Karnataka High Court
Aster D M Healthcare Limited vs The Regional Director on 4 September, 2023
Author: R Devdas
Bench: R Devdas
-1-
NC: 2023:KHC:31823
WP No. 9042 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 9042 OF 2023 (GM-RES)
BETWEEN:
1. ASTER D M HEALTHCARE LIMITED
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING REGISTERED OFFICE
AT NO.1785, SARAPUR ROAD
SECTOR-1, HSR LAYOUT
WARD NO.174, AGARA EXTENSION
BENGALURU-560102
REPRESENTED BY ITS AUTHORISED
SIGNATORY AND CHIEF EXECUTIVE OFFICER
DR NITISH SHETTY
AGED ABOUT 52 YEARSS
S/O LATE BALAKRISHNA SHETTY
Digitally signed by
JUANITA
THEJESWINI 2. DR NITISH SHETTY
Location: HIGH S/O LATE BALAKRISHNA SHETTY
COURT OF
KARNATAKA
AGED ABOUT 52 YEARS
HAVING OFFICE AT
ASSTER CMI HOSPITAL NO.43/2
NEW AIRPORT ROAD NH 7
OUTER RING ROAD
SAHAKAR NAGAR
BENGALURU-560092
...PETITIONERS
(BY SRI. UDAYA HOLLA, SR. COUNSEL FOR
SRI. LOMESH KIRAN N., ADVOCATE)
-2-
NC: 2023:KHC:31823
WP No. 9042 of 2023
AND:
1. THE REGIONAL DIRECTOR
BUREAU OF CIVIL AVIATION SECURITY
BENGALURU REGION
MINISTRY OF CIVIL AVIATION
GOVERNMENT OF INDIA
ALPHA-3, FIRST FLOOR
KEMPEGOWDA INTERNATIONAL AIRPORT
BENGALURU-560300
2. JOINT DIRECTOR GENERAL
BUREAU OF CIVIL AVIATION SECURITY
MINISTRY OF CIVIL AVIATION
GOVERNMENT OF INDIA
A WING-I, III FLOOR
JANPATH BHAVAN
NEW DELHI-110001
3. BANGALORE INTERNATIONAL AIRPORT LIMITED
A COMPANY INCORPORATION UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956
HAVING REGISTERED OFFICER
AT ADMINISTRATION BLOCK 2
KEMPEGOWDA INTERNATIONAL AIRPORT
BENGALURU-560300
REPRESENTED BY ITS MANAGING DIRECTOR
4. UNION OF INDIA
THROUGH THE MINISTRY OF HOME AFFAIRS
NORTH BLOCK, CENTRAL SECRETARIAT
NEW DELHI-110001
REPRESENTED BY ITS SECRETARY
...RESPONDENTS
(BY SRI. SHANTHI BHUSHAN H., DSGI FOR R1, R2 & R4
SRI. MANU KULKARNI, ADVOCATE FOR R3)
-3-
NC: 2023:KHC:31823
WP No. 9042 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SETTING
ASIDE /QUASHING THE IMPUGNED ORDER DTD. 13.04.2023
BEARING REFERENCE NO. BCAS/BLR/E-SAHAJ-
CONC/BIAL/(ASTERDMHEALTHCARE LIMITED) (E-219938)
PASSED BY R2 (ANNX-A)SET ASIDE/ QUASHING THE SHOW
CAUSE NOTICES, NAMELY1. SHOW CAUSE NOTICE BEARING
REFERENCE NO. BCAS/BLR/E-SAHAJ-AUX-BIAL (M/S ASTER D
M HEALTH CARE LIMITED-E-20200289803)2020(192141) DTD.
SEPTEMBER 19, 2022 ISSUED BY R2 (ANNX-B)2 AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL) Petitioner No.1 is a Company registered under the Companies Act, 1956 and petitioner No.2 is one of the shareholders in the first petitioner-Company. They are aggrieved of the impugned show cause notices both dated 19.09.2022 at Annexures 'B' and 'C' and a consequential order dated 13.04.2023 at Annexure 'A'.
2. The petitioner No.1 had entered into an agreement with the third respondent-Bangalore International Airport -4- NC: 2023:KHC:31823 WP No. 9042 of 2023 Limited on 15.07.2016 at Annexure 'G'. The agreement is known as 'Medical Services Agreement', wherein the petitioner-Company had agreed to provide medical assistance by establishing a clinic in the premises of the third respondent - Bangalore International Airport ('BIAL' for short). Show cause notices were issued by the Assistant Director, Ministry of Civil Aviation, Government of India, that there were some security concerns, having regard to the fact that one of the Directors of the first petitioner-Company who was also the shareholder of Madhyamam Broadcasting Limited had links with certain terrorist activities. It is not disputed that the term of the agreement would come to an end on 14.07.2023. Therefore, the petitioners had made requisitions for renewal of the contract or entering into a new contract and for that purpose sought for security clearance at the hands of the Ministry of Civil Aviation. The show causes notice says that if the petitioner did not give satisfactory answer, their request for security clearance along with the application dated 04.05.2022 would be denied and -5- NC: 2023:KHC:31823 WP No. 9042 of 2023 therefore, 7 days' time was given to the petitioners to answer as to why the request for security clearance should not be rejected. Accordingly, the impugned order dated 13.04.2023 has been passed by the second respondent- Joint Director General, Bureau of Civil Aviation Security, Ministry of Civil Aviation, Government of India, denying security clearance to the petitioner.
