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In the High Court of Karnataka at Bengaluru

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In the High Court of Karnataka at Bengaluru IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 16 th day of December, 2015 R PRESENT HON'BLE MR.SUBHRO KAMAL MUKHERJEE, ACTING CHIEF JUSTICE AND HON'BLE MRS.JUSTICE B.V.NAGARATHNA WP No.11486/2008 c/w WP No.10389/2008(GM-RES-PIL) IN WP No.11486 OF 2008 BETWEEN AIRPORT AUTHORITY EMPLOYEES UNION A REGISTERED TRADE UNION UNDER THE TRADE UNIONS ACT, 1926, WITH REGISTRATION NO.3515, JOINTLY AND SEVERALLY REPRESENTED BY ITS PRESIDENT MR. S R SANTHANAM AND BY ITS UNIT REPRESENTATIVE MR STANLEY SAMPATH KUMAR. P LOCAL SECRETARY, AAEU, BANGALORE, HAL AIRPORT, BANGALORE - 560017. ... PETITIONER (By Sri B.C.THIRUVENGADAM, ADVOCATE) AND 1. UNION OF INDIA MINISTRY CIVIL AVIATION, RAJIV GANDHI BHAVAN, NEW DELHI, REPRESENTED BY ITS SECRETARY. 2. HINDUSTAN AERONAUTICS LTD., NO.15/1, CUBBON ROAD, BANGALORE - 560001. REPRESENTED BY ITS MANAGING DIRECTOR - 2 - 3. AIRPORTS AUTHORITY OF INDIA RAJIV GANDHI BHAVAN, OPERATIONAL COMPLEX, SAFDARJUNG AIRPORT, NEW DELHI - 110 003. REPRESENTED BY ITS CHAIRMAN 4. KARNATAKA STATE INDUSTRAIL INVESTMENT AND DEVELOPMENT CORPORATION LTD., KHANIJA BHAVAN, 4 TH FLOOR, EAST WING, NO.49, RACE COURSE ROAD, BANGALORE - 560001. 5. INFRASTRUCTURE DEVELOPMENT AND PLANNING COMMISSION, YOJANA BHAVAN, NEW DELHI. REPRESENTED BY ITS SECRETARY 6. BANGALORE INTERNATIONAL AIRPORT LIMITED NO118, GAYATHRI LAKEFRONT, OUTER RING ROAD, HEBBAL BANGALORE - 560024 REPRESENTED BY ITS MANAGING DIRECTOR. ... RESPONDENTS (By Sri PRABHULING K NAVADAGI, ADDL.S.G for Sri Y.HARIPRASAD, ADVOCATE FOR R.1; Sri T.RAJARAM, ADVOCATE FOR R.2; Sri RAYAPPA HADAGALI, ADVOCATE, FOR DUA ASSOCIATES, ADVOCATES FOR R-3; Sri P.S.MANJUNATH, ADVOCATE FOR R.4; Sri UDAYA HOLLA, SR.COUNSEL FOR M/s HOLLA & HOLLA, ADVOCATES FOR R-6; R.5 SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED GAZETTE NOTIFICATION DATED 16.5.2008 WHICH IS AT ANNEXURE-AM AS ARBITRARY, ILLEGAL, AND NON-EST IN LAW; DECLARE THE CONCESSION AGREEMENT DATED 05.07.2004 WHICH IS AT ANNEXURE-AK & AL AS ILLEGAL, NULL AND VOID; DIRECT THE 3 RD RESPONDNET TO OPERATE THE HAL AIRPORT FOR COMMERCIAL SCHEDULED AIRLINES OPERATIONS; DECLARE THAT - 3 - TRANSFER OF IATA CODE BY THE 1 ST AND 2 ND RESPONDENTS AS ILLEGAL AND INVALID AND CONSEQUENTLY RESTORE THE IATA CODE BLR TO THE HAL AIRPORT AND DIRECT THE HAL AIRPORT OPERATIONS BE HANDLED ONLY BY THE 3 RD RESPONDENT AND NOT HANDED OVER TO ANY OTHER THIRD PARTY. IN WP No.10389 OF 2008 BETWEEN THE ASSOCIATION OF OUTSOURCING PROFESSIONALS A SOCIETY REGISTERED UNDER THE SOCIETIES ACT, HAVING ITS OFFICE AT NO.39/2, NEAR DAIRY CIRCLE, SAGAR MOTORS, BANNERGHATTA ROAD, BANGALORE-560 029, REPRESENTED BY ITS PRESIDENT SRI.VIVEK KULKARNI ... PETITIONER (By Sri B.C.THIRUVENGADAM, ADVOCATE) AND 1. BANGALORE INTERNATIONAL AIRPORT LIMITED 36,CUNNINGHAM ROAD, BANGALORE-560 052. REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE UNION OF INDIA MINISTRY OF CIVIL AVIATION, RAJIV GANDHI BHAVAN, ’B’ BLOCK, SAFDARJUNG AIRPORT, NEW DELHI-110 003. REPRESENTED BY ITS SECRETARY. ... RESPONDENTS (By Sri UDAYA HOLLA, SR.COUNSEL FOR M/s HOLLA & HOLLA, ADVOCATES, FOR R.1; Sri PRABHULING K.NAVADAGI, ADDL.S.G. FOR Sri Y.HARIPRASAD, ADV. FOR R.2) - 4 - THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 04.07.2008 PASSED BY THE HON'BLE MRTP COMMISSION, NEW DELHI IN RPTE NO.27/2008, WHICH IS ANNEXURE-A TO THIS PETITION; DECLARE THE CONCESSION AGREEMENT DATED 5 TH JULY 2004 ENTERED BETWEEN THE MINISTRY OF CIVIL AVIATION AND THE BANGALORE INTERNATIONAL AIRPORT LIMITED AS UNCONSTITUTIONAL WHICH IS ANNEXURE-E TO THIS PETITION AND TO REOPEN HAL AIRPORT FOR COMMENRCIAL AND FOR CIVIL AVIATION USE. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE ACTING CHIEF JUSTICE PRONOUNCED THE FOLLOWING: ORDER These are public interest litigations, principally, challenging the decision dated May 16, 2008, of the Ministry of Civil Aviation for closure of Hindustan Aeronautics Limited (HAL) Airport, in view of commissioning of Bengaluru International Airport at Devanahalli, with effect from May 23, 2008, for commercial civil operations. 2. Thus, from May, 23, 2008, commercial civil operations have stopped in HAL Airport except at times of national emergency. 3. These are the writ petitions by the employees of the HAL Airport. However, learned advocate appearing for the - 5 - petitioners fairly conceded that service of the employees of HAL Airport was not affected by such a decision of closure. 4. During the Second World War, Hindustan Aeronautics Ltd. (‘HAL’ for short), which is today a defence sector undertaking, under the control of Ministry of Defence, was started for manufacture, repair and overhauling of aeroplanes. It set up aerodrome where planes were to be tested. 5. The above aerodrome was subsequently used for civil commercial aircraft operations. HAL Airport is a civilian enclave in a defence Airport and is the only aircraft testing and research facility in the world, which accommodated civilian aircraft movement. 