SYNOPSIS

This Special Leave Petition arises from the Judgment passed by the

High Court of Kerala dismissing the Writ Petition filed by the State of

Kerala as not maintainable, holding that the question raised in the Writ

Petition is to be decided by the Hon’ble Supreme Court under Article

131 of the Constitution of India. The High Court rejected the

contention of the petitioner State of Kerala that the Writ Petition filed

under Article 226 of the Constitution is maintainable, as apart from

Union of India, the Airports Authority of India and its functionaries are

also arrayed as party respondents in the Writ Petition, as also private

respondents 8 to 10 who are necessary parties in the Writ Petition.

It is submitted that this Hon’ble Court in a catena of Judgments viz.

State of Bihar v. Union of India (1970)1 SCC 67, State of

Rajasthan v. Union of India (1977) 3 SCC 592, Union of India v.

State of Rajasthan, (1984) 4 SCC 238 and Tashi Delek Gaming

Solutions Ltd. v. State of Karnataka (2006) 1 SCC 442 held that

Article 131 of the Constitution of India does not contemplate any

private party being arrayed as a disputant on one side or the other and

Article 131 will not be applicable where citizens or private bodies are

parties either jointly or in the alternate with the State or the

Government of India.

In the instant case, the State of Kerala filed a Writ Petition before the

High Court of Kerala under Article 226 of the Constitution of India

challenging the arbitrary and illegal action of the Airports Authority of

India in attempting to prefer a particular private concessionaire (who is

arrayed as Respondent No.9 in the said Writ Petition) for the

operation, management and development of Thiruvananthapuram

International 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 Government of Kerala is having experience in running Airports

through its various organizations. The Kochi International Airport at

Nedumbasserry, Ernakulam, Kerala, which is being operated by

Cochin International Airport Limited (CIAL), a State Government

sponsored Company, is one of the leading Airports world over. The

State Government is having major share in the same apart from the

shares of other Government Institutions including the Kerala State

Industrial Development Corporation, Respondent No.10 herein. The

Kochi International Airport had won much recognition, including

recognition from the United Nations and is the only airport in the world

which is being operated solely by solar energy. The Kochi

International Airport is also making huge profits, unlike many other

airports in the country.

Apart from the above mentioned Kochi International Airport, the

Kannur International Airport, having most modern and state of the art

aviation and other passenger and cargo facilities, which is being

operated by the Kannur International Airport Limited (KIAL), another

State Government sponsored Company, has become operational and

is making steadfast progress.

The contention of the State of Kerala in the Writ Petition, inter alia, is

that the attempt on the part of the Airport Authority to grant right of

Operation, Management and Development of Thiruvananthapuram

Airport, to a private party, Respondent No.9, 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.

The High Court by the impugned Judgment held that the writ petition

filed by the State of Kerala is not maintainable in so far as the remedy

of the Petitioner State is to file a suit before the Supreme Court in

terms of Article 131 of the Constitution of India. It was further held that

the Airport Authority of India was essentially implementing a policy of

the Government of India in terms of section 40 of the Airport Authority

of India Act and therefore, essentially the dispute was between the

Government of India and the State of Kerala, which is a dispute over

which the Hon’ble Supreme Court is having jurisdiction to the

exclusion of all Courts.

It is submitted that the High Court failed to appreciate that Article 131

of the Constitution does not contemplate any private party being

arrayed as a party on one side or other. In the instant case the Airport

Authority is made as a respondent in the Writ Petition as it is a

necessary party. A suit under Article 131 is not maintainable with

Airport Authority as defendant in the suit. It is submitted that for

determining as to whether a suit before the Hon’ble Supreme Court

under Article 131 of the Constitution has to be taken recourse to, it is

necessary to consider whether the State can, in the facts of the given

case, independently maintain a suit against the Government of India.

As per section 12A of the Airport Authority of India Act, it is the Airport

Authority which is to make a lease, though it is a government policy in

terms of Section 40 of the said Act. It is submitted that any

proceedings regarding the decision to make such a lease will be bad

for non joinder of necessary parties if Airport Authority of India is not in

the party array. Therefore Airport Authority of India is a necessary

party to such a lis and no writ petition will lie without Airport Authority

on the party array. It is submitted that in the instant case, it is the

Airport Authority which invited the Request For Proposal and any

challenge impugning the proceedings which led to the Request For

Proposal cannot be instituted without Airport Authority on the party

array.

It is submitted that the High Court failed to appreciate that the word

“State” in Article 131 of the Constitution cannot be a “State” under

Article 12 of the Constitution of India. The Airports Authority may

qualify to be a “State” in terms of Articles 12 and 36 of the

Constitution. It is submitted that such wider definition of “State” in

Articles 12 and 36 of the Constitution, as mandated in the said Articles

itself, are intended for the purpose of Part III and IV of the Constitution

and therefore the attributes of “State” in terms of Parts III and IV of the

Constitution cannot be imported to “States” as provided for in Article

131, which takes in only a “State” which is the constituent unit of the

Union of India.

It is submitted that the High Court failed to appreciate that in so far as

Airports Authority is a necessary party and in so far as Airports

Authority will not qualify to be a “State” as provided for under Article

131 of the Constitution and no suit in terms of the said Article 131 can

be filed with any party other than any State or Government of India in

the party array, no suit will lie before the Hon’ble Supreme Court in the
given case and only a writ petition under Article 226 of the Constitution

will lie.

It is submitted that the High Court failed to appreciate that apart from

the third respondent Airports Authority, the respondents 4 to 6, being

officers of the Airports Authority viz. the Executive Director, the

Regional Executive Director and the Airport Director Airports Authority

of India and the respondents 8 to 10, being entities which took part in

the bid for lease of operations of Thiruvananthapuram Airport viz.

Airports Economic Regulatory Authority of India, G.M.R Airports Ltd,

Adani Enterprises Ltd and the Kerala Industrial Development

Corporation, are also necessary parties to the writ petition. The

petitioner has explained as to how a writ petition is maintainable and

as to why proceedings in terms of Article 131 of the Constitution of

India cannot be taken recourse to in paragraph 2 of the writ petition.

Paragraph 2 of the writ petition is reproduced hereunder:

2) It is trite and settled law that in a suit in terms of Article

131 of the Constitution of India, it could only be the

constituent units of the Union of India and the

Government of India itself arrayed or one side or the other

either singly or jointly with another unit or the Government

of India. Thus, as settled by the Hon’ble Apex Court in a

catena of decisions, a dispute which fell within the ambit

of Article 131 could only be determined in the Hon’ble

Supreme Court if there had not been impleaded in the

said dispute any private party, be it a citizen or a firm or a

 corporation along with a State either jointly or in the

alternative and that a dispute in which such a private

party was involved must be brought before a Court, other

than the Hon’ble Apex Court. It is also trite and settled law

that the enlarged definition of “State” given in Parts III and

IV of the Constitution would not be attracted to Article 131

of the Constitution. Thus the Airport Authority of India

cannot be considered to be a “State” for the purpose of

Article 131 of the Constitution. The lis in this writ petition

cannot be finalised without the Airport Authority of India or

its Officers or the respondents 8 and 9 in the party array.

Thus, in so far as the respondents 3 to 6 and 8 and 9 are

necessary parties to the lis, no suit, on the cause of action

traced in this writ petition, can be sustained before the

Honourable Apex Court in terms of Article 131 of the

Constitution of India and, as such, this writ petition is

maintainable before the Hon’ble Court on the various

grounds raised herein below.

It is submitted that when the maintainability of the writ petition was

properly explained by the petitioner in the writ petition itself and also in

view of the ratio laid down by this Hon’ble Court regarding the

maintainability of a suit under Article 131 of the Constitution, the High

Court should not have dismissed the writ petition on the ground of

maintainability.
This Hon’ble Court in State of Bihar v. Union of India, (1970) 1 SCC

67 held as follows:-

3. Clauses (a), (b) and (c) of the article specify the parties who

can appear as disputants before this Court. Under clause (a) it

is the Government of India and one or more States; under

clause (b) it is the Government of India and one or more States

on one side and one or more other States on the other, while

under clause (c) the parties can be two or more States without

the Government of India being involved in the dispute. The

specification of the parties is not of an inclusive kind. The

express words of clauses (a), (b) and (c) exclude the idea of a

private citizen, a firm or a corporation figuring as disputant either

alone or even along with a State or with the Government of

India in the category of a party to the dispute. There is no scope

for suggesting that a private citizen, a firm or a corporation can

be arrayed as a party by itself on one side and one or more

States including the Government of India on the other. Nor is

there anything in the article which suggests a claim being made

by or preferred against a private party jointly or in the alternative

with a State or the Government of India. The framers of the

Constitution appear not to have contemplated the case of a

dispute in which a private citizen, a firm or a corporation is in

any way involved as a fit subject for adjudication by this Court

under its exclusive original jurisdiction conferred by Article 131.

