P. Mohammedkutty vs Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 14[TH] DAY OF SEPTEMBER 2022 / 23RD BHADRA,** ## **1944** ## **WP(C) NO. 21957 OF 2020** ## **PETITIONER/S:** P.MOHAMMEDKUTTY AGED 52 YEARS S/O MOIDUNNY,PROPRIETOR M/S TRADITION,CHITTAYIL HOUSE,ANTANTHODE.P.O, THRISSUR DIST.,KERALA,PIN-679564. BY ADVS. P.A.AUGUSTIAN SRI.M.A.BABY ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO MINISTRY OF CIVIL AVIATION,A WING,I-III FLOOR,JANPATH BHAVAN, NEW DELHI-110001. 2 THE DIRECTOR GENERAL, BURAAU OF CIVIL AVIATION SECURITY, JANPATH BHAVAN,JANPATH,NEW DELHI-110001. 3 THE REGIONAL DIRECTOR, BUREAU OF CIVIL AVIATION SECURITY, THIRUVANANTHAPURAM DOMESTIC AIRPORT, THIRUVANANTHAPURAM,KERALA,PIN-695008. BY ADV SRI.K.R.RAJKUMAR ## **OTHER PRESENT:** ASGI S. MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.8.2022, THE COURT ON 14.9.2022 DELIVERED THE FOLLOWING: W.P.(C) No.21957 of 2020 -2- ## **JUDGMENT** Dated this the 14[th] day of September, 2022 The petitioner claims to be carrying out business in spices, garments etc within the premises of the Cochin International Airport Ltd (CIAL), Nedumbassery since 1999. In the year 2015, the petitioner was allotted a shop in the Security Hold Area (SHA) of Cochin International Airport. The allotment was made on the strength of Ext.P1 Police Clearance Certificate and Ext.P2 Concessionaires Permission granted by the Bureau of Civil Aviation Security (BCAS). Later, in the year 2018, the petitioner was awarded licence for setting up two retail outlets in the Security Hold Area, for conducting business in spices and ladies fashion apparel in the name of his proprietary concern; 'M/s.Tradition'. The petitioner was also provisionally allotted space ## W.P.(C) No.21957 of 2020 -3- for conducting an apparels outlet in the departure/check-in-area of the Airport. The allotments were valid for four years and the petitioner paid the security amount equivalent to ten months licence fees to the CIAL. 2. While so, the Ministry of Home Affairs introduced the Online Portal (e-sahaj) with the objective of making the security clearance process at Airports standardised, faster, transparent and easy to monitor. The petitioner was also required to apply through the e-sahaj portal for obtaining security clearance. Accordingly, the petitioner submitted Ext.P5 application on 07.07.2018. To the petitioner's dismay, he was served with Ext.P8 communication informing that the security clearance of M/s.Tradition has been rejected. Consequent to the rejection vide Ext.P8, the petitioner was served with Ext.P9 letter by the CIAL, requiring him to surrender all Airport Entry Permits issued W.P.(C) No.21957 of 2020 -4- to his organisation with immediate effect. The operation of petitioner's outlet was also suspended for want of security clearance. 3. Aggrieved by Ext.P8, the petitioner preferred Ext.P10 representation and thereafter approached this Court in W.P.(C) No.10826 of 2020. That writ petition was disposed of by Ext.P12 judgment, treating Ext.P10 to be an appeal filed under Rule 4 of the Aircraft (Security) Rules, 2011 and directing the competent authority to dispose of the appeal within 60 days. In compliance of the direction, the appeal was considered by the Secretary, Ministry of Civil Aviation and rejected under Ext.P13 order, finding that an adverse report was received from the Central Security Agency against the petitioner's establishment based on which BCAS had conveyed denial of security clearance to M/s.Tradition. Aggrieved, this writ petition is filed seeking the following reliefs; W.P.(C) No.21957 of 2020 -5- _“I. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction to call for the records leading to Ext.P13 and P8 and set aside the same;_ _II. Issue a writ of mandamus or any other appropriate writ, direction or order, directing the second respondent to issue necessary security clearance for carrying out business under M/s.Cochin International Airport Limited, Nedumbassery.”_ 4. Adv.P.A.Augustian, learned Counsel for the petitioner, contended that Exts.P8 and P13 are _ex facie_ illegal, for non-application of mind and absence of reasons. It is contended that the illegal order militates against the petitioner's fundamental right to do business guaranteed under Article 19(1)(g) of the Constitution of India. All that is stated in Ext.P8 is that security clearance of M/s.Tradition is regretted. Even in Ext.P13, the appellate order, the reason for rejection is stated in the following cryptic manner; _“It was apprised that adverse report was_ W.P.