Dismissed

B. Vijayan v. Airport Authority of India

Kerala HC3 Sept 2014WP(C)/25183/2012

Case brief

AI extract

What is this about?

The Single Judge, upholding the alternative remedy principle under the AAIR Act, dismissed four connected writ petitions. The Court concluded that specific petitions challenging dues, liquor sales, and eviction were not maintainable as the Appellate Tribunal was the proper forum, and dismissed a challenge to a tender process due to lack of evidence of denial of opportunity.

What the court decided

AI extract

B. Vijayan Vs Airport Authority of India — Company and Corporate | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936

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WP(C).No. 25183 of 2012 (W)

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PETITIONER:

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B. VIJAYAN,AGED 50 YEARS, SON OF BALAN, PARTNER, M/S.HOTEL RUBY ARENA, RESIDING AT ANANDA BHAVANAM, BALAJI NAGAR, KATTAIKONAM P.O.,

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THIRUVANANTHAPURAM FOR M/S.HOTEL RUBY ARENA, T.C.1/1665(1), MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.

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BY ADVS.SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL

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RESPONDENTS:

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1. AIRPORT AUTHORITY OF INDIA, HAVING ITS REGISTERED OFFICE AT RAJIV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI-110 037.

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2. AIRPORT DIRECTOR, THIRUVANANTHAPURAM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM-695 008.

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3. MANAGER (COMMERCIAL), THIRUVANANTHAPURAM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM-695 008.

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BY ADV. SRI.V.SANTHARAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2014 ALONG WITH WPC. NO.19847/2013 AND CONNECTED CASES, THE COURT ON 03/09/2014 DELIVERED THE FOLLOWING:

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WPC.NO.25183/2012 (W)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: COPY OF LICENCE AGREEMENT DATED 26/05/2011. EXT.P2: COPY OF LETTER OF AWARD DATED 18/03/2011. EXT.P3: COPY OF THE LETTER DATED 5/08/2011 SENT TO THE 2ND RESPONDENT. EXT.P4: COPY OF THE LETTER NO.EL/COM/DEC/049 DATED 20/12/2011. EXT.P5: COPY OF THE LETTER NO.AAT/COM/3(23.5)/1331 DATED 23/12/2011. EXT.P6: COPY OF THE LETTER DATED 06/08/2012 ISSUED TO THE 2ND RESPONDENT. EXT.P7: COPY OF THE LETTER NO.AAT/COM/3(23.5)/1075 DATED 11/09/2012. EXT.P8: COPY OF THE LETTER NO.AAT/COM/9(32)/2012/1069 DATED 10/09/2012. EXT.P9: COPY OF THE LETTER NO.E1/COM/SEP 12/184 DATED 20/09/2012. EXT.P10: COPY OF THE CHEQUE NO.649002 DATED 20/09/2012 FOR RS.3.07,891/-. EXT.P11: COPY OF THE CHEQUE NO.649003 DATED 20/09/2012 FOR RS.3,07,891/-. EXT.P12: COPY OF THE LETTER NO.AAT/COM/9(32)&3(23.5)12/1154 DATAED 8/10/2012. EXT.P13: COPY OF THE GOVERNMENT ORDER NO.G.O.(P) NO.87/2011/TD DATED 19/07/2011. EXT.P14: COPY OF THE LETTER NO.EL/COM/OCT12/197 DATED 25/10/2012.

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WPC.NO.25183/2012 (W)

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EXT.P15: COPY OF THE STATEMENT OF ACCOUNT SENT TO THE RESPONDENT/PETITIONER THROUGH E-MAIL.

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EXT.P16: COPY OF STATEMENT OF ACCOUNTS FURNISHED BY ING VYSYA BANK FOR THE PERIOD 20/09/2012 TO 30/09/2012.

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EXT.P17: COPY OF LETTER NO.EL/COM/DEC 13/498 DATED 16/12/2013.

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EXT.P18: COPY OF LETTER NO.EL/COM/MAR 14/552 DATED 14/03/2014 ISSUED BY RUBY ARENA LOUNGE.

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EXT.P19: COPY OF LETTER DATED 21/06/2014 ISSUED BY RUBY ARENA LOUNGE TO EVICTION OFFICER, AIRPORT AUTHORITY OF INDIA, TRIVANDRUM.

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EXT.P20: COPY OF THE LETTER DATED 2/07/2014 SENT TO THE EVICTION OFFICER, AIRPORT AUTHORITY OF INDIA, TRIVANDRUM.

