PNP 1 WP997-15.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGNAL CIVIL JURISDICTION WRIT PETITION NO.997 OF 2010 M/s. P.K. Hospitality Services Pvt. Ltd. ..Petitioner. versus Union of India & Ors. ..Respondents. .... Mr. Vinay J. Hegde for the Petitioner. Ms. S.I. Shah for Respondent No.1. Mr. Apurv Harsh i/b M.V. Kini & Co. for Respondent No.2. Mr. Virag Tulzapurkar, Senior Advocate with Mr. Bhavik Manek i/b Wadia Ghandy & Co for Respondent No.3. Mr. Iqbal M. Chagla , Senior Advocate with Mr. Aspi Chinoy, Senior Advocate and Mr. Rahul Narichania i/b Desai Carrimjee and Mulla for Respondent No.4. ..... CORAM : DR.D.Y.CHANDRACHUD & ANOOP V. MOHTA , JJ. 15 November 2010. P.C. : 1. A contract has been awarded to the Fourth Respondent by the Mumbai International Airports Private Limited (MIAL), the Third Respondent in pursuance of which the Fourth Respondent has been allotted an area admeasuring 1036 sq. mtrs. on a minimum monthly guarantee of Rs.2500/- per sq. mtr. per month. The Fourth Respondent has also been allotted two kiosks admeasuring 31 sq. mtrs. PNP 2 WP997-15.11 for which a lump sum payment of Rs.2 lacs per month is to be made for each of the kiosks. In pursuance of the contract that has been awarded to the Fourth Respondent in August 2009, the Fourth Respondent has stated that it has made substantial arrangements including the investment of an amount of Rs.8.85 Crores. Under the agreement, the Fourth Respondent has partnered with international and national brands dealing in food and beverages including Dominos, Baskin Robbins, Mad Over Donuts, Nirulas, Crepeteria and The Coffee Bean and Tea Leaf for running outlets at Mumbai Airport. The Petitioner has challenged the award of the contract in these proceedings under Article 226 of the Constitution. 2. In a similar situation relating to the award of a contract at Delhi Airport, the Petitioner had moved proceedings under Article 226. By a judgment dated 26 July 2010 a Division Bench of the Delhi High Court declined to exercise its jurisdiction under Article 226 only on the ground of delay. In that case, a letter of intent was issued in June 2009. The Petition before the Delhi High Court was filed in March 2000. The Delhi High Court was of the view that the Petitioner which was involved in carrying on business at different airports was cognizant of the award of the contract. The Court accepted the submission of the Fourth Respondent that it had invested substantial sums of money towards creation of infrastructure and had created third party interests in favour of franchisees. The Petition was PNP 3 WP997-15.11 dismissed. In that case, the work had to be completed within a period of one year of which nearly seven or eight months had elapsed. It was common ground that the term of the contract in the case before the Delhi High Court was ten years. A Special Leave Petition against the judgment of the Delhi High Court has been dismissed by the Supreme Court on 18 October 2010. The Petitioner before the Delhi High Court is once again the Petitioner in these proceedings. 3. In the present case, the record before the Court discloses that on 15 May 2009, there were news reports about the award of the contract to the Fourth Respondent. As a matter of fact, the Petitioner has annexed a copy of a news report that appeared in the daily edition of the Financial Express of 15 May 2009. That apart, in the reply filed by the Fourth Respondent it has been stated that the award of the contract is also reported in the press on 14 May 2009 and in a leading travel magazine called The Moodie Report of 15 ‘ ” May 2009. The Petitioner has pleaded in paragraph 11 of the Petition that it was in the second week of January 2010, while browsing “ through the report of the international rating agency viz. Standard & Poor s and Moody s the director of the Petitioners learnt that the ’ ’ Third Respondent had subcontracted and handed over the entire operation pertaining to the Food and Beverages facilities at the CSI Airport to the Fourth Respondent in May 2009. Evidently, the ” PNP 4 WP997-15.11 reference to the report of Standard & Poor s and Moody s in ’ ’ paragraph 11 of the Petition is incorrect because that is only an international financial agency which deals with the creditworthiness of corporate bodies whereas the actual report was published in a travel magazine albeit of 15 May 2009. The Petition was filed only on 1 April 2010. The Delhi High Court in its judgment had occasion to observe that the plea of lack of knowledge urged by the Petitioner was difficult to accept, coming up as it did from a party located at the Delhi Airport and doing a similar business at different airports. As a matter of fact, the Petitioner has also stated in paragraph 19 of the Petition that it had been conducting and managing several outlets at Mumbai Airport till very recently . “ ” 4. The delay in the institution of the Petition has led to a situation where in the meantime, acting on the award of the contract the Fourth Respondent has invested substantial amounts as disclosed in the reply. The Fourth Respondent has stated that it has already invested an amount of Rs.8.85 Crores over and above which a further amount of Rs.2.35 Crores is to be invested shortly thereafter. Arrangements have been made by the Fourth Respondent for tying up with leading food and beverages brands which have both a national and cross border presence. In these circumstances, the reasons which weighed with the Delhi High Court in dismissing the Petition instituted by the Petitioner challenging the award of a contract for PNP 5 WP997-15.11 food and beverages outlets at Delhi must weigh in the balance of this case. The Petitioner is evidently experienced in the line of business to which the contract relates and has conducted similar outlets at Mumbai Airport, till very recently. The contract which has been awarded to the Fourth Respondent has a term of four years of which a period in excess of one year has elapsed. The Fourth Respondent has acted on the basis of the contract and has incurred substantial investments. In these circumstances, though various issues have been sought to be raised in the Petition, this is not a fit and proper case for the exercise of the writ jurisdiction under Article 226, particularly having regard to the view which was taken by the Delhi High Court and which was confirmed by the dismissal of the Special Leave Petition by the Supreme Court. On this ground alone we decline to exercise the writ jurisdiction under Article 226. The Petition shall accordingly stand dismissed. (Dr. D.Y. Chandrachud, J.) (Anoop V. Mohta, J.)