TMI Blog2008 (12) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... on of bids only from five persons is arbitrary and discriminatory, that the evaluation of the E.O.I by respondents 3 4 with respect to Retail and Duty-Free shop to be established in the International Departure and Arrival Duty-free at the New BIAL, Devanahally is arbitrary, discriminatory and further directions to declare the action of the respondents 3 4 in short-listing only respondents 5 to 9 for issuance of tender documents and excluding the petitioner from the said list and decision to issue the tender documents in pursuance of invitation dated 26/7/2006 with respect to Retail and Duty-free shops in the BIAL as stated supra is arbitrary, discriminatory and violative of Article 14 of the Constitution of India and direction to respondent No. 3 to issue tender documents and the amended prayer to quash the tender allotted in favour of 5th respondent, urging various facts and legal contentions. 2. Brief foots and rival legal contentions are referred to in this order with a view to appreciate the contentions and to answer the contentious issues that would arise for our consideration and determination. In order to support and foster rapid development of Bangalore, Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 30 years. On the opening of BIAL the existing Airport has to close commercial, civil aviation operation and any existing airport should not be developed or upgraded into an International Airport within 150 kms of BIAL for a period of 25 years. 3. The Union of India entered into concession agreement with BIAL granting exclusive right to establish Airport and its operation. The Government of Karnataka has extended several concessions to it by providing large extent of agricultural lands for the establishment of a new Airport. It is also the case of the petitioner that both Union of India and Government of Karnataka have extended various benefits by way of concession in favour of BIAL keeping in view the nature of project undertaken by it. Therefore, it is stated that BIAL is a 'State' within the meaning of Article 12 of the Constitution of India and same is amenable to writ jurisdiction of this Court under Article 226 Constitution of India. It is further stated that BIAL being the public body is discharging duties of a public character, for this reason also it is amenable to the writ jurisdiction. Hence it is required to oblige and act fairly, reasonably in a non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by it that commitment to India and an undertaking of the Indian consumer thereby indicate that it was looking at persons with experience in duty-free retailing in India. 5. It is the case of the petitioner that it operates airport duty-free shops in three regions with 25 shops in international arrival and departure terminals across 12 international airports in India. (The petitioner is a consortium of AerRianta International ctp). The parent company owns and operates duty-free show rooms, braided warehouses and related businesses in various locations in UAE, Kenya, Tanzania, Malawi, Burundi, Srilanka and in India. The said company has offices in Jebel Ali Free Trade Zone in UAE as well as in Nairobi, Kenya and Dar-Es-Salam (Tanzania). 6. It is its further case that it has well established logistic centers with warehouses at Mumbai, Chennai and New Delhi, which act as distribution center for all surrounding locations and it has got a strong supply chain to international logistic center in Jebel Ali, UAE which helps it in getting container loads or assorted supplies of any product in the least possible time. 7. The petitioner entered into consortium arrangement with A.E. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider the B.O.I submitted by it. It has not been made known the reasons for its exclusion from the competition. It had issued tender documents only to respondents 5 to 9. Therefore, it has urged that the entire process of inviting bids by BIAL for grant of concession contracts for conducting duty-free retail business in the BIAL is unfair and arbitrary. Therefore, the same cannot be allowed to sustain. If a decision was taken by the BIAL to have a pre-qualification for prospective tenderers, then the authority deciding to resort to such procedure ought to have set out detailed minimum criteria to be met by persons interested in submitting the tenders. The criteria cannot be vague and it ought to have been applied objectively and it should have been communicated to the prospective bidders so as to find out whether they would be eligible or not. When such criteria is not laid, the very pre-qualification itself could be manipulated arbitrarily applying so in favour of certain players in market and exclude certain other players. In the absence of the criteria spelt out by the BIAL for the purpose of short-listing, it is not valid as it gives arbitrary discretion to pick and choo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and access to international as well as domestic brands and a proven track record in providing quality services to its consumers. It is stated that the process of assessment of the persons who have submitted E.O.I, BIAL has not even issued communication to the petitioner disclosing its decision on the short-listing, The said process has been adopted and applied with a view to exclude the petitioner from the fray knowing fully well that, if, it were allowed to bid, it would have the best chance of bagging the contract by offering best price. 