TMI Blog2011 (3) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners have prayed for declaring the circulars AIC No: 7/2007 dated 28.9.2007, AIC No: 15/2008 dated 31.12.2008, AIC No: 6/2009 dated 30.6.2009, AIC No:13/2009 dated 31.12.2009, AIC No:3/2010 dated 2.6.2010 and the Regulations, namely, Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2007 (for short 2007 Regulations‟) as ultra vires the provisions of The Aircraft Act, 1934 (for short the 1934 Act‟), The Aircraft Rules, 1937 (for short the 1937 Rules‟) and The Airports Authority of India Act, 1994 (for short the 1994 Act‟) and also ultra vires Articles 14 and 19(1)(g) of the Constitution of India and further to issue a writ of certiorari for quashment of the same. THE FACTUAL EXPOSITION AND THE STAND OF THE PETITIONERS 2. The petitioner No.1, Federation of Indian Airlines, is a society registered under the Societies Registration Act, 1860 comprising all the airline carriers which include the other writ petitioners. It is involved in promoting and diffusing useful knowledge on the aviation industry in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service. 5. It is the experience of the petitioners that undertaking ground handling services themselves have enabled them to maintain the quality, cost and efficiency, level of performance and also helped in providing comfort and satisfaction to the passengers. The decision to undertake the ground handling services, which includes ramp handling and traffic handling, by themselves or to outsource is a business decision intrinsic to their business model and the airlines have the liberty to do so. The ramp handling includes cabin services like cleaning the plane, replenishing the supplies and consumables, etc. and traffic handling services include guiding the aircraft into and out of the parking position, refilling of fresh water tanks, air conditioning, luggage handling by belt loaders and baggage carts, passenger stairs (used instead of aerobridges or air stairs), wheel chair lifts, providing check-in counter services, gate arrival and departure services and airline lounges, etc. In this regard, reference has been made to the circular AIC No:3/2010 dated 2.6.2010 issued by the Director General of Civil Aviation laying down the specific components of the ground handling operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dling services where there is no passenger interface. It is contended that the said circular could not have been issued by the said authority in the absence of an amendment of the ground handling Regulations 2007 as there is a complete dichotomy between the circular and the 2007 Regulations in the field. 10. The impugned circulars and Regulations have been assailed on the ground that the said circulars / Regulations run counter to Rule 92 of the 1937 Rules. It is contended that the DGCA has no authority to issue the impugned circulars and that the said circulars have been issued in utter disregard of the provisions of the 1934 Act, the 1994 Act and the Rules and Regulations made thereunder. It is further contended that the circulars have been issued without any application of mind, as an incurable dichotomy exists between the Regulations and the circulars. It is urged that the circulars are absolutely arbitrary, unreasonable, discriminatory and, hence, offend Article 14 of the Constitution of India; that the circulars / regulations violate the individual airlines‟ and their shareholders‟ fundamental right to practise any profession or to carry on any occupation, trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... airlines in jeopardy since such a service is an insegregable facet of running of the business. 13. It is contended that the circulars and Regulations have made a maladroit effort to overturn the level playing field that is required to be maintained between the National Aviation Company Ltd. and the private airlines and such an activity is contrary to any commercial policy. It is contended that in the international field, in many an airport in United States of America, United Kingdom and Australia, the airline operators are permitted to provide self-ground handling service in both ramp and terminal side operations but the same has been denied to the private airline operators as per the impugned circulars in the garb of security though it is basically incorrect. It is put forth that the circulars fundamentally transgress the basic facet of Rule 92 of the 1937 Rules as it totally demolishes the concept of competitive environment which is impermissible in the face of the said Rule. It is urged that as a result of the issuance of the notifications, the airlines would be compelled to avail of the services either from the National Aviation Company Ltd. or the airport operator who would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e airport and the same cannot be and should not be handed over to a third party. It is asserted that if any loss or damage is caused to the luggage, the individual airline operators will still be held liable, whereas, by virtue of operation of the impugned circulars, they are not permitted to conduct the ground handling facility and such a situation would be contrary to the Carriage by Air Act, 1972 and various rules framed thereunder. It is contended that the private owners or the proposed independent ground handling operators would require to recruit the same staff who are now working on behalf of the airline operators and thereby the security scenario would not improve but there would only be a diversion of business interest. THE STANCE IN OPPOGUNATION BY THE RESPONDENT NOS. 1 AND 2 16. A counter affidavit has been filed by the respondent Nos.1 and 2 contending, inter alia, that prior to 2007, ground