# 12 S.C.R. 326 MUMBAI INTERNATIONAL AIRPORT PVT. LTD v. MIS. GOLDEN CHARIOT AIRPORT AND ANR

- **Citation:** [2010] 12 S.C.R. 326
- **Court:** Supreme Court of India
- **Decided:** 2010-09-22
- **Case number:** Civil Appeal No. 8201 of 2010
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-326-mumbai-international-airport-pvt-ltd-v-mis-golden-chariot-airport-26377
- **Pages:** 32

## Headnote

Approbate and Reprobate: Shifting of stands - Licence
granted to run a restaurant for limited period - Notice issued
C for vacating the licenced premises after expiry of licenced
period - Suit for declaration and injunction by licencee on the
ground that the licence was irrevocable - Civil court returned
the plaint holding that it did not have pecuniary jurisdiction to
hear the case - In appeal, licencee dropped the prayer that
D licence was irrevocable - Suit revived and decreed on the
ground that terms of licence provided for applicability of the
provisions of Public Premises Act, 1971 - Proceedings before
Estate Officer - Estate Officer directing licencee to vacate the
premises - Licencee's plea before Supreme Court that the
E licence was irrevocable - Held: A litigant cannot change and
choose its stand to suit his convenience and prolong a civil
litigation on prevaricated pleas - The common law doctrine
prohibiting approbation and reprobation is a facet of the law
of estoppel - The licencee took a stand before High Court that
F the licence was revocable and got the benefit as a result of
taking such stand in as much as it got the suit revived and
tried and got the benefit of an interim order in the said
proceedings - As a result of the said stand, the suit went on
before the civil court from 2001 to 2004 and in view of the
G interim protection, licencee ran the restaurant during that
period - The licencee on a complete volte-face of its previous
stand cannot urge its case of irrevocable licence before the
Estate Officer and before the Supreme Court -
Even
otherwise, the licence by its very term was revocable - Since
H
326
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 327
CHARIOT AIRPORT
licencee took inconsistent stands, and thereby prolonged A
litigation for more than a decade and did not pursue its
proceedings honestly in different fora, therefore, its appeal is
dismissed with costs assessed at Rs. 5, 00, 0001- - Doctrine of
estoppe/ - Leave and licence - Plea - Costs.
Leave and licence: Licence - Revocable licence - Held:
8
Whether a contractual licence is revocable or not, depends
on the express terms of the contract - A contractual licence
is normally revocable, except in certain circumstances that
are expressly provided for in Easement Act, 1882 - On facts,
plea of licencee that it invested money in construction of C
restaurant on the oral assurance by the officers of Airport
Authority (AA/) about extension of licence so as to make it
irrevocable was of no legal consequence -
No such
assurance was proved, even if it is proved, such assurance
did not and would not bind the AA/ - Being a statutory D
corporation, AA/ was totally bound by the Act and the
Regulations framed under the Act - Plea of discrimination on
the ground that cases of other licencees were extended
whereas in the case of licencee, the licence was not extended,
not factually correct as its licence was also extended twice -
E
Airports Authority of India Act, 1994 - Airports Authority of
India (Amendment) Act, 2003 - Airports Authority of India
(Contract) Regulations 2003 - Regulation 3(2) - Constitution
of India, 1950 - Article 14 - Easement Act, 1882 - s.52.
Constitution of India, 1950: Article 14 -
Plea of
discrimination - Held: Can only be raised if a person has a
right in law, to be treated in a particular way, but that treatment
is denied to him, whereas others are given the same
treatment.
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971: s.3 - Power of Central Government
to appoint Estate Officer u!s.3 - Notification dated 1. 7.1997
published in the Official Gazette by Central Government for
F
G
H
328
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A appointment of several persons as Estate Officers for the
purpose of the 1971 Act - By a further notification dated
15.5.07, published in the Official Gazette, previous notification
amended and for the words 'Airport Director', the words
'Deputy General Manager (Land Management)' substituted

## Text

_Characters 0–39,511 of 61,345. This is a partial read: ask again with offset=39511 for what follows._

A
B
(2010] 12 S.C.R. 326
MUMBAI INTERNATIONAL AIRPORT PVT. LTD.
v.
MIS. GOLDEN CHARIOT AIRPORT AND ANR.
