w w w . L a w y e r S e r v i c e s . i n

Y.V. Sharma & Another v/s Union of India Through its Secretary Ministry of Civil Aviation, Govt. of India & 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:- S R C AVIATION PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071383

Company & Directors' Information:- S M INDIA LTD [Strike Off] CIN = U26942ML1998PLC005541

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:- AVIATION INDIA PRIVATE LIMITED [Strike Off] CIN = U63033DL1996PTC077267

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:- J D M AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63040PB2013PTC038242

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

    WPPIL No. 26 OF 2013

    Decided On, 31 March 2015

    At, High Court of Jammu and Kashmir


    For the Petitioners: B.S. Salathia, Sr. Advocate with Meenakshi Salathia, Advocate. For the Respondents: R1 to R3, Sindhu Sharma, ASGI, R5, Sunil Sethi, Sr. Advocate with Parimoksh Seth, R6, D. C. Raina, Sr. Advocate with Anuj Dewan Raina, R7, S.K. Shukla, R8, Vikas Sharma, R9, Rakesh Sharma, Advocates.

Judgment Text

N. Paul Vasanthakumar, CJ.

1. This writ petition, by way of Public Interest Litigation, is filed by the petitioners who are permanent residents of Jammu and Kashmir and citizens of India. The first petitioner is President of Chamber of Commerce and Industry, Jammu and the 2nd petitioner is an advocate. According to the petitioners there are four airports in the State of J&K, namely, Jammu, Srinagar, Udhampur and Leh besides different Helipads.

2. The grievances focused by the petitioners are that the airfares must be affordable to maximum passengers including the people living below the poverty line. The price of airline tickets has become increasingly expensive and most airlines are using different rates of pricing to sell the air tickets simultaneously at different segments and in this process the passengers are made to become victims of exploitation by arbitrarily raising their ticket fares. The airfares are changing every day and even every minute. This is a contrast to the plans, the travelers expect on travelling tickets including the tickets purchased in the Tatkal system for train travel. Aero planes and trains are rendering public service, though most of the airlines are owned by private persons and merely because the aircrafts are owned by private persons, they cannot be given license for over-charging. The instances stated in the affidavit are that a passenger was required to pay a sum of Rs. 27,000 for travelling from Delhi to Srinagar and a sum of Rs. 12000 to travel from Jammu to Srinagar and sometimes the travel becomes too agony and the travelers are forced to wait without any justification, which are to be treated as illegal confinement. By virtue of the said unreasonable fixing of air fares the passengers/air travelers, who intend to travel urgently for medical treatments, for joining in professional course after commencing of last date, last date for joining by the newly recruited officer, last date for joining duty after availing leave etc. are very much affected due to said exploitation at the hands of the airlines.

3. It is also stated in the affidavit that Rule 135 of the Aircraft Rules, 1937 empowers the Director General, Civil Aviation to look into the matter including the cost of operation, characteristics of service, reasonable profit and the generally prevailing tariff are stated in the Rules, the same have not been implemented, which is the cause of action for arbitrarily fixing of airfares by different airlines and there is no sealing of airfares which gives unreasonable power to the airlines to fix the airfares. The petitioners have prayed for issuing directions to the respondents to fix the minimum as well as maximum airfares by different airline services for different destinations and to submit a detail report regarding the delay caused in operating each flight meant to provide service to the passengers on-board in order to air-lift them from one place to another in atleast for last six months generally being attributed to technical/environmental or any other reason which forms the basis of missing the connected flights among other reliefs.