This Hon’ble Court in State of Rajasthan v. Union of India, (1977) 3

SCC 592 held as follows:-

There are two limitations in regard to the nature of the suit which

can be entertained by the Supreme Court under this Article.

One is in regard to parties and the other is in regard to the

subject-matter. The Article provides in so many terms in clauses

(a), (b) and (c) that the dispute must be between the

Government of India and one or more States, or between the

Government of India and any other State or States on one side

and one or more other States on the other, or between two or

more States. It does not contemplate any private party being

arrayed as a disputant on one side or the other. The parties to

the dispute must fall within one or the other category specified in

clauses (a), (b) and (c).

This Hon’ble Court in Tashi Delek Gaming Solutions Ltd. v. State of

Karnataka, (2006) 1 SCC 442 held as follows:-

Article 131 of the Constitution postulates that this Court to

the exclusion of any other court shall have original

jurisdiction in any dispute between the Government of

India and one or more States; or between the

Government of India and any State or States on one side

and one or more other States on the other; or between

two or more States. We in this case are not concerned

with the proviso to the said article. The said article would
 be attracted where adjudication is necessary in relation to

a legal right of one State or the Union of India vis-à-vis

other States, as the case may be. Indisputably, the

expression “legal right” has received liberal interpretation

by this Court from time to time. However, it is now well

settled by various decisions of this Court that this article

will not be applicable where citizens or private bodies are

parties either jointly or in the alternative with the State or

the Government of India. The enlarged definition of

“State” under Article 12 would not extend to Article 131 of

the Constitution. It is also not in dispute that even a

statutory corporation is not a State within the meaning of

the said provision.

It is submitted that the reliefs claimed in the Writ Petition filed by the

State of Kerala itself shows that a suit under Article 131 is not all

maintainable and the Hon’ble Supreme Court cannot pass a decree in

such terms under Article 131 of the Constitution. The Reliefs in the writ

Petition are as follows:-

RELIEFS
(1) Declare that Exhibits P13 Request for Proposal
(RFP) for Concession with regard to the Operation,
Management and Development of
Thiruvananthapuram International Airport is without
jurisdiction, illegal and violative of Section 12A of
the Airport Authority Act;
 Or in the alternative
(2) Declare that the Petitioner State of Kerala is
entitled to preferential consideration over the ninth
respondent in public interest as regards the
Concession for Operation, Development and
Management of Thiruvananthapuram Airport, in
view of the mandate of Section 12A of the Airport
Authority Act;

(3) Declare that the third respondent Airport Authority

of India is bound to accept the proposal of the State
Government through the tenth respondent for grant
of concession facility at par with the amount offered
by the ninth respondent;

(4) Issue a writ of mandamus or any other appropriate

writ or order or direction commanding the 3rd
respondent to positively consider the offer of the
State of Kerala, as revealed from Exhibits P19 and
P20 letters, before finalizing the Tender pursuant to
Exhibit P13;

(5) Issue a writ of certiorari or any other appropriate

writ or order or direction calling for the records
leading to Exhibit P9 and quash the same, in so far
as it limits the Right of First Refusal (RFP) to the
petitioner State in the manner to plus or minus
10%.

It is submitted that the issuance of writs sought for in the Writ Petition

are against the Airport Authority of India and for issuing the

declarations, the Court has to hear the private parties and thus only a

Writ Court can hear such a petition.

It is submitted that the dispute regarding whether the Request For

Proposal issued by the Airport Authority of India is violative of Section

12A of the Airport Authority of India Act or whether the State of Kerala

is entitled to preferential consideration over Respondent No.9 in public

interest regards the Concession for Operation, Development and

Management of the Thiruvananthapuram Airport in view of the

mandate of the Airport Authority of India Act and other questions

arises in the Writ Petition cannot be treated as question “on which the

existence or extent of a legal right depends” as contemplated under

Article 131 of the Constitution, when the lis involves private parties

and a Statutory Authority.

Hence the Special Leave Petition

 LIST OF DATES

1932 The Thiruvananthapuram Airport, the first such

facility in the erstwhile Travancore Princely State

and the present day geographical area of Kerala

State, was established in 1932 as part of Royal

Flying Club in 258.06 acres of land owned by the

said princely State of Travancore. Thus the Airport

happened to be initially established in 258.06 acres

of land, which land belonged to the then existent

princely State of Travancore and which is presently

in Pettah Village of Thiruvananthapuram Taluk,

Thiruvananthapuram District.

1938 TATA Airlines made its Maiden Flight from therein.

The first squadron of Royal Indian Air Force began

operating therein from 1938.

After independence, the Domestic Terminal was

constructed.

1.7.1949 The Rulers of the then princely States of

Travancore and Cochin entered into a Covenant

with the concurrence and guarantee of the

Government of India, by virtue of which the United

States of Travancore and Cochin came into being

with effect from 01.07.1949. By virtue of Article I I I

of the said Covenant, the assets and liabilities of

 each of the covenanting State of Travancore and

Cochin became the assets and liabilities of the

United States of Travancore and Cochin. As such,

the aforementioned 258.06 acres of land (in Pettah

Village) in which the Airport was initially established

became the land owned by the United States of

Travancore and Cochin.

1956 By virtue of Article IX of the above mentioned

Covenant, an Instrument of Accession was

executed by the Rajapramukh of the United States

of Travancore and Cochin and by virtue of the said

instrument of accession, the United States of

Travancore and Cochin became a constituent unit

of the Indian Union. By virtue of Section 5 of the

States Reorganisation Act, 1956, State of Kerala

was formed including the Travancore -Cochin State

(except those areas of the said State which were

ceded to the then Madras State as per Section 4 of

the said Act), the erstwhile Malabar District

(excluding Laccadives and Minicoy islands) of

Madras State and Kasaragode Taluk of South

Canara District. By virtue of Section 2 (o) of the

said Act, the new State of Kerala is the successor

State of the erstwhile Travancore - Cochin State

and by virtue of Section 77 of the said Act, all land

 which belonged to the erstwhile Travancore -

Cochin State passed on to the newly formed Kerala

State. Hence, after 1956, the aforesaid 258.06

acres of land (now in Pettah Village), in which the

Airport was initially established and now forms part

of the larger area in which it is functioning, became

the asset of the State of Kerala.

1970 International operations were initiated from the

Airport by Air India in the year 1970. In the early

1980s, Indian Airlines started services to Colombo

and Male.

1985 By virtue of Section 13 of the National Airport

Authority Act 1985, the equipments and

navigational and ground aids relating to air traffic

services in the Airport became vested with National

Airport Authority and the Airport became part of the

National Airport Authority in matters of its operation.

The aforementioned landed property, upon which

the Airport was initially established, continued to be

vested with the State Government. After the

commencement of the Airport Authority of India Act

1994, the Airport came under the operational

authority of the Airport Authority of India. But the

said land, as earlier, continued to be vested with

the State.
1.01.1991 The Airport was upgraded to International Airport.

The State of Kerala has effectively and purposefully

promoted the Thiruvananthapuram Airport and

because of its earnest efforts, the Airport, as stated

above, was declared as the first International

Airport of the State of Kerala in 1991. The State of

Kerala has given the entire infrastructural and other

facilities for promoting the affairs of the Airport and

is continuing to do so. The betterment of the

Airport, both international and domestic terminals,

is in the best interests of the people of Kerala and

hence the State Government is visibly interested in

promoting the affairs of the Airport to the best of its

efforts.

As on today, the Airport is having a total extent of

636.57 acres of land. Airport Authority of India has
ownership only 0.5756 hectares out of the total
extent of 636.57 acres of land.

Apart from the aforementioned 258.06 Acres of

property, 329.6 Acres of land was acquired by the

third respondent Airport Authority of India and

Government of India, 32.56 Acres of land was

acquired by the Government of Kerala and 8.29

Acres of Government land was transferred by the

Government of Kerala free of cost. The

aforementioned 258.06 Acres in which the Airport

was initially established has been entered in

 revenue records as Puramboke land, meaning

Government land. That the said 258.06 acres of

land has been entered in revenue records as

Puramboke land.

