Shri Taniang Kipa vs The Union of India and Others

Abhay Manohar Sapre, C.J.—This is a petition filed by one Shri Taniang Kipa claiming to be the resident of Karsingsa village District Papum Pare, Arunachal Pradesh under Article 226/227 of the Constitution of India seeking to invoke the extraordinary jurisdiction of this court relating to PIL (Public Interest Litigation) against the State and its authorities in relation to the subject matter of the writ petition. In substance, the grievance of the writ petitioner is against the decision of the State in shifting of site for construction of Airport project known as "Greenfield Airport Project" from a site/place called "Karsingsa/Banderdewa at Itanagar" to another place called "Hollongi".

According to the petitioner, firstly: the decision having rightly been taken by the State in the first instance to set up an Airport at a place "Karsingsa/Banderdewa", there was neither any need nor an occasion for shifting the Airport site to other place at "Hollongi" thereby changing the earlier decision, secondly: the decision to shift is irrational, arbitrary and not conceived in the public interest, thirdly: it is taken to extend benefit to persons in power so that they are able to get some kind of monetary consideration, fourthly: construction of Airport at new site would cause more burden in terms of investment as compared to its original cost on the earlier site selected and hence it is bad. These were essentially the grounds on which the decision to shift the site for construction of the Airport from original site is assailed in this PIL.

On notice being issued to the respondents, i.e. Union of India, the Civil Aviation Ministry, its authorities and the State authorities, returns are filed denying therein all the allegations made in the writ petition being totally baseless and without any material. The respondents have given reasons in support of their decision to shift the site from "Karsingsa/Banderdewa" to "Hollongi".

It is inter alia averred that the decision to shift the Airport site was taken after intense deliberation inter se all agencies involved in the decision making process and was therefore conceived in the best public interest and the stakeholders. It was, according to the respondents, based on full application of mind by all the competent authorities including experts, who, after examining all the pros and cons, approved the alternative site.

The respondents filed entire correspondence to show as to how and in what manner, the decision was taken to justify its reasonability, fairness and rationality. It was also contended that the petitioner - a single so-called aggrieved has no social background, he has come to the court with some oblique motive either for his benefit or for someone else. It was contended that no group of persons, social organization etc. have challenged the decision of shifting. It was also contended that the very fact that petitioner has not challenged the decision to set up an Airport is enough to dismiss the writ petition because the question as to whether Airport is to be constructed at "A" place or "B" place is not for any individual to decide and more so, who has no expertise in the subject, but it is for the experts in the field to decide. It is essentially on these grounds, the petition is opposed.

This court entertained the writ petition and passed various interim orders from time to time including the order directing all the parties to maintain "status quo" in relation to the site till further order.

This court, then, with a view to find out as to whether the decision to shift the Airport was just and in the interest of public at large, by order dated 30.8.2013, appointed a high power committee consisting of four members headed by a retired High Court Judge and three experts in the field to probe.

Following was the constitution of the committee:

(i) Justice A.C. Upadhyay (Retired) .... Chairman

(ii) Director of Civil Aviation .... Member

(iii) Joint Secretary, Home, North East .... Member

(iv) Joint Secretary, Rural Development (To be nominated by the Secretary) .... Member

However, by order dated 14.11.2013, the Court modified its earlier order dated 30.08.2013 and re-constituted the Committee''s constitution as under:

(i) Justice A.C. Upadhyay, Former Judge of Gauhati High Court .... Chairman

(ii) Director of Aerodrome .... Member

(iii) Sri Saranjit Singh, Director of Land Reforms, Government of India .... Member

(iv) Sri J.P. Singh, Director of North East and Home Affairs, Government of India .... Member

(v) Home Secretary, Government of Arunachal Pradesh .... Member

The committee was asked to visit two sites in question and then to submit the report within one month.

In compliance of this order, the members of the committee visited the two sites and submitted a detailed report running into 26 pages. It was concluded that the new site proposed for construction of Airport is just, proper and in the interest of public at large as compared to the earlier one.

It is apposite to reproduce the comparative analysis of the two sites made by the committee along with their findings and conclusion:

Keeping in view the aforesaid suitability parameters into consideration, a relative study of the proposed sites for development of the Greenfield Airport at Banderdewa and Holongi, is given hereunder:

PROPOSED GREENFIELD AIRPORT AT ITANAGAR

Site selection comparison Banderdewa site v. Holongi site

Similarly, the experts also examined the cost factor involved in the construction of the Airport on two sites as given by Ministry of Civil Aviation, which reads as under:

Cost comparison between Banderdewa and Holongi sites for the development of Greenfield Airport at Itanagar.

For Banderdewa the estimate was made for operation of A-321 whereas for Holongi in Phase-I it will be for A-321 and in Phase-II for B-767 type of aircrafts. Accordingly, in Holongi the land acquisition and river diversion is considering the ultimate development i.e. for B-767 type aircraft operation. For comparison of estimate the operations at both the sites have to be brought to almost the same bench mark. Accordingly, the cost of certain parameters which are required for the ultimate development in the case of Holongi has been segregated and shown as cost related to Phase-II. The cost of Banderdewa which was made in March, 2010 has been brought to the level of Dec 2012 by adding 10% escalation per year.

CONCLUSION

On careful evaluation of all the factors and issues for establishment of the Airport in two locations noted above, it becomes obvious that the change in the location for establishment of the Airport from Banderdewa to Holongi is technically and scientifically justified.

All the members of the committee individually and collectively subscribed to the view that the site for construction of Greenfield Airport at Holongi would be more appropriate, suitable and convenient in terms of topography, environmental impact, constructability, airport operations and on safety point of view.

It is with this background and the findings of the expert committee''s report, the question arises for consideration is as to whether the decision to shift the airport to a new site is proper or arbitrary.

