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M/s. Add Lounge Services Private Limited Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberW.P.(C) No. 11202 of 2015 & CM No. 29152 of 2015
Judge
AppellantM/s. Add Lounge Services Private Limited
RespondentUnion of India and Others
Excerpt:
1. the petition impugns the order dated 20th november, 2015 of the secretary, ministry of civil aviation, government of india (respondent no.1) in appeal filed by the petitioner under rule 4 of the aircraft (security) rules, 2011 against the communication dated 22nd september, 2015 of the respondent no.2 bureau of civil aviation security (bcas), ministry of civil aviation conveying to the petitioner that in view of the adverse report received from the central security agency, security clearance was being denied to the petitioner. 2. the petitioner had earlier filed w.p.(c) no.9544/2015 impugning the said communication dated 22nd september, 2015. the said writ petition was disposed of vide order dated 8th october, 2015 with liberty to the petitioner to prefer the appeal under rule 4 supra.....
Judgment:

1. The petition impugns the order dated 20th November, 2015 of the Secretary, Ministry of Civil Aviation, Government of India (respondent No.1) in appeal filed by the petitioner under Rule 4 of the Aircraft (Security) Rules, 2011 against the communication dated 22nd September, 2015 of the respondent no.2 Bureau of Civil Aviation Security (BCAS), Ministry of Civil Aviation conveying to the petitioner that in view of the adverse report received from the Central Security Agency, security clearance was being denied to the petitioner.

2. The petitioner had earlier filed W.P.(C) No.9544/2015 impugning the said communication dated 22nd September, 2015. The said writ petition was disposed of vide order dated 8th October, 2015 with liberty to the petitioner to prefer the appeal under Rule 4 supra and by fixing a time schedule for disposal of the said appeal and by deferring the consequence of denial of security clearance to the petitioner till the disposal of the said appeal and in the event of the order therein being against the petitioner, till the petitioner had availed of remedies thereagainst.

3. Notice of this petition was issued and the operation of the impugned order dated 20 th November, 2015 stayed. The respondents were also directed to produce the record relied upon by the respondent no.2 BCAS as well as by the respondent no.1 Union of India (UOI) while deciding the appeal.

4. It is the case of the petitioner (i) that the respondent no.3 Delhi International Airport (P) Limited (DIAL) on 15th June, 2010 granted to the petitioner (then known as SSP Catering India Pvt. Ltd.) a licence to set-up, develop and operate the lounge under the brand called Emirates Lounge at Delhi International Airport; (ii) that the petitioner in terms of Clause 8.4.22 of the said licence applied for security clearance so as to provide access to the petitioner s employees, goods and material to the restricted area of the Airport falling in the security hold area, to serve/cater to the passengers travelling by Emirate Airlines; (iii) the respondent no.2 BCAS on 18th January, 2011 granted security clearance to the petitioner valid for a period of five years i.e. up to 17th January, 2016; (iv) that the petitioner since January, 2011 has been operating the lounge, strictly abiding by all the conditions imposed by the respondent no.2 BCAS and respondent no.3 DIAL; (v) that in the year 2014 one of the shareholders of the petitioner disinvested its entire shareholding to an existing shareholder and as a result thereof the name of the petitioner was changed from M/s. SSP Catering India Pvt. Ltd. to M/s. Skylark Hospitality India Pvt. Ltd.; (vi) the respondent no.3 DIAL upon being communicated the said change required the petitioner to obtain fresh security clearance and the petitioner accordingly sought the same; (vii) that the respondent no.2 BCAS, without granting any pre-decisional hearing to the petitioner, vide communication dated 22nd September, 2015 supra denied security clearance to the petitioner and as a result thereof the respondent no.2 BCAS stopped accepting applications for issuance of Airport Entry Passes afresh and/or revalidation thereof for the employees of the petitioner; (viii) that in the meanwhile the petitioner learnt that there were several other companies registered in the name of Skylark and the petitioner, to avoid any claim of Intellectual Property Right infringement, without affecting any change in its shareholding or management, changed its name to the present name of M/s ADD Lounge Services Pvt. Ltd.; (ix) W.P.(C) No.9544/2015 was filed impugning the said communication dated 22nd September, 2015 and which petition was disposed of vide order dated 8th October, 2015 supra; and (x) the respondent no.1 UOI granted an opportunity of hearing to the petitioner on 12th November, 2015 and has vide impugned order dated 20th November, 2015 dismissed the appeal.