handling at Indian airports was done under the 2000 Regulations and all scheduled airlines were permitted to undertake ground handling services. At a later stage, ground handling of flights at the Indian airports became a matter of grave concern against the backdrop of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No.1 undertook an exercise to consult other stakeholders, including the airlines and airport operators, in order to understand and accordingly redress the concerns. The petitioner No.1 made another representation to the respondents on 5.6.2009 almost at the end of the extended time period fixed for the exit of non-entitled entities and after examination of the said representation, time was extended by another six months, i.e., upto 31.12.2009. In order to finalize the views on the issues raised by the airlines and the petitioner No.1, the answering respondents collected the details of the number of employees engaged in ground handling activities working directly on the rolls of the individual domestic airlines (excluding Air India) and outsourced / sub-contracted through the other agencies and the details of the equipment employed for ground handling by these airlines at all the six major airports. The manpower employed by the various airlines in the six metropolitan airports has been brought on record as Annexure R-1/5. It is put forth that the total number of 15,954 persons were employed by the five domestic airlines excluding Air India at the six metro airports out of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arbitrary. It is contended that the ground handling policy has been in force since the year 2007 but not given effect to because of the representations submitted by the petitioners from time to time. It is put forth that except the domestic carriers, most of the other airlines are already carrying out their ground handling operations through the designated ground handling agencies as is evident from the information available in Annexure R-1/1. The ground handling services are an important element of the service standards to be complied by the airport operators as laid down in Schedule 3 of the OMDA signed by the JVCs at Delhi and Mumbai airports (Annexure R-1/2) and the airport operators are expected to enter into agreements with the selected ground handling agencies in order to ensure the prescribed services standards. The airlines would still have the right of choice from the selected ground handling concessionaries as the said circular and regulations allow for a minimum of two ground handling agencies in addition to the national carrier (Air India). That apart, the domestic airline operators are still permitted to do self-handling at the non-metro airports. The main spirit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondent No.3, namely, AAI stating, inter alia, that the respondent has selected certain bidders subject to obtaining of security clearance from BCAS, Department of Central Government. It is put forth that licence for northern region has been granted to the consortium comprising M/s. Thai Airport Ground Services Bangkok, Thailand, M/s. Star Consortium Aviation Services Pvt. Ltd., Kolkata and M/s. Skyline Mercantile Pvt. Ltd., Kolkata. The lead member is M/s Thai Airport Ground Services, Bangkok. It is also averred that the licence for western region has been granted to the consortium comprising M/s National Aviation Services, WLL Kuwait, M/s National Aviation Services India Pvt. Ltd., Mumbai and M/s DJ Aviation Services Pvt. Ltd., Mumbai. The lead member is M/s National Aviation Services, WLL Kuwait. It is put forth that the licence for southern region has been granted to the consortium between M/s Bhadra International India Ltd. and M/s NOVIA International Consulting Aps Denmark. The lead member is M/s NOVIA International Consulting Aps. Denmark. It is also put forth that the licence for Chennai and Kolkata airports has been granted to the consortium between M/s Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered to be an extremely specialized state of the art services undertaken at airports which are carried on by trained manpower with requisite expertise to operate the equipments. Various examples have been given about the position at other international airports. A stand has also been taken that the writ petition deserves to be thrown overboard on the ground of delay and laches inasmuch as the 2007 Regulations is challenged in the year 2010 and that too, after making series of representations to abide by the same. Immense emphasis has been laid on the decision taken by BCAS under Ministry of Civil Aviation to highlight that, on the basis of security, the decision has been taken and, therefore, the spacious plea that security has been used as an excuse to safeguard the commercial interest of the private respondents is absolutely erroneous. A similar stand has been taken in the Bombay High Court by Gulf Air Employees Association and others against the Government of India and others challenging the circular dated 28.9.2007 to the extent that restricting ground handling services by excluding self-handling is illegal but the said challenge did not find favour with the Bombay High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Kolkata airports and, thus, an incurable anomaly has been brought into existence. Reliance has been placed on the BCAS circulars to highlight that the same permits the airline operators to undertake ground handling activities even through a ground handling agency. But the DGCA circulars seek to prevent the airline operators from undertaking ground handling activities themselves. 