23.04.2003 After the economic policy of the Union Government

changed, with the advent of liberalisation,

privatisation and globalisation measures, there

were attempts to privatise the management and

operation of various airports in India. When there

were some movements for privatising the

management of the Airport, the State Government

approached the Central Government, detailing the

interest of the State Government in protecting the

public interest. Pursuant to the repeated efforts of

the State Government to protect the affairs of the

Thiruvananthapuram Airport, the Secretary,

Ministry of Civil Aviation, Government of India, the

second respondent herein, issued D.O. Letter No.

1413/SCA/2003 dated 23.04.2003 to the Chief

Secretary of the Petitioner State regarding

development of Airports in Kerala. In answer to the

query of the petitioner State with regard to the

possibility of private sector involvement in the

development of the Airport, it was clarified by the

second respondent in the said letter that there was

no plan to handover to the Airport to any private

agency; that a Special Purpose Vehicle (SPV) for

development of Airport with State Government and

financial institutions as partners could be created;

and that cost of acquisition of land by the

Government fully or partially could be adjusted

towards the State's share. A copy of the Letter

D.O.No. 1413/SCA/2003 issued by the Secretary,

Ministry of Civil Aviation, Government of India

dated 23.04.2003 is annexed and marked as

ANNEXURE-P1 ( at page …..to……..).

As can be seen from Annexure-P1 letter dated

23.04.2003, the Union Government, through its

Ministry of Civil Aviation, had assured the State

that a SPV for development of

Thiruvananthapuram Airport was to be created

and that the State Government's equity share in

the said SPV would be the cost of the acquisition

of the land. I t was also assured that when a

decision was taken to induct private sector in the

management of the Airport, the Union Government

would be happy to consult the State taking into

account the contribution being made by the State

Government towards the acquisition of the

additional land for the Airport.

7.10.2003 Through Letter numbered DO No.

20311/D2/97/TRAN dated 7.10.2003 and earlier

letters dated 17.03.2003 and 23.04.2003 issued

by the then Principal Secretary to the Government

of Kerala, Department of Transport to the then

Secretary, Ministry of Civil Aviation, Government

of India, the Government of the Petitioner State

had expressed its desire for signing of a

Memorandum of Understanding between the

Government of India and the State Government if

there was a change of ownership, management

etc of the Airport once the land was handed over

to the third respondent. Letters dated 17.03.2003

and 23.04.2003 were sent in this regard is

discernible from the Letter dated 7.10.2003. A

copy of the DO No. 20311/D2/97/TRAN dated

7.10.2003 is annexed and marked as

ANNEXURE-P2 ( at page …..to……..).

2.12.2003 As per D.O. Letter No. AV.24018/1/99-AAI P-3

dated 02.12.2003, the Secretary, Ministry of Civil

Aviation, Government of India assured the State

Government that taking into account the

contribution being made by the State for

acquisition of additional land for the Airport, the

State Government would be consulted at the time

 when a decision would be taken to induct private

sector in to the management of

Thiruvananthapuram Airport. A copy of the

D.O.24018/1/99-AAI P-3 dated 02.12.2003 is

annexed and marked as ANNEXURE-P3 ( at

page …..to……..).

16.3.2004 Sanction was accorded for handing over of land

to the third respondent Airport Authority and for

acquisition of 120 acres of land for the Airport as

per G.O. (MS) No. 11/2004/Trans dated

16.03.2004 relying on the assurances given by

the Central Government. The assurance given by

the Government of India to the effect that no

policy decision had been taken to induct private

sector into the management of the Airport and

that, in such an event, the Government of India

would consult with the State Government was

specifically noted in G.O. (MS) No. 11/2004/Trans.

A true copy of G.O. (MS) No. 11/2004/Trans

dated 16.03.2004 is annexed and marked as

ANNEXURE-P4 ( at page …..to……..).

29.3.2005 As a matter of fact, during this period, the State

Government had acquired by its own fund an

extent of 27 acres of land for the purpose of the

Airport and handed over the same to the third

respondent Airport Authority of India free of cost.

The same is discernible from G.O. (MS) No.

82/05/RD dated 29.03.2005. As per the said

Government Order, the Government of Kerala

accorded sanction for transfer of 27 acres 57

cents and 11 square links of property comprised

in Pettah Village of Thiruvananthapuram Taluk in

favour of the third respondent on condition that in

the event of the third respondent being structured

into a Company for any reason or if a Special

Purpose Vehicle is set up for the Airport, then the

value of the land transferred to the third

respondent would need to be reflected as

Government of Kerala's share capital and/ or in

any other financial instrument as might be

mutually agreed upon. A true copy of G.O.(MS)

No. 82/2005/RD dated 29.03.2005 is annexed

and marked as ANNEXURE-P5 ( at page

…..to……..).

However, in total negation of the assurance given

by the Government of India and even without

consulting the State Government, Government of

India as well as the Airport Authority of India took

initial steps for giving concession for operation,

management and development of certain Airports

including the Thiruvananthapuram International

Airport to private sector. Accordingly Request For

Proposals (RFP) were published as regards Six

Airports including Thiruvananthapuram.

The third respondent Airport Authority of India had

earlier made similar concessionaire as regards

Airports of Delhi and Mumbai in the year 2005.

While issuing the Request For Proposals with

regard to the said airports in 2005, one of the

paramount qualifications to participate in the

tender process was previous experience in running

Airport. This was highly essential since Airport

Management was unlike other commercial,

activities and needed prior experience and

professional and technical expertise.

The Government of Kerala is having experience in

running Airports through its various organizations.

The Kochi International Airport at Nedumbasserry,

Ernakulam, Kerala, which is being operated by

Cochin International Airport Limited (CIAL), a State

Government sponsored Company, is one of the

leading Airports world over. The State Government

is having major share in the same apart from the

shares of other Government Institutions including

Kerala State Industrial Development Corporation,

 Respondent No.10 herein. I t is submitted that the

Cochin International Airport has won many

recognitions, including recognition from the United

Nations and is the only airport in the world which is

being operated solely by solar energy. The

aforesaid Airport is also making huge profits, unlike

many other airports in the country.

Apart from the Kochi International Airport, Kannur

International Airport, having most modern and

state of the art aviation and other passenger and

cargo facilities, which is being operated by the

Kannur International Airport Limited (KIAL),

another State Government sponsored Company,

has become operational and is making steadfast

progress. Thus, if the proposed Request For

Proposal of concession for development and

management of Thiruvananthapuram Airport was

having a condition of previous experience as a pre-

qualification, necessarily the State Government

and its instrumentalities would have got

preference.

21.11.2018 On coming to know that the Union Government

unilaterally decided to develop the

Thiruvananthapuram Airport on Public Private

Partnership (PPP) Mode, the Hon’ble Chief

Minister of Kerala sent D.O. Letter No.

2195/2018/CM dated 21.11.2018 to the Hon’ble

Minister for Civil Aviation, Union of India seeking

for intervention to reconsider the decision of the

Union Cabinet to development the Airport on PPP

Mode and to allow the State Government to form

a special purpose vehicle to takeover and run the

Airport on revenue sharing basis. A true copy of

the Letter D.O.No. 2195/2018/CM dated

21.11.2018 is annexed and marked as

ANNEXURE-P6 ( at page …..to……..).

In Annexure P6 Letter, it was specifically stated

that the Airport property comprised of land given

by the State Government, erstwhile Travancore

State and the land acquired by the State

Government from time to time and given to the

third respondent Authority free of cost; that the

State had been acquiring land from 2000

onwards for the purpose of the Airport on the pre

requisite that the Government of India would

consult the petitioner State before inducting the

private sector to the management of the Airport

and further that the value of the land being

acquired and handed over to the third respondent

Authority would be treated as the share of the

Government of Kerala in the event of a Company

or a special purpose vehicle being set up for the

purpose of management of the Airport; that the

State Government was in the process of

acquiring a further 18 acres of land for the Airport

at a cost of Rupees 250 Crores; that the State

Government had promoted Cochin International

Airport Limited (CIAL) through public participation

though a business model that had made Kochi

International Airport one of the best airports in the

country winning even accolades from the United

Nations; that the State Government had

promoted a Company, Kannur International

Airport Limited (KIAL), for another international

airport in the State at Kannur, which was then

about to commence operations (now operative);

and that it was well very well demonstrated that

the Government of the petitioner State had

adequate experience in promoting/ sponsoring

SPVs for the construction and operation of green

field international airports in the State. The

Government of India was requested to delink the

Thiruvananthapuram Airport from the list of

airports set apart for PPP mode development.

