Case: Travel Food Services Pvt. Ltd. and Ors Vs. Union of India and Ors

S.V. Gangapurwala, J. 1. Petitioner No. 1 claims to be a Private Limited Company and Petitioner No. 2 to be a Director of Petitioner No. 1. On or about year 2009, Petitioner No. 1 started its operation of managing and operating food and beverage services at Chhatrapati Shivaji Maharaj Airport, Mumbai. On or about 1st June 2018, Petitioner No. 1 applied to Respondent No. 2 to get the renewal of the security clearance within the Security Restricted Area. Under communication dated 1st October 2018, Respondent No. 2 granted its security clearance to Petitioner No. 1 to operate under the category of business establishments/concessionaires. The said security clearance was valid for a period of five years from the date of issue of the security clearance. The security clearance was subject to the terms and conditions enumerated in the said communication. On or about 9th October 2020, Respondent No. 3 communicated under the impugned communication that the security clearance of the Petitioner No. 1 is withdrawn. Same is assailed in the present Writ Petition. 2. Petitioner No. 1 is a concessionaires at the Mumbai Airport under an agreement entered into with the Mumbai International Airport Authority Ltd. Petitioner No. 1 operates the food and beverage outlets at the Mumbai International Airport. After the impugned communication dated 9th October 2020 was issued to Petitioner No. 1, as a sequel to it, Petitioner No. 3 who is the concessionaire for all food and beverage services in the lounge area at Chennai Airport, was issued communication withdrawing its security clearance under communication dated 22nd October 2021. Similarly, Petitioner No. 4, a concessionaire for lounge facilities in Bengaluru Airport was issued with similar communication dated 2nd December 2021. Petitioner Nos. 3 and 4 are subsidiaries of Petitioner No. 1, as contended. The Coordinate Bench of this Court heard the matter at length in October 2020 and under an elaborate speaking order dated 14th October 2020, passed interim orders in terms of prayer clause (b) of the Writ Petition thereby staying the operation, effect, implementation and enforcement of the impugned communication dated 9th October 2020. Subsequently, under order dated 27th October 2021, the subsequent communications issued by the Respondents against Petitioner Nos. 3 and 4 were also directed not be acted upon. 3. We have hard Mr. Kadam, learned Senior Advocate for the Petitioners and Mr. D.P. Singh for the Respondents. 4. This Court, while passing the interim order on 14th October 2020, considered the entire gamut of the contentions and passed an elaborate detailed order staying the operation of the impugned communication withdrawing the security clearance of the Petitioners. Considering the seriousness of the issue, the Coordinate Bench of this Court observed that the Writ Petition merits expeditious disposal. While granting interim protection to the Petitioners, the Division Bench of this Court perused the Intelligence Bureau report and other documents produced by the Respondents which were claimed to be confidential and had directed the said documents to be kept in the custody of the Prothonotary and Senior Master of this Court. At the time of passing the impugned order, this Court, after having considered the Intelligence Bureau report and other documents produced in a sealed cover, observed that the Intelligence Bureau never advised withdrawal of the clearance based only on the inputs provided to it but left to the Bureau to decide as it deems fit. There was no assessment or evaluation of the facts, much less, proper assessment or evaluation, thereby causing a failure of justice. The Division Bench of this Court observed that there is no incriminating material in regard to the dealings of the Company ever since the report of the Intelligence Bureau reached the Bureau. For ready reference, we reproduce the excerpts of the elaborate speaking interim order passed by the Division Bench of this Court on 14th October 2020. 7. The writ petition was considered by us on October 12, 2020. Noticing that no reason was assigned by the Joint Director for withdrawal of security clearance, the Court had inquired of the reason from Mr. Singh, the learned Additional Solicitor General appearing for the respondents. On instructions, he had submitted that the impugned order withdrawing clearance was passed resting on a confidential report of the Ministry of Home Affairs, Government of India. Recording his inability to place a copy of such report before the Court, hearing was adjourned and the writ petition directed to be listed on the next day, i.e. October 13, 2020. The respondents were required to place before the Court the said confidential report. 