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

- **Citation:** 2024 INSC 791
- **Court:** Supreme Court of India
- **Decided:** 2024-10-18
- **Case number:** Civil Appeal Nos. 3098-3099 of 2023
- **Bench:** Dr Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/airports-economic-regulatory-authority-of-india-v-delhi-international-airport-37241
- **Pages:** 44

## Headnote

Whether Airports Economic Regulatory Authority (AERA) has a
right to contest an appeal against its order determining tariff for
aeronautical services before Telecom Disputes Settlement and
Appellate Tribunal (TDSAT), and then consequently prefer an appeal
against the order of TDSAT before this Court under Section 31 of
the Airport Economic Regulatory Authority Act, 2008; and Even if
AERA does not have a right to contest an appeal against its order
determining tariff for aeronautical services before TDSAT, does it
have a right to prefer an appeal against the order of TDSAT before
this Court in terms of Section 31 of the AERA Act.
Headnotes†
Judicial Authority or quasi-judicial Authority - Whether an
Authority can be impleaded in an appeal against its order if
the order was issued solely in exercise of its "adjudicatory
function":
Held: An authority (either a judicial or quasi-judicial authority) must
not be impleaded in an appeal against its order if the order was
issued solely in exercise of its "adjudicatory function". [Para 33 (a)]
Judicial Authority or quasi-judicial Authority - Whether an
Authority can be impleaded as a respondent in the appeal
against its order if it was issued in exercise of its regulatory
role:
Held: An authority must be impleaded as a respondent in the
appeal against its order if it was issued in exercise of its regulatory
role since the authority would have a vital interest in ensuring the
protection of public interest. [Para 33(b)]
* Author
[2024] 10 S.C.R.
1405
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
Judicial Authority or quasi-judicial Authority - Whether an
Authority can be impleaded as a respondent in the appeal
against its order where its presence is necessary:
Held: An authority may be impleaded as a respondent in the
appeal against its order where its presence is necessary for the
effective adjudication of the appeal in view of its domain expertise.
[Para 33(c)]
Airport Economic Regulatory Authority of India Act, 2008 -
Whether AERA in exercise of its power under Section 13(1)
(a) of the AERA Act is discharging an adjudicatory function:
Held: (a) It cannot be concluded that AERA is performing an
adjudicatory function merely because Section 13(1)(a) uses the
phrase "determine" with respect to tariff - This would amount
to a formalistic interpretation - The Court ought to make an
assessment by undertaking a holistic analysis; (b) Section 13(1)
(a) lays down seven factors which must be considered by AERA
for determining the tariff of aeronautical services - It is settled
that the function can be regarded as legislative even if objective
guidelines are prescribed for the exercise of the function - Further,
the provision only prescribes broad guidelines that AERA must
"take into consideration" - AERA still has sufficient discretion to
adapt to circumstances and various concerns while determining
tariff - The Act does not prescribe the weightage that must be
provided to each of the factors - That is well within the discretion
of AERA - This is also evident from Section 13(1)(a)(viii) which
provides that AERA may consider "any other factor which may be
relevant for the purposes of the Act"; (c) The factors which are
required to be considered by AERA indicate the underlying policy
considerations of the assessment - The factors, inter alia, include
the cost of efficiency and economic and viable operation of major
airports; (d) Section 13(1A) requires that AERA be consulted
regarding tariff and tariff structures which are proposed to be
incorporated in bidding documents - This provision elucidates that
even if AERA does not in a strict sense, "determine" tariff in terms
of Section 13(1)(a), it will always be interested in the economic
viability of airports and in that sense is a regulator of tariff - Thus,
the considerations of AERA while determining tariff will be those of
a regulator concerned with public and economic interests, which
are purely non-

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[2024] 10 S.C.R. 1404 : 2024 INSC 791
Airports Economic Regulatory Authority of India
v.
Delhi International Airport Ltd. & Ors.
(Civil Appeal Nos. 3098-3099 of 2023)
18 October 2024
[Dr Dhananjaya Y Chandrachud,* CJI,
J.B. Pardiwala and Manoj Misra, JJ.]
Issue for Consideration
Whether Airports Economic Regulatory Authority (AERA) has a
right to contest an appeal against its order determining tariff for
aeronautical services before Telecom Disputes Settlement and
Appellate Tribunal (TDSAT), and then consequently prefer an appeal
against the order of TDSAT before this Court under Section 31 of
the Airport Economic Regulatory Authority Act, 2008; and Even if
AERA does not have a right to contest an appeal against its order
determining tariff for aeronautical services before TDSAT, does it
have a right to prefer an appeal against the order of TDSAT before
this Court in terms of Section 31 of the AERA Act.