The Government of India was also requested to

constitute a committee to look at various other

 options and business models under which a SPV

could be formed for the operation and

development of the Airport wherein the cost of

land acquired by the State could be converted to

its equity share, the investment made by the third

respondent Authority could be converted to its

share and wherein remaining investment could

come from various institutional investors for future

development. The suggestion of the petitioner

State was that the Airport could be developed

and operated through a SPV with the

Government of Kerala as the chief promoter

taking the responsibility to bring in the investors.

28.11.2018 The Secretary, Government of India, Ministry of

Civil Aviation issued D.O. Letter No.

AV.24011/141/2015-AD dated 28.11.2018

informing that the Union Cabinet had approved

the constitution of an Empowered Group of

Secretaries (EGoS) for deciding issues relating to

PPP of the Airport. I t was stated therein that the

first meeting of the EGoS was scheduled on

04.12.2018 and the Chief Secretary of the

Government of Kerala was requested to make

presentation before the EGoS. A copy of Letter

D.O.No.AV.24011/141/2015-AD (Vol-IV) dated

 28.11.2018 is annexed and marked as

ANNEXURE-P7 ( at page …..to……..).

4.12.2018 The Chief Secretary of the Petitioner State made

a presentation before the EGoS on 04.12.2018.

The presentation, inter alia, included the history

of the Airport, the area parameters, the split up

details of the land available with the Airport and

the assurances given in 2003 by the Ministry of

Civil Aviation in 2003 regarding formation of an

SPV and consultation with the Government of

Kerala in the event of inducting private sector to

the management of the Airport. Two options were

placed as (A) and (B). Option (A): "The third

respondent Authority may transfer the Airport

assets and operation to the Government of

Kerala. The Government of Kerala, thereafter, will

form an SPV and tie up with a strategic partner

who is a proven operator at the international

level". Option (B): "The third respondent Authority

may offer the right of first refusal to the SPV of

the Government of Kerala and the said SPV will

participate in the bid along with a strategic partner

who has vast experience in Airport operations.

4.12.2018 The EGoS, in its meeting dated 04.12.2018,

decided to offer two options for the Government

of Kerala as a special case in respect of the PPP

of the Airport. The options were (i) that the

Government of India will invite Chief Secretary

and other officials of Government of Kerala as

special invitees for the purpose of participating in

the selection process for the PPP partner for the

Airport so as to address concerns/ interests of the

State Government or (ii) to proceed with

alternative (B) offered by the Government of

Kerala with the stipulation that an entity/ SPV in

which Government of Kerala has a direct equity

of 26 % or more is eligible for the right of first

refusal provided that the SPV's bid falls within the

range (plus or minus) of 10 % of the highest bid.

I t was specifically recorded in the minutes of the

EGoS that the aforementioned options were

being provided recognizing the expertise

demonstrated by the State Government in the

airport sector. True copy of the Minutes of the

meeting of the Empowered Group of Secretaries

(EGoS) dated 04.12.2018 is annexed and marked

as ANNEXURE-P8 ( at page …..to……..). As can

be seen from Annexure-P8, the expertise of the

State Government in the Airport Sector is

recognized by the Airport Authority/3rd

respondent. However, the Right of First Refusal

 was arbitrarily limited to plus or minus 10% of the

highest bid. Even then, there was no mention that

the previous experience in Airport Management

will not be considered.

8.12.2018 The Hon’ble Chief Minister of Kerala

addressed D.O Letter No. 3333/18/CM dated

08.12.2018 to the Hon’ble Union Minister for Civil

Aviation stating that the EGoS meeting had not

resolved the issue and also reiterating the first

option submitted by the Government of Kerala

(that is Option (A): "The third respondent

Authority may transfer the Airport assets and

operation to the Government of Kerala. The

Government of Kerala, thereafter, will form an

SPV and tie up with a strategic partner who is a

proven operator at the international level") or in

the alternative to offer the right of first refusal to

the SPV of the Government of Kerala without any

range parameters. I t was requested that the

options may be acceded to having regard to the

demonstrable experience of the Government of

Kerala in promoting SPVs for design build-

operate and maintenance of airports. A true copy

of Letter D.O.No. 3333/18/CM dated 08.12.2018

is annexed and marked as ANNEXURE-P9 ( at

page …..to……..).
11.12.2018 A similar letter, DO No. 415/02/2018/Trans dated

11.12.2018, was sent by the Chief Secretary of

the petitioner State to the Secretary, Ministry of

Civil Aviation, Government of India. A true copy of

Letter DO No. 415/02/2018/Trans dated

11.12.2018 is annexed and marked as

ANNEXURE-P10 ( at page …..to……..).

12.12.2018 In response to Annexure-P10 letter, DO No. AV

.24011/141/2015-AD (Vol IV) dated 12.12.2018

was sent by the Secretary, Ministry of Civil

Aviation to the Chief Secretary of the petitioner

State to the effect that parameters for Right to

First Refusal was required to maintain the

sanctity of the bidding process and that further

enlargement of the range beyond 10 % was also

not advisable for the said reason. A true copy of

DO No. AV .24011/141/2015-AD (Vol-IV) dated

12.12.2018 is annexed and marked as

ANNEXURE-P11 ( at page …..to……..).

14.12.2018 On 14/12/2018, the Request For Proposals (RFP)

with regard to concession for operation,

management and development of the Airport was

published by the Airport Authority, ignoring the

legitimate claims of the petitioner State

Government. In order to avoid a situation, where

the petitioner is not a participant in the Tender

process, it was decided that the petitioner State

Government through the Kerala State Industrial

Development Corporation Limited, Respondent

No.10 herein, should participate in the Tender,

though under protest, which was obvious from the

previous as well as subsequent communications

by the State Government to the Airport Authority

and Union of India. A copy of the Request For

Proposals issued by the Airport Authority of India

dated 14.12.2018 is annexed and marked as

ANNEXURE-P12 ( at page …..to……..).

Though the Hon’ble Chief Minister in the Letter

dated 21.11.2018 addressed to the Hon’ble

Minister for Civil Aviation, Government of India

had specifically pointed out the previous

experience of the State Government and its

instrumentalities in running, managing and

developing airports, so that other private players

without previous experience in airport

management and development would not be

taken into account. However, obviously to avoid

the State Government and its instrumentalities

from getting a preference in process of granting

the concession for operation, management and

development of Thiruvananthapuram Airport, the

clause regarding previous experience as a pre-

qualification for concessionaire for

Thiruvananthapuram Airport was intentionally

omitted from the RFP for the same. The same

was contrary to what was provided for in the

Concessionaire tenders regarding the Delhi and

Mumbai Airports.

As can be seen from RFP, it was published on

14.12.2018. The last date for submitting the bid

was 14.02.2019. As can be seen from paragraph

2.2.2 of RFP, the technical and financial

qualification is mentioned. The prospective bidder

has to register for the bid, upon which he will be

provided with a Draft Concession Agreement.

As per Clause 2.2.1 (b) of the RFP, the bidder

can also be single entity, group or combination of

entities. The technical qualification provided for in

paragraph 2.2.2 (a) of the RFP does not mandate

any previous experience in Airport Management (

as one of the qualification, which is obviously to

ensure that the- credentials of the State

Government is not protected and is overcome by

the ninth respondent. The financial qualification

provided for in paragraph 2.2.2 (b) (ii) of the RFP

mandates that ch bidder should have net worth of

Rs. 1000 crores. Thus for each bid, the bidder

should have an asset of thousand crores.

After paying the registration fee of Rs. 3.89 lakhs,

the bidder has to provide documents including

power of attorney authorizing a person to access

data room of the authority for getting the requisite

data for filing tender. Paragraph 2.9 of the RFP

provides for raising queries and getting

clarifications as also additional information from

the Airport Authority of India regarding the tender

procedure.

As can be seen from Paragraph 1.3 of the RFP,

the time limit for submitting the queries seeking

clarifications was 18.01.2019 and the answers

would be given up to 22.01.2019. However this

time limit was changed by the Authority several

times and extended up to 29.01.2019 and then to

31.01.2019. Even after that, the clarifications and

amendment of the proposal continued up to

08.02.2019. Thus the clarifications as well as

amendment of the conditions were continued up

to 08.02.2019 and the last date for filing the tender

was 14.02.2019. Thus there was only '6' days

from the last date of issuance of clarification and

 amendment and last date of filing of the tender.

5.2.2019 The questions whether a Government entity can

participate in the tender or a Government entity

was got clarified by the Airport Authority of India

only as per Letter No. MI/KID/PPP/6 Apts/2018

dated 05.02.2019. A copy of Letter No.

