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Judgment
,,,,,,
Hima Kohli, J",,,,,,
The appellant No.1, a public listed company, that provides Scheduled Air Transport Services in the name and style of “IndiGo†(hereinafter",,,,,,
referred to as ‘IndiGo’) is aggrieved by the judgment dated 20.12.2017 passed by the learned Single Judge, dismissing the writ petition filed by it",,,,,,
(W.P.(C) 9820/2017) praying inter alia for issuance of a writ of certiorari and prohibition in respect of the directions contained in the letters dated,,,,,,
06.09.2017, 28.09.2017, 05.10.2017 and 21.10.2017 issued by the respondent No.2/Delhi International Airport Limited (in short ‘DIAL’),",,,,,,
directing it to operate its flights to and fro Mumbai, Kolkata and Bengaluru w.e.f. 04.01.2018 from Terminal-2 (in short ‘T-2’) of Indira Gandhi",,,,,,
International Airport (in short ‘IGI Airport’). Additionally, the appellants/petitioners had prayed for issuance of a writ of certiorari in respect of",,,,,,
a letter dated 14.06.2017 issued by the respondent No.1/Ministry of Civil Aviation, Union of India, permitting the respondent No.2/DIAL to decide a",,,,,,
suitable course of action for shifting of the operations of the appellants/IndiGo, respondent No.5/Spice Jet Limited (in short ‘SpiceJet’) and",,,,,,
respondent No.6/Go Air (India) Limited (in short ‘GoAir’) to ensure that Terminal-1 (in short ‘T-1’) is decongested and T-2 is,,,,,,
meaningfully utilized.,,,,,,
Before considering the arguments advanced by learned counsels for the parties, we may refer to the sequence of dates and events that culminated",,,,,,
in the directions issued by the respondent No.2/DIAL, calling upon the appellants and the respondents No.5 and 6 to operate their flights in respect of",,,,,,
three sectors, i.e., Mumbai, Kolkata and Bengaluru w.e.f. 04.01.2018, from T-2.",,,,,,
Taking note of the exponential growth witnessed by the Indian aviation sector, particularly in the domestic sector and a steep rise in the operation of",,,,,,
low costs carriers, the respondent No.1/UOI held a meeting on 05.10.2015, directing the respondent No.2/DIAL and respondent No.3/Airport",,,,,,
Authority of India (in short 'AAI') to take immediate steps to increase the number of boarding gates, widen airport entry gates, increase post security",,,,,,
check-in areas and boost the CISF manpower deployment. As a result, the respondent No.2/DIAL took a decision to implement the approved Master",,,,,,
Plan, 2016 for development and expansion of T-1 so that its existing capacity of 20 million passenger per annum (in short ‘mppa’) is enhanced",,,,,,
to 35-40 mppa, and to renovate/modernize the existing T-2, that is primarily used for Haj operations. Once the renovation work at T-2 was completed,",,,,,,
several meeting were held by the respondent No.2/DIAL with the domestic airline operators in order to operationalize T-2 so as to ease the,,,,,,
congestion at T-1. After some deliberations, the respondents No.1/UOI and respondent No.3/AAI decided on 07.06.2017 that all airlines operating",,,,,,
from T-1 should discuss amongst themselves, the modalities of operationalizing T-2 and suggest the course of action to the respondent No.2/DIAL",,,,,,
within one month. In furtherance to the said decision, the respondent No.2/DIAL made efforts to amicably resolve the issue so that an interim",,,,,,
arrangement could be made to shift flight operations of the three airlines, i.e., IndiGo, SpiceJet and GoAir so that the entire redevelopment work could",,,,,,
be executed in approximately 42 months.,,,,,,
Respondent No.2/DIAL addressed a communication dated 16.08.2017 to all the three airlines, calling upon them to take a decision of their own as",,,,,,
to which of their operations did they propose to shift from T-1 to T-2. The respondent No.2/DIAL took a stand before the learned Single Judge that,,,,,,
only when the three airlines had failed to intimate their decision, was DIAL compelled to issue a communication dated 06.09.2017, stating inter alia",,,,,,
that w.e.f. 29.10.2017, all fight operations of the three airlines, to and fro the three sectors, referred to hereinabove, shall be shifted from T-1 to T-2.",,,,,,
Despite the said communication, the appellants/IndiGo, the respondent No.5/SpiceJet and the respondent No.6/GoAir did not start the process of",,,,,,
shifting of their operations to T-2.,,,,,,
This was followed by a letter dated 28.09.2017 addressed by the respondent No.2/DIAL to all the three airlines stating that the respondent,,,,,,
No.6/GoAir would be shifting its entire operations from T-1 to T-2. In its subsequent letter dated 05.10.2017, the respondent No.2/DIAL intimated that",,,,,,
w.e.f. 29.10.2017, all the flights of the appellants/IndiGo and the respondent No.5/SpiceJet operating to and fro Mumbai, Kolkata and Bengaluru shall",,,,,,
be operated from T-2 and that the respondent No.6/GoAir had expressed its willing to shift its entire operations from T-1 to T-2 w.e.f. 29.10.2017.,,,,,,
Vide letter dated 21.10.2017, the respondent No.2/DIAL revised the deadline for the appellants to shift its operations of flights for the aforesaid three",,,,,,
sectors to 04.01.2018. On 27.10.2017, the respondent No.2/DIAL issued a press release declaring that no additional slot shall be provided to any",,,,,,
airline at T-1 for a period of three years.,,,,,,
The appellants/IndiGo approached the court in November, 2017, challenging the decision of the respondents No.1/UOI and respondent No.3/Airport",,,,,,
Authority of India (A.A.I.) to shift the operation of its flights in respect of the three sectors mentioned above to T-2. The pleas taken on behalf of the,,,,,,
appellants/IndiGo before the learned Single Judge were that the respondent No.2/DIAL had failed to address the concerns of IndiGo as flagged by it,,,,,,
in several meetings and written communications relating to the passengers†inconvenience; lack of transparency in the decision making process and,,,,,,
absence of a consultative approach and of ignoring the operational difficulties likely to be faced by IndiGo due to the unrealistic approach of splitting,,,,,,