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EXT.P21: COPY OF THE LETTER NO.SB/COM/JUL14/624 DATED 3/07/2014 SENT TO THE AIRPORT DIRECTOR, AIRPORT AUTHORITY OF INDIA, TRIVANDRUM.

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EXT.P22: COPY OF THE LETTER NO.REF.EL/COM/JUL14/639 DATED 14/07/2014 SENT TO THE AIRPORT DIRECTOR, AIRPORT AUTHORITY OF INDIA, TRIVANDRUM.

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EXT.P23: COPY OF THE LETTER NO.REF.SB/COM/AUG14/657 DATED 14/08/2014 SENT TO THE AIRPORT DIRECTOR, AIRPORTS AUTHORITY OF INDIA, TRIVANDRUM.

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EXT.P24: COPY OF THE NOTICE NO.AAT/COM/10(29)/283 DATED 9/04C/2014 ISSUED BY EVICTION OFFICER, AIRPORT AUTHORITY OF INDIA.

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EXT.P25: COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE AIRPORT APPELLATE TRIBUNAL.

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EXT.P26: COPY OF THE DISCHARGE SUMMARY REPORT ISSUED BY KERALA INSTITUTE OF MEDICAL SCIENCES, TRIVANDRUM.

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WPC.NO.25183/2012 (W)

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RESPONDENT'S EXHIBITS:

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EXT.R1: COPY OF THE HANDING AND TAKING OVER NOTE DATED 25/06/2011.

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EXT.R2: COPY OF THE COVERING LETTER DATED 16/05/2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXT.R3: COPY OF THE LETTER NO.AAT/COM/3(23.5)/511 DATED 20/06/2011. EXT.R4: COPY OF THE LETTER NO.AAT/COM/3(23.5)/613 DATED 15/07//2011. EXT.R5: COPY OF THE LETTER NO.AAT/COM/3(23.5)/696 DATED 05/08/2011. EXT.R6: COPY OF THE LETTER NO.AAT/COM/3(23.5)/731 DATED 16/08/2011. EXT.R7: COPY OF THE LETTER NO.AAT/COM/3(23.5)/798 DATED 26/08/2011. EXT.R8: COPY OF THE LETTER NO.AAT/COM/3(23.5)/851 DATED 05/09/2011. EXT.R9: COPY OF THE LETTER NO.AAT/COM/3(23.5)/863 DATED 12/09/2011. EXT.R10: COPY OF THE LETTER NO.AAT/COM/3(23.5)/1240 DATED 30/11/2011. EXT.R11: COPY OF THE LETTER NO.AAT/COM/3(23.5)/1292 DATED 14/12/2011. EXT.R12: COPY OF THE LETTER NO.AAT/COM/3(23.5)/1331 DATED 23/12/2011. EXT.R13: COPY OF THE DEMAND LETTER NO.AAT/COM/9(32)/11/81 DATED 11/01/2012. EXT.R14: COPY OF THE DEMAND LETTER NO.AAT/COM/9(32)/11/270 DATED 13/02/2012. EXT.R15: COPY OF THE DEMAND LETTER NO.AAT/COM/9(32)& 3(23.5)/12/682 DATED 21/05/2012. EXT.R16: COPY OF THE DEMAND LETTER NO.AAT/COM/9(32)& 3(23.5)12/682 DATED 29/05/2012.

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EXT.R17: COPY OF THE DEMAND LETTER NO.AAT/COM/9(32)& 3(23.5)12/1154 DATED 08/10/2012.

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EXT.R18: COPY OF THE CORRECTED STATEMENT ALONG WITH THE BANK ACCOUNT STATEMENT.

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EXT.R19: COPY OF THE STATEMENTS OF OUTSTANDING DUES IN RESPECT OF THE EXECUTIVE LOUNGE AND SNACK BAR.

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EXT.R20: COPY OF THE LETTER NO.AAT/COM/9(32)/2013/124 DATED 12/02/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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EXT.R21: COPY OF THE LETTER NO.AAT/COM/3(23.5)/2013/767 DATED 04/09/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ALONG WITH THE COPY OF THE STATEMENT SHOWING THE OUTSTANDING DUES.

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EXT.R22: COPY OF THE LETTER NO.AAT/COM/3(29)/2013/766 DATED 04/09/2013 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER ALONG WITH THE COPY OF THE STATEMENT SHOWING THE OUTSTANDING DUES.

