9911796707
TMI Blog2008 (12) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... hs of the judgment, it is one of the important aspect which should have been weighed in the mind of the selection committee of the third respondent keeping in view that it is discharging public functions and the premises is a public premises. Therefore in the concession agreement, it has been specifically stated that Chapter V(A) of the A.A.I.A Act is applicable to the premises in question to follow the procedure for eviction of unauthorized occupants of the Airport availing the provisions are on the lines of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is made applicable to the premises of the third airport which is being managed by BIAL is one of the strong and powerful indicator that airport premises is a public premises in terms of the definition of Section 2(c) of the PP(EOUC) Act and the BIAL is managing it, therefore it is a State which we have already answered while answering issue No. 1 to 3 by assigning valid and cogent reasons with reference to the provisions of the Act and law laid down by the Apex Court in catena of cases referred to supra. Therefore, the decision of the Supreme Court in Ashok Marketing Ltd. v. Punjab National Bank [ 1990 (8) TMI 393 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent to offer their financial bid for the purpose of establishing retail duty free shop in the Airport run by BIAL on such terms and conditions certainly it would have offered best price that could have increased the percentage of revenue to the second respondent-A.A.I out of the gross income that would have been earned by the BIAL. Issuing tender to the 5th respondent as already stated is not only arbitrary exercise of power by BIAL but also lacks transparency. Matter was not decided by the Board of Directors as stated by the second respondent in its affidavit at para 9 referred to supra and not given opportunity to the 9th respondent though it was in the short list, it has submitted its tender as we have to answer that as held in the Reliance Company s case referred to supra and also in other cases referred to supra, short listing and awarding of contract in favour of the 5th respondent is not only arbitrary, the same is against the public interest but also is at the instance of the 4th respondent Therefore, we have to answer that in discharging its public duty, it has not followed the well settled principle of law in awarding contract in favour of 5th respondent which is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Retail and Duty-free shops in the BIAL as stated supra is arbitrary, discriminatory and violative of Article 14 of the Constitution of India and direction to respondent No. 3 to issue tender documents and the amended prayer to quash the tender allotted in favour of 5th respondent, urging various facts and legal contentions. 2. Brief foots and rival legal contentions are referred to in this order with a view to appreciate the contentions and to answer the contentious issues that would arise for our consideration and determination. In order to support and foster rapid development of Bangalore, Government of Karnataka and the Airports Authority of India (in short referred to as 'A.A.I') initiated a Green Field Project for the new BIAL, which is a Public Limited Company. It is a consortium of Karnataka State! Industrial Investment Development Corporation (hereinafter in short referred to as KSIIDC), A.A.I, Unique-Zurich Airport, Larsen & Toubro India Ltd., and Siemens Projects Ventures, GmbH. It is operating under the control of the State in particular under the control of the second respondent-A.A.I, the BIAL discharges duties of a public nature. 26% of the share is held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Union of India and Government of Karnataka have extended various benefits by way of concession in favour of BIAL keeping in view the nature of project undertaken by it. Therefore, it is stated that BIAL is a 'State' within the meaning of Article 12 of the Constitution of India and same is amenable to writ jurisdiction of this Court under Article 226 Constitution of India. It is further stated that BIAL being the public body is discharging duties of a public character, for this reason also it is amenable to the writ jurisdiction. Hence it is required to oblige and act fairly, reasonably in a non-discriminatory manner. 4. The BIAL has published an invitation on 26/7/2006 seeking for E.O.I in setting up Retail Duty-free business and Food and Beverage business within the Airport. The persons who are interested to obtain concession contracts to set up the duty free retail business shops inside the airport were invited to put forward their proposals. It is stated by the BIAL that it is interested in granting concession contracts on revenue sharing basis and it would in turn obtain revenue from a person to whom a duty-free retailing contract would be awarded. The revenue payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awi, Burundi, Srilanka and in India. The said company has offices in Jebel Ali Free Trade Zone in UAE as well as in Nairobi, Kenya and Dar-Es-Salam (Tanzania). 