Judgment · High Court · 2008

Order

(Per Sri Justice B Prakash Rao) Since the similar questions arise for consideration in the above three writ petitions, they are being disposed of together by this common order. Heard Sri Vedula Venkataramana, Shri Dr. P.V.Vijaykumar and Shri Tagore learned counsel appearing for the petitioners in the Three Writ Petitions, Shri Gopal Subrahmaniam, the Additional Solicitor General, Sri A.Rajashekar Reddy, the Assistant Solicitor General, Advocate General for the State, Sri C.Kodandaram, learned counsel appearing for the respondent No.2, the Government Pleader for G.A.D, Shri Atul Sharma and Sri Rajiv Nayar, the Senior Counsel appearing on behalf of the respondent No.4. WRIT PETITION NO. 4950 OF 2008 The petitioner herein claiming to be a journalist and user of the airline services filed this writ petition initially on 6th March 2008 where he sought for Mandamus to declare Section 6 (1) ( c) of the Aircraft Act, 1934 as unconstitutional and void and for consequent direction to declare the action of the respondents purporting to close down the Begumpet International Airport and establish New Green Field Airport at Shamshabad as arbitrary, illegal and violative of Article 14 of the Constitution of India and further consequently to direct them to continue the user of Begumpet International Airport simultaneously with the new green field international Airport. After taking notice by the respective counsel on behalf of the respondents herein at the admission stage itself and filing of the counter affidavit later, the petitioner has filed three interlocutory applications in WPMP.No.7277/2008, WPMP.No.6418/2008 and WPMP.No.7278/2008 for amending the prayers and adding fresh grounds. In WPMP.No.7277/2008 the petitioners sought to amend the writ petition to add a relief for the Writ of Mandamus declaring the notification issued subsequently vide S.O.No.470 (e) published in the Gazette of India on 10-3-2008 for the purpose of restricting the operation of the Begumpet Airport as arbitrary, unconstitutional and ultra vires the provisions of the Aircraft Act, 1934 and the Air Port Authority of India Act, 1994 and the same was permitted by this Court as per the orders dated 14-3-

#2008. Similarly, the petitio0ner has come out with other two applications in WPMP.No.8642/2008 and WPMP.No.8643/2008

where once again firstly he sought to amend the prayer and addition of certain grounds to the writ petition where under the petitioner sought for declaration that Section 12 (3) (aa) of the Airport Authority of India Act, 1994 is unconstitutional and violative of Article 14 of the Constitution of India and secondly to declare the concise agreement entered into between the respondents on 20-12-2004 as arbitrary and violative of Article 14 and 19 (ig) of the Constitution of India and thirdly to declare the said notifications issued by the 1st respondent enabling the exclusive operation of Shamshabad Airport with effect from 10-03- 2008 and 23-3-2008 as arbitrary, illegal and unconstitutional. Both these applications were permitted as per the orders dated 8-12-2008. The case of the petitioner taking into account the initial Writ as has been filed and the amended portions is in regard to the challenge made as to the validity of Section 6 (1) ( c) of the Aircraft Act, 1934 and Section 12 (3) (aa) and Section 40 of the Airport Authority of India Act, 1994 apart from the notifications dated 10-3-2008 and closing down the Begumpet Airport and making the Shamshabad Airport as exclusive one for all operation purposes. Therefore, on a reading of the prayers and the attack made is mainly directed against the closure of the Airport at Begumpet and not allowing any operations therein. The grievance is primarily is in two fold; firstly the exclusive monopoly created at Shamshabad Airport and restricting the creation or establishment or operation of any other airport within the area of 150 kilometers as illegal and arbitrary and secondly in closing down the Begumpet Airport to function is more impracticable and causing greater hardship from the point of the users I view of the long distance and resultant inconvenience and further cost towards transport. Thus the writ petition was filed restricting the attack on Section 6 (1) (c) of the Aircraft Act, 1934 and the closure of the Begumpet Airport. On filing of the counter affidavit by the respondents herein, the petitioners having realized the mistaken approach and taking a cue from the sources which have been claimed from their action by the respondents herein, they sought to impugn the validity of the other provisions viz., Section 12 (3) (aa) and Section 40 of the Airport Authority of India Act, 1994. The main submission made on behalf of the petitioner is to the effect that as per entry 29 in the List-I of the 7th Schedule of the Constitution of India the power to legislate in respect of airways, aircraft and air navigation and provisions of aerodromes can be traced for the legislative action, and in view of the specific provisions and the scope and the powers as conferred under the said Act of 1934, it does not cover unlicensed aerodromes and even taking into account the subsequent amendments and the provisions of the Airport Authority of India Act, 1994 where the private airport is sought to be included, the statutory obligation on the part of the respondent to maintain and manage the air traffic does not get effected and