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TMI Blog2025 (4) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... red herein as 'Opposite Parties') alleging contravention of the provisions of Section 4 of the Act. 2. As per the Information, Informant No.1 is an NGO working in the field of curbing corruption under the name 'Fight against Corruption' represented by its trustee Shri Deepak Vashisht. Informant No.2 is stated to be a group of contractors' with the name 'Contractor Council of India' represented by its President Shri Ajit Singh Gaur. It claims to be a third-party service provider engaged in providing construction services at Delhi and Indore airports. 3. As stated in the Information, OP-3/DIAL is a joint venture, formed as a consortium between GMR Airports Limited, Airports Authority of India and Fraport AG Frankfurt Airport Services Worldwide. OP-4/GIL is a leading global airport platform company with over two decades of experience in designing, constructing, and operating world- class sustainable airports. OP-5/Fraport AG Frankfurt Airport Services Worldwide, is a German transport company which operates Frankfurt Airport in Frankfurt am Main and holds interests in the operation of several other airports around the world. 4. As per the Informants, OP-4 entered into a joint sector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged to be aligning with particular players and facilitating the victory of the aligned entity in tenders floated by OP-3. It is stated that OP-4, in collaboration with Tenaga Parking Services (India) Pvt. Ltd. ('TPSPL'), has established a new company named Delhi Airport Parking Services Private Limited ('DAPSL') for the purpose of leveraging the name and experience of Tenaga Parking Services and also meeting the criteria set by OP-4 itself for parking tenders. Formation of DAPSL is stated to have occurred without following any competitive bidding process to favor OP-4 as one of the major stakeholders of DAPSL. In this regard, it is further stated that the shareholding structure of DAPSL, indicates that TPSPL holds only a 10% stake, while the majority shareholding 49.90% and 40% is retained by OP-3 and OP-4, respectively. This shareholding structure is alleged to be a mechanism that inhibits other players from entering the market. It has also been alleged that the Concessionaire Agreement has been violated by depriving due profits from OP-4 to Government of India and creating losses to public money where OP-4 holds 40% extra share on top of its stake in OP-3. 8. The Informant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Encalm at the IGI Airport in Delhi by OP-3/OP-4? c. On what basis DAPSL and Encalm were awarded with the contract to operate and maintain parking services and for providing lounge services respectively by OP- 3/OP-4? Was there any requirement of competitive bidding to be followed by OP- 3/OP-4 for provisioning of these services by DAPSL and Encalm under any law/agreement specifically under clause 8.5.7(i)(c) of the Concessionaire Agreement dated 04.04.2006? d. If the above-mentioned contracts/works were awarded to DAPSL and Encalm through competitive bidding, then provide the details of the concerned tender(s) along with list of participants/bidders and their respective quotes. e. Does the value of the contracts/agreements which awarded the provision of parking services and the lounge facilities/services at IGI Airport exceeded Rs. 50,00,00,000/- (Rupees Fifty Crores Only)? f. Any other relevant information for the instant matter. 12. OP-3 and OP-4 filed Interim Application ('I.A.') Nos. 287 and 286 of 2024 dated 08.10.2024 respectively wherein request was made for an extension of time to file comments/responses sought vide order dated 04.09.2024. The Commission consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years limitation period under the proviso to Section 19(1) of the Act. Further, the Informants have also failed to justify or provide an explanation to satisfy the Commission with a sufficient cause to entertain a time barred information and thus a closure under Section 26(2) of the Act should be passed by the Commission on this ground alone. iii. The interim relief prayed by the Informant in form of an order under Section 33 of the Act, cannot be granted as the Informants have not made any submissions to establish any mandatory requirements laid down by the Hon'ble Supreme Court in Competition Commission of India v. Steel Authority of India Limited & Anr., Civil Appeal No. 7779 of 2010 to invoke the powers of the Commission under Section 33 of the Act. Moreover, such relief can also not be granted as the Informants have not filed a separate application seeking an interim relief under Section 33 of the Act enlisting reasons/impact on market before the Commission. iv. The Information does not have a supporting affidavit under erstwhile Section 65B of the Indian Evidence Act, 1872 or current Section 63 of the Bharatiya Sakshya Adhiniyam 2023, with respect to the e-acknowledgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of OP-3 under such contract to AAI, in the event of termination or expiry of OMDA. The Article 8.5.7 (i)(d) read with Article 8.5.7(i)(f) contemplates the entering of contracts with Group Entity of OP-3 (related party transactions). For entering into such contracts AAI checks that (i) OP-3 has adopted the procedure set out in Schedule 12 of the OMDA; (ii) the terms of the contract are on arms-length, equitable and are not inconsistent with or contrary to the letter and spirit of OMDA. Thus, OP-1 checks and once it confirms the compliance by OP-3 of such aspects, the matter is placed before the Board of Directors for its consideration and approval. Hence, the necessary checks and balances are provided in and adhered to by DIAL in these related party transactions. Furthermore, OP-3 on periodic basis, submits the details of the executed contracts and shareholding pattern of the counter parties of such contracts to OP-1. It is submitted that OP-1 was duly informed of all the action undertaken by OP-3 in relation to awarding the concessions for parking facility at the IGI Airport. viii. Article 12.2 of the OMDA provides for 'Charges for Non-Aeronautical Services', in terms of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn over in relation to third party services had been fixed at 13% by OP-1 which was accordingly continued by OP-3 on a uniform and unchanged basis, i.e., the rate of the fee/charges has remained unchanged, and the same is uniformly payable by all service providers. The rate is accordingly known to all market participants operating at IGI Airport. Given that a similar charge is levied at other major airports as well regardless of whether such airports are operated by OP-1 or private concessionaires, raising this issue is totally meaningless. 