Kerala High Court
Plus Max Duty Free Private Limited vs Airport Authority Of India on 1 October, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
WP(C) No.19869/2021 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
Friday, the 1st day of October 2021 / 9th Aswina, 1943
WP(C) NO. 19869 OF 2021(G)
PETITIONER:
PLUS MAX DUTY FREE PRIVATE LIMITED, REGISTERED OFFICE, NO. 86/18,
ROYAL COMPLEX, SANKARI ROAD, SEETHARAMPALAYAM, TIRUCHENGODE,
NAMAKKAL, TAMIL NADU-637 209, REPRESENTED BY ITS MANAGER AND
AUTHORISED SIGNATORY, KARTHIKEYAN P, AGED 28 YEARS, SON OF
K.PERUMAL, RESIDING AT NO. 4/83, PATTIYATHOTTAM MOOLAPALAYAM,
ELUPPULI P.O, TIRUCHENGODE, NAMAKKAL, TAMILNADU 637 202.
RESPONDENT:
1. AIRPORT AUTHORITY OF INDIA, REPRESENTED BY THE AIRPORT DIRECTOR,
TRIVANDRUM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM-695 008
2. THE CHAIRMAN, AIRPORT AUTHORITY OF INDIA, CORPORATE HEAD QUARTERS,
RAJIV GANDHI BHAWAN, SAFDARJUNG AIRPORT, NEW DELHI-110 003
3. ADANI, THIRUVANANTHAPURAM INTERNATIONAL AIRPORT LIMITED (ATIAL),
REGISTERED OFFICE, ADANI HOUSE, 56 SHRIMALI SOCIETY, NAVRANGPURA,
AHMEDABAD, GUJARAT 380 009, REPRESENTED BY ITS DIRECTOR.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay all further proceedings pursuant to Exhibits P6, pending
disposal of this Writ Petition (Civil).
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments
of M/S B.ASHOK SHENOY, P.S.GIREESH, ARJUN R NAIK Advocates for the
petitioners, M/S V.SANTHARAM, Advocate for R1 & R2 and of M/s.
ROSHEN.D.ALEXANDER, TINA ALEX THOMAS, HARIMOHAN, S.SREEKUMAR (SR.)
Advocates for R3, the court passed the following:
WP(C) No.19869/2021 2/6
P.B.SURESH KUMAR, J.
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W.P.(C)No.19869 of 2021
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Dated this the 1st day of October, 2021.
ORDER
Petitioner, a Private Limited Company was assigned the exclusive right of developing, operating and maintaining duty free retail outlets at Thiruvananthapuram International Airport in terms of Ext.P2 Concession Agreement executed by them with the first respondent and they were accordingly developing, operating and maintaining duty free retail outlets in the said Airport. In terms of Ext.P2 Concession Agreement, the petitioner is entitled to develop, operate and maintain duty free retail outlets for a period of seven years from 02.09.2017. While so, the Customs authorities have closed the duty free retail outlets of the petitioner with effect from 20.04.2018 alleging irregularities, and though the said action of the Customs authorities has been interfered with by this court in terms of Ext.P4 judgment, the said judgment has WP(C) No.19869/2021 3/6 W.P.(C) No.19869 of 2021 ..2..
been stayed by the Division Bench in Writ Appeal No.360 of 2019. Ext.P5 is the interim order passed by the Division Bench in Writ Appeal No.360 of 2019. In the light of Ext.P5 order, the petitioner is not operating the duty-free retail outlets. Writ Appeal No.360 of 2019 is pending. In the meanwhile, in exercise of the power under Section 12A of the Airports Authority of India Act, 1994, the first respondent leased out the Airport to the third respondent to carry out the statutory functions of the first respondent under Section 12 of the said Act. The lease agreement entered into by the first respondent with the third respondent will take effect on 18.10.2021. In terms of Ext.P2 agreement entered into by the petitioner with the first respondent, the first respondent is obliged to ensure that the operation of the concessions in the nature of one granted in favour of the petitioner shall not be affected by such lease. It is seen that since the petitioner is not operating the duty free retail outlets in the Airport, the third respondent has now invited tenders for assigning the right to run the duty free WP(C) No.19869/2021 4/6 W.P.(C) No.19869 of 2021 ..3..
retail outlets to others. Ext.P6 is the invitation made by the third respondent in this regard. Ext.P6 is under challenge in the writ petition. The case of the petitioner is that in so far as they are entitled to run the duty free retail outlets in the Airport till 2024, the third respondent is not entitled to assign the said right to any one.
2. Heard the learned Senior Counsel for the petitioner, the learned Standing Counsel for the first respondent as also the learned Senior Counsel for the third respondent.
3. On a query from the Court, the learned Senior Counsel for the third respondent submitted that the third respondent would certainly honour the commitments of the first respondent and the petitioner is therefore free to enter into appropriate agreement with the third respondent for running the duty free retail outlets in terms of the provisions of Ext.P2 agreement.
As noted, since the operation of the duty free retail WP(C) No.19869/2021 5/6 W.P.(C) No.19869 of 2021 ..4..
outlets in the Airport has been interdicted by the Customs authorities in the light of the interim order passed by this court in Writ Appeal No.360 of 2019, the petitioner may not be able to run the duty free retail outlets even if the third respondent permits them to do so. In the circumstances, I am of the view that it is only appropriate that this matter may be dealt with by the court dealing with Writ Appeal No.360 of 2019. The registry is therefore directed to place this matter before the court dealing with Writ Appeal No.360 of 2019.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj 01-10-2021 /True Copy/ Assistant Registrar WP(C) No.19869/2021 6/6 APPENDIX OF WP(C) 19869/2021 Exhibit P2 TRUE COPY OF CONCESSION AGREEMENT NO. 09/2017 DATED 22.08.2017 EXECUTED BETWEEN PETITIONER AND 1ST RESPONDENT.
Exhibit P4 TRUE COPY OF JUDGMENT DATED 21.12.2018 IN W.P.C NO.
21063 OF 2018 OF THIS HON'BLE COURT.
Exhibit P6 TRUE COPY OF PRINT OUT OF TENDER NOTICE REFERENCE NO.
RFP/NON-AERO/ATIAL/AUG/2021 ISSUED BY 3RD RESPONDENT, PUBLISHED ON E-AUCTION WEBSITE OF E-PROCUREMENT TECHNOLOGIES LTD., NAMELY, WWW. AIRPORTS. ABCPROCURE.COM, TAKEN ON 19.08.2021.