Telecom Disputes Settlement Tribunal
Lufthansa German Airlines & Others O vs Bial &Amp; Ors on 3 February, 2021
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELBI Dated: $~"rebruary, 2021 MISC APPLICATION (/293/2026 WN AERA APPEAL/ 1/2019 Lufthansa German Airlines & Others o. Appellants Versus | Sangalore Imternational Airport Umited (BIA) & Ors a... Respondents HON'BLE MA. JUSTICE SHIVA KIRT) SINGH, CHAIRPERSON tar Applicants/ Appellants > Ms. Neelam Rathore, Advocate wie. hianan 'atlearnt Ae vacate Mr, Saransh Jain, Advacate For Resparsdent No.2 Mr. Gopal Jain, Sr. Advocate ae + Mr. Virender Menta, Advocste ORDER
By 3: K. Singh, Chairperson - This Apoesl was Sled on 311.2019. {lt is directed against an order dated S4.2018 G\nnexure A-l) passed by AERA. ?
Ostensibly, AERA has capoed the ameunt of Royal ey f License Fee / Revenue Share at 309) of gross revenue, payable to the Airport Operaters as a Pass- S Through Capita! Expenditure for the Independent Service Providers {SPs} for determining the Tariff on ISPs providing Cargo Facility, Ground Handling and supply of the Fuel to the Alrerafts at n major airports. The rates are to be effective from 1.2049, f Respondent Nol, BIAL is the Airport Operatar at the Ke mpesowda international Airport, Sengaluru. Respondent No. is an ISP who has bean awarded by Respondent Nod the Ground Handling Concession at the Alraart for & period of ten years from La.2O1s, A Cancessio 4 ree percentage of 1524 was made apglicable by Respondent No.2 with effect from 118.2018 on the strength of authoriation by Respondent No.1, The Appellants objected to such charge on the ground of lack of power in Resoandent No 1 ite! lfand alse on the ground thet iC had no Regulatory approval.
3. TRE charge of Concession fée af the rate of 1556 was a Hegediy made Tor the first me for the month of August, 2018 on the strength of a confidential vat agreement between Respondent No.l and 2? and also On the streneth of impugned order dated 54.2018 which has taken note of such Concession Fees being charged at different Airports at different rates. Since the impugned order permitted a cap of SO% effective from January, 2019, the present Appeal was preferred leading to an interim order on 4.3.2079 prohibiting any coercive steps against the Appellants for realization of Concession Fee in terms of the | impugned arder oF AERA dated 5.49019. The parties were again heard on the issu om interim order, On $0,.4.2019, this Tribunal directed that the interim order shell continue til further orders, On the suggestion of Respondent Nas. 1 and 2 ip was ifled that since the Appellants have not sought any relief against tan order dated 28.5.2018, the interim order will not affect the provisions of the said tariff order, a, On behalf of Appellants an application under section 20 of the TRAI Act,1997 bearing M.A. No.323 of 2020 was filed on 23.19.2000. The prayers in the M.A. are as follows:
fa) restram the respondent nos. lo and 2 from demanding and / or realizing Royalty Charges / Concession Fee from the appellants and to continue to provide uninterrupted ground Handling and other serndcee to the appellants at the Kempegowda international Airport Umited, Bengaluru:
(0) direct the respondent nos, 1 and 3 and its authorised representatives, att officers, agents to ensure compliance and implemertetion of the arders dated 4 February, 2019 and ao" April, 2019 passed by this Han''blé Tr ibunal in the subject appeal;
{c} punish the respondent nas. 1 and 3 for their willful non-compliance of the orders and directions passed by this Non'ble Tr ibunab and fisting
a) pass such other and further order(s) as this Hon'ble Tribunal ney deem, fy and proper In the facts and circumstances of the case.
