Magic Sewa Pvt. Ltd. vs Airports Authority Of India & Ors
2016 Latest Caselaw 5264 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 1585/2016 & CM APPLs. 6840-6841/2016

       MAGIC SEWA PVT. LTD.             ..... Petitioner
                    Through             Mr. Pranav Sachdeva, Advocate

                          versus

       AIRPORTS AUTHORITY OF INDIA & ORS ..... Respondents
                    Through  Mr. Digvijay Rai with Ms. Chetna
                             Rai and Mr. Syed Hassan Bin Taher,
                             Advocates for R-1/AAI.
                             Mr. Milanka Choudhury, Mr. Yash
                             Srivastava and Mr. Dinesh Kumar,
                             Advocates for R-2/DIAL.

                                   Reserved on      : 17th May, 2016
%                                  Date of Decision : 10th August, 2016

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN

                          JUDGMENT

MANMOHAN, J:

1. Present writ petition has been filed praying for a direction to respondent no.2 for quashing of entry fee charge of Rs.150 on commercial vehicles and also for a direction to respondent no.2-DIAL to allow petitioner to use the same lane as Licensed Taxi Operators for parking and picking customers.

2. Mr. Pranav Sachdeva, learned counsel for petitioner stated that as a duly licensed cab service, petitioner fulfils the criteria that respondent no.2-

DIAL has laid down for licensed taxi operators using dedicated Lane no.1 at Arrival Hall at IGI Airport such as driver training, security measures for passengers including police verification of drivers, fitment of GPS device etc. He also stated that the petitioner is ready to abide by all reasonable conditions and pay any fee for using Lane no.1. He submitted that the contract signed with three select cab companies cannot be used to eliminate competition and create monopoly of a few. Consequently, he contended that the petitioner deserved to be treated at par with select cab companies and should be permitted to pick up passengers from said Lane no.1.

3. Mr. Sachdeva further submitted that the entry fee of Rs. 150/- is unreasonable, unfair, discriminatory and arbitrary as it had been levied on taxis including those licensed by Delhi Government, but not on the three select companies with whom respondent no. 2-DIAL has a contract. He stated that the three taxi operators do not have any right or entitlement to be bestowed with such a huge favour that virtually eliminates all competition at the airport.

4. Mr. Sachdeva submitted that the entry fee is vitiated by malice as it unjustly favours the select taxi operators who were heavily losing business due to competition from other taxi operators. According to him, the entry fee had been imposed only when alternate taxi operators (especially mobile- app based ones) had become popular and the old operators were losing their monopoly. He emphasised that this charge is being levied just to save the business fortunes of old taxi operators.

5. Mr. Sachdeva stated that the fee of Rs. 150/- is highly excessive and unreasonable since respondent no. 2-DIAL does not offer any service in lieu of the huge fees it collects. He stated that Rs. 150/- is being charged as

"entry fee" despite the fact that Delhi Airport is a public place and people have a right to access it. He further submitted that the entry fee serves no purpose, since it is the case of respondent no. 2-DIAL that the fee is not to generate revenue and it is also not a tax.

6. Mr. Sachdeva submitted that there is no statutory authority/rule conferring power upon respondent no.2-DIAL to impose a charge on entry of vehicles. He pointed out that no approval of the Central Govt or AAI had been obtained for imposing this fee despite the fact that AAI has a significant stake in respondent no. 2-DIAL.

7. Mr. Sachdeva stated that when the airport operations had been privatized, had the other bidders known that they can charge fee on entry of vehicles, they would have bid differently. According to him, since this kind of stipulation was clearly absent when the contracts of Delhi airport were bid, the levy is a huge illegal bonanza to a private company.

8. Per contra, Mr. Milanka Choudhury, learned counsel for respondent no.2 stated that the petitioners have suppressed the fact that pursuant to the terms of OMDA and the scope of grant of concession to respondent no.2, a Request for Proposal (for short 'RFP') was floated in February, 2010 inviting bids from Radio Taxi Operators for entering into a licence agreement for providing non-stop round the clock taxi facility with high standard of service level and maintaining a counter for the same at the IGI Airport.

9. Mr. Choudhury stated that pursuant to the RFP, various bids were received in a competitive and transparent bidding process, in which three taxi operators were selected to enter into Licence Agreements for providing non-stop round-the-clock (24 x 7 x 365) high standard taxis service at the IGI Airport. According to him, at the time of the bid, the petitioner was not

even in existence and therefore having not participated in the bidding process, the petitioner cannot allege discrimination.

10. Mr. Choudhury contended that the licenced Taxi Operators in terms of the Licence Agreements are required to provide non-stop round the clock taxi service at the IGI Airport with high standard of service levels which includes cabs not older than four years, professional and trained staff conversant with English and Hindi as well as maintain complaint register and action taken reports, install LCD screens amongst other service level standards. He pointed out that the respondent no.2 carries out study by independent consultant to ascertain that the service standards are being met. He emphasised that these standards are not applicable to the petitioner.