and shifting its operations that would adversely impact its overall efficiency and cost. The appellants/IndiGo also pleaded that the permission given by,,,,,,
the respondent No.2/DIAL to the respondent No.6/GoAir to shift its entire operations to T-2 is discriminatory and arbitrary inasmuch as no such,,,,,,
option was given to them to retain their entire operations at T-1.,,,,,,
As for the respondent No.5/SpiceJet, it had objected to the proposal of the appellants/IndiGo to exclusively operate from T-1 on the ground that it",,,,,,
would be anti-competitive. SpiceJet had also referred to various difficulties that it shall have to face in operating flights partially from T-1 and partially,,,,,,
from T-2.,,,,,,
Coming to the respondent No.2/DIAL, it was canvassed before the Single Judge that shifting of the flight operations of the three airlines was a",,,,,,
purely an interim measure taken in public interest for enhancing the existing capacity of T-1 from 20 mppa to 35-40 mppa; that the difficulties,,,,,,
expressed by IndiGo of splitting its operations and of the financial implications and operational difficulties likely to be faced by it, could not take priority",,,,,,
over public interest; that several efforts were made by DIAL to amicably resolve the issue by calling upon all the three airlines to take a decision on,,,,,,
their own as to which of the operations they proposed to shift but due to their adamant attitude, an administrative decision had to be taken by it as to",,,,,,
the manner in which the available space could be put to optimum use between T-1 and T2 during the period of the ongoing renovations; that the,,,,,,
decision communicated by DIAL on 16.08.2017 was backed by a detailed and comprehensive study. It was further submitted on behalf of the,,,,,,
respondent No.2/DIAL that the communication dated 06.09.2017, directing all the three airlines to shift their operations for the three sectors from T-1",,,,,,
to T-2 w.e.f. 29.10.2017, was based on a comprehensive study and analysis of the traffic data that had factored in the passengers†convenience and",,,,,,
safety norms, but when the appellants/IndiGo and respondent No.5/SpiceJet had simply refused to cooperate, the date of shifting had to be pushed to",,,,,,
04.01.2018.,,,,,,
Responding to the objection raised by the appellants/IndiGo that DIAL had discriminated against it by permitting the respondent No.6/GoAir to,,,,,,
move its entire operations to T-2 from 29.10.2017, learned counsel for the respondent No.2/DIAL had contended before the Single Judge that the said",,,,,,
decision had to be taken in view of the rigid stand taken by IndiGo and SpiceJet of not shifting a part of their operations to T-2 and also keeping in,,,,,,
mind the fact that GoAirâ€s passenger traffic for the year 2016-17 was the least at 3.6 mppa, as against 16.1 mppa for IndiGo and 4.3 for SpiceJet.",,,,,,
Faced with a situation where IndiGo and SpiceJet were unwilling to budge an inch and the willingness expressed by the respondent No.6/GoAir to,,,,,,
shift its entire operations to T-2, the respondent No.2/DIAL allowed GoAir to do so in the interest of public safety, safety of flight operations and",,,,,,
primarily for expediting the redevelopment activity at T-1.,,,,,,
Due to the urgency in the matter, the learned Single Judge appears to have dispensed with completion of pleadings in the writ petition filed by the",,,,,,
appellants/IndiGo and had directed the respondent No.2/DIAL to produce all the relevant records pertaining to the Internal Assessment Reports that,,,,,,
formed the basis of its decision to shift flight operations of all the three airlines in respect of the three sectors, from T-1 to T-2. The said records were",,,,,,
duly produced by the respondent No.2/DIAL and perused by the learned Single Judge. Thereafter, on the basis of the submissions made by learned",,,,,,
counsels for the parties and on examining the relevant records and the case law cited by them, vide judgment dated 20.12.2017, the learned Single",,,,,,
Judge dismissed the writ petition filed by the appellants/IndiGo by holding that the impugned decision taken by the respondent No.2/DIAL did not,,,,,,
warrant any interference. However, having regard to the fact that the deadline for the appellants/IndiGo and the respondent No.5/SpiceJet to",,,,,,
commence their operations from T-2 was going to expire on 04.01.2018, the timeline for shifting their operations was extended upto 15.02.2018. It",,,,,,
was also directed that in the event, the appellants/IndiGo and the respondent No.5/SpiceJet make a request to the respondent No.2/DIAL to shift the",,,,,,
volume of operations of their flights, which would be at par with the identified sectors, namely, Mumbai, Kolkata and Bengaluru, within seven days",,,,,,
from the date of pronouncing the judgment, it would be open for the respondent No.2/DIAL to consider and dispose of such a request within seven",,,,,,
days from the date of receipt thereof. Aggrieved by the impugned judgment, the appellants/IndiGo have filed the present appeal.",,,,,,
It is noteworthy that when the present appeal was listed for admission on 16.01.2018, in view of the submission made by Mr. Mukul Rohatgi,",,,,,,
learned Senior Advocate appearing for the appellants/IndiGo that the learned Single Judge has erred in taking into consideration a projection of traffic,,,,,,
at T-1 for the year 2016-17 as 16.1 mppa for IndiGo as furnished by the respondent No.2/DIAL, whereas the actual volume of passengers traffic",,,,,,
flying with IndiGo, would stand at 14.62 mppa, directions were issued to the respondent No.4/DGCA to file a brief affidavit alongwith a tabulated",,,,,,
compilation of the passenger volumes of the three airlines for the years 2016-17, upto 31.12.2017. With these directions, the matter was adjourned to",,,,,,
18.01.2018.,,,,,,
On 18.01.2018, Ms. Anjana Gosain, learned counsel for the respondent No.4/DGCA had handed over a short affidavit with copies to all the",,,,,,