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EXT.R23: COPY OF THE REQUEST DATED 21/10/2011 SUBMITTED BY THE PETITIONER.

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EXT.R24: COPY OF THE COMMUNICATION NO.AV.20020/3/2002-09/VO.1/2514 DATED 12/12/2012 ISSUED BY THE COMPETENT AUTHORITY.

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EXT.R25: COPY OF THE COMMUNICATION DATED 18/12/2012 ALONG WITH THE RELEVANT PAGE NOS. 74 & 75 OF THE DESPATCH REGISTER.

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EXT.R26: COPY OF THE COMMUNICATION NO.AAT/COM/3(29)/1269 DATED 06/11/2012 ALONG WITH THE COPIES OF THE TWO CHEQUES DATED 14/02/2012 MEMO DATED 27/03/2012 ISSUED BY THE HDFC BANK AND MEMOS DATED 26/03/2012 ISSUED BY ING VYSYA BANK.

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EXT.R27: COPY OF THE COMMUNICATION NO.AAT/COM/3(23.5)/1417 DATED 14/12/2012 ALONG WITH BANK STATEMENTS ISSUED TO THE PETITIONER.

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EXT.R28: COPY OF THE SUMMARY OF OUTSTANDING DUES OF THE PETITIONER AS ON 31/10/2013 AS AGAINST THE EXECUTIVE LOUNGE AS WELL AS SNACK BAR ALONG WITH BILL WISE STATEMENT OF OUTSTANDING DUES OF EXECUTIVE LOUNGE AND SNACK BAR.

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EXT.R29: COPY OF THE LICENSE AWARDED TO THE PETITIONER FOR RUNNING THE SNACK BAR.

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WPC.NO.25183/2012 (W)

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EXT.R30: COPY OF O.S.1459/2011 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, TRIVANDRUM.

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EXT.R31: COPY OF THE WRITTEN STATEMENT IN O.S.1459/2011 FILED BY THE RESPONDENTS.

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EXT.R32: COPY OF THE JUDGMENT IN WPC.NO.19933/2013 PASSED BY THIS HON'BLE COURT.

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EXT.R33: COPY OF THE COVERING LETTER DATED 04/12/2013 ALONG WITH THE STATEMENT SHOWING THE AMOUNT PAID AND AMOUNT DUE, IN RELATION WITH THE SNACK BAR.

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EXT.R34: COPY OF THE COVERING LETTER DATED 04/12/2013 ALONG WITH THE STATEMENT SHOWING THE AMOUNT PAID AND AMOUNT DUE, IN RELATION WITH THE EXECUTIVE LOUNGE.

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EXT.R35: COPY OF THE SHOW CAUSE NOTICE NO.AAT/COM/10(30)/314 DATED 22/04/2014.

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EXT.R36: COPY OF THE SAID REPLY DATED 09/05/2014 SIGNED BY DR.KAVITHA SEKHAR, KEY PERSONAL AND CEO OF M/S. RUBY ARENA EXECUTIVE LOUNGE & BEER PARLOUR, WAS ISSUED TO AA1.

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EXT.R37: COPY OF THE SAID SHOW CAUSE NOTICE NO.AAT/COM/10(30)/377 DATED 21/05/2014 ALONG WITH ENCLOSURE.

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EXT.R38: COPY OF THE LETTER DATED 29/05/2014 SIGNED BY DR.KAVITHA SEKHAR, RECEIVED BY AIRPORT AUTHORITY OF INDIA.

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EXT.R39: COPY OF THE LETTER NO.AAT/COM/10(30)/415 DATED 10/06/2014 ISSUED BY AA1 TO THE PARTNERS OF M/S.RUBBY ARENA.

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EXT.R40: COPY OF THE LETTER DATED 19/06/2014 ISSUED BY THE MANAGING PARTNER OF M/S.RUBY ARENA, MR.M.VIJAYA KUMAR.

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EXT.R41: COPY OF THE ORDER NO.AAT/COM/10(30)/451 DATED 23/06/2014 ALONG WITH THE ENCLOSURE.

/TRUE COPY/

P.A.TO JUDGE

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P.R. RAMACHANDRA MENON J.

