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1988 DIGILAW 520 (KER)

ZOHARA A. SAID v. INDIAN AIRLINES CORPORATION

1988-11-01

K.SREEDHARAN

body1988
JUDGMENT K. Sreedharan, J. - Petitioner is the proprietrix of International Trade Links carrying on business in export of goods. The petitioner's concern is stated to have obtained confirmed orders from Male for export of fresh vegetables, meat items and eggs. In order to have the goods airlifted to Male, she approached the Indian Airlines for getting space for accommodating 800 Kilograms, allotted. That request was not conceded by the respondents. The petitioner was directed to keep goods ready and to send it by their flights depending on the availability of space in the aircraft. The petitioner challenges the above stand taken by the respondents. According to her, the 2nd respondent is allotting space in the aircraft. The petitioner challenges the above stand taken by the respondents. According to her, the 2nd respondent is allotting space to M/s. (i) S.J. Sales Corporation, (ii) Sunbeam Industries, (iii) pan Novowles and (iv) Abad Foods in the Sights to Male and that they are being allotted an area for about 2,000 kgs. It is the petitioner's case that the respondents being a Public Sector concern has got a duty to allot space available in its flights in an equitable manner to the claimants and that it cannot be give undue preference to a few exporters while denying such facility to others. As a consequence of the refusal on the part of the 2nd respondent to allot space, it is alleged that the petitioner is facing cancellation of the contracts entered into by her. The petitioner alleges that the refusal on the part of the 2nd respondent to allot any space to the petitioner in its flights from Trivandrum to Male is arbitrary, discriminatory and violative of Article 14 of the Constitution. A detailed counter-affidavit has been filed on behalf of the first respondent by its Manager, Personnel Services of the Indian Airlines Corporation. The petitioner alleges that the refusal on the part of the 2nd respondent to allot any space to the petitioner in its flights from Trivandrum to Male is arbitrary, discriminatory and violative of Article 14 of the Constitution. A detailed counter-affidavit has been filed on behalf of the first respondent by its Manager, Personnel Services of the Indian Airlines Corporation. It is averred therein that there is no all cargo flight operating between Trivandrum and Male, that there is only a scheduled passenger service operating on all Mondays and Fridays and it has a capacity of 120 passengers, that if the flight is fully booked by passengers, that the available space for carrying cargo will be very little, that the services are being conducted on a commercial basis on business principles, that the cargo capacity can be ascertained only after the arrival of the air-craft depending on weather, temperature, volume of limitation, weight limitation and fuel upliftment determined by the pilot etc., that four parties, viz., M/s. Parvathy Taxtiles, Sunbeam Industries, S&J Corporation and Peirce Leslie India Limited were airlifting food products from Trivandrum to Male between 1977 and 1980, that at that time there were four flights, two of the Indian Airlines and two of the Maldive International Airways, that the Maldive International Airways withdrew their flights when the passenger traffic dwindled, that the space available for airlifting the cargo was consequently reduced, that the space allotted to the above mentioned four customers had to be reduced and that those parties were operating consistently using the cargo space and thereby contributing to the stability of the commercial aspect of the airlines. Trivandrum-Male service was started sometime in 1976. At that time the above mentioned four parties were allowed to carry whatever cargo they had in the space available in the craft. The available space was shared by the above said four parties and they were offering regular cargo in each flight. From September, 1984, the respondents could allot only 1,750 kgms. cargo space to M/s. S&J Sales Corporation, Parvathy Textiles and Sunbeam Industries. M/s. Peirce Leslie India Limited was given space for 500 kgs. They complained against this allotment. The respondents could not remedy their grievances. They were allowed to bring additional cargo as stand-by. From September, 1984, the respondents could allot only 1,750 kgms. cargo space to M/s. S&J Sales Corporation, Parvathy Textiles and Sunbeam Industries. M/s. Peirce Leslie India Limited was given space for 500 kgs. They complained against this allotment. The respondents could not remedy their grievances. They were allowed to bring additional cargo as stand-by. If additional space is available at the last moment, which will be known 40 to 50 minutes before the departure of the flight, the stand-by cargo will be allowed to Be taken. In so doing, all the parties are being given equal opportunities for airlifting their goods. According to the