AIRPORTS AUTHORITY OF INDIA vs DELHI INTERNATIONAL AIRPORT LIMITED

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2024 Supreme(Online)(DEL) 31606

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 15 May 2024 Judgment pronounced on: 18 October 2024 + O.M.P. (COMM) 17/2023 & IA Nos. 785/2023, 787/2023 AIRPORTS AUTHORITY OF INDIA ..... Petitioner Through: Mr. Tushar Mehta, SG with Mr.
Raghav Shankar, Mr. Prateek Arora, Mr. Karan, Mr. Anubhab Atreya, Ms. Rishieka Ray, and Ms. Pallavi Misra, Advs.
versus DELHI INTERNATIONAL AIRPORT LTD. ..... Respondent Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Milanka Chaudhury, Ms. Naina Dubey, Ms. Harshita Agarwal, Mr. Ravneet Singh, Mr. Lynn Pereira, and Mr. Chaitanya Kaushik, Ms. Seema Mehta, Mr. Vikalp Mudgal, Mr. Saket Sikri, Ms. Priya Singh, Advs.
+ O.M.P. (COMM) 18/2023 & IA Nos. 788/2023, 790/2023 AIRPORTS AUTHORITY OF INDIA ..... Petitioner Through: Mr. Tushar Mehta, SG with Mr.
Raghav Shankar, Mr. Prateek Arora, Mr. Karan, Mr. Anubhab Atreya, Ms. Rishieka Ray, and Ms. Pallavi Misra, Advs.
versus MUMBAI INTERNATIONAL AIRPORT LTD... Respondent Through: Mr. Kapil Sibal, Mr. Rajiv Nayyar, Sr. Advs. with Mr. Saket Sikri, Mr. Mahesh Agarwal, Mr. Manu Krishnan, Ms. Pallavi, Mr.
Signature Not Verified O.M.P. (COMM) 17/2023 & 18/2023 Page 1 of 241 Digitally Signed R.K. Mohit, Mr. Ajay Pal Singh, Mr. K.V. Srinivas, Ms. Priya Singh, Mr. Vignesh Raj, Mr. Ankur Chawla, Mr. Aditya Samaddar and Mr. R.K. Mohit Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA

JUDGMENT

YASHWANT VARMA, J.

1. These two petitions under Section 34 of the Arbitration and Conciliation Act, 1996, [Act] instituted by the Airport Authority of India, AAI seek to assail the Awards dated 16 July 2022 as corrected in terms of Section 33 of the Act by an order dated 29 August 2022 for Mumbai International Airport Ltd, [MIAL]. The Arbitral Tribunal, [Tribunal] which comprised of three former Supreme Court Justices has rendered an Award, with two of the learned Arbitrators joining in rendering the Majority Opinion with the Presiding Arbitrator delivering a dissent. The Court shall, for the sake of brevity, refer to the views as expressed as the Minority and Majority Opinions. Both MIAL as well as the Delhi International Airport Limited, [DIAL] had raised similar disputes. The operative part of the impugned Award made in the matter of DIAL is extracted hereinbelow:

―Operative portion of the Award

The Award consists of two parts - (1) the A ward made by the Presiding Arbitrator; and (2) the Award made by the two Co- Arbitrators (Justice J. Chelameswar and Justice B. Sudershan Reddy).

The award of the Presiding Arbitrator sets out the facts and deals with all claims/reliefs. The award by the Co-Arbitrators deals with those claims/reliefs in respect of which they have taken a view differing from that of the Presiding Arbitrator.

In regard to the claims/reliefs on which the two Co- Arbitrators have taken a view different from that of the Presiding Arbitrator, their award, being the majority award would be the decision of the Tribunal and the award of the Presiding Arbitrator on those matters, will be the minority award.

Where the Co-Arbitrators have agreed with the decision of the Presiding Arbitrator on any particular claim/relief, or do not take a view different from the view of the Presiding Arbitrator, the decisions in the A ward of the Presiding Arbitrator become the unanimous decisions of the Tribunal. In view of the above, to avoid any confusion and to bring clarity, the position emerging from the award of the Presiding Arbitrator and the award of the two Co- Arbitrators is set out below after consolidation (with the concurrence of all three members of the Tribunal):-

Prayer para	Claim	Award
7 78(a)(i) 8(a)(ii) 7 78(a)(iii) 8(a)(iv)	Declaration that the Annual Fee is payable by the Claimant to the Respondent only on the revenue generated from the Aeronautical Services (Aeronautical Charges less cost relating to Aeronautical Assets recovered) and Non- Aeronautical Services, provided at IGI Airport, with exclusions specified in the definition of "Revenue" under OMDA. Declaration that the MAF/Annual Fee is payable on the "Revenue" as defined in OMDA and not on the basis of the gross receipts credited to P&L Account. Declaration that Annual Fee is not payable on depreciation, interest on borrowed funds and the return on equity to investors (Capital Costs) and the same shall be deducted from Aeronautical Charges while arriving at 'pre-tax gross revenue". Declaration that UDF and/or PSF being an appropriate and relevant proxy for the Capital Costs component shall be deducted from Aeronautical Charges while arriving at "Revenue".	(i) It is declared that for the purpose of computing the Annual Fee payable by JVC the amounts representing the costs relating to aeronautical assets shall be excluded from the shareable revenue of JVC i.e. a) the amounts spent from the borrowed capital proportionate to each succeeding year along with the interest payable thereon) and b) the amount spent from the equity of JVC towards the costs relating to the aeronautical assets are liable to be excluded from the 'Revenue' of the JVC. (ii) the JVC is entitled for a further declaration regarding the excess payment made by JVC from 21.06.2015 by mistakenly computing the Annual Fee without deducting the amounts falling under the above mentioned Heads mentioned in the previous sub- paragraph, are liable to be refunded.
78(b)(i)	Declaration that in computing the a

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