AAI/KID/PPP/6 Apts/2018 dated 05.02.2019 is

annexed and marked as ANNEXURE-P13.(at

pages……to……..). It was also subsequently

clarified that while considering the technical

qualification to have undertaken Rs. 3500 crores

worth work as well as financial qualification of

Rs.1000 crores worth asset, the same would be

sourced by the Kerala State Industrial

Development Corporation (KSIDC) taking into

account the asset of the Government or any of

the instrumentalities since the State

Government is the sole owner of KSIDC.

8.2.2019 As a matter of fact crucial amendments and

clarifications were issued by the Authority, even

on 08.02.2019. A copy of the Addendum No.2

dated 08.02.2019 to the revised draft concession

agreement is annexed and marked as

ANNEXURE-P14 ( at page …..to……..). Even the

criteria of the passengers was changed, the

 passengers to be charged was clarified and

amended excluding the passengers who were on

transit, which was not in the RFP. The entire

calculations and modulations have to be changed

because of these changes. Thus there was total

confusion up to 08.02.2019 regarding the details

and modalities of the tender. Even then, the last

date for submitting tender was not extended

beyond 14.02.2019. Thus the KSIDC which had

participated in the tender on 14.02.2019, as

ordered by the State Government, got only '6'

day's which included 2 public holidays, for finally

preparing the tender. It is submitted that this

haste in ensuring the submission of tender on

14.02.2019 within 6 days of the last clarification/

amendment is without any legal basis and is

arbitrary.

14.2.2019 The KSIDC had submitted the tender pursuant

to the request for the purpose on 14.02.2019

with all the details. As a matter of fact, the

KSIDC had quoted the rate of 135 as per

passenger tariff which was the only criteria for

the selection of the tenderer as per RFP. It is

submitted that as regards the Delhi and

Bangalore Airport RFP is concerned, the criteria,

 for selection of the tenderer is the rate of profit

sharing.

25.2.2019 The Airport Authority had opened the tenders on

25.02.2019 and it is now understood that the 9th

respondent has quoted Rs. 168 per passenger.

There is every possibility that the Airport

Authority would finalise the bid as regards the

Thiruvananthapuram Airport to Respondent

No.9. Respondent No.8 also took part in the

bidding process.

27.2.2019 The State Government feeling aggrieved, the Hon’ble

Chief Minister sent a letter to the Hon’ble Prime

Minister as well as the Hon'ble Union Minister for

Civil Aviation. A Copy of the letter

D.O.No.463/19/CM dated 27.02.2019 sent by the

Hon'ble Chief Minister of Kerala to the Hon'ble

Prime Minister of India is annexed and marked as

ANNEXURE-P15 ( at page …..to……..). A photo

copy of the letter D.O.No. 464/19/CM dated

27.02.2019 sent by the Hon'ble Chief Minister of

Kerala to the Hon'ble Union Minister for Civil

Aviation is annexed and marked as ANNEXURE-

P16 ( at page …..to……..). The Chief Secretary of

the petitioner State had sent a similar letter to the

Airport Authority.
5.3.2019 The petitioner herein, State of Kerala, filed Writ

Petition (Civil) No. 6823 of 2019 before the High

Court of Kerala contending inter alia that the

attempt on the part of the third respondent Airport

Authority to grant right of Operation, Management

and Development of Thiruvananthapuram Airport,

to the ninth respondent is not in public interest and

is violative of the provisions of the Airport Authority

of India Act 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 the ninth respondent. 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 there is no mention in the RFP that

such a cause is being adopted on the basis of the

conditions mentioned in Section 12A. Thus RFP is

without jurisdiction and also an arbitrary exercise

of power. A copy of the Writ Petition W.P.(C) No.

6823 of 2019 (without Exhibits) dated 5.3.2019

filed before High Court of Kerala is annexed and

marked as ANNEXURE-P17 ( at page

…….to……..).
18.12.2019 Impugned Judgment passed by the High Court

holding that the writ petition filed by the State of

Kerala is not maintainable in so far as the remedy

of the Petitioner State is to file a suit before the

Supreme Court in terms of Article 131 of the

Constitution of India. It was further held that the

Airport Authority of India was essentially

implementing a policy of the Government of India in

terms of section 40 of the Airport Authority of India

Act and therefore, essentially the dispute was

between the Government of India and the State of

Kerala, which is a dispute over which the Hon’ble

Supreme Court is having jurisdiction to the

exclusion of all Courts.

03.02.2020 The Special Leave Petition filed.

 IN THE SUPREME COURT OF INDIA
[ORDER XXI RULE 3(1) (a)]
CIVIL APPELLATE JURISDICTION
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020
(WITH PRAYER FOR INTERIM RELIEF)

BETWEEN Position of Parties

In the High Court In this Court

State of Kerala,
Represented by its Principal Secretary
Transport Department
Government Secretariat
Thiruvananthapuram
KERALA STATE Petitioner Petitioner

AND

1. The Union of India,

Represented by its Secretary
Ministry of Civil Aviation
Government of India, “B” Block,
Rajiv Gandhi Bhavan,
Safdarjung Airport,
NEW DELHI - 110 003. Respondent No.1 Respondent No.1

2. The Secretary
Ministry of Civil Aviation
Government of India, “B” Block,
Rajiv Gandhi Bhavan
Safdarjung Airport
NEW DELHI - 110 003. Respondent No.2 Respondent No.2

3. Airport Authority of India

Represented by Its Executive Director,
Rajiv Gandhi Bhavan
Safdarjung Airport
NEW DELHI - 110 003. Respondent No.3 Respondent No.3
4. The Executive Director
Airport Authority of India
Safdarjung Airport
NEW DELHI - 110 003. Respondent No.4 Respondent No.4

5. The Regional Executive Director

Airports Authority of India
Aai Operational Offices Complex
Chennai Airport, Chennai- 600 027
TAMIL NADU Respondent No.5 Respondent No.5

6. The Airport Director

Airports Authority of India
Thiruvananthapuram International Airport
Vallakadavu P.O.,
Thiruvananthapuram - 695 008.
KERALA STATE Respondent No.6 Respondent No.6

7. Airports Economic Regulatory Authority of India,

Represented by its Secretary
Aera Building
Administrative Complex
Safdarjung Airport,
NEW DELHI - 110 003. Respondent No.7 Respondent No.7

8. G.M.R. Airports Limited,

Represented by its Managing Director
Skip House, 25/1
Museum Road, Bengaluru,
KARNATAKA - 560 025. Respondent No.8 Respondent No.8

9. Adani Enterprises Limited,

Represented By Its Managing Director.
Adani House, Srimali Society,
Mithikhali-6 Road, Navarangapuri,
Ahmedabad,
Gujarat - 380 009, Respondent No.9 Respondent No.9

10. Kerala State Industrial Development Corporation,

Represented by its Managing Director,
Head Office, T.C. Xi/266,
Keston Road, Kowdiar,
Thiruvananthapuram - 695 003.
KERALA STATE. Respondent No.10 Respondent No.10

(All are Contesting Respondents )

 To
The Hon’ble the Chief Justice of India

And His companion Justices of the Supreme Court of India

The Humble petition of the petitioner

MOST RESPECTFULLY SHOWETH:-

1. By way of the present petition under Article 136 of the

Constitution of India, the petitioners prays for special leave to

appeal against the impugned final common Judgment dated

18.12.2019 passed by the High Court of Kerala at Ernakulam in

W.P.(C)No. 6823 of 2019 by which the High Court dismissed the

Writ petition filed by the petitioner herein.

2. QUESTIONS OF LAW

A. Whether a Suit under Article 131 of the Constitution of India is

maintainable with any private party being arrayed as a party on

one side or other?

B. Whether the impugned Judgment is contrary to the law laid down

by this Hon’ble Court in State of Bihar v. Union of India (1970)1

SCC 67, State of Rajasthan v. Union of India (1977) 3 SCC

592, Union of India v. State of Rajasthan, (1984) 4 SCC

238 and Tashi Delek Gaming Solutions Ltd. v. State of

Karnataka (2006) 1 SCC 442 ?

C. Whether the word “State” in Article 131 of the Constitution can be

a “State” under Article 12 of the Constitution of India?

D. Whether the High Court is justified in dismissing the Writ Petition

filed by the State of Kerala as not maintainable holding that the

dispute in the Writ Petition is to be decided by the Hon’ble

Supreme Court of India under Article 131 of the Constitution of

India, when the dispute involves the rights of the State of Kerala

in a tender process relating to Operation, Development and

Management of an Airport, at the instance of the Airport Authority

of India?

