M.A No.86/2024
1. This application has been preferred by original appellant for extension of the interim relief granted by this Tribunal in A.A No.4/2023 dated 19.12.2023. The collection of “Development Fee” (hereinafter referred to as “DF” for the sake of brevity) is at the rate of Rs.100/- per domestic embarking passenger as well as at Rs.600/- per International embarking passenger at Chhatrapati Shivaji Maharaj International Airport, Mumbai.
2. It is submitted by the counsel for the applicant (original appellant) that the issue involve in AERA Appeal is about DF to be recovered from the domestic as well as international passengers and to be utilize as per the Airports Authority of India (Major Airports) Development Fee Rules, 2011 (hereinafter referred to as “DF Rules, 2011” for the sake of brevity) Annexure A-7 to the memo of AERA Appeal.
3. It is submitted by the counsel for the appellant that there are serious disputes about the calculation of the DF. As per AERA, the said amount is much lesser than what is to be actually recoverable by the appellant as per calculation given by an auditor, appointed by Airports Authority of India (hereinafter referred to as “AAI” for the sake of brevity).
4. It is further submitted by the counsel for the appellant that as per auditor appointer by AAI as per Annexure-4 to the memo of this Miscellaneous Application, the position of DF as on 31.1.2024 mentioned in para 6.9 by the auditor, appointed by AAI reads as under :-
6.9 Position of DF as on 31st January, 2024.
(Rs. in Crores)
|
Payable |
Amount |
Receivable |
Amount |
|
DF loan Outstanding as 31st December, 2023 |
0.0 |
Balance in DF-I escrow A/c and Fixed Deposit A/c |
391.77 |
|
Debt Servicing Done by MIAL |
150.58 |
DF Debtors |
17.99 |
|
Debt Servicing Done by MIAL – Prepayment |
521.09 |
Inter unit receivable (MIAL) |
-61.02 |
|
Unpaid interest to lenders |
0.00 |
Inter unit receivable (MDF) |
5.56 |
|
GST liability for the month of Dec, 2023 |
8.78 |
DF Receivable |
322.80 |
|
**Unreconciled IUT balance paid |
3.35 |
||
|
Total |
680.46 |
Total |
680.46 |
5. It is further submitted by the counsel for the appellant that the amount of DF is deposited in a separate Escrow Account as per the interim relief granted by this Tribunal vide order dated 19.12.2023 and the same has not been withdrawn by this appellant.
6. It is further submitted by the counsel for the appellant that the deposition of the amount, withdrawal of the amount and the usage of the amount is mathematically governed by DF Rules, 2011. Counsel for the appellant submitted that thus as per auditor appointed by AAI Rs.322.80 Crores are yet to be received. Every month approximately, looking to the average number of passengers, both national and international, the average monthly recovery of DF is approximately Rs.45 Crores.
7. It is further submitted by the counsel for the appellant that if the appeal preferred by this appellant is fully or partially allowed by this Tribunal and if the recovery of the DF is not allowed to be done from domestic as well as international passengers, it will be impossible for this appellant to recover subsequently from those passengers the DF and, therefore, let the interim relief granted by the Tribunal vide order dated 19.12.2023 be extended till the amount at Rs.322.80 Crores is being recovered.
8. Counsel appearing for AERA has opposed this extension of interim relief and has pointed out that as per page no.40 of this Miscellaneous Application which is a report given by same auditor the amount recoverable was Rs.20.06 Crores and, therefore, this interim relief may not be extended because this appellant is continuing recovery on the tickets already purchased by the passengers, whose journeys are to be continued till at least next six months.
9. It is also submitted by the counsel for the respondent that the amount claim by this appellant as a DF to be recovered is highly exaggerated and is inaccurate and, therefore, also interim relief granted by this Tribunal vide order dated 19.12.2023 may not be extended by this Tribunal.
10. Having heard the counsels for both the sides and looking to the facts and circumstances of the case, notice to respondent which is accepted by counsel for respondent.
11. It appears that the DF which is recoverable is in dispute in this AERA Appeal. We have granted interim relief vide order dated 19.12.2023 and had permitted this appellant to recover the DF at Rs.100/- and Rs.600/- from domestic embarking passengers and international embarking passengers, respectively.
12. Now, the question arises the extension of the interim relief granted by this Tribunal for which the report which has been given by the auditor which is a draft report given by the auditor who is appointed by AAI at page no.52 (Annexure A-4 to the memo of this Miscellaneous Application). The position of DF as on 31.1.2024 has been pointed out by the auditor. The tabular format has already been pointed out hereinabove of DF receivable at Rs.322.80 Crore.
13. The aforesaid amount is highly disputed amount as per respondent. Counsel for the respondent has vehemently submitted that this amount pointed at Rs.322.80 Crores is highly exaggerated and is not recoverable by this appellant.
14. It appears that Prima Facie, the auditor, who has been appointed by AAI has given the aforesaid figure of Rs.322.80 Crores. Moreover, if the amount of DF is not allowed to be recovered by this appellant from the domestic embarking passengers as well as from international embarking passengers and if, later on AERA Appeal is allowed or partially allowed, it will cause irreparable loss because once the passengers are completing their journey, it will be impossible to recover DF from those passengers.
15. Even otherwise also, the amount of the DF is to be deposited in a separate Escrow Account as per DF Rules, 2011 (Annexure A-7 to the memo of this AERA Appeal). This amount deposited in Escrow Account can be withdrawn only with the permission of AAI and that too, for specific end usage.
16. In view of these facts, the interim relief granted by this Tribunal dated 19.12.2023 is hereby extended till the next date of hearing. This appellant is allowed to recover DF at the rate of Rs.100/- Per domestic embarking passenger and Rs.600/- per international embarking passenger. The conditions impose by this Tribunal as per paragraph 33 of our order dated 19.12.2023 are hereby maintained as they are, so far as, deposition of the amount, utilization of the amount and withdrawal of the amount is concerned. Separate accounts shall also be maintained and shall be presented by this appellant before AAI of the DF collected under the interim relief granted by this Tribunal.
17. Counsel appearing for the respondent submitted that let there be a total ban upon this appellant for the withdrawal of the DF. This condition will be in violation of the DF Rules, 2011. Hence, we are not incline to impose this additional condition while extending the stay granted by this Tribunal.
18. Time to file reply in the M.A is granted to the respondent till the next date of hearing.
19. The matter is, therefore, adjourned to 22.3.2024.