Headnotes†
Judicial Authority or quasi-judicial Authority - Whether an
Authority can be impleaded in an appeal against its order if
the order was issued solely in exercise of its "adjudicatory
function":
Held: An authority (either a judicial or quasi-judicial authority) must
not be impleaded in an appeal against its order if the order was
issued solely in exercise of its "adjudicatory function". [Para 33 (a)]
Judicial Authority or quasi-judicial Authority - Whether an
Authority can be impleaded as a respondent in the appeal
against its order if it was issued in exercise of its regulatory
role:
Held: An authority must be impleaded as a respondent in the
appeal against its order if it was issued in exercise of its regulatory
role since the authority would have a vital interest in ensuring the
protection of public interest. [Para 33(b)]
* Author
[2024] 10 S.C.R.
1405
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
Judicial Authority or quasi-judicial Authority - Whether an
Authority can be impleaded as a respondent in the appeal
against its order where its presence is necessary:
Held: An authority may be impleaded as a respondent in the
appeal against its order where its presence is necessary for the
effective adjudication of the appeal in view of its domain expertise.
[Para 33(c)]
Airport Economic Regulatory Authority of India Act, 2008 -
Whether AERA in exercise of its power under Section 13(1)
(a) of the AERA Act is discharging an adjudicatory function:
Held: (a) It cannot be concluded that AERA is performing an
adjudicatory function merely because Section 13(1)(a) uses the
phrase "determine" with respect to tariff - This would amount
to a formalistic interpretation - The Court ought to make an
assessment by undertaking a holistic analysis; (b) Section 13(1)
(a) lays down seven factors which must be considered by AERA
for determining the tariff of aeronautical services - It is settled
that the function can be regarded as legislative even if objective
guidelines are prescribed for the exercise of the function - Further,
the provision only prescribes broad guidelines that AERA must
"take into consideration" - AERA still has sufficient discretion to
adapt to circumstances and various concerns while determining
tariff - The Act does not prescribe the weightage that must be
provided to each of the factors - That is well within the discretion
of AERA - This is also evident from Section 13(1)(a)(viii) which
provides that AERA may consider "any other factor which may be
relevant for the purposes of the Act"; (c) The factors which are
required to be considered by AERA indicate the underlying policy
considerations of the assessment - The factors, inter alia, include
the cost of efficiency and economic and viable operation of major
airports; (d) Section 13(1A) requires that AERA be consulted
regarding tariff and tariff structures which are proposed to be
incorporated in bidding documents - This provision elucidates that
even if AERA does not in a strict sense, "determine" tariff in terms
of Section 13(1)(a), it will always be interested in the economic
viability of airports and in that sense is a regulator of tariff - Thus,
the considerations of AERA while determining tariff will be those of
a regulator concerned with public and economic interests, which
are purely non-adjudicatory considerations; (e) Section 13(2)
1406
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by enabling AERA to amend the tariff structure even before the
completion of the prescribed five year period in "public interest"
is clearly indicative of its regulatory role in the regulatory sphere
entrusted to it; (f) The "overarching" limitations placed on AERA's
functions by Section 13(3) resemble the grounds for reasonable
restrictions prescribed by Article 19 of the Constitution - These
grounds are limitations on the broad policy considerations that
AERA undertakes while determining tariffs - Thus, on analysis
of the statutory provisions, it can be reasonably concluded that
AERA is performing a regulatory function while determining tariff
under Section 13(1)(a) of the AERA Act. [Para 58]
Airport Economic Regulatory Authority of India Act, 2008 -
Whether AERA is a necessary party in the appeal against its
tariff order before TDSAT and whether it can be impleaded
as a respondent:
Held: 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 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. [Para 63]
Airport Economic Regulatory Authority of India Act, 2008 -
s. 31 - Power of AERA to file an appeal against the order of
TDSAT before this Court:
Held: 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 - There
are three ways in which provisions dealing with statutory appeal
[2024] 10 S.C.R.
1407
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
are 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 Act96, the Major
Port Authorities Act 2021, the Securities and Exchange Board of
India Act 1992 and the Pension Fund Regulatory and Development
Authority Act 2012 - The third category is where the statute confers
'any party' with the right to file an appeal as under the Companies
Act 2013 - 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, it is a necessary
party in the appeals against the tariff orders issued by it - The
appeals filed by AERA against orders of TDSAT under Section 31
of the AERA Act are maintainable. [Paras 66, 67]
Case Law Cited
Bar Council of Maharashtra v. MV Dabholkar [1976] 1 SCR 306 :
(1975) 2 SCC 702; Express Newspaper Pvt. Ltd. v. Union of India
[1959] 1 SCR 12 : 1958 SCC OnLine SC 23; AK Kraipak v. Union
of India [1970] 1 SCR 457 : (1969) 2 SCC 262; Maneka Gandhi v.