11. It is further alleged that Zurich Airport Authority is a shareholder in the BIAL owning 17% of the shares. The 4th respondent is the person responsible for the tender process who was an employee of the Zurich Airport Authority till he was appointed in BIAL. He was brought into BIAL as per the recommendation of 4th respondent- Zurich Airport, it is apprehended that the 4th respondent deliberately planned to bring the Companies based in Switzerland with whom he had opportunity to work earlier into the Indian market, this was the reason beyond for the BIAL for not being transparent in the tender process for awarding contract. The 5th resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same are in its interest and not adversely affecting the interest of the respondent. Further it is stated that the decision regarding disqualification of the petitioner was not discussed and passed by the Board of the Directors of BIAL. Therefore, the second respondent was neither involved in the decision process by BIAL nor regarding disqualification of the petitioner in the tender process. 16. The respondents 3 4 have filed joint statement of counter traversing the petition averments inter alia contending that the writ petition is not maintainable against the BIAL as it is neither a 'State' or instrumentality of a State or a body discharging public duties for the purpose of Article 12 of the Constitution of India to exercise power of this Court under Article 226 of the Constitution of India. Further it is contended in the statement of objections that as per the request made by the Managing Director of the petitioner, the 4th respondent met him on 12/9/2006, which fact is established by E-Mail sent by the business development and marketing Manager of A.E.R.I, which is venture partner of the petitioner with whom it submitted E.O.I to BIAL. In the said E-Mail it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iguous fact that the BIAL is neither an agency or instrumentality of the U.O.I or G.O.K in terms of Article 12 of the Constitution of India in view of sub-clause 3.1.1 of Article 3 of C.A. In view of the nature of the above exclusive rights and privileges granted to BIAL for the purpose of development and maintenance of infrastructural facilities required to be provided in the airport and facilities for commercial activities at the airport, award of duty-free shops according to the power of attorney of the Company is with the authority of the Manager of the company, therefore it is purely a management decision in the day-today affairs of the BIAL. Having regard to the right of the management of the airport under the C.A, the activities of the BIAL partake the character of Government Functions such as Customs, Immigration, Quarantine, Communication and Navigation services to be carried out by the relevant authority namely, (GOI, AAI, Director General of Civil Aviation, Bureau of Civil Aviation security etc.,) only and not by BIAL. As per Part-IV-Financial Provision of C.A, sub-clause-10 of Article 10 authorizes BIAL to collect airport charges and other charges in the nature of fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IIDC vide land lease dated 30th April 2005 provided land to the BIAL for construction of the airport on lease basis for a period of 30 years and it continues to be the lessee to the land, no ownership rights are transferred to it, Therefore, on the basis of the aforesaid detailed averment regarding the grant of land by the State Government to BIAL cannot be construed to be a 'State', 'Agency' or instrumentality of State in terms of Article 12 for the purpose of Article 226 of the Constitution of India. Therefore, it is stated that the writ petition is liable to be dismissed at the threshold itself on the ground of its maintainability. 19. The BIAL further submits that in the C.A, it is entitled to make available duty free shops and other amenities in the airport. In this view of the matter, it had called for E.O.I by 26/7/2006 in respect of five packages, which consisted of (i) retail package and (ii) Food and Beverage (F B) Packagel, F B Package 2 and F B Package 3. Clause 2.4 of the EOI deals with the aforesaid aspects. Under clause 3 of the EOI selection process was determined. In clause 3.1 of EOI it is made very clear that the second phase award proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 4 in this petition for first time is an after thought only to make out a case for grant of the reliefs sought for by it, therefore, the allegations made by the petitioner against them is misconceived, hence not sustainable in law. Further the allegations made in the Writ Petition has been denied as totally baseless and unfounded. The 4th respondent categorically denies any personal interest regarding Swiss companies in the matter of awarding major concessions or in the other concessions for the airport such as ground handling tender conducted by the 4th respondent on behalf of BIAL, the world largest ground handling company, Swissport from Switzerland as also another ground handling company based in Zurich, Jet Aviation, both applied for a concession and were not selected. According to respondents 3 4 evaluation is done by the BIAL and not by the 4th respondent alone and further the 4th respondent submits that be was not in favour of any company as alleged by the petitioner and the mere fact that he was an employee of Zurich Airport Authority cannot be a ground for casting aspersions against him. In fact, Zurich Airport never had any share in the 5th respondent company or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /11/2006 traversing the averments made in the statement of counter filed by respondents 3 4. The same are not required to be referred to in this order as they are nothing but reiteration of their plea taken in the writ petition with reference to the documents produced along with the writ petition. 