JUDGMENT

The issue involved in W.P.(C) Nos. 25183 of 2012, 19847 of 2013 and 12533 of 2014 filed by the same petitioner/firm/partner is mainly with regard to the right to conduct the Executive Lounge/Snack Bar in the International Airport at Thiruvananthapuram, while in W.P.(C) No. 21620 of 2013 preferred by another individual, is in respect of denial of opportunity to participate in the tender for running Airport Restaurant-cum-AAI staff canteen outside the International Terminal Building.

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Even though there is no direct connection with the issue involved in the latter case with the issue projected in the former three cases, there is a contention for the respondents that W.P. (C) No. 21620 of 2013 has been caused to be filed at the

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instance of other petitioner, as an experimental litigation, to stall the proceedings and to maintain monopoly of business by the petitioner in other cases pointing out that the petitioner in W.P.(C) No. 21620 of 2013 is only a name lender. Hence all these cases are taken together and heard accordingly.

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With regard to the sequence of events in relation to the issue involved in W.P.(C) Nos. 25183 of 2012, 19847 of 2013 and 12533 of 2014, the pleadings and proceedings are referred to as given in W.P.(C) No. 25183 of 2012. The petitioner in the said case was given Ext. P2 Award by the second respondent on 18.03.2011 to run an 'Executive Lounge', in the area having an extent of 186 M² on the first floor Security Hold Area of the New International Terminal Building at the Airport. Accordingly, Ext. P1 agreement was executed on 26.05.2011, which was to be valid for a period of '5 years' from 05.04.2011 till 04.04.2016, stipulating that licence fee payable would be at the rate of Rs. 2,49,111/-, Rs.2,74,022/-, Rs.3,01,424/-, Rs.3,31,567/and

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Rs.3,64,723/- for the first, second, third, fourth and fifth year respectively. As borne by Exts. P1 and P2 proceedings, the petitioner was granted permission to sell 'Beer' in the Executive Lounge, subject to the conditions specified therein. It was stipulated that, only bare space will be provided by the Airport Authority and the construction of Lounge shall be effected by the petitioner, at his own cost, with prior approval of the drawing by the first respondent. A period of '60 days' was granted as 'gestation period' as per Clause 5 (VII) to complete construction of the Executive Lounge, during which period, no licence fee was required to be paid.

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The petitioner effected security deposit of

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Rs.16,48,617/- as stipulated under clause 7 of Ext. P1, besides Rs. 1,00,000/- as security deposit towards electricity dues, as specified in Clause 8. Though the premises were handed over on 04.04.2011, construction of the Lounge was not completed and the petitioner submitted Exts. P3 and P4 requests for extending the 'gestation period' initially up to

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15.08.2011 thereafter till 31.10.2011 respectively. According to the petitioner, he was let known vide Exts. P5 and P7, that the request had already been forwarded to the competent authority, but the decision was still to be taken.

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While so, the petitioner was served with Ext. P8

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notice demanding a sum of Rs. 11,83,063/- stated as the outstanding dues to be cleared by the petitioner. On receipt of this notice, Ext. P9 reply was submitted by the petitioner, also with reference to Exts. P3 and P4. The petitioner in the meanwhile paid a sum of Rs.6,15,785/- as borne by Exts. P10 and P11 cheques. But without any regard to the actual facts and figures, Ext. P12 was served upon the petitioner, stating

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that, because of the non-clearance of the due amount, security deposit effected by the petitioner had already been appropriated against the liability and in turn, the petitioner was required to recoup the security deposit of Rs. 16,48,617/-. The petitioner sought to dispute the position by submitting Ext. P14 reply. Apprehending further steps,

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including by way of eviction, the petitioner approached this Court by filing W.P.(C) No. 25183 of 2012, seeking for immediate intervention and to quash Ext. P12, simultaneously to direct the respondents to expedite steps to take decision on Exts. P4 and P5 within a time frame.

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When the matter came up for consideration before this Court on 29.10.2012, urgent notice was ordered to the respondents also granting interim stay, on condition that the petitioner satisfied a sum of 'Rs. Five lakhs' within two weeks, which is stated as complied with. Respondents have filed counter affidavit and the petitioner has filed reply affidavit as well. Other incidental proceedings are also filed from both the sides, producing copies of the relevant documents as additional exhibits.