parties. Enclosed with the said affidavit was a schedule of “Domestic Revenue Passenger Statistics†in respect of the three airlines for the period,,,,,,
between April, 2017 to December, 2017, to and fro Delhi, which records the domestic revenue passengers of the appellants/IndiGo as 12.17 mppa, of",,,,,,
the respondent No.5/SpiceJet as 3.7 mppa and of the respondent No.6/GoAir as 3.2 mppa. On the same date, learned counsel for the respondent",,,,,,
No.4/DGCA was directed to furnish projections of the volume of passenger traffic for the quarter ending March, 2018, in respect of the three airlines,",,,,,,
which was duly furnished and reflected that the projected passenger statistics from April, 2017 to March 2018 were 16.72 mppa for IndiGo, 4.97",,,,,,
mppa for SpiceJet and 4.61 mppa for GoAir.,,,,,,
Mr. Parag P. Tripathi, learned Senior Advocate appearing for the respondent No.2/DIAL had stated that the said statistics furnished by the",,,,,,
respondent No.4/DGCA were not inclusive of the non-revenue passengers of all the three airlines, which is ordinarily between 2% to 3% of the",,,,,,
figures projected by the DGCA and if the same is added, then the projections furnished by the respondent No.2/DIAL and recorded in para 8 of the",,,,,,
impugned judgment would be justified.,,,,,,
At that stage, we had deemed it appropriate to grant one last opportunity to all the parties to hold a meeting in the course of the day so as to find",,,,,,
an amicable resolution to the dispute, failing which it was made clear that they should be ready to address arguments on the next date, i.e., on",,,,,,
19.01.2018. On 19.01.2018, counsels for the parties had stated in unison that they had made some headway in the meeting and if granted some more",,,,,,
time, there was a likelihood of their reporting an amicable resolution. At joint request, the matter was adjourned to 24.01.2018. However, it was made",,,,,,
clear that in the event no settlement is reported on the next date, the parties shall be ready to address arguments on merits. On 24.01.2018, learned",,,,,,
counsels for the parties stated that their efforts to resolve the matter had not borne any results. Accordingly, the parties were called upon to address",,,,,,
arguments on merits.,,,,,,
The arguments of Mr. Mukul Rohatgi, learned Senior Advocate appearing for the appellants/IndiGo were founded on the alleged inaccurate",,,,,,
projections of the passenger traffic at T-1 by the respondent No.2/DIAL, as recorded in para 8 of the impugned judgment. It was his submission that",,,,,,
knowing very well that the respondent No.2/DIAL had itself addressed a letter dated 16.08.2017 to all the three airlines informing them that no new,,,,,,
flights shall be permitted during the period of renovation, it had furnished the said projections of passenger traffic at T-1 for the year 2016-17 on a",,,,,,
wrong assumption that the volume of passenger traffic was likely to rise. Disputing the volume of passenger traffic at T-1 furnished by the respondent,,,,,,
No.2/DIAL in respect of the appellants/IndiGo for the year 2016-17 as 16.1 mppa, learned counsel had asserted that the correct figure is 14.62 mppa",,,,,,
and that 16.1 mppa only reflects the maximum capacity of IndiGo for the said year and not the actual number of passengers flying with it. Alluding to,,,,,,
the three options given by the respondent No.2/DIAL in the meeting held on 04.01.2017 to deliberate on the management of passenger traffic during,,,,,,
the expansion phase of T-1, he submitted that all of them are flawed and impractical and would lead to splitting of operations, thereby causing",,,,,,
immense inconvenience to the passengers and stretching the finances and infrastructure of IndiGo, which was an avoidable exercise. It was",,,,,,
vehemently argued that keeping in mind the statistics furnished by the respondent No.2/DIAL that revealed that in the year 2016-17, the volume of",,,,,,
passenger traffic flying with SpiceJet was 4.3 mppa and of those flying with the respondent No.6/GoAir was 3.6 mppa, the respondent No.2/DIAL",,,,,,
ought to have accepted the suggestion made by the appellants/IndiGo to retain all their operations at T-1 and instead, call upon the respondent",,,,,,
No.5/SpiceJet and the respondent No.6/GoAir to relocate their entire operations to T-2.,,,,,,
Referring to DIAL's Supplementary Report dated 03.07.2017 on assessment of T-1 capacity during the development work (Annexure A-5),",,,,,,
learned counsel for the appellants/IndiGo canvassed that even as per the respondent No.2/DIAL, T-1 has a capacity of 20 mppa and if the said",,,,,,
capacity is likely to be scaled down to 13-17 mppa on the commencement of the expansion work, IndiGo can be fully accommodated in T-1 since its",,,,,,
actual passenger traffic in the year 2016-17 was 14.62 mppa, which was well within the optimum capacity at T-1, capped at 17 mppa. It was urged",,,,,,
that no useful purpose would be served by calling upon the appellants/Indigo to split its operations between T-1 and T-2, when remaining at T-1 during",,,,,,
the period of renovation, was the most viable option. Further, keeping in mind the passenger capacity of T-2 which is 12 mppa, even if the respondent",,,,,,
No.5/SpiceJet and respondent No.6/GoAir are asked to shift their entire operations to T-2, having regard to their collective traffic volume in the year",,,,,,
2016-17, which is 7.9 mppa, T-2 would have enough capacity to cater to additional traffic volumes upto 4 mppa, over the next three years. Learned",,,,,,
counsel also sought to highlight the fact that though the arguments advanced on behalf of the appellants have been recorded in para 10 of the,,,,,,
impugned judgment, they have not been dealt with and the learned Single Judge has been swayed by the pleas taken by the by the respondent",,,,,,
No.2/DIAL alone.,,,,,,
Much stress was laid on behalf of the appellants/IndiGo on the fact that the scope of the judicial review was not so narrow that the court would,,,,,,
refuse to interfere in the decision taken by the respondent No.2/DIAL, when such a decision is not based on relevant material and considerations, as",,,,,,
