1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.656 OF 2009 Akbar Travel of India (Pvt) Ltd. .. Petitioner Versus Union of India & Ors. .. Respondents Mr.Janak Dwarkadas, Senior Advocate with Mr.Niranjan Pandit i/b. M/s.Joy Legal Consultant for petitioners Mr.R.B.Raghuvanshi, Addl.Solicitor General for respondent Nos. 1 and 2. CORAM : SWATANTER KUMAR, C.J. & S.C.DHARMADHIKARI, J. Reserved on : 5th May 2009 Pronounced on : 10th June 2009. ORAL JUDGEMENT (Per Dharmadhikari, J). . Rule. Returnable forthwith by consent. Respondents waive service. 2. By this petition under Article 226 of the Constitution of India, the petitioner is challenging the order dated 23rd March 2009 2 passed by respondent No.2. 3. This order confirms the conclusion arrived at by the said respondent on 24th February 2009. This conclusion was communicated under cover of a letter dated 24th February 2009 addressed to the petitioner. 4. Petitioner carries on business of Ground Handling, transportation at the Airports under contracts with various Airlines such as Air India etc.. By virtue of these contracts, petitioner provides vehicles for use of Airlines and for transportation services of their cabin crew and other staff as well as passengers from the Airport Terminals to the Aircraft. The petitioner also provides vehicles for maintenance staff in the Tarmac area of Airport. 5. It is the case of the petitioner itself that none of the employees can enter Terminal 3 Building or Tarmac area without Airport Entry Pass issued by respondent No.2. The entire procedure for issuance of such pass is set out in para 5(c) of the petition. The said para reads as under:- "5(c) The petitioner states that the procedure for applying for the Airport Entry Pass is as under:- (i) The Airline invites bids from contractors for supplying transport services for their staff and crew. On the basis of the bids received, the Airlines appoint the contractor and execute purchase agreements with the said contractors specifying the number of cars required and the tenure of the Agreements as well as the rates. (ii) The Contractor has to take the 4 said contract and fill in the Form with the respondent No.3 and submits the various documents including the police clearance certificate of each of its employees for Airport Entry Passes for the individual employees employed with the company. The police clearance is obtained after the police officer of the concerned police station attends the residence of the individual employee and verifies the credential of the employee. After verifying the police clearance certificates granted by the police and the purchase orders with the Airlines, the Airport Authority i.e. respondent No.3 submits its report to the respondent No.2 i.e. Bureau of Civil Aviation. The petitioners fill in the form and submit the contracts by making the necessary applications to respondent No.2 i.e. Bureau of Civil Aviation for Airport 5 Entry Passes. In cases where Airport Entry Passes are already issued the same are submitted for revalidation. After respondent No.2 verifies the applications and Agreements executed with the Airline and the various documents submitted by them including the police clearance certificate the passes are renewed. The police clearance certificate is only obtained after the police officer of the concerned police station visit the house of the employee and satisfy themselves that the said employee is not a threat to the security of the Country. They renew the passes for a further period as per the requirement. In this manner, every individual employed with the petitioner has an individual security entry pass in his name alongwith his photograph which is only issued after the verification is made and police clearance certificate is 6 issued. If any of these individuals in whose name a pass is issued resigns from the company, the said passes are cancelled and submitted to the Airport and the Bureau of Civil Aviation. In this manner, it is clear that every employee of the petitioner has a valid Airport Entry Pass which is issued after all due verification and submissions of the necessary documents including police clearance certificate." 6. It is stated that petitioner employs about 128 persons and each and every employee has been issued Valid Airport Entry Pass. It is undisputed that the petitioner also applied and was awarded contract for providing services like Car Rentals etc. The petitioner was allotted space for carrying out these activities within the Airport premises and it is the case of the petitioner that the space allotted was inside 7 Airport Terminal, in some cases. For the purpose of such allotment and even for carrying out activities therefrom the entry passes are issued in the same manner as described above. The Car rental contract is being operated after a licence is issued to the petitioner and the licence in the instant case was for two years with effect from 16th September 2008 to 15th September 2010. The petitioner has paid licence fees and has deposited huge sums as security deposit. 7. It is stated that the contract for Tarmac Transportation at Chhatrapati Shivaji Airport, Mumbai is in favour of petitioner up to 30th September 2009. Petitioner has also an agreement with the Airport Authority for providing car rental services at 1A-Chhatrapati Shivaji International Airport which was valid upto 31st March 2009. The petitioner has various contracts for operating a Money exchange counter, Inter State Coach service and the details of the same 8 are also set out in para 5(I)(k). Petitioner states that it has also paid gross turnover charges to the State of Maharashtra. 8. It is the case of petitioner that security passes were originally issued to them in 2001 and 2003 and were renewed from time to time. The security passes are valid for a period of 4 to 5 months and are automatically Renewed on application being made and necessary documents being submitted so also police clearance certificate being issued. It is stated that the petitioner has to fill in the form as stipulated on the basis of which security passes are renewed. A copy of sample form and Renewals, from time to time, is annexed to the petition. 