Resources of Aviation Redressal Association v. UOI & Ors

MANMOHAN, J AUGUST 26, 2009 pk

* IN THE HIGH COURT OF DELHI AT NEW DELHI #53 + W.P.(C) 8918/2009 % Date of decision: 26th August, 2009 RESOURCES OF AVIATION REDRESSAL ASSN. ..... Petitioner Through: Mr. Vinod Bobde, Sr. Adv. with Mr. Arunabh Chouwdhury, Mr. A.L. Das, Mr. Kashi Vishvesar, Advs. versus UOI & ORS. ..... Respondents Through: Mr. Gopal Subramanyam, Solicitor General, Mr. A.S. Chandhiok, Addl. Solicitor General with Ms. Sweta Kakkad, Advs. for Respondent No.1/UOI Ms. Anjana Gosain, Ms. S. Fatima, Adv. for Respondent No.2/AAI Dr. A.M. Singhvi, Sr. Adv. with Mr. Atul Sharma, Mr. Milanka Choudhary, Mr. Abhishek Sharma, Advs. for R-3/DIAL CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judg- ment ? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? AJIT PRAKASH SHAH, CHIEF JUSTICE (oral) This petition is filed in public interest assailing the levy of airport development fee from outgoing passengers travelling from Indira Gandhi International Airport, New Delhi at the rate of Rs.200/- from domestic passengers and Rs.1300/- from international passengers for a period of three years. The development fee is being levied by the respondent No.3 - Delhi International Airport Pvt. Ltd. ('DIAL' for short) with the prior approval of the Central Government under Section 22-A of The Airports Authority of India Act, 1994 ("the Act" for short). The petitioner is a society espousing the cause of air passengers embarking from Indira Gandhi International Airport, New Delhi. The Union of India is impleaded as respondent No.1. The respondent No.2 is the Airports Authority of India, a statutory authority constituted under section 3 of the Act. The respondent No.3 - DIAL is the lessee under section 12-A of the Act to whom the functions of operation, management, development, design, construction, upgradation, modernization, finance and management of Indira Gandhi International Airport, New Delhi have been granted exclusively by the respondent Nos. 1 and 2. The principal contention of the petitioner is that the impost is sans any authority of law and the respondent No.3 has no power or jurisdiction to levy or collect the airport development fee from outgoing passengers at both domestic and international airport. The levy and collection of airport development fee is thus ex-facie illegal and unconstitutional, being ultra vires Article 265 of the Constitution of India. 2. The challenge to the levy of airport development fee is based on the following three grounds: i) That the law authorizes only the Airports Authority of India to levy development fee at a rate prescribed by the Central Government and the said power cannot be sub-delegated to any person including respondent No.3; ii) That the development fee is being levied although no additional service is being provided to the travelling public. The development fee is being appropriated by the respondent No.3 for the purposes which have no nexus with any service, much less any additional service being provided to the travelling public; and iii) That section 22-A empowers the Airports Authority of India to levy and collect a development fee "at the rate as may be prescribed". The term "prescribed" is defined by section 2(n) of the Act as to mean "prescribed by rules made under this Act". The rule making power is contained in section 41. Rules have not been notified by the Central Government and in the absence of such rules, the levy and collection of development fee is illegal. 3. Counter affidavits have been filed on behalf of the Union of India and Airports Authority of India as well as respondent No.3-DIAL contending, inter alia, that the grounds raised by the petitioner for impugning the levy of development fee are misconceived and unsustainable in law. The levy of airport development fee by the respondent No.3 with prior permission of the Central Government is expressly permitted by the provisio