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TMI Blog2017 (12) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to recover licence fee at the rate of 10% of the annual turnover from 3rd September 1984 till 26th December 2001 - The second respondent is justified in demanding the licence fee at the rate of 15% from 1st July 2007. The first respondent was not competent to demand licence fee at the rate of 2% for the period prior to 4th October 1995. The first respondent was entitled to recover licence fee at the rate of 10% of the annual turnover from 3rd September 1984 till 26th December 2001. From 26th December 2001, the recovery at the rate of 11% was lawful. From 1st July 2007, the levy at the rate of 15% is justified. We, therefore, propose to direct the Director of Civil Aviation to appoint a competent officer to make an adjudication on the question whether the petitioners have recovered the aforesaid amounts paid to the first or second respondents, from the companies or airlines which employed the third petitioner. Only if the petitioners satisfy the competent officer that the amounts have not been recovered from third parties, the petitioners will be entitled to refund. Even, the computation of the amount of refund with interest will have to be made by the said officer. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is contended that the rates of licence fee were never fixed by the Board resolutions of the first respondent and were never published in an official gazette. 3. The petitioners had filed Writ Petition No.2277 of 1984 against the first respondent which was disposed of along with other connected petitions. The said writ petition was inter alia filed for challenging withdrawal of the facility of entry pass granted to the employees of the petitioners. In a group of petitions before this Court, there was a challenge to the International Airports Authority of India (General Management, Entry for ground handling of Air Transport Services) Regulations, 1984 (for short the said Regulations of 1984 ) brought into force by a notification dated 5th June 1984 of the first respondent and, in particular to Regulation 5(c). A portion of the Regulation 5(c) was struck down by the Division Bench of this Court by judgment and order dated 13th April 1984. While allowing the petition filed by the petitioners, it was held that the petitioners were entitled to carry on business of ground handling services at Mumbai Airport so long as the said Regulations of 1984 were in force and subject to comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf. Moreover, they have been allotted parking facility in the open area of the airport. It was pointed out by the petitioners that they were willing to pay licence fee at the rate which is more than 2%, provided all the facilities which are extended to Cambatta Aviation were extended to them. By a letter dated 4/5th December 1996, the first respondent informed the petitioners that the cheque was accepted without prejudice to their rights and contentions and the amount has been adjusted towards part payment of the dues payable by the petitioners. Certain information was demanded from the petitioners. 6. Along with letter dated 6th December 1996, the petitioners forwarded further amount of ₹ 23,993.70 by cheque towards the licence fee at the rate of 2% per annum. On 8th November 1996, a letter was addressed by the first respondent to various airlines operating at Mumbai Airport informing them that the ground handling can be done by the agencies mentioned in the said letter which did not include the name of the third petitioner. Being aggrieved by the said letter, a contempt petition being Contempt Petition No.3 of 1996 was filed by the petitioners alleging breach of the dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also paying a sum of ₹ 15 lakh in two equal installments of ₹ 7,50,000/ each payable on 30th June 1997 and 31st December 1997 respectively. In the meanwhile, the first respondent came out with the Airports Authority of India (General Management and Entry for Ground Handling Services) Regulations, 2000 (for short the said Regulations of 2000 ). It appears that in the 58th Board meeting of the first respondent held on 26th December 2001, it was decided to charge 11% royalty on gross turnover from the existing ground handling agents pending final decision on award of fresh contracts. Another important development took place when the second respondent, which is a limited company, took over the management of Mumbai Airport on the basis of the execution of following documents: (1) Operation Management and Development Agreement dated 4th April 2006 (for short OMDA ); (2) Shareholders Agreement dated 4th August 2001; (3) Lease Deed dated 26th April 2006; (4) State Support Agreement with Government of India; (5) State Support Agreement with Government of Maharashtra. The second respondent issued a circular dated 21st June 2007 enhancing the royalty from 11% to 15% of gross t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioners under protest. 14. The first prayer in this petition under Article 226 of the Constitution of India is for quashing the letter dated 6th December 1996 by which a demand of licence fee was made from the petitioners. The second challenge by way of amendment is to the circular dated 21st June 2007 issued by the second respondent by which royalty was enhanced from 11% to 15% with effect from 1st July 2007. There is a prayer made against the first and second respondents to refund the amount paid by the petitioners to them with an interest at the rate of 12% per annum. 