was the case here. Reference was made to the decision in the case of Coimbatore District Central Co-operative Bank vs. Coimbatore District Central,,,,,,
Co-operative Bank Employees Association & Anr. reported as (2007) 4 SCC 669 and Teri Oat Estates (P) Ltd. vs. U.T. Chandigarh & Ors. reported,,,,,,
as (2004) 2 SCC 130, where the Supreme Court had recognized the fact that the doctrine of proportionality had come to stay in the legal system and it",,,,,,
was contended that if the action taken by an authority is contrary to law, improper, irrational or otherwise unreasonable, courts are empowered to",,,,,,
Airlines,2012-13,2013-14,2014-15,2015-16,2016-17,2017-18
INDIGO,6.6,7.1,9.1,12.1,16.1,18.1
SPICEJET,4.2,4.4,4.0,3.6,4.3,4.9
GOAIR,2.1,2.4,2.8,3.1,3.6,4.0
TOTAL,12.9,13.9,15.9,18.8,24.0,27.0
May-17,1.49,0.41,0.35,2.25,,
Jun-17,1.34,0.41,0.37,2.12,,
Jul-17,1.23,0.42,0.32,1.97,,
Aug-17,1.24,0.42,0.32,1.98,,
Sep-17,1.20,0.41,0.35,1.96,,
Oct-17,1.45,0.42,0.39,2.26,,
Nov-17,1.38,0.40,0.37,2.15,,
Dec-17,1.47,0.41,0.43,2.31,,
Jan-18,1.49,0.42,0.45,2.36,,
Feb-18,1.51,0.42,0.47,2.4,,
Mar-18,1.53,0.43,0.49,2.45,,
@ Tot a l (including
projected figures for
Jan, Feb & March
2018)",16.7,4.97,4.61,26.3,,
,Indigo,Spicejet,Go Air,Total,,
% increase in
Apr‟17- Jun‟17 over
Apr‟16- Jun‟16",12.53%,14.08%,10.19%,12.44%,,
Estimated total traffic
in Jul‟17-March‟18",13.81,3.72,3.01,20.54,,
Estimated total traffic
at T1 in FY17-18",18.09,4.91,4.01,27.00,,
Option 1,"Move one airline to Terminal 2 on
interim basis from Terminal 1","· In case SpiceJet relocates, 4.91
million passenger would be relocated
to Terminal 2 leaving 22.09 million
passengers which is more than the
capacity available at Terminal 1
during the construction.
· Further, if GoAir have to move
alone, 4.01 million passenger would
be relocated to Terminal 2 leaving
22.99 million passengers which again
is more than the capacity available at
Terminal 1 during the construction.
· Indigo‟s expected traffic of 18.09
million coupled with required parking
stands (35) cannot be accommodated
at Terminal 2 which has the
passenger capacity of 12 million only
and maximum 28 parking bays.",,,,
Option 2,"Relocate some flights of all three
airlines from Terminal 1 to Terminal
2","· This option is feasible, and is
being evaluated further in detail,
herein below.",,,,
Option 3,"Reduce flights in peak hour by 20%
for all three airlines in Terminal 1 and
spread it to non-peak hours. In
addition all new flights/ frequencies
to be operated from Terminal-2.","· During the discussion, Airlines
have indicated that this option is not
workable due to operational and
commercial reasons. Hence, the
option to spread the flights to non-
peak hours is not being considered
further.",,,,
adequate night parking bays. We will need support from DIAL to make this move happen within a timeline acceptable to us, but in principle,",,,,,,
we are open to discussing the idea.,,,,,,
However, we still believe that for all the reasons outlined above, the best option for all of our customers is to find a way for some airline(s)",,,,,,
to move their complete operation out of Terminal 1 to Terminal 2 for the period of time during which the expansion and upgrade of Terminal,,,,,,
1 is undertaken by DIAL.""",,,,,,
It is apparent from the tone and tenor of their reply that the appellants/IndiGo were insistent that splitting of their operations between T-1 and T-2,,,,,,
was not feasible and instead, suggested that during the period of expansion and upgradation of T-1, one of the other two airlines move their operations",,,,,,
out of T-1 to T-2. Exhaustive correspondence on the same lines was exchanged between respondent No.2/DIAL and the appellants/IndiGo till a,,,,,,
second Supplementary Report was prepared by the same Committee after two months, on 4.9.2017, wherein reference was made to the earlier",,,,,,
Supplementary Report dated 3.7.2017 and an update of the current situation was taken note of.,,,,,,
On analysing the destination wise passenger share, as operated by all the three airlines from T-1 during FY 2016-17, running into 42 destinations,",,,,,,
the Committee concluded that since the top three destinations from Delhi were Mumbai, Bangaluru and Kolkata constituted 30% of the total",,,,,,
passenger traffic, therefore, the passenger traffic in respect of the said three destinations could be re-located from T-1 to T-2. The other option was to",,,,,,
relocate the passenger traffic for 30 destinations from T-1 to T-2. After carrying out necessary evaluations, the Committee made the following",,,,,,
recommendations in its second Supplementary Report:-,,,,,,
Recommendation",,,,,,
• In view of all the above, it is recommended to implement Option 1 i.e. the three airlines to be advised to be shift the flight operations to",,,,,,
and from Mumbai, Bengaluru and Kolkata from Terminal 1 to Terminal 2. In this case, the traffic would be capped at ~17 million at",,,,,,
Terminal 1.,,,,,,
• Since, the winter schedule is starting from 29th October 2017 which is approximately seven weeks from now, there is adequate time",,,,,,
available with airline to inform passenger and make the necessary arrangement for the above said operations.,,,,,,
• Any fresh demand for flights and parking slot will be considered for allocation at Terminal 2 or 3.""",,,,,,
On receiving the above recommendations, the respondent No.2/DIAL again wrote a letter dated 6.9.2017 to the appellants/IndiGo reiterating inter",,,,,,
alia that as against its capacity of 20 mppa, T-1 was handling capacity of 24 mppa and during the expansion phase of T-1, its capacity will be further",,,,,,
reduced, therefore, traffic equivalent to 8 mppa shall have to be transferred to T-2. As a result, one third of the existing flights of all the three airlines",,,,,,
were proposed to be transferred from T-1 to T-2 on a pro rata basis. The said letter further stated that the number of parking bays available in the,,,,,,
first phase of expansion of T-1 would be limited to 33 and all the three airlines would be offered night parking of aircrafts on a pro rata basis, capped",,,,,,