6. It is its further case that it has well established logistic centers with warehouses at Mumbai, Chennai and New Delhi, which act as distribution center for all surrounding locations and it has got a strong supply chain to international logistic center in Jebel Ali, UAE which helps it in getting container loads or assorted supplies of any product in the least possible time. 7. The petitioner entered into consortium arrangement with A.E.R.I, which is a company incorporated under the laws of Ireland with a view to obtain contract from BIAL for running duty-free retail business shops in the international airport. The said company is a dedicated international division of the Dublin Airport Authority, which was first to start duty-free retailing business in the world and it was the first to find duty-free shop at Shannon Airport at Ireland in the year 1947, it has got 60 years of experience in the trade. Its retail business turnover for 2006 was in excess of 900 million US$. It operates in four geographical locations namely A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riteria to be met by persons interested in submitting the tenders. The criteria cannot be vague and it ought to have been applied objectively and it should have been communicated to the prospective bidders so as to find out whether they would be eligible or not. When such criteria is not laid, the very pre-qualification itself could be manipulated arbitrarily applying so in favour of certain players in market and exclude certain other players. In the absence of the criteria spelt out by the BIAL for the purpose of short-listing, it is not valid as it gives arbitrary discretion to pick and choose persona thereby depriving eligible competitive participants to get the contract awarded. As already stated supra, expression commitment to India and understanding of the Indian Consumer as mentioned in the tender invitation obviously means and refers to experience in handling duty-free retail business in India. As such duty-free retail business is quite different from domestic retail business. 10. The E.O.I of respondent No. 5 who is a successful contractor did not meet broad criteria as set out in clause 3.2 of the invitation as the E.O.I submitted by it indicates that it has been a partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity is a shareholder in the BIAL owning 17% of the shares. The 4th respondent is the person responsible for the tender process who was an employee of the Zurich Airport Authority till he was appointed in BIAL. He was brought into BIAL as per the recommendation of 4th respondent- Zurich Airport, it is apprehended that the 4th respondent deliberately planned to bring the Companies based in Switzerland with whom he had opportunity to work earlier into the Indian market, this was the reason beyond for the BIAL for not being transparent in the tender process for awarding contract. The 5th respondent was earlier a unit of SAIR, which is also owned by Zurich Airport It carrying on duty-free retail business at Zurich Airport It has absolutely no experience with the Indian market in duty-free retail business, still it has been short-listed for issuance of tender documents to participate in the process of awarding contract in question. Therefore, this is a concluded case of extraneous consideration. The 5th respondent has been favoured on account of the above factors, thereby respondents 3 & 4 have thus discriminated the petitioner and the action of the 4th respondent is tainted with legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; or instrumentality of a State or a body discharging public duties for the purpose of Article 12 of the Constitution of India to exercise power of this Court under Article 226 of the Constitution of India. Further it is contended in the statement of objections that as per the request made by the Managing Director of the petitioner, the 4th respondent met him on 12/9/2006, which fact is established by E-Mail sent by the business development and marketing Manager of A.E.R.I, which is venture partner of the petitioner with whom it submitted E.O.I to BIAL. In the said E-Mail it has made it clear that A.E.R.I respects the decision taken by BIAL regarding its exclusion of the consortium consisting of the petitioner. Therefore, the petitioner would have no locus standi to file this writ petition and further it is stated that AERI-partner of the consortium is not a petitioner in this petition, for this reason also the petitioner alone has no locus standi to question the action of the BIAL. Further it is stated that the writ petition is also liable to be dismissed on the ground of suppression of material facts in non-disclosure of material documents. It is further stated that on perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the day-today affairs of the BIAL. Having regard to the right of the management of the airport under the C.A, the activities of the BIAL partake the character of Government Functions such as Customs, Immigration, Quarantine, Communication and Navigation services to be carried out by the relevant authority namely, (GOI, AAI, Director General of Civil Aviation, Bureau of Civil Aviation security etc.,) only and not by BIAL. As per Part-IV-Financial Provision of C.A, sub-clause-10 of Article 10 authorizes BIAL to collect airport charges and other charges in the nature of fees but it has no authority to collect tax. Under Article 10.4 of C.A, BIAL itself is liable to make payment of tax under relevant laws applicable to it. Therefore, it is submitted by it that, it does not exercise any government or sovereign functions as per the C.A in its favour under the agreement. As per Clause-18.13.1 and 18.13.2 of Article. 