11. He stated that the licenced Taxi Operators pay a substantial amount as licence fees in the form of Monthly Minimum Guarantee approximately amounting to Rs.38 lakhs per month or Revenue Share Percentage to the tune of 18-21% to the respondent no.2 every month. He also stated that the licence fees and the minimum guarantee amount payable by the licenced Taxi Operators to the respondent no.2 is shared with respondent no.1-AAI to the tune of 45.99% in terms of OMDA and the said amount is utilized for funding the modernization and upgradation of the airport infrastructure of the country.

12. Mr. Choudhury contended that the entry fee of Rs. 150 for eight minutes has been levied since 20th October, 2015 upon all commercial vehicles using Lane-3 to regulate the said Lane as it was suffering from various problems prior to the levy of the charge like commercial vehicles would park and tout or haggle with passengers leading to traffic jam and solicit unsuitable hotels etc. for commission. He emphasised that complaints

had been received from customers against such commercial taxi operators and even emergency services were unable to reach the airport swiftly. He pointed out that as the IGI Airport is a high security risk area and such a chaotic situation was severely compromising its security, various representations had been made to Delhi Police - but to no avail. The situation was so chaotic that it could not be regulated even by security personnel.

13. He stated that the lanes at Terminal-3 Arrival is not for the purpose of parking at all. He pointed out that for the purpose of parking, respondent no. 2 has developed a state of the art Multi-Level Car Parking (for short "MLCP") facility. He contended that the charge at MLCP facility is Rs. 80/- for thirty minutes which is much lower than the entry fees charged at the arrival at Terminal-3. He emphasised that the MLCP is an integrated part of the airport and very convenient for the passengers and has been built by respondent no. 2 at a huge cost.

14. Mr. Choudhury lastly submitted that the entry fees of Rs. 150/- levied on commercial vehicles to enter lane-3 has been imposed in terms of Section 22(ii) read with Section 12-A (4) of the Airport Authority of India Act, 1994 (for short 'Act, 1994') and also in accordance with OMDA. According to him, there is no requirement of approval of Central Government for exercising powers under Section 22(ii) and the only requirement is to give due regard to the instructions, if any.

15. In rejoinder, Mr. Pranav Sachdeva, learned counsel for petitioner stated that a fee cannot be charged for the failure to respondent no. 2-DIAL to discourage crowding, touting or nuisance.

16. Mr. Sachdeva also submitted that the power to levy fees is with the

AAI in certain cases and that too with the approval of Central Govt. in accordance with Section 22 of Act, 1994 - which is absent in the present case.

17. This Court may mention that in pursuance to the Division Bench order dated 08th April, 2016 passed in LPA 241/2016, the matter was taken up for final hearing on 17th May, 2016 with the consent of parties and judgment was reserved. It is pertinent to state that despite giving an undertaking before the Division Bench in LPA 241/2016, respondent no.1 neither filed its counter affidavit nor advanced any argument during the course of hearing or filed any written submission.

18. From the pleadings on record, this Court finds that there are three Lanes leading to the Arrival Hall of Terminal-3. While Lane no.1 is used by licensed Taxi Operators who not only pay the license fee, but also share a part of their revenue with respondent no.2; Lane no.2 is used by Black and Yellow prepaid Taxis and Lane no.3 is used by private vehicles as well as all other Taxi Operators other than those using Lanes no.1 and 2.

19. In February, 2010, respondent no.2 floated a RFP inviting bids from Radio Taxi Operators in accordance with the terms of OMDA for entering into a license agreement for providing non-stop round the clock taxi facility and maintaining a counter for the same at the IGI Airport. It is not disputed that through an open competitive and transparent bidding process, three taxi operators were selected to enter into license agreements for providing non- stop round the clock (24 x 7 x 365) taxi services at the IGI Airport and they are required to provide special standards of service to the customers.

20. The respondent no.2's averments in the counter affidavit that the practice of entering into license agreements to provide round the clock taxi

service with high standard of service quality pursuant to a bidding process is followed in all major Airports of the country as well as globally and further that licensed taxi operators are only permitted to charge the rates notified by respondent no.3 for Radio Taxis have not been rebutted.

21. Also, neither the decision of respondent no.2 to issue a tender nor the decision to allot the tenders to the said three companies is impugned in the present proceedings. Even the licensed taxi operators are not parties to this writ petition.

22. In any event, this Court is of the view that the decision of respondent no.2 to enter into license agreements with three successful bidders for round the clock taxi service with higher standards of service quality is reasonable, fair and cannot be faulted with as it ensures that reliable and dependable sources, provide the essential facility of private transport at IGI Airport. A service provider who has a long term contract is most likely to ensure that best services are provided to the passengers as it has much to lose, if anything goes wrong. One also cannot lose sight of the fact that experience at the Airport of an incoming foreign passenger is the first impression that he has of the country.

23. The petitioner's argument that the impugned decision is vitiated by malice as it creates a monopoly in favour of three taxi operators is ill- founded. In addition to the three licensed taxi operators, a passenger has the choice to opt for other taxi services including App based taxi services like the petitioner as there is no prohibition upon them to operate from the IGI Airport. The passengers even have the option to choose Black and Yellow taxis which operate at a cheaper rate than radio taxis. Further, the respondent no.2's decision to award the contract to three service provides

ensures that there is a healthy competition amongst them and there is no monopoly.

