Delhi High Court - Orders
M/S Ranbanka Aviation Pvt Ltd vs Union Of India & Ors on 10 October, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~22 & 61 to 64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14429/2021 & CM APPL. 45415/2021(Interim Relief)
M/S RANBANKA AVIATION PVT LTD ..... Petitioner
Through: Mr. Umakant Mishra and Mr. D.
Dash, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Anjana Gosain, Ms. Shalini Nair,
Ms. Ritika, Ms. Rupali Kapoor, Advs.
for UOI
Mr. Digvijay Rai, Mr. Archit Mishra,
Advs. for AAI
61
+ W.P.(C) 6406/2021 & CM APPLs. 20106/2021(Stay), CM APPL.
22821/2021(Modification Of O. D. 22-07-2021), CM APPL.
22850/2021(Amendment), CM APPL. 24891/2021(Amendment), CM
APPL. 26401/2021(Direction)
PERFECT AVIATION SERVICES LIMITED ..... Petitioner
Through: Mr. Anshuman Nayak, Adv.
versus
1. UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ripu Daman Bhardwaj, CGSC
and Mr. Bhagwan Kumar Shukla,
CGSC for UOI.
Mr. Digvijay Rai, Mr. Archit Mishra,
Advs. for AAI
62
+ W.P.(C) 6432/2021 & CM APPL. 20199/2021(Stay), CM APPL.
22848/2021(Amendment), CM APPL. 26500/2021(Amendment), CM
APPL. 28874/2021(Direction)
TRIKUTTA TRAVEL PLANNERS ..... Petitioner
Through: Mr. Anshuman Nayak, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Bhagwan Kumar Shukla, CGSC
for UOI.
Mr. Digvijay Rai, Mr. Archit Mishra,
Signature Not Verified
Digitally Signed
By:NEHA
Signing Date:12.10.2022
11:48:41
Advs. for AAI
63
+ W.P.(C) 10120/2021 & CM APPL. 31225/2021(Interim Relief)
SRI SAI SAMPAT AVIATION HANDLING SERVICE
..... Petitioner
Through: Mr. Umakant Mishra and Mr. D.
Dash, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Anjana Gosain, Ms. Shalini Nair,
Ms. Ritika, Ms. Rupali Kapoor, Advs.
for UOI
Mr. Digvijay Rai, Mr. Archit Mishra,
Advs. for AAI
64
+ W.P.(C) 6993/2021 & CM APPL. 22078/2021(Interim Relief), CM
APPL. 26133/2021,CM APPL. 26488/2021(Impleadment), CM
APPL. 31135/2021(Impleadment)
CENTRE FOR AVIATION POLICY SAFETY AND RESEARCH
AND OTHERS ..... Petitioners
Through: Mr. Umakant Mishra and Mr. D.
Dash, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Bhagwan Kumar Shukla, CGSC
for UOI.
Mr. Digvijay Rai, Mr. Archit Mishra,
Advs. for AAI
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 10.10.2022 CM APPL.43757/2022 (for exemption) in W.P.(C) 6993/2021 Allowed, subject to all just exceptions.
The application shall stand disposed of.
Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41CM APPL. 43756/2022(Modification Of O. D. 26-07-2021 , 17-08-2021 & 16-09-2021) in W.P.(C) 6993/2021
1. This application has been made for modification of the orders dated 26 July 2021, 17 August 2021 and 16 September 2021. Those orders had in effect mandated the continuance of the petitioners who were providing ground handling services at various airports. The applicants here have sought the modification of the order of protection as granted to the petitioner here in light of the fact that at Ranchi, Bhopal, Vijaywada and Raipur Airports, the BCAS Security Clearance in respect of the identified service providers has been duly received and Letters of Intent have also been issued.
2. In view of the aforesaid, it was contended by Mr. Rai, learned counsel appearing for the applicant, that bearing in mind the order of 16 September 2021 passed in Cont. Cas(C) No.609/2021, the interim orders operating insofar as the aforenoted four airports are concerned is liable to be lifted and vacated.
3. Before this Court, learned counsel for the petitioner has contended that the grant of the aforesaid reliefs would clearly amount to a death knell being accorded to the case as set forth in the writ petition and would virtually amount to removing the petitioners from the airports over which they are presently continuing to operate. It was further submitted that mere grant of a security clearance or a Letter of Intent cannot be viewed or construed as commencement of operations as is contemplated under Regulation 7 of the Airports Authority of India (Ground Handling Services) Regulations, 2018.
4. Learned counsel for the petitioner has also placed for the perusal of the Court the status of Letters of Intent at 17 airports in the country to Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 submit that even though Letters of Intent had been duly granted at various airports, the identified entities are yet to have commenced operation.
5. Learned counsel for the petitioner lastly contended that the right of the petitioner to continue to provide ground handling services is one which stands duly protected in terms of Regulation 7 and the proposed modification would clearly interfere with the valuable rights which stand conferred on the petitioner and other ground handling agents who stand similarly situate.