5. The respondent no.1 UOI has vide impugned order dated 20th November, 2015 dismissed the appeal of the petitioner finding/observing/recording (i) that the case was heard by the Secretary, Ministry of Civil Aviation on 12th November, 2015 in the presence of the petitioner and the representatives of the respondent no.2 BCAS and the petitioner was also allowed to provide written submissions along with supporting documents within three days; (ii) all the documents provided by the petitioner had been perused and observations of the respondent no.2 BCAS also noted; (iii) the respondent no.2 BCAS had received input which indicated that the petitioner has come to significant adverse notice by the security agencies; (iv) as per the initial documents submitted by M/s. SSP Catering India Pvt. Ltd., one of the promoters was also a Director of the petitioner but his name was dropped through a communication of cessation as director, on 28 th March, 2008; (v) at that time the petitioner did not declare about the shareholding pattern; (vi) after scrutiny of relevant documents it came to light that the said promoter was holding the shares of the petitioner from initial stage and his termination as a Director did not mean cessation of his association with the petitioner; (vii) that the petitioner, after change of its name from M/s. Skylark Hospitality India Pvt. Ltd. to the present name M/s. ADD Lounge Services Pvt. Ltd. had not applied for security clearance in accordance with the BCAS guidelines therefrom it appears that the petitioner wants to continue business without following the prescribed procedures; and, (viii) the respondent no.2 BCAS has exercised due diligence and communicated the rejection as per extant guidelines.

6. The petitioner impugns the order dated 20th November, 2015 of the respondent no.1 of dismissal of its appeal contending (i) that the material on the basis whereof the Central Security Agencies furnished adverse report to the respondent no.2 BCAS has not been disclosed to the petitioner and the petitioner is thus unable to rebut the same; (ii) that the hearing granted on 12th November, 2015 was perfunctory in nature and an eyewash; (iii) M/s. SSP Catering India Pvt. Ltd. had other operations at Terminal-2, Indira Gandhi International Airport, New Delhi and was granted security clearance in the year 2008; (iv) that the impugned order wrongly records that M/s SSP Catering India Pvt. Ltd. did not declare about the shareholding, the shareholding information has never been withheld by the petitioner ; (v) theorder is based on surmises and conjectures and is cryptic and non-speaking order; (vi) that all the grounds taken by the petitioner in its Memorandum of Appeal and written submission have not been dealt with by the respondent no.1 UOI acting as Appellate Authority; (vii) there was no occasion for the petitioner to seek security clearance under the present name of M/s. ADD Lounge Services Pvt. Ltd. as the same came into force only on 30th September, 2015; (viii) denial of security clearance to the petitioner is violative of Articles 14 and 19(1)(g) of the Constitution of India; (ix) the petitioner is a commercial entity providing services to Emirates Airline passengers at Indira Gandhi International Airport and holds reputation as an efficient Lounge Operator; (x) neither the petitioner nor its Directors/key executives have ever been involved/implicated in any criminal proceedings much less of moral turpitude, money laundering, drug trafficking, terrorist activities, which can be said to have nexus with security of State or security of India; (xi) security clearance as defined in the Aircraft (Security) Rules means compliance with the security controls specified in the national civil aviation security programme with regard to any aircraft, person or object it is not the case that the petitioner or its Directors or key executives or employees have at any time committed any breach of the security programme approved on 18th January, 2011; (xii) no security incident has ever been reported against the petitioner or its Directors or officials; (xiii) the contents of the purported adverse report are in public domain and pretence of confidentiality is a farce; (xiv) there is no FIR or any other legal civil or criminal proceedings pending against the individual shareholders of the petitioner; (xv) even otherwise a company as the petitioner is, is distinct from its shareholders; and, (xvi) denial of security clearance is stigmatic.

