Delhi High Court - Orders
Aurea Aviation Pvt Ltd And Ors vs Union Of India And Ors on 15 November, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~71
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15722/2022
AUREA AVIATION PVT LTD AND ORS. ..... Petitioners
Through: Mr. Umakant Mishra and Mr.
Niranjan Sahu, Advs.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Digvijay Rai and Mr.
Archit Mishra, Advs. for R-
2/AAI.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 15.11.2022 CM APPL. 48919/2022 (for exemption) Allowed, subject to all just exceptions.
The application shall stand allowed.
W.P.(C) 15722/2022 and CM APPL. 48972/2022 (Interim Relief), CM APPL. 48918/2022 (Lengthy Synopsis & List Of Dates)
1. This writ petition challenges the validity of a communication dated 31 October 2022 passed by the respondent with respect to the petitioner who was the designated Ground Handling Agency ["GHA"] at Jaisalmer Airport. The e-mail stipulates that henceforth the aforesaid operations would be carried out and performed by Air India Air Services Limited ["AIASL"].
2. The Court notes that the rights of GHAs to continue till such time as an operator is duly identified by the respondents in accordance with the Ministry of Civil Aviation (Ground Handling Services) Regulations, 2018 ["2018 Regulations"] had fallen for consideration before this Court on previous occasions.
Signature Not Verified3. Dealing with scope and ambit of Regulations 3 and 7 thereof, Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:24 the Court while dealing with that issue in Centre for Aviation Policy Safety and Research and Others vs. Union of India & Ors., [W.P.(C) 6993/2021] had observed thus:-
"The Court notes that the issues raised here were dealt with in some detail by the Court in its order of 22 April 2022 passed in W.P.(C) 6432/2021. That order reads thus: -
"1. These petitions had been preferred assailing the action of the respondents in disengaging the petitioners as agents which were providing Ground Handling Services [GHS] at Civil Airports regulated by the respondent. Insofar as the application in W.P.(C) 6432/2021 is concerned, modification is sought in respect of the petitioners who are providing GHS at Srinagar and Jammu airports. In W.P.(C) 10120/2021, the prayer for modification is addressed with respect to the airports at Visakhapatnam and Vijayawada. For the purposes of considering the prayer for modification, it would be pertinent to notice the following facts.
2. The petitioners were Ground Handling Agents which had been duly engaged by scheduled operators. The respondents in 2018 had framed appropriate regulations for enlistment and selection of Ground Handling Agents. The case of the petitioners here rests on the provisions made in Regulation 7(4) of the Airports Authority of India (Ground Handling Services) Regulations, 2018 [ 2018 Regulations] which reads thus: -
"(4) Any agency which is not permitted under these regulations and carrying out the ground handling activities on the commencement of these regulations, at an airport or civil enclave other than those referred to in sub-regulation (3), shall be allowed to continue till the 30th June, 2019 or till thirty days from the commencement of operations by the ground handling agencies duly appointed under these regulations, whichever is earlier."
3. Initially, when the writ petition was entertained, a learned Judge of the Court on 15 July 2021 had proceeded to notice the grievance raised and recorded the contention of the petitioners that the respondents had acted arbitrarily in divesting the petitioner from providing GHS contrary to the 2018 Regulations. It was contended that till such time as a ground handling agent is duly identified and takes over the operations at a particular airport, the petitioners would have a right to continue to operate. Based on the aforesaid submissions, the Court proceeded to pass an order requiring maintenance of status quo. It is that order which has continued till the present.
4. From the record, it further transpires that a contempt petition came to be filed bearing No.609/2021 in which Signature Not Verified after hearing parties, the Court passed the following order: -
Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:241. The present contempt petition has been filed by the petitioner alleging non-compliance of this Court's order dated 29.07.2021 in W.P.(C) 6406/2021 on the part of the respondent.
2. After hearing the parties at length, even though it is evident that the respondents have not fully complied with the directions issued by this Court, yet they cannot be said to be in deliberate or willful non compliance.
3. At this stage, learned senior counsel for the respondents, on instructions, submits that since the respondents have been permitting other similarly situated ground handling agencies to provide their services to various Airline Operators on the basis of their specific request, as was being done prior to 29.07.2021, when this Court passed the interim order directing status quo, the respondents during the pendency of the writ petitions will extend similar treatment to the petitioners in W.P.(C) 6406/2021 and other connected writ petitions and will therefore not restrain them from providing ground handling services to Airline Operators which approach the respondent for issuance of necessary permission in the favour of these ground handling agencies. She, however, submits that any Airline Operator which has already terminated its contract with the petitioners or any other similar ground handling agency, will not be allowed to, once again submit a request for utilizing the services of the petitioner or any other such ground handling agency.