18 of the C.A, it stipulates that execution of the agreement constitutes private and commercial acts rather than public or governmental acts and no sovereign immunity will be claimed by the GOI in respect of proceedings that may be brought against it in relation to C.A. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf on the ground of its maintainability. 19. The BIAL further submits that in the C.A, it is entitled to make available duty free shops and other amenities in the airport. In this view of the matter, it had called for E.O.I by 26/7/2006 in respect of five packages, which consisted of (i) retail package and (ii) Food and Beverage (F & B) Packagel, F & B Package 2 and F & B Package 3. Clause 2.4 of the EOI deals with the aforesaid aspects. Under clause 3 of the EOI selection process was determined. In clause 3.1 of EOI it is made very clear that the second phase award process was being adopted under clause 3.2 of E.O.I that maximum five (5) parties would be short-listed after receiving EOIs. It is its case that petitioner was one of the parties who submitted its EOI in relation to retail package-1 which consisted of duty-free in the international departure and arrival zones, all retail outlets in the international departure zone, At the time of submitting EOI, petitioner did not raise an objection about clause 3.2 of E.O.I with regard to short-listing of maximum five parties. Therefore, it is not open for it to turn round and object for the same in this writ petition. 20. The BIAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dling company, Swissport from Switzerland as also another ground handling company based in Zurich, Jet Aviation, both applied for a concession and were not selected. According to respondents 3 & 4 evaluation is done by the BIAL and not by the 4th respondent alone and further the 4th respondent submits that be was not in favour of any company as alleged by the petitioner and the mere fact that he was an employee of Zurich Airport Authority cannot be a ground for casting aspersions against him. In fact, Zurich Airport never had any share in the 5th respondent company or in any company nor it has any sister company and it never had any major equity ownership in Zurich Airport. The 5th respondent since 2001 is fully owned and controlled by two Italian public listed companies, therefore the 5th respondent is not even a sister company. Further the 4th respondent submits that, there are no extraneous considerations involved in the tender process as alleged, he being Chief Commercial Officer of the BIAL, his only aim and goal is to set up airport of international standard by getting in the best players in respective sectors. Therefore, it is stated that the allegations made against the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner were considered and granted, the entire process of tender and exclusion of award contract would result in great hardship, extensive loss and prejudice not only to the 5th respondent, but also to BIAL, at it would have to pay huge penalties to the first respondent in the event of non completion of the international airport within the scheduled time and also City of Bangalore and India as a country would be put to shame in the international scenario, if, the project is not completed. 24. The counter on behalf of the respondent No. 9 is filed inter alia contending that although five parties were short-listed after stage of E.O.I, only two parties i.e. the 5th respondent and the answering respondent submitted final bids, after submission of bids, contract was finally awarded to 5th respondent by BIAL by rejecting the bid of 9th respondent. It is further stated that it is given to understand that the bid submitted by the said respondent was rated next after the bid submitted by the 5th respondent which was declared successful. Further it has also found fault with the criteria followed with regard to evaluation of E.O.I, as it does not prescribe intelligible criteria. With regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing without assigning reasons for ignoring the petitioner is legal and valid and finally awarding contract in favour of 5th respondent is legal and valid in law? 8. Whether the action of BIAL the award of contract in favour of 5th respondent has affected public interest? 9. Whether the denial of opportunity to offer financial bid to the 9th respondent requires interference by this Court? 