(Civil Appeal No. 8201 of 2010)
SEPTEMBER 22, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Approbate and Reprobate: Shifting of stands - Licence
granted to run a restaurant for limited period - Notice issued
C for vacating the licenced premises after expiry of licenced
period - Suit for declaration and injunction by licencee on the
ground that the licence was irrevocable - Civil court returned
the plaint holding that it did not have pecuniary jurisdiction to
hear the case - In appeal, licencee dropped the prayer that
D licence was irrevocable - Suit revived and decreed on the
ground that terms of licence provided for applicability of the
provisions of Public Premises Act, 1971 - Proceedings before
Estate Officer - Estate Officer directing licencee to vacate the
premises - Licencee's plea before Supreme Court that the
E licence was irrevocable - Held: A litigant cannot change and
choose its stand to suit his convenience and prolong a civil
litigation on prevaricated pleas - The common law doctrine
prohibiting approbation and reprobation is a facet of the law
of estoppel - The licencee took a stand before High Court that
F the licence was revocable and got the benefit as a result of
taking such stand in as much as it got the suit revived and
tried and got the benefit of an interim order in the said
proceedings - As a result of the said stand, the suit went on
before the civil court from 2001 to 2004 and in view of the
G interim protection, licencee ran the restaurant during that
period - The licencee on a complete volte-face of its previous
stand cannot urge its case of irrevocable licence before the
Estate Officer and before the Supreme Court -
Even
otherwise, the licence by its very term was revocable - Since
H
326
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 327
CHARIOT AIRPORT
licencee took inconsistent stands, and thereby prolonged A
litigation for more than a decade and did not pursue its
proceedings honestly in different fora, therefore, its appeal is
dismissed with costs assessed at Rs. 5, 00, 0001- - Doctrine of
estoppe/ - Leave and licence - Plea - Costs.
Leave and licence: Licence - Revocable licence - Held:
8
Whether a contractual licence is revocable or not, depends
on the express terms of the contract - A contractual licence
is normally revocable, except in certain circumstances that
are expressly provided for in Easement Act, 1882 - On facts,
plea of licencee that it invested money in construction of C
restaurant on the oral assurance by the officers of Airport
Authority (AA/) about extension of licence so as to make it
irrevocable was of no legal consequence -
No such
assurance was proved, even if it is proved, such assurance
did not and would not bind the AA/ - Being a statutory D
corporation, AA/ was totally bound by the Act and the
Regulations framed under the Act - Plea of discrimination on
the ground that cases of other licencees were extended
whereas in the case of licencee, the licence was not extended,
not factually correct as its licence was also extended twice -
E
Airports Authority of India Act, 1994 - Airports Authority of
India (Amendment) Act, 2003 - Airports Authority of India
(Contract) Regulations 2003 - Regulation 3(2) - Constitution
of India, 1950 - Article 14 - Easement Act, 1882 - s.52.
Constitution of India, 1950: Article 14 -
Plea of
discrimination - Held: Can only be raised if a person has a
right in law, to be treated in a particular way, but that treatment
is denied to him, whereas others are given the same
treatment.
Public Premises (Eviction of Unauthorised
Occupants) Act, 1971: s.3 - Power of Central Government
to appoint Estate Officer u!s.3 - Notification dated 1. 7.1997
published in the Official Gazette by Central Government for
F
G
H
328
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A appointment of several persons as Estate Officers for the
purpose of the 1971 Act - By a further notification dated
15.5.07, published in the Official Gazette, previous notification
amended and for the words 'Airport Director', the words
'Deputy General Manager (Land Management)' substituted
8 - Estate Officer who decided the case of the licencee was
promoted and brought to Mumbai as Deputy General
Manager (Land Management) - Therefore, by virtue of his
designation
as Deputy General Manager (Land
Management), he was a valid Estate Officer - Airports
C Authority of India Act, 1994.
The contesting respondent entered into a licence
agreement with the Airport Authority of India (AAI) for
running a restaurant covering 5000 sq. ft., in front of
Mumbai Airport. The licence was valid for a period of
D three years, from 27.11.1995 to 26.11.1998. The
provisions of Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and the rules framed thereunder
were made applicable to the licence agreement. After the
initial grant of the said licence, the same was, under
E request of the contesting respondent, extended upto
26.5.2000. On 4.5.2000, AAI sent notice to the contesting
respondent to vacate and hand over physical possession
of the licenced premises by 26.5.2000. On 15.5.2000, the
contesting respondent filed a suit praying for cancelling
F the notice dated 4.5.2000 and for permanent injunction
restraining AAI from evicting, demolishing or removing
the restaurant premises of contesting respondent without
adopting the due process of law. The contesting
respondent prayed in the suit that the AAI granted an
G irrevocable licence and, therefore, it has no right to
terminate, cancel or revoke the licence. The City Civil
Court returned the plaint under Order 7 rule 10, CPC, inter
alia, on the ground that it did not have the pecuniary
jurisdiction to hear the case in view of the declaration
H
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 329
CHARIOT AIRPORT
prayed for. Aggrieved by the said order, the contesting A
respondent filed an appeal before the High Court. When
the said appeal came up for hearing, it was represented
by the contesting respondent that they would drop the
prayer for the declaration that the licence was irrevocable.
On such stand taken by the contesting respondent, the B
High Court remanded the matter to the City Civil Court
granting liberty to the contesting respondent to move
proper application for amendment of the plaint. After the
remand, the City Civil Court decreed the suit holding that /
the terms of the licence showed that both the parties had C
agreed to submit themselves to the provisions of 1971
Act and, therefore, AAI was bound to follow the due
process of law for evicting the contesting respondent
from the suit premises in terms of 1971 Act. Thereafter,
the proceedings were initiated before the Estate Officer. D
The contesting respondent made repeated requests
to AAI for extension of licence. Further hearings before
the Estate Officer were conducted and on 12.01.05, after
completion of the hearing and closing of the summary
proceedings, the contesting respondent addressed a E
letter contending that the hearing of the matter be.
deferred until AAI communicated its decision on its
request for the extension of the licence. On 18.3.2005, the
Estate Officer rejected the request of the contesting
respondent. Aggrieved, the contesting respondent filed
F
the writ petition which was dismissed as withdrawn.
