THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE R KANTHA RAO WRIT PETITION NO. 4950, 7147 AND 7611 OF 2008 COMMON ORDER: (Per Sri Justice B Prakash Rao) Since the similar questions arise for consideration in the above three writ petitions, they are being disposed of together by this common order. Heard Sri Vedula Venkataramana, Shri Dr. P.V.Vijaykumar and Shri Tagore learned counsel appearing for the petitioners in the Three Writ Petitions, Shri Gopal Subrahmaniam, the Additional Solicitor General, Sri A.Rajashekar Reddy, the Assistant Solicitor General, Advocate General for the State, Sri C.Kodandaram, learned counsel appearing for the respondent No.2, the Government Pleader for G.A.D, Shri Atul Sharma and Sri Rajiv Nayar, the Senior Counsel appearing on behalf of the respondent No.4. WRIT PETITION NO. 4950 OF 2008 The petitioner herein claiming to be a journalist and user of the airline services filed this writ petition initially on 6th March 2008 where he sought for Mandamus to declare Section 6 (1) ( c) of the Aircraft Act, 1934 as unconstitutional and void and for consequent direction to declare the action of the respondents purporting to close down the Begumpet International Airport and establish New Green Field Airport at Shamshabad as arbitrary, illegal and violative of Article 14 of the Constitution of India and further consequently to direct them to continue the user of Begumpet International Airport simultaneously with the new green field international Airport. After taking notice by the respective counsel on behalf of the respondents herein at the admission stage itself and filing of the counter affidavit later, the petitioner has filed three interlocutory applications in WPMP.No.7277/2008, WPMP.No.6418/2008 and WPMP.No.7278/2008 for amending the prayers and adding fresh grounds. In WPMP.No.7277/2008 the petitioners sought to amend the writ petition to add a relief for the Writ of Mandamus declaring the notification issued subsequently vide S.O.No.470 (e) published in the Gazette of India on 10-3-2008 for the purpose of restricting the operation of the Begumpet Airport as arbitrary, unconstitutional and ultra vires the provisions of the Aircraft Act, 1934 and the Air Port Authority of India Act, 1994 and the same was permitted by this Court as per the orders dated 14-3- 2008. Similarly, the petitio0ner has come out with other two applications in WPMP.No.8642/2008 and WPMP.No.8643/2008 where once again firstly he sought to amend the prayer and addition of certain grounds to the writ petition where under the petitioner sought for declaration that Section 12 (3) (aa) of the Airport Authority of India Act, 1994 is unconstitutional and violative of Article 14 of the Constitution of India and secondly to declare the concise agreement entered into between the respondents on 20-12-2004 as arbitrary and violative of Article 14 and 19 (ig) of the Constitution of India and thirdly to declare the said notifications issued by the 1st respondent enabling the exclusive operation of Shamshabad Airport with effect from 10-03- 2008 and 23-3-2008 as arbitrary, illegal and unconstitutional. Both these applications were permitted as per the orders dated 8-12-2008. The case of the petitioner taking into account the initial Writ as has been filed and the amended portions is in regard to the challenge made as to the validity of Section 6 (1) ( c) of the Aircraft Act, 1934 and Section 12 (3) (aa) and Section 40 of the Airport Authority of India Act, 1994 apart from the notifications dated 10-3-2008 and closing down the Begumpet Airport and making the Shamshabad Airport as exclusive one for all operation purposes. Therefore, on a reading of the prayers and the attack made is mainly directed against the closure of the Airport at Begumpet and not allowing any operations therein. The grievance is primarily is in two fold; firstly the exclusive monopoly created at Shamshabad Airport and restricting the creation or establishment or operation of any other airport within the area of 150 kilometers as illegal and arbitrary and secondly in closing down the Begumpet Airport to function is more impracticable and causing greater hardship from the point of the users I view of the long distance and resultant inconvenience and further cost towards transport. Thus the writ petition was filed restricting the attack on Section 6 (1) (c) of the Aircraft Act, 1934 and the closure of the Begumpet Airport. On filing of the counter affidavit by the respondents herein, the petitioners having realized the mistaken approach and taking a cue from the sources which have been claimed from their action by the respondents herein, they sought to impugn the validity of the other provisions viz., Section 12 (3) (aa) and Section 40 of the Airport Authority of India Act, 1994. The main submission made on behalf of the petitioner is to the effect that as per entry 29 in the List-I of the 7th Schedule of the Constitution of India the power to legislate in respect of airways, aircraft and air navigation and provisions of aerodromes can be traced for the legislative action, and in view of the specific provisions and the scope and the powers as conferred under the said Act of 1934, it does not cover unlicensed aerodromes and even taking into account the subsequent amendments and the provisions of the Airport Authority of India Act, 1994 where the private airport is sought to be included, the statutory obligation on the part of the respondent to maintain and manage the air traffic does not get effected and which is exclusively vested one with the state. However, the action of establishing the new airport and closing down the existing one appears to be in pursuance of Concession Agreement dted 20-12-2004 in favour of the 