or rent from persons who are given by the Authority any facility
for carrying on any trade or business at any airport, heliport or
airstrip.Inserted by the Amendment Act of 2003
12A. Lease by the authority.--(1)
Notwithstanding anything contained in this Act, the Authority may, in the
public interest or in the interest of better management of airports, make a lease
of the premises of an airport (including buildings and structures thereon and appertaining
thereto) to carry out some of its functions under section 12 as the Authority
may deem fit:
Provided that such lease
shall not affect the functions of the Authority under section 12 which relates to
air traffic service or watch and ward at airports and civil enclaves.(2) No lease
under sub-section (1) shall be made without the previous approval of the
Central Government.(3) Any money, payable by the lessee in terms of the lease made
under sub- section (1), shall form part of the fund of the Authority and shall be
credited thereto as if such money is the receipt of the Authority for all
purposes of section 24.(4) The lessee, who has been assigned any function of the
Authority under sub-section (1), shall have all the powers of the Authority
necessary for the performance of such function in terms of the lease. Inserted
by the Amendment Act of 2003
22A. Power of Authority
to levy development fees at airports.-- The Authority may, after the previous
approval of the Central Government in this behalf, levy on, and collect from, the
embarking passengers at an airport, the development fees at the rate as may be prescribed
and such fees shall be credited to the Authority and shall be regulated and utilized
in the prescribed manner, for the purposes of-
(a) funding or financing
the costs of upgradation, expansion or development of the airport at which the
fees is collected; or(b) establishment or development of a new airport in lieu of
the airport referred to in clause (a); or(c) investment in the equity in respect
of shares to be subscribed by the Authority in companies engaged in establishing,
owning, developing, operating or maintaining a private airport in lieu of the airport
referred to in clause (a) or advancement of loans to such companies or other
persons engaged in such activities.
As amended by the
2008 Act
22A. Power of Authority
to levy development fees at airports.-- The Authority may,--
(i) after the previous
approval of the Central Government in this behalf, levy on, and collect from,
the embarking passengers at an airport other than the major airports referred
to in clause (h) of section 2 of the Airports Economic Regulatory Authority of India
Act, 2008 the development fees at the rate as may be prescribed;
(ii) levy on, and collect
from, the embarking passengers at major airports referred to in clause (h) of section
2 of the Airports Economic Regulatory Authority of India Act, 2008 the
development fees at the rate as may be determined under clause (b) of
sub-section (1) of Section 13 of the Airports Economic Regulatory Authority of
India Act, 2008, and such fees shall be credited to the Authority and shall be
regulated and utilized in the prescribed manner, for the purposes of--
(a) funding or financing
the costs of upgradation, expansion or development of the airport at which the
fees is collected; or (b) establishment or development of a new airport in lieu
of the airport referred to in clause (a); or (c) investment in the equity in respect
of shares to be subscribed by the Authority in companies engaged in establishing,
owning, developing, operating or maintaining a private airport in lieu of the airport
referred to in clause (a) or advancement of loans to such companies or other
persons engaged in such activities.
Our conclusions with
reasons:
11.
The
conclusion of the High Court in the impugned judgment that the lessee of the
airport has the power of the Airports Authority under Section 22A to levy and collect
development fees from the embarking passengers by virtue of sub-section (4) of
Section 12A of the Act is contrary to the legislative intent of the Amendment Act
of 2003. On a perusal of Section 22A of the 1994 Act inserted by the Amendment Act
of 2003, we find that the purposes for which the development fees are to be levied
and collected from the embarking passengers at an airport are: (a) funding or financing
the costs of up-gradation, expansion or development of the airports at which the
fees is collected, or (b) establishment or development of a new airport in lieu
of the airport referred to in clause (a), or (c) investment in the equity in respect
of shares to be subscribed by the Airports Authority in companies engaged in establishing,
owning, developing, operating or maintaining a private airport in lieu of the
airport referred to in clause (a) or advancement of loans to such companies or other
persons engaged in such activities.Though Airports Authority can utilize the fees
levied by it, for all or any of these purposes mentioned in clauses (a), (b)
and (c) of Section 22A, what can be assigned by the Airports Authority to a lessee
under a lease entered into under Section 12A of the 1994 Act is the power to
levy fees for the purposes mentioned in clause (a) of Section 22 A of the 1994
Act.
12.
