Kerala High Court
Indothai Airport Management Services ... vs Airports Authority Of India on 27 January, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 27TH DAY OF JANUARY 2022/7TH MAGHA, 1943
WP(C) NO. 2611 OF 2022
PETITIONERS:
1 INDOTHAI AIRPORT MANAGEMENT SERVICES
PRIVATE LIMITED, REPRESENTED BY VIKAS LADIA,
DIRECTOR, 29/709, 714 STAR BUILDING,
MAVOOR ROAD, PARAYANCHERI, CALICUT-673 004.
2 INDOTHAI CALICUT PRIVATE LIMITED,
REPRESENTED BY VIKAS LADIA, DIRECTOR,
29/709, 714 STAR BUILDING, MAVOOR ROAD,
PARAYANCHERI, CALICUT-673 004.
BY ADVS.
HARIS BEERAN
O.A.NURIYA
FATHIMA V.A.
ANAND B. MENON
FASNA T.Y
AZHAR ASSEES
RESPONDENTS:
1 AIRPORT AUTHORITY OF INDIA,
REPRESENTED BY CHAIRMAN,
CALICUT INTERNATIONAL AIRPORT,
CALICUT AIRPORT, MALAPPURAM DISTRICT,
CALICUT-673 647.
2 AIRPORT DIRECTOR,
AIRPORT AUTHORITY OF INDIA,
CALICUT INTERNATIONAL AIRPORT,
CALICUT AIRPORT, MALAPPURAM DISTRICT,
CALICUT-673 647.
SRI APPU P.S., G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C)No.2611/2022
2
JUDGMENT
Dated this the 27th day of January, 2022 The petitioners are Private Limited Companies incorporated under the Companies Act. The 1st petitioner had participated in the tender for ground handling services, floated by the 1st respondent during the year 2020. The petitioners are before this Court seeking to direct the 1 st respondent-Airport Authority of India to grant extension of COD to the petitioners till such time restrictions upon air travel are lifted completely.
2. The petitioners contend that due to the onset of Covid-19 Virus (the pandemic), the Aviation/Airline Industry has suffered unprecedented losses as the flights were halted for almost a year and operations continue to be affected due to Circulars issued by the Director General of Civil Aviation. The functioning of airports has been below 20% of its regular WP(C)No.2611/2022 3 operations. Even today, according to the petitioners, the situation remains bleak and there is rise in numbers as well as variants of the virus. Amidst such unprecedented losses being suffered by the petitioners on a daily basis, the respondents are refusing to grant extension of COD, which is arbitrary and unfair. The petitioners therefore seek to set aside Ext.P23 show-cause notice dated 20.12.2021 which imposes to take action for the alleged non-achievement of COD as per the prescribed timeline.
3. When this writ petition came up for hearing today, the learned Senior Counsel assisted by the Counsel representing the 1st respondent submitted that the respondents have already issued Ext.P23 show-cause notice for non-compliance of COD in terms of the Concession Agreement. Ext.P23 notice was issued on 20.12.2021. The petitioners have not submitted any reply to the said show-cause notice. If the petitioners submit a reply, WP(C)No.2611/2022 4 the respondents are ready to consider the grievances of the petitioners.
4. The counsel for the petitioners, on the other hand, pointed out that the respondents have already, even before hearing the petitioners, concluded that Force Majeure caluse cannot be applied in the circumstances of the case. Ext.P23 also would show that the respondents have already taken a decision in this regard. In such circumstances, giving explanation to Ext.P23 is not likely to yield any positive result.
5. To such submission, the learned Senior Counsel for the respondents submitted that if the petitioners give their explanation to Ext.P23, the respondents are ready and willing to consider the explanation untramelled by any observation or decision reflected in Exts.P12 and P23.
6. In view of the above, this Court is of the view that ends of justice will be met if the petitioners are permitted to WP(C)No.2611/2022 5 file their reply to Ext.P23 show-cause notice and the respondents consider the explanation with an open mind.
In the circumstances, the writ petition is disposed of permitting the petitioners to submit explanation to Ext.P23 show-cause notice within a period of three weeks. If the petitioners submit explanation within a period of three weeks, the respondents shall consider the explanation and take appropriate decision thereon untramelled by any of the observations made in Exts.P12 and P23, in accordance with law, within a further period of two weeks.
Sd/-
N. NAGARESH JUDGE ncd/27.01.2022 WP(C)No.2611/2022 6 APPENDIX OF WP(C) 2611/2022 PETITIONERS' EXHIBITS Exhibit P1 TRUE COPY OF RELEVANT PAGES OF REQUEST FOR PROPOSAL (RFP).