25. It is also urged that the circular dated 2.6.2010 enables the cargo airlines to do self-ground handling activities while the passenger airlines are not permitted to carry out the same which tantamounts to discrimination. The contradictions in the circulars issued by the various authorities have been pointed out. Emphasis has been laid on how security is not the main reason but a subterfuge inasmuch as there is a complete contradiction between the security requirements and the ground handling circulars / regulations. The stance that the circulars / regulations have been issued to streamline the ground handling operations is far from being true and the same really requires to be keenly studied and deeply scrutinized to avoid any kind of anomaly. 26. It is set forth that the petitioners, as on toda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions have been given which we think it apposite to reproduce: (i) No ground handling agency shall be allowed to work at the airport in future by the Airport Operator, Aircraft Operator or any other agency which has legitimate functions at the airport, unless prior security clearance is obtained from the BCAS. (ii) As per the Ground Handling Regulations 2000 dated 17.1.2000, the AAI/Airport Operator may issue a license only after security clearance from the BCAS to such ground handling agencies on prescribed terms and conditions and eligibility criteria for ground handling agencies and the number of such agencies to be appointed at each airport shall be determined keeping in view the safety, security, demand, available infrastructure, land and other relevant considerations to be laid down by the AAI in accordance with the Section 5 of the AAI Ground Handling Regulations (2000). (iii) Aircraft operator shall enter into contract with the ground handling agencies only after prior security clearance to these entities from the BCAS and approval from the AAI/Airport Operator. (iv) In case AAI/Airport Operator or Aircraft Operator intend to appoint a new ground ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir India or Indian Airlines; and (iii) Any other agency licensed by the Airports Authority of India. 1.3 The Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2000, have been made under Section 42 of the Airports Authority of India Act 1994 and thus are applicable to the airports managed by the Airports Authority of India. With the restructuring of certain airports and development of a few Greenfield airports in the private sector, it has become imperative for the Central Government to lay down the eligibility criteria for various agencies to undertake ground handling services at non-AAI airports. The number of such agencies to be permitted at each airport is also to be determined by the Government having regard to all the relevant factors such as demand for such services, available infrastructure and competitive environment, without compromising the safety and security aspects. 1.4 Rule 92 of the Aircraft Rules, 1937 provides that the licensed public aerodromes shall, while providing ground handling services themselves ensure a competitive environment and allow the ground handling service providers permitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aft Act, 1934 and the rules made thereunder and directions, orders and circulars issued from time to time. 33. The said circular stipulated that the same was to come into force w.e.f.1.1.2009. In Annexure A appended to the said circular, ramp handling, aircraft servicing, aircraft cleaning, loading and unloading, cargo handling services and security are mentioned. In Annexure B, traffic handling is the genus and it includes as its species terminal services, flight operations, surface transport and security. 34. By Circular No. AIC Sl.No.15/2008 issued by the Joint Director General of Civil Aviation on 31.12.2008, the grant of permission for providing ground handling services at airports other than those belonging to the AAI has been amended. The amended clause provides that the policy shall come into force with immediate effect. The airline operators or any other ground handling service providers not covered by the said policy shall not be allowed to undertake self-handling or third party handling with effect from 01 July, 2009 or till further orders, whichever is earlier. 35. Circulars to the similar effect being Circular No. AIC Sl. No. 06/2009 and Circular No. AIC Sl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle or other equipment shall be restricted to: (a) the operator or the owner of aircraft(s) or his bonafide whole time employees or any of the designated agency under Regulation 3 authorised by it for handling its own aircrafts; (b) any other Operator or Agency who or which has been specially permitted in writing by the Authority to undertake ground handling activities through their bonafide whole time employees; (c) the bonafide whole time employees of National Carriers or any of the designated agencies under Regulation 3 authorised by them; (d) the bonafide whole time employees of Airports Authority of India or a designated agency authorised by it. 5. The Board of AAI will lay down terms and conditions (including financial consideration), eligibility criteria for ground handling agency (both financial and technical) and number of such agencies to be appointed at each airport keeping in view the safety, security, demand, available infrastructure, land and other relevant consideration. 39. On 18.10.2007, in exercise of power conferred under Section 42 of the 1994 Act, a set of Regulations, namely, Airports Authority of India (General Manageme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. (2) At all other airports, in addition to the entitles specified in sub regulation (1) of regulation 3, self handling may be permitted to the airlines, excluding foreign airlines. (3) All concerned agencies shall ensure that the state of the art equipment are used and best practices‟ are followed. (4) Airlines or entities presently involved in ground handling which are not governed by these regulations shall not be permitted to undertake self handling or third party handling with effect from the first day of January, 2009. 