3. Learned Senior Counsel Sri Udaya Holla, appearing for the petitioners would submit that the impugned order at Annexure 'A' is dated 13.04.2023. However, Madhyamam Broadcasting Limited had already approached the Hon'ble Supreme Court in Civil Appeal No.8129/2022 and connected matters and the Hon'ble Supreme Court by order dated 05.04.2023 allowed the Civil Appeals and the Ministry of Information and Broadcasting was directed to proceed to issue renewal permissions. The learned Senior Counsel would therefore submit that the primary allegation of the Union of India as against the television channel run by the said Madhyamam Broadcasting Limited (MBCL) in the State of Kerala was considered and the Hon'ble -6- NC: 2023:KHC:31823 WP No. 9042 of 2023 Supreme Court has clearly held that the national security concerns aired by the Ministry of Information and Broadcasting could not be sustained. This submission is made by the learned Senior Counsel, having regard to the fact that the respondent-authorities of the Ministry of Civil Aviation were aware of the fact that Madhyamam Broadcasting Limited (MBCL) had questioned the decisions of the Union of India before the Hon'ble Supreme Court and the Hon'ble Supreme Court had decided the matter in favour of MBCL as on 05.04.2023. The impugned order is issued subsequently on 13.04.2023.
4. Moreover, it is submitted that even accepting the submissions of the learned Deputy Solicitor General of India that the term of the agreement which was for a period of 7 years has since come to an end, nevertheless, as noticed in the show cause notices itself, the petitioner- Company had already sought for renewal of the agreement or execution of a new agreement and for that purpose, security clearance was also sought. Subsequently, the third respondent-BIAL has already entered into a fresh -7- NC: 2023:KHC:31823 WP No. 9042 of 2023 agreement with the petitioner-Company on 13.07.2023. However, the only issue now which would bother the petitioners is the security clearance which should come from the Ministry of Civil Aviation, Government of India. In that view of the matter, the learned Senior Counsel would submit that taking note of the subsequent developments, this Court may direct the Ministry of Civil Aviation, Government of India to reconsider the request made by the petitioner-Company for grant of security clearance, having regard to the decision of the Hon'ble Supreme Court as regards the allegation made against MBCL.
5. Though the Deputy Solicitor General of India sought to make submissions on the question of maintainability of this writ petition and that the petitioners were informed of the appellate authority before whom they could have questioned the impugned order, nevertheless, learned Senior Counsel has pointed out to an interim order dated 03.07.2023 passed by this Court. Learned Senior Counsel submits that this Court has -8- NC: 2023:KHC:31823 WP No. 9042 of 2023 already addressed itself to the question of maintainability of this writ petition and has clearly held that the submission of the learned Deputy Solicitor General of India to direct the petitioners to approach the appellate authority would be in the nature of an appeal from Ceasar to Ceasar's wife and the same is not desirable to say the least.
6. Learned Counsel for the third respondent-BIAL submits that the subsequent agreement which is entered into between the third respondent and the first petitioner- Company on 13.07.2023 is in view of the interim order passed by this Court. It is for the petitioners to obtain the security clearance and the third respondent has nothing to do with the clearance to be obtained by the petitioner- Company.
7. Having regard to the subsequent developments and more particularly, this Court should take note of the relevant paragraphs of the Hon'ble Supreme Court in the case of Madhyamam Broadcasting Limited Vs. Union of India and Others in Special Leave to Appeal (C) -9- NC: 2023:KHC:31823 WP No. 9042 of 2023 No.3964/2022 and direction being given to the Ministry of Information and Broadcasting to permit the said Broadcasting company to recommence its activity while clearly holding that the security concerns expressed on behalf of the Government of India was without any basis. In that view of the matter, since the basis for the show cause notices earlier issued by the second respondent and the impugned order having been removed in view of the judgment of the Hon'ble Supreme Court and the third respondent-BIAL subsequently entering into an agreement with the petitioner-Company, appropriate directions should be issued to the respondent-Union of India more particularly, the Ministry of Civil Aviation to consider the application already filed by the petitioner-Company seeking security clearance.
8. This submission at the hands of the petitioners has to be accepted, in view of the undisputed fact that the security concerns expressed in the show cause notices and the impugned order being passed on the basis of the said security concerns having been removed by the judgment
- 10 -
NC: 2023:KHC:31823 WP No. 9042 of 2023 of the Hon'ble Supreme Court. This Court is of the considered view that the request made by the learned Senior Counsel to issue appropriate directions to the respondent-Union of India has to be accepted.
9. Consequently, the writ petition stands disposed of making it clear that the impugned order dated 13.04.2023 at Annexure 'A' will have no effect. The respondent- authorities, more particularly the Ministry of Civil Aviation, Government of India, shall consider the application made by the first petitioner-Company for security clearance to continue its operation of the clinic and medical facilities established at the Kempegowda International Airport, Bengaluru in accordance with law. At this juncture, the learned Deputy Solicitor General submits that it is not clear as to whether the application was made subsequent to the first petitioner-entering into an agreement on 13.07.2023 with the third respondent-BIAL or prior to it.
10. Learned Senior Counsel Sri Udaya Holla, would submit that the first petitioner may be permitted to file one more application seeking security clearance. For that
- 11 -
NC: 2023:KHC:31823 WP No. 9042 of 2023 purpose, it is prayed that three weeks time may be given to the first petitioner-Company to file a fresh application with all the requisite documents seeking security clearance.
11. Leave is accordingly granted to the first petitioner-Company. At the same time, the Ministry of Civil Aviation, Government of India, is hereby directed to consider such application as expeditiously as possible and at any rate, within a period of eight weeks from the date when which the application would be filed by the petitioner-Company. Till then, the arrangement that was made by virtue of the interim orders permitting the petitioner-Company to continue its operation at the Kempegowda International Airport, shall continue.
Ordered accordingly.
Sd/-
JUDGE JT/-
CT: JL