Not mandatory to hear Celebi when responding to national security threat, Centre tells Delhi HC

“In the facts of the case, there is substantial compliance of principles of natural justice…compliance in full was not required…Rule 12 is directory not mandatory because there is no consequence of non compliance stipulated in the Rules…Rules do require (grant of opportunity of) hearing, because ground handling contracts can be cancelled on several grounds…on minor lapses…but in case of national calamity or national level security threat, they are directed…Even if the rule is treated to be mandatory it is substantially complied with in the facts and circumstances of the case,” Mehta told Justice Datta.

Submitting that the government can exercise plenary power of superintendence, Mehta said, “…only condition being, power can be exercised only for security of country and aviation security.”

“(We are) dealing with a very precarious sui generis situation where there is potential threat to country’s various airports due to certain prevailing circumstances …Here we are responding to the immediate threat…Considering the very subject matter, this power has to be given…because somebody can blast the entire aircraft, entire airport,” Mehta said, while referring to the Aircraft Act, 1934, Bharatiya Vayuyan Adhiniyam 2024 (which replaced the 1934 Act), and Aircraft Security Rules of 2011 and 2023.

Noting that the firm, as a ground handling service provider, has access to full passenger data, including VIP movements and their luggage, as well as direct access to aircraft – both passenger and cargo – Mehta further clarified that if such revocation is not by exercise of plenary powers, an opportunity of hearing is to be granted.

“If it is not a plenary power, under rule 12 (of Aircraft Security Rules, 2023), it does require that opportunity of hearing to be given and reasons to be recorded but the country sometimes faces situation which is so unprecedented that neither any hearing is possible because the delay itself may defeat the objective nor is it possible to give reasons for the action and therefore the plenary power comes into play,” Mehta reasoned.

Mehta also pointed out to one of the clauses in BCAS’s grant of security clearance to the firm on November 21, 2022 where it is stated that “Director General, BCAS reserves the right to revoke this security clearance at any time without assigning any reasons thereof, in the interest of national/civil aviation security”.

Mehta also submitted that a day before the revocation, the firm had sent a representation, which was considered while passing the order of revocation of security clearance on May 15.

The firm, in a communication to several authorities, including to Ministry of Civil Aviation, the BCAS as well as the Ministry of Home Affairs on May 14, had stated that while its ultimate parent holding company – Celebi Aviation Holding – is incorporated in Turkey, over 65 per cent of its ownership rests with international institutional investors, adding that in India, it is “very much a domestic operation”. It also stated that it has invested over $250 million in India and has been operating in India for the past 17 years.

Mehta also provided to the court in sealed cover the directions by the central government through the Ministry of Home Affairs to the aviation authorities.

A day ago, Celebi Airport Services India Private Limited had registered its protest of the procedure of sealed cover, with senior advocate Mukul Rohatgi, appearing for the firm, telling the court, “I protest this procedure of sealed cover by keeping the other person in the dark. The sealed cover procedure is frowned upon by the SC…I have been told to go home and I am fighting with my hands tied to the back.”