10. What Order? Point Nos. 1 to 3: 26. These two points are inter-related and therefore they are considered together. Learned Senior counsel Mr. Vinod Bobade, for the petitioner submitted that the functions and duties entrusted to BIAL to establish the airport under Section 12(3)(aa) of the Airports Authority of India Act, 1994 (in short referred to as 'A.A.I.A' Act) to regulate air traffic service and transport service as defined under Section 2(d) & (e) of the A.A.I.A Act are statutory functions of 2nd respondent. He placed reliance upon the Constitutional Bench decision of the Apex Court reported in 1973(1) SCC 421 in the case of Sukhdev Singh v. Bhagatram, three Judge Bench decision of the Apex Court reported in in the case of Som Prakash Rekhi v. Union of India and Anr. and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly the shareholding agreement entered into between the Consortium members of BIAL and KSIIDC, S.S.A dated 20/1/2005 and C.A dated 5/7/2004 between the first respondent/Union of India- RI, Civil Aviation and BIAL. On the basis of the lease deed entered between KSIIDC and BIAL dated 30/ 4/ 2005 to establish a private airport at Devanahalli to assist the 2nd respondent to render technical, financial and other assistance in terms of the lease deed and the concession agreement. The object of establishing BIAL and the nature of the project are explicitly mentioned. Though it is an airport in terms of Section 2(b) of the A.A.I.A Act, lease of land is permissible under Section 12-A(1) of the A.A.I.A Act by the KSIIDC in favour of BIAL to establish international airport with a view to provide facilities and render assistance to the airport authority for operating the airport. Having regard to the nature of functions required to be carried on by the airport at Bangalore on the basis of the agreements referred to supra, providing a duly free shop to the customers by the BIAL in the Airport cannot be termed that it is discharging public functions/duties, which are statutory in nature as it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of unauthorised occupants from that premises, it cannot be construed by this Court that the functions of BIAL are that of public duties/functions. Therefore, it is contended by the learned Sr. counsel that BIAL is not a State as defined under Article 12 of the Constitution of India. 30. Sri V. Lakshminarayana, learned Counsel for 9th respondent supported the submissions made on behalf of the petitioner, he has justified the maintainability of the writ petition by inviting our attention to paragraphs 162 to 169 of Unnikrishnan's case [1993]1SCR594 and contended that the agreements entered into between the State of Karnataka - BIAL, KSIIDC - BIAL and Union of India - BIAL are for rendering statutory fundamental duties by establishing the international airport at Bangalore. The functions that are carried on by BIAL in the international airport on the basis of those agreements are supplementary to the fundamental statutory duties required to be discharged both by first and second respondent. Therefore, BIAL is a State amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India. 31. with reference to the above rival legal contentions urged by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons, mail or any other thing, animate or inanimate, whether such service relates to a single flight or series of flights; Section 2(nn) reads: 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 agency as the case may be in the assets of the private airport is more than fifty per cent. 12. Functions of the Authority: (1) Subject to the rules, if any, made by the Central Government in this behalf, it shall be the function of the Authority to manage the airports, the civil enclaves and the aeronautical communication stations efficiently. (2) It shall be the duty of the Authority to provide air traffic service and air transport service at any airport and civil enclaves. (3) Without prejudice to the generality of the provisions contained in Sub-sections (1) and (2) the Authority may: (3-aa) establish airports, or assist in the establishment of private airports by rendering such technical, financial or other assistance which the Central Government may c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cargo handling, setting up of joint ventures for the discharge of any function assigned to the Authority; (4) In the discharge of its functions under this section, the Authority shall have due regard to the development of air transport service and to the efficiency, economy and safety of such service. (5) Nothing contained in this section shall be construed as: (a) authorizing the disregard by the Authority of any law for the times being in force; or (b) authorizing any person to institute any proceeding in. respect of duty or liability to which the Authority or its officers or other employees would not otherwise be subject. (iii). As per Section 4 of the Aircraft Act, 1934 (in short referred to as 'A.C' Act) the first respondent has got power to make Rules as per the 1944 convention dt.7/12/1944 in relation to international civil aviation signed at Chikago. Section 5A of A.C Act confers powers upon the Director General of Civil Aviation or other officer specially empowered in accordance with the provisions of the Act to any person/a engaged in aircraft operations or using any aerodrome in the interest of security of India or for securing the safety of aircraft op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament or by the State including those vested with the duty to make decisions in order to implement those laws. (vi). The Apex Court in Sukhdev Singh and Ors. v. Bhagaram Bardar Singh Raghuvanshi reported in: (1975)ILLJ399SC after referring to its various decisions and Halabury's Laws of England has held thus, the relevant paras reads as hereunder: 39. A public authority is a body which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. Such an authority is not precluded from making a profit for the public benefit. (See Halsbury's Laws of England 3rd Vol.30 paragraph 1317 at 682). 