(C) No.21957 of 2020 -6- _received from Central Security Agency against the entity. Accordingly, BCAS conveyed denial of security clearance to M/s.Tradition vide its letter dated 13.08.2019.”_ 5. Learned Counsel contended that the appeal was rejected solely based on the confidential report submitted by the Central Security Agency, a copy of which was never communicated to the petitioner or the petitioner apprised of the observations therein. Reliance is placed on Ext.P11 Police Clearance Certificate dated 17.10.2019 and Exts.P14 to P29 documents to contend that the petitioner has got a clean police record and is also a prompt tax payer. Finally it is argued that denial of security clearance without any valid reason amounts to discrimination and arbitrary exercise of power. 6. During the course of hearing, this Court passed an order on 05.07.2022, requiring the respondents to file an additional affidavit to substantiate their stand that security clearance W.P.(C) No.21957 of 2020 -7- was declined due to security concerns. In purported compliance of the direction, respondents filed the additional counter affidavit, the relevant portion of which reads as under; _“7. The Petitioner had applied for security clearance through e-sahaj portal vide e-sahaj application no. 20187724782 dated 07.07.2018. But the security clearance was denied by BCAS HQ on the basis of the adverse report received from Intelligence Bureau (IB) which was produced once before the Court. Bureau of Civil Aviation Security (BCAS) can only act accordingly to the report submitted by the Intelligence Bureau. This answering respondent had to cancel the security clearance issued by RD Chennai._ _8. The appeal under rule 4 of Aircraft (Security) Rule, 2011 of the Petitioner to the appellant authority, Secretary MoCA dated 10-022020 was also dismissed on the ground that security clearance denied by BCAS to M/s Tradition based on the adverse report received from Intelligence Bureau (IB).”_ 7. Adv.K.R.Rajkumar, learned Central Government Counsel appearing for the respondents ## W.P.(C) No.21957 of 2020 -8- submitted that Airports are high security areas and Airport Entry Permits are issued under Rule 90 of the Aircraft Rules 1937 and Rule 18 of Aircraft (Security) Rules, 2011. The Home Ministry is the nodal authority for granting security clearance in sensitive sectors, before licence, permit etc is issued to companies, bidders and individuals. The objective is to evaluate potential security threats, visible or embedded, including economic threats and to provide risk assessment before clearing investments and project proposals in key sectors. It is submitted that the report of the Central Security Agency was once produced before this Court and if necessary, can be produced again. It is contended that in the wake of the adverse report from the Central Security Agency, there is no scope for interference under Article 226. 8. The petitioner's contention that the reason for refusing security clearance for his W.P.(C) No.21957 of 2020 -9- concern is not forthcoming from Exts.P8 and P13 is indisputable. It is irrefragable that, recording of reasons is considered to be the soul of justice and every order, be it passed in exercise of the power which may be judicial, administrative or quasi-judicial must contain reasons in support thereof. Summarising the law with regard to recording of reasons, in _**Kranti**_ ## _**Associates (P) Ltd. v Masood Ahmed Khan [(2010) 9**_ _**SCC 496.]**_ , the Hon'ble Supreme Court laid down the following principles; _“(a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well._ _(b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power._ _(c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations._ W.P.(C) No.21957 of 2020 -10- _(d) Reasons have virtually become as indispensable a component of a decisionmaking process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies._ _(e) The ongoing judicial trend in all countries committed to the rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice._ _(f) Judicial or even quasi-judicial opinions these days can be as different as the Judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice-delivery system._ _(g) Insistence on reason is a requirement for both judicial accountability and transparency._ _(h) If a Judge or a quasi-judicial authority is not candid enough about his/her decisionmaking process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of_ W.P.