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2023 Supreme(Del) 975
IN THE HIGH COURT OF DELHI AT NEW DELHI
Satish Chandra Sharma, Subramonium Prasad, JJ.
Dr. Subrmanian Swamy – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) 5909 of 2013
Decided On : 13-03-2023
Petitioner in person.
Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor, Ms. Kunjala Bhadwaj, Mr. Madhav Bajaj and Mr. Yash Upadhyay, Advocates, for the UOI.
Ms. Anjana Gosain, Ms. Nippun Sharma and Ms. Hetika Vadhera, Advocates, for the Respondent-3 and 6.
Mr. Rajiv Nayyar, Senior Advocate with Mr. Jaiveer Shergil, Ms. Ruby Singh Ahuja, Mr. Varun Khanna, Mr. Ishan Gaur, Mr. Akshay Aggarwal Mr. Vasu Singh, Ms. Mandhira and Ms. Aakriti Vohra, Advocates, for the Respondent.
Mr. Anupam S. Sharma, SPP-CBI with Mr. Prakarsh Airan, Ms. Harpreet Kalsi, Mr. Abhishek Batra and Mr. Ripudaman Sharma, Advocates, for the Respondent.
Mr. Anupam S. Sharma, Special Counsel-ED with Mr. Prakarsh Airan, Ms. Harpreet Kalsi Mr. Abhishek Batra and Mr. Ripudaman Sharma, Advocates, for the Respondent.
The court's decision was influenced by the absence of foreign investment and the petitioner's withdrawal of interest.
Headnote:
Foreign Direct Investment - Public Interest Litigation - FEMA 20/200-RB - Press Note No. 6 of 2012 - DGCA Guidelines dated 01.03.2013
Fact of the Case:
The writ petition challenges the decision approving a joint venture company with foreign equity, alleging it to be contrary to FDI policy and guidelines.
Finding of the Court:
The petitioner no longer wishes to pursue the petition due to changes in shareholding and absence of foreign investment.
Issues: Contravention of FDI policy, foreign investment approval, investigation into decision-making process.
Ratio Decidendi: The court disposed of the petition due to the absence of foreign investment and the petitioner's lack of interest.
Final Decision: The writ petition stands disposed of.
JUDGMENT
Satish Chandra Sharma, C.J. The instant writ petition has been filed as a Public Interest Litigation (PIL) challenging the decision dated 03.04.2013 passed by the Ministry of Finance, Department of Economic Affairs, Government of India approving M/s Air Asia Investment Ltd. (a Malaysian Company) to incorporate a new Joint Venture Company with foreign equity of 49% amounting to USD 15 Million (Rs.80,98,27,500/- approx) and the balance 51% equity share was to be held in the ratio of 30% by M/s Tata Sons Ltd. and 21% by M/s Telestra Trade Pvt. Ltd. The relevant portion of the said decision reads as under:
"5. The approval is for M/s Air Asia Investment Ltd., Malaysia to incorporate a new Joint Venture company with a foreign equity of 49% amounting to US $ 15 million (Rs.80,98,27,500/- approx). The balance 51% equity is held in the ratio of 30% and 21% by M/s Tata Sons Ltd. And M/s Telestra Trade place Pvt. Respectively.
The consideration amount for the aforesaid investment will be paid out of the inward remittance of foreign exchange received through normal banking channels and as per RBI's Notification No. FEMA 20/200-RB dated 3.5.2000 as amended from time to time."
2. It is the contention of the Petitioner that the said decision is contrary to the Foreign Direct Investment Policy (FDI) Policy of the Government of India and also contrary to the guidelines laid down by Respondent No.3, the Nodal Ministry, i.e., the Union Ministry of Civil Aviation which does not permit foreign investment by a foreign airline and is also in the teeth of the objections by the Nodal Ministry. The writ petition has been filed with the following prayers:
"a) Issue a writ of Certiorari or any other writ or direction of similar nature to set aside and revoke the Impugned Decision dated 03.04.2013 of the Respondents Nos. 1 & 2 allowing the FDI Proposal in favour of Respondent No. 5;
b) Issue a writ of Certiorari or any other writ or direction of similar nature to set aside and revoke any action or decision or grant of any further approvals/permissions/NOC/permits, etc. by the Respondent authorities, based upon, relying upon or in furtherance of the Impugned Decision dated 03.04.2013;
c) Issue a writ of Prohibition or any other writ or direction of similar nature to prohibit the Respondent authorities from taking any action contrary to the applicable FDI policy as per Press Note No. 6 of 2012 read with DGCA Guidelines dated 01.03.2013 or from granting any approval for foreign investment by a foreign airlines in a greenfield airline project;
d) Issue a writ of Mandamus or any other writ or direction of similar nature to direct the respondent authorities to define the terms "substantial ownership" and "effective control" as they are vital part of the applicable policy to prevent arbitrariness and illegality in decision making process.
e) Issue a writ of Mandamus or any other writ or direction of similar nature to the Central Bureau of Investigation to investigate into the role and functioning of the Respondents Nos. 1 & 2 leading to the Impugned Decision in contravention of executive policy of the Government of India, and report exclusively to this Hon'ble Court;
f) Pass any further orders, directions as may please the Hon'ble Court."
3. The writ petition was accompanied with an application for stay restraining Respondent No.1/Union of India, Respondent No.2/Foreign Investment Promotion Board, Respondent No.3/Ministry of Civil Aviation and Respondent No.4/Ministry of Commerce & Industry from taking any action or decision or granting any further approvals/permission/NOC/permits etc. contrary to the FDI Policy based upon or in reliance of or in furtherance of the impugned decision dated 03.04.2013.
4. The stay application was rejected by this Court vide Order dated 11.02.2014. The Order dated 11.02.2014 was challenged by the Petitioner in SLP (C) 5132-33/2014 which was dismissed by the Apex Court vide an Order dated 21.04.2014.
5. It is stated that pursua
