{"file_name": "2024_10_1404_1447_EN.pdf", "text": "[2024] 10 S.C.R. 1404 : 2024 INSC 791\n\nAirports Economic Regulatory Authority of India \nv. \nDelhi International Airport Ltd. & Ors.\n\n(Civil Appeal Nos. 3098-3099 of 2023)\n\n18 October 2024\n\n[Dr Dhananjaya Y Chandrachud,* CJI,  \nJ.B. Pardiwala and Manoj Misra, JJ.]\n\nIssue for Consideration\n\nWhether Airports  Economic  Regulatory Authority  (AERA)  has  a \nright  to  contest  an  appeal  against  its  order  determining  tariff  for \naeronautical  services  before  Telecom  Disputes  Settlement  and \nAppellate Tribunal (TDSAT), and then consequently prefer an appeal \nagainst the order of TDSAT before this Court under Section 31 of \nthe Airport Economic Regulatory Authority Act, 2008; and Even if \nAERA does not have a right to contest an appeal against its order \ndetermining tariff for aeronautical services before TDSAT, does it \nhave a right to prefer an appeal against the order of TDSAT before \nthis Court in terms of Section 31 of the AERA Act.\n\nHeadnotes†\n\nJudicial  Authority  or  quasi-judicial  Authority  –  Whether  an \nAuthority can be impleaded in an appeal against its order if \nthe  order  was  issued  solely  in  exercise  of  its  “adjudicatory \nfunction”:\n\nHeld: An authority (either a judicial or quasi-judicial authority) must \nnot be impleaded in an appeal against its order if the order was \nissued solely in exercise of its “adjudicatory function”. [Para 33 (a)]\n\nJudicial  Authority  or  quasi-judicial  Authority  –  Whether  an \nAuthority  can  be  impleaded  as  a  respondent  in  the  appeal \nagainst its order if it was issued in exercise of its regulatory \nrole:\n\nHeld:  An  authority  must  be  impleaded  as  a  respondent  in  the \nappeal against its order if it was issued in exercise of its regulatory \nrole since the authority would have a vital interest in ensuring the \nprotection of public interest. [Para 33(b)]\n\n* Author\n\n\f[2024] 10 S.C.R.  \n\n1405\n\nJudicial  Authority  or  quasi-judicial  Authority  –  Whether  an \nAuthority  can  be  impleaded  as  a  respondent  in  the  appeal \nagainst its order where its presence is necessary:\n\nHeld:  An  authority  may  be  impleaded  as  a  respondent  in  the \nappeal against its order where its presence is necessary for the \neffective adjudication of the appeal in view of its domain expertise. \n[Para 33(c)]\n\nAirport  Economic  Regulatory Authority  of  India Act,  2008  – \nWhether AERA  in  exercise  of  its  power  under  Section  13(1)\n(a) of the AERA Act is discharging an adjudicatory function:\n\nHeld:  (a)  It  cannot  be  concluded  that AERA  is  performing  an \nadjudicatory  function  merely  because  Section  13(1)(a)  uses  the \nphrase  “determine”  with  respect  to  tariff  –  This  would  amount \nto  a  formalistic  interpretation  –  The  Court  ought  to  make  an \nassessment by undertaking a holistic analysis; (b) Section 13(1)\n(a) lays down seven factors which must be considered by AERA \nfor  determining  the  tariff  of  aeronautical  services  –  It  is  settled \nthat the function can be regarded as legislative even if objective \nguidelines are prescribed for the exercise of the function – Further, \nthe  provision  only  prescribes  broad  guidelines  that AERA  must \n“take  into  consideration”  – AERA  still  has  sufficient  discretion  to \nadapt  to  circumstances  and  various  concerns  while  determining \ntariff  –  The Act  does  not  prescribe  the  weightage  that  must  be \nprovided to each of the factors – That is well within the discretion \nof AERA  –  This  is  also  evident  from  Section  13(1)(a)(viii)  which \nprovides that AERA may consider “any other factor which may be \nrelevant  for  the  purposes  of  the Act”;  (c)  The  factors  which  are \nrequired to be considered by AERA indicate the underlying policy \nconsiderations of the assessment – The factors, inter alia, include \nthe cost of efficiency and economic and viable operation of major \nairports;  (d)  Section  13(1A)  requires  that  AERA  be  consulted \nregarding  tariff  and  tariff  structures  which  are  proposed  to  be \nincorporated in bidding documents – This provision elucidates that \neven if AERA does not in a strict sense, “determine” tariff in terms \nof  Section  13(1)(a),  it  will  always  be  interested  in  the  economic \nviability of airports and in that sense is a regulator of tariff – Thus, \nthe considerations of AERA while determining tariff will be those of \na regulator concerned with public and economic interests, which \nare  purely  non-adjudicatory  considerations;  (e)  Section  13(2) \n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1406 \n\n[2024] 10 S.C.R.\n\nby  enabling AERA  to  amend  the  tariff  structure  even  before  the \ncompletion  of  the  prescribed  five  year  period  in  “public  interest” \nis clearly indicative of its regulatory role in the regulatory sphere \nentrusted to it; (f) The “overarching” limitations placed on AERA’s \nfunctions by Section 13(3) resemble the grounds for reasonable \nrestrictions  prescribed  by Article  19  of  the  Constitution  –  These \ngrounds  are  limitations  on  the  broad  policy  considerations  that \nAERA  undertakes  while  determining  tariffs  –  Thus,  on  analysis \nof  the  statutory  provisions,  it  can  be  reasonably  concluded  that \nAERA is performing a regulatory function while determining tariff \nunder Section 13(1)(a) of the AERA Act. [Para 58]\n\nAirport  Economic  Regulatory Authority  of  India Act,  2008  – \nWhether AERA is a necessary party in the appeal against its \ntariff  order  before  TDSAT  and  whether  it  can  be  impleaded \nas a respondent:\n\nHeld: When it comes to appeals against the tariff orders issued by \nAERA, it is not just acting as an ‘expert body’ but as a regulator \ninterested  in  the  outcome  of  the  proceedings  –  AERA  has  a \nstatutory  duty  to  regulate  tariff  upon  a  consideration  of  multiple \nfactors  to  ensure  that  airports  are  run  in  an  economically  viable \nmanner without compromising on the interests of the public – This \nstatutory role is evident, inter alia, from the factors that AERA must \nconsider  while  determining  tariff  and  the  power  to  amend  tariff \nfrom  time  to  time  in  public  interest  as  discussed  above  –  When \nAERA  determines  the  tariff  for  aeronautical  services  in  terms  of \nSection 13(1)(a) of the AERA Act, it is acting as a regulator and \nan interested party – It is interested not in a personal capacity – \nIts  interest  lies  in  ensuring  that  the  concerns  of  public  interest \nwhich  animate  the  statute  and  the  performance  of  its  functions \nby AERA are duly preserved – Thus, AERA is a necessary party \nin the appeal against its tariff order before TDSAT and it must be \nimpleaded as a respondent. [Para 63]\n\nAirport  Economic  Regulatory Authority  of  India Act,  2008  – \ns. 31 – Power of AERA to file an appeal against the order of \nTDSAT before this Court:\n\nHeld: Section 31 does not expressly confer AERA with the right to \nfile an appeal against the order of TDSAT before this Court – In \nfact, it does not confer that power to any party expressly – There \nare three ways in which provisions dealing with statutory appeal \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1407\n\nare drafted – First, the provision may not prescribe who can file \nan  appeal  such  as  Section  31  of  the AERA Act  –  Second,  the \nprovision  may  provide  that  an  appeal  may  be  preferred  by  a \n‘person aggrieved’ such as under the Electricity Act96, the Major \nPort Authorities Act 2021, the Securities and Exchange Board of \nIndia Act 1992 and the Pension Fund Regulatory and Development \nAuthority Act 2012 – The third category is where the statute confers \n‘any party’ with the right to file an appeal as under the Companies \nAct 2013 – With respect to the first of the three categories, at a \nminimum the parties to the appeal before first appellate body (in \nthis  case  TDSAT)  will  have  a  right  to  file  an  appeal  before  this \nCourt – AERA can file an appeal under Section 31, it is a necessary \nparty  in  the  appeals  against  the  tariff  orders  issued  by  it  –  The \nappeals filed by AERA against orders of TDSAT under Section 31 \nof the AERA Act are maintainable. [Paras 66, 67]\n\nCase Law Cited\n\nBar Council of Maharashtra v. MV Dabholkar [1976] 1 SCR 306 : \n(1975) 2 SCC 702; Express Newspaper Pvt. Ltd. v. Union of India \n[1959] 1 SCR 12 : 1958 SCC OnLine SC 23; AK Kraipak v. Union \nof India [1970] 1 SCR 457 : (1969) 2 SCC 262; Maneka Gandhi v. \nUnion of India [1978] 2 SCR 621 : AIR 1978 SC 597; PTC India \nv. Central Electricity Regulatory Commission [2010] 3 SCR 609 : \n(2010) 4 SCC 603 – followed.\n\nBSES  Rajdhani  Power  Limited  v.  Delhi  Electricity  Regulatory \nCommission  [2022]  14  SCR  790  : (2023)  4  SCC  788; Sitaram \nSugar Co. Ltd v. Union of India [1990] 1 SCR 909 : (1990) 3 SCC \n223; GRIDCO v. Western Electricity Supply Company of Orissa \nLimited, 2023 SCC Online 1249; Savitri Devi v. District Jugde, \nGorakhpur [1999] 1 SCR 725 : (1999) 2 SCC 577; Udit Narain \nSingh Malpaharia v. Additional Member Board of Revenue [1963] \nSupp. 1 SCR 676 : AIR 1963 SC 786; Jogendrasinhji Vijaysinghji \nv.  State  of  Gujarat  [2015]  6  SCR  504  :  (2015)  9  SCC  1; Syed \nYakoob  v.  KS  Radhakrishnan  [1964]  5  SCR  64  :  1963  SCC \nOnLine SC 24; State Transport Authority Tribunal and Regional \nTransport Authority,  Meerut  v.  Mohd.  Lucman  Shariff,  C.A.  No. \n878 of 1963; Competition Commission of India v. Steel Authority \nof India [2010] 11 SCR 112 : (2010) 10 SCC 744; Brahm Dutt v. \nUnion of India, AIR 2005 SC 730; Vidus Impex & Traders Ltd. v. \nTosh Apartments  Pvt.  Ltd.  [2012]  10  SCR  307  : (2012)  8  SCC \n384; Thomson Press (India) Ltd. v. Nanak Builders & Investors \n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1408 \n\n[2024] 10 S.C.R.\n\nP. Ltd. [2013] 2 SCR 74 : (2013) 5 SCC 397; Ramesh Hirachand \nKundanmal v. Municipal Corporation of Greater Bombay [1992] \n2  SCR  1  :  (1992)  2  SCC  524  (14);  Karthuri  v.  Uyyamperumal \n[2005] 3 SCR 864 : (2005) 6 SCC 733; Nakkuda Ali v. MF De S \nJayaratne [1951] AC 66;  Province of Bombay v. Khushaldas S \nAdvani [1950] SCR 621; Shivji Nathubhai v. Union of India [1960] 2 \nSCR 775 : AIR 1960 SC 606; Indian National Congress (I) [2002] \n3 SCR 1040 : (2002) 5 SCC 685; SL Kapoor v. Jagmohan [1981] \n1 SCR 746 : AIR 1981 SC 136; Union of India v. Cynamide India \nLtd. [1987] 2 SCR 841 : (1987) 2 SCC 729; Saraswati Industrial \nSyndicate  Ltd.  v.  Union  of  India  [1975]  1  SCR  956  :  (1974)  2 \nSCC 630 – referred to.\n\nMd. Omer v. S Noorudin, AIR 1952 Bom 165; Jindal Therma Power \nCompany Ltd. v. Karnataka Power Transmission Corporation Ltd., \n2004 SCC OnLine Kar 204 – referred to.\n\nThe  King  v.  Inspector  of  Leman  Street  Police  Station,  Ex  Parte \nVenicoff  (1920)  3  K.B.  72;  R  v.  ex  p  London  Electricity  Joint \nCommittee Co. (1920) Ltd. (1924) 1 KB 171 (CA); Ridge v. Baldwin \n[1964] A.C 40 – referred to.\n\nBooks and Periodicals Cited\n\nCompetition  Commission  of  India  (General)  Regulations  2009; \nRegulation 25(1); Wade & Forsyth’s Administrative Law (12th ed. \nOxford University Press) 393; MP Jain & SN Jain, “Principles of \nAdministrative Law” (7th ed. Vol I, LexisNexis) 352.\n\nList of Acts\n\nAirports Economic Regulatory Authority of India Act 2008; Airports \nEconomic Regulatory Authority of India (Terms and Conditions for \nDetermination  of  Tariff  for  Services  Provided  for  Cargo  Facility, \nGround  Handling  and  Supply  of  Fuel  to  the Aircraft)  Guidelines \n2011;  Competition Act  2002; Advocates Act  1961;  Electricity Act \n2003; Companies Act 2013.\n\nList of Keywords\n\nAirports  Economic  Regulatory  Authority  (AERA);  Determining \ntariff for aeronautical services; Section 31 of the Airport Economic \nRegulatory Authority Act,  2008;  Judicial Authority;  Quasi-judicial \nAuthority; Adjudicatory  function;  Regulatory  role;  Protection  of \npublic interest; Necessary Party.\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1409\n\nCase Arising From\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3098-3099 \nof 2023\n\nFrom the Judgment and Order dated 13.01.2023 of the Telecom \nDisputes  Settlement  & Appellate  Tribunal,  New  Delhi  in AERA \nAppeal No. 07 and 03 of 2021\n\nWith\n\nCivil Appeal Nos. 1798-1799 and 1806 of 2021, Civil Appeal Nos. \n10668-10670 of 2024, Civil Appeal Nos. 3697-3698 of 2022, Civil \nAppeal  Nos.  8217  and  7767  of  2023,  Civil Appeal  Nos.  10691-\n10692, 393, 10678 and 10659 of 2024\n\nAppearances for Parties\n\nR.  Venkataramani,  AGI,  Tushar  Mehta,  Solicitor  General,  N. \nVenkataraman, A.S.G., Prashanto Chandra, Sajan Poovayya, K.K. \nVenugopal, Dr. A.M.Singhvi, Arvind Datar, Maninder Singh, Abhishek \nManu Singhvi, Sr. Advs., Buddy Ranganadhan, Ms. Nishtha Kumar, \nPrantar  Basu  Choudhury,  Shrom  Sethi,  Sahil  Tagotra,  Kartikay \nAgarwal,  Ms.  Darshita  Sethia,  Rashi  Goswami,  Ms.  Yashodhara \nBurmon  Roy,  Kunal  Tandon,  Ms.  Shweta  Bharti,  Kr.  Shashank \nShekhar, Sachin Sharma, Anil Kr Gulati, Naman Sharma, Abhishek \nKumar, Ms. Nur Tandon, Kunal Jindia, Nishant Anand, Ritesh Kumar, \nK.P.S. Kohli, Kartik Mittal, Dheerendra Singh Bisht, Ms. Yashasvini \nChandra,  Ms.  Shalini  Prasad,  Mahesh Agarwal, Ankur  Saigal,  Ms. \nAanchal Mullick, Ms. Sanjanthi Sajan Poovayya, Manu Kulkarni, Ms. \nSrishti Widge, Raksha Agarwal, Abhishek Kakker, E. C. Agrawala, \nAmit  Pawan,  Hemant  Sahai,  Rishi Agrawala,  Ms. Amrita  Narayan, \nMilanka  Chaudhary, Ankur  Talwar,  Manu  Krishnan,  Chirag  Nayak, \nMs. Naina Dubey, Ashwin Rakesh, Udai Khanna, Ms. Swet Shikha, \nSaurobroto  Dutta,  Ms.  Shwet  Shikha,  Rishubh  Kapoor,  Madhav \nSharma, Raghav Bherwani, Ms. Anwesha Padhi, Mohit D. Ram, Ms. \nNayan Gupta, Sarul Jain, Ms. Aditi Gupta, Ms. Amita Singh Kalkal, \nNikilesh Ramachandran, Ms. Neelam Rathore, Lovekesh Aggarwal, \nShubham Seth, Ms. Ayushi Yadav, Rajesh Singh Chauhan, M/s. M. \nV. Kini & Associates, A P Singh, Ms. Aakanksha Das, Tavinder Sidhu, \nAdvs. for the appearing parties.