9. It is alleged that the petitioner was shocked and surprised to receive a letter dated 24th February 2009, inter alia, cancelling security clearance granted to them. That was on 9 the alleged grounds of security verification being found adverse to the petitioner. The petitioner was called upon to submit all Airport Entry Passes within a week. Annexure B is a copy of this letter. It was alleged that no reasons have been assigned for suspending the security clearance. Further, no opportunity was given to the petitioner of being heard before the cancellation was effected. The petitioner has alleged that it has pending contracts and they cannot execute the works thereunder without Airport Entry passes. Thereafter, it is alleged that the passes were issued after due scrutiny of the activity undertaken by the petitioner and also verification of necessary details pertaining to their Employees. In these circumstances, such cancellation is highly prejudicial to their interest and they are vitally affected by the same. Consequently, petitioner filed W.P.Stamp No.420 of 2009 in this Court and the said petition was placed before the Division Bench 10 consisting of one of us (Hon’ble Chief Justice) and time was sought to produce necessary records. The necessary records were produced and after hearing both sides, this Court on 12th March 2009 made the following order:- "5. The record which has been produced before us indicates that there are inputs with regard to the activities of the petitioner which has two directors who are spouses. It is not necessary for us to either comment on the merit or otherwise of those inputs. The argument that the remarks, if any, are against the firm and therefore, are inconsequential because the individual employees of the petitioner are subject to police verification, is again an argument without any merit. Firstly, in terms of Rules 90 and 92 of the Aircraft Rules 1937, ground handling services can be 11 given to a licensee or any agency which has the security clearance of the Central Government. As the Central Government expressed some reservations, limited work from the petitioner is allowed. The individual employees who receive police verification are obviously employees of the petitioner and they hardly have any independent existence dehors the petitioner company itself; the contract/ work has been awarded to the petitioner company and not to the individual workers. Thus, we are also not impressed by the second contention raised on behalf of the petitioner. Lastly, we will deal with the contention raised on behalf of the petitioner in relation to violation or the principles of natural justice. It is true that the maxim of audi alteram partem is applicable where the administrative or executive authorities 12 pass orders which have civil consequences on the rights of individuals. It is a fundamental right of a citizen to carry on business subject to such restrictions as are permissible under law and this right can only be taken away by acting in accordance with law and adherence to the maxim of audi alteram partem. Admittedly, no pre or post decisional hearing was granted to the petitioner in relation to the passing of the impugned order dated 24th February 2009. The language of the impugned order itself is not very specific and the petitioner was not actually aware of what activities have been adversely commented upon by the respondents. The fact of the matter is that the order dated 24th February, 2009 has been passed in violation of the principles of natural justice. It was expected of the respondents to call upon 13 the petitioner to explain his position before the order was passed. Even after the order dated 24th February 2009 was passed, the respondents have on their own extended the period by a few days for the petitioner to continue with the operation of the ground handling activities. However, at the subsequent stage they have now withdrawn the said activities from the petitioner though earlier it was so done at the request of Air India. If it was such an emergent security threat, then it was immaterial which was the company requesting the government to extend the period. The security of the airport can hardly be compromised. Be that as it may, it is not necessary for us to deal with an decide this contention on merits in view of the fact that we propose to direct the respondents to grant a post decisional hearing to the 14 petitioner and affirm or withdraw the order dated 24th February 2009. In the peculiar facts and circumstances of the case, we cannot direct furnishing of the material shown to the Court, to the petitioners before hearing. However, it will be open to the respondents to put to the petitioner the gist or conclusions of the report during the course of the hearing which the petitioner will be at liberty to explain. Our direction will not be treated as a direction for disclosing the source of information or the methodology for collection of such information to the petitioner." 