15. There is a reply filed to the petition by Shri Ashok Arora on behalf of the first respondent. Various contentions have been raised in the reply. The first contention is that the petitioners unilaterally paid licence fee at the rate of 2% of gross turnover from July 1986 to December 1986. The said amount was paid unilaterally and thereafter, the amounts were paid by the petitioners from time to time. In the reply, Shri Arora has contended that the said Regulations of 1984 provided for levy of fees on parties providing ground handling services. Reliance is placed on the Board Resolution passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. It is contended that the second respondent has a power to impose a licence fee/royalty on ground handling agencies using the premises of Mumbai Airport. It is contended that the circular dated 21st June 2007 issued by the second respondent by which percentage of licence fee/ royalty payable by all the ground handling agencies was increased from 11% to 15% is legal. It is contended that the second respondent has been authorized under the OMDA to license the premises of the Mumbai Airport for carrying out certain functions. Reliance is placed on various provisions of OMDA and contended that under the relevant clauses thereof, the second respondent has right and control over the Mumbai Airport for the purpose of non aeronautical services. Reliance is placed on interim orders passed from time to time in the petition and, in particular the order dated 9th April 2009 in Notice of Motion No.156/2009 of which we have already made reference. The second respondent has placed reliance on Aeronautical Information Circular (AIC) Nos.7 of 2007 and 3 of 2010 which authorised the second respondent to engage ground handling service providers on the basis of revenue sharing. The first pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision of the Apex Court in the case of Sreenivasa General Traders v. State of Andhra Pradesh 1955 SCC OnLine Cal 177 3 (1983) 4 SCC 353. Reliance was placed on the said decision as it lays down the test for determination whether a particular levy is a tax or fee. On the same point, she relied upon another decision of the Apex Court in the case of State of Jharkhand and others v. Tata Commins Ltd. and another (2006) 4 SCC 57. She invited our attention to the decision of the Apex Court in the case of Consumer Online Foundation and others v. Union of India and other (2011) 5 SCC 360. This decision is on interpretation of section 22 of the said Act of 1994. The learned counsel appearing for the petitioners also relied upon the decision of the Apex Court in the case of Binayak Swain v. Ramesh Chandra Panigrahi AIR 1966 SC 948. She relied upon another decision of the Apex Court in the case of C.K.Sasakan v. Dhanalakshmi Bank Ltd. (2009) 11 SCC 60 On the prayer for the refund of the amounts paid, the learned counsel for the petitioners relied upon what is held by the Constitution Bench of the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against the second respondent. The said issue is no longer res integra as a Division Bench of this Court in the case of Federation of Indian Airlines v. Airports Authority of India and others (supra) has already decided this issue. The second respondent herein was also the second respondent in the said case. Paragraphs 84 and 85 of the said judgment which deals with the same objection read thus: 84. The source of the power to impose airport levy, to collect and recover it, is traced to the statute, namely, The Airports Authority of India Act. It is the statute which empowers the AAI to execute the lease bearing in mind the object and purpose for which the Act itself is made and the discretion under section 12 A(1) is conferred. The discretionary power to make a lease is to be exercised in the public interest or in the interest of better management of airports. Thus, absent these provisions, on the own showing of the respondent No.2, there could not have been any OMDA. If there could not have been OMDA, there could not have been then taking over of some of the functions of respondent No.1. These functions are defined in the statute and to be performed in accordance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng beyond it, then, definitely the rights and which are in issue, include the one flowing from Article 14 of the Constitution of India. That guarantees equality before law and equal protection of laws. If there is no equality before law, as alleged, and subsequently proved or if equal protection of laws is denied though extended to similarly affected or placed parties, then, this Court will not hold its hands and refuse to issue the prerogative writs. Its power is very wide and in terms of this Article. Merely because MIAL claims to be a private entity is no answer to resist this petition. Going by the issues projected and involved, we are of the firm opinion that the writ petition raises a public law question. The entity may be private, but the question involved is a public law one. That is about the right or the power to impose the levy styled as airport levy on the airline operators. They claim that for certain services which are not rendered at the airport by them, the Airports Authority of India and, through it, the MIAL has no power, authority and jurisdiction to impose the levy. The statute does not permit such imposition is the essential contention. The levy is beyond the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to the particular action, the activity in which the State and the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. This is the precise test which is evolved by the Hon'ble Supreme Court which we are bound to apply. Having applied that, we do not think that the larger issue with reference to Article 12 of the