Union of India [1978] 2 SCR 621 : AIR 1978 SC 597; PTC India
v. Central Electricity Regulatory Commission [2010] 3 SCR 609 :
(2010) 4 SCC 603 - followed.
BSES Rajdhani Power Limited v. Delhi Electricity Regulatory
Commission [2022] 14 SCR 790 : (2023) 4 SCC 788; Sitaram
Sugar Co. Ltd v. Union of India [1990] 1 SCR 909 : (1990) 3 SCC
223; GRIDCO v. Western Electricity Supply Company of Orissa
Limited, 2023 SCC Online 1249; Savitri Devi v. District Jugde,
Gorakhpur [1999] 1 SCR 725 : (1999) 2 SCC 577; Udit Narain
Singh Malpaharia v. Additional Member Board of Revenue [1963]
Supp. 1 SCR 676 : AIR 1963 SC 786; Jogendrasinhji Vijaysinghji
v. State of Gujarat [2015] 6 SCR 504 : (2015) 9 SCC 1; Syed
Yakoob v. KS Radhakrishnan [1964] 5 SCR 64 : 1963 SCC
OnLine SC 24; State Transport Authority Tribunal and Regional
Transport Authority, Meerut v. Mohd. Lucman Shariff, C.A. No.
878 of 1963; Competition Commission of India v. Steel Authority
of India [2010] 11 SCR 112 : (2010) 10 SCC 744; Brahm Dutt v.
Union of India, AIR 2005 SC 730; Vidus Impex & Traders Ltd. v.
Tosh Apartments Pvt. Ltd. [2012] 10 SCR 307 : (2012) 8 SCC
384; Thomson Press (India) Ltd. v. Nanak Builders & Investors
1408
[2024] 10 S.C.R.
Digital Supreme Court Reports
P. Ltd. [2013] 2 SCR 74 : (2013) 5 SCC 397; Ramesh Hirachand
Kundanmal v. Municipal Corporation of Greater Bombay [1992]
2 SCR 1 : (1992) 2 SCC 524 (14); Karthuri v. Uyyamperumal
[2005] 3 SCR 864 : (2005) 6 SCC 733; Nakkuda Ali v. MF De S
Jayaratne [1951] AC 66; Province of Bombay v. Khushaldas S
Advani [1950] SCR 621; Shivji Nathubhai v. Union of India [1960] 2
SCR 775 : AIR 1960 SC 606; Indian National Congress (I) [2002]
3 SCR 1040 : (2002) 5 SCC 685; SL Kapoor v. Jagmohan [1981]
1 SCR 746 : AIR 1981 SC 136; Union of India v. Cynamide India
Ltd. [1987] 2 SCR 841 : (1987) 2 SCC 729; Saraswati Industrial
Syndicate Ltd. v. Union of India [1975] 1 SCR 956 : (1974) 2
SCC 630 - referred to.
Md. Omer v. S Noorudin, AIR 1952 Bom 165; Jindal Therma Power
Company Ltd. v. Karnataka Power Transmission Corporation Ltd.,
2004 SCC OnLine Kar 204 - referred to.
The King v. Inspector of Leman Street Police Station, Ex Parte
Venicoff (1920) 3 K.B. 72; R v. ex p London Electricity Joint
Committee Co. (1920) Ltd. (1924) 1 KB 171 (CA); Ridge v. Baldwin
[1964] A.C 40 - referred to.
Books and Periodicals Cited
Competition Commission of India (General) Regulations 2009;
Regulation 25(1); Wade & Forsyth's Administrative Law (12th ed.
Oxford University Press) 393; MP Jain & SN Jain, "Principles of
Administrative Law" (7th ed. Vol I, LexisNexis) 352.
List of Acts
Airports Economic Regulatory Authority of India Act 2008; Airports
Economic Regulatory Authority of India (Terms and Conditions for
Determination of Tariff for Services Provided for Cargo Facility,
Ground Handling and Supply of Fuel to the Aircraft) Guidelines
2011; Competition Act 2002; Advocates Act 1961; Electricity Act
2003; Companies Act 2013.
List of Keywords
Airports Economic Regulatory Authority (AERA); Determining
tariff for aeronautical services; Section 31 of the Airport Economic
Regulatory Authority Act, 2008; Judicial Authority; Quasi-judicial
Authority; Adjudicatory function; Regulatory role; Protection of
public interest; Necessary Party.
[2024] 10 S.C.R.
1409
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3098-3099
of 2023
From the Judgment and Order dated 13.01.2023 of the Telecom
Disputes Settlement & Appellate Tribunal, New Delhi in AERA
Appeal No. 07 and 03 of 2021
With
Civil Appeal Nos. 1798-1799 and 1806 of 2021, Civil Appeal Nos.