41. Schedule I to the Regulations deals with Ramp Handling, Aircraft Servicing, Aircraft Cleaning, Loading / Unloading, Cargo Handling Services and Security. Schedule II deals with Traffic Handling whereunder Terminal Services, Flight Operations, Surface Transport and Representational Services find mention. SUBMISSIONS: 42. Mr. Mukul Rohtagi and Mr. N.K. Kaul, learned senior counsel appearing for the petitioners, have advanced the following proponements: (a) The 2007 circular, which is purported to have been issued under Section 5A of the 1934 Act, travels beyond the provision and clearly contravenes the statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more so, when the Regulations permit other competitors to do the ground handling as a consequence of which total commercial chaos is likely to be ushered in and further the same brings in an anomalous situation which creates a dent in the equality spectrum. The introduction of the 2007 Regulations is an anathema to the entire concept of privatization of airline industry and the exclusion of the petitioners to handle the majority of air traffic in India is arbitrary and unreasonable. (f) The AAI Regulations 2000 allowed all the airlines to conduct self-ground handling facilities including outsourcing which was permitted by the AAI. The 2007 Regulations run counter and are in conflict with the statutory requirement contained in Rule 134 read with Schedule 11 of the 1937 Rules. That apart, the conditions of the licence are statutory in nature and any intervention in the same would violate the statutory framework. (g) The Regulations and the circular project a picture of contradiction and disharmony inasmuch as the Regulations cover four airports whereas the circular covers six airports. That apart, the airports at Kolkata and Chennai, which are not managed by private airport own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take control of ground handling of flights because the said activity requires the presence of maximum number of personnel in sensitive areas of airports. (iii) The circular No.7/2007 was issued by the DGCA stipulating that the airports‟ ground handling facilities would be handled by the airport operator itself or its joint venture partner; subsidiary companies of the national carrier, i.e., Air India / Indian Airlines or their joint venture or third party handling provided that they are selected through competitive bidding and on revenue sharing basis and subject to security clearance by the Government of India and the said circular has been issued under Rule 133A of the 1937 Rules and there is no conflict / discord between the rule and the circular. (iv) The proponement that a monopoly has been created in favour of all the private operators is sans substratum since Regulation 3 of the 2007 Regulations clearly stipulates that the ground handling service at airport can be carried out by AAI or it joint venture company or subsidiary companies of the national carrier, i.e., National Aviation Company India Ltd. or its joint ventures specialized in ground handling servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioners that the Regulations cover four airports whereas the circulars cover six and that the Regulations could not have covered all the six in view of the language employed managed by AAI does not stand to reason in view of the language employed under Section 12A of the 1994 Act which has to be interpreted on a broad canvass. 44. Dr.A.M. Singhvi, learned senior counsel appearing for the respondent Nos.5 and 7, has advanced the following submissions: (i) The interpretation placed by the learned counsel for the petitioners on Section 5A of the Act is totally unacceptable as an effort has been made to read the provision in a fragmented manner which is not permissible. The said provision has to be contextually and conceptually interpreted regard being had to the four facets, namely, textual language power, boundaries of the power, targets which are required to be addressed to and the proper exercise of power. (ii) The proponement by the petitioners to read in any case‟ with the satisfaction of the security of India and with the clauses that have been enumerated earlier is a composite manner is impermissible. The term in any case‟ has to be understo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted right for self-ground handling service. 45. Dr. Singhvi, learned senior counsel appearing for the Respondent Nos. 5 and 7, to buttress his submissions, has placed reliance on the decisions rendered in Lalu Prasad Yadav v. State of Bihar, (2010) 5 SCC 1, Union of India v. Venkatesan S. Anr., (2002) 5 SCC 285, Madhya Pradesh Ration Vikreta Sangh Society Ors. v. State of Madhya Pradesh, (1981) 4 SCC 535, Sarkari Sasta Anaj Vikreta Sangh Tehsil Bemitra Ors. v. State of Madhya Pradesh, (1981) 4 SCC 471, State of Orissa Anr. v. Radheyshyam Meher Ors., (1995) 1 SCC 652, Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board Ors., (1991) 3 SCC 299, Association of Industrial Electricity Users v. State of A.P. Ors., (2002) 3 SCC 711, M/s Bajaj Hindustan Ltd. v Sir Shadi Lal Enterprises Ltd. Anr., (2011) 1 SCC 640 and an unreported decision in Dilip Ranadive Anr. v. Union of India Ors., W.P. No. 516/2008 by the High Court of Bombay. 