On 7.3.2006, the Estate Officer passed an order
holding that the contesting respondent was in
unauthorized occupation of the licenced premises, which G
was a public premises and it was liable to be evicted.
In view of the policy for privatization of airports, on
4.4.2006, Mumbai International Airport Private Ltd. (MIA)
was granted the exclusive right and authority for a period
H
330
·SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
of 30 years by AAI to undertake some of the functions of
AAI. Pursuant to such right, most of the immovable
properties of AAI includi'ng the licenced premises were
leased to MIA. Meanwhile, the contesting respondent filed
an appeal before the City Civil Court against the order of
B
the Estate Officer. In the said appeal, MIA was not party.
In 2007, MIA took out a chamber summons before the
City Civil Court for impleading itself as a party in the
appeal which was allowed and ultimately the appeal of
the contesting respondent was dismissed. The
C contesting respondent filed a writ petition in the High
Court without making MIA a party. On 26.7.2008, the High
Court passed an ex parte ad interim order directing the
parties to maintain status quo. The impleadment
application of MIA was allowed. On 4.3.2009, the High
D Court allowed the writ petition and remanded the matter
to the Estate Officer for fresh decision on the ground that
the order cif the Estate Officer was null and void. for his
failure to consider the case himself as he had verbatim
reproduced the entire order of his predecessor with few
E
cosmetic changes. The matter was remanded to the
Estate Officer and on 17.3.2009, the hearing was
adjourned since SLPs were filed by MIA and AAI
challenging the order dated 4.3.2009. Subsequently,
during the pendency of the SLPs, a representation was
F
made before the Supreme Court on 29.1.2010 that there
was no Estate Officer for hearing the matter. The Supreme
Court directed AAI to appoint an Estate Officer under the
1971 Act. On 11.2.2010, the Court was informed that one
Mr. K.K Gupta, Deputy General Manager (Land
G Management) was appointed as the Estate Officer under
Section 3 of the 1971 Act, to hear the case of the
contesting respondent. In view of that, parties were
directed to appear before the Estate Officer. On 29.4.2010,
the Estate Officer passed the final order directing the
H
MUMBAI INTERNATIONALAIRPORT PVf. LTD. v. GOLDEN 331
CHARIOT AIRPORT
contesting respondent to vacate the premises and to pay
damages for unauthorized occupation of the premises by
payment of compensation and municipal taxes. The
contesting respondent filed appeal before the City Civil
Court challenging the same. The matter was placed
before the Supreme Court on 11.5.2010 and on that date
the counsel for the contesting respondent took a stand
that the proceedings pending before the Supreme Court
arising out of the two SLPs had become infructuous. The
Supreme Court held that the proceedings taken up by it
A
B
did not become infructuous and also directed transfer of c
the appeal pending before the City Civil Court to the
Supreme Court. When the matter was taken up by the
Supreme Court, it was contended by the contesting
respondent that there was an oral assurance for an
extension of the licence to the extent that it would be an
irrevocable licence and relying on such oral extension,
D
the contesting respondent made substantial investment
for constructing the restaurant; that the licence was
irrevocable; that the Estate Officer did not give the
contesting respondent a proper hearing; and that Mr. K.K
E
Gupta was not authorized to discharge the functions of
an Estate Officer in accordance with Section 3(a) of the
1971 Act.
Allowing the appeals, the Court
F
HELD: 1. The case of the contesting respondent
before all the forums was that though the licence period
commenced on and from 27.11.95, the restaurant was
made operational on 1.1.97. The initial period of licence
was upto 26.11.98. l:herefore, on its own showing, the
G
contesting respondent completed the construction of the
restaurant by 1.1.1997, which was well within the initial
licence period, which was upto 26.11.98. Admittedly
thereafter, there were two extensions of the licence
H
332
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A period upto 26.5.2000. Therefore, the construction having
been completed and the restaurant being operational by
1.1.1997, there was no occasion for the contesting
respondent to urge that it invested money in the
construction of the restaurant on the oral assurance by
B the officers of the AAI about extension of the licence so
as to make it irrevocable. The Airports Authority of India
(Contract) Regulations 2003 have been framed by ~he
AAI with the previous approval of the Cehtral
Government. The regulations are statutory. The said
c Regulations specify that contracts by AAI are required to
be sealed with the common seal of AAI. They further
provide that contracts are to be made with the previous
approval of the Central Government and AAI. Regulation
3(2) also state that all contracts shall be finalized by the
0 execution of a Deed of Agreement, Deed of Licence,
Indenture or like instrument, duly signed by AAI and the
party concerned, and the said instruments or deeds are
to be executed on non-judicial paper of appropriate
stamp value when necessary. Having regard to the said
statutory framework, the case of the contesting
E respondent that it was orally assured of extension of
licence by some officer of AAI is of no legal consequence.
