Airports Authority Officers' ... vs Union Of India (Uoi) And Anr.
2005 Latest Caselaw 782 Del

JUDGMENT

B.C. Patel, C.J.

1. The Airports Authority Officers' Association (India) has filed this petition against Union of India, respondent No. 1 and Airports Authority of India, respondent No. 2, inter alia seeking direction to declare the provisions of Section 12A of the Airports Authority of India (Amendment) Act, 2003 ( hereinafter to be referred to as, 'the Amended Act' ) being unconstitutional and hence ultra vires. This is the prayer which is required to be dealt with at the instance of the Association of Officers working at the airport. Other prayers are flowing from the main prayer.

2. Our attention was drawn to the original provisions contained in the Act and amended provisions. By amended provisions, the Legislature has authorised to enter into an agreement with the other authorities - maybe private or joint venture. Section 12A of the Amended Act reads as under:

"12-ALease by the Authority. - (1) Notwithstanding anything contained in this Act, the Authority may, in the public interest or in the interest of better management of airports, make a lease of the premises of an airport (including buildings and structures thereon and appertaining thereto) to carry out some of its functions under Section 12 as the Authority may deem fit :

Provided that such lease shall not affect the functions of the Authority under Section 12 which relates to air traffic service or watch and ward at airports and civil enclaves.

(2) No lease under sub-section (a) shall be made without the previous approval of the Central Government.

(3) Any money, payable by the lessee in terms of the lease made under sub-section (1), shall form part of the Authority and shall be credited thereto as if such money is the receipt of the Authority for all purposes of Section 24.

(4) The lessee, who has been assigned any function of the Authority under sub-section (1), shall have all the powers of the Authority necessary for the performance of such function in terms of the lease."

3. It is required to be noted that in view of globalisation and frequent movement of the people not only at the domestic airport, but also at the international airport, the Government in its wisdom took a decision in the year 1997 in this behalf. We have read the policy of airport infrastructure, a copy of which is placed at page 82 (Annexure P - 6) wherein the role of airport with better infrastructure in national economy is pointed out in greater detail. There is also clear indication about the objects pointing out the existing position and requirements in future considering increasing trend of use of Air services. We are not referring the same in detail, but suffice it to say that looking to the future traffic both in terms of passengers and cargo, the decision has been taken.

4. It may be noted that at Bombay Airport, there is passenger load of 12.26 million, while for cargo, it measures in 307605 tons. So far as Delhi Airport is concerned, the movement of passengers is indicated as 9.10 million, while the movement of cargo is indicated as 276042 tons.

5. Considering various aspects indicated in Annexures P - 6 and P - 7, it is not for this Court to sit as an appellate forum and to express an opinion whether the decision taken by the Government is correct or not. The Court has to examine the provisions contained in Section 12A of the Amended Act and to say whether it is ultra vires or not. So far as the petitioners' Association is concerned, members of which are only 1,000 in number (though the total number of staff is 23,000), they are requesting the Court to declare the provisions of Section 12A of the Amended Act ultra vires so as to see that respondent No. 2 / AAI is not in a position to enter into an agreement of lease or any other arrangement. So far as the petitioners are concerned, their interest is protected and before us today, Proposal for Restructuring and Modernisation of Mumbai Airport is placed on record, which is dated 01.04.2005 and following para would protect the interest of the staff:

"JVC will have an Employee Arrangement for a period of three years whereby AAI employees (other than those permitting to ATC and CNS departments) posted at the Airport on Effective Date continue to provide their services at the Airport. Further the JVC will be required, during the three years period to make offers of employment in order to absorb a minimum of 40% (or such higher percentage as committed by the Bidder) of the existing AAI employees working at the Airport excepting those engaged in Communication Navigation Surveillance (CNS), Air Traffic Management (ATM), Security, as reduced for retirements, resignations, transfers and death. Employment offers can be made at any time during this Employee Arrangement Period but in no event later than three (3) months prior to the end date of the Employee Arrangement Period. At the end of this Employee Arrangement Period those employees who do not take up the employment offers or who are not made such an employment offer will return to the services of AAI. Additional weightage is provided in the evaluation process to Bidders who commit to make offers of employment in order to absorb more than the minimum level of 40%. There will be a financial penalty, as set out in the OMDA, for any shortfall between the 40% or such higher nominated percentage and the result actually achieved."

6. A reading of the aforesaid would show that the employees would continue to be treated as employees of the Airports Authority of India for a period of three years and will have the option to continue as such or opt for service with the new joint venture company.

7. Our attention was drawn to decision of the Apex Court in the case of Centre For Public Interest Litigation v. Union of India and Anr., (2003) 7 SCC 532. From a bare perusal of paragraphs 18 to 20 of the said judgment, it is clear that the principle laid down in that case would not apply in the instant case as there is no question of disinvestment and, therefore, the decision of the Apex Court would not help the petitioners in any case. In the present case, it is not an action taken by the Executive, but it is an Act of the Parliament by an amendment of the statute to authorise respondent No. 2 / AAI to enter into a lease deed for a period specified. It is difficult for us to say that the provisions contained in Section 12A of the Amended Act is violat(sic)ve of the petitioner's Fundamental Rights.

8. At the initial stage, on behalf of the respondents, it was pointed out that so far as the staff is concerned, their interest is protected, therefore, we put a question that since the interest of staff is protected, nothing is required to be considered. However, it was insisted that the provisions of Section 12A of the Amended Act being ultra vires, the Court must examine the matter and that has given rise to the aforesaid decision.

9. It was contended that no doubt in the public interest or in the interest of better management of airports, there can be a lease deed of the premises of an airport, but there is nothing to indicate in the provisions about the Operation Management Development Agreement (OMDA). What is required to be noted that even in joint venture, respondent No. 2 will participate in the management and, therefore, the interest is protected even more than in the case of a lease and no interference is called for.

10. We find no merits and the petition is rejected.

CM 5970/2004 and 7353/2004