\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1410 \n\n[2024] 10 S.C.R.\n\nJudgment / Order of the Supreme Court\n\nJudgment\n\nDr Dhananjaya Y Chandrachud, CJI\n\nINDEX*\n\nA.\n\nB.\n\nC.\n\nD.\n\nStatutory Background ...................................................\n\n4\n\nSubmissions .................................................................. 11\n\nIssues ............................................................................. 14\n\nAnalysis .......................................................................... 15\n\ni.\n\nAuthorities exercising ‘adjudicatory functions’ \ncannot defend their orders in appeal .................\n\nii. Necessary and proper parties in regulatory \n\nproceedings ...........................................................\n\niii. The test of quasi-judicial functions: A \n\nmisnomer ................................................................\n\niv. The test for determining an ‘adjudicatory \n\nfunction’: Exploring Sitaram Sugar .....................\n\nv. Whether tariff determination is an adjudicatory \nfunction: PTC and GRIDCO ..................................\n\n15\n\n21\n\n29\n\n36\n\n39\n\nvi. Tariff determination for aeronautical services \n\n43\n\nby AERA is a regulatory function ........................\n\nvii.\n\nInterpretation of Sections 18 and 31 of the \nAERA Act ................................................................\n\n49\n\nE.\n\nConclusion ..................................................................... 53\n\n1.  Airports Economic Regulatory Authority1 has instituted proceedings \nunder  Section  31  of  the Airport  Economic  Regulatory Authority  of \nIndia Act 20082 for challenging the judgments of the Telecom Disputes \nSettlement and Appellate Tribunal.3 TDSAT is the Appellate Tribunal \nfor the purposes of the AERA Act and it has the competence to hear \nappeals  against  orders  of AERA.  The  respondents  have  raised  a \n\n* Ed. Note: Pagination as per the original Judgment.\n1 \n\n“AERA”\n\n2 \n\n3 \n\n“AERA Act”\n\n“TDSAT”\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1411\n\npreliminary  objection  to  the  maintainability  of  the  appeals  on  the \nground  that AERA,  which  is  a  quasi-judicial  body,  cannot  file  an \nappeal against the judgment of TDSAT. This judgment disposes of \nthe  preliminary  issue  of  whether  the  appeals  filed  by AERA  under \nSection 31 of the AERA Act are maintainable. \n\nA.  Statutory Background\n\n2.  The long title of the AERA Act provides that it is an Act to establish \nAERA  and  to  a)  regulate  tariff  and  other  charges  for  aeronautical \nservices rendered at airports; (b) monitor performance standards of \nairports;  and  (c)  for  other  incidental  and  connected  matters.4  The \nAct applies to all airports where air transport services are operated \nor are intended to be operated, other than airports in the control of \nthe Armed Forces or paramilitary forces of the Union.5 The Act also \napplies to all private and leased airports,6 all civil enclaves7 and all \nmajor airports.8 \n\n3.  Section 3 of the AERA Act stipulates that the Central Government \nmust, by a notification, establish AERA within three months from the \ndate of commencement of the Act. By a notification dated 12 May \n2009, the Central Government established AERA. Section 13 of the \nAERA Act  prescribes  the  functions  of AERA. AERA  must  perform \nthe following functions in respect of major airports: \n\na.  Determine tariff for aeronautical services [Section 13(1)(a)];\n\nb.  Determine the amount of development fees [Section 13(1)(b)];\n\nc.  Determine  the  passengers  service  fee  levied  under  Rule  88 \nof the Aircraft Rules 1937 notified under the Aircraft Act 1934 \n[Section 13(1)(c)];\n\nd.  Monitor the performance standards relating to quality, continuity \nand reliability of service as specified by the Central Government \nor any other authority authorised by it [Section 13(1)(d)];\n\n4 \n\n5 \n\n6 \n\n7 \n\n8 \n\n“An  Act  to  provide  for  the  establishment  of  an  Airports  Economic  Regulatory  Authority  to  regulate \ntariff and other charges for the aeronautical services rendered at airports and to monitor performance \nstandards of airports and for matters connected therewith or incidental thereto.”\n\nAERA Act; Section 1(3)(a)\n\nAERA Act; Section 1(3)(b)\n\nAERA Act; Section 1(3)(c)\n\nAERA Act; Section 1(3)(d)\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1412 \n\n[2024] 10 S.C.R.\n\ne.  Call for information necessary to determine the tariff [Section \n\n13(1)(e)]; and\n\nf. \n\nPerform  such  other  functions  relating  to  tariff  which  may  be \nentrusted  to  it  by  the  Central  Government  or  which  may  be \nnecessary to carry out the provisions of the Act [Section 13(1)(f)].\n\n4.  Section 13(1)(a) also prescribes the factors which AERA must take \ninto consideration to “determine” tariff. The following are the seven \nfactors provided by the provision: \n\na.  The  capital  expenditure  incurred  and  timely  investment  in \n\nimprovement of airport facilities;\n\nb.  The service provided, its quality and other relevant factors;\n\nc. \n\nThe cost of improving efficiency;\n\nd.  Economic and viable operation of major airports;\n\ne.  Revenue  received  from  services  other  than  aeronautical \n\nservices; \n\nf. \n\nThe  concession  offered  by  the  Central  Government  in  any \nagreement or memorandum of understanding or otherwise; and\n\ng.  Any  other  factor  which  may  be  relevant  for  the  purposes  of \n\nthis Act. \n\nThe proviso to Section 13(1)(a) provides that different tariff structures \nmay be determined for different airports, having regard to all or any \nof the considerations stipulated in the provision. \n\n5.  Section 13(2) provides that AERA must determine the tariff once in \nfive years and may amend the tariff at any time within the five years \nin  public  interest.9  Section  13  (1A)  provides  that  notwithstanding \nanything  in  Clauses  (1)  and  (2)  of  Section  13,  AERA  will  not \ndetermine the tariff or the structure of tariff or the development fees \nif it is incorporated in the bidding document which is the basis for \naward  of  operatorship.10  However,  the  proviso  to  Section  13(1A) \nrequires AERA to be “consulted” in advance regarding the tariff or \n\n9 \n\n13(2):  “The  Authority  shall  determine  the  tariff  once  in  every  five  years  and  may  if  so  considered \nappropriate and in public interest, amend, from time to time during the said period of five years, the tariff \nso determined.”\n\n10  AERA Act; Section 13(1A)\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1413\n\ndevelopment fee which is proposed to be included in the bidding \ndocument  and  such  fee  is  required  to  be  notified  in  the  Official \nGazette.11  Section  13(3)  provides  that AERA  is  required  to  act  in \nthe  interest  of  the  sovereignty  and  integrity  of  India,  the  security \nof  the  State,  friendly  relations  with  foreign  states,  public  order, \ndecency or morality while discharging its functions.12 Section 13(4) \nprovides  that AERA  while  discharging  its  functions  must  ensure \ntransparency  by,  inter  alia,  (a)  holding  due  consultations  with  all \nstake-holders with the airport; (b) allowing all stake-holders to make \nsubmissions before it; and (c) making all decisions of the Authority \nfully documented and explained. \n\n6.  Section 2(a) defines “aeronautical service” as the service provided \n\nfor the following: \n\na.  For navigation, surveillance and supportive communication for \n\nair traffic management;\n\nb.  For the landing, housing or parking of an aircraft or any other \nground facility offered in connection with aircraft operations at \nan airport;\n\nc. \n\nFor ground safety services at an airport;\n\nd.  For  ground  handling  services  relating  to  aircraft,  passengers \n\nand cargo at an airport;\n\ne.  For the cargo facility at an airport;\n\nf. \n\nFor supplying fuel to the aircraft at an airport; and \n\ng.  For stake holder at an airport. \n\n7.  Section 14 confers AERA with the power to call for an information and \nconduct investigation regarding the activities of a service provider. \nThe  provision  confers  it  with  the  power  to  do  the  following  by  an \norder in writing: \n\na.  Call  upon  the  service  provider  to  furnish  in  writing  such \ninformation  or  explanation  relating  to  its  functions  to  access \nthe performance of the service provider;\n\nb.  Appoint persons to inquire into the affairs of a service provider;\n\n11  AERA Act; proviso to Section 13(1A)\n\n12  AERA Act; Section 13(3)\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1414 \n\n[2024] 10 S.C.R.\n\nc.  Direct the inspection of book of accounts or other documents \n\nof any service provider; and \n\nd. \n\nIssue directions to monitor the performance of service providers. \n\n8.  The service provider is bound to produce all books of account and \ndocuments relating to the subject matter of the inquiry and furnish \nsuch  statement  or  information.  Section  15  confers AERA  with  the \npower to issue directions to service providers to discharge its functions \nunder the Act.13\n\n9.  Section  17  provides  that  TDSAT  established  under  the  Telecom \nRegulatory Authority of India Act 1997 will be the Appellate Tribunal for \nthe purposes of the AERA Act. TDSAT exercises original jurisdiction \nand  appellate  jurisdiction  under  the  Act.  Section  17(a)  confers \nTDSAT  with  the  original  jurisdiction  to  adjudicate  any  dispute  that \narises  between  (a)  service  providers;  or  (b)  service  providers  and \nconsumers. The proviso to the Clause states that TDSAT can obtain \nthe  opinion  of AERA  on  any  matter  relating  the  above  disputes. \nSection  17(b)  confers  TDSAT  with  appellate  jurisdiction  over  “any \ndirection, decision or order” of AERA.14\n\n13 \n\n14 \n\n“15.  Power  of  Authority  to  issue  directions.-  The  Authority  may,  for  the  purpose  of  discharge  of  its \nfunctions  under  this Act,  issue,  from  time  to  time  to  the  service  providers,  such  directions,  as  it  may \nconsider necessary.”\n\n“Appellate  Tribunal.-  The  Telecom  Disputes  Settlement  and  Appellate  Tribunal  established  under \nsection 14 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997) shall, on and from the \ncommencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), be the Appellate Tribunal \nfor the purposes of this Act and the said Appellate Tribunal shall exercise the jurisdiction, powers and \nauthority conferred on it by or under this Act] to— \n\n(a)  adjudicate any dispute— \n\n(i)  between two or more service providers; \n(ii)  between a service provider and a group of consumer: \nProvided that the Appellate Tribunal may, if considers appropriate, obtain the opinion of the \nAuthority on any matter relating to such dispute:\nProvided further that nothing in this clause shall apply in respect of matters— \n\n(i)  relating  to  the  monopolistic  trade  practice,  restrictive  trade  practice  and  unfair  trade \npractice which are subject to the jurisdiction of the Monopolies and Restrictive Trade \nPractices Commission established under sub-section (1) of section 5 of the Monopolies \nand Restrictive Trade Practices Act, 1969 (54 of 1969); \n\n(ii)  relating to the complaint of an individual consumer maintainable before a Consumer \nDisputes  Redressal  Forum  or  a  Consumer  Disputes  Redressal  Commission  or  the \nNational  Consumer  Redressal  Commission  established  under  section  9  of  the \nConsumer Protection Act, 1986 (68 of 1986);\n\n(iii)  Which are within the purview of the Competition Act, 2002 (12 of 2003);\n(iv) relating to an order of eviction which is appealable under section 28K of the Airports \n\nAuthority of India Act, 1994 (55 of 1994). \n\n(b)  hear and dispose of appeal against any direction, decision or order of the Authority under this \n\nAct.\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1415\n\n10.  Section 18 of the AERA Act deals with the procedure for settlement \nof  disputes  and  appeals  to  the Appellate  Tribunal.  Sub-sections \n(1) and (2) of Section 18 provide that the Central Government, the \nState  Government,  a  Local Authority  or  any  person  may  make  an \napplication for adjudication of a dispute covered by Section 17(a) or \nprefer an appeal against the order of AERA. Section 18(4) stipulates \nthat TDSAT must pass orders after giving the “parties to the dispute \nor the appeal” the opportunity of being heard. Section 18(5) provides \nthat TDSAT must send a copy of the order to the parties to the dispute \nor the appeal and the Authority, “as the case may be”:\n\n“(5) The Appellate Tribunal shall send a copy of every order \nmade by it to the parties to the dispute or the appeal and \nto the Authority, as the case may be.”\n\n(emphasis supplied)\n\n11. \n\nIn terms of sub-section (6), TDSAT must endeavour to dispose the \napplication or the appeal within ninety days of the receipt of it. It must \nrecord  reasons  in  writing  if  it  is  unable  to  dispose  the  application \nwithin the specified period. Sub-section (7) provides that TDSAT may \ncall for the records relevant to disposing the appeal or application.15\n\n15 \n\n“18.  Application  for  settlement  of  disputes  and  appeals  to  Appellate  Tribunal.—(1)  The  Central \nGovernment or a State Government or a local authority or any person may make an application to the \nAppellate Tribunal for adjudication of any dispute as referred to in clause (a) of section 17. \n(2)  The Central Government or a State Government or a local authority or any person aggrieved by any \ndirection, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal.\n(3)  Every appeal under sub-section (2) shall be preferred within a period of thirty days from the date on \nwhich a copy of the direction or order or decision made by the Authority is received by the Central \nGovernment or the State Government or the local authority or the aggrieved person and it shall be in \nsuch form, verified in such manner and be accompanied by such fee as may be prescribed:\n\nProvided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of thirty \n\ndays if it is satisfied that there was sufficient cause for not filing it within that period.\n\n(4)  On receipt of an application under sub-section (1) or an appeal under sub-section (2), the Appellate \nTribunal may, after giving the parties to the dispute or the appeal an opportunity of being heard, pass \nsuch orders thereon as it thinks fit.\n\n(5)  The Appellate Tribunal shall send a copy of every order made by it to the parties to the dispute or the \n\nappeal and to the Authority, as the case may be.\n\n(6)  The application made under sub-section (1) or the appeal preferred under sub-section (2) shall be \ndealt  with  by  it  as  expeditiously  as  possible  and  endeavour  shall  be  made  by  it  to  dispose  of  the \napplication or appeal finally within ninety days from the date of receipt of application or appeal, as the \ncase may be: Provided that where any such application or appeal could not be disposed of within the \nsaid period of ninety days, the Appellate Tribunal shall record its reasons in writing for not disposing \nof the application or appeal within that period.\n\n(7)  The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness, of \nany dispute made in any application under sub-section (1), or of any direction or order or decision of \nthe Authority referred to in the appeal preferred under sub-section (2), on its own motion or otherwise, \ncall for the records relevant to disposing of such application or appeal and make such orders as it \nthinks fit.”\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1416 \n\n[2024] 10 S.C.R.\n\n12.  Section  31(1)  provides  that  notwithstanding  anything  contained  in \nthe Code of Civil Procedure 190816 or any other law, an appeal will \nlie against the order of the Tribunal to the Supreme Court on one or \nmore of the grounds stipulated in Section 100 of CPC.17\n\nB.  Submissions\n\n13.  Mr  K  K  Venugopal,  Dr Abhishek  Manu  Singhvi,  Mr Arvind  Datar \nand Mr Prashanto Chandra Sen, Senior Counsel, and Ms Neelam \nRathore, counsel appeared for the respondents. They submitted that \nthe appeal filed by AERA is not maintainable for the following reasons: \n\na.  AERA which is a tariff fixing authority, cannot be an “aggrieved \nparty”  at  any  stage  of  the  proceedings.  Since  it  cannot  file \nan appeal before TDSAT, it also cannot file an appeal before \nthis  Court  under  Section  31  of  the Act  assailing  the  order  of \nTDSAT.  Section  18(2)  provides  that  “any  person”  aggrieved \nby any direction, decision or order made by the Authority may \nprefer an appeal to TDSAT. AERA will not be covered by the \nexpression  “any  person”  since  that  would  amount  to AERA \nchallenging its own order; \n\nb.  AERA cannot defend its own actions in the appeal against its \norder since tariff determination is a quasi-judicial function:\n\ni. \n\nNumerous  judgments  of  this  Court  have  held  that  tariff \ndetermination is a quasi-judicial exercise (see PTC India \nv. Central Electricity Regulatory Commission,18 BSES \nRajdhani Power Limited v. Delhi Electricity Regulatory \nCommission,19 Sitaram Sugar Co. Ltd v. Union of India20 \nand GRIDCO v. Western Electricity Supply Company \nof Orissa Limited21); \n\nii. \n\nThe  procedure  followed  by  AERA  while  fixing  tariff \nelucidates that it is a quasi-judicial exercise. Section 13(4) \n\n16 \n\n17 \n\n18 \n\n19 \n\n20 \n\n21 \n\n“CPC”\n\n“31. Appeal to Supreme Court.—(1) Notwithstanding anything contained in the Code of Civil Procedure, \n1908 (5 of 1908) or in any other law, an appeal shall lie against any order, not being an interlocutory \norder, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section \n100 of that Code.”\n\n[2010] 3 SCR 609 : (2010) 4 SCC 603\n\n[2022] 14 SCR 790 : (2023) 4 SCC 788\n\n[1990] 1 SCR 909 : (1990) 3 SCC 223\n\n2023 SCC Online 1249\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1417\n\nrequires AERA to follow principles of natural justice before \ndetermining the tariff of aeronautical services; \n\nc. \n\nThe AERA Act  does  not  expressly  provide  that AERA  must \nbe impleaded as a respondent to the appeal against its order \nbefore TDSAT;\n\nd.  The  interests  of  affected  parties  will  be  safeguarded  even  if \nAERA does not file an appeal against the order of TDSAT under \nSection 31. Section 18(2) permits any aggrieved person or even \nthe  Central  Government  who  may  act  as  a  parens  patriae  to \nprefer an appeal against the order of AERA, and by extension \nthe order of TDSAT;\n\ne.  Section  31  does  not  expressly  empower  AERA  to  file  an \nappeal  against  the  order  of  TDSAT,  unlike  Section  53T  of \nthe  Competition Act  200222  which  empowers  the  Competition \nCommission  to  prefer  an  appeal  before  the  Supreme  Court \nagainst an order of the Appellate Tribunal;\n\nf. \n\nSection  18(5)  provides  that  TDSAT  must  send  a  copy  of  all \nits  orders  to  (a)  parties  to  the  dispute  or  appeal;  and  (b)  the \nAuthority. The provision by specifying the Authority separately \nfrom the parties to the dispute or appeal clarifies that it cannot \nbe a party to the dispute or appeal, and consequently cannot \nprefer an appeal; and\n\ng.  TDSAT or this Court may have to remand matters back to AERA \nfor redetermination of tariff. AERA cannot be both a contesting \nparty and also redetermine tariff. It would result in the possible \noperation of bias. \n\n14.  Mr Venkataramani, Attorney General for India and Mr Tushar Mehta, \nSolicitor  General  appearing  for  the  Union  Government,  and  Mr  N \nVenkataraman, Additional Solicitor General appearing for AERA made \nthe following submissions: \n\na.  An association representing the passengers may not necessarily \nprefer appeals in every case. While stakeholders may be allowed \nto make submissions before AERA in terms of Section 13(4), \nthere  is  no  statutory  obligation  on  them  to  contest  disputes \n\n22 \n\n“Competition Act”\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1418 \n\n[2024] 10 S.C.R.\n\nor maintain appeals. AERA is concerned with the outcome of \nthe  decision  by  TDSAT  on,  inter  alia,  ‘tariff  determination’  in \nits own interest as a regulatory body and in the interest of the \ngeneral public;\n\nb.  AERA will always be a contesting respondent when an appeal \nagainst  its  order  or  direction  is  filed  before  TDSAT.  It  will  be \ncovered  by  the  expression  “parties  to  the  appeal”  in  Section \n18(5).  However,  it  will  not  be  a  party  to  the  dispute.  It  is  to \ncover such situations that the “Authority” has been separately \nreferred. This is evident from the expression “as the case may \nbe” in the provision;\n\nc.  AERA  is  not  a  quasi-judicial  authority.  It  is  a  regulator  which \n\nperforms multiple functions other than determination of tariff;\n\nd.  Even  assuming  that AERA  is  a  quasi-judicial  authority,  the \nembargo  that  applies  to  judicial  authorities,  that  they  cannot \ncontest  an  appeal  against  their  own  orders,  need  not  always \napply to quasi-judicial authorities;\n\ne.  A  comparison  cannot  be  made  with  Section  53T  of  the \nCompetition Act. Section 53T identifies the parties that can file \nan  appeal,  as  opposed  to  Section  31  of  the AERA Act  which \nonly mandates that “an appeal shall lie against any order, not \nbeing  an  interlocutory  order  of  the Appellate  Tribunal  to  the \nSupreme Court”; and\n\nf. \n\nInstitutional bias is not recognised in Indian jurisprudence. An \ninstitution  or  authority  is  independent  of  its  officers  who  act \nunder it.\n\nC. \n\nIssues\n\n15.  The following issues arise for the consideration of this Court: \n\na.  Whether AERA has a right to contest an appeal against its order \ndetermining tariff for aeronautical services before TDSAT, and \nthen consequently prefer an appeal against the order of TDSAT \nbefore this Court under Section 31 of the AERA Act; and\n\nb.  Even  if  AERA  does  not  have  a  right  to  contest  an  appeal \nagainst  its  order  determining  tariff  for  aeronautical  services \nbefore TDSAT, does it have a right to prefer an appeal against \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1419\n\nthe  order  of  TDSAT  before  this  Court  in  terms  of  Section  31 \nof the AERA Act.\n\nD.  Analysis\n\ni. \n\nAuthorities  exercising  ‘adjudicatory  functions’  cannot  defend \ntheir orders in appeal\n\n16.  The respondents referred to judgments of this Court and of various \nHigh Courts for the proposition that statutory authorities exercising \nquasi-judicial functions cannot defend their orders in appeal. Before \nwe  proceed  to  determine  if AERA  is  a  quasi-judicial  authority,  it  is \nnecessary that we first clarify the contours of this proposition.\n\n17.  The judicial principle that a judicial or quasi-judicial authority must not \nbe impleaded as a party to an appeal against its order is premised \non  two  reasons,  both  rooted  in  constitutional  philosophy.  The  first \nreason is that with the impleadment of the judicial or quasi-judicial \nauthorities as respondents, they will be required to justifytheir decision \nbefore the Appellate Court. This is contrary to the established principle \nthat Judges only speak through their judgments. Any dilution of this \nprinciple would lead to a situation where every judicial authority would \nbe called upon to justify their decisions in the Court of appeal. This \nwould break down the entire edifice of the judicial system. \n\n18. \n\nIn  Savitri  Devi  v.  District  Jugde,  Gorakhpur,23  a  civil  suit  for \nmaintenance  was  filed  in  the  Court  of  the  Munsif,  Gorakhpur. The \nplaintiff filed a revision in the Court of the District Judge, Gorakhpur \nwhich was dismissed. The order of the District Judge was challenged \nin a writ petition before the High Court which was also dismissed. \nA  Special  Leave  Petition  was  instituted  assailing  the  order  of  the \nHigh Court. In the writ petition before the High Court and the Special \nLeave Petition before this Court, the District Judge, Gorakhpur and \nthe  4th Additional  Civil  Judge  (Junior  Division)  were  impleaded  as \nrespondents and contesting respondents respectively. A three-Judge \nBench  of  this  Court  deprecated  the  practice  of  impleading  judicial \nofficers who had disposed of “the matter in a civil proceeding”:\n\n“14.  We  do  not  approve  of  the  course  adopted  by  the \npetitioner which would cause unnecessary disturbance to \n\n23 \n\n[1999] 1 SCR 725 : (1999) 2 SCC 577\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1420 \n\n[2024] 10 S.C.R.\n\nthe functions of the judicial officers concerned. They cannot \nbe in any way equated to the officials of the Government. It \nis high time that the practice of impleading judicial officers \ndisposing of civil proceedings as parties to writ petitions \nunder Article  226  of  the  Constitution  of  India  or  special \nleave petitions under Article 136 of the Constitution of India \nwas stopped. We are strongly deprecating such a practice.” \n\n19. \n\nIn  Md.  Omer  v.  S  Noorudin,24  an  appeal  was  preferred  against \nan order of the Registrar of Trade Marks before the High Court of \nBombay. The  Solicitor  General  of  India  put  an  appearance  for  the \nRegistrar.  The  Solicitor  General  submitted  that  “he  appeared  to \nhelp the Court by pointing out certain errors in the judgment of the \nlower  Court.”  The  Division  Bench  of  the  High  Court  of  Judicature \nat  Bombay  held  that  though  there  are  certain  cases  in  which  the \nRegistrar should appear, this was not one such case. Chief Justice \nChagla,  writing  for  the  Division  Bench  observed  that  the  Solicitor \nGeneral made a startling proposition by which the Judge of the Court \nof first instance appears before the Court of second appeal to argue \nthat his judgment was correct and the judgment of the Court of the \nfirst appeal was wrong. The Bench observed that: (a) there may be \ncases in which the Registrar could be a contesting respondent; and \n(b) the Registrar  acting as a Court of first instance  cannot appear \nbefore the second appellate Court “merely” to point the errors in the \njudgment of the Court of first appeal.25\n\n20.  The  second  reason  for  this  principle  is  that  the  impleadment  of \nthe judicial authority as a respondent would contravene one of the \n\n24  AIR 1952 Bom 165\n\n25 \n\n“14. […] I have never heard of a Judge of first instance briefing counsel in a Court of appeal in order \nto  point  out  that  the  judgment  of  the  lower  appellate  Court  was  wrong  and  his  judgment  was  right.  If \nthis were the true principle, then every time we hear a second appeal we should look to being guided \nby the Judge of the trial Court appearing by counsel and telling us what the mistakes in the judgment \nof  the  lower  Court  are.  We  take  it  that  this  Court  is  sufficiently  competent  to  find  out  for  itself,  with \nthe  guidance  of  the  counsel  of  parties,  as  to  what  errors,  if  any,  have  been  committed  by  the  lower \nCourt. We, therefore, think that it was entirely wrong on the part of the Registrar in this case to have \nappeared merely for the purpose of elucidating his own judgment and pointing out the errors in \nthe judgment of the Court below. That is not the proper function of the Court of first instance, \nand in this case the Registrar is nothing else except the Court of first instance. […] But, as I said before, \nthis Court neither needs illumination nor guidance from the Judge of the first instance as to what are \nthe errors in the judgment of the lower appellate Court.” [emphasis supplied]; Also see the judgments \nof the Delhi High Court in Union Public Service Commission v. Shiv Shambhu25 and SBI v. Mohd. \nShahjahan25 in which the impleadment of the Competition Commission of India as a respondent in writ \npetitions filed challenging its orders was reprimanded.