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2024 (10) TMI 1328
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...., Mr. Shrom Sethi, Adv., Mr. Sujay Jain, Adv., Mr. Sahil Tagotra, AOR, Mr. N. Venkataraman, ASG, Mr. Prashanto Chandra, Sr. Adv., Mr. Kartikay Agarwal, Adv., Ms. Darshita Sethia, Adv., Mr. Rashi Goswami, Adv., Ms. Yashodhara Burmon Roy, Adv., Mr. Kunal Tandon, Adv., Ms. Shweta Bharti, Adv., Mr. Kr. Shashank Shekhar, Adv., Mr. Sachin Sharma, AOR, Mr. Anil Kr Gulati, Adv., Mr. Naman Sharma, Adv., Mr. Abhishek Kumar, Adv., Ms. Nur Tandon, Adv., Mr. Kunal Jindia, Adv. and Mr. Nishant Anand, Adv. For the Respondent: Dr. Abhishek Manu Singhvi, Sr. Adv., Mr. Sajan Poovayya, Sr. Adv., Ms. Amrita Narayan, Adv., Mr. Mohit D. Ram, AOR, Mr. Ashwin Rakesh, Adv., Mr. Saurobroto Dutta, Adv., Mr. Madhav Sharma, Adv., Ms. Raksha, Adv., Mr. Abhishek Kakkar, Adv., Mr. Palash Maheshwari, Adv., Mr. Amit Pawan, AOR, Mr. Buddy Ranganadhan, Adv., Ms. Nishtha Kumar, Adv., Mr. Prantar Basu Choudhury, Adv., Mr. Shrom Sethi, Adv., Mr. Sujay Jain, Adv., Mr. Sahil Tagotra, AOR, Dr. A.M. Singhvi, Sr. Adv., Mr. Arvind Datar, Sr. Adv., Mr. Sajan Poovayya, Sr. Adv., Mr. Maninder Singh, Sr. Adv., Mr. Mahesh Agarwal, Adv., Mr. Hemant Sahai, Adv., Mr. Ankur Saigal, Adv., Mr. Rishi Agrawala, Adv., Mr. Manu Kulkarni,....
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....s8. 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)]; 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 1....
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....ousing 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; 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 su....
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....nd 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 Commission18, BSES Rajdhani Power Limited v. Delhi Electricity Regulatory Commission19, Sitaram Sugar Co. Ltd v. Union of India20 and GRIDCO v. Western Electricity Supply Com....
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....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 ....
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....tively. 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 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 Noorudin24, 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 ....
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....as whether the High Court could not have issued a writ of certiorari because the Election Tribunal was an ad hoc body which became functus officio, having served its purpose, upon the pronouncement of the decision. It was contended that there would be no authority against which the writ could be issued if the Tribunal had become functus officio. This Court rejected the argument and held that the fact that the Tribunal had become functus officio did not affect the jurisdiction of the Court to quash the order because the presence of the Election Tribunal, though proper, was not necessary.30 22. However, in Udit Narain Singh Malpaharia v. Additional Member Board of Revenue31, a four-Judge Bench of this Court drew a fine line of distinction between an appeal against a decree and a writ of certiorari to quash the order of the Tribunal. Justice K Subba Rao (as the learned Chief justice then was), writing for the Bench observed that the Tribunal is a necessary party if a writ of certiorari is filed to quash its order because: (a) otherwise the order of quashing could be ignored; and (b) a writ of certiorari is filed to quash orders of the Tribunal which are outside their jurisdiction a....
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....as a respondent in an appeal or it can be inferred by necessary implication. ii. Necessary and proper parties in regulatory proceedings 26. In Syed Yakoob v. KS Radhakrishnan35, the State Transport Authority36 constituted under the Motor Vehicles Act 1988 and the State Transport Appellate Tribunal37 were impleaded as respondents in the appeal against the judgment of the High Court. The High Court held that the STA and STAT had overlooked material considerations while issuing transport permits. The counsel who appeared for STA and STAT before this Court asked for costs. Rejecting the argument, Justice PB Gajendragadkar writing for the majority of the Constitution Bench, observed that though STA and STAT were proper and necessary parties in the proceedings, it is unusual for them to be represented by counsel unless allegations are made against them for which they need to respond because "they are not interested in the merits of the dispute": "19. [...] It may be that in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless allegations are made against them which need a reply from them, it is not usual for the auth....
