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2020 Supreme(Ker) 709
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, C.S. DIAS, JJ.
Mahesh G., S/o. Gangadharan Pilla G. & Ors. - Petitioners
Versus
Union of India, Represented By Its Secretary to Government, Ministry of Civil Aviation & Ors. - Respondents
W.P.(C) Nos. 2224 of 2019 (C), 5482 of 2019 (I), 6076 of 2019 (H), 6823 of 2019 (C), 7060 of 2019 (S), 7961 of 2019 (S), 21321 of 2019 (S) & 20459 of 2020 (S)
Decided On : 19-10-2020
For the Petitioners: Shri. Kuriakose Varghese, Sri. Mathew A. Kuzhalanadan, Sri. K.R. Arun Krishnan, Sri. Sudeep Aravind Panicker.
For the Respondents: Sri. K.M. Nataraj, Addl. Solicitor General of India, Sri. P.L. Venukumar, CGC, Sri. N.N. Sugunapalan (SR.), Sri. V. Santharam, Sri. Lakshmeesh S. Kamath.
Important points:
The policy of the Central Government is not under challenge and even the State's bid for the lease under the RFP, could be maintained only under Section 12A of the AAI Act. The dispute essentially is between the State and the AAI which cannot be said to be a dispute wherein only the Hon'ble Supreme Court can be moved under Article 131 of the Constitution.
Headnote:
Airports Authority of India Act, 1994- Section ;; The Constitution of India- Article 131 -Challenge is against privatization which is the declared policy of the Union Government-Airports it is Public-Private Participation-Statutorily declared by incorporation of Section 12A to the AAI Act-No challenge to the statutory provision-Noticing the existence of the guidelines and also the constitution of PPPAC, the Cabinet constituted an empowered group of Secretaries conferring them with powers even beyond that of PPPAC.
Statement of facts:
Challenge the leasing out of Thiruvananthapuram International Airport as carried out by Airport Authority of India, in pursuance of the policy of the Central Government to bring in Public Private Participation. The petitioners are the State of Kerala, the Kerala State Industrial Development Corporation and individuals from various walks of life, both on public and private interest, raising grounds, some of which are identical. Another Division Bench found the writ petitions to be not maintainable since the dispute was one between the State and the Government of India , the resolution of which was within the original jurisdiction of the Supreme Court under Article 131 of the Constitution of India. The Hon'ble Supreme Court in a series of Civil Appeals filed by the State and one filed by one of the petitioners, set aside the judgment dated 18.12.2019 of the Division Bench and remitted the matter for consideration on merits. The effect of Article 131 was left open.
Finding of the court:
No valid ground to cause interference to the proceedings challenged in the batch of writ petitions. As is discernible from the averments in the writ petitions, the challenge is against privatization which is the declared policy of the Union Government. With respect to Airports it is Public-Private Participation, which has been statutorily declared by incorporation of Section 12A to the AAI Act. There is no challenge to the statutory provision. Interference to a policy framed by the elected Government it is trite, is difficult, and the feeble challenge raised herein against the policy is devoid of merit.
Result: Appeal dismissed
JUDGMENT :
Vinod Chandran, J.
The above writ petitions, filed at different points of time over a period of one year, essentially challenge the leasing out of Thiruvananthapuram International Airport ('TIA' -this and the other abbreviations made hereafter are followed throughout the judgment, for brevity) as carried out by Airport Authority of India ('AAI'), in pursuance of the policy of the Central Government to bring in Public Private Participation('PPP'). The petitioners are the State of Kerala ('State'), the Kerala State Industrial Development Corporation ('KSIDC') and individuals from various walks of life, both on public and private interest, raising grounds, some of which are identical. Another Division Bench found the writ petitions to be not maintainable since the dispute was one between the State and the Government of India ('GoI'), the resolution of which was within the original jurisdiction of the Supreme Court under Article 131 of the Constitution of India. The Hon'ble Supreme Court in a series of Civil Appeals filed by the State and one filed by one of the petitioners, set aside the judgment dated 18.12.2019 of the Division Bench and remitted the matter for consideration on merits. The effect of Article 131 was left open.
2. We shall first notice the writ petitions and the reliefs prayed for, in the order in which they were filed. W.P.(C) No.2224 of 2019 filed by two individuals, claiming to be frequent fliers and users of TIA, seek to protect their fundamental right to travel and assert their private rights. The prayer in the said writ petition is to declare the Request For Proposal ('RFP') issued by the AAI as ultra vires the provisions of the Airports Authority of India Act, 1994 ['AAI Act'] and to forbear from entrusting TIA to any private entity. Though the writ petition was filed first in time and an interim order was declined by a learned Single Judge on 25.02.2019, the further proceedings were not challenged; nor was the successful bidder impleaded.
3. The next writ petition filed was W.P.(C) 5482 of 2019, by the Union of Employees of the Calicut Airport, which challenged the Cabinet (Central) approval for leasing out six Airports dated 8.11.2018 and also the RFP. The said writ petition incorporated a challenge against the leasing out of all the six Airports, but the individual RFPs are not produced or challenged. Subsequently, an amendment was made raising a challenge against the Cabinet decision dated 03.07.2019 produced as Exhibit P14, which was not a decision affecting TIA because it dealt with three other Airports.
4. W.P.(C) No.6076 of 2019 is filed by KSIDC, the nominee of the State, who failed in the bid under the RFP. KSIDC challenged the RFP and Exhibit P14, a document available in the Government e-Procurement System – indicating the highest amount for TIA having been quoted by Adani Enterprises Limited ('AEL'). They also challenge the entire tender procedure commencing from Exhibit P5 to P14 as arbitrary, illegal and unconstitutional; though as an agency of the Government of Kerala (GoK), they made their bid and failed in the very same proceedings. They also seek that the Central Government be directed to honour the commitment in Exhibits P1 and P2; which commitment, we cannot but observe; if at all there is any, was not made to the Corporation.
5. The State, then filed W.P.(C) 6823 of 2019 seeking to set aside the RFP and in the alternative, declare the State to have preferential claim, in public interest as regards the concession for operation, development and management of TIA. Declaration is also sought against AAI to accept the proposal of the 'GoK' to grant the facility at par with that offered by AEL. They also seek for quashing Exhibit P9 issued by the Central Government granting them Right of First Refusal [RoFR] within the range of 10%. The State has filed an application for amendment, just on the previous date of hearing seeking to incorporate the challenge against the communication conveyi