No such assurance was proved, even if it is proved, such
assurance did not and would not bind the AAI. Being a
statutory corporation, it was totally bound by the Airports
F Authority of India Act, 1994 and the Regulations framed
under the Act. [Paras 40, 46-49) [348-D-F] [349-E-H] [350A-B]
2. It is well known that a mere licence does not create
G any estate or interest in the property with which it is
concerned. Normally a licence confers legality to an act,
which would otherwise be unlawful. A licence can be
purely personal, gratuitous or contractual. Whether a
contractual licence is revocable or not, would obviously
H depend on the express terms of the contract. A
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 333
CHARIOT AIRPORT
contractual licence is normally revocable, except in A
certain circumstances that are expressly provided for in
the Indian Easement Act, 1882. In the instant case, the
licence by its very term was revocable. The stand of the
contesting respondent that its licence is irrevocable as
it has invested money in the premises and made B
construction is directly contrary to the stand which it took
before the High Court and which was recorded in the
High Court's prder dated 12.7.01. When the City Civil
Court returned the plaint filed by the contesting
respondent, it came up in appeal against the said order c
before the High Court, wherein it expressly gave up its
claim of irrevocable licence in order to revive the suit. On
such stand, the High Court remanded the suit for trial
before the City Civil Court. It is, therefore, clear that the
contesting respondent took a stand before a court of law D
and also got the benefit as a result of taking such stand
in as. much as it got the suit revived and tried, and got
the .benefit of an interim order in the said proceedings.
, As a result of the said stand, the suit of the contesting
respondent went on before the City Civil Court from 2001
E
to 2004 and in view of the interim protection, the
contesting respondent ran the restaurant during that
period. The contesting respondent on a complete volteface of its previous stand cannot urge its case of
irrevocable licence before the Estate Officer and before
the Supreme Court. A litigant cannot change and choose
F
its stand to suit its convenience and prolong a civil
litigation on prevaricated pleas. The common law doctrine
prohibiting approbation and reprobation is a facet of the
law of estoppel and well established in Indian
jurisprudence also. [Paras 50, 52-55] [350-C-E-G-H] [351G
A-F] ,
b. Beepathumma & Ors. v. V. S. Kadambolithaya & Ors.
1964 (5) SCR 836; Mis New Bihar Biri Leaves Co. & Ors. v.
Statr of Bihar & Ors. (1981) 1 sec 537, relied on.
H
334
SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
Benjamin Scarf v. Alfred George Jardine (1881-82) 7
Appeal Cases 345; Tinkler v. Hilder (1849) 4 Exch 187;
Clough v. London and North Western Rail Co. (1861-73) All
ER; Harrison v. Wells 1966 (3) All ER 524; Kok Hoang v.
Leong Cheong Kweng Mines Ltd. (1964) Appeal Cases 993;
B Dwijendra Narain Roy v. Joges Chandra De AIR 1924 Cal
600, referred to.
Muskett v. Hill (1839) 5 Bing (NC) 694; Heap v. Hartley
(1889) 42 Ch. Div. 461, referred to.
C
3. The complaint of the contesting respondent that
Mr. K.K. GfJpta, while acting as Estate Officer and deciding
the proceedings, failed to observe the principles of natural
justice, by: not summoning the officers of AAI, is without
any substance. The Estate Officer gave adequate reasons
D for not summoning the officers of AAI by holding that
beyond 26.5.2000, there was no written extension of the
licence period. The Estate Officer rightly held that when
written documents were there, any oral assurance, which
purported to contradict the written documents need not
E be considered. The Estate Officer held that it has to decide
whether the contesting respondent is in unauthorized
occupation of the public premises within the meaning of
the 1971 Act. That being the sole purpose of his enquiry,
the Estate Officer thought, and rightly so, that its enquiry
F cannot be widened by including a plea of discrimination
under Article 14 raised by the contesting respondent.
Apart from that, the plea of discrimination raised by the
contesting respondent on the ground that cases of other
licensees have been extended whereas in its case, the
G licence has not been extended is not factually correct in
as much as the licence of the contesting respondent was
also extended twice. In any event, a plea of discrimination
can only be raised in aid of a right. If a person has a right
in law, to be treated in a particular way, but that treatment
is denied to him, whereas others are given the same
H
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 335
CHARIOT AIRPORT
treatment, a plea of discrimination can be made out. The A
contesting respondent has no right in law, to get its
licence extended. Therefore, one cannot have a plea of
negative equality under Article 14. There may be very
many administrative reasons for extending the period of
licence of other licensees, but that does not give rise to B
a valid plea of discrimination, when admittedly the
contesting respondent has no right in law to get an
extension. [Paras 66-69] [354-E-F] [355-8-C; E-G]
4. Section 3 of the 1971 Act provides for the power
of the Central Government to appoint an Estate Officer. C
The Ministry of Civil Aviation and Tourism, Department of
Civil Aviation, issued a notification dated 1. 7 .1997,
appointing several persons as Estate Officers for the
purpose of the 1971 Act. That notification was published
in the Official Gazette. By a further notification dated D
15.5.07, published in the Official Gazette, the Central
Government amended its previous notification and for the
words 'Airport Director', the words 'Deputy General ·
Manager (Land Management)' were substituted. While
issuing a notification under Section 3, the Central E
Government has to name a person or an individual as an
Estate Officer. The appointment of such Estate Officer is
by designation only. Mr. K.K. Gupta who functioned as
an Estate Officer and decided the case of the contesting
respondent was promoted and brought to Mumbai as
F
Deputy General Manager (Land Management). This was
admitted in the affidavit of the contesting respondent.