10. We have reproduced the relevant para of the said order as the same has some bearing on the controversy now raised before us. 11. It is alleged that after the matter was 15 placed before this Court and the directions as aforesaid were issued, the petitioner was called for a post decisional hearing on 23rd March 2009 and an intimation in that behalf was issued. Petitioner pointed out to respondent No.2 that the order of this Court makes it clear that respondent No.2 should give gist of the conclusions of the report in advance soas to enable the petitioner to keep all the clarifications ready at the time of hearing. Instead of complying with the requisitions in this letter, respondent No.2 by a letter dated 20th March 2009 stated that the gist is conveyed and i.e. "Security Verification has been found adverse". Thereafter, it is alleged that petitioner’s representative and their Advocate attended office of second respondent and what allegedly transpired at the said hearing/ meeting has been set out in para 5 of this petition. In these circumstances, without addressing the request for supplying the gist of the 16 information, the Commissioner communicated the impugned order by which he affirmed his earlier conclusion. It is this order, a copy of which is annexed as Annexure A to this petition, which is under challenge before us. 12. Mr.Dwarkadas, learned Senior Counsel appearing for petitioner took us through the petition and the annexures including the impugned order and contended that once a concluded contract is arrived at between the entities referred to in the petition and the petitioner, and the said contract is enforceable and executable then, the petitioner cannot be prevented from discharging its obligations thereunder. All that is required is issuance of Security Clearance/ Gate pass for entering the specified area. That was also issued and renewed from time to time. There is no question of the said clearances being withdrawn all of a sudden and without any prior opportunity to the 17 petitioner. In all fairness, Mr.Dwarkadas submitted that the petitioner did not challenge the earlier order and direction of this Court and was satisfied with the conclusion of this Court to grant a post decisional hearing. However, the order in that behalf is clear. He submits that the order very categorically holds that no pre-decisional hearing was granted. He submits that this Court came to a conclusion that the order was passed in violation of the principles of natural justice. He submits that this Court has observed that despite the order dated 24th February 2009, the period of the clearance was extended for a few days by the respondents themselves, so that the ground handling activities can continue. Emphasising that this Court had observed that it will be open to the respondents to give to the petitioner the gist of the conclusions of the report during the course of hearing and the petitioner was given an opportunity to meet the same, it is contended by 18 Mr.Dwarkadas that the earlier order and direction has been misinterpreted and misconstrued by the respondents. He submits that the gist of the information was never supplied. He has invited our attention to the impugned order and contended that the authority cannot sit in judgement over the Court’s order. If this Court has directed that respondents should furnish the gist of the information, then, denial of the same on arbitrary and fanciful grounds would vitiate the entire order. He submits that the hearing was a complete farce and empty formality. The second respondent has committed breach of the order and direction of this Court and in fact has acted in utter disregard of the same. He submits that no reasons are assigned to reach the conclusion that has been arrived at in the impugned order. There has not been a single incident when on account of activities of the petitioner, there was any threat to the security of the Airport or to any Airline. The antecedents of the petitioner are 19 such that none can reach a conclusion that the petitioner would indulge in any acts which are subversive to the interest of the country or pose a danger or threat to its security. In such circumstances and when the petitioner is permitted to operate car rentals, money exchange counter, coach service from within the Airport premises, then, one fails to understand as to why ground handling activities cannot be carried out and only the permission in that behalf has been abruptly withdrawn. 13. The petitioner has good reputation as it is in business for the last 10 years. It has a turn over of Rs.7.3 Crores. The petitioner pays a sum of Rs.40 lakhs to Airport Authority towards charges and licence fees. Thus, there has been no doubt with regard to the credentials of the employees and the standing of the petitioner and that is the reason why renewals were effected from time to time. Now shockingly and 20 surprisingly, the permissions have been withdrawn and this violates the mandate of Article 14, 19(1)(g) and 21 of the Constitution of India. He submits that grave and irreparable loss, harm and injury will be caused to the petitioner as its reputation in the market will be tarnished and considerably damaged. For all these reasons the impugned order deserves to be quashed and set aside. 14. Mr.Dwarkadas has relied upon the following decisions in support of his contentions. (1) A.I.R. 1975 S.C. 865 (The State of Uttar Pradesh Vs. Raj Narain and Ors.) (2) A.I.R. 1982 S.C. 149 (S.P.Gupta & Ors. Vs. President of India and Ors.) 21 15. On the other hand, Mr.Raghuvanshi, learned Additional Solicitor General contended before us that the impugned order has been passed in compliance with the directions of this Court to grant post decisional hearing. The post decisional hearing has been granted. The petitioner was present thereat. The petitioner knew about the controversy. The order passed by this Court nowhere mandates disclosure of the gist as falsely contended. The order clearly observes that in the peculiar facts and circumstances of this case the Court cannot direct furnishing of the material shown to it, to the petitioner, before the post decisional hearing. The order states that it will be open for the respondents to put to the petitioner the gist of the conclusion of the report during the course of the hearing which the petitioner will be at liberty to explain. The Court has clearly observed that the order cannot be treated as direction for disclosing source of information or 22 methodology for collecting this information. If this is the nature of the order and direction, then, there cannot be any complaint of violation or breach of principles of natural justice. There is no question of any breach or violation of the order of this Court as well. There is no question of