Before we come to the facts of the case in hand, it is necessary to take note of the law laid down by the Supreme Court on such issue. In somewhat similar circumstances, the question arose before the Supreme Court in the case reported in (2002) 10 SCC 226 as to whether the decision to shift the headquarters of South Western Railway to Hubli instead of being at Bangalore is justified or not? The High Court of Karnataka in PIL had held that such decision was bad in law and therefore it was quashed. The Railways (Union of India) felt aggrieved and challenged the decision of the Karnataka High Court in Supreme Court. Their Lordships allowed the appeal and while setting aside the order of the High Court, dismissed the PIL and laid down the following principal of law by placing reliance on its earlier decision rendered in Delhi Science Forum and others Vs. Union of India and another, as under:

We do not find any basis for the High Court coming to the conclusion that the decision of the Union Cabinet was vitiated on account of legal mala fides. Merely because an administrative decision has been taken to locate the headquarters at Bangalore, which decision is subsequently altered by the same authority, namely, the Union Cabinet, cannot lead one to the conclusion that there has been legal mala fides. Why the headquarters should be at Hubli and not at Bangalore, is not for the court to decide. There are various factors which have to be taken into consideration when a decision like this has to be arrived at. Assuming that the decision so taken is a political one, it cannot possibly give rise to a challenge on the ground of legal mala fides. A political decision, if taken by a competent authority in accordance with law, cannot per se be regarded as mala fide. In any case, there is nothing on the record to show that the present decision was motivated by political consideration. The observation of the High Court that there has been a change in the decision because there was a change of the Governments and a different political party had come into power, is not supported by any basis. That the court will not interfere in questions of policy decision is clearly brought out by the following passage from a decision of this Court in Delhi Science Forum and others Vs. Union of India and another, when at p. 413, it was observed as follows:

What has been said in respect of legislations is applicable even in respect of policies which have been adopted by Parliament. They cannot be tested in court of law. The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies. Privatisation is a fundamental concept underlying the questions about the power to make economic decisions. What should be the role of the State in the economic development of the nation? How the resources of the country shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding privatisation is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations--because these issues rest with the policy-makers for the nation. No direction can be given or is expected from the courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision. The new Telecom policy was placed before Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether the said policy should have been adopted. Of course, whether there is any legal or constitutional bar in adopting such policy can certainly be examined by the Court.

We further find that the High Court has issued a direction to the appellants herein to locate the zonal office of the Railways at Bangalore. Apart from the fact that in matters of policy the court will not interfere, such a direction could under no circumstances have been issued. If a case had been made out, and in this case no such case had been made out, that a decision to locate at Hubli was not in accordance with law, then the only direction which could have been issued by the court was to consider as to where the headquarters should be located. It is not the function of the court to decide the location or the sites of the headquarters, it is the function of the Government. On this ground also, the decision of the High Court is incorrect.

For the aforesaid reasons, these appeals are allowed and the impugned judgment of the High Court is set aside, the result of which would be that the writ petition filed by the respondents would stand dismissed.

When we apply the aforesaid law to the facts of the present case in hand, we find no merit in the challenge laid by the petitioner to the decision of the State in shifting of the construction of Airport on the new alternative site at Holongi.

In the first place, we cannot sit as an appellate court over the findings of the expert committee and find fault therein. Secondly: the petitioner was not able to point out any prima facie error in the expert committee''s report. Thirdly: no documents were filed by the petitioner to show any apparent error therein. In other words, the petitioner, could have filed another report to point out any error. He did not do so. Fourthly and apart from the three reasons, mere perusal of the report would go to show that the committee examined all relevant issues as to why the site now proposed is better than the earlier one. The committee, which consisted of experts from the Civil Aviation Ministry, was conscious of the work assigned. Fifthly: it seems clear by reading the report that new site in all respect, i.e. safety, convenience and cost factor is better than the previous one. Sixthly: merely because one site had been selected initially, would not mean that the State can never change its earlier decision when better option is available and when it is approved by a committee of experts. Seventhly: it being purely an administrative decision as held in the case of Union of India (supra), unless it involved some legal malafides or arbitrariness in the decision making, it is beyond challenge. Such was the case here because the petitioner was not able to point out any error in the decision making. Eighthly: since the petitioner did not challenge the main decision to set up the Airport but confined its challenge to its shifting from one place to another, it is not necessary for us to go into the basic question, namely, whether State was justified in taking a decision to set up an Airport or not. Even otherwise, such decision was beyond challenge because it is the need of the hour for every State to have its own Airport for the convenience of the public at large and lastly: we find that the facts in hand are similar in nature to the case of Union of India (supra).

In view of foregoing discussion, we hold that the decision to shift the setting up of the Airport at Hollongi deserves to be upheld.

The learned counsel for the petitioner however argued that the decision to shift the airport was taken to extend undue benefit to few persons in power. He contended that due to change in site, few individuals in power are likely to be benefited in terms of money because now State will have to pay money to them by way of compensation. In other words, the submission was that the decision to shift was more for the benefit of few persons in power rather than for the benefit of public.

In the first place, the petitioner did not place any factual details and evidence on this issue. Secondly, he did not implead any such persons in the petition. In the absence of material pleadings and necessary parties, it is not possible for this court to make any factual inquiry on this issue, which is based on legal and factual malice. It is apart from the fact that no such comments was made by the committee in their report.

Be that as it may, we consider it apposite to direct that it shall be the duty of the State to ensure that all factual inquiries as is necessary under the provision of the Land Acquisition Laws and other related State laws in relation to the land in question at Hollongi be undertaken strictly in accordance with law and after verifying and making inquiries necessary, proceed with the construction of Airport on the new/alternative land selected.

It is with these directions, the petition stands accordingly disposed of. No cost.