Airports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.

Airports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.

vii. Interpretation of Sections 18 and 31 of the AERA Act

61Copy pinpoint61. The respondents made the following submissions based on Section 18 to argue that AERA cannot be impleaded as a party to the proceedings before TDSAT: a. Section 18 of the AERA Act does not expressly provide that TDSAT must hear AERA before passing any order. Clause (4) of Section 18 provides that TDSAT may pass an order “after giving the parties to the dispute or appeal” an opportunity of being heard; and b. Section 18(5) expressly excludes AERA as a party in the appeal before TDSAT because it provides that a copy of every order of TDSAT must be provided “to the parties to the dispute or appeal and to the Authority, as the case may be”. There is disagreement over whether the expression “as the case may be” takes after “dispute or appeal” or “Authority”. If the expression takes after the former, it means that Authority is not subsumed within “parties to dispute or appeal”. If the expression takes after the latter, it could mean that a copy of the order must be given to AERA if it is not a party to the dispute or the appeal.

62Copy pinpoint62. We have already, in the previous section of this judgment after an analysis of the precedent, concluded that the Authority can be impleaded as a respondent in an appeal against its order even if the provisions of the statute do not provide for it. This power can be read by necessary implication based on the role conferred on the Authority by the statute. To recall, Section 17(1)(a) grants TDSAT the jurisdiction to adjudicate any dispute between two parties, either between two service providers or a service provider or a consumer. There is clearly a lis before TDSAT in such cases. However, the proviso to the section recognises the expertise of AERA in the economic regulation of airports by providing TDSAT with the discretion to “obtain the opinion of the Authority on any matter relating to the dispute”. This is referable to the role of AERA as a proper party in the proceedings, where its expertise may be required for the effective adjudication of the dispute.

63Copy pinpoint63. However, when it comes to appeals against the tariff orders issued by AERA, it is not just acting as an ‘expert body’ but as a regulator interested in the outcome of the proceedings. AERA has a statutory

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duty to regulate tariff upon a consideration of multiple factors to ensure that airports are run in an economically viable manner without compromising on the interests of the public. This statutory role is evident, inter alia, from the factors that AERA must consider while determining tariff and the power to amend tariff from time to time in public interest as discussed above. When AERA determines the tariff for aeronautical services in terms of Section 13(1)(a) of the AERA Act, it is acting as a regulator and an interested party. It is interested not in a personal capacity. Its interest lies in ensuring that the concerns of public interest which animate the statute and the performance of its functions by AERA are duly preserved. Thus, AERA is a necessary party in the appeal against its tariff order before TDSAT and it must be impleaded as a respondent.

64Copy pinpoint64. Section 18(5) refers to parties in a dispute or appeal. AERA is not a party to the lis when TDSAT adjudicates a dispute between two or more service providers, or a service provider and a consumer in terms of Section 17(1)(a). For disputes adjudicated by TDSAT under Section 17(a), AERA may be included as a party in terms of the proviso to the provision. If the expression “as the case may be” is interpreted to refer to “dispute or appeal”, thereby excluding AERA as a party to either the dispute or the appeal, it would amount to reading down the proviso to Section 17(1)(a).

65Copy pinpoint65. It may be recalled that determination of tariff for aeronautical services is merely one of the functions discharged by AERA. Section 17(1) (b) grants TDSAT the jurisdiction to “hear and dispose of appeal against any direction, decision or order of the Authority under this Act.” Section 18(5) by using the expression “as the case may be” accounts for such a situation and requires that a copy of the order to be provided to AERA even if it is not a party to the appeal. Thus, the expression “as the case may be” in Section 18(5) must be read to mean that a copy of the order of TDSAT must be given to AERA even if it is not a party to the appeal or the dispute. The expression cannot be interpreted to impliedly exclude AERA as a respondent in the appeals against its orders before TDSAT.

66Copy pinpoint66. Section 31 does not expressly confer AERA with the right to file an appeal against the order of TDSAT before this Court. In fact, it does not confer that power to any party expressly. As Mr Datar put it, there are three ways in which provisions dealing with statutory appeal are

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Airports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.

drafted. First, the provision may not prescribe who can file an appeal such as Section 31 of the AERA Act. Second, the provision may provide that an appeal may be preferred by a ‘person aggrieved’ such as under the Electricity Act,96 the Major Port Authorities Act 2021,97 the Securities and Exchange Board of India Act 199298 and the Pension Fund Regulatory and Development Authority Act 2012.99 The third category is where the statute confers ‘any party’ with the right to file an appeal as under the Companies Act 2013.100 With respect to the first of the three categories, at a minimum the parties to the appeal before first appellate body (in this case TDSAT) will have a right to file an appeal before this Court. AERA can file an appeal under Section 31 in view of our conclusion that it is a necessary party in the appeals against the tariff orders issued by it. E. Conclusion

67Copy pinpoint67. In view of the discussion above, the appeals filed by AERA against orders of TDSAT under Section 31 of the AERA Act are maintainable. The Registry shall list the matters before the Regular Bench for adjudication of the appeals on merits.

Result of the case: M atters directed to be listed before the Regular Bench.

† Headnotes prepared by: Ankit Gyan

96 “Section 125. Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court…” 97 “Section 60(2). Any party aggrieved by any decision or order of the Adjudicating Board, may file an appeal …” 98 “Section 15Z. Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal…” 99 “Section 38. Any person aggrieved by any decision or order of the Securities Appellate Tribunal…” 100 See Companies Act 2013; Section 242