The
functions of the Airports Authority under clause (aa) of sub-section (3) of Section
12 also inserted by the Amendment Act of 2003 to establish airports, or assist in
the establishment of private airports by rendering such technical, financial or
other assistance which the Central Government may consider necessary for such purposes
cannot be assigned to the lessee under Section 12A of the 1994 Act. The
Amendment Act of 2003 which also inserted Section 12A therefore provides in
sub-section (1) of Section 12A that the Airports Authority can make a lease of the
premises of an airport (including buildings and structures thereon and
appertaining thereto) to carry out "some" of its functions under section
12 as the Airports Authority may, in the public interest or in the interest of better
management of airports, deem fit. Obviously, "a lease of premises of an
airport" as contemplated in sub-section (1) of Section 12A cannot include establishing
an airport or assisting in establishment of private airports as contemplated in
clause (aa) of sub-section (3) of Section 12 of the Act.
13.
To
enable the Airports Authority to perform its statutory function of establishing
a new airport or to assist in the establishment of private airports, the
legislature has thought it fit to empower the Airports Authority to levy and
collect development fees as will be clear from clauses (b) and (c) of Section
22A of the 1994 Act. Such development fees levied and collected under Section
22A can also be utilized for funding or financing the costs of up-gradation,
expansion and development of an existing airport at which the fees is collected
as provided in clause (a) of Section 22A of the Act and in case the lease of the
premises of an existing airport (including buildings and structures thereon and
appertaining thereto) has been made to a lessee under Section 12A of the Act,
the Airports Authority may meet the costs of up-gradation, expansion and development
of such leased out airport to a lessee, but this can be done only if the rules provide
for such payment to the lessee of an airport because Section 22A says that the
development fees are to be regulated and utilized in the manner prescribed by
the Rules.
Since the lessee of
an airport cannot be assigned the function of the Airports Authority to establish
airports or assist in establishing private airports in lieu of the existing airports
at which the development fees is being collected, the lessee cannot under
sub-section (4) of Section 12A have the power of the Airports Authority under
Section 22A of the 1994 Act to levy and collect development fees. This is
because sub-section (4) of Section 12A provides that the lessee can have all those
powers of the Airports Authority which are necessary for performance of such
functions as assigned to it under sub-section (1) of Section 12A in terms of the
lease.
Moreover, since we have
held that the function of establishment and development of a new airport in
lieu of an existing airport and the function of establishing a private airport
are exclusive functions of the Airports Authority under the 2004 Act, and these
statutory functions cannot be assigned by the Airports Authority under lease to
a lessee under Section 12A of the Act, the lease agreements, namely, the OMDA
and the State Support agreement could not make a provision conferring the right
on the lessee to levy and collect development fees for the purpose of discharging
these statutory functions of the Airports Authority. We, therefore, do not
think it necessary to refer to the clauses of the OMDA and the State Support
Agreements executed in favour of the two lessees to find out whether the right
of levying and collecting the development fees has been assigned to the lessees
or not.
14.
The
High Court was not correct in coming to the conclusion in the impugned judgment
that the development fees to be levied and collected under Section 22A of the
1994 Act is in the nature of tariff or charges collected by the Airports Authority
for the facilities provided to the passengers and the airlines. It will be clear
from a bare reading of Sections 22 and 22A that there is a distinction between the
charges, fees and rent collected under Section 22 and the development fees levied
and collected under Section 22A of the 1994 Act. The charges, fees and rent
collected by the Airports Authority under Section 22 are for the services and
facilities provided by the Airports Authority to the airlines, passengers, visitors
and traders doing business at the airport.
Therefore, when the Airports
Authority makes a lease of the premises of an airport (including buildings and structures
thereon and appertaining thereto) in favour of a lessee to carry out some of
its functions under Section 12, the lessee, who has been assigned such functions,
will have the powers of the Airports Authority under Section 22 of the Act to collect
charges, fees or rent from the third parties for the different facilities and
services provided to them in terms of the lease agreement. The legal basis of such
charges, fees or rent enumerated in Section 22 of the 2008 Act is the contract
between the Airports Authority or the lessee to whom the airport has been
leased out and the third party, such as the airlines, passengers, visitors and traders
doing business at the airport. But there can be no such contractual
relationship between the passengers embarking at an airport and the Airports Authority
with regard to the up-gradation, expansion or development of the airport which
is to be funded or financed by development fees as provided in clause (a) of
Section 22A.