Constitution of India could in any way be decided by us. We confine ourselves to the action in this case which we think is purely in the realm of public law. To hold that it has only a private law character would mean ignoring a host of other relevant circumstances. These circumstances are that the airline companies and their Federation has, in impugning and challenging the decision or action of respondent Nos.1 and 2, impleaded both of them. Secondly, it is their argument that the power which the second respondent relies on is derived from the first respondent and the document executed or the transactions entered into between respondent Nos.1 and 2. Respondent No.1 certainly performs a public duty and a public function. It is obliged to act in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerality of the provisions contained in sub sections (1) and (2), the Authority may (a) plan, develop, construct and maintain runways, taxiways, aprons and terminals and ancillary buildings at the airports and civil enclaves; (aa) establish airports, or assist in the establishment of private airports, by rendering such technical, financial or other assistance which the Central Government may consider necessary for such purpose; (b) plan, procure, install and maintain navigational aids, communication equipment, beacons and ground aids at the airports and at such locations as may be considered necessary for safe navigation and operation of aircrafts; (c) provide air safety services and search and rescue, facilities in co ordination with other agencies; (d) establish schools or institutions or centres for the training of its officers and employees in regard to any matter connected with the purposes of this Act; (e) construct residential buildings for its employees; (f) establish and maintain hotels, restaurants and restrooms at or near the airports; (g) establish warehouses and cargo complexes at the airports for the storage or processing of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing contained in this Act, the Authority may, in the public interest or in the interest of better management of airports, make a lease of the premise of an airport (including buildings and structures thereon and appertaining thereto) to carry out some of its functions under section 12 as the Authority may deem fit; Provided that such lease shall not affect the functions of the Authority under section 12 which relate to air traffic service or watch and ward at airports and civil enclaves. (2) No lease under sub section (1) shall be made without the previous approval of the Central Government. (3) Any money, payable by the lessee in terms of the lease made under sub section (1), shall form part of the fund of the Authority and shall be credited thereto as if such money is the receipt of the Authority for all purposes of section 24. (4) The lessee, who has been assigned any function of the Authority under sub section (1), shall have all the powers of the Authority necessary for the performance of such functions in terms of the lease. It was further held that the source of power to impose airport levy, to collect and to recover, is traceable to the said Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge that for the services and facilities to be provided in the above manner, the authority may charge fees or rent from persons who are given the facility, particularly of carrying on any trade or business at any airport, heliport or airstrip without the previous approval of the Central Government may be partially correct but completely side tracking or ignoring the Central Government would be improper and an incomplete reading of the enactment. The Central Government may give instructions to the AAI from time to time in relation to the charging of fees or rent from persons, who are given any facility for carrying on any trade or business, by the authority. The Central Government in terms of these instructions and its general supervising power give instructions, but merely because specific instructions to AAI are not on record and, therefore, there is absolute power or authority in either the AAI or the second respondent would mean they can fix the fees or rent without any interference by even the Central Government. That would be doing violence to the plain and unambiguous provision of the Act, namely the AAI Act. There may not be instructions and expressly issued for this purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in it all these components. This rent is charged essentially for use of the airport premises for the purpose of setting up the centres, kiosks, booths etc. Therefore, when airline companies utilise or use the airport premises in such manner obviously if any rent is charged they have to pay it and even to MIAL and MIAL is so empowered to recover it. (underline supplied) Ultimately, as regards the authority of second respondent to levy fees, in paragraph 132, the Division Bench held thus: 132. We have already and in great details referred to the object and purpose of the AAI Act, how that is achieved by the various provisions of which we prefer a harmonious reading that it is only in terms of the statute that this lease is created. The making of the lease itself is permissible on account of the powers conferred by the statute. That is also not absolute as we have noted above. The lease cannot override the provisions of the Act or render them nugatory and meaningless. No provision in the statute can be read in isolation and its scheme rendered redundant by the process desired by the second respondent. Therefore, OMDA is not the source of the power. If that source is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 2 thereof. Clause (ii) of paragraph 2 provides