at 33 and the balance were to be parked at T-2 only. The appellants/IndiGo was informed that w.e.f. 29.10.2017, i.e., on the commencement of the",,,,,,
winter schedule 2017, flights in the specified sectors of Mumbai, Kolkata and Bangaluru would operate from T-2 and steps be taken to shift the",,,,,,
operations in respect of the said sectors at the earliest.,,,,,,
The appellants/IndiGo wrote back to the respondent No.2/DIAL on 18.9.2017, expressing their inability to shift the flight operations in respect of",,,,,,
the three sectors from T-1 to T-2 by the suggested date. Finally, on 28.9.2017, the respondent No.2/DIAL informed the appellants/IndiGo in writing",,,,,,
that the respondent No.6/GoAir shall be shifting its entire operations from T-1 to T-2 w.e.f. 29.10.2017. For the sake of passengers' convenience,",,,,,,
respondent No.2/DIAL also offered to provide free of cost inter-terminal transfer service between T-1 and T-2 for a period of three months from the,,,,,,
date of commencement of operations at T-2, over and above the usual transfer shuttle buses available for inter-terminal transfer.",,,,,,
On 03.10.2017, the appellants/IndiGo lodged a protest with regard to the permission given by the respondent No.2/DIAL to the respondent",,,,,,
No.6/GoAir to shift its entire operations to T-2 and reiterated that given the size of its operations, the best option was to permit them to run their entire",,,,,,
operations from T-1. The appellants/IndiGo categorically declined to shift the flights of the three sectors from T-1 to T-2, by the cutoff date i.e., by",,,,,,
29.10.2017.,,,,,,
On 5.10.2017, the respondent No.2/DIAL again wrote to the appellant/IndiGo and the respondent No.5/SpiceJet reiterating 29.10.2017 as the date",,,,,,
of commencement of operations at T-2 and stating that the respondent No.6/GoAir had expressed its willingness to shift its entire operations from T-1,,,,,,
to T-2 by the aforesaid date. Several letters on this issue were exchanged between the appellants/IndiGo and the respondent No.2/DIAL in the month,,,,,,
of October, 2017. Finally, vide letter dated 21.10.2017, respondent No.2/DIAL granted further time to the appellant/IndiGo to commence its operations",,,,,,
in respect of the three sectors identified by them, from 4.1.2018. It was at that stage that the appellant/IndiGo approached the High Court for relief.",,,,,,
What clearly emerges on a careful perusal of the Internal Assessment Report submitted by the respondent No.2/DIAL and on examining the data,,,,,,
compiled by the respondent No.4/DGCA and placed on record through two affidavits, is that the maximum passenger traffic that T-1 could",,,,,,
accommodate is 20 mppa. The expansion phase of T-1 has been estimated as 42 months, i.e., three and a half years for it to gear up and cater to",,,,,,
passenger traffic of 35 mppa. During the construction phase, the handling capacity of T-1 shall have to be scaled down to one-third, thereby plunging",,,,,,
to 13 mppa.,,,,,,
Besides the statistics furnished by the respondent No.2/DIAL indicating the growth of the three airlines from FY 2014-15 to 2020-21, and",,,,,,
projecting the total passenger traffic for all the three airlines as 28.71 mppa for FY 2018-19, 30.44 mppa for FY 2019-20 and 32.26 mppa for FY",,,,,,
2020-21, on our directions, projections have been furnished by the respondent No.4/DGCA in respect of the scheduled traffic revenue passengers for",,,,,,
the same period, which have been collectively estimated for all the three airlines as 31.31 mppa for FY 2018-19; 37.27 mppa for FY 2019-20 and",,,,,,
44.38 mppa for FY 2020-21.,,,,,,
If the passenger traffic generated by the appellants/IndiGo alone from FY 2016-17 to 2020-21 is broken down, we find that as per the projections",,,,,,
of the respondent No.2/DIAL, the graph steadily increases from 16.1 mppa in FY 2016-17 to 16.57 mppa in FY 2017-18 to 18.40 mppa in FY 2018-",,,,,,
19, 19.5 mppa in FY 2019-20 and finally, to 20.67 mppa in 2020-21. If we compare the projections furnished by the respondent No.2/DIAL to those",,,,,,
furnished by the respondent No.4/DGCA, the statistics furnished by DIAL appear to be more conservative. DGCA has projected the passenger",,,,,,
traffic of the appellants/IndiGo for FY 2018-19 at 20 mppa, for FY 2019-20 at 23.92 mppa and for FY 2020-21 at 28.62 mppa.",,,,,,
Considering the aforesaid exponential estimated growth rate projected for the next three years for the appellants/IndiGo, even if variations due to",,,,,,
external factors like jet fuel price fluctuation, seasonal demand, weather condition, etc., are taken into consideration, quite clearly, T-1 does not have",,,,,,
the capacity to handle volumes beyond 13 to 17 mppa over the next three and a half years and that too, if the expansion phase is concluded within the",,,,,,
estimated timeline.,,,,,,
Given the above analysis of data furnished by two separate agencies, the submission made on behalf of the appellants/IndiGo that in FY 2016-17,",,,,,,
the passenger traffic generated by it at T-1 was not 16.1 mppa, as recorded by the learned Single Judge in para 8 of the impugned judgment, but was",,,,,,
14.62 mppa, pales into insignificance. Once the capacity of T-1 is ultimately required to be scaled down to 13 mppa, during the expansion phase, then",,,,,,
any volume of passenger traffic over and above 13 mppa shall necessarily have to be relocated to T-2, that has a passenger capacity of 12 mppa and",,,,,,
a maximum of 28 parking bays. The argument advanced by the appellants/IndiGo that the recommendations made by the Expert Committee in its,,,,,,
Supplementary Report dated 3.7.2017 itself states that the passenger traffic at T-1 would be capped at 17 mppa and itâ€s passenger traffic volume,,,,,,
will not exceed the said capacity, is found to be too simplistic a view. This figure of 17 mppa cannot be read in isolation, when the very same Report",,,,,,
states in clear terms that on the commencement of the expansion work, the capacity of T-1 shall have to shrink to 13-17 mppa. There is no good",,,,,,