4th respondent, which according to the petitioner does not get any support by a statute either for allowing such contract or to close down the existing one. Even otherwise, it is the contention of the petitioner that the restriction or prohibition of having any other airport within the aerial distance of 150 kilometers for a period of 25 years is not only arbitrary, but a monopolistic control, which cannot be sustained in the public interest. Further it is not sanctioned by any statute. Therefore, the contention urged on behalf of the petitioner is that there is absolutely no power, authority or jurisdiction vested with the respondents herein to allow either of creation of monopoly or closing down the existing one. That apart, it is his contention that having regard to the entity of the respondent No.4, which is exclusively a private sector where admittedly the majority of share holding is held by a private person and therefore the airport established by it becomes a private airport, for which again there is no trace of power or authority or jurisdiction under a statute. The Concession Agreement neither is a statutory one nor can constitute as a statute for any source. Therefore, no such private airport could have been allowed, or established to the detriment of an existing, running and most convenient airport of all places in India. Thus, there being no justification either in law or on facts, such a course adopted by the respondents herein in closing down the Begumpet Airport is wholly unsustainable and this Court has ample powers to exercise judicial review and strike down the same. In the counter affidavit filed by one of the respondents herein, it has been reiterated that the decision to close down the existing airport is done after due deliberations at different levels and it was very much in the public domain. It was stated that the idea for such creation of a new international airport at Hyderabad was given birth in February 1995 and the process has started by constitution of a committee by the Government of Andhra Pradesh for selection of site and after several deliberations and toying with the idea either at Hakeempet, Dundigal etc., the site at Shamshabad was found to be more suitable by the Site Selection Committee in September, 1997. This was followed by the commencement of a policy dealing with Green Field Airport. After all these aspects have been gone into by the Committee appointed for special purpose at different levels and authorities concerned, a global tender was invited on 24-12-1999 and a report was submitted recommending all pros and cons including as to the effect of traffic. Thereafter a final report was submitted by the Committee in March, 2000 and ultimately sought for approval by the cabinet, which was done in April 2000. After short listing the bidders, which included the aspects of construction of new airport at Shamshabad and closure of existing airport etc., and the meeting with the short listed bidders, the respondent No.4 was selected as preferred bidder on 31-5-2004and accordingly Concession Agreement was entered into between the Government of Andhra Prdesh and Hyderabad International Airport Limited on 20-9-2004. As per the terms and conditions contained therein such a restriction of not allowing any other airport within 150 kilometers was found in Clause 5.2.1 and also closure of the existing airport. Therefore, it is the contention of the respondent that the writ petition as has been filed and framed suffers from delays and laches and even otherwise there is no illegality or irregularity in the impugned action. Further, it was contended that apart from referring to the various provisions and the rules contained, it was said that the power can be traced to the amended provisions under Section 2 (nn) of Act, 1994. where a private airport was included and the Central Government has been confined with the ample powers under Section 40 of the said Act to give necessary directions. Viewed from within the parameters laid down under the aforesaid provisions and the rules, there is ample authority vested with the government to come out with such proposals and enter into agreement. Hence, there is no illegality and the writ petition totally lacks in merits. That apart, having regard to several new airports coming up at different parts of the country including Delhi etc., since the existing Begumpet Airport will be effected by the traffic congestion it will not be in a position to cater 12 million passengers per annum and is likely to go up to 40 million passengers in the future. Therefore, it was felt desirable that new airport should be constituted and the existing one should be closed. Even other wise, having regard to the policy decision, which has been taken after weighing all pros and cons, and there being no illegality, the same cannot be interfered with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. On a conspectus of the detailed submissions made from both sides, the point which arises for consideration is, firstly, as to whether on the facts and circumstances, the provisions contained in Section 6 (1) ( c) of the Aircraft Act, 1934 and 12 (3) (aa) and Section 40 of Airport Authority of India Act, 1994 is unconstitutional and liable to be struck down? Secondly, as to whether the closure of the existing airport at Begumpet and shifting all the operations to Shamshabad at newly created Green Field Airport is unjustified? All the petitioner’s anxiety is primarily on the grievance of closure of the Begumpet Airport on establishment of new Green Field Airport at Shamshabad and assailing the constitutional validity of the aforesaid provisions, the same is causing greater inconvenience having regard to the distance etc. For convenience sake it is necessary to have a look at the said provision, which reads as follows: “6. Power of Central Government to make orders in emergency.