E. Whether the High Court is justified in dismissing the Writ Petition

filed by the State of Kerala as not maintainable in view of Article

131 of the Constitution of India, when in the Writ Petition, the

Airports Authority, the Executive Director, the Regional Executive

Director and the Airport Director Airports Authority of India and

the private entities which took part in the bid for lease of

operations of Thiruvananthapuram Airport are also arrayed as

party respondents?

3. DECLARATION INTERMS OF RULE 3(2)

The petitioner states that no other petition seeking leave to

appeal has been filed by him against the impugned final common

Judgment passed by the High Court of Kerala at Ernakulam

dated 18.12.2019 in W.P.(C)No. 6823 of 2019.

4. DECLARATION IN TERMS OF RULE 5

The annexures P1 to P17 produced along with the S.L.P are true

copies of the pleadings /documents which formed part of the

records of the case in the court below against whose order the

leave to appeal is sought for in this petition.

5. GROUNDS

A. For that the High Court failed to appreciate that Article 131 of the

Constitution does not contemplate any private party being

arrayed as a party on one side or other. In the instant case the

Airport Authority is made as a respondent in the Writ Petition as it

is a necessary party. A suit under Article 131 is not maintainable

with Airport Authority as defendant in the suit. It is submitted that

for determining as to whether a suit before the Hon’ble Supreme

Court under Article 131 of the Constitution has to be taken

recourse to, it is necessary to consider whether the State can, in

the facts of the given case, independently maintain a suit against

the Government of India. As per section 12A of the Airport

Authority of India Act, it is the Airport Authority which is to make a

lease, though it is a government policy in terms of Section 40 of

the said Act. It is submitted that any proceedings regarding the

decision to make such a lease will be bad for non joinder of

necessary parties if Airport Authority of India is not there in the

party array. Therefore Airport Authority of India is an essential

party to such a lis and no writ petition will lie without Airport
 Authority on the party array. It is submitted that in the instant

case, it is the Airport Authority which invited the Request For

Proposal and any challenge impugning the proceedings which led

to the Request For Proposal cannot be instituted without Airport

Authority on the part array.

B. For that the impugned Judgment is contrary to the law laid down

by this Hon’ble Court in State of Bihar v. Union of India (1970)1

SCC 67, State of Rajasthan v. Union of India (1977) 3 SCC

592, Union of India v. State of Rajasthan, (1984) 4 SCC

238 and Tashi Delek Gaming Solutions Ltd. v. State of

Karnataka (2006) 1 SCC 442. This Hon’ble Court in the said

Judgments held that Article 131 of the Constitution of India does

not contemplate any private party being arrayed as a disputant on

one side or the other and Article 131 will not be applicable where

citizens or private bodies are parties either jointly or in the

alternate with the State or the Government of India.

C. For that the High Court failed to appreciate that the word “State”

in Article 131 of the Constitution cannot be a “State” under Article

12 of the Constitution of India. The Airports Authority may qualify

to be a “State” in terms of Articles 12 and 36 of the Constitution. It

is submitted that such wider definition of “State” in Articles 12 and

36 of the Constitution, as mandated in the said Articles itself, are

intended for the purpose of Part III and IV of the Constitution and

therefore the attributes of “State” in terms of Parts III and IV of the

 Constitution cannot be imported to “States” as provided for in

Article 131, which takes in only a “State” which is the constituent

unit of the Union of India.

D. For that the High Court failed to appreciate that in so far as

Airports Authority is a necessary party and in so far as Airports

Authority will not qualify to be a “State” as provided for under

Article 131 of the Constitution and no suit in terms of the said

Article 131 can be filed with any party other than any State or

Government of India in the party array, no suit will lie before the

Hon’ble Supreme Court in the given case and only a writ petition

under Article 226 of the Constitution will lie.

E. For that the High Court failed to appreciate that apart from the

third respondent Airports Authority, the respondents 4 to 6, being

officers of the Airports Authority viz. the Executive Director, the

Regional Executive Director and the Airport Director Airports

Authority of India and the respondents 8 to 10, being entities

which took part in the bid for lease of operations of

Thiruvananthapuram Airport viz. Airports Economic Regulatory

Authority of India, G.M.R Airports Ltd, Adani Enterprises Ltd and

the Kerala Industrial Development Corporation, are also

necessary parties to the writ petition. The petitioner has explained

as to how a writ petition is maintainable and as to why

proceedings in terms of Article 131 of the Constitution of India

cannot be taken recourse to in paragraph 2 of the writ petition.

Paragraph 2 of the writ petition is reproduced hereunder:-

2) It is trite and settled law that in a suit in terms of Article 131

of the Constitution of India, it could only be the constituent

units of the Union of India and the Government of India

itself arrayed or one side or the other either singly or jointly

with another unit or the Government of India. Thus, as

settled by the Hon’ble Apex Court in a catena of decisions,

a dispute which fell within the ambit of Article 131 could

only be determined in the Hon’ble Supreme Court if there

had not been impleaded in the said dispute any private

party, be it a citizen or a firm or a corporation along with a

State either jointly or in the alternative and that a dispute in

which such a private party was involved must be brought

before a Court, other than the Hon’ble Apex Court. It is also

trite and settled law that the enlarged definition of “State”

given in Parts III and IV of the Constitution would not be

attracted to Article 131 of the Constitution. Thus the Airport

Authority of India cannot be considered to be a “State” for

the purpose of Article 131 of the Constitution. The lis in this

writ petition cannot be finalised without the Airport Authority

of India or its Officers or the respondents 8 and 9 in the

party array. Thus, in so far as the respondents 3 to 6 and 8

and 9 are necessary parties to the lis, no suit, on the cause

of action traced in this writ petition, can be sustained before

 the Honourable Apex Court in terms of Article 131 of the

Constitution of India and, as such, this writ petition is

maintainable before the Hon’ble Court on the various

grounds raised herein below.

It is submitted that when the maintainability of the writ petition

was properly explained by the petitioner in the writ petition itself

and also in view of the ratio laid down by this Hon’ble Court

regarding the maintainability of a suit under Article 131 of the

Constitution, the High Court should not have dismissed the writ

petition on the ground of maintainability.

F. This Hon’ble Court in State of Bihar v. Union of India, (1970) 1

SCC 67 held as follows:-

3. Clauses (a), (b) and (c) of the article specify the parties

who can appear as disputants before this Court. Under

clause (a) it is the Government of India and one or more

States; under clause (b) it is the Government of India and

one or more States on one side and one or more other

States on the other, while under clause (c) the parties can

be two or more States without the Government of India

being involved in the dispute. The specification of the

parties is not of an inclusive kind. The express words of

clauses (a), (b) and (c) exclude the idea of a private citizen,

a firm or a corporation figuring as disputant either alone or

even along with a State or with the Government of India in

 the category of a party to the dispute. There is no scope for

suggesting that a private citizen, a firm or a corporation can

be arrayed as a party by itself on one side and one or more

States including the Government of India on the other. Nor

is there anything in the article which suggests a claim being

made by or preferred against a private party jointly or in the

alternative with a State or the Government of India. The

framers of the Constitution appear not to have

contemplated the case of a dispute in which a private

citizen, a firm or a corporation is in any way involved as a

fit subject for adjudication by this Court under its exclusive

original jurisdiction conferred by Article 131.

G. This Hon’ble Court in State of Rajasthan v. Union of India,

(1977) 3 SCC 592 held as follows:-

There are two limitations in regard to the nature of the suit

which can be entertained by the Supreme Court under this

Article. One is in regard to parties and the other is in regard

to the subject-matter. The Article provides in so many

terms in clauses (a), (b) and (c) that the dispute must be

between the Government of India and one or more States,

or between the Government of India and any other State or

States on one side and one or more other States on the

other, or between two or more States. It does not

contemplate any private party being arrayed as a disputant

 on one side or the other. The parties to the dispute must

fall within one or the other category specified in clauses (a),

(b) and (c).

H. This Hon’ble Court in Tashi Delek Gaming Solutions Ltd. v.

State of Karnataka, (2006) 1 SCC 442 held as follows:-

Article 131 of the Constitution postulates that this Court to

the exclusion of any other court shall have original

jurisdiction in any dispute between the Government of India

and one or more States; or between the Government of

India and any State or States on one side and one or more

other States on the other; or between two or more States.

