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IATA Agents Association of India (IAAI) rep. by its President, Biji Eapen v/s The Director General of Civil Aviation Technical Centre New Delhi & Others


Company & Directors' Information:- A K AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200MH2007PTC176382

Company & Directors' Information:- S V V AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200KA2008PTC046264

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- S R C AVIATION PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071383

Company & Directors' Information:- AGENTS INDIA LTD [Strike Off] CIN = U20203WB1952PLC020203

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- M AND C AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63013KA2006PTC039002

Company & Directors' Information:- S. A. AVIATION PRIVATE LIMITED [Active] CIN = U63040DL2012PTC234038

Company & Directors' Information:- R R C AND F AGENTS PVT LTD [Active] CIN = U45202CH2005PTC029330

Company & Directors' Information:- NEW GENERAL AGENTS PVT LTD [Active] CIN = U51900MH1941PTC034634

Company & Directors' Information:- AVIATION INDIA PRIVATE LIMITED [Strike Off] CIN = U63033DL1996PTC077267

Company & Directors' Information:- L D AGENTS PVT LTD [Active] CIN = U51909WB1991PTC050742

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- S K AVIATION PRIVATE LIMITED [Strike Off] CIN = U63090WB1999PTC089940

Company & Directors' Information:- P AND M AVIATION PRIVATE LIMITED [Active] CIN = U35999KA2021PTC143523

Company & Directors' Information:- S. S. AVIATION PRIVATE LIMITED [Active] CIN = U35300KA2007PTC043583

Company & Directors' Information:- R. S. INDIA AVIATION PRIVATE LIMITED [Active] CIN = U62100DL2006PTC153980

Company & Directors' Information:- M A N AGENTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC035096

Company & Directors' Information:- B AND B (AGENTS) PRIVATE LIMITED [Strike Off] CIN = U51102KA1982PTC005053

Company & Directors' Information:- J D M AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63040PB2013PTC038242

Company & Directors' Information:- J T AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200DL2011PTC216080

Company & Directors' Information:- NEW GENERAL AGENTS PVT LTD [Strike Off] CIN = U51909WB1941PTC010669

    W.A. Nos. 275 of 2013, 1136 of 2015 & W.P.(C) No. 13123 of 2013

    Decided On, 09 June 2017

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE V. RAJA VIJAYARAGHAVAN

    For the Appellant: P. Ravindran, Sr. Advocate, M.R. Sabu, Advocate. For the Respondents: R1, N. Nagaresh, Assistant Solicitor General, R2, M. Gopikrishnan Nambiar, P. Gopinath, P. Benny Thomas, K. John Mathai, R3, K. Jayakumar, Sr. Advocate, M.P. Krishnan Nair, Advocates.



Judgment Text

Navaniti Prasad Singh, C.J.

1. In all these cases basically a singular question arises for consideration.

2. The appellant in W.A. Nos.275 of 2013 & 1136 of 2015, who is the petitioner in W.P.(C) No.25752 of 2013, is an association of IATA accredited travel agents in India. They claim to be ticket selling agents, who sell tickets and get business to various Airlines, domestic and international. The submission on behalf of the appellants would be that Rule 3(54A) of the Aircraft Rules, 1937 defines 'Tariff' to include the commission payable to the agents and further Rule 135 requires every air transport undertaking to establish 'tariff' having regard to all relevant factors including cost of operation, characteristics of service, reasonable profit and generally prevailing tariff. Explanation (b) to sub Rule (2A) of Rule 135 is also referred to, to contend that 'tariff' as published or advertised in any other way shall show a complete break-up of the total amount, indicating the fare, tax, fees or any other charge and fees has been explained to mean the amount payable to the service providers for provision of any service or facility to the passengers. The submission thus would be that commission payable to an agent is a statutory charge, statutorily payable and to be statutorily shown as a part of the tariff, as also on the ticket to be issued. That being so, the Airlines must fix commission for each ticketing transaction and show it as a part of the tariff. The relevant provisions are quoted hereunder:

Rule 3(54A): 'Tariff' means any fare, rate or charge collected by an air transport undertaking for the carriage of passengers, baggage or cargo, including the commission payable to the agents, and the conditions governing such fair, rate or charge.