5. inthe MLA. it is pleaded that Respondent No.2, in camolignce of the interim orders raised separate invoices for aeronautical ted and Royalty Charges / Concession Fees. The Appellants regu larly paid the aeronautical tariff charges including that for the Ground Handling and Cargo facility, Respondent No.2 did not insist ar payment of Royalty Charges / Concession Fees till May, 2020. But pursuant to the renewal / extension of the contract hetween the Appellants aad he Respondent No.2 (wrongly stated as contract between Respondent Nos. Land 2} with effect from June, 2020, the Respondent No. raised consolidated invoices for
4. the aeronautical tariff as well as Royalty Charges / Concession Fees at 21.912% for the month of ily, 2020. The Appellant paid thé Invoices under routine clearance but realized its mistake thereafter aad demanded for separate iivoices as was being done in the past and also requested for a credit note. The Respondent Ned * segregated the invoices for the month of October,2020 but stil it densnded z ow payment of the Royaliy Charges / Concession Fees in alleged cisregard and violation of the interim orders of this Tribunal, Respondent No.2 Justified the demand on the basis of its interpretation of order dated 30.4.2019 which clarified that the tariff arder Nady dated 28.5.9018 was no tunder « challenge. & Accord! mg to pleadings in the M.A. the parties Aad 9 conference call in October, 2020 and theres ter Respondent No? did Hot insist on its demand for some Ume. However, on 82.12.2020 through an email (Annexure A-8) it demanded for payment of Royalty Charges / Concession Fees along with Interest on the ground that Respondent Now was claiming the charges fram Respondent No.2 de Aors orders of restraint orders and had threatened to cancel the contract with Respondent No.3. The @ email rétords thet Respondent No? wi iinet provide Ground Handling Service te the Apsellant beyond 91s. 9702 1 unless. Royalty payment is made.
f On 41.2021 the M.A. was taken up by this Tribunal for consideration. Since the materials Indicated thal coercive steps in disre egard of the Interim order of this Tribunal was bei ming threatened: only by Respondent No.2, a short time was Bfanied to Respondent No. for filing reply te the MuA. The reply and rejoindar were Mied. The parties were heard and order was reserved on the MLA on 28.4,2021.
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8. The averments in the MUA. end the Matenals on rerord clearly point te the fact that there has been 4 sudden. change in the. Stand of the Respondent Now? ar the behest of Respondent Not or otherwise, is reversed the practice of dicating the Royalty / Coneess 'ON Pees Separately and started COBrCINE the fh Appellant ta pay such charges, ofherwise the Ground Hansling Sendces will bi disrupted even if it continues to pay tariff charges Separately. On behalf of Respondent No.3, learned senior counse} has referred to Daragraph 4 and 45 of the Counter-affidayir f reply to POINT GUT thar s imely payme ent should be ensured by the Appellant because of the COVID Pandemic, However, the Pandemic had adverse affect on ventures and business sof all the ste keholders. in any event, ip can have no affect on the interim orders of this Tribunal already under operation. The main plankon which Respondent No.2? has fested Its defense is an agreement between the Appellant and R Respande ent No.2 dated 16. 2020, Ace ording to the Respondents, the Parties agredd BDOn Rew pricing at Rs.2,08, OO0/- as comprehensive Ground Haad ing charges exclusive of Airport Concession Fee that was to Dé apolicable op BfOS8 Up charges. The egreement also provides for additional services at agreed prices inclusive of Concession Fee. The inveices, showing the Seeregate charges were ' allegedly raised in terms of the new agreement 8, The other defense of the fespondents is that on 30.4.3019 this Tribunal clarified that tariff order dated 24.5. 2018 was nat under halenge. it has been Weaded that this order of 2aT9 WAS superseded by new tariff order dated V?1.2080 which has approved a ceiling rate of comprehensive patkage at Rs.2,80,979/- per flight fh randling for category Hight with 1-400 flight per annum, The submission appears to be that since the approved ceiling rates are inclusive of er Concession Fee, the interim orders passed by the Tribunal are no fonger effective. 'This stand is totally erroneous and y nacceptable. iG. The tariff arder dated 17.1, 2020 (Annexure C-1) claims to be Annual Tariff Proposal (ATP) for Financial Year 2019-20 and 2090-21 for the secund contfo! period in respect of Respondent Nod. TAlS order by AERA notices and refers to the tariff order of 28.5.2018 which i far the whale duration of second contra! period. i also refers to the impugned order of 5.49018 providing a cap on the Royalty ta the maeximunt of 30% of the annual eross revenue, The light touch approach has been continued and the tariff card for the residual period of the second contral period has been prescribed. Tha order clarifies that the tariff as determined will be maximum tariff to be charged and no other charge is to he levied over and above the approved tariff, The respondent is taking shelter behind this provision to su bmit that it can levy Concession Fee Charges on the 2 authority of this order, over and above the tariff charge provided the celline is rot violated. This wil have to be tested in the light of issues raised in the appeal Sut ho coercive steps can be taken In view of interim protection granted. ii. The new agreement between the Appellant and Respondent New fs Annexure C-2 dated 16.2020. [thas been highlighted by the Respondent No.2 that the intemal page 19 of this document contains a Nete-T showing thet the is she iad Bs.