- (1) If the (Central Government) is of opinion that in the interest of the public safety or tranquility the issue of all or any of the following, orders is expedient, (it) may, by notification in the (Official Gazette),- (a)… (b)… ( c) prohibit, either absolutely or conditionally, or regulate the erection, maintenance or use of any aerodrome, aircraft factory, flying-school or club, or place where aircraft are manufactured, repaired or kept, or any class or description thereof; “ It confers powers on the Central Government, to pass orders on the expediency in respect of the matters mentioned in sub-clauses (a) to (d). The reliance by the petitioners on sub-clause (c)’ is for the purpose of showing its parameters and scope. According to them, there exist no emergency nor any public safety or tranquility warrants for closure of existing airport. Therefore, there being no such circumstances nor any recording of the reasons on those lines, the action to close down is without jurisdiction. As stated, in the counter affidavit, the entire exercise is traced to the provisions under the Airport Authority of India Act, 1994. therefore, by amending the writ, there is a total back track on the initial foundation. Therefore, necessarily it calls for considering the provisions under the said Act of 1994. Both the provisions have to be read together having regard to the field coverage, to appreciate the petitioners submissions. By taking us through the entire provisions of both the Acts an attempt was made to show that no such closure provided for or is permissible nor contemplates a situation for the monopoly or such restriction within 150 kilometers is unjustified. It was pointed out during the course of the arguments that the Begumpet Airport could have been continued with same facilities especially intra-state services since even to approach the new airport for air travel causes dearer and take more time. In support, the petitioner after referring to the Entry 29 in List-I of 7th Schedule placed reliance on the definitions of Aerodrome under Section 2 (2) of the Act 1934 and Section 5 (2) (b) of the said Act, which according to the petitioner do not allow any such private. Even the rules framed under these enactments according to the petitioner do not cover no such situation. Under the Act, 1994 there is a reference to definitions of airport, airtraffic service, air transport service and private airport as contained in Sections 2 (b), 2 (d) and 2 (e) and 2 (nn) to see that no such closure is permissible, though the establishment of new one can come within its operation. Therefore, neither the constitutional provisions nor the powers as can be traced or any of these statutory provisions would not permit for such closure, hence the entire action is bad. For a proper appraisal, the above definitions read as below: Section 2 (b):- “airport” means a landing and taking off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as defined in Clause (2) of Section 2 of the Aircraft Act, 1934 (22 of 1934). Section 2 (d):- “ air traffic service” includes flight information service, alerting service, air traffic advisory service, air traffic control service, area control service, approach control service and airport control service. Section 2 (e):- “Air transport service” means any service, for any kind of remuneration, whatsoever, for the transport by air of persons, mail or any other thing, animate or inanimate, whether such service relates to a single flight or series of flights; Section 2 (nn):- “ private airport’ means an airport owned, developed or managed by- (i) any person or agency other than the Authority or any State Government; or (ii) any person or agency jointly with the Authority or any State Government or both where the share of such person or agency, as the case may be, in the assets of the private airport is more than fifty percent. It is to be appreciated that the relevant provision which can cover the issues in question can be found only in the Airport Authority of India Act, 1994. Therefore, it can be safely said that the provisions of the Airport Act, 1934 will not have any application to the questions as sought to be raised. The said legislation was brought in, keeping in view the increased air aviation, both within the nation and international and therefore for a better management and control to be made under one authority and to take care of the situations arising. The airport as defined take in the aerodrome found in Section 2 (2) of the Airport Act, 1934. Under Section 2 (nn), innovatively, private airports are brought within its fold and which also comes under the purview of the authorities connected. The checkered events which ultimately lead for the establishment of the new Green Field Airport and closure of the existing Begumpet one, as mentioned in the detailed counter affidavit filed on behalf of the respondents herein has virtually remained un- controverted. It thus, transpires that a decision to establish the new international airport at Shamshabad and closing down the Begumpet has undergone various ordeals and also processing at different levels. Initially conception for the development of a new international airport at Hyderabad was conceived in February 1985 and there was a nod from the State level to the Government of India to set up an airport under the private section and a team for site selection was asked to be constituted. Accordingly, the State government appears to have constituted the Site Committee on 22-4-1995. There have been several parleys and discussions at this level in choosing the site and the places like