Those passengers who
embark at the airport after the airport is upgraded, expanded or developed will
only avail the facilities and services of the upgraded, expanded and developed
airport. Similarly, there can be no contractual relationship between the Airports
Authority and passengers embarking at an airport for establishment of a new
airport in lieu of the existing airport or establishment of a private airport in
lieu of the existing airport as mentioned in Clauses (b) and (c) of Section 22A
of the 1994 Act. In the absence of such contractual relationship, the liability
of the embarking passengers to pay development fees has to be based on a statutory
provision and for this reason Section 22A has been enacted empowering the Airports
Authority to levy and collect from the embarking passengers the development fees
for the purposes mentioned in clauses (a), (b) and (c) of Section 22A of the Act.
In other words, the object
of Parliament in inserting Section 22A in the 2004 Act by the Amendment Act of
2003 is to authorize by law the levy and collection of development fees from every
embarking passenger de hors the facilities that the embarking passengers get at
the existing airports. The nature of the levy under Section 22A of the 2004
Act, in our considered opinion, is not charges or any other consideration for services
for the facilities provided by the Airports Authority. This Court has held in
Vijayalashmi Rice Mills & Ors. v. Commercial Tax Officers, Palakot &
Ors. (supra) that a cess is a tax which generates revenue which is utilized for
a specific purpose. The levy under Section 22A though described as fees is
really in the nature of a cess or a tax for generating revenue for the specific
purposes mentioned in clauses (a), (b) and (c) of Section 22A.
15.
Once
we hold that the development fees levied under Section 22A is really a cess or a
tax for a special purpose, Article 265 of the Constitution which provides that no
tax can be levied or collected except by authority of law gets attracted and
the decisions of this Court starting from The Trustees of the Port of Madras v.
M/s Aminchand Pyarelal & Ors . (supra), cited on behalf of the Union of
India and DIAL and MIAL on the charges or tariff levied by a service or
facility provided are of no assistance in interpreting Section 22A. It is a
settled principle of statutory interpretation that any compulsory exaction of
money by the Government such as a tax or a cess has to be strictly in
accordance with law and for these reasons a taxing statute has to be strictly
construed.
As observed by this
Court in Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla
& Ors. (supra), it has been consistently held by this Court that whenever there
is compulsory exaction of money, there should be specific provision for the
same and there is no room for intendment and nothing is to be read or nothing is
to be implied and one should look fairly to the language used. Looking strictly
at the plain language of Section 22A of 1994 Act before its amendment by the
2008 Act, the development fees were to be levied on and collected from the embarking
passengers "at the rate as may be prescribed". Since the rules have
not prescribed the rate at which the development fees could be levied and collected
from the embarking passengers, levy and collection of development fees from the
embarking passengers was without the authority of law.
For this conclusion, we
are supported by the Constitution Bench judgment of this Court in Mohammad Hussain
Gulam Mohammad & Anr. v. The State of Bombay & Anr. (supra). In that case,
the Court found that Section 11 of the Bombay Agricultural Produce Markets Act,
1939 provided that the market committee may levy market fees subject to the maxima
as prescribed and the Court held that unless the State Government fixes the
maxima by rule, it is not open to the committee to fix any fees at all. We are
also supported by the decision of a three judges Bench of this Court which held
in Dhrangadhra Chemical Works Ltd. v. State of Gujarat & Ors. (supra) that
the mandatory provision in Section 60(a)(ii) of the Bombay Municipalities Act, 1901
requiring framing of rule for imposition of tax not having been complied with, the
imposition of tax was illegal. In Principles of Statutory Interpretation, 12th
Edition, at Page 813, Justice G.P. Singh states:
"There are three
components of a taxing statute, viz., subject of the tax, person liable to pay the
tax and the rate at which the tax is levied. If there be any real ambiguity in respect
of any of these components which is not removable by reasonable construction,
there would be no tax in law till the defect is removed by the
legislature." Thus, the rate at which the tax is to be levied is an
essential component of a taxing provision and no tax can be levied until the rate
is fixed in accordance with the taxing provision. We have, therefore, no doubt in
our mind that until the rate of development fees was prescribed by the Rules, as
provided in Section 22A of the 1994 Act, development fees could not be levied on
the embarking passengers at the two major airports.
16.