23. The 5th respondent has filed its statement of counter on 17/9/2007 justifying the process adopted in respect of short-listing and awarding contract in its favour, it has submitted that the petitioner has been disabled to invoke the jurisdiction of this Court, it is further submitted that, if, the prayers of the petitioner were considered and granted, the entire process of tender and exclusion of award contract would result in great hardship, extensive loss and prejudice not only to the 5th respondent, but also to BIAL, at it would have to pay huge penalties to the first respondent in the event of non completion of the international airport within the scheduled time and also City of Bangalore and India as a country would be put to shame in the international scenario, if, the project is not completed. 24. The counter on behalf of the respondent No. 9 is filed inter alia contendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4? 3. Whether BIAL is amenable to writ jurisdiction under Article 226 of the Constitution for judicial review? 4. Whether the petitioner has got locus standi to file this writ petition and the writ petition is maintainable? 5. Whether the petitioner has waived/ acquiesced its right having participated in the selection process? 6. Whether the short listing of tenders in the absence of any guidelines in the letter of expression of interest by the BIAL is reasonable, legal and valid? 7. Whether the exercise of administrative power by the BIAL for issuing the tender documents in favour of respondents 5 to 9 by short-listing without assigning reasons for ignoring the petitioner is legal and valid and finally awarding contract in favour of 5th respondent is legal and valid in law? 8. Whether the action of BIAL the award of contract in favour of 5th respondent has affected public interest? 9. Whether the denial of opportunity to offer financial bid to the 9th respondent requires interference by this Court? 10. What Order? Point Nos. 1 to 3: 26. These two points are inter-related and therefore they are considered together. Learned Senior counsel Mr. Vinod Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns/ statutory duties in view of Section 12 of the A.A.I.A Act. Therefore, it is a State within the meaning of Article 12 of the Constitution of India and therefore, it is amenable to writ jurisdiction of this Court under Article 226 of the Constitution. 28. The above contentions are rebutted by learned Senior Counsel Sri R.N. Narasimha Murthy on behalf of respondents 3 and 4 placing reliance upon the decision of Supreme Court reported in [2002]3SCR100 in the case of Pradeep Kumar Biswas. He submits that in view of the ratio laid down therein by the Seven Judges Bench of the Apex Court and having regard to the facts of this case, particularly the shareholding agreement entered into between the Consortium members of BIAL and KSIIDC, S.S.A dated 20/1/2005 and C.A dated 5/7/2004 between the first respondent/Union of India- RI, Civil Aviation and BIAL. On the basis of the lease deed entered between KSIIDC and BIAL dated 30/ 4/ 2005 to establish a private airport at Devanahalli to assist the 2nd respondent to render technical, financial and other assistance in terms of the lease deed and the concession agreement. The object of establishing BIAL and the nature of the project are expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or public or governmental acts, any proceedings should be brought against it or its assets by any party in relation to the agreement Therefore, it is contended that the nature of functions and duties cannot be at any stretch of imagination termed as public duties/functions, much less statutory in nature. Therefore, contention urged on behalf of the petitioner BIAL is a State as defined under Article 12 is wholly untenable. It is not a State in terms of Article 12 of the Constitution. 29. Merely because Chapter V-A, Section 28-A of the A.A.I.A Act is applicable to the premises of the Airport for the purpose of eviction of unauthorised occupants from that premises, it cannot be construed by this Court that the functions of BIAL are that of public duties/functions. Therefore, it is contended by the learned Sr. counsel that BIAL is not a State as defined under Article 12 of the Constitution of India. 30. Sri V. Lakshminarayana, learned Counsel for 9th respondent supported the submissions made on behalf of the petitioner, he has justified the maintainability of the writ petition by inviting our attention to paragraphs 162 to 169 of Unnikrishnan's case [1993]1SCR594 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of functions and duties performed by BIAL. It is necessary for this Court to extract 'air traffic service', 'air transport service' and the functions of the Airport Authority enumerated in Sections 2(d) , (e), (nn) and 12 of A.A.I.A Act reads as under: 2(d) air traffic service includes flight information service,, alerting service, air traffic advisory service, air traffic control service, area control service, approach control service and airport control service; (e) air transport service means any service, for any kind of remuneration, whatsoever, for the transport by air of persons, mail or any other thing, animate or inanimate, whether such service relates to a single flight or series of flights; Section 2(nn) reads: 2(nn) 'private airport' means an airport owned developed or managed by: (i) any person or agency other than the Authority or any State Government, or (ii) any person or agency Jointly with the Authority or any State Government or both where the share of