CONSUMER ONLINE FOUNDATION v. UNION OF INDIA & Ors.

4.1 After the amendment of s. 22A by the Amendment D Act, 2008 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-s. (1) of s. 13 of the Airports Economic Regulatory Authority E Act, 2008 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 embarking domestic passenger F and at the rate of Rs.1,300/- per embarking international passenger with effect from 01.03.2009 on an ad hoc basis pending final determination u/s. 13 of the 2008 Act. This public notice 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. Therefore, 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 H development fees by DIAL does not arise. But no such G CONSUMER ONLINE FOUNDATION v. UNION OF INDIA & ORS. 921 public notice has been issued by the Regulatory A Authority under the 2008 Act pertaining to levy and collection of development fees by MIAL. Therefore, 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 B order u/s. 22A of the 1994 Act as amended by the Amendment Act, 2008. [Para 20] [954-E-H; 955-A-B]

5.1. In the facts of the case, th·e 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 C 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 s. 22A of the 1994 Act. Interests of justice would be met if DIAL and MIAL are directed to account E to the Airports Authority the development fees so far levied and collected by them and utilized for the purposes mentioned in clause (a) of s. 22A of the 1994 Act. [Para 22] [9~5-G-H; 956-A-B] D . Mis Orissa Cement Ltd. Vs. State of Orissa AIR 1991 SC F 1676 • relied on.

5.2 (i) It is, therefore held that development fees could not be levied and collected by the lessees of the two major airports, namely, DIAL and MIAL, on the authority G of the two letters dated 09.02.2009 and 27.02.2009 of the Central Government from the embarking passengers under the provisions of s. 22A of the 1994 Act. (ii) It is declared that with effect from 01.01.2009, no H 922 SUPREME COURT REPORTS [2011) 5 S.C.R. A development fee could be levied or collected from the embarking passengers at major airports u/s. 22A of the 1994 Act, unless the Airports Economic Regulatory Authority determines the rates of such development fee. 8 (iii) It is directed that MIAL will 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 u/s. 22A of the 1994 Act as amended by the Amendment Act, 2008. C (iv) It is directed 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 D and collected by .DIAL and MIAL have been utilized for the purposes mentioned in clause (a) of s. 22A of the 1994 Act. E F (v) It is further directed that 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 u/s. 22A of the 1994 Act as amended by the Amendment Act, 2008 shall be credited to the Airports Authority and will be utilized for the purposes mentioned in clauses (a), (b) or (c) of s. 22A of the 1994 Act in the manner to be prescribed by the rules which may be made as early as possible. [Para 23] [956-C-H; 957-A-D] Orissa State (Prevention & Control of Pollution) Board v. G Orient Paperdd Mills & Anr. (2003) 10 SCC 421, Kera/a State Electricity Board v. Mis S.N. Govinda Prabhu & Bros. & Ors. (1986) 4 SCC 198, Surinder Singh v. Central Government & Ors. 1986 (3) SCR 946 = 1986 (1986) 4 SCC 667; Jayantilal Amrath/al v. Union of India [(1972) 4 SCC 174; S.L. Srinivasa H Jute Twine Mills (P) Ltd. v. Union of India & Anr. 1991 (2) CONSUMER ONLINE FOUNDATION v. UNION OF INDIA & ORS. 923 Suppl. SCR 305 = (2006) 2 SCC 740; Mumbai Agricultural Produce ·Market Committee & Anr. v. Hindustan Lever Limited & Ors. 2008 (4) SCR 471; (2008) 5 SCC 575; Union of India v. S. Narayana Iyer (1970) 1 MLJ 19; and Union of India & Ors. v. Motion Picture Association & Ors. (1999) 6 SCC 150; Commissioner of Income Tax, Udaipur, Rajasthan v. Mcdowell and Company Ltd. 2009 (8) SCR 983 = (2009)10 SCC 755; State of West Bengal v. Kesoram Industries Ltd. & Ors. (2004) 10 SCC 201; and Bangalore Water Supply & Sewerage Board v. A. Rajappa & Ors. 1979 (3) SCR 545 = (1978) 2 sec 213 - cited. A B c Case Law Reference: 1985 (2) SCR 815 held inapplicable para 5 1968 SCR 767 held inapplicable para 5 1969 (1) SCR 108 . held inapplicable para 5 (2003) 10 sec 421 (1986) 4 sec 198 1986 (3) SCR 946 (1972) 4 sec 114 1991 (2) Suppl. SCR 305 cited para 7 para 7 para 7 para 7 para 7 -D E 1976 (1) SCR 721 held inapplicable para 8 F 1961 SCR 750 held inapplicable para 8 2008 (4) SCR 471 (1970) 1 MLJ 19 (1999) s sec 150 para 8 para 8 para 8 (1941) 2 MLJ 189 held inapplicable para 8 2009 (10) SCR 536 _held inapplicable para 8 G H 924 SUPREME COURT REPORTS [2011] 5 S.C.R. A 2001 (1) Suppl. SCR 233 held inapplicable para 8 B c 2006 (4) Suppl. SCR 279 relied on 2009 (8) SCR 983 (2004) 1 o sec 201 1979 (3) SCR 545 1962 (2) SCR 659 (1973) 2 sec 345 relied on relied on para 8 para 8 para 8 para 8 para 8 para 8 AIR 1991 SC 1676 relied on para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3611 of 2011 etc. D From the Judgment & Order dated 26.08.2009 of the High Court of Delhi at New Delhi in Writ Petition (D) No. 9316 of 2009. E C.A. Nos. 3612, 3613 & 3614 of 2011. WITH F.S. Nariman, Arunabh Chodhury, Anurag Sharma, Prashant Kumar, Raktim Gogoi, Anupam Lal Das (for AP & J Chambers), Meenakshi Arora, Joseph Pookkatt, Sanjib Sen (for AP & J Chambers), Sumita Hazarika, Partha Sil for the Appellant. F Indira Jaisingh, ASG, Dr. AM. Singvi, Harish N. Salve, Milanka Chaudhary, Sarojanand Jha, Abhishek Sharma, Rook Ray, Dharmendra Kumar Sinha, Prateek Jain, Balaji G Subramanian, Sushma Suri, Atul Nanda, Rameeza Hakeem (for Law Associates & Co.), Amar Dave, Ashish Jha, Farid Karachiwala, Meenakshi Chatterjee (for "Coac", Harish Beeran, R.S. Jena for the Respodents. H The Judgment of the Court was delivered by CONSUMER ONLINE FOUNDATION v. UNION OF INDIA & ORS. 925 A. K. PATNAIK, J. 1. Application for permission to file A SLP in SLP[C] No.1.1799/2011 [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 lev.y of development fees on the embarking passengers by the lessees of the Airports Authority of India at the Indira Gandhi International C Airport, New Delhi and the Chhatrapati Shivaji International Airport, Mumbai. B Relevant Facts:

#4. The Airports Authority of India Act, 1994 (for short 'the D 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 E (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 F 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 G 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'}. H 926 SUPREME COURT REPORTS [2011] 5 S.C.R. A 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 B 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 c 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 D 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 M IAL at the Mumbai Airport at the rate of Rs.100/- per departing E 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. F 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 H provided in Section 22A of the Act before and after its G I CONSUMER ONLINE FOUNDATION v. UNION OF INDIA & ORS. [A.K. PATNAIK, J.] 927 amendment by the 2008 Act, the levy and collection of A 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 B 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 C 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 D 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 E 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 F 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 G 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, H '~ 928 SUPREME COURT REPORTS [2011) 5 S.C.R.