82. Part IV of the Constitution gives a picture of the services which the State is expected to undertake and render for the welfare of the people. Article 298 provides that the executive power of the Union and State extends to the carrying on of any business or trade. As I said, the question for consideration is whether a public corporation set up under a special statute to carry on a business or service which Parliament thinks necessary to be carried on in the interest of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the meaning of Article 12 if it is an instrumentality or agency of the government and that would have to be decided on a proper ascertainment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be deckled, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of expression 'authority' in Article 12. (viii) The Seven Judge Bench decision of the Apex Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Technology case reported in (2002) 3 SCC 111 after considering its various decisions has held that the functions/duties to be performed by the authority come within the purview of 'State' under Article 12 of the Constitution and has also laid down the law on Article 12 on 'centers of power' and the cause for expansion of 'state' at paras 6, 10, 15, 16, 40, 41 and finally it has summed-up at para 96 which relevant paragraphs reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent whether the operation la private or savours of State action. See generally: The meaning of State Action', LX Columbia Law Rev 1083. Institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed government agencies. See the decisions in Terry v. Adams 273 US 536 and Nixon v. Condon 266 US 73. Activities which are too fundamental to the society are by definition too important not to be considered government function. 23. "From this perspective, the logically sequitur is that it realty does not matter what guise the State adopts for this purpose, whether by a corporation established by statute or incorporated under a law such as the Companies Act or the Societies Registration Act, 1860. Neither the ostensible form of the corporation, nor is ostensible autonomy would take away from its character as 'State' and its constitutional accountability under Part II vis-a-vis the individual if it were in fact acting as an instrumentality or agency of the Government. 40. The picture that emerges is that the tests formulated in Ajay Hasia (Ajay Hasia v. Khalid (1981)ILLJ103SC axe not a rigid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors. reported in AIR2008SC2675 , in which tests are laid down in para 40 that the Body must be financially, functionally and administratively dominated under the control of Government and such control must be particular to the Body in question and must be pervasive. No doubt, in that case after referring to some tests from Ajay Hasia case, it is held that BCCI is not 'State' and it is not created by statute and no part of its capital is held by the Government. Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board." The Board does enjoy a monopoly status in the field of cricket but such status is not State conferred or State protected. There is no existence of a deep and pervasive State control. The control if any is only regulatory in nature as applicable to other similar bodies. This control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions. The Board is not created by transfer of a government-owned corporation. It is an autonomous body (x). The decision of Ujambai referred to supra having regard to changing socio-economi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the lease itself. (xii). In another case in Evans v. Newton (1966) 15 L.Ed. 2d. @ 377, 379 regarding bequeathing of private land by a will to the Mayor and Council of Macon, Georgia after the death of the testator's wife and daughters, for use as 'a park and pleasure ground' for while people only, was held to be usable by all - whites and blacks - and that no 'aegregation' could be permitted in view of the 14th amendment as it was a 'public park', the relevant portion reads thus: What is 'private' and what is 'state' action is not always easy to determine. Conduct that is formally private may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to constitutional limitation placed upon state action. Under the circumstances of this case, we cannot but conclude that the public character of the park requires it to be treated as a public institution subject to the command of the Fourteenth Amendment, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly apparent from Clause 7.1 of Clause 7 of S.S.A dated 20/1/2005. The relevant clause reads as hereunder: 7.1 Airport Operation and Maintenance: BIAL shall operate and maintain the Airport in accordance with Good Industry Practice. BIAL shall at all times comply with Applicable Laws in the operation and maintenance of the Airport and shall maintain, keep in good operating repair and condition, the Airport, in accordance with the Operation and Maintenance Plan, an indicative outline of which is as set