6. In this Airport, over 50 defence aircrafts, helicopters land and take off every day. Testing of aircrafts, which are manufactured/serviced/repaired/overhauled, is to be carried out in this Airport. Test flights of various aircrafts, including Light Combat Aircraft (LAC), are carried out in this aerodrome. Aircraft on test flights often experience flight emergencies - 6 - requiring priority landing. Mixed traffic of military high speed aircraft and civilian commercial flights, which number nearly 350 are not conducive to flight safety. 7. On January 30 , 1990 Chairman of HAL wrote a letter to the Chairman, National Airport Authorities {predecessor of Airport Authorities of India (‘AAI’ for short)} stating that increase in the civil air traffic causes concern of safety and efficient conduct of test flying and that National Airport Authorities should have an alternative Airport in Bangalore to cater to civil airport needs. 8. During 1989-1990 Central Government set up a committee under the Chairmanship of S.Ramanathan, the former Secretary to Government and Chairman of International Airport Authority of India, to examine alternative sites for construction of a modern Airport at Bangalore. 9. In the year 1992, after detailed examination, Ramanathan Committee submitted a report recommending setting up of the Bangalore Airport at Devanahalli. - 7 - 10. Government started exploring the possibility of setting up of the Airport at Devanahalli. It found the cost to be extremely high and therefore thought of a public private participation model. 11. In the year 1999, Ministry of Civil Aviation framed the Green Field Airport Policy for construction of new airports to replace the existing airports. Clauses 10 to 12 of the above policy permit a special purpose vehicle (SPV) being formed for setting up Green Field Airport, where the private entrepreneur will have 74% per centum shareholding and the State Government and AAI will each hold 13% per centum shares. 12. Learned advocate appearing for the petitioners submits, under the policy decision a Greenfield Airport may be established where an existing Airport is unable to meet the projected Airport traffic or a new focal point of traffic emerges with sufficient viability. It was, further, decided that it can be allowed both as a replacement for an existing Airport or for simultaneous operation. - 8 - 13. On the issue of construction of Airport of international standards at Devanahalli near Bengaluru, the Ministry of Civil Aviation prepared a note dated January 13, 2000, for Cabinet discussion. It proposed that, once the new Airport would become operational, the existing Airport at Bengaluru would be closed for civilian operations. The existing Airport would not be available even for civilian operations of upto 52-seater aircraft inasmuch as it would not be economically justifiable. Most significant note was in paragraph 7 of the said note. The paragraph 7 runs as under:- “7. Institutional framework for setting up of new airport . 7.1 A Memorandum of Understanding has been signed between AAI and Karnataka State Industrial Investment and Development Corporation Limited (KSIIDC) for setting up of a Joint Venture company consisting of AAI, KSIIDC and a strategic partner/main promoter for construction of new Airport at Devanahalli near Bangalore. The project shall be implemented by the Joint venture company (JVC) duly represented on its board by AAI and KSIIDC nominees in proportion to their equity participation. KSIIDC and AAI shall have taken together not less than 26% equity holding in the proposed JVC. The balance 74% equity will be contributed by the selected private Joint - 9 - Venture partner. The process of selection of strategic partner through global tender is in progress.” 14. The Ministry of Civil Aviation and Ministry of Defence exchanged their comments. 15. The Cabinet held a meeting on January 19, 2000, and decided to postpone the consideration of the note and, further, directed that the proposal might be, in the first instance, considered by the Task Force on infrastructure set up under the Chairmanship of the Deputy Chairman, Planning Commission of India, and, thereafter, to consider the proposal. 16. The Ministry of Civil Aviation prepared a supplementary note for the Cabinet on January 31, 2000. The Cabinet met on February 1, 2000, and discussed the matter threadbare . The Cabinet approved, in principle, the setting up of a new Airport of international standards for Bengaluru, in accordance with the institutional frame-work mentioned in the said paragraph- 7 of the main note. In the meeting of the cabinet dated - 10 - February 1, 2000, the Cabinet considered the note dated January 13, 2000 from the Ministry of Civil Aviation and the supplementary note dated January 31, 2000 and approved, in principle, the setting up of a new Airport of international standards for Bengaluru in accordance with the institutional framework mentioned in the said paragraph-7 of the main note.
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