(C) No.21957 of 2020 -11- _incrementalism._ _(i) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process._ _(j) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decisionmaking not only makes the Judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 HLR 731])_ _(k) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1995) 19 EHRR 553.], EHRR at 562, para 29 and Anya v. University of Oxford [2001 EWCA Civ 405.] , wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions.”_ 9. The respondents are taking shelter under ## W.P.(C) No.21957 of 2020 -12- the garb of national interest for refusing to divulge the reason for rejecting the petitioner's application for security clearance. No doubt, when national interest is involved, the authorities will be justified in withholding information. As far as the instant case is concerned, the petitioner has been conducing business in the Airport premises from 1999 onwards and has been issued with Police Clearance Certificate and Concessionaires Permission, based on which he was allotted shop rooms and has remitted the requisite amount and invested funds for commencing the business. The question therefore is whether in such circumstances, the petitioner can be denied security clearance without assigning any reason. The answer to the question is available from the judgment of the Apex Court in _**Manoharlal Sharma v. Union of India**_ _**[2021 SCC OnLine SC 985]**_ , the relevant portion of W.P.(C) No.21957 of 2020 -13- ## which is extracted hereunder; _“51. It is on the strength of the above exception carved out that the Respondent Union of India has justified its nonsubmission of a detailed counter affidavit, viz., by citing security concerns. It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review. 52. Of course, the Respondent-Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern statutory immunity but they must also prove and justify the same in Court on affidavit. The Respondent-Union of India_ -14- ## W.P.(C) No.21957 of 2020 _must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator.”_ 10. It is also pertinent to note that, in spite of being called upon to file an additional affidavit in the light of the above observations of the Apex Court, other than an omnibus statement that security clearance was denied on the basis of an adverse report received from Intelligence Bureau, absolutely no reason is stated even in the additional affidavit. Although the learned CGC volunteered to produce the report in a sealed cover, I am not inclined to accept and act upon such a report, since the essential requirement is of the affected party being put on notice regarding the reason for denial of security clearance. Moreover, the Apex Court has W.P.(C) No.21957 of 2020 -15- deprecated the practice of courts acting upon reports produced in sealed covers. For the aforementioned reasons compels me to interfere with Exts.P8 and P13 orders are liable to be set aside. In the result, the writ petition is allowed. Exts.P8 and P13 are set aside. The respondents are directed to consider Ext.P5 application submitted by the petitioner afresh and to pass a reasoned order thereon, within one month of receipt of a copy of this judgment. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.21957 of 2020 -16- ## **APPENDIX OF WP(C) 21957/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COP OF THE POLICE CLEARANCE| |---|---| ||CERTIFICATE NO.143/CAMP/PCC/2015-R| ||DATED 25.02.2015| |EXHIBIT P2|TRUE COPY OF THE PERMISSION| ||NO.C/DCS/CONCESSIONARIES/15| ||(PERMISSION)(TRADITION)/1879 DATED| ||23.06.2015.| |EXHIBIT P3|TRUE COPY OF THE LETTERS| ||NO.CIAL/COML/LIC 63/14934(D) AND| ||NO.CIAL/COML/LIC 63/14934(O)BOTH| |EXHIBIT P4|TRUE COPY OF LETTER NO.CIAL/COML/LIC| ||673/15853 DATED 27.11.2018| |EXHIBIT P5|TRUE COPY OF THE E-SAHAJ APPLICATION| ||NO.20187724782 DATED 07.07.2018| |EXHIBIT P6|TRUE COPY OF THE LETTER OF CIAL DATED| ||26.07.2018| |EXHIBIT P7|TRUE COPY OF THE AGREEMENTS| ||AGREEMENT/CIAL/COML/T1/SHA/2018 DATED| ||26.03.2019| |EXHIBIT P8|TRUE COPY OF THE ORDER OF THE SECOND| ||RESPONDENT DATED 13.08.2019| |EXHIBIT P9|TRUE COPY OF THE LETTER OF CIAL DATED| ||19.09.2019| |EXHIBIT P10|TRUE COPY OF THE REPRESENTATION DATED| ||09.10.2019| |EXHIBIT P11|TRUE COPY OF THE POLICE CLEARANCE| ||CERTIFICATE DATED 17.10.2019| |EXHIBIT P12|TRUE COPY OF THE JUDGMENT IN| ||W.P(C)NO.10826/2020 DATED 09.07.2020.| |EXHIBIT P13|TRUE COPY OF THE ORDER-IN-APPEAL DATED| ||28.08.2020.|