\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1421\n\nprimary tenets of natural justice, that an adjudicating authority must \nnot  be  biased.  It  is  in  deviation  of  the  principle  that  an  authority \nexercising adjudicatory functions is required to be a ‘neutral arbitrator’ \nwhich  does  not  have  a  ‘personal  interest’  in  the  matter.  In  Jindal \nTherma Power Company Ltd. v. Karnataka Power Transmission \nCorporation  Ltd.,26  an  appeal  under  Section  41  of  the  Karnataka \nElectricity  Reforms Act  1999  was  preferred  before  the  High  Court \nagainst  the  orders  passed  by  the  Karnataka  Electricity  Regulatory \nCommission by which the Power Purchase agreement between the \nappellant and the respondent was modified27. One of the issues before \nthe High Court was whether the Electricity Regulatory Commission \nwas  either  a  necessary  or  a  proper  party  to  the  appeal. The  High \nCourt held that the Electricity Regulatory Commission was neither \na proper nor a necessary party in the appeal. The Court observed \nthat an Authority must not take sides when an appeal is filed against \nits quasi-judicial order because if it exhibits an abnormal interest in \nthe  appeal  “normally  unknown  to  statutory  authorities  performing \nquasi-judicial  function”  it  would  give  the  impression  that  it  is  more \nof an “affected party”.28\n\n Hari Vishnu Kamath v. Syed Ahmad Ishaque29 was one of the first \njudgments in which this Court held that a Tribunal was not required to \nbe impleaded as a respondent in an appeal against its order. In that \njudgment, a seven-Judge Bench of this Court heard an appeal against \nthe decision of the High Court on a writ of certiorari for quashing the \ndecision of the Election Tribunal. One of the issues before this Court \nwas whether the High Court could not have issued a writ of certiorari \nbecause the Election Tribunal was an ad hoc body which became \nfunctus officio, having served its purpose,upon the pronouncement \nof the decision. It was contended that there would be no authority \n\n2004 SCC OnLine Kar 204\n\n“Electricity Regulatory Commission”\n\n2004 SCC OnLine Kar 204 [31, 33] “33. We also find considerable force in the contention of Dr. Singhvi \nthat if ultimately this Court decides to remand the proceedings to the Commission for fresh consideration \nin exercise of its appellate jurisdiction, the Commission having contested the matter before this Court with \nabnormal interest and psyche of a private contesting litigant, cannot be fair enough to decide the issue \nwith impartiality and disinterestedness required of it and that the confidence reposed by the appellant on \nthe impartiality of the Commission will be lost. It is true if this Court in exercise of its appellate jurisdiction \nremands the proceedings to the Commission for reconsideration of evidence, there will be likelihood of \nthe appellant entertaining apprehension that the Commission is not impartial in the decision making…”\n\n21. \n\n26 \n\n27 \n\n28 \n\n29 \n\n[1955] 1 SCR 1104 : (1954) 2 SCC 881\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1422 \n\n[2024] 10 S.C.R.\n\nagainst which the writ could be issued if the Tribunal had become \nfunctus officio. This Court rejected the argument and held that the \nfact that the Tribunal had become functus officio did not affect the \njurisdiction of the Court to quash the order because the presence of \nthe Election Tribunal, though proper, was not necessary.30\n\n22.  However, in Udit Narain Singh Malpaharia v. Additional Member \nBoard  of  Revenue,31  a  four-Judge  Bench  of  this  Court  drew  a \nfine  line  of  distinction  between  an  appeal  against  a  decree  and \na  writ  of  certiorari  to  quash  the  order  of  the  Tribunal.  Justice  K \nSubba Rao (as the learned Chief justice then was), writing for the \nBench observed that the Tribunal is a necessary party if a writ of \ncertiorari is filed to quash its order because: (a) otherwise the order \nof quashing could be ignored; and (b) a writ of certiorari is filed to \nquash orders of the Tribunal which are outside their jurisdiction as \nopposed to a regular appeal where the Court decides if the order \nis erroneous.32\n\n23. \n\nIn Jogendrasinhji Vijaysinghji v. State of Gujarat,33 a two-Judge \nBench  of  this  Court  culled  out  the  following  principles  on  the \nimpleadment of Tribunals and Courts as parties in appeals against \ntheir orders after analysing the above three judgments. Justice Dipak \nMisra (as the learned Chief Justice then was) writing for the Bench \nmade the following observations:34\n\na.  Civil Courts are “courts in the strictest sense of the term”. The \nCourt and the judicial officer do not contest the order. The High \nCourt  in  its  revisional  jurisdiction  can  call  for  the  records  (if \n\n30 \n\n31 \n\n32 \n\n[1955] 1 SCR 1104 : (1954) 2 SCC 881 [13]\n\n[1963] Supp. 1 SCR 676 : AIR 1963 SC 786\n\n“8. […] But there is an essential distinction between an appeal against a decree of a subordinate court \nand a writ of certiorari to quash the order of a tribunal or authority: in the former, the proceedings are \nregulated by the Code of Civil Procedure and the court making the order is directly subordinate to the \nappellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but \nin the case of the latter, a writ of certiorari is issued to quash the order of a tribunal which is ordinarily \noutside the appellate or revisional jurisdiction of the court and the order is set aside on the ground \nthat the tribunal or the authority acted without or in excess of jurisdiction. If such a tribunal or authority is \nnot made a party to the writ, it can easily ignore the order of the High Court quashing its order, for \nnot being a party, it will not be liable to contempt. In these circumstances whoever else is a necessary \nparty or not the authority or tribunal is certainly a necessary party to such a proceeding. In this case, \nthe Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition.” \n(emphasis supplied)\n\n33 \n\n34 \n\n[2015] 6 SCR 504 : (2015) 9 SCC 1\n\n[2015] 6 SCR 504 : (2015) 9 SCC 1 [41]\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1423\n\n24. \n\nrequired) without impleading the court or the presiding officer \nas a party; and\n\nb.  Many  Tribunals  only  adjudicate  and  have  nothing  to  do  with \nthe “lis”. Tribunals must be impleaded as a necessary party if \nin law they are entitled to defend the order passed by them.\n\nIt is clear from the above judgments that the principle that a judicial \nor quasi-judicial authority cannot be a respondent in the appeal is \ncircumscribed  by  certain  other  factors.  The  first  factor  applied  by \nthis Court is based on the relief sought. A judicial or a quasi-judicial \nauthority may be required to be impleaded as a party in a challenge \nagainst its order if it is necessary as in case of a writ of certiorari. \nSecond,  this  Court  has  consistently  drawn  a  distinction  between \nCourts  in  the  “strictest  sense”  and  Tribunals  because  the  former \nare nearly never involved in a ‘lis’ and perform a purely adjudicatory \nfunction. However, a statutory authority may be entrusted with the \nperformance of both adjudicatory and regulatory functions. This Court \nhas held that while it need not be impleaded as a respondent in an \nappeal against an adjudicatory order, it may be made a contesting \nparty in an appeal against an order issued in exercise of its regulatory \nfunctions because then it may have a vital interest in the ‘lis’ bearing \non matters of public interest.\n\n25.  However,  it  must  be  noted  that  the  judgment  in  Jogendrasinhji \nVijaysinghji (supra) also holds that a Tribunal is entitled to defend \nthe  order  in  the  appeal  only  if  it  is  provided  by  law. That  leads  us \nto the subsequent question of whether the statute establishing the \nAuthority and conferring it with powers and functions must expressly \nstipulate that it must be impleaded as a respondent in an appeal or \nit can be inferred by necessary implication. \n\nii.  Necessary and proper parties in regulatory proceedings\n\n26. \n\nIn  Syed  Yakoob  v.  KS  Radhakrishnan,35  the  State  Transport \nAuthority36  constituted  under  the  Motor  Vehicles Act  1988  and  the \nState Transport Appellate Tribunal37 were impleaded as respondents \nin the appeal against the judgment of the High Court. The High Court \n\n35 \n\n36 \n\n37 \n\n[1964] 5 SCR 64 : 1963 SCC OnLine SC 24\n\n“STA”\n\n“STAT”\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1424 \n\n[2024] 10 S.C.R.\n\nheld that the STA and STAT had overlooked material considerations \nwhile issuing transport permits. The counsel who appeared for STA \nand STAT before this Court asked for costs. Rejecting the argument, \nJustice PB Gajendragadkar writing for the majority of the Constitution \nBench,  observed  that  though  STA  and  STAT  were  proper  and \nnecessary  parties  in  the  proceedings,  it  is  unusual  for  them  to  be \nrepresented by counsel unless allegations are made against them \nfor which they need to respond because “they are not interested in \nthe merits of the dispute”:\n\n“19. […] It may be that in such proceedings, the Authority \nand  the  Appellate  Tribunal  are  proper  and  necessary \nparties, but unless allegations are made against them which \nneed a reply from them, it is not usual for the authorities \nto be represented by lawyers in Court. In ordinary cases, \ntheir position is like that of court or other Tribunals against \nwhose decisions writ proceedings are filed; they are not \ninterested in the merits of the dispute in any sense, \nand so, their representation by lawyers in such proceedings \nis wholly unnecessary and even inappropriate.”\n\n(emphasis supplied)\n\n27. \n\nIn  State  Transport  Authority  Tribunal  and  Regional  Transport \nAuthority, Meerut v. Mohd. Lucman Shariff,38 this Court refused \nto  entertain  an  appeal  filed  by  the  Transport Authorities  against \nthe judgment of the High Court because they were not “aggrieved \nparties”.  In  Bar  Council  of  Maharashtra  v.  MV  Dabholkar,39  the \nissue  before  a  seven-Judge  Bench  of  this  Court  was  whether  the \nState  Bar  Council  was  an  ‘aggrieved  party’  to  maintain  an  appeal \nunder Section 38 of the Advocates Act 1961.40 Section 38 provides \nthat “any aggrieved person” may prefer an appeal before this Court \nagainst  the  order  made  by  the  Disciplinary  Committee  of  the  Bar \nCouncil of India. Chief Justice A N Ray, writing the opinion for the \nmajority  held  that  the  State  Bar  Council  was  an  aggrieved  person \nfor the following reasons:\n\n38  C.A No. 878 of 1963 \n\n39 \n\n40 \n\n[1976] 1 SCR 306 : (1975) 2 SCC 702\n\n“Advocates Act”\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1425\n\na.  Under  the  provisions  of  the  Advocates  Act,  the  State  Bar \nCouncil may initiate disciplinary proceedings either on its own \nor  upon  the  receipt  of  information. Thus,  there  was  no  ‘lis’  in \nthe  proceedings  before  the  Disciplinary  Committee  like  there \nis in a suit between parties;41 and\n\nb.  The expression “person aggrieved” must be interpreted widely in \nterms of the purpose and the provisions of the enactment. The \ntest to be applied to interpret the expression “person aggrieved” \nis whether “a person has a genuine grievance because an order \nhas  been  made  which  prejudicially  affects  his  interests”.42 \nThe interest need not be personal or pecuniary. The Advocates \nAct  confers  the  Bar  Council  a  statutory  interest  in  the  rights \nand  privileges  of  the  advocates  and  the  purity  and  dignity  of \nthe profession.43\n\n28.  Justice  Bhagwati,  in  his  concurring  opinion  agreed  with  the \nconclusions in the opinion of Chief Justice Ray but diverged on the \nlimited  point  of  whether  there  was  a  ‘lis’  between  the  delinquent \nadvocates  and  the  Bar  Council.  The  learned  Judge  distinguished \nbetween the executive functions (ensuring professional conduct of \nadvocates)  and  adjudicatory  functions  of  the  Bar  Council  (acting \nthrough the Disciplinary Committee).44 Irrespective of the divergence \non  whether  this  dispute  could  be  termed  as  a  ‘lis’,  it  is  clear  that \nthis Court was of the uniform view that a statutory authority can be \nimpleaded as an interested party. \n\n29. \n\nIn Competition Commission of India v. Steel Authority of India,45 \nthis Court has in detail dealt with the issue that concerns us. In that \ncase, Jindal Steels and Powers invoked the provisions of Section 19 \nread with Section 26(1) of the Competition Act by providing information \nto allege that SAIL had abused its dominant position by entering into \nan exclusive supply agreement with Indian Railways. The Competition \nCommission  of  India  rejected  the  application  for  extension  of  time \nby SAIL. It held that a prima facie case was made out against SAIL \n\n41 \n\n42 \n\n43 \n\n44 \n\n45 \n\n[1976] 1 SCR 306 : (1975) 2 SCC 702 [25]\n\n[1976] 1 SCR 306 : (1975) 2 SCC 702 [28]\n\n[1976] 1 SCR 306 : (1975) 2 SCC 702 [29]\n\n[1976] 1 SCR 306 : (1975) 2 SCC 702 [40]\n\n[2010] 11 SCR 112 : (2010) 10 SCC 744\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1426 \n\n[2024] 10 S.C.R.\n\nand  directed  the  Director  General  to  make  an  investigation.  SAIL \nchallenged the above order before the Competition Appellate Tribunal. \nThe  Commission  filed  an  application  for  impleadment  before  the \nCompetition Appellate Tribunal on the ground that it was a necessary \nand  proper  party.  