reason for this Court to put a question mark on the projections furnished by the respondent No.2/DIAL in respect of the volume of passenger traffic at,,,,,,
T-1 pegged at 24 mppa for FY 2016-17 and at 27 mppa for FY 2017-18.,,,,,,
It is clarified that the aforesaid exercise has been undertaken by us only to test the argument advanced on behalf of the appellants/IndiGo that,,,,,,
instead of calling upon them to split their operations between T-1 and T-2, if T-1 would be dedicated exclusively for them, then all their passenger",,,,,,
traffic could be absorbed there itself and that was a viable option overlooked by the respondent No.2/DIAL. But that is not the position. The separate,,,,,,
set of statistics provided by both, respondent No.2/DIAL and the respondent No.4/DGCA completely belies the said plea and is sufficient to demolish",,,,,,
the edifice of the arguments advanced by the appellants/IndiGo. Having undertaken the above exercise solely to examine the decision making process,,,,,,
adopted by the respondent No.2/DIAL, we are afraid, there does not appear any irrationality, arbitrariness or impropriety therein.",,,,,,
The Court is also mindful of the self-imposed limitations placed on it while exercising its powers of judicial review. In the case of Union of India &,,,,,,
Ors. vs. J.D. Suryavanshi, (2011) 13 SCC 167, the government had challenged the judgment of the High Court of Madras in a PIL filed by the",,,,,,
respondent for issuing several directions to the Railway administration ranging from providing additional berths in three tier sleepers and AC class,,,,,,
coaches, to completion of a second track between Gwalior and Indore, to rescheduling train timings, filling of vacant posts of coolies, etc. The",,,,,,
Railways had approached the Supreme Court pleading that the High Court was not justified in issuing directions for providing additional coaches or for,,,,,,
changing frequencies of timing of a particular train. In the above context, the Supreme Court had observed as below:-",,,,,,
The Railway Administration is a specialised field. It has to cater to the needs of the entire country. It has limited resources and limited number of",,,,,,
railway engines and railway coaches, particularly AC coaches, more particularly AC I class coaches. The Railways will have to distribute and utilise",,,,,,
the available resources and the available rolling-stock equitably, uniformly and appropriately to serve all the sections of the country. It is possible that",,,,,,
in a particular section there may be hardships, inconveniences and need for introduction of more trains, better timings, and better facilities. But one",,,,,,
sector is not India. We shudder to think what would happen if every High Court starts giving directions to the Railways to provide additional trains,",,,,,,
additional coaches and change timings wherever they feel that there is a shortage of trains or need for better timings. Even in the State of Madhya,,,,,,
Pradesh, we are sure that apart from Gwalior-Indore sector, there are other sectors which may be facing similar hardships and problems. The",,,,,,
Railways does not exist to cater to a particular sector. It is for the Railway Administration to decide where, how and when trains or coaches should be",,,,,,
added or the timings should be changed. The Courts do not have data inputs, specialised knowledge or the technical skills required for running the",,,,,,
Railways. The High Court cannot interfere in regard to only one sector without having any material or information about the requirements of other,,,,,,
sectors, available infrastructure, existing demands and constraints, safety requirements, etc. Nor can the High Court direct introduction of trains or",,,,,,
additional coaches of a particular category or direct change in timings of a train. Changing the timing of a train is not a simple process, but requires",,,,,,
coordinated efforts as it would affect the timings of other trains. There are also different types of trains â€" express trains, superfast trains, passenger",,,,,,
trains, goods trains, with different speeds and priorities. Any attempt to pick and choose one train or one sector for improving the functioning will lead",,,,,,
to chaos involving technical snags and safety problems.,,,,,,
xxx,,,,,,
This Court has repeatedly warned that courts should resist the temptation to usurp the power of the executive by entering into arenas which are,,,,,,
exclusively within the domain of the executive. How many coaches should be attached, what types of coaches are to be attached, on which lines what",,,,,,
trains should run, what should be their timings and frequency, are all matters to be decided by the Railway Administration using technical inputs,",,,,,,
depending upon financial, administrative, social and other considerations. This Court has repeatedly held that courts should not interfere in matters of",,,,,,
policy or in the day-to-day functioning of any departments of Government or statutory bodies. Even within the executive, the need for separation of",,,,,,
roles has been voiced."" (emphasis added)",,,,,,
The scope of judicial review does not permit a court to act as an appellate body and examine the correctness or suitability of a policy, nor are",,,,,,
courts expected to don the hat of the executive body or act as its advisor when it comes to matters of policy. In other words, the object of judicial",,,,,,
review is to ensure that an individual receives fair treatment at the hands of the authorities and there is no violation of the fundamental rights of the,,,,,,
citizen or any arbitrariness in the decision making process. [Ref. Chief Constable of the North Wales Police vs. Evans, (1982) 3 ALL ER 141;",,,,,,
BALCO Employees' Union (Redg.) vs. Union of India; (2002) 2 SCC 333; Federation of Railway Officers Association & Ors. vs. Union of India;,,,,,,
(2003) 4 SCC 289 and Directorate of Film Festivals vs. Gaurav Ashwin Jain, (2007) 4 SCC 737].",,,,,,
A similar view was expressed in the case of Essar Steel Limited vs. Union of India & Ors., (2016) 11 SCC 1, where on examining several",,,,,,