46. Mr. Sudhir Chandra, learned senior counsel appearing for the respondent Nos. 4 and 6, has submitted thus: (i) The circulars issued by the DGCA under Section 5A of the 1934 Act has a nexus with Section 2(gc) and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to carry on business has been interfered with without justifiable reason does not merit consideration inasmuch as their right to carry on business has not been affected and, in fact, the ground handling facilities have been regulated. The learned senior counsel would further submit that even the petitioners can enter into the fray by satisfying the conditions envisaged in the Regulations and the circulars but they intend to maintain their monopoly and carry on their outsourcing having scant regard for the security of the country. It is put forth by him that Section 5A of the 1934 Act, which has been amended, is the repository of power which authorizes the competent authority to issue circulars and the circulars being in consonance with the provision cannot be declared ultra vires. He has placed reliance on the decision rendered in Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304. 49. Mr.P.K.Ray, learned counsel appearing for the respondent No.12, while supporting the submissions made by the learned counsel for the other co-respondents, contended that the petitioners do not have unfettered right to carry on the ground handling service and if the data of employm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners, instead of challenging the same, sought the intervention of the Union of India to keep it in abeyance and also for giving effect to the same and, therefore, the assail to the said circular in 2011 should not be entertained. In our considered opinion, after the circular came into force, a Regulation has been framed and that apart, when we have heard the parties at length, we are not inclined to throw the writ petition over board on the ground of delay and laches. Accordingly, the aforesaid submission, being sans substance, stands repelled. 52. The next aspect that arises for consideration is whether the circulars could have been issued by the DGCA in exercise of power under Section 5A of the 1934 Act and also in transgression of Rule 92 of the 1937 Rules. That apart, it is to be tested whether the circulars, as policy decisions, are to be regarded as arbitrary and unreasonable. Section 5A was brought in the statute book and was substituted by Act 44 of 2007. The said provision, being differently interpreted by both the sides, is required to be reproduced in toto: 5A. Power to issue directions. - (1) The Director-General of Civil Aviation or any other officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and regulation of communication, navigation and surveillance or air traffic management facilities; (gc) the measures to safeguard civil aviation against acts of unlawful interference; (h) the air-routes by which and, the conditions under which aircraft may enter or leave [India], or may fly over [India], and the places at which aircraft shall land; (i) the prohibition of flight by aircraft over any specified area, either absolutely or at specified times, or subject to specified conditions and excpetions; X X X X (m) the measures to be taken and the equipment to be carried for the purpose of ensuring the safety of life; X X X X (qq) the prohibition of slaughtering and flaying of animals and of depositing rubbish, filth and other polluted and obnoxious matter within a radius of ten kilometers from the aerodrome reference point; 54. It is submitted by the learned senior counsel for the petitioners that Section 5A of the 1934 Act has to be given a restricted interpretation and, in fact, the circulars had to be in accord with the sub-sections mentioned therein and further, the security aspect has to have nexus only with the postulates man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 58. In Union of India v. Alok Kumar, (2010) 5 SCC 349, while dealing with the concept of contextual interpretation, their Lordships have opined thus: The rule of contextual interpretation requires that the court should examine every word of the statute in its context, while keeping in mind the Preamble of the statute, other provisions thereof, pari materia statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries. 59. Keeping in view the aforesaid pronouncements in the field, we are required to see whether the authority concerned is empowered to issue directions for the purpose of giving effect to the provisions of Section 5(2) only when security aspect is inherently involved. For the aforesaid interpretation, the learned seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )], (h), (i), (m) and (qq) and further the directions can be issued in respect of the same only if the security measure is involved. On a reading of the provision on the bedrock of contextual interpretation, the said submission does not deserve acceptation. We are inclined to think that the words in any case‟ are to be construed to cover all categories of cases where the interest of security of India or securing the safety of aircraft operation is involved. The same cannot be restricted or constricted to the provisions of Section 5(2) which find mention therein. In this regard, we may also fruitfully refer to Section 4A of the Act which reads as under: 4A. Safety oversight functions. The Director-General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government shall perform the safety oversight functions in respect of matters specified in this Act or the rules made thereunder. 