respondents, if the petitioner wants to airlift the cargo she can bring them as stand-by cargo and depending upon the availability of space they will be allotted space on a pro-rata basis. Regarding the petitioner's demand to have the space for 800 kgs. of cargo allotted in each flight, it is averred that the respondents are not in a position to meet the demand for want of space and the limited number of flights. On these basis, it is averred that the petitioner cannot have any specified space allotted to her for airlifting the cargo. The respondents are operating passenger flights between Trivandrum and Male. The flights are on all Mondays and Fridays. The passenger capacity of the aircraft is 120. If the flight is fully booked with passengers, the space available for cargo will be less as it depends on the passengers and their bags. In such a situation only a limited space will be left for carrying the cargo. It is also common knowledge that the capacity of the aircraft will depend on weather, temperature, volume limitation, weight limitation and fuel upliftment determined by the pilot. It has come out in evidence that the flights between Trivandrum and Male were introduced sometime in 1976. At that time there were four flights, two by the respondents and two by the Maldive International Airways. The Moldive International Airways withdrew their flights. Now he entire need is met by the two flights conducted by the respondents. Right from the very start of the flights M/s. Parvathy Textiles, Sunbeam Industries, S&J Corporation and Peirce Leslie India Limited were airlifting food products from Trivandrum to Male. When the frequency of flights was reduced, the space available for airlifting the goods came down. Now he entire need is met by the two flights conducted by the respondents. Right from the very start of the flights M/s. Parvathy Textiles, Sunbeam Industries, S&J Corporation and Peirce Leslie India Limited were airlifting food products from Trivandrum to Male. When the frequency of flights was reduced, the space available for airlifting the goods came down. Consequently the space allotted to the above mentioned four firms had to be reduced. According to the respondents, those firms were operating consistently from the very start of the flights, using the available cargo space. Thus, they were contributing to the stability of the commercial aspect of the airlines. At the initial stage the above four firms shared between themselves the entire space available for cargo in the aircraft. They were also offering regular cargo in each flight. On account of the reduction in the frequency of flights and depending on the passenger traffic the cargo space allotted to them had also to be reduced. The petitioner wanted to have the space for airlifting 800 kgs. of cargo allotted in each flight. According to the respondents that prayer of the petitioner cannot be granted and she will have to bring the cargo to the air-port and the same would be airlifted along with the cargo brought by others, depending upon the availability of space in each flight on a pro-rata basis. According to the respondents, even if such a course is adopted there may be objections from the existing clients because the space available to them will be considerably reduced. Sri. K. A. Nayar, learned Counsel representing the respondents, made available to me the Register dealing with the Trivandrum-Male cargo load. That register covers the period from the 1st August, 1985. From the register, it is seen that four firms mentioned earlier were not being allotted any fixed space. Depending upon the availability of the space they were being allowed to airlift cargoes from 500 to 1000 kgs. Along with those four firms, others were also seen allowed to airlift cargo. The register further shows that the goods were off leaded on many occasions. Thus, it is clear that no firm was being given any fixed space for airlifting their cargo in the flights to Male. Along with those four firms, others were also seen allowed to airlift cargo. The register further shows that the goods were off leaded on many occasions. Thus, it is clear that no firm was being given any fixed space for airlifting their cargo in the flights to Male. Now the short question that arises for consideration is whether the petitioner can claim any specified space in all the flights operated by the respondents for airlifting the cargo ? If that request is denied, will it amount to violation of the principles contained in Article 14 of the Constitution ? The respondents have to operate the flights on business principles to the best interest of the Indian Airlines Corporation. The activities of the respondents are profit oriented. All their arrangements are to be made on a rational and equitable manner. No-one can be discriminated against either. The space available in the aircraft depends upon the number of passengers and many other technical matters. The actual space available for airlifting the cargo may be known only a few minutes before the departure of the