that entry into and remaining into movement area for operating any vehicle or other equipment for ground handing including ramp handling and traffic handling of any aircraft shall be restricted to operator agency which was engaged in the performance of such handling of such aircraft immediately before the date of publication of the said order subject to such condition as may be prescribed from time to time by the Director General of Aviation. In relation to international airport at Mumbai, Calcutta and Madras, the International Airports Authority of India (General Management of Ground Handling of Air Transport Services) Regulations, 1982 were published. The said Regulations seek permit to entry into and remaining into movement area as provided in the Government Order dated 18th January 1972. The said Regulations of 1984 contained similar provisions. The said Regulations of 2000 expanded the scope of ground handling activities. Clause (e) of regulation 2 of the said Regulations of 2000 reads thus: 2. Definitions. In these regulations, unless the context otherwise requires: (a) to (d) .. .. .. .. .. .. .. (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits selection of ground handling service providers at metropolitan airports at Delhi, Mumbai, Calcutta and Hyderabad. 26. The Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2007 contain similar definition of ground handling in regulation 2(e) which is similar to the same definition in the said Regulations of 2000. Regulations 3 and 4 of the said Regulations of 2007 are on par with the corresponding Regulations in the said Regulations of 2000. On 2nd June 2010, the Director General of Civil Aviation issued guidelines (IAC) in supersession of earlier guidelines (IAC) of 28th September 2007. 27. We must note here that none of these Regulations or guidelines which are referred above confer a specific power on the first respondent Airports Authority of India to charge fee or rent. As stated earlier, firstly, the said statutory power is found in section 17 of the said Act of 1971 wherein it is provided that 17. Power of the Authority to charge fees, rent, etc. The Authority may, (i) with the previous approval of the Central Government, charge fees or rent, (a) for the landing, housing or parking of aircraf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nline Foundation and another v. Union of India and others (supra), the Apex Court dealt with section 22 of the said Act of 1994. In paragraph 20, the Apex Court held thus: 20. The charges, fees and rent collected by the Airports Authority under Section 22 are for the services and facilities provided by the Airports Authority to the airlines, passengers, visitors and traders doing business at the airport. Therefore, when the Airports Authority makes a lease of the premises of an airport (including buildings and structures thereon and appertaining thereto) in favour of a lessee to carry out some of its functions under Section 12, the lessee, who has been assigned such functions, will have the powers of the Airports Authority under Section 22 of the Act to collect charges, fees or rent from the third parties for the different facilities and services provided to them in terms of the lease agreement. The legal basis of such charges, fees or rent enumerated in Section 22 of the 2008 Act is the contract between the Airports Authority or the lessee to whom the airport has been leased out and the third party, such as the airlines, passengers, visitors and traders doing business at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government may give instructions to the first respondent from time to time in relation to charging of fees or rent from persons who are given any facility for carrying on a trade or business at any airport by the Authority. The Division Bench held that merely because specific instructions given to the first respondent by the Central Government are not on record, it does not mean that there is absolute power or authority either in the first or second respondent. The Division Bench held that the provisions of section 22 merely enable charging of fees or rent but the provisions cannot be read as enabling levy of a charge, fees or rent. In paragraph 123, the Division Bench observed that the first respondent or second respondent can charge rent for use of the airport premises for the purpose of setting up the centres, kiosks, booths etc. It was observed that .......What is contemplated by section 22 (ii) is the facility for carrying on any trade or business. The charge of rent or fees is from persons who are given by the authority any facility for carrying on any trade or any business at any airport. This facility given by the AAI to such persons and that function in turn being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tober 1995. 30. The Board of the first respondent in its 62nd meeting held on 3rd September 1984 passed a resolution of charging licence fee of 10% of gross turnover from the agencies providing ground handling services to the airlines. A proposal moved before the Board is also annexed. In the said proposal it is mentioned thus: 7. .. .. Keeping in view the profitability of ground handling services, the fee of 2 percent is considered to be too insignificant and low. It is understood that Singapore Air Terminal Services (SATS) are paying 10% of their gross turn over from ground handling services to the Singapore Airports Authority. This agreement has come to an end the new agreement is likely to provide for even higher share. It is proposed that IAAI may fix a licence fee or 10% of the gross turn over as fee for permitting ground handling services. This will be in addition to the payment of licence fee for any specific space provided to the agency for this purpose. This rate will apply to national carriers as well as private agencies. There is no proposal to charge any fee for ground handling services provided by any airline for its own operations. 