out in Schedule 6 attached hereto. BIAL shall submit the Operation and Maintenance Plan to GOK no later than one (1) year from Financial Close. BIAL shall also renew, replace and upgrade to the extent reasonably necessary, the Airport which for these purposes shall exclude any systems or equipment to be operated by AA1 in accordance with the terms of the CNS/ATM agreement All operation, maintenance, repair and other works shall be carried out in such a way as to minimise inconvenience to users of the Airport If any operation, maintenance, repair or other works necessitate interrupting or suspending the landing or taking-off of any aircraft, or the closure of the Airport, for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Concessional agreement referral to supra, there is transfer of powers of respondent No. 2 to R-3 in relation to air traffic services to be rendered to the public at large. The grant of monopoly status in the concession agreement given to the BIAL is State conferred or State protected as the concession agreement provides exclusivity of private concession to the existing airport and prohibits any airport being set-up within 150 Kms from BIAL. (xviii). Even if it is not an entity and 'State' under Article 12 of the Constitution of India, the actions of BIAL are subject to judicial review under Article 226 of the Constitution of India. In this regard, learned Sr. counsel for petitioner has rightly placed reliance upon the decisions reported in (1976)ILLJ274SC in the case of Rohtas Industries v. Rohtas Staff 1991(1) SCC 171 : 1995(5) SCC 1811 : (2003)IILLJ1123SC in the case of G. Basi Reddy v. International Crops Research Instt. The principles laid down in those decisions with all fours applicable to the case on hand and therefore BIAL is amenable to writ jurisdiction of this Court under Article 226 of the Constitution of India as it has been discharging statutory functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this view. (xxi). In Unnikrishnan's case, after referring to Anadi Mukta and Drawakanath cases, it is held at paragraphs 81 and 83 as under: 81. As a sequel to this, an important question arises: what is the nature of functions discharged by these institutions? They discharge a public duty, If a student desires to acquire a degree, for example, in medicine, he will have to route through a medical college. These medical colleges are the instruments to attain the qualification. If, therefore, what is discharged by the educational institution is a public duty, that requires to act fairly. 83. The emphasis in this case is as to the nature of duty imposed on the body. It requires to be observed that the meaning of authority under Article 226 came to be laid down distinguishing the same term from Article 12. In spite of it, if the emphasis is on the nature of duty on the same principle it has to be held that these educational institutions discharge public duties. Irrespective of the institutions receiving aid it should be held that it is a public duty. The absence of aid does not detract from the nature of duty. (xxii). The learned Sr. counsel for the petitioner has placed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Calicut, Goa, New Delhi and Trichy. The petitioner in India has experience in emerging markets of its parent company across the world. It decided to join hands with AerRianta International opt, for submitting a bid to obtain contract from BIAL in respect of carrying on the aforesaid business. According to the petitioner, the consortium of it with AerRianta International opt, would be the only one qualified to receive tender and submit bid for obtaining contract for duty-free retailing at BIAL. It is admitted that the petitioner was the first company to enter into the private retail duty-free business in Indian Airports and no other company privately owned has as much experience in duty free retailing in Indian Airports. Therefore, consortium of petitioner with AerRianta International opt, submitted EOI to BIAL on 23/8/2006 which is in complete compliance with all requirement set out in the EOI invitation by furnishing all the information as set out in clause 3.2 of the invitation, The petitioner did not receive any written communication regarding issuance of tender documents or about it expression of interest being rejected or of any other decision of BIAL not to issue tender do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to re-look into the matter, further as could be seen from the E-Mail dt. 12/09/2006 sent by AerRiant to R4, it has made clear that it respects the decision taken by BIAL regarding exclusion of consortium consisting of the petitioner. The above contention is untenable in law. Therefore, the learned Sr. counsel in support of his contention that petitioner has not acquiesced his right to file this Writ Petition, in support of this submission he has placed strong reliance upon the constitutional bench decision of the Apex Court reported in Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. AIR1986SC180 , which reads as follows: 28. It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be in violation of their fundamental rights. How far the argument regarding the existence and scope of the right claimed by the petitioners is well-founded is another matter. But, the argument has to be examined despite the concession. 