IA Nos. 7905/2011 and 12029/2011 in CS (OS) 1178/2011. Case: Bharat Petroleum Corporation Ltd. Vs Delhi International Airport Pvt. Ltd. and Anr.. High Court of Delhi (India)
| Case Number | IA Nos. 7905/2011 and 12029/2011 in CS (OS) 1178/2011 |
| Counsel | For Appellant: Mr. Sudhir Chandra, Sr. Adv. with Mr. Avneesh Garg, Adv. and For Respondents: Mr. Ashwani Kumar Mata, Sr. Adv. with Mr. Milanka Chaudhury and Mr. Sarojanand Jha, Advs., Mr. Rajeev Mehra, Sr. Adv. with Ms. Anjana Gosain, Mr. Milanka Chaudhry, Mr. Ashish Virmani, Ms. Prerna Shah Deo, Advs. |
| Judges | Kailash Gambhir, J. |
| Issue | Aircraft Act, 1934 - Sections 4, 4A, 5, 5(2)(b), 5(2)(m), 5A; Code of Civil Procedure, 1908 - Rule 1, 2, 4; Code of Civil Procedure, 1908 - Section 151; Constitution of India - Article 12; Indian Easements Act, 1882 - Sections 14, 52, 60, 60(b), 62, 63, 64 |
| Judgement Date | February 11, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
Kailash Gambhir, J.
1. By this order I propose to dispose of the application filed by the plaintiff under Order 39 Rule 1 and 2 read with Section 151 CPC and application filed by defendant No. 1 under Order 39 Rule 4 read with Section 151 CPC. Before I deal with the rival contentions raised by the counsel for the parties, it would be necessary to give a brief narration of the facts as set out by the plaintiff in the plaint. The plaintiff, Bharat Petroleum Corporation Ltd., a public sector oil company, is engaged in refilling of crude oil and marketing of various petroleum products including Aviation Turbine Fuel (ATF) which is supplied to the aircrafts of various airlines landing and taking off from the Terminal-1 (only Domestic) of Delhi Airport. The business of storing and supplying ATF to the aircrafts at Delhi Airport commenced some time in the year 1950 by the predecessor-in-interest of the plaintiff i.e. Burmah Shell Oil Storage and Distributing Company of India Ltd. which had then installed underground storage tanks, constructed building/structure and had also placed other facilities including bowsers for supply of fuel into aircraft at the Delhi Airport. After enactment of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, the right, title and interest of the said Burmah Shell Oil Storage and Distributing Company of India Ltd. in the licensed land got transferred to the plaintiff company and since then the plaintiff company has been carrying on the said business of storing and supplying the Aviation Turbine Fuel to the aircrafts at the Delhi Airport.
2. It is further alleged in the plaint that the License Agreement between the plaintiff Co. and the then International Airport Authority was renewed from time to time and vide the last License Agreement dated 11.9.1986, the plaintiff Co. had agreed to pay an amount of Rs. 1,65,051.37 per year to the Airport Authority for supplying the Aviation Turbine Fuel to the Aircrafts. According to the plaintiff, being conferred with the same rights, it had executed certain works of permanent character at the licensed site the replacement value of which would not be less than Rs. 3.65 crores.
3. It is further alleged in the plaint that the defendant no. 1, after taking over all the operations of the Delhi Airport from the earlier airport authority, started pressurizing the plaintiff Co. to stop running its business from the apron area of the airport without any reasonable ground whatsoever in furtherance of its unwarranted commercial gains.
4. It is also alleged in the plaint that in order to avoid the huge loss and to find out a mutually acceptable solution, the plaintiff gave an offer to relocate its said installed facilities, if suitable alternative land within apron area of Terminal-I was provided by the defendant. It is further alleged that instead of paying any heed to the proposals offered by the plaintiff, the defendant no. 1 vide its notice dated 4.5.2011 asked the plaintiff to completely close down its activities of storing the Aviation Turbine Fuel as well as the movement of tank trucks and parking of bowsers in the proximity of Taxiway C, Terminal-1 Apron area w.e.f. 15.5.2011. The defendant No. 1 through the said notice also threatened the plaintiff to demolish all structural premises in existence at the apron area in the event of the plaintiff not discontinuing all its activities in relation to the storage of ATF, movement of tank trucks and bowsers etc. within the said period.
5. Feeling aggrieved by the said threat extended by defendant No. 1 and to save itself from being illegally dispossessed from the site in question, the plaintiff has filed the present suit to seek an order of permanent injunction to restrain the defendant No. 1 from acting or proceeding on the basis of the said notice dated 4.5.2011.