8. The writ petition having been called on for consideration on October 13, 2020, the confidential report of the Intelligence Bureau, Ministry of Home Affairs (hereafter IB for short) was placed before the Court in a sealed envelope. It is a report of the Assistant Director dated October 10, 2018. It is revealed from the IB report that while nothing adverse was found against any of the Directors of the Company, there were certain remarks concerning the father of the second petitioner (hereafter the subject, for short) viewed as adverse by the IB. However, the Bureau was left free to take a decision as deemed ft. Upon such report of the IB being placed before the Court, the same was examined in the light of the documents annexed to the writ petition and it transpired from the application that was made for fresh security clearance that the name of the subject did not appear therein as Director of the Company. Also, the questions that the Court had put to Mr. Singh could not be immediately answered owing to want of instructions. The Court had, accordingly, adjourned the hearing and granted time to Mr. Singh to place the relevant records based whereon the impugned order withdrawing clearance was issued. When the writ petition was called on for hearing a second time on October 13, 2020 (at 3.00 p.m.), Mr. Singh placed before the Court documents which inter alia are a chronological summary of steps taken to process the petitioners application and the notings/decisions taken thereon, which the respondents considered relevant, for the purpose of deciding the prayer for interim relief. The documents, handed over to the Court, primarily sought to justify the delay in passing the impugned order on October 9, 2020, although the report of the IB had been received by the Bureau sometime in December 2018. The impugned communication was preceded by a note of the Joint Secretary under #note 100 dated October 7, 2020 which appeared to be the trigger for withdrawing clearance. The parties were heard on the question of interim relief and order was reserved. 9. Mr. Kadam, learned senior advocate for the petitioners has contended that the respondents have acted illegally and in an arbitrary manner in withdrawing the security clearance without any notice/hearing, and thereby jeopardising the interests of not only the petitioners who have contractual obligations to honour but also hundreds of employees employed at the outlets/lounges at the airport as well as the passengers desirous of availing the services and facilities provided thereat. 10. Per contra, Mr. Singh has submitted that national interest and security of the State are at stake and, therefore, this is not a proper case for interference by the Court. Reference has been made to clause (6) of the clearance granted on October 1, 2018 in support of the contention that the respondents are under no compulsion to assign reasons for the action taken by them. Reliance has been placed on an unreported decision of the co-ordinate bench of this Court in Akbar Travel of India (Pvt.) Ltd. V/s. Union of India and Others dated June 10, 2009 as well as an unreported decision dated February 3, 2010 of the Division Bench of the Madras High Court in Dani Aviation Services Pvt. Ltd. V/s. Union of India and Another in support of his contention that in a matter concerning national interest and security of the State, the Court ought to stay at a distance. He has also submitted that if the Court so directs, a post-decisional hearing could be arranged. 11. The respondents primary and only defence centres around security concerns that are likely to affect fight and other operations at the Mumbai International Airport, should the Company be allowed to continue with its business operations. Cases of the present nature where concerns about national interest and security of the State are raised, as of necessity, call for treading the path of caution and circumspection but not exercise of total restraint, as submitted by Mr. Singh. If Mr. Singhs contention were to be accepted, any matter touching upon national interest and security of the State would remain immune from judicial scrutiny and the Court disabled from examining whether any issue of national interest/State security, at all, is involved or not. It is the duty of the Court while considering complaints of breach of Fundamental Rights to ascertain the truth and veracity of the concerns expressed to serve the cause of justice. This Court would proceed accordingly. 12. Issuance of the impugned communication has resulted in withdrawal of clearance that was earlier granted on October 1, 2018 which, in turn, has visited the petitioners with civil consequences inasmuch as business operations within the precincts of Mumbai International Airport, which it was carrying on till October 9, 2018 has come to a grinding halt. It is in the above factual background that this Court is tasked to decide the question of interim relief. If interim relief as claimed in this writ petition were granted by the Court, its effect would substantially be the same as the grant of final relief which has been claimed. The Court has to consider such issue drawing guidance from the decision of the Supreme Court in Deoraj V/s. State of Maharashtra, reported in AIR 2000 SC 1975. Paragraph 12 being relevant is quoted below: 12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case -- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent. 13. Having perused the decisions cited by Mr. Singh, this Court is of the opinion that the propositions of law laid down therein do not admit of any doubt but what is of importance is that such decisions turned on the facts before the respective Courts. Blind reliance cannot be placed on precedents merely because of some resemblance on the factual score of denial/withdrawal of security clearance being the matters in issue. In the light of the applicable law, the facts and circumstances that have emerged in the present case have to examined and a decision in sound exercise of judicial discretion delivered either way on the merits of the rival claims. 