W.P.(C) Nos. 31862/2022 & others; 32504/2022; 32508/2022

W.P.(C)Nos. 27504/2022 & others 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WP(C) NO. 32504 OF 2022** ## **PETITIONER/S:** MANHA VADAKKAN (MINOR) AGED 40 YEARS REPRESENTED HER FATHER SHAMEER VADAKKAN, R/AT VATTAKANDTHIL HOUSE, PATHAPPIRIYAM P.O., MALAPPURAM. BY ADVS. KODOTH SREEDHARAN ABDUL JALEEL.U.K CHACKOCHEN VITHAYATHIL ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF CIVIL AVIATION, NEW DELHI - 110 001. 2 AIR INDIA EXPRESS LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATE OFFICE, AIR INDIA EXPRESS LTD., DH ROAD, ERNAKULAM, KOCHI - 682 016. 3 AIR INDIA ASSETS HOLDING REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, INDIA AIRLINES BUILDING, 113, GURUDWARA RAKABGANI ROAD, NEW DELHI - 110 001. BY ADV K.K.Sethukumar ## **OTHER PRESENT:** 0 DSGI S. MANU; SR. ADV. JOSPEH KODIANTHARA FOR R2. ADV.ABRAHAM MARKOSE 2 W.P.(C)Nos. 31862/2022 & others THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).31862/2022, 32508/2022, THE COURT ON 20/10/2022 DELIVERED THE FOLLOWING: W.P.(C)Nos. 31862/2022 & others 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** **WP(C) NO. 31862 OF 2022** ## **PETITIONER/S:** NIKHIL.M AGED 27 YEARS S/O ASOKAN, R/AT MALAYIL HOUSE, PONMERI PARAMBIL.P.O., KOZHIKKODE - 673 542. BY ADVS. KODOTH SREEDHARAN K.P.MUHAMMAD ARIF ABDUL JALEEL.U.K CHACKOCHEN VITHAYATHIL ## **RESPONDENTS:** 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF CIVIL AVIATION, NEW DELHI - 110001. 2 AIR INDIA EXPRESS LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATE OFFICE, AIR INDIA EXPRESS LTD., DH ROAD, ERNAKULAM, KOCHI - 682016. 3 AIR INDIA ASSETS HOLDING, INDIA AIRLINES BUILDING, 113, GURUDWARA RAKABGANJ ROAD, NEW DELHI - 110001. BY ADV Premsankar R DSGI S. MANU; SR. ADV. JOSPEH KODIANTHARA FOR R2. ADV.ABRAHAM MARKOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).32504/2022 AND CONNECTED CASES, THE COURT ON 20/10/2022 DELIVERED THE FOLLOWING: W.P.(C)Nos. 31862/2022 & others 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WP(C) NO. 32508 OF 2022** ## **PETITIONER/S:** EMRIN MOHAMMED AGED 27 YEARS D/O.MOHAMMED RAJEESH, REPRESENTED BY HER MOTHER FATHIMA VADAKKAYIL, R/AT BAITHUL RAYAN, ENGALATH PADAM, RAMANTTUKARA P.O., KOZHIKKODE - 673 633. BY ADV KODOTH SREEDHARAN ## **RESPONDENT/S:** 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF CIVIL AVIATION, NEW DELHI - 110 001. 2 AIR INDIA EXPRESS LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, CORPORATE OFFICE, AIR INDIA EXPRESS LTD., DH ROAD, ERNAKULAM, KOCHI - 682 016. 3 AIR INDIA ASSETS HOLDING REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, INDIA AIRLINES BUILDING, 113, GURUDWARA RAKABGANJ ROAD, NEW DELHI - 110 001. DSGI S. MANU; SR. ADV. JOSPEH KODIANTHARA FOR R2. ADV.ABRAHAM MARKOSE **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH WP(C).32504/2022 AND CONNECTED CASES, THE COURT ON 20/10/2022 DELIVERED THE FOLLOWING:** W.P.(C)Nos. 31862/2022 & others 5 ## **V.G.ARUN J.** ------------------------------------- ## **W.P.(C) No. 31862,32504 & 32508 of 2022** **---------------------------------** Dated this the 20[th] day of October 2022 ## **JUDGMENT** The petitioners were passengers in the ill fated Air India Express Dubai - Kozhikodde Flight IX-1344, which crashed at the Karipur International Airport, Kozhikode, while landing on 7/8/2020. For the injuries suffered in the accident, petitioners claimed and received compensation from the second respondent. Thereupon, the petitioners executed discharge receipts, acknowledging receipt of compensation in full and final settlement of their claims. The petitioners' contention that the Carriage by the Air Act, 1972 envisages payment of two tier compensation for the dead and injured passengers. The first tier is the compensation of Rs. 1,00,000 /- SDR. now enhanced to Rs.1,28,821/SDR, under Rule 21 of Schedule III of the Carriage by Air Act. The first tier of compensation akin to no fault liability, and the same cannot be denied, despite acceptance of a small amount by the petitioners under compulsion, is the contention. The writ petitions are accordingly filed seeking the following reliefs; _“i). issue a declaration that the release and discharge as per_ W.P.(C)Nos. 31862/2022 & others 6 _Ext.P1 under the Carriage by Air Act 1972 to the extent objected to herein is null and void under rule 26 of schedule 3 of the said Act as held in 2009(1) SCC 267(National Insurance Co.Ltd. v. M/s.Bhogura Polyfab Pvt.Ltd.) para 49 and petitioners are entitled to interest and costs under rule 22(6) of schedule 3 of the Act for the compensation amount due to them._ _ii). Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents for payment to the petitioners as no fault liability of Rs.1,00,000/- SDR now enhanced to 1,28,281/- SDR ( Rs.1,34,96,576/-) under Rule 21 (1) and 22 (10 of the third schedule of the Act and cargo claim along with interest over and above the second tier liability also which is admitted and already paid as per Ext.P1 and also order payment of interest thereon._ _iii). Award costs as provided under rule 22 (6) of schedule 3 of the Carriage by Air Act 1972.”