Therefore, Mr. K.K. Gupta by virtue of his designation as
Deputy General Manager (Land Management) discharged
his function as a valid Estate Officer. (Paras 70-73] (357G
A-F]
5. The contesting respondent has blown hot and
cold by taking inconsistent stand, and has therefore
prolonged several proceedings for more than a decade. H
A
8
c
D
I
E
336
SUPREME COURT REPORTS
[2010] 12 S.C.R.
It did not pursue its proceedings honestly in different
fora. Therefore, the appeal is dismissed with costs
assessed at Rs.5,00,000/- to be paid by the contesting
respondent in favour of the Supreme Court Mediation
Center. [Para 75] [357 -A-C]
Case Law Reference:
(1839) 5 Bing (NC) 694
referred to
Para 51
(1889) 42 Ch. Div. 461
referred to
Para 51
(1881-82) 7 Appeal Cases 345 referred to
Para 56
(1849) 4 Exch 187
referred to
Para 57
(1861-73) All ER
referred to
Para 58
1966 (3) All ER 524
referred to
Para 59
(1964) Appeal Cases 993
referred to
Para 60
AIR 1924 Cal 600
referred to
Para 61'
1964 (5) SCR 836
relied on
Para 63
(1981) 1 sec 537
relied on
Para 64
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8201 of 2010.
F
From the Judgment & Order dated 4.3.2009 of the High
Court of Judicature at Bombay in Writ Petition No. 5591 of
2008.
WITH
G C.A. No. 8200 of 2010.
G.E. Vahanvati AG, C.A. Sundaram, Chander Uday Singh,
Shyam Diwan, Farid Karachiwala, Amar Dave, Ashish Jha,
Meenakshi Chatterjee, Abhishek Gupta (for "Coac"), Praveen
H Jain, T.S. Sindhu, Mukesh Kumar, K.P. Singh, V.K. Sharma (for
MUMBAI INTERNATIONAL AIRPORT PVT. LTD. v. GOLDEN 337
CHARIOT AIRPORT
M.V. Kini & Associates), Gp. Capt. Karan Singh Bhati,
A
Aishwarya Bhati, Rashid Khan, Vinay J. Hegde, Rakesh Sinha
for the appearing parties.
The Judgment of the Court was delivered by
GANGULY, J. 1. Leave granted.
2. These two appeals, one by Mumbai International Airport
Pvt. Ltd. and another by Airport Authority of India, seek to
impugn the judgment of the High Court dated March 4, 2009.
3. The relevant facts of the case are that M/s Golden
Chariot Airport (hereinafter referred to as "the contesting
respondent") succeeded in a tendering process for running a
del.uxe grade-I restaurant, covering a space of about 5000 sq.
B
c
ft., in the car park zone in front of Terminal 1A of the Mumbai
D
Airport. Pursuant to the said bid of the contesting respondent,
a Licence Agreement dated 16.1.96, was entered into between
the Airport Authority of India (hereinafter AAI) and the c(jlntesting
respondent.
4. Some of the clauses of the said Licence Agreement
E
are relevant as one of the arguments advanced by the
contesting respondent, before the Estate Officer, the High Court
and this Court is that the licence is irrevocable. It has also been
urged by the contesting respondent, that apart from the Licence
Agreement, there has been an oral extension of the licence and
F
the contesting respondent was assured that it is irrevocable,
and on the basis of such assurance, it has invested
considerable money in building-the restaurant.
5. From the first clause of the Licence Agreement it is
G
clear that the licence is valid for a period of three years, from
27.11.95 to 26.11.98. Apart from the first clause, there are
several other clauses in the licence, like clauses 23, 24, 26,
27 and 29 in the General Terms and Conditions, which are a
part of the Licence Agreement. The aforesaid clauses are set
o~
H
A
B
c
D
E
F
G
H
338
SUPREME COURT REPORTS
[2010] 12 S.C.R.
"23. In the event of the Licensee being prohibited from
selling one or more articles in the premises because of
Government Laws/Rules/Regulations/Orders, the Authority
shall not be liable for any loss suffered by the Licensee in
such an event the Licensee shall not be entitled to any
reduction in the fees payable to the Authority or permission
for sale of additional items.
