SC clears decks for GMR to run, upgrade Nagpur airport, closes curative plea of Centre, AAI

NEW DELHI: The Supreme Court on Friday cleared decks for private firm GMR Airports to upgrade and operate Nagpur’s Babasaheb Ambedkar International Airport (AAI) by closing the proceedings on a curative plea of the Centre and the Airport Authority of India.

The Centre and the AAI had filed a curative petition against the dismissal of their review plea by the top court.

Prior to this, the apex court had rejected the petition of the Centre and the AAI against a Bombay High Court judgement allowing GMR Airports to upgrade and operate the Nagpur airport.

A special four-judge bench of Chief Justice D Y Chandrachud and Justices Sanjiv Khanna, B R Gavai and JK Maheshwari closed the proceedings on the curative plea against its verdict after taking note of the opinion of Solicitor General Tushar Mehta that the petition of the Centre and the AAI did not fall under one of legal parameters prescribed for entertaining such pleas.

The curative plea is the last legal recourse available to a litigant and it was devised by the top court by a 2002 judgement in the Rupa Ashok Hurra case and such a plea, after the dismissal of the main case and the review petition, can be filed if there are certain violations.

They are that there should be a violation of the principle of natural justice, apprehension of bias and the abuse of judicial process.

The top law officer told the bench the curative plea may not fall under the 2002 judgement and they cannot argue that ground of bias and analogous ground that the government was not heard.

"These proceedings cannot be made into an intra court appeal. I must own my decision.... I have not even consulted the Centre,” the solicitor general said.

The law officer, however, submitted one aspect where the impugned judgement said the Centre and the AAI were not the necessary parties to the litigation may be reconsidered because of negative consequences in similar matters.

The bench appreciated views of the solicitor general, and said the curative plea is disposed of as "not pressed'.

Allowing the submission of the law officer, the bench said, "The observation ...of the judgment that the AAI and the Union of India are not necessary parties would not be the correct position in law."

Earlier, the bench had sought the "dispassionate views" of the solicitor general as an officer of the court and not as a lawyer of the Centre and the AAI in the case.

The top court had on May 9, 2022 upheld the Bombay High Court order which quashed a March 2020 communication issued by a joint venture firm cancelling a contract awarded to GMR Airports for the upgradation and operation of the airport.

The Centre and the AAI have filed the curative plea against the 2022 order of the top court.

The special bench had taken up the curative plea in an open court for hearing.

The bench said since it was taking up the curative petition, it has to keep in mind the balance of equity as there are competing interests of the State and the private firm.

Prior to this, the bench had directed the civil aviation ministry to submit the file notings pertaining to the tender process for the airport.

In 2022, the top court, while upholding the high court’s order which quashed the March 2020 communication issued by the joint venture firm, MIHAN India Ltd (Multi Modal international Cargo Hub and Airport at Nagpur), cancelling the award of contract to GMR Airports, had said the impugned judgment was based on sound reasoning and true analysis of facts and did not warrant interference.

"We are of the considered opinion that the findings recorded by the High Court allowing the writ petition are in accordance with law. Those findings do not suffer from any illegality, warranting interference by this court in exercise of the power under Article 136 of the Constitution. All these appeals are hereby dismissed," a bench of Justices Vineet Saran, since retired, and J K Maheshwari had said on May 9, 2022.

The Centre was alleging that it was not heard by the high court.

The top court had said contracts, if granted by government bodies, are expected to uphold fairness, equality and rule of law.

The top court's judgement came on an appeal filed by MIHAN, the flagship project of the Maharashtra Airport Development Company Limited, challenging the August 18, 2021 order of the high court.

The high court had said the communication, issued to GMR Airports Ltd by MIHAN India Ltd deserved to be quashed and set aside.

"We find that the impugned communication is arbitrary, unfair and unreasonable and, therefore, it deserves to be quashed and set aside," the high court had said.

The HC order came on a petition filed by GMR Airports challenging the action of MIHAN in annulling the bidding process for upgradation, modernisation, operation and management of the Nagpur international airport despite the process having come to an end and the petitioner (GMR) already having been awarded the project by way of a Letter of Award on March 7, 2019.

According to the plea, MIHAN was planning to issue fresh tenders for the project.

MIHAN had, however, claimed the communication sent to the petitioner on March 7, 2019 was only a bid acceptance letter and not a letter of award.

The company said the communication clearly stated that the acceptance of the bid was conditional and required the approval of the Union Ministry of Civil Aviation.