decisions on the aspect of the extent of powers vested in courts to review policy decisions, the Supreme Court had concluded by observing that courts",,,,,,
should exercise great caution and restraint when it comes to commercial matters and should not question the wisdom of the executive policies unless,,,,,,
and until the aggrieved person can demonstrate that the said policy is arbitrary, unreasonable or mala fide or it offends the provisions of the",,,,,,
Constitution of India. [Ref.: Peerless General Finance & Investment Co. Ltd. Anr. vs. Reserve Bank of India, (1992) 2 SCC 343; Narmada Bachao",,,,,,
Andolan vs. Union of India, (2000) 10 SCC 664; Delhi Development Authority & Anr. vs. Joint Action Committee, Allottee of SFS Flats & Ors.,",,,,,,
(2008) 2 SCC 672; and Villianur Iyarkkai Padukappu Maiyam vs. Union of India & Ors., (2009) 7 SCC 561].",,,,,,
The common underlying thread in all the above decisions is that the courts should avoid interfering with the decisions of the executive unless and,,,,,,
until they are so illogical or suffer from the vice of procedural impropriety or so shocking to the conscious that they cannot be sustained. The guiding,,,,,,
factor in exercise of judicial review is to examine the deficiencies in the decision making process and not the decision itself. [Ref : Tata Cellular vs.,,,,,,
Union of India, (1994) 6 SCC 651 & V. Ramana vs. A.P. SRTC & Ors., (2005) 7 SCC 338].",,,,,,
The Court cannot claim to be the repository of specialized knowledge or possessed with technical skills essential for operating a terminal at the,,,,,,
airport. There are several considerations entailed for operating airport facilities, which include factoring in the number of passengers, runways, taxi",,,,,,
ways, apron, city side infrastructure, car parking facilities, widening and realigning of roads, increasing entry gates and departure gates, catering to",,,,,,
hand baggage and the commensurate increase in the baggage belts. All these logistics are aspects that need expertise in the technical field and have,,,,,,
attendant financial and administrative dimensions of serious magnitude, apart from other practical considerations, best left to be handled by experts.",,,,,,
In the case in hand, there are several technical questions that would have engaged the Expert Committee constituted by the respondent",,,,,,
No.2/DIAL before it had submitted three sets of reports dated 17.10.2016, 3.7.2017 and 4.9.2017. Further, the said reports are based on projections",,,,,,
obtained from a foreign consultant specially engaged by the respondent No.2/DIAL for capacity building of T-1.,,,,,,
It was vehemently argued that the respondent No.2/DIAL was expected to have exercised the least restrictive alternative by permitting the,,,,,,
appellant/IndiGo to continue all its operations at T-1, without splitting them between T-1 and T-2. The said argument does not hold water inasmuch as",,,,,,
on scrutinizing the decision making process adopted by the respondent No.2/DIAL before the appellants/IndiGo and the respondent No.5/SpiceJet,,,,,,
were directed to transfer one third of their operations from T-1 to T-2, we find that great pains were taken by DIAL to explore different options by",,,,,,
obtaining technical reports and constituting a Committee of Experts to assess the capacity of T-1 during the renovation period and undertake capacity,,,,,,
balancing for that duration. Out of the three options suggested by the Committee to the respondent No.2/DIAL, after deliberations with all the airlines,",,,,,,
the Committee had itself ruled out the third option as unworkable, thereby leaving two options: the first one of moving one airline from T-1 to T-2 on",,,,,,
an interim basis and the second one, of relocating some flights of all the three airlines from T-1 to T-2.",,,,,,
The argument of the appellants/IndiGo that its passenger traffic for FY 2016-17 will remain stagnant at 14.62 mppa, is falsified by IndiGoâ€s own",,,,,,
letter dated 30.08.2017, extracted in para 34 above where they had stated that the capacity for T-2 is below its need by 4 mppa. Thus, if the volume of",,,,,,
passenger traffic generated by the appellants/IndiGo in FY 2016- 17 is accepted as 14.62 mppa and not 16.1 mppa, as projected by the respondent",,,,,,
No.2/DIAL, and the figure of 4 mppa is added to 14.62 mppa, it would total to 18.62 mppa, which is in excess of 17 mppa, the optimum capacity of T-",,,,,,
1 during the expansion phase. In fact, the Supplementary Report dated 03.07.2017 has clearly stated that during the construction of phase 3-A,",,,,,,
scheduled to go along upto September, 2021, the peak hour handling capacity of T-1 will be reduced to 1/3rd and axiomatically, the annual handling",,,,,,
capacity will be reduced from 20 mppa to 13 mppa.,,,,,,
In any event, the volume of passenger traffic at T-1 is just one aspect of the matter. The respondent No.2/DIAL also has the task of making",,,,,,
alternate arrangements for parking bays to accommodate the planes during the construction phase. This aspect has been highlighted in the evaluation,,,,,,
remarks against option one mentioned in the Supplementary Report dated 03.07.2017, where the respondent No.2/DIAL has noted that IndiGo's",,,,,,
expected traffic of 18.09 mppa coupled with the required parking stands (35) cannot be accommodated at T-2, which has the passenger capacity of",,,,,,
12 mppa and a maximum of 28 parking bays.,,,,,,
Given the above facts and circumstances, we are of the firm view that the suggestion of the appellants/IndiGo that T-1 be dedicated to exclusively",,,,,,
to its use, while calling upon the respondent No.5/SpiceJet to move out its entire operations to T-2, springs from the appellant's own commercial",,,,,,
considerations and has not been made in the larger public good. Simply because it suits a Corporate Goliath like the appellants/IndiGo with its,,,,,,
voluminous passenger traffic to remain in T-1, will not mean that the respondent No.5/SpiceJet should be boxed in a corner and completely nudged out",,,,,,
