Indothai Airport Management ... vs Airports Authority Of India
2022 Latest Caselaw 1058 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
   THURSDAY, THE 27TH DAY OF JANUARY 2022/7TH MAGHA, 1943
                      WP(C) NO. 2611 OF 2022


PETITIONERS:

    1    INDOTHAI AIRPORT MANAGEMENT SERVICES
         PRIVATE LIMITED, REPRESENTED BY VIKAS LADIA,
         DIRECTOR, 29/709, 714 STAR BUILDING,
         MAVOOR ROAD, PARAYANCHERI, CALICUT-673 004.

    2    INDOTHAI CALICUT PRIVATE LIMITED,
         REPRESENTED BY VIKAS LADIA, DIRECTOR,
         29/709, 714 STAR BUILDING, MAVOOR ROAD,
         PARAYANCHERI, CALICUT-673 004.

         BY ADVS.
         HARIS BEERAN
         O.A.NURIYA
         FATHIMA V.A.
         ANAND B. MENON
         FASNA T.Y
         AZHAR ASSEES
RESPONDENTS:

    1    AIRPORT AUTHORITY OF INDIA,
         REPRESENTED BY CHAIRMAN,
         CALICUT INTERNATIONAL AIRPORT,
         CALICUT AIRPORT, MALAPPURAM DISTRICT,
         CALICUT-673 647.

    2    AIRPORT DIRECTOR,
         AIRPORT AUTHORITY OF INDIA,
         CALICUT INTERNATIONAL AIRPORT,
         CALICUT AIRPORT, MALAPPURAM DISTRICT,
         CALICUT-673 647.

         SRI APPU P.S., G.P.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.2611/2022

                                2




                          JUDGMENT

Dated this the 27th day of January, 2022

The petitioners are Private Limited Companies

incorporated under the Companies Act. The 1st petitioner had

participated in the tender for ground handling services,

floated by the 1st respondent during the year 2020. The

petitioners are before this Court seeking to direct the 1 st

respondent-Airport Authority of India to grant extension of

COD to the petitioners till such time restrictions upon air

travel are lifted completely.

2. The petitioners contend that due to the onset of

Covid-19 Virus (the pandemic), the Aviation/Airline Industry

has suffered unprecedented losses as the flights were halted

for almost a year and operations continue to be affected due

to Circulars issued by the Director General of Civil Aviation.

The functioning of airports has been below 20% of its regular WP(C)No.2611/2022

operations. Even today, according to the petitioners, the

situation remains bleak and there is rise in numbers as well

as variants of the virus. Amidst such unprecedented losses

being suffered by the petitioners on a daily basis, the

respondents are refusing to grant extension of COD, which

is arbitrary and unfair. The petitioners therefore seek to set

aside Ext.P23 show-cause notice dated 20.12.2021 which

imposes to take action for the alleged non-achievement of

COD as per the prescribed timeline.

3. When this writ petition came up for hearing today,

the learned Senior Counsel assisted by the Counsel

representing the 1st respondent submitted that the

respondents have already issued Ext.P23 show-cause

notice for non-compliance of COD in terms of the

Concession Agreement. Ext.P23 notice was issued on

20.12.2021. The petitioners have not submitted any reply to

the said show-cause notice. If the petitioners submit a reply, WP(C)No.2611/2022

the respondents are ready to consider the grievances of the

petitioners.

4. The counsel for the petitioners, on the other hand,

pointed out that the respondents have already, even before

hearing the petitioners, concluded that Force Majeure caluse

cannot be applied in the circumstances of the case. Ext.P23

also would show that the respondents have already taken a

decision in this regard. In such circumstances, giving

explanation to Ext.P23 is not likely to yield any positive

result.

5. To such submission, the learned Senior Counsel

for the respondents submitted that if the petitioners give their

explanation to Ext.P23, the respondents are ready and

willing to consider the explanation untramelled by any

observation or decision reflected in Exts.P12 and P23.

6. In view of the above, this Court is of the view that

ends of justice will be met if the petitioners are permitted to WP(C)No.2611/2022

file their reply to Ext.P23 show-cause notice and the

respondents consider the explanation with an open mind.

In the circumstances, the writ petition is disposed of

permitting the petitioners to submit explanation to Ext.P23

show-cause notice within a period of three weeks. If the

petitioners submit explanation within a period of three

weeks, the respondents shall consider the explanation and

take appropriate decision thereon untramelled by any of the

observations made in Exts.P12 and P23, in accordance with

law, within a further period of two weeks.

Sd/-

N. NAGARESH JUDGE ncd/27.01.2022 WP(C)No.2611/2022

APPENDIX OF WP(C) 2611/2022

PETITIONERS' EXHIBITS

Exhibit P1 TRUE COPY OF RELEVANT PAGES OF REQUEST FOR PROPOSAL (RFP).