She further submits that the issuance of permission to the petitioners to provide their services will be only in cases where the respondents have not already engaged any third party through the bidding process as envisaged in Regulation 3(6) of the Airports Authority of India (Ground Handling Services) Regulations, 2018.
4. In the light of the aforesaid fair stand taken by the respondents, no orders are called for in the present petition which is. accordingly, disposed of by taking the statement on behalf of the respondents on record."
5. The learned Judge noticed that the respondents had taken the stand that the order of status quo would be clearly honored and that the existing ground handling agencies would not be removed or divested of the right to operate till such time as a third party is duly engaged and identified in a bidding process undertaken in accordance with Regulation 3(5) of the 2018 Regulations. It was that assurance which was taken note of by the Court and the contempt petition ultimately disposed of.
6. The present applications have thereafter been moved consequent to the respondents having identified agencies for the airports at Srinagar, Jammu, Visakhapatnam and Signature Not Verified Vijayawada upon culmination of a bidding process Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:24 undertaken in terms of the 2018 Regulations. On the basis thereof, Mr. Rai, learned counsel appearing for the respondents submitted that the petitioner‟s right to continue clearly stands interdicted and that the respondents must be permitted to proceed further in the matter and hand over the functioning of GHS to the identified third-party agencies.
7. When the matter was called on 11 April 2022, the Court had taken note of the contention of learned counsel for the petitioner who had submitted that only a Letter of Intent had been issued and that the identified third-party agencies had yet to commence operations. It was submitted that in terms of the 2018 Regulations which stand framed, various formalities are liable to be completed before the third-party agency can be handed over the work of providing GHS. It was submitted that even security clearances and other formalities had not been completed insofar as the identified agencies were concerned. Taking note of the aforesaid submission, the Court had directed learned counsel for the respondents to obtain instructions and apprise the Court whether the third-party agencies were ready to take over GHS. Based on the aforesaid order, a further affidavit has been filed in these proceedings.
8. The following facts emerge from that affidavit. Insofar as the airports of Jammu and Srinagar are concerned, it is stated that the scheduled airline operators are performing ground handling activities either by themselves or through Air India Airport Services Limited [AIASL]. It is further disclosed that the petitioner in W.P.(C) 6432/2021 is providing ground handling services to non-scheduled operators only. It is further pointed out that at the Srinagar Airport, BCAS has already approved and granted the security clearance to the duly appointed and selected ground handling agency. Insofar as W.P.(C) 10120/2021 is concerned, it is disclosed that security clearances have been duly accorded to the identified third-party agency for the airport at Vishakapatnam. The affidavits have also placed requisite details with respect to existing arrangements and the Court has been assured that there shall be no disruption in either passenger or ground handling services if the transition is permitted.
9. The Court notes that the order of 16 September 2021 passed on the contempt petition had accorded liberty to the petitioners to continue till such time as a third party is duly engaged after initiation of the bidding process as envisaged in Regulation 3(5) of the 2018 Regulations. That process has already been completed and the selected agencies duly identified for the four airports in question. Security clearances have also been accorded to the agencies which are to take over GHS at Srinagar and Vishakapatnam airports.
10. It becomes pertinent to note that insofar as the time Signature Not Verified frames which were mandated originally in the 2018 Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:24 Regulations, undisputedly, the respondents had failed to ensure the transition of GHS being handled by a party duly selected in accordance with the procedure prescribed in those Regulations. It is this which led to the issuance of the communication of 30 June 2021 in terms of which the extension of engagement of operators was extended from 30 June 2021 to 15 July 2021 in respect of 11 airports and up to 31 July 2021 for 65 airports. The Court also takes note of the communication of 30 June 2021 which had noted that AIASL was the only authorized Ground Handling Agent for scheduled and non-scheduled flights at respective airports.
11. The opposition to the modification is based on the assertion that the identified third-party agencies are yet to commence operations and therefore till such time as that happens the petitioners would have a right to continue to provide services at airports. The Court finds itself unable to sustain this submission since the petitioner admittedly has no indefeasible right to continue to act as Ground Handling Agents notwithstanding the identification of a third-party agency in accordance with the provisions made in the 2018 Regulations. The Court notes that in terms of Regulations 3(4) and 3(5), only three categories of Ground Handling Agents are contemplated. Undisputedly the petitioner is neither an airport operator/its joint venture/wholly owned subsidiary nor is it a joint venture or subsidiary of Air India which is AIASL. The petitioner is also not an agency selected pursuant to a bidding process initiated under those Regulations. The Court thus fails to discern any right inhering in the petitioners to continue notwithstanding that third party agency having been duly identified.