flight. According to the respondents, if the petitioner takes the cargo to the airport as stand-by cargo, it will be allowed to be airlifted depending on the availability of the space. The petitioner's case, it is admitted in the counter-affidavit, will also be considered on a pro-rata basis. Thus, the petitioner is not completely prevented from airlifting her cargo. The only hitch is that she cannot be assured of any specified space in each flight. In the case of commercial/business activities, are the respondents duty bound to comply with the principles of Article 14 of the Constitution 7 Are they duty bound to allot equal space to all the business concerns who seek space in the aircraft for airlifting their cargoes ? The answer appears to be in the negative. While dealing with the Constitutional validity of the special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981, and Special Bearer Bonds (Immunities and Exemptions) Act, 1981, a Constitution Bench of the Supreme Court in the decision in R. K. Garg v. Union of India and others (AIR 1981 S.C. 2138) observed that the laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. According to their Lordships there may be crudities and inequities in complicated experimental economic legislation, but on that account alone it cannot be struck down as invalid. There may even be possibilities of abuse of power. But that possibility cannot be a ground for invalidating the legislation. Their Lordships in State of Madhya Pradesh and others v. Nandlal Jaiswal and others ((1986) 4 S.C.C. 566), have stated that the observations made in the earlier decision will apply equally to the executive actions in the field of economic activities as well. The courts are not to forget the intricacies involved in commercial activities. The decision on such matters is based on experimentation or what is called "trial and error method". The validity of the decisions taken in economic matters cannot be tested on rigid "a priori" considerations. While adjudicating the constitutional validity of an executive decision relating to the economic matters more laxity is to be shown. The courts must grant certain measure of freedom of the Executive. The Executive decision relating to economic matters are not to be tested on the strict principles of reasonable classification under Article 14 of the Constitution either. The courts can interfere with such executive decisions only if they are shown to be patently arbitrary, discriminatory or mala fide. From the register dealing with the Trivandrum-Male cargo load, placed before me, it is not possible to come to a conclusion that any customer was being allotted any specific cargo space in the flights to Male. The customers who want to airlift their cargo can take it to the air-port and depending on the space available in the air-craft can get it air-lifted on a pro-rata basis. In the above circumstance it cannot be said that any discrimination was shown to the petitioner. The learned Counsel appearing for the petitioner brought to my notice the decisions in Mohan Industries v. Deputy Director of Industries & Commerce (1972 L.T. 766) and Sundaresan v. Director General (1984 K.L.T. S.N. 60, Case (No. 102)) to contend that the action of the respondents is not allotting a fixed space in the air-craft, as arbitrary and mala fide. In the first decision the manufactures of candles challenged the arbitrary nature of the restriction imposed on the dealers from selling paraffin Wax to any person, except to those who have an order of allotment from competent authority. In the first decision the manufactures of candles challenged the arbitrary nature of the restriction imposed on the dealers from selling paraffin Wax to any person, except to those who have an order of allotment from competent authority. The power of the competent authority was almost absolute and arbitrary. In such a situation, this court struck down clause 5 of the paraffin Control Order, 1972, as unconstitutional because it interfered with the freedom of the petitioners to carry on the business as manufacturers of candles. In the Second decision this court interfered with the order of the Director General interfering with the right of the petitioner therein to have his taxi car parked in the parking place at the aerodrome. These decisions, according to me, have no application to the facts of this case. In the instant case, the petitioner's right to airlift cargo to Male is not at all interfered with. Depending on the space available she is afforded the right to airlift the cargo provided she takes it to the airport as stand-by cargo. The respondents' inability to allot any specific space to the petitioner in all flights, has not gone to effect the petitioner's right to carry on the business. Viewed in this manner, I do not find any vice in the action taken by the respondents warranting interference by this court under Article 226 of the constitution. In view of what has been stated above, I find no merit in this Original Petition. It is accordingly dismissed.