Exhibit P2 TRUE COPY OF LETTER OF INTENT DATE 19/02/2021.
Exhibit P3 TRUE COPY OF LETTER DATED 23/02/2021
SENT BY 1ST PETITIONER TO 2ND
RESPONDENT.
Exhibit P4 TRUE COPY OF LETTER DATED 16/03/2021
SENT BY 1ST PETITIONER TO 2ND
RESPONDENT.
Exhibit P4(a) TRUE COPY OF COMPANY MASTER DATA OF 2ND
PETITIONER.
Exhibit P4(b) TRUE COPY OF COMPANY PROFILE OF 2ND
PETITIONER.
Exhibit P5 TRUE COPY OF BANK GUARANTEE FURNISHED
DATED 05/04/2021 SENT BY 1ST PETITIONER TO 2ND RESPONDENT.
Exhibit P6 TRUE COPY OF LETTER DATED 03/06/2021. Exhibit P7 TRUE COPY OF LETTER DATED 21/06/2021. Exhibit P8 TRUE COPY OF CONCESSION AGREEMENT DATED 19/07/2021.
Exhibit P9 TRUE COPY OF LETTER DATED 28/07/2021. Exhibit P10 TRUE COPY OF LETTER DATED 10/09/2021. Exhibit P11 TRUE COPY OF LETTER DATED 15/09/2021.
Exhibit P12 TRUE COPY OF REPLY DATED 18/10/2021
ISSUED BY THE RESPONDENT TO THE
PETITIONER.
Exhibit P13 TRUE COPY OF CHART WHICH RECORDS THE
INTERNATIONAL AIRCRAFT MOVEMENTS. Exhibit P14 TRUE COPY OF RECOMMENDATION LETTER ISSUED BY AIRPORT DIRECTOR TO BCAS DATED 20/04/2021.
Exhibit P15 TRUE COPY OF SECURITY CLEARANCE ISSUED BY BCAS TO 1ST PETITIONER.
Exhibit P16 TRUE COPY OF SECURITY PROGRAM OF 2ND WP(C)No.2611/2022 7 PETITIONER SCRUTINISED BY CHIEF
SECURITY OFFICER TO BCAS, TRIVANDRUM DATED 20/09/2021.
Exhibit P17 TRUE COPY OF LETTER SENT BY 2ND PETITIONER TO 2ND RESPONDENT REGARDING STATUS REPORT DATED 17/06/2021.
Exhibit P18 TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT REGARDING LAND ALLOTMENT DATED 30/07/2021.
Exhibit P18(a) TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT REGARDING LAND ALLOTMENT DATED 17/09/2021.
Exhibit P18(b) TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT REGARDING LAND ALLOTMENT DATED 09/11/2021.
Exhibit P19 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT TO 2ND PETITIONER REQUESTING USAGE OF EXISTING EQUIPMENT DATED 25/10/2021.
Exhibit P20 TRUE COPY OF LEGAL NOTICE DATED 05/11/2021 ISSUED BY THE PETITIONER TO THE RESPONDENT.
Exhibit P21 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT TO 2ND PETITION TO OPEN ESCROW ACCOUNT DATED 23/11/2021.
Exhibit P22 TRUE COPY OF REPLY DATED 02/12/2021
ISSUED BY THE RESPONDENT TO THE
PETITIONER.
Exhibit P23 TRUE COPY OF SHOW CAUSE NOTICE DATED
20/12/2021.
Exhibit P24 TRUE COPY OF ORDER DATED 19/03/2020.
Exhibit P25 TRUE COPY OF ORDER DATED 26/03/2020
ISSUED BY THE MINISTRY OF CIVIL
AVIATION.
Exhibit P26 TRUE COPY OF ORDER DATED 24/03/2020
ISSUED BY UNION OF INDIA.
Exhibit P27 TRUE COPY OF CIRCULAR DATED 09/12/2021
ISSUED BY THE DGCA.
Exhibit P28 TRUE COPY OF CIRCULAR DATED 19/01/2022
ISSUED BY THE DGCA.
WP(C)No.2611/2022
8
Exhibit P29 TRUE COPY OF RELEVANT PAGES FROM
WIKIPEDIA SHOWING THE TIMELINE OF COVID WAVE IN INDIA.
Exhibit P30 TRUE COPY OF MINISTRY OF FINANCE ORDER DATED 13/05/2020.
Exhibit P31 TRUE COPY OF OFFICE MEMORANDUM DATED FEBRUARY 19, 2020 WITH RESPECT TO MANUAL FOR PROCUREMENT OF GOODS, 2017.