We in this case are not concerned with the proviso to the

said article. The said article would be attracted where

adjudication is necessary in relation to a legal right of one

State or the Union of India vis-à-vis other States, as the

case may be. Indisputably, the expression “legal right” has

received liberal interpretation by this Court from time to

time. However, it is now well settled by various decisions of

this Court that this article will not be applicable where

citizens or private bodies are parties either jointly or in the

alternative with the State or the Government of India. The

enlarged definition of “State” under Article 12 would not

extend to Article 131 of the Constitution. It is also not in

 dispute that even a statutory corporation is not a State

within the meaning of the said provision.

I. It is submitted that the reliefs claimed in the Writ Petition filed by

the State of Kerala itself shows that a suit under Article 131 is not

all maintainable and the Hon’ble Supreme Court cannot pass a

decree in such terms under Article 131 of the Constitution. The

Reliefs in the writ Petition are as follows:-

RELIEFS
(1) Declare that Exhibits P13 Request for Proposal
(RFP) for Concession with regard to the Operation,
Management and Development of
Thiruvananthapuram International Airport is without
jurisdiction, illegal and violative of Section 12A of the
Airport Authority Act;

Or in the alternative
(2) Declare that the Petitioner State of Kerala is entitled
to preferential consideration over the ninth
respondent in public interest as regards the
Concession for Operation, Development and
Management of Thiruvananthapuram Airport, in view
of the mandate of Section 12A of the Airport
Authority Act;

(3) Declare that the third respondent Airport Authority of

India is bound to accept the proposal of the State
Government through the tenth respondent for grant
of concession facility at par with the amount offered
by the ninth respondent;
 (4) Issue a writ of mandamus or any other appropriate
writ or order or direction commanding the 3rd
respondent to positively consider the offer of the
State of Kerala, as revealed from Exhibits P19 and
P20 letters, before finalizing the Tender pursuant to
Exhibit P13;

(5) Issue a writ of certiorari or any other appropriate writ

or order or direction calling for the records leading to
Exhibit P9 and quash the same, in so far as it limits
the Right of First Refusal (RFP) to the petitioner
State in the manner to plus or minus 10%.

It is submitted that the issuance of writs sought for in the Writ

Petition are against the Airport Authority of India and for issuing

the declarations, the Court has to hear the private parties and

thus only a Writ Court can hear such a petition.

J. For that the High Court failed to appreciate that the dispute

regarding whether the Request For Proposal issued by the

Airport Authority of India is violative of Section 12A of the Airport

Authority Act or whether the State of Kerala is entitled to

preferential consideration over Respondent No.9 in public interest

regards the Concession for Operation, Development and

Management of the Thiruvananthapuram Airport in view of the

mandate of the Airport Authority Act and other questions arises in

the Writ Petition cannot be treated as question “on which the

existence or extent of a legal right depends” as contemplated

 under Article 131 of the Constitution, when the lis involves private

parties and a Statutory Authority.

K. For that the High Court erred in holding that the writ petition

seeking to quash the Request For Proposal dated 14.12.2018 is

premature. It is submitted that State has rightly challenged the

Request For Proposal as it violated the right of the State to get

right for first refusal. The second respondent assured the State

of Kerala that there would not be any privatization of

Thiruvananthapuram Airport and that a Special Purpose Vehicle

with State Government and financial institutions as partners could

be created with the value of the State’s property as the State’s

share. The total extent of 636.57 acres of land of the

Thiruvananthapuram Airport is, interalia, made up of 258.06

acres owned exclusively by the State of Kerala in continuation of

the Princely State of Travancore and the United States of

Travancore – Cochin, 32.56 acres acquired by the Government of

Kerala and 8.29 acres of Government land handed over to the

Airports Authority. The Government of India assured the State

that it would be consulted at the time any decision regarding

privatization was taken, taking into account its contribution

towards cost for acquisition of land for Airport expansion. It is

submitted that when a Request For Proposal was issued

containing clauses which negates the rights of the State, the

 same can be challenged in the Writ Petition and such challenge

cannot be treated as premature.

L. For that the High Court failed to note that State changed the

tender process itself as it being violative of the preconditions in

Section 12 A (1) of the Airport Authority of India Act. The

conditions for leasing out, viz “public interest” and “better

management of the airport”, were not satisfied in the case of

Thiruvananthapuram Airport. It is submitted that when the leasing

itself is violative of the statutory provisions and the State is an

aggrieved party in the process, the Writ Petition cannot be

dismissed as premature.

M. For that the High Court failed to appreciate that the State

requested the Government of India to form a Special Purpose

Vehicle with regard to Thiruvananthapuram Airport taking into

account its contribution towards the same including in the manner

of providing land free of cost and also expending costs for

acquisition of land and various deliberations were held in this

regard including the grant of right for first refusal. In such a

situation, incorporation of many of the clauses in the Request For

Proposal, which are tailor made to suit Respondent No.9 to the

exclusion of the State, is a question liable to be adjudicated by

the High Court and such a question cannot be rejected as

premature.
N. For that the High Court failed to appreciate that the process of

tender itself is vitiated for many reasons and therefore the Writ

Petition challenging the tender process cannot be rejected as

premature. It is submitted that one of the pre-qualification

condition that the renderer should have previous experience in

Airport management for which previous experience of the State

was not considered by the third respondent. Instead the previous

practice of providing previous experience in Airport management

as a prequalification was deliberately deleted from the RFP

related to Thiruvananthapuram Airport. This is done with a

deliberate attempt to avoid the State Government, which is

having previous experience. It is submitted that though the State

Government has requested for the right of first refusal without any

parameters as regards the tender amount quoted is concerned,

the Airport Authority of India had limited the said right of refusal to

plus or minus 10% of the highest bid. There is no plausible

reason for limiting the rate of refusal of plus or minus 10% of the

highest bid when the State Government is having previous

experience in running Airports and also having the asset

worthiness, at par with or even higher than any other bidder. It

was specifically contented by the State that limiting of the right of

the refusal plus or minus 10% of the highest bid, as regards the

State Government and its entities are concerned, is arbitrary. It is

submitted that on the premise these factual matrix and legal

 contentions, the High Court should not have rejected the writ

petition as premature.

6. GROUNDS FOR INTERIM RELIEF

I. That the High Court passed the impugned Judgment dismissing

the Writ Petition filed by the State of Kerala as not maintainable,

holding that the question raised in the Writ Petition is to be

decided by the Hon’ble Supreme Court under Article 131 of the

Constitution of India. The High Court rejected the contention of

the petitioner State of Kerala that the Writ Petition filed under

Article 226 of the Constitution is maintainable, as apart from

Union of India, the Airports Authority of India and its functionaries

are also arrayed as party respondents in the Writ Petition, as also

private respondents 8 to 10 who are necessary parties in the Writ

Petition.

II. It is submitted that this Hon’ble Court in a catena of Judgments

viz. State of Bihar v. Union of India (1970)1 SCC 67, State of

Rajasthan v. Union of India (1977) 3 SCC 592, Union of India

v. State of Rajasthan, (1984) 4 SCC 238 and Tashi Delek

Gaming Solutions Ltd. v. State of Karnataka (2006) 1 SCC

442 held that Article 131 of the Constitution of India does not

contemplate any private party being arrayed as a disputant on

one side or the other and Article 131 will not be applicable where
 citizens or private bodies are parties either jointly or in the

alternate with the State or the Government of India.

III. It is submitted that when the maintainability of the writ petition

was properly explained by the petitioner in the writ petition itself

and also in view of the ratio laid down by this Hon’ble Court

regarding the maintainability of a suit under Article 131 of the

Constitution, the High Court should not have dismissed the writ

petition on the ground of maintainability.

IV. It is submitted that that State changed the tender process itself

as it being violative of the preconditions in Section 12 A (1) of the

Airport Authority of India Act. It is submitted that since the writ

petition filed by the State is dismissed on the ground of

maintainability, without adjudicating the legality of the tender

process, it is prayed that the tender process and all further

proceedings pursuant to the Request For Proposal may be

stayed by this Hon’ble Court till the disposal of the Special Leave

Petition, and also the operation of the impugned judgment

otherwise the petitioner will be put to irreparable injury, loss and

hardship.
8. MAIN PRAYER

In view of the above it is most respectfully prayed that this

Hon’ble Court may be pleased to:-

(a) Grant special leave to appeal against the impugned final

common Judgment passed by the High Court of Kerala at

Ernakulam dated 18.12.2019 in W.P.(C)No. 6823 of 2019;

(b) Pass such other order or further orders as this Hon’ble Court

may deem fit and proper in the circumstances of the case.