7. It was also the contention of the senior counsel on 2nd December, 2015 when this petition had come up first that since the security clearance earlier granted was valid till 17th January, 2016 only and renewal thereof had to be applied in advance, the petitioner be permitted to apply for renewal and the respondents be directed to consider the same without reference to the subject controversy.

8. The learned Additional Solicitor General (ASG) appearing on advance notice/caveat on 2 nd December, 2015 stated that the petitioner may apply and the application for renewal shall be considered as per extant conditions applicable to renewal and the renewal if any will also be subject of the outcome of this petition.

9. The respondent no.2 BCAS has filed counter affidavit pleading (i) that the respondent no.2 BCAS, vide Rule 3 of Rules aforesaid is entrusted with national civil aviation security programme consistent with the provisions of Annexure-17 to the convention to safeguard civil aviation operations against acts of unlawful interference and threat perception taking into account the safety, regularity and efficiency of flights; (ii) as per Rule 11, no aerodrome operator can allow the setting up of any business establishment in the security restricted area of aerodrome without obtaining security clearance; (iii) security clearance and approval of security programme is accorded after background checks of the applicant and if a company, also its directors; (iv) the petitioner is a joint venture of two companies and the respondent no.2 BCAS has received input from Central Security Agency that one of the joint venture partner companies had come to significant adverse notice; (v) security clearance is a subject to be carried out by the security agencies i.e. Intelligence Bureau (IB) or any other statutory body; every agency follows its own procedure for investigation before granting security clearance and the said information is not shared with the respondent no.2 BCAS because the investigations are ongoing process and any information can further lead to manipulation of the investigation by the affected person; (vi) that the respondent no.2 BCAS is bound by the security report and cannot take a decision on its own; (vii) normally security clearance is not withheld; (viii) the principles of natural justice cannot be made applicable for the investigating agency for sharing the information as it is connected with safety and security of the nation; and, (ix) Supreme Court in order dated 26th February, 2014 in Civil Appeal No.2876/2014 arising out of SLP (Civil) No.15000/2010 titled Ex. Armymen s Protection Services Private Ltd. Vs. Union of India has held that in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice and in such cases it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field and that depending on the facts of the particular case, it will be open to the Court to satisfy itself whether there were justifiable facts and the Court is entitled to call for the files and see whether it is a case where the interest of national security is involved and that once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party.

10. Though the petitioner has filed a rejoinder to the aforesaid counter affidavit of the respondent no.2 BCAS but the need to advert thereto is not felt.

11. The counsel for the petitioner in addition to the contentions aforesaid invited attention to the definition in Rule 2 (e), (u), (w), (z) and (za) of acts of unlawful interference , security , security clearance , securitycontrol and security programme respectively and on the basis thereofcontended that no ground for denial of security clearance within the meaning thereof is made out.

12. Per contra the learned ASG contended (i) that security clearance is rarely denied; and (ii) that there can be no judicial review of security clearance.

13. The counsel for the petitioner in rejoinder argued (i) that judicial review cannot be denied by raising alarmist arguments; (ii) though the Commissioner of the respondent no.2 BCAS as per the Rules is required to take decision qua security clearance on his own but in the communication dated 22nd September, 2015 has considered himself to be bound by the reports of the security agencies and the same stand has been taken in the counter affidavit also; (iii) the Commissioner of the respondent no.2 BCAS has thus failed to exercise the jurisdiction statutorily vested in him; (iv) that the views of the security agencies as the IB are not binding on the Commissioner of the respondent no.2 BCAS; (v) that security clearance is being denied to the petitioner owing to shareholder of one of the companies holding shares in the petitioner being close to the political regime earlier in power. Reliance was placed on (a) Ex-Armymen s Protection Services Private Limited Vs. Union of India (2014) 5 SCC 409; (b) Digital Radio (Mumbai) Broadcasting Ltd. Vs. Union of India 222 (2015) DLT 243 (DB); (c) order dated 29th January, 2016 of the Supreme Court of India of dismissal of Special Leave Petition No.34468-34469/2015 titled Union of India Vs. Digital Radio Mumbai; (d) A.K. Sharma Vs. Director General of Civil Aviation and Union of India 98(2002) DLT 738; and, (e) Kal Cables Pvt. Ltd. Vs. Secretary, Ministry of Information and Broadcasting 2014 SCC OnLine Mad 6857.