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....g through the Disciplinary Committee).44 Irrespective of the divergence on whether this dispute could be termed as a 'lis', it is clear that this Court was of the uniform view that a statutory authority can be impleaded as an interested party. 29. In Competition Commission of India v. Steel Authority of India45, this Court has in detail dealt with the issue that concerns us. In that case, Jindal Steels and Powers invoked the provisions of Section 19 read with Section 26(1) of the Competition Act by providing information to allege that SAIL had abused its dominant position by entering into an exclusive supply agreement with Indian Railways. The Competition Commission of India rejected the application for extension of time by SAIL. It held that a prima facie case was made out against SAIL and directed the Director General to make an investigation. SAIL challenged the above order before the Competition Appellate Tribunal. The Commission filed an application for impleadment before the Competition Appellate Tribunal on the ground that it was a necessary and proper party. Emphasis was placed on Section 18 of the Competition Act to contend that the powers, functions and duties of the C....
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....ful for a complete and effective adjudication;51 and ii. Regulations 24 to 26 of the Competition Commission of India (General) Regulations 2009 52 define the powers of the Commission to join or substitute parties in proceedings, allow persons or enterprises to take part in proceedings and to strike out unnecessary parties. The 2009 Regulations stipulate that the person or enterprise to be impleaded must have a substantial interest in the outcome of the proceedings and/or that it must be necessary in public interest.53 This principle must be extended to the exercise of jurisdiction by the Tribunal. The Competition Commission has a substantial interest in the outcome of the proceedings in most cases as the judgments of the Tribunal: (i) will be binding on it; (ii) provide guidelines for determining various matters of larger public interest; and (iii) affect the economic policy of the country. 31. The Competition Act, unlike the AERA Act, expressly provides the statutory authority with the right to present its case before the Appellate Tribunal.54 Section 52T of the Competition Act also expressly grants the Competition Commission the right to file an appeal before this Cou....
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.... they may not be a person in whose favour or against whom a decree ought to be made. 58 This Court has further held that a party would not become a necessary party merely because she has an interest in the correct solution of the question involved. She would be a necessary party only when she would be bound by the result of the action and has a direct or a legal interest in the proceeding.59 In view of the judgments of this Court in Competition Commission of India (supra) and Dabholkar (supra), a statutory authority would have a legal interest in appeals against orders made by it in discharge of its regulatory duty. 33. In view of the above discussion, the following principles emerge: a. 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"; b. 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; and c. An authority may be impleaded as a respondent in....
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....ng of the principles of natural justice. 37. In the 1950s, a functional distinction was drawn between executive and judicial62 actions and between an action that deprives rights and an action that deprives privileges63 for deciding the applicability of the principles of natural justice.64 It was presumed that only a judicial body must act 'judicially' by following the principles of natural justice. Numerous judgments of this Court (similar to the judgment in Express Newspaper (supra) discussed above) speak of the 'duty to act judicially'. To act 'judicially' meant to comply with the principles of natural justice. Courts began diluting the distinction between quasi-judicial and administrative actions to ensure that administrative actions or proceedings by authorities which are not Courts in a strict sense also comply with the principles of natural justice. The term "quasi-judicial" came into vogue to describe the exercise of power which though administrative in some respects was required to be exercised judicially, that is, in accordance with the principles of natural justice because of its impact on the rights of persons affected.65 38. In R v. ex p London Electricity Joint C....
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....re was no lis between two parties, provided the statutory authority has the power to do an act which will prejudicially affect the subject:74 "81. In other words, while the presence of two parties besides the deciding authority will prima facie, and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially." 41. In Ridge v. Baldwin75, Lord Reid observed that the judicial character of the duty must be inferred from the nature of the duty itself. Since the decision in Ridge (supra), Courts have inferred the duty to act judicially, that is, in compliance with the principles of natural justice based on whether the decision adversely affects legal rights. Over time, Courts have abandoned the classification between quasi-judicial and administrative functions because the duty to act fairly, in compliance with the principles of natural justice has been read into administrative actions as well. 76 MP Jain and SN Jain in their treatise on Administrative....