which is exclusively vested one with the state. However, the action of establishing the new airport and closing down the existing one appears to be in pursuance of Concession Agreement dted 20-12-2004 in favour of the 4th respondent, which according to the petitioner does not get any support by a statute either for allowing such contract or to close down the existing one. Even otherwise, it is the contention of the petitioner that the restriction or prohibition of having any other airport within the aerial distance of 150 kilometers for a period of 25 years is not only arbitrary, but a monopolistic control, which cannot be sustained in the public interest. Further it is not sanctioned by any statute. Therefore, the contention urged on behalf of the petitioner is that there is absolutely no power, authority or jurisdiction vested with the respondents herein to allow either of creation of monopoly or closing dow n the existing one. That apart, it is his contention that having regard to the entity of the respondent No.4, which is exclusively a private sector where admittedly the majority of share holding is held by a private person and therefore the airport established by it becomes a private airport, for which again there is no trace of power or authority or jurisdiction under a statute. The Concession Agreement neither is a statutory one nor can constitute as a statute for any source. Therefore, no such private airport could have been allowed, or established to the detriment of an existing, running and most convenient airport of all places in India. Thus, there being no justification either in law or on facts, such a course adopted by the respondents herein in closing down the Begumpet Airport is wholly unsustainable and this Court has ample powers to exercise judicial review and strike down the same. In the counter affidavit filed by one of the respondents herein, it has been reiterated that the decision to close down the existing airport is done after due deliberations at different levels and it was very much in the public domain. It was stated that the idea for such creation of a new international airport at Hyderabad was given birth in February 1995 and the process has started by constitution of a committee by the Government of Andhra Pradesh for selection of site and after several deliberations and toying with the idea either at Hakeempet, Dundigal etc., the site at Shamshabad was found to be more suitable by the Site Selection Committee in September, 1997. This was followed by the commencement of a policy dealing with Green Field Airport. After all these aspects have been gone into by the Committee appointed for special purpose at different levels and authorities concerned, a global tender was invited on 24-12-1999 and a report was submitted recommending all pros and cons including as to the effect of traffic. Thereafter a final report was submitted by the Committee in March, 2000 and ultimately sought for approval by the cabinet, which was done in April 2000. After short listing the bidders, which included the aspects of construction of new airport at Shamshabad and closure of existing airport etc., and the meeting with the short listed bidders, the respondent No.4 was selected as preferred bidder on 31-5-2004and accordingly Concession Agreement was entered into between the Government of Andhra Prdesh and Hyderabad International Airport Limited on 20-9-2004. As per the terms and conditions contained therein such a restriction of not allowing any other airport within 150 kilometers was found in Clause 5.2.1 and also closure of the existing airport. Therefore, it is the contention of the respondent that the writ petition as has been filed and framed suffers from delays and laches and even otherwise there is no illegality or irregularity in the impugned action. Further, it was contended that apart from referring to the various provisions and the rules contained, it was said that the power can be traced to the amended provisions under Section 2 (nn) of Act,

#1994. where a private airport was included and the Central Government has been confined with the ample powers under Section 40 of the said Act to give necessary directions. Viewed from within the parameters laid down under the aforesaid provisions and the rules, there is ample authority vested with the government to come out with such proposals and enter into agreement. Hence, there is no illegality and the writ petition totally lacks in merits. That apart, having regard to several new airports coming up at different parts of the country including Delhi etc., since the existing Begumpet Airport will be effected by the traffic congestion it will not be in a position to cater 12 million passengers per annum and is likely to go up to 40 million passengers in the future. Therefore, it was felt desirable that new airport should be constituted and the existing one should be closed. Even other wise, having regard to the policy decision, which has been taken after weighing all pros and cons, and there being no illegality, the same cannot be interfered with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. On a conspectus of the detailed submissions made from both sides, the point which arises for consideration is, firstly, as to whether on the facts and circumstances, the provisions contained in Section 6 (1) ( c) of the Aircraft Act, 1934 and 12 (3) (aa) and Section 40 of Airport Authority of India Act, 1994 is unconstitutional and liable to be struck down? Secondly, as to whether the closure of the existing airport at Begumpet and shifting all the operations to Shamshabad at newly created Green Field Airport is unjustified? All the petitioner’s anxiety is primarily on the grievance of closure of the Begumpet Airport on establishment of new Green Field Airport at Shamshabad and assailing the constitutional validity of the aforesaid provisions, the same is causing greater inconvenience having regard to the distance etc. For convenience sake it is necessary to have a look at the said provision, which reads as follows: “6. Power of Central Government to make orders in emergency.