Emphasis  was  placed  on  Section  18  of  the \nCompetition Act to contend that the powers, functions and duties of \nthe Commission required it to be impleaded as a party in the appeals \nfiled before the Tribunal. The Tribunal dismissed the application for \nimpleadment. An appeal was preferred against this order. This issue \nframed  by  this  Court  was  :  “whether  the  Commission  would  be  a \nnecessary or at least a proper party in the proceedings before the \nTribunal in an appeal preferred by a party”.46 A three-Judge Bench of \nthis Court held that the Commission was a necessary party in cases \nwhere it initiated a suo moto inquiry and that it was a proper party \nin all other proceedings before the Competition Tribunal:\n\n“31(3). The Commission, in cases where the inquiry has \nbeen  initiated  by  the  Commission  suo  moto,  shall  be  a \nnecessary  party  and  in  all  other  cases  the  Commission \nshall  be  a  proper  party  in  the  proceedings  before  the \nCompetition  Tribunal.  The  presence  of  the  Commission \nbefore  the  Tribunal  would  help  in  complete  adjudication \nand effective and expeditious disposal of matters. Bring an \nexpert body, its views would be of appropriate assistance \nto the Tribunal. Thus, the Commission in the proceedings \nbefore the Tribunal would be a necessary or a proper party, \nas the case may be.”\n\n30.  While  arriving  at  this  conclusion,  this  Court  relied  on  the  following \n\naspects: \n\na.  Section  53-S(3)  of  the  Competition  Act  provides  that  the \nCommission may authorise one or more Chartered Accountants, \nCompany Secretaries, Cost Accountants or legal practitioners to \npresent the case of the Commission with respect to any appeal \nbefore the Appellate Tribunal.47 The Commission’s legal right to \n\n46 \n\n[2010] 11 SCR 112 : (2010) 10 SCC 744 [30.3]\n\n47  The  Competition  Act  2002;  Section  53S;  Also  see  the  Competition  Commission  of  India  (General) \n\nRegulations 2009; Regulation 51\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1427\n\nrepresentation before the Appellate tribunal would be diluted if \nthe Commission was absent;48\n\nb.  The Competition Commission can initiate suo moto proceedings \nin terms of Section 19 read with Section 26 of the Competition \nAct.  Principles  of  fairness  require  that  such  a  party  be  heard \nby the Tribunal before any orders “adverse to it are passed”. \nThus,  the  Competition  Commission  is  a  necessary  party  in \ncases where an appeal is preferred against orders or directions \nin  proceedings  initiated  suo  moto  by  it  since  it  is  a  dominus \nlitus in such proceedings;49\n\nc. \n\nThe Competition Commission is a proper party in other matters \nfor the following reasons:\n\ni. \n\nThe  Commission  is  an  expert  body  and  discharges \nregulatory  functions.50  The  assistance  rendered  by  the \nCommission would be useful for a complete and effective \nadjudication;51 and\n\nii.  Regulations  24  to  26  of  the  Competition  Commission  of \nIndia (General) Regulations 200952 define the powers of \nthe Commission to join or substitute parties in proceedings, \nallow persons or enterprises to take part in proceedings and \nto strike out unnecessary parties. The 2009 Regulations \nstipulate  that  the  person  or  enterprise  to  be  impleaded \nmust  have  a  substantial  interest  in  the  outcome  of  the \nproceedings  and/or  that  it  must  be  necessary  in  public \ninterest.53 This principle must be extended to the exercise \nof jurisdiction by the Tribunal. The Competition Commission \nhas a substantial interest in the outcome of the proceedings \nin  most  cases  as  the  judgments  of  the  Tribunal:  (i)  will \nbe  binding  on  it;  (ii)  provide  guidelines  for  determining \nvarious matters of larger public interest; and (iii) affect the \neconomic policy of the country.\n\n48 \n\n49 \n\n[2010] 11 SCR 112 : (2010) 10 SCC 744 [104]\n\n[2010] 11 SCR 112 : (2010) 10 SCC 744 [105,112]\n\n50  See Brahm Dutt v. Union of India, AIR 2005 SC 730\n\n51 \n\n52 \n\n[2010] 11 SCR 112 : (2010) 10 SCC 744 [106]\n\n“2009 Regulation”\n\n53  The Competition Commission of India (General) Regulations 2009; Regulation 25(1)\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1428 \n\n[2024] 10 S.C.R.\n\n31.  The  Competition Act,  unlike  the AERA Act,  expressly  provides  the \nstatutory authority with the right to present its case before the Appellate \nTribunal.54 Section 52T of the Competition Act also expressly grants \nthe Competition Commission the right to file an appeal before this \nCourt against an order of the Appellate Tribunal.55 The judgment of \nthis Court in Competition Commission of India (supra), however, \ndoes not hinge only on the express stipulations in the Competition Act. \nThis Court drew a functional analysis of the role of the Competition \nCommission. This Court by creating a distinction between proceedings \ninitiated by the Competition Commission suo moto and others, in effect \nmade a classification between matters in which the Commission is an \n“interested party” and the ones in which it would assist in “effective \nadjudication”. When the Commission initiates proceedings suo motu, \nit is discharging its duty to: (a) eliminate practices having an adverse \neffect on competition; (b) promote and sustain competition; (c) protect \nthe  interests  of  consumers;  and  (d)  ensure  the  freedom  of  trade \nby  other  participants  in  markets  in  India.  Thus,  when  it  initiates  a \nsuo moto proceeding, it is discharging its function as a party vitally \ninterested in the elimination of anti-competitive practices. In appeals \nagainst the orders of the Commission in inquiries initiated otherwise \n(on receipt of information or on a reference made to it by the Central \nGovernment or a State Government or a statutory authority56), the \nrepresentation  of  the  Commission  is  seen  as  necessary  for  the \neffective adjudication in view of its expertise in the field. Thus, the \nCompetition  Commission  of  India  (supra)  lays  down  the  clear \nproposition of law that a statutory authority can be impleaded as a \nrespondent in an appeal against its order even if the statute does \nnot provide for it. It can be read by necessary implication based on \nthe role conferred upon the authority by the statute. \n\n32.  Order  1  Rule  10  of  CPC  grants  the  Court  the  power  to  strike  out \nor add parties. The Rule provides that the Court may either with or \n\n54  Competition Commission of India Act 2002; Section 53S(2)\n\n55 \n\n“53T. Appeal to Supreme Court.- The Central Government or any State Government or the Commission \nor any statutory authority or any local authority or any enterprise or any person aggrieved by any decision \nor order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date \nof communication of the decision or order of the Appellate Tribunal to them:\nProvided  that  the  Supreme  Court  may,  if  it  is  satisfied  that  the  applicant  was  prevented  by  sufficient \ncause from filing the appeal within the said period, allow it to be filed after the expiry of the said period \nof sixty days.” [emphasis supplied]\n\n56  The Competition Act, 2002; Section 19(1)\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1429\n\nwithout the application of the party, add the name of the party who \nought  to  have  been  joined  or  whose  presence  before  the  Court \nmay  be  necessary  for  the  Court  to  effectively  adjudicate  upon  the \nquestions involved in the suit.57 This Court has sufficiently dealt with \nproper and necessary parties referable to Order 1 Rule 10 of CPC. \nA  necessary  party  is  defined  as  someone  who  is  indispensable \nto  the  suit  and  without  whom  the  suit  cannot  effectively  proceed. \nA  proper  party,  on  the  other  hand,  is  a  party  who  has  an  interest \nin the adjudication of the suit though they may not be a person in \nwhose favour or against whom a decree ought to be made.58 This \nCourt has further held that a party would not become a necessary \nparty merely because she has an interest in the correct solution of \nthe question involved. She would be a necessary party only when \nshe would be bound by the result of the action and has a direct or \na legal interest in the proceeding.59 In view of the judgments of this \nCourt in Competition Commission of India (supra) and Dabholkar \n(supra), a statutory authority would have a legal interest in appeals \nagainst orders made by it in discharge of its regulatory duty. \n\n33. \n\nIn view of the above discussion, the following principles emerge: \n\na.  An  authority  (either  a  judicial  or  quasi-judicial  authority)  must \nnot be impleaded in an appeal against its order if the order was \nissued solely in exercise of its “adjudicatory function”;\n\nb.  An authority must be impleaded as a respondent in the appeal \nagainst  its  order  if  it  was  issued  in  exercise  of  its  regulatory \nrole since the authority would have a vital interest in ensuring \nthe protection of public interest; and\n\nc.  An authority may be impleaded as a respondent in the appeal \nagainst its order where its presence is necessary for the effective \n\n57  Order 1 Rule 10(2): “Court may strike out or add parties.- The Court may at any stage of the proceedings, \neither upon or without the application of either party, and on such terms as may appear to the Court to \nbe just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck \nout, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, \nor  whose  presence  before  the  Court  may  be  necessary  in  order  to  enable  the  Court  effectually  and \ncompletely to adjudicate upon and settle all the questions involved in the suit, be added. \n\n58  See Vidus Impex & Traders Ltd. v. Tosh Apartments Pvt. Ltd. (2012) 8 SCC 384; Thomson Press (India) \n\nLtd. v. Nanak Builders & Investors P. Ltd. (2013) 5 SCC 397\n\n59  See Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay (1992) 2 SCC 524(14); \n\nAlso see Karthuri v. Uyyamperumal (2005) 6 SCC 733\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1430 \n\n[2024] 10 S.C.R.\n\nadjudication of the appeal in view of its domain expertise. \n\niii.  The test of quasi-judicial functions: A misnomer\n\n34.  The  next  issue  is  whether AERA  is  undertaking  an  adjudicatory \nfunction in determining tariff under Section 13(1)(a) of the AERA Act. \nWe have already in the preceding section clarified that the test to be \nadopted  is  whether  the  authority  was  undertaking  an  adjudicatory \nexercise. However, before we proceed with this analysis, we deem \nit  necessary  to  deal  with  the  concept  of  ‘quasi-judicial’  functions \nsince  judgments  of  larger  Benches  have  approached  the  issue  of \nwhether an authority can contest an appeal against its order based \non whether it was issued in exercise of its quasi-judicial functions.\n\n35.  The  respondents  placed  reliance  on  certain  observations  of  the \nConstitution Bench of this Court in Express Newspaper Pvt. Ltd. \nv. Union of India60on the tests to be adopted to determine whether \nan administrative body is exercising a quasi-judicial function. One of \nthe issues before this Court in that case was whether the functions \nperformed  by  the  Wage  Board  constituted  under  the  Working \nJournalists  (Conditions  of  Service)  and  Miscellaneous  Provisions \nAct  1955  are  administrative,  judicial,  quasi-judicial  or  legislative  in \ncharacter. This Court had to determine this question to decide if the \ndecisions of the Wage Board were open to judicial view and whether \nthe  principle  of  audi  alteram  partem  applied  to  the  proceedings \nbefore  the  Wage  Boards.61  The  Constitution  Bench  laid  down  the \nfollowing test to determine if an administrative body is exercising a \nquasi-judicial function:\n\n“112.  In  order,  therefore,  to  determine  whether  an \nadministrative body is exercising a quasi-judicial function, \nit  would  be  necessary  to  examine  in  the  first  instance, \nwhether it has to decide on evidence between a proposal \nand an opposition and secondly, whether it under a duty \nto act judicially in the matter of arriving at its decision.”\n\n36. \n\nIn the subsequent section, we will refer to the meaning of the phase \n“quasi-judicial” and its legal underpinnings. We will explain how the \n\n60 \n\n61 \n\n1959 SCR 12\n\n1959 SCR 12 [93]\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1431\n\n37. \n\ntest of the duty to act ‘judicially’ was a standard that was evolved to \nensure the compliance of the principles of natural justice and how it \nis no more relevant in view of the constitutionalising of the principles \nof natural justice. \n\nIn the 1950s, a functional distinction was drawn between executive \nand  judicial62  actions  and  between  an  action  that  deprives  rights \nand an action that deprives privileges63 for deciding the applicability \nof  the  principles  of  natural  justice.64  It  was  presumed  that  only  a \njudicial body must act ‘judicially’ by following the principles of natural \njustice. Numerous judgments of this Court (similar to the judgment \nin  Express  Newspaper  (supra)  discussed  above)  speak  of  the \n‘duty  to  act  judicially’.  To  act  ‘judicially’  meant  to  comply  with  the \nprinciples  of  natural  justice.  Courts  began  diluting  the  distinction \nbetween  quasi-judicial  and  administrative  actions  to  ensure  that \nadministrative  actions  or  proceedings  by  authorities  which  are  not \nCourts  in  a  strict  sense  also  comply  with  the  principles  of  natural \njustice.  