24. The Licensee shall deposit duplicate keys of the
premises with the Authority whenever the Airport Director
demands and permit the Authority to make use of the keys
during the emergency. The Licensee shall not remove or
replace the lock on the outdoor or change the locking
device on the said outer door of the shop.
25.xxx
26. On expiry of the period or on termination of the licence
by the Authority on account of any breach on the part of
the Licensee, the Licensee shall deliver the possession of
the premises in good condition and peaceful manner along
with furniture, fittings, equipments and installations, if any,
provided by the Authority. Further, Licensee shall remove
his/their goods and other materials from the premises
immediately, failing which Authority reserves its right to
remove such goods/materials at the cost and risk of the
Licensee and demand payment for such removal. If such
payment is not made within 10 days, Authority shall be at
liberty to dispose off the goods/materials of the Licensee
by public auction to recover the cost. The Licensee shall
not be entitled to raise any objection in such an eventuality.
27. The licence herewith granted shall not be construed in
any way as giving or creating any other right or interst in
the said space building(s)/land/garden/tank/ premises to
or in favour of the Licensee but shall be construed to be
only as a licence in terms and conditions herein contained.
MUMBAI INTERNATIONAL AIRPORT PVT.LTD. v. GOLDEN 339
CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]
28. xxx
A
29. The provision of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 and the rules framed
thereunder which are now in force or which may hereafter
came into force shall be applicable for all matters provided
B
in the said Act."
6. It is clear from what is extracted above that the licence
is not irrevocable. Apart from that it is clear that the provisions
of the Public Premises (Eviction of Unauthorized Occupants)
Act, 1971 and the Rules framed thereunder have been made C
applicable to the Licence Agreement. It is not in dispute that
after the initial grant of the said licence, the same was, under
request of the contesting respondent, extended upto 26.5.2000.
Before the extended period couM expire, a notice dated
4.5.2000 was sent by the Senior Commercial Manager on
D
behalf of AAI to the contesting respondent, requesting it to
vacate and hand over physical possession of the licensed
premises on expiry of the extended licence on 26.5.2000.
7. Instead of doing so, the contesting respondent filed, on
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15.5.2000, a suit in the Bombay City Civil c"ourt being suit No.
3050/2000, praying for canceling the notice dated 4.5.2000 and
for permanent injunction restraining AAI from evicting,
demolishing; or removing the restaurant premises of the
contesting respondent without adopting the due process of law.
F
In the said suit, the contesting respondent prayed for a
declaration that the AAI has granted an irrevocable licence and
AAI has no right to terminate, cancel or revoke the licence. The
exact prayer to the af9resafd 'effect is as under:
/
(a) "For a declaration of this Hon'ble Court thereby G
declaring that the defendants have granted an irrevocable
licence in favour of the plaintiffs in respect of the said
restaurant business situated at the car park of Terminal 1 A
of Santa Cruz Airport Mumbai, and that the same is
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SUPREME COURT REPORTS
[2010] 12 S.C.R.
A
subsisting valid and in full force and effect and further that
the defendants have no right to terminate, revoke and/or
cancel the same and/or interfere with the peaceful running
of the said business of the plaintiffs at least till such time
as the said land, beneath the said restaurant is not
B
required for Airport related development purpose."
8. On such suit being filed, the Bombay City Civil Court
returned the plaint under Order VII Rule 10 of Civil Procedure
Code (for short "CPC"), inter alia, on the ground that the City
Civil Court does not have the pecuniary jurisdiction to hear the
C case in view of the declaration prayed for.
9. Aggrieved by the said Order, the contesting respondent
preferred an appeal before the Bombay High Court. When the
said appeal came up for hearing on 12.7.01, it was represented
D by the contesting respondent that they will drop the prayer in
Clause (a) of the plaint, which is the prayer for the dedaration
that the licence is irrevocable. On such stand being taken by
the contesting respondent before the Bombay High Court, there
was a consensus between the parties, and the High Court was
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pleased to pass the following Order:
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" ...... the impugned order is set aside without examining
the merits or demerits of the impugned order and the
matter is question is remitted back to the City Civil Court,
Bombay granting liberty to the Plaintiff to move proper
application for amendment of the plaint so as to enable
him to delete prayer clause (a), and other pleadings raised
in support thereof in the plaint. ..... .
10. In view of the aforesaid Order of the High Court, the
G matter was remanded to the Bombay City Civil Court. The City
Civil Court decreed the suit by a judgment dated 11.2.04. In
the said judgment, the Bombay City Civil Court held that on a
reading of clauses 16, 29 and 30 of the Licence Agreement it
was clear that both parties had agreed to submit themselves
H to the provisions of the Public Premises (Eviction of
MUMBAI INTERNATIONALAIRPORTPVT. LTD. v. GOLDEN 341
CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]
Unauthorized Occupants) Act, 1971/ (hereinafter referred to as
A
the 1971 Act) and Rules framed thereunder. The Court thus held
that the AAI were bound to follow the due process of law for
evicting the contesting respondent from the suit premises, as
given under the 1971 Act.