_ 2. When the writ petitions came up for admission, Adv.Joseph Kodianthara, learned Senior Counsel appearing for the second respondent/Air India Express Ltd. raised an objection as to the maintainability of the writ petitions. The objection is on the premise that liability to pay compensation being that of the carrier/second respondent, which is a private entity, no relief can be granted under Article 226. In the wake of the objection, learned Counsel for the W.P.(C)Nos. 31862/2022 & others 7 petitioners was requested to argue on maintainability. 3. Responding to the request, Adv.Kodoth Sreedharan, contended that till disinvestment of Air India Ltd., of which the second respondent is a subsidiary, was a fully owned Government Company. Even after disinvestment, the second respondent continue to be amenable to writ jurisdiction, since it is exercising public function. To buttress the argument, it is submitted that compensation for air accident victims is covered by various International Treaties and Conventions, like the Montreal Convention to which India is a a signatory. Being so, India is bound to abide by the decisions taken in the convention. In fact, the decisions taken at the Montreal Convention is the basis on which Carriage by Air Act was enacted. As per Rule 17 (1) of Schedule III of the Carriage by Air Act, the carrier shall is liable for damages sustained due to the death or bodily injury of a passenger. Rule 21(1) stipulates that for damages falling under Sub rule (1) of Rule 17, an amount not exceeding 1,00,000/- Special Drawing Rights (SDR) is to be paid . Therefore, acceptance of an amount much lesser than the amount stipulated in Rule 17 (1) by the passengers and even issuance of receipts in acknowledgment will not absolve the second respondent from complying with the statutory mandate of the Act. In support of this contention, learned counsel relied on the Apex Court decision in **National Insurance Co.Ltd. v. Bhoghara Polyfab (P) Ltd.** [ **2009** W.P.(C)Nos. 31862/2022 & others 8 ## **(1) SCC 267]** . 4. It is contended that, insofar as the second respondent is rendering a utility service, which is a public function, the second respondent is amenable to the jurisdiction of this court, irrespective of whether it falls within the ambit of 'State' under Article 12 or not. In support of the contention, learned counsel relied on the decisions in **Binny Ltd. And another v. V.Sadasivan and others [2005 (6) SCC 657], Saksena K.K. v. International Commission on Irrigation & Drainage and others [2015 (4) SCC 670], Jeeja Ghosh and another v. Union of India and others [2016 (7) SCC 761], Commissioner of service Tax v. M/s. Selvanganapathy and Co. [2018 (4) SCC 578] and Tirupati Balaji Developers (P) Ltd. v. State of Bihar ( 2004 5 SCC 1)** . 5. Replying to the contentions,senior Advocate Joseph Kodianthara advanced the following arguments ; 6. The second respondent is a wholly owned subsidiary of Air India Ltd.,which was a fully owned Government Company upto 27/1/2022. However, with effect from 27/1/2022, hundred percent of the shares of the Air India Ltd. and its subsidiary the second respondent was disinvested and transferred in favour of a private company named TALACE Private Ltd. Thus from 27/1/2022, the second respondent is private entity and no writ petition seeking mandamus can be issued W.P.(C)Nos. 31862/2022 & others 9 directing payment of compensation to the petitioners. 7. The Karnataka and Bombay High Courts have held even writ petitions pending prior to 27/1/2022, to be no longer maintainable in view of the disinvestment. In this regard, reference is made to the judgment of the Karnataka High Court in **MS Padmavathi Subramaniyan and Ors v. The Ministry of Civil Aviation and Ors. (W.P.(C) No. 21448/2021)** that of the Bombay High Court in W.P.(C) No.1770/2011 and connected cases. Relying on the judgment in W.P. (C) No.1350/2022 of our High Court, it is submitted that it has been categorically held that the second respondent being a private entity, resort to public law remedy in the nature of writ cannot be permitted . Even otherwise, the dispute involved being purely contractual in nature, this court should not intervene in exercise of the power of judicial review. The attempt through these writ petitions is to wriggle out of the settlement after having received the compensation. Being so, even common law remedy is not available to the petitioners. 8. As rightly contended by the learned Senior Counsel, after disinvestment and transfer of hundred percent shares, Air India Ltd. and its subsidiary, the Air India Express Ltd.ceased to be an authority falling within the ambit of 'State' under Article 12. It has been so held by a Learned Single Judge of this court in W.P.