The  term  “quasi-judicial”  came  into  vogue  to  describe  the \nexercise  of  power  which  though  administrative  in  some  respects \nwas  required  to  be  exercised  judicially,  that  is,  in  accordance  with \nthe principles of natural justice because of its impact on the rights \nof persons affected.65\n\n38. \n\nIn R v. ex p London Electricity Joint Committee Co. (1920) Ltd.,66 \nLord Atkin  laid  down  the  following  three  components  of  a  “quasi-\njudicial order”: (a) there must be a legal authority; (b) the authority \nmust  determine  questions  affecting  rights  of  subjects;  and  (c)  the \nauthority must have a duty to act judicially. This test has been applied \nby this Court in Province of Bombay v. Khushaldas S Advani,67 \nShivji Nathubhai v. Union of India68 and Indian National Congress \n(I)69 to determine if a function is quasi-judicial. \n\n62  The King v. Inspector of Leman Street Police Station, Ex Parte Venicoff (1920) 3 K.B. 72\n\n63  Nakkuda Ali v. MF De S Jayaratne [1951] AC 66\n\n64 \n\nid\n\n65  Wade & Forsyth’s Administrative Law (12th ed. Oxford University Press) 393\n\n66 \n\n67 \n\n68 \n\n69 \n\n(1924) 1 KB 171 (CA) \n\n[1950] SCR 621\n\n[1960] 2 SCR. 775 : AIR 1960 SC 606 \n\n[2002] 3 SCR 1040 : (2002) 5 SCC 685\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1432 \n\n[2024] 10 S.C.R.\n\n39. \n\nIn  Khushaldas  S  Advani  (supra),  the  issue  before  a  four-Judge \nBench of this Court was whether an order requisitioning a flat under \nSection 3 of the Bombay Land Requisition Ordinance70 was quasi-\njudicial.  Section  3  of  the  Ordinance  stipulated  that  the  Provincial \nGovernment  may  by  an  order  in  writing  requisition  any  land  for  a \npublic purpose provided that it is necessary or expedient to do so. \nSections 10 and 11 of the Ordinance stipulated that the Provincial \nGovernment may obtain information, enter and inspect land. One of \nthe arguments was that a decision is quasi-judicial whenever there \nis a determination of a fact which affects the rights of parties.71\n\n40.  Chief Justice Harilal Kania held that the test to be applied to determine \nif a decision is quasi-judicial is if the law under which the authority \nis  making  a  decision  itself  requires  a  quasi-judicial  approach. The \nlearned  Chief  Justice  considered  two  factors  in  arriving  at  the \nconclusion that Section 3 of the Ordinance did not confer a quasi-\njudicial power: first, whether the opinion can be revised by another \nauthority  or  whether  it  can  only  be  challenged  on  the  grounds  on \nwhich legislative actions are challenged;72 and second, Sections 10 \nand 11 of the Ordinance which conferred the Provincial Government \nwith the power to inspect and make inquires, were not mandatorily \nrequired  to  be  followed.  Justice  Fazl Ali  in  his  concurring  opinion \nobserved that an order will be quasi-judicial or judicial if issued by \na  person  or  an  authority  who  is  “legally  bound  to  or  authorised  to \nact  as  if  he  was  a  court  or  a  Judge.”73  The  learned  Judge  further \nexpanded that to act as a Judge or a Court included the following: \n(a) right to representation; and (b) inquiry, hearing and weighing of \nevidence. Justice SR Das in his concurring opinion, made a crucial \nobservation.  The  learned  Judge  held  that  an  action  will  be  quasi-\njudicial  even if there was no lis  between  two parties, provided  the \nstatutory authority has the power to do an act which will prejudicially \naffect the subject:74\n\n“81.  In  other  words,  while  the  presence  of  two  parties \nbesides the deciding authority will prima facie, and in the \n\n70 \n\n71 \n\n72 \n\n73 \n\n74 \n\n“Ordinance”\n\n[1950] SCR 621 [11]\n\n[1950] SCR 621 [14]\n\n[1950] SCR 621 [21]\n\n[1950] SCR 621 [80.2]\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1433\n\nabsence  of  any  other  factor  impose  upon  the  authority \nthe duty to act judicially, the absence of two such parties \nis not decisive in taking the act of the authority out of the \ncategory of quasi-judicial act if the authority is nevertheless \nrequired by the statute to act judicially.”\n\n41. \n\nIn Ridge v. Baldwin,75 Lord Reid observed that the judicial character \nof the duty must be inferred from the nature of the duty itself. Since \nthe decision in Ridge (supra), Courts have inferred the duty to act \njudicially, that is, in compliance with the principles of natural justice \nbased on whether the decision adversely affects legal rights. Over \ntime,  Courts  have  abandoned  the  classification  between  quasi-\njudicial  and administrative functions because the  duty to act fairly, \nin  compliance  with  the  principles  of  natural  justice  has  been  read \ninto  administrative  actions  as  well.76  MP  Jain  and  SN  Jain  in  their \ntreatise on Administrative law elucidate the reasons for the blurring \nof this distinction77:\n\n“Differentiation between quasi-judicial and administrative \nseems to be merely an artificial formality, as many a time \nsuch a distinction is elusive and mostly a manner of judicial \npolicy. Also, since the functions of the Administration have \nbeen expanding adversely affecting the rights and interests \nof individuals, the courts are convinced that it is essential \nto concede the right of hearing on a broader scale, but, \nat the same time, it may be artificial to call a function as \nquasi-judicial as it may have no judicial element involved. \nOr, in a situation, the court may feel that the function of \nthe  Administration  is  such  that  it  is  susceptible  to  the \napplication of only a few but not all the elements of natural \njustice. […] Further, when a proceeding is characterised as \nadministrative, the person whose interests are adversely \naffected  thereby  may  be  left  with  no  effective  means  of \nredress of his grievances as he could claim no procedural \nsafeguards. To overcome these difficulties, the new trend \nhas emerged. The advantage is that procedural fairness \n\n75 \n\n[1964] A.C 40\n\n76  See In r HK (An Infant), (1967) 1 All ER 226\n\n77  MP Jain & SN Jain, “Principles of Administrative Law” (7th ed. Vol I, LexisNexis) 352\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1434 \n\n[2024] 10 S.C.R.\n\ncan  be  imposed  on  a  large  number  of  decision-making \nbodies  without  having  to  characterise  their  functions  as \nquasi-judicial.  This  approach  has  resulted  in  applying \nhearing  procedure  to  a  large  chunk  of  administrative \nprocess.  The  nexus  between  hearing  and  quasi-judicial \nno longer exists in administrative process. This approach \ndoes away with the conceptual approach of calling a \nfunction  as  quasi-judicial  when  not  much  of  judicial \nelement is discernible there. […] The emphasis is now \nplaced on the element of injury to the concerned person \nby  the  administrative  action  in  question  to  concede \nhearing to the affected person.”\n\n(emphasis supplied)\n\n42. \n\nIn AK Kraipak v. Union of India,78 a Constitution Bench renounced \nthe  distinction  between  quasi-judicial  and  administrative  functions \nfor the purpose of a compliance of the principles of natural justice. \nRelying on the judgment of the Queen’s Bench Division in In re H.K \n(An Infant)79 and the constitutional imperative of the rule of law,80 the \nConstitution Bench held that the principles of natural justice will apply \neven to administrative decisions.81 The judgment of the Constitution \nBench  in  Maneka  Gandhi  v.  Union  of  India82  has  cemented  this \ninterpretation.83\n\n78 \n\n79 \n\n80 \n\n81 \n\n82 \n\n83 \n\n[1970] 1 SCR 457 : (1969) 2 SCC 262\n\n(1967) 2 QB 617; “But at the same time, I myself think that even if an immigration officer is not in a judicial \nor a quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the \nmatters in the sub-section, and for that purpose let the immigrant know what his immediate impression is \nso that the immigrant can disabuse him.” In this context, also see the observations of Lord Parker C.J., \nin Reginal v. Criminal Injuries Compensation Board Ex parte Lain (1967) 2 QB 684: “With regard to Mr \nBridge’s second point, I cannot think that Atkin L.J., intended to confine his principle to cases in which the \ndetermination affected rights in the sense of enforceable rights. Indeed, in the Electricity Commissioners \ncase  the  rights  determined  were  at  any  rate  not  immediately  enforceable  rights.  […]  the  remedy  is \navailable even though the decision is merely a step as a result of which legally enforceable rights may \nbe affected.”\n\n[1970] 1 SCR 457 : (1969) 2 SCC 262 [13]\n\n“20. […] If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see \nwhy those rules should be made inapplicable to administrative enquiries. Often times it is not easy to \ndraw  the  line  that  demarcates  administrative  enquiries  from  quasi-judicial  enquires.  […] Arriving  at  a \njust decision I the aim of both quasi-judicial enquiries as well as administrative enquiries.” [emphasis \nsupplied] \n\n[1978] 2 SCR 621 : AIR 1978 SC 597\n\n“The  law  must,  therefore,  now  be  taken  to  be  well  settled  that  even  in  an  administrative  proceeding, \nwhich involved civil consequences, the doctrine of natural justice must be held to be applicable.” Also \nsee SL Kapoor v. Jagmohan, AIR 1981 SC 136\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1435\n\n43.  The  above  discussion  elucidates  that  the  exercise  of  power  by \nAuthorities and Tribunals was described as “quasi-judicial’ to ensure \nthat  the  principles  of  natural  justice  were  complied  with.  However, \nwith  the  evolution  of  the  doctrine  of  fariness  and  reasonableness, \nall  administrative  actions  (even  if  there  is  nothing  ‘judicial  (or \nadjudicatory)’ about them) are required to comply with the principles of \nnatural justice. The evolution of the fairness doctrine has transcended \nmany boundaries. Thus, the reason for which the expression ‘quasi-\njudicial’ came into vogue is no longer relevant. Neither are the tests \nto identify them because the functions of an authority no more need \nto  have  any  semblance  to  ‘judicial  functions’  for  it  to  act  judicially \n(that is, comply with the principles of natural justice). \n\n44.  The  observations  in  judgments  of  this  Court  that  a  quasi-judicial \nauthority must not be impleaded as a party in an appeal against its \norder must be interpreted in view of the doctrinal expansion of the \nprinciple  of  fairness.  The  substitution  of  the  standard  of  whether \nthe Authority  undertakes  a  quasi-judicial  function  with  the  test  of \nadjudication is thus, not an aberration. It is a standard which is true \nto the purpose of the principle and which accounts for the subsequent \nconstitutional developments. \n\niv.  The  test  for  determining  an  ‘adjudicatory  function’:  Exploring \n\nSitaram Sugar\n\n45.  Before we proceed to determine if tariff-determination by AERA is an \nadjudicatory function, we must answer a more preliminary question: \nwhat are the tests to identify if a function is an adjudicatory one? \n\n46. \n\nIn Sitaram Sugar (supra), the constitutional validity of notifications \nissued under Section 3(3C) of the Essential Commodities Act 1995 \nwas before a Constitution Bench of this Court. Section 3(3C) provides \nthat where producers are required to sell sugar, they must be paid \nan amount calculated with reference to the price of sugar determined \nby  the  Central  Government.  The  provision  also  lays  down  the \nfactors which must be considered by the Central Government while \ndetermining the price of sugar.84 The provision further provides that \n\n84 \n\n(a) the minimum price, if any, fixed for sugarcane by the Central Government under this section;\n(b) the manufacturing cost of sugar;\n(c) the duty or tax, if any, paid or payable thereon;\n(d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar,\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1436 \n\n[2024] 10 S.C.R.\n\ndifferent prices may be determined from time to time for (a) different \nareas or; (b) for different factories; or (c) for different kinds of sugar. \nThis Court distinguished between legislation and adjudication. The \nConstitution Bench held that the former affects the rights of individuals \nin an abstract manner while adjudication operates “upon individuals \nin their individual capacity.” 85 Relying on the following observations \nof this Court in Union of India v. Cynamide India Ltd.,86 the Bench \nheld  that  price  fixation  is  usually  a  legislative  measure  and  that  it \nmay occasionally take an adjudicatory character when it relates to \nan individual:\n\n“A price fixation measure does not concern itself with the \ninterests  of  an  individual  manufacturer  or  producer.  It  is \ngenerally in relation to a particular commodity or class \nof  commodities  or  transactions.  It  is  a  direction  of  a \ngeneral character, not directed against a particular situation. \nIt  is  intended  to  operate  in  the  future.  It  is  conceived  in \nthe  interests  of  the  general  consumer  public.  Viewed \nfrom whatever angle, the angle of general application, the \nprospectiveness  of  its  effect,  the  public  interest  served, \nand the rights and obligations flowing therefrom, there can \nbe no question that price fixation is ordinarily a legislative \nactivity.”\n\n“Price fixation may occasionally assume an administrative \nor quasi-judicial character when it relates to acquisition or \nrequisition of goods or property from individuals and it \nbecomes necessary to fix the price separately in relation \nto  such  individuals.  Such  situations  may  arise  when  the \nowner of property or goods is compelled to sell his property \nor goods to the government or its nominee and the price \nto be paid is directed by the legislature to be determined \naccording  to  the  statutory  guidelines  laid  down  by  it.  In \nsuch situations the determination of price may acquire a \nquasi-judicial character”\n\n(emphasis supplied)\n\n85 \n\n86 \n\n[1990] 1 SCR 909 : (1990) 3 SCC 223 [34]\n\n[1987] 2 SCR 841 : (1987) 2 SCC 729\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1437\n\n47.  On the facts of the case, the Bench held that price fixation is of a \nlegislative character but the amount determined based on the price \nis  adjudicatory  because  the  former  applies  generally  to  a  class  of \ncommodities while the latter is decided after taking individual aspects \ninto consideration. This Court also held that price fixation can be of \na legislative character even if it is based on an objective criteria87. 