- (1) If the (Central Government) is of opinion that in the interest of the public safety or tranquility the issue of all or any of the following, orders is expedient, (it) may, by notification in the (Official Gazette),- (a)… (b)… ( c) prohibit, either absolutely or conditionally, or regulate the erection, maintenance or use of any aerodrome, aircraft factory, flying-school or club, or place where aircraft are manufactured, repaired or kept, or any class or description thereof; “ It confers powers on the Central Government, to pass orders on the expediency in respect of the matters mentioned in sub-clauses (a) to (d). The reliance by the petitioners on sub-clause (c)’ is for the purpose of showing its parameters and scope. According to them, there exist no emergency nor any public safety or tranquility warrants for closure of existing airport. Therefore, there being no such circumstances nor any recording of the reasons on those lines, the action to close down is without jurisdiction. As stated, in the counter affidavit, the entire exercise is traced to the provisions under the Airport Authority of India Act, 1994. therefore, by amending the writ, there is a total back track on the initial foundation. Therefore, necessarily it calls for considering the provisions under the said Act of

#1994. Both the provisions have to be read together having regard to the field coverage, to appreciate the petitioners submissions. By taking us through the entire provisions of both the Acts an attempt was made to show that no such closure provided for or is permissible nor contemplates a situation for the monopoly or such restriction within 150 kilometers is unjustified. It was pointed out during the course of the arguments that the Begumpet Airport could have been continued with same facilities especially intra-state services since even to approach the new airport for air travel causes dearer and take more time. In support, the petitioner after referring to the Entry 29 in List-I of 7th Schedule placed reliance on the definitions of Aerodrome under Section 2 (2) of the Act 1934 and Section 5 (2) (b) of the said Act, which according to the petitioner do not allow any such private. Even the rules framed under these enactments according to the petitioner do not cover no such situation. Under the Act, 1994 there is a reference to definitions of airport, airtraffic service, air transport service and private airport as contained in Sections 2 (b), 2 (d) and 2 (e) and 2 (nn) to see that no such closure is permissible, though the establishment of new one can come within its operation. Therefore, neither the constitutional provisions nor the powers as can be traced or any of these statutory provisions would not permit for such closure, hence the entire action is bad. For a proper appraisal, the above definitions read as below: Section 2 (b):- “airport” means a landing and taking off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as defined in Clause (2) of Section 2 of the Aircraft Act, 1934 (22 of 1934). Section 2 (d):- “ air traffic service” includes flight information service, alerting service, air traffic advisory service, air traffic control service, area control service, approach control service and airport control service. Section 2 (e):- “Air transport service” means any service, for any kind of remuneration, whatsoever, for the transport by air of persons, mail or any other thing, animate or inanimate, whether such service relates to a single flight or series of flights; Section 2 (nn):- “ private airport’ means an airport owned, developed or managed by- (i) any person or agency other than the Authority or any State Government; or (ii) any person or agency jointly with the Authority or any State Government or both where the share of such person or agency, as the case may be, in the assets of the private airport is more than fifty percent. It is to be appreciated that the relevant provision which can cover the issues in question can be found only in the Airport Authority of India Act, 1994. Therefore, it can be safely said that the provisions of the Airport Act, 1934 will not have any application to the questions as sought to be raised. The said legislation was brought in, keeping in view the increased air aviation, both within the nation and international and therefore for a better management and control to be made under one authority and to take care of the situations arising. The airport as defined take in the aerodrome found in Section 2 (2) of the Airport Act,

