Airports Economic Regulatory Authority of India vs Delhi International Airport Ltd. & Ors.

(a) lays down seven factors which must be considered by AERA for determining the tariff of aeronautical services – It is settled that the function can be regarded as legislative even if objective guidelines are prescribed for the exercise of the function – Further, the provision only prescribes broad guidelines that AERA must “take into consideration” – AERA still has sufficient discretion to adapt to circumstances and various concerns while determining tariff – The Act does not prescribe the weightage that must be provided to each of the factors – That is well within the discretion of AERA – This is also evident from Section 13(1)(a)(viii) which provides that AERA may consider “any other factor which may be relevant for the purposes of the Act”; (c) The factors which are required to be considered by AERA indicate the underlying policy considerations of the assessment – The factors, inter alia, include the cost of efficiency and economic and viable operation of major airports; (d) Section 13(1A) requires that AERA be consulted regarding tariff and tariff structures which are proposed to be incorporated in bidding documents – This provision elucidates that even if AERA does not in a strict sense, “determine” tariff in terms of Section 13(1)(a), it will always be interested in the economic viability of airports and in that sense is a regulator of tariff – Thus, the considerations of AERA while determining tariff will be those of a regulator concerned with public and economic interests, which are purely non-adjudicatory considerations; (e) Section 13(2) by enabling AERA 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; (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 – Thus, on analysis of the statutory provisions, it can be reasonably concluded that AERA is performing a regulatory function while determining tariff under Section 13(1)(a) of the AERA Act. [Para 58] Airport Economic Regulatory Authority of India Act, 2008 – Whether AERA is a necessary party in the appeal against its tariff order before TDSAT and whether it can be impleaded as a respondent:

Held: When it comes to appeals against the tariff orders issued by AERA, it is not just acting as an ‘expert body’ but as a regulator interested in the outcome of the proceedings – AERA has a statutory duty to regulate tariff upon a consideration of multiple factors to ensure that airports are run in an economically viable manner without compromising on the interests of the public – This statutory role is evident, inter alia, from the factors that AERA must consider while determining tariff and the power to amend tariff from time to time in public interest as discussed above – When AERA determines the tariff for aeronautical services in terms of Section 13(1)(a) of the AERA Act, it is acting as a regulator and an interested party – It is interested not in a personal capacity – Its interest lies in ensuring that the concerns of public interest which animate the statute and the performance of its functions by AERA are duly preserved – Thus, AERA is a necessary party in the appeal against its tariff order before TDSAT and it must be impleaded as a respondent. [Para 63]

Airport Economic Regulatory Authority of India Act, 2008 – s. 31 – Power of AERA to file an appeal against the order of TDSAT before this Court:

Held: 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 – 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 Act96, the Major Port Authorities Act 2021, the Securities and Exchange Board of India Act 1992 and the Pension Fund Regulatory and Development Authority Act 2012 – The third category is where the statute confers ‘any party’ with the right to file an appeal as under the Companies Act 2013 – With respect to the first of the three categories, at a minimum the parties to the appeal before first appellate body (in this case TDSAT) will have a right to file an appeal before this Court – AERA can file an appeal under Section 31, it is a necessary party in the appeals against the tariff orders issued by it – The appeals filed by AERA against orders of TDSAT under Section 31 of the AERA Act are maintainable. [Paras 66, 67]