$£% additional charges and services such as special assistance for wheel chalr etc are inclusive of the Airport Concession Fee and hance, the Appellant having signed the agreement cannot raise the plea that Concession Fee be shown separately R gem and be not realized by coercive methads, iz. Learned counsel for the Appellant / Applicant has ghily submitted that the order of AERA dated 17.1.2020 (Annexure C-1) does not have and in law i cannot have any effect upon the interim orders oassad by this Tribunal. [ff is simply a > revision of The rates. This contention clearly hes merits.
13. So far as the agreement (Annexure C-?) is concerned, learned counsel for the Appellant has shown from internal sage 16 of the docu ment that the second table prescribes all inclusive turn-around Nandling Charge followed by a Mote that the above charges are exclusive of the Airport Concession Fee which shall be applicable an the BPOSS-UP Charges. & was pointed out that the note at intemal page 19 that the above charges are inclusive of the Airport Concession Fee js not in relation of the Ground Handling € herges as such but only in relation to Some additional charges and services like that of a wheel chair. Learned coutsel has further submitted that the agreement has been signed under the understanding that itis a standard format, without conceding any of the issues raised in the Present Appeal in which interim orders are already operative, 44, The M.A. under consideration is found te have merits. The Appellant has not given up its case or claims and has not conceded any of the issues raised {4 the Appeal. The Interim orders of this Tribunal are not affected by the subsequent yearly tariff orders of AERA or the new agreement between the Appellant and Respondent No.2. At this Stage, cannot be held that the Appellant hes admitted the stand of the rex spondent in the present Appeal Such admission isdifficult te be inferred in the present factual scenario.
15. In case the respondents seriously believed that the jaterim orders of this Tribunal are no longer binding. an the parties or are not available to the Appellants, they should have sought clarification before forcing 4 the Appellants to ray fle the present M.A. by th reatening coercive action. 16, The payments made by the Appellants towards Royalty Charges / Concession Fee onor from June, 2020 shall abide by the final result of thls Appeal, However, In the meantime, the Respondent Nag. land 2 are directed to. meticulously follow the interim order already passed by this Tribunal! ans should. not do anything directly or indirectly to pressurize the Appellants to pay the Royalty Charges / Concession Fee. 'These charges should be shown in accounts separately so that if the Appeal fails, the same may be directed to be paid by the Appellant with such conditions ete, as may be determined by the final judernent and order in this Appeal. Cansidering the entire facts, prayer no. (hb) of the MLA is allowed. However, prayer No.{a} and also No. (c) seeking punishment / penalty ate, for willful non-compliance is not granted because Inmugned actions though found improper, do not deserve to be trested as willful nanccompliance, This view és also justified by the fact that actually the services to the Appellants were never disturbed although a threat was given. if is expected that respondent no. and 2 ashall be more careful in future, iv. WI the aforesaid directions and orders the M.A. is disnased off. sae ery pn {(S, K. Stet) Chairperson Zoey