10668-10670 of 2024, Civil Appeal Nos. 3697-3698 of 2022, Civil
Appeal Nos. 8217 and 7767 of 2023, Civil Appeal Nos. 1069110692, 393, 10678 and 10659 of 2024
Appearances for Parties
R. Venkataramani, AGI, Tushar Mehta, Solicitor General, N.
Venkataraman, A.S.G., Prashanto Chandra, Sajan Poovayya, K.K.
Venugopal, Dr. A.M.Singhvi, Arvind Datar, Maninder Singh, Abhishek
Manu Singhvi, Sr. Advs., Buddy Ranganadhan, Ms. Nishtha Kumar,
Prantar Basu Choudhury, Shrom Sethi, Sahil Tagotra, Kartikay
Agarwal, Ms. Darshita Sethia, Rashi Goswami, Ms. Yashodhara
Burmon Roy, Kunal Tandon, Ms. Shweta Bharti, Kr. Shashank
Shekhar, Sachin Sharma, Anil Kr Gulati, Naman Sharma, Abhishek
Kumar, Ms. Nur Tandon, Kunal Jindia, Nishant Anand, Ritesh Kumar,
K.P.S. Kohli, Kartik Mittal, Dheerendra Singh Bisht, Ms. Yashasvini
Chandra, Ms. Shalini Prasad, Mahesh Agarwal, Ankur Saigal, Ms.
Aanchal Mullick, Ms. Sanjanthi Sajan Poovayya, Manu Kulkarni, Ms.
Srishti Widge, Raksha Agarwal, Abhishek Kakker, E. C. Agrawala,
Amit Pawan, Hemant Sahai, Rishi Agrawala, Ms. Amrita Narayan,
Milanka Chaudhary, Ankur Talwar, Manu Krishnan, Chirag Nayak,
Ms. Naina Dubey, Ashwin Rakesh, Udai Khanna, Ms. Swet Shikha,
Saurobroto Dutta, Ms. Shwet Shikha, Rishubh Kapoor, Madhav
Sharma, Raghav Bherwani, Ms. Anwesha Padhi, Mohit D. Ram, Ms.
Nayan Gupta, Sarul Jain, Ms. Aditi Gupta, Ms. Amita Singh Kalkal,
Nikilesh Ramachandran, Ms. Neelam Rathore, Lovekesh Aggarwal,
Shubham Seth, Ms. Ayushi Yadav, Rajesh Singh Chauhan, M/s. M.
V. Kini & Associates, A P Singh, Ms. Aakanksha Das, Tavinder Sidhu,
Advs. for the appearing parties.
1410
[2024] 10 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI
INDEX*
A.
Statutory Background ...................................................
4
B.
Submissions ..................................................................
11
C.
Issues .............................................................................
14
D.
Analysis .......................................................................... 15
i.
Authorities exercising 'adjudicatory functions'
cannot defend their orders in appeal .................
15
ii.
Necessary and proper parties in regulatory
proceedings ...........................................................
21
iii.
The test of quasi-judicial functions: A
misnomer ................................................................
29
iv.
The test for determining an 'adjudicatory
function': Exploring Sitaram Sugar .....................
36
v.
Whether tariff determination is an adjudicatory
function: PTC and GRIDCO ..................................
39
vi.
Tariff determination for aeronautical services
by AERA is a regulatory function ........................
43
vii. Interpretation of Sections 18 and 31 of the
AERA Act ................................................................
49
E.
Conclusion ..................................................................... 53
1.
Airports Economic Regulatory Authority1 has instituted proceedings
under Section 31 of the Airport Economic Regulatory Authority of
India Act 20082 for challenging the judgments of the Telecom Disputes
Settlement and Appellate Tribunal.3 TDSAT is the Appellate Tribunal
for the purposes of the AERA Act and it has the competence to hear
appeals against orders of AERA. The respondents have raised a
* Ed. Note: Pagination as per the original Judgment.
1
"AERA"
2
"AERA Act"
3
"TDSAT"
[2024] 10 S.C.R.
1411
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
preliminary objection to the maintainability of the appeals on the
ground that AERA, which is a quasi-judicial body, cannot file an
appeal against the judgment of TDSAT. This judgment disposes of
the preliminary issue of whether the appeals filed by AERA under
Section 31 of the AERA Act are maintainable.
A.
Statutory Background
2.
The long title of the AERA Act provides that it is an Act to establish
AERA and to a) regulate tariff and other charges for aeronautical
services rendered at airports; (b) monitor performance standards of
airports; and (c) for other incidental and connected matters.4 The
Act applies to all airports where air transport services are operated
or are intended to be operated, other than airports in the control of
the Armed Forces or paramilitary forces of the Union.5 The Act also
applies to all private and leased airports,6 all civil enclaves7 and all
major airports.8
3.