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....elucidates that the exercise of power by Authorities and Tribunals was described as "quasi-judicial' to ensure that the principles of natural justice were complied with. However, with the evolution of the doctrine of fariness and reasonableness, all administrative actions (even if there is nothing 'judicial (or adjudicatory)' about them) are required to comply with the principles of natural justice. The evolution of the fairness doctrine has transcended many boundaries. Thus, the reason for which the expression 'quasi-judicial' came into vogue is no longer relevant. Neither are the tests to identify them because the functions of an authority no more need to have any semblance to 'judicial functions' for it to act judicially (that is, comply with the principles of natural justice). 44. The observations in judgments of this Court that a quasi-judicial authority must not be impleaded as a party in an appeal against its order must be interpreted in view of the doctrinal expansion of the principle of fairness. The substitution of the standard of whether the Authority undertakes a quasi- judicial function with the test of adjudication is thus, not an aberration. It is a standard which....
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....equisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the government or its nominee and the price to be paid is directed by the legislature to be determined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire a quasi-judicial character". (emphasis supplied) 47. On the facts of the case, the Bench held that price fixation is of a legislative character but the amount determined based on the price is adjudicatory because the former applies generally to a class of commodities while the latter is decided after taking individual aspects into consideration. This Court also held that price fixation can be of a legislative character even if it is based on an objective criteria87. 88 48. Two principles are deducible from the judgment of this Court in Sitaram Sugar (supra). The first is that one of the factors to determine if an order was issued in exercise of an adjudicatory function, is whether it was specific to an individual or of gen....
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....s, namely, Sections 61, 62 and 64 indicate the dual nature of functions performed by the Regulatory Commissions viz. decision-making and specifying terms and conditions for tariff determination. 49. On the above analysis of various sections of the 2003 Act, we find that the decision-making and regulation-making functions are both assigned to CERC. Law comes into existence not only through legislation but also by regulation and litigation. Laws from all three sources are binding. According to Professor Wade, "between legislative and administrative functions we have regulatory functions". A statutory instrument, such as a rule or regulation, emanates from the exercise of delegated legislative power which is a part of administrative process resembling enactment of law by the legislature whereas a quasi-judicial order comes from adjudication which is also a part of administrative process resembling a judicial decision by a court of law. (See Shri Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC 223] .) 50. Applying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as ....
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....mination of tariff is a legislative or an adjudicatory function must be determined upon an analysis of the provisions of the statute conferring the power. That was the test that was propounded in Sitaram Sugar (supra) as well. 52. In GRIDCO (supra), this Court was hearing appeals arising out of the decisions of the Appellate Tribunal for Electricity constituted under Section 110 of the Electricity Act 2003 which arose from orders issued by the Orissa Electricity Regulatory Commission determining tariff. Relying on the judgment in PTC (supra), a two-Judge Bench of this Court held that tariff determination being a quasi-judicial function, the Commission could not have preferred an appeal against the order of the Appellate Tribunal.90 The judgment of the two- Judge Bench in GRIDCO (supra) also dealt with the nature of function of the Appropriate Commission under Section 62 of the Electricity Act which was already settled by the judgment of the Constitution Bench in PTC (supra) that it was adjudicatory. vi. Tariff determination for aeronautical services by AERA is a regulatory function 53. The question that falls for our consideration is whether AERA in exercise of its p....
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....y; (b) competition; and (c) the reasonableness of the existing user agreement.93 57. It may be argued by relying on the judgment in PTC (supra) that the 2011 Guidelines issued in exercise of the power under Section 15 is a regulatory function while the determination of tariff under Section 13(1)(a) is adjudicatory by relying on the distinction between 'general' and 'specific' as highlighted above. In PTC (supra), this Court drew a distinction between Section 61 of the Electricity Act which grants the Appropriate Commission the power to issue specific terms and conditions for determination of tariff and Section 62 which grants the power to determine tariff. The crucial test that has been consistently applied by this Court in drawing the distinction is to determine if the function is discharged in the capacity of a regulator or an adjudicator. Now, it may be possible that certain statutes create a clear distinction between the regulatory and adjudicatory roles with respect to the same function. When such a distinction is created, the Authority does not put on the hat of a regulator while undertaking the adjudicatory function. On the other hand, certain other statutes may require t....
