Delhi High Court
Bangalore International Airport ... vs Union Of India And Ors on 1 September, 2011
Author: Rajiv Sahai Endlaw
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st September, 2011
+ W.P.(C) No. 6376/2011
BANGALORE INTERNATIONAL AIRPORT LTD ..... Petitioner
Through: Mr. Gopal Subramaniyam and
Mr. Rajiv Nayyar, Sr. Advocates and Mr. Ankur Chawla,
Ms. Pallavi Langar and Mr.Shiv Shankar, Advs.
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Ms. Anjana Gosain and Ms. Koplin Kaur, Advs.
for R-1.
Mr. Atul Nanda, Sr. Advocate with Ms. Rameeza Hakeem,
Mr. Naresh Kaushik, Mr. Rajat Brar and Mr. Ankit Jain, Advs. for
R-2.
Captain Kapil Chaudhari, Legal Director of R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The challenge in the writ petition is to the order dated 11 th May, 2011
of the Appellate Tribunal under the Airports Economic Regulatory Authority
of India Act, 2008, dismissing the Appeal No. 2/2011 preferred by the
petitioner as not maintainable.
2. The said appeal had been preferred by the petitioner against the Order
No.13/2010-11 dated 12th January, 2011 passed by Airport Economic
Regulatory Authority constituted under the said Act.
3. The senior counsel for the petitioner has contended that Section 17(b)
and Section 18 of the Act permit appeals against "any"
order/direction/decision of the Authority and thus the Appellate Tribunal is in
error in holding the appeal to be not maintainable.
4. However, the Order No.13/2010-11 dated 12th January, 2011 is but a
stage/step in the process of ultimate fixation of tariff by the Authority. Upon
it being put to the senior counsel for the petitioner as to how the challenge to
the successive stages in the decision making process can be entertained and
which if entertained would not allow the final decision to be made and that
the challenge if any has to be to the final decision only, the senior counsel for
the petitioner has fairly stated that the petitioner would be satisfied if it is
clarified by this Court that all pleas as taken by the petitioner in the challenge
to the Order 13/2010-11 dated 12th January, 2011 would be available to the
petitioner against the challenge if any required to the final order or to any
subsequent order. It is further informed that in pursuance to the order No.
13/2010-11 dated 12th January, 2011, an Order No. 14 has already been
passed by the Authority and which is subject matter of the challenge before
the Appellate Tribunal in appeal No.7 of 2011 which is being considered by
the Appellate Tribunal.
5. The senior counsel for the respondent appearing on advance notice has
stated that in fact it was so observed by the Appellate Tribunal also while
disposing of the appeal No. 2/2011 as not maintainable vide order dated 11 th
May, 2011 (supra). He has also fairly stated that he has no objection to it
being clarified that the dismissal of the appeal No. 2/2011 would not be
construed as the grounds/pleas taken therein being not available to the
petitioner in challenge to any subsequent decision in furtherance to the Order
No. 13/2010-11 dated 12th January, 2011.
6. It is clarified accordingly.
7. The senior counsel for the petitioner has however drawn attention to
the notice dated 16th August, 2011 to show cause issued by the Authority to
the petitioner for non compliance of directions issued in pursuance to the
Order No. 13/2010-11 dated 12th January, 2011 (supra). It is contended that
once the challenge to Order No. 13/2010-11 dated 12th January, 2011 is open,
the petitioner cannot be threatened with fines and prosecution for non
compliance of any consequent direction.
8. Notice dated 16th August, 2011 to show cause has been issued for
alleged failure of the petitioner to submit information. The Authority under
Section 13 of the Act is entitled to call for any information. The Authority in
the process of fixation of tariff has called for information from the petitioner.
Merely because the challenge to Order No. 13/2010-11 dated 12th January,
2011 is open, would not mean that the petitioner is not required to furnish the
information. The senior counsel for the petitioner has also stated that the
intent of the petitioner is not to disobey the directions issued under Section
13 and the controversy is as to whether the information submitted is complete
or not. It is further stated that an application in this regard has already been
moved before the Appellate Tribunal in Appeal No. 7/2011 but has not been
taken up for consideration as yet.
9. I may notice that the Appellate Tribunal has vide order in Appeal No.
7/2011 has already directed the petitioner to, without prejudice to its rights
and contentions, submit the information.
10. The senior counsel for the petitioner on instructions states that the
petitioner desires time till 15th September, 2011 to submit the remaining
information sought.
11. The senior counsel for the respondent vehemently objects, stating that
sufficient time has already been granted to the petitioner.
12. However, to put finality to the matter, it is deemed expedient to grant
time till 15th September, 2011 to the petitioner to submit to the respondent the
balance information / particulars sought. Subject to the petitioner furnishing
the information by the said date, no fine shall be imposed and no prosecution
shall be initiated against the petitioner.
13. I may also record the submission of the senior counsel for the
respondent as to the maintainability of this petition. It is contended that
owing to the provision of appeal under Section 31 of the Act, the writ remedy
is not available. However, in view of the above, it is not necessary to deal
with the said contention. Suffice it is to clarify that merely because this
petition has been entertained, would not prevent the respondent from taking
the said plea in any further proceedings.
The petition is disposed of in terms of above. No order as to costs.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 01, 2011
M