24. This Court is of the view that the petitioner as well as other taxi operators and app based providers can easily park their vehicles at MLCP and pick their passengers from MLCP which is integrated with the airport and avoid payment of the entry fees and that too, without disrupting the smooth flow of traffic at Terminal-3 Arrival.

25. This Court takes judicial notice that at most of the International Airports including England and Australia, if a private tour operator send his vehicle or taxi to pick up a tourist, then the driver would carry a plank card and receive the passenger/tourist outside the arrival hall and take the passenger along with the luggage trolley to the MLCP, where the vehicle would be parked. Consequently, there is no restriction whatsoever on the petitioner and other taxi operators to carry on their business.

26. This Court is further of the opinion that the petitioner's plea of discrimination is ill-founded as the licensed Taxi Operators pay appropriate fees like the petitioner for providing non-stop round the clock taxi service at the IGI Airport. The only difference is that the licensed Taxi Operators pay on a monthly basis, while the petitioner pays on a per usage basis.

27. This Court is also of the view that the petitioner has no locus standi to challenge decision of respondent no.2 to allocate Lanes-1 to 3 to licensed Taxi Service Provider as the petitioner was not even in existence at the time of tender and had consequently not participated in the biding process.

28. This Court finds that the entry fee of Rs.150 for eight minutes is being charged only from 20th October, 2015 at the Arrival Hal of Terminal-3. No entry fee is charged for entry at the Arrival or Departure of Terminal-1 or at

Departure of Terminal-3.

29. This Court is of the view that a parking charge can certainly be levied by respondent no.2-DIAL to discourage overcrowding, touting or nuisance. The reasons for levy of parking/entry charge in the counter affidavit are reproduced hereinbelow:-

".........It is submitted that as there was no charge or minimum time for entering or staying at Lane-3 prior to 20.10.2015 which led to the following problems of grave nature:

(i) As there was no charge or minimum duration for staying at Lane-3, all commercial vehicles would park their vehicles at Lane- 3 to wait for passengers or approach passengers to avail their services causing huge traffic jams leading to and from the Arrival at Terminal-3. Such traffic jams would cause huge delays in reaching the Arrival at Terminal-3 and affect passengers adversely.

(ii) Such traffic jams would lead to a chaotic situation and disrupt the smooth operations at the airport.

(ii) Such traffic jams also deterred medical, emergency and security services to swiftly reach the airport in case of an emergency compromising the safety of the airport and its passengers.

(iv) The commercial taxis would park their cars and also tout for customers including foreign passengers and haggle with them for using their services.

(v) Many complaints were received from domestic and international passengers that the said unknown commercial taxis cheated customers and also lured them to check in to unsuitable hotels from where they received substantial commission.

(vi) Such touting and luring customers compromised the safety of the passengers including foreign passengers and any mishap or

criminal activity in this regard would in addition to being a criminal offence would also severely dent the image of the country and be reported widely in the media including the international media.

(vii) Such touting and chaotic situation was a security nightmare and the airport being a highly sensitive location and also a probable target for terrorist attacks, the security of the airport was being compromised.

(viii) Various cases of cheating, harassment of passengers by the unregulated taxi services at the IGI Airport have been reported to the Delhi Police.

(ix) The situation at Arrival of Terminal-3 was so chaotic that it could not be regulated despite the presence of security personnel as there would be a barrage of commercial taxis.

(x) Delhi Police has made various representations to the Respondent No.2 that the prevalent situation at Lane-3 compromises the safety of the airport from a potential terrorist attack and also compromises the safety of the passengers from touting by unregulated taxi providers as many such cases of cheating and mischief have been reported.

Therefore, in view of the aforesaid, it was imperative that Lane-3 be regulated as it was compromising the safety and security of the Airport...."

30. The counter affidavit is not only unrebutted, but it also contains cogent and germane reasons for levy of parking and usage charge. Consequently, the petitioner's allegation that the impugned entry charge is arbitrary, is contrary to facts.

31. This Court is further of the opinion that the entry fee of Rs.150 for eight minutes for using Lane-3 is neither a tax nor a fee. It is actually a parking and usage charge which any Airport is entitled to charge. In any

event, Section 22(ii) read with Section 12-A(4) of the Act, 1994 and OMDA gives power and authority to the respondent no.2-DIAL to levy the said parking/entry charge.

32. It is pertinent to mention that it is not the petitioner's case that respondent no. 2 is making any illegitimate personal gains or that the revenue generated through entry charge is not being accounted for. In any event, to put the matter beyond controversy, it is directed that respondent no.2-DIAL shall show the entire revenue generated from the entry fee as a separate entry in its balance sheets and uses this revenue for improvement of the infrastructures at the Airport. With the aforesaid direction and observations, the present writ petition and applications are dismissed, but with no order as to costs.

MANMOHAN, J AUGUST 10, 2016 rn/js