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While so, the respondent Airport Authority took a decision to permit 'sale of Liquor' as well, in the premises including the Executive Lounge and invited applications from the willing entrepreneurs. In response to this, the petitioner

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in W.P.(C) No. 25183 of 2012 also put in an application, which however was refused to be entertained, referring to the alleged dues to be cleared by the petitioner. Exts. P5, P6 and P7 requests made by the petitioner in this regard were replied as per Ext. P8 dated 10.09.2012 sent by the 3^rd respondent and the petitioner was required to clear the due amount, so as to consider the request. Since the version of the petitioner, that the actual amount due was subject matter of consideration in the W.P.(C) No. 25183 of 2012 pending before this Court was not accepted, so as to have acted upon the request, the petitioner approached this Court by filing W.P. (C) No. 19847 of 2013, seeking for a direction to the respondents to permit sale of alcohol in the Executive Lounge on the strength of Exts. P1 and P2 (same as produced in W.P. (C) No. 25183 of 2012). Here also, a detailed counter affidavit has been filed on behalf of the respondents, also producing copies of the communication along with statement as to the outstanding dues as on 31.10.2013, as Exts. R2(d).

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In the course of further proceedings, the petitioner approached this Court by filing W.P.(C) No. 12533 of 2014, pointing out that, instead of Exts. P1 and P2 permission given to the petitioner to conduct Executive Lounge/Snack Bar, which was valid till 2015 - '16, the third respondent obstructed the petitioner from bringing 'Beer' for sale in the Executive Lounge, in view of the alleged dues to be cleared by the petitioner. Forceful obstruction stated as caused in this regard was sought to be removed, by moulding the relief in the said writ petition. When the matter came up for consideration before this Court on 16.05.2014, an interim order was passed directing the respondents to the effect that the respondents shall not obstruct the petitioner from carrying out the activity mentioned in Ext. P1 for a period of one month, which was extended subsequently. Respondents 1 to 3 have filed a counter affidavit, producing copies of the relevant documents as Exts. R2(a) to R2(o). It is contended that, sale of the Beer in the Executive Lounge was subject to

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some specific conditions, which however were not satisfied and it was infringed at the hands of the petitioner. It was also pointed out that Executive Lounge was situated in the high security area of the International Airport and as such, to bring in any material including the Beer, specific sanction was required to be obtained, which in fact was being obtained by the petitioner as revealed from the documents produced.

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As mentioned in the opening paragraph, the issue involved in W.P.(C) No. 21620 of 2013 is with regard to the denial of opportunity to participate in the tender floated by the first respondent in respect of licence for operating Airport Restaurant-cum-AAI Staff Canteen outside the International Airport. The case of the said petitioner is that the last date for submitting tender was on 31.07.2013 at 3.00 P.M. Though the petitioner was ready with the filled up tender form, including requisite documents and the demand draft for the requisite amount, presenting the same between 2.50 pm and 2.55 pm, it was refused to be accepted by the concerned

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respondent, because of vested interest and as an act of malafide interest. This made the petitioner to approach this Court, seeking for quashing the entire tender proceedings, pursuant to Ext. P1 therein.

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Herein also, a detailed counter affidavit has been filed by the respondents 1 and 2 producing copies of the relevant documents as Exts. R1(a) to R1(e). It has been asserted from the part of the respondents that the petitioner in the said case, who is only a name lender of the petitioner in other cases, had never submitted the tender before 3.00 pm on 31.07.2013 and that he appeared only after expiry of the time. It is stated that the 'Tender Box' was placed on the first floor, where no CCTV/Camera was available, which has been installed only on the ground floor, for security purpose. It is also pointed out that CCTV back up will be available only for the preceding period of 'one week'. The tender box was closed and sealed at 3.00 p.m in presence of the persons present there and the said persons have

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subscribed their signature on the sheet pasted over the box. The concerned respondents assert that there was huge demand from the part of the customers to open the canteen and instead of the best efforts taken by the respondents on three occasions, it did not turn to be fruitful so far and only this time, the proceedings got finalized. On opening the tender, the additional 4^th respondent came to be succeeded, who had quoted the highest amount and accordingly, tender was finalized in his favour. Pursuant to this, the premises was handed over to the additional 4^th respondent and the canteen started functioning there, eversince thereafter. The 4^th respondent has also filed a counter affidavit, producing copies of the relevant documents as Exts.R4(a) to R4(c), contending that he is running the canteen without any complaints from any corner.