11. Accordingly, proceedings were initiated before the
Estate Officer on 27.09.04 and notices were issued by the
Estate Officer under Sections 4, 5, 5A, 58 and 7 of the 1971
Act to the contesting respondent. Hearings were conducted on
26.10.04 and 8.11.04.
B
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12. On 13.11.04, the contesting respondent addressed a
letter to AAI for extension of licence with respect to the licensed
premises till AAI required it for airport development purposes.
Further hearings before Estate Officer were conducted and on
12.01.05, after completion of the hearing and closing of the D
summary proceedings, the contesting respondent addressed
a letter contending that the hearing of the matter be deferred
until AAI communicated its decision on the letter dated
13.11.04. The contesting respondent once again addressed a
letter dated 11.02.05 to the Estate Officer reiterating the same
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request and urged the Estate Officer to reopen the case to
enable the contesting respondent to lead evidence in the
matter. On 18.03.05, the Estate Officer heard the case of the
contesting respondent and rejected the same.
13. Aggrieved, the contesting respondent filed a writ
F
petition (No. 2900/2005) before the Bombay High Court. On
30.06.05, the Bombay High Court dismissed the writ petition
by passing the following order:
"Allowed to withdraw the liberty to make a fresh application G
which shall be decided, in accordance with law. All
questions, including the questions of tenability, are left
open."
14. Meanwhile, the Estate Officer Mr. V.K. Monga was
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SUPREME COURT REPORTS
[2010] 12 S.C.R.
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transferred and a new Estate Officer Mr. Narinder Kaushal was
appointed. Mr. Kaushal forwarded a copy of the record of
proceedings to Mr. Monga by a letter dated 11.08.05. Mr.
Monga, by letter dated 12.09.05, forwarded a draft summary
of the proceedings.
B
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15. Even after withdrawal of the writ petition, a letter dated
28.12.05 was written by the advocate of the contesting
respondent referring to the withdrawn writ petition, and
requesting the Estate Officer for a11 adjournment of proceedings
in view of its previous letter dated 13.11.04.
16. On 7.3.06, the Estate Officer passed a detailed Order
in EO Case No.6/2004, holding inter alia that the contesting
respondent was in unauthorized occupation of the licensed
premises, which was a public premises and it was liable to be
D evicted from the said premises under Section 5 of the 1971
Act with effect from 27.05.2000.
17. Aggrieved thereby, the contesting respondent filed an
appeal under Section 9 of the 1971 Act before the Bombay City
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Civil Court (M.A. No. 39/2006), which was dismissed by the
Bombay City Civil Court on 24.7.2008.
18. It may be mentioned here that between 2003 to 2006,
Union of India, through its Ministry of Civil Aviation, came out
with a policy for privatization of airports. Resultantly, the Airports
F
A11thority of India Act, 1991 was amended by the Airports
Authority of India (Amendment) Act, 2003. Accordingly, Mumbai
International Airport Private Ltd. (MIA) was incorporated on
2.03.06 with the object of operating, maintaining, developing,
designing, constructing, upgrading, modernizing and managing
G the Mumbai Airport and to enter into contracts with third parties
for the said purpose.
19. On 4.04.06, MIA entered into an Operation,
Management and Developr:nent Agreement (OMDA) whereby
H AAI granted MIA the exclusive right and authority (for 30 years
MUMBAI INTERNATIONAL AIRPORT PVT.LTD. v. GOLDEN 343
CHARIOT AIRPORT [ASOK KUMAR GANGULY, J.]
commencing from 3.05.06) to undertake some of the functions
A
of the AAI such as operation, maintenance, development,
design, construction, upgradation, modernization, finance and
management of the Mumbai Airport.
20. Pursuant to the OMDA, AAI entered into a Lease
B
Agreement dated 26.04.06, by which most of the immovable
properties of AAI at the Mumbai Airport, including the licensed
premises, were leased to the MIA.
21. In 2007, MIA took out a Chamber Summons before the
Bombay City Civil Court for impleading itself as a party in the C
appeal filed by the contesting respondent (Appeal No.39/2006).
The appeal of the contesting respondent and the Chamber
Summons of MIA were heard by the Bombay City Civil Court.
By its Order dated 24.07.08, the Bombay City Civil Court
dismissed the appeal of the contesting respondent and allowed
D
the Chamber Summons of MIA.
22. After the dismissal of its appeal by the City Civil Court,
the contesting respondent filed a writ petition (No. 5591/2008)
in the Bombay High Court, without making MIA a party. On
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26.07.08, the Bombay High Court passed an ex-parte adinterim Order directing the parties to maintain status quo. On
28.07.08, MIA filed a civil application for impleadment in the
writ proceedings before the High Court and on 6.08.08 the High
Court allowed the same.
F
· 23. The Bombay High Court passed the impugned Order
on 4.03.09 whereby it allowed the writ petition and set aside
the judgment of the Bombay City Civil Court dated 24.07.08.
The High Court held that the order of the Estate Officer Mr.
Kaushal was null and void for his failure to consider the case G
himself as he had verbatim reproduced the entire order of Mr.