The
High Court, in our considered opinion, was not correct in coming to the conclusion
in the impugned judgment that the exercise of the power to levy and collect
development fees under Section 22A was not dependent on the existence of the
rules and, therefore, this power could be exercised even if the rules have not
been framed prescribing the rate of development fees under Section 22A of the
1994 Act. The High Court has relied upon the decision of this Court in U.P.
State Electricity Board, Lucknow v. City Board, Mussorie & Ors. (supra). In
that case, the High Court was called upon to interpret Section 46(1) of the Electricity
(Supply) Act, 1948, which provided that a tariff to be known as the Grid Tariff
shall, in accordance with any regulations made in this behalf, be fixed from
time to time by the Board. The High Court held that it only provides that the
Grid Tariff shall be in accordance with any regulations made in this behalf and
that means that if there were any regulations, the Grid Tariff should be fixed in
such regulations and nothing more and, therefore, the framing of regulations
under Section 70(h) of the Act cannot be a condition precedent for fixing the
Grid Tariff. The language of Section 22A of the 1994 Act is different. It clearly
states that the Airports Authority may levy on and collect from the embarking
passengers at the airport the development fees at the rate as may be prescribed.
Hence, unless the rate is prescribed by the rules, the Airports Authority cannot
collect the development fees.
17.
The
High Court has also relied on the decision of this Court in Mysore Road Transport
Corporation v. Gopinath Gundachar Char (supra). In that case, the Court was
called upon to interpret the provisions of the Road Transport Corporations Act,
1950. Section 45(1) of that Act provided that a Corporation may, with the previous
sanction of the State Government, make regulations, not inconsistent with the Act
and the rules made thereunder, for the administration of the affairs of the Corporation
and in particular, providing for the conditions of appointment and service. The
Court has held that in the absence of regulations framed under Section 45 laying
down the conditions of service, the Corporation can still appoint officers or servants
as may be necessary for the efficient performance of its duties on such terms
and conditions as it thinks fit and it cannot be held that unless such
regulations are framed under Section 45, the Corporation would have no power to
appoint officers and servants and fix the conditions of service of its officers
and servants. From the language of Section 22A of the 1994 Act, on the other
hand, we find that there is no room whatsoever for the Airports Authority to
levy and collect any development fees except at the rate prescribed by the
Rules.
18.
The
High Court has also relied on the decision of this Court in Sudhir Chandra Nawn
v. Wealth-Tax Officer, Calcutta & Ors. (supra). In that case, Section 7(1) of
the Wealth Tax Act, 1957 was challenged as ultra vires the Parliament on inter alia
the ground that no rules were framed in respect of the valuation of lands and buildings
and this Court repelled the challenge and held that Section 7 only directs that
the valuation of any asset other than cash has to be made subject to the rules and
does not contemplate that there shall be rules before an asset can be valued and
failure to make rules for valuation of a type of asset cannot therefore affect the
vires of Section 7. In Section 22A of the 1994 Act, on the other hand, the levy
or development fees was to be at the rate as prescribed by the Rules and hence
could not be made without the rules. All other decisions starting from T. Cajee
v. U. Jormanik Siem & Anr. cited on behalf of the Union of India, DIAL and
MIAL on this point are cases where the statutory power could be exercised
without the rules or the regulations, whereas the power under Section 22A of the
1994 Act to levy development fees could not be exercised without the rules
prescribing the rate at which development fees was to be levied.
19.
Section
22A of the 1994 Act before its amendment by the 2008 Act specifically provided
that the development fees may be levied and collected at the rate as may be
prescribed by the rules. Hence, the rate of development fees could not be
determined by the Central Government in the two letters dated 09.02.2009 and 27.02.2009
communicated to DIAL and MIAL respectively. Under section 22A of the 1994 Act,
the Central Government has only the power to grant its previous approval to the
levy and collection of the development fees but has no power to fix the rate at
which the development fees is to be levied and collected from the embarking passengers.
Hence, the levy and collection of development fees by DIAL and MIAL at the
rates fixed by the Central Government in the two letters dated 09.02.2009 and 27.02.2009
are ultra vires the 1994 Act and the two letters being ultra vires the 1994 Act
are not saved by Section 6 of the General Clauses Act, 1897.
20.
After
the amendment of Section 22A by the 2008 Act with effect from 01.01.2009, the
rate of development fees to be levied and collected at the major airports such
as Delhi and Mumbai is to be determined by the Regulatory Authority under
clause (b) of sub-section (1) of Section 13 of the 2008 Act and not by the Central
Government. The Regulatory Authority constituted under the 2008 Act has already
issued a public notice dated 23.04.2010 permitting DIAL to continue to levy the
development fees at the rate of Rs.200/- per departing domestic passenger and
at the rate of Rs.1,300/- per departing international passenger with effect from
01.03.2009 on an ad hoc basis pending final determination under Section 13 of the
2008 Act. This public notices dated 23.04.2010 has been issued by the
Regulatory Authority under the 2008 Act long after the impugned decision of the
High Court upholding the levy and it has not been challenged by the appellants.