14. The counsel for the respondent no.2 BCAS controverted that the Commissioner of the respondent no.2 BCAS or the respondent no.1 UOI in appeal did not make their own analysis and contended that the reliance by the counsel for the petitioner on judgments though relating to security clearance but in relation to a subject other than civil aviation is misconceived as in the matter of civil aviation a different yardstick is to be adopted.

15. The counsel for the respondents no.1and2 during the hearing on 3rd March, 2016 handed over a sealed envelope containing the reasons for denial of security clearance and the contents whereof were perused and the judgment reserved. The counsel for the respondents no.1and2 during the hearing on 3rd March, 2016 also informed that the decision on the aspect of renewal of security clearance to the petitioner as was directed to be taken subject to the outcome of this petition was also likely to be taken within four weeks. It was accordingly directed that the said decision be also placed before this Court.

16. The petitioner filed CM No.13195/2016 stating that guidelines for security clearance existed and which were not earlier in the knowledge ofthe petitioner and seeking a direction to the respondents to place the said guidelines before this Court.

17. The respondent no.2 BCAS also filed CM No.13511/2016 placing before this Court the order dated 4th April, 2016 of the respondent no.2 BCAS on the renewal of security clearance of the petitioner. The order dated 4 th April, 2016, in view of the adverse report of the IB, refuses renewal of security clearance to the petitioner but the said refusal has been kept in abeyance awaiting the outcome of this petition.

18. Both the aforesaid applications came up before this Court on 8th April, 2016 when the counsels were heard thereon and it was directed that orders on the said applications shall also be pronounced with the orders in the writ petition. The learned ASG was also requested to place before this Court in a sealed cover the Guidelines if any for grant of security clearance. In response thereto the learned ASG has on 29th April, 2016 handed over an envelope containing the said Guidelines and which have also been perused by me.

19. Before proceeding to deal with the controversy at hand I may state that I have in Voluptas Developer Pvt. Ltd. Vs. Union of India 2016 SCC OnLine Delhi 2129, while dealing with challenge to denial of security clearance leading to denial of consideration for award of a contract for development, operation and management of a proposed airport at Goa through public private partnership, and after considering Global Vectra Helicorp Vs. Directorate General of Civil Aviation 2012 SCC OnLine Del 3267 and other judgments including the judgments relied upon by the counsel for the petitioner (except Kal Cables Pvt. Ltd. supra) held that the scope of interference in challenge to non-grant of security clearance, if the Court finds that the reasons for which security clearance has been denied require re-consideration and/or if the Court is of the opinion that the possibility of denial of security clearance for reasons to oust commercial competition or for other oblique reasons cannot be ruled out, is confined to refer back the matter for re-consideration, if possible by a higher authority than that which has refused security clearance on an earlier occasion; however if the authorities concerned still are of the view that the person concerned poses a threat to the security of the State, the Court will ordinarily not interfere because, whether there is perception of threat to the security of a citizen has to be considered by the authority concerned and the Court cannot substitute its own opinion for that of the authority concerned and the same would be outside the purview of the judicial review. Reliance in this regard was placed on Parveen Kumar Beniwal Vs. Government of NCT of Delhi 2014 SCC OnLine Delhi 7279 (DB) though in the context of grant of a arms licence.