from T-1, only because its volume of passenger traffic is one fourth that of the appellantsâ€. The respondent No.5/SpiceJet is as much a business rival",,,,,,
of the appellants/IndiGo as the respondent No.6/GoAir is a competitor of the respondent No.5/SpiceJet and the appellants. Going by the volumes of,,,,,,
passenger traffic generated by them, the appellants/IndiGo may be on top of the heap, followed by the respondent No.5/SpiceJet and then the",,,,,,
respondent No.6/GoAir, but this consideration would not entitle IndiGo to claim monopoly over T-1, to the exclusion of the rest. Such a suggestion of",,,,,,
“Only us and None else†at T-1, if implemented, would have reduced it into a one horse race, giving a clear edge to the appellants/IndiGo, over its",,,,,,
competitors and the respondent No.2/DIAL would have been accused of adopting a partisan approach of promoting IndiGoâ€s dominant position,,,,,,
instead of offering a level playing field to all the low cost carriers. Respondent No.2/DIAL has not shown bias but has tried to balance the interests all,,,,,,
the parties as best as is possible, given the severe constraints of available space.",,,,,,
There is merit in the submission made by learned counsel for the respondent No.5/SpiceJet that any attempt on the part of the appellants/IndiGo to,,,,,,
claim exclusive use to T-1, is bound to hurt its business prospects and will be anti-competitive. Despite the operations of the respondent No.5/SpiceJet",,,,,,
being much smaller vis-Ã -vis the appellants/IndiGo, SpiceJet had fairly stated before us that it has bowed down to the decision taken by the",,,,,,
respondent No.2/DIAL to relocate one third of its passenger traffic from T-1 to T-2. The operational difficulties that the respondent No.5/SpiceJet will,,,,,,
face in relocating may be at a smaller scale, but will be no different from those likely to be faced by the appellants/IndiGo.",,,,,,
Therefore, the impugned decision of the respondent No.2/DIAL cannot be said to be unreasonable only because it may operate harshly against the",,,,,,
appellants/IndiGo. It is settled law that when public interest competes with private interest, then the latter has to give way to public interest. [Refer:",,,,,,
Hanif Quareshi vs. State of Bihar, AIR 1958 SC 731; Puthumma vs. State of Kerala, AIR 1978 SC 771; P.P. Enterprises vs. Union of India, AIR",,,,,,
1982 SC 1016; Sales Tax Officer vs. Shree Durga Oil Mills, (1998) 1 SCC 572; Friends Colony Development Committee vs. State of Orissa and Ors.,",,,,,,
(2004) 8 SCC 733; Baitarani Gramiya Bank vs. Pallab Kumar and Ors., (2004) 9 SCC 100 and Md. Murtaza and Ors. vs. State of Assam and Ors.,",,,,,,
(2011) 12 SCC 413].,,,,,,
In the present case, public interest lies in expediting the redevelopment activity at T-1, which is a purely administrative decision. The date of",,,,,,
shifting a part of the operations from T-1 has had to be pushed thrice over, thereby delaying the date of commencement and postponing the conclusion",,,,,,
of the renovation work. It is not as if the appellants/IndiGo, and for that matter, SpiceJet and GoAir have been banished forever from T-1. If we may",,,,,,
twist the American idiom, “My way or the Highway†to fit the present context, then the appellants/IndiGo cannot be heard to say that it is either",,,,,,
their way, or the run way. The appellants/IndiGo are tending to forget that this part relocation from T-1 to T-2 proposed by the respondent",,,,,,
No.2/DIAL, is only a temporary measure and once T-1 is renovated and commences its operations after capacity building, all the airlines can operate",,,,,,
from there full throttle and take wings.,,,,,,
In the light of the above discussion, we are of the opinion that there is no illegality, arbitrariness or infirmity in the impugned judgment that warrants",,,,,,
interference. Moreover, the learned Single Judge has gone to the extent of watering down the option given by the respondent No.2/DIAL to the",,,,,,
appellants and the respondent No.5/SpiceJet by directing that in the event they make a request to shift one third of their operations by excluding the,,,,,,
three identified sectors, i.e., Mumbai, Kolkata and Bengaluru, they may do so within one week from the date of the judgment. In that eventuality,",,,,,,
respondent No.2/DIAL has been directed to consider such a request and dispose of it within one week from the date of receipt.,,,,,,
In the course of arguments addressed before us on 24.1.2018, on some prodding, learned counsel for the appellants/IndiGo had handed over a",,,,,,
sheet in long hand, identifying ten sectors where the volume of their passenger traffic would work out to 4.8 mppa, which would work out to one third",,,,,,
of their operations. But when asked to obtain clear instructions as to whether IndiGo is willing to switch the said ten sectors identified by it for the,,,,,,
three prime sectors of Mumbai, Kolkata and Bengaluru shortlisted by the respondent No.2/DIAL for relocation from T-1 to T-2, learned counsel for",,,,,,
the appellants had stated on instructions that they are not willing to exercise such an option.,,,,,,
As we have now upheld the impugned judgment, we grant a last opportunity of one week to the appellants/IndiGo and the respondent",,,,,,
No.5/SpiceJet to approach the respondent No.2/DIAL to suggest other sectors that they would be ready and willing to shift from T-1 to T-2, as long",,,,,,
as they collectively meet the yardstick of one third passenger traffic volumes of their operations at T-1. In the event such a request is received by the,,,,,,
respondent No.2/DIAL within the stipulated timeline, the same shall be considered and a decision taken under written intimation to both the airlines",,,,,,
within one week from the date of receipt. If no such request is received within the stipulated timeline, then the respondent No.2/DIAL shall fix a",,,,,,
deadline for shifting one third of the flight operations of the concerned airlines from T-1 to T-2, under written intimation to them.",,,,,,
The appeal is dismissed as meritless, while leaving the parties to bear their own expenses.",,,,,,