Section 3 of the AERA Act stipulates that the Central Government
must, by a notification, establish AERA within three months from the
date of commencement of the Act. By a notification dated 12 May
2009, the Central Government established AERA. Section 13 of the
AERA Act prescribes the functions of AERA. AERA must perform
the following functions in respect of major airports:
a.
Determine tariff for aeronautical services [Section 13(1)(a)];
b.
Determine the amount of development fees [Section 13(1)(b)];
c.
Determine the passengers service fee levied under Rule 88
of the Aircraft Rules 1937 notified under the Aircraft Act 1934
[Section 13(1)(c)];
d.
Monitor the performance standards relating to quality, continuity
and reliability of service as specified by the Central Government
or any other authority authorised by it [Section 13(1)(d)];
4
"An Act to provide for the establishment of an Airports Economic Regulatory Authority to regulate
tariff and other charges for the aeronautical services rendered at airports and to monitor performance
standards of airports and for matters connected therewith or incidental thereto."
5
AERA Act; Section 1(3)(a)
6
AERA Act; Section 1(3)(b)
7
AERA Act; Section 1(3)(c)
8
AERA Act; Section 1(3)(d)
1412
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e.
Call for information necessary to determine the tariff [Section
13(1)(e)]; and
f.
Perform such other functions relating to tariff which may be
entrusted to it by the Central Government or which may be
necessary to carry out the provisions of the Act [Section 13(1)(f)].
4.
Section 13(1)(a) also prescribes the factors which AERA must take
into consideration to "determine" tariff. The following are the seven
factors provided by the provision:
a.
The capital expenditure incurred and timely investment in
improvement of airport facilities;
b.
The service provided, its quality and other relevant factors;
c.
The cost of improving efficiency;
d.
Economic and viable operation of major airports;
e.
Revenue received from services other than aeronautical
services;
f.
The concession offered by the Central Government in any
agreement or memorandum of understanding or otherwise; and
g.
Any other factor which may be relevant for the purposes of
this Act.
The proviso to Section 13(1)(a) provides that different tariff structures
may be determined for different airports, having regard to all or any
of the considerations stipulated in the provision.
5.
Section 13(2) provides that AERA must determine the tariff once in
five years and may amend the tariff at any time within the five years
in public interest.9 Section 13 (1A) provides that notwithstanding
anything in Clauses (1) and (2) of Section 13, AERA will not
determine the tariff or the structure of tariff or the development fees
if it is incorporated in the bidding document which is the basis for
award of operatorship.10 However, the proviso to Section 13(1A)
requires AERA to be "consulted" in advance regarding the tariff or
9
13(2): "The Authority shall determine the tariff once in every five years and may if so considered
appropriate and in public interest, amend, from time to time during the said period of five years, the tariff
so determined."
10
AERA Act; Section 13(1A)
[2024] 10 S.C.R.
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Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
development fee which is proposed to be included in the bidding
document and such fee is required to be notified in the Official
Gazette.11 Section 13(3) provides that AERA is required to act in
the interest of the sovereignty and integrity of India, the security
of the State, friendly relations with foreign states, public order,
decency or morality while discharging its functions.12 Section 13(4)
provides that AERA while discharging its functions must ensure
transparency by, inter alia, (a) holding due consultations with all
stake-holders with the airport; (b) allowing all stake-holders to make
submissions before it; and (c) making all decisions of the Authority
fully documented and explained.
6.
Section 2(a) defines "aeronautical service" as the service provided
for the following:
a.
For navigation, surveillance and supportive communication for
air traffic management;
b.
For the landing, housing or parking of an aircraft or any other
ground facility offered in connection with aircraft operations at
an airport;
c.
For ground safety services at an airport;
d.
For ground handling services relating to aircraft, passengers
and cargo at an airport;
e.
For the cargo facility at an airport;
f.
For supplying fuel to the aircraft at an airport; and
g.
For stake holder at an airport.
7.
Section 14 confers AERA with the power to call for an information and
conduct investigation regarding the activities of a service provider.
The provision confers it with the power to do the following by an
order in writing:
a.
Call upon the service provider to furnish in writing such
information or explanation relating to its functions to access
the performance of the service provider;
b.
Appoint persons to inquire into the affairs of a service provider;
11
AERA Act; proviso to Section 13(1A)
12
AERA Act; Section 13(3)
1414
[2024] 10 S.C.R.
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c.
Direct the inspection of book of accounts or other documents
of any service provider; and
d.
Issue directions to monitor the performance of service providers.
8.
The service provider is bound to produce all books of account and
documents relating to the subject matter of the inquiry and furnish
such statement or information. Section 15 confers AERA with the
power to issue directions to service providers to discharge its functions
under the Act.13
9.