20. Earlier also, a Division Bench of this Court of which I was a member, in Bycell Telecommunications India Pvt. Ltd. Vs. Union of India (2011) 185 DLT 494 held that once the agencies of the Government having expertise and vested with the powers to take decision in such matters have reached a conclusion that it is risky to open the telecommunication channels of the country to a certain set of foreigners and such conclusion is found to have been reached on the basis of material available on record, it is not for this Court to in the exercise of its powers of judicial review, sit in appeal over such decision. Reliance was placed on Fertilizer Corporation Kamgar Union (Regd.) Sindri Vs. UOI (1981) 1 SCC 568 holding that judicial interference with the administration cannot be meticulous in our montesquien system of separation of powers and the Court cannot usurp and the parameters of judicial review can never be exceeded. It was further held that once the appropriate agencies have found it unsafe to allow inroads in the country to a particular foreign entity, merely because such foreign entity undergoes a mutation would not change the position and such mutation cannot wash away the taint with which the investment was found to be suffering. The request of the affected party in that case, for a direction for further investigation, was also held to be beyond the jurisdiction of the Court once the agencies concerned had deemed it to be not necessary.

21. I have at the outset considered whether any re-look from the ratio aforesaid is required, particularly in the light of the judgment of the Division Bench of this Court in Digital Radio (Mumbai) Broadcasting Ltd. supra which though was noticed in Voluptas Developer Pvt. Ltd.

22. On a re-reading of Digital Radio (Mumbai) Broadcasting Ltd. it is found that the Division Bench in the said judgment clarified that it was in the said judgment not touching upon the policy of requiring a security clearance and not sitting in appeal over the decision of the respondent asto the security angle assessment and that it was not called upon tocomment upon ..whether the allegations/charges against the said two individuals are well founded or unfounded and that the limited extent ofjudicial review with which the Division Bench was concerned was whether the security assessment is germane to the requirements of security clearance prescribed in clause 3.8 of the Notice Inviting Applications (NIA) in that case. On an interpretation of the said NIA it was held that the security clearance required was of the company and not of the directors of the company. Earlier judgment of the Division Bench in Bycell Telecommunications India Pvt. Ltd. supra was noted and was not, as indeed could not have without referring to a larger Bench, disagreed with.

23. I therefore see no reason to proceed with parameters any different from that in Bycell Telecommunications India Pvt. Ltd. and Voluptas Developer Pvt. Ltd. supra. It may also be noticed that in Voluptas Developer Pvt. Ltd. there was no appellate provision available as is available under the Rules aforesaid and for the reason of finding the need for reconsideration by a higher authority, re-consideration at the highest level possible and if possible in consultation with the Minister/State Minister for Home Affairs was directed. Here, the petitioner has already availed of reconsideration under the statutory appeal available.

24. Though ordinarily the reasons shown to this Court in confidence for denial of security clearance are not to form the subject matter of the judgment/order of this Court but since it was the contention of the senior counsel earlier appearing for the petitioner that the said reasons are in public domain and the senior counsel had also demonstrated so, I take liberty of recording to the extent that the denial of security clearance to the petitioner is not on account of anything adverse against the petitioner as a corporate entity but on account of promoter of another company holding more than 10% shares in the petitioner being in adverse notice since 1997, for his involvement corrupt practices and acting as broker in deals between private parties and the Ministry and influencing the decision making process and having been put in the undesirable contactmen list . It is also mentioned thatmajority of the shares of the petitioner company are held by a foreign based entity.