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This Court now shall deal with W.P.(C) No. 21620 of 2013 . As per the counter affidavit filed by the respondents 1 and 2, it is seen that Ext. P1 tender notice was published in

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the website of the Airport Authority of India as early as on 09.07.2013 stipulating 31.07.2013 at 3.00 p.m. as last date of submission of the documents. In other words, the Airport Authority had given a clear '23 days' time for the interested parties to submit tender. According to the respondents 1 and 2, the petitioner in the said case has been planted by the petitioner in other three cases, with an intent to stall the starting of canteen and make unlawful gains, compelling the crowd to come over to Executive Lounge/Snack Bar run by the petitioner and thus to increase the sales output. It is also the case of the said respondents, that the petitioner was in fact keeping mum; while the alleged representative, who came along with the petitioner, by name Pradeep Kumar was actually arguing with the staff of the Airport Authority of India. It is also pointed out that the said Pradeep Kumar is none other than the General Manager of the Firm by name M/s Ruby Arena Executive Lounge [petitioner in W.P.(C) No. 12533 of 2014] and the husband of the signatory to the proceedings

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by name Dr. Kavitha Sekhar. It is further contended that the requisite amount for drawing the demand draft to be submitted by the petitioner in W.P.(C) No. 21620 of 2013 was transferred from the Bank account of the petitioner in other cases. It is also contended that this case is nothing, but an abuse to the process of Court, adding that the petitioner in the other cases has been pursuing various litigations at different points of time, either to protract things or to stall the proceedings, in order to maintain monopoly in the business. It is stated that, granting of another Executive Lounge to the successful bidder by name M/s Guruvayoor Resorts was sought to be challenged by the petitioner by name B. Vijayan (one of the partners of M/s Hotel Ruby Arena) by filing W.P. (C) No. 19933 of 2013, mainly contending that the licence fee fixed was abysmally low, when compared with the licence fee fixed for other area and hence that much public money was being siphoned out so as to benefit certain private individual. The said writ petition was considered and dismissed (by me),

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as per the judgment dated 24.09.2013, which was sought to be challenged by filing W.A. 1806 of 2013. The said writ appeal was also dismissed, as devoid of any merit on 02.12.2013. Then it was the turn of the petitioner in other cases [W.P.(C) Nos. 25183 of 2012, 19847 of 2013 and 12533 of 2014], to cause the said proceedings to be challenged by another employee (as alleged by the respondents) by name Bimal, by way of W.P.(C) No. 10961 of 2014, challenging the awarding of contract in favour of the successful bidder (M/s Guruvayoor Resorts - the 5^th respondent therein). The said writ petition was also dismissed as per judgment dated 15.07.2014.

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The crucial question to be considered is whether any lawful opportunity has been denied to the petitioner in participating the bid and is there any fault or irregularity on the part of the respondent authority in finalizing the bid in favour of the additional 4^th respondent. As mentioned herein before, a clear gap of 23 days was there to submit the tender

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i.e. from 09.07.2013 (the date of inviting tender) till the last date of acceptance on 31.07.2013 at 3.00 p.m. Though the petitioner was very much aware of the proceedings as above, absolutely no effort was taken by him to have participated in the tender well on time. Why the petitioner was waiting till 2.50 p.m. on 31.07.2013 (as proclaimed by him) has not been revealed in the writ petition. Evidently, the petitioner was simply resting on an 'Arm chair' till the 11^th hour and woke up as a matter of revelation and rushed to the office of the respondent with a cover containing the tender in his hand. In fact, no allegation was raised from any corner to the effect that anybody else was prevented from participating in the tender, but for the vague allegation raised by the petitioner. He could have submitted tender either in person or by registered post and sufficient time was provided in Ext. P1 notice. Having not chosen to do so, the petitioner who was enjoying himself in taking risk cannot be heard to say that opportunity has been denied to him by the concerned

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respondents. The tender box placed at the spot was closed and sealed in presence of the persons, who were present at the relevant time. On opening the tender, as prescribed in Ext. P1, it was revealed that the additional 4^th respondent had quoted the highest amount and the bid was confirmed in favour of the said respondent. This Court does not find any illegality or impropriety in the proceedings pursued by the respondents 1 and 2 in finalizing the tender in favour of the additional 4^th respondent. As such, there is absolutely no merit in W.P.(C) No. 21620 of 2013 and, it is dismissed accordingly.

