Writ Petition No. 5591 of 2008. Case: Golden Chariot Airport, Mumbai Vs 1. Airports Authority of India, Chhatrapati Shivaji International Airport, Mumbai, 2. Mumbai International Airports Private Limited, Mumbai. High Court of Bombay (India)
| Case Number | Writ Petition No. 5591 of 2008 |
| Counsel | Joaquim F. Reis, Vinay J. Hegde, Girish Kulkarni, Mayur Shetty, Dipankar Das, M/s. M. V. Kini And Company, Virag Tulzapurkar, Birendra Saraf, Farid Karachiwala, Bhani K. Manke, Suraj Iyer, Nitesh Ramawat, M/s. Wadia Gandhy And Company |
| Judges | S. A. Bobde, J. |
| Issue | Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Sections 5(A), 5(B), 4, 4(2)(ii), 5, 7 |
| Judgement Date | March 04, 2009 |
| Court | High Court of Bombay (India) |
Judgment:
S. A. Bobde, J.
The Order of the Court was as follows:
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The petitioners have challenged the Order in Appeal of the Principal Judge, City Civil Court at Bombay, dismissing their appeal and confirming the order passed by the Estate Officer under The Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (hereinafter referred to as "the Act").
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The area in question is a space admeasuring 5, 000 sq. ft. in front of Terminal 1-A at the Bombay Airport owned by the Airports Authority of India - the respondent No.1. The petitioners came into possession of the premises under an Agreement entered into by the respondent No.1 after accepting the petitioners bid. The petitioners thus obtained a Licence for establishment and running of a deluxe restaurant at the aforesaid premises. The petitioners were allowed to make a construction of semi permanent nature. On the expiry of the licence they were to take away their furniture and installation and hand over vacant possession of the premises. During the period of construction for the first 90 days a licence fee at concessional rate was to be paid. The licence itself was terminable by giving three months notice by either side. The respondent no.1 had the right to terminate the licence in case of any breach of conditions of the licence by the petitioners.
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The period fixed by the Agreement was extended by the respondent No. 1. The respondent No. 1 then called upon the petitioners to vacate the premises on or before 26th May 2000. Apparently, the petitioners did not do so and instead filed the Civil Suit in the Bombay City Civil Court where the Court granted an injunction restraining the respondent No.1 from taking any action for eviction without following the due process of law.
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The respondent No.1 then initiated the present proceedings before the Estate Officer under Sections 4, 5, 5A and 5B and 7 of the Act. They prayed for eviction, removal of construction made by the petitioners and recovery of damages. The damages were claimed on the basis of fees fixed under a new agreement entered into by the respondents with another party for the subsequent period. In their reply to the application for eviction, the petitioners raised various defences. According to them they were entitled for a set off for loss of business when they could not function for a year. They claimed that they had made a heavy investment on the basis of oral promises from some Officers of the Authority interalia and also pleaded the bar of limitation.
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Initially the Estate Officer before whom this application was filed was one V.K. Monga. This officer functioned as an Estate Officer till 20.11.2005 or thereabouts. On 23.11.2005 a new Estate Officer one Narendra Kaushal issued Notice dated 16.12.2005 as the next date of hearing in the matter. The order for eviction has been passed on 7.3.2006 by the new Estate officer. This change of officers and the ensuing turn of events has given rise to the most serious contention between the parties.
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According to Shri Reis, the learned counsel for the petitioners, the facts which give rise to this contention were accidentally discovered by the petitioners from the record and proceedings of the Estate Officer produced before the Civil Court. It must be stated that Shri Tulzapurkar and Shri Kulkarni, the learned counsels for the respondents did not dispute the correctness of the facts and submitted that there was no attempt by the respondents to conceal any aspect of the matter. The relevant facts are that after Monga was transferred to Kolkatta and had relinquished charge of his office at Mumbai, he visited Mumbai. Kaushal the Estate Officer who had taken over and was acting as an Estate Officer apparently met him and then wrote him a letter dated 11.8.2005 referring to some discussion during their meeting at Mumbai and forwarding a photocopy of the proceedings in the present matter. The purpose stated by him in his letter "for forwarding the brief to the undersigned" was to enable Monga to go through the proceedings and forward to Kaushal "a brief". The intention of these two Officers can only be gathered from what actually transpired. On 12.9.2005 Monga wrote a letter to Kaushal referring to his visit to Bombay Airport on 8th and 9th August 2005 for briefing, in particular on the Estate case of M/s. Golden Chariot Airport - the petitioners. Monga enclosed a "Draft summary of the case giving background, applicants and respondents claims and written statement of both the parties." He further wrote as under:
"As you will find from the enclosures, analysis of the case has been done based on the proceedings held and facts & figures on record. Based on my analysis, the findings have also been appended explicitly for your perusal. The other aspects like damage & compensation have also been addressed to besides analyzing the request of the respondents for re-examination and for re-opening the case".
What was enclosed is the entire draft order complete with the title of the case, the cause title showing the array of parties, the appearances on behalf of the parties. The draft is virtually the entire order beginning with a brief description of the proceedings, the narration of the facts, reference to the litigation in the Civil Court, a full discussion of the matter; the whole order neatly divided under heading such as Analysis, Findings, Damages / Compensation. The only thing absent is the operative part of the order, which was presumably left for Kaushal to write. On receiving the entire order or the judgment as it were, Kaushal then listed the matter on 2 or 3 occasions and then closed it for orders. He proceeded to then pass an order dated 7.3.2006. The order delivered by Kaushal is exactly the order drawn by and forwarded to him at his request by Monga. In other words, it is verbatim et literatim i.e. word for word and letter for letter, Monga's draft prepared at Kolkatta. One can see what Shri Tulzapurkar the learned counsel for the respondent No. 2 took pains to point out i.e. the difference in a few words, such as "Bombay" to "Mumbai", "process" to "action"; corrections such as "clause to evoke" from "cause to invoke". One cannot however see any difference in the substance of the order i.e. the statements of facts, the reference to the law including case law and the analysis and the findings and even the words used. Notwithstanding the superficial changes, it is obvious that the order is a verbatim i.e. word for word reproduction. Black's Law Dictionary...
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