25. The petitioner admittedly, as per the terms of the licence granted to it by the respondent no.3 DIAL, is required to obtain and maintain security clearance/airport entry permits for itself and its employees from the respondent no.2 BCAS. Rule 9 of the Rules aforesaid prohibits aerodrome operators as the respondent no.3 DIAL is, from commencing operations without obtaining clearance of security arrangements and approval of the aerodrome security programme from the Commissioner of the respondent no.2 BCAS. Whatever part of the operations the respondent No.3 DIAL has licensed to the petitioner, the petitioner also is required to obtain security clearance. Security clearance is defined in Rule 2(w) as compliance with the security controls specified in the national civil aviation security programme with regard to any aircraft, person or object. Rule 2(u) defines security as meaning a combination of measures, human and material resources intended to be used to safeguard civil aviation against acts of unlawful interference. Rule 2(y) of the Rules aforesaid defines security incident in relation to civil aviation security as an occurrence, which takesplace either on the ground or in flight, which results in injury to a person, damage to property, fire and breakage or contravention or breach of security laws, regulations, national civil aviation security programme and orders issued by the Central Government under the provisions of the Act. Rule 2(z) defines security control as the method by which the introduction ofweapon, explosive or other dangerous device, article or substance, which may be used to commit an act of unlawful interference, can be prevented. Similarly Rule 2(e) defines acts of unlawful interference as acts orattempted acts to jeopardise the safety of civil aviation and air transport, including unlawful seizure of aircraft in flight or on the ground, hostagetaking on board aircraft or on aerodromes, forcible intrusion on board an aircraft or an aerodrome or on the premises of an aeronautical facility or as introduction on board an aircraft or at an aerodrome of a weapon or hazardous device of material intended for criminal purposes. Rule 2(za) defines security programme as meaning written measures specified by theCommissioner of the respondent No.2 BCAS to be adopted by an entity to safeguard civil aviation against acts of unlawful interference.

26. The aforesaid Rules have been framed in exercise of powers under Sections 4 and 5 of the Aircraft Act, 1934. Section 4 empowers the Central Government to make Rules as may appear to be necessary for carrying out the Convention relating to International Civil Aviation signed at Chicago on 7 th December, 1944 including any Annexures thereto relating to international standards and recommended practices as amended from time to time. Section 4A empowers the Director General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government to perform the safety oversight functions in respect of matters specified in the Act or the Rules framed thereunder. Section 5 also empowers the Central Government to inter alia make Rules providing for measures to safeguard civil aviation against acts of unlawful interference.

27. Annexure 17 to the Convention on International Civil Aviation referred to in Section 4 supra deals with Security i.e. SafeguardingInternational Civil Aviation Against Acts of Unlawful Interference . Aperusal of 9th Edition (March, 2011) of the said Annexure 17 available on the internet shows that India as a contracting state to the Convention has an obligation to ensure safety of passengers, crew and ground personnel and general public in all matters related to safeguarding against acts of unlawful interference with civil aviation and to establish an organization and develop and implement regulations, practices and procedures to safeguard civil aviation against acts of unlawful interference taking into account safety, regularity and efficiency of the flights. Chapter I of the said Annexure defines background check as a check of a person s identity and previousexperience, including where legally permissible, any criminal history, as part of the assessment of an individual s suitability to implement a security control and/or for unescorted access to a security restricted area. Clause 4.2 of the said Annexure 17 to the Convention requires India as a contracting state to ensure that the access to airside areas at airports serving civil aviation is controlled in order to prevent unauthorized entry and to ensure that background checks are conducted on persons other than passengers granted unescorted access to security restricted areas of the airport prior to granting access to security restricted areas.

28. Undoubtedly the Division Bench of this Court in Digital Radio (Mumbai) Broadcasting Ltd. supra negatived the contention that if the shareholders of a corporate entity are not subjected to security clearance, it would defeat the very purpose of having a security clearance in the sensitive field of radio waves and also negatived the contention that the corporate veil should be pierced to find out who in fact is running or controlling the company. However, that was in the context of interpretation of Clause 3.8 of the NIA which required the company as well as all directors on the board to be security cleared and which was held not to include shareholders. The provisions of the Rules supra which are statutory in nature and in fulfillment of obligation under an International Convention are materially different from the NIA subject matter of consideration by the Division Bench in Digital Radio (Mumbai) Broadcasting Ltd. supra. Rule 5 of the Rules aforesaid permits assessment by the Commissioner of the Respondent No.2 BCAS of security risk and Rule 7 empowers him to, taking into consideration the security perceptions make suchorders as may be deemed appropriate for security arrangement. Rule 18 empowers the Commissioner of respondent No.2 BCAS to refuse admission to any person to any aerodrome and Rule 26 requires the air operators to engage only those personnel whose character and antecedents have been verified.

