Delhi HC disposes of plea against FIPB approval to Air Asia

New Delhi [India], March 15 (ANI): The Delhi High Court on Wednesday disposed of a public interest litigation (PIL) moved by BJP leader Dr Subramanian Swamy after noting his submission that there is no foreign investment in Air Asia airlines as of today.

Swamy in 2013 challenged the Foreign Investment Promotion Board’s (FIPB) approval of the airline. The Division bench headed by Chief Justice Satish Chandra Sharma disposed of the PIL on Monday after noting the statement of the petitioner Subramanian Swamy.

“In view of the fact that there is no foreign investment as of today, the prayers made in the writ petition have become purely academic,” the bench observed.

The Petitioner, who appears in person, has stated that he is no longer interested in pursuing the writ petition, the bench noted.

“In view of the statement made by the Petitioner appearing in person, the writ petition stands disposed of, the high court said in the judgement passed on March 13.

The petitioner had challenged the decision of April 3, 2013, passed by the Ministry of Finance, Department of Economic Affairs, Government of India approving M/s Air Asia Investment Ltd. (a Malaysian Company) to incorporate a new Joint Venture Company with foreign equity of 49 per cent amounting to USD 15 MN (Rs 80,98,27,500 approx) and the balance 51 per cent equity share was to be held in the ratio of 30 per cent by M/s Tata Sons Ltd. and 21 per cent by M/s Telestra Trade Pvt. Ltd.

Dr Swamy appeared in person and the respondents were the Central Government Standing Counsel and a team of lawyers from the Karanjawala and Co.

Earlier, it was the contention of the Petitioner that the said decision is contrary to the Foreign Direct Investment Policy (FDI) Policy of the Government of India and also contrary to the guidelines laid down by the nodal ministry which is the Ministry of Civil Aviation.

It does not permit foreign investment by a foreign airline and is also in the teeth of the objections by the Nodal Ministry.

Later on, it was stated that pursuant to the filing of the instant writ petition, there have been substantial changes in the shareholding of Air Asia (India) Pvt. Ltd.

Material on record discloses that Air Asia (India) Pvt. Ltd. was incorporated as a Joint Venture between Tata Sons Ltd. and Air Asia Investment Ltd. with Tata Sons Ltd. having 50 per cent shareholding of Air Asia (India) Pvt. Ltd. and apart from Tata Sons Ltd., the other shareholder Telestra Tradeplace Pvt. Ltd. holds remaining 50 per cent shareholding of Air Asia (India) Pvt. Ltd., the High Court noted in the judgement.

It was further stated that on March 31, 2014, the shareholding of Air Asia (India) Pvt. Ltd. was revised, whereafter Air Asia Investment Ltd. owned 49 per cent of the shares, Telestra Tradeplace Pvt. Ltd. owned 21 per cent of the shares and Tata Sons Ltd. owned 30per cent of the shares.

It was also stated that as a consequence of the disinvestment of shareholding of Telestra Tradeplace Pvt. Ltd., the shareholding of Air Asia Investment Ltd. was further revised and Tata Sons Ltd. held 49 per cent and Air Asia Investment Ltd. held 49 per cent; two individuals, namely, R Venkatraman and S. Ramadorai held 1.50 per cent and 0.50 per cent respectively.

It was stated that in March 2019, the shareholding of Air Asia Pvt. Ltd. was further revised with Tata Sons Ltd. obtaining 51 per cent and Air Asia Investment Ltd. holding 49 per cent. The shareholding structure of Air Asia (India) Pvt. Ltd. was again revised in December 2020, as a result of which Tata Sons Ltd. held 83.67 per cent and Air Asia Investment Ltd. held 16.33 per cent.

It was also stated that pursuant to the regulatory approvals of the Competition Commission of India (CCI) on June 14, 2022, and the Directorate General of Civil Aviation (DGCA) approval of July 6, 2022, the shareholding of Air Asia (India) Pvt. Ltd. was revised and Air Asia (India) Pvt. Ltd. became a wholly owned subsidiary of Air India Ltd.
It was further stated that the name of Air Asia (India) Pvt. Ltd. was changed to AIX Connect Pvt. Ltd. It was also stated that on 12.08.2020, Talace Pvt. Ltd. was incorporated as a 100% wholly owned subsidiary of Tata Sons Pvt. Ltd. which holds 100 per cent shares of Air India Ltd.

The writ petition prayed for a direction to set aside and revoke the decision allowing the FDI Proposal in favour of the Airline.

A direction to set aside and revoke any action or decision or grant of any further approvals/permissions/ NOC/ permits, etc. by the Respondent authorities, based upon, relying upon or in furtherance of the Impugned Decision dated 03.04.2013 was also sought.

Dr Swamy had also sought a direction to prohibit the respondent authorities from taking any action contrary to the applicable FDI policy and DGCA Guidelines of 01.03.2013 or from granting any approval for foreign investment by foreign airlines in a greenfield airline project.

It also sought to issue a direction to the Central Bureau of Investigation to investigate the role and functioning of the Respondents Union of India and FIPB leading to the Impugned Decision in contravention of executive policy of the Government of India, and report exclusively to this Hon’ble Court.

The writ petition was accompanied by an application for stay restraining Respondent Union of India, Foreign Investment Promotion Board, Ministry of Civil Aviation and Ministry of Commerce & Industry from taking any action or decision or granting any further approvals/ permission/ NOC/ permits etc. contrary to the FDI Policy.

The stay application was rejected by the High court on February 11, 2014. The Order was challenged by the Petitioner which was dismissed by the Apex Court on 21.04.2014.