63. We have referred to the said provision as the same is of immense importance regard being had to the security facet. In this context and backdrop, if Section 5A is understood only in the light of sub-section (2), it would not only be unpurposive b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 78 deals with licensing of aerodromes. Rule 79 provides for the qualifications of licensee. Rule 80 deals with the procedure for grant of licence. Rule 90 provides for entry into public aerodromes. Rule 92 deals with ground handling services. The said Rule, being relevant for the present purpose, is reproduced in entirety: 92. Ground Handling Services. The licensee shall, while providing ground handling service by itself, ensure a competitive environment by allowing the airline operator at the airport to engage, without any restriction, any of the ground handling service provider who is permitted by the Central Government to provide such services: Provided that such ground handling service provider shall be subject to the security clearance of the Central Government. 66. Relying on the aforesaid Rule 92, it is contended that an airline operator has an indefeasible right to provide the ground handling service itself or engage, without any restriction, any ground handling service provider to prevent unfair competitive environment. It is urged that by virtue of the circulars coming into force, the right to ground handling service by the airline operator is taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be treated as non est. 72. In Punjab Water Supply and Sewerage Board v. Ranjodh Singh, AIR 2007 SC 1082, their Lordships have observed that a Scheme under Article 162 of the Constitution of India would not prevail over the statutory rule. Their Lordships have further clearly held that any departmental letter or executive instruction cannot prevail over the statutory rule. 73. The language employed in Rule 92, if appositely appreciated, refers to licensee which means the airport operators who can do the ground handling themselves. It further postulates that the airport operator has to ensure a competitive environment and the same can only be done by the airport operator and not by the airline operator. The said interpretation also gathers support if its date of introduction, i.e., 5.11.2004 is taken note of, for the simon pure reason that the rule was amended after the concept of privatization of the airport was introduced. 74. The submission of the petitioners is that an absolute right is inherent with the airline operator. The said argument is not acceptable as there is a distinction between an airport operator and an airline operator. In fact Rule 92 confers no right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent political theories or economic policies but the Court will not sit in appeal over the policy of Parliament in enacting a law. 79. In Premium Granties and another v. State of Tamil Nadu AIR 1994 SC 2233, while dealing with the power of the Court to interfere with the policy decision, the Apex Court has expressed that it is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. 80. In M.P. Oil Extraction and another v. State of M.P. and others (1997) 7 SCC 592, it has been held that in matters of policy decision, the scope of judicial review is limited and circumscribed. The Apex Court has further held thus: 41. After giving our careful consideration to the facts and circumstances of the case and to the submissions made by the learned counsel for the parties, it appears to us that the Industrial Policy of 1979 which was subsequently revised from time to time cannot be held to be arbitrary and based on no reason whatsoever but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote of the fact that the whole purpose of the policy and the advertisement to hold a medical store inside the hospital premises was to make medicines available to the patients day and night and even at odd hours. In that context, their Lordships ruled thus: 6. In the aforesaid background the question arises whether, in the absence of any rule or regulation to the contrary, can the power of the State be abridged on the basis of an individual interest of certain trader, even to the extent of restricting the State's capacity to advance larger public goods. It can hardly be disputed that the consideration of availability of the medicines to the patients should be the uppermost consideration as compared to the right of a person to derive income and make profits for his sustenance by running a medical store for the reason that the medical stores are primarily meant for the patients and not the patients for the medical stores or those who run the same. The submission of the respondents that if a medical store is opened within the campus of the hospital, the same will jeopardise their interest adversely affecting their business and that they will not be able to sustain themselves co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a scientific basis linked to the increase in the fuel cost. This is a possible view to take and, therefore, the revision of tariffs by the Board does not fall within the available scope of judicial review. [Underlining is ours] 84. In Ugar Sugar Works Ltd. v. Delhi Administration and others, (2001) 3 SCC 635, their Lordships opined that the Courts, in exercise of their power of judicial review, the court ordinarily does not interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness, etc. 85. In State of U.P. and another v. Johri Mal, (2004) 4 SCC 714, while dealing with the limited scope of judicial review, the Apex Court has laid down the following guidelines The limited scope of judicial review, succinctly put, is: (i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies. (ii) A petition for a judicial review would lie only on certain well-defined grounds. (iii) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered in judicial review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy or its appraisal based on facts set out on affidavits. 