Civil Appeal No. 8201 of 2010, Arising out of Special Leave Petition (C) No. 6556/09, Civil Appeal No. 8200 of 2010, Arising out of Special Leave Petition (C) No. 11663/09. Case: 1. Mumbai International Airport (P) Ltd., 2. Airport Authority of India Vs Golden Chariot Airport and Anr.. Supreme Court

Case Number:Civil Appeal No. 8201 of 2010, Arising out of Special Leave Petition (C) No. 6556/09, Civil Appeal No. 8200 of 2010, Arising out of Special Leave Petition (C) No. 11663/09
Party Name:1. Mumbai International Airport (P) Ltd., 2. Airport Authority of India Vs Golden Chariot Airport and Anr.
Judges:G.S. Singhvi and Asok Kumar Ganguly, JJ.
Issue:Public Premises (Eviction of Unauthorised Occupants) Act, 1971- Sections 3, 3(a), 4, 5, 5(A), 5(B), 7, 9; Civil Procedure Code - Order VII Rule 10; Airports Authority of India (Amendment) Act, 2003; Indian Easement Act, 1882 - Section 52; Airports Authority of India Act, 1994 - Sections 3, 3(2), 20, 21
Citation:JT 2010 (10) SC 381 , 2010 (10) SCALE 69
Judgement Date:September 22, 2010
Court:Supreme Court
 
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Judgment:

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 deluxe grade-I restaurant, covering a space of about 5000 sq. ft., in the car park zone in front of Terminal 1A of the Mumbai 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 contesting respondent.

  4. Some of the clauses of the said Licence Agreement 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 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 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 out:

    "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.

  6. 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.

  7. xxx

  8. 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.

  9. 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.

  10. xxx

  11. 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 in the said Act."

  12. 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 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 could expire, a notice dated 4.5.2000 was sent by the Senior Commercial Manager on 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.

  13. Instead of doing so, the contesting respondent filed, on 15.5.2000, a suit in the Bombay City Civil Court 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. 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 aforesaid effect is as under:

    (a) "For a declaration of this Hon'ble Court thereby 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 1A of Santa Cruz Airport Mumbai, and that the same is 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 required for Airport related development purpose."

  14. 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 case in view of the declaration prayed for.

  15. 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 by the contesting respondent that they will drop the prayer in Clause (a) of the plaint, which is the prayer for the declaration 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 pleased to pass the following Order:

    "......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.......

  16. In view of the aforesaid Order of the High Court, the 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 to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as 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.

  17. 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, 5B and 7 of the 1971 Act to the contesting respondent. Hearings were conducted on 26.10.04 and 8.11.04.

  18. 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 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 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...

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