#1934. Under Section 2 (nn), innovatively, private airports are brought within its fold and which also comes under the purview of the authorities connected. The checkered events which ultimately establishment of the new Green Field Airport and closure of the existing Begumpet one, as mentioned in the detailed counter affidavit filed on behalf of the respondents herein has virtually remained un- controverted. It thus, transpires that a decision to establish the new international airport at Shamshabad and closing down the Begumpet has undergone various ordeals and also processing at different levels. Initially conception for the development of a new international airport at Hyderabad was conceived in February 1985 and there was a nod from the State level to the Government of India to set up an airport under the private section and a team for site selection was asked to be constituted. Accordingly, the State government appears to have constituted the Site Committee on 22-4-1995. There have been several parleys and discussions at this level in choosing the site and the places like Hakeempet, Dundigal, Bonguluru and Nagargul came up for consideration. However, the Site Selection Committee, after making the inspection and looking into the pros and cons, the site at Peddashahpur in Shamshabad mandal was the more suitable for the purpose, in September, 1997. Accordingly, the policy of airports introduced by the Central government in December, 1987 dealing with the Green Field Airports and permitting new such airports as replacing of existing airports. Thus, the making over or changing over from existing into newer one was conceptualized as long back as in the year 1987 itself. Later in July 1988 in consultation with the State it wa decided to constitute another committee to finalise the location and submit the proposal. The said Committee, which was appointed has gone into the aspect and submitted the report noting down the constraints at the existing infrastructure facilities at Begumpet Airprot and which would not be in a position to handle the additional air traffic load and having regard to the suitability, the site at Shamshabad was chosen. This was followed by the issuance of tenders on 24-12-1989 on a joint venture basis. Agreeing such new establishment and closing down the new one thus according to the respondents thus was taken as long back as on 24-12-1989 itself. This had follow up procedure wrangles and approval of the Cabinet in January, 2000. A committee viz., Task Force on Infrastructure was asked to examined the proposal and it submitted a report on 28-2-2000 and this has been come up for consideration before the Ministry of Civil Aviation and the Planning Commission. There has been certain discussions on working out the modalities and on the recommendation of the concerned Ministry of Civil Aviation proposing for setting up new airport at Shamshabad and closing down the existing airport at Begumpet etc., was come up for approval before the Cabinet. Once again, it having undergone the discussions and the consultation at various levels, the Cabinet ultimately approved the said proposal on 13-4-2000 and later the process for tender was taken up and seven short listed bidders were identified, containing all such terms including closure of the existing one. After meetings, both pre-bid etc., the respondent No.4 was selected as a preferred bidder on 31-5-2004. Accordingly, a Concession Agreement was entered into on 20-12-2004, which is a comprehensive one containing various terms and conditions of which the relevant are extracted herein. Clause 5.2.1 reads as follows: “No new of existing airport shall be permitted by Gol to be developed as, or improved or upgraded into, an International Airport within an aerial distance of 150 twenty-fifty the Airport before kilometers of anniversary of the Airport Opening Date.” Clause 5.2.2 reads further as below: “ No new of existing airport shall be permitted to Gol to be developed as, or improved or upgraded into, an Domestic Airport within an aerial distance of 150 twenty-fifty the Airport before Kilometers of anniversary of the Airport Opening Date.” Clause 5.5.1 contemplates in the folling manner: “Existing Airport (a) HIAL shall, six (6) months prior to the anticipated Airport Opening Date, notify Gol of the date it expects Airport Opening to occur. (b) From and with effect from the date on which Airport Opening occurs Gol will ensure that the Existing Airport shall n ot be open or available for use for civil aviation operations. (c) From and with effect from the date on which Airport Opening occurs Gol will issue and publish an appropriate notification stating that the Existing Airport is no longer open or available for civil aviation operations (which shall, for these purposes, not include use for Airport Activity at times of national emergency or (at any time) by aircraft owned or operated by or for the Indian Air Force or other Armed Forces of India or Para-Military Forces of India or Police or such other authorities or for transportation of dignitaries by special government owned, leased of hired VIP aircraft) and also for ensuring that the international code (HYD) of the Existing Airport is transferred to the Airport subject to the compliance of the requisite terms and conditions, if any, for the same by HIAL. (d) General Aviation Services (Other than those relating to flights, aircraft hired or Commercial aircraft, charter operated under commercial arrangements) may continue to be provided at the Existing Airport notwithstanding its closure to commercial aircraft pursuant to paragraphs (b) and (c) above.” From the above, is seen that having regard technicalities involved and the