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With regard to W.P.(C) No. 19847 of 2013 , the alleged cause of action is in respect of the right to vend 'Liquor' in the Executive Lounge and the alleged refusal from the part of the respondents to grant sanction, referring to dues to be cleared by the petitioner towards licence fee in respect of running of the Executive Lounge/Snack Bar in the International Airport. The amounts to be satisfied by the

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petitioner towards security deposit and the licence fee at varying rates for different years as given in Ext. P1 agreement are not in dispute. The dispute is only with regard to the extension of 'gestation period' sought for till 31.10.2011. The non-payment of amount towards licence fee, according to the respondents, will attract interest at the rate specified in the agreement, besides the amounts payable under such other heads. The payment effected by the petitioner, after serving notice dated 10.09.2012 [Ext. P8 in W.P.(C) No. 25183 of 2012], was Rs.6,15,785/- as per two cheques dated 20.09.2012 [Exts. P10 and P11 in W.P.(C) No. 25183 of 2012] and the subsequent amount of Rs. 5 lakhs deposited pursuant to the interim order dated 29.10.2012 in W.P.(C) No. 25183 of 2012. In view of the controversy over the actual amount to be satisfied and in view of the relief sought for by the petitioner to permit him to sell 'Liquor' in the Executive Lounge, as sought for vide Exts. P5 to P7 in W.P.(C) No. 19847 of 2013, this Court, after hearing both the sides passed

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W.P.(C) No. 25183 of 2012 and connected cases

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an order on 19.12.2013 in the following terms :

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“There is a serious issue with regard to the actual amount that is liable to be satisfied by the petitioner and the amount which the respondent is entitled to realise from the petitioner for continuing the operation and to permit to sell liquor in the Executive Lounge of the International Airport at Thiruvananthapuram.

¶148

When the respondents contend with reference to the statement filed before this Court in I.A.No.16797/2013 in W.P.(C).No.25183/2012 that a total sum of 60,24,677.56/- is due as on 30.11.2013, the learned counsel for the petitioner submits with reference to Ext.P12 in W.P. (C).No.19847/2013 that, as on 31.10.2013, the balance payable is only 11,63,857/-. The learned Standing Counsel appearing for the respondents submit that the figures given by the petitioner in Ext.P12 are far from the actuals in so far as various monthly instalments payable have been omitted and the entries given are virtually half the actual amount payable under the relevant heads. Serious disputes are there with regard to other aspects as well. The learned Standing Counsel for the respondents submit that unless the entire amount is satisfied, the request made on behalf of the petitioner is not liable to be considered for the time being.

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W.P.(C) No. 25183 of 2012 and connected cases

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After hearing both the sides and considering the particular facts and circumstances, this Court directs the petitioner to satisfy the admitted amount of 11,63,857/forthwith. With regard to the disputed sum of 13,46,369/- payable in respect of the 'gestation period', the petitioner shall furnish a 'Bank guarantee'. The balance amount, out of the total of `60,24,677.56/- shall be remitted under protest. On satisfying the requirement as above, the request of the petitioner to permit him to sell liquor in the executive lounge shall be considered by the respondents and appropriate orders shall be passed. This shall be subject to the result of the writ petition.

¶151

In view of the fact that renewal date of Ext.P4 license produced by the petitioner is already over, it is for the petitioner to produce valid and current license, so as to enable the respondents to consider the claim for permission to sell liquor in the executive lounge.”

¶152

During the course of hearing, it is conceded by the

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learned counsel for the petitioner that the 'condition' could not be complied with by furnishing 'bank guarantee' for the amount covered by gestation period and in effecting the payment ordered by this Court. It is stated that Ext. P4 licence issued by the Excise Division Office,

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W.P.(C) No. 25183 of 2012 and connected cases

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: 19 :

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Thiruvananthapuram got expired and it is still to be renewed. In the above circumstances, this Court does not find it as a fit case to issue any writ of mandamus directing the respondents to give permission to sell 'Liquor' in the Executive Lounge operated by the petitioner on the strength of Ext.P1 agreement and Ext. P2 Award. The writ petition No.19847 of 2013 is dismissed accordingly.