Hence, the question of examining the validity of the said public notice dated 23.04.2010
issued by the Regulatory Authority pertaining to levy and collection of development
fees by DIAL does not arise. But no such public notice has been issued by the Regulatory
Authority under the 2008 Act pertaining to levy and collection of development fees
by MIAL. Hence, MIAL could not continue to levy and collect development fees at
the major airport at Mumbai and cannot do so in future until the Regulatory
Authority passes an appropriate order under Section 22A of the 1994 Act as
amended by the 2008 Act.
21.
Having
held that the levy and collection of development fees by DIAL and MIAL at the
rates fixed by the Central Government in the two letters dated 09.02.2009 and
27.02.2009 are ultra vires the 1994 Act and that MIAL could not continue to
levy and collect of development fees at the major airport at Mumbai without an appropriate
order passed by the Regulatory Authority, the question is whether there is need
to pass any consequential direction for refund of the development fees collected
by DIAL and MIAL pursuant to the two letters dated 09.02.2009 and 27.02.2009 of
the Central Government and the development fees levied and collected by MIAL after
the amendment of Section 22A by the 2008 Act.
22.
This
Court has held in M/s Orissa Cement Ltd. v. State of Orissa (AIR 1991 SC 1676) that
a finding regarding the invalidity of a levy need not automatically result in a
direction for a refund of all collections thereof made earlier and that the
Court has, and must be held to have, a certain amount of discretion to grant,
mould or restrict the relief in a manner most appropriate to the situation
before it in such a way as to advance the interests of justice. In the facts of
this case, the development fees have been collected by DIAL and MIAL on the basis
of the two letters dated 09.02.2009 and 27.02.2009 of the Central Government from
the embarking passengers at Delhi and Mumbai and these embarking passengers, from
whom the development fees have been collected, cannot now be identified nor can
they be traced for making the refund to them. Further there is significantly no
prayer for refund in any of the three writ petitions. However, it is necessary to
ensure that the development fees levied and collected are utilized only for the
specific purposes mentioned in Section 22A of the 1994 Act. In our considered
opinion, interests of justice would be met if DIAL and MIAL are directed to
account to the Airport Authority that the development fees so far levied and
collected by them have been utilized for the purposes mentioned in clause (a)
of Section 22A of the 1994 Act. Reliefs:
23.
In
view of the foregoing, we allow these appeals as follows: (i) We hold that
development fees could not be levied and collected by the lessees of the two major
airports, namely, DIAL and MIAL, on the authority of the two letters dated 09.02.2009
and 27.02.2009 of the Central Government from the embarking passengers under
the provisions of Section 22A of the 1994 Act.(ii) We declare that with effect from
01.01.2009, no development fee could be levied or collected from the embarking
passengers at major airports under Section 22A of the 1994 Act, unless the Airports
Economic Regulatory Authority determines the rates of such development
fee.(iii) We direct that MIAL will henceforth not levy and collect any development
fee at the major airport at Mumbai until an appropriate order is passed by the Airports
Economic Regulatory Authority under Section 22A of the 1994 Act as amended by
the 2008 Act.
We direct that DIAL and
MIAL will account to the Airports Authority the development fees collected pursuant
to the two letters dated 09.02.2009 and 27.02.2009 of the Central Government and
the Airports Authority will ensure that the development fees levied and
collected by DIAL and MIAL have been utilized for the purposes mentioned in clause
(a) of Section 22A of the 1994 Act.(v) We further direct that henceforth, any development
fees that may be levied and collected by DIAL and MIAL under the authority of
the orders passed by the Airports Economic Regulatory Authority under Section 22A
of the 1994 Act as amended by the 2008 Act shall be credited to the Airports Authority
and will be utilized for the purposes mentioned in clauses (a), (b) or (c) of
Section 22A of the 1994 Act in the manner to be prescribed by the rules which
may be made as early as possible. (vi) Nothing stated herein shall come in the way
of any aggrieved person challenging the public notice dated 23.04.2010 issued by
the Airports Economic Regulatory Authority in accordance with law. (vii) The
impugned judgment of the High Court is set aside and the Writ Petitions filed by
the appellants are allowed with these directions. (viii) There shall be no
order as to costs.(ix) I.A. No.3 in Civil Appeal arising out of S.L.P. (C) No.23541
of 2009 for impleadment stands rejected.
.............................J.
(R. V. Raveendran)
.............................J.
(A. K. Patnaik)
New
Delhi,
April
26, 2011.
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