16. OP-4, in its submissions, stated that OP-3 handles all the operational contracts for IGI Airport and OP-4 is not involved in the selection and/or execution of operational contracts in relation to IGI Airport. The process in relation to awarding the contract to (i) DAPSL, and (ii) Encalm (in compliance with the OMDA), has been undertaken solely by OP-3, with no involvement of OP-4. 17. OP-4 submitted that a composite scheme of amalgamation and arrangement under Section 230 to 232 of the Companies Act, 2013 amongst GMR Airports Limited, GMR Infra Developers Limited and GMR Airports Infrastructure Limited (formerly GMR Infrastructure Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormants in the Information is correct. GIL as a part of its growth strategy made an investment through acquisition of 40.10% equity stake from the shareholder of DAPSL who wanted an exit. The acquisition of the shareholding of DAPSL was undertaken in compliance with the: (a) Shareholders' Agreement dated 12.02.2010 of DAPSL; and (b) Request for proposal ('RFP') dated 15.10.2009. It was also stated that the shareholding of DAPSL has subsequently been changed. iv. OP-4 should be excluded from the proceedings as it does not fulfil the criteria for a proper party and/or necessary party in the matter. The allegation in the Information primarily is in relation to operational contract for operating the parking facility at IGI Airport (by DAPSL) that had been entered with OP-3. OP-4 had no role to play in awarding the said contract to DAPSL and the decision was independently taken by OP-3. Similarly, GIL was not involved in awarding the contracts for lounge facilities to Encalm at the IGI Airport. Furthermore, the allegations raised in the Information such as - "...GMR holds 40% extra share on top of its stake in DIAL..." and "...'GMR' in its capacity within the airport services sector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handles all the operational contracts for IGI Airport and OP-4 is not involved in the selection and/or execution of operational contracts in relation to IGI Airport. The same was also corroborated by OP-3 in its submissions. In view of the submissions of both OP-3 and OP-4, the Commission deems it fit to analyze the conduct of OP-3 alone for the purpose of examination of allegations in the present matter. 24. With regard to allegation under Section 4(2)(a)(i) of the Act, it is noted that the Informants have not given any evidence with regards to the imposition of unfair conditions or exorbitant charges. OP-3, in its submission, has stated that charges in relation to the aeronautical services is fixed by the statutory regulator i.e., Airports Economic Regulatory Authority, and the charges in relation to non-aeronautical services were fixed by OP-3 based on competitive metrics. It was also stated that provisions under Section 4 of the Act do not contemplate violations based on speculative or potential future abuse. 25. With regard to the allegation of imposition of 13% fee on tenders, OP-3 stated that even before the execution of OMDA, the fee / charges payable on the gross turn ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities constituting Aeronautical Services, and Non-Aeronautical Services (but excluding Reserved Activities) at the Airport and the JVC hereby agrees to undertake the functions of operation, maintenance, development, design, construction, upgradation, modernization, finance and management of the Airport and at all times keep in good repair and operating condition the Airport and to perform services and activities constituting Aeronautical Services and Non-Aeronautical Services (but excluding Reserved Activities) at the Airport, in accordance with the terms and conditions of this Agreement (the "Grant"). 2.1.2 Without prejudice to the aforesaid, AAI recognizes the exclusive right of the JVC during the Term, in accordance with the terms and conditions of this Agreement, to: (i) Develop, finance, design, construct, modernize, operate, maintain, use and regulate the use by third parties of the Airport; (ii) Enjoy complete and uninterrupted possession and control of the Airport Site and the Existing Assets for the purpose of providing Aeronautical Services and Non- Aeronautical Services; (iii) Determine, demand, collect, retain and appropriate charges from the users of the Airpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned that DIAL issued the RFP dated 15.10.2009 and carried out a competitive bidding process, in which ten domestic and international entities participated. Based on a technical and financial evaluation of the bids submitted, a consortium of Greenwich and Tenaga was identified as the highest bidder for the purpose of awarding the concession for parking services. Subsequently, in accordance with the requirement of the bid documents, the selected bidder incorporated special purpose vehicle ('SPV') i.e., DAPSL on 11.02.2010 and in line with the bid requirements, DIAL opted to acquire 49.9% shareholding in DAPSL vide the Shareholders' Agreement, which was executed on 12.02.2010. Therefore, the Commission observes that the entity for parking services was selected through a competitive bidding process, in compliance with the OMDA agreement. Thus, the allegation raised in the Information, under Section 4(2)(b), 4(2)(c) and 4(2)(e) of the Act, in relation to the award of parking services to entities allegedly under significant control of OP-3 is unsubstantiated. 32. Similarly, with regard to the allegation pertaining to lounge services, OP-3 has stated that Encalm is an independe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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