such agency as the case may be in the assets of the private airport is more than fifty per cent. 12. Functions of the Authority: (1) Subject to the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to further the efficient discharge of the functions imposed on it by this Act; (o) take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power or the discharge of any functions conferred or imposed on its by this Act; (p) perform any other function considered necessary or desirable by the Central Government for ensuring the safe and efficient operation of aircraft to, from and across the air space of India; (q) establish training institutes and workshops; (r) any other activity at the airports and the civil enclaves in the best commercial interests of the Authority including cargo handling, setting up of joint ventures for the discharge of any function assigned to the Authority; (4) In the discharge of its functions under this section, the Authority shall have due regard to the development of air transport service and to the efficiency, economy and safety of such service. (5) Nothing contained in this section shall be construed as: (a) authorizing the disregard by the Authority of any law for the times being in force; or (b) authorizing any person to institute any proceeding in. respect of duty or liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;....Again, Article 12 winds up the list of authorities falling within the definition by referring to 'other authorities' within the territory of India which cannot obviously be read as ejusdem generis with either the Government or legislature or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India. There is no characterization of the nature of the 'authority' in this residuary clause and consequently it must include every type of authority set up under a statute for the purpose of administering the laws made by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws. (vi). The Apex Court in Sukhdev Singh and Ors. v. Bhagaram Bardar Singh Raghuvanshi reported in: (1975)ILLJ399SC after referring to its various decisions and Halabury's Laws of England has held thus, the relevant paras reads as hereunder: 39. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. We may point out that it is immaterial for this purpose whether the corporation is created by or under a statute. The test is whether it is an instrumentality or agency of the State and not as to how it has been created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies registration Act or any other similar statute. Whatever may be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the government and that would have to be decided on a proper ascertainment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be deckled, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82) A State is an abstract entity. It can only act through the instrumentality or agency or natural or juridical persons. Therefore, there is nothing strange in the notion of the State acting through a corporation and making it an agency or instrumentality of the State. It is further held by Mathew J, that; The State may aid a private operation in various ways other than by direct financial assistance. It may give the organization the power of eminent domain, it may grant tax exemptions, or it may give monopolistic status for certain purposes. All these are relevant in making an assessment whether the operation la private or savours of State action. See generally: The meaning of State Action', LX Columbia Law Rev 1083. Institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed government agencies. See the decisions in Terry v. Adams 273 US 536 and Nixon v. Condon 266 US 73. Activities which are too fundamental to the society are by definition too important not to be considered government function. 23. From this perspective, the logically sequitur is that it realty does not matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the people and hence governmental. Such authority would be the State, for, one who enjoys the powers or privileges of the State. It is this strong statutory flavour and clear indicia of power -constitutional or statutory, and its potential or capability to act to the detriment of fundamental rights of the people, which makes it an authority; though in a given case, depending on the facts and circumstances, an authority may also be found to be an instrumentality or agency of the State and to that extent they may overlap.... (ix). In view of Zee Telefilms Ltd. and Anr v. Union of India and Ors. reported in AIR2008SC2675 , in which tests are laid down in para 40 that the Body must be financially, functionally and administratively dominated under the control of Government and such control must be particular to the Body in question and must be pervasive. No doubt, in that case after referring to some tests from Ajay Hasia case, it is held that BCCI is not 'State' and it is not created by statute and no part of its capital is held by the Government. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board. The Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power property and prestige behind to place the admitted discrimination. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognised as a joint participant in the challenged activity, which on that account cannot be considered to have been to 'purely private' as to fall outside the scope of the Fourteenth Amendment... what we hold today is that when at State leases; public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the lease itself. (xii). In another case in Evans v. Newton (1966) 15 L.Ed. 2d. @ 377, 379 regarding bequeathing of private land by a will to the Mayor and Council of Macon, Georgia after the death of the testator's wife and daughters, for use as 'a park and pleasure ground' for while people only, was held to be usable by all - whites and blacks - and that no 'aegregation' could be permitted in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s laid down by the Constitutional Benches of the Supreme Court and American Law, the doctrine of State action would with all fours applicable to the facts of the case to come to the conclusion that to provide duty free shops in the BIAL as per the agreement referred to supra is necessary in the international airport. The facilities provided therein are in the nature of Statutory functions/ public functions by BIAL for the convenience of travelling public. All the facilities provided by BIAL, be it a State, lessee or entity, performs statuary/public functions in the Airport This is expressly apparent from Clause 7.1 of Clause 7 of S.S.A dated 20/1/2005. The relevant clause reads as hereunder: 7.1 Airport Operation and Maintenance: BIAL shall operate and maintain the Airport in accordance with Good Industry Practice. BIAL shall at all times comply with Applicable Laws in the operation and maintenance of the Airport and shall maintain, keep in good operating repair and condition, the Airport, in accordance with the Operation and Maintenance Plan, an indicative outline of which is as set out in Schedule 6 attached hereto. BIAL shall submit the Operation and Maintenance Plan to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords, must be judged by that standard. (xvii). The assistance provided by both the Union of India and State Government and other statutory authorities in permitting BIAL to establish and maintain BIAL at Devanahalli, without which the airport could not have been established, and Re. 250 crores provided to BIAL by the Government of Karnataka under the State agreement and capital of BIAL partly owned by it, 26% share capital owned by 2nd respondent, 13% by BIAL, in pursuant to the Concessional agreement referral to supra, there is transfer of powers of respondent No. 2 to R-3 in relation to air traffic services to be rendered to the public at large. The grant of monopoly status in the concession agreement given to the BIAL is State conferred or State protected as the concession agreement provides exclusivity of private concession to the existing airport and prohibits any airport being set-up within 150 Kms from BIAL. (xviii). Even if it is not an entity and 'State' under Article 12 of the Constitution of India, the actions of BIAL are subject to judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other person or body performing public duty. The form of the body concerned is not very much relevant. What ftp relevant is the nature of duly imposed on the body....Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the status. Commencing on the development of the law, professor be Smith status 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have imposed character, common law, custom or even contract . We share this view. (xxi). In Unnikrishnan's case, after referring to Anadi Mukta and Drawakanath cases, it is held at paragraphs 81 and 83 as under: 81. As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions? They discharge a public duty, If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution is a public duty, that requires to act fairly. 83. The emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with AerRianta International opt, which is a company incorporated under the laws of Ireland to obtain contract for running duty-free retail business with BIAL and the said company is dedicated to International Division of the Dublin Airport Authority. It was the first to start duty-free retailing business in the world and it has fulfilled the experience wanted by the BIAL in its tender notification as it has set up free retailing business at Trivandrum, Jaipur, Amritsar and Lucknow Airports and further it has extended its business to airports at Chennai, Bangalore, Hyderabad, Ahmedabad, Calicut, Goa, New Delhi and Trichy. The petitioner in India has experience in emerging markets of its parent company across the world. It decided to join hands with AerRianta International opt, for submitting a bid to obtain contract from BIAL in respect of carrying on the aforesaid business. According to the petitioner, the consortium of it with AerRianta International opt, would be the only one qualified to receive tender and submit bid for obtaining contract for duty-free retailing at BIAL. It is admitted that the petitioner was the first company to enter into the private retail duty-free busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has got excellent experience for running duty-free shops in various places in India. 35. The contention urged on behalf of the respondents No. 3 and 4 that the petitioner and AerRianta have participated in the tender process by submitting E.O.I pursuant to the tender invitation accepting the conditions enumerated therein without demur. Therefore the petitioner has acquiesced its right in challenging the impugned action. Further contention urged on behalf of respondents No. 3 and 4 that both petitioner and AerRianta sent the E-Mail as per Annexures-R5 and R6 to respondent No. 4 requesting him to re-look into the matter, further as could be seen from the E-Mail dt. 12/09/2006 sent by AerRiant to R4, it has made clear that it respects the decision taken by BIAL regarding exclusion of consortium consisting of the petitioner. The above contention is untenable in law. Therefore, the learned Sr. counsel in support of his contention that petitioner has not acquiesced his right to file this Writ Petition, in support of this submission he has placed strong reliance upon the constitutional bench decision of the Apex Court reported in Olga Tellis and Ors. v. Bombay Municipal Corporation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful State could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. Therefore, notwithstanding the fact that the petitioners had conceded in the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after October 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well-founded is another matter. But, the argument has to be examined despite the concession. 