29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bonafides in day-to-day transactions. In Basheshar Nath v. CIT 1959 Supp 1 SCR 528 a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived, Two members of the Bench (Das, C.J. and Kapoor, J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part HI of the Constitution. The Constitution makes no distinction, according to the learned Judges between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy. 36. With regard to the statutory rights an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .O.I is arbitrary as there was lack of transparency in the action of respondents 3 & 4 for the following reasons: a) No lawful justification for short listing 5 out of 7 parties who have submitted EOIs. b) No norms at all are enumerated in the tender invitation notification for short listing. c) Selection criteria followed by R3 & R4 lacked legal certainty, since they are imprecise and they do not provide for objective norms or bench marks for proper evaluation. d) No document or documents at all showing the evaluation process. e) No Committee of Experts or any Committee was constituted at all by R3 & R4 for considering and evaluating the merits and demerits of the parties in their E.O.I for short-listing their tender documents. f) The matter was never placed before the Board for its approval as averred by AAI. g) No reasons whatsoever are recorded by R3 and communicated to the petitioner. No reasons are given to the Court in the affidavits, record also does not disclose the reasons for either short listing and awarding the contract in question in favour of respondent No. 5. (i). In support of the aforesaid submission, learned Sr. counsel for the petitioner has right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is found. It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affection of some right or denial of some privilege. (iii). Further, it is well settled lay that discretion in any authority or body must always be exercised reasonably and not arbitrarily as laid down at paras 33 and 50 in Reliance Airport Developers (P) Lid. v. Airports Authority of India reported in (3006) 10 SCC 1, the relevant paras are necessary to be extracted in this judgment and it reads thus: 33. If a certain latitude or liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevent it from bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority, further the learned senior counsel has placed strong reliance upon the observations made by the Author H.M. Seervai in Constitutional Law of India, 4th Ed. Vol 2, p. 1487 @ para 16.92 in support of the contention that; if, 'a body has exercised its discretionary powers capriciously or on irrelevant grounds, it is to be taken as not having exercised its powers at an in the eye of law'. (vii). Further he has placed strong reliance upon the landmark constitutional bench decision of the Supreme Court in the case of A.K. Kraipak and Ors. v. Union of India and Ors. reported in AIR 1970 SC 180 wherein it has laid down the law at paras 13, 14 & 20 which relevant portions are extracted hereunder: "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.... In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of the rule of law would lose its validity if the instrumentalities of the State are not charged with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im the said words of Lord Denning are apposite on the point of reasons. Further he has placed strong reliance that existence, recording and communication of reasons is a salutary and vital safeguard against arbitrary exercise of power, reasons for any decision are judicially reviewable and that reasons must be clear, cogent, certain and they cannot be vague. The evaluation of E.O.I was done on the basis of criteria, merits and demerits considered does not amount to giving reasons in law, further it is clear from the EOI invitation that one of the important criterion was experience in Indian duty-free retailing, it is equally clear that respondent No. 3 company avers that they have considered and short listed five players to be the top players in the field without reason, therefore its action is arbitrary exercise of power as there is complete irrationality on the part of the BIAL in the selection process laid down by the invitation for E.O.I and it also amounts an arbitrary exercise of power by it Learned Sr. counsel further placed reliance upon the decision of B. Ramakichenin in referred to supra for another legal submission that short listing has to be effected on two requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary, but also unreasonable and not supported by any reason or law. (ix). Participation by giving B.O.I does not debar the petitioner to challenge the validity of tender process and the criteria in this Writ petition, in support of this contention strong reliance is placed upon the decision of the House of Lords reported in (1819)1 BLIGH 1 @ 21-22 in the case of Ker v. Wanchope which decision is referred to in Broom's Legal Maxima @ p 485 wherein it concerned a will wherein the House of Lords has held 'it is equally settled in the law of Scotland as of England that no person can accept or reject the same instrument', further placed reliance upon