Monga with a few cosmetic changes. The High Court thus
remanded the matter to the Estate Officer for a fresh decision
in accordance with law.
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[2010] 12 S.C.R.
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24. After the impugned Order of the High Court dated
4.3.09, whereby the matter was remanded to the Estate Officer,
hearing took place on 14.5.09 by the new Estate Officer Mr. Y.
Kumaraswamy. Hearings before Mr. Kumaraswamy were
adjourned as by 17 .3.09, challenging the order of the High Court
B
dated 4.3.09, an SLP (6556/2009) was filed by MIA, and soon
thereafter, another SLP challenging the same order of the High
Court was filed by AAI on 28.3.09.
c
25. In view of such SLPs being filed before this Court,
hearing before Mr. Kumaraswamy stood adjourned.
26. Both the aforesaid SLPs, now converted into appeals,
were tagged by an order of this Court dated 8.5.09, passed in
SLP No. 11663/2009 and thereafter were heard together. In the
meantime, Mr. Kumaraswamy retired and one Mr. Keshav
D Sharma, General Manager (Communication & Land
Management) was appointed the new Estate Officer.
27. Subsequently, during the pendency of the proceedings
before this Court, it transpires on a representation made before
E
this Court on 29.1.10, that there was no Estate Officer for
hearing the matter. This Court, therefore, directed AAI by its
Order of the same date to appoint an Estate Officer under the
provisions of the Act of 1971, within a period of 10 days and
directed the matter to be posted for further hearing on 11.2.10.
F
28. On 11.2.10, this Court was informed that Mr. K.K
Gupta, Deputy General Manager (Land Management) has been
appointed the Estate Officer under Section 3 of the 1971 Act,
to hear the case of the contesting respondent in place of Mr.
Keshav Sharma. In view of such representation being made
G before this Court, this Court directed the parties to appear
before the Estate Officer on 17.2.10, with a request that the
Estate Officer was to fix a date of hearing and then to hear the
parties and pass an appropriate Order in accordance with law
on or before 30.4.10. It was also made clear that the Order of
H the Estate Officer would be made available to the parties within
MUMBAI INTERNATIONAL AIRPORT PVT LTD. v. GOLDEN 345
CHARIOT AIRPORT [ASOK KUMAR GANGULY,.J.]
the next two days. The parties were given liberty, if so advised,
A
to challenge or support the Order of the Estate Officer in the
pending proceeding before this Court and which was posted
before this Court on 7.5.10.
29. It appears that on 29.4.1 d: the Estate Officer, after
B
hearing the parties, passed a final order directing the
contesting respondent to vacate the premises. It also directed
the contesting respondent to pay damages for unauthorized
occupation of the premises by payment of compensation and
municipal taxes.
30. Aggrieved by the said Order, the contesting
respondent filed a miscellaneous appeal before the Bombay
City Civil Court, challenging the abovementioned Order of t~e
Estate Officer.
31. The matter was placed before this Court on 11.5.10
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and on that date learned Counsel for the contesting respondent
took a stand that the pending proceedings before this Court
arising out of the two SLPs had become infructuous. The
impugned Order of the Bombay High Court dated 4.3.09 was
E
no longer holding the field. Instead of that, the present Order
dated 29.4.10 of the Estate Officer is the operative order and
against that already_an appeal has been filed by the contesting
respondent before the Bombay City Civil Court.
32. Counsel for both AAI and MIA opposed the aforesaid
F
stand and contended that the proceedings before this Court
had not become infructuous and as this Court has retained its
seisin over the matter as this Court directed the Estate Officer
to decide the proceedings under the 1971 Act within a time
frame but kept the proceedings before it pending.
G
33. This Court further gave liberty to the parties in its Order
dated 11.2.10, to challenge the ultimate Order of the Estate
Officer in the pending proceedings before this Court.
34. The Court after hearing the parties, held that the
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SUPREME COURT REPORTS
[2010] 12 S.C.R.
A proceedings before this Court had not become infructuous.
B
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G
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Since the order of this Court dated 11.5.10 has a bearing on
the issues, the same is set out:
"Heard learned counsel for th~ parties.
Today when the matters were taken up before this
Court, this Court was informed by Mr.Mukul Rohtagi,
learned senior counsel for the petitioners that pursuant to
the order of this Court dated 11.02.2010 the Estate Officer
has decided the matter and passed an order dated
29.04.2010. Impugning the said order, the respondents
have filed an appeal under Section 9 of the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971
before the Principal Judge, Bombay City Civil Court,
Mumbai. Mr.Rohtagi submitted that such filing of appeal
before the aforesaid judicial authority in view of the
directions contained in that order amounts to an act of
contempt. He further submitted that in any event, the said
filing of appeal circumvented the order of this Court dated
11.02.2010. Mr.Shyam Divan, learned senior counsel
appearing on behalf of the respondents, on the other hand,
contended that his client has filed the said appeal in view
of the statute made by the Parliament and his client has
exercised that right. According to him, such right of appeal
cannot be taken away by any order of this Court.