4. Respondent Nos.1 to 3 have filed their objections by contending that the public interest litigation filed is not maintainable as no general public interest is involved. It is the choice of the person to travel by air and if any air traveler s right is infringed he can proceed against the airlines for redressal of his grievance before the appropriate forum. There is no compulsion to anybody to travel by air as there are other modes of travel and if one cannot afford airfare he can travel through other modes. The Air Transport Circular No.2 of 2010 was issued with a view to maintain the tariff for air traffic. The said circular was issued for scheduled domestic airlines to display established tariff, route-wise on monthly basis and also to notify to CGCA within 24 hours of effecting such a change. The people living below the poverty line are not interest in traveling by air. The airlines decide and display the tariff sheet in their respective website keeping in mind various factors for fixing the fare charges. The airline pricing runs in multiple levels (buckets). The prices of lowest bucket are very low and the same increases with the next bucket, based on circumstances and factors regarding other charges to be paid by the airlines, the airfare throughout the world are fixed. The Competition Commission of India in case No.68/2012 dated 06.03.2013 had said that CCI cannot fix the MRP of a service provided by the private entrepreneurs i.e. airlines. The airfare increases with the increase in demand for seat as the lower fare bucket get sold out fast. When tickets are not available close to the date of travel, the fares get hiked. It is further stated that with a view to protect consumer s interest in case of delays in flights, the DGCA has issued Circular Civil Aviation Requirements, Section3-Air Transport, Series ‘M’ Part-IV. Issue I, dated 6th August, 2010 on ‘Facilities to be provided to passengers by airlines due to denied boarding, cancellation of flights and delays in flights’ and if there is any deficiency in providing service or delay of flights, the persons aggrieved can approach the appropriate forum for redressing their grievance including for claiming compensation.

5. Respondent No.5 namely Air India Limited has filed its objections by stating that air operators are fixing the tariff in terms of Rule 135 of Aircraft Rules, 1937 as amended by Notification GSR No.254(E) dated 16.04.2009 and in case of any complaint of excessive or predatory tariff, the Director General Civil Aviation is the authority who can intervene under Rule 135(4) and if the petitioners are having any particular grievance regarding fixation of tariff, they can complain before the statutory authority. It is also stated that airline companies are entitled to fix the tariff as per the market valuation and different slabs have been fixed keeping in view the relevant criteria, including the number of days left to undertake the journey, air traffic on a particular day and availability of the seats, etc. The Indian airline is always giving breakup of the tariff, payable by the passengers, including the taxes, fees or other charges payable to the government or governmental agencies and whenever flight is delayed because of technical reasons or reasons beyond the control, all necessary steps are taken for announcing the delay on Public Address System, besides updating through Flight Information Display and in case of delay, due care is taken to comfort the passengers. With regard to delay of flight No.A1 821 dated 15.07.2013, the passengers were served snacks/hot beverages and cold drinks free of cost at Srinagar Airport. They are fixing the fare strictly as per the provisions of law and the fare fixed from Jammu - Srinagar and Delhi-Srinagar are also mentioned to justify the stand that it is not collecting exorbitant fare.

6. The 6th respondent namely Jet Airways (India) Ltd. also filed a similar reply stating that fare pricing of airlines cannot be compared to bus fare or a rail fare under any circumstances. The Jet Airways is operating low cost carriers that offer an economical fare price on various sectors for the benefit of the public and the fare pricing of the low cost carriers cannot be pushed down any further so as to make it equivalent to the fare price availed by a passenger on road or by train. It is further stated that pricing of airlines tickets is based on operational costs, engineering cost, repair and maintenance cost etc. and keeping in mind the market conditions, seasonal pattern (especially in hill stations, where there is more inflow of travelers during summer season, making it less effective during winter season), air traffic regulation, commercial viability, economic indicators (increase in the fuel price, govt. taxes etc.), business decisions are taken by the respective airlines from time to time. Thus, there is a fluctuation which cannot be construed as an action against the public interest as common man in India does not travel by air on regular basis and delay in reaching on scheduled time, namely, flight No.9W7083 for about one hour was due to technical reasons and delay caused at Delhi due to Air Traffic Congestion. The Jet Airways has been regularly publishing its ticket fares upfront along with the breakup of each fare in terms of the base fare and applicable taxes on its website, which are also filed with the DGCA in terms of Air Transport Circular dated 19.11.2010 to satisfy the provisions of Rule 135 of the Aircrafts Rules, 1937.

7. Respondent No.7, Indigo Airlines has also filed a separate counter affidavit on similar lines stating that all airline operators in India continuously monitor demand for tickets, inventory position and prices offered by competitors. The availability of real time information on competitors prices on public sources, coupled with the fact that a bulk of tickets are sold on travel portals makes it easier for customers to compare the prices offered by various airlines. The airfare of all sectors is regularly rationalized and in the last decade, travel by air has come within the reach of middle class. The competitive market (travel agents, online booking system) and web-based real time data display ensures that the airlines are transparent in their transactions and clearly indicates the components of the airfare charged from the passengers.