¶157

The relief sought for in W.P.(C) No. 25183 of 2012 is vehemently opposed from the part of the respondents 1 to 3, mainly contending that, the writ petition itself is not maintainable, by virtue of alternate remedy available to the petitioner. It is stated that, if the amount payable as demanded vide Ext. P12, is disputed, the petitioner is having an effective alternate remedy before the Appellate Tribunal constituted under the Statute and that the petitioner is not justified in approaching this Court under Article 226 of the Constitution of India, seeking to act as a fact finding agency. With regard to the second prayer in the writ petition, seeking

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W.P.(C) No. 25183 of 2012 and connected cases

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: 20 :

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for a direction to take a final decision on Exts. P3 and P4, it is asserted that the said request has been considered and rejected as per Exts. P24 and P25 and if the petitioners are still aggrieved, their remedy lies before the Appellate Tribunal. It is also pointed out that, since the condition imposed by this Court as per the common interim order dated 19.12.2013 has admittedly not been complied with, the discretionary jurisdiction of this Court is not liable to be extended to entertain the case projected by the petitioner.

¶161

The learned standing counsel for the respondents 1 to 3 submits, with reference to additional documents produced along with I.A. No. 9925 of 2014, that the proceedings under Section 28G of the Airports Authority of India Act, 1994 have already been taken and Ext. R35 notice dated 22.04.2014 was issued to the petitioner, asking to show-cause in respect of the instances specified therein. The said notice in fact is a 'three-in-one' attempt seeking explanation for why termination of contract shall not be effected for non

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W.P.(C) No. 25183 of 2012 and connected cases

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: 21 :

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satisfaction of the due amount, to facilitate its recovery and also for causing eviction. On receipt of the said notice, the petitioner submitted Ext. R36 objection, wherein no explanation is offered, but for the reference made to the pendency of the writ petition. In the said circumstances, Ext. R37 notice was issued, attaching a copy of the statement as to the amount due. At this juncture Ext. R38 reply dated 29.05.2014 was submitted by the CEO (Signatory to W.P. (C) No. 12533 of 2014) stating that her husband suffered a heartattack and is undergoing treatment, simultaneously adding that there was some discrepancy in the amount sought to be realized. The concerned respondent sent Ext. R39 notice dated 29.05.2014 to all the partners of the firm, in their residential address.

¶165

Ext. R40 dated 19.06.2014 is reply sent by one of the partners stating that their CEO is pre-occupied with the bad health. It was in the said circumstances that the proceedings were finalized on the basis of available materials,

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W.P.(C) No. 25183 of 2012 and connected cases

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: 22 :

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leading to Ext. R41 dated 23.06.2014, which is the final order, along with a statement showing the amounts to be cleared by the petitioner. It is also pointed out by the learned standing counsel for the respondents that the said order is an appealable one, by virtue of the remedy available under Section 28 K (1) of the Airport Authority of India Act 1994 before the appellate Tribunal and that writ petition is no more liable to be entertained.

¶169

The learned counsel for the petitioner submits, with reference to contents of I.A. No. 11456 of 2014 that the

¶170

petitioner has already sought to challenge Ext. R41 order by filing an appeal before the Appellate Tribunal. It is also pointed out that the dues in respect of the 'Snack Bar' run by the petitioner have already been cleared and that the remaining proceedings are only in respect of the 'Executive Lounge'. Since the proceedings with regard to the right of the respondents to terminate lease, causing recovery of the due amount and also to evict the petitioner from the premises, has

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W.P.(C) No. 25183 of 2012 and connected cases

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: 23 :

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culminated in Ext. R41 order and further since the petitioner has sought to avail the statutory remedy by way of appeal before the Appellate Tribunal in terms of Section 28 K, this Court finds that this writ petition is no more liable to be entertained. It is dismissed accordingly, without prejudice to the right of the petitioner to pursue the proceedings before the Appellate Tribunal.

¶174

In view of the turn of events as above, there cannot be any independent existence for W.P.(C) No. 12533 of 2014 . It is also dismissed in terms of the findings in W.P.(C) No. 25183 of 2012, however without prejudice to the rights and liberties of the petitioner to pursue appropriate remedy by approaching the Tribunal, if there is obstruction contrary to the relevant provision of law/orders/regulations/terms of agreement.

¶175

In the result :

¶176

All the four writ petitions are dismissed, however without prejudice to the rights and liberties of the concerned

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W.P.(C) No. 25183 of 2012 and connected cases

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: 24 :

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petitioner to pursue the matter before the appellate Tribunal with regard to subsisting cause of action, if any.

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Sd/-

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P. R. RAMACHANDRA MENON, (JUDGE)

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kmd

B. Vijayan v. Airport Authority of India

Case brief

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What the court decided

B. Vijayan v. Airport Authority of India

Case brief

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What the court decided

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