7. PRAYER FOR INTERIM RELIEF

It is most respectfully prayed that this Hon’ble court may be

pleased to pass:-

(a) An ad-interim ex-parte stay order staying the operation and

implementation of all further proceedings pursuant to the

Request For Proposals issued by the Airport Authority of

India dated 14.12.2018, for concession for Operation,

Development and Management of Thiruvananthapuram

Airport, till the disposal of the Special Leave Petition;

(b) An ad-interim ex-parte stay order staying the operation of

the impugned final common Judgement passed by the

High Court of Kerala at Ernakulam dated 18.12.2019 in

W.P.(C)No. 6823 of 2019;

 (c) Pass such other order or further orders as this Hon’ble

Court may deem fit and proper in the circumstances of the

case.

FOR WHICH ACT OF KINDNESS THE HUMBLE PETITIONER SHALL

AS IN DUTY BOUND EVER PRAY.

FILED BY

(C.K SASI)
ADVOCATE FOR THE PETITIONER

Drawn on:01.02.2020
Filed on :03.02.2020
New Delhi.
 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020

IN THE MATTER OF:

State of Kerala. ……. Petitioner

Versus

The Union of India & Ors. ……. Respondents

CERTIFICATE

Certified that the Special Leave Petition is confined only to the

pleadings before the Hon’ble High Court of Kerala at Ernakulam whose
order is challenged and the other documents relied upon in those
proceedings. No additional facts, documents or grounds have been
taken therein or relied upon in the Special Leave Petition. It is further
certified that the copies of the Annexures attached to the Special Leave
Petition are necessary to answer the question of law raised in the
petition or to make out grounds urged in the SLP for consideration of
this Hon’ble Court. This certificate is given on the basis of the
instructions given by the petitioner whose affidavit is filed in support of
the Special Leave Petition.

FILED BY

(C.K SASI)
ADVOCATE FOR THE PETITIONER

Filed on:03.02.2020
New Delhi.
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020

IN THE MATTER OF:

State of Kerala. ……. Petitioner

Versus

The Union of India & Ors. ……. Respondents

OFFICE REPORT ON LIMITATION

1. The petition is within time.

2. The petition is barred by time and there is delay of ………..days

in filing the same against order dated 18.12.2019 and petition for

condonation of delay of …………days has been filed.

3. There is a delay of ………..days in filing the petition and petition

for condonation of delay of …………days in refilling has been

filed.

BRANCH OFFICER

New Delhi
Dated :03.02.2020
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A No OF 2020
IN
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020

IN THE MATTER OF

State of Kerala. ……. Petitioner

Versus

The Union of India & Ors. ……. Respondents

APPLICATION SEEKING PERMISSION TO FILE A LENGTHY

SYNOPSIS AND LIST OF DATES

To,

The Hon’ble the Chief Justice of India

And His companion Justices of the Supreme Court of India

The Humble petition of the petitioner

MOST RESPECTFULLY SHOWETH:

1. That the petitioner has today filed the above Special leave

petition against the impugned final common judgment passed by

the High Court of Kerala at Ernakulam dated 18.12.2019 in

W.P.(C)No. 6823 of 2019.

2. It is submitted that the synopsis and list of dates in the Special

Leave Petition elaborately explains the facts and events which

are important for deciding the issues involved in the case.

Accordingly, the instant Special Leave Petition contains an

 elaborate and detailed synopsis and list of dates which is lengthy.

It is submitted that the submissions made in the Synopsis and

List of Dates are extremely relevant and important for

adjudication of the present case. It is therefore prayed that the

application for permission to file a lengthy synopsis and list of

dates may be allowed in the interest of justice.

PRAYER

In the facts and circumstances above-mentioned, the Petitioner most

respectfully pray that this Hon'ble Court may be pleased to:-

a. Permit the Petitioner to file a lengthy Synopsis and List of Dates

in the present Special Leave Petition filed against the impugned

final common judgment passed by the High Court of Kerala at

Ernakulam dated 18.12.2019 in W.P.(C)No. 6823 of 2019;

b. Pass such other and further orders as may be deemed fit by this

Hon'ble Court.

FOR WHICH ACT OF KINDNESS THE HUMBLE PETITIONER SHALL

AS IN DUTY BOUND EVER PRAY.

FILED BY

(C.K SASI)
ADVOCATE FOR THE PETITIONER
Filed on: 03.02.2020
New Delhi
 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. OF 2020
(Arising out of the impugned final common judgment passed by the
High Court of Kerala at Ernakulam dated 18.12.2019 in W.P.(C)No.
6823 of 2019).
WITH PRAYER FOR INTERIM RELIEF

IN THE MATTER OF:

State of Kerala. ……. Petitioner

Versus

The Union of India & Ors. ……. Respondents

WITH

I.A No. of 2020

An Application seeking permission to file a Lengthy Synopsis and List
of Dates.

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: C.K.SASI

 INDEX

Sl.No Particulars of Document Page No. of part to Remarks

which it belongs.

Part 1 Part II
(Contents (Contents
of Paper of file
Book)
alone)

(i) (ii) (iii) (iv) (v)

1. Court fee. 1730/-

2. Office Report on Limitation A A\

3. Listing Performa A1-A2 A1-A2
4. Cover Page of Paper Book A-3

5. Index of Record of Proceedings A-4

6. Limitation Report Prepared by the Registry A-5

7. Defect List A-6

8. Note Sheet NS1--

9. Synopsis and List of Dates B-MM

10. Impugned final common Judgment dated 1-66

18.12.2019 passed by the High Court of Kerala at
Ernakulam in W.P.(C)No. 6823 of 2019.
11. Special Leave Petition with affidavit. 67-88

12. APPENDIX-I
(i)Article 131 of Constitution of India. -89-

(ii)Section 3, 12, 12A and 40 of the Airport 90-95

Authority of India Act, 1994.
13. ANNEXURE-P1: 96-97
A copy of the Letter D.O.No. 1413/SCA/2003
issued by the Secretary, Ministry of Civil Aviation,
Government of India dated 23.04.2003.
14. ANNEXURE-P2: -98-
A copy of the DO No. 20311/D2/97/TRAN dated
7.10.2003.
15. ANNEXURE-P3: -99-
A copy of the D.O.24018/1/99-AAI P-3 dated
02.12.2003.
16. ANNEXURE-P4: 100-102
A true copy of G.O. (MS) No. 11/2004/Trans
dated 16.03.2004.
17. ANNEXURE-P5: 103-105
A true copy of G.O.(MS) No. 82/2005/RD dated
29.03.2005.
18. ANNEXURE-P6: 106-108
A true copy of the Letter D.O.No. 2195/2018/CM
dated 21.11.2018.
19. ANNEXURE-P7: -109-
A copy of Letter D.O.No.AV.24011/141/2015-AD
(Vol-IV) dated 28.11.2018.
20. ANNEXURE-P8: 110-113
True copy of the Minutes of the meeting of the
Empowered Group of Secretaries (EGoS) dated
04.12.2018.
21. ANNEXURE-P9: 114-116
A true copy of Letter D.O.No. 3333/18/CM dated
08.12.2018.
22. ANNEXURE-P10: 117-118
A true copy of Letter DO No. 415/02/2018/Trans
dated 11.12.2018.
23. ANNEXURE-P11: 119-120
A true copy of DO No. AV .24011/141/2015-AD
(Vol-IV) dated 12.12.2018.
24. ANNEXURE-P12: 121-204
A copy of the Request For Proposals issued by
the Airport Authority of India dated 14.12.2018.
25. ANNEXURE-P13: -205-
A copy of Letter No. AAI/KID/PPP/6 Apts/2018
dated 05.02.2019.
26. ANNEXURE-P14: -206-
A copy of the Addendum No.2 dated 08.02.2019
to the revised draft concession agreement.
27. ANNEXURE-P15: 207-212
A Copy of the letter D.O.No.463/19/CM dated
27.02.2019 sent by the Hon'ble Chief Minister of
Kerala to the Hon'ble Prime Minister of India.
28. ANNEXURE-P16: 213-218
A photo copy of the letter D.O.No. 464/19/CM
dated 27.02.2019 sent by the Hon'ble Chief
Minister of Kerala to the Hon'ble Union Minister
for Civil Aviation.
29. ANNEXURE-P17: 219-253
A copy of the Writ Petition W.P.(C) No. 6823 of
2019 (without Exhibits) dated 5.3.2019 filed
before High Court of Kerala.
30. I.A.No. of 2020: 254-255
An Application seeking permission to file a
Lengthy Synopsis and List of Dates.

31. Filing Memo 256

32. Vakalat and Memo of Appearance. 257