90. From the aforesaid pronouncement of law, it is clear as day that it is not within the domain of the Courts nor within the scope of judicial review to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether a better public policy could evolve. A policy is not to be struck down merely because a different policy could have been fairer, wiser or more logically acceptable. The Courts can only interfere if the policy framed is absolutely capricious, not informed by reasons whatsoever, totally arbitrary and is found ipse dixit offending the basic requirement of Article 14 of the Constitution of India. 91. As the present policy lays emphasis on security to appreciate the steps taken for security, we think it apt to reproduce the order No.03/2009 dated 21.8.2009 issued by the Bureau of Civil Aviation Security in exercise of powers conferred by Section 5A of the Aircraft Act, 1934 read with para 4 of the DGCA Circular No.9/1/2002-IR dated 28.9.2007 and Regulations 6 and 7 of the 2007 Regulations. By virtue of the said order, the Commissioner of Security (BCAS), for the purpose of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4/2007-AAI dated 20th March, 2008, the in-line screening of hold baggage to be transported by an aircraft operator from the airports in India, shall be carried out by trained and BCAS certified screeners of respective airport operator or NACIL or their JV at airports having in-line baggage inspection System. 6. Screening and security control of Cargo consignments may also be undertaken by trained and BCAS certified screeners of Regulated Agents approved by the BCAS in accordance with the instructions issued by the BCAS from time to time. 7. The responsibility for all security related functions shall be with the airlines concerned. For this purpose, a security coordinator shall be designated by the respective airlines at each airport from where they shall have operations. 8. This order supersedes all instruction (except BCAS Cir No.4/2007) on the subject and shall come into force with immediate effect. Violation of this order will attract legal action under Section 11A of the Aircraft Act, 1934. [Underlining is ours] 93. The contention of the learned counsel for the petitioners is that the security facet has been introduced as a subterfuge to curtail the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense. In the said decision, it has been further laid down as follows: even if substantive protection of such expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision 95. Learned counsel appearing for the petitioners have also submitted that when a chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the decision-maker and not for the court. 97. In Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381, it has been opined that a legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the legitimate expectation. 98. From the aforesaid exposition of law, there can be no trace of doubt that though the doctrine of legitimate expectation has its relevance in administrative law, yet the same is subject to change of rule or a policy decision and the policy decision is required to be tested on Wednesbury principle. The present change of policy is neither unreasonable nor malafide to warrant interference by this Court in exercise of power of judicial reviw. 99. The next issue pertains to whether the circulars invite frown of Article 14 of the Constitution since there is no reasonable classification based on any intelligible differentia and there is no rational nexus between the objects sought to be achieved. To substantiate the said submission, it has been urged with immense ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by agents to be appointed under a Government scheme giving preference to cooperative societies in replacement of the earlier scheme of running such fair price shops through retail dealers appointed under clause 3 of the Order of 1960 was violative of Articles 14 and 19(1)(g) of the Constitution of India. In that context, their Lordships referred to the decision in R.D. Shetty v. International Airport Authority of India Ors., AIR 1979 SC 1628 which has laid down the principle that if a governmental action disclosed arbitrariness, it would be liable to be invalidated as offending Article 14 of the Constitution, but taking into consideration the wider concept, their Lordships held as follows: The wider concept of equality before the law and the equal protection of laws is that there shall be equality among equals. Even among equals there can be unequal treatment based on an intelligible differentia having a rational relation to the objects sought to be achieved. Consumers' cooperative societies form a distinct class by themselves. Benefits and concessions granted to them ultimately benefit persons of small means and promote social justice in accordance with the directive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not reflect any intelligible differentia and destroys the equality clause enshrined under Article 14 of the Constitution of India. 102. The next limb of the said issue pertains to whether the 2007 circular violates Article 19(1)(g) of the Constitution as the said creates a bar to carry on the business. To bolster the said submission, learned counsel for the petitioners would submit that the ground handling service is an insegregable facet of the airline operation and the Union of India cannot take away many spheres of ground handling service and leave a few to the petitioners which are trouble facing areas. Mr. Rohtagi and Mr. Kaul, learned senior counsel appearing for the petitioners would contend that a piquant situation has been ushered in since the interface at the airports would be carried on by the airline operators as a consequence of which the operations would face the wrath of the passengers whereas the other wings which would handle ground handling services would not face the same. This, according to them, creates a total dent in carrying out the business and, hence, it offends Article 19(1)(g) of the Constitution. Per contra, Mr.Gopal Subramanium, learned Solici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of decisions of this Court, and it is not necessary to burden this judgment with citations. The expression reasonable restriction signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality. [Emphasis supplied] 105. In Municipal Corpn., Ahmedabad v. Jan Mohammed, AIR 1986 SC 1205, the Apex Court has held that in considering the validity of the impugned law imposing prohibition on the carrying on of a business or a profession, the Court must attempt an evaluation of its direct and immediate impact upon the fundamental righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. 109. Keeping the aforesaid decisions in view, it is requisite to see whether the circular is hit by the aforesaid constitutional provision. On a careful scrutiny, it is perceivable that the certain ground handling services have been taken away from the petitioners on the ground of security measures. We have already reproduced the security measures in the earlier part of our decision while relating to why such a policy decision was warranted. There can be no iota of doubt that the national security is in the interest of general public and public order. It cannot be said that the petitioners had an indefeasible right to do the entire ground handling service solely because they were granted security clearance by the Central Government. One is required to apply the test of immediate and direct impact, level playing field which is subject to public interest, the nature of restriction regard being had to the concept of excessive postulates or stipulation of conditions. In the case at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al would contend if Section 12A of the 1994 Act is read in conjunction with Rule 133A it would be quite clear that the words managed by is of wide import and include all the six airports. Dr. Singhvi, learned senior counsel appearing on behalf of respondent Nos. 5 and 7, per contra, would contend that the circulars and the Regulations do not compete with each other as they cover different fields and, therefore, they can harmoniously exist and, hence, there is no necessity to delve into the issue whether two other airports which are not covered by the AAI would have any bearing on the lis. At this juncture, we may refer to the decision in Mr.Dilip Ranadive Anr. (supra), wherein the High Court of Bombay has held thus: 27. Being so, the respondents are justified in contending that the grievance of the petitioners that the regulations issued on 18th September, 2007 is devoid of substance. The regulations specifically relates to the airports managed by the Airport Authority of India whereas the circular applies to all the airports other than belonging to the Airport Authority of India, and hence there is no question of one superseding the another and both are to be read harmoniou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gions in the country, direct, by general or special order issued from time to time, that every operator operating any scheduled air transport service shall render service in accordance with the conditions specified in such order including any condition relating to their due compliance. (2) The Central Government may permit any air transport undertaking of which the principal place of business is in any country outside India to operate an air transport service from, to or across India in accordance with the terms of any agreement for the time being in force between the Government of India and the Government of that country, or, where there is no such agreement, of a temporary authorization by the Government of India. (3) No air transport service, other than a scheduled air transport service or an air transport service, to which the provisions of sub-rule (1) or (2) apply, shall be operated except with the special permission of the Central Government and subject to such terms and conditions as it may think fit to impose in each case. 113. On a bare perusal of the said Rule, it is quite vivid that no one can operate any scheduled air transport from, to, in, or across ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service by any person (including the applicant); (vii) if the tariffs for the proposed scheduled air transport services are reasonable; and (viii) any objections or representations made in accordance with the provisions of this schedule or any other law in force. 114. Clause 11 provides that the grant of permit shall not be construed as in any way absolving any person from the obligation of complying with the provisions of the Aircraft Act, 1934 or with the Rules made thereunder or with any other statutory provisions. The Director General of Civil Aviation vide Annexure P-7 dated 1.3.1994 has issued the guidelines for minimum requirements for grant of permit to operate schedule passenger air transport services. The introduction to the same reads as follows: 1. INTRODUCTION Sub-rule 1 of Rule 134 of the Aircraft Rules, 1937 specifies that no person shall operate any scheduled air transport service from, to, in, or across India except with the permission of the Central Government, granted under and in accordance with and subject to the provisions of Schedule XI of the Aircraft Rules. This Civil Aviation Requirement contains the minimum airworthiness, operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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