expertise undergone through various processes at different levels these clauses were brought in and made part of the agreement. Therefore, it cannot be said that there is any such decision and without any consultation or much a do. Apart from the fact that there is much expertise involved and such exercise done, it certainly constitutes a policy matter, which squarely rests on the expert opinions with several technical aspects. In view of the same, it is very difficult to go into all such detail minute aspects and sit over the correctness or judgment thereon in exercise of the powers under judicial review. I n BISHAMBHAR DAYAL CHANDRA MOHAN VS. STATE OF UTTAR PRADESH[1] the Supreme Court held: “ EVEN assuming that the impugned tele printer message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions; on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225: (AIR 1955 SC 549), Mukherjea, C. J. , dealt with the scope of Arts, 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed : "ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. " It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly administration by issuing administrative directions or instructions, until the Government can carry on that behalf. Otherwise, legislature makes a administration would come to a standstill. THE Essential Commodities Act, 1955 was enacted by Parliament in exercise of concurrent jurisdiction under Entry 33, List III of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954. The exercise of such concurrent jurisdiction would not deprive the State legislature of its jurisdiction thereunder. The State legislature, therefore, could still make a law on the subject regulating trade and commerce in, and the production, supply and distribution of 'foodstuffs' and the only question that would arise is one of repugnancy dealt with in Art. 254 of the Constitution. The executive power of the State being coextensive with its legislative power under Entry 33, List III, it relates to all matters covered by the subject 'foodstuffs', trade and commerce in, and the production, supply and distribution thereof. This is, of course, subject to the limitation contained in Proviso to Art. 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof.” In ASIF HAMEED VS. STATE OF JAMMU AND KASHMIR[2] the Supreme Court held as follows: “BEFORE adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid constitutional limits. It is the sentinel of democracy. Judicial review is a two main organs of State the procedure prescribed function within therein. The powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint. THE legislature of Jammu and Kashmir having not made any law pertaining to medical education the field is exclusively to be operated by the executive under Art. 162 of the Constitution of India read with Section 5 of Jammu and Kashmir Constitution. When the constitution gives power to the executive Government to lay-down policy and procedure for admission to medical colleges in the State then the High Court has no authority to divest the executive of that power. The State Government in its executive power, in the absence of any law on the subject, is the competent authority to prescribe method and procedure for admission to the medical colleges by executive. instructions but the High Court transgressed its self imposed limits in issuing the- aforesaid directions for constituting statutory authority. We would make it clear that the procedure for selection laid-down by the executive as well as the selection is always open to judicial review on the ground of unreasonableness or on any other constitutional or legal infirmity.” I n SITARAM SUGAR COMPANY LIMITED VS. UNION OF INDIA[3] the Supreme Court held as under: “The true position, therefore, is that any act of the repository of power, whether legislative or administrative of quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.” I n FEDERATION OF RAILWAY OFFICERS ASSOCIATION VS. UNION OF INDIA[4] the supreme Court as follows: “IN examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be an unrestricted discretion. On matters affecting policy and requiring technical expertise Court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the Court will not interfere with such matters.” Of late of the latest the Supreme Court in BALCO EMPLOYEES’ UNION (REGD.) v. UNION OF INDIA held as follows: “Court cannot examine relative merits of different economic policies and cannot strike down a policy merely on ground that another policy would have been fairer and better..” Thus, the entire arguments on behalf of the petitioner are one of power, authority and jurisdiction in respect of closure of the existing one. As stated on behalf of the respondents in their counter affidavit the policy to establish the new airport and close down the existing one can be traced commencing from 1995 and in pursuance to Concession Agreement entered into between the respondents. It is only to give an effect to and implement the policy as contained in the provisions under the Act of 1994, the Concession Agreement came into existence and the same is in public interest and further there is no effect on its utility. It was pointed out that there is an element of public interest in the said policy and the powers can be traced to Section 40 of the said Act. There being no dispute in regard to the inclusion of the private airports and the whole idea of ushering any such airports in the private sector having found a statutory fold, it is the contention of the respondent that power conferred under Section 40 can be traced for taking all such appropriate policy decisions. For convenience sake the aforesaid provision is extracted herein below: “40. Power of the Central Government to issue directions.