Rule 135. Tariff (1) Every air transport undertaking operating in accordance with sub-rules (1) and (2) of rule 134, shall establish tariff having regard to all relevant factors, including the cost of operation, characteristics of service, reasonable profit and the generally prevailing tariff.

(2) Every air transport undertaking shall cause to be published the tariff established by him under sub-rule (1) in his website or two daily newspapers, and shall display such tariff in a conspicuous part of his office and in the office of his agent, if any.

(2A) The tariff to be published under sub-rule (2) or advertised in any other way shall show the following particular, namely:-

(a) the total amount payable by a passenger; and

(b) a complete break-up of the total amount, indicating the fare, tax, fees or any other charge, if any, separately.

Explanation;- For the purposes of this sub-rule, -

a) tax means the amount payable to the Government;

and

b) fees means the amount payable to the service providers for provision of any service or facility to the passengers.'

xxxxxx xxxxx xxxxxx

3. On the other hand, the learned counsel for some of the Airlines, who have been arrayed as respondents, submits that Airlines have their own packages for their ticketing agents. It is open to any person to join those packages and they would accordingly be remunerated. But, the contention that commission is a statutory obligation and must form part of the tariff, meaning thereby in respect of every ticket sold, cannot be accepted. For, according to the learned counsel, commission is a contractual remuneration payable by a principal to the agent and is a pure and simple commercial contract. It is submitted that what the appellant seeks to do is to convert a purely contractual obligation, by giving it a statutory colour, and then seek for a mandamus for its payment. Such a relief cannot be granted.

4. Sri.P.Ravindran, learned senior counsel appearing for the appellant, drew our attention to Exts.P2 and P3 as available in W.P.(C) No.25752 of 2013, to contend that the Director General of Civil Aviation had directed the Airlines to implement its decision regarding commission payable to agents. He further refers to Ext.P13 appellate order of the Central Government to buttress his contention that commission is a statutory liability arising between principal and agent, and in absence thereof the agents cannot exist. It is pointed out that it is an amount payable as a remuneration for service rendered. It is thus submitted that in exercise of the statutory appellate power even the Central Government has held out that commission has to be paid. According to the learned Senior Counsel, commission is a statutory liability and on the same being withheld, a mandamus should issue.

5. We have carefully considered the arguments. All we can say is that what cannot be done directly cannot be permitted to be done indirectly. Whether commission has to be paid by a principal to his agent or what should the commission be, are matters of pure contract between two contracting parties. No writ petition can be filed for enforcement of payment of commission or fixing the rate thereof. If no writ petition could be filed for the same then, by the ingenious process of giving it a colour of statute, the relief cannot be sought for.

6. We are clearly of the opinion that when Rule 3(54A), being in the definition part of the rules, as reproduced above, says that if commission is payable to the agent, it has to be shown separately in the ticket, the meaning is clear. It is only when commission is payable that it should be included in the tariff. It is not a compulsion to pay as it is only an interpretation/definition clause. Similarly, Rule 135 talks about fixation of tariff. It does not make it mandatory that commission has to be paid under the colour of law. If it was so, it would clearly amount to taxation. That power is not there. The only effect of Rule 3(54A) read with Rule 135 is wherever a charge by whate

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ver name it may be called, is levied in lieu of services being rendered by an agent for the benefit of the principal, if the agent is entitled for commission, it must be shown separately. No part of the Rules make it obligatory for any Airlines to fix commission much less for each transaction entered into by an agent. Those are purely contractual matters beyond public law domain and lies exclusively in private law field. The writ jurisdiction is not the remedy in such a situation. We, therefore, find no reason to interfere with the order of the learned Single Judge. These writ appeals as well as the writ petitions are consequently dismissed.
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