misconstruction or misinterpretation of the order, leave alone a deliberate one. This Court does not supervise the activities such as ground handling, at the terminal or tarmac as if it is an Expert body. It cannot substitute its views and when there is a risk to the security and the acts are subversive thereto, then, there is no question of any interference under Article 226 of the Constitution of India. He submits that this is not a case of any fundamental rights of the petitioner being violated or defeated. Petitioner’s contracts for all activities within the specified areas are continuing. They are not prohibited from providing the services enlisted in the contracts. However, they cannot insist 23 upon ground handling activities being undertaken and performed because there is no permit to do so. These activities are admittedly depending upon issuance of clearance and permits. These clearances and permits having been withdrawn the said activities cannot be undertaken. He submits that once there is an adverse security clearance, then, the authorities were right in restricting the activities and area of operation of the petitioner. The petitioner has no fundamental right for such insistence and it is not a part and parcel of their right guaranteed by Article 19(1)(g) of the Constitution. In any event, exercise of that right is depending upon reasonable restrictions and there is no challenge to the power or authority of the respondent Nos. 1 and 2 in insisting upon a clearance or permit before entry to the terminal or tarmac area. Ground handling activities are subject to the permission being issued and once it is withdrawn, then, there is no permission and the activity 24 must stop immediately. More over as observed in the earlier order of this Court, Security of the Airport can hardly be compromised. This is more so about the Airport at Bombay. 16. He further submits that the petition is not maintainable because this Court cannot re-appreciate or re-appraise the material before the Authority. If the authority is of the view that the ground handling activities cannot be permitted on account of the adverse security report, then, that opinion or conclusion cannot be substituted or set aside by this Court. Even if another view is possible, this Court cannot interfere in writ jurisdiction. More so, when security and interest of the airport and the installation thereat are at stake. Mr.Raghuvanshi has invited our attention to the affidavit in reply and the D.G.C.A.circular No.4 of 2007. He has also invited our attention to Rule 90 and 92 of the Aircraft Rules, 1937. In 25 support of his contentions, Mr.Raghuvanshi relies upon the following decisions:- (1) (1984) 2 S.C.C. 488 (Bishnu Ram Borah Vs. Parag Saikia and Ors.) (2) Wasiuddin Ahmed Vs. Dist.Magistrate (1981) 4 S.C.C. 521; (3) Jagdish Yadav Vs. Union of India (105 (2003)DLT 359) (4) Maharashtra State Board of Secondary & Higher Education Vs. K.S.Gandhi and Ors. (1991) 2 S.C.C. 716) 17. For properly appreciating rival contentions, it would be worthwhile noticing that the petitioner does not challenge either the Rules or the power and authority of the 26 Commissioner of Security (Civil Aviation). The petitioner does not dispute that entry into public aerodromes is restricted and not free. Rule 90 of Aircraft Rules 1937 states that no person shall enter or be in the terminal building of any Government aerodrome or public aerodrome or part of such building or any other area in such aerodrome notified in this behalf by the Central Government unless he holds an admission ticket issued by the Aerodrome operator or an entry pass issued by the Commissioner of Security (Civil Aviation) or any other officer authorised by him in this behalf. Sub-Rule (2) makes it clear that no person shall, without permission in writing by general or special order, of the Central Government or any officer authorised in this behalf shall enter or remain or cause any other person to enter or remain in the movement area or cause to be thrown any animal, bird or property or object of any nature whatsoever in the movement area and further straying of any 27 Animals in his possession or control is also not permitted. The operation of any vehicle in the movement area is also not permitted except by a written permission as above. It is no doubt true that this sub-rule does not apply to passengers or any person who is engaged on regular duty at a Aerodrome and holding photo identity card issued to him by the appropriate authority. The power to refuse admission into the terminal building or the movement area or requiring any such person to leave the same is also not in question. 18. Rule 92 deals with Ground Handling services. The ground handling service provider can undertake activities but the same are subject to the security clearance of the Central Government. 19. The D.G.C.A. Circular dated 28th September 2007 states that the Bureau of Civil Aviation Security may impose such restrictions as 28 may be necessary in this behalf on the ground of security. There are certain instructions issued by the Bureau as contained in Annexure C to the circular and such other Altered, Modified or amended Instruction can be always issued. In addition to the BCAS Circulars, Rules, other directions and orders have also to be followed. 20. The Circular No.4 of 2007 issued by the Bureau is more specific and states that an Aircraft Operator shall enter into contract with the ground handling agencies only after prior security clearance to these entities is obtained from D.G.C.A. and there is an approval from Airport Operator. It reads as under:- "D.Circular No.4/2007 issued by BCAS "iii. Aircraft operator shall enter into contract with the ground handling agencies only after prior security 29 clearance to these entitles from the BCAS and approval from the AAI/Airport Operator. iv. In case AAI/Airport Operator or Aircraft Operator intend to appoint a new ground handling agency, the details of such agency is required to