14. The report of the IB and the materials available in the relevant file which Mr. Singh has placed before us have been read. Mr. Kadam has not been given access to the same owing to the concern of secrecy to be maintained in such cases expressed by Mr. Singh but such non- access is not prejudicial to the cause of the petitioners for the view this Court proposes to take, based firstly on Mr. Singhs answer to a query that there is nothing adverse as against the present Directors of the Company and next, resting on this Courts prima facie conclusions as delineated hereunder: (i) Even assuming what the IB has referred to as adverse, appearing on its records as against the subject on December 10, 2018, the same is relevant as on that date but it appears to be of no efficacy for the reason that there were no developments since then in respect of two of the incidents of alleged importance (neither has any FIR been lodged under section 154 of the Code of Criminal Procedure in respect of the calls that were considered suspect nor any chargesheet under section 173(2) thereof been filed by the Central Bureau of Investigation upon completion of investigation into offences under the Prevention of Corruption Act). The contents of the report as on the date the impugned order withdrawing clearance was passed, have to be seen as mere insinuations which the Joint Secretary failed to appreciate while recommending withdrawal of clearance; (ii) Every officer holding a public office has to act in furtherance of public good. This necessarily requires him to act in utmost good faith. Clause (6) of the clearance dated October 1, 2018 would not absolve the respondents of the requirement of recording reasons in the file though, in terms of such clause, they may not be under any duty to communicate such reasons. If power to act without reason is assumed, such power would tantamount to arbitrary exercise of power, - an anathema to Article 14 of the Constitution of India, and hence unsustainable in law. The twin reasons assigned by the Joint Secretary for recommending withdrawal of clearance, which has been uninterruptedly continuing since October 1, 2018, are no reasons in the eye of law and cannot legally and validly form the basis for withdrawal; (iii) The IB never advised withdrawal of clearance based only on inputs provided by it but left it to the Bureau to decide as it deemed fit. There was no attempt worth the name to find out any development over and above the IB report, and a mechanical approach is clearly discernible. There was no assessment or evaluation of the facts, much less proper assessment or evaluation, thereby causing a failure of justice at the administrative decision making level. (iv) Absence of any incriminating material in regard to dealings of the Company ever since the report of the IB reached the Bureau was a vital factor, which ought to have been taken note of but completely escaped the notice of the Joint Secretary; (v) The issue of disposal of the fresh request for security clearance had been pending before the Bureau since October, 2018 with the file moving from one desk to another without any tangible result. The judicial conscience of this Court is not satisfied that this is a case where emergent action of the nature under consideration was called for, dispensing with due process of law and compliance with natural justice principles; (vi) Although the subject is claimed by the respondents to be in overall charge of the affairs of the Company, there is not an iota of evidence in relation to his activities post December 10, 2018 and there is not even any hint of contravention of any of the provisions of the security programme since October 1, 2018, i.e., the date of issue of the security clearance; (vii) Concerns about national interest and State security have been urged as strong reasons for non-interference but nothing substantial on that front has also surfaced from the file warranting rejection of the prayer for interim relief; and (viii) There can be no two opinions that national interest must have precedence over any other interest but mere chanting of national interest without any evidence in support thereof would not afford ground for the respondents to resist a claim for interference in acts of illegality, arbitrariness and unreasonableness vitiating the proceedings which, at this stage, appears to be well-founded. 15. It would amount to rupturing and hurting the Courts sense of justice if the patent injustice is allowed to be perpetrated and the cause of justice is not vindicated at this stage. A post-decisional hearing, in the present circumstances, would not serve the ends of justice. 16. Apart from the exercise of power that this Court has found to be illegal, arbitrary and unreasonable, the ground reality as has been pleaded by the petitioners in paragraphs 15 and 17(k) of the writ petition cannot be overlooked. Abrupt closure of the business operations by the petitioners would render hundreds of employees who have been employed at the retail outlets, after the lockdown restrictions have been eased, jobless. The petitioners also have several third party contracts apart from their contractual obligation with the airport operator (MIAL), and may be liable for actions from these parties as contended by them. The inconvenience caused to the passengers, too, cannot be ignored.