8. A supplementary affidavit was filed wherein it is stated that selling tickets in bulk to travel agents is concerned, the travel agents while booking tickets are directed to see IndiGo s website wherefrom the fare published on the site is picked up by the travel agents, who cannot charge fare in excess of the fare published on the website. In case of group booking (10 or more passengers for specific flight of a specific date for a particular sector) the IndiGo provide customized group bookings at a pre-agreed fare. In such category of booking also the travel agents cannot charge fare in excess of the pre-agreed fare. Similar stand has been taken by respondent No.8.

9. Respondent No.9, the Spice Jet has filed separate counter affidavit. Amongst other things reiterating the stand taken by the other respondents, it is stated that price for domestic tickets are extremely low as compared to other countries due to strict competition among the airlines and due to fixing of low airfares the respondent No.9 has suffered substantial losses in the past three years. It is stated that a person or group of persons carrying on a particular business cannot be expected to incur losses under the garb of providing public service. The public traveling by air is very negligible percentage, therefore, the public at large is not affected. At no point of time the petitioners have submitted any representation before the respondent Nos.1 to 3, therefore, the writ petition filed without approaching the authority concerned, is not maintainable.

10. Mr. B.S.Salathia, learned senior counsel for the petitioner vehemently argued by reiterating the contentions raised in the petition and submitted that airlines are fixing the fares arbitrarily with business motive alone, disregarding the public interest. Learned counsel also submitted that there is no rail connection with Srinagar and a person to reach Srinagar should either travel by road or by air. Sometimes due to landslide road blockades are happening and the vehicular traffic is not available and in that contingency air travel is the only option available to the public to reach Srinagar for any emergency. Therefore, at least in places where there is no railway line or roadblocks are happening due to landslides and weather conditions etc., respondents are bound to provide low airfares in public interest. Learned counsel further submitted that the writ petition cannot be treated as a frivolous one as freedom of movement is a fundamental right, guaranteed to all citizens and the said right can be exercised only if reasonable fare is fixed by the airlines. Insofar as filing of writ petition without approaching the respondents by way of representation, it is contended that the Rules framed by this Court regulating the proceedings of public interest litigations though stated that approaching the authority concerned by submitting representation, an exception is provided to approach the Court with a writ petition by serving a copy to the standing counsel and therefore, respondents are not justified in contending that without approaching the authority concerned, the petitioners have filed this writ petition. The learned counsel further argued that the petition being in public interest, this Court can issue appropriate directions by considering various factors.

11. The learned counsel appearing for Union of India as well as for the airlines, on the other hand reiterated their stand in the respective counter affidavits and submitted that common man is not travelling by air and public interest litigation cannot be filed for benefiting the affluent persons and if there is deficiency of service by any airlines, remedies are available to approach the appropriate Forum to redress the grievance and the air fares having been fixed taking note of various factors which are also being intimated to the authority as required under the Rules and the Circulars, the writ petition filed is misconceived and the same is liable to be dismissed.

12. We have considered the rival submissions, perused the affidavits and counter affidavits as well as the relevant provisions of law and circulars.

13. The points raised for consideration in this petition, as contended by the learned senior counsel for the parties, are as under:-

(1) Whether the petitioners are justified in filing the Public Interest Litigation without sending representation/ demand about their grievance before the appropriate authority, namely, 3rd respondent.

(2) Whether the petitioners are justified in praying for a direction for capping the minimum as well as maximum airfares by different Airline Services, (3) What relief this Court can grant in this writ petition on the facts and circumstances of the case.

14. Insofar as issue No.1 is concerned the learned counsel for the petitioners submitted that Rule 24(3) PART VII of the Aircraft Rules, 1937 states about the sending of representation to the concerned authority for taking appropriate action. However, an exemption is granted, stating that in urgent cases petition can be allowed to be filed without any such representation and in such cases the petitioners must give prior notice of filing of the petition to the concerned authorities and or their standing counsel, if any.