12. The Court is further of the considered view that the contention that mere identification would not meet the requirements of Regulation 7(4) and that the petitioner would continue to have the right to operate till such time as the third-party agency is placed in a position to commence operations is wholly unmerited. The Court notes that in terms of the order passed in the contempt petition, the respondents were bound to permit the petitioner to continue only till the engagement of an agent in accordance with the Regulations. The stress laid by learned counsel on the use of the words "till thirty days from the commencement of operations by the ground handling agencies........." in Regulation 7(4) is clearly unmerited since that stipulation must be read in conjunction with the original time lines as were framed. In any case the submission is addressed losing sight of the fact that the said provision itself unambiguously qualified the right of existing agents to continue by employing the phrase "whichever is earlier". Viewed in that light it is manifest that the submission lacks substance and deserves to be outrightly rejected.
13. The Court has been informed that the Ground Handling Signature Not Verified Agents selected for the airports at Srinagar and Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:24 Visakhapatnam have already been accorded security clearance. In terms of the order of 16 September 2021 passed on the contempt petition and the undertaking of the respondents recorded therein, the interim order would consequently warrant being modified accordingly.
14. Accordingly, the interim order of status quo passed in the present writ petition shall stand modified with the respondents being accorded permission to undertake the requisite transition and hand over GHS to the identified parties at Srinagar and Visakhapatnam airports. Accordingly, the applications stand disposed of."
As is evident from the aforesaid order, the Court had found that the induction of a GHS agent in terms of the procedure prescribed under the 2018 Regulations and for requisite transitory steps being taken would be in accord with the order passed in the contempt petition. The right of existing agents as per the terms of the 2018 Regulations was in any case contemplated to end on 30 June 2019 being the earlier of the contingencies envisioned in Regulation 7(4). The members of the petitioner were permitted to continue in the interregnum only and at a time when the applicant had not commenced a process for selection of GHS agents. The Court thus for the aforesaid reasons as also its earlier order extracted above, finds merit in the prayer for modification as made."
4. In the present case, it appears and transpires from the record that for the purposes of ground handling services at Jaisalmer Airport, the respondents have taken a decision to engage the services of AIASL. The appointment of a GHA in respect of airports which see a passenger throughput of less than ten million per annum [and in which category the airport in question would admittedly fall] is undisputedly governed by Regulation 3(5) of the 2018 Regulations which reads thus: -
"(5) At the airport having annual passenger throughput of less than ten million passengers per annum, based on the traffic output and airside and terminal building capacity, the airport operator may decide on the number of ground handling agencies, not exceeding three, including that of, -
(a) the airport operator or its joint venture or its hundred percent owned subsidiary;
(b) a Joint Venture or a subsidiary of Air India; and
(c) any other ground handling agency appointed by the airport Signature Not Verified operator through a transparent bidding process." Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:24
6. As is manifest from a reading of the aforesaid provision, the GHA is to be either an airport operator or a joint venture or a 100% owned subsidiary of the said entity, a joint venture or a subsidiary of Air India or any other GHA appointed by the airport operator through a "transparent bidding process".
7. The rights of existing GHAs‟ to continue to discharge services till such time as an agency is selected through a transparent bidding process alone was safeguarded and secured by the Court in terms of its various orders which have also been noticed by the Court in its order extracted above. The right of existing GHAs‟ to continue was also duly examined by the Court in the order extracted hereinabove.
8. However, in the case of AIASL, it becomes eligible to be appointed as the GHA by virtue of Regulation 3(5)(b). In the case of ground handling operators who would fall within the ambit of clauses
(a) and (b) of Regulation 3(5), undisputedly, the question of a process of identification through a transparent bidding process would not arise at all. Viewed in that light and backdrop, it is manifest that the provisions of Regulation 7 themselves would have no application.
9. In view of the aforesaid, the challenge to the impugned e-mail fails. The writ petition shall stand dismissed.
YASHWANT VARMA, J.
NOVEMBER 15, 2022 bh Signature Not Verified Digitally Signed By:NEHA Signing Date:16.11.2022 18:23:24