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....RA 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; and 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. 59. The respondents have relied on two clauses of Section 13 to argue that tariff determination is an adjudicatory function. The first is the proviso to Section 13(1)(a) which provides that different tariff structures may be determined for different airports. This, it is argued, is a specific/individualistic component which is an indicator of the adjudicatory function. It is true that this Court in Sitaram Sugar (supra) held that one of the factors to assess if a function is adjudicatory is by determining if it has a specific or a general application. However, the observations cannot be interpreted to mean that it is an overarching consideration in the determination of whether the functi....
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....ute or appeal" an opportunity of being heard; and b. Section 18(5) expressly excludes AERA as a party in the appeal before TDSAT because it provides that a copy of every order of TDSAT must be provided "to the parties to the dispute or appeal and to the Authority, as the case may be". There is disagreement over whether the expression "as the case may be" takes after "dispute or appeal" or "Authority". If the expression takes after the former, it means that Authority is not subsumed within "parties to dispute or appeal". If the expression takes after the latter, it could mean that a copy of the order must be given to AERA if it is not a party to the dispute or the appeal. 62. We have already, in the previous section of this judgment after an analysis of the precedent, concluded that the Authority can be impleaded as a respondent in an appeal against its order even if the provisions of the statute do not provide for it. This power can be read by necessary implication based on the role conferred on the Authority by the statute. To recall, Section 17(1)(a) grants TDSAT the jurisdiction to adjudicate any dispute between two parties, either between two service providers or a ....
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....nder this Act." Section 18(5) by using the expression "as the case may be" accounts for such a situation and requires that a copy of the order to be provided to AERA even if it is not a party to the appeal. Thus, the expression "as the case may be" in Section 18(5) must be read to mean that a copy of the order of TDSAT must be given to AERA even if it is not a party to the appeal or the dispute. The expression cannot be interpreted to impliedly exclude AERA as a respondent in the appeals against its orders before TDSAT. 66. 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. As Mr Datar put it, there are three ways in which provisions dealing with statutory appeal 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 Act 96, the Major Port Authorities Act 2021^97, the Securities and Exchange Board of India Act 1992^98 and the Pension Fund Regulatory and Development Authority ....
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.... 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. 15 "18. Application for settlement of disputes and....
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....tion or appeal and make such orders as it thinks fit." 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) 4 SCC 603 19 (2023) 4 SCC 788 20 (1990) 3 SCC 223 21 2023 SCC Online 1249 22 "Competition Act" 23 (1999) 2 SCC 577 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,....
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....e the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or the authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made a party to the writ, it can easily ignore the order of the High Court quashing its order, for not being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition." (emphasis supplied) 33 (2015) 9 SCC 1 34 (2015) 9 SCC 1 [41] 35 1963 SCC OnLine SC 24 36 "STA" 37 "STAT" 38 C.A No. 878 of 1963 39 (1975) 2 SCC 702 40 "Advocates Act" 41 (1975) 2 SCC 702 [25] 42 (1975) 2 SCC 702 [28] 43 (1975) 2 SCC 702 [29] 44 (1975) 2 SCC 702 [40] 45 (2010) 10 SCC 744 46 (2010) 10 SCC 744 [30.3] 47 The Competition Act 2002; Section 53S; Also see the Competition Commission of India (General) Regulations 2009; Regulation 51 48 (2010) 10 SCC 744 [104] 49 (2010) 10 SCC 744 [105,112] 50 See Brahm Dutt....
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....ant), (1967) 1 All ER 226 77 MP Jain & SN Jain, "Principles of Administrative Law" (7 th ed. Vol I, LexisNexis) 352 78 (1969) 2 SCC 262 79 (1967) 2 QB 617; "But at the same time, I myself think that even if an immigration officer is not in a judicial or a quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the sub-section, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him." In this context, also see the observations of Lord Parker C.J., in Reginal v. Criminal Injuries Compensation Board Ex parte Lain, (1967) 2 QB 684: "With regard to Mr Bridge's second point, I cannot think that Atkin L.J., intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioners case the rights determined were at any rate not immediately enforceable rights. [...] the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected." 80 (1969) 2 SCC 262 [13] 81 "20. [...] If the purpose of the rules of natural....