88\n\n48.  Two  principles  are  deducible  from  the  judgment  of  this  Court  in \nSitaram Sugar (supra). The first is that one of the factors to determine \nif  an  order  was  issued  in  exercise  of  an  adjudicatory  function,  is \nwhether  it  was  specific  to  an  individual  or  of  general  application. \nThe second is that it is not necessary that a legislative action must \nalways be ‘subjective’ and an adjudicatory function ‘objective’. The \nConstitution  Bench  repudiated  this  distinction  by  observing  that  a \nlegislative action can also be based on an objective set of factors. \n\nv.  Whether  tariff  determination  is  an  adjudicatory  function:  PTC \n\nand GRIDCO\n\n49. \n\nIn  PTC  (supra),  a  Constitution  Bench  of  this  Court  made  certain \nobservations  on  the  fixation  of  tariff  by  the  Electricity  Commission \nunder the provisions of the Electricity Act 2003.89 Section 61 of the \nElectricity Act  provides  that  the Appropriate  Commission  (which  is \ndefined under the Act to mean Central Regulatory Commission, State \nRegulatory Commission or Joint Commission) must, subject to the \nprovisions  of  the  Electricity Act,  specify  the  terms  and  conditions \nfor  the  determination  of  tariff. The  provision  also  stipulates  factors \nthat  the Appropriate  Commission  must  be  guided  by.  Section  62 \ndeals  with  the  “determination  of  tariff”.  The  provision  confers  the \nAppropriate Commission with the power to determine tariff for supply, \ntransmission,  wheeling  and  retail  sale  of  electricity.  Section  63 \n\n87 \n\n88 \n\n[1990] 1 SCR 909 : (1990) 3 SCC 223 [41]; See Saraswati Industrial Syndicate Ltd. v. Union of India \n(1974) 2 SCC 630\n\n“41. The impugned orders, duly published in the official gazettes notifying the prices determined for sugar \nof various grades and produced in various zones, and applicable to all producers of such sugar, can, in \nour view, be legitimately characterised as legislative. These orders are required by sub-section (6) to be \nlaid before both Houses of Parliament. The notified prices are applicable without exception to all persons \nfalling within well defined groups. The prices are determined in accordance with the norms postulated \nin the sub-section. It is with reference to such predetermined prices of sugar that the “amount” payable \nto each producer, who has sold sugar in compliance with an order made with reference to clause (f) of \nsub-section (2), is calculated. The calculation of such amount is, in contradistinction to the determination \nof “price of sugar”, a non-legislative act.”\n\n89 \n\n“Electricity Act”\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1438 \n\n[2024] 10 S.C.R.\n\ndeals with “determination of tariff by bidding process”. The provision \nprovides that notwithstanding Section 62, the Appropriate Commission \nmust  adopt  the  tariff  determined  through  a  transparent  bidding \nprocess. Section 64 of the Electricity Act prescribes the procedure to \ndetermine tariff under Section 62 which includes filing an application \nand  provision  for  suggestions  and  objections.  Referring  to  these \nprovisions, the Constitution Bench made the following observations:\n\n“ 26. The term “tariff” is not defined in the 2003 Act. The \nterm “tariff” includes within its ambit not only the fixation \nof  rates  but  also  the  rules  and  regulations  relating  to \nit.  If  one  reads  Section  61  with  Section  62  of  the  2003 \nAct,  it  becomes  clear  that  the  appropriate  Commission \nshall  determine  the  actual  tariff  in  accordance  with  the \nprovisions of the Act, including the terms and conditions \nwhich  may  be  specified  by  the  appropriate  Commission \nunder  Section  61  of  the  said Act.  Under  the  2003 Act, \nif  one  reads  Section  62  with  Section  64,  it  becomes \nclear  that  although  tariff  fixation  like  price  fixation \nis legislative in character, the same under the Act is \nmade  appealable  vide  Section  111.  These  provisions, \nnamely, Sections 61, 62 and 64 indicate the dual nature \nof  functions  performed  by  the  Regulatory  Commissions \nviz. decision-making and specifying terms and conditions \nfor tariff determination.\n\n49. On the above analysis of various sections of the 2003 \nAct, we find that the decision-making and regulation-making \nfunctions  are  both  assigned  to  CERC.  Law  comes  into \nexistence not only through legislation but also by regulation \nand  litigation.  Laws  from  all  three  sources  are  binding. \nAccording  to  Professor  Wade,  “between  legislative  and \nadministrative  functions  we  have  regulatory  functions”. \nA  statutory  instrument,  such  as  a  rule  or  regulation, \nemanates from the exercise of delegated legislative power \nwhich  is  a  part  of  administrative  process  resembling \nenactment  of  law  by  the  legislature  whereas  a  quasi-\njudicial order comes from adjudication which is also a part \nof administrative process resembling a judicial decision by \na court of law. (See Shri Sitaram Sugar Co. Ltd. v.  Union \nof India [(1990) 3 SCC 223].)\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1439\n\n50. Applying the above test, price fixation exercise is really \nlegislative in character, unless by the terms of a particular \nstatute it is made quasi-judicial as in the case of tariff \nfixation  under  Section  62  made  appealable  under \nSection 111 of the 2003 Act, though Section 61 is an \nenabling  provision  for  the  framing  of  regulations  by \nCERC. If one takes “tariff” as a subject-matter, one finds \nthat under Part VII of the 2003 Act actual determination/\nfixation of tariff is done by the appropriate Commission under \nSection 62 whereas Section 61 is the enabling provision \nfor framing of regulations containing generic propositions \nin  accordance  with  which  the  appropriate  Commission \nhas to fix the tariff. This basic scheme equally applies to \nthe subject-matter “trading margin” in a different statutory \ncontext as will be demonstrated by discussion hereinbelow.”\n\n(emphasis supplied)\n\n50.  The observations of the Constitution Bench are analysed below: \n\na.  Tariff-fixation,  like  price  fixation  is  generally  of  a  legislative \n\ncharacter; \n\nb.  Tariff-fixation is of an adjudicatory or quasi-judicial character if \nit  is  made  so  by  the  statute  which  confers  the Authority  with \nthe power to determine tariff; \n\nc. \n\nThe  Electricity Act  confers  the Appropriate  Commission  with \nboth regulatory and adjudicatory/decision-making powers, even \nwith respect to tariff. Section 61 which confers the Appropriate \nCommission with the power to specify terms and conditions for \nthe determination of tariff, is of legislative character while the \npower to determine tariff in terms of Sections 62 and 64 is an \nadjudicatory function;\n\nd.  Though  the  decision  does  not  expressly  make  a  distinction \nbetween  powers  that  are  general  in  nature  and  powers  that \nare  specific/individual  in  nature,  such  an  inference  can  be \ndrawn  from  paragraph  50  which  specifically  applies  the  tests \nformulated in Sitaram Sugar (supra); and \n\ne.  The  fact  that  the  order  of  the  Appropriate  Commission \ndetermining  tariff  was  subject  to  appeal  was  also  one  of  the \nfactors that weighed with this Court. \n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1440 \n\n[2024] 10 S.C.R.\n\n51.  The respondents have relied on PTC (supra) to contend that tariff \ndetermination  by  an Authority  constituted  under  any  statute  is  an \nadjudicatory  function.  Such  an  interpretation  of  the  judgment  in \nPTC (supra), in our opinion is erroneous. This Court in PTC (supra) \nexpressly noted that tariff fixation, like price fixation is generally of \na legislative character. The judgment in PTC (supra) is an authority \nonly for the proposition that the question of whether determination of \ntariff is a legislative or an adjudicatory function must be determined \nupon  an  analysis  of  the  provisions  of  the  statute  conferring  the \npower. That  was  the  test  that  was  propounded  in  Sitaram  Sugar \n(supra) as well. \n\n52. \n\nIn GRIDCO (supra), this Court was hearing appeals arising out of the \ndecisions of the Appellate Tribunal for Electricity constituted under \nSection 110 of the Electricity Act 2003 which arose from orders issued \nby the Orissa Electricity Regulatory Commission determining tariff. \nRelying on the judgment in PTC (supra), a two-Judge Bench of this \nCourt  held  that  tariff  determination  being  a  quasi-judicial  function, \nthe  Commission  could  not  have  preferred  an  appeal  against  the \norder  of  the Appellate  Tribunal.90  The  judgment  of  the  two-Judge \nBench in GRIDCO (supra) also dealt with the nature of function of \nthe Appropriate Commission under Section 62 of the Electricity Act \nwhich was already settled by the judgment of the Constitution Bench \nin PTC (supra) that it was adjudicatory. \n\nvi.  Tariff  determination  for  aeronautical  services  by AERA  is  a \n\nregulatory function\n\n53.  The  question  that  falls  for  our  consideration  is  whether AERA  in \nexercise  of  its  power  under  Section  13(1)(a)  of  the AERA Act  is \ndischarging an adjudicatory function. The issue of whether AERA is \na necessary or a proper party must be determined based on whether \n\n90 \n\n“31.  There  is  one  more  aspect  of  the  matter. As  held  by  the  Constitution  Bench  [PTC  (India)  Ltd.  v. \nCERC (2010) 4 SCC 603], under Section 62, the Commission exercises quasi-judicial powers. There \nare appeals preferred by the Commission against the orders of the Appellate Tribunal in appeals under \nSection  111  of  the  Electricity  Act.  The  Appellate  Tribunal  in  appeals  has  dealt  with  the  legality  and \nvalidity of the decisions of the Commission rendered in the exercise of quasi-judicial power. In short, \nthe Appellate Tribunal has tested the correctness of the orders of the Commission. The Commission is \nbound by the orders of the Appellate Tribunal. Therefore, we have serious doubt about the propriety and \nlegality of the act of the Commission of preferring appeals against the orders of the Appellate Tribunal \nin appeal by which its own orders have been corrected. The Commission cannot be the aggrieved party \nexcept possibly in one appeal where the issue was about the non-compliance by the Commission of \nthe orders of the Appellate Tribunal. If the Commission was exercising legislative functions, the position \nwould have been different.”\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1441\n\nthe AERA is an aggrieved/interested party or merely an expert body \nwhose  views  would  be  necessary  for  the  effective  adjudication  of \nthe appeal.\n\n54.  A  simplistic  conclusion  that AERA  regulates  tariff  and  does  not \nadjudicate it cannot be arrived at merely because the long title to \nthe AERA Act states that AERA is established to, inter alia, “regulate \ntariff”.  An  analysis  of  the  statutory  provisions  must  indicate  the \nregulatory character of tariff determination by AERA.\n\n55.  Before we proceed to analyse the statutory provisions of the AERA \nAct,  we  deem  it  appropriate  to  refer  to  the  reasons  for  creating \nan  independent  Airport  Economic  Regulatory  Authority.  On  30 \nNovember  2003,  the  Committee  on  a  Road  Map  for  the  Civil \nAviation Section published a report which highlighted the underlying \neconomic rationale for establishing an Airport Economic Authority. \nThe  Report  noted  that  an  independent  economic  regulator  must \nbe established to prevent the abuse of monopoly power in airport \nactivities. The Report further notes that the Airport Authority of India \nacts both as an operator and regulator of airports and thus, there \nis an inherent conflict of interest. It is to ensure that there was no \nsuch conflict of interest that an Independent Authority was sought \nto be established. \n\n56.  On  22  December  2009,  AERA  issued  a  White  Paper  to  ensure \ntransparency in the process leading up to the framing of appropriate \nprocedures/systems  for  economic  regulation.  The  White  Paper \ndealt with various issues relating to economic regulation of airports \nand air navigation services. On 16 February 2010, AERA issued a \nconsultation paper after considering the responses received on the \nWhite Paper. On 2 August 2010,91 AERA laid down “its philosophy \nand approach for economic regulation of services” at major airports. \nIn exercise of its powers under Section 15 of the AERA Act, AERA \nissued the Airports Economic Regulatory Authority of India (Terms \nand Conditions for Determination of Tariff for Services Provided for \nCargo Facility, Ground Handling and Supply of Fuel to the Aircraft) \nGuidelines 2011.92 Clause 3 of the 2011 Guidelines lays down a three-\nstage  procedure  to  regulate  services  by  assessing  (a)  materiality; \n\n91  Order No.05/2010-11 dated 1 August 2010\n\n92 \n\n“2011 Guidelines”\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1442 \n\n[2024] 10 S.C.R.\n\n57. \n\n(b)  competition;  and  (c)  the  reasonableness  of  the  existing  user \nagreement.93\n\nIt may be argued by relying on the judgment in PTC (supra) that the \n2011 Guidelines issued in exercise of the power under Section 15 is \na regulatory function while the determination of tariff under Section \n13(1)(a) is adjudicatory by relying on the distinction between ‘general’ \nand ‘specific’ as highlighted above. In PTC (supra), this Court drew \na distinction between Section 61 of the Electricity Act which grants \nthe Appropriate Commission the power to issue specific terms and \nconditions for determination of tariff and Section 62 which grants the \npower to determine tariff. The crucial test that has been consistently \napplied by this Court in drawing the distinction is to determine if the \nfunction is discharged in the capacity of a regulator or an adjudicator. \nNow, it may be possible that certain statutes create a clear distinction \nbetween  the  regulatory  and  adjudicatory  roles  with  respect  to  the \nsame function. When such a distinction is created, the Authority does \nnot put on the hat of a regulator while undertaking the adjudicatory \nfunction. On the other hand, certain other statutes may require the \nAuthority to ‘determine’ something in its capacity as a regulator. In \nsuch cases, a clear distinction between the adjudication and regulatory \nfunctions cannot be drawn. \n\n58.  