Exhibit P2 TRUE COPY OF LETTER OF INTENT DATE 19/02/2021.

Exhibit P3            TRUE COPY OF LETTER DATED 23/02/2021
                      SENT   BY   1ST    PETITIONER  TO   2ND
                      RESPONDENT.
Exhibit P4            TRUE COPY OF LETTER DATED 16/03/2021
                      SENT   BY   1ST    PETITIONER  TO   2ND
                      RESPONDENT.
Exhibit P4(a)         TRUE COPY OF COMPANY MASTER DATA OF 2ND
                      PETITIONER.
Exhibit P4(b)         TRUE COPY OF COMPANY PROFILE OF 2ND
                      PETITIONER.
Exhibit P5            TRUE COPY OF BANK GUARANTEE FURNISHED

DATED 05/04/2021 SENT BY 1ST PETITIONER TO 2ND RESPONDENT.

Exhibit P6 TRUE COPY OF LETTER DATED 03/06/2021. Exhibit P7 TRUE COPY OF LETTER DATED 21/06/2021. Exhibit P8 TRUE COPY OF CONCESSION AGREEMENT DATED 19/07/2021.

Exhibit P9 TRUE COPY OF LETTER DATED 28/07/2021. Exhibit P10 TRUE COPY OF LETTER DATED 10/09/2021. Exhibit P11 TRUE COPY OF LETTER DATED 15/09/2021.

Exhibit   P12         TRUE COPY OF REPLY DATED 18/10/2021
                      ISSUED   BY  THE    RESPONDENT TO   THE
                      PETITIONER.
Exhibit P13           TRUE COPY OF CHART WHICH RECORDS THE

INTERNATIONAL AIRCRAFT MOVEMENTS. Exhibit P14 TRUE COPY OF RECOMMENDATION LETTER ISSUED BY AIRPORT DIRECTOR TO BCAS DATED 20/04/2021.

Exhibit P15 TRUE COPY OF SECURITY CLEARANCE ISSUED BY BCAS TO 1ST PETITIONER.

Exhibit P16 TRUE COPY OF SECURITY PROGRAM OF 2ND WP(C)No.2611/2022

PETITIONER SCRUTINISED BY CHIEF SECURITY OFFICER TO BCAS, TRIVANDRUM DATED 20/09/2021.

Exhibit P17 TRUE COPY OF LETTER SENT BY 2ND PETITIONER TO 2ND RESPONDENT REGARDING STATUS REPORT DATED 17/06/2021.

Exhibit P18 TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT REGARDING LAND ALLOTMENT DATED 30/07/2021.

Exhibit P18(a) TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT REGARDING LAND ALLOTMENT DATED 17/09/2021.

Exhibit P18(b) TRUE COPY OF LETTER ISSUED BY THE 2ND RESPONDENT REGARDING LAND ALLOTMENT DATED 09/11/2021.

Exhibit P19 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT TO 2ND PETITIONER REQUESTING USAGE OF EXISTING EQUIPMENT DATED 25/10/2021.

Exhibit P20 TRUE COPY OF LEGAL NOTICE DATED 05/11/2021 ISSUED BY THE PETITIONER TO THE RESPONDENT.

Exhibit P21 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT TO 2ND PETITION TO OPEN ESCROW ACCOUNT DATED 23/11/2021.

Exhibit P22         TRUE COPY OF REPLY DATED 02/12/2021
                    ISSUED   BY  THE   RESPONDENT    TO   THE
                    PETITIONER.
Exhibit P23         TRUE COPY OF SHOW CAUSE NOTICE DATED
                    20/12/2021.
Exhibit P24         TRUE COPY OF ORDER DATED 19/03/2020.
Exhibit P25         TRUE COPY OF ORDER DATED 26/03/2020
                    ISSUED   BY  THE   MINISTRY   OF    CIVIL
                    AVIATION.
Exhibit P26         TRUE COPY OF ORDER DATED 24/03/2020
                    ISSUED BY UNION OF INDIA.
Exhibit P27         TRUE COPY OF CIRCULAR DATED 09/12/2021
                    ISSUED BY THE DGCA.
Exhibit P28         TRUE COPY OF CIRCULAR DATED 19/01/2022
                    ISSUED BY THE DGCA.
 WP(C)No.2611/2022





Exhibit P29         TRUE COPY OF RELEVANT PAGES FROM

WIKIPEDIA SHOWING THE TIMELINE OF COVID WAVE IN INDIA.

Exhibit P30 TRUE COPY OF MINISTRY OF FINANCE ORDER DATED 13/05/2020.

Exhibit P31 TRUE COPY OF OFFICE MEMORANDUM DATED FEBRUARY 19, 2020 WITH RESPECT TO MANUAL FOR PROCUREMENT OF GOODS, 2017.