29. The security clearance under the Rules aforesaid is not confined to the corporate entity but has to necessarily extend to the natural persons conducting the affairs of the corporate entity and who would have access to the aerodrome and its security restricted area in pursuance to the security clearance to the corporate entity. A corporate entity of its own cannot pose any threat to aviation security. If it were to be held that in the aviation security the security risk assessment in the event of the applicant being a corporate entity has to be confined to the corporate entity only, it would belie the very need for security clearance. It cannot be lost sight of that under the guise of security clearance to a corporate entity it is the human beings at the helm of affairs of such corporate entity who gain access to the secured area of the airport.

30. Airport security since September, 11th 2001 incident, leading to the fall of World Trade Center in New York, has acquired a different meaning. The same has taught humanity that aircrafts can be used as weapons of destruction not only of those travelling therein but also of others i.e. of mass destruction of those to whom they may be diverted.

31. I have repeatedly considered whether reported acts of corruption of a shareholder of a corporate entity seeking security clearance, without any history of having committed any offence directly aimed at humanity, can be a ground for denial of security clearance and am unable to come up with any reply save in affirmative. In my opinion a person accused of influencing decision making by public authorities which should be in public interest, to that in private interest, cannot be trusted to refuse jeopardizing the safety of humanity for the sake of money/private interest. Such a person cannot qualify as not posing any threat to aviation security. A person who can for money influence decisions to be taken not in national interest but in private interest can in my opinion be not trusted with access to the restricted areas of an airport. Such a person, for money, would not hesitate in using his security clearance to allow others capable of breaching the security cordon to go pass the cordon and cause an act of unlawful interference. 31A. Recently in Centre for Public Interest Litigation Vs. Union of India (2016) 6 SCC 408 it has been reiterated that when the decision making is policy based, judicial approach to interfere with such decision making becomes narrower specially when such policy is outcome of deliberations of technical experts as the Courts are not equipped to fathom into such domain which is left to the discretion of the Executive. Safety and Security of the State is similarly in the exclusive domain of the Executive under the doctrine of Separation of Powers and is today a highly specialized matter when so called white collar crimes are on the rise and the assessment andperception of the Executive will not be interfered with unless established to be bad. The petitioner has failed to do so.

32. The Rules aforesaid and which are in accordance with the International Convention allow assessment and perception to governgrant or refusal of security clearance. Once that is so, it cannot be held that such assessment , perception cannot be formed without any proof orconviction or at least even an FIR. There are no such requirements while making assessment of threat or perception of character. It is common knowledge that for diverse reasons, it may not be possible to gather proof enough for conviction or even for an FIR. However, the same does not come in the way of the Commissioner of the respondent No.2 BCAS assessing such a person as a security risk or perceiving him as dangerous to aviation security.

33. I have also considered the contention of the petitioner, of the Commissioner of the respondent No.2 BCAS having merely acted on the reports of the intelligence agencies but do not find any merit therein. The International Convention and the Rules aforesaid enable the Commissioner of the respondent No.2 BCAS to make an assessment of a person s character on the basis of reports of agencies having expertise in the same and do not require the respondent No.2 BCAS to itself investigate. Even otherwise, from the material on record, it is evident that the Commissioner of the respondent No.2 BCAS has satisfied himself within the meaning of the Rules.

34. I have also wondered the effect of, the petitioner in the past having been granted security clearance or having not been accused of any breach thereof in the last over five years. However the very fact that the gentleman for whose reason security clearance has been denied, inspite of his name being on undesirable contact men list and being in adverse notice of the officers since 1997, has in the past succeeded in getting security clearance does not entitle him to become entitled to renewal thereof.

35. Though in such matters a possibility of the process of security clearance being used to kill competition cannot be ruled out but those who indulge in such practices and get into the arena in the first instance by adopting dubious means cannot be heard to cry hoarse when suffer for the same reason. Moreover, the larger public interest has to prevail over private interest.

36. I therefore do not find any error in the withdrawal of security clearance earlier granted to the petitioner or in denial of renewal of such security clearance. Resultantly the petition is dismissed. No costs.


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