Kerala Moves Supreme Court Seeking Stay On Lease Of Thiruvananthapuram Airport To Adani Group
(Judicial Quest News Network)
The Kerala Government on Thursday moved Supreme Court seeking a Stay on the October 19 Judgement of the Kerala High Court by which Adani Enterprises was allocated to operate, manage and develop the Thiruvananthapuram Airport.
The plea calls out the decision of the Airport Authority of India (AAI) to prefer a particular private concessionaire, Adani Enterprises, for the operation, management and development of Thiruvananthapuram International Airport as arbitrary and illegal.
In 2019, Adani Enterprises won a bid to operate the Lucknow, Ahmedabad, Jaipur, Mangaluru, Thiruvanathapuram and Guwhati Airports through a public-private partnership model in August this year.
The Petition filed by Advocate CK Sasi challenges the “Arbitrary and illegal action of the Airports Authority of India”. To preferAdani over the state government for management of the Airport.
The writ petition is filed on various grounds, including absence of public interest in the grant of such concession, the same not being in the interest of better management of the Airport, the entire proceedings including tender process being vitiated by malafides and also in violation of the provisions of the Airport Authority of India Act, 1994 and the attempted grant of concession being in violation of an earlier undertaking by the Ministry of Civil Aviation, Government of India and rejecting the proposal of the State Government to form a Special Purpose Vehicle (SPV) to take over and run the Airport on revenue sharing basis.
The State of Kerala in its plea contended that granting conseeion to Adani “who has no previous experience in managing airports, is not in public interest and is violative of the provisions of the Airport Authority of India Act, 1994 as well as the proprietary rights of the State Government as regards the land wherein the Thiruvananthapuram Airport is situated, especially when the Hon’ble Chief Minister of Kerala, has offered to take the project at the rate at par with what was quoted by Respondent No.9. It was further contended that the condition precedent for the Airport Authority to invoke provisions of Section 12A of the Airport Authority of India Act, 1994 is either public interest or for better management thereof and in the Request For Proposals published by the Airport Authority of India there is no mention that such a cause is being adopted on the basis of the conditions mentioned in Section 12A of the Airport Authority of India Act, 1994 and therefore the Request For Proposals is an arbitrary exercise of power.”
It is submitted that in the instant case, he Hon’ble Chief Minister of Kerala, on 21.11.2018, wrote to the Hon’ble Civil Aviation Minister, Government of India informing that the State Government has been actively associated in transferring land to the Airport Authority of India, without having any legal obligation to do so, on the explicit understanding that the State of Kerala would be associated by forming an SPV whenever the Airport Authority felt the need to transfer the management of the airport to any entity. By this time the State had the additional experience of managing the Kannur International Airport. That on 28.11.2018 the Secretary, Ministry of Civil Aviation, Government of India wrote to the Chief Secretary of the State that the concerns of the Hon’ble CM would be considered by the Empowered Group of Secretaries (EGOS) headed by the CEO of Niti Ayog and that the state government should present its case before the said EGOS on 04.12.2018. In the said meeting the State of Kerala had made two suggestions i.e.
a) AAI may transfer the airport assets and operation to Govt. of Kerala (GOK), GOK thereafter will form an SPV as mentioned above and tie up with a strategic partner who is a proven “operator” at international level.
b) Alternatively, AAI may offer Right of First Refusal (ROFR) to the SPV of GOK and the SPV formed by GOK will participate in the bid along with a strategic partner who has experience in Airport operations.
It is submitted that having regard to the fact that by Letter dated 2.12.2003, Government of India had given an assurance to the State of Kerala that when a decision is taken to induct private sector into the management of Thiruvananthapuram Airport, Government of India would consult the State Government taking into account the contribution made by the State towards acquisition of land to the airport, also shows that the expectations of the State Government is based on the statement made by the Government of India which has the duty of making the decision. It is submitted that crystallisation of such the legitimate expectation cannot be varied on an unfair and illegal act on the part of the Government of India.
It is submitted that the High Court failed to appreciate that State Government has been in discussion with the Government of India to develop the Thiruvananthapuram Airport on PPP model and to allow the State Government the opportunity to form an SPV to take over and run the airport on revenue sharing basis or other mutually agreed terms with AAI. The airport has around 335 acres of land including the lad given by the State Government. From 2000 onwards the State acquired land and gave it free of cost to AAI on the expectation that the value of land handed over to AAI would be converted into equity of the State Government in the event of airport being structured into a company or an SPV set up to manage the airport. It is submitted that this expectation of the State Government is legitimate, reasonable, logical and valid. It is submitted that when the decision taken by the Government of India is arbitrary, unreasonable and not taken in public interest contrary to the legitimate expectation of the State Government the High Court ought to have interfered in such decision.
Earlier this year, the Kerala High Court had rejected challenges to the Central Government decisions to lease out the Thiruvananthapuram’