Decision:
1[ds]11. The respondents primary and only defence centres around security concerns that are likely to affect fight and other operations at the Mumbai International Airport, should the Company be allowed to continue with its business operations. Cases of the present nature where concerns about national interest and security of the State are raised, as of necessity, call for treading the path of caution and circumspection but not exercise of total restraint, as submitted by Mr. Singh. If Mr. Singhs contention were to be accepted, any matter touching upon national interest and security of the State would remain immune from judicial scrutiny and the Court disabled from examining whether any issue of national interest/State security, at all, is involved or not. It is the duty of the Court while considering complaints of breach of Fundamental Rights to ascertain the truth and veracity of the concerns expressed to serve the cause of justice. This Court would proceed accordingly.12. Issuance of the impugned communication has resulted in withdrawal of clearance that was earlier granted on October 1, 2018 which, in turn, has visited the petitioners with civil consequences inasmuch as business operations within the precincts of Mumbai International Airport, which it was carrying on till October 9, 2018 has come to a grinding halt. It is in the above factual background that this Court is tasked to decide the question of interim relief. If interim relief as claimed in this writ petition were granted by the Court, its effect would substantially be the same as the grant of final relief which has been claimed. The Court has to consider such issue drawing guidance from the decision of the Supreme Court in Deoraj V/s. State of Maharashtra, reported in AIR 2000 SC 1975. Paragraph 12 being relevant is quoted below:12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie caseof a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.13. Having perused the decisions cited by Mr. Singh, this Court is of the opinion that the propositions of law laid down therein do not admit of any doubt but what is of importance is that such decisions turned on the facts before the respective Courts. Blind reliance cannot be placed on precedents merely because of some resemblance on the factual score of denial/withdrawal of security clearance being the matters in issue. In the light of the applicable law, the facts and circumstances that have emerged in the present case have to examined and a decision in sound exercise of judicial discretion delivered either way on the merits of the rival claims.14. The report of the IB and the materials available in the relevant file which Mr. Singh has placed before us have been read. Mr. Kadam has not been given access to the same owing to the concern of secrecy to be maintained in such cases expressed by Mr. Singh but such non- access is not prejudicial to the cause of the petitioners for the view this Court proposes to take, based firstly on Mr. Singhs answer to a query that there is nothing adverse as against the present Directors of the Company and next, resting on this Courts prima facie conclusions as delineated hereunder:(i) Even assuming what the IB has referred to as adverse, appearing on its records as against the subject on December 10, 2018, the same is relevant as on that date but it appears to be of no efficacy for the reason that there were no developments since then in respect of two of the incidents of alleged importance (neither has any FIR been lodged under section 154 of the Code of Criminal Procedure in respect of the calls that were considered suspect nor any chargesheet under section 173(2) thereof been filed by the Central Bureau of Investigation upon completion of investigation into offences under the Prevention of Corruption Act). The contents of the report as on the date the impugned order withdrawing clearance was passed, have to be seen as mere insinuations which the Joint Secretary failed to appreciate while recommending withdrawal of clearance;(ii) Every officer holding a public office has to act in furtherance of public good. This necessarily requires him to act in utmost good faith. Clause (6) of the clearance dated October 1, 2018 would not absolve the respondents of the requirement of recording reasons in the file though, in terms of such clause, they may not be under any duty to communicate such reasons. If power to act without reason is assumed, such power would tantamount to arbitrary exercise of power, - an anathema to Article 14 of the Constitution of India, and hence unsustainable in law. The twin reasons assigned by the Joint Secretary for recommending withdrawal of clearance, which has been uninterruptedly continuing since October 1, 2018, are no reasons in the eye of law and cannot legally and validly form the basis for withdrawal;(iii) The IB never advised withdrawal of clearance based only on inputs provided by it but left it to the Bureau to decide as it deemed fit. There was no attempt worth the name to find out any development over and above the IB report, and a mechanical approach is clearly discernible. There was no assessment or evaluation of the facts, much less proper assessment or evaluation, thereby causing a failure of justice at the administrative decision making level.(iv) Absence of any incriminating material in regard to dealings of the Company ever since the report of the IB reached the Bureau was a vital factor, which ought to have been taken note of but completely escaped the notice of the Joint Secretary;(v) The issue of disposal of the fresh request for security clearance had been pending before the Bureau since October, 2018 with the file moving from one desk to another without any tangible result. The judicial conscience of this Court is not satisfied that this is a case where emergent action of the nature under consideration was called for, dispensing with due process of law and compliance with natural justice principles;(vi) Although the subject is claimed by the respondents to be in overall charge of the affairs of the Company, there is not an iota of evidence in relation to his activities post December 10, 2018 and there is not even any hint of contravention of any of the provisions of the security programme since October 1, 2018, i.e., the date of issue of the security clearance;(vii) Concerns about national interest and State security have been urged as strong reasons for non-interference but nothing substantial on that front has also surfaced from the file warranting rejection of the prayer for interim relief; and(viii) There can be no two opinions that national interest must have precedence over any other interest but mere chanting of national interest without any evidence in support thereof would not afford ground for the respondents to resist a claim for interference in acts of illegality, arbitrariness and unreasonableness vitiating the proceedings which, at this stage, appears to be well-founded.15. It would amount to rupturing and hurting the Courts sense of justice if the patent injustice is allowed to be perpetrated and the cause of justice is not vindicated at this stage. A post-decisional hearing, in the present circumstances, would not serve the ends of justice.16. Apart from the exercise of power that this Court has found to be illegal, arbitrary and unreasonable, the ground reality as has been pleaded by the petitioners in paragraphs 15 and 17(k) of the writ petition cannot be overlooked. Abrupt closure of the business operations by the petitioners would render hundreds of employees who have been employed at the retail outlets, after the lockdown restrictions have been eased, jobless. The petitioners also have several third party contracts apart from their contractual obligation with the airport operator (MIAL), and may be liable for actions from these parties as contended by them. The inconvenience caused to the passengers, too, cannot be ignored.