SUPREME COURT RESERVES JUDGMENT ON THE ISSUE AS TO WHETHER AIRPORTS ECONOMIC REGULATORY AUTHORITY CAN APPEAL TO SUPREME COURT AGAINST THE TDSAT ORDER?
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BACKGROUND
The Present Petition was heard by a 3 Judge Bench led by CJI DY Chandrachud comprising of Justice JB Pardiwala and Justice Manoj Misra on a challenge made to the orders by Telecom Disputes Settlement and Appellate Tribunal (TDSAT), which held that Airports Economic Regulatory Authority (AERA) do not possess the authority to impose tariffs on Ground Handling Services (GHS) and Cargo Handling Services (CHS). Herein, the Supreme Court faced significant challenges on two fronts, firstly being the jurisdictional front i.e., whether an appeal can be maintained in the Supreme Court over the decision of TDSAT passed under Section 18 of the AERA, 2008; and secondly, being the substantive law i.e., whether TDSAT was correct in holding the incapacity of AERA to impose tariffs on GHA and CHS which would otherwise would go beyond their authority.
KEY ASPECTS
In this case, various key considerations were made by the and the same is highlighted as follows:
Firstly, while the tribunal had held previously that the GHS and CHS can be classified into 'Non-Aeronautical Services' under the AERA Act, 2008, it was also held previously that the AERA lacks any authority for the imposition of tariffs on such services. Herein, the Court primarily considered the questions as to whether the AERA can maintain an appeal against the order passed by TDSAT, under §18 of the AERA Act, that specified that appeals may be allowed to TDSAT for the disputed outlines under §17(a) of the relevant Act. §17(a) on the other hand, covers those disputes that arise between the service providers or between a service provider and the consumers.
Secondly, while the Airport Companies, i.e., DIAL & MIAL contended upon the inability of an appeal of AERA, as the issue pertained to contractual obligations prior to the AERA Act, AERA, on the other hand, argued and gave emphasis on the protection of public interest, ensuring competition among individuals, and regulation of tariffs.
Herein, it was mentioned by the bench that it would deliver separate judgments with regard to the issues of maintainability and the substantive law questions. Additionally, it was highlighted that, though DIAL entered into contracts in the year 2006, with the Government for Airport Management, permitting them to set the non-aeronautical charges. However, it was mentioned that the AERA issued such communications that asserted the GHS and CHS to be non-aeronautical when provided by them, but subsequently was aeronautical when contracted out.
Though TDSAT observed that both GHS and CHS remain to be non-aeronautical services, upholding the earlier agreements entered into, and denying the AERA's Jurisdiction over the issue of tariff, it was finally concluded by the Hon'ble Supreme Court that, the AERA Act does not override the prior agreements made, and thus maintains the concessions that have been granted by the Government.
With regard to the Jurisdictional aspect, the counsels appearing for the Respondents (DAIL & MIAL) challenged the authority of the AERA to appeal before the Apex Court. It was alleged that the Agreement entered into by government with the private companies (Respondents) pertains to contractual arrangement governed by AERA Act 2008. Thus, this arrangement is devoid of reflecting any 'public interest'. Contrariwise, counsel appearing for AERA recapitulate the objective of AREA as a authority to exist. It was therefore highlighted that AERA exist, inter alia, to create a level playing field between businesses, encouraging investment, and imposing tariffs. All of this aims at protecting public interest.
CONCLUSION
Therefore, considering the above points, the Tribunal affirmed the conclusion that, the Ground Handling Services (GHS) and Cargo Handling Services (CHS) are non-aeronautical services, and are thus considered to be outside the perspective of AERA's tariff regulation given under the AERA Act, 2008. Furthermore, it was ruled that AERA cannot regulate such services, thus pointing out at the importance of existing contractual agreements between the Government and the Airport Operators like Delhi International Airport Limited and Mumbai International Airport Limited. Thus, the appeal jurisdiction of AERA over GHS and CHS Tariffs emphasized the necessity of respecting the prior agreements.
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WRITTEN BY: THANUJA ARAVINDAN
GUIDED BY: ADVOCATE ANIK