6. This case was taken up by the Court on 13.5.2011, when defendant No. 1 was duly represented by Mr. Atul Sharma, Adv.. After hearing the arguments of both the counsels, the Court directed both the parties to maintain status quo with respect to the activities of the plaintiff company for storage of ATF facility and filling the ATF in the aircrafts at Terminal-I of IGI Airport. The Court also directed the Director General of the Civil Aviation to conduct a fresh audit of the airfield at Terminal-I of IGI Airport and submit a report on the question whether the ATF storage facilities of the plaintiff and the facility of filling ATF by the plaintiff in the aircrafts at Terminal-I of IGI Airport, are detrimental to the security and safety of the aircrafts using the air field. It would be worthwhile to reproduce the operative Para of the said order. The same reads as under:-
Keeping in view all the facts and circumstances of the case, it is directed that till further orders of this Court, the parties will maintain status quo with respect to the activities of the plaintiff company for storage of ATF facility and filling the ATF in the aircrafts at Terminal-I of IGI Airport. The defendant company is directed to file the letter dated 18th April, 2011 of DGCA on or before the next date of hearing and also supply a copy of the same to the plaintiff company within one week from today.
The DGCA is directed to conduct a fresh audit of the airfield at Terminal-I of IGI Airport and submit a report within four weeks so as to whether the ATF storage facilities of the plaintiff and the facility of filling ATF by the plaintiff in the aircrafts at Terminal-I of IGI Airport, are detrimental to the security and safety of the aircrafts using the air field. The representative of the plaintiff as well as defendant will be associated while conducting audit in terms of this order.
7. Defendant No. 1 filed its written statement and along with that also filed an application under Order 39 Rule 4 read with Section 151 CPC to seek vacation of the status quo order dated 13.5.2011 passed by this Court. Before this Court could hear arguments on the said application moved by the defendant no. 1 under Order 39 Rule 4 CPC and stay application of the plaintiff, the DGCA filed its report dated 3.6.2011 in compliance of the direction given by the Court vide order dated 13.5.2011. After having perused the said report, this Court vide order dated 22.9.2011 gave further direction to DGCA to give a detailed report elucidating para 5 of its report. The necessary clarification in compliance of the order dated 22.9.2011 was given by the DGCA vide its report dated 30.9.2011. The plaintiff took leave of this Court to submit a fresh proposal for consideration of the defendant no. 1 without prejudice to its rights and contentions and granting such leave to the plaintiff, the Court directed the defendant no. 1 to respond to such a proposal within a period of 3 days after receiving it. Vide IA No. 19340/2011 the plaintiff sought impleadment of DGCA as one of the defendants and by a detailed order passed by this Court dated 9.12.2011, impleadment of DGCA as defendant No. 2 was allowed. The Court felt that the presence of DGCA as a party to the suit would be necessary before the Court takes a prima facie view on the said issue of removal of ATF storage facility from the Apron area. Written statement was also filed by defendant No. 2 DGCA and replication thereto was also filed by the plaintiff.
8. The defendant no. 1 raised various factual and legal objections in its written statement. It referred to some of the provisions of the Aircraft Act, 1934, namely Section 4 of the Aircraft Act, 1934 which enables the Central Government to make rules to implement the Convention relating to International Civil Aviation signed at Chicago on December 7, 1944 including any annex thereto relating to international standards and recommended practices as amended from time to time; Section 5A of the Aircraft Act, 1934 which empowers the DGCA to issue directions for securing the safety of the aircraft operations and also referred to some of the rules prescribed under the Aircraft Rules, 1937 namely, Rule 133 A of the Aircraft Rules, 1937 which empowers the DGCA to issue directions relating to the operation, use, possession, maintenance or navigation of the aircrafts; Rule 83 of the Aircraft Rules, 1937 which empowers the DGCA to impose necessary conditions for granting or renewing the aerodrome license in order to ensure compliance with the Convention and the safety of the aircraft operations. In the light of the aforesaid legal provisions, the defendant no. 1 took a stand that the defendant No. 2, DGCA is fully authorized to carry out the inspection of the IGI Airport.
9. According to the defendant no. 1, the defendant no. 2 carried out an aerodrome inspection of the IGI Airport during 27.2.2006 to 03.03.2006 as a part of its licensing process and prepared a detailed inspection report. It is the case of defendant No. 1 that one of the non-compliance which was highlighted in the subject report was that the minimum separation distance between the centre line of taxiways used by wide bodied aircrafts and the plaintiff's installations was less than the minimum required laid down separation distance of 47.5 meters.
10. Defendant No. 1 also referred to the detailed Civil Aviation Requirements (CARs) issued by DGCA on 31.7.2006 under Rule 83(1) read with Rule 133A of the Aircraft Rules, 1937 in respect of Aerodrome Design and Operations. After giving reference to paras 1.2.2, 3.9.8 of the CAR dated 20.9.2006 which provides for exemption procedure for non-compliances at aerodromes, the defendant no. 1 has taken a stand that the defendant no. 1 vide its letter dated 29.5.2007 requested the plaintiff to remove its ATF facility and make alternative arrangement for supply of fuel. Reminder letters dated 1.8.2007 and 23.8.2007 were also sent by the defendant No. 1 reiterating its same request. The defendant no. 1 also made separate request to Indian Oil Corporation Ltd. (IOCL) to augment...
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