the decision of the Apex Court in the case of P.R. Deshpande v. Maruti reported in [1998]3SCR1079 wherein the Apex Court at para 7 referring to its earlier decision reported in AIR1993SC352 in the case of R.N. Gosain v. Yashpal Dhir held that tenants conduct of giving an undertaking to vacate a premises to the High Court then filing a petition under Article 136 of the Constitution of India does not amount to 'approbation and reprobation'. The Apex Court in the said case has held that it cannot impede right of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y determine as appropriate. Therefore, it is contended toy him that having regard to the aforesaid clause in the concession agreement, it was a mandatory requirement on the part of the BIAL to call for any tenderers or follow two stage tender process as has been done in the instant case and it could have devised any other method for selection of its own choice. However, the intention of it is very clear to have best players in the market and get the best offers from them vis-a-vis its intention was to give fair chance to the Companies to bag with various packages. The process involving assigning of its exclusive contractual rights, it was open for BIAL to adopt such devise as it thought it fit to assign its right which in its opinion is best suited in which it has full confidence. Assigning of its private contractual rights is not amenable to judicial review. (xi). With reference to the said rival legal contentions, we have to answer the above point in favour of the petitioner for the reason that as we have already recorded our reasons while answering points 1 to 3 in this judgment with regard to public duties, functions/statutory duties which are required to be carried out by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be laid down in the tender invitation to comply with constitution provision of Article 14 of Constitution of India, its action must be transparent it should contain reasons and it should exercise its discretionary power judiciously as held by the Apex court in catena of decision on the above contentious points submitted by the learned Counsel on behalf of the petitioner. Learned Senior Counsel Mr. Vinod Bobade has rightly placed reliance upon the American Law with reference to 14th amendment to U.S Constitution, which is equivalent to Article 14 of our Constitution. Section 1 of said 14th amendment reads thus: 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This has not been done by BIAL in shortlisting the persons who have expressed their EOI excluding the petitioner from issuance of tender documents without intimation to it Therefore, the various decisions relied upon by the learned senior counsel Sri Vinod Bobde for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian market as per the eligibility criteria enumerated in the EOI, it has been running its business in various international and national airports in different parts of other countries and our country which are referred to in the earlier paragraphs of the judgment, it is one of the important aspect which should have been weighed in the mind of the selection committee of the third respondent keeping in view that it is discharging public functions and the premises is a public premises. Therefore in the concession agreement, it has been specifically stated that Chapter V(A) of the A.A.I.A Act is applicable to the premises in question to follow the procedure for eviction of unauthorized occupants of the Airport availing the provisions are on the lines of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 is made applicable to the premises of the third airport which is being managed by BIAL is one of the strong and powerful indicator that airport premises is a public premises in terms of the definition of Section 2(c) of the PP(EOUC) Act and the BIAL is managing it, therefore it is a State which we have already answered while answering issue No. 1 to 3 by assigning vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and participate in the competition, and reasons not assigned for excluding the petitioner and opportunity was not given to the 9th respondent to participate in the financial bid and not giving opportunity to the petitioner and 9th respondent to offer their financial bid for the purpose of establishing retail duty free shop in the Airport run by BIAL on such terms and conditions certainly it would have offered best price that could have increased the percentage of revenue to the second respondent-A.A.I out of the gross income that would have been earned by the BIAL. Issuing tender to the 5th respondent as already stated is not only arbitrary exercise of power by BIAL but also lacks transparency. Matter was not decided by the Board of Directors as stated by the second respondent in its affidavit at para 9 referred to supra and not given opportunity to the 9th respondent though it was in the short list, it has submitted its tender as we have to answer that as held in the Reliance Company's case referred to supra and also in other cases referred to supra, short listing and awarding of contract in favour of the 5th respondent is not only arbitrary, the same is against the public ..... X X X X Extracts X X X X X X X X Extracts X X X X
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