6. The Court notes that identical contentions had fallen for consideration before the Court while dealing with an application for modification namely CM APPL. 9206/2022. The Court had upon a due consideration of the factual position as well as the relevant regulations proceeded to observed as follows:-
"CM APPL. 9206/2022 (for Modification) This application has been preferred for modification of the interim orders of 26 July 2021, 17 August 2021 and 16 September 2021. The applicant essentially seeks to take further transitional steps pursuant to a Ground Handling Service Agent having been identified in accordance with a selection process initiated under the relevant regulations.
The modification is sought in respect of the following Airports:
S. No. Airports Qualified Bidder LOIA Issued Status of on BCAS Clearance
1. Patna M/s Global Flight 13.04.2021 BCAS Handling Services Security Pvt. Ltd. Clearance received on 27.08.2021, commenced operation on 15.03.2022.
2. Chandigarh M/s Globe 09.03.2021 BCAS Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 Ground India Pvt. Security Ltd. Clearance received on 14.07.2021, commenced operation on 16.07.2021.
3. Bagdogra M/s LAS Ground 13.04.2021 BCAS Force Pvt. Ltd. Security Clearance received on 22.10.2021, commenced operation on 01.05.2022.
4. Indore M/s Surya Chetan 13.04.2021 BCAS Aviation Security Handling Services Clearance received on 02.12.2021.
5. Imphal M/s Globe 11.09.2021 BCAS Ground India Pvt. Security Ltd. Clearance received on 21.01.2022.
6. Gaya M/s Indo Thai 11.09.2021 BCAS Airport Security Management Clearance Services Pvt. Ltd. received on 12.05.2022.
7. Bhubaneswar M/s Indo Thai 19.02.2021 BCAS Airport Security Management Clearance Services Pvt. Ltd. received on 13.05.2022.
8. Vadodra M/s Surya 11.09.2021 BCAS Chetan Aviation Security Handling Services Clearance received on 08.04.2022
9. Srinagar M/s Surya Chetan 13.04.2021 BCAS Aviation Security Handling Services Clearance Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 received on 10.12.2021
10. Visakhapatnam M/s Global Flight 13.04.2021 BCAS Handling Services Security Pvt. Ltd. Clearance received on 22.11.2021
11. Jammu M/s. Avia Xpert 11.09.2021 BCAS Pvt. Ltd. Security Clearance received on 06.05.2022.
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 Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 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 after hearing parties, the Court passed the following order: -
1. 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 Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 respondents having identified agencies for the airports at Srinagar, Jammu, Visakhapatnam and Vijayawada upon culmination of a bidding process 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 frames which were Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 mandated originally in the 2018 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 Agents selected for the airports at Srinagar and Visakhapatnam have already been accorded security clearance. In terms of the order of 16 September 2021 passed on the Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41 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.
Accordingly, and for the reasons assigned in that order, the prayer for modification is allowed. The applicant shall consequently be entitled to proceed further and undertake the requisite transition and hand over Ground Handling Services to the identified parties detailed above. The present order shall govern the 11 airports whose details stand noted in the table set out hereinabove.
The application shall stand disposed of."
7. The submissions which are addressed today in opposition to the modification which is sought are identical to those which were noticed in the earlier order.
8. Accordingly and for the aforesaid reasons, the prayers as made in the instant application are allowed.
9. The applicant shall consequently be entitled to make appropriate substitutions at the following Airports:-
Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:4110. AAI may consequently proceed to transfer the ground handling service work to the identified service providers and in favour of whom security clearances/ letters of intent have been granted
11. The application shall consequently stand disposed of on the above terms.
W.P.(C) 14429/2021 & CM APPL. 45415/2021(Interim Relief); W.P.(C) 6406/2021 & CM APPLs. 20106/2021(Stay), CM APPL. 22821/2021(Modification Of O. D. 22-07-2021), CM APPL. 22850/2021(Amendment), CM APPL. 24891/2021(Amendment), CM APPL. 26401/2021(Direction);
W.P.(C) 6432/2021 & CM APPL. 20199/2021(Stay), CM APPL. 22848/2021(Amendment), CM APPL. 26500/2021(Amendment), CM APPL. 28874/2021(Direction);
W.P.(C) 10120/2021 & CM APPL. 31225/2021(Interim Relief);
Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41W.P.(C) 6993/2021 & CM APPL. 22078/2021(Interim Relief), CM APPL. 26133/2021,CM APPL. 26488/2021(Impleadment), CM APPL. 31135/2021(Impleadment) List for final disposal on 16.01.2023 in the category of "End of Board".
YASHWANT VARMA, J.
OCTOBER 10, 2022 neha Signature Not Verified Digitally Signed By:NEHA Signing Date:12.10.2022 11:48:41