On  an  analysis  of  the  statutory  provisions,  it  can  be  reasonably \nconcluded  that  AERA  is  performing  a  regulatory  function  while \ndetermining tariff under Section 13(1)(a) of the AERA Act. The reasons \nfor this conclusion are summarised below: \n\na. \n\nIt cannot be concluded that AERA is performing an adjudicatory \nfunction  merely  because  Section  13(1)(a)  uses  the  phrase \n“determine”  with  respect  to  tariff.  This  would  amount  to \na  formalistic  interpretation.  The  Court  ought  to  make  an \nassessment by undertaking a holistic analysis; \n\nb.  Section  13(1)(a)  lays  down  seven  factors  which  must  be \nconsidered by AERA for determining the tariff of aeronautical \nservices. To  recall,  the  Constitution  Bench  in  Sitaram  Sugar \n(supra) has held that the function can be regarded as legislative \neven  if  objective  guidelines  are  prescribed  for  the  exercise \n\n93 \n\n2011 Guidelines; Clause 3 \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1443\n\nof  the  function.  Further,  the  provision  only  prescribes  broad \nguidelines  that AERA  must  “take  into  consideration”. AERA \nstill  has  sufficient  discretion  to  adapt  to  circumstances  and \nvarious  concerns  while  determining  tariff.  The Act  does  not \nprescribe the weightage that must be provided to each of the \nfactors. That is well within the discretion of AERA. This is also \nevident  from  Section  13(1)(a)(viii)  which  provides  that AERA \nmay consider “any other factor which may be relevant for the \npurposes of the Act”; \n\nc. \n\nThe  factors  which  are  required  to  be  considered  by  AERA \nindicate the underlying policy considerations of the assessment.94 \nThe factors, inter alia, include the cost of efficiency and economic \nand viable operation of major airports;\n\nd.  Section 13(1A) requires that AERA be consulted regarding tariff \nand tariff structures which are proposed to be incorporated in \nbidding documents. This provision elucidates that even if AERA \ndoes not in a strict sense, “determine” tariff in terms of Section \n13(1)(a),  it  will  always  be  interested  in  the  economic  viability \nof airports and in that sense is a regulator of tariff. Thus, the \nconsiderations  of AERA  while  determining  tariff  will  be  those \nof  a  regulator  concerned  with  public  and  economic  interests, \nwhich are purely non-adjudicatory considerations;\n\ne.  Section 13(2) by enabling AERA to amend the tariff structure \neven before the completion of the prescribed five year period \nin “public interest” is clearly indicative of its regulatory role in \nthe regulatory sphere entrusted to it; and\n\nf. \n\nThe  “overarching”  limitations  placed  on AERA’s  functions  by \nSection 13(3) resemble the grounds for reasonable restrictions \nprescribed  by Article  19  of  the  Constitution.  These  grounds \nare  limitations  on  the  broad  policy  considerations  that AERA \nundertakes while determining tariffs.\n\n59.  The  respondents  have  relied  on  two  clauses  of  Section  13  to \nargue that tariff determination is an adjudicatory function. The first \nis  the  proviso  to  Section  13(1)(a)  which  provides  that  different \n\n94  See Express Newspaper (Private) Ltd. v. Union of India, 1958 SCC OnLine SC 23 [111]\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1444 \n\n[2024] 10 S.C.R.\n\ntariff structures may be determined for different airports. This, it is \nargued, is a specific/individualistic component which is an indicator \nof  the  adjudicatory  function.  It  is  true  that  this  Court  in  Sitaram \nSugar  (supra)  held  that  one  of  the  factors  to  assess  if  a  function \nis  adjudicatory  is  by  determining  if  it  has  a  specific  or  a  general \napplication.  However,  the  observations  cannot  be  interpreted  to \nmean that it is an overarching consideration in the determination of \nwhether the function is adjudicatory. Neither can it be interpreted to \nmean that the factor must be considered de hors the context. The \nconsideration of the factors while exercising the function is equally \nand if not more important as a factor. As the judgment in Sitaram \nSugar (supra) notes, “judicial decisions are made according to law \nwhile administrative decisions emanate from administrative policy.”95 \nAs  held  above,  the  factors  to  be  considered  by AERA  in  terms  of \nSection 13(1)(a) are purely ‘policy’ factors. Further, the function of \nAERA to determine tariff must be read in the context of the role of \nthe Authority as a ‘regulator’ as has been highlighted above. Modern \nconstitutional governance requires that legislation is not general but \ncontext specific. Over-emphasising the distinction between general \nand  specific  provisions  to  determine  if  a  function  is  regulatory \nor  adjudicatory  would  be  to  completely  ignore  the  jurisprudential \ndevelopments governing both the regulatory domain and Article 14. \n\n60.  The  second  provision  that  the  respondents  relied  on  was  Section \n13(4) of the AERA Act which requires AERA to follow certain principles \nof natural justice to ensure transparency in discharging its functions. \nThere  is  no  doubt  that  Section  13(4)  incorporates  some  of  the \nprinciples  of  natural  justice.  It  requires  holding  consultations  and \nallowing stakeholders to make submissions, and reasoned decisions \nto  obviate  the  influence  of  bias  in  them.  However,  as  explained \nabove,  that  in  itself  is  not  sufficient  to  conclude  that  the AERA’s \ndetermination of tariffs for aeronautical services is an adjudicatory \nfunction.  In  the  previous  section,  we  have  in  detail  explained  that \nprinciples  of  natural  justice  are  not  just  a  requirement  for  ‘judicial’ \nactions. They are required to be complied with even in the exercise \nof administrative actions. Thus, the requirement of the principles of \nnatural justice does not render the determination, an adjudication. \n\n95 \n\n[1990] 1 SCR 909 : (1990) 3 SCC 223 [32]\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1445\n\nvii. \n\nInterpretation of Sections 18 and 31 of the AERA Act\n\n61.  The respondents made the following submissions based on Section \n18  to  argue  that  AERA  cannot  be  impleaded  as  a  party  to  the \nproceedings before TDSAT: \n\na.  Section  18  of  the AERA Act  does  not  expressly  provide  that \nTDSAT must hear AERA before passing any order. Clause (4) \nof  Section  18  provides  that TDSAT  may  pass  an  order  “after \ngiving  the  parties  to  the  dispute  or  appeal”  an  opportunity  of \nbeing heard; and \n\nb.  Section 18(5) expressly excludes AERA as a party in the appeal \nbefore TDSAT because it provides that a copy of every order \nof  TDSAT  must  be  provided  “to  the  parties  to  the  dispute  or \nappeal  and  to  the Authority,  as  the  case  may  be”.  There  is \ndisagreement over whether the expression “as the case may be” \ntakes after “dispute or appeal” or “Authority”. If the expression \ntakes after the former, it means that Authority is not subsumed \nwithin  “parties  to  dispute  or  appeal”.  If  the  expression  takes \nafter the latter, it could mean that a copy of the order must be \ngiven to AERA if it is not a party to the dispute or the appeal. \n\n62.  We  have  already,  in  the  previous  section  of  this  judgment  after \nan  analysis  of  the  precedent,  concluded  that  the Authority  can  be \nimpleaded  as  a  respondent  in  an  appeal  against  its  order  even  if \nthe provisions of the statute do not provide for it. This power can be \nread  by  necessary  implication  based  on  the  role  conferred  on  the \nAuthority  by  the  statute.  To  recall,  Section  17(1)(a)  grants  TDSAT \nthe jurisdiction to adjudicate any dispute between two parties, either \nbetween two service providers or a service provider or a consumer. \nThere  is  clearly  a  lis  before  TDSAT  in  such  cases.  However,  the \nproviso  to  the  section  recognises  the  expertise  of  AERA  in  the \neconomic regulation of airports by providing TDSAT with the discretion \nto “obtain the opinion of the Authority on any matter relating to the \ndispute”. This is referable to the role of AERA as a proper party in \nthe proceedings, where its expertise may be required for the effective \nadjudication of the dispute. \n\n63.  However, when it comes to appeals against the tariff orders issued \nby AERA, it is not just acting as an ‘expert body’ but as a regulator \ninterested in the outcome of the proceedings. AERA has a statutory \n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f1446 \n\n[2024] 10 S.C.R.\n\nduty  to  regulate  tariff  upon  a  consideration  of  multiple  factors  to \nensure that airports are run in an economically viable manner without \ncompromising  on  the  interests  of  the  public.  This  statutory  role  is \nevident, inter alia, from the factors that AERA must consider while \ndetermining  tariff  and  the  power  to  amend  tariff  from  time  to  time \nin public interest as discussed above. When AERA determines the \ntariff  for  aeronautical  services  in  terms  of  Section  13(1)(a)  of  the \nAERA Act,  it  is  acting  as  a  regulator  and  an  interested  party.  It  is \ninterested  not  in  a  personal  capacity.  Its  interest  lies  in  ensuring \nthat  the  concerns  of  public  interest  which  animate  the  statute  and \nthe performance of its functions by AERA are duly preserved. Thus, \nAERA is a necessary party in the appeal against its tariff order before \nTDSAT and it must be impleaded as a respondent.\n\n64.  Section 18(5) refers to parties in a dispute or appeal. AERA is not \na party  to the lis when TDSAT adjudicates  a dispute between  two \nor more service providers, or a service provider and a consumer in \nterms of Section 17(1)(a). For disputes adjudicated by TDSAT under \nSection  17(a), AERA  may  be  included  as  a  party  in  terms  of  the \nproviso to the provision. If the expression “as the case may be” is \ninterpreted to refer to “dispute or appeal”, thereby excluding AERA \nas  a  party  to  either  the  dispute  or  the  appeal,  it  would  amount  to \nreading down the proviso to Section 17(1)(a). \n\n65. \n\nIt may be recalled that determination of tariff for aeronautical services \nis merely one of the functions discharged by AERA. Section 17(1)\n(b)  grants  TDSAT  the  jurisdiction  to  “hear  and  dispose  of  appeal \nagainst  any  direction,  decision  or  order  of  the Authority  under  this \nAct.”  Section  18(5)  by  using  the  expression  “as  the  case  may  be” \naccounts for such a situation and requires that a copy of the order \nto be provided to AERA even if it is not a party to the appeal. Thus, \nthe expression “as the case may be” in Section 18(5) must be read \nto mean that a copy of the order of TDSAT must be given to AERA \neven if it is not a party to the appeal or the dispute. The expression \ncannot  be  interpreted  to  impliedly  exclude AERA  as  a  respondent \nin the appeals against its orders before TDSAT. \n\n66.  Section 31 does not expressly confer AERA with the right to file an \nappeal against the order of TDSAT before this Court. In fact, it does \nnot confer that power to any party expressly. As Mr Datar put it, there \nare three ways in which provisions dealing with statutory appeal are \n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1447\n\ndrafted. First, the provision may not prescribe who can file an appeal \nsuch  as  Section  31  of  the AERA Act.  Second,  the  provision  may \nprovide that an appeal may be preferred by a ‘person aggrieved’ such \nas under the Electricity Act,96 the Major Port Authorities Act 2021,97 the \nSecurities and Exchange Board of India Act 199298 and the Pension \nFund  Regulatory  and  Development Authority Act  2012.99 The  third \ncategory is where the statute confers ‘any party’ with the right to file \nan appeal as under the Companies Act 2013.100 With respect to the \nfirst of the three categories, at a minimum the parties to the appeal \nbefore  first  appellate  body  (in  this  case  TDSAT)  will  have  a  right \nto file an appeal before this Court. AERA can file an appeal under \nSection 31 in view of our conclusion that it is a necessary party in \nthe appeals against the tariff orders issued by it. \n\nE.  Conclusion\n\n67. \n\nIn view of the discussion above, the appeals filed by AERA against \norders of TDSAT under Section 31 of the AERA Act are maintainable. \nThe  Registry  shall  list  the  matters  before  the  Regular  Bench  for \nadjudication of the appeals on merits.\n\nResult of the case:  Matters directed to be listed before the \n\nRegular Bench.\n\n†Headnotes prepared by: Ankit Gyan\n\n96 \n\n97 \n\n98 \n\n“Section  125. Any  person  aggrieved  by  any  decision  or  order  of  the Appellate  Tribunal,  may,  file  an \nappeal to the Supreme Court…”\n\n“Section  60(2). Any  party  aggrieved  by  any  decision  or  order  of  the Adjudicating  Board,  may  file  an \nappeal …”\n\n“Section 15Z. Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file \nan appeal…”\n\n99 \n\n“Section 38. Any person aggrieved by any decision or order of the Securities Appellate Tribunal…”\n\n100  See Companies Act 2013; Section 242\n\nAirports Economic Regulatory Authority of India v. Delhi International Airport Ltd. & Ors.\f"}