29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bonafides in day-to-day transactions. In Basheshar Nath v. CIT 1959 Supp 1 SCR 528 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived, Two members of the Bench (Das, C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r company holding that the action of the respondents No. 3 and 4 in short listing the tenders without there being any intelligible guidelines enumerated in this regard in the EOI and without assigning any reasons or communicating the same whatsoever to the petitioner has certainly affected the legal right of the petitioner to submit its bid to get the contract awarded in its favour as it it more qualified. Point No. 6: 38. The submission of the learned Senior counsel for the petitioner with regard to the aforesaid point is that the entire process of short-listing of persons who had submitted their E.O.I is arbitrary as there was lack of transparency in the action of respondents 3 4 for the following reasons: a) No lawful justification for short listing 5 out of 7 parties who have submitted EOIs. b) No norms at all are enumerated in the tender invitation notification for short listing. c) Selection criteria followed by R3 R4 lacked legal certainty, since they are imprecise and they do not provide for objective norms or bench marks for proper evaluation. d) No document or documents at all showing the evaluation process. e) No Committee of Experts or any Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning given by Dicey in his The Law of the Constitution or the definition given by Hayek 1 his Road to Serfdom and Constitution of Liberty or the exposition set forth by Harry Jones in his The Rule of Law and the Welfare State , there is as pointed out by Mathew, J., in his article on The Welfare State , Rule of Law and Natural Justice in Democracy, Equality and Freedom , substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found. It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affection of some right or denial of some privilege. (iii). Further, it is well settled lay that discretion in any authority or body must always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirements of natural justice on such jurisdictions and one such desideratum is spelling out reasons for the order made, in other words, a speaking order. The inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. (vi). Further the learned Sr. counsel has aptly relied upon the decision of the Apex Court reported in B. Ramakichenin v. Union of India (2008)1SCC362 wherein it has reiterated the law laid down in R. D. Shetty's case referred above in support of the proposition that it is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority, further the learned senior counsel has placed strong reliance upon the observations made by the Author H.M. Seervai in Constitutional Law of India, 4th Ed. Vol 2, p. 1487 @ para 16.92 in support of the contention that; if, 'a body has exercised its discretionary powers capriciously or on irrelevant grounds, it is to be taken as not having exercised its powers at an in the eye of law'. (vii). Further he has placed strong reliance upon the landmark constitutional bench decision of the Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation of Maharashtra Ltd. and Ors. reported in [1990]2SCR826 in which it has referred to the decisions of R.D SHETTY, AJAY HASLA and number of decisions in support of the proposition that the Authority who is required to discharge statutory functions/ duties has to act within the ambit of Rule of Law and would not be allowed to conduct itself arbitrarily and its dealings with the public would be liable to judicial review. A quotation from Lord Denning, in Padfield v. Minister of Agriculture 1968 A.C. 997 is placed reliance by learned senior counsel According to him the said words of Lord Denning are apposite on the point of reasons. Further he has placed strong reliance that existence, recording and communication of reasons is a salutary and vital safeguard against arbitrary exercise of power, reasons for any decision are judicially reviewable and that reasons must be clear, cogent, certain and they cannot be vague. The evaluation of E.O.I was done on the basis of criteria, merits and demerits considered does not amount to giving reasons in law, further it is clear from the EOI invitation that one of the important criterion was experience in Indian duty-free retailing, it is eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or EOI, uncertain elastic and subjective criteria stipulated are bad in law as held by the Apex Court in Reliance Energy case referred to supra. If criteria, valid norms and guidelines which are required to be enumerated in the tender invitation that are required to be followed by BIAL for short listing the tenderers who had submitted their B.O.I, than the BIAL should have rigorously followed the same to consider the Indian experience of the petitioner in the trade, exclusion of the petitioner from submitting bid application on account of