- (1) Without prejudice to the foregoing provisions of this Act, the Authority shall, in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time: Provided that the Authority shall, as far as practicable, be given opportunity to express its views before any direction is given under this sub-section. (2) the decision of the Central Government whether a questions one of policy or not shall be final. (3) the central Government may, from time to time, issue directions to the Authority regarding the discharge of any functions to it under clause (e) of sub-section (3) of Section 12 of the Authority shall be bound to comply with such directions.” On a reading thereof and vis-à-vis the definition clause under Section 2 (b) (2nn) and 13 (aa), it contemplates that the Central Government has powers to issue directions on questions of policy and necessarily these directions has to be in tune with giving effect and implement the action under the said policy. No prohibition has been pointed out nor a bar as such on behalf of the petitioner to restrict or control the operational arena in regard to the establishment of new airports or private airports. There is no serious dispute in regard to the increased activity, which is on the further increase in future in the times to come, the necessity to have a new airport was conceived and the same was sought to give effect to. Therefore the agreement or the terms contained therein squarely fall well within the permissible powers under the statute. Hence, we do not find any substance in the contentions urged on behalf of the petitioner to assail the said decisions to establish a new airport and consequently close down the existing one. Even though, the prayer and attack is on the footing of a constitutional validity, however, nothing specific has been pointed out nor any ground as such is raised to show the unconstitutionality of any of those provisions either under the Aircraft Act, 1934 or the provisions referred to Airport Authority Act of India, 1994. In the absence of any such specific attack on the part of the petitioner on the constitutional plane, merely trying to place the relief on the ground of inconvenience as such cannot be sustained nor would this Court go into all such questions in exercise of judicial review. Before parting with the case, there cannot be any dispute in regard to the distance which is created by establishing the new one and closing down the old one. However, the same cannot be a ground to assail. These are all matters, which require to be considered at the appropriate level by the authorities concerned in either allowing few services or restricting the same at both places. That apart, even in regard to the fee which has been collected for the use, is certainly a burden on the passenger apart from the usual charges incurred by him and keeping in view the ordeals to which a passenger is put to as to the distance to travel and the time taken necessarily is also a matter which should weigh with the authorities concerned to take appropriate decision. Hence, we do not find any justification in the contentions urged on behalf of the petitioner. There are no merits in the writ petition and the same is liable to be dismissed. WRIT PETITION NO. 7147 OF 2008 The petitioners herein are ‘Airports Authority Employees Union, a registered union, along with another employee, seek writ of mandamus assailing the validity of Section 5-A of the Aircraft Act, 1934 and Section 12 (2) ® of the Airport Authority of India Act, 1994 as illegal, arbitrary and unconstitutional and struking down the same and also the notification under File No.AV 20014/002/2008-AD dated

20.3.2008 issued by the first respondent as arbitrary and further direct functioning of Begumpet Airport for commercial aviation activities in public interest. The case of the petitioner in brief is that in view of the impugned action on the part of the respondents herein closing down the existing Begumpet Airport, which has a serious effect on the service conditions of the employees, apart from the practical difficulties to which the employees and others are put. The petitioner submits that having regard to the scope of the provisions as contained in Aircraft Act 1934 and later Act of 1994, the impugned action to close down the existing Airport is not permissible one nor it allows to enter into a contract along with a private person creating an exclusive operational monopoly to the fourth respondent, hence the same is bad. Further it was pointed out that apart from the other questions, which have been raised in other connected writ petitions i.e. W P No. 4950 and 7611 of 2008 there has been no such contemplation specifically provided for since inception or even at the stage of tenders on the restrictions as now culled out in the agreement and followed up later, therefore it is not open for the respondents herein to include any such restrictions which will effect the citizens rights and also that of the employees in particular. Hence, the writ petition. Contesting the claim of the petitioner employees as well, the respondents have sought to justify the impugned