Kerala High Court
Plus Max Duty Free Private Limited vs Airport Authority Of India on 1 October, 2021
WP(C) No.19869/2021 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
Friday, the 1st day of October 2021 / 9th Aswina, 1943
WP(C) NO. 19869 OF 2021(G)
PETITIONER:
PLUS MAX DUTY FREE PRIVATE LIMITED, REGISTERED OFFICE, NO. 86/18,
ROYAL COMPLEX, SANKARI ROAD, SEETHARAMPALAYAM, TIRUCHENGODE,
NAMAKKAL, TAMIL NADU-637 209, REPRESENTED BY ITS MANAGER AND
AUTHORISED SIGNATORY, KARTHIKEYAN P, AGED 28 YEARS, SON OF
K.PERUMAL, RESIDING AT NO. 4/83, PATTIYATHOTTAM MOOLAPALAYAM,
ELUPPULI P.O, TIRUCHENGODE, NAMAKKAL, TAMILNADU 637 202.
RESPONDENT:
1. AIRPORT AUTHORITY OF INDIA, REPRESENTED BY THE AIRPORT DIRECTOR,
TRIVANDRUM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM-695 008
2. THE CHAIRMAN, AIRPORT AUTHORITY OF INDIA, CORPORATE HEAD QUARTERS,
RAJIV GANDHI BHAWAN, SAFDARJUNG AIRPORT, NEW DELHI-110 003
3. ADANI, THIRUVANANTHAPURAM INTERNATIONAL AIRPORT LIMITED (ATIAL),
REGISTERED OFFICE, ADANI HOUSE, 56 SHRIMALI SOCIETY, NAVRANGPURA,
AHMEDABAD, GUJARAT 380 009, REPRESENTED BY ITS DIRECTOR.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay all further proceedings pursuant to Exhibits P6, pending
disposal of this Writ Petition (Civil).
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments
of M/S B.ASHOK SHENOY, P.S.GIREESH, ARJUN R NAIK Advocates for the
petitioners, M/S V.SANTHARAM, Advocate for R1 & R2 and of M/s.
ROSHEN.D.ALEXANDER, TINA ALEX THOMAS, HARIMOHAN, S.SREEKUMAR (SR.)
Advocates for R3, the court passed the following:
WP(C) No.19869/2021 2/6
P.B.SURESH KUMAR, J.
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W.P.(C)No.19869 of 2021
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Dated this the 1st day of October, 2021.
ORDER
Petitioner, a Private Limited Company was assigned
the exclusive right of developing, operating and maintaining
duty free retail outlets at Thiruvananthapuram International
Airport in terms of Ext.P2 Concession Agreement executed by
them with the first respondent and they were accordingly
developing, operating and maintaining duty free retail outlets
in the said Airport. In terms of Ext.P2 Concession Agreement,
the petitioner is entitled to develop, operate and maintain
duty free retail outlets for a period of seven years from
02.09.2017. While so, the Customs authorities have closed
the duty free retail outlets of the petitioner with effect from
20.04.2018 alleging irregularities, and though the said action
of the Customs authorities has been interfered with by this
court in terms of Ext.P4 judgment, the said judgment has
WP(C) No.19869/2021 3/6
W.P.(C) No.19869 of 2021 ..2..
been stayed by the Division Bench in Writ Appeal No.360 of
2019. Ext.P5 is the interim order passed by the Division Bench
in Writ Appeal No.360 of 2019. In the light of Ext.P5 order, the
petitioner is not operating the duty-free retail outlets. Writ
Appeal No.360 of 2019 is pending. In the meanwhile, in
exercise of the power under Section 12A of the Airports
Authority of India Act, 1994, the first respondent leased out the
Airport to the third respondent to carry out the statutory
functions of the first respondent under Section 12 of the said
Act. The lease agreement entered into by the first respondent
with the third respondent will take effect on 18.10.2021. In
terms of Ext.P2 agreement entered into by the petitioner with
the first respondent, the first respondent is obliged to ensure
that the operation of the concessions in the nature of one
granted in favour of the petitioner shall not be affected by such
lease. It is seen that since the petitioner is not operating the
duty free retail outlets in the Airport, the third respondent has
now invited tenders for assigning the right to run the duty free
WP(C) No.19869/2021 4/6
W.P.(C) No.19869 of 2021 ..3..
retail outlets to others. Ext.P6 is the invitation made by the
third respondent in this regard. Ext.P6 is under challenge in
the writ petition. The case of the petitioner is that in so far as
they are entitled to run the duty free retail outlets in the
Airport till 2024, the third respondent is not entitled to assign
the said right to any one.
2. Heard the learned Senior Counsel for the
petitioner, the learned Standing Counsel for the first
respondent as also the learned Senior Counsel for the third
respondent.
3. On a query from the Court, the learned Senior
Counsel for the third respondent submitted that the third
respondent would certainly honour the commitments of the
first respondent and the petitioner is therefore free to enter
into appropriate agreement with the third respondent for
running the duty free retail outlets in terms of the provisions of
Ext.P2 agreement.
As noted, since the operation of the duty free retail
WP(C) No.19869/2021 5/6
W.P.(C) No.19869 of 2021 ..4..
outlets in the Airport has been interdicted by the Customs
authorities in the light of the interim order passed by this court
in Writ Appeal No.360 of 2019, the petitioner may not be able
to run the duty free retail outlets even if the third respondent
permits them to do so. In the circumstances, I am of the view
that it is only appropriate that this matter may be dealt with by
the court dealing with Writ Appeal No.360 of 2019. The
registry is therefore directed to place this matter before the
court dealing with Writ Appeal No.360 of 2019.
Sd/-
P.B.SURESH KUMAR, JUDGE
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01-10-2021 /True Copy/ Assistant Registrar
WP(C) No.19869/2021 6/6
APPENDIX OF WP(C) 19869/2021
Exhibit P2 TRUE COPY OF CONCESSION AGREEMENT NO. 09/2017 DATED
22.08.2017 EXECUTED BETWEEN PETITIONER AND 1ST
RESPONDENT.
Exhibit P4 TRUE COPY OF JUDGMENT DATED 21.12.2018 IN W.P.C NO.
21063 OF 2018 OF THIS HON'BLE COURT.
Exhibit P6 TRUE COPY OF PRINT OUT OF TENDER NOTICE REFERENCE NO.
RFP/NON-AERO/ATIAL/AUG/2021 ISSUED BY 3RD RESPONDENT,
PUBLISHED ON E-AUCTION WEBSITE OF E-PROCUREMENT
TECHNOLOGIES LTD., NAMELY, WWW. AIRPORTS.
ABCPROCURE.COM, TAKEN ON 19.08.2021.