short-listing it is not only arbitrary, but also unreasonable and not supported by any reason or law. (ix). Participation by giving B.O.I does not debar the petitioner to challenge the validity of tender process and the criteria in this Writ petition, in support of this contention strong reliance is placed upon the decision of the House of Lords reported in (1819)1 BLIGH 1 @ 21-22 in the case of Ker v. Wanchope which decision is referred to in Broom's Legal Maxima @ p 485 wherein it concerned a will wherein the House of Lords has held 'it is equally settled in the law of Scotland as of England that no person can accept or reject the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being developed. The decision of the selection committee was based on unanimous decision of all members of the selection committee and BIAL adopted process of calling EOI for short listing certain number of bidders for issuing tender documents, the same was in pursuance of Clause-3.2 of the concession agreement which essentially sets out the fact that the third respondent could grant service provider rights to any person for the purpose of carrying out the activities and business described in Clause 3.2.1 of Article-3 on such terms and conditions as the BIAL may determine as appropriate. Therefore, it is contended toy him that having regard to the aforesaid clause in the concession agreement, it was a mandatory requirement on the part of the BIAL to call for any tenderers or follow two stage tender process as has been done in the instant case and it could have devised any other method for selection of its own choice. However, the intention of it is very clear to have best players in the market and get the best offers from them vis-a-vis its intention was to give fair chance to the Companies to bag with various packages. The process involving assigning of its exclusive contractual r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined under Article 12 of the Constitution of India and as interpreted by the Supreme Court in the catena of decisions which are extracted in the preceding paragraphs of this judgment while answering the aforesaid contentious point Therefore, award of contract by extending invitation to persons inviting their interest must provide certain requirement under clause 3.2 of the invitation permitting eligible persons who fulfill the requirement submit their EOI then the further process of BIAL must be transparent in the business, all the norms and guidelines are required to be laid down in the tender invitation to comply with constitution provision of Article 14 of Constitution of India, its action must be transparent it should contain reasons and it should exercise its discretionary power judiciously as held by the Apex court in catena of decision on the above contentious points submitted by the learned Counsel on behalf of the petitioner. Learned Senior Counsel Mr. Vinod Bobade has rightly placed reliance upon the American Law with reference to 14th amendment to U.S Constitution, which is equivalent to Article 14 of our Constitution. Section 1 of said 14th amendment reads thus: 1. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial bid and awarding contract in favour of 5th respondent BIAL is once again a clear case of arbitrary exercise of power by it. Accordingly we answer the above point in the affirmative. Point Nos. 7 to 9: 39. We have to answer the above points against the BIAL for the following reasons: (i). As we have already answered point Nos. 5 6 assigning our reasons and held that the action of the BIAL in short listing respondent Nos. 5 to 9 and excluding the petitioner company from issuance of the tender despite the fact that it has got qualification, experience in the Indian market as per the eligibility criteria enumerated in the EOI, it has been running its business in various international and national airports in different parts of other countries and our country which are referred to in the earlier paragraphs of the judgment, it is one of the important aspect which should have been weighed in the mind of the selection committee of the third respondent keeping in view that it is discharging public functions and the premises is a public premises. Therefore in the concession agreement, it has been specifically stated that Chapter V(A) of the A.A.I.A Act is applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority of India, which clearly stated in para 9 that the matter was never placed before the Board of Directors of the Company. (ii). Therefore, it is clear that Board of Directors including two promoters were kept out from the decision making process, short listing and final choice of awarding contract ignoring the experience of the petitioner to render good service to the Indian Consumer. The contention is that it is a mala fide exercise of power. (iii). We have already held that the short listing is bad and opportunity was not given to the petitioner to submit its tender and participate in the competition, and reasons not assigned for excluding the petitioner and opportunity was not given to the 9th respondent to participate in the financial bid and not giving opportunity to the petitioner and 9th respondent to offer their financial bid for the purpose of establishing retail duty free shop in the Airport run by BIAL on such terms and conditions certainly it would have offered best price that could have increased the percentage of revenue to the second respondent-A.A.I out of the gross income that would have been earned by the BIAL. Issuing tender to the 5th respondent as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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