Hakeempet, Dundigal, Bonguluru and Nagargul came up for consideration. However, the Site Selection Committee, after making the inspection and looking into the pros and cons, the site at Peddashahpur in Shamshabad mandal was the more suitable for the purpose, in September, 1997. Accordingly, the policy of airports introduced by the Central government in December, 1987 dealing with the Green Field Airports and permitting new such airports as replacing of existing airports. Thus, the making over or changing over from existing into newer one was conceptualized as long back as in the year 1987 itself. Later in July 1988 in consultation with the State it wa decided to constitute another committee to finalise the location and submit the proposal. The said Committee, which was appointed has gone into the aspect and submitted the report noting down the constraints at the existing infrastructure facilities at Begumpet Airprot and which would not be in a position to handle the additional air traffic load and having regard to the suitability, the site at Shamshabad was chosen. This was followed by the issuance of tenders on 24-12-1989 on a joint venture basis. Agreeing such new establishment and closing down the new one thus according to the respondents thus was taken as long back as on 24-12-1989 itself. This had follow up procedure wrangles and approval of the Cabinet in January, 2000. A committee viz., Task Force on Infrastructure was asked to examined the proposal and it submitted a report on 28-2-2000 and this has been come up for consideration before the Ministry of Civil Aviation and the Planning Commission. There has been certain discussions on working out the modalities and on the recommendation of the concerned Ministry of Civil Aviation proposing for setting up new airport at Shamshabad and closing down the existing airport at Begumpet etc., was come up for approval before the Cabinet. Once again, it having undergone the discussions and the consultation at various levels, the Cabinet ultimately approved the said proposal on 13-4-2000 and later the process for tender was taken up and seven short listed bidders were identified, containing all such terms including closure of the existing one. After meetings, both pre-bid etc., the respondent No.4 was selected as a preferred bidder on 31-5-2004. Accordingly, a Concession Agreement was entered into on 20-12-2004, which is a comprehensive one containing various terms and conditions of which the relevant are extracted herein. Clause 5.2.1 reads as follows: “No new of existing airport shall be permitted by Gol to be developed as, or improved or upgraded into, an International Airport within an aerial distance of 150 kilometers of the Airport before the twenty-fifty anniversary of the Airport Opening Date.” Clause 5.2.2 reads further as below: “ No new of existing airport shall be permitted to Gol to be developed as, or improved or upgraded into, an Domestic Airport within an aerial distance of 150 Kilometers of the Airport before the twenty-fifty anniversary of the Airport Opening Date.” Clause 5.5.1 contemplates in the folling manner: “Existing Airport (a) HIAL shall, six (6) months prior to the anticipated Airport Opening Date, notify Gol of the date it expects Airport Opening to occur. (b) From and with effect from the date on which Airport Opening occurs Gol will ensure that the Existing Airport shall n ot be open or available for use for civil aviation operations. (c) From and with effect from the date on which Airport Opening occurs Gol will issue and publish an appropriate notification stating that the Existing Airport is no longer open or available for civil aviation operations (which shall, for these purposes, not include use for Airport Activity at times of national emergency or (at any time) by aircraft owned or operated by or for the Indian Air Force or other Armed Forces of India or Para-Military Forces of India or Police or such other authorities or for transportation of dignitaries by special government owned, leased of hired VIP aircraft) and also for ensuring that the international code (HYD) of the Existing Airport is transferred to the Airport subject to the compliance of the requisite terms and conditions, if any, for the same by HIAL. (d) General Aviation Services (Other than those relating to Commercial aircraft, charter flights, aircraft hired or operated under commercial arrangements) may continue to be provided at the Existing Airport notwithstanding its closure to commercial aircraft pursuant to paragraphs (b) and (c) above.” From the above, it is seen that having regard to the technicalities involved and the expertise undergone through various processes at different levels these clauses were brought in and made part of the agreement. Therefore, it cannot be said that there is any such decision and without any consultation or much a do. Apart from the fact that there is much expertise involved and such exercise done, it certainly constitutes a policy matter, which squarely rests on the expert opinions with several technical aspects. In view of the same, it is very difficult to go into all such detail minute aspects and sit over the correctness or judgment thereon in exercise of the powers under judicial review. I n BISHAMBHAR DAYAL CHANDRA MOHAN VS. STATE OF UTTAR PRADESH[1] the Supreme Court held: “ EVEN assuming that the impugned tele printer message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions; on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225: (AIR 1955 SC 549), Mukherjea, C. J. , dealt with the scope of Arts, 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed : "ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. " It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the