(C)No.1350/2022. The Karnataka and Bombay High Courts held even pending writ petitions to W.P.(C)Nos. 31862/2022 & others 10 be not maintainable after the disinvestment. Being apropos, the relevant portion of the judgment of the Bombay High court in **Mr.R.S.Madireddy v. Union of India [2022 SCC Online Bom 2657]** ## is extracted here under: _“_ _**68.** With its privatization, AIL has ceased to be an Article 12 authority. There is and can be no doubt that no writ or order or direction can be issued on these writ petitions against AIL for an alleged breach of a Fundamental Right. Conscious of the change in the factual as well as legal position arising out of privatization of AIL, Mr. Singhvi with the experience behind him changed the line of argument and introduced the concept of ‘public employment’ of the petitioners and contended that since the petitioners were employees of AIL, which at the material time was discharging public functions, the writ petitions ought to be heard particularly when the petitioners are not at fault for the time lapse._ _xx xx xx_ _**74.** The writ petitions, although maintainable on the dates they were instituted, have ceased to be maintainable by reason of privatization of AIL which takes it beyond our jurisdiction to issue a writ or order or direction to it. For the reasons discussed above, the writ petitions and the connected applications and chamber summons stand disposed of without granting any relief as claimed therein but with liberty to the petitioners to explore their remedy in accordance with law. No costs.”_ 9. In view of the above legal position, to which I am in respectful agreement, the question is whether the writ petitions can be held to be maintainable by holding that the second respondent is exercising a public function. In this regard, it will be profitable to the exposition of W.P.(C)Nos. 31862/2022 & others 11 ## the Apex Court in **Binny Ltd. And another** as to the meaning of the term 'Public function'; _“Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus:_ _"A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the_ W.P.(C)Nos. 31862/2022 & others 12 _public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides "public goods" or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including: rule-making, adjudication (and other forms of dispute resolution); inspection; and licensing._ _Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to "recognise the realities of executive power" and not allow "their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted". Nongovernmental bodies such as these are just as capable of abusing their powers as is government."_ Therefore, merely because an organization is carrying out certain functions, which are akin to our closely related Government functions, that is no reason to hold that the organization is discharging public function W.P.(C)Nos. 31862/2022 & others 13 ## 10. In K.K. **Saksena's case** the Supreme Court considered the meaning of the term 'private law' and held as under ; _“What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is “State” within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is “State” under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.”_ 11. Thus even if a person or authority is discharging a public function or public duty, the writ petition would be maintainable under Article 226 only on the court being satisfied that the action under challenge falls within the domain of public law as distinguish from private law. 12. In the case at hand, although learned Counsel for the petitioners waxed eloquent about the Geneva Convention and the mandate under the Carriage by Air Act, the reliefs sought are essentially W.P.(C)Nos. 31862/2022 & others 14 'private' in nature. Indisputably, the petitioners have received compensation from the second respondent and have issued receipts in acknowledgment. The contention now raised is that in spite of receipt of compensation, the petitioners are entitled to seek enforcement of the statutory mandate to pay the first tire of compensation, which is far more than what has been paid. The reliefs therefore have nothing to do with the so called public function of the second respondent and is not within the domain of public law remedy. Being so, no mandamus can be issued and the petitioners' remedy is to approach the proper legal forum. In the result, the writ petitions are held to be not maintainable and consequently dismissed. Sd/- **V.G.ARUN JUDGE** dpk W.P.(C)Nos. 31862/2022 & others 15 ## **APPENDIX OF WP(C) 31862/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REPORT FOR AN AMOUNT OF RS.50,11,610/- DATED 10.03.2021 W.P.(C)Nos. 31862/2022 & others 16 ## **APPENDIX OF WP(C) 32508/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER FOR AN AMOUNT OF RS.20,69,833/- DATED 18/03/2021. W.P.(C)Nos. 31862/2022 & others 17 ## **APPENDIX OF WP(C) 32504/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE DISCHARGE RECEIPT FOR AN AMOUNT OF RS.1,73,00,000/- DATED 16/07/2021.