action by filing counter affidavit on the self same lines as the one in other connected writ petitions. It has been the claim of the respondents that having regard to the policy decision, which is since inception and ultimately boiled down the agreement and especially of the Green Field Airport with all its permissible terms and conditions under the law, there are no merits in the writ petition. Even otherwise, it has been pointed out that in view of the fact that no action has been taken as such effecting the services of any of the employees existing as on the date of opening of the new Airport or closure of the existing one, as such, no grievance can be made out by the petitioners. Having heard the learned counsel on either side and also on perusal of the material available on record, especially in view of the fact that the other two writ petitions were also heard along with this writ petition, where this Court has considered all the aspects including as to the constitutional validity and permissibility to close down the existing Airport. Since, the common questions arise, necessarily it follows the findings given therein and we reiterate the same findings. However, coming back to the case of the petitioners who are the employees under a union, as long as there is no affect as against any service conditions of them, nor any action is taken as such, it cannot be said that the petitioner union has got any cause to fight for. Apparently, the writ as has been filed and framed is quite premature and even otherwise the service conditions of the employees of the petitioner union are sufficiently protected under the law, with all the other alternative and efficacious remedies for appropriate action in the event of any action being taken, we do not wish to go into all these aspects at this juncture. Accordingly, we hold that the writ petition is premature one and liable to be dismissed and hereby dismiss the same. WRIT PETITION NO. 7611 OF 2008 In this writ petition the petitioner is an Advocate and renewed journalist, seeks writ of mandamus assailing the constitutional validity section 2 (3) (a a)and section 40 of the Airport Authority of India Act, 1994 as unconstitutional and also the concession agreement dated

20.12.2004 conferring exclusivity of the Green Field Airport at the cost of closure of Begumpet airport at Hyderabad as unconstitutional and finally the notification dated 20.3.2008 issued by the first respondent closing down the Begumpet Airport, as illegal and arbitrary and consequently set aside the same. This writ petition came to be filed subsequent to the other connected writ petition which was initially filed in W P No. 4950 of 2008 and the same was heard together. In this writ petition the contentions of the petitioner is as being assailed in the other writ petition against the closure of the Begumpet Airport and allowing the monopoly at Shamshabad Green Field International Airport. According to the petitioner, the provisions referred to in the notification have no relevancy and further the terms and conditions contained in the Concession Agreement between the parties are wholly unsustainable, more so, in view of the creation of such an Airport in the private sector at the cost of the public and their interest and above all not allowing any such activity within a radius of 150 Kms is not proper and illegal, since, the same is not sanctioned by any statute or law. During the course of the arguments, learned counsel adopted the submissions made on behalf of the petitioner in the other connected writ petition. It is to be noticed that except making bald attack against the aforesaid provision, which is more against the closure of the Begumpet Airport, nothing specific has been pointed out as to the constitutional virus and as to how the same requires to be set aside. In the counter affidavit filed on behalf of the respondents which is filed on the same lines as the one filed in the other connected writ petition, apart from giving address of its origin, commencement and ultimately tracing the powers under the Air Port Authority Act, 1994 as amended and the directions as permissible under Section 40 of the said Act, there is every similar reiteration. We have gone into all these aspects already in the other writ petition and held that the power is amply traceable to the provisions contained in Act 1994 including the power to issue under section 40 thereof, we have rejected the said contention. Though, the delay and laches has been pointed out by the respondents herein, however, having regard to the larger questions involved we do not find any justification to reject the Writs on the said count alone. In view of the aforesaid reasons as mentioned and also the conclusion which we have already arrived at in the other connected writ petition, rejecting similar such contentions, which squarely governs the very same issues as sought to be raised in this writ petition, nothing remains to be considered afresh, nor any other aspect has been pointed out by the petitioner to warrant a determination. For the foregoing reasons, the writ petitions fail and accordingly the same are hereby dismissed. However, in the circumstances of the case, there shall be no orders as to costs. _______________ B.PRAKASH RAO,J _______________ R. KANTHA RAO,J DATE: -07-2009 GRK/TVK THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE R KANTHA RAO WRIT PETITION NO. 4950, 7147 AND 7611 OF 2008 Dated: