Dilip Ranadive & Ors. v. Union of India

Judgment

( Per Sri R.M.S.Khandeparkar, J ) JUDGMENT : ( Per Sri R.M.S.Khandeparkar, J ) JUDGMENT : ( Per Sri R.M.S.Khandeparkar, J )

1. Heard. Rule. By consent, the rule is made returnable forthwith. The advocates for the Respondents waive service.

2. By the present petition, the petitioners are seeking a declaration to the effect that the Expression Of Interest dated 3rd January, 2008, hereinafter called as "EOI" to be without authority of law and hence ultra vires, and for various - 3 - consequential reliefs.

3. The grievance of the petitioners relates to the EOI issued by the Respondent No.3 for inviting bidders for ground handling work at the Mumbai Airport. It is the case of the petitioners that the said EOI and the norms prescribed thereunder are manifestly unreasonable and arbitrary and are designed and aimed at eliminating Indian agencies engaged or desiring to engage in ground handling work, besides being that the said EOI is contrary to the statutory provisions of Airports Authority of India Act, 1994, hereinafter called as "the said Act". It is the case of the petitioners that the said EOI is tailor made for some pre-selected persons and in the process the persons like the petitioners who are in the business of ground handling since 1979 face imminent threat of elimination from their legitimate business.

4. The petitioners are in the business of ground handling for Gulf Air, Air France, Delta, Northwest Airlines, etc. at Mumbai Airport, and the Petitioner No.2 is a registered partnership firm carrying on the said business of ground handling at Mumbai Airport. The Respondent No.2 has been constituted under the said Act and the undertakings of International - 4 - Airports Authority of India have been transferred to and vested in the Respondent No.1 for the purpose of the said Act and by virtue of Section 13(2) of the said Act, the undertaking of the erstwhile International Airports Authority of India was transferred and vested in the Respondent No.2. The Respondent Nos.3 to 5 discharge certain functions entrusted to them either under the said Act or under the Aircraft Act, 1934 or by virtue of delegation of powers in that regard.

5. The Respondent No.3 is a company, registered under the Companies Act, 1956 and is a consortium of GVK Airport Holdings Pvt. Ltd. ACSA Global Limited, Bid Services Division (Mauritius) Ltd. and the Respondent No.3 is created with the objective of operating maintaining, developing, designing, constructing, upgrading, modernizing, financing and managing Airports. It is the lessee in terms of the Lease Agreement by the Respondent No.2.

6. The Respondent Nos.1 and 2 statutorily oversee and/or are in ultimate control of all airports, including the Mumbai Airport. The Respondent No.4 is a statutory authority under the Aircraft Act, 1934 and the Respondent No.5 is a regulatory authority for - 5 - security measures for civil aviation in India.

7. The Respondent No.2 in exercise of powers vested under the said Act entered into an Agreement with the Respondent No.3 in respect of certain activities to be conducted and/or undertaken in respect of Mumbai Airport.

8. It is the case of the petitioners that prior to 1982, ground handling work at Indian Airports was regulated by an order dated 18th January, 1972 issued by Respondent No.5. The International Airport Authority of India framed regulations in the year 1982 which was notified on 25th March, 1982 and were called "The International Airports Authority of India (General Management, Ground Handling of Air Transport Services ) Regulations, 1982. In terms of the said notification, it is further case of the petitioners that in the year 1982, the ground handling work at Mumbai Airport was being done by Cambata Aviation, the petitioners, IAAI, Self Handling and Air India and Indian Airlines. However, at present there are about 50 other operators at Mumbai Airport doing ground handling work and that too without being authorised to do so. - 6 -

9. A notification dated 5th June, 1984 came to be issued by the International Airport Authority of India, the predecessor of the respondent No.2 whereby it sought to bar the work of ground handling done by a ground handling agencies prior to the coming into force of said notification, and the letter dated 16th October, 1984 came to be issued for surrender of all

the airport entry passes. Aggrieved by the same, the petitioners filed Writ Petition No.2277 of 1984 challenging the action on the part of the International Airport Authority of India. By an order dated 13th April, 1984 passed in the said Writ Petition, the said Regulations dated 5th June, 1984 so far as it related to regulation 5(c) and its explanation restricted the petitioners from carrying out ground handling work was set aside.

10. Sometime in 1989, the National Airports Authority of India was created under the National Airports Authority Act, 1985 and the Regulations made thereby were notified on 24th May, 1989 and they were called "The National Airports Authority (General Management, Entry for Ground Handling for Airport Transport Services) Regulations, 1989.

11. In the year 1993, with the opening of air - 7 - traffic to the private airlines, Jet Airways awarded the work of providing ground handling services to the petitioners. The petitioners’ request for additional passes to provide ground handling services to Jet Airways was arbitrarily rejected by the respondent No.2. A contempt petition came to be filed against the respondent No.2 in the year 1996 on account of certain interpretation sought to be given to clause 5 of the 1984 Regulations. However, pursuant to the explanation submitted and apology tendered, the matter was not carried any further.

12. The respondent No.2, under the notification dated 17th January, 2000 and pursuant to the Ground Handling Regulations, 2000, invited tenders for providing ground handling services at various airports including Mumbai. However, the entire process was sought to be scrapped in the year 2003.

13. Sometime in April, 2006, the respondent No.2 entered into an agreement with the respondent No.3 whereby some of the functions of the respondent No.2 in relation to the Mumbai Airport were agreed to be performed by the respondent No.3.

14. On 28th September, 2007, the Director General - 8 - of Civil Aviation issued a circular for information, guidance and compliance under the caption "Grant of Permission for providing Ground Handling Services at Airports other than those belonging to the Airports Authority of India." On 18th October, 2007, the respondent No.2 issued a notification under Section 42 of the said Act framing Airports Authority of India (General Management Entry for Ground Handling of Airport Transportation Services) Regulation, 2007. Copies of the said circular and the regulations are found to have been placed on record as Exhibit-"L" and Exhibit-"M", respectively. On 3rd January, 2008, the respondent No.3 issued the said EOI, i.e. Expression of Interest for Concession for Third Party ground handling at Chhatrapati Shivaji International Airport, Mumbai.

15. The challenge to EOI is four-fold, namely, that the EOI is ultra vires the statutory regulations dated 18th October, 2007; secondly, the terms and conditions mentioned in the said EOI are arbitrary, discriminatory and bad in law; thirdly, the respondent No.3 is a State or other authority within the meaning of the said expression under Article 12 of the Constitution of India and, therefore, is amenable to the writ jurisdiction of this Court; and fourthly - 9 - that the respondent No.3 performs statutory functions and, therefore, is amenable to the writ jurisdiction of this Court.

16. It is the case of the petitioners that the circular dated 28th September, 2007 read with the notification dated 18th October, 2007 makes it absolutely clear that function of regulating the ground handling work is vested in the respondent No.2 and the respondent No.2 continues to exercise its powers for carrying out the aforesaid functions and hence despite the agreement dated 4th April, 2006 entered into between the respondent No.2 and the respondent No.3 for maintenance and operation of the Mumbai Airport, the responsibilities for regulating ground handling work was retained by the respondent No.2 itself and no powers in respect thereof are exercisable by respondent No.3, and hence the EOI is without jurisdiction, bad in law and ultra vires.

17. It is the contention on behalf of the Petitioners that the circular dated 28th September, 2007 makes it abundantly clear that it is for the Central Government to decide the agencies who can provide ground handling services at the Airports and to lay down eligibility criteria for such ground - 10 - handling agencies. The attention is sought to be drawn to Clause Nos.1.3, 1.4, 2 and 7 of the said circular in that regard. It is further sought to be contended that the circular makes it clear that the Airport Operator is an authority to undertake to selection process and stipulates performance standard for such selection and only pursuant to the function delegated to it in that regard by the Government of India. It is, therefore, the contention on behalf of the petitioners that the respondent No.3 exercises the powers and functions of the Central Government and acts as an instrumentality and agency of the Government in that regard. Reliance is placed in the decision of the Apex Court in Andi Mukta Sadguru Shree Andi Mukta Sadguru Shree Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Others v. V.R.Rudani & Others, Trust & Others v. V.R.Rudani & Others, reported in Trust & Others v. V.R.Rudani & Others, (1989)2 SCC 691, Pradeep Kumar Biswas v. Indian Pradeep Kumar Biswas v. Indian Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Others, Institute of Chemical Biology & Others, reported in Institute of Chemical Biology & Others, (2002)5 SCC 111, Directorate of Education & Ors. v. Directorate of Education & Ors. v. Directorate of Education & Ors. v. Educomp Datamatics Ltd. & Ors., Educomp Datamatics Ltd. & Ors., reported in (2004)4 Educomp Datamatics Ltd. & Ors., SCC 19, and Association of Registration Plates v. Association of Registration Plates v. Association of Registration Plates v. Union of India & Ors., Union of India & Ors., reported in (2004)5 SCC 364. Union of India & Ors.,

18. As regards the last two grounds of challenge in the petition are concerned, undisputedly, the point in that regard was specifically decided by the - 11 - Division Bench of this Court in Writ Petition No.617 of 2007 in the judgment delivered on 5th June, 2008. At the same time, undisputedly, it is also a matter of record that the operation of the said judgment has been stayed by the Apex Court in SLP No.15984 of 2008 by an order dated 4th August, 2008, and the matter is listed for hearing in the month of November, 2008 before the Apex Court. Since the Apex Court is already seized with the matter in that regard, it will be appropriate to leave those issues open in this matter and to ascertain whether the matter can be considered independently of the said issues.

19. It is the contention on behalf of the petitioners that the Regulations of 18th October, 2007 are issued under Section 42 of the said Act and the Clause 3 of the Regulations specifically deals with the commercial and ground handling services at Metropolitan Airport at Mumbai. It clearly provides that the service provider shall be selected by the respondent No.3 through competitive bidding on revenue sharing basis and the respondent No.3 shall lay down the terms and conditions including the financial consideration, eligibility criteria, both financial and technical, number of agencies to be appointed at each of the airports. Since the statutory regulations - 12 - expressly cover selection process for ground handling agency in Mumbai at metropolitan airport, the respondent No.3 could not lay down the eligibility criteria of terms and conditions contrary to those provisions and, therefore, the EOI which purports to do so is ex facie ultra vires the said regulations.

20. The respondent No.3, on the other hand, has submitted that the circular and the regulations operate in separate fields and deal with separate subject matter, and both are to be harmoniously construed to ascertain as to what each of them provide for. According to the respondents, subject matter of circular is the ground handling at the airports other than the airports managed by the respondent No.2 while the subject matter of the regulations is ground handling at the airport managed by the Respondent No.2. The power to issue circular lies under the Aircraft Act, 1934 and the rules framed thereunder. The author of the said circular is the respondent No.4. The attention is sought to be drawn in that regard to the circular as well as the regulations while contending that the same ex facie discloses separate fields in which each of them operates, further contending that a distinction between the airports managed by the respondent No.2 and those not - 13 - managed by the respondent No.2 is clearly brought out in clause 1.3 of the circular. It is their further contention that the 2007 Regulations expressly supersedes over the Ground Handling Regulations 2000 and do not refer to the circular, nor it supersedes the circular and, therefore, 2007 Regulations do not apply to the airports which are not managed by the respondent No.2, including the Mumbai Airport.

21. If one peruses the circular dated 28th September, 2007, it is clearly revealed on the face of the said circular that it relates to the subject of "Grant of Permission for providing Ground Handling Services at Airports other than those belonging to the Airports Authority of India." The clause 1.3 of the circular provides that the Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2000, have been made under Section 42 of the Airports Authority of Indian Act, 1994 and thus are applicable to the airports managed by the Airports Authority of India. With the restructuring of certain airports and development of a few Greenfield airports in the private sector, it has become imperative for the Central Government to lay down the eligibility criteria for various agencies to undertake ground handling services at non-AAI - 14 - airports. The number of such agencies to be permitted at each airport is also to be determined by the Government having regard to all the relevant factors such as demand for such services, available infrastructure and competitive environment, without compromising the safety and security aspects.

22. The Clause 1.4 of the said circular provides that "Rule 92 of the Aircraft Rules, 1937 provides that the licensed public aerodromes shall, while providing ground handling services themselves, ensure a competitive environment and allow the ground handling service providers permitted by the Central Government to provide ground handling services at such aerodromes without any restriction. These ground handling service providers shall, however, be subject to security clearance of the Central Government. As such, it is for the Central Government to decide the agencies who can provide ground handling services at various aerodromes and also the eligibility criteria for such service providers."

23. The Clause 2 of the said circular relates to the eligibility criteria for ground handling service providers and it states that while the Airports Authority of India would promulgate the necessary - 15 - regulations, with the previous approval of the Central Government, under the Airports Authority of India Act, 1994, with respect to provision of ground handling services at the airports under their control, it has been decided by the Central Government that with immediate effect, the entities enumerated therein shall be eligible to undertake ground handling services at airports other than those belonging to the Airports Authority of India. The entities which are specified therein in Sub-clause (A) relating to the various Metropolitan Airports including the one located at Mumbai are; (i) the airport operator itself or its Joint Venture partner; (ii) subsidiary companies of the national carrier i.e. National Aviation Company of India Ltd. or their joint ventures specialized in ground handling services. Third party handling may also be permitted to these subsidiaries or their joint ventures on the basis of revenue sharing with airport operator subject to satisfactory observance of performance standards as may be mutually acceptable to the airport operator and these companies and; (iii) any other ground handling service providers selected through competitive bidding on revenue sharing basis by the airport operator subject to security clearance by the Government and observance of performance standards as may be laid - 16 - down by the airport operator. The clause (B) relates to all other airports and it specifies that "in addition to the entities mentioned above, the airline operators shall also be permitted to undertake self-handling. However, foreign airlines shall not be allowed to engage themselves in self-handling."

24. The circular, therefore, on the face of it discloses that it relates to the subject of grant of permission for providing ground handling services at all airports other than those belonging to Airports Authority of India. In other words, the airports which belong to Airports Authority of India, the circular will have no application. The circular further clarifies that there are already regulations made dealing with the subject of ground handling services in relation to the airports managed by the airport authority of India and, therefore, in the absence of those regulations being applicable to the other airports which have been developed in public sector, it was found necessary under Central Government to lay down eligibility criteria for such agencies to undertake ground handling services and, therefore, the said circular came to be issued.

25. The Regulations of 2007 dated 18th October, - 17 - 2007 clearly specify that "they shall apply to all airports and civil enclaves managed by the Airports Authority of India, provided that they shall not apply to defence installations or enclaves or enclosures at the airports." In other words, the Regulations of 2007 published on 18th October, 2007 on the subject of ground handling services at the airports clearly restrict its applicability to those airports which are managed by the Airports Authority of India. The regulations under Clause 5 thereof specify that the airports authority in India constituted under Sub-section (1) of Section 3 of the said Act shall lay down the terms and conditions (including financial consideration), eligibility criteria for ground handling agency (both financial and technical) and number of such agencies to be appointed at each airport keeping in view the safety security, demand, available infrastructure, land and other relevant consideration. The clause 6 thereof provides that Bureau of Civil Aviation Security may impose such restrictions as may be necessary in this behalf on grounds of security, and Clause 7 thereof provides that as specified in Regulation 3 shall be required to follow the instructions issued by the Bureau of Civil Aviation Security as contained in Annexure "A" to the said regulations or as may be altered or substituted - 18 - or modified or amended from time to time. The clause 8 requires due compliance of the provisions contained in the Aircraft Act, 1934 and rules made thereunder. The agencies which are specified in the Regulation 3 are similar to the agencies specified in Clause 2(A) of the Circular dated 28th September, 2008. The Clause 3 of the Regulation reads thus:- "3. Ground handling services at airport - (1) A carrier may carry out ground handling services at metropolitan airports, that is, the airports located at Delhi Mumbai, Chennai, Kolkata, Bangalore and Hyderabad, by engaging the service of any of the following, namely:- (i) Airports Authority of India or its Joint Venture Company; (ii) subsidiary companies of the national carrier, that is, National Aviation Company of India Limited or its joint ventures specialized in ground handling services: . Provided that third party handling may be permitted to these - 19 - subsidiaries or their Joint Ventures on the basis of revenue sharing with the Authority subject to satisfactory observance of performance standards as may be mutually acceptable to the Authority and these companies; (iii) any other ground handling service provider selected through competitive bidding on revenue sharing basis, subject to security clearance by the Central Government and observance of performance standards."

26. It is not in dispute and cannot be in dispute that it is for the respondent No.2 to lay down the terms and conditions including financial consideration, eligibility criteria for ground handling agencies, both financial and technical, number of such agencies to be appointed at each of the airports keeping in view the safety security, demand, available infrastructure, land and other relevant consideration as has been specified under Clause 5 of the said Regulations.

27. Being so, the respondents are justified in - 20 - contending that the grievance of the petitioners that the regulations issued on 18th October, 2007 override or supersede the circular dated 28th September, 2007 is devoid of substance. The regulations specifically relates to the airports managed by the Airport Authority of India whereas the circular applies to all the airports other than belonging to the Airport Authority of India, and hence there is no question of one superseding the another and both are to be read harmoniously. In this regard, the stand of the respondent No.1 which is also clear to the effect that the regulation does not supersede circular and that therefore the EOI cannot be said to be ultra vires. The same is the stand of the respondent No.2 in their affidavit where it has been stated that the circular dated 28th September, 2007 is an independent of the regulations of 2000 and, therefore, there is no question of supersession of the circular by the Regulations.

28. As rightly submitted on behalf of the respondents, a statutory provision has to be understood in the context in which it appears in the statute. The same rule will apply in relation to the subsidiary or delegated legislation. A provision of law in its statute or in the rules and regulations - 21 - made thereunder cannot be read in isolation and ignoring the scheme of the concerned statute and the regulations made thereunder and no such provision can be interpreted to render the same meaningless or otiose, rather interpretation, if any, required the same should be with a view to make a provision meaningful and effective, albeit, without ignoring the scheme of the Act. In that regard, the respondents are justified in placing reliance in the decision in Kailash Chandra & Anr. v. Mukundi Lal the matter of Kailash Chandra & Anr. v. Mukundi Lal Kailash Chandra & Anr. v. Mukundi Lal Union of India & & Ors., reported in (2002)2 SCC 678, Union of India & & Ors., Union of India & & Ors., Anr. v. Venkateshan S. & Anr., Anr. v. Venkateshan S. & Anr., reported in (2002)5 Anr. v. Venkateshan S. & Anr., SCC 285, Kishorebhai Khamanchand Goyal v. State of Kishorebhai Khamanchand Goyal v. State of Kishorebhai Khamanchand Goyal v. State of Gujarat & Anr., Gujarat & Anr., reported in (2003)12 SCC 274 and the Gujarat & Anr., Municipal Corporation of Delhi v. Shiv Shanker, Municipal Corporation of Delhi v. Shiv Shanker, Municipal Corporation of Delhi v. Shiv Shanker, reported in 1971(1) SCC 442.

29. Since the circular operates in totally different field from the one in which the regulations operate, the question of supersession of one by another does not arise at all. The contentions in this regard sought to be raised on behalf of the petitioners are devoid of substance.

30. The next ground of challenge relates to the arbitrariness in relation to the terms and conditions - 22 - mentioned in EOI whereby the same seeks to exclude the amenities other than the limited companies, those who do not have experience to the extent mentioned in the EOI and deliberate intentional exclusion of Indian entities.

31. In this regard, the attention is drawn on behalf of the petitioners to clauses 1.3, 1.4, 2.1(c),

2.1(d), 2.5.1 of the said EOI, while placing reliance Mohammed Faruk v. in the decision of the Apex Court in Mohammed Faruk v. Mohammed Faruk v. State of Madhya Pradesh & Ors., reported in 1969(1) State of Madhya Pradesh & Ors., State of Madhya Pradesh & Ors., SCC 853.

32. The clause 1.3 of the said EOI relates to the subject of economic background and it states that the India’s economy is experiencing a remarkable growth rate in the recent years. Analysts predict growth rates between 8% to 10% p.a. for the next 10 to 15 years. CSIA ranks amongst the world’s top 60 airports and is India’s busiest airport. The economic progress of Mumbai and the growing income of its citizens significantly increased the demand for air travel and movement of cargo. Globally, aviation tends to grow at twice the rate of the GDP of the respective economy. Due to the liberalization of aviation policies by the Government of India as well as the - 23 - increasing integration of India with the global economy, the Indian aviation industry has grown even faster and is likely to continue to do so.

33. The clause 1.4 of the said EOI relates to the subject of Traffic Forecast. It states that CSIA is India’s busiest airport in terms of passenger and cargo traffic movements. The passenger traffic witnessed substantial growth and touched the 22-million mark for the period April 2006 to March

2007. The recorded total passenger traffic for this one year period was 22.25 million (14.9 million domestic and 7.34 million international), signifying a

20.85 per cent increase over the same period last year. The passenger traffic of 2.15 million in January 207 has been the highest ever monthly passenger traffic recorded for any airport in India and only augurs the future growth potential of CSIA. This growth is also coupled with the visible improvements that have been made by MIAL at CSIA since May, 2006 to meet such growth. The following traffic scenarios are visualised based on the available data in that regard. ------------------¦---------¦-------¦--------¦--------¦-------¦ SCENARIO ¦ 2009 ¦ 2011 ¦ 2013 ¦ 2015 ¦2017 ¦ ------------------¦---------¦-------¦--------¦--------¦-------¦ - 24 - Total Passengers ¦ 25.6 ¦ 29.6 ¦ 34.2 ¦ 37 ¦37.5 ¦ (in million per ¦ ¦ ¦ ¦ ¦ ¦ year) ¦ ¦ ¦ ¦ ¦ ¦ ------------------¦---------¦-------¦--------¦--------¦-------¦ Total Cargo ¦ 549.000 ¦631.000¦ 729,000¦ 846,000¦983,000¦ (tons per year) ¦ ¦ ¦ ¦ ¦ ¦ ------------------¦---------¦-------¦--------¦--------¦-------¦ Total Aircraft ¦ 224,000 ¦254,000¦ 287,000¦ 295,000¦300,000¦ Movements ¦ ¦ ¦ ¦ ¦ ¦ ------------------¦---------¦-------¦--------¦--------¦-------¦ Aircraft Movement ¦ 38 ¦ 40 ¦ 42 ¦ 44 ¦44 ¦ at Peak Hours ¦ ¦ ¦ ¦ ¦ ¦ ------------------¦---------¦-------¦--------¦--------¦-------¦

34. The clause 2 relates to invitation for EOI. The clause 2.1 pertains to an award process, eligibility of applicants and time schedule. The clause 2.1(c) pertains to eligibility of applicants, and it reads thus:- "The Applicant may be a single entity or a group of entities ( the "Consortium") coming together to submit the Application. The term "Applicant" used herein would apply to both a single entity (sole) as well as a Consortium. An Applicant may be a private or public company or any combination of them with a formal intent to form a Consortium. In case the Applicant is a Consortium, it must comply with the requirements as specified in Clause 2.1(e). - 25 - The Applicant shall submit a Power of Attorney authorising the signatory to the Application to submit the Application. At any point of time in the bidding process, if required by MIAL, the Applicant shall promptly provide such further evidence of their eligibility as per the terms of the EOI to the satisfaction of MIAL."

35. The Clause 2.1(d) relates to the time schedule for the tender process. Thereunder, it has been clarified as under:- "This EOI, subsequent tender process and the Concession are in conformity with, circular No.9/1/2002-IR dated 28.09.2007 on Ground Handling Services and subject to any policy decision, rules and/or regulations issued by the Director General of Civil Aviation, Ministry of Civil Aviation, Government of India from time to time. In case there is any change in the Ministry of Civil Aviation’s policy on Ground Handling, MIAL may also change some elements of the tender process or - 26 - cancel the entire process, as it deems appropriate."

36. The clause 2.5 pertains to the subject of short listing conditions and the clause 2.5.1 relates to technical conditions and it provides thus:- "Operational experience for a period of at least 5 years as official Ground Handling Service provider at an international airport with an overall annual passenger volume of at least 20 million passengers. The Applicant should have handled at least 5 million departing passengers per year at one single airport. The Applicant should have performed Ground Handling Services in two (2) other countries than India. The Applicant should have performed Ground Handling Services at both air sides as well as landside. The Application to be supported by Certificate - 27 - of Service from other airports where the Applicant is performing the Ground Handling Services. In case the Applicant is a Consortium, this Certificate may be provided for either or all the Consortium member(s)."

37. Apart from the clauses which are sought to be referred to on behalf of the petitioners, it would be also necessary to take note of few other terms of the said EOI. The clause 2.1(e) relates to the subject of Consortium and it states that the Consortium shall mean a group of entities coming together to submit their response to this EOI. The applicants may form a consortium to achieve the expertise, skills and resources which will be required for this Concession. Number of members in a Consortium is limited to a maximum of three (3). It further provides that an international company may form a joint venture or a consortium with an Indian company for the purpose of this concession. It is mandatory, if such an Indian company is a Ground Handling Service Provider, it shall be a non-airline Ground Handling Service Provider. It further provides that a consortium between Applicants, each fulfilling the short listing - 28 - conditions as outlined above and below can also be formed during the tender phase. A consortium between a qualified partner and a third-party can also be formed during the tender phase if the qualified partner holds a majority in the consortium and is fully responsible towards the respondent No.3.

38. In the Appendix I to the said EOI, the applicants are informed that in addition to whatever information which was required to be provided in terms of the said EOI, the following information should also be provided by the applicants:- "1. Company Profile Provide evidence of incorporation in India, or the intended plan for the incorporation in India of the entity proposing to enter into the concession agreement. Provide the following for each shareholder (current and future) of the concessionaire: (i) Name and full contact details. (ii) Place of incorporation and company - 29 - registration details. (iii) History and company profile. (iv) Organization chart. (v) Member of the Board and Executive Management. (vi) Ultimate controlling beneficiary. (vii) Ownership percentage in the proposed concessionaire. (viii) Letter of intent/commitment to take up the proposed shareholding. (ix) Roles and responsibilities of each member of the proposed consortium. (x) Lines of authority and means of co-ordinating the members of the proposed consortium.

2. Financial Information - 30 - The Applicant shall demonstrate its financial planning experience and the financial capability necessary to undertake the project. The Applicant shall submit evidence of its ability to raise necessary equity/debt funds on a favourable basis. The proposed concessionaire (or its intended shareholders identified above) shall provide at least: (i) The Net Worth of the Applicant as per the latest Audited Annual Financial Statement. In case the Applicant is a Consortium, the Net Worth of each of the member(s), as per the latest Audited Annual Financial Statements. (ii) The financial data submitted must be supported by a certificate from the Applicant’s Statutory Auditor. (iii) The Application must include last three (3) years Annual Report and latest Audited Annual Financial Statements, including Balance Sheets, - 31 - Profit and Loss Statement and Cash Flow Statements duly certified by a Managing Director/Authorised Signatory of the Applicant. In case the Applicant is a Consortium, this information must be provided for each of the Consortium member(s). (iv) Evidence of paid-up capital. (v) Any interim financial results which have been published since the latest audited accounts. (vi) Names of bankers or institutions providing credit facilities to the proposed concessionaire for the financing of the facility, accompanied by credit references from them concerning the proposed concessionaire’s ability to finance the facility. (vii) Details of credit ratings, if any and in time over at least the last 3 years. - 32 -

3. Human Resources Planning (i) Estimated number of personnel, classified by working groups. (ii) Planned organization. (iii) Description of qualification, education and training requirements for main staff. (iv) Categories and levels. (v) Profile and qualification of management team for MIAL. (vi) Recruitment and training strategy and plan. (vii) Man power integration for transition phase and smooth operation.

4. Experience The Applicant shall provide information - 33 - regarding the experience of each shareholder/member of the consortium in providing all ground handling services to domestic and international airlines at airports with at least 20 million passengers a year. Such information shall include. a full list of current ground handling concessions at airports including information about the length of the concession, the scope of the activities of each concession and the pricing methodology being adopted; a detailed overview of all current ground handling operations at international airports, including details about the mix of ground handling services offered, the equipment used to perform these services as well as the overall handled departing passengers per operation; the nature of the management structure and the role therein; latest business developments and contracts awarded; - 34 - information regarding business performance including sales volume per region, number of customers, market share in regional markets, etc; any other experience relevant for the third-party ground handling concession at the Mumbai Airport.

5. Litigation Interest Provide a brief summary of all litigation and arbitration proceedings involving the Applicant (or that of its intended shareholders identified above if it has not been formed or has been operating for less than 3 years) currently and over the last 5 years.

6. Principal Representative Provide the name, address, e-mail address, telephone and fax numbers of the principal representative of the Applicant authorized to respond and commit on behalf of the Applicant. - 35 -

7. Proprietary Data All documents and other information supplied by MIAL or submitted by an Applicant to MIAL shall remain or become the property of MIAL. MIAL will not return any application or any information provided along therewith."

39. The learned senior counsel appearing for the petitioners, while assailing the said EOI has submitted that insistence for only a corporate entity to be eligible to submit a tender in relation to ground handling at the airports is ex-facie arbitrary and unreasonable and has no nexus with the competitiveness of the bidder or the security of the airports or observance of any performance standard. He has further submitted that the petitioners have been carrying on business of ground handling services at Mumbai Airport since 1979 and were one of the two authorised private service providers. He has further submitted that the said EOI is motivated and arbitrary inasmuch as that there is intentional and deliberate attempt to keep other Indian out of the business of ground handling services and depriving them of livelihood in contravention of the guarantee assured - 36 - under Article 19(1)(g) of the Constitution of India. He has further submitted that there could not be any Indian companies having experience of ground handling service providers at the International Airport for the volume of about 20 million departing passengers for a period of five years and this itself shows that deliberate attempt to exclude Indians from being competitor to such tender process. He further drew our attention to the figures of 2006-07 which disclose that the passenger movement could reach to the extent of 20 million for the first time at CSIA in the said year. He further submitted that the ground handling services does not require any special expertise as such and, therefore, the requirement of stringent scrutiny and arbitrary conditions need to be struck down.

40. The learned senior counsel appearing for the respondents, on the other hand, submitted that the contract which is to be awarded for ground handling at Mumbai Airport is a long term contract for 10 years and high quality international standard ground handling services are required for the benefit of the travelling public. The scope of services to be provided by the ground handling agencies is as described in the annexures to the circular and this is - 37 - not in dispute. The same contained the provisions in terms of IATA AHM 810 Airport Ground Handling Manual and the ground handler must be qualified one and the same have to perform all those services. Drawing attention to the records, the learned senior counsel further submitted that the petitioners having not been able to place on record any material to disclose that they had been performing all those functions and activities as enumerated in the said annexure to the circular and categorical averment in that regard by the respondents has not been denied by the petitioners. According to the senior counsel for the respondent No.3, the records nowhere disclose the petitioners to be eligible to be appointed as the ground handlers at Mumbai Airport because the petitioners have not performed and are not capable of performing most of the services and on that count itself, the challenge to the petition is liable to be dismissed.

41. As regards the eligibility clause which relates to the necessity of the applicant being a company, it is sought to be contended on behalf of the respondents that there is always transparency in the affairs of such companies relating to the shareholders, networth, turnover, audit of accounts, - 38 - particulars of directors managing the company etc. because of statutory provisions contained in the Companies Act, 1956 and the rules and regulations made thereunder which are required to be applied with by such companies without which the companies cannot function and, therefore, the assessment of the capacity of such applicants and their performances as well as their financial status can be assessed with the required ease and necessary information being easily available in that regard, in contrast to the cases relating to proprietary concern or partnership concern.

42. In relation to the requirement of experience of ground handling work, it is sought to be contended on behalf of the respondents that the requirement thereof is must, bearing in mind the ten year long contract to be awarded as also taking into consideration the fast growing passenger traffic at the Mumbai Airport. Considering the fact that the Mumbai Airport is busiest Airport in the country and the passenger traffic having witnessed substantial growth and having already touched 22 million mark by March, 2007 and expected increase further, coupled with the overall development which is in progress all around the area, it is essentially in the public - 39 - interest to ensure that the ground handling agency is capable of handling such growing traffic.

43. The learned senior counsel further submitted that it is also necessary to take into consideration the international standards of ground handling and necessity to meet the same without ignoring the consistent growth in the traffic volume at the Mumbai Airport. The factual situation cannot be ignored while deciding the terms and conditions in relation to a contract to be awarded for ground handling at the Airports and having so considered the terms and conditions fixed under the said EOI, by no stretch of imagination, according to the learned senior counsel for the respondents, can be said to be either unreasonable or unfair or arbitrary or having no nexus with the object to be achieved and are neither unreasonable, nor arbitrary at all.

44. He further submitted that the said EOI clearly permits a single entity to participate in the tender process by forming a consortium and, therefore, the question of exclusion of Indian entities is neither contemplated nor even intended under the said EOI. The provisions have been made with a view to give necessary flexibility to the applicants to enable them - 40 - to meet the desired requisite standards. According to the learned senior counsel, the Indian entities are welcomed as also the foreign entities and those who are able to give best performance are bound to succeed in the said tender process.

45. He further submitted that it is not sufficient to make a bald allegation of malafide. The allegation of malafide is to be supported by necessary material in that regard and in the absence thereof, the same is to be rejected outright. In the case in hand, according to the learned senior counsel, there is no such material in support of such allegation. Taking into consideration the explanation placed on record in respect of every contention sought to be raised on behalf of the petitioners in relation to the eligibility terms comprised under the said EOI, the learned senior counsel submitted that there is absolutely no substance in the challenge to the petition.

46. He further submitted that the law on the point about latitude being available to the persons floating a tender in relation to the eligibility criteria to be laid bearing in mind the scope and the nature of the work to be allotted has always been recognised by - 41 - number of decisions of the Apex Court. In that regard, the attention was sought to be drawn to the Association of Registration decision in the matter of Association of Registration Association of Registration of Plates v. Union of India & Ors., reported in of Plates v. Union of India & Ors., of Plates v. Union of India & Ors., (2005)1 SCC 679, reliance on which was also placed by the learned senior counsel for the petitioners. The attention is also drawn to the judgment of the Apex Air India Limited v. Cochin Court in the matter of Air India Limited v. Cochin Air India Limited v. Cochin International Airport, reported in (2000)2 SCC 617, International Airport, International Airport, Dhampur Sugar v. State of Uttaranchal, reported in Dhampur Sugar v. State of Uttaranchal, Dhampur Sugar v. State of Uttaranchal, Tata Cellular v. Union of India, (2007)8 SCC 418, Tata Cellular v. Union of India, Tata Cellular v. Union of India, reported in (1994)6 SCC 651, and Educomp Datamatics Educomp Datamatics Educomp Datamatics Ltd.’s case (supra) Ltd.’s case (supra). Ltd.’s case (supra)

47. In Association of Registration of Plate’s case Association of Registration of Plate’s case Association of Registration of Plate’s case (supra), (supra), it was clearly held that there is always (supra), latitude to be allowed to the body floating a tender in respect of the terms and conditions thereof unless those are found to be malicious or in arbitrary exercise of powers. The State or its instrumentality requires to perform any of its function if considers it necessary to have expertise in the field in order to obtain a contract in respect of such work, certainly the Courts cannot sit in appeal over such Association of Registration of Plate’s decision. In Association of Registration of Plate’s Association of Registration of Plate’s case (supra), the requirements of foreign case (supra), case (supra), - 42 - collaboration was held not discriminatory in view of the fact that no expertise in the field in question therein was found to exist in India. Merely because the petitioners had been performing the work of ground handling for all these years, that itself cannot be construed as an experience to handle the 20 million passengers every year or 5 million departing passengers per year at the single airport. It is not the case of the petitioners that these terms and conditions have been tailor made to suit to any particular party or that it essentially results in absolute exclusion of Indian entities. As already seen above, nothing prevents an Indian entity to form a consortium having one of the constituents sufficient experience as required under the terms and conditions stipulated under the said EOI.

48. In Air India Limited’s case (supra), Air India Limited’s case (supra), it was Air India Limited’s case (supra), held that the award of contract whether it is by a private party or by a public body or the State, it essentially involves a commercial element and in arriving at any decision in such matters, the commercial considerations are of paramount importance. Whether it is private party or public body will have sufficient freedom to chose its own method in that regard and the Courts cannot under the garb of - 43 - judicial scrutiny sit in appeal over such decision. It was specifically held that the State and its instrumentalities have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise the discretionary power under Article 226 of the Constitution, with utmost restraint and sufficient caution and essentially in furtherance of public good and in public interest. It is only when the public interest is involved in the matter, intervention in such cases is called for. In the case in hand, undoubtedly, ground handling at the Airport involves a public interest. If the authority bearing in mind the same has taken proper care and caution of formulating necessary conditions for eligibility so that public interest is not hampered, one fails to understand as to how there could an occasion for interference in writ jurisdiction.

49. In Dhampur Sugar’s case (supra), Dhampur Sugar’s case (supra), it was Dhampur Sugar’s case (supra), clearly ruled that the allegation of malafide essentially raises a question of fact and, therefore, it is necessary for the person making such allegation to support the same with relevant particulars in that regard. Mere assertion, averment and bald statement is not enough to hold the actions to be malafide. It - 44 - must be demonstrate by facts and burden to prove is very heavy upon the person levelling such allegation against others. In the case in hand, as rightly submitted on behalf of the respondents, the petitioners, apart from making a bald allegation in that regard, have not been able to substantiate the same in any manner. Tata Cellular’s case (supra), the Apex 50. In Tata Cellular’s case (supra), Tata Cellular’s case (supra), Court had laid down certain principles which are to be observed while dealing with the matters in relation to tenders and contracts with the Government and public bodies. It was ruled that the modern trend points to judicial restraint in this regard. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract, and the award of the contract is reached by process of negotiations through several tiers and more often than not, such decisions are made qualitatively by experts. Undoubtedly, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must only be tested by the application of Wednesbury principle of reasonableness. Applying the same principle to the matter in hand, the requirement - 45 - of eligibility criteria laid down in the said EOI can be, by no stretch of imagination, said to be either malafide or with an intention to exclude the Indian entity from participating in tender process. Educomp Datamatics Ltd.’s case (supra), it 51. In Educomp Datamatics Ltd.’s case (supra), Educomp Datamatics Ltd.’s case (supra), was held that the Government and public body must have free hand in settling the terms of tender and merely because the Court feels that some other terms would be either more fair, wiser or logical, that would not justify interference. In the case in hand, as already seen above, apart from contending that the terms are essentially with the intention to exclude the Indian entity, the petitioners have not been able to meet the arguments made on behalf of the respondents that the Indians are not prohibited from forming consortium with the foreign entity having expertise in the field in case where the Indian entity lacks either experience or other requirement. As rightly submitted by the learned senior counsel for the respondent No.3, the eligibility criteria enumerated under the said EOI nowhere discloses any restriction which could tantamount to total prohibition or total restraint on the rights of Indian entities in participating in the tender process. Mere imposition of certain restrictions in the public interest or with the - 46 - intention of providing better services to the passengers, it cannot be said that such terms would amount to violation of right assured under Article 19(1)(g) of any other Article of the Constitution. Indeed, there is no total ban or absolute restraint on any one imposed by the said EOI. It merely lays down certain qualifications and eligibility requirements which do not put total restraint on any one in the matter of business. Merely because the petitioners were carrying on business of ground handling at the airport, that does not create any right to the petitioners to contend that the petitioners are entitled to carry on such activities at the said Airport in perpetuity. The respondents are entitled to bring about the necessary development at the Airport and to improve the facilities for the passengers. Bearing in mind the same, if the respondents have, in public interest, prescribed certain conditions to enable the parties to perform ground handling work at the said Airport, no fault can be found with such decision. The condition imposed, by no stretch of imagination, can be said to be either unreasonable, arbitrary, malafide or unlawful.

52. The condition that the applicant should be a company also cannot be said to be irrational or - 47 - arbitrary. The function of a company being statutorily required to be transparent in the sense that its affairs are subject to scrutiny by the recognised professional bodies like auditors, company Registrar and his officers, etc. and therefore, as rightly submitted on behalf of the respondents, the assessment of capacity of company applicant and its performance as well as financial status becomes more easier in comparison to that of a proprietary or partnership applicant. The decision of the Apex Court Mohammed Faruk’s case (supra) is of no assistance in Mohammed Faruk’s case (supra) Mohammed Faruk’s case (supra) to the petitioners. It was clearly ruled in the said decision that imposition of restriction on the exercise of a fundamental right may be in the form of control or regulations in public interest, however, when the exercise of such right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the authority imposing such total ban. In the case in hand, we do not find any total ban as such in any respect.

53. Considering the object of the said EOI to secure a ground handling agency which can perform all functions of a ground handlers in terms of the - 48 - provisions laid down in IATA AHM 810 Airport Ground Handling Manual, and the petitioners having not been able to establish any of the conditions sought to be imposed under the said EOI are in contravention of the provisions in the said Manual, or are in violation of any of the rights to the petitioners or desiring or prospective tenders, and therefore, it cannot be said that there is any case for interference by the Court in the said EOI. The conditions do not disclose any total ban as such but merely aims at regulating the ground handling work at the Airport.

54. In the result, therefore, the contention that the said EOI is ultra vires the regulations is devoid of substance. The contention that the said EOI is arbitrary, untenable and bad in law is also devoid of substance. As regards the contention that the respondent is a State or that it is amenable to writ jurisdiction, in the facts and circumstances of the case and the view that we are taking in the matter, in our considered opinion, it is not necessary to deal with the said issues. Besides, this Court in Flemingo Flemingo Flemingo Duty Free Shop Pvt. Ltd. & Anr. v. Union of India Duty Free Shop Pvt. Ltd. & Anr. v. Union of India Duty Free Shop Pvt. Ltd. & Anr. v. Union of India & Ors., in the Writ Petition No.617 of 2007 decided on & Ors., & Ors., 5th June, 2008 has already held that the respondent No.3 which is an instrumentality to be the State. - 49 - Undoubtedly, the said judgment has been stayed by the Apex Court, and the matter is fixed for hearing in the month of November, 2008. In the circumstances, the Apex Court is already seized of the said issue, it would not be therefore either appropriate or necessary to deal with the said issues again in this petition and more particularly when the matter can be disposed of without considering the said issues. It is, therefore, not necessary to refer to the decisions relied upon in relation to the said issues.

55. In the result, therefore, the petition fails and is hereby dismissed. The rule is discharged, with no order as to costs. ( R.M.S.KHANDEPARKAR, J ) ( A.A.SAYED, J )