Section 17 provides that TDSAT established under the Telecom
Regulatory Authority of India Act 1997 will be the Appellate Tribunal for
the purposes of the AERA Act. TDSAT exercises original jurisdiction
and appellate jurisdiction under the Act. Section 17(a) confers
TDSAT with the original jurisdiction to adjudicate any dispute that
arises between (a) service providers; or (b) service providers and
consumers. The proviso to the Clause states that TDSAT can obtain
the opinion of AERA on any matter relating the above disputes.
Section 17(b) confers TDSAT with appellate jurisdiction over "any
direction, decision or order" of AERA.14
13
"15. Power of Authority to issue directions.- The Authority may, for the purpose of discharge of its
functions under this Act, issue, from time to time to the service providers, such directions, as it may
consider necessary."
14
"Appellate Tribunal.- The Telecom Disputes Settlement and Appellate Tribunal established under
section 14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) shall, on and from the
commencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), be the Appellate Tribunal
for the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and
authority conferred on it by or under this Act] to-
(a) adjudicate any dispute-
(i) between two or more service providers;
(ii) between a service provider and a group of consumer:
Provided that the Appellate Tribunal may, if considers appropriate, obtain the opinion of the
Authority on any matter relating to such dispute:
Provided further that nothing in this clause shall apply in respect of matters-
(i) relating to the monopolistic trade practice, restrictive trade practice and unfair trade
practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade
Practices Commission established under sub-section (1) of section 5 of the Monopolies
and Restrictive Trade Practices Act, 1969 (54 of 1969);
(ii) relating to the complaint of an individual consumer maintainable before a Consumer
Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the
National Consumer Redressal Commission established under section 9 of the
Consumer Protection Act, 1986 (68 of 1986);
(iii) Which are within the purview of the Competition Act, 2002 (12 of 2003);
(iv) relating to an order of eviction which is appealable under section 28K of the Airports
Authority of India Act, 1994 (55 of 1994).
(b) hear and dispose of appeal against any direction, decision or order of the Authority under this
Act.
[2024] 10 S.C.R.
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Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
10. Section 18 of the AERA Act deals with the procedure for settlement
of disputes and appeals to the Appellate Tribunal. Sub-sections
(1) and (2) of Section 18 provide that the Central Government, the
State Government, a Local Authority or any person may make an
application for adjudication of a dispute covered by Section 17(a) or
prefer an appeal against the order of AERA. Section 18(4) stipulates
that TDSAT must pass orders after giving the "parties to the dispute
or the appeal" the opportunity of being heard. Section 18(5) provides
that TDSAT must send a copy of the order to the parties to the dispute
or the appeal and the Authority, "as the case may be":
"(5) The Appellate Tribunal shall send a copy of every order
made by it to the parties to the dispute or the appeal and
to the Authority, as the case may be."
(emphasis supplied)
11. In terms of sub-section (6), TDSAT must endeavour to dispose the
application or the appeal within ninety days of the receipt of it. It must
record reasons in writing if it is unable to dispose the application
within the specified period. Sub-section (7) provides that TDSAT may
call for the records relevant to disposing the appeal or application.15
15
"18. Application for settlement of disputes and appeals to Appellate Tribunal.-(1) The Central
Government or a State Government or a local authority or any person may make an application to the
Appellate Tribunal for adjudication of any dispute as referred to in clause (a) of section 17.
(2) The Central Government or a State Government or a local authority or any person aggrieved by any
direction, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal.
(3) Every appeal under sub-section (2) shall be preferred within a period of thirty days from the date on
which a copy of the direction or order or decision made by the Authority is received by the Central
Government or the State Government or the local authority or the aggrieved person and it shall be in
such form, verified in such manner and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of thirty
days if it is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an application under sub-section (1) or an appeal under sub-section (2), the Appellate
Tribunal may, after giving the parties to the dispute or the appeal an opportunity of being heard, pass
such orders thereon as it thinks fit.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the dispute or the
appeal and to the Authority, as the case may be.
(6) The application made under sub-section (1) or the appeal preferred under sub-section (2) shall be
dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the
application or appeal finally within ninety days from the date of receipt of application or appeal, as the
case may be: Provided that where any such application or appeal could not be disposed of within the
said period of ninety days, the Appellate Tribunal shall record its reasons in writing for not disposing
of the application or appeal within that period.
(7) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness, of
any dispute made in any application under sub-section (1), or of any direction or order or decision of
the Authority referred to in the appeal preferred under sub-section (2), on its own motion or otherwise,
call for the records relevant to disposing of such application or appeal and make such orders as it
thinks fit."
1416
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12. Section 31(1) provides that notwithstanding anything contained in
the Code of Civil Procedure 190816 or any other law, an appeal will
lie against the order of the Tribunal to the Supreme Court on one or
more of the grounds stipulated in Section 100 of CPC.17
B.
Submissions
13. Mr K K Venugopal, Dr Abhishek Manu Singhvi, Mr Arvind Datar
and Mr Prashanto Chandra Sen, Senior Counsel, and Ms Neelam
Rathore, counsel appeared for the respondents. They submitted that
the appeal filed by AERA is not maintainable for the following reasons:
a.
AERA which is a tariff fixing authority, cannot be an "aggrieved
party" at any stage of the proceedings. Since it cannot file
an appeal before TDSAT, it also cannot file an appeal before
this Court under Section 31 of the Act assailing the order of
TDSAT. Section 18(2) provides that "any person" aggrieved
by any direction, decision or order made by the Authority may
prefer an appeal to TDSAT. AERA will not be covered by the
expression "any person" since that would amount to AERA
challenging its own order;
b.
AERA cannot defend its own actions in the appeal against its
order since tariff determination is a quasi-judicial function:
i.
Numerous judgments of this Court have held that tariff
determination is a quasi-judicial exercise (see PTC India
v. Central Electricity Regulatory Commission,18 BSES
Rajdhani Power Limited v. Delhi Electricity Regulatory
Commission,19 Sitaram Sugar Co. Ltd v. Union of India20
and GRIDCO v. Western Electricity Supply Company
of Orissa Limited21);
ii.
The procedure followed by AERA while fixing tariff
elucidates that it is a quasi-judicial exercise. Section 13(4)
16
"CPC"
17
"31. Appeal to Supreme Court.-(1) Notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908) or in any other law, an appeal shall lie against any order, not being an interlocutory
order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section
100 of that Code."
18
[2010] 3 SCR 609 : (2010) 4 SCC 603
19
[2022] 14 SCR 790 : (2023) 4 SCC 788
20
[1990] 1 SCR 909 : (1990) 3 SCC 223
21
2023 SCC Online 1249
[2024] 10 S.C.R.
1417
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
requires AERA to follow principles of natural justice before
determining the tariff of aeronautical services;
c.
The AERA Act does not expressly provide that AERA must
be impleaded as a respondent to the appeal against its order
before TDSAT;
d.
The interests of affected parties will be safeguarded even if
AERA does not file an appeal against the order of TDSAT under
Section 31. Section 18(2) permits any aggrieved person or even
the Central Government who may act as a parens patriae to
prefer an appeal against the order of AERA, and by extension
the order of TDSAT;
e.
Section 31 does not expressly empower AERA to file an
appeal against the order of TDSAT, unlike Section 53T of
the Competition Act 200222 which empowers the Competition
Commission to prefer an appeal before the Supreme Court
against an order of the Appellate Tribunal;
f.
Section 18(5) provides that TDSAT must send a copy of all
its orders to (a) parties to the dispute or appeal; and (b) the
Authority. The provision by specifying the Authority separately
from the parties to the dispute or appeal clarifies that it cannot
be a party to the dispute or appeal, and consequently cannot
prefer an appeal; and
g.
TDSAT or this Court may have to remand matters back to AERA
for redetermination of tariff. AERA cannot be both a contesting
party and also redetermine tariff. It would result in the possible
operation of bias.
14. Mr Venkataramani, Attorney General for India and Mr Tushar Mehta,
Solicitor General appearing for the Union Government, and Mr N
Venkataraman, Additional Solicitor General appearing for AERA made
the following submissions:
a.
An association representing the passengers may not necessarily
prefer appeals in every case. While stakeholders may be allowed
to make submissions before AERA in terms of Section 13(4),
there is no statutory obligation on them to contest disputes
22
"Competition Act"
1418
[2024] 10 S.C.R.
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or maintain appeals. AERA is concerned with the outcome of
the decision by TDSAT on, inter alia, 'tariff determination' in
its own interest as a regulatory body and in the interest of the
general public;
b.
AERA will always be a contesting respondent when an appeal
against its order or direction is filed before TDSAT. It will be
covered by the expression "parties to the appeal" in Section
18(5). However, it will not be a party to the dispute. It is to
cover such situations that the "Authority" has been separately
referred. This is evident from the expression "as the case may
be" in the provision;
c.
AERA is not a quasi-judicial authority. It is a regulator which
performs multiple functions other than determination of tariff;
d.
Even assuming that AERA is a quasi-judicial authority, the
embargo that applies to judicial authorities, that they cannot
contest an appeal against their own orders, need not always
apply to quasi-judicial authorities;
e.
A comparison cannot be made with Section 53T of the
Competition Act. Section 53T identifies the parties that can file
an appeal, as opposed to Section 31 of the AERA Act which
only mandates that "an appeal shall lie against any order, not
being an interlocutory order of the Appellate Tribunal to the
Supreme Court"; and
f.
Institutional bias is not recognised in Indian jurisprudence. An
institution or authority is independent of its officers who act
under it.
C.
Issues
15. The following issues arise for the consideration of this Court:
a.
Whether AERA has a right to contest an appeal against its order
determining tariff for aeronautical services before TDSAT, and
then consequently prefer an appeal against the order of TDSAT
before this Court under Section 31 of the AERA Act; and
b.
Even if AERA does not have a right to contest an appeal
against its order determining tariff for aeronautical services
before TDSAT, does it have a right to prefer an appeal against
[2024] 10 S.C.R.
1419
Airports Economic Regulatory Authority of India v.
Delhi International Airport Ltd. & Ors.
the order of TDSAT before this Court in terms of Section 31
of the AERA Act.
D.
Analysis
i.
Authorities exercising 'adjudicatory functions' cannot defend
their orders in appeal
16. The respondents referred to judgments of this Court and of various
High Courts for the proposition that statutory authorities exercising
quasi-judicial functions cannot defend their orders in appeal. Before
we proceed to determine if AERA is a quasi-judicial authority, it is
necessary that we first clarify the contours of this proposition.
17. The judicial principle that a judicial or quasi-judicial authority must not
be impleaded as a party to an appeal against its order is premised
on two reasons, both rooted in constitutional philosophy. The first
reason is that with the impleadment of the judicial or quasi-judicial
authorities as respondents, they will be required to justifytheir decision
before the Appellate Court. This is contrary to the established principle
that Judges only speak through their judgments. Any dilution of this
principle would lead to a situation where every judicial authority would
be called upon to justify their decisions in the Court of appeal. This
would break down the entire edifice of the judicial system.
18. In Savitri Devi v. District Jugde, Gorakhpur,23 a civil suit for
maintenance was filed in the Court of the Munsif, Gorakhpur. The
plaintiff filed a revision in the Court of the District Judge, Gorakhpur
which was dismissed. The order of the District Judge was challenged
in a writ petition before the High Court which was also dismissed.
A Special Leave Petition was instituted assailing the order of the
High Court. In the writ petition before the High Court and the Special
Leave Petition before this Court, the District Judge, Gorakhpur and
the 4th Additional Civil Judge (Junior Division) were impleaded as
respondents and contesting respondents respectively. A three-Judge
Bench of this Court deprecated the practice of impleading judicial
officers who had disposed of "the matter in a civil proceeding":
"14. We do not approve of the course adopted by the
petitioner which would cause unnecessary disturbance to
23
[1999] 1 SCR 725 : (1999) 2 SCC 577
1420
[2024] 10 S.C.R.
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the functions of the judicial officers concerned. They cannot
be in any way equated to the officials of the Government. It
is high time that the practice of impleading judicial officers
disposing of civil proceedings as parties to writ petitions
under Article 226 of the Constitution of India or special
leave petitions under Article 136 of the Constitution of India
was stopped. We are strongly deprecating such a practice."
19. In Md. Omer v. S Noorudin,24 an appeal was preferred against
an order of the Registrar of Trade Marks before the High Court of
Bombay. The Solicitor General of India put an appearance for the
Registrar. The Solicitor General submitted that "he appeared to
help the Court by pointing out certain errors in the judgment of the
lower Court." The Division Bench of the High Court of Judicature
at Bombay held that though there are certain cases in which the
Registrar should appear, this was not one such case. Chief Justice
Chagla, writing for the Division Bench observed that the Solicitor
General made a startling proposition by which the Judge of the Court
of first instance appears before the Court of second appeal to argue
that his judgment was correct and the judgment of the Court of the
first appeal was wrong. The Bench observed that: (a) there may be
cases in which the Registrar could be a contesting respondent; and
(b) the Registrar acting as a Court of first instance cannot appear
before the second appellate Court "merely" to point the errors in the
judgment of the Court of first appeal.25
20. The second reason for this principle is that the impleadment of
the judicial authority as a respondent would contravene one of the
24
AIR 1952 Bom 165
25
"14. [...] I have never heard of a Judge of first instance briefing counsel in a Court of appeal in order
to point out that the judgment of the lower appellate Court was wrong and his judgment was right. If
this were the true principle, then every time we hear a second appeal we should look to being guided
by the Judge of the trial Court appearing by counsel and telling us what the mistakes in the judgment
of the lower Court are. We take it that this Court is sufficiently competent to find out for itself, with
the guidance of the counsel of parties, as to what errors, if any, have been committed by the lower
Court. We, therefore, think that it was entirely wrong on the part of the Registrar in this case to have
appeared merely for the purpose of elucidating his own judgment and pointing out the errors in
the judgment of the Court below. That is not the proper function of the Court of first instance,
and in this case the Registrar is nothing else except the Court of first instance. [...] But, as I said before,
this Court neither needs illumination nor guidance from the Judge of the first instance as to what are
the errors in the judgment of the lower appellate Court." [emphasis supplied]; Also see the judgments
of the Delhi High Court in Union Public Service Commission v. Shiv Shambhu25 and SBI v.