15. In the light of the said Rule, namely, in urgent cases petitions can be allowed to be filed without any such representation after giving prior notice of filing of the petition to the concerned authority or to their standing counsel, and in this case the petitioners having served copies to the respective standing counsel before filing the writ petition, they have satisfied the requirement of rule. Therefore, the objection raised by the respondents that without sending representation in advance before filing the writ petition no writ can be filed, cannot be sustained. Hence the said issue is held in favour of the petitioners.

16. Insofar as the second issue is concerned, the Rule which was notified in notification No. 761 dated 19.10.2011 in the Jammu and Kashmir Government Gazette, namely, Writ Proceeding Rules, 1997, has to be gone into. The said Rules are issued to regulate the procedure relating to filing of Writ Petition in Public Interest . Rule 24(3) enumerates the circumstances under which Public Interest Petition may be entertained on any subject of vital public importance. Rule 24 (3)(e) deals with the complaints pertaining to violation of fundamental or human rights of the people in general or of class of society or community.

17. It is not in dispute that every citizen has got a right to move from one place to another for the purpose of education, employment and for getting proper treatment for any serious ailment. In certain areas there is no train facility and at times even people cannot reach the destination by road due to variety of bad weather or floods/landslides. The freedom of right to move throughout the territory of India is a fundamental right guaranteed under Article 19 of the Constitution of India. Right to get timely medical treatment is also a right to life guaranteed under Article 21 of the Constitution of India. Section 10 of the Jammu and Kashmir Constitution states as follows:-

'The permanent residents of the State shall have all the rights guaranteed to them under the Constitution of India. Thus it is a fundamental right and a Constitutional right guaranteed to all the citizens of India, irrespective of the State from where they originate. When the roads, railway lines are blocked for days or months together, and in such contingencies travel by air is the only mode available for the persons to reach other destinations either for attending interviews/ selection/ admission to Colleges, for taking immediate treatment for serious ailments etc. and in such eventualities the travel date cannot be postponed and advance booking may not always be possible and the airlines being the only way of transportation for reaching the other destinations, the respondent nos. 4 to 9 being the service providers, they cannot be allowed to exploit the situation only on commercial considerations without reference to public interest. The petitioners are focusing the exploitation of the situation by airlines before this Court through this writ petition, the writ petition is maintainable.

18. Regarding the third issue, namely, what kind of directions can be issued by this Court on the facts and circumstances of this case , it is an admitted position that except respondent Nos. 4 and 5, Airport Authority of India and Air India Limited all other airlines are private airlines and they are profit oriented. The respondent Nos. 4 and 5 as well as respondent Nos. 6, 7, 8 and 9 in their respective counter affidavits have stated that they are fixing the air fares as per the market valuation and different slabs have been fixed namely, Air Traffic on a particular date, availability of seats, operational cost, engineering cost, repair and maintenance cost etc. keeping in mind the market conditions, seasonal pattern and commercial viability. The said stand of the respondent though is justified to certain extent, but fixation of exorbitant fares for air travel only in a particular sector, based on the non-availability of other modes of travel by road or rail is definitely exploitation on the part of the air lines only for commercial purposes. Few instances can be usefully cited and air ticket fares from Delhi to Srinagar and Jammu to Srinagar can be verified from the following chart:- Flight Departure from Destination Rate 31.03.2015: Air India(AI 821) Jammu Srinagar Rs. 8604 AI (822) Rs. 13958 Go Air (G8-197) Jammu Srinagar Rs. 9907 Jet Airways(9W-608) Jammu Srinagar Rs. 14,127 Go Air (G8-180) Srinagar Delhi Rs. 10,373 Go Air (G8-192) Srinagar Delhi Rs. 12,373 Indigo (6E-436) Srinagar Delhi Rs. 13,022 Spiecejet (SG 157) Srinagar Delhi Rs. 19,223 01.04.2015 Air India(AI 822) Jammu Srinagar Rs. 19,415 Indigo (6E-554) Jammu Srinagar Rs. 6,606 Indigo (6E-559) Jammu Srinagar Rs. 8,256 Jet Airways(9W-608) Jammu Srinagar Rs. 9,977 Spiecejet (SG-160) Jammu Srinagar Rs. 6,407 Air India(AI 822) Srinagar Jammu Rs. 8,604 Jet Airways(9W-604) Srinagar Jammu Rs. 12,177 Spiecejet (SG-163) Srinagar Jammu Rs. 8,057 Go Air (G8-387) Srinagar Jammu Rs. 7,907 Go Air (G8-192) Srinagar Delhi Rs. 10,500 Indigo (6E-436) Srinagar Delhi Rs. 7,772 Jet Airways (9W-604) Srinagar Delhi Rs. 8,293 Indigo ( 6E-694) Srinagar Delhi Rs. 6,972 Spicejet (SG-163) Srinagar Delhi Rs. 12,723 Air India(AI-822) Srinagar Delhi Rs. 15, 996 02.04.2015 Air India(AI 821) Jammu Srinagar Rs. 6,960 Go Air (G8-197) Jammu Srinagar Rs. 7,907 Go Air (G8-180) Jammu Srinagar Rs. 6,907 Indigo (6E-554) Jammu Srinagar Rs. 6,206 Spiecejet (SG-160) Jammu Srinagar` Rs. 5,907 Go Air (G8-192) Srinagar Delhi Rs. 4,499 Indigo (6E-436) Srinagar Delhi Rs. 5,173 Jet Airways (9W-604) Srinagar Delhi Rs. 7,593 Spicejet (SG-157) Srinagar Delhi Rs. 7,623 Air India(AI-822) Srinagar Delhi Rs. 6,393 Air India (AI-659) Srinagar Delhi Rs. 8,593 From perusal of the air fare chart provided by the respondents in their websites, it is amply clear that air fares are fixed indiscriminately, only on commercial reason, which is definitely exploitation on the part of the air lines.

19. Rule 135 of the Aircraft Rules, 1937 empowers the Director General Civil Aviation to monitor the cost of operation, characteristics of service, reasonable profit and the generally prevailing tariff. The said Rule reads as follows:-

'135. Tariff for international air transportation.

(1) Every operator of an air transport service operating in accordance with rule 134 shall, having regard to all relevant factors, including the cost of operation, reasonable profit and the general prevailing tariff, establish tariff showing fares, rates and charges for international air transportation.

(2) Every operator 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.

(3) Every operator shall maintain all records relating to tariff established by him under sub-rule (1) in such manner and in such form as may be specified by the Director-General, and on demand by the Director-General shall produce such records before the Director-General for inspection.

(4) Where the Director-General is satisfied that any operator has established excessive

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or predatory tariff under sub-rule (1) or has indulged in oligopolistic practice, he may, by order, issue directions to such operator. (5) Every direction issued under sub-rule (4) shall be complied with by such operator.A Circular was also issued bearing No. 2/2010 with a view to maintain the tariff for air traffic. Thus there is a mechanism provided under the Rules and the said authority, namely, Director General, Civil Aviation, is bound to consider the over-charging of air fares by any airlines. 20. The petitioners have admittedly not sent any representation bringing to the notice of the 3rd respondent about this exorbitant fixation of air fares in some sectors, particularly Delhi- Srinagar and Jammu- Srinagar and the same is the stand taken by the Director General, Civil Aviation in the counter affidavit and for redressal of other grievances. In such circumstances, the petitioners have to approach the Director General, Civil Aviation for fixation of uniform air fares and other grievances and the said aspect has to be considered only by the Director General, Civil Aviation, who is the competent authority, vested with statutory powers. The said authority is bound to consider all aspects and is duty bound to prevent the exploitation or taking undue advantage for travel on particular sectors without any rhyme or reason only on the ground that no other mode of transport is available. Hence the petitioners are granted liberty to point out their grievances before the Director General Civil Aviation, particularly with reference to the fixation of air fares by different air lines and the competent authority, namely, the 3rd respondent is directed to consider the same and take appropriate decision by not permitting the respondent Nos. 4 to 9 to exploit the situation only for commercial purposes as freedom of movement of citizens in certain exigencies are bound to be ensured at reasonable costs. The issue no. 3 is answered accordingly. 21. In fine the writ petition is disposed of with liberty to the petitioners to approach the Director General of Civil Aviation by making a representation regarding their grievances and if any such representation is submitted by the petitioners, the same shall be considered in accordance with law after hearing the respondent Nos. 4 to 9 and pass appropriate orders/ take decision within a period of three months from the date of receipt of representation from the petitioners.