8. To sum up the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnover from the existing ground handling agents. Thus, the rate of 11% will be applicable from 26th December 2001. 33. Now we come to the further increase made from 11% to 15% of the gross turnover. The said circular was issued by the second respondent on 21st June 2007 by which licence fee/ royalty was increased from 11% to 15% with effect from 1st July 2007. The second respondent was well within its power to do so by virtue of clause (ii) of section 22 of the said Act of 1994. 34. Thus, the demand for levy of licence fee at the rate of 2% of annual turnover for a period prior to 4th October 1995 is illegal. However, the demand of licence fee at the rate of 10% from 3rd September 1984 is lawful. There is no legal basis for charging the same at the rate of 11% till 26th December 2001 as a decision was taken by the Board of the first respondent on 26th December 2001. The second respondent is justified in demanding the licence fee at the rate of 15% from 1st July 2007. For any subsequent increase, there is no specific challenge to the same in the petition. Thus, the first respondent was entitled to recover licence fee at the rate of 10% of the annual turnover from 3rd September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nship between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a 'tax' and a 'fee'. Sea: The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005: AIR 1954 SC 282: 1954 SCJ 335, H. H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore 1963 Supp 2 SCR 302: AIR 1963 SC 966; The Hingir Rampur Coal Co. Ltd. v. State of Orissa (1961) 2 SCR 537: AIR 1963 SC 459; H. H. Shri Swamiji of Shri Admar Mutt v. Commissioner, Hindu Religious and Charitable Endowments Department (1980) 1 SCR 368:(1979) 4 SCC 642: 1980 SCC (Tax) 16; SouthernPharmaceuticals and Chemicals, Trichur v. State of Kerala (1982) 1 SCR 519: (1981) 4 SCC 391: 1981 SCC (Tax) 320 and Municipal Corporation of Delhi v. Mohd. Yasin AIR 1983 SC 617: (1983) 3 SCC 229: 1983 SCC (Tax) 154. 31. There is no generic difference between a tax and a fee. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion is whether the petitioners are entitled to refund. The learned counsel appearing for the petitioners relied upon the decision of the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India (supra) and, in particular paragraph 108 thereof. Paragraph 108 reads thus: 108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax duty is claimed on the ground that it has been collected from the petitioner/plaintiff whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis interpreting or mis applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the enactment, can be made either by way or a suit or by way of a writ petition. This principle is, however, subject to an exception: where a person approaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be reopened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, C.J. in Tilokchand Motichand, (1969) 1 SCC 110: (1969) 2 SCR 824: AIR 1970 SC 898 and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlying Clause (c) of Sub section (1) of Section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without re opening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund. (v) Article 265 of the Constitution has to be construed in the light of the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes like Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Sub section (3) of Section 27 of the Customs Act, 1962, as amended by the said Amendment Act, all claims for refund (excepting those which arise as a result of declaration of unconstitutionality of a provision whereunder the levy was created) have to be preferred and adjudicated only under the provisions of the respective enactment. No suit for refund of duty is maintainable in that behalf. So far as the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32 is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11 B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it over ride it. The power under Article 226 is conceived to serve th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no legal basis for increasing the same to 11% till 26th December 2001. The second respondent is justified in demanding the licence fee at the rate of 15% from 1st July 2007. If there is any subsequent increase, there is no specific challenge to the same in the petition. Thus, the first respondent was entitled to recover licence fee at the rate of 10% of the annual turnover from 3rd September 1984 till 26th December 2001. From 26th December 2001, the first respondent and from the date of execution of the OMDA, the second respondent were entitled to claim fee at the rate of 11%. From 1st July 2007, the levy at the rate of 15% is justified. There is no material placed on record by the petitioners to show whether or not the payments made by them at the rates of 2% (prior to 4th October 1995), 10% (prior to 3rd September 1984), 11% (prior to 26th December 2001) and 15% (prior to 1st July 2007) have been recovered by the petitioners from the airlines or agencies which employed them. We, therefore, propose to direct the Director of Civil Aviation to appoint a competent officer to make an adjudication on the question whether the petitioners have recovered the aforesaid amounts paid to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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